SECOND DIVISION and NAIMAH B.
and NAIMAH B. UNTE, both are low-ranking officials
G.R. Nos. 221849-50, April 04, 2016
DATU GUIMID P. MATALAM, Petitioner, v. PEOPLE
OF THE PHILIPPINES, Respondent.
RESOLUTION
LEONEN, J.:
This resolves the Petition for Review on Certiorari
assailing the Joint Decision1 dated April 28, 2015 and
Resolution dated November 2, 2015 of the
Sandiganbayan in Criminal Case Nos. 26707 to
26708. The Sandiganbayan found petitioner Datu
Guimid P. Matalam (Matalam) guilty of non-
remittance of the employer's share in Government
Insurance System and Home Development Mutual
Fund (Pag-IBIG Fund) premiums.
The Office of the Ombudsman charged Matalam,
Regional Secretary of the Department of Agrarian
Reform-Autonomous Region for Muslim Mindanao
(DAR-ARMM), with the commission of crimes under
"Section 52 (g) of Republic Act No. 8921, otherwise
known as the [Government Service Insurance System
(GSIS)] Act of 1997, and Section 1, Rule XIII of the
Implementing Rules and Regulations of Republic Act
No. 7742":2
Criminal Case No. 26707
(Violation of Sec. 52 (g), Republic Act No. 8291)
"That sometime in 1997, or prior to or subsequent
thereto, in Cotabato City, Maguindanao, Philippines,
and within the jurisdiction of this Honorable Court,
accused DATU GUIMID MATALAM, a high-ranking
public officer being the Regional Secretary of the
Department of Agrarian Reform-Autonomous Region
for Muslim Mindanao (DAR-ARMM), ANSARRY LAWI
1|Page
Mutual Fund (PAG-IBIG), did, there and then,
being the Cashier and Accountant, respectively, of
the same aforestated government office, committing
the offense in relation to their official duties and
taking advantage of their official positions,
conspiring together and taking advantage of their
official positions, conspiring together and helping
one another, and as such accountable officers
involved in the collection and remittance of accounts
to GSIS, did, there and then, willfully, unlawfully and
criminally, fail and/or refuse to pay or remit the sum
of TWO MILLION FOUR HUNDRED EIGHTEEN
THOUSAND FIVE HUNDRED SEVENTY-SEVEN AND
33/100 PESOS (P2,418,577.33), representing
employer's contribution of [DAR Provincial Office]-
Maguindanao for the period of January, 1997 to June
1998, to GSIS, it being due and demandable, without
justifiable cause and despite repeated demands
made.
CONTRARY TO LAW."
Criminal Case No. 26708
(Violation of Sec. 1, Rule XIII of the Implementing
Rules &
Regulations of Republic Act No. 7742)
"That sometime in 1997, or prior to or subsequent
thereto, in Cotabato City, Maguindanao, Philippines,
and within the jurisdiction of this Honorable Court,
accused DATU GUIMID MATALAM, a high-ranking
public officer being the Regional Secretary of the
Department of Agrarian Reform-Autonomous Region
for Muslim Mindanao (DAR-ARMM), ANSARRY LAWI
and NAIMAH B. UNTE, both are low-ranking officials
being the Cashier and Accountant, respectively, of
the same aforestated government office, committing
the offense in relation to their official duties and
taking advantage of their official positions,
conspiring together and helping one another, and as
such accountable officers involved in the collection
and remittance of accounts to Home Development
willfully, unlawfully and criminally, fail and/or refuse
to pay or remit the sum of ONE HUNDRED FORTY-
NINE THOUSAND ONE HUNDRED PESOS
(P149,100.00), representing employer's contribution
of [DAR Provincial Office]-Maguindanao for the
period of January, 1997 to June 1998, to GSIS, it
being due and demandable, without justifiable cause
and despite repeated demands made.
CONTRARY TO LAW."3ChanRoblesVirtualawlibrary
On August 11, 2003, Matalam was arraigned and he
pleaded not guilty.4 On October 20, 2004, Matalam's
co-accused, Ansarry Lawi (Lawi) and Naimah B. Unte
(Unte), were arraigned and they separately pleaded
not guilty.5
The Prosecution presented both documentary and
testimonial evidence for both criminal cases.6 The
Prosecution presented five (5) witnesses: (1) Lilia
Gamut-gamutan Delangalen, Accountant III of the
GSIS, Cotabato Branch; (2) Rolando Roque, Chief of
Division under the Member Services Division of Pag-
IBIG Fund, Cotabato Branch; (3) Husain Enden
Matanog, State Auditor III of the Office of the
Auditor and Resident of DAR-ARMM, DAR Regional
Office; (4) Luz Cantor-Malbog, Director of Bureau C
of the Department of Budget and Management; and
(5) Abdulkadil Angas Alabat, Department Manager of
the Land Bank of the Philippines, Cotabato Branch.7
According to the Prosecution, Matalam, Lawi, and
Unte were the officers involved in the collection and
remittance of accounts to the GSIS and Pag-IBIG
Fund and, thus, were accountable for the non-
remittance.8 Matalam and his co-accused failed
and/or refused to remit the required contributions
without justifiable cause despite repeated
demands.9
Matalam, for his part, presented both testimonial
and documentary evidence. He claimed that his co-
accused Lawi and Unte were responsible for
remitting the GSIS and Pag-IBIG Fund government
contributions.10 Matalam presented a document
entitled Fourth Indorsement dated April 30, 1998
addressed to Lawi, directing the latter to comment
or act on the Third Indorsement of Husain Matanog.
The Fourth Indorsement was signed by Atty. Tommy
A. Ala, who was then Matalam's Chief of
Staff.11 Matalam also presented other memoranda
directing Unte and Lawi to comment on the
Indorsement of Husain Matanog.12 When asked why
he did not sanction Lawi and Unte upon their failure
to comply with his directive, Matalam said that he
did not have time to do so because he had numerous
pending tasks at that time.13
Lawi and Unte failed to present evidence despite the
opportunities given them.14
In the Joint Decision dated April 28, 2015, the
Sandiganbayan found Matalam guilty of the crimes
charged.15
In Criminal Case No. 26707,16 the Sandiganbayan
held that on July 17, 1998, Zenaida D. Ferrer, GSIS
Officer-in-Charge, sent a Notice of Underpayment to
Matalam, which reads:17
We wish to inform you that we have validated your
office Premium Master List as of 31 December 1997
and actual remittances for compulsory GSIS
Premiums covering the month/s of January 1997-
June 1998.
Based on the Remittance Lists submitted to this
office, your total actual remittances for the above-
stated period is understated per attached Statement
of Account.
Due to this understatement, interests and
2|Page
surcharges will accrue from the due date to the time
of payment. Kindly make necessary adjustments on
your next remittances.
Should there be discrepancy with the amount based
on your records, please come to our office for
reconciliation.
Your cooperation on this matter is highly
appreciated.18
The Sandiganbayan found that wjth the Notice of
Underpayment were six (6) Statements of Account of
Compulsory Contributions Due and Payable as of
June 30, 1998, all addressed to Matalam.19
Further, the Sandiganbayan found that the
Department of Budget and Management released
the funds to the DAR-ARMM through the
corresponding Advice of Notice of Cash Allocation
issued.20 According to the court:
These funds were credited to the account of the
Office of the Regional Governor of the ARMM, which
had the obligation to remit to the various line
agencies of the ARMM the specific amounts
provided to them. As for the remittance to DAR-
ARMM, it appears based on the confirmation by
Abdulkadil Angas Alabat, the Department Manager
of the Cotabato Branch of Landbank of the
Philippines, which has been the official depository of
the ARMM since the latter s inception, that the
following amounts were deposited into Account No.
0372-1054-29 maintained by DAR-ARMM for its Fund
101 [.]21 (Emphasis supplied)
Hence, the Sandiganbayan held that:
The act constituting the offense is the failure, refusal
or delay in the payment, turnover, remittance or
delivery of such accounts to the GSIS within thirty
(30) days from the time that the same shall have
been due and demandable.
Accused Matalam was admittedly the DAR-ARMM
Secretary from January 1997 until 1998, and also the
concurrent Vice-Governor of the ARMM Region. As
the DAR-ARMM Secretary from January 1997 until
1998, [Matalam] was considered the highest official
of DAR-Maguindanao. As such he falls under the first
category of responsible officials. . . The thrust of his
defense shifting the duty to remit to his co-accused,
Lawi and Unte, is unavailing since these two officials
fall under the second category of officials
responsible for such remittance.22
In Criminal Case No. 26708,23 the Sandiganbayan
found Matalam guilty of non-remittance of the
employer's share of Pag-IBIG Fund premiums.
According to the Sandiganbayan, under the pertinent
rules and law, it is the employer who is penalized for
the non-remittance to Pag-IBIG Fund:
Since it is the employer who is penalized for non-
remittance of the contribution under Section 5, Rule
VI and Section 1, Rule XIII ... the term "employer"
should be characterized as to its exact coverage. As
defined in Section 1 of Rule III of the same
Implementing Rules and Regulations, an "employer"
is any person, natural or juridical, domestic or
foreign, who carries on in the Philippines any trade,
business, industry, undertaking or activity of any
kind, and uses the services of another person who is
under his orders as regards such services, the
government, its national and local offices, political
subdivision, branches, agencies, or instrumentalities
including corporations owned and/or controlled by
the Government.24
Based on the definition of the term "employer"
under the law, the Sandiganbayan ruled that it is the
head of the office or the agency that has the
obligation to remit the contributions. That the letters
of the Pag-IBIG Fund's Chief of the Member Services
Division (Cotabato Branch), which directed
remittance of the employer's share to the Pag-IBIG
Fund, were addressed to the Head of Office of the
DAR Provincial Office in Maguindanao bolsters the
correct application of the provisions of the
Implementing Rules and Regulations of Republic Act
No. 7742.25cralawred
The dispositive portion of the Sandiganbayan
Decision reads:
WHEREFORE, in the light of all the foregoing, the
Court hereby renders judgment as follows:
1. In Criminal Case No. 26707, accused DATU
GUIMID MATALAM, ANSARRY LAWI and NAIMAH
UNTE are hereby found Guilty beyond reasonable
doubt of Violation of Section 52(g) of R.A. No. 8291,
and are each sentenced to suffer the indeterminate
penalty of imprisonment ranging from one (1) year
as minimum to three (3) years as maximum, and to
pay a fine of P20,000.00 each. They shall further
suffer absolute perpetual disqualification from
holding public office and from practicing any
profession or calling licensed by the Government.
2. In Criminal Case No. 26708, accused DATU
GUIMID MATALAM is hereby found Guilty beyond
reasonable doubt of Violation of Section 1, Rule XIII
of the Implementing Rules and Regulations of R.A.
No. 7742, and is hereby sentenced to pay a fine of
P190,506.00, and in addition, to pay a penalty of
three percent per month of the amounts payable
computed from the date the contributions fell due
and until the same are paid.
For lack of basis, accused ANSARRY LAWI and
NAIMAH UNTE are hereby ACQUITTED of this
3|Page
offense. State Auditor.35
SO ORDERED.26 In addition, the billing statements were not
addressed to Matalam.36 The billing statements were
sent to the Accounting Division of DAR; hence, it
Matalam filed a Motion for Reconsideration of the
Decision, which was denied by the Sandiganbayan on should have been Unte's duty as accountant to deal
with the statements or to bring them to Matalam's
November 2, 2015.27cralawred
attention.37
Matalam now comes before this court and assails
the Sandiganbayan Decision. Matalam also assails the testimony of witness
Abdulkadil Alabat for being incomplete. According to
Matalam, not all of the bank statements allegedly
Matalam argues that a review of the factual findings
of the Sandiganbayan would reveal that there is related to ARMM's account with the Land Bank of
the Philippines, Cotabato Branch, was presented in
reasonable doubt that he committed the crimes
court. Moreover, based on witnesses' testimonies,
imputed to him.28 Testimonies of the witnesses
the Notices of Cash Allocation were addressed to the
showed that the funds for the remittances due to
GSIS and Pag-IBIG Fund were released to the Office Office of the Regional Governor of the ARMM, not to
DAR-ARMM.38
of the Regional Governor of the ARMM and not to
DAR-ARMM.29 Even if the funds were, indeed,
Furthermore, Matalam argues that even if the
released to DAR-ARMM, "Matalam as the Regional
offenses he allegedly committed are mala prohibita,
Secretary could not be held accountable for the non-
his guilt must still be proven beyond reasonable
payment or remittance, since as a matter of
doubt.39 The pieces of evidence presented in this
procedure, he merely acts as a signatory to whatever
document is necessary for the payment of the case create a reasonable doubt as to his guilt.40 Thus,
a re-evaluation of the evidence is required.41
employer's share to both GSIS and Pag-IBIG
[Fund]."30 It is the Office of the Regional Governor
The main issue in this case is whether petitioner
that has the duty to release the funds.31
Datu Guimid P. Matalam is guilty beyond reasonable
doubt of non-remittance of the employer's share of
Matalam insists that his duty to affix his signature as
the GSIS and Pag-IBIG Fund premiums.
head of the office was only ministerial.32 His
signature was conditioned on his receipt of the
We deny the Petition.
disbursement vouchers prepared by the accountant
and checked by the cashier.33
Petitioner failed to show that the Sandiganbayan
committed reversible error in rendering the assailed
Matalam also claims that he was not negligent in
Decision and Resolution. Petitioner is liable for the
reminding his co-accused to respond to the
non-remittance of the contributions to GSIS and Pag-
complaints regarding non-remittance to GSIS and
IBIG Fund.
Pag-IBIG Fund.34 Matalam sent four (4) memoranda
addressed to Lawi and Unte as DAR-ARMM's cashier
Petitioner's liability for the non-remittance to GSIS
and accountant, respectively, to respond to the
and Pag-IBIG Fund of the employer's share in the
complaints and to the letter of Husain Matanog, the
contributions is clearly set out in the laws mandating
the collection and remittance of the premiums:
Republic Act No. 8291, Sec. 52 (g):
I. PENAL PROVISIONS
SEC. 52. Penalty.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 175888 February 11, 2009
SUZETTE NICOLAS y SOMBILON, Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Secretary of
Foreign Affairs; RAUL GONZALEZ, in his capacity as
Secretary of Justice; EDUARDO ERMITA, in his
capacity as Executive Secretary; RONALDO PUNO, in
his capacity as Secretary of the Interior and Local
Government; SERGIO APOSTOL, in his capacity as
Presidential Legal Counsel; and L/CPL. DANIEL
SMITH, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 176051 February 11, 2009
JOVITO R. SALONGA, WIGBERTO E. TAÑADA, JOSE DE
LA RAMA, EMILIO C. CAPULONG, H. HARRY L.
ROQUE, JR., FLORIN HILBAY, and BENJAMIN
POZON, Petitioners,
vs.
DANIEL SMITH, SECRETARY RAUL GONZALEZ,
PRESIDENTIAL LEGAL COUNSEL SERGIO APOSTOL,
4|Page
SECRETARY RONALDO PUNO, SECRETARY ALBERTO
ROMULO, The Special 16th Division of the COURT OF
APPEALS, and all persons acting in their
capacity, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 176222 February 11, 2009
BAGONG ALYANSANG MAKABAYAN (BAYAN),
represented by Dr. Carol Araullo; GABRIELA,
represented by Emerenciana de Jesus; BAYAN
MUNA, represented by Rep. Satur Ocampo;
GABRIELA WOMEN'S PARTY, represented by Rep.
Liza Maza; KILUSANG MAYO UNO (KMU),
represented by Elmer Labog; KILUSANG
MAGBUBUKID NG PILIPINAS (KMP), represented by
Willy Marbella; LEAGUE OF FILIPINO STUDENTS (LFS),
represented by Vencer Crisostomo; and THE PUBLIC
INTEREST LAW CENTER, represented by Atty. Rachel
Pastores, Petitioners,
vs.
PRESIDENT GLORIA MACAPAGAL-ARROYO, in her
capacity as concurrent Defense Secretary,
EXECUTIVE SECRETARY EDUARDO ERMITA, FOREIGN
AFFAIRS SECRETARY ALBERTO ROMULO, JUSTICE
SECRETARY RAUL GONZALEZ, AND INTERIOR AND
LOCAL GOVERNMENT SECRETARY RONALDO
PUNO, Respondents.
DECISION
AZCUNA, J.:
These are petitions for certiorari, etc. as special civil
actions and/or for review of the Decision of the
Court of Appeals in Lance Corporal Daniel J. Smith v.
Hon. Benjamin T. Pozon, et al., in CA-G.R. SP No.
97212, dated January 2, 2007.
The facts are not disputed.
Respondent Lance Corporal (L/CPL) Daniel Smith is a
member of the United States Armed Forces. He was
charged with the crime of rape committed against a
Filipina, petitioner herein, sometime on November 1,
2005, as follows:
The undersigned accused LCpl. Daniel Smith, Ssgt.
Chad Brian Carpentier, Dominic Duplantis, Keith
Silkwood and Timoteo L. Soriano, Jr. of the crime of
Rape under Article 266-A of the Revised Penal Code,
as amended by Republic Act 8353, upon a complaint
under oath filed by Suzette S. Nicolas, which is
attached hereto and made an integral part hereof as
Annex "A," committed as follows:
"That on or about the First (1st) day of November
2005, inside the Subic Bay Freeport Zone, Olongapo
City and within the jurisdiction of this Honorable
Court, the above-named accused’s (sic), being then
members of the United States Marine Corps, except
Timoteo L. Soriano, Jr., conspiring, confederating
together and mutually helping one another, with
lewd design and by means of force, threat and
intimidation, with abuse of superior strength and
taking advantage of the intoxication of the victim,
did then and there willfully, unlawfully and
feloniously sexually abuse and have sexual
intercourse with or carnal knowledge of one Suzette
S. Nicolas, a 22-year old unmarried woman inside a
Starex Van with Plate No. WKF-162, owned by
Starways Travel and Tours, with Office address at
8900 P. Victor St., Guadalupe, Makati City, and
driven by accused Timoteo L. Soriano, Jr., against the
will and consent of the said Suzette S. Nicolas, to her
damage and prejudice.
CONTRARY TO LAW."1
Pursuant to the Visiting Forces Agreement (VFA)
between the Republic of the Philippines and the
United States, entered into on February 10, 1998,
the United States, at its request, was granted
custody of defendant Smith pending the
proceedings.
During the trial, which was transferred from the
Regional Trial Court (RTC) of Zambales to the RTC of
Makati for security reasons, the United States
Government faithfully complied with its undertaking
to bring defendant Smith to the trial court every
time his presence was required.
On December 4, 2006, the RTC of Makati, following
the end of the trial, rendered its Decision, finding
defendant Smith guilty, thus:
WHEREFORE, premises considered, for failure of the
prosecution to adduce sufficient evidence against
accused S/SGT. CHAD BRIAN CARPENTER, L/CPL.
KEITH SILKWOOD AND L/CPL. DOMINIC DUPLANTIS,
all of the US Marine Corps assigned at the USS Essex,
are hereby ACQUITTED to the crime charged.
The prosecution having presented sufficient
evidence against accused L/CPL. DANIEL J. SMITH,
also of the US Marine Corps at the USS Essex, this
Court hereby finds him GUILTY BEYOND
REASONABLE DOUBT of the crime of RAPE defined
under Article 266-A, paragraph 1 (a) of the Revised
Penal Code, as amended by R.A. 8353, and, in
accordance with Article 266-B, first paragraph
thereof, hereby sentences him to suffer the penalty
of reclusion perpetua together with the accessory
penalties provided for under Article 41 of the same
Code.
Pursuant to Article V, paragraph No. 10, of the
Visiting Forces Agreement entered into by the
Philippines and the United States, accused L/CPL.
5|Page
DANIEL J. SMITH shall serve his sentence in the
facilities that shall, thereafter, be agreed upon by
appropriate Philippine and United States authorities.
Pending agreement on such facilities, accused L/CPL.
DANIEL J. SMITH is hereby temporarily committed to
the Makati City Jail.
Accused L/CPL. DANIEL J. SMITH is further sentenced
to indemnify complainant SUZETTE S. NICOLAS in the
amount of ₱50,000.00 as compensatory damages
plus ₱50,000.00 as moral damages.
SO ORDERED.2
As a result, the Makati court ordered Smith detained
at the Makati jail until further orders.
On December 29, 2006, however, defendant Smith
was taken out of the Makati jail by a contingent of
Philippine law enforcement agents, purportedly
acting under orders of the Department of the
Interior and Local Government, and brought to a
facility for detention under the control of the United
States government, provided for under new
agreements between the Philippines and the United
States, referred to as the Romulo-Kenney Agreement
of December 19, 2006 which states:
The Government of the Republic of the Philippines
and the Government of the United States of America
agree that, in accordance with the Visiting Forces
Agreement signed between our two nations, Lance
Corporal Daniel J. Smith, United States Marine Corps,
be returned to U.S. military custody at the U.S.
Embassy in Manila.
(Sgd.) Kristie A. Kenney (Sgd.) Alberto G. Romulo
Representative of the United Representative of the
States Republic
of America of the Philippines
DATE: 12-19-06 DATE: December 19,
and the Romulo-Kenney Agreement of December 22,
2006 which states:
The Department of Foreign Affairs of the Republic of
the Philippines and the Embassy of the United States
of America agree that, in accordance with the
Visiting Forces Agreement signed between the two
nations, upon transfer of Lance Corporal Daniel J.
Smith, United States Marine Corps, from the Makati
City Jail, he will be detained at the first floor, Rowe
(JUSMAG) Building, U.S. Embassy Compound in a
room of approximately 10 x 12 square feet. He will
be guarded round the clock by U.S. military
personnel. The Philippine police and jail authorities,
under the direct supervision of the Philippine
Department of Interior and Local Government (DILG)
will have access to the place of detention to ensure
the United States is in compliance with the terms of
the VFA.
The matter was brought before the Court of Appeals
which decided on January 2, 2007, as follows:
WHEREFORE, all the foregoing considered, we
resolved to DISMISS the petition for having become
moot.3
Hence, the present actions.
The petitions were heard on oral arguments on
September 19, 2008, after which the parties
submitted their memoranda.
Petitioners contend that the Philippines should have
custody of defendant L/CPL Smith because, first of
all, the VFA is void and unconstitutional.
This issue had been raised before, and this Court
resolved in favor of the constitutionality of the VFA.
This was in Bayan v. Zamora,4 brought by Bayan, one
of petitioners in the present cases.
Against the barriers of res judicata vis-à-vis Bayan,
and stare decisis vis-à-vis all the parties, the reversal
of the previous ruling is sought on the ground that
the issue is of primordial importance, involving the
sovereignty of the Republic, as well as a specific
mandate of the Constitution.
The provision of the Constitution is Art. XVIII, Sec. 25
which states:
Sec. 25. After the expiration in 1991 of the
Agreement between the Philippines and the United
States of America concerning Military Bases, foreign
military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress
so requires, ratified by a majority of the votes cast by
the people in a national referendum held for that
purpose, and recognized as a treaty by the other
contracting State.
The reason for this provision lies in history and the
Philippine experience in regard to the United States
military bases in the country.
It will be recalled that under the Philippine Bill of
1902, which laid the basis for the Philippine
Commonwealth and, eventually, for the recognition
of independence, the United States agreed to cede
to the Philippines all the territory it acquired from
Spain under the Treaty of Paris, plus a few islands
later added to its realm, except certain naval ports
and/or military bases and facilities, which the United
States retained for itself.
6|Page
This is noteworthy, because what this means is that
Clark and Subic and the other places in the
Philippines covered by the RP-US Military Bases
Agreement of 1947 were not Philippine territory, as
they were excluded from the cession and retained by
the US.
Accordingly, the Philippines had no jurisdiction over
these bases except to the extent allowed by the
United States. Furthermore, the RP-US Military Bases
Agreement was never advised for ratification by the
United States Senate, a disparity in treatment,
because the Philippines regarded it as a treaty and
had it concurred in by our Senate.
Subsequently, the United States agreed to turn over
these bases to the Philippines; and with the
expiration of the RP-US Military Bases Agreement in
1991, the territory covered by these bases were
finally ceded to the Philippines.
To prevent a recurrence of this experience, the
provision in question was adopted in the 1987
Constitution.
The provision is thus designed to ensure that any
agreement allowing the presence of foreign military
bases, troops or facilities in Philippine territory shall
be equally binding on the Philippines and the foreign
sovereign State involved. The idea is to prevent a
recurrence of the situation in which the terms and
conditions governing the presence of foreign armed
forces in our territory were binding upon us but not
upon the foreign State.
Applying the provision to the situation involved in
these cases, the question is whether or not the
presence of US Armed Forces in Philippine territory
pursuant to the VFA is allowed "under a treaty duly
concurred in by the Senate xxx and recognized as a
treaty by the other contracting State."
This Court finds that it is, for two reasons.
First, as held in Bayan v. Zamora,5 the VFA was duly
concurred in by the Philippine Senate and has been
recognized as a treaty by the United States as
attested and certified by the duly authorized
representative of the United States government.
The fact that the VFA was not submitted for advice
and consent of the United States Senate does not
detract from its status as a binding international
agreement or treaty recognized by the said State.
For this is a matter of internal United States law.
Notice can be taken of the internationally known
practice by the United States of submitting to its
Senate for advice and consent agreements that are
policymaking in nature, whereas those that carry out
or further implement these policymaking
agreements are merely submitted to Congress,
under the provisions of the so-called Case–Zablocki
Act, within sixty days from ratification.6
The second reason has to do with the relation
between the VFA and the RP-US Mutual Defense
Treaty of August 30, 1951. This earlier agreement
was signed and duly ratified with the concurrence of
both the Philippine Senate and the United States
Senate.
The RP-US Mutual Defense Treaty states:7
MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC
OF THE PHILIPPINES AND THE UNITED STATES OF
AMERICA. Signed at Washington, August 30, 1951.
The Parties of this Treaty
Reaffirming their faith in the purposes and principles
of the Charter of the United Nations and their desire
to live in peace with all peoples and all governments,
and desiring to strengthen the fabric of peace in the
Pacific area.
Recalling with mutual pride the historic relationship
which brought their two peoples together in a
common bond of sympathy and mutual ideals to
fight side-by-side against imperialist aggression
during the last war.
Desiring to declare publicly and formally their sense
of unity and their common determination to defend
themselves against external armed attack, so that no
potential aggressor could be under the illusion that
either of them stands alone in the Pacific area.
Desiring further to strengthen their present efforts
for collective defense for the preservation of peace
and security pending the development of a more
comprehensive system of regional security in the
Pacific area.
Agreeing that nothing in this present instrument
shall be considered or interpreted as in any way or
sense altering or diminishing any existing
agreements or understandings between the Republic
of the Philippines and the United States of America.
Have agreed as follows:
Article I. The parties undertake, as set forth in the
Charter of the United Nations, to settle any
international disputes in which they may be involved
by peaceful means in such a manner that
international peace and security and justice are not
endangered and to refrain in their international
relation from the threat or use of force in any
manner inconsistent with the purposes of the United
Nations.
7|Page
Article II. In order more effectively to achieve the
objective of this Treaty, the Parties separately and
jointly by self-help and mutual aid will maintain and
develop their individual and collective capacity to
resist armed attack.
Article III. The Parties, through their Foreign
Ministers or their deputies, will consult together
from time to time regarding the implementation of
this Treaty and whenever in the opinion of either of
them the territorial integrity, political independence
or security of either of the Parties is threatened by
external armed attack in the Pacific.
Article IV. Each Party recognizes that an armed
attack in the Pacific area on either of the parties
would be dangerous to its own peace and safety and
declares that it would act to meet the common
dangers in accordance with its constitutional
processes.
Any such armed attack and all measures taken as a
result thereof shall be immediately reported to the
Security Council of the United Nations. Such
measures shall be terminated when the Security
Council has taken the measures necessary to restore
and maintain international peace and security.
Article V. For the purpose of Article IV, an armed
attack on either of the Parties is deemed to include
an armed attack on the metropolitan territory of
either of the Parties, or on the island territories
under its jurisdiction in the Pacific Ocean, its armed
forces, public vessels or aircraft in the Pacific.
Article VI. This Treaty does not affect and shall not
be interpreted as affecting in any way the rights and
obligations of the Parties under the Charter of the
United Nations or the responsibility of the United
Nations for the maintenance of international peace
and security.
Article VII. This Treaty shall be ratified by the
Republic of the Philippines and the United Nations of
America in accordance with their respective
constitutional processes and will come into force
when instruments of ratification thereof have been
exchanged by them at Manila.
Article VIII. This Treaty shall remain in force
indefinitely. Either Party may terminate it one year
after notice has been given to the other party.
In withness whereof the undersigned
Plenipotentiaries have signed this Treaty.
Done in duplicate at Washington this thirtieth day of
August, 1951.
For the Republic of the Philippines:
(Sgd.) Carlos P. Romulo
(Sgd.) Joaquin M. Elizalde
(Sgd.) Vicente J. Francisco
(Sgd.) Diosdado Macapagal
For the United States of America:
(Sgd.) Dean Acheson
(Sgd.) John Foster Dulles
(Sgd.) Tom Connally
(Sgd.) Alexander Wiley8
Clearly, therefore, joint RP-US military exercises for
the purpose of developing the capability to resist an
armed attack fall squarely under the provisions of
the RP-US Mutual Defense Treaty. The VFA, which is
the instrument agreed upon to provide for the joint
RP-US military exercises, is simply an implementing
agreement to the main RP-US Military Defense
Treaty. The Preamble of the VFA states:
The Government of the United States of America and
the Government of the Republic of the Philippines,
Reaffirming their faith in the purposes and principles
of the Charter of the United Nations and their desire
to strengthen international and regional security in
the Pacific area;
Reaffirming their obligations under the Mutual
Defense Treaty of August 30, 1951;
Noting that from time to time elements of the
United States armed forces may visit the Republic of
the Philippines;
Considering that cooperation between the United
States and the Republic of the Philippines promotes
their common security interests;
Recognizing the desirability of defining the
treatment of United States personnel visiting the
Republic of the Philippines;
Have agreed as follows:9
Accordingly, as an implementing agreement of the
RP-US Mutual Defense Treaty, it was not necessary
to submit the VFA to the US Senate for advice and
consent, but merely to the US Congress under the
Case–Zablocki Act within 60 days of its ratification. It
is for this reason that the US has certified that it
recognizes the VFA as a binding international
agreement, i.e., a treaty, and this substantially
8|Page
complies with the requirements of Art. XVIII, Sec. 25
of our Constitution.10
The provision of Art. XVIII, Sec. 25 of the
Constitution, is complied with by virtue of the fact
that the presence of the US Armed Forces through
the VFA is a presence "allowed under" the RP-US
Mutual Defense Treaty. Since the RP-US Mutual
Defense Treaty itself has been ratified and concurred
in by both the Philippine Senate and the US Senate,
there is no violation of the Constitutional provision
resulting from such presence.
The VFA being a valid and binding agreement, the
parties are required as a matter of international law
to abide by its terms and provisions.
The VFA provides that in cases of offenses
committed by the members of the US Armed Forces
in the Philippines, the following rules apply:
Article V
Criminal Jurisdiction
xxx
6. The custody of any United States personnel over
whom the Philippines is to exercise jurisdiction shall
immediately reside with United States military
authorities, if they so request, from the commission
of the offense until completion of all judicial
proceedings. United States military authorities shall,
upon formal notification by the Philippine authorities
and without delay, make such personnel available to
those authorities in time for any investigative or
judicial proceedings relating to the offense with
which the person has been charged. In extraordinary
cases, the Philippine Government shall present its
position to the United States Government regarding
custody, which the United States Government shall
take into full account. In the event Philippine judicial
proceedings are not completed within one year, the
United States shall be relieved of any obligations
under this paragraph. The one year period will not
include the time necessary to appeal. Also, the one
year period will not include any time during which
scheduled trial procedures are delayed because
United States authorities, after timely notification by
Philippine authorities to arrange for the presence of
the accused, fail to do so.
Petitioners contend that these undertakings violate
another provision of the Constitution, namely, that
providing for the exclusive power of this Court to
adopt rules of procedure for all courts in the
Philippines (Art. VIII, Sec. 5[5]). They argue that to
allow the transfer of custody of an accused to a
foreign power is to provide for a different rule of
procedure for that accused, which also violates the
equal protection clause of the Constitution (Art. III,
Sec. 1.).
Again, this Court finds no violation of the
Constitution.
The equal protection clause is not violated, because
there is a substantial basis for a different treatment
of a member of a foreign military armed forces
allowed to enter our territory and all other
accused.11
The rule in international law is that a foreign armed
forces allowed to enter one’s territory is immune
from local jurisdiction, except to the extent agreed
upon. The Status of Forces Agreements involving
foreign military units around the world vary in terms
and conditions, according to the situation of the
parties involved, and reflect their bargaining power.
But the principle remains, i.e., the receiving State
can exercise jurisdiction over the forces of the
sending State only to the extent agreed upon by the
parties.12
As a result, the situation involved is not one in which
the power of this Court to adopt rules of procedure
is curtailed or violated, but rather one in which, as is
normally encountered around the world, the laws
(including rules of procedure) of one State do not
extend or apply – except to the extent agreed upon –
to subjects of another State due to the recognition
of extraterritorial immunity given to such bodies as
visiting foreign armed forces.
Nothing in the Constitution prohibits such
agreements recognizing immunity from jurisdiction
or some aspects of jurisdiction (such as custody), in
relation to long-recognized subjects of such
immunity like Heads of State, diplomats and
members of the armed forces contingents of a
foreign State allowed to enter another State’s
territory. On the contrary, the Constitution states
that the Philippines adopts the generally accepted
principles of international law as part of the law of
the land. (Art. II, Sec. 2).
Applying, however, the provisions of VFA, the Court
finds that there is a different treatment when it
comes to detention as against custody. The moment
the accused has to be detained, e.g., after
conviction, the rule that governs is the following
provision of the VFA:
Article V
Criminal Jurisdiction
xxx
Sec. 10. The confinement or detention by Philippine
authorities of United States personnel shall be
9|Page
carried out in facilities agreed on by appropriate
Philippines and United States authorities. United
States personnel serving sentences in the Philippines
shall have the right to visits and material assistance.
It is clear that the parties to the VFA recognized the
difference between custody during the trial and
detention after conviction, because they provided
for a specific arrangement to cover detention. And
this specific arrangement clearly states not only that
the detention shall be carried out in facilities agreed
on by authorities of both parties, but also that the
detention shall be "by Philippine authorities."
Therefore, the Romulo-Kenney Agreements of
December 19 and 22, 2006, which are agreements
on the detention of the accused in the United States
Embassy, are not in accord with the VFA itself
because such detention is not "by Philippine
authorities."
Respondents should therefore comply with the VFA
and negotiate with representatives of the United
States towards an agreement on detention facilities
under Philippine authorities as mandated by Art. V,
Sec. 10 of the VFA.
Next, the Court addresses the recent decision of the
United States Supreme Court in Medellin v. Texas (
552 US ___ No. 06-984, March 25, 2008), which held
that treaties entered into by the United States are
not automatically part of their domestic law unless
these treaties are self-executing or there is an
implementing legislation to make them
enforceable.1avvphi1
On February 3, 2009, the Court issued a Resolution,
thus:
"G.R. No. 175888 (Suzette Nicolas y Sombilon v.
Alberto Romulo, et al.); G.R. No. 176051 (Jovito R.
Salonga, et al. v. Daniel Smith, et al.); and G.R. No.
176222 (Bagong Alyansang Makabayan [BAYAN], et
al. v. President Gloria Macapagal-Arroyo, et al.).
The parties, including the Solicitor General, are
required to submit within three (3) days a
Comment/Manifestation on the following points:
1. What is the implication on the RP-US
Visiting Forces Agreement of the recent US
Supreme Court decision in Jose Ernesto
Medellin v. Texas, dated March 25, 2008, to
the effect that treaty stipulations that are
not self-executory can only be enforced
pursuant to legislation to carry them into
effect; and that, while treaties may
comprise international commitments, they
are not domestic law unless Congress has
enacted implementing statutes or the
treaty itself conveys an intention that it be
"self-executory" and is ratified on these
terms?
2. Whether the VFA is enforceable in the US
as domestic law, either because it is self-
executory or because there exists legislation
to implement it.
3. Whether the RP-US Mutual Defense
Treaty of August 30, 1951 was concurred in
by the US Senate and, if so, is there proof of
the US Senate advice and consent
resolution? Peralta, J., no part."
