[G.R. No. 212448. January 11, 2018.
] altercation at a hotel room in Singapore during her visit
AAA, * petitioner, vs. BBB, * respondent.
DECISION
TIJAM, J p:
May Philippine courts exercise jurisdiction over an
offense constituting psychological violence under
Republic Act (R.A.) No. 9262, 1 otherwise known as the
Anti-Violence against Women and their Children Act of
2004, committed through marital infidelity, when the
alleged illicit relationship occurred or is occurring outside
the country? HTcADC
The above question is addressed to this Court in the
present Petition 2 for the issuance of a writ of certiorari
under Rule 45 of the Rules of Court, to nullify the
Resolutions dated February 24, 2014 3 and May 2, 2014
4 of the Regional Trial Court (RTC) of Pasig City, Branch
158, in Criminal Case No. 146468. The assailed
resolutions granted the motion to quash the Information 5
which charged respondent BBB under Section 5 (i) of
R.A. No. 9262, committed as follows:
On or about April 19, 2011, in Pasig City, and within the
jurisdiction of this Honorable Court, [BBB], being then
legally married to [AAA], caused herein [AAA] mental
and emotional anguish by having an illicit relationship
with a certain Lisel Mok as confirmed by his photograph
with his purported paramour Lisel Mok and her children
and the e-mailed letter by his mother mentioning about
the said relationship, to the damage and prejudice of
[AAA], in violation of the aforecited law.
Contrary to law.
We briefly recount the antecedents.
Petitioner AAA and BBB were married on August 1, 2006
in Quezon City. Their union produced two children: CCC
was born on March 4, 2007 and DDD on October 1, 2009.
6 law, the act itself which had caused a woman to suffer
In May of 2007, BBB started working in Singapore as a
chef, where he acquired permanent resident status in
September of 2008. This petition nonetheless indicates
his address to be in Quezon City where his parents reside
and where AAA also resided from the time they were
married until March of 2010, when AAA and their
children moved back to her parents' house in Pasig City.
7 about or into existence by a criminal act which must
AAA claimed, albeit not reflected in the Information, that
BBB sent little to no financial support, and only
sporadically. This allegedly compelled her to fly extra
hours and take on additional jobs to augment her income
as a flight attendant. There were also allegations of virtual
abandonment, mistreatment of her and their son CCC, and
physical and sexual violence. To make matters worse,
BBB supposedly started having an affair with a
Singaporean woman named Lisel Mok with whom he
allegedly has been living in Singapore. Things came to a
head on April 19, 2011 when AAA and BBB had a violent
with their kids. 8 As can be gathered from the earlier cited
Information, despite the claims of varied forms of abuses,
the investigating prosecutor found sufficient basis to
charge BBB with causing AAA mental and emotional
anguish through his alleged marital infidelity. 9
The Information having been filed, a warrant of arrest was
issued against BBB. AAA was also able to secure a Hold-
Departure Order against BBB who continued to evade the
warrant of arrest. Consequently, the case was archived. 10
On November 6, 2013, an Entry of Appearance as
Counsel for the Accused with Omnibus Motion to Revive
Case, Quash Information, Lift Hold Departure Order and
Warrant of Arrest 11 was filed on behalf of BBB.
Granting the motion to quash on the ground of lack of
jurisdiction and thereby dismissing the case, the trial court
reasoned:
Here, while the Court maintains its 28 October 2011
ruling that probable cause exists in this case and that
[BBB] is probably guilty of the crime charged,
considering, however, his subsequent clear showing that
the acts complained of him had occurred in Singapore,
dismissal of this case is proper since the Court enjoys no
jurisdiction over the offense charged, it having transpired
outside the territorial jurisdiction of this Court.
xxx xxx xxx
The Court is not convinced by the prosecution's argument
that since [AAA] has been suffering from mental and
emotional anguish "wherever she goes," jurisdiction over
the offense attaches to this Court notwithstanding that the
acts resulting in said suffering had happened outside of
the Philippines. To the mind of the Court, with it noting
that there is still as yet no jurisprudence on this score
considering that Republic Act 9262 is relatively a new
mental or emotional anguish must have occurred within
the territorial limits of the Court for it to enjoy jurisdiction
over the offense. This amply explains the use of the
emphatic word "causing" in the provisions of Section 5
(i), above, which denotes the bringing about or into
existence of something. Hence, the mental or emotional
anguish suffered by a woman must have been brought
logically have occurred within the territorial limits of the
Court for jurisdiction over the offense to attach to it. To
rule otherwise would violate or render nugatory one of the
basic characteristics of our criminal laws — territoriality.
In the listing provided in the law itself — "repeated verbal
and emotional abuse, and denial of financial support or
custody of minor children of (sic) access to the woman's
child/children" — it becomes clear that there must be an
act which causes the "mental or emotional anguish, public
ridicule or humiliation," and it is such act which partakes
of a criminal nature. Here, such act was the alleged
maintenance of "an illicit relationship with a certain
Liesel Mok" — which has been conceded to have been
committed in Singapore. aScITE
Granting, without conceding, that the law presents
ambiguities as written, quashal of the Information must
still be ordered following the underlying fundamental
principle that all doubts must be resolved in favor of
[BBB]. At best, the Court draws the attention of Congress
to the arguments on jurisdiction spawned by the law. 12
(Emphasis in the original)
Aggrieved by the denial of the prosecution's motion for
reconsideration of the dismissal of the case, AAA sought
direct recourse to this Court via the instant petition on a
pure question of law. AAA posits that R.A. No. 9262 is in
danger of becoming transmogrified into a weak, wobbly,
and worthless law because with the court a quo's ruling, it
is as if husbands of Filipino women have been given
license to enter into extra-marital affairs without fear of
any consequence, as long as they are carried out abroad.
In the main, AAA argues that mental and emotional
anguish is an essential element of the offense charged
against BBB, which is experienced by her wherever she
goes, and not only in Singapore where the extra-marital
affair takes place; thus, the RTC of Pasig City where she
resides can take cognizance of the case.
In support of her theory, AAA draws attention to Section
7 of R.A. No. 9262, which provides:
Sec. 7. Venue. — The Regional Trial Court designated as
a Family Court shall have original and exclusive
jurisdiction over cases of violence against women and
their children under this law. In the absence of such court
in the place where the offense was committed, the case
shall be filed in the Regional Trial Court where the crime
or any of its elements was committed at the option of the
complainant. (Emphasis ours)
As to the ambiguity in the law hypothetically referred to
in the assailed order, AAA directs us to:
Section 4. Construction. — This Act shall be liberally
construed to promote the protection and safety of victims
of violence against women and their children.
In his Comment 13 filed on January 20, 2015, BBB
contends that the grant of the motion to quash is in effect
an acquittal; that only the civil aspect of a criminal case
may be appealed by the private offended party; and that
this petition should be dismissed outright for having been
brought before this Court by AAA instead of the Office
of the Solicitor General (OSG) as counsel for the People
in appellate proceedings. BBB furthermore avers that the
petition was belatedly filed.
We tackle first the threshold issue of whether or not this
Court should entertain the petition.
It must be stated beforehand that BBB is plainly mistaken
in asserting that the instant petition was belatedly filed.
The date erroneously perceived by BBB as the date of
AAA's Motion for Extension 14 was filed — June 2, 2014
— refers to the date of receipt by the Division Clerk of
Court and not the date when the said motion was lodged
before this Court. The motion was in fact filed on May 27,
2014, well within the period that AAA had under the
Rules of Court to file the intended petition. Thus,
considering the timeliness of the motion, this Court in a
Resolution 15 dated June 9, 2014, granted AAA an
additional period of thirty (30) days or until June 26, 2014
to file a petition for review.
In AAA's motion for extension of time, it was mentioned
that she was awaiting the OSG's response to her Letter 16
dated May 26, 2014 requesting for representation. Since,
the OSG was unresponsive to her plea for assistance in
filing the intended petition, AAA filed the present petition
in her own name before the lapse of the extension given
her by this Court or on June 25, 2014.
We find that under the circumstances, the ends of
substantial justice will be better served by entertaining the
petition if only to resolve the question of law lodged
before this Court. In Morillo v. People of the Philippines,
et al., 17 where the Court entertained a Rule 45 petition
which raised only a question of law filed by the private
offended party in the absence of the OSG's participation,
we recalled the instances when the Court permitted an
offended party to file an appeal without the intervention
of the OSG. One such instance is when the interest of
substantial justice so requires. 18
Morillo, 19 also differentiated between dismissal and
acquittal, thus:
Acquittal is always based on the merits, that is, the
defendant is acquitted because the evidence does not
show that defendant's guilt is beyond a reasonable doubt;
but dismissal does not decide the case on the merits or that
the defendant is not guilty. Dismissal terminates the
proceeding, either because the court is not a court of
competent jurisdiction, or the evidence does not show that
the offense was committed within the territorial
jurisdiction of the court, or the complaint or information
is not valid or sufficient in form and substance, etc. The
only case in which the word dismissal is commonly but
not correctly used, instead of the proper term acquittal, is
when, after the prosecution has presented all its evidence,
the defendant moves for the dismissal and the court
dismisses the case on the ground that the evidence fails to
show beyond a reasonable doubt that the defendant is
guilty; for in such case the dismissal is in reality an
acquittal because the case is decided on the merits. If the
prosecution fails to prove that the offense was committed
within the territorial jurisdiction of the court and the case
is dismissed, the dismissal is not an acquittal, inasmuch
as if it were so the defendant could not be again
prosecuted before the court of competent jurisdiction; and
it is elemental that in such case, the defendant may again
be prosecuted for the same offense before a court of
competent jurisdiction. 20 (Citation omitted and emphasis
in the original) HEITAD
The grant of BBB's motion to quash may not therefore be
viewed as an acquittal, which in limited instances may
only be repudiated by a petition for certiorari under Rule
65 upon showing grave abuse of discretion lest the
accused would be twice placed in jeopardy. 21
Indubitably, "the Rules do not prohibit any of the parties
from filing a Rule 45 Petition with this Court, in case only
questions of law are raised or involved." 22 "There is a
question of law when the issue does not call for an
examination of the probative value of the evidence
presented or of the truth or falsehood of the facts being
admitted, and the doubt concerns the correct application
of law and jurisprudence on the matter." 23
Further, the question of whether or not the RTC has
jurisdiction in view of the peculiar provisions of R.A. No.
9262 is a question of law. Thus, in Morillo, 24 the Court
reiterated that:
[T]he jurisdiction of the court is determined by the
averments of the complaint or Information, in relation to
the law prevailing at the time of the filing of the complaint
or Information, and the penalty provided by law for the
crime charged at the time of its commission. Thus, when
a case involves a proper interpretation of the rules and
jurisprudence with respect to the jurisdiction of courts to
entertain complaints filed therewith, it deals with a
question of law that can be properly brought to this Court
under Rule 45. 25 (Citations omitted)
We are not called upon in this case to determine the truth
or falsity of the charge against BBB, much less weigh the
evidence, especially as the case had not even proceeded
to a full-blown trial on the merits. The issue for resolution
concerns the correct application of law and jurisprudence
on a given set of circumstances, i.e., whether or not
Philippine courts are deprived of territorial jurisdiction
over a criminal charge of psychological abuse under R.A.
No. 9262 when committed through marital infidelity and
the alleged illicit relationship took place outside the
Philippines.
The novelty of the issue was even recognized by the RTC
when it opined that there is still as yet no jurisprudence
on this score, prompting it to quash the Information even
as it maintained its earlier October 28, 2011 ruling that
probable cause exists in the case. 26 Calling the attention
of Congress to the arguments on jurisdiction spawned by
the law, 27 the RTC furnished copies of the assailed order
to the House of Representatives and the Philippine Senate
through the Committee on Youth, Women and Public
Relations, as well as the Committee on Justice and Human
Rights. 28
The issue acquires special significance when viewed
against the present economic reality that a great number
of Filipino families have at least one parent working
overseas. In April to September 2016, the number of
overseas Filipino workers who worked abroad was
estimated at 2.2 million, 97.5 percent of which were
comprised of overseas contract workers or those with
existing work contract while 2.5 percent worked overseas
without contract. 29 It is thus necessary to clarify how
R.A. No. 9262 should be applied in a question of
territorial jurisdiction over a case of psychological abuse
brought against the husband when such is allegedly
caused by marital infidelity carried on abroad.
Ruling of the Court
There is merit in the petition.
"Physical violence is only the most visible form of abuse.
Psychological abuse, particularly forced social and
economic isolation of women, is also common." 30 In this
regard, Section 3 of R.A. No. 9262 made it a point to
encompass in a non-limiting manner the various forms of
violence that may be committed against women and their
children:
Sec. 3. Definition of Terms. — As used in this Act,
(a) "Violence against women and their children" refers to
any act or a series of acts committed by any person against
a woman who is his wife, former wife, or against a woman
with whom the person has or had a sexual or dating
relationship, or with whom he has a common child, or
against her child whether legitimate or illegitimate, within
or without the family abode, which result in or is likely to
result in physical, sexual, psychological harm or
suffering, or economic abuse including threats of such
acts, battery, assault, coercion, harassment or arbitrary
deprivation of liberty. It includes, but is not limited to, the
following acts:
A. "Physical Violence" refers to acts that include bodily
or physical harm;
B. "Sexual violence" refers to an act which is sexual in
nature, committed against a woman or her child. It
includes, but is not limited to: ATICcS
xxx xxx xxx
C. "Psychological violence" refers to acts or omissions
causing or likely to cause mental or emotional suffering
of the victim such as but not limited to intimidation,
harassment, stalking, damage to property, public ridicule
or humiliation, repeated verbal abuse and marital
infidelity. It includes causing or allowing the victim to
witness the physical, sexual or psychological abuse of a
member of the family to which the victim belongs, or to
witness pornography in any form or to witness abusive
injury to pets or to unlawful or unwanted deprivation of
the right to custody and/or visitation of common children.
D. "Economic abuse" refers to acts that make or attempt
to make a woman financially dependent which includes,
but is not limited to the following:
xxx xxx xxx
As jurisdiction of a court over the criminal case is
determined by the allegations in the complaint or
information, threshing out the essential elements of
psychological abuse under R.A. No. 9262 is crucial. In
Dinamling v. People, 31 this Court already had occasion
to enumerate the elements of psychological violence
under Section 5 (i) of R.A. No. 9262, as follows:
Section 5. Acts of Violence Against Women and Their
Children. — The crime of violence against women and
their children is committed through any of the following
acts:
xxx xxx xxx
(i) Causing mental or emotional anguish, public ridicule
or humiliation to the woman or her child, including, but
not limited to, repeated verbal and emotional abuse, and
denial of financial support or custody of minor children
or access to the woman's child/children.
From the aforequoted Section 5 (i), in relation to other
sections of R[.]A[.] No. 9262, the elements of the crime
are derived as follows:
(1) The offended party is a woman and/or her child or
children;
(2) The woman is either the wife or former wife of the
offender, or is a woman with whom the offender has or
had a sexual or dating relationship, or is a woman with
whom such offender has a common child. As for the
woman's child or children, they may be legitimate or
illegitimate, or living within or without the family abode;
(3) The offender causes on the woman and/or child
mental or emotional anguish; and
(4) The anguish is caused through acts of public ridicule
or humiliation, repeated verbal and emotional abuse,
denial of financial support or custody of minor children
or access to the children or similar such acts or omissions.
xxx xxx xxx
It bears emphasis that Section 5(i) penalizes some forms
of psychological violence that are inflicted on victims
who are women and children. Other forms of
psychological violence, as well as physical, sexual and
economic violence, are addressed and penalized in other
sub-parts of Section 5.
xxx xxx xxx
Psychological violence is an element of violation of
Section 5(i) just like the mental or emotional anguish
caused on the victim. Psychological violence is the means
employed by the perpetrator, while mental or emotional
anguish is the effect caused to or the damage sustained by
the offended party. To establish psychological violence as
an element of the crime, it is necessary to show proof of
commission of any of the acts enumerated in Section 5(i)
or similar such acts. And to establish mental or emotional
anguish, it is necessary to present the testimony of the
victim as such experiences are personal to this party. x x
x. 32 (Citations omitted and emphasis ours) TIADCc
Contrary to the interpretation of the RTC, what R.A. No.
9262 criminalizes is not the marital infidelity per se but
the psychological violence causing mental or emotional
suffering on the wife. Otherwise stated, it is the violence
inflicted under the said circumstances that the law seeks
to outlaw. Marital infidelity as cited in the law is only one
of the various acts by which psychological violence may
be committed. Moreover, depending on the circumstances
of the spouses and for a myriad of reasons, the illicit
relationship may or may not even be causing mental or
emotional anguish on the wife. Thus, the mental or
emotional suffering of the victim is an essential and
distinct element in the commission of the offense.
In criminal cases, venue is jurisdictional. Thus, in Treñas
v. People, 33 the Court explained that:
The place where the crime was committed determines not
only the venue of the action but is an essential element of
jurisdiction. It is a fundamental rule that for jurisdiction
to be acquired by courts in criminal cases, the offense
should have been committed or any one of its essential
ingredients should have taken place within the territorial
jurisdiction of the court. Territorial jurisdiction in
criminal cases is the territory where the court has
jurisdiction to take cognizance or to try the offense
allegedly committed therein by the accused. Thus, it
cannot take jurisdiction over a person charged with an
offense allegedly committed outside of that limited
territory. Furthermore, the jurisdiction of a court over the
criminal case is determined by the allegations in the
complaint or information. And once it is so shown, the
court may validly take cognizance of the case. However,
if the evidence adduced during the trial shows that the
offense was committed somewhere else, the court should
dismiss the action for want of jurisdiction. 34 (Emphasis
in the original)
In Section 7 of R.A. No. 9262, venue undoubtedly
pertains to jurisdiction. As correctly pointed out by AAA,
Section 7 provides that the case may be filed where the
crime or any of its elements was committed at the option
of the complainant. While the psychological violence as
the means employed by the perpetrator is certainly an
indispensable element of the offense, equally essential
also is the element of mental or emotional anguish which
is personal to the complainant. The resulting mental or
emotional anguish is analogous to the indispensable
element of damage in a prosecution for estafa, viz.:
The circumstance that the deceitful manipulations or false
pretenses employed by the accused, as shown in the
vouchers, might have been perpetrated in Quezon City
does not preclude the institution of the criminal action in
Mandaluyong where the damage was consummated.
Deceit and damage are the basic elements of estafa.
The estafa involved in this case appears to be a transitory
or continuing offense. It could be filed either in Quezon
City or in Rizal. The theory is that a person charged with
a transitory offense may be tried in any jurisdiction where
the offense is in part committed. In transitory or
continuing offenses in which some acts material and
essential to the crime and requisite to its consummation
occur in one province and some in another, the court of
either province has jurisdiction to try the case, it being
understood that the first court taking cognizance of the
case will exclude the others x x x[.] 35
What may be gleaned from Section 7 of R.A. No. 9262 is
that the law contemplates that acts of violence against
women and their children may manifest as transitory or
continuing crimes; meaning that some acts material and
essential thereto and requisite in their consummation
occur in one municipality or territory, while some occur
in another. In such cases, the court wherein any of the
crime's essential and material acts have been committed
maintains jurisdiction to try the case; it being understood
that the first court taking cognizance of the same excludes
the other. Thus, a person charged with a continuing or
transitory crime may be validly tried in any municipality
or territory where the offense was in part committed. 36
It is necessary, for Philippine courts to have jurisdiction
when the abusive conduct or act of violence under Section
5 (i) of R.A. No. 9262 in relation to Section 3 (a),
Paragraph (C) was committed outside Philippine territory,
that the victim be a resident of the place where the
complaint is filed in view of the anguish suffered being a
material element of the offense. In the present scenario,
the offended wife and children of respondent husband are
residents of Pasig City since March of 2010. Hence, the
RTC of Pasig City may exercise jurisdiction over the case.
Certainly, the act causing psychological violence which
under the information relates to BBB's marital infidelity
must be proven by probable cause for the purpose of
formally charging the husband, and to establish the same
beyond reasonable doubt for purposes of conviction. It
likewise remains imperative to acquire jurisdiction over
the husband. What this case concerns itself is simply
whether or not a complaint for psychological abuse under
R.A. No. 9262 may even be filed within the Philippines if
the illicit relationship is conducted abroad. We say that
even if the alleged extramarital affair causing the
offended wife mental and emotional anguish is committed
abroad, the same does not place a prosecution under R.A.
No. 9262 absolutely beyond the reach of Philippine
courts. AIDSTE
IN VIEW OF THE FOREGOING, the petition is
GRANTED. The Resolutions dated February 24, 2014
and May 2, 2014 of the Regional Trial Court of Pasig
City, Branch 158, in Criminal Case No. 146468 are SET
ASIDE. Accordingly, the Information filed in Criminal
Case No. 146468 is ordered REINSTATED.
SO ORDERED.
||| (AAA v. BBB, G.R. No. 212448, [January 11, 2018])
[G.R. No. 182239. March 16, 2011.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
HERMIE M. JACINTO, accused-appellant.
DECISION
PEREZ, J p:
Once again, we recite the time-honored principle that the
defense of alibi cannot prevail over the victim's positive
identification of the accused as the perpetrator of the
crime. 1 For it to prosper, the court must be convinced
that there was physical impossibility on the part of the
accused to have been at the locus criminis at the time of
the commission of the crime. 2
Nevertheless, a child in conflict with the law, whose
judgment of conviction has become final and executory
only after his disqualification from availing of the benefits
of suspended sentence on the ground that he/she has
exceeded the age limit of twenty-one (21) years, shall still
be entitled to the right to restoration, rehabilitation, and
reintegration in accordance with Republic Act No. 9344,
otherwise known as "An Act Establishing a
Comprehensive Juvenile Justice and Welfare System,
Creating the Juvenile Justice and Welfare Council under
the Department of Justice, Appropriating Funds Therefor
and for Other Purposes."
Convicted for the rape of five-year-old AAA, 3 appellant
Hermie M. Jacinto seeks before this Court the reversal of
the judgment of his conviction. 4
The Facts
In an Information dated 20 March 2003 5 filed with the
Regional Trial Court and docketed as Criminal Case No.
1679-13-141[1], 6 appellant was accused of the crime of
RAPE allegedly committed as follows:
That on or about the 28th day of January, 2003 at about
7:00 o'clock in the evening more or less, at barangay xxx,
municipality of xxx, province of xxx and within the
jurisdiction of this Honorable Court, [Hermie M. Jacinto],
with lewd design did then and there willfully, unlawfully
and feloniously had carnal knowledge with one AAA, a
five-year old minor child.
CONTRARY TO LAW, with the qualifying/aggravating
circumstance of minority, the victim being only five years
old. 7
On 15 July 2003, appellant entered a plea of not guilty. 8
During pre-trial, 9 the defense admitted the existence of
the following documents: (1) birth certificate of AAA,
showing that she was born on 3 December 1997; (2)
police blotter entry on the rape incident; and (3) medical
certificate, upon presentation of the original or upon
identification thereof by the physician.
Trial ensued with the prosecution and the defense
presenting witnesses to prove their respective versions of
the story.
Evidence for the Prosecution
The testimonies of AAA, 10 her father FFF, 11 and
rebuttal witness Julito Apiki [Julito] 12 may be
summarized in the following manner: TCAScE
FFF and appellant have been neighbors since they were
born. FFF's house is along the road. That of appellant lies
at the back approximately 80 meters from FFF. To access
the road, appellant has to pass by FFF's house, the
frequency of which the latter describes to be "every
minute [and] every hour." Also, appellant often visits FFF
because they were close friends. He bore no grudge
against appellant prior to the incident. 13
AAA likewise knows appellant well. She usually calls
him kuya. She sees him all the time — playing at the
basketball court near her house, fetching water, and
passing by her house on his way to the road. She and
appellant used to be friends until the incident. 14
At about past 6 o'clock in the evening of 28 January 2003,
FFF sent his eight-year-old daughter CCC to the store of
Rudy Hatague to buy cigarettes. AAA followed CCC.
When CCC returned without AAA, FFF was not alarmed.
He thought she was watching television at the house of
her aunt Rita Lingcay [Rita]. 15
Julito went to the same store at around 6:20 in the evening
to buy a bottle of Tanduay Rum. 16 At the store, he saw
appellant place AAA on his lap. 17 He was wearing
sleeveless shirt and a pair of short pants. 18 All of them
left the store at the same time. 19 Julito proceeded to the
house of Rita to watch television, while appellant, who
held the hand of AAA, went towards the direction of the
"lower area or place." 20
AAA recalled that appellant was wearing a chaleko
(sando) and a pair of short pants 21 when he held her hand
while on the road near the store. 22 They walked towards
the rice field near the house of spouses Alejandro and
Gloria Perocho [the Perochos]. 23 There he made her lie
down on harrowed ground, removed her panty and boxed
her on the chest. 24 Already half-naked from waist down,
25 he mounted her, and, while her legs were pushed apart,
pushed his penis into her vagina and made a push and pull
movement. 26 She felt pain and cried. 27 Afterwards,
appellant left and proceeded to the Perochos. 28 She, in
turn, went straight home crying. 29
FFF heard AAA crying and calling his name from
downstairs. 30 She was without slippers. 31 He found her
face greasy. 32 There was mud on her head and blood was
oozing from the back of her head. 33 He checked for any
injury and found on her neck a contusion that was already
turning black. 34 She had no underwear on and he saw
white substance and mud on her vagina. 35 AAA told him
that appellant brought her from the store 36 to the grassy
area at the back of the house of the Perochos; 37 that he
threw away her pair of slippers, removed her panty,
choked her and boxed her breast; 38 and that he proceeded
thereafter to the Perochos. 39
True enough, FFF found appellant at the house of the
Perochos. 40 He asked the appellant what he did to AAA.
41 Appellant replied that he was asked to buy rum at the
store and that AAA followed him. 42 FFF went home to
check on his daughter, 43 afterwhich, he went back to
appellant, asked again, 44 and boxed him. 45
Meanwhile, at around 7:45 in the evening of even date,
Julito was still watching television at the house of Rita.
46 AAA and her mother MMM arrived. 47 AAA was
crying. 48 Julito pitied her, embraced her, and asked what
happened to her, to which she replied that appellant raped
her. 49 Julito left and found appellant at the Perochos. 50
Julito asked appellant, "Bads, did you really rape the
child, the daughter of [MMM]?" but the latter ignored his
question. 51 Appellant's aunt, Gloria, told appellant that
the policemen were coming to which the appellant
responded, "Wait a minute because I will wash the dirt of
my elbow (sic) and my knees." 52 Julito did found the
elbows and knees of appellant with dirt. 53
On that same evening, FFF and AAA proceeded to the
police station to have the incident blottered. 54 FFF also
had AAA undergo a physical check up at the municipal
health center. 55 Dr. Bernardita M. Gaspar, M.D., Rural
Health Physician, issued a medical certificate 56 dated 29
January 2003. It reads:
Injuries seen are as follows:
1. Multiple abrasions with erythema along the neck area.
2. Petechial hemorrhages on both per-orbital areas.
3. Hematoma over the left upper arm, lateral area
4. Hematoma over the upper anterior chest wall,
midclavicular line
5. Abrasion over the posterior trunk, paravertebral area
6. Genital and peri-anal area soiled with debris and
whitish mucoid-like material
7. Introitus is erythematous with minimal bleeding
8. Hymenal lacerations at the 5 o'clock and 9 o'clock
position
Impression aETDIc
MULTIPLE SOFT TISSUE INJURIES
HYMENAL LACERATIONS
Upon the recommendation of Dr. Gaspar, 57 AAA
submitted herself to another examination at the provincial
hospital on the following day. Dr. Christine Ruth B.
Micabalo, Medical Officer III of the provincial hospital,
attended to her and issued a medico-legal certificate dated
29 January 2003, 58 the pertinent portion of which reads:
P.E. = Findings is consistent with Dr. Bernardita M.
Gaspar findings except No. 6 and 7 there is no bleeding
in this time of examination. (sic) 59
Evidence for the Defense
Interposing the defense of alibi, appellant gave a different
version of the story. To corroborate his testimony,
Luzvilla Balucan [Luzvilla] and his aunt Gloria took the
witness stand to affirm that he was at the Perochos at the
time of the commission of the crime. 60 Luzvilla even
went further to state that she actually saw Julito, not
appellant, pick up AAA on the road. 61 In addition,
Antonia Perocho [Antonia], sister-in-law of appellant's
aunt, Gloria, 62 testified on the behavior of Julito after the
rape incident was revealed. 63
Appellant claimed that he lives with his aunt, not with his
parents whose house stands at the back of FFF's house. 64
He denied that there was a need to pass by the house of
FFF in order to access the road or to fetch water. 65 He,
however, admitted that he occasionally worked for FFF,
66 and whenever he was asked to buy something from the
store, AAA always approached him. 67
At about 8 o'clock in the morning of 28 January 2003,
appellant went to the Perochos to attend a birthday party.
At 6:08 in the evening, while the visitors, including
appellant and his uncle Alejandro Perocho [Alejandro],
were gathered together in a drinking session, appellant's
uncle sent him to the store to buy Tanduay Rum. Since
the store is only about 20 meters from the house, he was
able to return after three (3) minutes. He was certain of
the time because he had a watch. 68
Appellant's aunt, Gloria, the lady of the house, confirmed
that he was in her house attending the birthday party; and
that appellant went out between 6 and 7 in the evening to
buy a bottle of Tanduay from the store. She recalled that
appellant was back around five (5) minutes later. She also
observed that appellant's white shorts and white
sleeveless shirt were clean. 69
At 6:30 in the evening, 70 Luzvilla, who was also at the
party, saw appellant at the kitchen having a drink with his
uncle Alejandro and the rest of the visitors. 71 She went
out to relieve herself at the side of the tree beside the road
next to the house of the Perochos. 72 From where she was,
she saw Julito, who was wearing black short pants and
black T-shirt, carry AAA. 73 AAA's face was covered and
she was wiggling. 74 This did not alarm her because she
thought it was just a game. 75 Meanwhile, appellant was
still in the kitchen when she returned. 76 Around three (3)
minutes later, Luzvilla saw Julito, now in a white T-shirt,
77 running towards the house of Rita. 78 AAA was slowly
following behind. 79 Luzvilla followed them. 80 Just
outside the house, Julito embraced AAA and asked what
the appellant did to her. 81 The child did not answer. 82
Luzvilla also followed FFF to the Perochos. She
witnessed the punching incident and testified that
appellant was twice boxed by FFF. According to her, FFF
tapped the left shoulder of the appellant, boxed him, and
left. FFF came in the second time and again boxed
appellant. This time, he had a bolo pointed at appellant.
Appellant's uncle Alejandro, a barangay councilor, and
another Civilian Voluntary Organization (CVO) member
admonished FFF. 83
On sur-rebuttal, Antonia testified that, at 7 o'clock in the
evening, she was watching the television along with other
people at the house of Rita. Around 7:10, Julito, who was
wearing only a pair of black short pants without a shirt on,
entered the house drunk. He paced back and forth. After
10 minutes, AAA came in crying. Julito tightly embraced
AAA and asked her what happened. AAA did not answer.
Upon Antonia's advice, Julito released her and went out
of the house. 84
Appellant further testified that at past 7 o'clock in the
evening, FFF arrived, pointed a finger at him, brandished
a bolo, and accused him of molesting AAA. FFF left but
returned at around 8 o'clock in the evening. This time, he
boxed appellant and asked again why he molested his
daughter. 85
On 26 March 2004, the Regional Trial Court rendered its
decision, 86 the dispositive portion of which reads:
WHEREFORE, finding accused Hermie M. Jacinto guilty
beyond reasonable doubt of rape committed upon a 5-year
old girl, the court sentences him to death and orders him
to pay [AAA] P75,000.000 as rape indemnity and
P50,000.00 as moral damages. With costs. 87
The defense moved to reopen trial for reception of newly
discovered evidence stating that appellant was apparently
born on 1 March 1985 and that he was only seventeen (17)
years old when the crime was committed on 28 January
2003. 88 The trial court appreciated the evidence and
reduced the penalty from death to reclusion perpetua. 89
Thus: TCSEcI
WHEREFORE, the judgment of the court imposing the
death penalty upon the accused is amended in order to
consider the privileged mitigating circumstance of
minority. The penalty impos[a]ble upon the accused,
therefore[,] is reduced to reclusion perpetua. . . .
Appealed to this Court, the case was transferred to the
Court of Appeals for its disposition in view of the ruling
in People v. Mateo and the Internal Rules of the Supreme
Court allowing an intermediate review by the Court of
Appeals of cases where the penalty imposed is death,
reclusion perpetua, or life imprisonment. 90
On 29 August 2007, the Court of Appeals AFFIRMED
the decision of the trial court with the following
MODIFICATIONS:
. . . that Hermie M. Jacinto should suffer the Indeterminate
penalty of from six (6) years and one (1) day to twelve
(12) years of prision mayor, as minimum, to seventeen
(17) and four (4) months of reclusion temporal, as
maximum. Appellant Hermie M. Jacinto is ordered to
indemnify the victim in the sum of P75,000.00 as civil
indemnity, P75,000.00 as moral damages, and
P25,000.00 as exemplary damages and to pay the costs.
91
On 19 November 2007, the Court of Appeals gave due
course to the appellant's Notice of Appeal. 92 This Court
required the parties to simultaneously file their respective
supplemental briefs. 93 Both parties manifested that they
have exhaustively discussed their positions in their
respective briefs and would no longer file any
supplement. 94
Before the Court of Appeals, appellant argued that "THE
COURT A QUO GRAVELY ERRED IN CONVICTING
HEREIN ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF RAPE" 95 by invoking the
principle that "if the inculpatory facts and circumstances
are capable of two or more reasonable explanations, one
of which is consistent with the innocence of the accused
and the other with his guilt, then the evidence does not
pass the test of moral certainty and will not suffice to
support a conviction." 96
Our Ruling
We sustain the judgment of conviction.
In the determination of the innocence or guilt of a person
accused of rape, we consider the three well-entrenched
principles:
(1) an accusation for rape can be made with facility; it is
difficult to prove but more difficult for the accused,
though innocent, to disprove; (2) in view of the intrinsic
nature of the crime of rape in which only two persons are
usually involved, the testimony of the complainant must
be scrutinized with extreme caution; and (3) the evidence
for the prosecution must stand or fall on its own merits,
and cannot be allowed to draw strength from the
weakness of the evidence for the defense. 97
Necessarily, the credible, natural, and convincing
testimony of the victim may be sufficient to convict the
accused. 98 More so, when the testimony is supported by
the medico-legal findings of the examining physician. 99
Further, the defense of alibi cannot prevail over the
victim's positive identification of the perpetrator of the
crime, 100 except when it is established that it was
physically impossible for the accused to have been at the
locus criminis at the time of the commission of the crime.
101
I The credible testimony of AAA corroborated by the
A man commits rape by having carnal knowledge of a
child under twelve (12) years of age even in the absence
of any of the following circumstances: (a) through force,
threat or intimidation; (b) when the offended party is
deprived of reason or otherwise unconscious; or (c) by
means of fraudulent machination or grave abuse of
authority. 102
That the crime of rape has been committed is certain. The
vivid narration of the acts culminating in the insertion of
appellant's organ into the vagina of five-year-old AAA
and the medical findings of the physicians sufficiently
proved such fact.
AAA testified:
PROS. OMANDAM:
xxx xxx xxx
Q You said Hermie laid you on the ground, removed your
panty and boxed you, what else did he do to you?
A He mounted me.
Q When Hermie mounted you, was he facing you?
A Yes. ETDHaC
Q When he mounted you what did he do, did he move?
A He moved his ass, he made a push and pull movement.
Q When he made a push and pull movement, how were
your legs positioned?
A They were apart.
Q Who pushed them apart?
A Hermie.
Q Did Hermie push anything at you?
A Yes.
Q What was that?
A His penis.
Q Where did he push his penis?
A To my vagina.
Q Was it painful?
A Yes.
Q What was painful?
A My vagina.
Q Did you cry?
A Yes. 103
The straightforward and consistent answers to the
questions, which were phrased and re-phrased in order to
test that AAA well understood the information elicited
from her, said it all — she had been raped. When a
woman, more so a minor, says so, she says in effect all
that is essential to show that rape was committed. 104
Significantly, youth and immaturity are normally badges
of truth and honesty. 105
Further, the medical findings and the testimony of Dr.
Micabalo 106 revealed that the hymenal lacerations at 5
o'clock and 9 o'clock positions could have been caused by
the penetration of an object; that the redness of the
introitus could have been "the result of the repeated
battering of the object;" and that such object could have
been an erect male organ. 107
physician's finding of penetration conclusively
established the essential requisite of carnal knowledge.
108
II
The real identity of the assailant and the whereabouts of
the appellant at the time of the commission of the crime
are now in dispute.
The defense would want us to believe that it was Julito
who defiled AAA, and that appellant was elsewhere when
the crime was committed. 109
We should not, however, overlook the fact that a victim
of rape could readily identify her assailant, especially
when he is not a stranger to her, considering that she could
have a good look at him during the commission of the
crime. 110 AAA had known appellant all her life.
Moreover, appellant and AAA even walked together from
the road near the store to the situs criminus 111 that it
would be impossible for the child not to recognize the
man who held her hand and led her all the way to the rice
field.
We see no reason to disturb the findings of the trial court
on the unwavering testimony of AAA.
The certainty of the child, unusually intelligent for one so
young, that it was accused, whom she called "kuya" and
who used to play basketball and fetch water near their
house, and who was wearing a sleeveless shirt and shorts
at the time he raped her, was convincing and persuasive.
The defense attempted to impute the crime to someone
else — one Julito Apiki, but the child, on rebuttal, was
steadfast and did not equivocate, asserting that it was
accused who is younger, and not Julito, who is older, who
molested her. 112
In a long line of cases, this Court has consistently ruled
that the determination by the trial court of the credibility
of the witnesses deserves full weight and respect
considering that it has "the opportunity to observe the
witnesses' manner of testifying, their furtive glances,
calmness, sighs and the scant or full realization of their
oath," 113 unless it is shown that material facts and
circumstances have been "ignored, overlooked,
misconstrued, or misinterpreted." 114
Further, as correctly observed by the trial court:
. . . His and his witness' attempt to throw the court off the
track by imputing the crime to someone else is . . . a vain
exercise in view of the private complainant's positive
identification of accused and other corroborative
circumstances. Accused also admitted that on the same
evening, Julito Apiki, the supposed real culprit, asked him
"What is this incident, Pare?", thus corroborating the
latter's testimony that he confronted accused after hearing
of the incident from the child." 115 ITcCSA
On the other hand, we cannot agree with the appellant that
the trial court erred in finding his denial and alibi weak
despite the presentation of witnesses to corroborate his
testimony. Glaring inconsistencies were all over their
respective testimonies that even destroyed the credibility
of the appellant's very testimony.
Appellant testified that it was his uncle Alejandro Perocho
who sent him to store to buy Tanduay; that he gave the
bottle to his uncle; and that they had already been drinking
long before he bought Tanduay at the store.
This was contradicted by the testimony of his aunt Gloria,
wife of his uncle Alejandro. On cross-examination, she
revealed that her husband was not around before, during,
and after the rape incident because he was then at work.
116 He arrived from work only after FFF came to their
house for the second time and boxed appellant. 117 It was
actually the fish vendor, not her husband, who asked
appellant to buy Tanduay. 118 Further, the drinking
session started only after the appellant's errand to the
store. 119
Neither was the testimony of Luzvilla credible enough to
deserve consideration.
Just like appellant, Luzvilla testified that Alejandro joined
the drinking session. This is contrary to Gloria's statement
that her husband was at work.
Luzvilla's testimony is likewise inconsistent with that of
sur-rebuttal witness Antonia Perocho. Antonia recalled
that Julito arrived without a shirt on. This belied
Luzvilla's claim that Julito wore a white shirt on his way
to the house of Rita. In addition, while both the
prosecution, as testified to by AAA and Julito, and the
defense, as testified to by Gloria, were consistent in
saying that appellant wore a sleeveless shirt, Luzvilla's
recollection differ in that Julito wore a T-shirt (colored
black and later changed to white), and, thus, a short-
sleeved shirt.
Also, contrary to Luzvilla's story that she saw AAA
walking towards Rita's house three (3) minutes after she
returned to the Perochos at 6:38 in the evening, Antonia
recalled that AAA arrived at the house of Rita at 7:30. In
this respect, we find the trial court's appreciation in order.
Thus:
. . . . The child declared that after being raped, she went
straight home, crying, to tell her father that Hermie had
raped her. She did not first drop into the house of Lita
Lingkay to cry among strangers who were watching TV,
as Luzvilla Balucan would have the court believe. When
the child was seen at the house of Lita Lingkay by Julito
Apiki and Luzvilla Balucan, it was only later, after she
had been brought there by her mother Brenda so that Lita
Lingkay could take a look at her — just as Julito Apiki
said. 120
Above all, for alibi to prosper, it is necessary that the
corroboration is credible, the same having been offered
preferably by disinterested witnesses. The defense failed
thuswise. Its witnesses cannot qualify as such, "they being
related or were one way or another linked to each other."
121
Even assuming for the sake of argument that we consider
the corroborations on his whereabouts, still, the defense
of alibi cannot prosper.
We reiterate, time and again, that the court must be
convinced that it would be physically impossible for the
accused to have been at the locus criminis at the time of
the commission of the crime. 122
Physical impossibility refers to distance and the facility of
access between the situs criminis and the location of the
accused when the crime was committed. He must
demonstrate that he was so far away and could not have
been physically present at the scene of the crime and its
immediate vicinity when the crime was committed. 123
In People v. Paraiso, 124 the distance of two thousand
meters from the place of the commission of the crime was
considered not physically impossible to reach in less than
an hour even by foot. 125 Inasmuch as it would take the
accused not more than five minutes to rape the victim, this
Court disregarded the testimony of the defense witness
attesting that the accused was fast asleep when she left to
gather bamboo trees and returned several hours after. She
could have merely presumed that the accused slept all
throughout. 126
In People v. Antivola, 127 the testimonies of relatives and
friends corroborating that of the appellant that he was in
their company at the time of the commission of the crime
were likewise disregarded by this Court in the following
manner:
Ruben Nicolas, the appellant's part-time employer, and
Marites Capalad, the appellant's sister-in-law and co-
worker, in unison, vouched for the appellant's physical
presence in the fishpond at the time Rachel was raped. It
is, however, an established fact that the appellant's house
where the rape occurred, was a stone's throw away from
the fishpond. Their claim that the appellant never, left
their sight the entire afternoon of December 4, 1997 is
unacceptable. It was impossible for Marites to have kept
an eye on the appellant for almost four hours, since she
testified that she, too, was very much occupied with her
task of counting and recording the fishes being harvested.
Likewise, Mr. Nicolas, who, admittedly was 50 meters
away from the fishpond, could not have focused his entire
attention solely on the appellant. It is, therefore, not
farfetched that the appellant easily sneaked out unnoticed,
and along the way inveigled the victim, brought her inside
his house and ravished her, then returned to the fishpond
as if he never left. 128 (Emphasis supplied.) EaISDC
As in the cases above cited, the claim of the defense
witnesses that appellant never left their sight, save from
the 5-minute errand to the store, is contrary to ordinary
human experience. Moreover, considering that the
farmland where the crime was committed is just behind
the house of the Perochos, it would take appellant only a
few minutes to bring AAA from the road near the store
next to the Perochos down the farmland and consummate
the crime. As correctly pointed out by the Court of
Appeals, appellant could have committed the rape after
buying the bottle of Tanduay and immediately returned to
his uncle's house. 129 Unfortunately, the testimonies of
his corroborating witnesses even bolstered the fact that he
was within the immediate vicinity of the scene of the
crime. 130
Clearly, the defense failed to prove that it was physically
impossible for appellant to have been at the time and place
of the commission of the crime.
All considered, we find that the prosecution has
sufficiently established the guilt of the appellant beyond
reasonable doubt.
III
In the determination of the imposable penalty, the Court
of Appeals correctly considered Republic Act No. 9344
(Juvenile Justice and Welfare Act of 2006) despite the
commission of the crime three (3) years before it was
enacted on 28 April 2006.
We recognize its retroactive application following the
rationale elucidated in People v. Sarcia: 131
[Sec. 68 of Republic Act No. 9344] 132 allows the
retroactive application of the Act to those who have been
convicted and are serving sentence at the time of the
effectivity of this said Act, and who were below the age
of 18 years at the time of the commission of the offense.
With more reason, the Act should apply to this case
wherein the conviction by the lower court is still under
review. 133 (Emphasis supplied.)
Criminal Liability; Imposable Penalty
Sec. 6 of Republic Act No. 9344 exempts a child above
fifteen (15) years but below eighteen (18) years of age
from criminal liability, unless the child is found to have
acted with discernment, in which case, "the appropriate
proceedings" in accordance with the Act shall be
observed. 134
We determine discernment in this wise:
Discernment is that mental capacity of a minor to fully
appreciate the consequences of his unlawful act. 135 Such
capacity may be known and should be determined by
taking into consideration all the facts and circumstances
afforded by the records in each case. 136
. . . The surrounding circumstances must demonstrate that
the minor knew what he was doing and that it was wrong.
137 Such circumstance includes the gruesome nature of
the crime and the minor's cunning and shrewdness. 138
In the present case, we agree with the Court of Appeals
that: "(1) choosing an isolated and dark place to perpetrate
the crime, to prevent detection[;] and (2) boxing the
victim . . ., to weaken her defense" are indicative of then
seventeen (17) year-old appellant's mental capacity to
fully understand the consequences of his unlawful action.
139
Nonetheless, the corresponding imposable penalty should
be modified.
The birth certificate of AAA 140 shows that she was born
on 3 December 1997. Considering that she was only five
(5) years old when appellant defiled her on 28 January
2003, the law prescribing the death penalty when rape is
committed against a child below seven (7) years old 141
applies.
The following, however, calls for the reduction of the
penalty: (1) the prohibition against the imposition of the
penalty of death in accordance with Republic Act No.
9346; 142 and (2) the privileged mitigating circumstance
of minority of the appellant, which has the effect of
reducing the penalty one degree lower than that
prescribed by law, pursuant to Article 68 of the Revised
Penal Code. 143
Relying on People v. Bon, 144 the Court of Appeals
excluded death from the graduation of penalties provided
in Article 71 of the Revised Penal Code. 145
Consequently, in its appreciation of the privileged
mitigating circumstance of minority of appellant, it
lowered the penalty one degree from reclusion perpetua
and sentenced appellant to suffer the indeterminate
penalty of six (6) years and one (1) day to twelve (12)
years of prision mayor, as minimum, to seventeen (17)
years and four (4) months of reclusion temporal, in its
medium period, as maximum. 146
We differ.
In a more recent case, 147 the Court En Banc, through the
Honorable Justice Teresita J. Leonardo-de Castro,
clarified: IDCcEa
Under Article 68 of the Revised Penal Code, when the
offender is a minor under 18 years, the penalty next lower
than that prescribed by law shall be imposed, but always
in the proper period. However, for purposes of
determining the proper penalty because of the privileged
mitigating circumstance of minority, the penalty of death
is still the penalty to be reckoned with. Thus, the proper
imposable penalty for the accused-appellant is reclusion
perpetua. 148 (Emphasis supplied.)
Accordingly, appellant should be meted the penalty of
reclusion perpetua.
Civil Liability
We have consistently ruled that:
The litmus test . . . in the determination of the civil
indemnity is the heinous character of the crime
committed, which would have warranted the imposition
of the death penalty, regardless of whether the penalty
actually imposed is reduced to reclusion perpetua. 149
Likewise, the fact that the offender was still a minor at the
time he committed the crime has no bearing on the gravity
and extent of injury suffered by the victim and her family.
150 The respective awards of civil indemnity and moral
damages in the amount of P75,000.00 each are, therefore,
proper. 151
Accordingly, despite the presence of the privileged
mitigating circumstance of minority which effectively
lowered the penalty by one degree, we affirm the damages
awarded by the Court of Appeals in the amount of
P75,000.00 as civil indemnity and P75,000.00 as moral
damages. And, consistent with prevailing jurisprudence,
152 the amount of exemplary damages should be
increased from P25,000.00 to P30,000.00.
Automatic Suspension of Sentence; Duration;
Appropriate Disposition after the Lapse of the Period of
Suspension of Sentence
Republic Act No. 9344 warrants the suspension of
sentence of a child in conflict with the law
notwithstanding that he/she has reached the age of
majority at the time the judgment of conviction is
pronounced. Thus:
SEC. 38. Automatic Suspension of Sentence. — Once the
child who is under eighteen (18) years of age at the time
of the commission of the offense is found guilty of the
offense charged, the court shall determine and ascertain
any civil liability which may have resulted from the
offense committed. However, instead of pronouncing the
judgment of conviction, the court shall place the child in
conflict with the law under suspended sentence, without
need of application: Provided, however, That suspension
of sentence shall still be applied even if the juvenile is
already eighteen (18) years of age or more at the time of
the pronouncement of his/her guilt. (Emphasis supplied.)
xxx xxx xxx
Applying Declarador v. Gubaton, 153 which was
promulgated on 18 August 2006, the Court of Appeals
held that, consistent with Article 192 of Presidential
Decree No. 603, as amended, 154 the aforestated
provision does not apply to one who has been convicted
of an offense punishable by death, reclusion perpetua or
life imprisonment. 155
Meanwhile, on 10 September 2009, this Court
promulgated the decision in Sarcia, 156 overturning the
ruling in Gubaton. Thus:
The . . . provision makes no distinction as to the nature of
the offense committed by the child in conflict with the
law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC. The
said P.D. and Supreme Court (SC) Rule provide that the
benefit of suspended sentence would not apply to a child
in conflict with the law if, among others, he/she has been
convicted of an offense punishable by death, reclusion
perpetua or life imprisonment. In construing Sec. 38 of
R.A. No. 9344, the Court is guided by the basic principle
of statutory construction that when the law does not
distinguish, we should not distinguish. Since R.A. No.
9344 does not distinguish between a minor who has been
convicted of a capital offense and another who has been
convicted of a lesser offense, the Court should also not
distinguish and should apply the automatic suspension of
sentence to a child in conflict with the law who has been
found guilty of a heinous crime. 157
The legislative intent reflected in the Senate deliberations
158 on Senate Bill No. 1402 (Juvenile Justice and
Delinquency Prevention Act of 2005) further
strengthened the new position of this Court to cover
heinous crimes in the application of the provision on the
automatic suspension of sentence of a child in conflict
with the law. The pertinent portion of the deliberation
reads:
If a mature minor, maybe 16 years old to below 18 years
old is charged, accused with, or may have committed a
serious offense, and may have acted with discernment,
then the child could be recommended by the Department
of Social Welfare and Development (DSWD), by the
Local Council for the Protection of Children (LCPC), or
by [Senator Miriam Defensor-Santiago's] proposed
Office of Juvenile Welfare and Restoration to go through
a judicial proceeding; but the welfare, best interests, and
restoration of the child should still be a primordial or
primary consideration. Even in heinous crimes, the
intention should still be the child's restoration,
rehabilitation and reintegration. . . . (Italics supplied in
Sarcia.) 159
On 24 November 2009, the Court En Banc promulgated
the Revised Rule on Children in Conflict with the Law,
which reflected the same position. 160 ISaCTE
These developments notwithstanding, we find that the
benefits of a suspended sentence can no longer apply to
appellant. The suspension of sentence lasts only until the
child in conflict with the law reaches the maximum age of
twenty-one (21) years. 161 Section 40 162 of the law and
Section 48 163 of the Rule are clear on the matter.
Unfortunately, appellant is now twenty-five (25) years
old.
Be that as it may, to give meaning to the legislative intent
of the Act, the promotion of the welfare of a child in
conflict with the law should extend even to one who has
exceeded the age limit of twenty-one (21) years, so long
as he/she committed the crime when he/she was still a
child. The offender shall be entitled to the right to
restoration, rehabilitation and reintegration in accordance
with the Act in order that he/she is given the chance to
live a normal life and become a productive member of the
community. The age of the child in conflict with the law
at the time of the promulgation of the judgment of
conviction is not material. What matters is that the
offender committed the offense when he/she was still of
tender age.
Thus, appellant may be confined in an agricultural camp
or any other training facility in accordance with Sec. 51
of Republic Act No. 9344. 164
Sec. 51.Confinement of Convicted Children in
Agricultural Camps and Other Training Facilities. — A
child in conflict with the law may, after conviction and
upon order of the court, be made to serve his/her sentence,
in lieu of confinement in a regular penal institution, in an
agricultural camp and other training facilities that may be
established, maintained, supervised and controlled by the
BUCOR, in coordination with the DSWD.
Following the pronouncement in Sarcia, 165 the case
shall be remanded to the court of origin to effect
appellant's confinement in an agricultural camp or other
training facility.
WHEREFORE, the Decision dated 29 August 2007 of the
Court of Appeals in CA-G.R. CR HC No. 00213 finding
appellant Hermie M. Jacinto guilty beyond reasonable
doubt of qualified rape is AFFIRMED with the following
MODIFICATIONS: (1) the death penalty imposed on the
appellant is reduced to reclusion perpetua; and (2)
appellant is ordered to pay the victim P75,000.00 as civil
indemnity, P75,000.00 as moral damages, and
P30,000.00 as exemplary damages. The case is hereby
REMANDED to the court of origin for its appropriate
action in accordance with Section 51 of Republic Act No.
9344.
SO ORDERED.
Corona, C.J., Velasco, Jr., Leonardo-de Castro and Del
Castillo, JJ., concur.
||| (People v. Jacinto, G.R. No. 182239, [March 16, 2011],
661 PHIL 224-257)
[G.R. No. 166479. February 28, 2006.]
RODOLFO C. VELASCO, petitioner, vs. PEOPLE OF
THE PHILIPPINES, respondent.
DECISION
CHICO-NAZARIO, J p:
Before Us is a petition for review on certiorari which
seeks to set aside the decision 1 of the Court of Appeals
in CA-G.R. CR No. 23366 dated 30 July 2004 which
affirmed the decision 2 of Branch 41 of the Regional Trial
Court (RTC) of Dagupan City in Criminal Case No. 98-
02175-D dated 29 June 1999, finding accused-petitioner
Rodolfo C. Velasco guilty of Attempted Murder, and its
Resolution 3 dated 21 December 2004 denying
petitioner's motion for reconsideration.
An Information 4 dated 20 April 1998 charged petitioner
with the crime of Attempted Murder committed as
follows:
That on or about the 19th day of April, 1998, in the City
of Dagupan, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, SN I
RODOLFO C. VELASCO, being then armed with a gun,
with treachery and with intent to kill one FREDERICK
MARAMBA, did then and there, wilfully, unlawfully and
criminally, attack, assault and use personal violence upon
the latter by shooting him, hitting him on the left upper
arm, the said accused having thus commenced a felony
directly by overt acts but did not perform all the acts of
execution which could have produced the crime of
murder, by reason of some cause or accident other than
his own spontaneous desistance, to the damage and
prejudice of said FREDERICK MARAMBA.
When arraigned, petitioner, with the assistance of counsel
de oficio, pleaded not guilty to the crime charged. 5
On 29 September 1998, the Hon. Luis M. Fontanilla,
Executive Judge of RTC of Dagupan City, ordered the
release of petitioner after a surety bond was posted by the
Mega Pacific Insurance Corporation in the amount of
P120,000.00. 6
The evidence is summarized by the trial court as follows:
The evidence of the prosecution tends to show that on
April 19, 1998, at about 7:30 o'clock in the morning,
private complainant Frederick Maramba was cleaning
and washing his owner type jeep in front of his house at
Lasip Grande, Dagupan City when a motorized tricycle
stopped near him. Accused Rodolfo Velasco dashed out
of the tricycle, approached the complainant and fired at
him several times with a .45 caliber pistol. The accused
missed with his first shot but the second one hit the
complainant at the upper arm, causing him to stumble on
the ground. The complainant stood up and ran, while the
accused continued firing at him but missed. cIEHAC
The shooting incident was reported to the police sub-
station in Malued District by Barangay Captain Dacasin
of Lasip Grande, describing the suspect as wearing a vest
or a "chaleco." The police, composed of SPO4 Romulo
Villamil, PO3 Rolando Alvendo, and SPO1 Soliven
respondent and pursued the accused who proceeded on
board a motorized tricycle to the highway going to
Barangay Banaoang in Calasiao town.