After deliberation, the Court holds, on these points,
as follows:
First, the VFA is a self-executing Agreement, as that
term is defined in Medellin itself, because the parties
intend its provisions to be enforceable, precisely
because the Agreement is intended to carry out
obligations and undertakings under the RP-US
Mutual Defense Treaty. As a matter of fact, the VFA
has been implemented and executed, with the US
faithfully complying with its obligation to produce
L/CPL Smith before the court during the trial.
Secondly, the VFA is covered by implementing
legislation, namely, the Case-Zablocki Act, USC Sec.
112(b), inasmuch as it is the very purpose and intent
of the US Congress that executive agreements
registered under this Act within 60 days from their
ratification be immediately implemented. The
parties to these present cases do not question the
fact that the VFA has been registered under the
Case-Zablocki Act.1avvphi1
In sum, therefore, the VFA differs from the Vienna
Convention on Consular Relations and the Avena
decision of the International Court of Justice (ICJ),
subject matter of the Medellin decision. The
Convention and the ICJ decision are not self-
executing and are not registrable under the Case-
Zablocki Act, and thus lack legislative implementing
authority.
Finally, the RP-US Mutual Defense Treaty was
advised and consented to by the US Senate on
March 20, 1952, as reflected in the US Congressional
Record, 82nd Congress, Second Session, Vol. 98 –
Part 2, pp. 2594-2595.
The framers of the Constitution were aware that the
application of international law in domestic courts
varies from country to country.
As Ward N. Ferdinandusse states in his Treatise,
DIRECT APPLICATION OF INTERNATIONAL CRIMINAL
LAW IN NATIONAL COURTS, some countries require
legislation whereas others do not.
It was not the intention of the framers of the 1987
Constitution, in adopting Article XVIII, Sec. 25, to
10 | P a g e
require the other contracting State to convert their
system to achieve alignment and parity with ours. It
was simply required that the treaty be recognized as
a treaty by the other contracting State. With that, it
becomes for both parties a binding international
obligation and the enforcement of that obligation is
left to the normal recourse and processes under
international law.
Furthermore, as held by the US Supreme Court in
Weinberger v. Rossi,13 an executive agreement is a
"treaty" within the meaning of that word in
international law and constitutes enforceable
domestic law vis-à-vis the United States. Thus, the
US Supreme Court in Weinberger enforced the
provisions of the executive agreement granting
preferential employment to Filipinos in the US Bases
here.
Accordingly, there are three types of treaties in the
American system:
1. Art. II, Sec. 2 treaties – These are advised
and consented to by the US Senate in
accordance with Art. II, Sec. 2 of the US
Constitution.
2. Executive–Congressional Agreements:
These are joint agreements of the President
and Congress and need not be submitted to
the Senate.
3. Sole Executive Agreements. – These are
agreements entered into by the President.
They are to be submitted to Congress within
sixty (60) days of ratification under the
provisions of the Case-Zablocki Act, after
which they are recognized by the Congress
and may be implemented.
As regards the implementation of the RP-US Mutual
Defense Treaty, military aid or assistance has been
given under it and this can only be done through
implementing legislation. The VFA itself is another
form of implementation of its provisions.
WHEREFORE, the petitions are PARTLY GRANTED,
and the Court of Appeals’ Decision in CA-G.R. SP No.
97212 dated January 2, 2007 is MODIFIED. The
Visiting Forces Agreement (VFA) between the
Republic of the Philippines and the United States,
entered into on February 10, 1998, is UPHELD as
constitutional, but the Romulo-Kenney Agreements
of December 19 and 22, 2006 are DECLARED not in
accordance with the VFA, and respondent Secretary
of Foreign Affairs is hereby ordered to forthwith
negotiate with the United States representatives for
the appropriate agreement on detention facilities
under Philippine authorities as provided in Art. V,
Sec. 10 of the VFA, pending which the status quo
shall be maintained until further orders by this
Court.
The Court of Appeals is hereby directed to resolve
without delay the related matters pending therein,
namely, the petition for contempt and the appeal of
L/CPL Daniel Smith from the judgment of conviction.
No costs.
SO ORDERED.
ADOLFO S. AZCUNA
Associate Justice
EN BANC
G.R. No. L-44896 July 31, 1936
 RODOLFO A. SCHNECKENBURGER, Petitioner,
vs. MANUEL V. MORAN, Judge of First Instance of
Manila, Respondent.
Cardenas and Casal for petitioner.
Office of the Solicitor-General Hilado for respondent.
ABAD SANTOS, J.: chanrobles virtual law library
The petitioner was duly accredited honorary consul
of Uruguay at Manila, Philippine Islands on June 11,
1934. He was subsequently charged in the Court of
First Instance of Manila with the crime of falsification
of a private document. He objected to the
jurisdiction of the court on the ground that both
under the Constitution of the United States and the
Constitution of the Philippines the court below had
no jurisdiction to try him. His objection having been
overruled, he filed this petition for a writ of
prohibition with a view to preventing the Court of
First Instance of Manila from taking cognizance of
the criminal action filed against
him.chanroblesvirtualawlibrary chanrobles virtual
law library
In support of this petition counsel for the petitioner
contend (1) That the Court of First Instance of Manila
is without jurisdiction to try the case filed against the
petitioner for the reason that under Article III,
section 2, of the Constitution of the United States,
the Supreme Court of the United States has original
jurisdiction in all cases affecting ambassadors, other
public ministers, and consuls, and such jurisdiction
excludes the courts of the Philippines; and (2) that
even under the Constitution of the Philippines
original jurisdiction over cases affecting
ambassadors, other public ministers, and consuls, is
conferred exclusively upon the Supreme Court of the
Philippines.chanroblesvirtualawlibrary chanrobles
virtual law library
11 | P a g e
This case involves no question of diplomatic
immunity. It is well settled that a consul is not
entitled to the privileges and immunities of an
ambassador or minister, but is subject to the laws
and regulations of the country to which he is
accredited. ( Ex parte Baiz, 135 U. S., 403; 34 Law.
ed., 222.) A consul is not exempt from criminal
prosecution for violations of the laws of the country
where he resides. (U. S. vs. Ravara, 2 Dall., 297; 1
Law. ed., 388; Wheaton's International Law [2d ed.],
423.) The substantial question raised in this case is
one of jurisdiction.
1. We find no merit in the contention that Article III,
section 2, of the Constitution of the United States
governs this case. We do not deem it necessary to
discuss the question whether the constitutional
provision relied upon by the petitioner extended ex
propio vigore over the Philippines. Suffice it to say
that the inauguration of the Philippine
Commonwealth on November 15, 1935, has brought
about a fundamental change in the political and legal
status of the Philippines. On the date mentioned the
Constitution of the Philippines went into full force
and effect. This Constitution is the supreme law of
the land. Not only the members of this court but all
other officers, legislative, executive and judicial, of
the Government of the Commonwealth, are bound
by oath to support the Constitution. (Article XIII,
section 2.) This court owes its own existence to the
great instrument, and derives all its powers
therefrom. In the exercise of its powers and
jurisdiction, this court is bound by the provisions of
the Constitution. The Constitution provides that the
original jurisdiction of this court "shall include all
cases affecting ambassadors, other public ministers,
and consuls." In deciding the instant case this court
cannot go beyond this constitutional
provision.chanroblesvirtualawlibrary chanrobles
virtual law library
2. It remains to consider whether the original
jurisdiction thus conferred upon this court by the
Constitution over cases affecting ambassadors, other
public ministers, and consuls, is exclusive. The
Constitution does not define the jurisdiction of this
court in specific terms, but merely provides that "the
Supreme Court shall have such original and appellate
jurisdiction as may be possessed and exercised by
the Supreme Court of the Philippine Islands at the
time of the adoption of this Constitution." It then
goes on to provide that the original jurisdiction of
this court "shall include all cases affecting
ambassadors, other public ministers, and consuls."
In the light of the constitutional provisions above
adverted to, the question arises whether the original
jurisdiction possessed and exercised by the Supreme
Court of the Philippine Islands at the time of the
adoption of the Constitution was
exclusive.chanroblesvirtualawlibrary chanrobles
virtual law library
The original jurisdiction possessed and exercised by
the Supreme Court of the Philippine Islands at the
time of the adoption of the Constitution was derived
from section 17 of Act No. 136, which reads as
follows: The Supreme Court shall have original
jurisdiction to issue writs of mandamus, certiorari,
prohibition, habeas corpus, and quo warranto in the
cases and in the manner prescribed in the Code of
Civil Procedure, and to hear and determine the
controversies thus brought before it, and in other
cases provided by law." Jurisdiction to issue writs
of quo warranto, certiorari, mandamus, prohibition,
and habeas corpus was also conferred on the Courts
of First Instance by the Code of Civil Procedure. (Act
No. 190, secs. 197, 217, 222, 226, and 525.) It results
that the original jurisdiction possessed and exercised
by the Supreme Court of the Philippine Islands at the
time of the adoption of the Constitution was not
exclusive of, but concurrent with, that of the Courts
of First Instance. Inasmuch as this is the same
original jurisdiction vested in this court by the
Constitution and made to include all cases affecting
ambassadors, other public ministers, and consuls, it
follows that the jurisdiction of this court over such
cases is not
exclusive.chanroblesvirtualawlibrary chanrobles
virtual law library
The conclusion we have reached upon this branch of
the case finds support in the pertinent decisions of
the Supreme Court of the United States. The
Constitution of the United States provides that the
Supreme Court shall have "original jurisdiction" in all
cases affecting ambassadors, other public ministers,
and consuls. In construing this constitutional
provision, the Supreme Court of the United States
held that the "original jurisdiction thus conferred
upon the Supreme Court by the Constitution was not
exclusive jurisdiction, and that such grant of original
jurisdiction did not prevent Congress from conferring
original jurisdiction in cases affecting consuls on the
subordinate courts of the Union. (U.
S. vs. Ravara, supra; Bors vs. Preston, 111 U. S., 252;
28 Law. ed., 419.)chanrobles virtual law library
3. The laws in force in the Philippines prior to the
inauguration of the Commonwealth conferred upon
the Courts of the First Instance original jurisdiction in
all criminal cases to which a penalty of more than six
months' imprisonment or a fine exceeding one
hundred dollars might be imposed. (Act No. 136, sec.
56.) Such jurisdiction included the trial of criminal
actions brought against consuls for, as we have
already indicated, consuls, not being entitled to the
privileges and immunities of ambassadors or
ministers, are subject to the laws and regulations of
the country where they reside. By Article XV, section
2, of the Constitution, all laws of the Philippine
Islands in force at the time of the adoption of the
Constitution were to continue in force until the
12 | P a g e
inauguration of the Commonwealth; thereafter, they
were to remain operative, unless inconsistent with
the Constitution until amended, altered, modified, or
repealed by the National Assembly. The original
jurisdiction granted to the Courts of First Instance to
try criminal cases was not made exclusively by any,
law in force prior to the inauguration of the
Commonwealth, and having reached the conclusion
that the jurisdiction conferred upon this court by the
Constitution over cases affecting ambassadors, other
public ministers, and consuls, is not an exclusive
jurisdiction, the laws in force at the time of the
adoption of the Constitution, granting the Courts of
First Instance jurisdiction in such cases, are not
inconsistent with the Constitution, and must be
deemed to remain operative and in force, subject to
the power of the National Assembly to amend alter,
modify, or repeal the same. (Asiatic P. Co. vs. Insular
Collector of Customs, U. S. Supreme Court [Law. ed.],
Adv. Ops., vol. 80, No. 12, pp. 620, 623.)chanrobles
virtual law library
We conclude, therefore, that the Court of First
Instance of Manila has jurisdiction to try the
petitioner, an that the petition for a writ of
prohibition must be denied. So ordered.
Avance�a, C. J., Villa-Real, Imperial, Diaz, and Recto,
JJ., concur.
Separate Opinions
LAUREL, J., concurring:chanrobles virtual law library
In my humble opinion, there are three reasons why
the jurisdiction of this court over the petitioner in
the instant case is concurrent and not exclusive. The
strictly legal reason is set forth in the preceding
illuminating opinion. The other reasons are ( a)
historical and based on what I consider is the ( b)
theory upon which the grant of legislative authority
under our Constitution is
predicated.chanroblesvirtualawlibrary chanrobles
virtual law library
( a) As the provision in our Constitution regarding
jurisdiction in cases affecting ambassadors, other
public ministers, and consuls, has been taken from
the Constitution of the United States, considerable
light would be gained by an examination of the
history and interpretation thereof in the United
States.chanroblesvirtualawlibrary chanrobles virtual
law library
The fifth resolution of the New Jersey plan (Paterson
resolutions of June 15, 1787) gave the Supreme
Court of the United States, the only national court
under the plan, authority to hear and determine "by
way of appeal, in the dernier resort . . . all cases
touching the rights of ambassadors . . . ." This clause,
however, was not approved. On July 18, the
Convention of 1787 voted an extraordinarily broad
jurisdiction to the Supreme Court extending "to
cases arising under laws passed by the general
legislature, and to such other questions as involve
the national peace and harmony." This general
proposition was considerably narrowed by Randolph
in his draft of May 29 which, however, did not
mention anything about ambassadors, other public
ministers and consuls. But the Committee of Detail,
through Rutledge, reported on August 6 as follows:
"Article XI, Section 3. The jurisdiction of the Supreme
Court shall extend . . . to all cases affecting
ambassadors, other public ministers and consuls; . . .
In . . . cases affecting ambassadors, other public
ministers and consuls, . . . this jurisdiction shall be
original . . . ."On September 12, the Committee on
Style reported the provision as follows: "Article III,
Section 2. The judicial power shall extend . . . to all
cases affecting ambassadors, other public ministers
and consuls . . . In (all) cases affecting ambassadors,
other public ministers and consuls . . . the Supreme
Court shall have original jurisdiction." This provision
was approved in the convention with hardly any
amendment or debate and is now found in clause 2,
section 2 of Article III of the Constitution of the
United States. (The Constitution and the Courts,
Article on "Growth of the Constitution", by William
M. Meigs, New York, 1924, vol. 1, pp. 228, 229. See
also Farrand, Records of the Federal Convention of
1787, Yale University Press, 1934, 3 vols.; Warren,
The Making of the Constitution, Boston, 1928, pp.
534-537.)chanrobles virtual law library
The word "original", however, was early interpreted
as not exclusive. Two years after the adoption of the
Federal Constitution, or in 1789, the First Judiciary
Act (Act of September 24, 1789, 1 Stat., c. 20, 687)
was approved by the first Congress creating the
United States District and Circuit Courts which
were nisi prius courts, or courts of first instance
which dealt with different items of litigation. The
district courts are now the only federal courts of first
instance, the circuit courts having been abolished by
the Act of March 3, 1911, otherwise known as the
Judicial Code. The Judiciary Act of 1787 invested the
district courts with jurisdiction, exclusively of the
courts of the several states, of all suits against
consuls or vice-consuls and the Supreme Court of the
United States with original but not exclusive
jurisdiction of all suits in which a consul or vice-
consul shall be a party. By the passage of the Act of
February 18, 1875 (18 Stat., 470, c. 137), the clause
giving the federal courts exclusive jurisdiction was
repealed and, since then state courts have had
concurrent jurisdiction with the federal courts over
civil or criminal proceedings against a consul or vice-
consul. At the present time, the federal courts
exercise exclusive jurisdiction "of suits or
proceedings against ambassadors or other or other
13 | P a g e
public ministers, or their domestics or domestic
servants, as a court of law can have consistently with
the law of nations; and original, but not exclusive,
jurisdiction, of all suits brought by ambassadors or
other public ministers, or in which a consul or vice-
consul is a party." (Act of March 8, 1911, 36 Stat.,
1156, reenacting sec. 687 of the Act of September
24, 1789; 28 U. S. C. A., sec. 341; Hopkins' Federal
Judicial Code, 4th ed., by Babbit, 1934, sec. 233.) The
district courts now have original jurisdiction of all
suits against consuls and vice-consuls." (Act of March
3, 1911, 36 Stat., 1093; 28 U. S. C. A., sec. 41, subsec.
18; Hopkins' Federal Judicial Code, 4th ed., by
Babbit, 1934, sec. 24, par. 18.)chanrobles virtual law
library
The Judiciary Act of 1789 was one of the early and
most satisfactory acts passed by the Congress of the
United States. It has remained essentially unchanged
for more than 145 years. It was prepared chiefly by
Oliver Ellsworth of Connecticut (1 Ann. Cong., 18,
April 7, 1789) one of the ablest jurists in the
Constitutional Convention, who was later Chief
Justice of the Supreme Court of the United States
(1796-1800). It is interesting to note that 10 of the
18 senators and 8 of the members of the House of
the first Congress had been among the 55 delegates
who actually attended the Convention that adopted
the federal Constitution (Warren, Congress, the
Constitution and the Supreme Court [Boston, 1935],
p. 99). When, therefore, the first Congress approved
the Judiciary Act of 1789 vesting in the Supreme
Court original but not exclusive jurisdiction of all
suits in which a consul or a vice-consul shall be a
party, express legislative interpretation as to the
meaning of the word "original" as not being
exclusive was definitely made and this interpretation
has never been repudiated. As stated by the
Supreme Court of the United States in
Ames vs. Kansas ([1884], 111 U. S., 449; 4 S. Ct., 437;
28 Law. ed., 482):
In view of the practical construction put on this
provision of the Constitution by Congress, at the very
moment of the organization of the government, and
of the significant fact that, from 1789 until now, no
court of the United States has ever in its actual
adjudications determined to the contrary, we are
unable to say that it is not within the power of
Congress to grant to the inferior courts of the United
States jurisdiction in cases where the Supreme Court
has been vested by the Constitution with original
jurisdiction. It rests with the legislative department
of the government to say to what extent such grants
shall be made, and it may safely be assumed that
nothing will ever be done to encroach upon the high
privileges of those for whose protection the
constitutional provision was intended. At any rate,
we are unwilling to say that the power to make the
grant does not exist.
Dicta in some earlier cases seem to hold that the
word "original" means "exclusive" and as observed
by Justice Field in United States vs. Louisiana ([1887],
123 U. S., 36; 8 S. Ct., 17; 31 Law. ed., 69), the
question has given rise to some differences of
opinion among the earlier members of the Supreme
Court of the United States. ( See, for instance,
dissenting opinion of Iredell, J., in U. S. vs. Ravara
[1793], 2 Dall., 297; 1 Law. ed., 388.) Reliance was
had on more or less general expressions made by
Chief Justice Marshall in the case of
Marbury vs. Madison ([1803], 1 Cranch, 137; 2 Law.
ed., 60), where it was said:chanrobles virtual law
library
"If congress remains at liberty to give this court
appellate jurisdiction, where the constitution has
declared their jurisdiction shall be original; and
original jurisdiction where the constitution has
declared it shall be appellate; the distribution of
jurisdiction, made in the constitution, is form
without substance." But Chief Justice Marshall who
penned the decision in this case in 1803 had
occasion later, in 1821, to explain the meaning and
extent of the pronouncements made in the Marbury
case. He said:
In the case of Marbury vs. Madison ([1803], 1 Cranch
[U. S.], 137, 172; 2 Law. ed., 60), the single question
before the court, so far as that case can be applied
to this, was, whether the legislature could give this
court original jurisdiction in a case in which the
Constitution had clearly not given it, and in which no
doubt respecting the construction of the article
could possibly be raised. The court decided, and we
think very properly, that the legislature could not
give original jurisdiction in such a case. But, in the
reasoning of the court in support of this decision,
some expressions are used which go far beyond it.
The counsel for Marbury had insisted on the
unlimited discretion of the legislature in the
apportionment of the judicial power; and it is against
this argument that the reasoning of the court is
directed. They say that, if such had been the
intention of the article, "it would certainly have been
useless to proceed farther than to define the judicial
power, and the tribunals in which it should be
vested." The court says, that such a construction
would render the clause, dividing the jurisdiction of
the court into original and appellate, totally useless;
that "affirmative words are often, in their operation,
negative of other objects than those which are
affirmed; and, in this case (in the case of
Marbury vs. Madison), a negative or exclusive sense
must be given to them, or they have no operation at
all." "It cannot be presumed," adds the court, "that
any clause in the Constitution is intended to be
without effect; and, therefore, such a construction is
inadmissible, unless the words require it." The whole
reasoning of the court proceeds upon the idea that
the affirmative words of the clause giving one sort of
jurisdiction, must imply a negative of any other sort
of jurisdiction, because otherwise the words would
14 | P a g e
be totally inoperative, and this reasoning is advanced
in a case to which it was strictly applicable. If in that
case original jurisdiction could have been exercised,
the clause under consideration would have been
entirely useless. Having such cases only in its view,
the court lays down a principle which is generally
correct, in terms much broader than the decision,
and not only much broader than the reasoning with
which that decision is supported, but in some
instances contradictory to its principle. The
reasoning sustains the negative operation of the
words in that case, because otherwise the clause
would have no meaning whatever, and because such
operation was necessary to give effect to the
intention of the article. The effort now made is, to
apply the conclusion to which the court was
conducted by that reasoning in the particular case,
to one in which the words have their full operation
when understood affirmatively, and in which the
negative, or exclusive sense, is to be so used as to
defeat some of the great objects of the article. To
this construction the court cannot give its assent.
The general expressions in the case of
Marbury vs. Madison must be understood with the
limitations which are given to them in this opinion;
limitations which in no degree affect the decision in
that case, or the tenor of its reasoning.
(Cohens vs. Virginia [1821], 6 Wheat., 264, 400; 5
Law. ed., 257.)
What the Supreme Court in the case of
Marbury vs. Madison held then was that Congress
could not extend its original jurisdiction beyond the
cases expressly mentioned in the Constitution, the
rule of construction being that affirmative words of
the Constitution declaring in what cases the
Supreme Court shall have original jurisdiction must
be construed negatively as to all other cases. ( See Ex
parte Vallandigham [1864], 1 Wall., 243, 252; 17
Law. ed., 589; Martin vs. Hunter's Lessee [1816], 1
Wheat., 305, 330; 4 Law. ed., 97; U. S. vs. Haynes [D.
C. Mass., 1887], 29 Fed., 691, 696.) That was
all.chanroblesvirtualawlibrary chanrobles virtual law
library
It should be observed that Chief Justice Marshall
concurred in the opinion in the case of
Davis vs. Packard (11833], 7 Pet., 276; 8 Law. ed.,
684). In this case the jurisdiction of the state court of
New York over a civil suit against a foreign consul
was denied solely on the ground that jurisdiction had
been conferred in such a case upon the district
courts of the United States exclusively of the state
courts. Such a ground, says Justice Harlan in
Bors vs. Preston ([1884], 111 U. S., 252; 4 S. Ct., 407;
28 Law. ed., 419), would probably not have been
given had it been believed that the grant of original
jurisdiction to the Supreme Court deprived Congress
of the power to confer concurrent original
jurisdiction in such cases upon subordinate courts of
the Union, concluding that the decision in the case
"may be regarded, as an affirmance of the
constitutionality of the Act of 1789, giving original
jurisdiction in such cases, also, to District Courts of
the United States." Of the seven justices who
concurred in the judgment in the case of Davis, five
participated in the decision of Osborn vs. Bank of the
United States ([1824], 9 Wheat., 738; 6 Law. ed.,
204), also penned by Chief Justice Marshall and
relied upon as authority together with
Marbury vs. Madison, supra.chanroblesvirtualawlibr
ary chanrobles virtual law library
The rule enunciated in Bors vs. Preston, supra, is the
one followed in the United States. The question
involved in that case was whether the Circuit Court
then existing had jurisdiction under the Constitution
and laws of the United States to hear and determine
any suit whatever against the consul of a foreign
government. Justice Harlan said:chanrobles virtual
law library
The Constitution declares that "The judicial power of
the United States shall extend . . . to all cases
affecting ambassadors or other public ministers and
consuls;" to controversies between citizens of a state
and foreign citizens or subjects; that "In all cases
affecting ambassadors, other public ministers and
consuls, . . . the Supreme Court shall have original
jurisdiction;" and that in all other cases previously
mentioned in the same clause "The Supreme Court
shall have appellate jurisdiction, both as to law and
fact, with such exceptions and under such
regulations as the Congress shall make." The
Judiciary Act of 1789 invested the District Courts of
the United States with jurisdiction, exclusively of the
courts of the several States, of all suits against
consuls or vice-consuls, except for offenses of a
certain character; this court, with "Original, but not
exclusive, jurisdiction of all suits . . . in which a consul
or vice-consul shall be a party;" and the circuit courts
with jurisdiction of civil suits in which an alien is a
party. (l Stat. at L., 76-80.) In this act we have an
affirmance, by the first Congress - many of whose
members participated in the Convention which
adopted the Constitution and were, therefore,
conversant with the purposes of its framers - of the
principle that the original jurisdiction of this court of
cases in which a consul or vice-consul is a party, is
not necessarily exclusive, and that the subordinate
courts of the Union may be invested with jurisdiction
of cases affecting such representatives of foreign
governments. On a question of constitutional
construction, this fact is entitled to great
weight.chanroblesvirtualawlibrary chanrobles virtual
law library
In this case of Bors, Justice Harlan adopted the view
entertained by Chief Justice Taney in the earlier case
of Gittings vs. Crawford (C. C. Md., 1838; Taney's
Dec., 1, 10). In that case of Gittings, it was held that
neither public policy nor convenience would justify
the Supreme Court in implying that Congress is
15 | P a g e
prohibited from giving original jurisdiction in cases
affecting consuls to the inferior judicial tribunals of
the United States. Chief Justice Taney said:
If the arrangement and classification of the subjects
of jurisdiction into appellate and original, as respects
the Supreme Court, do not exclude that tribunal
from appellate power in the cases where original
jurisdiction is granted, can it be right, from the same
clause, to imply words of exclusion as respects other
courts whose jurisdiction is not there limited or
prescribed, but left for the future regulation of
Congress? The true rule in this case is, I think, the
rule which is constantly applied to ordinary acts of
legislation, in which the grant of jurisdiction over a
certain subject-matter to one court, does not, of
itself, imply that that jurisdiction is to be exclusive. In
the clause in question, there is nothing but mere
affirmative words of grant, and none that import a
design to exclude the subordinate jurisdiction of
other courts of the United States on the same
subject-matter. ( See also U.S. vs. Ravara [1793], 2
Dall., 297; 1 Law. ed., 388; United
States vs. Louisiana [1887], 123 U. S., 36; 8 S. Ct., 17;
31 Law. ed., 69; Ex parte Baiz [1890],135 U. S., 403;
10 S. Ct., 854; 34 Law. ed., 222, denying writ of
prohibition Hollander vs. Baiz [D. C. N. Y., 1890]; 41
Fed., 732; Iasigi vs. Van de Carr [1897], 166 U.S., 391;
17 S. Ct., 595; 41 Law. ed., 1045;
Graham vs. Strucken [C. C. N. Y., 1857]; 4 Blatchf.,
58; Lorway vs. Lousada [D. C. Mass., 1866]; Fed. Cas.,
No. 8517; St. Luke's Hospital vs. Barclay [C. C. N. Y.,
1855]; 3 Blatchf., 259; State of Texas vs. Lewis [C. C.
Tex., 1882], 14 Fed., 65; State of Alabama vs. Wolffe
(C. C. Ala., 1883], 18 Fed., 836, 837; Pooley vs. Luco
[D. C. Cal., 1896], 76 Fed., 146.)
It is interesting to note that in the case of St. Luke's
Hospital vs. Barclay, supra, the jurisdiction of circuit
courts exclusive of state courts over aliens, no
exception being made as to those who were consuls,
was maintained. ( See 1 U. S. Stat. at L., c. 20, sec. 11,
pp. 78, 79.)chanrobles virtual law library
From the history of, and the judicial interpretation
placed on, clause 2, section 2 of Article III of the
Constitution of the United States it seems clear that
the word "original" in reference to the jurisdiction of
Supreme Court of the United States over cases
affecting ambassadors, other public ministers and
consuls, was never intended to be exclusive as to
prevent the Congress from vesting concurrent
jurisdiction over cases affecting consuls and vice-
consuls in other federal
courts.chanroblesvirtualawlibrary chanrobles virtual
law library
It should be observed that the Philadelphia
Convention of 1787 placed cases affecting the official
representatives of foreign powers under the
jurisdiction of Federal Supreme Court to prevent the
public peace from being jeopardized. Since improper
treatment of foreign ambassadors, other public
ministers and consuls may be a casus belli, it was
thought that the federal government, which is
responsible for their treatment under international
law, should itself be provided with the means to
meet the demands imposed by international duty.
(Tucker, The Constitution of the United States
[1899], vol. II, 760, 772; vide, The Federalist, No.
LXXXI, Ashley's Reprint [1917], 415.) Bearing in mind
in the distinction which international law establishes
between ambassadors and other public ministers, on
the one hand, and consuls and other commercial
representatives, on the other, Congress saw it fit to
provide in one case a rule different from the other,
although as far as consuls and vice-consuls are
concerned, the jurisdiction of the Federal Supreme
Court, as already observed, though original is not
exclusive. But in the United States, there are two
judicial systems, independent one from the other,
while in the Philippines there is but one judicial
system. So that the reason in the United States for
excluding certain courts - the state courts - from
taking cognizance of cases against foreign
representatives stationed in the United States does
not obtain in the Philippines where the court of the
lowest grade is as much a part of an integrated
system as the highest
court.chanroblesvirtualawlibrary chanrobles virtual
law library
Let us now turn our own laws as they affect the case
of the petitioner. Undoubtedly Philippine courts are
not federal courts and they are not governed by the
Judiciary Acts of the United States. We have a
judicial system of our own, standing outside the
sphere of the American federal system and
possessing powers and exercising jurisdiction
pursuant to the provisions of our own Constitution
and laws.chanroblesvirtualawlibrary chanrobles
virtual law library
The jurisdiction of our courts over consuls is defined
and determined by our Constitution and laws which
include applicable treaties and accepted rules of the
laws of nations. There are no treaties between the
United States and Uruguay exempting consuls of
either country from the operation of local criminal
laws. Under the generally accepted principles of
international law, declared by our Constitution as
part of the law of the nation (Art. II sec. 3, cl. 2),
consuls and vice-consuls and other commercial
representatives of foreign nations do not possess the
status and can not claim the privilege and
immunities accorded to ambassadors and ministers.
(Wheaton, International Law, sec. 249; Kent,
Commentaries, 44; Story on the Constitution, sec.
1660; Mathews, The American Constitutional System
[1932], 204, 205; Gittings vs. Crawford, C. C. Md.,
1838; Taney's Dec., 1; Wilcox vs. Luco, 118 Cal., 639;
45 Pac., 676; 2 C. J., 9 R. C. L., 161.) The only
provisions touching the subject to which we may
16 | P a g e
refer are those found in the Constitution of the
Philippines. Let us trace the history of these
provisions.chanroblesvirtualawlibrary chanrobles
virtual law library
The report of the committee on the Judicial Power,
submitted on September 29, 1934, did not contain
any provisions regarding cases affecting
ambassadors, other public ministers and consuls.
The draft of the sub-committee of seven of the
Sponsorship Committee, submitted on October 20,
1934, however, contains the following provision:
Article X, Section 2. The Supreme Court shall have
such original jurisdiction as may be possessed and
exercised by the present Supreme Court of the
Philippine Islands at the time of the adoption of this
Constitution, which jurisdiction shall include all cases
affecting ambassadors, other foreign ministers and
consuls . . . ." The Special Committee on the
Judiciary, composed principally of Delegates Vicente
J. Francisco and Norberto Romualdez, included in its
report the provisions which now appear in sections 2
and 3 of Article VIII of the Constitution. Section 2
provides:chanrobles virtual law library
The National Assembly shall have the power to
define, prescribed, and apportion the jurisdiction of
the various courts, but may not deprive the Supreme
Court of its original jurisdiction over cases affecting
ambassadors, other ministers and consuls . . . . And
the second sentence of section 3
provides:chanrobles virtual law library
The original jurisdiction of the Supreme Court shall
include all cases affecting ambassadors, other public
ministers and consuls.
The provision in our Constitution in so far as it
confers upon our Supreme Court "original
jurisdiction over cases affecting ambassadors, other
public ministers and consuls" is literally the same as
that contained in clause 2, section 2 of Article III of
the United States
Constitution.chanroblesvirtualawlibrary chanrobles
virtual law library
In the course of the deliberation of the
Constitutional Convention, some doubt was
expressed regarding the character of the grant of
"original jurisdiction" to our Supreme Court. An
examination of the records of the proceedings of the
Constitutional convention show that the framers of
our Constitution were familiar with the history of,
and the judicial construction placed on, the same
provision of the United States Constitution. In order
to end what would have been a protracted
discussion on the subject, a member of the Special
Committee on the Judiciary gave the following
information to the members of the
Convention:chanrobles virtual law library
. . . Sr. Presidente, a fin de poder terminar con el
Articulo 2, el Comite esta dispuesto a hacer constar
que la interpretacion que debe dard a la ultima parte
de dicho articulo es la misma interpretacion que
siempre se ha dado a semejante disposicion en la
Constitucion de los Estados Unidos. (January
16,1935.) Without further discussion, the provision
was then and there
approved.chanroblesvirtualawlibrary chanrobles
virtual law library
It thus appears that the provision in question has
been given a well-settled meaning in the United
States - the country of its origin. It has there received
definite and hitherto unaltered legislative and
judicial interpretation. And the same meaning was
ascribed to it when incorporated in our own
Constitution. To paraphrase Justice Gray of the
Supreme Court of the United States, we are justified
in interpreting the provision of the Constitution in
the light of the principles and history with which its
framers were familiar. (United States vs. Wong Kin
Ark [1897], 169 U. S., 649; 18 S. Ct., 456; 42 Law. ed.,
890, cited with approval in Kepner vs. United States,
a case of Philippine origin [1904]; 195 U. S., 100; 49
Law. ed., 114.)chanrobles virtual law library
( b) What has been said hereinabove is not
unnecessary attachment to history or idolatrous
adherence to precedents. In referring to the history
of this provision of our Constitution it is realized that
historical discussion while valuable is not necessarily
decisive. Rationally, however, the philosophical
reason for the conclusion announced is not far to
seek if certain principles of constitutional
government are borne in mind. The constitution is
both a grant of, and a limitation upon, governmental
powers. In the absence of clear and unequivocal
restraint of legislative authority, the power is
retained by the people and is exercisable by their
representatives in their legislature. The rule is that
the legislature possess plenary power for all
purposes of civil government. A prohibition to
exercise legislative power is the exception. (Denio, C.
J., in People vs. Draper, 15 N.Y., 532, 543.) These
prohibitions or restrictions are found either in the
language used, or in the purpose held in view as well
as the circumstances which led to the adoption of
the particular provision as part of the fundamental
law. ( Ex parte Lewis, 45 Tex. Crim. Rep., 1; 73 S. W.,
811; 108 Am. St. Rep., 929.)chanrobles virtual law
library
Subject to certain limitations, the Filipino people,
through their delegates, have committed legislative
power in a most general way to the National
Assembly has plenary legislative power in all matters
of legislation except as limited by the constitution.
When, therefore, the constitution vests in the
Supreme Court original jurisdiction in cases affecting
ambassadors, other public ministers and consuls,
17 | P a g e
without specifying the exclusive character of the
grant, the National Assembly is not deprived of its
authority to make that jurisdiction concurrent. It has
been said that popular government lives because of
the inexhaustible reservoir of power behind. It is
unquestionable that the mass of powers of
government is vested in the representatives of the
people, and that these representatives are no
further restrained under our system than by the
express language of the instrument imposing the
restraint, or by particular provisions which, by clear
intendment, have that effect. (Angara vs. Electoral
Commission, p.139, ante.) What the Constitution
prohibits is merely the deprivation of the Supreme
Court of its original jurisdiction over cases affecting
ambassadors, other public ministers and consuls and
while it must be admitted that original jurisdiction if
made concurrent no longer remains exclusive, it is
also true that jurisdiction does not cease to be
original merely because it is
concurrent.chanroblesvirtualawlibrary chanrobles
virtual law library
It is also quite true that concurrent original
jurisdiction in this class of cases would mean the
sharing of the Supreme Court with the most inferior
courts of cases affecting ambassadors, other public
ministers and consuls such that the Supreme Court
would have concurrent jurisdiction with the lowest
courts in our judicial hierarchy, the justice of the
peace of the courts, in a petty case for the instance,
the violation of a municipal ordinance affecting the
parties just mentioned. However, no serious
objection to these result can be seen other that the
misinterpreted unwillingness to share this
jurisdiction with a court pertaining to the lowest
category in our judicial organization. Upon the other
hand, the fundamental reasoning would apply with
equal force if the highest court of the land is made to
take recognizance exclusively of a case involving the
violation of the municipal ordinance simply because
of the character of the parties affected. After
alluding to the fact that the position of consul of a
foreign government is sometimes filled by a citizen
of the United States (and this also true in the
Philippines) Chief Justice Taney, in
Gittings vs. Crawford, supra, observed:
It could hardly have been the intention of the
statesmen who framed our constitution to require
that one of our citizens who had a petty claim of
even less than five dollars against another citizen,
who had been clothed by some foreign government
with the consular office, should be compelled to go
into the Supreme Court to have a jury summoned in
order to enable him to recover it; nor could it have
been intended, that the time of that court, with all
its high duties to perform, should be taken up with
the trial of every petty offense that might be
committed by a consul by any part of the United
States; that consul, too, being often one of our own
citizens.
Probably, the most serious objection to the
interpretation herein advocated is, that considering
the actual distribution of jurisdiction between the
different courts in our jurisdiction, there may be
cases where the Supreme Court may not actually
exercise either original - whether exclusive or
concurrent - or appellate jurisdiction,
notwithstanding the grant of original jurisdiction in
this class of cases to the Supreme Court. If, for
instance, a criminal case is brought either in a justice
of the peace court or in a Court of First Instance
against a foreign consul and no question of law is
involved, it is evident that in case of conviction, the
proceedings will terminate in the Court Appeals and
will not reach the Supreme Court. In this case, the
Supreme Court will be deprived of all jurisdiction in a
case affecting a consul notwithstanding the grant
thereto in the Constitution of original jurisdiction in
all cases affecting consuls. This is a situation,
however, created not by the Constitution but by
existing legislation, and the remedy is in the hands of
the National Assembly. The Constitution cannot deal
with every casus omissus, and in the nature of
things, must only deal with fundamental principles,
leaving the detail of administration and execution to
the other branches of the government. It rests with
the National Assembly to determine the inferior
courts which shall exercise concurrent original
jurisdiction with the Supreme Court in cases
affecting ambassadors, other public ministers and
consuls, considering the nature of the offense and
irrespective of the amount of controversy. The
National Assembly may as in the United States
(Cooley, Constitutional Law, 4th ed. [1931], sec. 4, p.
156), provide for appeal to the Supreme Court in all
cases affecting foreign diplomatic and consular
representatives.chanroblesvirtualawlibrary chanrobl
es virtual law library
Before the approval of the Constitution, jurisdiction
over consuls was exercisable by our courts. This is
more so now that the Independence Law and
Constitution framed and adopted pursuant thereto
are in force. The fact that the National Assembly has
not enacted any law determining what courts of the
of the Philippines shall exercise concurrent
jurisdiction with the Supreme Court is of no
moment. This can not mean and should not be
interpreted to mean that the original jurisdiction
vested in the Supreme Court by the Constitution is
not concurrent with other national courts of inferior
category.chanroblesvirtualawlibrary chanrobles
virtual law library
The respondent judge of the Court of First Instance
of the City of Manila having jurisdiction to take
cognizance of the criminal case brought against the
petitioner, the writ of prohibition should be denied.
EN BANC
18 | P a g e
G.R. No. L-18924 October 19, 1922 waters.chanroblesvirtualawlibrary chanrobles virtual
law library
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-
Appellant, vs. WONG CHENG (alias WONG There are two fundamental rules on this particular
CHUN), Defendant-Appellee. matter in connection with International Law; to wit,
the French rule, according to which crimes
Attorney-General Villa-Real for appellant. committed aboard a foreign merchant vessels should
Eduardo Gutierrez Repide for appellee. not be prosecuted in the courts of the country within
whose territorial jurisdiction they were committed,
unless their commission affects the peace and
ROMUALDEZ, J.:
security of the territory; and the English rule, based
on the territorial principle and followed in the United
In this appeal the Attorney-General urges the
States, according to which, crimes perpetrated under
revocation of the order of the Court of First Instance
such circumstances are in general triable in the
of Manila, sustaining the demurrer presented by the
courts of the country within territory they were
defendant to the information that initiated this case
committed. Of this two rules, it is the last one that
and in which the appellee is accused of having
obtains in this jurisdiction, because at present the
illegally smoked opium, aboard the merchant
theories and jurisprudence prevailing in the United
vessel Changsa of English nationality while said
States on this matter are authority in the Philippines
vessel was anchored in Manila Bay two and a half
which is now a territory of the United
miles from the shores of the
States.chanroblesvirtualawlibrary chanrobles virtual
city.chanroblesvirtualawlibrary chanrobles virtual
law library
law library
In the cases of The Schooner Exchange vs. M'Faddon
The demurrer alleged lack of jurisdiction on the part
and Others (7 Cranch [U. S.], 116), Chief Justice
of the lower court, which so held and dismissed the
Marshall said:
case.chanroblesvirtualawlibrary chanrobles virtual
law library
. . . When merchant vessels enter for the purposes of
trade, it would be obviously inconvenient and
The question that presents itself for our
dangerous to society, and would subject the laws to
consideration is whether such ruling is erroneous or
continual infraction, and the government to
not; and it will or will not be erroneous according as
degradation, if such individuals or merchants did not
said court has or has no jurisdiction over said
owe temporary and local allegiance, and were not
offense.chanroblesvirtualawlibrary chanrobles
amenable to the jurisdiction of the country. . . .
virtual law library
In United States vs. Bull (15 Phil., 7), this court held:
The point at issue is whether the courts of the
Philippines have jurisdiction over crime, like the one
herein involved, committed aboard merchant vessels . . . No court of the Philippine Islands had jurisdiction
anchored in our jurisdiction over an offense or crime committed on the high seas
or within the territorial waters of any other country,
but when she came within three miles of a line
drawn from the headlands, which embrace the
entrance to Manila Bay, she was within territorial
waters, and a new set of principles became
applicable. (Wheaton, International Law [Dana ed.],
p. 255, note 105; Bonfils, Le Droit Int., secs. 490 et
seq.; Latour, La Mer Ter., ch. 1.) The ship and her
crew were then subject to the jurisdiction of the
territorial sovereign subject to such limitations as
have been conceded by that sovereignty through the
proper political agency. . . .
It is true that in certain cases the comity of nations is
observed, as in Mali and Wildenhus vs. Keeper of the
Common Jail (120 U.., 1), wherein it was said that:
. . . The principle which governs the whole matter is
this: Disorder which disturb only the peace of the
ship or those on board are to be dealt with
exclusively by the sovereignty of the home of the
ship, but those which disturb the public peace may
be suppressed, and, if need be, the offenders
punished by the proper authorities of the local
jurisdiction. It may not be easy at all times to
determine which of the two jurisdictions a particular
act of disorder belongs. Much will undoubtedly
depend on the attending circumstances of the
particular case, but all must concede that felonious
homicide is a subject for the local jurisdiction, and
that if the proper authorities are proceeding with the
case in the regular way the consul has no right to
interfere to prevent it.
Hence in United States vs. Look Chaw (18 Phil., 573),
this court held that:
Although the mere possession of an article of
prohibited use in the Philippine Islands, aboard a
foreign vessel in transit in any local port, does not, as
a general rule, constitute a crime triable by the
courts of the Islands, such vessels being considered
as an extension of its own nationality, the same rule
19 | P a g e
does not apply when the article, the use of which is
prohibited in the Islands, is landed from the vessels
upon Philippine soil; in such a case an open violation
of the laws of the land is committed with respect to
which, as it is a violation of the penal law in force at
the place of the commission of the crime, no court
other than that established in the said place has
jurisdiction of the offense, in the absence of an
agreement under an international treaty.
As to whether the United States has ever consented
by treaty or otherwise to renouncing such
jurisdiction or a part thereof, we find nothing to this
effect so far as England is concerned, to which nation
the ship where the crime in question was committed
belongs. Besides, in his work "Treaties, Conventions,
etc.," volume 1, page 625, Malloy says the following:
There shall be between the territories of the United
States of America, and all the territories of His
Britanic Majesty in Europe, a reciprocal liberty of
commerce. The inhabitants of the two countries,
respectively, shall have liberty freely and securely to
come with their ships and cargoes to all such places,
ports and rivers, in the territories aforesaid, to which
other foreigners are permitted to come, to enter
into the same, and to remain and reside in any parts
of the said territories, respectively; also to hire and
occupy houses and warehouses for the purposes of
their commerce; and, generally, the merchants and
traders of each nation respectively shall enjoy the
most complete protection and security for their
commerce, but subject always to the laws and
statutes of the two countries, respectively. (Art. 1,
Commerce and Navigation Convention.)
We have seen that the mere possession of opium
aboard a foreign vessel in transit was held by this
court not triable by or courts, because it being the
primary object of our Opium Law to protect the
inhabitants of the Philippines against the disastrous
effects entailed by the use of this drug, its mere
possession in such a ship, without being used in our
territory, does not being about in the said territory
those effects that our statute contemplates avoiding.
Hence such a mere possession is not considered a
disturbance of the public
order.chanroblesvirtualawlibrary chanrobles virtual
law library
But to smoke opium within our territorial limits,
even though aboard a foreign merchant ship, is
certainly a breach of the public order here
established, because it causes such drug to produce
its pernicious effects within our territory. It seriously
contravenes the purpose that our Legislature has in
mind in enacting the aforesaid repressive statute.
Moreover, as the Attorney-General aptly observes:
. . . The idea of a person smoking opium securely on
board a foreign vessel at anchor in the port of Manila
in open defiance of the local authorities, who are
impotent to lay hands on him, is simply subversive of
public order. It requires no unusual stretch of the
imagination to conceive that a foreign ship may
come into the port of Manila and allow or solicit
Chinese residents to smoke opium on board.
The order appealed from is revoked and the cause
ordered remanded to the court of origin for further
proceedings in accordance with law, without special
findings as to costs. So
ordered.chanroblesvirtualawlibrary chanrobles
virtual law library
Araullo, C.J., Street, Malcolm, Avanceña, Villamor,
Ostrand and Johns, JJ., concur.
FIRST DIVISION
[G.R. NO. 149927 - March 30, 2004]
 REPUBLIC OF THE PHILIPPINES, Represented by the
Department of Environment and Natural Resources
(DENR)
Under then Minister ERNESTO R. MACEDA; and
Former Government Officials CATALINO MACARAIG,
FULGENCIO S. FACTORAN, ANGEL C. ALCALA, BEN
MALAYANG, ROBERTO PAGDANGANAN, MARIANO Z.
VALERA and ROMULO SAN JUAN, Petitioners,
v. ROSEMOOR MINING AND DEVELOPMENT
CORPORATION, PEDRO DEL CONCHA, and
ALEJANDRO and RUFO DE GUZMAN, Respondents.
DECISION
PANGANIBAN, J.:
A mining license that contravenes a mandatory
provision of the law under which it is granted is void.
Being a mere privilege, a license does not vest
absolute rights in the holder. Thus, without
offending the due process and the non-impairment
clauses of the Constitution, it can be revoked by the
State in the public interest.
The Case
Before us is a Petition for Review1 under Rule 45 of
the Rules of Court, seeking to nullify the May 29,
2001 Decision2 and the September 6, 2001
Resolution3 of the Court of Appeals (CA) in CA-GR SP
No. 46878. The CA disposed as
follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
"WHEREFORE, premises considered, the appealed
Decision is hereby AFFIRMED in toto."4
The questioned Resolution denied petitioners
Motion for Reconsideration.
20 | P a g e
On the other hand, trial courts Decision, which was
affirmed by the CA, had disposed as
follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
"WHEREFORE, judgment is hereby rendered as
follows:
1. Declaring that the cancellation of License No. 33
was done without jurisdiction and in gross violation
of the Constitutional right of the petitioners against
deprivation of their property rights without due
process of law and is hereby set aside.
2. Declaring that the petitioners right to continue the
exploitation of the marble deposits in the area
covered by License No. 33 is maintained for the
duration of the period of its life of twenty-five (25)
years, less three (3) years of continuous operation
before License No. 33 was cancelled, unless sooner
terminated for violation of any of the conditions
specified therein, with due process.
3. Making the Writ of preliminary injunction and the
Writ of Preliminary Mandatory Injunction issued as
permanent.
4. Ordering the cancellation of the bond filed by the
Petitioners in the sum of 1 Million.
5. Allowing the petitioners to present evidence in
support of the damages they claim to have suffered
from, as a consequence of the summary cancellation
of License No. 33 pursuant to the agreement of the
parties on such dates as maybe set by the Court;
andcralawlibrary
6. Denying for lack of merit the motions for
contempt, it appearing that actuations of the
respondents were not contumacious and intended
to delay the proceedings or undermine the integrity
of the Court.
No pronouncement yet as to costs."5
The Facts
The CA narrated the facts as
follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
"The four (4) petitioners, namely, Dr. Lourdes S.
Pascual, Dr. Pedro De la Concha, Alejandro De La
Concha, and Rufo De Guzman, after having been
granted permission to prospect for marble deposits
in the mountains of Biak-na-Bato, San Miguel,
Bulacan, succeeded in discovering marble deposits of
high quality and in commercial quantities in Mount
Mabio which forms part of the Biak-na-Bato
mountain range.
"Having succeeded in discovering said marble
deposits, and as a result of their tedious efforts and
substantial expenses, the petitioners applied with
the Bureau of Mines, now Mines and Geosciences
Bureau, for the issuance of the corresponding license
to exploit said marble deposits.
xxx
"After compliance with numerous required
conditions, License No. 33 was issued by the Bureau
of Mines in favor of the herein petitioners.
xxx
"Shortly after Respondent Ernesto R. Maceda was
appointed Minister of the Department of Energy and
Natural Resources (DENR), petitioners License No. 33
was cancelled by him through his letter to
ROSEMOOR MINING AND DEVELOPMENT
CORPORATION dated September 6, 1986 for the
reasons stated therein. Because of the aforesaid
cancellation, the original petition was filed and later
substituted by the petitioners AMENDED PETITION
dated August 21, 1991 to assail the same.
"Also after due hearing, the prayer for injunctive
relief was granted in the Order of this Court dated
February 28, 1992. Accordingly, the corresponding
preliminary writs were issued after the petitioners
filed their injunction bond in the amount of ONE
MILLION PESOS (P1,000,000.00).
xxx
"On September 27, 1996, the trial court rendered
the herein questioned decision."6
The trial court ruled that the privilege granted under
respondents license had already ripened into a
property right, which was protected under the due
process clause of the Constitution. Such right was
supposedly violated when the license was cancelled
without notice and hearing. The cancellation was
said to be unjustified, because the area that could be
covered by the four separate applications of
respondents was 400 hectares. Finally, according to
the RTC, Proclamation No. 84, which confirmed the
cancellation of the license, was an ex post facto law;
as such, it violated Section 3 of Article XVIII of the
1987 Constitution.
On appeal to the Court of Appeals, herein petitioners
asked whether PD 463 or the Mineral Resources
Development Decree of 1974 had been violated by
the award of the 330.3062 hectares to respondents
in accordance with Proclamation No. 2204. They also
questioned the validity of the cancellation of
respondents Quarry License/Permit (QLP) No. 33.
Ruling of the Court of Appeals
21 | P a g e
Sustaining the trial court in toto, the CA held that the
grant of the quarry license covering 330.3062
hectares to respondents was authorized by law,
because the license was embraced by four (4)
separate applications -- each for an area of 81
hectares. Moreover, it held that the limitation under
Presidential Decree No. 463 -- that a quarry license
should cover not more than 100 hectares in any
given province -- was supplanted by Republic Act No.
7942,7 which increased the mining areas allowed
under PD 463.
It also ruled that the cancellation of respondents
license without notice and hearing was tantamount
to a deprivation of property without due process of
law. It added that under the clause in the
Constitution dealing with the non-impairment of
obligations and contracts, respondents license must
be respected by the State.
Hence, this Petition.8
Issues
Petitioners submit the following issues for the Courts
consideration:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
"(1) [W]hether or not QLP No. 33 was issued in
blatant contravention of Section 69, P.D. No. 463;
and (2) whether or not Proclamation No. 84 issued
by then President Corazon Aquino is valid. The
corollary issue is whether or not the Constitutional
prohibition against ex post facto law applies to
Proclamation No. 84"9
The Courts Ruling
The Petition has merit.
First Issue:
Validity of License
Respondents contend that the Petition has no legal
basis, because PD 463 has already been
repealed.10 In effect, they ask for the dismissal of the
Petition on the ground of mootness.
PD 463, as amended, pertained to the old system of
exploration, development and utilization of natural
resources through licenses, concessions or
leases.11 While these arrangements were provided
under the 193512 and the 197313 Constitutions, they
have been omitted by Section 2 of Article XII of the
1987 Constitution.14
With the shift of constitutional policy toward "full
control and supervision of the State" over natural
resources, the Court in Miners Association of the
Philippines v. Factoran Jr. 15 declared the provisions
of PD 463 as contrary to or violative of the express
mandate of the 1987 Constitution. The said
provisions dealt with the lease of mining claims;
quarry permits or licenses covering privately owned
or public lands; and other related provisions on
lease, licenses and permits.
RA 7942 or the Philippine Mining Act of 1995
embodies the new constitutional mandate. It has
repealed or amended all laws, executive orders,
presidential decrees, rules and regulations -- or parts
thereof -- that are inconsistent with any of its
provisions.16
It is relevant to state, however, that Section 2 of
Article XII of the 1987 Constitution does not apply
retroactively to a "license, concession or lease"
granted by the government under the 1973
Constitution or before the effectivity of the 1987
Constitution on February 2, 1987.17 As noted in
Miners Association of the Philippines v. Factoran Jr.,
the deliberations of the Constitutional
Commission18 emphasized the intent to apply the
said constitutional provision prospectively.
While RA 7942 has expressly repealed provisions of
mining laws that are inconsistent with its own, it
nonetheless respects previously issued valid and
existing licenses, as follows:
"SECTION 5. Mineral Reservations. When the
national interest so requires, such as when there is a
need to preserve strategic raw materials for
industries critical to national development, or certain
minerals for scientific, cultural or ecological value,
the President may establish mineral reservations
upon the recommendation of the Director through
the Secretary. Mining operations in existing mineral
reservations and such other reservations as may
thereafter be established, shall be undertaken by the
Department or through a contractor: Provided, That
a small scale-mining cooperative covered by
Republic Act No. 7076 shall be given preferential
right to apply for a small-scale mining agreement for
a maximum aggregate area of twenty-five percent
(25%) of such mineral reservation, subject to valid
existing mining/quarrying rights as provided under
Section 112 Chapter XX hereof. All submerged lands
within the contiguous zone and in the exclusive
economic zone of the Philippines are hereby
declared to be mineral reservations.
"x x x
"SECTION 7. Periodic Review of Existing Mineral
Reservations. The Secretary shall periodically review
existing mineral reservations for the purpose of
determining whether their continued existence is
consistent with the national interest, and upon his
recommendation, the President may, by
proclamation, alter or modify the boundaries thereof
22 | P a g e
or revert the same to the public domain without
prejudice to prior existing rights."
"SECTION 18. Areas Open to Mining
Operations. Subject to any existing rights or
reservations and prior agreements of all parties, all
mineral resources in public or private lands,
including timber or forestlands as defined in existing
laws, shall be open to mineral agreements or
financial or technical assistance agreement
applications. Any conflict that may arise under this
provision shall be heard and resolved by the panel of
arbitrators."chanroblesvirtuallawlibrary
"SECTION 19. Areas Closed to Mining Applications. -
- Mineral agreement or financial or technical
assistance agreement applications shall not be
allowed:
(a) In military and other government reservations,
except upon prior written clearance by the
government agency
concerned;chanroblesvirtuallawlibrary
(b) Near or under public or private buildings,
cemeteries, archeological and historic sites, bridges,
highways, waterways, railroads, reservoirs, dams or
other infrastructure projects, public or private works
including plantations or valuable crops, except upon
written consent of the government agency or private
entity concerned;chanroblesvirtuallawlibrary
(c) In areas covered by valid and existing mining
rights;chanroblesvirtuallawlibrary
(d) In areas expressly prohibited by
law;chanroblesvirtuallawlibrary
(e) In areas covered by small-scale miners as defined
by law unless with prior consent of the small-scale
miners, in which case a royalty payment upon the
utilization of minerals shall be agreed upon by the
parties, said royalty forming a trust fund for the
socioeconomic development of the community
concerned; andcralawlibrary
(f) Old growth or virgin forests, proclaimed
watershed forest reserves, wilderness areas,
mangrove forests, mossy forests, national parks,
provincial/municipal forests, parks, greenbelts, game
refuge and bird sanctuaries as defined by law and in
areas expressly prohibited under the National
Integrated Protected Areas System (NIPAS) under
Republic Act No. 7586, Department Administrative
Order No. 25, series of 1992 and other laws."
"SECTION 112. Non-impairment of Existing Mining/
Quarrying Rights. All valid and existing mining lease
contracts, permits/licenses, leases pending renewal,
mineral production-sharing agreements granted
under Executive Order No. 279, at the date of
effectivity of this Act, shall remain valid, shall not be
impaired, and shall be recognized by the
Government: Provided, That the provisions of
Chapter XIV on government share in mineral
production-sharing agreement and of Chapter XVI on
incentives of this Act shall immediately govern and
apply to a mining lessee or contractor unless the
mining lessee or contractor indicates his intention to
the secretary, in writing, not to avail of said
provisions: Provided, further, That no renewal of
mining lease contracts shall be made after the
expiration of its term: Provided, finally, That such
leases, production-sharing agreements, financial or
technical assistance agreements shall comply with
the applicable provisions of this Act and its
implementing rules and regulations.
"SECTION 113. Recognition of Valid and Existing
Mining Claims and Lease/Quarry
Application. Holders of valid and existing mining
claims, lease/quarry applications shall be given
preferential rights to enter into any mode of mineral
agreement with the government within two (2) years
from the promulgation of the rules and regulations
implementing this Act." (Underscoring
supplied)ςrαlαωlιbrαrÿ
Section 3(p) of RA 7942 defines an existing
mining/quarrying right as "a valid and subsisting
mining claim or permit or quarry permit or any
mining lease contract or agreement covering a
mineralized area granted/issued under pertinent
mining laws." Consequently, determining whether
the license of respondents falls under this definition
would be relevant to fixing their entitlement to the
rights and/or preferences under RA 7942. Hence, the
present Petition has not been mooted.
Petitioners submit that the license clearly
contravenes Section 69 of PD 463, because it
exceeds the maximum area that may be granted.
This incipient violation, according to them, renders
the license void ab initio.
Respondents, on the other hand, argue that the
license was validly granted, because it was covered
by four separate applications for areas of 81
hectares each.
The license in question, QLP No. 33,19 is dated
August 3, 1982, and it was issued in the name of
Rosemoor Mining Development Corporation. The
terms of the license allowed the corporation to
extract and dispose of marbleized limestone from a
330.3062-hectare land in San Miguel, Bulacan. The
license is, however, subject to the terms and
conditions of PD 463, the governing law at the time
it was granted; as well as to the rules and regulations
promulgated thereunder.20 By the same token,
Proclamation No. 2204 -- which awarded to
Rosemoor the right of development, exploitation,
23 | P a g e
and utilization of the mineral site -- expressly
cautioned that the grant was subject to "existing
policies, laws, rules and regulations."21
The license was thus subject to Section 69 of PD 463,
which reads:
"Section 69. Maximum Area of Quarry License
Notwithstanding the provisions of Section 14 hereof,
a quarry license shall cover an area of not more than
one hundred (100) hectares in any one province and
not more than one thousand (1,000) hectares in the
entire Philippines." (Italics supplied)ςrαlαωlιbrαrÿ
The language of PD 463 is clear. It states in
categorical and mandatory terms that a quarry
license, like that of respondents, should cover a
maximum of 100 hectares in any given province. This
law neither provides any exception nor makes any
reference to the number of applications for a license.
Section 69 of PD 463 must be taken to mean exactly
what it says. Where the law is clear, plain, and free
from ambiguity, it must be given its literal meaning
and applied without attempted interpretation.22
Moreover, the lower courts ruling is evidently
inconsistent with the fact that QLP No. 33 was issued
solely in the name of Rosemoor Mining and
Development Corporation, rather than in the names
of the four individual stockholders who are
respondents herein. It likewise brushes aside a basic
postulate that a corporation has a separate
personality from that of its stockholders.23
The interpretation adopted by the lower courts is
contrary to the purpose of Section 69 of PD 463.
Such intent to limit, without qualification, the area of
a quarry license strictly to 100 hectares in any one
province is shown by the opening proviso that reads:
"Notwithstanding the provisions of Section 14 hereof
x x x." The mandatory nature of the provision is also
underscored by the use of the word shall. Hence, in
the application of the 100-hectare-per-province
limit, no regard is given to the size or the number of
mining claims under Section 14, which we quote:
"SECTION 14. Size of Mining Claim. -- For purposes of
registration of a mining claim under this Decree, the
Philippine territory and its shelf are hereby divided
into meridional blocks or quadrangles of one-half
minute (1/2) of latitude and longitude, each block or
quadrangle containing area of eighty-one (81)
hectares, more or less.
"A mining claim shall cover one such block although
a lesser area may be allowed if warranted by
attendant circumstances, such as geographical and
other justifiable considerations as may be
determined by the Director: Provided, That in no
case shall the locator be allowed to register twice
the area allowed for lease under Section 43 hereof."
(Italics supplied)ςrαlαωlιbrαrÿ
Clearly, the intent of the law would be brazenly
circumvented by ruling that a license may cover an
area exceeding the maximum by the mere
expediency of filing several applications. Such ruling
would indirectly permit an act that is directly
prohibited by the law.
Second Issue:
Validity of Proclamation No. 84
Petitioners also argue that the license was validly
declared a nullity and consequently withdrawn or
terminated. In a letter dated September 15, 1986,
respondents were informed by then Minister
Ernesto M. Maceda that their license had illegally
been issued, because it violated Section 69 of PD
463; and that there was no more public interest
served by the continued existence or renewal of the
license. The latter reason, they added, was
confirmed by the language of Proclamation No. 84.
According to this law, public interest would be
served by reverting the parcel of land that was
excluded by Proclamation No. 2204 to the former
status of that land as part of the Biak-na-Bato
national park.
They also contend that Section 74 of PD 463 would
not apply, because Minister Macedas letter did not
cancel or revoke QLP No. 33, but merely declared
the latters nullity. They further argue that
respondents waived notice and hearing in their
application for the license.
On the other hand, respondents submit that, as
provided for in Section 74 of PD 463, their right to
due process was violated when their license was
cancelled without notice and hearing. They likewise
contend that Proclamation No. 84 is not valid for the
following reasons: 1) it violates the clause on the
non-impairment of contracts; 2) it is an ex post facto
law and/or a bill of attainder; and 3) it was issued by
the President after the effectivity of the 1987
Constitution.
This Court ruled on the nature of a natural resource
exploration permit, which was akin to the present
respondents license, in Southeast Mindanao Gold
Mining Corporation v. Balite Portal Mining
Cooperative, 24 which held:
"x x x. As correctly held by the Court of Appeals in its
challenged decision, EP No. 133 merely evidences a
privilege granted by the State, which may be
amended, modified or rescinded when the national
interest so requires. This is necessarily so since the
exploration, development and utilization of the
countrys natural mineral resources are matters
impressed with great public interest. Like timber
permits, mining exploration permits do not vest in
the grantee any permanent or irrevocable right
24 | P a g e
within the purview of the non-impairment of
contract and due process clauses of the Constitution,
since the State, under its all-encompassing police
power, may alter, modify or amend the same, in
accordance with the demands of the general
welfare."25
This same ruling had been made earlier in Tan v.
Director of Forestry26 with regard to a timber license,
a pronouncement that was reiterated in Ysmael v.
Deputy Executive Secretary,27 the pertinent portion
of which reads:
"x x x. Timber licenses, permits and license
agreements are the principal instruments by which
the State regulates the utilization and disposition of
forest resources to the end that public welfare is
promoted. And it can hardly be gainsaid that they
merely evidence a privilege granted by the State to
qualified entities, and do not vest in the latter a
permanent or irrevocable right to the particular
concession area and the forest products therein.
They may be validly amended, modified, replaced or
rescinded by the Chief Executive when national
interests so require. Thus, they are not deemed
contracts within the purview of the due process of
law clause [See Sections 3(ee) and 20 of Pres. Decree
No. 705, as amended. Also, Tan v. Director of
Forestry, G.R. No. L-24548, October 27, 1983, 125
SCRA 302]."28 (Italics supplied)ςrαlαωlιbrαrÿ
In line with the foregoing jurisprudence, respondents
license may be revoked or rescinded by executive
action when the national interest so requires,
because it is not a contract, property or a property
right protected by the due process clause of the
Constitution.29 Respondents themselves
acknowledge this condition of the grant under
paragraph 7 of QLP No. 33, which we quote:
"7. This permit/license may be revoked or cancelled
at any time by the Director of Mines and Geo-
Sciences when, in his opinion public interests so
require or, upon failure of the permittee/licensee to
comply with the provisions of Presidential Decree
No. 463, as amended, and the rules and regulations
promulgated thereunder, as well as with the terms
and conditions specified herein; Provided, That if a
permit/license is cancelled, or otherwise terminated,
the permittee/licensee shall be liable for all unpaid
rentals and royalties due up to the time of the
termination or cancellation of the
permit/license[.]"30 (Italics supplied)ςrαlαωlιbrαrÿ
The determination of what is in the public interest is
necessarily vested in the State as owner of all
mineral resources. That determination was based on
policy considerations formally enunciated in the
letter dated September 15, 1986, issued by then
Minister Maceda and, subsequently, by the
President through Proclamation No. 84. As to the
exercise of prerogative by Maceda, suffice it to say
that while the cancellation or revocation of the
license is vested in the director of mines and geo-
sciences, the latter is subject to the formers control
as the department head. We also stress the clear
prerogative of the Executive Department in the
evaluation and the consequent cancellation of
licenses in the process of its formulation of policies
with regard to their utilization. Courts will not
interfere with the exercise of that discretion without
any clear showing of grave abuse of discretion.31
Moreover, granting that respondents license is valid,
it can still be validly revoked by the State in the
exercise of police power.32 The exercise of such
power through Proclamation No. 84 is clearly in
accord with jura regalia, which reserves to the State
ownership of all natural resources.33 This Regalian
doctrine is an exercise of its sovereign power as
owner of lands of the public domain and of the
patrimony of the nation, the mineral deposits of
which are a valuable asset.34
Proclamation No. 84 cannot be stigmatized as a
violation of the non-impairment clause. As pointed
out earlier, respondents license is not a contract to
which the protection accorded by the non-
impairment clause may extend.35 Even if the license
were, it is settled that provisions of existing laws and
a reservation of police power are deemed read into
it, because it concerns a subject impressed with
public welfare.36 As it is, the non-impairment clause
must yield to the police power of the state.37
We cannot sustain the argument that Proclamation
No. 84 is a bill of attainder; that is, a "legislative act
which inflicts punishment without judicial trial."38 Its
declaration that QLP No. 33 is a patent nullity39 is
certainly not a declaration of guilt. Neither is the
cancellation of the license a punishment within the
purview of the constitutional proscription against
bills of attainder.
Too, there is no merit in the argument that the
proclamation is an ex post facto law. There are six
recognized instances when a law is considered as
such: 1) it criminalizes and punishes an action that
was done before the passing of the law and that was
innocent when it was done; 2) it aggravates a crime
or makes it greater than it was when it was
committed; 3) it changes the punishment and inflicts
one that is greater than that imposed by the law
annexed to the crime when it was committed; 4) it
alters the legal rules of evidence and authorizes
conviction upon a less or different testimony than
that required by the law at the time of the
commission of the offense; 5) it assumes the
regulation of civil rights and remedies only, but in
effect imposes a penalty or a deprivation of a right as
a consequence of something that was considered
lawful when it was done; and 6) it deprives a person
25 | P a g e
accused of a crime of some lawful protection to
which he or she become entitled, such as the
protection of a former conviction or an acquittal or
the proclamation of an amnesty.40 Proclamation No.
84 does not fall under any of the enumerated
categories; hence, it is not an ex post facto law.
It is settled that an ex post facto law is limited in its
scope only to matters criminal in
nature.41 Proclamation 84, which merely restored
the area excluded from the Biak-na-Bato national
park by canceling respondents license, is clearly not
penal in character.
Finally, it is stressed that at the time President
Aquino issued Proclamation No. 84 on March 9,
1987, she was still validly exercising legislative
powers under the Provisional Constitution of
1986.42 Section 1 of Article II of Proclamation No. 3,
which promulgated the Provisional Constitution,
granted her legislative power "until a legislature is
elected and convened under a new Constitution."
The grant of such power is also explicitly recognized
and provided for in Section 6 of Article XVII of the
1987 Constitution.43
WHEREFORE, this Petition is hereby GRANTED and
the appealed Decision of the Court of Appeals SET
ASIDE. No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio,
and Azcuna, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18208 February 14, 1922
THE UNITED STATES, plaintiff-appellee,
vs.
VICENTE DIAZ CONDE and APOLINARIA R. DE
CONDE, defendants-appellants.
Araneta & Zaragoza for appellants.
Attorney-General Villareal for appellee.
JOHNSON, J.:
It appears from the record that on the 6th day of
May, 1921, a complaint was presented in the Court
of First Instance of the city of Manila, charging the
defendants with a violation of the Usury Law (Act
No. 2655). Upon said complaint they were each
arrested, arraigned, and pleaded not guilty. The
cause was finally brought on for trial on the 1st day
of September, 1921. At the close of the trial, and
after a consideration of the evidence adduced, the
Honorable M. V. del Rosario, judge, found that the
defendants were guilty of the crime charged in the
complaint and sentenced each of them to pay a fine
of P120 and, in case of insolvency, to suffer
subsidiary imprisonment in accordance with the
provisions of the law. From that sentence each of
the defendants appealed to this court.
The appellants now contend: (a) That the contract
upon which the alleged usurious interest was
collected was executed before Act No. 2655 was
adopted; (b) that at the time said contract was made
(December 30, 1915), there was no usury law in
force in the Philippine Islands; (c) that said Act No.
2655 did not become effective until the 1st day of
May, 1916, or four months and a half after the
contract in question was executed; (d) that said law
could have no retroactive effect or operation, and (e)
that said law impairs the obligation of a contract,
and that for all of said reasons the judgment
imposed by the lower court should be revoked; that
the complaint should be dismissed, and that they
should each be discharged from the custody of the
law.
The essential facts constituting the basis of the
criminal action are not in dispute, and may be stated
as follows: (1) That on the 30th day of December,
1915, the alleged offended persons Bartolome
Oliveros and Engracia Lianco executed and delivered
to the defendants a contract (Exhibit B) evidencing
the fact that the former had borrowed from the
latter the sum of P300, and (2) that, by virtue of the
terms of said contract, the said Bartolome Oliveros
and Engracia Lianco obligated themselves to pay to
the defendants interest at the rate of five per cent
(5%) per month, payable within the first ten days of
each and every month, the first payment to be made
on the 10th day of January, 1916. There were other
terms in the contract which, however, are not
important for the decision in the present case.
The lower court, in the course of its opinion, stated
that at the time of the execution and delivery of said
contract (Exhibit B), there was no law in force in the
Philippine Islands punishing usury; but, inasmuch as
the defendants had collected a usurious rate of
interest after the adoption of the Usury Law in the
Philippine Islands (Act No. 2655), they were guilty of
a violation of that law and should be punished in
accordance with its provisions.
The law, we think, is well established that when a
contract contains an obligation to pay interest upon
the principal, the interest thereby becomes part of
the principal and is included within the promise to
pay. In other words, the obligation to pay interest on
money due under a contract, be it express or
implied, is a part of the obligation of the contract.
Laws adopted after the execution of a contract,
changing or altering the rate of interest, cannot be
26 | P a g e
made to apply to such contract without violating the
provisions of the constitution which prohibit the
adoption of a law "impairing the obligation of
contract." (8 Cyc., 996; 12 Corpus Juris, 1058-1059.)
The obligation of the contract is the law which binds
the parties to perform their agreement if it is not
contrary to the law of the land, morals or public
order. That law must govern and control the contract
in every aspect in which it is intended to bear upon
it, whether it affect its validity, construction, or
discharge. Any law which enlarges, abridges, or in
any manner changes the intention of the parties,
necessarily impairs the contract itself. If a law
impairs the obligation of a contract, it is prohibited
by the Jones Law, and is null and void. The laws in
force in the Philippine Islands prior to any legislation
by the American sovereignty, prohibited the
Legislature from giving to any penal law a retroactive
effect unless such law was favorable to the person
accused. (Articles 21 and 22, Penal Code.)