The police caught up with the tricycle and brought the
accused to the police sub-station. A firearm (Exhibit "A")
protruding from the waistline of the accused, three (3)
magazines (Exhibit "B", "B-1" & "B-2") and fourteen
(14) live ammunitions (Exhibits "C" to "C-13") were
confiscated from the possession of the accused. The
police also recovered seven (7) spent ammunitions
(Exhibits "D" to "D-6") at the crime scene. At the City Jail
in Dagupan City where the accused was subsequently
brought, the private complainant Frederick Maramba
identified and pointed to the accused as the one who fired
at him, hitting him on the upper left arm. Complainant
identified the affidavit which he executed naming the
accused as his assailant (Exhibit "H") and who shot him
on the morning of April 19, 1998 in front of his residence
at Lasip Grande.
Private complainant further testified that he was
hospitalized and treated at the Region 1 Medical Center,
Dagupan City by Dr. Arturo de Vera, Jr. who issued a
Medico-Legal Certificate stating that the victim
sustained, "Gunshot wound point of entry: 1.5 cm lateral
aspect distal, 3rd arm left" and; "Gunshot wound point of
exit: 4 cm lateral aspect posterior, 3rd arm left" (Exhibit
"I"). By reason of his wounds, complainant incurred
expenses for hospitalization and medicines in the total
amount of P2,696.06 (Exhibit "J" to "J-14").
Armando Maramba, the driver of the tricycle in which the
accused rode, testified that he picked up the accused who
was wearing a chaleco, at the intersection of Pogo-Lasip
Road. Upon reaching the parked jeep which was being
washed by the private complainant, the accused ordered
him to stop. The accused alighted and fired several shots
at the victim. Then the accused went back to the tricycle
and ordered him to proceed to Calasiao. The accused
alighted at the intersection of the De Venecia Highway
and Malued Road and took another tricycle. Witness
executed an affidavit before the Police Headquarters in
Dagupan City (Exhibit "G") and identified the accused as
the one who shot the private complainant.
The accused, on the other hand, interposed the defense of
alibi. He said that on April 18, 1998, he went to a friend's
house in Lingayen, Pangasinan and spent the night there.
The following morning, April 19, 1998, between 6:00 to
7:00 o'clock, he left Lingayen riding in the Volkswagen
car of Berting Soriano. He alighted at the corner of
Banaoang diversion road. From there he took a tricycle
and told the driver to bring him at the foot of the bridge
going to Bayambang. While on his way to Calasiao, he
heard a jeep behind him blowing its horn and when he
looked back he saw three men on board pointing their
guns at him. He told the tricycle driver to stop and
thereupon the three men approached him and introduced
themselves as policemen. They confiscated his gun and
then brought him to the police station for interrogation.
Thereafter, the police lodged him in the City Jail of
Dagupan.
Accused testified that he did not know personally the
complaining witness and denied having fired at him. He
further said that his .45 caliber pistol which was seized
from him by the police is licensed (Exhibit "2"). 7
In its decision dated 29 June 1999, the RTC of Dagupan
City, Branch 41, found petitioner guilty of the crime
charged, disposing of the case in this wise:
WHEREFORE, finding accused Rodolfo C. Velasco
guilty beyond reasonable doubt of the crime of attempted
murder, defined and penalized under Article 248, in
relation to the 3rd par. of Arts. 6 and 51 of the Revised
Penal Code, he is hereby sentenced to suffer the
indeterminate penalty of Four (4) years of prision
correccional, as minimum to Eight (8) years and One (1)
day of prision mayor, as maximum. TEHIaA
Accused is further ordered to indemnify the complaining
witness the amount of P2,696.00, as actual damages. 8
The trial court gave credence to the testimonies of the
private complainant Frederick Maramba and Armando
Maramba when they identified petitioner as the assailant.
It rejected petitioner's defense of alibi saying it was not
impossible for him to be at the crime scene when the
crime was committed because the place where he
allegedly alighted from the car of a certain Berting
Soriano was only about ten minutes away. It concluded
that his defense cannot prevail over the positive
identification made by the prosecution witnesses.
On 1 July 1999, petitioner filed a Notice of Appeal
signifying his intention to appeal to the Court of Appeals.
9
Pending appeal with the Court of Appeals, petitioner,
after filing a Motion to Bail, was allowed to post bail in
the amount of P160,000.00. 10 To obviate the possibility
of flight, the Bureau of Immigration and Deportation
(BID) was directed to include petitioner in its hold
departure list. 11
On 30 July 2004, the Court of Appeals dismissed the
appeal and affirmed the decision of the RTC. The decretal
portion of the decision reads:
WHEREFORE, for lack of merit, the appeal is
DISMISSED. The assailed Decision dated June 29, 1999
of the Regional Trial Court, Branch 41 of Dagupan City,
in Criminal Case No. 98-02175-D, is hereby
AFFIRMED. Costs against accused-appellant. 12
Petitioner moved for a reconsideration of the decision
which motion was denied per resolution 13 dated 21
December 2004.
Petitioner is now before us via petition for review on
certiorari, raising the following grounds:
I On 17 October 2005, the Court gave due course to the
THE COURT OF APPEALS GRAVELY ERRED
WHEN IT AFFIRMED THE DECISION OF THE
REGIONAL TRIAL COURT.
II
THE COURT OF APPEALS GRAVELY ERRED
WHEN IT DENIED THE MOTION FOR
RECONSIDERATION PER THE RESOLUTION
DATED DECEMBER 21, 2004. 14
Petitioner invokes the defenses of denial and alibi. He
denies having shot the victim. He alleges that the
prosecution was not able to sufficiently establish the
identity of the assailant because the Barangay Chairman,
who reported the incident to the policemen, identified the
assailant as one wearing a "chaleco," was not presented to
corroborate the testimony of petitioner. He contends that
had the Barangay Chairman been presented, the latter's
testimony would have been adverse to the prosecution.
Instead, he points out that the prosecution presented
police officers who were not eyewitnesses. He adds that
he had no motive to harm, much less kill, the victim, the
latter being a total stranger. He explains that since the
identity of the assailant is in doubt, motive becomes
important and his alibi gains weight and value. 15
In a resolution dated 6 April 2005, the Court, without
giving due course to the petition, required respondent to
file a Comment. 16
In its Comment 17 dated 8 September 2005, respondent
People of the Philippines, through the Office of the
Solicitor General (OSG), argues that the factual findings
of the Court of Appeals cannot be reviewed since the issue
(i.e., positive identification) petitioner is raising involves
the credibility of witnesses and the weighing of evidence.
It asserts that since the same deals with a question of fact
and there being no instance present to take the case out of
the general rule that factual findings of the Court of
Appeals may be reviewed, a review thereof cannot be
made because only a question of law can be re-examined
if a petition for review on certiorari under Rule 45 of the
Rules of Court has been filed. It adds that even if the case
is to be decided on the merits, the petition likewise will
fail. IAETDc
In his Reply, 18 petitioner submits that a review of the
facts of the case is justified on the ground that the Court
of Appeals sanctioned substantial and jurisprudential
departures committed by the trial court. He maintains that
(1) the trial court precipitately observed that alibi is a
weak defense; (2) the trial court did not consider that the
prosecution had no evidence proving his intention to kill;
(3) the trial court did not consider the fact that victim did
not know him and vice-versa; (4) it was impossible for
him, a navy man — a protector of the people — to have
failed to fatally hit the victim after firing seven shots; and
(5) the instant case is a frame up.
petition and required the parties to submit their respective
memoranda. 19
In his memorandum, petitioner further argues that the
findings of fact in this case should be reviewed because
the Court of Appeals erroneously restated the factual
findings of the trial court when it purposely omitted and
added words changing the tenor of the shooting incident
as found by the trial court. He adds that the findings of
fact of the trial court do not support a conviction of
attempted murder but only attempted homicide as there
was no treachery since private complainant was still able
to focus his eyes on the gunman until he was fired upon.
Further, he points out that the Court of Appeals made
different findings as to where the seven spent shells were
recovered. He maintains there was suppression of
evidence when the prosecution failed to present a ballistic
report on the seven empty shells that would show the
identity of the assailant. In addition, he claims that since
there was suppression of evidence on the part of the
prosecution, the testimony of Armando Maramba is not
credible, he being a relative of the victim.
Petitioner primarily invokes the defenses of denial and
alibi. It is his claim that the prosecution failed to
conclusively establish the identity of the assailant and that
he was merely framed-up.
At the outset, it must be stressed that the instant petition
for review on certiorari was filed pursuant to Rule 45 of
the Rules of Court where a review is not a matter of right
but of sound judicial discretion and will be granted only
when there are special and important reasons therefor. It
is not the function of this Court to re-examine the
evidence submitted by the parties unless the findings of
fact of the Court of Appeals are not supported by evidence
on record or the judgment is based on a misapprehension
of facts. This Court is limited to the review or revision of
errors of law and not to analyze or weigh the evidence all
over again. 20
We agree with the OSG that as ruled by this Court, no
questions of facts may be raised in this Court under Rule
45 of the Rules of Court, unless, among other grounds,
there is clear and convincing proof that the judgment of
the Court of Appeals is based on a misapprehension of
facts or when the Court of Appeals failed to notice and
appreciate certain relevant facts of substance which if
properly considered would justify a different conclusion,
and when there is a grave abuse of discretion in the
appreciation of facts in the light of the evidence on record.
Anything less will not suffice to overturn the decision of
the Court of Appeals affirming on appeal the decision of
the trial court. It bears stressing that the findings of facts
of the trial court, its calibration of the testimonial
evidence of the parties and the assessment of the
credibility and probative weight of the evidence of the
parties and its conclusion anchored on its findings are
given high respect if not conclusive effect by this Court,
especially if affirmed by the Court of Appeals because of
the unique advantage of the trial court of observing and
monitoring the demeanor, conduct and deportment of the
witnesses as they regale the court with their testimonies.
The exception to this rule is when the trial court ignored,
overlooked, misconstrued or misappreciated cogent facts
and circumstances of substance which if considered
would alter the outcome of the case. 21 After scrutinizing
the records of the case and thoroughly evaluating all the
evidence proffered, we find no reason to deviate from the
findings of facts of the trial court as affirmed by the Court
of Appeals. TEacSA
In the case at bar, the testimonies of private complainant
Frederick Maramba and Armando Maramba were given
credence and full probative weight and credence by the
trial court in the identification of petitioner as the
assailant. Private complainant saw petitioner alight from
the tricycle of Armando Maramba before he successively
shot at him at a distance of about four meters while
chasing him for 25 to 30 meters. 22 Armando Maramba
witnessed the shooting because he was the driver of the
tricycle in which petitioner rode in going to the house of
private complainant and in leaving the crime scene. 23
After the shooting incident, private complainant went to
the City Jail and identified petitioner as the person who
shot him. 24 At the Dagupan City Police Station,
Armando Maramba pointed to petitioner as the assailant
not because he saw a man wearing a chaleco, but because
it was he whom he saw shoot the private complainant. 25
Petitioner asks that the findings of fact of the case should
be reviewed because the Court of Appeals erroneously
restated the factual findings of the trial court when it
purposely omitted and added words changing the tenor of
the shooting incident as found by the trial court. Petitioner
said the Court of Appeals purposely added the word
"suddenly" and replaced the phrase "near him" with "in
front of." He adds that the Court of Appeals added the
phrase "without any warning" and removed the phrase
"approached the complainant." He even claims that the
Court of Appeals changed the manner how private
complainant was shot, when he was hit, and how he
stumbled and how he was able to stand up and continue
running. He further states that the Court of Appeals made
a different finding as to where the seven spent shells were
recovered. He points out that the Court said the seven
spent shells were recovered from the accused while the
trial court found that the same were found in the crime
scene.
As above discussed, the findings of the trial court on its
assessment of the credibility of the witnesses and their
testimonies and the probative weight thereof, are
accorded by the appellate court high respect if not
conclusive effect, unless the trial court ignored,
misconstrued or misinterpreted facts and circumstances,
which if considered, would alter the outcome of the case.
26 In the case at bar, the addition or omission of these
words, and the difference between the findings of the trial
court and the Court of Appeals as to where the seven spent
shells were found, are too minor and inconsequential to
affect the outcome of this case. These, even if considered,
would not overturn the established fact that petitioner was
identified as the assailant. Nothing in the record shows
that there was any inconsistency as regards the identity of
the assailant. Both private complainant and Armando
Maramba were one in pointing to petitioner as the culprit.
Petitioner interposes the defenses of denial and alibi. He
denies participation in the crime claiming that he was
aboard a tricycle on his way to Calasiao, Pangasinan,
when policemen arrested him and brought him to the
Dagupan Police Station. On the other hand, the victim
himself identified petitioner as his attacker which
statement was corroborated by Armando Maramba.
To be believed, denial must be buttressed by strong
evidence of non-culpability. Otherwise, it is purely self-
serving and without merit. 27 Settled is the rule that the
defense of alibi is inherently weak and crumbles in the
light of positive declarations of truthful witnesses who
testified on affirmative matters. 28 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. 29
There being no strong and credible evidence adduced to
overcome the testimonies of private complainant and
Armando Maramba pointing to him as the culprit, no
weight can be given petitioner's denial. dctai
Petitioner's defense of alibi likewise fails. As against
positive identification by prosecution witnesses, the
accused's alibi is worthless. 30 Having been identified by
two credible witnesses, petitioner cannot escape liability.
Moreover, for alibi to prosper, it must be proven that
during the commission of the crime, the accused was in
another place and that it was physically impossible for
him to be at the locus criminis. 31 Courts view the defense
of alibi with suspicion and caution not only because it is
inherently weak and unreliable, but also it can be
fabricated easily. 32 As found by the trial court, it was not
physically impossible for petitioner to be at the crime
scene when the crime was committed since it only takes a
ten-minute ride from the place where he allegedly
alighted from the car of one Berting Soriano to the crime
scene. We have held that:
Alibi, the plea of having been elsewhere than at the scene
of the crime at the time of the commission of the felony,
is a plausible excuse for the accused. Let there be no
mistake about it. Contrary to the common notion, alibi is
in fact a good defense. But to be valid for purposes of
exoneration from a criminal charge, the defense of alibi
must be such that it would have been physically
impossible for the person charged with the crime to be at
the locus criminis at the time of its commission, the
reason being that no person can be in two places at the
same time. The excuse must be so airtight that it would
admit of no exception. Where there is the least possibility
of accused's presence at the crime scene, the alibi will not
hold water. 33
Petitioner contends there was suppression of evidence
when the prosecution did not place on the witness stand
Barangay Captain Dacasain of Lasip Grande and when it
failed to present a ballistic report on the seven empty
shells because both are vital evidence to prove the identity
of the assailant.
We find such contention untenable.
As to the non-presentation of Barangay Captain Dacasin,
the same does not constitute suppression of evidence.
Barangay Captain Dacasin was not an eyewitness to the
shooting incident contrary to the claim of petitioner.
Although he was the one who reported the incident to the
police station, he was merely informed by Armando
Maramba that the person who shot private complainant
wore a "chaleko" or vest. 34 Thus, not being an
eyewitness, his testimony, even if taken, would have
nothing to do with the identification of the assailant. If he
really wanted to have Barangay Captain Dacasin take the
witness stand, he could have asked the trial court for a
subpoena ad testificandum. This, he did not do.
As regards the failure of the police to present a ballistic
report on the seven spent shells recovered from the crime
scene, the same does not constitute suppression of
evidence. A ballistic report serves only as a guide for the
courts in considering the ultimate facts of the case. 35 It
would be indispensable if there are no credible
eyewitnesses to the crime inasmuch as it is corroborative
in nature. 36 The presentation of weapons or the slugs and
bullets used and ballistic examination are not
prerequisites for conviction. The corpus delicti and the
positive identification of accused-appellant as the
perpetrator of the crime are more than enough to sustain
his conviction. 37 Even without a ballistic report, the
positive identification by prosecution witnesses is more
than sufficient to prove accused's guilt beyond reasonable
doubt. 38 In the instant case, since the identity of the
assailant has been sufficiently established, a ballistic
report on the slugs can be dispensed with in proving
petitioner's guilt beyond reasonable doubt.
Petitioner's asseveration that it is unthinkable for him to
shoot private complainant because he has no motive to
harm, much less kill the latter, he being a total stranger,
deserves scant consideration. It must be stressed that
motive is a state of (one's) mind which others cannot
discern. It is not an element of the crime, and as such does
not have to be proved. In fact, lack of motive for
committing a crime does not preclude conviction. It is
judicial knowledge that persons have been killed or
assaulted for no reason at all. 39 Even in the absence of a
known motive, the time-honored rule is that motive is not
essential to convict when there is no doubt as to the
identity of the culprit. 40 Motive assumes significance
only where there is no showing of who the perpetrator of
the crime was. 41 In the case at bar, since petitioner has
been positively identified as the assailant, the lack of
motive is no longer of consequence. ACTESI
Petitioner argues that the testimony of prosecution
witness Armando Maramba should not be given weight
because the same is biased and incredible on the ground
that he is the uncle of the private complainant.
This argument does not inspire belief. The blood
relationship of Armando Maramba and private
complainant would not render the former's testimony
unworthy of belief. On the contrary, relationship could
strengthen the witnesses' credibility, for it is unnatural for
an aggrieved relative to falsely accuse someone other than
the actual culprit. Their natural interest in securing the
conviction of the guilty would deter them from
implicating a person other than the true offender. 42 It is
settled that where there is no evidence and nothing to
indicate that the principal witnesses for the prosecution
were actuated by improper motive, the presumption is that
they were not so actuated and their testimonies are
entitled to full faith and credit. 43 The weight of the
testimony of witnesses is not impaired nor in anyway
affected by their relationship to the victim when there is
no showing of improper motive on their part. 44
Jurisprudence likewise holds that if an accused had really
nothing to do with a crime, it would be against the natural
order of events and of human nature, and against the
presumption of good faith, that a prosecution witness
would falsely testify against him. 45 In the case before us,
aside from petitioner's claim that he was framed-up, there
is nothing in the records that shows that Armando
Maramba had ulterior motives in testifying against him.
Necessarily, the testimony of Armando Maramba must be
given full credit.
Petitioner claims that as a navy man who is trained to kill
enemies of the state, a "protector of the people," he could
not have acted in the manner which the prosecution
pointed out. He said it is against human experience to
attempt to kill a person in the presence of a witness and in
broad daylight, and that it is preposterous that after firing
seven shots at close range, he failed to fatally hit the
private complainant. All these, he said, only point to a
different assailant.
We are not convinced. The records show that the shooting
happened at around 7:30 a.m. The fact that the shooting
occurred in broad daylight does not render its commission
impossible. 46 This Court takes notice that it is not
unusual that killings are perpetrated in front of witnesses.
In the instant case, the attempted killing was witnessed by
Armando Maramba, the driver of the tricycle which
petitioner rode in going to, and in leaving, the crime
scene.
Petitioner argues that he could not have been the assailant
because it was simply impossible for him, being a navy
man, not to fatally hit private complainant after firing
seven shots at close range. In effect, what he is saying is
that the bungled killing cannot be the handiwork of an
experienced soldier like him. Such an argument does not
hold water. In the case of People v. Mamarion, 47 we
brushed aside the very same argument raised by the
accused therein who was an experienced military man.
We ruled that an accused is not entitled to an acquittal
simply because of his previous, or even present, good
moral character and exemplary conduct. The fact that
petitioner was a navy man — a protector of the people —
does not mean that he is innocent of the crime charged or
that he is incapable of doing it. This argument fails in light
of the identification made by the victim himself and by
Armando Maramba that it was petitioner who was the
assailant.
Finally, petitioner submits that if ever he committed a
crime, he merely committed attempted homicide. He
maintains there was no sudden firing because the victim
testified he was observing the alleged gunman for a period
of ten seconds before the latter finally drew his .45 caliber
pistol and fired at him. After the first shot, the victim was
able to run away. TaCEHA
The lower court was correct in appreciating treachery in
the commission of the crime. There is treachery when the
following essential elements are present, viz: (a) at the
time of the attack, the victim was not in a position to
defend himself; and (b) the accused consciously and
deliberately adopted the particular means, methods or
forms of attack employed by him. 48 The essence of
treachery is the swift and unexpected attack on an
unarmed victim without the slightest provocation on the
part of the victim. 49 It was clearly established that
private complainant, while washing his jeep, was
suddenly fired upon by petitioner for no reason at all. The
suddenness of the shooting and the fact that he was
unarmed left private complainant with no option but to
run for his life. It is likewise apparent that petitioner
consciously and deliberately adopted his mode of attack
making sure that private complainant will have no chance
to defend himself by reason of the surprise attack.
Petitioner's claim that the shooting was not sudden
because private complainant was observing him from the
time he alighted from the tricycle is belied by the fact that
private complainant was not able to run when he was first
fired upon. Though private complainant was looking at
him, the former was not forewarned by any outward sign
that an attack was forthcoming. It was only after the first
shot that he felt his life was in danger.
Having commenced the criminal act by overt acts but
failing to perform all acts of execution as to produce the
felony by reason of some cause other than his own
desistance, petitioner committed an attempted felony.
Petitioner already commenced his attack with a manifest
intent to kill by shooting private complainant seven times,
but failed to perform all the acts of execution by reason of
causes independent of his will, that is, poor aim and the
swiftness of the latter. Private complainant sustained a
wound on the left arm that is not sufficient to cause his
death. The settled rule is that where the wound inflicted
on the victim is not sufficient to cause his death, the crime
is only attempted murder, since the accused did not
perform all the acts of execution that would have brought
about death. 50
The penalty imposed by the trial court is correct. Under
Article 51 of the Revised Penal Code, the penalty lower
than two degrees than that prescribed by law for the
consummated felony shall be imposed upon the principal
in an attempted felony. Under Article 248 of the Revised
Penal Code, the penalty for murder is reclusion perpertua
to death. The penalty two degrees lower is prision mayor.
Applying the Indeterminate Sentence Law, and there
being no aggravating or mitigating circumstances, the
minimum of the penalty to be imposed should be within
the range of prision correccional, and the maximum of the
penalty to be imposed should be within the range of
prision mayor in its medium period.
WHEREFORE, in view of the foregoing, the petition is
DENIED. Costs against petitioner.
SO ORDERED.
||| (Velasco v. People, G.R. No. 166479, [February 28,
2006], 518 PHIL 780-800)
[G.R. No. 207175. November 26, 2014.]
EDUARDO MAGSUMBOL, petitioner, vs. PEOPLE OF
THE PHILIPPINES, respondent.
DECISION
MENDOZA, J p:
This is a petition for review on certiorari seeking to
reverse and set aside the December 14, 2012 Decision 1
and the May 6, 2013 Resolution 2 of the Court of Appeals
(CA) in CA-G.R. CR No. 34431 filed by Eduardo
Magsumbol (Magsumbol), questioning his conviction for
Theft.
The Facts
Petitioner Magsumbol, together with Erasmo Magsino
(Magsino), Apolonio Inanoria (Inanoria), and Bonifacio
Ramirez (Ramirez), was charged with the crime of Theft
in the Information, dated August 30, 2002, filed before
the Regional Trial Court of Lucena City, Branch 55
(RTC) and docketed as Criminal Case No. 2002-1017.
The Information indicting Magsumbol and his co-accused
reads:
That on or about the 1st day of February 2002, at
Barangay Kinatihan I, in the Municipality of Candelaria,
Province of Quezon, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together with
seven (7) John Does whose true names and real identities
are still unknown and whose physical descriptions were
not made known by available witnesses, and who are all
still at large, and mutually helping one another, with
intent to gain and without the consent of the owner,
Menandro Avanzado, did then and there willfully,
unlawfully and feloniously cut, take, steal and carry away
with them thirty three (33) coconut trees from the coconut
plantation of the said owner, valued at FORTY FOUR
THOUSAND FOUR HUNDRED PESOS (P44,400.00),
Philippine currency, belonging to said Menandro
Avanzado, to his damage and prejudice in the aforesaid
amount. 3
Culled from the testimonies of prosecution witnesses
Ernesto Caringal (Caringal), private complainant Engr.
Menandro Avanzado (Menandro), and SPO1 Florentino
Manalo (SPO1 Manalo), it appears that at around 11:00
o'clock in the morning of February 1, 2002, Caringal, the
overseer of a one-hectare unregistered parcel of land
located in Candelaria, Quezon, and co-owned by
Menandro, saw the four accused, along with seven others,
cutting down the coconut trees on the said property. Later,
the men turned the felled trees into coco lumber. Caringal
did not attempt to stop the men from cutting down the
coconut trees because he was outnumbered. Instead,
Caringal left the site and proceeded to San Pablo City to
inform Menandro about the incident.
On February 3, 2002, Menandro and Caringal reported the
incident to the police. Thereafter, the two, accompanied
by SPO1 Manalo, went to the coconut plantation only to
discover that about thirty three (33) coconut trees (subject
trees) had been cut down. The coco lumber were no
longer in the area. They took photographs of the stumps
left by the men. IaESCH
The defense, on the other hand, presented Atanacio
Avanzado (Atanacio), accused Ramirez, petitioner
Magsumbol, Barangay Captain Pedro Arguelles (Brgy.
Captain Arguelles) and accused Inanoria, to substantiate
its claim of innocence for all the accused.
Atanacio testified that he authorized his brothers-in-law,
Magsino and Magsumbol, to cut down the coconut trees
within the boundary of his property, which was adjacent
to the land co-owned by Menandro. Atanacio admitted
that he had never set foot on his property for about 20
years already and that he was not present when the cutting
incident happened.
Defense witness Brgy. Captain Arguelles testified that on
January 28, 2002, Magsumbol, Magsino, Ramirez, and
Inanoria came to his office seeking permission to cut
down the coconut trees planted on the land of Atanacio.
All the accused vehemently denied the charges against
them. Ramirez and Magsumbol claimed that only the
coconut trees which stood within the land owned by
Atanacio, a relative off the private complainant, were cut
down on that morning of February 1, 2002. Ramirez
added that he was a coco lumber trader and that Atanacio
offered to sell the coconut trees planted on his lot.
Magsumbol claimed that he took no part in the felling of
the coconut trees but merely supervised the same. He
claimed that he did not receive any remuneration for the
service he rendered or a share from the proceeds of the
coco lumbers sale. Inanoria likewise denied participation
in the cutting down of the coconut trees but confirmed the
presence of Magsumbol and Magsino at the site to
supervise the accomplishment of the work being done
thereat. Inanoria corroborated the narration of
Magsumbol and Ramirez that all the felled trees were
planted inside the lot owned by Atanacio. Inanoria
intimated that Menandro included him in the complaint
for theft due to his refusal to accede to latter's request for
him to testify against his co-accused in relation to the
present criminal charge. 4
Ruling of the RTC
On March 15, 2011, the RTC rendered its decision 5
stating that the prosecution was able to establish with
certitude the guilt of all the accused for the crime of
simple theft. The RTC rejected the defense of denial
invoked by the accused in the face of positive
identification by Caringal pointing to them as the
perpetrators of the crime. It did not believe the testimony
of Atanacio and even branded him as biased witness on
account of his relationship with accused Magsino and
Magsumbol. The trial court adjudged:
WHEREFORE, judgment is hereby rendered finding all
the accused Erasmo Magsino, Apolonio Inanoria,
Eduardo Magsumbol and Bonifacio Ramirez guilty as
charged and applying the Indeterminate sentence law, the
court hereby sentences them to suffer an imprisonment of
2 years, 4 months and 1 day of Prision Correctional as
minimum to 6 years and 1 day of Prision Mayor as
maximum.
The accused are likewise directed to pay jointly and
severally Engr. Menandro Avanzado and the other heirs
of Norberto Avanzado the sum of P13,200.00
representing the value of the 33 coconut trees they have
cut and sold to accused Ramirez.
SO ORDERED.