A law imposing a new penalty, or a new liability or
disability, or giving a new right of action, must not be
construed as having a retroactive effect. It is an
elementary rule of contract that the laws in force at
the time the contract was made must govern its
interpretation and application. Laws must be
construed prospectively and not retrospectively. If a
contract is legal at its inception, it cannot be
rendered illegal by any subsequent legislation. If that
were permitted then the obligations of a contract
might be impaired, which is prohibited by the
organic law of the Philippine Islands. (U.S. vs.
Constantino Tan Quingco Chua, 39 Phil., 552; Aguilar
vs. Rubiato and Gonzales Vila, 40 Phil., 570.)
Ex post facto laws, unless they are favorable to the
defendant, are prohibited in this jurisdiction. Every
law that makes an action, done before the passage
of the law, and which was innocent when done,
criminal, and punishes such action, is an ex post
facto law. In the present case Act No. 2655 made an
act which had been done before the law was
adopted, a criminal act, and to make said Act
applicable to the act complained of would be to give
it an ex post facto operation. The Legislature is
prohibited from adopting a law which will make an
act done before its adoption a crime. A law may be
given a retroactive effect in civil action, providing it is
curative in character, but ex post facto laws are
absolutely prohibited unless its retroactive effect is
favorable to the defendant.
For the reason, therefore, that the acts complained
of in the present case were legal at the time of their
occurrence, they cannot be made criminal by any
subsequent or ex post facto legislation. What the
courts may say, considering the provisions of article
1255 of the Civil Code, when a civil action is brought
upon said contract, cannot now be determined. A
contract may be annulled by the courts when it is
shown that it is against morals or public order.
For all of the foregoing reasons, we are of the
opinion, and so decide, that the acts complained of
by the defendants did not constitute a crime at the
time they were committed, and therefore the
sentence of the lower court should be, and is hereby,
revoked; and it is hereby ordered and decreed that
the complaint be dismissed, and that the defendants
be discharged from the custody of the law, with
costs de oficio. So ordered.
Araullo, C.J., Street, Malcolm, Avanceña, Ostrand,
Johns and Romualdez, JJ., concur.
EN BANC
G.R. No. L-239 June 30, 1947
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs. APOLONIO CARLOS, Defendant-Appellant.
Vicente J. Francisco, Felicisimo Ocampo and Alberto
V. Francisco for appellant.
Office of the First Assistant Solicitor General Reyes
and Solicitor Tomacruz for appellee.
TUASON, J.:
The appellant was found guilty of treason by the
People's Court and sentenced to reclusion perpetua,
to pay a fine of P7,000, and
costs.chanroblesvirtualawlibrary chanrobles virtual
law library
The findings of the People's Court are not assigned
as errors or
disputed.chanroblesvirtualawlibrary chanrobles
virtual law library
The lower court found that one day in July or August,
1944, about two or three o'clock in the morning, a
truck pulled up to the curb in front of a house on
Constancia Street, Sampaloc, Manila, where one
Martin Mateo lived. From the truck the accused, a
Japanese spy, alighted together with members of the
Japanese military police and pointed Martin Mateo's
house and Fermin Javier's house to his Japanese
companions, whereupon the Japanese soldiers broke
into Martin Mateo's dwelling first and Fermin Javier's
afterwards. In those houses they seized Martin
Mateo, Ladislao Mateo and Fermin Javier, bound
their hands, and put them in the truck. Along with
other persons who had been rounded up in the
other places and who had been kept in the truck
while it was parked, they were taken to Fort
Santiago where the two Mateos and Fermin Javier
were tortured and from which they were released six
days later. The reason for the arrest and
maltreatment of Martin and Ladislao Mateo was that
27 | P a g e
they had refused to divulge the whereabouts of their
brother, Marcelino Mateo, who was a guerrilla and
who had escaped from the Japanese. And Fermin
Javier was arrested and tortured because he himself
was a guerrilla, a fact which Carlos knew or at least
suspected.chanroblesvirtualawlibrary chanrobles
virtual law library
The defendant in this instance invokes only
questions of law. He assigns four alleged errors, viz.:
I. The lower court erred in not holding that the
accused cannot be convicted of the offense of
treason committed against the government of the
United States and of the Philippines, because it is a
settled principle in international law that in a
territory actually under the authority of the enemy,
all laws of political complexion of the previous
government are suspended, and are without force
and inasmuch as the laws of the United States and
the Commonwealth of the Philippines defining and
penalyzing the crime of treason are all of political
complexion, they were suspended and had no
binding effect whatsoever upon the inhabitants in
the said occupied
territories.chanroblesvirtualawlibrary chanrobles
virtual law library
II. The People's Court erred in not declaring the
accused could not have violated the Philippine law
on treason, because it is also a settled principle in
international law that in such occupied territories all
laws inconsistent with the occupation are being
likewise suspended and without force and effect
over the inhabitants, and since the laws of the
United States and the Commonwealth of the
Philippines defining and penalyzing treason against
the said government are by their very nature
evidently inconsistent with the said occupation of
the Philippines by the Imperial Japanese forces, the
said laws must be deemed as having been
suspended and without force and effect upon the
Filipinos, during the said
occupation.chanroblesvirtualawlibrary chanrobles
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III. The People's Court erred in not holding that the
accused herein cannot be convicted of the crime of
treason committed against the government of the
United States and of the Philippines, because it is
settled principle in international law that once the
territory is so occupied by the enemy, the allegiance
is as a legal obligation distinguishable and
distinguished from loyalty of the inhabitants therein
to the former government or governments is
temporarily suspended, and it being necessary and
essential for the commission of the offense of
treason against the United States and the
Commonwealth of the Philippines that the supposed
offender should owe allegiance to said government
at the time of the alleged offense, it follows that the
accused cannot possibly be chargeable with treason
against the United States and the Commonwealth of
the Philippines for acts allegedly committed by him
in the territory of the Philippines actually occupied
by the Japanese during said
occupation.chanroblesvirtualawlibrary chanrobles
virtual law library
IV. The decision rendered in this case should be
reversed and, set aside, because the law creating the
People's Court is unconstitutional.
The questions propounded in the first, second and
third assignments of error were squarely raised and
decided in the case of Laurel vs. Misa (77 Phil., 856).
That decision controls this appeal so far as the pleas
of suspended allegiance and change of sovereignty
are concerned. On the strength thereof, the first
three assignments of error must be
overruled.chanroblesvirtualawlibrary chanrobles
virtual law library
The fourth assignment of error attacks the law
creating the People's Court as unconstitutional.
Numerous provisions of the People's Court Act are
singled out as contrary to the Organic Law. But in
formulating many of his propositions the appellant
has not indicated the reasons or the authorities
which sustain them. We shall dispose of them as
briefly as they are presented. For better
understanding, we shall reproduce the appellant's
propositions and will comment on them
separately.chanroblesvirtualawlibrary chanrobles
virtual law library
The brief says:
(a) It (People's Court Act) contains provisions which
deal on matters entirely foreign to the subject
matter expressed in its title, such as:chanrobles
virtual law library
(1) The first proviso of section 2 thereof, which
retains the jurisdiction of the Court of First Instance
to try and decide cases of crimes against national
security committed during the second world war not
filed within six months, notwithstanding the fact that
according to its title, the People's Court is precisely
created for that purpose, and impliedly, the People's
Court jurisdiction in regard to said crimes is
exclusive;chanrobles virtual law library
(2) The second proviso of the same section which
grants the People's Court jurisdiction to convict and
sentence those accused therein even of crimes other
than those against national security, although its title
does not in any way indicate that such jurisdiction
over other crimes would be granted to the said
court;chanrobles virtual law library
(3) Section 14 thereof, which adds to the
disqualifications of Justice of the Supreme Court and
provides a procedure for their substitution, a matter
28 | P a g e
not indicated in any manner in its title;chanrobles
virtual law library
(4) The first proviso of action 19 thereof, which
changes the existing Rules of Court on the subject of
bail although its title speaks only of the creation of
the People's Court and the Office of Special
Prosecutors; andchanrobles virtual law library
(5) The second proviso of the same section, which
suspends the provisions of article 125 of the Revised
Penal Code, a substantive law, which is not referred
to in its title expressly or by implication.
The People's Court was intended to be a full and
complete scheme with its own machinery for the
indictment, trial and judgment of treason case. The
various provisos mentioned, in our opinion, are
allied and germane to the subject matter and
purposes of the People's Court Act; they are
subordinate to its end. The multitude of matters
which the legislation, by its nature, has to embrace
would make mention of all of them in the title of the
act cumbersome. It is not necessary, and the
Congress is not expected, to make the title of an
enactment a complete index of its contents.
(Government of the Philippine
Islands vs. Municipality of Binalonan, 32 Phil., 634.)
The constitutional rule is satisfied if all parts of a law
relate to the subject expressed in its
title.chanroblesvirtualawlibrary chanrobles virtual
law library
The brief says:
(b) It deprives persons similarly situated of the equal
protection of the laws inasmuch as:chanrobles
virtual law library
(1) Only those political offenders against whom cases
are filed within six months from the passage of the
law are to be tried in the People's Court, while
others are to be tried in the Courts of First
Instance;chanrobles virtual law library
(2) Political offenders accused in the People's Court
are denied preliminary examination and/or
investigation whereas the others who shall be
entitled thereto;chanrobles virtual law library
(3) Political offenders accused in the People's Court
have limited right to appeal, while those who may be
accused of the same crimes in the Courts of First
Instance have absolute right of appeal inasmuch as
under section 13 of the law, Rules 42 and 46 of the
Rules of Court are made applicable to the
latter;chanrobles virtual law library
(4) Appeals in the case involving persons who held
any office or position under either or both the
Philippine Executive Commission and the Philippine
Republic or any branch, instrumentality and/or
agency thereof are to heard and decided by a
substantially different Supreme Court, thus causing
lack of informity in rulings over the same
subject;chanrobles virtual law library
(5) The first proviso of section 19 thereof prescribes
a different rule as to the granting of release on bail
only with respect to the political offenders detained
by the United States Army and released to the
Commonwealth of the Philippines but not as to
others political offenders accused or accusable of
the same crimes; andchanrobles virtual law library
(6) The second proviso of section 19 thereof
suspends article 125 of the Revised Penal Code only
as to those political detainees released by the United
States Army to the Commonwealth of the Philippines
or, at most, only to those accused or accusable of
the crimes specified in the law and not as to all
persons accused or accusable of crimes against
national security committed during the second world
war, much less to all offenders, notwithstanding the
fact that there is no reasonable and real difference
among said groups of offenders.
(1) The People's Court is a court of special and
restricted jurisdiction created under the stress of an
emergency and national security. It was devised to
operate for a limited period only, a limitation
imposed by economic necessity and other factors of
public policy. Obviously, the main concerning the
creation of a special court was the trial and and
disposition of the cases, numbering over 6,000, of
accused who were being held by the United States
military authorities and who were to be turned over
to the Commonwealth Government. It was
presumed that there were other cases of treason not
included in this number - cases which might not be
discovered until years afterward - , and the
possibility was not overlooked that even some of the
cases which the United States Army was on the eve
of placing under the jurisdiction of the Philippine
Government could not be filed and submitted for
trial within a foreseeable future owing to lack of
readily available evidence, absence of witnesses, or
other causes. On the other hand, considerations of
economy and public interests forbade maintenance
of the People's Court for an indefinite period. Under
the circumstances, it was necessary that a provision
be made requiring that only cases which could be
brought to court within six months and which were
deemed enough to occupy the attention of the
People's Court within the limited time of its life,
should be cognizable by it, and the rest should be
instituted in the proper Courts of First Instance. Such
provision is not an arbitrary and international
discrimination, and does not work as a deprivation of
the right to equal protection of the laws. Both in
privileges or advantages conferred, if any, and in
liabilities imposed, if any, person under equal
circumstances are treated alike. It does not deprive
29 | P a g e
appellant of the protection enjoyed by others failing
within his class. The equal protection of the laws
guaranteed by the Constitution "does not prevent a
state or municipality from adjusting its legislation to
differences in situations and making a discrimination
or distinction in its legislation in respect of things
that are different, provided that the discrimination
or distinction has a reasonable foundation or
rational basis and is not palpably, purely, and
entirely arbitrary in the legislative sense, that is,
outside of the wide discretion which the legislative
body may exercise." (16 C.J.S., 997.) Moreover, with
its associate feature the People's Court is designed
to extend greater protection to persons charged
with collaboration with the enemy. If others are
prosecuted before a Court of First Instance, they and
not the appellant should have cause to complain of
discrimination.chanroblesvirtualawlibrary chanrobles
virtual law library
(2) Section 22 in denying preliminary investigation to
persons accused before the People's Court is
justified by the conditions prevailing when the law
was enacted. In view of the great number of
prisoners then under detention and the length of
time and amount of labor that would be consumed if
so many prisoners were allowed the right to have
preliminary investigation, considered with the
necessity of disposing of these cases at the earliest
possible dates in the interest of the public and of the
accused themselves, it was not an unwise measure
which dispensed with such investigation in such
cases. Preliminary investigation, it must be
remembered, is not a fundamental right guaranteed
by the Constitution. For the rest, the constitutional
prohibition against discrimination among defendants
placed in the same situation and condition is not
infringed.chanroblesvirtualawlibrary chanrobles
virtual law library
(3) For the same reasons stated before, this
contention cannot be upheld. There is a rational
basis for the distinction. The employment of two
modes of appellate procedure in the two classes of
cases involved are, in our opinion, suitably adapted
to the differences, in their composition, between the
courts from which the appeals are taken. The
People's Court is a collegiate court whereas the
Court of First Instance is presided over by a single
judge. Appeal is not a constitutional but statutory
right. The admitted fact that there is no
discrimination among appeals from the same court
or class of court saves the provision objected to from
being
unconstitutional.chanroblesvirtualawlibrary chanrobl
es virtual law library
(4) This objection does not seem to fall within the
subject of constitutional guarantee against
deprivation of equal protection of the laws. Be that
as it may, we find no merit in the appellant's
contention. The disqualification under the People's
Court Act of some or a majority of the members of
this Court and their substitution by justices of the
Court of Appeals or judges of the Courts of First
Instance do not make the Supreme Court, as thus
constituted, a new court in the eyes of the law. A
court is an entity possessing a personality separate
and distinct from the men who compose or sit on it.
This objection is no more valid than that of a party in
an ordinary action who protests that his case is
heard by a Supreme Court which, by reason of
disability of a majority of its regular members, is
made up mostly of judges from outside. As to the
"lack of uniformity in rulings over the same subject,"
it need only be said that the Constitution does not
insure uniformity of judicial decisions; neither does it
assure immunity from judicial
error.chanroblesvirtualawlibrary chanrobles virtual
law library
(5) and (6) The two provisos in section 19 do no
constitute denial of equal protection of the laws. The
distinction made by these provisos between two sets
of accused in the "granting or release on bail" and in
the application of article 125 of the Revised Penal
Code are not arbitrary or fanciful calculated to favor
or prejudice one or the other class. This point was
discussed at length and made clear in Laurel vs.
Misa (76 Phil., 372), in which this Court explained the
reasons which necessitated the extension to six
months of the authorized detention of persons
charged with treason before filing of information.
The provisos rest "on some real and substantial
difference or distinction bearing a just and fair
relation to the legislation." (16 C.J.S.,
998.)chanrobles virtual law library
The brief says:
"(c) It is a bill of attainder in that it virtually imposes
upon specific, known and identified individuals or
group of individual, the penalty of detention and
imprisonment for a period not exceeding six months
without any form of judicial trial or
procedure."chanrobles virtual law library
"The bill of attainder is a legislative act which inflicts
punishment without judicial trial."
(Cummings vs. Missouri, 4 Wall., 232, etc.) Detention
of a prisoner for a period not exceeding six months
pending investigation or trial is not a punishment but
a necessary extension of the well-recognized power
to hold the criminal suspected for investigation. This
proviso was held by this Court to be justified and
reasonable under existing circumstances in Laurel vs.
Misa, supra.
The brief says:chanrobles virtual law library
"(d) Section 2 thereof which purports to define the
jurisdiction of the People's Court constitutes an
30 | P a g e
invalid and void delegation of legislative power
which is vested exclusively in the Congress of the
Philippines by the Constitution, in so far as said
section virtually leaves unqualifiedly in the discretion
of the Solicitor General and/or the Office of Special
Prosecutors the power to determine the actual cases
over which the People's Court shall have
jurisdiction."chanrobles virtual law library
Granting the correctness of the premise of this
proposition, it does not follow that the authority
vested in the Solicitor General amounts to a
delegation of legislative power. We do not think that
the power to institute certain cases in one court or
another in the discretion of the prosecuting attorney
is an exercise of legislative power. "The true
distinction is between the delegation of power to
make the law, which necessarily involves a discretion
as to what it shall be, and conferring authority or
discretion as to its law. The first cannot be done; to
the latter no valid objection can be made."
(Cincinnati, V. & Z. R. Co. vs. Clinton County Comr's
[1852], 1 Ohio St., 77, cited in Tañada on the
constitution of the Philippines, p. 291.)chanrobles
virtual law library
The brief says:
"(e) Sections 1, 4 and 18 thereof abridge, limit and
curtail the power of appointment of the President or
the Chief Executive in that - chanrobles virtual law
library
(1) Section 1 practically leaves the President with
such a very small field of choice in the appointment
of the members of the court that he can hardly use
his discretion in regard thereto; andchanrobles
virtual law library
(4) Sections 4 and 18 actually designate and appoint
the persons who will occupy the positions left vacant
by those appointed to the People's Court and the
Office of Special Prosecutors respectively.
The power to create offices and courts is vested in
the legislative department. Subject to constitutional
restrictions, the Congress may determine on the
eligibility and qualification of officers and provide
the method for filing them. We find no valid
objection on constitutional ground to a law which
directs that a special temporary court should be
filled by appointment by the Chief Executive himself
from among judges already on the bench and/or
other quasi-judicial officers. As to outsiders who
might have to be appointed by reason of
insufficiency of qualified men already in the service,
the Chief Executive is left with a wide field of
choice.chanroblesvirtualawlibrary chanrobles virtual
law library
The theory that "sections 4 and 18 actually designate
and appoint the persons who will occupy the
positions left vacant by those appointed to the
People's Court and the Office of Special Prosecutors
respectively" loses sight of the fact that the positions
referred to are, as a matter of fact, vacant only in
theory, and for the duration of the People's Court,
and that the law does no more than say that after
those judges and officers shall have accomplished
their work, they shall go back to their permanent
posts.chanroblesvirtualawlibrary chanrobles virtual
law library
The brief says:chanrobles virtual law library
"(f) The said law provides for the designation and/or
transfer of judges appointed for particular districts to
another place outside of their respective districts
without the consent of the Supreme
Court."chanrobles virtual law library
Section 7 of Article VIII of the Constitution provides
that "no judge appointed for a particular district shall
be designated or transferred to another district
without the approval of the Supreme Court. The
Congress shall by law determine the residence of
judges of the inferior courts." This constitutional
provision, as its language clearly states, refers to
transfers from one judicial district to another. It does
not prohibit the appointment or designation of a
judge from being appointed temporarily or
permanently with his consent to a court of different
grade and make-up, such as the People's
Court.chanroblesvirtualawlibrary chanrobles virtual
law library
The brief says:chanrobles virtual law library
"(g) Sections 13 and 19 thereof prescribed rules of
procedure regarding appeal and bail which violate
the rule of uniformity of rules for all courts of the
same grade established in the
Constitution."chanrobles virtual law library
It is the rules promulgated by the Supreme Court
which are required by section 13 of Article VIII of the
Constitution to be uniform for all courts of the same
grade. The People's Court is not a court of the same
grade, considering many of its special features, and
its purposes, as the Court of First Instance or any
other existing court in the Philippines, so that the
adoption of special rules of procedure for said court
different from those applicable to Courts of First
Instance is not violative of this constitutional
mandate. More than this, the last sentence of the
section expressly authorizes the Congress "to repeal,
alter, or supplement the rules concerning pleading,
practice, and procedure, and the admission to the
practice of law in the Philippines."chanrobles virtual
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The brief says:chanrobles virtual law library
31 | P a g e
"(h) It is destructive of the independence of the
judiciary and thereby violates the constitutional
provision that the Philippines is a republican state
because:
(1) By creating a special court with jurisdiction over
cases which were already within the jurisdiction of
the existing Courts of First Instance without any real
necessity and urgent justification, considering that
the persons involved in said cases were more or less
known and identified at the time of the creation of
said special court, the law establishes a precedent
under which the legislature may at any time remove
from the jurisdiction of existing courts cases
involving definite or specific individuals or groups of
individuals to serve any purpose which said
legislature or the legislators composing the same
may wish to accomplish, either to the benefit or
damage of said individuals or groups of
individuals;chanrobles virtual law library
(2) By limiting the choice of the judges to compose
the People's Court to those who did not hold any
position in the Philippine Executive Commission
and/or the so-called Republic of the Philippines, the
law makes a classification that has absolutely no
rational basis inasmuch as the reason for
discriminating against those who served in said
governments, which is, that they might be
prejudiced or influenced in favor of the accused
exists in equal measure for those who did not serve,
in the sense that they may likewise be prejudiced or
influenced against the accused; andchanrobles
virtual law library
(3) In leaving practically in the hands of the Solicitor
General the absolute right to choose, in which court
he shall prosecute the cases contemplated by the
law, and in providing that the judges of the People's
Court shall be chosen from a limited group of the
judges of the Court of First Instance, etc., the law
does not leave a wide room for the play of external
factors in the administration of justice to those
concerned but also destroys the confidence of the
people in the judiciary.
(1 and 2) These objections go to the wisdom of the
law and to matters of policy. This being so, it is
enough that the Congress deemed it necessary to
incorporate these provisions in Commonwealth Act
No. 682. It is not the province of the courts to
supervise legislation and keep it within the bounds
of propriety and common sense. That is primarily
and exclusively a legislative concern.
(Rubi vs. Provincial Board of Mindoro, 39 Phil.,
661.)chanrobles virtual law library
(3) This proposition is covered by and answered in
our comment on paragraph (d) of the
brief.chanroblesvirtualawlibrary chanrobles virtual
law library
The judgment of the lower court is affirmed with
costs against
appellant.chanroblesvirtualawlibrary chanrobles
virtual law library
Moran, C.J., Feria, Pablo, Hilado, Bengzon, and
Briones, JJ., concur.
Hontiveros, and Padilla, JJ., concur in the result.
PARAS, J. :chanrobles virtual law library
I reserve my vote, the decision in the Laurel case is
not as yet final.
Separate Opinions chanrobles virtual law library
PERFECTO, J., concurring and dissenting:chanrobles
virtual law library
The appeal in this case raises only questions of law.
Of the four assignments of error made in appellant's
brief, the first three are premised on the theory of
suspended allegiance, and the last is premised on
the theory that the law creating the People's Court is
unconstitutional.chanroblesvirtualawlibrary chanrobl
es virtual law library
The question of suspended allegiance was already
rejected by a majority of this court in the case
of Laurel vs. Misa, in a resolution dated January 30,
1947 (77 Phil., 856),and our reasons for voting for
the rejection are expressed in our written opinion in
said case.chanroblesvirtualawlibrary chanrobles
virtual law library
We do not see in appellant's brief any argument
which may justify the changing of our opinion in the
Laurel case where, by the way, the question of
suspended allegiance appears to have been
discussed, perhaps, thoroughly and
exhaustibly.chanroblesvirtualawlibrary chanrobles
virtual law library
Regarding the fourth assignment of error, appellant
advances the following proposition: "The People's
Court Law (Commonwealth Act No. 682) is
unconstitutional and void in many parts and as a
whole because:
"(a) it contains provisions which deal on matters
entirely foreign to the subject matter expressed on
its title;chanrobles virtual law library
32 | P a g e
"(b) It deprives persons similarly situated of the
equal protection of the laws;chanrobles virtual law
library
"(c) It is a bill of attainder in that it virtually imposes
upon specific, known, and identified individuals or
group of individuals, the penalty of detention and
imprisonment for a period not exceeding six months
without any form or judicial trial or
procedure;chanrobles virtual law library
"(d) Section 2 thereof constitutes an invalid and void
delegation of legislative power, in so far as it virtually
leaves unqualifiedly in the discretion of the Solicitor
General and/or the Office of Special Prosecutors the
power to determine the actual case over which the
People's Court shall have jurisdiction;chanrobles
virtual law library
"(e) Section 1, 4, and 18 thereof abridge, limit and
curtail the power of appointment of the
President;chanrobles virtual law library
"(f) It provides for the designation and/or transfer of
judges appointed for particular district to another
place outside of their respective district without the
consent of the Supreme Court;chanrobles virtual law
library
"(g) Section 13 and 19 thereof prescribed rules of
procedure regarding appeal and bail which violate
the rule of uniformity of rules for all courts of the
same grade established in the
Constitution;chanrobles virtual law library
"(h) It is destructive of the independence of the
judiciary and thereby violates the constitutional
provision that the Philippines is a republican
state;chanrobles virtual law library
"(i) Section 14 providing for disqualification of some
Justice of the Supreme Court is unreasonable in its
operation."
Although it is regrettable that appellant failed to
elaborate on the several grounds upon which he
impugns the validity of the law in question, upon
which theory he seeks reversal of the decision of the
People's Court and his acquittal from the treason
charge, such failure does not relieve us from the
duty of passing upon the questions raised, much
more because they are not of passing importance.
Our opinion on the several grounds relied upon by
appellant to attack the validity of Commonwealth
Act No. 682 as is follows:
(a) MULTIPLICITY OF SUBJECT MATTER chanrobles
virtual law library
On the first ground, appellant undoubtedly relies on
the following provision of the Constitution:
No bill which may be enacted into law shall embrace
more than one subject which shall be expressed in
the title of the bill. (Section 21 [1], Article VI.)
Five reasons are advanced by appellant to show that
the acts violates the constitutional prohibition
against multiplicity of subject matter. We are going
to deal with them
separately.chanroblesvirtualawlibrary chanrobles
virtual law library
(1) It is alleged that, although the People's Court has
been created precisely to try crimes against national
security with jurisdiction impliedly exclusive, section
2 thereof retains the jurisdiction of courts of first
instance to try and decide case not filed within six
months. We do not believe that the provision
violates the constitutional inhibition. There should
not be any question that the creation of the People's
Court was an answer to an unusual situation, created
by the extraordinary social upheaval provoked by the
last war, demanding an uncommon solution,
compatible with the tenets of our democracy, with
the provision of the Constitution, and with the noble
aims of justice. The several thousands of persons
detained upon liberation charged with treason and
other crimes against national security needed the
creation of a judicial machinery for the prompt
disposal of their cases so as not to violate their
constitutional right to a speedy trial. It was admitted
that the inferior courts then existing were not
enough to cope with the situation. Those who are
guilty, should be sentenced as soon as possible, so
they may expiate for the wrongs that they have
committed, and those who are innocent are entitled
to be cleared without any delay. The People's Court
was, therefore, created to shoulder the burden that
the courts of first instance could not bear. Congress
estimate that six months was enough time for the
cases of the thousands of detainees to be filed with
the People's Court, while the cases of those who
have not yet been detained, on the assumption that
they will be few, there was no reason why these
should not be disposed of by the courts of first
instance as is declared in the proviso of section 2.
The proviso is germane with the subject matter of
the law and does not violate the prohibition against
multiplicity of subject
matter.chanroblesvirtualawlibrary chanrobles virtual
law library
(2) The second objection is raised against the proviso
authorizing the People's Court to convict and
sentence those accused for any crime included in the
acts alleged in the information and established by
the evidence, although they are not classified as
among those committed against national security.
The objection cannot be entertained. The proviso is
within the logical purview of the creation of the
People's Court. The lawmaker must have had in mind
33 | P a g e
the fact that among the thousands of detainees
which motivated the creation of the court there
were persons who had committed crimes other than
those against national
security.chanroblesvirtualawlibrary chanrobles
virtual law library
Although these are the crimes preliminary in the
minds of those who arrested said detainees, there is
nothing unnatural that those who committed said
crimes may have also committed offenses of
different nature either in connection with the first
ones or independently, and if said other offenses are
included among the facts alleged in the information
filed with the People's Court and proved by the
evidence, there is no reason why said court should
not punish them as a court of first instance would, it
appearing that the People's Court is but a special
court of first
instance.chanroblesvirtualawlibrary chanrobles
virtual law library
(3) The third objection points to the disqualification
of certain Justice of the Supreme Court and the
procedure of their substitution as provided in section
14 of Commonwealth Act No. 682. Although said
section is, in effect, null and void as unconstitutional,
it is not enough ground to hold the whole act as
unconstitutional, as said section can be eliminated
without affecting the remaining provisions of the
act.chanroblesvirtualawlibrary chanrobles virtual law
library
(4) The fourth objection points to the proviso of
section 19, which provides for an exception
concerning political offenders in the existing rules of
court on the subject of bail. Whether the proviso is
valid or not, it cannot affect the constitutionality of
the whole act. If it is valid, it is within the purview of
the creation of the People's Court. If it is invalid, it
can be discarded without affecting the other
provisions of the
law.chanroblesvirtualawlibrary chanrobles virtual
law library
(5) The fifth objection points to the second proviso
of section 19, suspending the provisions of article
125 of the Revised Penal Code. The proviso is
evidently unconstitutional. It is within the purview of
the creation of the People's Court. It creates a
discrimination violative of the constitutional
guarantee of the equal protection of the laws. In
effect, it authorizes deprivation of liberty of the
political prisoners for a period of six months, which is
violated of the constitutional guarantee that no
person shall be deprived of his liberty without due
process of law. But the proviso may be eliminated
without affecting the remaining portions of the act
and, therefore, is not enough ground for declaring
the whole act null and
void.chanroblesvirtualawlibrary chanrobles virtual
law library
Our conclusion is that the first ground attacking the
validity of the law is without merit.
(b) EQUAL PROTECTION OF THE LAWS chanrobles
virtual law library
Appellant advances six reasons to show that the act
violates the constitutional guarantee of the equal
protection of the
laws.chanroblesvirtualawlibrary chanrobles virtual
law library
(1) The first reason is that, under section 2, the
People's Court is only to try the cases of political
offenders against whom the information has been
filed within six months., while others shall be tried in
a Court of First Instance. We believe that there is no
unjust discrimination in it, complain of any unjust
discrimination. They will be tried by the regular
tribunals created to try all other offenses. Those who
are to be tried by the People's Court cannot
complain either, because said court is but another
court of first instance, although especially created
for the prompt disposal of the cases of political
detainees. Congress made it collegiate as a
guarantee against possible miscarriage of justice due
to popular excitement during the first months after
the liberation. Congress believed that a three-person
tribunal can defend itself better against any outside
pressure than a one-man
tribunal.chanroblesvirtualawlibrary chanrobles
virtual law library
(2) The second reason is that political offenders
accused in the People's Court are denied the
preliminary investigation accorded to those who may
be accused in the court of first instance. We are of
opinion that the allegation is groundless. There is
nothing in the act in question depriving political
offenders accused in the People's Court of the
preliminary investigation as provided by Rule
108.chanroblesvirtualawlibrary chanrobles virtual
law library
(3) The third reason is that political offenders
accused in the People's Court have limited right to
appeal, while those who may be accused of the same
crime in court of first instance have absolute right to
appeal. The allegation is partly true. There appears a
discrimination against those who may be convicted
by the People's Court in banc, by providing that they
can only appeal in accordance with Rule 46, under
which only questions of law may be raised. We are of
opinion that the discrimination is violative of the
guarantee of the equal protection of the laws, and
should not be given effect. But the unconstitutional
provision may be eliminated, without annulling the
whole act. In practice, the invalid discriminating
provision seems to have become obsolete as all
cases in the People's Court are tried and decided in
34 | P a g e
division and not in banc. chanrobles virtual law
library
(4) The fourth reason is that appeals in cases
involving persons who held any office under the
governments established by the Japanese during the
occupation are to be heard and decided by a
substantially different Supreme Court. The allegation
is correct by virtue of the provisions of section 14
which is flagrantly unconstitutional because (a) the
disqualification of some members of the Supreme
Court provided therein constitutes in effect partial
removal form office in open violation of the
guarantees and procedure provided by Article IX of
the Constitution, (b) it provides for sitting in the
Supreme Court of persons not appointed in
accordance with section 5 of Article VIII of the
constitution and without the qualifications provided
in section 6 of the same article, and (c) it provides for
the existence of a second Supreme Court in violation
of section 2 of Article VIII of the Constitution which
provides for only "one Supreme Court." But, as we
have already stated, section 14 can be eliminated
from Commonwealth Act No. 682, without declaring
the act wholly
unconstitutional.chanroblesvirtualawlibrary chanrobl
es virtual law library
(5) The fifth reason is that there is discrimination in
the first proviso of section 19 as to the granting of
release on bail. We are opinion that there is no
substantial
discrimination.chanroblesvirtualawlibrary chanrobles
virtual law library
(6) The sixth reason is the discrimination provided in
the second proviso of section 19. The proviso is null
and void, but it can be eliminated without annulling
the whole act. It is a denial of the equal protection of
the laws and is violative of the constitutional
guarantee against deprivation of liberty without due
process of law. The proviso should not be given
effect, without annulling the whole act.
(c) BILL OF ATTAINDER chanrobles virtual law library
Appellant alleges that Commonwealth Act No. 682 is
a bill of attainder in that it virtually impose upon
specific, known and identified individuals or group of
individuals, the penalty of detention and
imprisonment for a period not exceeding six months
without any form of judicial trial or
procedure.chanroblesvirtualawlibrary chanrobles
virtual law library
The allegation is justified by the second proviso of
section 19 of the act. But it cannot affect it in whole
as said proviso can be eliminated without impairing
the remaining proviso of the law.
(d) DELEGATION OF LEGISLATIVE POWER chanrobles
virtual law library
Appellant alleges that section 2 constitutes an invalid
and void delegation of legislative power in so far as it
virtually leaves unqualifiedly in the discretion of the
Solicitor General and/or the Office of Special
Prosecutors the power to determine the actual cases
over which the People's Court shall have jurisdiction.
There is no such delegation. The People's Court is
substantially but one court of first instance, only
with limited jurisdiction. Whether a case is to be
tried by the People's Court or by an ordinary court of
first instance, there is no substantial difference for
the purposes of the administration of justice and the
jurisdictions of both courts are specifically provided
in the law.
(e) CURTAILMENT OF THE POWER OF APPOINTMENT
OF THE PRESIDENT chanrobles virtual law library
Appellant's objection is directed against section 1, 4,
and 18. The objection is untenable. Congress may
validly provide for the qualifications of the members
of the People's Court. Section 8 of Article VIII of the
constitution expressly grants that authority.
(f) TRANSFER OF JUSTICE WITHOUT APPROVAL OF
THE SUPREME COURT chanrobles virtual law library
Appellant alleges that Commonwealth Act No. 682
provides for the designation and/or transfer of
judges to an other place outside their respective
districts without the consent of the Supreme Court,
implying that section 7 of Article VIII of the
Constitution is violated. The allegation is untenable.
The fact that the act authorizes the appointment of
person already holding positions in the judiciary to
be members of the People's Court is no violation of
the constitutional mandate. What the authors of the
Constitution contemplated were transfers from one
district to another, but not appointment of those
already holding positions to other positions.
(g) UNIFORMITY OF LAWS chanrobles virtual law
library
The objections of appellant in paragraph (g) is but a
repetition of his objections in paragraph (b) already
dealt with above.