Aggrieved, the accused appealed from the March 15,
2011 judgment of the RTC before the CA insisting that
the prosecution evidence did not meet the quantum of
proof necessary to warrant their conviction of the crime
charged. They posited that the RTC erred in failing to
appreciate the lack of criminal intent on their part to
commit the crime of simple theft. They claimed that not a
scintilla of evidence was presented to prove the element
of intent to gain. 6
Ruling of the CA
In its assailed Decision, dated December 14, 2012, the CA
sustained the findings of facts and conclusions of law by
the RTC and upheld the judgment of conviction rendered
against the accused. The CA was of the view, however,
that the crime committed in this case would not fall under
the general definition of theft under Article 308 of the
Revised Penal Code (RPC), but rather under paragraph
(2) of the same provision which penalizes theft of
damaged property. The CA ruled that the RTC was
correct in giving full faith and credence to the testimony
of Caringal who was not shown to have been motivated
by any ill will to testify falsely against the accused. It
agreed with the RTC that Atanacio's testimony should not
be given any evidentiary weight in view of his
relationship with Magsino and Magsumbol, which
provided sufficient reason for him to suppress or pervert
the truth. Anent the element of intent to gain, the CA
stated that the mere fact that the accused cut the coconut
trees on Menandro's land and made them into coco
lumber, gave rise to the presumption that it was done with
intent to gain. The fallo reads:
WHEREFORE, premises considered, the appeal is hereby
DENIED. The Decision dated March 15, 2011, of the
Regional Trial Court, Branch 55, Lucena City is
AFFIRMED with MODIFICATION in that the accused-
appellants Erasmo Magsino, Apolonio Inanoria, Eduardo
Magsumbol and Bonifacio Ramirez are sentenced to
suffer imprisonment of two (2) years, four (4) months and
one (1) day as minimum, to seven (7) years, four (4)
months and one (1) day, as maximum; and to pay jointly
and severally private complainant Menandro Avanzado
the amount of Thirteen Thousand Two Hundred Pesos
(P13,200.00).
SO ORDERED. 7
The accused moved for reconsideration of the December
14, 2012 Decision but their motion was denied by the CA
on May 6, 2013.
Issues:
Bewailing his conviction, Magsumbol filed the present
petition before this Court and imputes to the CA the
following
ERRORS:
THE HONORABLE COURT OF APPEALS
COMMITTED SERIOUS ERRORS OF LAW WHEN IT
FOUND THE ACCUSED GUILTY OF THE CRIME OF
THEFT UNDER ARTICLE 308 OF THE REVISED
PENAL CODE, IN THAT:
I
NO COMPETENT EVIDENCE WAS ADDUCED BY
THE PROSECUTION TO PROVE THAT THE
COCONUT TREES THAT WERE CUT WERE
BEYOND THE PROPERTY OWNED BY ATANACIO
AVANZADO; and
II
MALICE AND INTENT TO GAIN, AS ELEMENTS OF
THE CRIME OF THEFT, ARE NOT PRESENT IN THE
CASE AT HAND. 8
The Court's Ruling
The petition is impressed with merit.
It is a time-honored rule that the assessment of the trial
court with regard to the credibility of witnesses deserves
the utmost respect, if not finality, for the reason that the
trial judge has the prerogative, denied to appellate judges,
of observing the demeanor of the declarants in the course
of their testimonies. Though it is true that the trial court's
evaluation of the credibility of witnesses and their
testimonies is entitled to great respect and will not be
disturbed on appeal, this rule, however, is not a hard and
fast one. The exception is observed if there is a showing
that the trial judge overlooked, misunderstood, or
misapplied some fact or circumstance of weight and
substance that would have cast doubt on the guilt of the
accused. 9 The said exception apparently exists in the case
at bench.
It is the statutory definition that generally furnishes the
elements of each crime under the RPC, while the elements
in turn unravel the particular requisite acts of execution
and accompanying criminal intent. In the case at bench,
petitioner Magsumbol and his co-accused were convicted
by the CA of the crime of theft of damaged property under
paragraph (2) of Article 308 of the RPC which provides:
Art. 308. Who are liable for theft. — . . .
Theft is likewise committed by:
1. . . .;
2. Any person who, after having maliciously damaged the
property of another, shall remove or make use of the fruits
or object of the damage caused by him; and . . . .
[Emphasis Supplied]
To warrant a conviction under the aforecited provision for
theft of damaged property, the prosecution must prove
beyond reasonable that the accused maliciously damaged
the property belonging to another and, thereafter,
removed or used the fruits or object thereof, with intent to
gain. Evidently, theft of damaged property is an
intentional felony for which criminal liability attaches
only when it is shown that the malefactor acted with
criminal intent or malice. Criminal intent must be clearly
established with the other elements of the crime;
otherwise, no crime is committed. 10 Was criminal intent
substantiated to justify the conviction of Magsumbol and
his co-accused?
It does not so appear in this case.
There is no dispute that the land co-owned by Menandro
is adjacent to the land owned by Atanacio. The
prosecution claimed that the thirty three (33) cut coconut
trees were planted within the land co-owned by
Menandro. The defense, on the other hand, averred that
only the coconut trees found within the land of Atanacio
were felled by Magsumbol and his co-accused. Menandro
testified that there were muniments that delimit the
boundaries between the adjacent lots 11 while Atanacio
claimed that there were none and that "x" marks were just
etched on the trunk of the trees to delineate the boundary
of his land. 12 Apart from the bare allegations of these
witnesses, no concrete and competent evidence was
adduced to substantiate their respective submissions. In
view of such conflicting claims and considering the
meager evidence on hand, the Court cannot determine
with certainty the owner of the 33 felled coconut trees.
The uncertainty of the exact location of the coconut trees
negates the presence of the criminal intent to gain.
At any rate, granting arguendo that the said coconut trees
were within Menandro's land, no malice or criminal intent
could be rightfully attributed to Magsumbol and his co-
accused. The RTC and the CA overlooked one important
point in the present case, to wit: Magsumbol and his co-
accused went to Barangay Kinatihan I, Candelaria,
Quezon, to cut down the coconut trees belonging to
Atanacio upon the latter's instruction.
Such fact was confirmed by Atanacio who narrated that
due to financial reversals, he sold all the coconut trees in
his land to Ramirez, a coco lumber trader; that since he
could not go to the site due to health reasons, he
authorized Magsumbol and Magsino to cut down his trees
and to oversee the gathering of the felled trees; that he
informed Menandro about this and even offered to pay for
the damages that he might have sustained as some of his
(Menandro's) trees could have been mistakenly cut down
in the process; that Menandro refused his offer of
compensation and replied that a case had already been
filed against the four accused; and that he tried to seek an
audience again from Menandro, but the latter refused to
talk to him anymore. 13
Both the RTC and the CA chose to brush aside the
foregoing unrebutted testimony of Atanacio for being
unreliable and considered him a biased witness simply
because he is related by affinity to Magsumbol and
Magsino. Family relationship, however, does not by itself
render a witness' testimony inadmissible or devoid of
evidentiary weight. 14 To warrant rejection of the
testimony of a relative or friend, it must be clearly shown
that, independently of the relationship, the testimony was
inherently improbable or defective, or that improper or
evil motives had moved the witness to incriminate the
accused falsely. 15
The relationship of Atanacio to the accused, per se, does
not impair his credibility. It bears stressing that while
Magsumbol and Magsino are Atanacio's brothers-in-law,
Menandro is his cousin. Considering that both the accused
and the accuser are Atanacio's relatives, and purportedly
both have bearing with regard to his decision, why would
then Atanacio support one over the other? The logical
explanation could only be that Atanacio had indeed
ordered Magsumbol and Magsino to cut the trees on his
land. The Court is convinced that Atanacio was telling the
truth.
If, indeed, in the course of executing Atanacio's
instructions, Magsumbol and his co-accused encroached
on the land co-owned by Menandro, because they missed
the undetectable boundary between the two lots, and cut
down some of Menandro's trees, such act merely
constituted mistake or judgmental error. The following
pronouncement in the case of Lecaroz vs. Sandiganbayan
16 may serve as a guidepost, to wit:
If what is proven is mere judgmental error on the part of
the person committing the act, no malice or criminal
intent can be rightfully imputed to him. . . . . Ordinarily,
evil intent must unite with an unlawful act for a crime to
exist. Actus non facit reum, nisi mens sit rea. There can
be no crime when the criminal mind is wanting. As a
general rule, ignorance or mistake as to particular facts,
honest and real, will exempt the doer from felonious
responsibility. The exception of course is neglect in the
discharge of duty or indifference to consequences, which
is equivalent to criminal intent, for in this instance, the
element of malicious intent is supplied by the element of
negligence and imprudence. 17
[Emphasis supplied]
The criminal mind is indeed wanting in the situation
where Magsumbol and his co-accused even sought prior
permission from Brgy. Captain Arguelles to cut down the
coconut trees which was done openly and during broad
daylight effectively negated malice and criminal intent on
their part. It defies reason that the accused would still
approach the barangay captain if their real intention was
to steal the coconut trees of Menandro. Besides, criminals
would usually execute their criminal activities
clandestinely or through stealth or strategy to avoid
detection of the commission of a crime or a wrongdoing.
The findings of this Court in this case should not create
the mistaken impression that the testimonies of the
prosecution witnesses should always be looked at with
askance. The point is that courts should carefully
scrutinize the prosecution evidence to make sure that no
innocent person is condemned. An allegation, or even a
testimony, that an act was done should never be hastily
accepted as proof that it was really done. Evidence
adduced must be closely examined under the lens of a
judicial microscope to ensure that conviction only flows
from moral certainty that guilt has been established by
proof beyond reasonable doubt.
Here, that quantum of proof has not been satisfied. The
prosecution miserably failed to establish proof beyond
reasonable doubt that Magsumbol, together with his co-
accused, damaged the property of Menandro with malice
and deliberate intent and then removed the felled coconut
trees from the premises.
Hence, we must reckon with a dictum of the law, in
dubilis reus est absolvendus. All doubts must be resolved
in favor of the accused.
WHEREFORE, the petition is GRANTED. The assailed
December 14, 2012 Decision and the May 6, 2013
Resolution of the Court of Appeals in CA-G.R. CR No.
34431 are REVERSED and SET ASIDE. Petitioner
Eduardo Magsumbol is ACQUITTED on reasonable
doubt. TaSEHD
SO ORDERED.
||| (Magsumbol v. People, G.R. No. 207175, [November
26, 2014])
[G.R. No. 189850. September 22, 2014.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
REYNALDO TORRES, JAY TORRES, BOBBY
TORRES @ ROBERTO TORRES y NAVA, and
RONNIE TORRES, accused,
BOBBY TORRES @ ROBERTO TORRES y NAVA,
accused-appellant.
DECISION
DEL CASTILLO, J p:
This is an appeal from the July 23, 2009 Decision 1 of the
Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02925,
which modified the December 5, 2006 Decision 2 of the
Regional Trial Court (RTC), Manila, Branch 27 in
Criminal Case No. 02-200171. The RTC found appellant
Bobby Torres @ Roberto Torres y Nava (appellant) guilty
beyond reasonable doubt of the crime of murder but on
appeal, the CA found appellant guilty of the special
complex crime of robbery with homicide.
Factual Antecedents
On January 28, 2004, an Amended Information 3 was
filed before the RTC, charging siblings Reynaldo Torres
(Reynaldo), Jay Torres (Jay), Ronnie Torres (Ronnie) and
appellant with the special complex crime of robbery with
homicide committed against Jaime M. Espino (Espino).
The Amended Information contained the following
accusatory allegations:
That on or about September 21, 2001, in the City of
Manila, Philippines, the said accused, armed with bladed
weapons, conspiring and confederating together with one
malefactor whose true name, real identity and present
whereabouts [is] still unknown and helping one another,
did then and there willfully, unlawfully and feloniously,
with intent of gain and by means of force, violence, and
intimidation, to wit: while one JAIME M. ESPINO was
on board his car and travelling along C.M. Recto Avenue
corner Ylaya St., Tondo, this City, by blocking his path
and forcibly grabbing from the latter his belt-bag; that on
the occasion of the said robbery and by reason thereof, the
herein accused, in pursuance of their conspiracy, did then
and there willfully, unlawfully and feloniously, with
intent to kill, attack, assault, use personal violence and
abuse of superior strength upon the said JAIME M.
ESPINO and that when the latter resisted, by then and
there stabbing the latter with bladed weapons on . . .
different parts of his body, thereby inflicting upon the
latter multiple stab wounds which were the direct and
immediate cause of his death thereafter, and afterwhich,
divest, take, rob and carry away a belt-bag, wallet,
necklace, watch and ring of undetermined amount,
belonging to said JAIME M. ESPINO.
Contrary to law. 4
Only appellant was arrested. Reynaldo, Jay and Ronnie
remain at-large to date. During arraignment, appellant
entered a plea of "not guilty". 5 After the termination of
the pre-trial conference, trial ensued. 6
Version of the Prosecution
The prosecution presented as eyewitnesses Eduardo
Umali (Umali), a butcher, and Merlito Macapar
(Macapar), a cigarette vendor. Also presented were Dr.
Romeo T. Salen (Dr. Salen), who testified on the cause of
death of Espino. From their testimonies, 7 the following
facts emerged:
At around 10:00 p.m. of September 21, 2001, Espino was
driving his car along C.M. Recto Avenue in Divisoria,
Manila when Ronnie suddenly blocked his path. Espino
alighted from his vehicle and approached Ronnie, who
tried to grab his belt-bag. Espino resisted and struggled
with Ronnie for the possession of his belt-bag but the
latter's brothers, Jay, Rey, appellant, and an unidentified
companion suddenly appeared. With all of them
brandishing bladed weapons, appellant and his brothers
took turns in stabbing Espino in different parts of his body
while the unidentified companion held him by the neck.
When Espino was already sprawled on the ground, they
took his belt-bag, wallet and jewelries and immediately
fled. ICDcEA
Espino was rushed to the hospital but was pronounced
dead on arrival. In his Medico-Legal Report No. W-658-
2001, 8 Dr. Salen concluded that Espino died of multiple
stab wounds caused by sharp bladed instruments. The
back portion of his head bore two stab wounds while his
body suffered four stab wounds which proved fatal.
Considering the number and varying measurements of the
wounds, Dr. Salen opined that there were more than one
assailant.
To prove the civil aspect of the case, Espino's daughter,
Winnie Espino-Fajardo (Winnie) testified that the pieces
of jewelry stolen from her father consisted of a necklace
worth P35,000.00, bracelet worth P15,000.00, wristwatch
worth P10,000.00 and two rings worth P10,000.00 each.
As for their expenses, Winnie said that P25,000.00 was
spent for the burial lot and P37,000.00 for the funeral
services. She stated further that Espino was 51 years old
at the time of his death and was earning P3,000.00 a day
as a meat vendor. 9
Version of the Defense
Appellant denied any participation in the crime. He
testified that at around 10:00 p.m. of September 21, 2001,
he was with his girlfriend, Merlita Hilario (Merlita). They
proceeded to the house of their friend, Marilou Garcia
(Marilou), in Villaruel, Tayuman, Manila where they had
a drinking session which lasted until they fell asleep. They
did not leave their friend's house until the following
morning when they went home. Thereupon, he was told
that policemen were looking for him because his brothers
got involved in an altercation that resulted in the death of
someone. 10 Merlita and Marilou corroborated appellant's
alibi in their respective testimonies. 11
From the testimony of another defense witness, Jorna
Yabut-Torres (Jorna), wife of Ronnie, the defense's
version of the incident emerged as follows:
In the evening of September 21, 2001, Jorna and Ronnie
were sharing jokes with other vendors in Divisoria when
a car stopped a few meters from their stall. The driver
alighted and asked why they were laughing. Ronnie
replied that it had nothing to do with him. The driver
seemed drunk since he walked back to his vehicle in an
unsteady manner. Moments later, the driver returned and
stabbed Ronnie on the wrist with a knife. Jay saw the
assault on his brother, Ronnie, and got a bolo which he
used to hack the driver repeatedly. Thereafter, Ronnie and
Jay fled. 12
Ditas Biescas-Mangilya, a vegetable vendor in Divisoria,
corroborated Jorna's version of the incident in her
testimony. 13
Ruling of the Regional Trial Court
In its December 5, 2006 Decision, 14 the RTC held that
appellant could not have committed robbery. It
ratiocinated, viz.:
Prosecution witness Merlito D. Macapar testified that
Ronnie took the belt bag of the deceased while Bobby and
the rest took his wristwatch, ring and necklace. However,
on cross-examination, witness admitted that he did not see
who took the ring, wristwatch and necklace because as
soon as the deceased fell on the ground, accused and
companions surrounded him. Merlito's testimony was
contradicted by Eduardo Umali on a vital point. Thus,
Merlito testified that there was an exchange of heated
words. There was no intimation whatsoever what the
altercation was about. He was ten meters away. No such
altercation, however, took place according to Eduardo
who was barely five meters away. This tainted the
testimony of Merlito and Eduardo with suspicion. When
material witnesses contradict themselves on vital points,
the element of doubt is injected and cannot be lightly
disregarded. That was not all though. Merlito testified
[that] several people witnessed the incident. The stall of
the victim's daughter was about ten meters from the crime
scene, which was a few meters from the stall of Ronnie.
They both had been in their respective stalls for quite
sometime. The principal prosecution witnesses are
familiar with the deceased and the accused except for the
unidentified companion as they often see them at the
vicinity. Thus, in all likelihood, accused and the victim
are familiar if not know each other very well. The
perpetration of robbery at the place was thus unlikely.
Even granting that the element of taking is present, still,
accused cannot be held liable for the complex crime of
robbery with homicide for the reason that it was not
indubitably shown that the main purpose of the accused
was to rob the victim. To the mind of the Court, this is
precisely the reason why the prosecution skipped the
utterances made by the protagonist[s] during the attack.
To sustain a [conviction] for the special complex crime of
robbery with homicide, the original criminal design of the
culprit must be robbery and the homicide is perpetrated
with a view to the consummation of the robbery, or by
reason or on the occasion of the robbery (People vs.
Ponciano, 204 SCRA 627).
xxx xxx xxx
The crime of robbery not having been indubitably
established, the accused cannot be convicted of the
special complex crime of robbery with homicide. 15
The RTC thus concluded that appellant can only be liable
for the killing of Espino. It held him guilty of murder after
it found the qualifying circumstance of abuse of superior
strength, which was alleged in the Information and duly
established by the prosecution. Moreover, the RTC ruled
that conspiracy among the accused attended the crime.
SEACTH
Anent the civil aspect of the case, the RTC granted civil
indemnity, actual and moral damages to the heirs of
Espino, but denied the claim for loss of earning capacity
for lack of documentary evidence.
The dispositive portion of the RTC Decision reads:
WHEREFORE, IN VIEW OF ALL THE FOREGOING,
the Court finds accused Bobby Torres y Nava, "Guilty"
beyond reasonable doubt of the crime of Murder as the
qualifying circumstance of abuse of superior strength
attended the commission of the crime and hereby
sentences him to suffer the penalty of Reclusion Perpetua,
to indemnify the heirs of the victim the sum of
P50,000.00, the additional sum of P50,000.00 as moral
damages, actual damages in the amount of P62,000.00
and to pay the costs.
Let alias warrant of arrest issue against accused Reynaldo
Torres, Jay Torres and Ronnie Torres.
SO ORDERED. 16
Appellant filed a Motion for Reconsideration 17 which
was denied in an Order 18 dated April 10, 2007.
Hence, appellant appealed to the CA. 19
Ruling of the Court of Appeals
In modifying the ruling of the RTC, i.e., finding appellant
guilty of robbery with homicide instead of murder, the CA
found that the primary intention of appellant and his co-
accused was to rob Espino and his killing was only
incidental to the robbery. The blocking of Espino's car
and the struggle for possession of his belt-bag after he
alighted are clear manifestations of the intent to commit
robbery. The dispositive portion of the July 23, 2009
Decision 20 of the CA reads as follows:
WHEREFORE, in view of foregoing, the appealed
decision of the RTC Manila, Branch 27 dated December
5, 2006 is hereby MODIFIED in that appellant is found
GUILTY beyond reasonable doubt of the crime of
ROBBERY with HOMICIDE and he is hereby sentenced
to suffer the penalty of reclusion perpetua. The trial
court's award to the heirs of the victim, Jaime Espino, of
civil indemnity in the amount of P50,000.00, moral
damages in the amount of P50,000.00, and actual
damages in the amount of P62,000.00 as well as its order
to appellant to pay the costs of suit, are hereby
AFFIRMED.
SO ORDERED. 21
Hence, this present appeal.
Assignment of Errors
Appellant imputes upon the CA the following errors in his
Supplemental Brief. 22
The acquittal of the accused-appellant in the robbery
charge should be left undisturbed as being final and
executory which cannot be overturned without violating
the proscription against double jeopardy. 23
The appellate court exceeded its jurisdiction when it
reviewed the entire case despite the fact that the accused-
appellant only appealed his conviction for murder. 24
It was an error to convict the accused-appellant of the
crimes charged considering that his guilt was not proven
beyond reasonable doubt. 25
Our Ruling
The appeal is unmeritorious.
In an appeal by an accused, he waives
his right not to be subject to double
jeopardy.
Appellant maintains that the CA erred in finding him
liable for robbery with homicide as charged in the
Amended Information. He argues that his appeal to the
CA was limited to his conviction for murder and excluded
his acquittal for robbery. And by appealing his conviction
for murder, he does not waive his constitutional right not
to be subject to double jeopardy for the crime of robbery.
He claims that even assuming that the RTC erred in
acquitting him of the robbery charge, such error can no
longer be questioned on appeal.
We cannot give credence to appellant's contentions. "An
appeal in [a] criminal case opens the entire case for review
on any question including one not raised by the parties."
26 "[W]hen an accused appeals from the sentence of the
trial court, he waives the constitutional safeguard against
double jeopardy and throws the whole case open to the
review of the appellate court, which is then called upon to
render such judgment as law and justice dictate, whether
favorable or unfavorable to the appellant." 27 In other
words, when appellant appealed the RTC's judgment of
conviction for murder, he is deemed to have abandoned
his right to invoke the prohibition on double jeopardy
since it became the duty of the appellate court to correct
errors as may be found in the appealed judgment. Thus,
appellant could not have been placed twice in jeopardy
when the CA modified the ruling of the RTC by finding
him guilty of robbery with homicide as charged in the
Information instead of murder. ETIDaH
Appellant is guilty of the crime of
robbery with homicide.
"Robbery with homicide exists 'when a homicide is
committed either by reason, or on occasion, of the
robbery. To sustain a conviction for robbery with
homicide, the prosecution must prove the following
elements: (1) the taking of personal property belonging to
another; (2) with intent to gain; (3) with the use of
violence or intimidation against a person; and (4) on the
occasion or by reason of the robbery, the crime of
homicide, as used in its generic sense, was committed. A
conviction requires certitude that the robbery is the main
purpose and objective of the malefactor and the killing is
merely incidental to the robbery. The intent to rob must
precede the taking of human life but the killing may occur
before, during or after the robbery'." 28
In this case, the prosecution adduced proof beyond
reasonable doubt that the primary intention of appellant
and his companions was to rob Espino. Umali and
Macapar, the eyewitnesses presented by the prosecution,
testified that at around 10:00 p.m. of September 21, 2001,
appellant's brother and co-accused, Ronnie, blocked
Espino's car at the corner of C.M. Recto Avenue and
Ylaya Street. When Espino alighted from his vehicle,
Ronnie attempted to grab his belt-bag. A struggle for
possession of the belt-bag ensued. It was at this juncture
that appellant and the other co-accused joined the fray and
stabbed Espino several times in the head and body. When
Espino fell to the pavement from his stab wounds,
appellant, Ronnie and their cohorts got hold of the
victim's wallet, belt-bag, wristwatch and jewelry then fled
together. 29
From the foregoing, it is clear that the primordial intention
of appellant and his companions was to rob Espino. Had
they primarily intended to kill Espino, they would have
immediately stabbed him to death. However, the fact that
Ronnie initially wrestled with appellant for possession of
the belt-bag clearly shows that the central aim was to
commit robbery against Espino. This intention was
confirmed by the accused's taking of Espino's belt-bag,
wallet, wrist-watch and jewelries after he was stabbed to
death. The killing was therefore merely incidental,
resulting by reason or on occasion of the robbery.
The testimonies of the prosecution
eyewitnesses are worthy of credence. DcaCSE
Appellant attempts to discredit Umali and Macapar by
asserting that there are glaring contradictions in their
testimonies. He calls attention to the RTC's observation
that Macapar gave conflicting testimonies on whether he
actually witnessed who among appellant and his cohorts
took Espino's valuables after he fell to the ground.
Appellant asserts further that Umali's testimony that an
altercation did not precede the commission of the crime
contradicts the testimony of Macapar that a heated
exchange of words occurred prior to the incident. He also
claims that it is contrary to human nature for Espino to
alight from his car at 10:00 p.m. while in possession of a
large amount of money without fear of an impending
hold-up.
We are not persuaded. The inconsistencies attributed to
the prosecution's eyewitnesses involve minor details, too
trivial to adversely affect their credibility. Said
inconsistencies do not depart from the fact that these
eyewitnesses saw the robbery and the fatal stabbing of
Espino by appellant and his cohorts. "[T]o the extent that
inconsistencies were in fact shown, they appear to the
Court to relate to details of peripheral significance which
do not negate or dissolve the positive identification by
[Umali and Macapar of appellant] as the perpetrator of the
crime." 30 "Inaccuracies may in fact suggest that the
witnesses are telling the truth and have not been
rehearsed. Witnesses are not expected to remember every
single detail of an incident with perfect or total recall." 31
Moreover, it is unlikely that Espino feared alighting from
his vehicle at a late hour while in possession of a huge
amount of money since he was a vendor doing business
in the vicinity where the incident occurred. He was
familiar with the people and their activities in the
premises.
In view of the above, the Court finds that the CA properly
lent full credence to the testimonies of Umali and
Macapar.
The weapons are not the corpus delicti.
Appellant contends that the evidence is insufficient for his
conviction since the weapons used in the stabbing of
Espino were not presented. In other words, he asserts that
it was improper to convict him because the corpus delicti
had not been established.
We disagree. "'[C]orpus delicti refers to the fact of the
commission of the crime charged or to the body or
substance of the crime. In its legal sense, it does not refer
to the ransom money in the crime of kidnapping for
ransom or to the body of the person murdered' or, in this
case, [the weapons used in the commission of robbery
with homicide]. 'Since the corpus delicti is the fact of the
commission of the crime, this Court has ruled that even a
single witness' uncorroborated testimony, if credible may
suffice to prove it and warrant a conviction therefor.
Corpus delicti may even be established by circumstantial
evidence.'" 32 HTcDEa
In this case, the corpus delicti was established by the
evidence on record. The prosecution eyewitnesses
testified that appellant and his cohorts used knives to
perpetrate the crime. Their testimonies on the existence
and use of weapons in committing the offense was
supported by the medical findings of Dr. Salen who
conducted the post-mortem examination. Dr. Salen found
that Espino sustained several stab wounds with varying
measurements which were caused by sharp bladed
instruments. Appellant is therefore mistaken in arguing
that the failure to present the weapons used in killing
Espino was fatal to the cause of the prosecution.
The defenses of denial and alibi cannot
prosper.
We are in complete agreement with the RTC and the CA
in finding lack of merit in appellant's defenses of denial
and alibi.
Appellant claims that he was in a drinking session in his
friend's house in Villaruel, Tayuman, Manila, from 10:00
p.m. of September 21, 2001 until 1:00 a.m. of the
following day. He alleges to have slept at the place and
went home at around 7:00 a.m. of September 22, 2001.
According to appellant, he did not depart from his friend's
house from the time they started drinking until he went
home the following morning.
Appellant's alibi is unworthy of credence. Appellant
himself testified that Villaruel is less than two kilometers
away from Divisoria and that it would only take a few
minutes to go to Divisoria from Villaruel. 33 Clearly, it
was not impossible for appellant to be physically present
at the crime scene during its commission. "For alibi to
prosper, it must strictly meet the requirements of time and
place. It is not enough to prove that the accused was
somewhere else when the crime was committed, but it
must also be demonstrated that it was physically
impossible for him to have been at the crime scene at the
time the crime was committed." 34
The fact that appellant presented witnesses to corroborate
his alibi deserves scant consideration. Their testimonies
are viewed with skepticism due to the very nature of alibi
the witnesses affirm. 35 Appellant can easily fabricate an
alibi and ask relatives and friends to corroborate it. 36
We have always ruled that alibi and denial are inherently
weak defenses and must be brushed aside when the
prosecution has sufficiently and positively ascertained the
identity of the accused. Moreover, it is only axiomatic that
positive testimony prevails over negative testimony. 37
aECTcA
The evidence was sufficient to establish
the presence of abuse of superior
strength.
Appellant argues that mere superiority in numbers does
not indicate the presence of abuse of superior strength. In
the same manner, appellant claims that the number of
wounds inflicted on the victim is not the criterion for the
appreciation of this circumstance.
"There is abuse of superior strength when the offenders
took advantage of their combined strength in order to
consummate the offense." 38 Here, appellant and his four
companions not only took advantage of their numerical
superiority, they were also armed with knives. Espino, on
the other hand, was unarmed and defenseless. While
Ronnie was wrestling with Espino, appellant and his co-
accused simultaneously assaulted the latter. The
unidentified companion locked his arm around the neck
of Espino while appellant and his co-accused stabbed and
hacked him several times. While Espino was lying
defenseless on the ground, they divested him of all his
valuables. Thereafter, they immediately fled the scene of
the crime. 39 It is clear that they executed the criminal act
by employing physical superiority over Espino.
The Proper Penalty
Nonetheless, the presence of abuse of superior strength
should not result in qualifying the offense to murder.
When abuse of superior strength obtains in the special
complex crime of robbery with homicide, it is to be
regarded as a generic circumstance, robbery with
homicide being a composite crime with its own definition
and special penalty in the Revised Penal Code. With the
penalty of reclusion perpetua to death imposed for
committing robbery with homicide, 40 "[t]he generic
aggravating circumstance of [abuse of superior strength]
attending the killing of the victim qualifies the imposition
of the death penalty on [appellant]." 41 In view, however,
of Republic Act No. 9346, entitled "An Act Prohibiting
the Imposition of the Death Penalty in the Philippines,"
the penalty that must be imposed on appellant is reclusion
perpetua without eligibility for parole. 42
The Civil Liabilities
In robbery with homicide, civil indemnity and moral
damages are awarded automatically without need of
allegation and evidence other than the death of the victim
owing to the commission of the crime. 43 Here, the RTC
and CA granted civil indemnity and moral damages to
Espino's heirs in the amount of P50,000.00 each. These
courts were correct in granting the awards, but the awards
should have been P100,000.00 each. Recent
jurisprudence 44 declares that when the imposable
penalty is death, the awards of civil indemnity and moral
damages shall be P100,000.00 each.
In granting compensatory damages, the prosecution must
"prove the actual amount of loss with a reasonable degree
of certainty, premised upon competent proof and the best
evidence obtainable to the injured party." 45 "'Receipts
should support claims of actual damages.' Thus, as
correctly held by the [RTC] and affirmed by the CA, the
amount of [P62,000.00] incurred as funeral expenses can
be sustained since these are expenditures supported by
receipts." 46
The existence of one aggravating circumstance also
merits the grant of exemplary damages under Article 2230
of the New Civil Code. Pursuant to prevailing
jurisprudence, we likewise award P100,000.00 as
exemplary damages to the victim's heirs. 47 An interest at
the legal rate of 6% per annum on all awards of damages
from the finality of this judgment until fully paid should
likewise be granted to the heirs of Espino. 48
Lastly, the RTC did not err in refusing to award indemnity
for loss of earning capacity of Espino despite the
testimony of his daughter that he earned P3,000.00 a day
as a meat dealer. "Such indemnity is not awarded in the
absence of documentary evidence except where the
victim was either self-employed or was a daily wage
worker earning less than the minimum wage under current
labor laws. Since it was neither alleged nor proved that
the victim was either self-employed or was a daily wage
earner, indemnity for loss of earning capacity cannot be
awarded to the heirs of the victim." 49
WHEREFORE, the July 23, 2009 Decision of the Court
of Appeals in CA-G.R. CR-H.C. No. 02925 that affirmed
with modifications the December 5, 2006 Decision of the
Regional Trial Court of Manila, Branch 27, in Criminal
Case No. 02-200171 is AFFIRMED with further
MODIFICATIONS. Appellant Bobby Torres @ Roberto
Torres y Nava is ordered to pay the heirs of the victim,
Jaime M. Espino, P100,000.00 as civil indemnity;
P100,000.00 as moral damages, and P100,000.00 as
exemplary damages. The interest rate of 6% per annum is
imposed on all damages awarded from the finality of this
Decision until fully paid.
SO ORDERED.
||| (People v. Torres y Nava, G.R. No. 189850, [September
22, 2014])
[G.R. No. 128812. February 28, 2000.]
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,vs.THADEOS ENGUITO, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo A. Vitorillo for defendant-appellant.
SYNOPSIS
Appellant was convicted with homicide with physical
injuries in connection with the slaying of Wilfredo
Achumbre, appellant's co-worker, and the wounding of
Spouses Requerme. Records disclosed that appellant was
previously mauled and rendered unconscious by Wilfredo
and that thereafter a chase ensued between the two with
appellant driving a Kia Ceres van while Wilfredo was
riding, with Rosita Requerme, a motorela driven by Felipe
Requerme. Pleas for appellant to stop bumping and
pushing the motorela did not deter him. He continuously
rammed the motorela until it fell on its side injuring the
driver and the driver's wife, Rosita. Wilfredo, who was
able to jump out of the vehicle, was ran over by appellant
causing his instantaneous death. He was apprehended by
the police authorities when his vehicle stopped because of
a flat tire. Appellant, on the other hand, claimed he
accidentally run over the deceased who jumped from a
motorela while he was on his way to report the incident to
the police authorities. In this appeal, appellant claimed
that he should be acquitted of less serious physical
injuries as the same was caused by the failure of the driver
to balance the motorela when the deceased Achumbre
jumped out from the rear, and questioned the failure of the
appellate court to consider passion and voluntary
surrender as mitigating circumstances.
This Court holds that a person is responsible for all the
consequences of his unlawful or wrongful act although
the consequences were different from those which he
originally intended. Thus, appellant is liable for the
physical injuries sustained by the Requerme spouses.
EcHIDT
To appreciate passion, there must be a sufficient cause to
produce loss of self-control and to overcome reason and
is not manifested by the unreason resulting from a quarrel
or fight which does not deprive a person of his sanity and
self-control.
Voluntary surrender cannot be appreciated where
appellant did not surrender but was apprehended when his
vehicle stopped due to a flat tire.
Exemplary damages cannot be awarded in the absence of
any aggravating circumstance.
The award of moral damages is reduced to P50,000.00 in
light of the purpose for making such award, which is to
compensate the heirs for injuries to their feelings and not
to enrich them.
Moral damages are recoverable where the criminal
offense resulted in physical injuries.
SYLLABUS
1. CRIMINAL LAW; MITIGATING
CIRCUMSTANCES; PASSION; MUST BE
SUFFICIENT TO PRODUCE LOSS OF SELF-
CONTROL AND TO OVERCOME REASON. — For
passion to be considered as a mitigating circumstance,
facts must be proved to show causes sufficient to produce
loss of self-control and to overcome reason. The turmoil
and unreason which naturally result from a quarrel or
fight should not be confused with the sentiment or
excitement in the mind of a person injured or offended to
such a degree as to deprive him of his sanity and self-
control.
2. ID.;ID.;VOLUNTARY SURRENDER; NOT
APPRECIATED WHERE ACCUSED STOPPED
BECAUSE HIS VEHICLE SUFFERED A FLAT TIRE.
— The mitigating circumstance of voluntary surrender
cannot be appreciated. Evidence shows that accused-
appellant was further pursued by the police. Appellant
himself testified that he stopped his vehicle just after the
police mobile stopped but admitted having "stopped
farther than the police mobile." SPO3 Catiil further
testified that appellant did not surrender but only stopped
his vehicle when its right tire was already flat. His
testimony was corroborated by PO3 Makiling who was
patrolling the portion of Marcos Bridge. He testified that
he saw the vehicle being driven by accused-appellant
already destroyed and the right portion of the vehicle a
little bit lower as it was running flat. Clearly, accused-
appellant could have eluded arrest but his situation
became futile when his vehicle suffered a flat tire.
3. ID.;DEATH PENALTY; CANNOT BE AFFECTED
BY ANY MITIGATING OR AGGRAVATING
CIRCUMSTANCE. — Under Article 48 of the Revised
Penal Code, the penalty for a complex crime shall be the
maximum period of the penalty for the most serious
crime. The crime was committed in 1992 where the
penalty for the crime of murder, which is the most serious
crime, was reclusion temporal in its maximum period to
death under Article 248 of the Revised Penal Code. The
death penalty being the maximum period of the penalty
for murder should be imposed for the complex crime of
murder with less serious physical injuries considering that
under Article 63, an indivisible penalty cannot be affected
by the presence of any mitigating or aggravating
circumstance. And, consonant with the ruling to People
vs. Muñoz that Article III, Section 19 (1) of the 1987
Constitution did not change the period of the penalty for
murder except only insofar as it prohibits the imposition
of the death penalty and reduces it to reclusion
perpetua,the Court of Appeals was correct in imposing the
penalty of reclusion perpetua.
4. CIVIL LAW; DAMAGES; EXEMPLARY
DAMAGES; AWARD NOT JUSTIFIED IN ABSENCE
OF ANY AGGRAVATING CIRCUMSTANCE. —
There is, however, no justification for the award of
exemplary damages there being no aggravating
circumstance; hence, the same should be deleted.
5. ID.;ID.;MORAL DAMAGES; GRANTED TO
COMPENSATE HEIRS FOR INJURIES TO THEIR
FEELINGS AND NOT TO ENRICH THEM. — Anent
the award of moral damages, his widow testified that she
was sad and worried for the children and their future and
that there were nights that she cannot sleep. The award of
moral damages in favor of the heirs of the deceased
Achumbre is in order, however, the amount should be
reduced to P50,000.00 in light of the purpose for making
such award, which is to compensate the heirs for injuries
to their feelings and not to enrich them.
6. ID.;ID.;ACTUAL DAMAGES; CLAIM MUST BE
SUPPORTED BY COMPETENT DOCUMENT. — As
to the award of actual damages, the same cannot be based
on the allegation of a witness without any competent
document to support such claim. Proof is required to be
adequately supported by receipts. A party is entitled to
compensation only for such pecuniary loss suffered by
him as he has duly proved.
7. ID.;ID.;LOSS OF EARNING CAPACITY;
GRANTED IN ADDITION TO CIVIL INDEMNITY. —
The lower courts failed to consider the fact that under
Article 2206 of the Civil Code, in addition to civil
indemnity of P50,000.00 for the death of the victim, the
accused-appellant is liable for the loss of earning capacity
of the deceased and such indemnity should be paid to the
heirs of the latter.
8. ID.;ID.;MORAL DAMAGES; RECOVERABLE
SINCE CRIMINAL OFFENSE RESULTED IN
PHYSICAL INJURIES. — Pursuant to Article 2202 of
the Civil Code, accused-appellant is liable for all damages
which are the natural and probable consequences of the
act or omission complained of. Moral damages are
recoverable since the criminal offense resulted in physical
injuries of the spouses Requerme. The total amount of
P20,000.00 as moral damages in favor of the spouses
Requerme is believed to be reasonable.
9. ID.;ID.;ACTUAL DAMAGES; MEDICAL
EXPENSES; MUST BE DULY SUPPORTED BY
RECEIPTS. — Anent the amount of P1,000.00
representing medical expenses awarded to the spouses
Felipe and Rosita Requerme, the prosecution presented
the doctor's prescription marked as Exhibits "B" to "B-3"
but no receipts were presented. Medical expenses are in
the nature of actual damages which should be duly proved
and the award for actual damages cannot be made on the
basis of the doctor's prescription alone. There must be
evidence of the actual amount thereof. Likewise the
award of exemplary damages to the spouses Requerme
should be deleted for lack of basis. aDATHC
DECISION
GONZAGA-REYES, J p:
This case was certified for review pursuant to Section 13,
Rule 124 of the Rules on Criminal Procedure by the Court
of Appeals 1 which found accused-appellant Thadeos
Enguito guilty beyond reasonable doubt of the crime of
murder with less serious physical injuries and sentenced
him to suffer the penalty of reclusion perpetua. cdtai
Thadeos Enguito was charged with the crime of Murder
with Multiple Less Serious Physical Injuries under the
following information:
"That on September 22, 1991 at about 3:00 o'clock early
dawn at Marcos Bridge, Cagayan de Oro City,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused with intent to kill and
with treachery and with evident premeditation, did then
and there willfully, unlawfully, and feloniously chased,
bumped and hit the motorela which Wilfredo S.
Achumbre was riding with his Ceres Kia automobile
bearing Plate No. 722 and as a consequence thereof, the
motorela was dragged and fell on the road causing the
driver (Felipe Requerme) and its passenger Rosita
Requerme to sustain serious bodily injuries while the
deceased Wilfredo S. Achumbre was able to run towards
the railings at Marcos Bridge but accused with intent to
kill him hit instantaneously immediately rammed and hit
him with his driven vehicle cutting his right leg and
thereafter run over him thereby causing mortal harm on
his body which was the direct and immediate cause of his
instantaneous death. dctai
That the wrong done in the commission of the crime was
deliberately augmented by causing other wrong not
necessary for its commission.
Contrary to Article 248 of the Revised Penal Code in
relation to paragraphs 13 and 21 of Article 14 thereof." 2
Upon arraignment, accused, assisted by counsel, pleaded
not guilty to the crime charged. 3
Trial ensued. The prosecution presented the following
witnesses: Felipe Requerme, Rosita Requerme, PO3
Ricardo Catiil, SPO1 Albert Calingasan, PO3 Virgilio
Maquiling, SPO1 Franklin Alamban, Sr.,Georgita
Achumbre, Dr. Sofronio Sescon and Dr. Apolinar
Vacalares. The defense presented Alberto Chaves, Anita
Enguito and the accused himself.
In his brief, accused-appellant states that he is in
conformity with the findings of facts of the court a quo 4
which we quote hereunder:
"Prosecution's Evidence;
From the testimonies of prosecution witnesses Felipe
Requerme, Rosita Requerme, PO3 Ricardo Catiil, SPO1
Albert Calingasan, PO3 Virgilio Maquiling, SPO1
Franklin Alamban, Sr.,complainant Georgita Achumbre,
wife of the deceased, Dr. Sofronio Sescon and Dr.
Apolinar Vacalares, it was established that at about 3:00
o'clock dawn of September 22, 1991, Felipe Requerme, a
motorela driver who, while driving his motorela with his
wife on board, from Lapasan towards Poblacion, Cagayan
de Oro City, picked up a passenger near the Nazareno
church. The passenger was later identified as the
deceased, Engr. Wilfredo Achumbre. Achumbre asked
him to bring him across the Marcos bridge towards his
home. After traveling a distance of 300 meters more or
less and near the Sacred Heart of Jesus Montessori
School, Requerme's motorela was bumped by a white
motor vehicle. The vehicle kept pushing the motorela
causing it to run very fast for the next 400 meters until it
reached the area in front of Wheels Marketing. Because
of the violent push the motorela turned around facing the
direction from where it came from and fell on its right
side.
Felipe Requerme screamed for help thinking that his wife
was pinned underneath. A tamaraw pick-up stopped near
them and he immediately informed that they were
intentionally hit by a white vehicle. A short time later a
police mobile patrol arrived and with the assistance of the
people around, they pushed the motorela to return it to its
natural position. Requerme and his wife were brought to
the Operation Kahusay ug Kalinaw (OKK),a 24-hour
police station where all victims of crimes report in
Cagayan de Oro. At the OKK the driver of the white
service pick-up who bumped his motorela arrived.
Requerme identified the driver as Thadeos Enguito whom
he pointed inside the courtroom. Later, Requerme and his
wife were brought to the city hospital for medical check-
up. They were also brought to the Northern Mindanao
Regional Training Hospital to identify the deceased. The
following day the Requerme spouses went to the police
station and executed their affidavits which are attached to
the records. LLphil
Felipe Requerme presented a medical certificate issued by
the examining physician to establish the injuries he
suffered (Exh."A").Likewise, he presented prescription
for medicines and he said that he spent a total amount of
P1,000.00 (Exhs. "B","B-1","B-2","B-3").
Rosita Requerme was riding along with his husband and
she noticed that when they were near the Sacred Heart of
Jesus Montessori School their motorela was bumped by a
white motor vehicle. She observed that the face of the
driver of the vehicle bumping them was bloody. Mrs.
Requerme shouted and waived her hand signaling the
driver to stop but the driver kept pushing the motorela
violently. The push was so fast and strong that the
motorela was already uncontrolled and running very fast.
Their passenger jumped out when they were already at the
Marcos bridge near the Wheels Marketing. Then the
motorela made a 180 degrees turn facing the direction
where they came from and fell on its right side. Struggling
out of the motorela she noticed that the white vehicle went
up the elevated catwalk or pathway pursuing Achumbre
who was hit when he was already at the railing
(barandilla).Then she observed that the white vehicle
drove across the bridge towards Iligan City. At the OKK
she saw the accused brought by policemen and she asked
him why he bumped them and the accused answered "I
have to do it Manang because look at me now" (TSN,
Dec. 16, 1991).She also observed that the face of the
accused was bleeding. She identified the accused in court,
as the same person she saw at the OKK. She was treated
at the hospital and was issued a medical certificate (Exh.
"C").Together with her husband, they spent P1,000.00 for
medicines.
PO3 Ricardo Catiil was assigned as driver of the mobile
division patrol no. 07 on September 22, 1991, together
with SPO1 Albert Calingasan and Armando Mana. They
parked the mobile car at the other end of the Marcos
bridge along C. M. Recto Avenue at about 2:30 in the
morning. Shortly thereafter, he saw a car coming from
Cagayan de Oro Poblacion crossing the bridge running
fast with a damage on its right portion. He estimated the
speed at 80 kph. Observing something unusual they
pursued the vehicle, switched on the siren and caught up
with the vehicle at Km. 3, 2.6 kilometers from the place
of incident. Catiil and the other two policemen alighted
from the car and accosted the driver and brought him to
the OKK. He noticed that the face of the driver was
bleeding which he believed may have been caused by the
splintered windshield. Examining the vehicle, they
noticed that in addition to the broken windshield, the right
portion of the signal light and the head light were also
damaged. The right front tire was flat. When asked, the
driver admitted that he bumped someone at the Marcos
bridge. dctai
SPO1 Albert Calingasan, supporting the testimony of
Ricardo Catiil who was the driver of the mobile patrol car
07, declared that they were at the middle of the Marcos
bridge when they saw a Ceres Kia car running fast and
they pursued it until it stopped at Km. 3. After delivering
the accused at the OKK, Calingasan together with his two
companions drove back to the place of incident. They saw
blood on the street. There were also bits of human flesh
found on the cemented road and the right leg was
completely severed. Calingasan explained that when they
followed at the hospital and viewed the body of the
victim, they saw that the right leg was severed from the
body.
PO3 Virgilio Maquiling was assigned with mobile patrol
05 of the Cagayan de Oro Police Station at about 2:00
o'clock dawn of September 22, 1991. They were on patrol
near the Golez residence almost near the foot of the
Marcos bridge facing Iligan City. Maquiling and his
companions saw a Ceres Kia coming from Liceo de
Cagayan and turned right at the bridge and went towards
the place where the incident occurred. Maquiling
observed that the way the vehicle was driven, the driver
may have been drunk. Twenty minutes later, the same
vehicle came back with its right portion damaged.
Suspecting that something untoward may have occurred,
he called mobile patrol 101 to intercept the vehicle. Not
long after a PU driver informed Maquiling and his
companions that a motorela was involved in a traffic
accident at the other end of the bridge near Licoan Bakery
and Restaurant. Proceeding to the place of incident, he
saw a body of a person at Abellanosa Street which is
located immediately below the bridge about 10 feet high.
He also saw that the right leg of the person was hanging
at the Marcos bridge railing about seven meters away
from the body. Maquiling, using his radio, called the
paramedic. They immediately brought the body of the
victim to the NMRTH. Maquiling inspected the crime
scene and he observed that the latex paint of the railing
was scraped and the trailing was dented. prLL
Dr. Sofronio Sescon identified the medical certificate and
he described his findings as follows:
"October 19, 1991
MEDICAL CERTIFICATE
TO WHOM IT MAY CONCERN:
THIS IS TO CERTIFY that MR. FELIPE
REQU(I)ERME, 42 years old, of Consolacion, Cagayan
de Oro City was examined by the undersigned in this
hospital on September 22, 1991 at about 3:12 A.M. for:
"Abrasions, about 2 x 4 cm. and 0.5 x 2 cm.,with
hematoma, Right lumbar area."
Healing Period: Two (2) weeks barring complications.
This certificate is issued for whatever purpose it may
serve.
(SGD.) SOFRONIO C. SESCON, M.D.
Medical Officer"
Dr. Rogelio Gannaban examined Rosita Requerme at
about 3:00 o'clock dawn of September 22, 1991 and he
issued a medical certificate (Exh. "C") indicating the
following injuries:
"October 19, 1991
MEDICAL CERTIFICATE
TO WHOM IT MAY CONCERN:
THIS IS TO CERTIFY that MRS. ROSITA REQU(I)
ERME, 41 years old, of Consolacion, Cagayan de Oro
City was examined by the undersigned in this hospital on
September 22, 1991 at about 3:12 a.m. for:
- Contusion 2.0 x 6.0 cm. Right arm, M/3, medial;
- Contusion 3.0 x 4.0 cm. Right leg, P/3, anterior
HEALING PERIOD: Three to Five (3-5) days barring
complications.
This certificate is issued for whatever purpose it may
serve.
(SGD.) ROGELIO R. GANNABAN, M.D.
Medical Officer IV"
Dr. Apolinar Vacalares, chief of the Pathology
Department of the NMRTH identified the death
certificate of Wilfredo Achumbre (Exh. "D","D-1").He
conducted an autopsy on the cadaver of Wilfredo
Achumbre and the following are his external findings:
"xxx xxx xxx
Prosecutor Gamotin:
Q. Now, you made mention that you were the one who
conducted on the cause of death of the victim on this
particular case — will you please tell the honorable court
what was your findings on the victim?
A. On the autopsy table the external findings are — 1)
There was a laceration of the forehead and contusions on
the left forehead, and 2.) Multiple injuries on the head and
right extremity, traumatic." (TSN, Dec. 19, 1991, p. 9)
xxx xxx xxx"
He also presented an autopsy table showing a diagram of
the human body showing therein the injuries suffered by
the victim (Exh. "E","E-1","E-2").In the examining the
body he saw that the right leg was cut at the upper third
just below the knee. In the diagram of the human body he
identified the injuries on the brain (Exh. "E-5","E-6","E-
7","E-8").The complete findings of Dr. Vacalares are as
follow: LLjur
"xxx xxx xxx
Prosecutor Gamotin:
Q: Now, what was your findings on the brain of the victim
in this case?
A: In opening the brain or the skull, there were blood clots
on the external portion of the covering portion and below
the distal portion or surface, again there was a blood clot
and then the thin membrane that covers the brain is also
covered with blood.
Q: You mean to tell this honorable court hemorrhage on
the brain?
A: There was a massive hemorrhage." (TSN, Dec. 19,
1991, p. 12)
When asked by the defense counsel regarding a fall from
a certain height which would result to a damage of the
brain, Dr. Vacalares answered:
"xxx xxx xxx
A: With this drawing with multiple injuries on the leg, it
could have fall from a certain height fifty feet or twenty
feet but not from five feet height or even ten feet height."
(TSN, Dec. 19, 1991, p. 21)
Dr. Vacalares declared that the victim suffered massive
hemorrhage and, in fact, it was impossible for the victim
to survive even with the most modern medical attendance.
There was massive accumulation of clot and no amount
of surgery could have saved the victim. Death was almost
instantaneous.
Georgita Achumbre, wife of the deceased, declared that
her husband used to receive P5,000.00 monthly salary and
with other incentives, giving him a total income of
P10,000.00 a month. They have 5 children namely:
Charles Ian (9 yrs. old.),Lou Aiza (6 yrs. old.),Charmie
Aimee (3 yrs. old.),Charlene Irene (1 yr. and 10 mos.
old),and Christine Ivy Lou ( 6 mos. old).
Georgita Achumbre knows the accused because he used
to come to their house and he and her husband were both
employed with G & P Builders and they used to play
basketball together. At 5:00 o'clock in the morning of
September 22, 1991 she received news of her husband's
death. Together with her brother-in-law she proceeded to
the NMRTH and saw the body of her husband lying on a
table and covered with white cloth. She was informed that
her husband was dead on arrival. From the hospital she
went to the police station to retrieve the wallet of her
husband which contained P3,000.00. When she
confronted the accused at the police station why he killed
her husband, Thadeos Enguito answered that he was
mauled by her husband and it was an act of revenge. The
accused explained that the victim became angry when he
was made to pay the bills of Enguito's friend who was
seated on the other table. LLpr
Expenses she incurred as a result of her husband's death
are the following:
1) P7,000.00 for the Greenhills Funeral Homes;
2) P9,000.00 for Divine Shepherd Memorial Park;
3) P5,000.00 for vigil and prayers for 10 days;
4) P2,000.00 for the 40th day prayer; and
5) P20,000.00 attorney's fees.
She leaves to the discretion of the Court the moral and
exemplary damages.
Defendant's Evidence:
Maintaining that the death of the victim was purely an
accident, accused Thadeos Enguito, a co-employee of the
victim, declared that he and the deceased Wilfredo
Achumbre were close friends and they used to play
basketball together. He is also acquainted with the wife of
the victim because he used to go to their residence.
Enguito maintained that on September 22 at about 3:00
o'clock in the morning he was about to bring Achumbre
to his house located at Kauswagan near Kong Hua School.
Enguito was driving a Ceres Kia pick-up owned by G &
P Builders Construction. At the crossroads going to the
house of Achumbre, he (Achumbre) refused to step down,
compelling Enguito to go back to where they came from
at Divisoria. Enguito observed that Achumbre was
already drunk. Achumbre invited Enguito to eat bulalo
but the latter refused and because Achumbre still refused
to alight from the pick-up, Enguito decided to go home to
his residence at Gaabucayan-Osmeña Extension passing
by the Coca-cola plant. Nearing the house of Enguito,
Achumbre suddenly stepped on the brakes and attempted
to take over the vehicle. The Ceres Kia stopped and
Enguito quickly jumped out and run toward his house
with Achumbre pursuing him. After a short while
Achumbre was able to catch up with Enguito and he
(Achumbre) said, "You are a braggart" (TSN, May 18,
1992, p. 17) and mauled him. Enguito failed to put up a
fight because Achumbre was very much bigger having a
height of approximately 5'11".Achumbre's blows resulted
to Enguito's dizziness and when his mind was cleared, he
noticed that Achumbre already left. The Ceres Kia pick-
up which, Achumbre wanted to take away from him was
left parked near Enguito. LibLex
Accused Enguito drove back the Ceres Kia in order to
report the incident to the place authorities. Turning
towards Recto Avenue he saw a motorela which had
Achumbre as passenger cruising along Recto Avenue a
little beyond Nazareno Church. Enguito followed the
motorela with intentions of compelling Achumbre to
surrender to the police having observed earlier that a
police mobile patrol was parked at the other end of the
Marcos bridge. Still very closely following the motorela,
Achumbre suddenly jumped towards the right of the
Ceres Kia and when he attempted to cross the road
towards Wheels Marketing he was hit (TSN, May 18,
1992, p. 23-24).Enguito attempted to apply the brakes but
it was so sudden and Achumbre was so near. Without
verifying what happened to Achumbre, Enguito drove on
across the bridge passing by a patrol car and stopping near
the Km. 3 at a distance of 1.7 kilometers beyond the
mobile patrol parked at the foot of the other side of the
bridge towards Iligan City. LLjur
In trying to avoid hitting Achumbre, the Ceres Kia hit the
railings damaging the windshield, the right front
headlight and the right siding of the vehicle. Noticing the
police car pursuing him, Enguito stopped his vehicle and
approached the policeman. He was brought to the OKK
where he was informed that Achumbre was killed. On
September 23 at the police station during confrontation,
Mrs. Achumbre asked Enguito why he killed her husband
and he explained that it was not intentional (TSN, May
18, 19, p. 26-27). cda
On cross examination the accused claimed that the
bumper of the Ceres Kia hit the back portion of the
motorela. He also maintained that other than the driver
there was a woman passenger together with Achumbre.
He affirmed that Achumbre having mauled him and
bloodied his face he was very angry with the latter.
Enguito saw the woman waiving at him to stop but he still
continued to very closely follow even hitting the
motorela. The accused did not apply the brake because he
was afraid that his vehicle might turn turtle. Asked why
he did not stop his vehicle after hitting the deceased he
explained that there were people gathered from the
distance and he was afraid that he might be harmed by
them. When again asked why he did not stop at the middle
of the bridge, he said that he already saw the mobile patrol
and he directly went to them. llcd
As character witness the accused presented Alberto
Chaves, 76 years old, former mayor of Kalilangan,
Bukidnon where the accused grew up. Mr. Chaves was
former superintendent of the defunct NARRA and in 1964
he was municipal mayor of Pangantucan, an adjoining
municipality of Kalilangan. He was also elected
municipal mayor of Kalilangan in 1968 up to 1986. He
knew very well the accused Thadeos Enguito as a young
boy. The father of the accused was a construction foreman
in the municipal government where he was mayor and the
wife was employed with the NARRA assigned under the
health services. During all the years when the accused was
residing in Kalilangan, Bukidnon he was never involved
in any crime. As far as he knows, he is a good boy and
this charge against him (Enguito) is a complete surprise
to him.