(h) INDEPENDENCE OF THE JUDICIARY chanrobles
virtual law library
Appellant sets the following propositions:chanrobles
virtual law library
1. By creating a special court with jurisdiction over
cases which were already within the jurisdiction of
the existing courts of first instance, considering that
the persons involved in said cases were more or less
35 | P a g e
known and identified at the time of the creation of
said court, the law establishes a precedent under
which Congress may at any time remove from the
jurisdiction of existing court cases involving definite
or specific individuals or groups of individuals to
serve any purpose which the members of the
Congress may wish to accomplish, either to the
benefit or damage of said
individuals.chanroblesvirtualawlibrary chanrobles
virtual law library
2. By limiting the choice of the judges to compose
the People's Court, the law makes a classification
that has absolutely no rational
basis.chanroblesvirtualawlibrary chanrobles virtual
law library
3. In leaving to the hands of the Solicitor General the
absolute right to choose in which court he shall
prosecute the cases contemplated by the law and in
providing that the judges of the People's Court shall
be chosen from a limited groups of individuals, etc.,
the law does not leave a wide room for the play of
external factors in the administration of justice to
those concerned but also destroys the confidence of
the people in the
judiciary.chanroblesvirtualawlibrary chanrobles
virtual law library
The question raised in the above three propositions
are serious but none of them amounts to a violation
of the fundamental law that may nullify the law in
question, as they involve a matter of public policy,
although the first one points to a situation bordering
into a transgression of the guarantee of the equal
protection of the laws. If the provisions of the law
creating the special court should show a clear
purpose of making a discrimination, pro or against
those who may be tried under it, then the law must
be declared null and void in toto. Such is not the case
of the law under discussion. Matters of public policy
not involving a violation of the fundamental law are
within the province of Congress to legislate, subject
only to the control of the people through the
electorate.chanroblesvirtualawlibrary chanrobles
virtual law librar
For all the foregoing, we vote to affirm the decision
rendered by the lower court in this case.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 161083 August 3, 2010
PEOPLE OF THE PHILIPPINES, represented by Chief
State Prosecutor JOVENCITO ZUÑO, State Prosecutor
GERONIMO SY and Prosecution Attorney IRWIN
MARAYA, Petitioners,
vs.
HON. BASILIO R. GABO, in his capacity as Presiding
Judge of the Regional Trial Court of Malolos,
Bulacan, Branch II and WILSON CUA TING, EDWARD
NGO YAO, WILLY SO TAN and CAROL FERNAN
ORTEGA, Respondents.
DECISION
PERALTA, J.:
Before this Court is a petition for certiorari1 under
Rule 65 of the Rules of Court, seeking to set aside
the July 24, 2003 Decision2 and October 3, 2003
Resolution3 of the Court of Appeals (CA) in CA-G.R.
SP No. 71985.
The facts of the case, as culled from the petition, are
as follows:
On May 14, 2001, around 12:15 a.m., a fire broke out
inside the plant of Sanyoware Plastic Products
Manufacturing Corporation (Sanyoware) located at
Km. 8, McArthur Highway, Lolomboy, Bocaue,
Bulacan. The Sanyoware plant had four single-storey
buildings, enclosed in concrete walls with steel
tresses and galvanized iron sheet roofing.
Sanyoware 2, Warehouse 2, the building that was
razed by fire, was located at the right innermost
portion of the plant facing north. Sanyoware
occupied the right, western portion of the said
building, while New Unitedware Marketing
Corporation (Unitedware) rented the other half,
located at the left, eastern portion. The building was
divided at the center by a tall concrete firewall with
a steel gate.
Investigations were conducted by the Philippine 3rd
Regional Criminal Investigation and Detention Group
(CIDG) and the Inter Agency Anti-Arson Task Force
(IATF) of the Department of the Interior and Local
Government. Pursuant to the August 1, 2001
letter4 of CIDG Regional Officer P/Supt. Christopher
A. Laxa to the Secretary of the Justice; the IATF’s
October 25, 2001 Indorsement;5 and the October 8,
2001 letter6 of Bureau of Fire Protection (BFP) Chief
Sr. Supt. Victoriano C. Remedio to the Prosecutor of
the DOJ, the following were accused of destructive
arson before the Office of the Chief State Prosecutor,
namely: Samson Cua Ting, alias Ding Jian Zhi,
External Vice-President; Wilson Cua Ting, Plant
Manager; Edward Ngo Yao (Yao), President of New
Marketing Corporation; Willy So Tan, alias Chen Yi
Ming, Vice-President for Operations; Carol Fernan
Ortega, Assistant to the External Vice-President; and
John Doe and Peter Doe.
In support of the accusation, petitioner submitted
the Sworn Statements of Richard Madrideo, Jaime
Kalaw, Raymund Dy, Chit Chua, Jennifer Chua Reyes,
36 | P a g e
Shanda Amistad, SPO1 Valeriano Dizon and Inspector
Allan N. Barredo.
In his sworn statement,7 Richard Madrideo, a
supervisor at Sanyoware said that there were two
separate sets of fire in the Sanyoware Warehouse
and that it was different from, but occurred
simultaneously, with the fire at the Unitedware
Warehouse. Madrideo claimed that respondents
Wilson Ting and Yao instructed him that if anyone
should ask about the fire, he should say that the fires
did not break out simultaneously and the cause
thereof was defective wiring. In his additional sworn
statement, Madrideo claimed that, days after the
fire, he was threatened by respondents and was
being forced to write a sworn statement against his
will.
Jaime Kalaw, a former head of the Maintenance
Department of Sanyoware, alleged in his sworn
statement8 that the cause of the fire could not have
been faulty electrical wiring, because the warehouse
was relatively new and that, on the day of the fire,
the plant was not in operation so there was no heavy
load of electricity and all the circuit breakers were
shut down. Kalaw noted that a week before the fire
occurred, almost 300 unserviceable molds were
transferred to the burned Sanyoware warehouse. A
day before the fire, expensive finish products were
loaded in delivery trucks. In addition, Kalaw alleged
that he saw respondent Yao a day before the fire
driving to the Unitedware warehouse. Once inside,
respondent Yao took a rectangular shaped object
from his vehicle.
Raymond Dy, a warehouse supervisor at Sanyoware
stated in his sworn statement9 that a week before
the fire occurred, he observed that saleable products
from the burned warehouse were transferred to the
Sanyo City Warehouse, while unusable components
from the Sanyo City warehouse were transferred to
the burned warehouse. Dy alleged that the transfer
of the products was upon the orders of Charles Lee,
the plant manager of Sanyoware, who allegedly told
the employees to finish the transfers on May 12,
2001.
Chit Chua, an employee at the Accounting
Department of Sanyoware, claimed in her sworn
statement10 that Sanyoware was indebted to a
number of banks and corporations and that
Sanyoware’s outstanding obligations amounted to
₱95,000,000.00 to ₱96,000,000.00. Jennifer Chua
Reyes, a secretary at Sanyoware, alleged in her
sworn statement11 that Sanyoware has an
outstanding loan of ₱180,000,000.00 to various
individuals.
Shanda Amistad, a former stay-in worker at
Sanyoware, alleged in her affidavit12 that, around
8:00 a.m. of May 13, 2001, she saw respondent Yao
driving a Canter truck of Unitedware loaded with
goods. Yao went to Sanyoware three times that day.
Amistad found it unusual, since Yao did not normally
go to Sanyoware on Sundays and there were
available drivers at that time. Around 2:00 p.m. of
the same day, respondent Wilson Ting arrived.
SPO1 Valeriano Dizon (SPO1 Dizon), a fireman
assigned at the Meycauayan Fire Station, Bulacan,
stated in his sworn statement13 that he conducted
the examination of the fire that occurred on May 14,
2001. He alleged that he took the statement of the
witnesses, but Sr. Supt. Enrique Linsangan of the BFP
Regional Office, Region III, took the witnesses’
statements from him before he could prepare the
Final Investigation Report (FIR). Thereafter, Sr. Supt.
Linsangan summoned him, Inspector Allan Barredo
and BFP C/Ins. Absalon Zipagan, Municipal Fire
Marshall of Bocaue, Bulacan, and showed them the
copy of the FIR and made them sign it. Inspector
Barredo, in his affidavit,14 corroborated SPO1 Dizon’s
allegation as to how Sr. Supt. Lansangan summoned
and ordered them to sign the FIR.
In their defense, respondents submitted a Counter-
Affidavit15 to refute the allegations made against
them, the significant portions of which read:
7. Principally on the basis of the "Salaysay"
of Richard Madrideo attached Annex "A" to
the Affidavit of Carol Ortega Fernan dated
September 22, 2001, and on the basis of the
"Sinumpaang Salaysay" of Ricky A. Hista and
of the "Karagdagang Salaysay" of Bobby
Bacang and on the basis of our inquiry from
others, we have good reason to believe that
one claiming to be a representative of CRM
Adjustment Corporation had indeed offered
money and jobs to persons to give perjured
statements to make it appear that there
was arson and that we committed it. (The
Affidavit of Carol Ortega Fernan, together
with the "Salaysay" of Richard Madrideo as
Annex "A" thereto, the "Sinumpaang
Salaysay" of Ricky A. Hista and the
"Karagdagang Salaysay" of Bobby Bacang
were all submitted last September 22, 2001
to the Inter Agency Anti-Arson Task Force,
Office of the Secretary, Department of the
Interior and Local Government.
8. We would like to stress the fact that
during the supposed investigation of this
arson case by complainant 3rd Regional
Criminal Investigation and Detection Group,
not one of us was invited by complainant to
answer the allegations of witnesses against
us. As far as we know, complainant did not
even make an ocular inspection of the place
where fire occurred.
37 | P a g e
9. Although the CIDG investigators were
allegedly informed by Mrs. June Go, a clerk
of Sanyoware, that nobody could assist the
team in the ocular inspection, said
investigators did not proceed to conduct an
ocular inspection when they actually did not
need any assistance and when nobody was
preventing them from conducting the
inspection.
10. Although Senior Police Officer Regino
Raquipiso claims that when he and SPO1
John Tabago returned to the factory, the
ocular inspection was not pushed through
for alleged lack of clearance from the
company owners, there is no showing that
said police officers insisted or demanded to
conduct then and there an ocular
inspection.
11. Apparently, complainant solely relied on
the statements of Jaime Kalaw, Raymond
Dy and Richard Madrideo in deciding to file
the case at bar against us.
12. Richard Madrideo executed a
"Sinumpaang Salaysay" before SPO4 Regino
D. Raquipiso, Jr. last June 29, 2001 wherein
he claims, among others, that there was a
simultaneous fire that occurred in two
places in Sanyoware warehouse and in a
place in Unitedware. However, said claim is
a blatant lie and perjured statement.
13. In his "Salaysay" (Annex "A" to the
Affidavit of Carol Ortega Fernan submitted
last September 22, 2001 to the Inter Agency
Anti-Arson Task Force), Richard Madrideo
admitted to the fact that he received the
sum of ₱1,000.00 from Atty. Lugtu and that
he subsequently received another sum of
₱15,000.00 from Atty. Lugtu. Richard
Madrideo was also given a cellphone and
was promised a job. According to said
"Salaysay," Atty. Lugtu instructed Madrideo
to state, among others, in his "Salaysay"
that Madrideo saw a simultaneous fire that
occurred in two sides of the plant of
Sanyoware.
14. In the "Karagdagang Salaysay" of
Richard Madrideo, he repudiated his
"Salaysay" by claiming that he was
threatened and coerced by Respondents
into executing said "Salaysay." Said claim is
a blatant lie. In essence, the story contained
in the "Karagdagang Salaysay" regarding
alleged threats and coercion is nothing but
a fabricated lie for the truth of the matter
being that his "Salaysay" was executed by
him freely and voluntarily last July 30, 2001
at the conference room of Sanyoware. He
was not threatened by anyone. He was
neither paid nor promised any
consideration for executing said "Salaysay."
15. At any rate, I, Wilson Ting, and the
security guards on duty can attest to the
fact that fire started at the warehouse of
Unitedware and that it did not occur
simultaneously in different places.
16. In the Sworn Statement of Raymond Dy,
he claims that Richard Madrideo had told
him that while the fire was on going at the
Unitedware warehouse, Madrideo saw the
fire on top of the stock piles inside the
Sanyoware warehouse aside from that fire
at the Unitedware. However, Jaime Kalaw,
who was allegedly informed about the fire
by Raymond Dy, did not mention in his
Sworn Statement about any simultaneous
 occurrence of the fire in different places.
Jaime Kalaw even further stated in his
Sworn Statement that upon his inquiry from
the employees, he was allegedly told that
the fire originated from Unitedware
warehouse that spread to Sanyoware
warehouse.
17. The allegation of Jaime Kalaw in his
Sworn Statement that all circuit breakers
were "off" position so that there was no
flow of electric current that may cause fire
on the warehouses and the allegation of
Raymond Dy that during his roving before
the fire, all the lights were "off" are not true
for the truth being that management had
required that some lights be put on every
night in all the warehouses so that they can
be well guarded. Besides, I, Wilson Ting, and
the guards on duty can attest to the fact
that there were lights in all the warehouses
during the subject incident.
18. Raymond Dy claims that the keys were
usually kept by the guard on duty, but that
on this occasion, he learned from Shandra
Amistad, a stay-in helper, that the keys
were then kept by Wilson Ting. Obviously,
said claim is based on hearsay and thus,
should not be given any credence and
besides, I, Wilson Ting, deny said claim for
the truth of the matter being that the keys
of Sanyoware are kept inside its main office
and are not kept by the guard on duty.
19. Raymond Dy also claims that the lights
were 3 to 4 meters away from the stocks, so
that it could be impossible that stocks will
be caught by fire if and when the lights or
electrical system leak down. However, said
claim is not true for the fact of the matter is
38 | P a g e
that in the Unitedware warehouse and in
Sanyoware warehouse, there were so much
pile[s] of stocks that some pile[s] almost
reached the lights.
20. There is also no truth to the allegation
of Raymond Dy that a week before the fire,
saleable finished products from Sanyoware
and Unitedware were removed and
transferred to Sanyo City warehouse. There
is also no truth to the allegation that non-
useable components were removed from
Sanyo City and transferred a week before
the fire to the warehouses that got burned.
Likewise, there is no truth that Charles Lee
gave a deadline until Saturday (May 12) to
transfer non-useable components to the
burned warehouses. Said allegations are all
fabricated lies designed to make it appear
that there was arson.
21. Long before the subject incident, I,
Wilson Ting, had ordered to have the stock
piles that were in between the steel gate
dividing Unitedware and Sanyoware
warehouses moved, not to have a pathway,
but for the purpose of closing the said steel
gate. After said stock piles were moved, the
steel gate was padlocked.
22. There was nothing extraordinary or
irregular for several delivery trucks filled
with stocks to stay at the parking area for
the night and to leave very early in the
morning to avoid traffic. Considering the
huge volume of deliveries being made
regularly by Sanyoware and Unitedware,
delivery trucks with finished products were
often times parked in the evening and
during Sundays and holidays at the
compound of Sanyoware and they usually
moved out very early in the morning from
Monday to Saturday. Thus, there was
nothing extraordinary or irregular for some
delivery trucks with stocks at the parking
area on the night of May 13, 2001,
considering especially that it was a Sunday.
23. Being the operations manager of
Sanyoware, I have no fixed time and
schedule of work. Even on a Sunday or
holiday, I, Wilson Ting[,] sometimes visit the
plant. Thus, there was nothing unusual that
I, Wilson Ting, went to Sanyoware last May
13, 2001. Due to several incidents of thefts
that took place inside the compound of
Sanyoware and because of reports that the
delivery trucks at the parking lot might
contain some items that were not included
in the inventory for delivery, I, Wilson Ting,
as operations manager, decided to be at
Sanyoware on that Sunday (May 13, 2001)
principally to check the goods inside the
delivery trucks. With the help of security
guards Bobby Bacang and Ricky Hista, I,
Wilson Ting, checked the goods in all the
delivery trucks.
24. Being the President and practically the
owner of Unitedware, a marketing area of
Sanyoware and the lessee of Sanyoware’s
warehouse, I, (Edward Yao), visit Sanyoware
and Unitedware from time to time.
25. As my (Edward Yao’s) mother-in-law
asked from me (Edward Yao) some chairs
and drawers, I (Edward Yao) drove my
Pajero and went to Sanyoware. I (Edward
Yao) called up Wilson Ting and informed
him that I’ll be getting some chairs and
drawers from Sanyoware for my mother-in-
law. From the plant of Sanyoware, I
 (Edward Yao) got some chairs and drawers.
When said chairs and drawers could not fit
in my (Edward Yao) [P]ajero, I (Edward Yao)
left to get a van. I (Edward Yao) came back
later driving a van where the said chairs and
drawers were placed. I (Edward Yao)
brought said chairs and drawers to my
mother-in-law who selected and got only
some items and so, I (Edward Yao) returned
to Sanyoware the remaining items. Before I
(Edward Yao) left again, Wilson Ting asked
me to come back for some chat and so, I
(Edward Yao) returned in my [P]ajero.
However, after chatting with Wilson Ting, I
(Edward Yao) left at around 9:00 o’clock in
the evening of May 13, 2001. Thus, just
before the incident when the fire occurred,
I (Edward Yao) was not in the compound of
Sanyoware.
26. There is no truth, however, to the claim
that I (Edward Yao) had entered the
warehouse of Unitedware and that I
(Edward Yao) got a rectangular shape black
object from my vehicle while inside the
warehouse for the truth of the matter being
that I (Edward Yao) did not enter said
warehouse and I (Edward Yao) did not get
any object from my vehicle. I (Edward Yao)
got the said chairs and drawers from the
plant of Sanyoware.
27. There is no truth that the company is
suffering losses even before the fire
occurred. The loan of Sanyoware with
Metrobank is fully secured by a real estate
mortgage wherein the value of the real
estate, together with the improvements
thereon that was mortgaged is more or less
double the amount of the said loan and,
thus, said real estate value is more than
39 | P a g e
sufficient to cover said loan of Sanyoware.
On the other hand, the loan with Equitable
Bank is also fully secured by a real estate
mortgage.
28. Before the subject incident, Sanyoware
was making profits. There was no year that
Sanyoware incurred losses. Its business was
going every year. Prior to the subject
incident, the record of Sanyoware with the
banks was quite good.
29. Likewise, prior to the fire, Unitedware
was steadily growing. Every year, its profit
continued to go up. Last year, Unitedware
made a huge profit from its operation and it
is expected that, despite the fire that
burned the warehouses, Unitedware will
still make a good profit this year.
30. Complainant did not conduct any
investigation, except to get the statements
of its witnesses: Madrideo, Kalaw and Dy.
Likewise, the Inter Agency Anti-Arson Task
Force did not also conduct any
investigation, except in essence to ask the
witnesses of complainant to identify under
oath their sworn statements executed
before the complainant and to ask
respondents to submit their sworn
statements and later to identify the same
under oath.
31. On the other hand, the elements of
Bocaue Fire Station and OPFM Bulacan BFP
Region 3 Intel and Inves Section conducted
a thorough investigation of the origin of the
fire. Statements of security guards Bobby A.
Bacang and Mark Anthony Gabay were
taken. Statement of the operations
manager Wilson Ting was also taken. The
subject place was inspected. Pictures were
taken. Specimens were obtained from the
place where fire occurred and submitted to
the laboratory for examination. Said
elements undertook other activities in line
with proper investigation.16
After preliminary investigation, then State
Prosecutor Carlos C. Pormento issued a
Resolution,17 the dispositive portion of which reads:
WHEREFORE, premises considered, it is respectfully
recommended that an information for Destructive
Arson be filed against Wilson Ting, Edward Yao, Willy
So Tan and Carol Ortega. That the case against
Samson Ting be dismissed for lack of sufficient
evidence to indict him under the charge.
As to the charge of Accessories against herein three
(3) Fire Officers, let that case be remanded to TF-
IATF for further investigation.18
Pursuant to the foregoing Resolution, an
Information19 for Arson was filed against Wilson Cua
Ting, Edward Ngo Yao, Willy So Tan, Carol F. Ortega,
John Doe and Peter Doe, of the crime of arson, to
wit:
That on or about May 14, 2001, in the Municipality
of Bocaue, Province of Bulacan, and within the
jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating and
mutually helping one another, acting in common
accord, did then and there, willfully, unlawfully, and
feloniously, destroy the warehouses known as
Sanyoware Plastic Products Manufacturing Plant and
New Unitedware Marketing Corporation, including
the stocks of raw materials and finish products,
machineries and various equipments by maliciously
burning the same for the purpose of concealing or
destroying evidence of another violation of law, and
to conceal bankruptcy to defraud creditors and to
collect from insurance.
CONTRARY TO LAW.20
The Information was raffled to Branch XI, Regional
Trial Court (RTC) of Malolos Bulacan, 3rd Judicial
Region. The case was docketed as Criminal Case No.
300-47M 2002.
Prior to the arraignment of respondents and before
warrants of arrest could be issued, respondents filed
a Motion to Conduct Hearing to Determine Probable
Cause and to Hold in Abeyance the Issuance of
Warrant of Arrest Pending Determination of
Probable Cause.21
On February 27, 2002, the RTC issued an
Order22 dismissing the case, the dispositive portion
of which reads:
Accordingly, for lack of probable cause, the instant
case is DISMISSED as ordained under Sec. 6, Rule 112
of the Revised Rules of Criminal Procedure.
SO ORDERED.23
The RTC applied the equipoise rule in dismissing the
case, because of its observation that the sworn
statements submitted by petitioner and respondents
contained contradictory positions.
Aggrieved, petitioner filed a Motion for
Reconsideration,24 which was, however, denied by
the RTC in an Order25 dated March 25, 2002.
On August 8, 2002, petitioner filed a petition for
certiorari before the CA docketed as CA-G.R. SP No.
71985. On July 24, 2003, the CA issued a Decision
40 | P a g e
denying the petition, the dispositive portion of which
reads:
WHEREFORE, premises considered, there being no
grave abuse of discretion committed by the public
respondent, the assailed Orders dated February 27,
2002 and March 25, 2002 are hereby AFFIRMED in
toto and the present petition is hereby DENIED DUE
COURSE and is, accordingly, DISMISSED for lack of
merit.
SO ORDERED.26
Petitioner then filed a Motion for Reconsideration,
which was, however, denied by the CA in a
Resolution27 dated October 3, 2003.
Hence, this instant petition, with petitioner raising
the following ground for this Court’s consideration,
to wit:
THE COURT OF APPEALS PATENTLY AND GROSSLY
ABUSED ITS DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN ADOPTING THE
EQUIPOISE RULE IN THE CASE AT BAR.28
Before anything else, this Court shall address a
procedural issue raised by respondents that
certiorari does not lie considering that such special
civil action is not and cannot be a substitute for an
appeal, or more importantly, a lapsed appeal.29
Respondents’ position is well taken.
It is well settled that a special civil action for
certiorari under Rule 65 of the Rules of Court lies
only when, "there is no appeal nor plain, speedy and
adequate remedy in the ordinary course of law," and
certiorari cannot be allowed when a party to a case
fails to appeal a judgment despite the availability of
that remedy, certiorari not being a substitute for a
lost appeal.30
A perusal of the records will show that petitioner
received the assailed CA Resolution on October 10,
2003. From that time on, petitioner had 15 days, or
until October 25, 2003, to file an appeal by way of a
petition for review under Rule 45 of the Rules of
Court. However, instead of filing the appeal on the
last day of reglementary period, petitioner simply
allowed it to lapse. Clearly, petitioner had an appeal,
which under the circumstances was the adequate
remedy in the ordinary course of law. On this point
alone, petitioner’s petition must be dismissed, as
herein petition is without a doubt a substitute for a
lost appeal. In any case, even if this Court were to set
aside the procedural infirmity of the petition, the
same still fails on the merits.
In a petition for certiorari, the court must confine
itself to the issue of whether or not respondent
court lacked or exceeded its jurisdiction or
committed grave abuse of discretion.31
It is well to remember that there is a distinction
between the preliminary inquiry, which determines
probable cause for the issuance of a warrant of
arrest, and the preliminary investigation proper,
which ascertains whether the offender should be
held for trial or be released. The determination of
probable cause for purposes of issuing a warrant of
arrest is made by the judge. The preliminary
investigation proper – whether or not there is
reasonable ground to believe that the accused is
guilty of the offense charged – is the function of the
investigating prosecutor.32
Section 6, Rule 112 of the Revised Rules of Court
provides:
SEC 6. When warrant of arrest may issue. –
xxxx
(a) By the Regional Trial Court. – Within (10) days
from the filing of the complaint or information, the
judge shall personally evaluate the resolution of the
prosecutor and its supporting evidence. He may
immediately dismiss the case if the evidence on
record clearly fails to establish probable cause. If he
finds probable cause, he shall issue a warrant of
arrest, or a commitment order of the accused had
already been arrested, pursuant to a warrant issued
by the judge who conducted preliminary
investigation or when the complaint or information
was filed pursuant to Section 7 of this Rule. In case
of doubt on the existence of probable cause, the
judge may order the prosecutor to present
additional evidence within five (5) days from notice
and the issue must be resolved by the court within
thirty (30) days from the filing of the complaint or
information.33
As enunciated in Baltazar v. People,34 the task of the
presiding judge when the Information is filed with
the court is first and foremost to determine the
existence or non-existence of probable cause for the
arrest of the accused. Probable cause is such set of
facts and circumstances as would lead a reasonably
discreet and prudent man to believe that the offense
charged in the Information, or any offense included
therein, has been committed by the person sought
to be arrested. In determining probable cause, the
average man weighs the facts and circumstances
without resorting to the calibrations of the rules of
evidence of which he has no technical knowledge.
He relies on common sense. A finding of probable
cause needs only to rest on evidence showing that,
more likely than not, a crime has been committed
and that it was committed by the accused. Probable
cause demands more than suspicion; it requires less
than evidence that would justify conviction.35 The
purpose of the mandate of the judge to first
41 | P a g e
determine probable cause for the arrest of the
accused is to insulate from the very start those
falsely charged with crimes from the tribulations,
expenses and anxiety of a public trial.36
Based on the foregoing, the RTC acted within its
jurisdiction when it dismissed the case on lack of
probable cause as the same is sanctioned under
Section 6, Rule 112 of the Rules of Court. The
penultimate question to be resolved then is was
such exercise of jurisdiction attended by grave abuse
of discretion?
Grave abuse of discretion implies such capricious
and whimsical exercise of judgment as is equivalent
to lack of jurisdiction, or in other words where the
power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility,
and it must be so patent and gross as to amount to
an evasion of positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in
contemplation of law.37
Petitioner’s main argument hinges on the propriety
of the RTC’s use of the equipoise rule in dismissing
the case which was affirmed by the CA. Specifically,
petitioner contends that the equipoise rule cannot
be used by the RTC merely after the filing of the
information, thus:
Since there must be a proper determination of the
presence or absence of evidence sufficient to
support a conviction, i.e., proof beyond reasonable
doubt, the equipoise rule shall properly come into
play when the parties have already concluded the
presentation of their respective evidence. It is only
at this stage, not at any prior time and certainly not
merely after the filing of the information, can the
trial court assess and weigh the evidence of the
parties and thereafter determine which party has
the preponderance of evidence. If both parties fail to
adduce evidence in support of their respective cases,
an adverse decision would be rendered against the
party which has the burden of proof.38
Under the equipoise rule, where the evidence on an
issue of fact is in equipoise, or there is doubt on
which side the evidence preponderates, the party
having the burden of proof loses. The equipoise rule
finds application if the inculpatory facts and
circumstances are capable of two or more
explanations, one of which is consistent with the
innocence of the accused and the other consistent
with his guilt, for then the evidence does not suffice
to produce a conviction.39
To this Court’s mind, the reliance of the RTC in the
equipoise rule is misplaced as a review of previous
Court decisions would show that the position of
petitioner is in fact correct. The equipoise rule has
been generally applied when the parties have
already concluded the presentation of their
respective evidence as shown in a plethora of cases
such as Abarquez v. People,40 Tin v. People41 and
People v. Leano.42
While the use of the equipoise rule was not proper
under the circumstances of the case at bar, the
same, however, does not equate to an abuse of
discretion on the part of the RTC, but at most,
merely an error of judgment. More importantly, this
Court finds that the RTC had in fact complied with
the requirement under the rules of personally
evaluating the resolution of the prosecutor and its
supporting evidence and that the assailed Order was
arrived at after due consideration of the merits
thereto, thus:
By this statement of Madrideo, it would appear fire
broke out in two (2) places, which, presupposes or
implies that some sort of incendiary or flammable
substances were ignited to start the fire. The
investigation conducted by the Bocaue Fire Station,
however, appears to have ruled out the use of
incendiary or inflammable substances. Annex "E" of
the Complaint, Chemistry Report No. C-054-2001 of
the Bulacan Provincial Crime Laboratory Office
indicated that the specimen submitted by the
Bocaue Fire Station in connection with the fire in
question was found negative of any flammable
substance. This finding was never debunked or
repudiated, which makes the misgivings of the police
investigators about its veracity unfounded. Thus,
pitted against the allegation of Madrideo, this
physical evidence puts the truth of the latter in grave
doubt. Physical evidence is evidence of the highest
order. It speaks more eloquently than a hundred
witnesses (People vs. Sacabin, 57 SCRA 707). Physical
evidence are mute but eloquent manifestations of
truth and they rate high in our hierarchy of
trustworthy evidence (People vs. Uycoque, 124 SCRA
769).
At this stage, it must be stressed that the Fire
Investigation Report prepared by the Bocaue Fire
Station (Annex "D") and the Certification made by
the Provincial Fire Marshall, Absalon Zipagan, point
to the faulty wiring as the cause or origin (sic) of the
conflagration at bar. The Office the Regional Fire
Marshall also came out with the same findings.
(Annexes "B" and "C") All the above reports and
investigation stand as the official report of the fire in
question. Contrary to the Resolution, we find
nothing in the respective sworn statements of Supt.
Absalon Zipagan, Sr. Supt. Enrique Linsangan and
Insp. Allan Barredo that deviated much less
repudiated the aforesaid reports and findings. Far
from impugning their own investigation, the three
(3) fire officials simply narrated the steps that were
taken at the provincial and regional levels in the
investigation of the Sanyo fire. Needless to state, the
investigation reports and findings carry the
presumption that official duty has been regularly
42 | P a g e
performed. A mere affidavit cannot overcome this
presumption. (Transport Corporation vs. CA, 241
SCRA 77) Government officials are presumed to
perform their functions with regularity and strong
evidence is necessary to rebut this presumption.
(Tata vs. Garcia, Jr., 243 SCRA 235)
The significance of the above reports and findings
cannot be overlooked. Note that F/CINSP. Absalon
Zipagan, F/Insp. Allan Barredo and SPO1 Valeriano
Dizon, Jr. were included as accessories in the
complaint by the DILG, Inter Agency Anti-Arson Task
Force but the State Prosecutor did not rule on their
liability, which thus enhances all the more the
probative value of the said reports and findings.
This Court, likewise, noted that although the Inter
Agency Anti Arson Task Force was quick to rule out
faulty electrical wiring, it did note arrive at a definite
theory how the fire started, leaving everything
hanging in mid-air.
This Court is also hard put to make out a case from
the actuations of some of the accused before, during
and after the fire. For one, the presence of Wilson
Ting and Edward Yao in the Sanyo premises before
the fire is not criminal per se. Both apparently have
their own explanations, and following the equipoise
rule as elucidated above, no adverse implications
can be inferred therefrom. So are with the alleged
utterances made by the accused during and after the
fire, having been said in the midst of tenseful
happening these can be attributed to their
desperation over the loss of some of their
properties. And, consistent with the equipoise rule, if
ever said statements were uttered at all, they cannot
serve as evidence against the accused for the offense
charged.431avvphi1
The conclusions of the RTC which led to the dismissal
of the information against respondents cannot, in
any sense, be characterized as outrageously wrong
or manifestly mistaken, or whimsically or
capriciously arrived at. The worst that may perhaps
be said of it is that it is fairly debatable, and may
even be possibly erroneous. But they cannot be
declared to have been made with grave abuse of
discretion.44
Based on Section 6, Rule 112 of the Rules of Court,
the RTC judge, upon the filing of an Information, has
the following options: (1) dismiss the case if the
evidence on record clearly failed to establish
probable cause; (2) if he or she finds probable cause,
issue a warrant of arrest; and (3) in case of doubt as
to the existence of probable cause, order the
prosecutor to present additional evidence within five
days from notice, the issue to be resolved by the
court within thirty days from the filing of the
information.45
The judge is required to personally evaluate the
resolution of the prosecutor and its supporting
evidence. He may immediately dismiss the case if the
evidence on record clearly fails to establish probable
cause.46 To this Court’s mind, the RTC had complied
with its duty of personally evaluating the supporting
evidence of the prosecution before arriving at its
decision of dismissing the case against respondents.
While petitioner mainly argues against the use of the
equipoise rule, it cannot escape this Court’s
attention that ultimately petitioner is asking this
Court to resolve the propriety of the dismissal of the
case by the RTC, on the basis of the Information and
the attached documents it had filed. This Court
however, will defer to the findings of fact of the RTC,
which are accorded great weight and respect, more
so because the same were affirmed by the CA. In
addition, it bears to stress that the instant case is a
petition for certiorari where questions of fact are not
entertained.47
The sole office of writ of certiorari is the correction
of errors of jurisdiction, including the commission of
grave abuse of discretion amounting to lack of
jurisdiction and does not include correction of public
respondent’s evaluation of the evidence and factual
findings based thereon.48 An error of judgment that
the court may commit in the exercise of its
jurisdiction is not correctible through the original
special civil action of certiorari.49
In any case, the dismissal of herein petition does not
preclude petitioner from availing of any other action
it deems appropriate under the premises. Double
jeopardy cannot be invoked where the accused has
not been arraigned and it was upon his express
motion that the case was dismissed.50 Moreover,
while the absence of probable cause for the issuance
of a warrant of arrest is a ground for the dismissal of
the case, the same does not result in the acquittal of
the said accused.51
WHEREFORE, premises considered, the petition is
DISMISSED. The July 24, 2003 Decision and October
3, 2003 Resolution of the Court of Appeals, in CA-
G.R. SP No. 71985, are AFFIRMED.
SO ORDERED.
THIRD DIVISION
[G.R. NO. 171348 : November 26, 2008]
PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee v. LARRY ERGUIZA, Accused-Appellant.
DECISION
AUSTRIA-MARTINEZ, J.:
The Court is confronted with another case of rape.
The victim, a 13-year-old girl. And although the Court
43 | P a g e
may be moved by compassion and sympathy, the
Court, as a court of law, is duty-bound to apply the
law. Basic is the rule that for conviction of a crime,
the evidence required is proof beyond reasonable
doubt - - conviction with moral certainty.
For review before this Court is the November 18,
2005 Decision1 of the Court of Appeals (CA) in CA-
G.R. CR H. C. No. 00763 which affirmed with
modification the Decision2 of the Regional Trial Court
(RTC) of San Carlos City, Pangasinan, Branch 57,
finding Larry Erguiza (appellant) guilty of one count
of rape and sentencing him to suffer the penalty
of reclusion perpetua.
The Information, dated April 10, 2000, in Criminal
Case No. SCC 3282 reads as follows:
That on or about 5:00 o'clock in the afternoon of
January 5, 2000, at the back of the Bical Norte
Elementary School, municipality of Bayambang,
province of Pangasinan, Philippines, and within the
jurisdiction of this Honorable Court, the above-
named accused, armed with a kitchen knife, by
means of force and intimidation, did then and there,
willfully, unlawfully, and feloniously have sexual
intercourse with AAA3, a minor of 13 years old,
against her will and consent and to her damage and
prejudice. 4
When arraigned, appellant pleaded "not
guilty".5 Thereafter trial ensued.
The prosecution presented four witnesses, namely:
private complainant (AAA), her mother BBB and
father CCC, and Dr. James Sison. The defense
presented five witnesses, namely: Joy Agbuya,
Juanito Macaraeg, Juanita Angeles, Albina Erguiza,
and appellant.
On November 27, 2000, the RTC found appellant
guilty of the crime of rape, the dispositive portion of
which reads as follows:
In view whereof, the Court finds the accused LARRY
C. ERGUIZA guilty of RAPE under Article 266-a
paragraph 1(a) in relation to Article 266-b of R.A.
8353 and R.A. 7659 and sentences (sic) to suffer the
penalty of reclusion perpetua and to pay the
offended party, AAA P50,000 as civil
indemnity, P50,000 as moral damages, P50,000 as
exemplary damages, to give support to AAA's
offspring and to pay the costs.
SO ORDERED.6
On appeal, the CA aptly summarized the respective
versions of the parties, based on the evidence
presented before the trial court, thus:
PROSECUTION'S VERSION:
On January 5, 2000, at around 4:00 o'clock in the
afternoon, AAA, a thirteen-year old first year high
school student, together with her friends, siblings
Joy and Ricky Agbuya, went to the mango orchard
located at the back of ZZZ Elementary School to
gather fallen mangoes.7 When they were bound for
home at around 5:00 o'clock in the afternoon, AAA's
short pants got hooked on the fence. AAA asked Joy
and Ricky to wait for her but they ran away and left
her.8
While AAA was trying to unhook her short pants,
Larry suddenly grabbed and pulled her. Poking a
knife at her neck, Larry threatened to hurt her if she
9
would make a noise.
Accused-appellant dragged AAA towards a place
where a tamarind tree and other thorny plants grow.
Then Larry removed his maong pants and forced AAA
to lie down on the grassy ground. Thereafter, he
removed her short pants and panty, mounted
himself on top of her and inserted his penis into her
private parts and made push and pull movements.
He likewise raised AAA's "sando" and mashed her
breast. AAA felt pain when accused-appellant
entered her and she felt something sticky in her
private part after Larry made the push and pull
movements.10
Larry told AAA not to tell anybody about the incident
otherwise he would kill her and all the members of
her family and then he ran away.11
44 | P a g e
AAA lingered for a while at the place and kept crying. conducted the examination on Michelle. Dr. Sison
Having spent her tears, she wore her panty and short made the following findings:
pants and proceeded to the adjacent store of her
"Q. x x x No extragenital injuries noted. Complete
Aunt Beth who was asleep. After staying for some
healed hymenal laceration 11:00 o'clock. x x x. In
time at the store, AAA decided to come (sic) home.
layman's term, Dr. Sison found no physical injury
Upon reaching home, she directly went to bed.
from the breast, the body except the genital area
Fearing Larry's threat, AAA kept mum on the
wherein he found a significant laceration complete
incident.12
(sic) healed over 11:00 o'clock."17 Dr. Sison also
On April 7, 2000, BBB brought her daughter AAA to testified that a single sexual intercourse could make
her grandmother (BBB's mother), a hilot residing in a woman pregnant.
XXX, Tarlac, to consult her on the unusual palpitation
BBB testified that her daughter AAA stopped going
on the mid-portion of AAA's throat and the absence
to school after she was raped and that no amount of
of her monthly period.13 After examining AAA, her
money could bring back the lost reputation of her
grandmother told BBB that her daughter was
daughter.
pregnant.
CCC (AAA's father), testified that on May 2, 2000, the
BBB asked AAA who was the father of her unborn
family of accused-appellant went to their house and
child but AAA refused to talk. After much prodding,
initially offered P50,000 and later P150,000; that in
and in the presence of her Uncle, Rudy Domingo,
January 5, 2000, while they were repairing his house
AAA finally revealed that she was raped by accused-
for the wedding reception18, Larry left at around 4:00
appellant.14
o'clock p.m.
On April 8, 2000, AAA, accompanied by her mother
DEFENSE'S VERSION
and uncle, went to the police headquarters in YYY,
Pangasinan to report the incident.15 Then the police
On January 5, 2000, Larry Erguiza helped in the
brought her to YYY District Hospital16 where Dr.
repair of CCC's19 house from 8:00 o'clock in the
James Sison, Medical Officer III of said hospital
morning up to 5:00 o'clock in the afternoon. When

he reached home at around 5:00 pm, his mother
Albina Erguiza instructed him to fetch a "hilot" as his
wife Josie was already experiencing labor pains. He
proceeded to fetch the "hilot" Juanita Angeles and
stayed in their house until his wife delivered a baby
at around 3:00 o'clock in the morning of January 6,
20
2000.
Juanita Angeles corroborated Larry's testimony that
he indeed fetched her at around 5:10 pm on January
5, 2000 to attend to his wife who was experiencing
labor pains and who delivered a baby at about 3:00
a.m. of January 6, 2000; and that Larry never left his
wife's side until the latter gave birth.
Albina, mother of the accused-appellant, testified
that AAA is the daughter of her "balae" Spouses CCC
and BBB; that her son Larry, her husband and two
others left CCC and BBB's residence at about 5:00
o'clock in the afternoon on January 5, 2000; that she
went to Spouses CCC and BBB to talk about the
charge of rape against her son; that Spouses CCC and
BBB were asking for P1,000,000.00 which was later
reduced to P250,000.00 and that she made a
21
counter-offer of P5,000.00.
Joy Agbuya testified that she and AAA were at the
mango orchard of Juanito Macaraeg on January 5,
45 | P a g e
2000; that she never left AAA when her short pants
got hooked; that they went together to the store of
Auntie Beth where they parted.22
Juanito Macaraeg, the mango orchard caretaker,
testified that the house of Larry was a walking
distance of about three minutes from the mango
orchard; that if one runs fast, it would only take a
minute to reach his house; and that he could not
23
recall having seen Larry in the orchard. (Emphasis
supplied)cralawlibrary
In its Decision dated November 18, 2005, the CA
affirmed the decision of the RTC, but modified the
amount of the award of exemplary damages and
costs as follows:
WHEREFORE, in view of all the foregoing
circumstances, the Decision of the Regional Trial
Court of San Carlos (Pangasinan), Branch 57 dated
November 27, 2000 in Criminal Case No. SCC-3282
is AFFIRMED with MODIFICATION. Accused-appellant
Larry Erguiza is held GUILTY of Rape and is sentenced
to suffer the penalty of reclusion perpetua. He is
ordered to pay the victim AAA P50,000.00 as civil
indemnity; P50,000.00 as moral damages,
and P25,000.00 as exemplary damages and to give
support to AAA's offspring.
SO ORDERED.24
Hence, herein appeal.
In his appeal Brief,25 appellant raises the following
errors:
1. THE COURT A QUO GRAVLEY ERRED IN GIVING
CREDENCE TO THE INCREDIBLE, THUS UNBELIEVABLE
TESTIMONY OF PRIVATE COMPLAINANT AAA.
2. THE COURT A QUO GRAVELY ERRED IN
CONVICTING ACCUSED APPELLANT OF THE CRIME OF
RAPE DESPITE THE FACT THAT THE PROSECTUION
EVIDENCE FAILED TO ESTABLISH HIS GUILT BEYOND
REASONABLE DOUBT.
3. THE COURT A QUO GRAVELY ERRED IN NOT
APPRECIATING ACCUSED-APPELLANT'S DEFENSE OF
ALIBI CORROBORATED BY THE WITNESSES
PRESENTED BY THE DEFENSE.26
The appeal is meritorious. The prosecution's
evidence does not pass the test of moral certainty.
This Court has ruled that in the review of rape cases,
the Court is guided by the following precepts: (a) an
accusation of rape can be made with facility, but it is
more difficult for the accused, though innocent, to
disprove it; (b) the complainant's testimony must be
scrutinized with extreme caution since, by the very
nature of the crime, only two persons are normally
involved; and (c) if the complainant's testimony is
convincingly credible, the accused may be convicted
of the crime.27
In the case at bar, the CA upheld the conclusion of
the RTC in finding the complainant credible, to wit:
The testimonies of victims who are young and of
tender age, like AAA, deserve full credence and
should not be dismissed as mere fabrication
especially where they have absolutely no motive to
testify against the accused-appellant as in this case.
Larry even admitted that AAA had no ill motive for
charging him with rape. The Supreme Court in
several cases, ruled that full credence is accorded
the testimony of a rape victim who has shown no ill
motive to testify against the accused. This being so,
the trial court did not err in giving full credence to
AAA's testimony.28
This Court does not agree with the CA.
The Court is not unmindful of the general rule that
findings of the trial court regarding credibility of
witnesses are accorded great respect and even
finality on appeal.29 However, this principle does not
preclude a reevaluation of the evidence to
determine whether material facts or circumstances
have been overlooked or misinterpreted by the trial
court.30 In the past, this Court has not hesitated to
reverse a judgment of conviction, where there were
strong indications pointing to the possibility that the
rape charge was false.31
Generally, when a woman, more so if she is a minor,
says that she has been raped, she says in effect all
that is necessary to show that rape was committed.
And so long as her testimony meets the test of
credibility and unless the same is controverted by
46 | P a g e
competent physical and testimonial evidence, the
accused may be convicted on the basis thereof.32
After a judicious examination of the records of the
case, the Court finds that there is testimonial
evidence that contradicts the findings of the RTC and
CA on the basis of which no conviction beyond
reasonable doubt could arise. It is the unrebutted
testimony of a credible defense witness. The
testimony of Joy Agbuya (Joy) casts doubt as to the
possibility of rape having taken place as narrated by
complainant. In addition, the testimony of a
disinterested defense witness, Juanita Angeles
(Juanita) corroborated the alibi of appellant.
Before dwelling on the testimonies of Juanita and
Joy, the Court shall first scrutinize the testimonial
evidence presented by the prosecution and the
defense.
Aside from the testimony of complainant, the
prosecution presented the following witnesses: Dr.
James Sison, BBB, and CCC. The pertinent portions of
their testimonies may be summarized as follows:
Dr. James Sison testified that he conducted the
medical examination of complainant. His diagnosis
was that there was a significant laceration
completely healed at the 11:00 o'clock
position.33 However, Dr. Sison testified that his
findings were not conclusive, but were rather
suggestive that complainant was raped.
Furthermore, as to the question of paternity of the
child of complainant, Dr. Sison suggested doing a
DNA match.34
BBB testified the she brought AAA to her
grandmother, a hilot residing in XXX, Tarlac, to
consult her on the unusual palpitation on the mid-
portion of complainant's throat and the absence of
her monthly period.35 After examining complainant,
the hilot told BBB that her daughter was pregnant.
AAA later revealed that she was raped by
appellant.36 BBB further testified that she
accompanied AAA to the police headquarters in YYY,
Pangasinan to report the incident.37 Afterwards, the
police brought complainant to YYY District
Hospital38 where Dr. James Sison, Medical Officer III
of said hospital, conducted the examination on
complainant. On cross-examination, BBB testified
that the family of appellant offered her money to
settle the case.39
CCC, the father of AAA, was the lone rebuttal witness
of the prosecution. In order to rebut the allegation
made by appellant's family that the present case was
filed because appellant's family did a poor job in
preparing for the wedding of CCC's daughter DDD
and apellant's brother Carlito, CCC testified that on
the contrary, the wedding went smoothly.40 CCC
further claimed that the family of appellant knelt
before him crying and offered money to settle the
case.41 Moreover, CCC testified that appellant left his
house at 4:00 p.m. on January 5, 2000.
On the other hand, the defense presented four
witnesses, namely: Juanito Macaraeg (Macaraeg),
Albina Erguiza (Albina), Juanita and Joy.
Macaraeg, the caretaker of the mango orchard,
testified that he did not see appellant on any
occasion in the orchard.42 More specifically,
Macaraeg emphasized that he did not see appellant
on January 5, 2000.43 However, on cross-
examination, he testified that the house of appellant
is only a three-minute walk from the mango orchard
and probably a minute if one walks fast.44
Albina, the mother of appellant, testified that on
January 5, 2000, she was with appellant at the house
of CCC and BBB preparing for the wedding of CCC's
daughter DDD and appellant's brother Carlito. She
said that they left the house of CCC at around 5:00
p.m.45 Albina narrated that when they arrived home,
at around 5:02 or 5:03 p.m., she sent appellant to
fetch a hilot, as the wife of appellant was having
some labor pains.46 She said that appellant and
the hilot arrived at around 5:30 p.m.47 According to
Albina appellant never left their house.48
On the day of the wedding, Albina testified that she
had an altercation with BBB regarding the bills and
that they never resolved their quarrel.49 She spoke to
BBB and CCC because she learned that they were
falsely accusing appellant of raping AAA.50 After
talking to BBB and CCC, she and her husband
confronted appellant and asked if he had raped
complainant, which appellant denied.51 Albina
claimed that CCC and BBB were
demanding P1,000,000.00 and that they later
reduced it to P250,000.00.52 Albina said that she
offered P5,000.00 to BBB and CCC only to preserve
their relationship as in-laws and for peace.53
In sum, with the exception of the claim of AAA that
she was raped by appellant, other evidence
presented by the prosecution did not identify
appellant as the perpetrator of the crime.
Moreover, the testimonies of the witnesses for both
the prosecution and the defense conflict on certain
points, more notably the claim by BBB and CCC that
the family of appellant offered to settle the case.
This, however, was denied by Albina, who claimed
that it was BBB and CCC who
demanded P1,000,000.00.
The offer of compromise allegedly made by Albina is
critical to the case at bar in light of law and
jurisprudence that an offer of compromise in a
criminal case may be received in evidence as an
implied admission of guilt.54 In the case at bar, the
offer of compromise was first testified to by BBB on
cross-examination, to wit:
47 | P a g e
Q. Is it not a fact that there was an offer by you to
the mother of the accused that they pay you 1
million and you have reduced it
to P250,000.00?cralawred
A. No, sir, it was they who were the ones offering for
settlement, but we never offer them any settlement,
sir.55
On rebuttal, CCC corroborated the testimony of BBB
that the family of appellant offered to settle the
case, to wit:
Q. And according to Larry Erguiza as well as his
witnesses they told the Honorable Court that you
and your wife are demanding from Larry Erguiza and
his parents the amount of one million pesos so that
you will not file this case against the accused, what
can you say about that?cralawred
A. There is no truth about that, sir.
Q. And what is the truth about it?cralawred
A. It was they who went to my house, they even
knelt before me crying and they were offering
money, sir.56
However, Albina, the mother of appellant, denied
the foregoing allegations, to wit:
Q. What happened when you went to the house of
BBB and CCC talking with them about their problem
of the alleged rape on AAA, their
daughter?cralawred
A. They were asking for a settlement price for one
million pesos but we have no money, sir.
Q. What did you do when they were asking one
million pesos from you?cralawred
A. We told them that we do not have that money
until they reduced the price to P250,000.00 but we
have no money because we are poor, sir.
Q. Were you around when BBB testified to the
witness stand?cralawred
A. I was here, sir.
Q. Did you hear what BBB said that you were the one
offering money?cralawred
A. Yes, sir, I was here and I heard that.
Q. What can you say to that allegation of
BBB?cralawred
A. That is not true, sir. She was saying that we were
the ones offering money for one million to them but

she was telling a lie, it was they who were asking for
one million pesos, sir.
Q. What is your proof that is was they who are
demanding the amount of one million and reduced
that to two hundred fifty thousand
(P250,000.00)?cralawred
A. We already left because we cannot afford to give
that much, sir.
Q. Aside from the fact that you do not have money,
was there any reason or what was your other reason
in going there?cralawred
A. Our reason in talking to them was that when Larry
said that he did not commit the alleged rape and so
we went there to talk to them so that we could
preserve our relationship as in-laws even if it is for
the sake of peace we could try our best to cope up
even P5,000.00 just for the sake of peace because
our intention in going to their house was to extract
the truth, sir.57
On cross-examination, appellant gave the following
statements:
Q. Before the filing of this case with this Honorable
Court, your parents and you were pleading to the
48 | P a g e
parents of AAA not to continue anymore the case, is
it not?cralawred
A. Yes, sir, so that the case will not be filed and our
relationship will not be destroyed, sir.
Q. In fact you asked your parents to do so, is it
not?cralawred
A. No, sir. They were the ones who went to the
house of AAA, sir.
Q. But the family of AAA did not agree to the
pleadings of your parents that the case be not filed
anymore, is it not?cralawred
A. They will agree if we will pay then 1 million, but
we do not have 1 million, sir.
Q. Did you offer them 1 million?cralawred
A. No, sir. They were the ones who told that to
us.58 (Emphasis Supplied)
The alleged offer of the parents of appellant to settle
the case cannot be used against appellant as
evidence of his guilt. Appellant testified that he did
not ask his parents to settle the case. Moreover,
appellant was not present when the offer to settle
was allegedly made.
An offer of compromise from an unauthorized
person cannot amount to an admission of the party
himself.59 Although the Court has held in some cases
that an attempt of the parents of the accused to
settle the case is an implied admission of guilt,60 we
believe that the better rule is that for a compromise
to amount to an implied admission of guilt, the
accused should have been present or at least
authorized the proposed compromise.61 Moreover, it
has been held that where the accused was not
present at the time the offer for monetary
consideration was made, such offer of compromise
would not save the day for the prosecution.62
In addition, the Court, in weighing the evidence
presented, may give less weight to the testimonies
of Albina, on the one hand, and BBB and CCC, on the
other, as they are related to the appellant and the
victim, respectively63 Their testimonies relating to
the offer of settlement simply contradict each other.
As a matter of fact, even the lower courts did not
consider the alleged offer of settlement in resolving
the case.
Thus, the Court now considers the testimonies of
Juanita and Joy.
Testimony of Juanita Angeles
Juanita, a hilot, testified that appellant fetched her
at around 5:10 in the afternoon of January 5,
2000.64 She asserted that they arrived at the house
of appellant at 5:30 p.m. She said that appellant's
wife gave birth at dawn at 3:00 a.m. of January 6,
2000.65 Juanita said that appellant was with her the
entire time and never left the house.66
Testimony of Joy Agbuya
For a better perspective on the testimony of Joy, it is
necessary to repeat the testimony of AAA. AAA
testified that on January 5, 2000, she was
accompanied by 12-year-old Joy and the latter's
brother Ricky Agbuya (Ricky) to the mango orchard
at the back of the elementary school to pick fallen
mangoes. Further, complainant claims that she was
left behind by Joy and Ricky when her shorts got
hooked to the fence and that while she was
unhooking her pants from the fence, appellant
grabbed her and raped her.67
This was however contradicted by Joy, to wit:
Q. How many times did you go to the mango orchard
of Juanito Macaraeg?cralawred
Q. According to AAA in her sworn statement she xxx
stated that in [sic] January 5, 2000 you were with
Q. Is AAA your bestfriend?cralawred
your brother Ricky and AAA in going to the mango
orchard, what can you say about that?cralawred
A. Yes, sir.
A. What she is saying is not true. I was not with my
Q. Since you said that AAA is your bestfriend was
brother, sir. I did not tug him along with me.
there an occasion wherein she told you that she was
raped?cralawred
Q. It is also said by AAA that you left her behind in

A. Three (3) times, sir.
Q. When you usually go to the mango orchard of
Juanito Macaraeg, where did you met [sic] with
AAA?cralawred
A. In their house, I dropped by her house, sir.
Q. Was there an occasion wherein you brought your
brother Ricky when you went with AAA to the
the mango orchard when her pants was hooked,
A. None, sir.69 (Emphasis and underscoring
what can you say about that?cralawred
supplied)cralawlibrary
A. No, sir I waited for her. On cross-examination, Prosecutor Ely Reintar elicited
the following statements from Joy:
Q. Are we made to understand Madam Witness, that
Q. In the year 2000, when was the last time that you
there was no instance or never that happened that
talked to AAA?cralawred
you left her in the mango orchard alone?
A. April, sir.
A. No, sir, I waited for her and both of us went home

mango orchard of Juanito Macaraeg?cralawred
A. No, sir.
Q. Are we made to understand that Ricky, your
brother did not go even once to the mango orchard
of Maning Macaraeg?cralawred
A. Yes, sir.
together, sir.
Q. Going back to the occasion wherein you were
with AAA, who were with you in going back home?
A. Just the two (2) of us, sir.
Q. In your way home, where did you part or separate
with each other?cralawred
A. In front of the store of auntie Beth, sir. 68
Q. After April, you did not talk to AAA
anymore?cralawred
A. No more, sir.
Q. Your friendship was severed?cralawred
A. Yes, sir.
Q. Will you please tell the Honorable Court why your
friendship became severed?cralawred

49 | P a g e
A. Because she quarreled with me, sir.
Q. And because you quarreled, that is the reason
why you are now testifying against her?cralawred
A. Yes, sir.70
On re-direct examination, Joy clarified, thus:
Q. Madam Witness, you said that you have a quarrel
with the private complainant, AAA, will you please
tell this Honorable Court what is the reason or cause
of your quarrel with AAA?cralawred
A. Because they wanted me to say another
statement that I left AAA behind, sir.71 (Emphasis
supplied)cralawlibrary
On re-cross examination, Joy gave the following
answers to the questions of Prosecutor Reintar:
Q. You said that the reason for your quarrel is that
they wanted you to change your statement, that you
left behind AAA, who are those they, that you are
referring to?cralawred
INTERPRETER
No answer.
Witness
50 | P a g e
I, sir.
PROS. REINTAR
Q. Who told you to change your statement that you
left AAA behind?cralawred
A. Because they are saying that I will change my
statement that I left AAA but I did not sir.
Q. Who are these who are telling that?cralawred
A. They, sir.
Q. Will you please mention them?cralawred
A. BBB, only her, sir.72
The testimony of 12-year-old Joy makes it impossible
for the appellant to have raped AAA the way
complainant narrated it, to wit:
Q. You try to understand clearly the question,
Madam Witness, and may I repeat that, at the time
of the rape when according to you, you were the one
raped, where were Joy and Ricky Agbuya?cralawred
A. They left ahead of me because my short pants was
hooked at the fence so I was left behind, sir.
Q. Were you able to remove the pants of yours at
the fence?cralawred
A. I was removing it sir, when he suddenly grabbed
me.
Q. And who is this person you are referring to as the
one who grabbed you?cralawred
A. Larry Erguiza, sir.73
Put simply, complainant could not have been raped
because Joy waited for complainant when the
latter's shorts got hooked to the fence and
thereafter both went home together. The Court finds
no cogent reason for Joy to lie and say that she had
waited for complainant and that they both went
home together. She had nothing to gain for lying
under oath. Moreover, the records are bereft of any
showing or claim that Joy was related to or was a
close friend of appellant or his family. On the
contrary, Joy considers herself the "best-friend" and
playmate of complainant.74
When Prosecutor Reintar questioned her as to her
understanding of the oath she took, Joy answered,
"That I will swear to God, sir. x x x The truth,
sir."75 Furthermore, Joy did not succumb to pressure
even as she was being conscientiously examined by
Prosecutor Reintar. Joy boldly testified that BBB, the
mother of complainant, was forcing her to change
her statement.
The testimony of Joy clearly lays down the following
facts which are damaging to the case of the
prosecution: first, that Joy did not leave behind AAA
when the latter's shorts got hooked to the fence;
and secondly, that Joy and AAA left the orchard,
went home together and separated at their Aunt
Beth's house, indicating that no untoward incident,
much less rape, was committed by appellant at the
time and place that complainant had testified on.
Necessarily, either Joy or AAA lied under oath. It was
thus critical for the prosecution to show that Joy
gave false statements.
Unfortunately for AAA, the prosecution miserably
failed to rebut Joy's testimony. Neither complainant
nor Ricky, BBB or any other witness was called to the
witness stand to refute Joy's testimony. True, it is up
to the prosecution to determine who to present as
witnesses.76 However, considering that the
testimony of Joy critically damaged the case of the
prosecution, it behooved the prosecution to present
evidence to rebut the defense evidence. Witnesses
such as Ricky, AAA and BBB should have been
presented by the prosecution to demolish Joy's
testimony. The testimony of Ricky is particularly
significant, especially since AAA claimed that he was
with her and his sister Joy at the mango orchard on
the day of the alleged rape incident. The failure on
the part of the prosecution to present Ricky or AAA
bolsters the defense evidence, that no rape
happened on the date and time claimed by AAA.
The prosecution presented CCC, the father of
complainant, as it's lone rebuttal
witness.77 However, the testimony of CCC covered
facts and issues not related to the testimony of Joy.
The testimony of CCC merely rebutted the allegation
made by appellant's family that the present case was
filed because appellant's family did a poor job of
preparing for the wedding of CCC's daughter DDD
and apellant's brother Carlito. To this, CCC testified
that on the contrary, the wedding went
smoothly.78 Furthermore, CCC claimed that the
family of appellant knelt before him crying and
offered money to settle the case.79 In addition, CCC
testified that appellant left his house at 4:00 p.m. on
January 5, 2000. Thus, the testimony of CCC did not
in any way rebut the testimony of Joy.
Further, Joy testified that during the three times she
went with AAA to the mango orchard, the time was
51 | P a g e
1:00 p.m.80 However, AAA testified that she went to
the mango orchard with Joy at 4:00 p.m.81 The
variance in the testimonies of Joy and AAA as to the
time they went to the mango orchard on the day of
the alleged rape incident may be disregarded as they
are de minimis in nature and do not relate to the
commission of the crime. There is a common point
uniting the testimonies of both Joy and AAA; that is,
that both referred to the day when AAA's short got
hooked to the fence.
Moreover, assuming arguendo that the variance
between the testimonies of AAA and Joy as to the
time they were together at the mango orchard is
an indicia that AAA may have been raped by
appellant on a different day, not on January 5, 2000,
to still impute to appellant the crime of rape is not
plausible.
The Court is not unmindful of the rule that the exact
date of the commission of the crime of rape is
extraneous to and is not an element of the offense,
such that any inconsistency or discrepancy as to the
same is irrelevant and is not to be taken as a ground
for acquittal.82 Such, however, finds no application to
the case at bar. AAA and Joy may differ in their
testimonies as to the time they were at the mango
orchard, but there could be no mistake as to the
actual day when AAA was supposed to have been
raped; it was the day when AAA's shorts got hooked
to the fence at the mango orchard.
The RTC and CA unwittingly brushed aside the
testimonies of Juanita and Joy and gave full credence
to the testimony of AAA. As a matter of fact, their
probative weight were not considered or evaluated
in the text of the lower courts' decision.
As mentioned earlier, the prosecution could have
rebutted the testimony of Joy, but for some reason
or oversight, it chose not to do so.
Consequently, in view of the unrebutted testimony
of Joy, appellant's defense of alibi and denial
assumes considerable weight. It is at this point that
the issue as to the time that the rape was committed
plays a significant factor in determining the guilt or
innocence of appellant. This Court must therefore
address this issue for a thorough evaluation of the
case.
The Court takes note that Macaraeg, the caretaker of
the orchard, testified that appellant's house was only
a minute away from the orchard if one would run.
As earlier mentioned, CCC testified that appellant
left CCC's house at 4:00 p.m. on January 5, 2000,
contrary to the testimony of Albina that she and
appellant left at 5:00 p.m. AAA declared that the
alleged rape took place after 5:00 p.m.
Q. So at 4:00 o'clock you were at the house and you
left and proceeded at the back of the school to pick
mangoes?cralawred
A. Yes, sir.
Q. That was already around 5:00 o'clock?cralawred
A. Yes, sir. I asked my companion Joy.
Q. What did you ask of her?cralawred
A. She was wearing a wristwatch and I asked Joy
what time is it and when I looked at her wristwatch,
it was already 5:00 o'clock, sir.83 (Emphasis Supplied)
Moreover, on cross-examination, AAA gave the
following statements, to wit:
Q. So it is almost 5:00 p.m. When you went to the
mango orchard with Joy Agbuya and Ricky
Agbuya?cralawred
A. What I only know was that, it was already about
5:00 o'clock then, sir.
Q. How many minutes did you consume in getting
mangoes?cralawred
A. When we went there, we were not able to get
some mango and when I asked sir what was the time
then and when I looked at the wristwatch, it was
already 5:00 o'clock, sir.84 (Emphasis Supplied)
The testimony of Joy makes it impossible for AAA to
have been raped at 4:00 p.m. or 5:00 p.m. or any
time thereafter since it was not rebutted that Joy
never left complainant at the mango orchard even
when AAA's shorts got hooked to the fence, and
both went home together without any other
untoward incident.
This Court is not unmindful of the doctrine that for
alibi to succeed as a defense, appellant must
establish by clear and convincing evidence (a) his
presence at another place at the time of the
perpetration of the offense and (b) the physical
impossibility of his presence at the scene of the
crime.85
In the case at bar, although the orchard is just a
minute away from the house of appellant, in view of
52 | P a g e
the testimony of the hilot Juanita that appellant was
with her from 5:10 p.m. and never left his house
from that time until his wife gave birth at 3:00 a.m.;
and the testimony of Joy that she never left AAA in
the orchard and that they both went home together,
the defense of alibi assumes significance or strength
when it is amply corroborated by a credible
witness.86 Thus, the Court finds that appellant's alibi
is substantiated by clear and convincing evidence.
What needs to be stressed is that a conviction in a
criminal case must be supported by proof beyond
reasonable doubt - - moral certainty that the
accused is guilty.87 The conflicting testimonies of Joy
and complainant, and the testimony of Juanita that
corroborated appellant's alibi preclude the Court
from convicting appellant of rape with moral
certainty.
Faced with two conflicting versions, the Court is
guided by the equipoise rule.88 Thus, where the
inculpatory facts and circumstances are capable of
two or more explanations, one of which is consistent
with the innocence of the accused and the other
consistent with his guilt, then the evidence does not
fulfill the test of moral certainty and is not sufficient
to support a conviction.89 The equipoise rule
provides that where the evidence in a criminal case
is evenly balanced, the constitutional presumption of
innocence tilts the scales in favor of the accused.90
It is the primordial duty of the prosecution to
present its side with clarity and persuasion, so that
conviction becomes the only logical and inevitable
conclusion.91 What is required of it is to justify the
conviction of the accused with moral
certainty.92 Upon the prosecution's failure to meet
this test, acquittal becomes the constitutional duty
of the Court, lest its mind be tortured with the
thought that it has imprisoned an innocent man for
the rest of his life.93
WHEREFORE, the Decision dated November 18, 2005
of the Court of Appeals in CA-G.R. CR H. C. No. 00763
is REVERSED and SET ASIDE. Larry Erguiza
is ACQUITTED and ordered
immediately RELEASED from custody, unless he is
being held for some other lawful cause.
The Director of the Bureau of Corrections
is ORDERED to implement this Decision forthwith
and to INFORM this Court, within five (5) days from
receipt hereof, of the date appellant was actually
released from confinement.
Costs de oficio.
SO ORDERED.
SECOND DIVISION
[G.R. NO. 175940 : February 6, 2008]
[Formerly G.R. NOS. 155361-62]
THE PEOPLE OF THE PHILIPPINES, Appellee, v. ANSON
ONG a.k.a. ALLAN CO, Appellant.
DECISION
TINGA, J.:
In dubio pro reo.1
Subject of this automatic review is the Decision2 of
the Court of Appeals dated 7 August 2006 which
affirmed the Judgment3 of the Regional Trial Court of
Pasay City, Branch 110, convicting appellant Anson
Ong alias Allan Co of illegal sale and possession
of shabu.
Two separate Informations were filed before the trial
court. In Criminal Case No. 97-0017, appellant was
accused of illegal sale of shabu, thus:
That on or about the 21st day of [April] 1997, in
Pasay City, Metro Manila, Philippines, and within the
jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating
together and mutually helping one another without
authority of law, did then and there willfully,
unlawfully and feloniously sell and
deliver 989.05 grams of Methamphetamine
Hydrochloride (shabu), a regulated drug.
Contrary to law.4
In Criminal Case No. 97-0018, appellant was charged
with illegal possession of shabu allegedly committed
as follows:
That on or about the 21st day of April 1997, Pasay
City, Metro Manila, Philippines, and within the
jurisdiction of this Honorable Court, the above-
named accused, Anson Ong alias "Allan Co," did then
and there willfully, unlawfully and feloniously have in
his possession, custody and control 988.85 grams of
Methamphetamine Hydrochloride (shabu), a
regulated drug without the corresponding license.
Contrary to law.5
Upon arraignment, appellant pleaded not guilty to
both charges. A joint trial of the two cases ensued.
The operative facts are narrated by prosecution
witnesses who comprised members of the buy-bust
team. Sometime in April 1997, Col. Zoila Lachica
(Lachica) was tipped off by a female walk-in
informant that a group, led by a Chinese national,
was engaged in drug trafficking in Pasay City. Upon
53 | P a g e
verification of said information, a meeting took place
between Lachica and the informant where the latter
was able to arrange a drug deal with appellant in the
vicinity of Heritage Hotel.6 Lachica then instructed
Investigator Oscar Coballes (Coballes) to prepare the
boodle money consisting of four P500.00 bills and
five P100.00 bills placed on top of nine (9) bundles of
paper cut to the size of the peso bills. These bills
were then submitted to the PNP Crime Laboratory
for ultraviolet powder dusting.7 Before lunchtime on
21 April 1997, Lachica organized a team and planned
the conduct of a buy-bust operation. The twelve-
man team was composed of Lachica, Coballes, Police
Supt. Edgar Danao (Danao), P/Inspector Rolando
Montes (Montes), PO3 Manuelito Lagradilla
(Lagradilla), SPO2 Wilfredo Saballa (Saballa), SPO3
Pardo, SPO2 Pedro Tan, the confidential informant,
and other civilian agents. Danao acted as the team
leader with Montes assisting him. Saballa was
designated as the poseur-buyer and the other
members of the team were tasked to secure the
area.8
After lunch, the group proceeded to the parking lot
of San Juan de Dios Hospital onboard four (4)
vehicles, including a motorcycle driven by Lagradilla.
At about 3:00 p.m., they reached the parking lot
where Danao conducted the final briefing and then
deployed his men strategically between the premises
of Heritage Hotel and Copacabana Hotel.9 At 4:00
pm, Saballa and the informant went to Heritage
Hotel while the other team members strategically
posted themselves within the hotel premises.10
Fifteen minutes later, Saballa and the informant left
Heritage Hotel and proceeded to the adjacent
Copacabana Hotel where he waited at the main
entrance of the lobby. Suddenly, a black Honda Civic
car with Plate No. ULN 766 arrived and parked along
the driveway near the front entrance.11 The
informant approached the car while Saballa was left
behind holding the black bag containing the boodle
money.12 Upon signal by the informant, Saballa came
up to the right front door. Saballa showed the
contents of the bag to the driver of the car, who was
later identified as appellant. He then handed the bag
to him.13 Instantaneously, a man approached the car,
took the boodle money from appellant and ran
away.14 Coballes ran towards the driver's side and
poked his gun at appellant. Appellant tried moving
the car but Coballes stood in front and blocked it.
Appellant was then ordered to open the door.
Coballes saw a red bag containing white crystalline
substance inside the car and took it into
custody.15 Meanwhile, Lagradilla chased the man
who took the boodle money around the parking area
of Copacabana Hotel.16 While on the run, Lagradilla
saw the man throw the money inside a passing white
Toyota car driven by a certain Chito Cua (Cua).
Instead of pursuing the man, Lagradilla blocked the
white Toyota car and arrested Cua.17
Appellant presented an entirely different account of
the incident on 21 April 1997. Appellant, who
apparently does not know English and Tagalog was
assisted by an interpreter, narrated that he is a
resident of Chuan Chow, People's Republic of China.
Upon the suggestion of Lau Chan, appellant decided
to go to the Philippines to start a clothing business.
In the morning of 21 April 1997, appellant told Lau
Chan that he wanted to go to Baclaran. Lau Chan,
who himself was planning to go to the casino at
Heritage Hotel, asked appellant to meet up with him.
Appellant tried calling Lau Chan on this cellphone
but the latter was not answering. This prompted
appellant to go to Heritage Hotel to look for Lau
Chan. At around 4:00 p.m., appellant was walking
along Epifanio Delos Santos Avenue towards the
direction of the Light Rail Transit when he noticed a
commotion in front of the hotel and saw some men
carrying guns. Fearing for his safety, appellant
decided to walk faster but someone stopped him
and poked a gun at him. He was made to board a
white car in which he met Cua for the first time. They
were then brought to Camp Crame for questioning.
It was Cua who translated the questions propounded
by the police officers to appellant. He was informed
by Cua that he was arrested for failure to show any
document regarding his stay in the country. During
arraignment however, he learned that he was being
charged of possession and sale of shabu.
Finding the testimonies of the prosecution witnesses
credible as against the bare and self-serving
assertions of appellant, the trial court rendered a
decision finding appellant guilty as charged. The
dispositive portion of the 11 February 2002 Decision
reads:
WHEREFORE, in view of the foregoing, the Court
finds the herein accused ONG POK PIW a.k.a. ANSON
ONG a.k.a. ALLAN CO, GUILTY beyond reasonable
doubt of two (2) offenses for Violations of Section 15
and 16, Article III of Republic Act [No.] 6425, as
amended in relation to Section 20 and 21 of Article
IV of said law and hereby imposes on him the
penalty of two (2) RECLUSION PERPETUAS in these
cases and a fine in the total amount of P200,000.00
in these cases without subsidiary imprisonment in
case of insolvency.
The Methamphetamine Hydrochloride or "shabu" in
Criminal Case No. 97-0017 for Violation of Section 15
of Republic Act [No.] 6425, as amended, weighing
989.05 grams and the Methamphetamine
Hydrochloride or "shabu" in Criminal Case No. 97-
0018 weighing 988.85 grams are hereby declared
confiscated in favor of the government. The PNP
Crime Laboratory at Camp Crame, Quezon City or its
duly authorized representative which has custody
and possession of said regulated drugs are hereby
directed to immediately cause the delivery and
transportation thereof to the Dangerous Drugs
54 | P a g e
Board for proper disposition in accordance with law.
The Chief of said office is further directed to inform
this Court within 20 days from receipt hereof of the
action taken thereon.
The period during which the herein accused was
under detention during the pendency of these cases
shall be credited to him in full provided he agreed to
abide by strictly with the rules and regulations of the
City Jail.