Anita Enguito, wife of the accused, testified that they
have been married for nine years and they have four
children, the eldest being 9 years old and the youngest 3
years old. As far as she can remember the deceased
Wilfredo Achumbre and her husband were good friends
and she did not know of any quarrel that transpired
between them." 5 cdll
After trial, the court a quo rendered judgment on October
5, 1992 finding accused guilty beyond reasonable doubt
of the crime of Homicide with Less Serious Physical
Injuries. The dispositive portion 6 of which reads:
"IN VIEW OF THE FOREGOING, the Court is of the
considered opinion and so holds that the prosecution
clearly established beyond reasonable doubt that the
crime of homicide with less serious physical injuries was
committed by the accused Thadeos Enguito with the
aggravating circumstance of the use of motor vehicle
(Art. 14, par. 20, RPC) without any mitigating
circumstance and hereby sentences him to an
indeterminate sentence ranging from TWELVE (12)
YEARS of prision correccional as minimum to TWENTY
(20) YEARS of reclusion temporal as maximum penalty.
cdrep
On the civil liability, the accused is hereby ordered to pay
the following:
1) P50,000.00 representing death compensation;
2) P23,000.00 representing funeral expenses;
3) P200,000.00 representing moral and exemplary
damages;
4) P20,000.00 attorney's fee.
The accused is likewise ordered to pay spouses Felipe and
Rosita Requerme the following:
1) P1,000.00 representing medical expenses;
2) P30,000.00 representing moral and exemplary
damages."
On appeal, the Court of Appeals found that since the
prosecution's evidence showed that accused killed the
victim by means of motor vehicle, he should be guilty of
the crime of murder and not of homicide. The dispositive
portion 7 of the Decision dated October 17, 1996 reads:
"WHEREFORE, the appealed decision is hereby
AFFIRMED with the following modification: appellant
Thadeos Enguito is hereby found guilty beyond
reasonable doubt of the crime of MURDER WITH LESS
SERIOUS PHYSICAL INJURIES and is sentenced to
suffer the penalty of Reclusion Perpetua.Pursuant to
Section 13 (par. 2) of Rule 124 of the Revised Rules on
Criminal Procedure, let this case be certified and the
entire records thereof be elevated to the Supreme Court
for review. Costs against the appellant." LLjur
Accused-appellant filed his brief raising the following
assignment of errors:
"1. the Honorable Third Division of the Court of Appeals
committed error in finding that accused is guilty of less
serious physical injuries suffered by Felipe Requerme.
"2. The Honorable Third Division of the Court of Appeals
committed grave abuse of discretion in affirming the
conviction of accused for the Crime of Murder with the
use of motor vehicle."
In the first assigned error, accused-appellant avers that no
evidence was presented by the prosecution to show that
the motorela driven by Felipe Requerme suffered any
damage as a result of the alleged bumping. Appellant
argues that the motorela turned on its left side in a reverse
direction because of the act of Felipe who was not able to
balance the motorela when the deceased Achumbre
jumped out from the rear. Appellant contends that he
could not be guilty of any physical injuries suffered by the
spouses Requerme because the direct cause of the
motorela turning on the left side was the act of Felipe in
guiding the vehicle while the proximate cause is the thrust
which resulted when Achumbre suddenly jumped out of
the motorela.
The argument is devoid of merit. The defense disregards
the basic rule in criminal law that a person is responsible
for all the consequences of his unlawful or wrongful act
although such consequences were different from those
which he originally intended. 8 Even if it be assumed that
the real intention of accused-appellant was to surrender
the victim to the police for mauling him, his act of
pursuing the victim, who was a passenger of the motorela,
resulted in the injuries of the driver and the other
passenger of the motorela. Appellant himself testified 9
that when he followed the motorela, he was "very near"
10 and that he saw the deceased Achumbre jump out on
the right side of the motorela but he went ahead; he
allegedly "tried to evade, but he was so near." 11 Upon
seeing that Achumbre was trying to jump out of the
motorela, accused-appellant should have known that by
closely following, pushing and bumping the motorela, he
could injure the passengers, which is what happened in
this case. Moreover, accused-appellant ignored the pleas
of Rosita Requerme, the other passenger and wife of the
driver of the motorela, for him to stop bumping and
pushing the motorela. 12 Instead, he persisted resulting in
the motorela turning on its side and in the opposite
direction. Verily, the act of accused-appellant in
relentlessly pursuing the motorela is a manifestation of his
intention to perpetrate the crime. LLphil
Appellant further contends that he did not intentionally
choose the motor vehicle he was driving as a means of
committing the offense, and that at most, the vehicle was
the only available means to stop the deceased from
escaping. He argues that it was his intention to apprehend
and surrender the deceased to the police for his previous
act of mauling him but in the process, he killed the
deceased. LLpr
The indictment against accused-appellant is murder
attended by the use of motor vehicle. The use of a motor
vehicle qualifies the killing to murder if the same was
perpetrated by means thereof. 13 Appellant's claim that he
merely used the motor vehicle, Kia Ceres van, to stop the
victim from escaping is belied by his actuations. By his
own admission, he testified that there was a police mobile
patrol near the crossing. 14 Accused-appellant could have
easily sought the assistance of the police instead of taking
the law into his own hands. Moreover, accused-appellant
already noticed the deceased trying to jump out of the
motorela 15 but he still continued his pursuit. He did not
stop the vehicle after hitting the deceased 16 who was hit
when he (Achumbre) was at the railing of the Marcos
bridge. 17 Accused-appellant further used the vehicle in
his attempt to escape. He was already more than one (1)
kilometer away from the place of the incident that he
stopped his vehicle upon seeing the police mobile patrol
which was following him. 18
Appellant contends that he should have been convicted of
the crime of homicide with two (2) mitigating
circumstances of acting in passion and voluntary
surrender; and had the charge been homicide he could
have pleaded guilty. We find that these mitigating
circumstances cannot be appreciated in his favor.
Accused-appellant was allegedly "still very angry" 19
while he was following, bumping and pushing the
motorela which was in front of him. He was previously
mauled by the deceased and he was allegedly rendered
unconscious by the blows inflicted on him. When he
regained consciousness, he claims that he wanted to look
for a policeman to report that he was mauled. 20 Clearly,
accused-appellant's state of mind after he was mauled and
before he crushed Achumbre to death was such that he
was still able to act reasonably. In fact, he admitted having
seen a police mobile patrol nearby but instead, he chose
to resort to the dastardly act which resulted in the death of
Achumbre and in the injuries of the spouses Requerme.
For passion to be considered as a mitigating circumstance,
facts must be proved to show causes sufficient to produce
loss of self-control and to overcome reason. 21 The
turmoil and unreason which naturally result from a
quarrel or fight should not be confused with the sentiment
or excitement in the mind of a person injured or offended
to such a degree as to deprive him of his sanity and self-
control. 22
The mitigating circumstance of voluntary surrender
cannot be appreciated. Evidence shows that accused-
appellant was further pursued by the police. Appellant
himself testified that he stopped his vehicle just after the
police mobile stopped but admitted having "stopped
farther than the police mobile." 23 SPO3 Catiil further
testified that appellant did not surrender but only stopped
his vehicle when its right tire was already flat. 24 His
testimony was corroborated by PO3 Makiling who was
patrolling the portion of Marcos Bridge. He testified that
he saw the vehicle being driven by the accused-appellant
already destroyed and the right portion of the vehicle a
little bit lower as it was running flat. 25 Clearly, accused-
appellant could have eluded arrest but his situation
became futile when his vehicle suffered a flat tire. cdphil
The foregoing notwithstanding, the existence or non-
existence of a mitigating circumstance in the case at bar
will not affect the penalty to be imposed pursuant to
Article 63 of the Revised Penal Code. The crime
committed by accused-appellant is the complex crime of
murder with less serious physical injuries. Under Article
48 of the Revised Penal Code, the penalty for a complex
crime shall be the maximum period of the penalty for the
most serious crime. The crime was committed in 1992
where the penalty for the crime of murder, which is the
most serious crime, was reclusion temporal in its
maximum period to death under Article 248 of the
Revised Penal Code. The death penalty being the
maximum period of the penalty for murder should be
imposed for the complex crime of murder with less
serious physical injuries considering that under Article
63, an indivisible penalty cannot be affected by the
presence of any mitigating or aggravating circumstance.
26 And, consonant with the ruling in People vs. Muñoz
27 that Article III, Section 19 (1) of the 1987 Constitution
28 did not change the period of the penalty for murder
except only in so far as it prohibits the imposition of the
death penalty and reduces it to reclusion perpetua,the
Court of Appeals was correct in imposing the penalty of
reclusion perpetua. cdtai
There is a need to modify the award of damages to the
heirs of the victim Achumbre. We affirm the award of
P50,000.00 as civil indemnity for death to the heirs of the
deceased Achumbre. There is, however, no justification
for the award of exemplary damages there being no
aggravating circumstance; 29 hence, the same should be
deleted.
Anent the award of moral damages, his widow testified
that she was sad and worried for the children and their
future and that there were nights that she cannot sleep. 30
The award of moral damages in favor of the heirs of the
deceased Achumbre is in order, however, the amount
should be reduced to P50,000.00 in light of the purpose
for making such award, which is to compensate the heirs
for injuries to their feelings and not to enrich them. 31
As to the award of actual damages, the same cannot be
based on the allegation of a witness without any
competent document to support such claim. 32 Proof is
required to be adequately supported by receipts. 33 The
amount of P23,000.00 awarded by the trial court as
funeral expenses should be reduced. Georgita Achumbre,
widow of the deceased-victim, testified that she spent
P7,000.00 for embalming and funeral cortege as
evidenced by a receipt issued by the Green Hills
Memorial Homes which is marked as Exhibit "H" 34 and
another P9,300.00 as internment fee as shown in the
receipt issued by the Divine Shepherd Memorial Gardens,
Inc. which is marked as Exhibit "I". 35 She also spent
"about P5,000.00 or more" for a one (1) week vigil, but
no receipt was presented; 36 hence, the same cannot be
included in the award for actual damages. 37 A party is
entitled to compensation only for such pecuniary loss
suffered by him as he has duly proved. 38 The amount of
"not less than P2,000.00" allegedly spent during the 40th
day 39 cannot likewise be considered as the same was
incurred after a considerable lapse of time from the burial
of the victim. 40 Hence, only the total amount of
P16,300.00 as actual damages should be awarded to the
heirs of the deceased. cdphil
The lower court failed to consider the fact that under
Article 2206 of the Civil Code, in addition to civil
indemnity of P50,000.00 for the death of the victim, the
accused-appellant is liable for the loss of earning capacity
of the deceased and such indemnity should be paid to the
heirs of the latter. The widow of deceased Achumbre
testified that before her husband died, he was working
with G & P Builders as a licensed civil engineer receiving
salary and other incentives in the amount of "more or less,
a total of P10,000.00 a month" or a gross annual income
of P120,000.00. They had five (5) children. 41 At the time
Achumbre died, he was 38 years old. 42 The deceased's
loss of earning capacity is computed as follows:
net earning = life expectancy
capacity (x)
X = 2(80-age at time of death)
——————————
3
= 2(80)-38)
————
3
= 28 x P60,000.0
= P1,680.00
Pursuant to Article 2202 of the Civil Code, accused-
appellant is liable for all damages which are natural and
probable consequences of the act or omission complained
of. Moral damages are recoverable since the criminal
offense resulted in physical injuries 43 of the spouses
Requerme. The total amount of P20,000.00 as moral
damages in favor of the spouses Requerme is believed to
be reasonable.
Anent the amount of P1,000.00 representing medical
expenses awarded to the spouses Felipe and Rosita
Requerme, the prosecution presented the doctor's
prescription marked as Exhibits "B" to "B-3" 44 but no
receipts were presented. Medical expenses are in the
nature of actual damages which should be duly proved
and the award for actual damages cannot be made on the
basis of the doctor's prescriptions alone. There must be
evidence of the actual amount thereof. Likewise the
award of exemplary damages to the spouses Requerme
should be deleted for lack of basis. LLphil
WHEREFORE, the decision convicting accused-
appellant Thadeos Enguito of the complex crime of
Murder with Less Serious Physical Injuries and
sentencing him to the penalty of reclusion perpetua is
hereby AFFIRMED with the MODIFICATION that
accused-appellant is ordered to pay the heirs of deceased
x Achumbre
Wilfredo gross less living
the amount of P50,000.00 as civil
indemnity; P1,680,000.00 for loss of earning capacity;
annual expenses
P16,300.00 as actual damages; P50,000.00 as moral
damages; and to further pay (50%
income the spouses Felipe and Rosita
of GAI)
Requerme the amount of P20,000.00 as moral damages.
cdtai
SO ORDERED (GAI)
||| (People v. Enguito, G.R. No. 128812, [February 28,
2000], 383 PHIL 412-434)
[G.R. No. 180016. April 29, 2014.]
LITO CORPUZ, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
PERALTA, J p:
This is to resolve the Petition for Review on Certiorari,
under Rule 45 of the Rules of Court, dated November 5,
2007, of petitioner Lito Corpuz (petitioner), seeking to
reverse and set aside the Decision 1 dated March 22, 2007
and Resolution 2 dated September 5, 2007 of the Court of
Appeals (CA), which affirmed with modification the
Decision 3 dated July 30, 2004 of the Regional Trial
Court (RTC), Branch 46, San Fernando City, finding the
petitioner guilty beyond reasonable doubt of the crime of
Estafa under Article 315, paragraph (1), sub-paragraph
(b) of the Revised Penal Code. TADIHE
The antecedent facts follow.
Private complainant Danilo Tangcoy and petitioner met at
the Admiral Royale Casino in Olongapo City sometime
in 1990. Private complainant was then engaged in the
business of lending money to casino players and, upon
hearing that the former had some pieces of jewelry for
sale, petitioner approached him on May 2, 1991 at the
same casino and offered to sell the said pieces of jewelry
on commission basis. Private complainant agreed, and as
a consequence, he turned over to petitioner the following
items: an 18k diamond ring for men; a woman's bracelet;
one (1) men's necklace and another men's bracelet, with
an aggregate value of P98,000.00, as evidenced by a
receipt of even date. They both agreed that petitioner shall
remit the proceeds of the sale, and/or, if unsold, to return
the same items, within a period of 60 days. The period
expired without petitioner remitting the proceeds of the
sale or returning the pieces of jewelry. When private
complainant was able to meet petitioner, the latter
promised the former that he will pay the value of the said
items entrusted to him, but to no avail.
Thus, an Information was filed against petitioner for the
crime of estafa, which reads as follows:
That on or about the fifth (5th) day of July 1991, in the
City of Olongapo, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, after
having received from one Danilo Tangcoy, one (1) men's
diamond ring, 18k, worth P45,000.00, one (1) three-baht
men's bracelet, 22k, worth P25,000.00; one (1) two-baht
ladies' bracelet, 22k, worth P12,000.00, or in the total
amount of Ninety-Eight Thousand Pesos (P98,000.00),
Philippine currency, under expressed obligation on the
part of said accused to remit the proceeds of the sale of
the said items or to return the same, if not sold, said
accused, once in possession of the said items, with intent
to defraud, and with unfaithfulness and abuse of
confidence, and far from complying with his aforestated
obligation, did then and there wilfully, unlawfully and
feloniously misappropriate, misapply and convert to his
own personal use and benefit the aforesaid jewelries (sic)
or the proceeds of the sale thereof, and despite repeated
demands, the accused failed and refused to return the said
items or to remit the amount of Ninety-Eight Thousand
Pesos (P98,000.00), Philippine currency, to the damage
and prejudice of said Danilo Tangcoy in the
aforementioned amount.
CONTRARY TO LAW.
On January 28, 1992, petitioner, with the assistance of his
counsel, entered a plea of not guilty. Thereafter, trial on
the merits ensued.
The prosecution, to prove the above-stated facts,
presented the lone testimony of Danilo Tangcoy. On the
other hand, the defense presented the lone testimony of
petitioner, which can be summarized, as follows:
Petitioner and private complainant were collecting agents
of Antonio Balajadia, who is engaged in the financing
business of extending loans to Base employees. For every
collection made, they earn a commission. Petitioner
denied having transacted any business with private
complainant. However, he admitted obtaining a loan from
Balajadia sometime in 1989 for which he was made to
sign a blank receipt. He claimed that the same receipt was
then dated May 2, 1991 and used as evidence against him
for the supposed agreement to sell the subject pieces of
jewelry, which he did not even see.
After trial, the RTC found petitioner guilty beyond
reasonable doubt of the crime charged in the Information.
The dispositive portion of the decision states:
WHEREFORE, finding accused LITO CORPUZ
GUILTY beyond reasonable doubt of the felony of Estafa
under Article 315, paragraph one (1), subparagraph (b) of
the Revised Penal Code;
there being no offsetting generic aggravating nor ordinary
mitigating circumstance/s to vary the penalty imposable;
accordingly, the accused is hereby sentenced to suffer the
penalty of deprivation of liberty consisting of an
imprisonment under the Indeterminate Sentence Law of
FOUR (4) YEARS AND TWO (2) MONTHS of Prision
Correccional in its medium period AS MINIMUM, to
FOURTEEN (14) YEARS AND EIGHT (8) MONTHS
of Reclusion Temporal in its minimum period AS
MAXIMUM; to indemnify private complainant Danilo
Tangcoy the amount of P98,000.00 as actual damages,
and to pay the costs of suit.
SO ORDERED.
The case was elevated to the CA, however, the latter
denied the appeal of petitioner and affirmed the decision
of the RTC, thus:
WHEREFORE, the instant appeal is DENIED. The
assailed Judgment dated July 30, 2004 of the RTC of San
Fernando City (P), Branch 46, is hereby AFFIRMED with
MODIFICATION on the imposable prison term, such
that accused-appellant shall suffer the indeterminate
penalty of 4 years and 2 months of prision correccional,
as minimum, to 8 years of prision mayor, as maximum,
plus 1 year for each additional P10,000.00, or a total of 7
years. The rest of the decision stands. TEIHDa
SO ORDERED.
Petitioner, after the CA denied his motion for
reconsideration, filed with this Court the present petition
stating the following grounds:
A. THE HONORABLE COURT OF APPEALS ERRED
IN CONFIRMING THE ADMISSION AND
APPRECIATION BY THE LOWER COURT OF
PROSECUTION EVIDENCE, INCLUDING ITS
EXHIBITS, WHICH ARE MERE MACHINE COPIES,
AS THIS VIOLATES THE BEST EVIDENCE RULE;
B. THE HONORABLE COURT OF APPEALS ERRED
IN AFFIRMING THE LOWER COURT'S FINDING
THAT THE CRIMINAL INFORMATION FOR
ESTAFA WAS NOT FATALLY DEFECTIVE
ALTHOUGH THE SAME DID NOT CHARGE THE
OFFENSE UNDER ARTICLE 315 (1) (B) OF THE
REVISED PENAL CODE IN THAT —
1. THE INFORMATION DID NOT FIX A PERIOD
WITHIN WHICH THE SUBJECT [PIECES OF]
JEWELRY SHOULD BE RETURNED, IF UNSOLD,
OR THE MONEY TO BE REMITTED, IF SOLD;
2. THE DATE OF THE OCCURRENCE OF THE
CRIME ALLEGED IN THE INFORMATION AS OF 05
JULY 1991 WAS MATERIALLY DIFFERENT FROM
THE ONE TESTIFIED TO BY THE PRIVATE
COMPLAINANT WHICH WAS 02 MAY 1991;
C. THE HONORABLE COURT OF APPEALS ERRED
IN AFFIRMING THE LOWER COURT'S FINDING
THAT DEMAND TO RETURN THE SUBJECT
[PIECES OF] JEWELRY, IF UNSOLD, OR REMIT
THE PROCEEDS, IF SOLD — AN ELEMENT OF THE
OFFENSE — WAS PROVED;
D. THE HONORABLE COURT OF APPEALS ERRED
IN AFFIRMING THE LOWER COURT'S FINDING
THAT THE PROSECUTION'S CASE WAS PROVEN
BEYOND REASONABLE DOUBT ALTHOUGH —
1. THE PRIVATE COMPLAINANT TESTIFIED ON
TWO (2) VERSIONS OF THE INCIDENT;
2. THE VERSION OF THE PETITIONER —
ACCUSED IS MORE STRAIGHTFORWARD AND
LOGICAL, CONSISTENT WITH HUMAN
EXPERIENCE;
3. THE EQUIPOISE RULE WAS NOT APPRECIATED
IN AND APPLIED TO THIS CASE;
4. PENAL STATUTES ARE STRICTLY CONSTRUED
AGAINST THE STATE.
In its Comment dated May 5, 2008, the Office of the
Solicitor General (OSG) stated the following counter-
arguments:
The exhibits were properly admitted inasmuch as
petitioner failed to object to their admissibility.
The information was not defective inasmuch as it
sufficiently established the designation of the offense and
the acts complained of.
The prosecution sufficiently established all the elements
of the crime charged.
This Court finds the present petition devoid of any merit.
The factual findings of the appellate court generally are
conclusive, and carry even more weight when said court
affirms the findings of the trial court, absent any showing
that the findings are totally devoid of support in the
records, or that they are so glaringly erroneous as to
constitute grave abuse of discretion. 4 Petitioner is of the
opinion that the CA erred in affirming the factual findings
of the trial court. He now comes to this Court raising both
procedural and substantive issues.
According to petitioner, the CA erred in affirming the
ruling of the trial court, admitting in evidence a receipt
dated May 2, 1991 marked as Exhibit "A" and its
submarkings, although the same was merely a photocopy,
thus, violating the best evidence rule. However, the
records show that petitioner never objected to the
admissibility of the said evidence at the time it was
identified, marked and testified upon in court by private
complainant. The CA also correctly pointed out that
petitioner also failed to raise an objection in his Comment
to the prosecution's formal offer of evidence and even
admitted having signed the said receipt. The established
doctrine is that when a party failed to interpose a timely
objection to evidence at the time they were offered in
evidence, such objection shall be considered as waived. 5
TCcSDE
Another procedural issue raised is, as claimed by
petitioner, the formally defective Information filed
against him. He contends that the Information does not
contain the period when the pieces of jewelry were
supposed to be returned and that the date when the crime
occurred was different from the one testified to by private
complainant. This argument is untenable. The CA did not
err in finding that the Information was substantially
complete and in reiterating that objections as to the
matters of form and substance in the Information cannot
be made for the first time on appeal. It is true that the
gravamen of the crime of estafa under Article 315,
paragraph 1, subparagraph (b) of the RPC is the
appropriation or conversion of money or property
received to the prejudice of the owner 6 and that the time
of occurrence is not a material ingredient of the crime,
hence, the exclusion of the period and the wrong date of
the occurrence of the crime, as reflected in the
Information, do not make the latter fatally defective. The
CA ruled:
. . . An information is legally viable as long as it distinctly
states the statutory designation of the offense and the acts
or omissions constitutive thereof. Then Section 6, Rule
110 of the Rules of Court provides that a complaint or
information is sufficient if it states the name of the
accused; the designation of the offense by the statute; the
acts or omissions complained of as constituting the
offense; the name of the offended party; the approximate
time of the commission of the offense, and the place
wherein the offense was committed. In the case at bar, a
reading of the subject Information shows compliance with
the foregoing rule. That the time of the commission of the
offense was stated as "on or about the fifth (5th) day of
July, 1991" is not likewise fatal to the prosecution's cause
considering that Section 11 of the same Rule requires a
statement of the precise time only when the same is a
material ingredient of the offense. The gravamen of the
crime of estafa under Article 315, paragraph 1 (b) of the
Revised Penal Code (RPC) is the appropriation or
conversion of money or property received to the prejudice
of the offender. Thus, aside from the fact that the date of
the commission thereof is not an essential element of the
crime herein charged, the failure of the prosecution to
specify the exact date does not render the Information
ipso facto defective. Moreover, the said date is also near
the due date within which accused-appellant should have
delivered the proceeds or returned the said [pieces of
jewelry] as testified upon by Tangkoy, hence, there was
sufficient compliance with the rules. Accused-appellant,
therefore, cannot now be allowed to claim that he was not
properly apprised of the charges preferred against him. 7
It must be remembered that petitioner was convicted of
the crime of Estafa under Article 315, paragraph 1 (b) of
the RPC, which reads: TSacID
ART. 315. Swindling (estafa). — Any person who shall
defraud another by any of the means mentioned
hereinbelow.
1. With unfaithfulness or abuse of confidence, namely:
xxx xxx xxx
(b) By misappropriating or converting, to the prejudice of
another, money, goods, or any other personal property
received by the offender in trust or on commission, or for
administration, or under any other obligation involving
the duty to make delivery of or to return the same, even
though such obligation be totally or partially guaranteed
by a bond; or by denying having received such money,
goods, or other property; . . .
The elements of estafa with abuse of confidence are as
follows: (a) that money, goods or other personal property
is received by the offender in trust, or on commission, or
for administration, or under any other obligation
involving the duty to make delivery of, or to return the
same; (b) that there be misappropriation or conversion of
such money or property by the offender or denial on his
part of such receipt; (c) that such misappropriation or
conversion or denial is to the prejudice of another; and (d)
that there is a demand made by the offended party on the
offender. 8
Petitioner argues that the last element, which is, that there
is a demand by the offended party on the offender, was
not proved. This Court disagrees. In his testimony, private
complainant narrated how he was able to locate petitioner
after almost two (2) months from the time he gave the
pieces of jewelry and asked petitioner about the same
items with the latter promising to pay them. Thus:
PROS. MARTINEZ:
q Now, Mr. Witness, this was executed on 2 May 1991,
and this transaction could have been finished on 5 July
1991, the question is what happens (sic) when the
deadline came?
a I went looking for him, sir.
q For whom?
a Lito Corpuz, sir.
q Were you able to look (sic) for him?
a I looked for him for a week, sir.
q Did you know his residence?
a Yes, sir.
q Did you go there?
a Yes, sir.
q Did you find him?
a No, sir.
q Were you able to talk to him since 5 July 1991?
a I talked to him, sir.
q How many times?
a Two times, sir.
q What did you talk (sic) to him?
a About the items I gave to (sic) him, sir.
q Referring to Exhibit A-2?
a Yes, sir, and according to him he will take his obligation
and I asked him where the items are and he promised me
that he will pay these amount, sir.
q Up to this time that you were here, were you able to
collect from him partially or full?
a No, sir. 9
No specific type of proof is required to show that there
was demand. 10 Demand need not even be formal; it may
be verbal. 11 The specific word "demand" need not even
be used to show that it has indeed been made upon the
person charged, since even a mere query as to the
whereabouts of the money [in this case, property], would
be tantamount to a demand. 12 As expounded in Asejo v.
People: 13
With regard to the necessity of demand, we agree with the
CA that demand under this kind of estafa need not be
formal or written. The appellate court observed that the
law is silent with regard to the form of demand in estafa
under Art. 315 1(b), thus: cSDHEC
When the law does not qualify, We should not qualify.
Should a written demand be necessary, the law would
have stated so. Otherwise, the word "demand" should be
interpreted in its general meaning as to include both
written and oral demand. Thus, the failure of the
prosecution to present a written demand as evidence is not
fatal.
In Tubb v. People, where the complainant merely verbally
inquired about the money entrusted to the accused, we
held that the query was tantamount to a demand, thus:
. . . [T]he law does not require a demand as a condition
precedent to the existence of the crime of embezzlement.
It so happens only that failure to account, upon demand
for funds or property held in trust, is circumstantial
evidence of misappropriation. The same way, however,
be established by other proof, such as that introduced in
the case at bar. 14
In view of the foregoing and based on the records, the
prosecution was able to prove the existence of all the
elements of the crime. Private complainant gave
petitioner the pieces of jewelry in trust, or on commission
basis, as shown in the receipt dated May 2, 1991 with an
obligation to sell or return the same within sixty (60) days,
if unsold. There was misappropriation when petitioner
failed to remit the proceeds of those pieces of jewelry
sold, or if no sale took place, failed to return the same
pieces of jewelry within or after the agreed period despite
demand from the private complainant, to the prejudice of
the latter.