SO ORDERED.18
An appeal was directed to this Court. However, in a
Resolution19 dated 20 February 2006, the case was
transferred to the Court of Appeals in light of our
pronouncement in People v. Mateo.20
On 7 August 2006, the Court of Appeals rendered
the assailed decision affirming with modification the
trial court's ruling, to wit:
WHEREFORE, premises considered, the judgment
rendered by the Regional Trial Court, Branch 110,
Pasay City, in Criminal Case Nos. 97-0017 and 97-
0018 is hereby AFFIRMED with modification. As
modified, the fine is increased to Five Hundred
Thousand Pesos (P500,000.00) for each offense or a
total of ONE MILLION PESOS (P1,000,000.00).
SO ORDERED.21
In finding appellant guilty, the appellate court
strongly relied on the testimonies of the police
officers and dismissed the imputed inconsistencies in
their statements as being minor.
At the core of this appeal is the issue of whether the
prosecution was able to prove beyond reasonable
doubt the guilt of appellant.
Appellant primarily questions the credibility of the
prosecution witnesses. He claims that their
testimonies were tainted with inconsistencies which
even the trial court had noted in its decision.
Appellant relies on said observation to support his
acquittal based on reasonable doubt. He asserts that
his conviction must rest on the strength of the
prosecution's own evidence and not on the
weakness of the evidence for the defense.
The Office of the Solicitor General (OSG), in its
Brief,22 insists that all the elements of sale and illegal
possession of shabu were duly established by the
prosecution. It avers that appellant was caught
in flagrante delicto selling shabu to the poseur-buyer
in a legitimate buy-bust operation.23 Moreover,
when the poseur-buyer and Coballes opened the
door of appellant's car, they saw a red bag on the
floor containing white crystalline substances which
were later tested and found positive for the
presence of shabu.24 The OSG contends that the
opinion of the trial court with respect to the
actuations of the prosecution witnesses on the stand
did not affect its judgment of conviction because the
trial court lent full faith and credence to the
collective testimonies of the police officers who are
presumed to have performed their duties in
accordance with law.25
For the prosecution of illegal sale of drugs to
prosper, the following elements must be proved: (1)
the identity of the buyer and seller, the object, and
the consideration; and (2) the delivery of the thing
sold and the payment therefor. What is material is
the proof that the transaction actually took place,
coupled with the presentation before the court of
the corpus delicti.26
The prosecution seeks to establish the presence of
these elements through the testimonies of the police
officers involved in the buy-bust operation. The
innocence or culpability of appellant thus hinges on
the issue of credibility. It is an oft-repeated rule that
findings of facts of the trial court, as affirmed by the
appellate court, are conclusive on this Court, absent
any evidence that both courts ignored,
misconstrued, or misinterpreted cogent facts and
circumstances of substance which, if considered,
would warrant a modification or reversal of the
outcome of the case.27 This case falls under the
exception.
In determining the credibility of prosecution
witnesses regarding the conduct of buy-bust
operation, the "objective test," as laid down
in People v. Doria,28 is utilized. It has been held that
it is the duty of the prosecution to present a
complete picture detailing the buy-bust operation
from the initial contact between the poseur-buyer
and the pusher, the offer to purchase, the promise
or payment of the consideration, until the
consummation of the sale by the delivery of the
illegal subject of sale. The manner by which the
initial contact was made, the offer to purchase the
drug, the payment of the buy-bust money, and the
delivery of the illegal drug must be the subject of
strict scrutiny by courts to insure that law-abiding
citizens are not unlawfully induced to commit an
offense.29
30 31
In People v. Ong and Cabugao v. People where
the "objective test" was also applied, chasmic
deficiencies that similarly marked the prosecution
evidence led to the absolution of the accused.
In Ong, also involving Chinese nationals as accused,
the prosecution evidence on the buy-bust operation
was outrageously complete as the confidential
informant who had sole knowledge of how the
alleged illegal sale of shabu was initiated and how it
was carried out was not presented as a
witness.32 In Cabugao, the prosecution witnesses
could not agree on the reason that prompted them
55 | P a g e
to conduct the buy-bust operation. While the first
witness testified that the tip came from their
informants, the second witness maintained that no
informer was involved in the operation.33
In the case at bar, the evidence for the prosecution
failed to prove all the material details of the buy-
bust operation. The details of the meeting with the
informant, the alleged source of the information on
the sale of illegal drugs, appear hazy. Lachica
declared that he met the informant for the first time
a week before the buy-bust operation:
Q Do you recall Mr. Witness when that walk-in
informant visited your office?cralawred
A I cannot recall the exact date but as far as I can
remember she visited before the operation was
conducted.
FISCAL
And you are referring to the operation on April 21,
1997?
A Yes, sir.
COURT
How many days prior to the date of operation did
that alleged walk-in informant go to your office?
A I cannot remember the exact date but I think
more or less one week before. More or less 1
week.34
But Coballes testified that the informant reports to
their office every now and then, thus:
COURT
A moment counsel, this informant, was he an
employee of your office or an informant working for
your office?
WITNESS
A He is an informant working from our office.
COURT
When you say informant working in your office, is he
receiving salary from your office as a regular
employee or he reports or he goes to your office
every now and then?
A He reports in our office every now and then.35
Coballes related that the informant was present
during the briefing held before lunch on 21 April
1997:
Q Now when Col. Lachica called you, aside from
you and some members of your office, are there any
other persons present?cralawred
A Yes sir, our informant.
Q Now how do you know that this person is an
informant?cralawred
A He was introduced to us by our chief, Col.
Lachic[a], sir.36
while Lagradilla denied seeing the informant at the
meeting:
COURT
In that briefing, was there a mention of an informant
or an asset?
WITNESS
A Col. Lachica mentioned of a certain asset.
COURT
Was that asset present during the briefing at the
headquarters?
A Asset was not present[,] sir.37
Despite being the designated poseur-buyer, Saballa
testified that he had no knowledge of how
much shabu he was going to buy.
Q How much shabu are you going to
purchase?cralawred
A One (1) kilo, Your Honor.
Q How much is one kilo worth?cralawred
A I am not aware of the price, Your Honor.
Q How much is one kilo worth?cralawred
A I do not know the price they have agreed, Your
Honor.
Q You are supposed to be the poseur buyer and
you do not know how much shabu you are going to
buy?cralawred
A I do not know, Your Honor.38
The actual exchange of the bags
containing shabu and the boodle money was not
clearly established. The presentation of shabu before
the Court could have shed light on the identity of the
56 | P a g e
object of the sale. Unfortunately, the presentation of
the shabu purportedly confiscated from appellant
was dispensed with at the instance of the defense
counsel.39
Coballes testified that he saw Saballa hand the
boodle money to appellant in exchange for a
wrapped object presumed to be shabu.40 On the
contrary, the ultraviolet dusting of the boodle
money was conducted but appellant was found
negative for fluorescent powder.41
As between the prosecution witnesses' account that
it was appellant to whom the boodle money was
passed and who was driving the black Honda Civic
car during the alleged buy-bust operation and
appellant's denial that he owned and drove said car,
we are inclined to believe appellant. The prosecution
failed to present the purported driver's license
confiscated from appellant. In fact, they reasoned
that it was missing.42 On the other hand, the defense
presented a certification from the Land
Transportation Office (LTO) and the Philippine Motor
Association stating that appellant's name does not
exist in the LTO's file of licensed drivers and has not
been issued a Philippine International Driving
Permit43 by the Automobile Association of the
Philippines.
Further rendering the prosecution's version dubious
is the escape of another alleged cohort of appellant.
Lagradilla, who was specifically tasked to block or
run after any escaping suspect, failed in this regard.
During the alleged buy-bust operation, he was
positioned in such a manner that a firewall was
blocking his vantage point.44 Instead of using his
motorcycle, he chased the suspect on
foot.45 Moreover, it is quite difficult to imagine how
one suspect can easily escape notwithstanding the
presence of at least twelve (12) police operatives in
the vicinity.
The witnesses' hesitation in answering questions on
the stand, as aptly observed by the trial court,46 only
compounded their lack of credibility.
Lachica, who was the Chief of the Criminal
Investigation Division of the NCR-CIDG, cannot seem
to recall the vital parts of the buy-bust operation
such as the composition of the buy-bust team, the
strategic location of the team members, the
presence of the name of the other accused,
Cua,47 and how much of the boodle money was
recovered.48
Moreover, he denied any participation in the
conduct of the buy-bust operation:
Q You said you supervised the planning of this
operation. Did you not say that?cralawred
A No Your Honor[,] what I said is that I gave
instruction to Col. Danao and we planned out the
operation and our procedure, the [over-all] team
leader will be the one to provide or make some
arrangement[s] pertaining to the police operation.49
However, Coballes insisted that Lachica was present
all throughout the operation, thus:
ATTY. ZULUETA
And so, in your testimony February 13, 2000[,] you
narrated to the Court that Col. Lachica led this
operation?
A Yes, sir.
Q He was with you on the parking lot to brief you
on your operation?cralawred
A Yes.
Q And he was with you all throughout the
operation?cralawred
A He was at the Heritage Hotel. Yes.
Q Mr. Witness[,] you as police officer[,] do you
know the penalty for perjury?cralawred
A I know that perjury is punishable but I don't
know the penalty.
Q Did you know that Col. Lachica appeared before
this Court and testified in this Hon. Court on July 29,
1999 and he testified that he did not conduct the
actual operation but it was Col. Danao?cralawred
A He was with us and Col. Danao at the Heritage
Hotel at the time.
Q Will you still maintain that, who is lying now,
Col. Lachica or you?cralawred
A Col. Lachica and the rest stayed at the Heritage
Hotel considering that the buy-bust operation was at
the Heritage Hotel.
Q And yet, Col. Lachica said that as lone Chief of
the Criminal Investigation Division he only gave
instruction to Col. Danao. The question is[:] do you
still maintain despite that [sic] testimony that Col.
Lachica was present during the operation?cralawred
A I do.50
Lachica denied having heard of the name of
appellant until he was arrested:
Q Will you tell the Court[,] do you know a certain
Anson Ong alias Allan Co?cralawred
57 | P a g e
A During April?cralawred
Q Before April?cralawred
A No, I don't remember that I encountered a name
Anson Ong but after the operation conducted by
Edgar Danao[,] I read the name of Anson Ong as the
arrested person.51
On the other hand, Montes alleged that the name of
appellant was mentioned during the briefing held in
the office:
FISCAL VIBANDOR
Q Mr. Witness, on April 21, 1997, you said that you
will conduct a buy-bust operation against
whom?cralawred
WITNESS
A Against Anson Ong.
FISCAL VIBANDOR
Q Now, when for the first time did you come to
know that you are going to conduct [buy-bust]
operation against Anson Ong?cralawred
A During our briefing at the office.
xxx
Q And who were present during that
briefing?cralawred
A All of us except for Lagradilla because he was
sent out to get his motor bike, it was only Col.
Danao, myself, Coballes, Saballa, Tan and [a] civilian
asset.52
According to Coballes, he was instructed by Lachica
to prepare the boodle money to be submitted to the
PNP Crime Laboratory for powder dusting:
Q You want to impress us Mr. Witness, that a
week or before the day that you first met the
informant you were instructed by Colonel Lachica to
prepare buy-bust money?cralawred
WITNESS
A Yes, sir.53
Lachica's million-peso estimate of the drug deal is
certainly higher than the P250,000.00 amount stated
by Coballes. Ironically, Lachica cannot recall the
exact amount or denomination of the boodle money
he himself had provided for the operation:
Q According to you[,] there will be a drug deal. Do
you know how much shabu is involved in this drug
deal as arranged by your lady informant?cralawred
A I cannot recall the exact amount or quantity but
the deal is more than one million. x x x54
Q Who provided the buy bust money for this buy-
bust operation?cralawred
A I was the one who provided the buy-bust
money, the boodle money.
FISCAL
Q How much money did you provide?cralawred
A I cannot remember the exact amount because
the money used in that operation is boodle money.
Q And to whom did you give this money that will
be used in this [buy-bust] operation?cralawred
A I think Agent Coballes.
Q Do you recall in what denomination were these
[buy-bust] money given?cralawred
A I cannot remember.55
While the presentation of the boodle money, as a
general rule, is not indispensable in the prosecution
of a drug case, the material inconsistencies in the
testimonies of the prosecution witnesses and the
non-presentation of the buy-bust money raise
reasonable doubts on the occurrence of a buy-bust
operation.56 It is indeed suspicious that vital pieces
of evidence, such as the boodle money and the
driver's license were lost while in the custody of
Coballes who unfortunately passed away during trial.
Certainly, the failure to present vital pieces of these
evidence cast doubt on the veracity of the buy-bust
operation.
Another baffling point is the dismissal of the criminal
case against Cua, the alleged accomplice of
appellant. The prosecution witnesses testified that
the boodle money was found in his possession. This
fact was confirmed by the presence of fluorescent
powder on Cua's hands.
The Constitution mandates that an accused shall be
presumed innocent until the contrary is proven
beyond reasonable doubt. While appellant's defense
engenders suspicion that he probably perpetrated
the crime charged, it is not sufficient for a conviction
that the evidence establishe a strong suspicion or
probability of guilt. It is the burden of the
prosecution to overcome the presumption of
innocence by presenting the quantum of evidence
required.
58 | P a g e
In the case at bar, the basis of acquittal is reasonable
doubt, the evidence for the prosecution not being
sufficient to sustain and prove the guilt of appellants
with moral certainty. By reasonable doubt is not
meant that which of possibility may arise but it is
that doubt engendered by an investigation of the
whole proof and an inability, after such an
investigation, to let the mind rest easy upon the
certainty of guilt. An acquittal based on reasonable
doubt will prosper even though the appellants'
innocence may be doubted, for a criminal conviction
rests on the strength of the evidence of the
prosecution and not on the weakness of the
evidence of the defense.57 Suffice it to say, a
slightest doubt should be resolved in favor of the
accused.58
With the failure of the prosecution to present a
complete picture of the buy-bust operation, as
highlighted by the disharmony and incoherence in
the testimonies of its witnesses, acquittal becomes
ineluctable.
WHEREFORE, the Decision of the Court of Appeals in
CA-G.R. CR-H.C. No. 02256 is REVERSED and SET
ASIDE. Anson Ong a.k.a. "Allan Co" is ACQUITTED of
the crime charged against him on the ground of
reasonable doubt. His immediate release from
prison is ordered unless he is being held for some
other valid or lawful cause.
The Director of the Bureau of Corrections
is ORDERED to implement this Decision forthwith
and to INFORM this Court, within five (5) days from
receipt hereof, of the date appellant was actually
released from confinement. Costs de oficio.
SO ORDERED.
Quisumbing, J., Chairperson, , Carpio, Carpio-
Morales, Velasco, Jr., JJ., concur.
Endnotes:
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 198314 September 24, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
RICHARD GUINTO Y SAN ANDRES, Accused-
Appellant.
DECISION
PEREZ, J.:
This is an appeal filed by herein accused Richard
Guinto y San Andres (Guinto) from the Decision1 of
the Court of Appeals (CA) dated 31 January 2011,
affirming the decision of conviction rendered by the
Regional Trial Court (RTC) of Pasig City for violation
of Section 5, Article II of R.A. No. 9165.2
The Facts
The prosecution presented a buy-bust case.
As narrated by Police Officer 1 Melvin Jesus S.
Mendoza (PO1 Mendoza), the operation was
conducted on 20 January 2004 at around 1:00
o’clock in the morning by the members of Anti-Illegal
Drugs Special Task Force (AIDSTF), Pasig City Police
Station. It was prompted by an information given by
a female caller received by AIDSTF’s Team Supervisor
Senior Police Officer 3 Leneal Matias (SPO3 Matias),
who in turn, coordinated with Police Inspector
Melbert Esguerra (P/Insp. Esguerra), the head of
AIDSTF. According to the female caller, a certain
"Chard" was selling shabu in a place located at 137
MC Guinto, Barangay Pinagbuhatan, Pasig City.
Based on the information, P/Insp. Esguerra
instructed the team to verify the call from their
civilian informant residing also in Barangay
Pinagbuhatan. Upon positive verification, P/Insp.
Esguerra formed a buybust team composed of SPO3
Matias, SPO2 Braulio Basco (SPO2 Basco), PO1
Michael Familara (PO1 Familara), PO1 Alan Mapula,
and PO1 Porferio Bansuelo (PO1 Bansuelo) and
designated PO1 Mendoza to act as the poseur-buyer.
In turn, SPO3 Matias prepared the pre-operation
report and coordinated with the Philippine Drug
Enforcement Agency (PDEA) on the buy-bust
operation. PO1 Mendoza, as the poseur-buyer, was
given two (2) pieces of marked ₱100.00 bills as buy-
bust money by P/Insp. Esguerra.3
After the briefing, the team including the informant
proceeded to the target area at around eleven
o’clock in the evening of 19 April 2004. Upon arrival,
PO1 Mendoza and the informant positioned
themselves outside the house of this certain "Chard"
(later identified as the accused Richard S.A. Guinto)
and waited for him to step out. Meanwhile, the rest
of the team stood nearby and waited for PO1
Mendoza’s pre-arranged signal of raising of hand to
indicate that the sale transaction was already
consummated. After two hours, Guinto finally went
out of the house. The informant approached Chard
and introduced PO1 Mendoza as a person in need of
illegal drugs worth ₱200.00. PO1 Mendoza then gave
buy-bust money to Guinto as payment. Guinto, in
turn, drew two (2) plastic sachets containing shabu
and gave them to PO1 Mendoza. Guinto then put the
money on his left pocket. To indicate consummation
of illegal sale, PO1 Mendoza made the prearranged
signal to the other members of the team and
introduced himself to Guinto as a police officer. The
other members of the team responded and arrested
59 | P a g e
Guinto. Immediately, PO1 Mendoza confiscated the
marked money from the left pocket of Guinto and
marked the plastic sachet containing shabu with the
markings "RSG/MJM."4
Afterwards, the buy-bust team brought Guinto to
Pasig City Police Station and turned him over to
SPO2 Basco for investigation. PO1 Mendoza turned
over the confiscated drugs toSPO2 Basco.
Consequently, SPO2 Basco asked for a laboratory
examination request to determine the chemical
composition of the confiscated drugs.5 Thereafter,
confiscated drug was brought by PO1 Noble to the
Philippine National Police (PNP) Crime Laboratory for
examination.6
The prosecution also presented PO1 Familara as its
second witness to corroborate the statements given
by PO1 Mendoza. However, several inconsistencies
were apparent in his testimony.
When asked during his direct examination on who
gave the buy-bust money to PO1 Mendoza, PO1
Familara answered that it was SPO3
Matias.7 Likewise, the pre-arranged signal was
differently described as scratching of the nape
instead of raising of hand.8 He also testified that
their asset arrived at around one o’clock in the
morning to accompany them to
Pinagbuhatan.9 Another inconsistency which
surfaced was when PO1 Familara testified that upon
the consummation of illegal sale, he went to the
place of the arrest and saw PO1 Mendoza arresting
Guinto. PO1 Mendoza then positively identified
Guinto as the one who sold one (1) plastic sachet of
illegal drug instead of two (2) sachets.10
Finally, the last witness presented by the
prosecution was Police Officer 2 Richard Noble (PO2
Noble).11 He corroborated the statements given by
his fellow police officers but again, presented an
inconsistency as to the time of the asset’s arrival
compared to the one narrated by PO1 Familara. A
conflict came out as to the time of the team’s arrival
to the target area and as to how long they waited for
the accused to go out. In his direct, he testified that
the asset arrived at the police station before eleven
o’clock in the evening prior to the buy-bust
operation.12 Afterwards, they had a briefing on the
operation. He recalled that they waited for around
15 to 20 minutes before the accused came
out13 while PO1 Mendoza testified that they waited
for the accused for two hours. When asked again by
the Court on the time of their arrival, he answered
that it was at around one o’clock in the morning.14
The defense interposed denial.
Guinto narrated that at the time ofthe arrest at
10:00 o’clock in the evening of 19 January 2004, he
was in their house cooking with his family. Several
men suddenly entered the house, grabbed his arm
and searched the premises. When asked why the
men entered their home, the men did not give them
any reason. Afterwards, Guinto was brought to the
police headquarters and investigated by the police.15
Jane P. Guinto (Jane), the wife of the accused
Guinto, corroborated the statements of her
husband. She recalled that several armed male
persons entered their house while she and her
family were cooking to celebrate fiesta the next day.
The men were not authorized to search nor arrest
the person of his husband and failed to introduce
themselves to them. Thereafter, these male persons
frisked her husband, handcuffed him and brought to
the police station. Meanwhile, Jane left her two
children under the care of her aunt to follow her
husband. It was there at the station where the police
officers tried to extort money from her in the
amount of ₱50,000.00.16
Finally, John Mark P. Guinto (John Mark), one of the
two children of Guinto, affirmed the narration of his
parents on material points. He testified that he and
his younger brother were watching television at the
time of the illegal arrest of his father. His parents
were then cooking when some uniformed police
officers arrested his father and brought him to the
police station. However, he testified that he went to
their neighbor’s house and hid there out of fear,
contrary to the statement of his mother that she
brought them to her aunt.17
Guinto was eventually charged with Illegal Sale of
Dangerous Drugs punishable under Section 5 of
Article II of R.A. No. 9165:
On or about January 20, 2004 in Pasig City and within
the jurisdiction of this Honorable Court, the accused,
not being lawfully authorized by law, did then and
there willfully, unlawfully and feloniously sell, deliver
and give away to PO1 Melvin Santos Mendoza, a
police poseur buyer, two (2) heat-sealed transparent
plastic bag each containing two centigrams (0.02
gram) of white crystalline substance, which were
found positive to the test for methamphetamine
hydrochloride, a dangerous drug, in violation of said
law.18
When arraigned, he pleaded not guilty to the offense
charged.
Based on the Pre-Trial Order,19 the prosecution and
defense stipulated that Forensic Chemist Annalee R.
Forro (Forro) of the PNP Crime Laboratory conducted
an examination on the samples submitted and they
yielded positive results for methamphetamine
hydrochloride commonly known as shabu.
The Ruling of the Trial Court
60 | P a g e
The trial court on 8 October 2008 rendered a
Decision20 finding Guinto guilty beyond reasonable
doubt of the offense charged and imposed upon him
the penalty of life imprisonment and a fine of
₱500,000.00 for violation of Section 5, Article II of
R.A. No. 9165 with all the accessory penalties under
the law. It held that all the elements to constitute
illegal sale was present to convict the accused of the
offense. Likewise, it affirmed the testimonies of the
police officers on the conducted buy-bust operation
and the presumption of regularity in the
performance of their duties as against the claim of
unsubstantiated denial of Guinto.
The Ruling of the Court of Appeals
The appellate court affirmed the ruling of the trial
court. It ruled that all the elements of illegal sale of
dangerous drug wereproven as testified by the
police officers PO1 Mendoza and PO1 Familara. It
found credible the straight forward and categorical
statements of the prosecution witnesses on what
transpired during the buy-bust operation.21 Further,
it held that the prosecution has proven as unbroken
the chain of custody of evidence and the regularity
of performance of the police officers who conducted
the operation. Finally, it affirmed that the non-
compliance of the strict procedure in Section 21 (a),
ArticleII of the Implementing Rules and
Regulations of R.A. No. 9165 did not invalidate the
seizure and custody of the seized items as the
integrity and evidentiary value of the seized items
are properly preserved by the operatives.22
Our Ruling
After a careful review of the evidence, we reverse
the finding of the trial courts. We find that the
prosecution failed to prove the identity of the corpus
delicti. This is fatal in establishing illegal sale.
Moreover, the conflicting statements of the
policemen on material points tarnished the
credibility of the testimony for the prosecution.
Primarily assailed by the accused are the
inconsistent statements of the apprehending police
officers with respect to the circumstances of his
illegal arrest and the broken chain of custody which
would warrant his acquittal.
We are convinced.
In illegal sale of dangerous drugs, the prosecution
must establish the identity of the buyer and the
seller, the object and consideration of the sale and
the delivery of the thing sold and the payment
therefor.23 Hence, to establish a concrete case, it is
an utmost importance to prove the identity of the
narcotic substance itself as it constitutes the very
corpus delictiof the offense and the fact of its
existence is vital to sustain a judgment of conviction.
It is therefore imperative for the prosecution to first
establish beyond reasonable doubt the identity of
the dangerous drug before asserting other
arguments.24
In this case, the prosecution failed to prove that each
and every element that constitutes an illegal saleof
dangerous drug was present to convict the accused.
Upon evaluation ofthe testimonies of PO1 Familara
and PO1 Mendoza, it is apparent that there is an
inconsistency on the identity and number of plastic
sachets bought from the accused. In his statement,
PO1 Familara recalled that upon arrival at the place
of arrest, PO1 Mendoza told him that he was ableto
buy one plastic sachet of shabu from Guinto. On the
other hand, PO1 Mendoza recalled that he was able
to buy two plastic sachets instead of one. The
pointed inconsistency is not a minor one that can be
brushed aside as the discrepancy taints the very
corpus deliciti of the crime of illegal sale. A vital
point of contention, the prosecution’s evidence
places in reasonable doubt the identification of the
dangerous drug that was presented in court.
We likewise see that the conflicting statements of
the police officers defeat the presumption of the
regularity of their performance of duties ordinarily
accorded by the lower courts.
We find several inconsistencies on points materialto
the credibility of the buy-bust operation. Among
those are the inconsistencies on the pre-arranged
signal, length of time the police officers spent in
waiting for the accused and the exact time of the
arrest.
Aside from those alleged by defense,this Court found
several more evident inconsistencies, which when
put together, erodes the presumption of regularity
of performance of duty.
We discuss.
First, as already pointed out, as to identity of the
corpus delictiof the crime.
PO1 Mendoza and PO1 Familara fatally contradicted
each other’s testimony as to the number of sachets
bought from Guinto. In his direct testimony, PO1
Mendoza positively identified that the accused gave
two plastic sachets in exchange of the ₱200 marked
money.25 However, the same identification was
refuted when PO1 Familara testified that PO1
Mendoza informed him that he (Mendoza)
successfully bought one plastic sachet of shabufrom
Guinto.26
Second, as to where the marked money was
recovered after the buybust operation.
61 | P a g e
According to PO1 Mendoza, he was able to obtain
possession of the buy-bust money from the left front
pocket of Guinto as transcribed in his direct
testimony dated 19 August 2004. However, in his
direct testimony dated 18 August 2005, Mendoza
testified that he was able to recover the buy-bust
money from the right hand of Guinto, as opposed
from his previous narration that he recovered the
money from Guinto’s left pocket.27
Third, conflicting circumstances before the arrest.
In his first testimony, PO1 Mendoza recalled that
upon their arrival at the target area at around eleven
o’clock in the evening, the team waited for almost
two hours for the accused to come out from his
house.28 However, PO1 Familara testified that they
arrived at the target area at around one o’clock in
the morning of 20 January 2004.29 Witness PO1
Noble, on the other hand, recalled that they left for
the area at around eleven in the evening30 and
waited for 15 to 20 minutes31 for Guinto to come out
but contradicted his former statement and testified
that they arrived at around one o’clock in the
morning.32
Fourth,as to the pre-arranged signal.
PO1 Mendoza testified that the agreed upon signal
will be the raising of hand to signify the
consummation of illegal sale.33 Again, it was
contradicted by PO1 Familara’s statement that what
was agreed upon during the meeting was the
scratching of the nape as the pre-arranged signal of
PO1 Mendoza.34
Finally,the source of the buy-bust money.
During his direct examination, PO1 Mendoza was
asked on who gave him the buy-bust money. In his
answer, he identified that it was P/Insp.
Esguerra35 as the source. On the contrary, PO1
Familara identified SPO3 Matias as the one who gave
PO1 Mendoza the marked money during their
meeting.36
We find support in several jurisprudential rulings.
In People v. Roble,37 the Court ruled that generally,
the evaluation of the trial court of the credibility of
the witnesses and their testimonies is entitled to
great weight and generally not disturbed upon
appeal. However, such rule does not apply when the
trial court has overlooked, misapprehended, or
misapplied any fact of weight or substance. In this
present case, the contradictions, numerous and
material, warrant the acquittal of accused-
appellant.38
Similarly, one of the means used by the Court in
determining the credibility of the prosecution
witnesses is the objective test.1âwphi1 Following
this test, in order to establish the credibility of
prosecution witnesses regarding the conduct of buy-
bust operation, prosecution must be able to present
a complete picture detailing the buy-bust
operation—from the initial contact between the
poseur-buyer and the pusher, the offer to purchase,
the promise or payment of the consideration, until
the consummation of the sale by the delivery of the
illegal subject of sale. The manner by which the
initial contact was made, the offer to purchase the
drug, the payment of the buybust money, and the
delivery of the illegal drug must be the subject of
strict scrutiny by courts to insure that law-abiding
citizens are not unlawfully induced to commit an
offense.39 In light of these guiding principles, we rule
that the prosecution failed to present a clear picture
on what really transpired on the buy-bust operation.
In People v. Unisa40 this Court held that "in cases
involving violations of the Dangerous Drug Act,
credence is given to prosecution witnesses who are
police officers for they are presumedto have
performed their duties in a regular manner, unless
there is evidenceto the contrary suggesting ill-motive
on the part of the police officers."
True, the absence of ill motive or ill will is ordinarily
considered by this Court as proof that the
statements of the police officers is credible. As
maintained by the People, through the Office of the
Solicitor General, in the absence of any improper
motive, presumption of regularity of performance of
duty prevails. However, it must be similarly noted
that the presumption of regularity in the
performance of duty of public officers does not
outweigh another recognized presumption - the
presumption of innocence of the accused until
proven beyond reasonable doubt.41
In several occasions, the Court had declared that the
presumption of regularity of performance of duties
must be harmonized with the other interest of the
State which is the interest of adherence to the
presumption of innocence of the accused.
However in case of conflict between the
presumption of regularity of police officers and the
presumption ofinnocence of the accused, the latter
must prevail as the law imposes upon the
prosecution the highest degree of proof of evidence
to sustain conviction.42
In conclusion, this case exemplifies the doctrine that
conviction must stand on the strength of the
Prosecution’s evidence, not on the weakness of the
defense. Evidence proving the guilt of the accused
must always be beyond reasonable doubt.1âwphi1 If
the evidence of guilt falls short of this requirement,
the Court will not allow the accused to be deprived
of his liberty. His acquittal should come as a matter
of course.43
62 | P a g e
The present case shows that the prosecution fell
short in proving with certainty the culpability ofthe
accused and engendered a doubt on the true
circumstances of the buy-bust operation. In dubio
pro reo.When moral certainty as to culpability hangs
in the balance, acquittal on reasonable doubt
inevitably becomes a matter of right.44
WHEREFORE, the appeal is GRANTED. The 31 January
2011 Decision of the Court of Appeals inCA-G.R. CR-
H.C. No. 03844 affirming the judgment of conviction
dated 8 October 2008 of the Regional Trial Court,
Branch 164 of Pasig City is hereby REVERSED and SET
ASIDE. Accused-appellant RICHARD GUINTO y SAN
ANDRES is hereby ACQUITTED and ordered
immediately released from detention unless his
continued confinement is warranted for some other
cause or ground.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
WE CONCUR:
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 173473 December 17, 2008
PEOPLE OF THE PHILIPPINES, appellee,
vs.
BETH TEMPORADA, appellant.
DECISION
YNARES-SANTIAGO, J.:
Before us for review is the February 24, 2006
Decision1 of the Court of Appeals (CA), affirming with
modification the May 14, 2004 Decision2 of the
Regional Trial Court (RTC) of Manila, Branch 33,
convicting accused-appellant Beth Temporada of the
crime of large scale illegal recruitment, or violation
of Article 38 of the Labor Code, as amended, and five
(5) counts of estafa under Article 315, par. (2)(a) of
the Revised Penal Code (RPC).
The antecedents, as found by the appellate court,
are as follows:
From September 2001 to January 2002,
accused Rosemarie "Baby" Robles,
Bernadette Miranda, Nenita Catacotan and
Jojo Resco and appellant Beth Temporada,
all employees of the Alternative Travel and
Tours Corporation (ATTC), recruited and
promised overseas employment, for a fee,
to complainants Rogelio Legaspi, Jr. as
technician in Singapore, and Soledad Atle,
Luz Minkay, Evelyn Estacio and Dennis
Dimaano as factory workers in Hongkong.
The accused and appellant were then
holding office at Dela Rosa Street, Makati
City but eventually transferred business to
Discovery Plaza, Ermita, Manila. After
complainants had submitted all the
requirements consisting of their respective
application forms, passports, NBI clearances
and medical certificates, the accused and
appellant, on different dates, collected and
received from them placement fees in
various amounts, viz: a) from Rogelio
Legaspi, Jr. – 57,600.00; b) from Dennis
Dimaano – P66,520.00; c) from Evelyn
Estacio – P88,520.00; d) from Soledad Atle –
P69,520.00 and e) from Luz Minkay –
 P69,520.00. As none of them was able to
leave nor recover the amounts they had
paid, complainant lodged separate criminal
complaints against accused and appellant
before the City Prosecutor of Manila. On
November 29, 2002, Assistant City
Prosecutor Restituto Mangalindan, Jr. filed
six (6) Informations against the accused and
appellant, one for Illegal Recruitment in
Large Scale under Article 38 (a) of the Labor
Code as amended, and the rest for five (5)
counts of estafa under Article 315
paragraph 2 (a) of the Revised Penal Code.
The Information for large scale illegal
recruitment reads:
Criminal Case No. 02-208371:
"The undersigned accuses
ROSEMARIE "BABY" ROBLES,
BERNADETTE M. MIRANDA, BETH
TEMPORADA, NENITA CATACOTAN
and JOJO RESCO x x x.
That in or about and during the
period comprised between the
months of September 2001 and
January 2002, inclusive, in the City
of Manila, Philippines, the said
accused, representing themselves
to have the power and capacity to
contract, enlist and transport
Filipino workers for employment
abroad, did then and there
willfully, unlawfully for a fee,
recruit and promise employment
to REGELIO A. LEGASPI, JR., DENNIS
T. DIMAANO, EVELEYN V. ESTACIO,
SOLEDAD B. ATTE and LUZ MINKAY
without first having secured the
63 | P a g e
required license from the
Department of Labor and
Employment as required by law,
and charge or accept directly or
indirectly from said complainant[s]
the amount of PH57,600.00,
PH66,520.00, PH88,520.00,
PH69,520.00, PH69,520.00,
respectively, as placement fees in
consideration for their overseas
employment, which amounts are in
excess of or greater than that
specified in the scheduled of
allowable fees prescribed of the
POEA and without reasons and
without fault of the said
complainants, failed to actually
deploy them and failed to
reimburse them the expenses they
incurred in connection with the
documentation and processing of
their papers for purposes of their
deployment.
Contrary to law."
Except for the name of private complainant
and the amount involved, the five (5)
Informations for estafa contain substantially
identical averments as follows:
Criminal Case No. 02-208372:
"The undersigned accuses
ROSEMARIE "BABY" ROBLES,
BERNADETTE M. MIRANDA, BETH
TEMPORADA, NENITA CATACOTAN
and JOJO RESCO x x x.
That in or about and during the
period comprised between
November 23, 2001 and January
12, 2002, inclusive, in the City of
Manila, Philippines, the said
accused, conspiring and
confederating together and helping
one another, did then and there
willfully, unlawfully and feloniously
defraud ROGELIO A. LEGASPI, JR.,
in the following manner, to wit: the
said accused, by means of false
manifestations and fraudulent
representations which they made
to said ROGELIO A. LEGASPI, JR.,
prior to and even simultaneous
with the commission of the fraud,
to the effect that they have the
power and capacity to recruit and
employ ROGELIO A. LEGASPI, JR.,
as technician in Singapore and
could facilitate the processing of
the pertinent papers if given the
necessary amount to meet the
requirements thereof, induced and
succeeded in inducing said
ROGELIO A. LEGASPI, JR., to give
and deliver, as in fact he gave and
delivered to said accused the
amount of P57,600.00 on the
strength of said manifestations and
representations said accused well
knowing that the same were false
and fraudulent and were made
solely for the purpose of obtaining,
as in fact they did obtain the
amount of P57,600.00, which
amount, once in their possession,
with intend to defraud, they
willfully, unlawfully and feloniously
misappropriated, misapplied and
converted the same to their own
personal use and benefit, to the
 damage and prejudice of said
ROGELIO A. LEGASPI, JR. in the
aforesaid amount of P57,000.00
Philippine Currency.
Contrary to law."