Anent the credibility of the prosecution's sole witness,
which is questioned by petitioner, the same is
unmeritorious. Settled is the rule that in assessing the
credibility of witnesses, this Court gives great respect to
the evaluation of the trial court for it had the unique
opportunity to observe the demeanor of witnesses and
their deportment on the witness stand, an opportunity
denied the appellate courts, which merely rely on the
records of the case. 15 The assessment by the trial court
is even conclusive and binding if not tainted with
arbitrariness or oversight of some fact or circumstance of
weight and influence, especially when such finding is
affirmed by the CA. 16 Truth is established not by the
number of witnesses, but by the quality of their
testimonies, for in determining the value and credibility
of evidence, the witnesses are to be weighed not
numbered. 17
As regards the penalty, while this Court's Third Division
was deliberating on this case, the question of the
continued validity of imposing on persons convicted of
crimes involving property came up. The legislature
apparently pegged these penalties to the value of the
money and property in 1930 when it enacted the Revised
Penal Code. Since the members of the division reached no
unanimity on this question and since the issues are of first
impression, they decided to refer the case to the Court en
banc for consideration and resolution. Thus, several amici
curiae were invited at the behest of the Court to give their
academic opinions on the matter. Among those that
graciously complied were Dean Jose Manuel Diokno,
Dean Sedfrey M. Candelaria, Professor Alfredo F. Tadiar,
the Senate President, and the Speaker of the House of
Representatives. The parties were later heard on oral
arguments before the Court en banc, with Atty. Mario L.
Bautista appearing as counsel de oficio of the petitioner.
After a thorough consideration of the arguments
presented on the matter, this Court finds the following:
There seems to be a perceived injustice brought about by
the range of penalties that the courts continue to impose
on crimes against property committed today, based on the
amount of damage measured by the value of money
eighty years ago in 1932. However, this Court cannot
modify the said range of penalties because that would
constitute judicial legislation. What the legislature's
perceived failure in amending the penalties provided for
in the said crimes cannot be remedied through this Court's
decisions, as that would be encroaching upon the power
of another branch of the government. This, however, does
not render the whole situation without any remedy. It can
be appropriately presumed that the framers of the Revised
Penal Code (RPC) had anticipated this matter by
including Article 5, which reads:
ART. 5. Duty of the court in connection with acts which
should be repressed but which are not covered by the law,
and in cases of excessive penalties. — Whenever a court
has knowledge of any act which it may deem proper to
repress and which is not punishable by law, it shall render
the proper decision, and shall report to the Chief
Executive, through the Department of Justice, the reasons
which induce the court to believe that said act should be
made the subject of penal legislation.
In the same way, the court shall submit to the Chief
Executive, through the Department of Justice, such
statement as may be deemed proper, without suspending
the execution of the sentence, when a strict enforcement
of the provisions of this Code would result in the
imposition of a clearly excessive penalty, taking into
consideration the degree of malice and the injury caused
by the offense. 18 DACTSa
The first paragraph of the above provision clearly states
that for acts borne out of a case which is not punishable
by law and the court finds it proper to repress, the remedy
is to render the proper decision and thereafter, report to
the Chief Executive, through the Department of Justice,
the reasons why the same act should be the subject of
penal legislation. The premise here is that a deplorable act
is present but is not the subject of any penal legislation,
thus, the court is tasked to inform the Chief Executive of
the need to make that act punishable by law through
legislation. The second paragraph is similar to the first
except for the situation wherein the act is already
punishable by law but the corresponding penalty is
deemed by the court as excessive. The remedy therefore,
as in the first paragraph is not to suspend the execution of
the sentence but to submit to the Chief Executive the
reasons why the court considers the said penalty to be
non-commensurate with the act committed. Again, the
court is tasked to inform the Chief Executive, this time, of
the need for a legislation to provide the proper penalty.
In his book, Commentaries on the Revised Penal Code,
19 Guillermo B. Guevara opined that in Article 5, the duty
of the court is merely to report to the Chief Executive,
with a recommendation for an amendment or
modification of the legal provisions which it believes to
be harsh. Thus:
This provision is based under the legal maxim "nullum
crimen, nulla poena sige lege," that is, that there can exist
no punishable act except those previously and specifically
provided for by penal statute.
No matter how reprehensible an act is, if the law-making
body does not deem it necessary to prohibit its
perpetration with penal sanction, the Court of justice will
be entirely powerless to punish such act.
Under the provisions of this article the Court cannot
suspend the execution of a sentence on the ground that the
strict enforcement of the provisions of this Code would
cause excessive or harsh penalty. All that the Court could
do in such eventuality is to report the matter to the Chief
Executive with a recommendation for an amendment or
modification of the legal provisions which it believes to
be harsh. 20
Anent the non-suspension of the execution of the
sentence, retired Chief Justice Ramon C. Aquino and
retired Associate Justice Carolina C. Griño-Aquino, in
their book, The Revised Penal Code, 21 echoed the
above-cited commentary, thus:
The second paragraph of Art. 5 is an application of the
humanitarian principle that justice must be tempered with
mercy. Generally, the courts have nothing to do with the
wisdom or justness of the penalties fixed by law.
"Whether or not the penalties prescribed by law upon
conviction of violations of particular statutes are too
severe or are not severe enough, are questions as to which
commentators on the law may fairly differ; but it is the
duty of the courts to enforce the will of the legislator in
all cases unless it clearly appears that a given penalty falls
within the prohibited class of excessive fines or cruel and
unusual punishment." A petition for clemency should be
addressed to the Chief Executive. 22
There is an opinion that the penalties provided for in
crimes against property be based on the current inflation
rate or at the ratio of P1.00 is equal to P100.00. However,
it would be dangerous as this would result in
uncertainties, as opposed to the definite imposition of the
penalties. It must be remembered that the economy
fluctuates and if the proposed imposition of the penalties
in crimes against property be adopted, the penalties will
not cease to change, thus, making the RPC, a self-
amending law. Had the framers of the RPC intended that
to be so, it should have provided the same, instead, it
included the earlier cited Article 5 as a remedy. It is also
improper to presume why the present legislature has not
made any moves to amend the subject penalties in order
to conform with the present times. For all we know, the
legislature intends to retain the same penalties in order to
deter the further commission of those punishable acts
which have increased tremendously through the years. In
fact, in recent moves of the legislature, it is apparent that
it aims to broaden the coverage of those who violate penal
laws. In the crime of Plunder, from its original minimum
amount of P100,000,000.00 plundered, the legislature
lowered it to P50,000,000.00. In the same way, the
legislature lowered the threshold amount upon which the
Anti-Money Laundering Act may apply, from
P1,000,000.00 to P500,000.00.
It is also worth noting that in the crimes of Theft and
Estafa, the present penalties do not seem to be excessive
compared to the proposed imposition of their
corresponding penalties. In Theft, the provisions state
that:
Art. 309. Penalties. — Any person guilty of theft shall be
punished by: HICEca
1. The penalty of prision mayor in its minimum and
medium periods, if the value of the thing stolen is more
than 12,000 pesos but does not exceed 22,000 pesos, but
if the value of the thing stolen exceeds the latter amount
the penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each
additional ten thousand pesos, but the total of the penalty
which may be imposed shall not exceed twenty years. In
such cases, and in connection with the accessory penalties
which may be imposed and for the purpose of the other
provisions of this Code, the penalty shall be termed
prision mayor or reclusion temporal, as the case may be.
2. The penalty of prision correccional in its medium and
maximum periods, if the value of the thing stolen is more
than 6,000 pesos but does not exceed 12,000 pesos.
3. The penalty of prision correccional in its minimum and
medium periods, if the value of the property stolen is
more than 200 pesos but does not exceed 6,000 pesos.
4. Arresto mayor in its medium period to prision
correccional in its minimum period, if the value of the
property stolen is over 50 pesos but does not exceed 200
pesos.
5. Arresto mayor to its full extent, if such value is over 5
pesos but does not exceed 50 pesos.
6. Arresto mayor in its minimum and medium periods, if
such value does not exceed 5 pesos.
7. Arresto menor or a fine not exceeding 200 pesos, if the
theft is committed under the circumstances enumerated in
paragraph 3 of the next preceding article and the value of
the thing stolen does not exceed 5 pesos. If such value
exceeds said amount, the provision of any of the five
preceding subdivisions shall be made applicable.
8. Arresto menor in its minimum period or a fine not
exceeding 50 pesos, when the value of the thing stolen is
not over 5 pesos, and the offender shall have acted under
the impulse of hunger, poverty, or the difficulty of earning
a livelihood for the support of himself or his family.
In a case wherein the value of the thing stolen is
P6,000.00, the above-provision states that the penalty is
prision correccional in its minimum and medium periods
(6 months and 1 day to 4 years and 2 months). Applying
the proposal, if the value of the thing stolen is P6,000.00,
the penalty is imprisonment of arresto mayor in its
medium period to prision correccional minimum period
(2 months and 1 day to 2 years and 4 months). It would
seem that under the present law, the penalty imposed is
almost the same as the penalty proposed. In fact, after the
application of the Indeterminate Sentence Law under the
existing law, the minimum penalty is still lowered by one
degree; hence, the minimum penalty is arresto mayor in
its medium period to maximum period (2 months and 1
day to 6 months), making the offender qualified for
pardon or parole after serving the said minimum period
and may even apply for probation. Moreover, under the
proposal, the minimum penalty after applying the
Indeterminate Sentence Law is arresto menor in its
maximum period to arresto mayor in its minimum period
(21 days to 2 months) is not too far from the minimum
period under the existing law. Thus, it would seem that
the present penalty imposed under the law is not at all
excessive. The same is also true in the crime of Estafa. 23
Moreover, if we apply the ratio of 1:100, as suggested to
the value of the thing stolen in the crime of Theft and the
damage caused in the crime of Estafa, the gap between the
minimum and the maximum amounts, which is the basis
of determining the proper penalty to be imposed, would
be too wide and the penalty imposable would no longer
be commensurate to the act committed and the value of
the thing stolen or the damage caused:
I. Article 309, or the penalties for the crime of Theft, the
value would be modified but the penalties are not
changed:
1. P12,000.00 to P22,000.00 will become P1,200,000.00
to P2,200,000.00, punished by prision mayor minimum to
prision mayor medium (6 years and 1 day to 10 years).
2. P6,000.00 to P12,000.00 will become P600,000.00 to
P1,200,000.00, punished by prision correccional medium
and to prision correccional maximum (2 years, 4 months
and 1 day to 6 years). 24
3. P200.00 to P6,000.00 will become P20,000.00 to
P600,000.00, punishable by prision correccional
minimum to prision correccional medium (6 months and
1 day to 4 years and 2 months). SEcTHA
4. P50.00 to P200.00 will become P5,000.00 to
P20,000.00, punishable by arresto mayor medium to
prision correccional minimum (2 months and 1 day to 2
years and 4 months).
5. P5.00 to P50.00 will become P500.00 to P5,000.00,
punishable by arresto mayor (1 month and 1 day to 6
months).
6. P5.00 will become P500.00, punishable by arresto
mayor minimum to arresto mayor medium.
xxx xxx xxx.
II. Article 315, or the penalties for the crime of Estafa, the
value would also be modified but the penalties are not
changed, as follows:
1st. P12,000.00 to P22,000.00, will become
P1,200,000.00 to P2,200,000.00, punishable by prision
correccional maximum to prision mayor minimum (4
years, 2 months and 1 day to 8 years). 25
2nd. P6,000.00 to P12,000.00 will become P600,000.00
to P1,200,000.00, punishable by prision correccional
minimum to prision correccional medium (6 months and
1 day to 4 years and 2 months). 26
3rd. P200.00 to P6,000.00 will become P20,000.00 to
P600,000.00, punishable by arresto mayor maximum to
prision correccional minimum (4 months and 1 day to 2
years and 4 months).
4th. P200.00 will become P20,000.00, punishable by
arresto mayor maximum (4 months and 1 day to 6
months).
An argument raised by Dean Jose Manuel I. Diokno, one
of our esteemed amici curiae, is that the incremental
penalty provided under Article 315 of the RPC violates
the Equal Protection Clause.
The equal protection clause requires equality among
equals, which is determined according to a valid
classification. The test developed by jurisprudence here
and yonder is that of reasonableness, 27 which has four
requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class. 28
According to Dean Diokno, the Incremental Penalty Rule
(IPR) does not rest on substantial distinctions as
P10,000.00 may have been substantial in the past, but it is
not so today, which violates the first requisite; the IPR
was devised so that those who commit estafa involving
higher amounts would receive heavier penalties;
however, this is no longer achieved, because a person who
steals P142,000.00 would receive the same penalty as
someone who steals hundreds of millions, which violates
the second requisite; and, the IPR violates requisite no. 3,
considering that the IPR is limited to existing conditions
at the time the law was promulgated, conditions that no
longer exist today.
Assuming that the Court submits to the argument of Dean
Diokno and declares the incremental penalty in Article
315 unconstitutional for violating the equal protection
clause, what then is the penalty that should be applied in
case the amount of the thing subject matter of the crime
exceeds P22,000.00? It seems that the proposition poses
more questions than answers, which leads us even more
to conclude that the appropriate remedy is to refer these
matters to Congress for them to exercise their inherent
power to legislate laws.
Even Dean Diokno was of the opinion that if the Court
declares the IPR unconstitutional, the remedy is to go to
Congress. Thus:
xxx xxx xxx
JUSTICE PERALTA:
Now, your position is to declare that the incremental
penalty should be struck down as unconstitutional
because it is absurd.
DEAN DIOKNO:
Absurd, it violates equal protection, Your Honor, and
cruel and unusual punishment.
JUSTICE PERALTA:
Then what will be the penalty that we are going to impose
if the amount is more than Twenty-Two Thousand
(P22,000.00) Pesos.
DEAN DIOKNO:
Well, that would be for Congress to . . . if this Court will
declare the incremental penalty rule unconstitutional, then
that would . . . the void should be filled by Congress.
AIHTEa
JUSTICE PERALTA:
But in your presentation, you were fixing the amount at
One Hundred Thousand (P100,000.00) Pesos . . .
DEAN DIOKNO:
Well, my presen . . . (interrupted)
JUSTICE PERALTA:
For every One Hundred Thousand (P100,000.00) Pesos
in excess of Twenty-Two Thousand (P22,000.00) Pesos
you were suggesting an additional penalty of one (1) year,
did I get you right?
DEAN DIOKNO:
Yes, Your Honor, that is, if the court will take the route
of statutory interpretation.
JUSTICE PERALTA:
Ah . . .
DEAN DIOKNO:
If the Court will say that they can go beyond the literal
wording of the law . . .
JUSTICE PERALTA:
But if we de . . . (interrupted)
DEAN DIOKNO:
. . . then . . .
JUSTICE PERALTA:
Ah, yeah. But if we declare the incremental penalty as
unconstitutional, the court cannot fix the amount . . .
DEAN DIOKNO:
No, Your Honor.
JUSTICE PERALTA:
. . . as the equivalent of one, as an incremental penalty in
excess of Twenty-Two Thousand (P22,000.00) Pesos.
DEAN DIOKNO:
No, Your Honor.
JUSTICE PERALTA:
The Court cannot do that.
DEAN DIOKNO:
Could not be.
JUSTICE PERALTA:
The only remedy is to go to Congress . . .
DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:
. . . and determine the value or the amount.
DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:
That will be equivalent to the incremental penalty of one
(1) year in excess of Twenty-Two Thousand (P22,000.00)
Pesos.
DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:
The amount in excess of Twenty-Two Thousand
(P22,000.00) Pesos.
Thank you, Dean.
DEAN DIOKNO:
Thank you. DIHETS
xxx xxx xxx 29
Dean Diokno also contends that Article 315 of the
Revised Penal Code constitutes cruel and unusual
punishment. Citing Solem v. Helm, 30 Dean Diokno
avers that the United States Federal Supreme Court has
expanded the application of a similar Constitutional
provision prohibiting cruel and unusual punishment, to
the duration of the penalty, and not just its form. The court
therein ruled that three things must be done to decide
whether a sentence is proportional to a specific crime,
viz.; (1) Compare the nature and gravity of the offense,
and the harshness of the penalty; (2) Compare the
sentences imposed on other criminals in the same
jurisdiction, i.e., whether more serious crimes are subject
to the same penalty or to less serious penalties; and (3)
Compare the sentences imposed for commission of the
same crime in other jurisdictions.
However, the case of Solem v. Helm cannot be applied in
the present case, because in Solem what respondent
therein deemed cruel was the penalty imposed by the state
court of South Dakota after it took into account the latter's
recidivist statute and not the original penalty for uttering
a "no account" check. Normally, the maximum
punishment for the crime would have been five years
imprisonment and a $5,000.00 fine. Nonetheless,
respondent was sentenced to life imprisonment without
the possibility of parole under South Dakota's recidivist
statute because of his six prior felony convictions. Surely,
the factual antecedents of Solem are different from the
present controversy.
With respect to the crime of Qualified Theft, however, it
is true that the imposable penalty for the offense is high.
Nevertheless, the rationale for the imposition of a higher
penalty against a domestic servant is the fact that in the
commission of the crime, the helper will essentially
gravely abuse the trust and confidence reposed upon her
by her employer. After accepting and allowing the helper
to be a member of the household, thus entrusting upon
such person the protection and safekeeping of the
employer's loved ones and properties, a subsequent
betrayal of that trust is so repulsive as to warrant the
necessity of imposing a higher penalty to deter the
commission of such wrongful acts.
There are other crimes where the penalty of fine and/or
imprisonment are dependent on the subject matter of the
crime and which, by adopting the proposal, may create
serious implications. For example, in the crime of
Malversation, the penalty imposed depends on the
amount of the money malversed by the public official,
thus:
Art. 217. Malversation of public funds or property;
Presumption of malversation. — Any public officer who,
by reason of the duties of his office, is accountable for
public funds or property, shall appropriate the same or
shall take or misappropriate or shall consent, through
abandonment or negligence, shall permit any other person
to take such public funds, or property, wholly or partially,
or shall otherwise be guilty of the misappropriation or
malversation of such funds or property, shall suffer:
1. The penalty of prision correccional in its medium and
maximum periods, if the amount involved in the
misappropriation or malversation does not exceed two
hundred pesos.
2. The penalty of prision mayor in its minimum and
medium periods, if the amount involved is more than two
hundred pesos but does not exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to
reclusion temporal in its minimum period, if the amount
involved is more than six thousand pesos but is less than
twelve thousand pesos.
4. The penalty of reclusion temporal, in its medium and
maximum periods, if the amount involved is more than
twelve thousand pesos but is less than twenty-two
thousand pesos. If the amount exceeds the latter, the
penalty shall be reclusion temporal in its maximum period
to reclusion perpetua.
In all cases, persons guilty of malversation shall also
suffer the penalty of perpetual special disqualification and
a fine equal to the amount of the funds malversed or equal
to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming
any public funds or property with which he is chargeable,
upon demand by any duly authorized officer, shall be
prima facie evidence that he has put such missing funds
or property to personal use. DAaEIc
The above-provisions contemplate a situation wherein the
Government loses money due to the unlawful acts of the
offender. Thus, following the proposal, if the amount
malversed is P200.00 (under the existing law), the amount
now becomes P20,000.00 and the penalty is prision
correccional in its medium and maximum periods (2 years
4 months and 1 day to 6 years). The penalty may not be
commensurate to the act of embezzlement of P20,000.00
compared to the acts committed by public officials
punishable by a special law, i.e., Republic Act No. 3019
or the Anti-Graft and Corrupt Practices Act, specifically
Section 3, 31 wherein the injury caused to the government
is not generally defined by any monetary amount, the
penalty (6 years and 1 month to 15 years) 32 under the
Anti-Graft Law will now become higher. This should not
be the case, because in the crime of malversation, the
public official takes advantage of his public position to
embezzle the fund or property of the government
entrusted to him.
The said inequity is also apparent in the crime of Robbery
with force upon things (inhabited or uninhabited) where
the value of the thing unlawfully taken and the act of
unlawful entry are the bases of the penalty imposable, and
also, in Malicious Mischief, where the penalty of
imprisonment or fine is dependent on the cost of the
damage caused.
In Robbery with force upon things (inhabited or
uninhabited), if we increase the value of the thing
unlawfully taken, as proposed in the ponencia, the sole
basis of the penalty will now be the value of the thing
unlawfully taken and no longer the element of force
employed in entering the premises. It may likewise cause
an inequity between the crime of Qualified Trespass to
Dwelling under Article 280, and this kind of robbery
because the former is punishable by prision correccional
in its medium and maximum periods (2 years, 4 months
and 1 day to 6 years) and a fine not exceeding P1,000.00
(P100,000.00 now if the ratio is 1:100) where entrance to
the premises is with violence or intimidation, which is the
main justification of the penalty. Whereas in the crime of
Robbery with force upon things, it is punished with a
penalty of prision mayor (6 years and 1 day to 12 years)
if the intruder is unarmed without the penalty of Fine
despite the fact that it is not merely the illegal entry that
is the basis of the penalty but likewise the unlawful
taking.
Furthermore, in the crime of Other Mischiefs under
Article 329, the highest penalty that can be imposed is
arresto mayor in its medium and maximum periods (2
months and 1 day to 6 months) if the value of the damage
caused exceeds P1,000.00, but under the proposal, the
value of the damage will now become P100,000.00
(1:100), and still punishable by arresto mayor (1 month
and 1 day to 6 months). And, if the value of the damaged
property does not exceed P200.00, the penalty is arresto
menor or a fine of not less than the value of the damage
caused and not more than P200.00, if the amount involved
does not exceed P200.00 or cannot be estimated. Under
the proposal, P200.00 will now become P20,000.00,
which simply means that the fine of P200.00 under the
existing law will now become P20,000.00. The amount of
Fine under this situation will now become excessive and
afflictive in nature despite the fact that the offense is
categorized as a light felony penalized with a light penalty
under Article 26 of the RPC. 33 Unless we also amend
Article 26 of the RPC, there will be grave implications on
the penalty of Fine, but changing the same through Court
decision, either expressly or impliedly, may not be legally
and constitutionally feasible.
There are other crimes against property and swindling in
the RPC that may also be affected by the proposal, such
as those that impose imprisonment and/or Fine as a
penalty based on the value of the damage caused, to wit:
Article 311 (Theft of the property of the National Library
and National Museum), Article 312 (Occupation of real
property or usurpation of real rights in property), Article
313 (Altering boundaries or landmarks), Article 316
(Other forms of swindling), Article 317 (Swindling a
minor), Article 318 (Other deceits), Article 328 (Special
cases of malicious mischief) and Article 331 (Destroying
or damaging statues, public monuments or paintings).
Other crimes that impose Fine as a penalty will also be
affected, such as: Article 213 (Frauds against the public
treasury and similar offenses), Article 215 (Prohibited
Transactions), Article 216 (Possession of prohibited
interest by a public officer), Article 218 (Failure of
accountable officer to render accounts), Article 219
(Failure of a responsible public officer to render accounts
before leaving the country).
In addition, the proposal will not only affect crimes under
the RPC. It will also affect crimes which are punishable
by special penal laws, such as Illegal Logging or
Violation of Section 68 of Presidential Decree No. 705,
as amended. 34 The law treats cutting, gathering,
collecting and possessing timber or other forest products
without license as an offense as grave as and equivalent
to the felony of qualified theft. 35 Under the law, the
offender shall be punished with the penalties imposed
under Articles 309 and 310 36 of the Revised Penal Code,
which means that the penalty imposable for the offense is,
again, based on the value of the timber or forest products
involved in the offense. Now, if we accept the said
proposal in the crime of Theft, will this particular crime
of Illegal Logging be amended also in so far as the penalty
is concerned because the penalty is dependent on Articles
309 and 310 of the RPC? The answer is in the negative
because the soundness of this particular law is not in
question.
With the numerous crimes defined and penalized under
the Revised Penal Code and Special Laws, and other
related provisions of these laws affected by the proposal,
a thorough study is needed to determine its effectivity and
necessity. There may be some provisions of the law that
should be amended; nevertheless, this Court is in no
position to conclude as to the intentions of the framers of
the Revised Penal Code by merely making a study of the
applicability of the penalties imposable in the present
times. Such is not within the competence of the Court but
of the Legislature which is empowered to conduct public
hearings on the matter, consult legal luminaries and who,
after due proceedings, can decide whether or not to amend
or to revise the questioned law or other laws, or even
create a new legislation which will adopt to the times.
AaECSH
Admittedly, Congress is aware that there is an urgent need
to amend the Revised Penal Code. During the oral
arguments, counsel for the Senate informed the Court that
at present, fifty-six (56) bills are now pending in the
Senate seeking to amend the Revised Penal Code, 37 each
one proposing much needed change and updates to
archaic laws that were promulgated decades ago when the
political, socio-economic, and cultural settings were far
different from today's conditions.
Verily, the primordial duty of the Court is merely to apply
the law in such a way that it shall not usurp legislative
powers by judicial legislation and that in the course of
such application or construction, it should not make or
supervise legislation, or under the guise of interpretation,
modify, revise, amend, distort, remodel, or rewrite the
law, or give the law a construction which is repugnant to
its terms. 38 The Court should apply the law in a manner
that would give effect to their letter and spirit, especially
when the law is clear as to its intent and purpose.
Succinctly put, the Court should shy away from
encroaching upon the primary function of a co-equal
branch of the Government; otherwise, this would lead to
an inexcusable breach of the doctrine of separation of
powers by means of judicial legislation.
Moreover, it is to be noted that civil indemnity is,
technically, not a penalty or a Fine; hence, it can be
increased by the Court when appropriate. Article 2206 of
the Civil Code provides:
Art. 2206. The amount of damages for death caused by a
crime or quasi-delict shall be at least three thousand
pesos, even though there may have been mitigating
circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning
capacity of the deceased, and the indemnity shall be paid
to the heirs of the latter; such indemnity shall in every
case be assessed and awarded by the court, unless the
deceased on account of permanent physical disability not
caused by the defendant, had no earning capacity at the
time of his death;
(2) If the deceased was obliged to give support according
to the provisions of Article 291, the recipient who is not
an heir called to the decedent's inheritance by the law of
testate or intestate succession, may demand support from
the person causing the death, for a period not exceeding
five years, the exact duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants
and ascendants of the deceased may demand moral
damages for mental anguish by reason of the death of the
deceased.
In our jurisdiction, civil indemnity is awarded to the
offended party as a kind of monetary restitution or
compensation to the victim for the damage or infraction
that was done to the latter by the accused, which in a sense
only covers the civil aspect. Precisely, it is civil
indemnity. Thus, in a crime where a person dies, in
addition to the penalty of imprisonment imposed to the
offender, the accused is also ordered to pay the victim a
sum of money as restitution. Clearly, this award of civil
indemnity due to the death of the victim could not be
contemplated as akin to the value of a thing that is
unlawfully taken which is the basis in the imposition of
the proper penalty in certain crimes. Thus, the reasoning
in increasing the value of civil indemnity awarded in
some offense cannot be the same reasoning that would
sustain the adoption of the suggested ratio. Also, it is
apparent from Article 2206 that the law only imposes a
minimum amount for awards of civil indemnity, which is
P3,000.00. The law did not provide for a ceiling. Thus,
although the minimum amount for the award cannot be
changed, increasing the amount awarded as civil
indemnity can be validly modified and increased when the
present circumstance warrants it. Corollarily, moral
damages under Article 2220 39 of the Civil Code also
does not fix the amount of damages that can be awarded.
It is discretionary upon the court, depending on the mental
anguish or the suffering of the private offended party. The
amount of moral damages can, in relation to civil
indemnity, be adjusted so long as it does not exceed the
award of civil indemnity.
In addition, some may view the penalty provided by law
for the offense committed as tantamount to cruel
punishment. However, all penalties are generally harsh,
being punitive in nature. Whether or not they are
excessive or amount to cruel punishment is a matter that
should be left to lawmakers. It is the prerogative of the
courts to apply the law, especially when they are clear and
not subject to any other interpretation than that which is
plainly written.
Similar to the argument of Dean Diokno, one of Justice
Antonio Carpio's opinions is that the incremental penalty
provision should be declared unconstitutional and that the
courts should only impose the penalty corresponding to
the amount of P22,000.00, regardless if the actual amount
involved exceeds P22,000.00. As suggested, however,
from now until the law is properly amended by Congress,
all crimes of Estafa will no longer be punished by the
appropriate penalty. A conundrum in the regular course
of criminal justice would occur when every accused
convicted of the crime of estafa will be meted penalties
different from the proper penalty that should be imposed.
Such drastic twist in the application of the law has no
legal basis and directly runs counter to what the law
provides. aEHTSc
It should be noted that the death penalty was reintroduced
in the dispensation of criminal justice by the Ramos
Administration by virtue of Republic Act No. 7659 40 in
December 1993. The said law has been questioned before
this Court. There is, arguably, no punishment more cruel
than that of death. Yet still, from the time the death
penalty was re-imposed until its lifting in June 2006 by
Republic Act No. 9346, 41 the Court did not impede the
imposition of the death penalty on the ground that it is a
"cruel punishment" within the purview of Section 19 (1),
42 Article III of the Constitution. Ultimately, it was
through an act of Congress suspending the imposition of
the death penalty that led to its non-imposition and not via
the intervention of the Court.
Even if the imposable penalty amounts to cruel
punishment, the Court cannot declare the provision of the
law from which the proper penalty emanates
unconstitutional in the present action. Not only is it
violative of due process, considering that the State and the
concerned parties were not given the opportunity to
comment on the subject matter, it is settled that the
constitutionality of a statute cannot be attacked
collaterally because constitutionality issues must be
pleaded directly and not collaterally, 43 more so in the
present controversy wherein the issues never touched
upon the constitutionality of any of the provisions of the
Revised Penal Code.
Besides, it has long been held that the prohibition of cruel
and unusual punishments is generally aimed at the form
or character of the punishment rather than its severity in
respect of duration or amount, and applies to punishments
which public sentiment has regarded as cruel or obsolete,
for instance, those inflicted at the whipping post, or in the
pillory, burning at the stake, breaking on the wheel,
disemboweling, and the like. Fine and imprisonment
would not thus be within the prohibition. 44
It takes more than merely being harsh, excessive, out of
proportion, or severe for a penalty to be obnoxious to the
Constitution. The fact that the punishment authorized by
the statute is severe does not make it cruel and unusual.
Expressed in other terms, it has been held that to come
under the ban, the punishment must be "flagrantly and
plainly oppressive," "wholly disproportionate to the
nature of the offense as to shock the moral sense of the
community." 45
Cruel as it may be, as discussed above, it is for the
Congress to amend the law and adapt it to our modern
time.
The solution to the present controversy could not be
solved by merely adjusting the questioned monetary
values to the present value of money based only on the
current inflation rate. There are other factors and variables
that need to be taken into consideration, researched, and
deliberated upon before the said values could be
accurately and properly adjusted. The effects on the
society, the injured party, the accused, its socio-economic
impact, and the likes must be painstakingly evaluated and
weighed upon in order to arrive at a wholistic change that
all of us believe should be made to our existing law.
Dejectedly, the Court is ill-equipped, has no resources,
and lacks sufficient personnel to conduct public hearings
and sponsor studies and surveys to validly effect these
changes in our Revised Penal Code. This function clearly
and appropriately belongs to Congress. Even Professor
Tadiar concedes to this conclusion, to wit:
xxx xxx xxx
JUSTICE PERALTA:
Yeah, Just one question. You are suggesting that in order
to determine the value of Peso you have to take into
consideration several factors.
PROFESSOR TADIAR:
Yes.
JUSTICE PERALTA:
Per capita income.
PROFESSOR TADIAR:
Per capita income.
JUSTICE PERALTA:
Consumer price index.
PROFESSOR TADIAR:
Yeah.
JUSTICE PERALTA:
Inflation . . .
PROFESSOR TADIAR:
Yes. SEDICa
JUSTICE PERALTA:
. . . and so on. Is the Supreme Court equipped to
determine those factors?
PROFESSOR TADIAR:
There are many ways by which the value of the
Philippine Peso can be determined utilizing all of those
economic terms.
JUSTICE PERALTA:
Yeah, but . . .
PROFESSOR TADIAR:
And I don't think it is within the power of the Supreme
Court to pass upon and peg the value to One Hundred
(P100.00) Pesos to . . .
JUSTICE PERALTA:
Yeah.
PROFESSOR TADIAR:
. . . One (P100.00) Peso in 1930.
JUSTICE PERALTA:
That is legislative in nature.
PROFESSOR TADIAR:
That is my position that the Supreme Court . . .
JUSTICE PERALTA:
Yeah, okay.
PROFESSOR TADIAR:
. . . has no power to utilize the power of judicial review
to in order to adjust, to make the adjustment that is a
power that belongs to the legislature.
JUSTICE PERALTA:
Thank you, Professor.
PROFESSOR TADIAR:
Thank you. 46
Finally, the opinion advanced by Chief Justice Maria
Lourdes P. A. Sereno echoes the view that the role of the
Court is not merely to dispense justice, but also the active
duty to prevent injustice. Thus, in order to prevent
injustice in the present controversy, the Court should not
impose an obsolete penalty pegged eighty three years ago,
but consider the proposed ratio of 1:100 as simply
compensating for inflation. Furthermore, the Court has in
the past taken into consideration "changed conditions" or
"significant changes in circumstances" in its decisions.
Similarly, the Chief Justice is of the view that the Court
is not delving into the validity of the substance of a
statute. The issue is no different from the Court's
adjustment of indemnity in crimes against persons, which
the Court had previously adjusted in light of current times,
like in the case of People v. Pantoja. 47 Besides, Article
10 of the Civil Code mandates a presumption that the
lawmaking body intended right and justice to prevail.
With due respect to the opinions and proposals advanced
by the Chief Justice and my Colleagues, all the proposals
ultimately lead to prohibited judicial legislation. Short of
being repetitious and as extensively discussed above, it is
truly beyond the powers of the Court to legislate laws,
such immense power belongs to Congress and the Court
should refrain from crossing this clear-cut divide. With
regard to civil indemnity, as elucidated before, this refers
to civil liability which is awarded to the offended party as
a kind of monetary restitution. It is truly based on the
value of money. The same cannot be said on penalties
because, as earlier stated, penalties are not only based on
the value of money, but on several other factors. Further,
since the law is silent as to the maximum amount that can
be awarded and only pegged the minimum sum,
increasing the amount granted as civil indemnity is not
proscribed. Thus, it can be adjusted in light of current
conditions.
Now, with regard to the penalty imposed in the present
case, the CA modified the ruling of the RTC. The RTC
imposed the indeterminate penalty of four (4) years and
two (2) months of prision correccional in its medium
period, as minimum, to fourteen (14) years and eight (8)
months of reclusion temporal in its minimum period, as
maximum. However, the CA imposed the indeterminate
penalty of four (4) years and two (2) months of prision
correccional, as minimum, to eight (8) years of prision
mayor, as maximum, plus one (1) year for each additional
P10,000.00, or a total of seven (7) years.
In computing the penalty for this type of estafa, this
Court's ruling in Cosme, Jr. v. People 48 is highly
instructive, thus: CSTEHI
With respect to the imposable penalty, Article 315 of the
Revised Penal Code provides:
ART. 315. Swindling (estafa). — Any person who shall
defraud another by any of the means mentioned
hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum
period to prision mayor in its minimum period, if the
amount of the fraud is over 12,000 but does not exceed
22,000 pesos, and if such amount exceeds the latter sum,
the penalty provided in this paragraph shall be imposed in
its maximum period, adding one year for each additional
10,000 pesos; but the total penalty which may be imposed
shall not exceed twenty years. In such case, and in
connection with the accessory penalties which may be
imposed and for the purpose of the other provisions of this
Code, the penalty shall be termed prision mayor or
reclusion temporal, as the case may be.
The penalty prescribed by Article 315 is composed of
only two, not three, periods, in which case, Article 65 of
the same Code requires the division of the time included
in the penalty into three equal portions of time included
in the penalty prescribed, forming one period of each of
the three portions. Applying the latter provisions, the
maximum, medium and minimum periods of the penalty
prescribed are:
Maximum — 6 years, 8 months, 21 days to 8 years
Medium — 5 years, 5 months, 11 days to 6 years, 8
months, 20 days
Minimum — 4 years, 2 months, 1 day to 5 years, 5
months, 10 days 49
To compute the maximum period of the prescribed
penalty, prisión correccional maximum to prisión mayor
minimum should be divided into three equal portions of
time each of which portion shall be deemed to form one
period in accordance with Article 65 50 of the RPC. 51 In
the present case, the amount involved is P98,000.00,
which exceeds P22,000.00, thus, the maximum penalty
imposable should be within the maximum period of 6
years, 8 months and 21 days to 8 years of prision mayor.
Article 315 also states that a period of one year shall be
added to the penalty for every additional P10,000.00
defrauded in excess of P22,000.00, but in no case shall the
total penalty which may be imposed exceed 20 years.
Considering that the amount of P98,000.00 is P76,000.00
more than the P22,000.00 ceiling set by law, then, adding
one year for each additional P10,000.00, the maximum
period of 6 years, 8 months and 21 days to 8 years of
prision mayor minimum would be increased by 7 years.
Taking the maximum of the prescribed penalty, which is
8 years, plus an additional 7 years, the maximum of the
indeterminate penalty is 15 years.
Applying the Indeterminate Sentence Law, since the
penalty prescribed by law for the estafa charge against
petitioner is prision correccional maximum to prision
mayor minimum, the penalty next lower would then be
prision correccional in its minimum and medium periods.
Thus, the minimum term of the indeterminate sentence
should be anywhere from 6 months and 1 day to 4 years
and 2 months.
One final note, the Court should give Congress a chance
to perform its primordial duty of lawmaking. The Court
should not pre-empt Congress and usurp its inherent
powers of making and enacting laws. While it may be the
most expeditious approach, a short cut by judicial fiat is a
dangerous proposition, lest the Court dare trespass on
prohibited judicial legislation.
WHEREFORE, the Petition for Review on Certiorari
dated November 5, 2007 of petitioner Lito Corpuz is
hereby DENIED. Consequently, the Decision dated
March 22, 2007 and Resolution dated September 5, 2007
of the Court of Appeals, which affirmed with
modification the Decision dated July 30, 2004 of the
Regional Trial Court, Branch 46, San Fernando City,
finding petitioner guilty beyond reasonable doubt of the
crime of Estafa under Article 315, paragraph (1), sub-
paragraph (b) of the Revised Penal Code, are hereby
AFFIRMED with MODIFICATION that the penalty
imposed is the indeterminate penalty of imprisonment
ranging from THREE (3) YEARS, TWO (2) MONTHS
and ELEVEN DAYS of prision correccional, as
minimum, to FIFTEEN (15) YEARS of reclusion
temporal as maximum.
Pursuant to Article 5 of the Revised Penal Code, let a
Copy of this Decision be furnished the President of the
Republic of the Philippines, through the Department of
Justice.
Also, let a copy of this Decision be furnished the
President of the Senate and the Speaker of the House of
Representatives.
SO ORDERED.
||| (Corpuz v. People, G.R. No. 180016, [April 29, 2014],
734 PHIL 353-498)

[G.R. No. 143838. May 9, 2002.]
ADELMO PEREZ y AGUSTIN, petitioner, vs. COURT
OF APPEALS and PEOPLE OF THE PHILIPPINES,
respondents.
Benjamin C. Escolangco for petitioner.
The Solicitor General for respondents.
SYNOPSIS
Petitioner was convicted by the trial court of the crime of
attempted rape. On appeal, the Court of Appeals affirmed
petitioner's conviction. Petitioner filed this present
petition alleging that the crime committed was only acts
of lasciviousness and not attempted rape.
The Supreme Court ruled that petitioner's acts of lying on
top of the complainant, embracing and kissing her,
mashing her breasts, inserting his hand inside her panty
and touching her sexual organ, while admittedly obscene
and detestable acts, do not constitute attempted rape,
absent any showing that petitioner actually commenced to
force his penis into the complainant's sexual organ.
Rather, these acts constitute acts of lasciviousness.
Moreover, petitioner employed force when he committed
these acts on the complainant.
The decision of the trial court was modified. The Supreme
Court found petitioner guilty of the crime of acts of
lasciviousness.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF
WITNESSES; DETERMINATION THEREOF IS
PROPERLY WITHIN THE DOMAIN OF THE TRIAL
COURT. — It is well settled in this jurisdiction that the
determination of credibility of witnesses is properly
within the domain of the trial court as it is in the best
position to observe their demeanor and bodily
movements.
2. CRIMINAL LAW; ATTEMPTED RAPE; WHEN
PRESENT. — Under Article 6 of the Revised Penal
Code, there is an attempt when the offender commences
the commission of a felony directly by overt acts, and
does not perform all the acts of execution which should
produce the felony by reason of some cause or accident
other than his own spontaneous desistance. In the crime
of rape, penetration is an essential act of execution to
produce the felony. Thus, for there to be an attempted
rape, the accused must have commenced the act of
penetrating his sexual organ to the vagina of the victim
but for some cause or accident other than his own
spontaneous desistance, the penetration, however slight,
is not completed.
3. ID.; ACTS OF LASCIVIOUSNESS; ELEMENTS;
PRESENT IN CASE AT BAR. — Petitioner's acts of
lying on top of the complainant, embracing and kissing
her, mashing her breasts, inserting his hand inside her
panty and touching her sexual organ, while admittedly
obscene and detestable acts, do not constitute attempted
rape absent any showing that petitioner actually
commenced to force his penis into the complainant's
sexual organ Rather, these acts constitute acts of
lasciviousness. The elements of said crime are. (1) that the
offender commits any act of lasciviousness or lewdness;
(2) that is done (a) by using force and intimidation or (b)
when the offended party is deprived of reason or
otherwise unconscious, or (c) when the offended, party is
under 12 years of age; and (3) that the offended party is
another person of either sex. All these elements are
present and have been sufficiently established in this case.
Petitioner clearly committed lewd acts against the
complainant. Moreover, petitioner employed force when
he committed these acts on the complainant.
DECISION
KAPUNAN, J p:
This is a petition for review on certiorari seeking to
reverse and set aside the Decision, dated December 16,
1999, of the Court of Appeals in CA-G.R. CR No. 19971
affirming the conviction of petitioner Adelmo Perez y
Agustin for the crime of Attempted Rape.
The Information filed against petitioner with the Regional
Trial Court, Branch 2 of Balanga, Bataan reads:
That on or about April 14, 1988 in Morong, Bataan,
Philippines and within the jurisdiction of this Honorable
Court, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and
intimidation, commence the commission of the crime of
rape upon Julita Tria y Balagao directly by overt acts, to
wit:
That the said accused, without the permission of anyone,
entered the room of Julita Tria and once inside, embraced
and kissed her on the neck, held and mashed her breast
and compelled her to lie down, and thereafter kissed her
lips and neck and with the intent of having carnal
knowledge with her, touched her sex organ and tried to
remove her panties thereby commencing [t]he
commission of the crime of Rape directly by overt acts
but said accused did not accomplish his purpose, that is,
to have a carnal knowledge with her, it was not because
of his spontaneous and voluntary desistance but because
the said Julita Tria succeeding in resisting his criminal
attempt and also due to the timely arrival of her mother to
the damage and prejudice of the said Julita Tria y
Balagao.
CONTRARY TO LAW. 1
At his arraignment, with the assistance of counsel,
petitioner pleaded not guilty. Trial ensued.
To buttress its case against petitioner, the prosecution
presented the testimonies of Eufemia Tria, mother of the
complainant, Julita Tria, the complainant, and Dr.
Emmanuel Cortez-Asuncion. As culled from the decision
of the CA, these witnesses testified as follows:
Eufemia Tria, in her testimony, gave an account of the
incident that took place in the morning of April 14, 1988.
She was then washing clothes outside their house when
she heard someone cry "Inay". She then peeped into their
window which was just a few meters from where she was
and there saw her daughter Julita lying flat on a bamboo
bed with her skirt raised. She saw accused Adelmo on top
of Julita with her hands pinned down. As accused was
kissing her daughter in the neck, his buttocks were
moving in an up and down motion while her daughter was
fighting back and struggling to break free. Eufemia then
rushed straight to the room where she found accused
hiding under the bamboo bed. She then ordered the
accused to come out which he did. She thought of hacking
the accused with the bolo which she found hanging on the
wall but realized that she could not do it and instead
dragged the accused out of the house and brought him to
his parents' house to tell them what happened.
Complainant Julita Tria testified that in the morning of
April 14, 1988, after she was through with washing the
dishes, she proceeded to the bedroom to store away their
beddings. Suddenly, out of nowhere, accused appeared
pulled her by the hand, embraced her from behind and
held her breasts. At this juncture, he pulled her to the
bamboo bed, positioned himself on top of her and placed
her hands behind her as he kissed her lips and neck. She
tried to avoid his kisses by moving her head from side to
side. As she was pinned by accused's vise-like grip,
accused then managed to insert his right hand inside her
t-shirt and bra and squeezed nipples. Thereafter, he tried
to raise her balloon-like skirt with his right hand, inserted
it inside her panty and held her private part while making
up and down motions. Accused then retorted "Sige na,
pagbigyan mo na ako." It was at this point when she cried
out "Inay". Shortly thereafter, her mother entered the
room and found the accused under the bamboo bed.
Complainant further testified that it was not the first time
that accused assaulted her. On March 25, 1988, while she
was in the kitchen doing the dishes, accused suddenly
appeared at her back with unzipped shorts and bare torso,
embraced her and warned her not to make a sound or else
he would kill her. He then jumped out of the window and
fled. She did not tell anybody about this incident for fear
that accused will make good his promise.
Dr. Emmanuel Cortez-Asuncion who conducted the
medical examination on the complainant, testified as to
the extent of injuries sustained by her and that the slight
physical injuries could have been caused by attempted
rape (TSN, September 16, 1988). 2
For its part, the defense presented as its witnesses Junar
Perez and petitioner. They testified as follows:
Junar Perez is a ten (10) year old grade IV honor pupil
who at the time of the incident was on vacation at his
grandmother's place. In the morning of April 14, 1988, he
was playing with his cousins near the house of his Auntie
Feming (Julita's mother) when he got thirsty and asked for
a drink in the latter's house. There he saw Julita and
accused conversing while seated on a bench near the door.
He also saw Eufemia washing clothes a few meters away
from Julita and the accused. He did not hear any noise in
the house.
Accused Adelmo Perez declared that he was in Julita's
house that morning of April 14, 1988 upon her prodding
for him to come over as he would often do. When Junar
had left the house, he invited Julita to the room where they
could not be seen by her mother, there they embraced and
kissed, he then inserted his hand inside her clothes, held
her breast and slowly laid her on the bamboo bed. Shortly
thereafter, her mother called Julita so she stood up but
later returned and they again resumed embracing and
kissing after which they laid down on the bamboo bed and
he was able to place himself on top of her. He sensed that
someone had entered the house and so stood up and hid
under the bed upon Julita's advice. He denied that the acts
done were against Julita's will. In fact, he claimed that he
and Julita were already becoming intimate. 3
After the prosecution and the defense presented their
respective evidence, the trial court rendered judgment
finding petitioner guilty of attempted rape. The
dispositive portion of the trial court's decision reads:
WHEREFORE, judgment is hereby rendered convicting
the accused, Adelmo Perez y Agustin, of the crime of
ATTEMPTED RAPE, the prosecution having proved his
guilt beyond reasonable doubt. Said accused is hereby
sentenced to jail term of two (2) years, four (4) months
and one (1) day of prision correccional as minimum to
eight (8) years and one (1) day of prision mayor as
maximum. He shall be credited with time spent under
detention.
SO ORDERED. 4
Aggrieved, petitioner appealed to the CA. The appellate
court, finding the appeal to be unmeritorious, affirmed
petitioner's conviction. The dispositive portion of the
assailed decision reads:
WHEREFORE, the judgment herein appealed from is
hereby AFFIRMED in toto. Costs against appellant.
SO ORDERED. 5
Petitioner now comes to this Court assailing the decision
of the CA. Petitioner raises the following issues:
I
WAS THE CRIME COMMITTED BY THE
PETITIONER ATTEMPTED RAPE OR ACTS OF
LASCIVIOUSNESS; and
II
DID THE PROSECUTION PRESENT THE
QUANTUM OF PROOF NECESSARY TO
ESTABLISH THE GUILT OF THE PETITIONER
BEYOND REASONABLE DOUBT.
The petition is partly meritorious. The issues shall be
discussed jointly as they are interrelated.
To exculpate himself, petitioner impugns the credibility
of the complainant. Petitioner contradicts the
complainant's allegations as he (petitioner) insists that
what transpired between them was a consensual act.
It is well settled in this jurisdiction that the determination
of credibility of witnesses is properly within the domain
of the trial court as it is in the best position to observe their
demeanor and bodily movements. 6 The trial court in this
case found the witnesses for the prosecution and their
version of the incident more credible as it made these
findings:
No woman would ordinarily complain to the police and
concoct a story that an uncle attempted to rape her, or
subject herself to medical examination of her private
parts, unless righteous indignation compelled her. This
was particularly reinforced by the fact that she submitted
herself thereto that afternoon of the same day,
accompanied by her father and mother.
Julita's and her mother's accounts were clear,
spontaneous, natural and credible as weighed against the
flimsy excuse of the accused.
The physician admitted that the physical injuries suffered
by Julita could have been caused by attempted rape.
Julita would not have shouted, "Inay" if she liked and
consented to what her uncle was doing to her. The intact
hymen of Julita also disproves the accused's declaration
that they were "getting intimate." He himself refused to
call themselves lovers.
The intention to force Julita to submit to sexual
intercourse has been proved by these pieces of evidence
which have not been refuted or disproved: he suddenly
kissed, embraced and dragged her to the bamboo bed
where he continued to kiss her lips and neck; then
squeezed her nipples and mashed her breast by inserting
his hand in her panty and held her vagina, doing the up
and down movement as he held her hands under her with
his left hand; he unzipped his short pants; put out his penis
while on top of her, as Julita struggled, kicked and pushed
(after he [sic] hands were freed) to extricate herself. The
medical certificate found physical injuries in the neck and
navel which could have been caused by blunt force,
FORCE WOULD HAVE BEEN UNNECESSARY IF
JULITA CONSENTED TO THESE ACTS. 7
These findings of the trial court had been affirmed by the
CA. The Court is not inclined to deviate from these courts'
findings that petitioner, against the will of the
complainant, performed sexual acts on the latter.
However, a careful review of the records of the case
shows that the crime committed by petitioner was acts of
lasciviousness not attempted rape.
Under Article 6 of the Revised Penal Code, there is an
attempt when the offender commences the commission of
a felony directly by overt acts, and does not perform all
the acts of execution which should produce the felony by
reason of some cause or accident other than his own
spontaneous desistance. In the crime of rape, penetration
is an essential act of execution to produce the felony. 8
Thus, for there to be an attempted rape, the accused must
have commenced the act of penetrating his sexual organ
to the vagina of the victim but for some cause or accident
other than his own spontaneous desistance, the
penetration, however slight, is not completed.
There is no showing in this case that petitioner's sexual
organ had even touched complainant's vagina nor any part
of her body. The complainant testified as follows:
Q: After Adelmo Perez embraced you by the way you
demonstrated, what else did Adelmo Perez do?
A: He pulled me towards the bamboo bed (papag).
Q: How did he pull you towards the bamboo bed?
A: While he was embracing me.
Q: He pulled you towards the wooden bed while he was
holding you or embracing you in that position you are
demonstrating?
A: Yes, sir.
xxx xxx xxx
Q: While you were sitting on the lap of the accused
Adelmo Perez, what else did Adelmo Perez do to you?
A: He laid me face up on the "papag" or on the wooden
bed, sir.
Q: Did he manage to lay you down on the wooden papag?
A: Yes, your honor.
xxx xxx xxx
Q: How were you positioned in (sic) the wooden bed or
"papag" after Adelmo Perez succeed in lying you down?
A: I was lying face up your Honor.
xxx xxx xxx
Q: And while you were in that position or "nakatihaya po
ako," what else did Adelmo Perez do?
A: He placed himself on top of me, sir.
Q: What was his position?
A: He was lying face down on me.
Q: When you said Adelmo Perez succeeded in lying down
in the wooden papag, what was the position of your feet?
A: They were hanging from the edge of the "papag" your
honor.
xxx xxx xxx
Q: And while your two hands were at your back, the way
you demonstrated where was Adelmo Perez?
A: He was on top of me, sir.
Q: And what was he doing?
A: He was kissing me on my lips and my neck, sir.
Q: And while Adelmo Perez was kissing you, what did
you do, if you did anything?
A: I was trying to avoid his face sir by moving my face.
xxx xxx xxx
Q: What exactly did you want to do with that movement?
A: I was trying to avoid his face by moving my face, so
that he could not kiss me and I was trying to extricate
myself.
Q: So what you were trying to avoid is his face?
A: Yes, your honor.
Q: You mean his right hand was free but it was not doing
anything?
A: It was moving your Honor.
Q: But it was not doing anything aside from merely
moving?
A: His right hand was doing something.
Q: Precisely you were asked.
A: He inserted his right hand inside my T-shirt and inside
my bra.
Q: And after, when the right hand of Adelmo Perez was
inside your bra, what did he do or what was his right hand
doing inside your bra?
A: He was mashing my nipple, sir.
Q: Which nipples?
A: Both nipples, Your Honor.
Q: You mean your brassier was not detached but his hand
was inside, between your brassier and the nipple?
A: Yes, Your Honor.
Q: While the right hand of Adelmo Perez was inside your
bra and squeezing your nipple, what else did he do?
A: He took his hand off from the inside of my T-shirt and
he tried to raise my skirt, sir.
xxx xxx xxx
Q: And while the accused Adelmo Perez tried to raise
your skirt, what else did you do?
A: He inserted his hand inside my panties and held my
vagina, sir.
Q: What did he use in holding your vagina?
A: Right hand, sir.
Q: And when he held your vagina, what did his right hand
do with your vagina?
A: He held it, sir.
xxx xxx xxx
Q: What happened next?
A: After he held my vagina he told me "Sige na,
pagbigyan mo na ako" and that was the time I shouted.
xxx xxx xxx
Q: What did you say when you shouted?
A: I said "Inay" (The witness shouted)? 9
Petitioner's acts of lying on top of the complainant,
embracing and kissing her, mashing her breasts, inserting
his hand inside her panty and touching her sexual organ,
while admittedly obscene and detestable acts, do not
constitute attempted rape absent any showing that
petitioner actually commenced to force his penis into the
complainant's sexual organ. Rather, these acts constitute
acts of lasciviousness. The elements of said crime are: (1)
that the offender commits any act of lasciviousness or
lewdness; (2) that it is done (a) by using force and
intimidation or (b) when the offended party is deprived of
reason or otherwise unconscious, or (c) when the
offended party is under 12 years of age; and (3) that the
offended party is another person of either sex. 10
All these elements are present and have been sufficiently
established in this case. Petitioner clearly committed lewd
acts against the complainant. Moreover, petitioner
employed force when he committed these acts on the
complainant. In fact, as found by the trial court, there
were bruises on complainant's neck and navel which belie
petitioner's claim that the complainant consented to these
acts.
Although the information filed against petitioner was for
attempted rape, he can be convicted of acts of
lasciviousness because the crime of acts of lasciviousness
is included in rape. 11
The penalty for acts of lasciviousness is prision
correccional. 12 There being no aggravating or mitigating
circumstance alleged and proven in this case, the penalty
prescribed by law shall be imposed in its medium period,
13 i.e., from 2 years, 4 months and 1 day to 4 years and 2
months. Applying the Indeterminate Sentence Law, said
penalty shall constitute the maximum term, while the
minimum shall be within the range of the penalty next
lower to that prescribed by the Revised Penal Code for the
offense, i.e., arresto mayor or 1 month and 1 day to 6
months. Petitioner is hereby sentenced to suffer the
penalty of 6 months of arresto mayor, as minimum, to 4
years and 2 months of prision correccional, as maximum.
WHEREFORE, the Decision, dated December 16, 1999,
of the Court of Appeals in CA-G.R. CR No. 19971 is
hereby MODIFIED. Petitioner Adelmo Perez y Agustin
is found guilty beyond reasonable doubt of the crime of
acts of lasciviousness, as defined and penalized under
Article 336 of the Revised Penal Code, and sentenced to
suffer the indeterminate penalty of 6 months of arresto
mayor, as minimum, to 4 years and 2 months of prision
correccional, as maximum. HDATSI
SO ORDERED.
||| (Perez y Agustin v. Court of Appeals, G.R. No. 143838,
[May 9, 2002], 431 PHIL 786-797)