The other four (4) Informations
for estafa involve the following
complainants and amounts:
1. DENNIS T. DIMAANO P66,520.00
2. EVELYN V. ESTACIO P88,520.00
3. SOLEDAD B. ATLE P69,520.00
4. LUZ T. MINKAY P69,520.003
Only appellant was apprehended and brought to
trial, the other accused remained at large. Upon
arraignment, appellant pleaded not guilty and trial
on the merits ensued. After joint trial, on May 14,
2004, the RTC rendered judgment convicting
appellant of all the charges:
WHEREFORE, the prosecution having
established the GUILT of accused Beth
Temporada BEYOND REASONABLE DOUBT,
In accordance with the Court’s ruling in People v.
judgment is hereby rendered CONVICTING
Mateo,5 this case was referred to the CA for
the said accused, as principal of the
intermediate review. On February 24, 2006, the CA
offenses charged and she is sentenced to
affirmed with modification the Decision of the RTC:
suffer the penalty of LIFE IMPRISONMENT
and a fine of Five Hundred Thousand Pesos
(P500,000.00) for illegal recruitment; and
the indeterminate penalty of four (4) years
and two (2) months of prision correctional
as minimum, to nine (9) years and one (1)
day of prision mayor, as maximum for
the estafa committed against complainant
Rogelio A. Legaspi, Jr.; the indeterminate
64 | P a g e
penalty of four (4) years and two (2) months
of prision correctional as minimum to ten
(10) years and one day of prision mayor as
maximum each for the estafas committed
against complainants, Dennis Dimaano,
Soledad B. Atte and Luz T. Minkay; and the
indeterminate penalty of four (4) years and
two (2) months of prision correctional as
minimum, to eleven (11) years and one (1)
day of prision mayor as maximum for
the estafa committed against Evelyn
Estacio.
The accused is also ordered to pay jointly
and severally the complainants actual
damages as follows:
1. Rogelio A. Legaspi Jr. P57,600.00
2. Dennis T. Dimaano 66,520.00
3. Evelyn V. Estacio 88,520.00
4. Soledad B. Atte 66,520.00
5. Luz T. Minkay 69,520.00
SO ORDERED.4
WHEREFORE, with MODIFICATION to the
effect that in Criminal Cases Nos. 02-
208373, 02-208375, & 02-208376, appellant
is sentenced to suffer the indeterminate
penalty of six (6) years of prision
correccional maximum, as minimum, to ten
(10) years and one (1) day of prision mayor
maximum, as maximum; and in Criminal
Case No. 02-208374, she is sentenced to
suffer the indeterminate penalty of eight (8)
years and one (1) day of prision mayor
medium, as minimum, to twelve (12) years
and one (1) day of reclusion temporal
minimum, as maximum, the appealed
decision is AFFIRMED in all other respects.6
Before this Court, appellant ascribes the lone error
that the trial court gravely erred in finding her guilty
of illegal recruitment and five (5) counts
of estafa despite the insufficiency of the evidence for
the prosecution.
We affirm the Decision of the CA, except as to the
indeterminate penalties imposed for the five (5)
counts of estafa.
Article 13(b) of the Labor Code defines recruitment
and placement thusly:
ART. 13. Definitions. – x x x
(b) "Recruitment and placement" refers to
any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring or procuring
workers, and includes referrals, contract
services, promising or advertising for
employment, locally or abroad, whether for
profit or not: Provided, That any person or
entity which, in any manner, offers or
promises for a fee, employment to two or
more persons shall be deemed engaged in
recruitment and placement.
To constitute illegal recruitment in large scale, three
(3) elements must concur: (a) the offender has no
valid license or authority required by law to enable
him to lawfully engage in recruitment and placement
of workers; (b) the offender undertakes any of the
activities within the meaning of "recruitment and
placement" under Article 13(b) of the Labor Code, or
any of the prohibited practices enumerated under
Article 34 of the said Code (now Section 6 of R.A. No.
8042); and, (c) the offender committed the same
against three (3) or more persons, individually or as a
group.7
In the case at bar, the foregoing elements are
present. Appellant, in conspiracy with her co-
accused, misrepresented to have the power,
influence, authority and business to obtain overseas
employment upon payment of a placement fee
which was duly collected from complainants Rogelio
Legaspi, Dennis Dimaano, Evelyn Estacio, Soledad
Atle and Luz Minkay. Further, the
certification8 issued by the Philippine Overseas
Employment Administration (POEA) and the
testimony of Ann Abastra Abas, a representative of
said government agency, established that appellant
and her co-accused did not possess any authority or
license to recruit workers for overseas employment.
And, since there were five (5) victims, the trial court
correctly found appellant liable for illegal
recruitment in large scale.
Appellant insists that she was merely an employee of
ATTC and was just "echoing the requirement of her
employer." She further argues that the prosecution
failed to prove that she was aware of the latter’s
illegal activities and that she actively participated
therein. In essence, she controverts the factual
findings of the lower courts.
The contention is untenable.
An employee of a company or corporation engaged
in illegal recruitment may be held liable as principal,
together with his employer, if it is shown that he
actively and consciously participated in illegal
recruitment.9 Appellant actively took part in the
illegal recruitment of private complainants. Rogelio
65 | P a g e
Legaspi testified that after introducing herself as the
General Manager of ATTC, appellant persuaded him
to apply as a technician in Singapore and assured
him that there was a job market therefor. In addition
to the placement fee of P35,000.00 which he paid to
accused Bernadette Miranda, he also handed the
amount of P10,000.00 to appellant who, in turn,
issued him a receipt for the total amount of
P45,000.00. Upon the other hand, Soledad Atle and
Luz Minkay, who applied as factory workers in
Hongkong through co-accused, Emily Salagonos,
declared that it was appellant who briefed them on
the requirements for the processing of their
application, and assured them and Dennis Dimaano
of immediate deployment for jobs abroad. For her
part, Evelyn Estacio testified that aside from the
placement fee of P40,000.00 that she paid to co-
accused "Baby" Robles in connection with her
purported overseas employment, she also gave
appellant P10,000.00 for which she was issued a
receipt for the amount of P5,000.00.
The totality of the evidence, thus, established that
appellant acted as an indispensable participant and
effective collaborator of her co-accused in the illegal
recruitment of complainants. As aptly found by the
CA:
Without doubt, all the acts of appellant,
consisting of introducing herself to
complainants as general manager of ATTC,
interviewing and entertaining them, briefing
them on the requirements for deployment
and assuring them that they could leave
immediately if they paid the required
amounts, unerringly show unity of purpose
with those of her co-accused in their
scheme to defraud private complainants
through false promises of jobs abroad.
There being conspiracy, appellant shall be
equally liable for the acts of her co-accused
even if she herself did not personally reap
the fruits of their execution. We quote with
approval the trial court’s findings on the
matter:
"xxx It is clear that said accused
conspired with her co-accused
Rosemarie "Baby" Robles,
Bernadette M. Miranda, Nenita
Catacotan, and Jojo Resco in
convincing complainants xxx to
apply for overseas jobs and giving
complainants Soledad Atle, Luz
Minkay and Dennis Dimaano
guarantee that they would be
hired as factory workers in
Hongkong, complainant Rogelio
Legaspi, as Technician in Singapore
and Evelyn Estacio as quality
controller in a factory in Hongkong,
despite the fact that the accused
was not licensed to do so.
It should be noted that all the
accused were connected with the
Alternative Travel and Tours
Corporation (ATTC). Accused Beth
Temporada introduced herself as
ATTC’s General Manager. Saod
accused was also the one who
received the P10,000.00 given by
complainant Rogelio Legaspi, Jr.
and the P10,000.00 given by
complainant Evelyn Estacio as
payment for their visa and plane
ticket, respectively."10
Consequently, the defense of appellant that she was
not aware of the illegal nature of the activities of her
co-accused cannot be sustained. Besides, even
assuming arguendo that appellant was indeed
unaware of the illegal nature of said activities, the
same is hardly a defense in the prosecution for illegal
recruitment. Under The Migrant Workers and
Overseas Filipinos Act of 1995, a special law, the
crime of illegal recruitment in large scale is malum
prohibitum and not malum in se.11 Thus, the criminal
intent of the accused is not necessary and the fact
alone that the accused violated the law warrants her
conviction.12
In the instant case, we find no reason to depart from
the rule that findings of fact of the trial court on the
credibility of witnesses and their testimonies are
generally accorded great respect by an appellate
court. The assessment of credibility of witnesses is a
matter best left to the trial court because it is in the
position to observe that elusive and incommunicable
evidence of the witnesses’ deportment on the stand
while testifying, which opportunity is denied to the
appellate courts.13 Further, there is no showing of
any ill-motive on the part of the prosecution
witnesses in testifying against appellant. Absent such
improper motive, the presumption is that they were
not so actuated and their testimony is entitled to full
weight and credit.
Section 7(b) of R.A. No. 8042 prescribes the penalty
of life imprisonment and a fine of not less than
P500,000.00 nor more than P1,000,000.00 for the
crime of illegal recruitment in large scale or by a
syndicate. The trial court, therefore, properly meted
the penalty of life imprisonment and a fine of
P500,000.00 on the appellant.
Anent the conviction of appellant for five (5) counts
of estafa, we, likewise, affirm the same. Well-settled
is the rule that a person convicted for illegal
recruitment under the Labor Code may, for the same
acts, be separately convicted for estafa under Article
315, par. 2(a) of the RPC.14 The elements
of estafa are: (1) the accused defrauded another by
66 | P a g e
abuse of confidence or by means of deceit; and (2)
the offended party or a third party suffered damage
or prejudice capable of pecuniary estimation. 15 The
same evidence proving appellant’s criminal liability
for illegal recruitment also established her liability
for estafa. As previously discussed, appellant
together with her co-accused defrauded
complainants into believing that they had the
authority and capability to send complainants for
overseas employment. Because of these assurances,
complainants parted with their hard-earned money
in exchange for the promise of future work abroad.
However, the promised overseas employment never
materialized and neither were the complainants able
to recover their money.
While we affirm the conviction for the five (5) counts
of estafa, we find, however, that the CA erroneously
computed the indeterminate penalties therefor. The
CA deviated from the doctrine laid down in People v.
Gabres;16 hence its decision should be reversed with
respect to the indeterminate penalties it imposed.
The reversal of the appellate court’s Decision on this
point does not, however, wholly reinstate the
indeterminate penalties imposed by the trial court
because the maximum terms, as determined by the
latter, were erroneously computed and must
necessarily be rectified.
The prescribed penalty for estafa under Article 315,
par. 2(d) of the RPC, when the amount defrauded
exceeds P22,000.00, is prisión correccional maximum
to prisión mayor minimum. The minimum term is
taken from the penalty next lower or anywhere
within prisión correccional minimum and medium
(i.e., from 6 months and 1 day to 4 years and 2
months). Consequently, the RTC correctly fixed the
minimum term for the five estafa cases at 4 years
and 2 months of prisión correccional since this is
within the range of prisión correccional minimum
and medium.
On the other hand, the maximum term is taken from
the prescribed penalty of prisión
correccional maximum to prisión mayor minimum in
its maximum period, adding 1 year of imprisonment
for every P10,000.00 in excess of P22,000.00,
provided that the total penalty shall not exceed 20
years. However, the maximum period of the
prescribed penalty of prisión correccional maximum
to prisión mayor minimum is not prisión
mayor minimum as apparently assumed by the RTC.
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 6517 of the RPC. Following this procedure, the
maximum period of prisión correccional maximum
to prisión mayor minimum is from 6 years, 8 months
and 21 days to 8 years.18 The incremental penalty,
when proper, shall thus be added to anywhere from
6 years, 8 months and 21 days to 8 years, at the
discretion of the court.19
In computing the incremental penalty, the amount
defrauded shall be subtracted by P22,000.00, and
the difference shall be divided by P10,000.00. Any
fraction of a year shall be discarded as was done
starting with the case of People v. Pabalan20 in
consonance with the settled rule that penal laws
shall be construed liberally in favor of the accused.
The doctrine enunciated in People v.
Benemerito21 insofar as the fraction of a year was
utilized in computing the total incremental penalty
should, thus, be modified. In accordance with the
above procedure, the maximum term of the
indeterminate sentences imposed by the RTC should
be as follows:
In Criminal Case No. 02-208372, where the amount
defrauded was P57,600.00, the RTC sentenced the
accused to an indeterminate penalty of 4 years and 2
months of prisión correccional as minimum, to 9
years and 1 day of prisión mayor as maximum. Since
the amount defrauded exceeds P22,000.00 by
P35,600.00, 3 years shall be added to the maximum
period of the prescribed penalty (or added to
anywhere from 6 years, 8 months and 21 days to 8
years, at the discretion of the court). The lowest
maximum term, therefore, that can be validly
imposed is 9 years, 8 months and 21 days of prisión
mayor, and not 9 years and 1 day of prisión mayor.
In Criminal Case Nos. 02-208373, 02-208375, and 02-
208376, where the amounts defrauded were
P66,520.00, P69,520.00, and P69,520.00,
respectively, the accused was sentenced to an
indeterminate penalty of 4 years and 2 months
of prisión correccional as minimum, to 10 years and 1
day of prisión mayor as maximum for each of the
aforesaid three estafa cases. Since the amounts
defrauded exceed P22,000.00 by P44,520.00,
P47,520.00, and P47,520.00, respectively, 4 years
shall be added to the maximum period of the
prescribed penalty (or added to anywhere from 6
years, 8 months and 21 days to 8 years, at the
discretion of the court). The lowest maximum term,
therefore, that can be validly imposed is 10 years, 8
months and 21 days of prisión mayor, and not 10
years and 1 day of prisión mayor.
Finally, in Criminal Case No. 02-208374, where the
amount defrauded was P88,520.00, the accused was
sentenced to an indeterminate penalty of 4 years
and 2 months of prisión correccional as minimum, to
11 years and 1 day of prisión mayor as maximum.
Since the amount defrauded exceeds P22,000.00 by
P66,520.00, 6 years shall be added to the maximum
period of the prescribed penalty (or added to
anywhere from 6 years, 8 months and 21 days to 8
years, at the discretion of the court). The lowest
maximum term, therefore, that can be validly
imposed is 12 years, 8 months and 21 days
67 | P a g e
of reclusión temporal, and not 11 years and 1 day
of prisión mayor.
Response to the dissent.
In the computation of the indeterminate sentence
for estafa under Article 315, par. 2(a) of the Revised
Penal Code (RPC), the Court
has consistently followed the doctrine espoused
in Pabalan and more fully explained in Gabres. The
dissent argues that Gabres should be reexamined
and abandoned.
We sustain Gabres.
I.
The formula proposed in the Dissenting Opinion of
Mr. Justice Ruben T. Reyes, i.e., the maximum term
shall first be computed by applying the incremental
penalty rule, and thereafter the minimum term shall
be determined by descending one degree down the
scale of penalties from the maximum term, is a novel
but erroneous interpretation of the ISL in relation to
Article 315, par. 2(a) of the RPC. Under this
interpretation, it is not clear how the maximum and
minimum terms shall be computed. Moreover, the
legal justification therefor is not clear because the
meaning of the terms "penalty," "prescribed
penalty," "penalty actually imposed," "minimum
term," "maximum term," "penalty next lower in
degree," and "one degree down the scale of
penalties" are not properly set out and are, at times,
used interchangeably, loosely and erroneously.
For purposes of this discussion, it is necessary to first
clarify the meaning of certain terms in the sense that
they will be used from here on. Later, these terms
shall be aligned to what the dissent appears to be
proposing in order to clearly address the points
raised by the dissent.
The RPC provides for an initial penalty as a general
prescription for the felonies defined therein which
consists of a range of period of time. This is what is
referred to as the "prescribed penalty." For instance,
under Article 24922 of the RPC, the prescribed
penalty for homicide is reclusión temporal which
ranges from 12 years and 1 day to 20 years of
imprisonment. Further, the Code provides for
attending or modifying circumstances which when
present in the commission of a felony affects the
computation of the penalty to be imposed on a
convict. This penalty, as thus modified, is referred to
as the "imposable penalty." In the case of homicide
which is committed with one ordinary aggravating
circumstance and no mitigating circumstances, the
imposable penalty under the RPC shall be the
prescribed penalty in its maximum period. From this
imposable penalty, the court chooses a single fixed
penalty (also called a straight penalty) which is the
"penalty actually imposed" on a convict, i.e., the
prison term he has to serve.
Concretely, in U.S. v. Saadlucap,23 a pre-ISL case, the
accused was found guilty of homicide with a
prescribed penalty of reclusión temporal. Since there
was one ordinary aggravating circumstance and no
mitigating circumstances in this case, the imposable
penalty is reclusión temporal in its maximum
period, i.e., from 17 years, 4 months and 1 day to 20
years. The court then had the discretion to impose
any prison term provided it is within said period, so
that the penalty actually imposed on the accused
was set at 17 years, 4 months and 1 day of reclusión
temporal,24 which is a single fixed penalty, with no
minimum or maximum term.
With the passage of the ISL, the law created a prison
term which consists of a minimum and maximum
term called the indeterminate sentence.25 Section 1
of the ISL provides –
 SECTION 1. Hereafter, in imposing a prison
sentence for an offense punished by the
Revised Penal Code, or its amendments, the
court shall sentence the accused to an
indeterminate sentence the maximum term
of which shall be that which, in view of the
attending circumstances, could be properly
imposed under the rules of said Code, and
the minimum which shall be within the
range of the penalty next lower to that
prescribed by the Code for the offense; x x
x.
Thus, the maximum term is that which, in view of
the attending circumstances, could be properly
imposed under the RPC. In other words, the penalty
actually imposed under the pre-ISL regime became
the maximum term under the ISL regime. Upon the
other hand, the minimum term shall be within the
range of the penalty next lower to the prescribed
penalty. To illustrate, if the case of Saadlucap was
decided under the ISL regime, then the maximum
term would be 17 years, 4 months and 1 day
of reclusión temporal and the minimum term could
be anywhere within the range of prisión mayor (6
years and 1 day to 12 years) which is the penalty
next lower to reclusión temporal. Consequently, an
indeterminate sentence of 10 years of prisión
mayor as minimum to 17 years, 4 months and 1 day
of reclusión temporal as maximum could have
possibly been imposed.
If we use the formula as proposed by the
dissent, i.e., to compute the minimum term based on
the maximum term after the attending or modifying
circumstances are considered, the basis for
computing the minimum term, under this
interpretation, is the imposable penalty26 as
hereinabove defined. This interpretation is at odds
with Section 1 of the ISL which clearly states that the
minimum of the indeterminate sentence shall be
68 | P a g e
"within the range of the penalty next lower to that
prescribed by the Code for the offense."
Consequently, the basis for fixing the minimum term
is the prescribed penalty,27 and not the imposable
penalty.
In People v. Gonzales,28 the Court held that the
minimum term must be based on the penalty
prescribed by the Code for the offense "without
regard to circumstances modifying criminal
liability."29 The Gonzales’ ruling that the minimum
term must be based on the prescribed penalty
"without regard to circumstances modifying criminal
liability" is only a restatement of Section 1 of the ISL
that the minimum term shall be taken from within
the range of the penalty next lower to the prescribed
penalty (and from nowhere else).30
Further, the dissent proceeds from the erroneous
premise that its so-called "regular formula" has
generally been followed in applying the ISL. To
reiterate, according to the dissent, the "regular
formula" is accomplished by first determining the
maximum term after considering all the attending
circumstances; thereafter, the minimum term is
arrived at by going one degree down the scale from
the maximum term. As previously discussed, this
essentially means, using the terms as earlier defined,
that the minimum term shall be taken from the
penalty next lower to the imposable penalty (and
not the prescribed penalty.) In more concrete terms
and using the previous example of homicide with
one ordinary aggravating circumstance, this would
mean that the minimum term for homicide will no
longer be based on reclusión temporal (i.e., the
prescribed penalty for homicide) but reclusión
temporal in its maximum period (i.e., the imposable
penalty for homicide with one ordinary aggravating
circumstance) so much so that the minimum term
shall be taken from reclusión temporal in its medium
period (and no longer from prisión mayor) because
this is the penalty next lower to reclusión temporal in
its maximum period. The penalty from which the
minimum term is taken is, thus, significantly
increased. From this example, it is not difficult to
discern why this interpretation radically departs
from how the ISL has generally been applied by this
Court. The dissent’s "regular formula" is, therefore,
anything but regular.
In fine, the "regular formula" espoused by the
dissent deviates from the ISL and established
jurisprudence and is, thus, tantamount to judicial
legislation.
II.
There is no absurdity or injustice in fixing or
"stagnating" the minimum term within the range
of prisión correccional minimum and medium (i.e.,
from 6 months and 1 day to 4 years and 2 months).
Preliminarily, it must be emphasized that the
minimum term taken from the aforementioned
range of penalty need not be the same for every
case of estafa when the amount defrauded exceeds
P12,000.00. In People v. Ducosin,31 the Court
provided some guidelines in imposing the minimum
term from the range of the penalty next lower to the
prescribed penalty:
We come now to determine the "minimum
imprisonment period" referred to in Act No.
4103. Section 1 of said Act provides that this
"minimum which shall not be less than the
minimum imprisonment period of the
penalty next lower to that prescribed by
said Code for the offense."32 We are here
upon new ground. It is in determining the
"minimum" penalty that Act No. 4103
confers upon the courts in the fixing of
penalties the widest discretion that the
courts have ever had. The determination of
 the "minimum" penalty presents two
aspects: first, the more or less mechanical
determination of the extreme limits of the
minimum imprisonment period; and
second, the broad question of the factors
and circumstances that should guide the
discretion of the court in fixing the
minimum penalty within the ascertained
limits.
xxxx
We come now to the second aspect of the
determination of the minimum penalty,
namely, the considerations which should
guide the court in fixing the term or
duration of the minimum period of
imprisonment. Keeping in mind the basic
purpose of the Indeterminate Sentence Law
"to uplift and redeem valuable human
material, and prevent unnecessary and
excessive deprivation of personal liberty
and economic usefulness" (Message of the
Governor-General, Official Gazette No. 92,
vol. XXXI, August 3, 1933), it is necessary to
consider the criminal, first, as an individual
and, second, as a member of society. This
opens up an almost limitless field of
investigation and study which it is the duty
of the court to explore in each case as far as
is humanly possible, with the end in view
that penalties shall not be standardized but
fitted as far as is possible to the individual,
with due regard to the imperative necessity
of protecting the social order.
Considering the criminal as an individual,
some of the factors that should be
considered are: (1) His age, especially with
reference to extreme youth or old age; (2)
his general health and physical condition;
69 | P a g e
(3) his mentality, heredity and personal
habits; (4) his previous conduct,
environment and mode of life (and criminal
record if any); (5) his previous education,
both intellectual and moral; (6) his
proclivities and aptitudes for usefulness or
injury to society; (7) his demeanor during
trial and his attitude with regard to the
crime committed; (8) the manner and
circumstances in which the crime was
committed; (9) the gravity of the offense
(note that section 2 of Act No. 4103 excepts
certain grave crimes – this should be kept in
mind in assessing the minimum penalties
for analogous crimes).
In considering the criminal as a member of
society, his relationship, first, toward his
dependents, family and associates and their
relationship with him, and second, his
relationship towards society at large and
the State are important factors. The State is
concerned not only in the imperative
necessity of protecting the social
organization against the criminal acts of
destructive individuals but also in
redeeming the individual for economic
usefulness and other social ends. In a word,
the Indeterminate Sentence Law aims to
individualize the administration of our
criminal law to a degree not heretofore
known in these Islands. With the foregoing
principles in mind as guides, the courts can
give full effect to the beneficent intention of
the Legislature.33
Admittedly, it is possible that the court, upon
application of the guidelines in Ducosin, will impose
the same minimum term to one who commits
an estafa involving P13,000.00 and another involving
P130 million. In fact, to a lesser degree, this is what
happened in the instant case where the trial court
sentenced the accused to the same minimum term
of 4 years and 2 months of prisión correccional in
Criminal Case Nos. 02-208372, 02-208373, 02-
208375, 02-208376, and 02-208374 where the
amounts defrauded were P57,600.00, P66,520.00,
P69,520.00, P69,520.00 and P88,520.00,
respectively. However, there is no absurdity and
injustice for two reasons.
One, while it is possible that the minimum term
imposed by a court would be the same, the
maximum term would be greater for the convict who
committed estafa involving P130 million (which
would be 20 years of reclusion temporal) than the
convict who swindled P13,000.00 (which could be
anywhere from prisión correccional maximum
to prisión mayor minimum or from 4 years, 2 months
and 1 day to 8 years).34 Assuming that both convicts
qualify for parole after serving the same minimum
term, the convict sentenced to a higher maximum
term would carry a greater "burden" with respect to
the length of parole surveillance which he may be
placed under, and the prison term to be served in
case he violates his parole as provided for in Sections
635 and 836 of the ISL. Under Section 6, the convict
shall be placed under a period of surveillance
equivalent to the remaining portion of the maximum
sentence imposed upon him or until final release and
discharge by the Board of Pardon and Paroles.
Further, the convict with the higher maximum term
would have to serve a longer period upon his re-
commitment in prison in case he violates his parole
because he would have to serve the remaining
portion of the maximum term, unless the Board of
Pardon and Paroles shall, in its discretion, grant a
new parole to the said convict as provided for in
Section 8.
Although the differences in treatment are in the
nature of potential liabilities, to this limited extent,
the ISL still preserves the greater degree of
punishment in the RPC for a convict who
commits estafa involving a greater amount as
compared to one who commits estafa involving a
lesser amount. Whether these differences in
treatment are sufficient in substance and gravity
involves a question of wisdom and expediency of the
ISL that this Court cannot delve into.
Two, the rule which provides that the minimum term
is taken from the range of the penalty next lower to
the prescribed penalty is, likewise, applicable to
other offenses punishable under the RPC. For
instance, the minimum term for an accused guilty of
homicide with one generic mitigating circumstance
vis-à-vis an accused guilty of homicide with three
ordinary aggravating circumstances would both be
taken from prisión mayor – the penalty next lower
to eclusion temporal. Evidently, the convict guilty of
homicide with three ordinary aggravating
circumstances committed a more perverse form of
the felony. Yet it is possible that the court, after
applying the guidelines in Ducosin, will impose upon
the latter the same minimum term as the accused
guilty of homicide with one generic mitigating
circumstance. This reasoning can be applied mutatis
mutandis to most of the other offenses punishable
under the RPC. Should we then conclude that the ISL
creates absurd results for these offenses as well?
In fine, what is perceived as absurd and unjust is
actually the intent of the legislature to be beneficial
to the convict in order to "uplift and redeem
valuable human material, and prevent unnecessary
and excessive deprivation of personal liberty and
economic usefulness."37 By the legislature’s
deliberate design, the range of penalty from which
the minimum term is taken remains fixed and only
the range of penalty from which the maximum term
is taken changes depending on the number and
nature of the attending circumstances. Again, the
70 | P a g e
reason why the legislature elected this mode of
beneficence to a convict revolves on questions of
wisdom and expediency which this Court has no
power to review. The balancing of the State’s
interests in deterrence and retributive justice vis-à-
vis reformation and reintegration of convicts to
society through penal laws belongs to the exclusive
domain of the legislature.
III.
People v. Romero,38 De Carlos v. Court of
Appeals,39 Salazar v. People,40 People v.
Dinglasan41 and, by analogy, People v. Dela Cruz42 do
not support the formula being proposed by the
dissent.
The instant case involves a violation of Article 315,
par. 2(a) of the RPC.43 The penalty for said violation
is–
ARTICLE 315. Swindling (Estafa). – Any
person who shall defraud another by any of
the means mentioned hereinbelow shall be
punished by:
1st. The penalty of prisión correccional in its
maximum period to prisión mayor in its
minimum period, if the amount of the fraud
is over 12,000 pesos 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 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 prisión mayor or reclusión temporal,
as the case may be. x x x
In contrast, Romero, De Carlos, and Salazar involved
violations of Article 315 of the RPC as amended by
Presidential Decree (P.D.) No. 168944 because: (1)
the funds defrauded were contributed by
stockholders or solicited by
corporations/associations from the general public,
(2) the amount defrauded was greater than
P100,000.00, and (3) the estafa was not committed
by a syndicate. Section 1 of P.D. No. 1689 provides–
Sec. 1. Any person or persons who shall
commit estafa or other forms of swindling
as defined in Article 315 and 316 of the
Revised Penal Code, as amended, shall be
punished by life imprisonment to death if
the swindling (estafa) is committed by a
syndicate consisting of five or more persons
formed with the intention of carrying out
the unlawful or illegal act, transaction,
enterprise or scheme, and the defraudation
results in the misappropriation of money
contributed by stockholders, or members of
rural banks, cooperative, "samahang
nayon(s)", or farmers association, or of
funds solicited by corporations/associations
from the general public.
When not committed by a syndicate as
above defined, the penalty imposable shall
be reclusión temporal to reclusión
perpetua if the amount of the fraud exceeds
100,000 pesos. (Emphasis supplied)
Since the prescribed penalty is reclusión
temporal to reclusión perpetua, the minimum terms
were taken from prisión mayor, which is the penalty
next lower to the prescribed penalty.45 As can be
seen, these cases involved a different penalty
structure that does not make use of the incremental
penalty rule due to the amendatory law. Thus, the
comparison of these cases with Gabres is improper.
Meanwhile, in Dinglasan, the felony committed
was estafa through bouncing checks which is
punishable under Article 315 par. 2(d) of the RPC as
amended by Republic Act (RA) No. 488546–
Sec. 1. Section Two, Paragraph (d), Article
Three hundred fifteen of Act Numbered
Thirty-eight hundred and fifteen is hereby
amended to read as follows:
"Sec. 2. By means of any of the following
false pretenses or fraudulent acts executed
prior to or simultaneously with the
commission of the fraud:
"(d) By postdating a check, or
issuing a check in payment of an
obligation when the offender had
no funds in the bank, or his funds
deposited therein were not
sufficient to cover the amount of
the check. The failure of the
drawer of the check to deposit the
amount necessary to cover his
check within three (3) days from
receipt of notice from the bank
and/or the payee or holder that
said check has been dishonored for
lack or insufficiency of funds shall
be prima facie evidence of deceit
constituting false pretense or
fraudulent act."
47
and P.D. No. 818 –
Sec. 1. Any person who shall defraud another by
means of false pretenses or fraudulent acts as
71 | P a g e
defined in paragraph 2(d) of Article 315 of the
Revised Penal Code, as amended by Republic Act No.
4885, shall be punished by:
1st. The penalty of reclusión temporal if the
amount of the fraud is over 12,000 pesos
but 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 in no
case exceed thirty years. In such cases, and
in connection with the accessory penalties
which may be imposed under the Revised
Penal Code, the penalty shall be
termed reclusión perpetua; x x x (Emphasis
supplied)
Here, the prescribed penalty of prisión
correccional maximum to prisión mayor minimum
was increased to reclusión temporal by the
amendatory law. Consequently, the penalty next
lower to reclusión temporal is prisión mayor from
which the minimum term was taken. This is the
reason for the higher minimum term in this case as
compared to Gabres. In fact, Dinglasan is consistent
with Gabres–
Since the face value of Check No. 029021,
for which appellant is criminally liable
for estafa, exceeds P22,000, the penalty
abovecited must be "imposed in its
maximum period, adding 1 year for each
additional P10,000." Pursuant to People vs.
Hernando, G.R. No. 125214, Oct. 28, 1999,
an indeterminate sentence shall be imposed
on the accused, computed favorably to him.
In this case, the indeterminate sentence
should be computed based on the
maximum period of reclusión temporal as
maximum, which is from 17 years, 4
months, and 1 day to 20 years. The
minimum period of the sentence should be
within the penalty next lower in degree as
provided in the Revised Penal Code,
i.e., prisión mayor, which is from 6 years
and 1 day to 12 years imprisonment.
Considering that the excess of the fraud
committed, counting from the base of
P22,000, is only P4,400, which is less than
the P10,000 stated in P.D. 818, there is no
need to add one year to the maximum
penalty abovecited.48 (Emphasis supplied)
As in Gabres, the penalty next lower (i.e., prisión
mayor) was determined without considering in the
meantime the effect of the amount defrauded in
excess of P22,000.00 on the prescribed penalty
(i.e., reclusión temporal).
Finally, Dela Cruz involved a case for qualified theft.
The prescribed penalty for qualified theft is two
degrees higher than simple theft. Incidentally, the
penalty structure for simple theft49 and estafa is
similar in that both felonies (1) requires that the
prescribed penalty be imposed in its maximum
period when the value of the thing stolen or the
amount defrauded, as the case may be, exceeds
P22,000.00, and (2) provides for an incremental
penalty of 1 year imprisonment for every P10,000.00
in excess of P22,000.00. It should be pointed out,
however, that the prescribed penalty for simple theft
is prisión mayor minimum and medium while
in estafa it is lower at prisión correccional maximum
to prisión mayor minimum.
Being two degrees higher, the prescribed penalty for
qualified theft is, thus, reclusión temporal medium
and maximum, while the minimum term is taken
from the range of prisión mayor maximum
to reclusión temporal minimum, which is the penalty
next lower to reclusión temporal medium and
maximum. The penalty next lower to the prescribed
penalty is determined without first considering the
amount stolen in excess of P22,000.00 consistent
with Gabres. In fact, Dela Cruz expressly cites
Gabres–
Applying the Indeterminate Sentence Law,
the minimum of the indeterminate penalty
shall be anywhere within the range of the
penalty next lower in degree to that
prescribed for the offense, without first
considering any modifying circumstance
attendant to the commission of the crime.
Since the penalty prescribed by law
is reclusión temporal medium and
maximum, the penalty next lower would
be prisión mayor in its maximum period
to reclusión temporal in its minimum
period. Thus, the minimum of the
indeterminate sentence shall be anywhere
within ten (10) years and one (1) day to
fourteen (14) years and eight (8) months.
The maximum of the indeterminate penalty
is that which, taking into consideration the
attending circumstances, could be properly
imposed under the Revised Penal
Code. Since the amount involved in the
present case exceeds P22,000.00, this
should be taken as analogous to modifying
circumstances in the imposition of the
maximum term of the full indeterminate
sentence, not in the initial determination of
the indeterminate penalty. (citing Gabres)
Thus, the maximum term of the
indeterminate penalty in this case is the
maximum period of reclusión
temporal medium and maximum, which
ranges from eighteen (18) years, two (2)
months, and twenty one (21) days to
72 | P a g e
twenty (20) years, as computed pursuant to
Article 65, in relation to Article 64 of the
Revised Penal Code.50 (Emphasis supplied)
Clearly, none of these cases supports the Dissenting
Opinion’s thesis that the minimum term should be
computed based on the maximum term. Quite the
contrary, Dinglasan and Dela Cruz are consistent
with Gabres.
IV.
The argument that the incremental penalty rule
should not be considered as analogous to a
modifying circumstance stems from the erroneous
interpretation that the "attending circumstances"
mentioned in Section 1 of the ISL are limited to those
modifying circumstances falling within the scope of
Articles 13 and 14 of the RPC. Section 1 of the ISL is
again quoted below –
SECTION 1. Hereafter, in imposing a prison
sentence for an offense punished by the
Revised Penal Code, or its amendments, the
court shall sentence the accused to an
indeterminate sentence the maximum term
of which shall be that which, in view of the
attending circumstances, could be properly
imposed under the rules of said Code, and
the minimum which shall be within the
range of the penalty next lower to that
prescribed by the Code for the offense; x x x
(Emphasis supplied)
The plain terms of the ISL show that the legislature
did not intend to limit "attending circumstances" as
referring to Articles 13 and 14 of the RPC. If the
legislature intended that the "attending
circumstances" under the ISL be limited to Articles
13 and 14, then it could have simply so stated. The
wording of the law clearly permits other modifying
circumstances outside of Articles 13 and 14 of the
RPC to be treated as "attending circumstances" for
purposes of the application of the ISL, such as quasi-
recidivism under Article 16051 of the RPC. Under this
provision, "any person who shall commit a felony
after having been convicted by final judgment,
before beginning to serve such sentence, or while
serving the same, shall be punished by the maximum
period of the penalty prescribed by law for the new
felony." This circumstance has been interpreted by
the Court as a special aggravating circumstance
where the penalty actually imposed is taken from
the prescribed penalty in its maximum period
without regard to any generic mitigating
circumstances.52 Since quasi-recidivism is considered
as merely a special aggravating circumstance, the
penalty next lower in degree is computed based on
the prescribed penalty without first considering said
special aggravating circumstance as exemplified
in People v. Manalo53 and People v. Balictar.54
The question whether the incremental penalty rule is
covered within the letter and spirit of "attending
circumstances" under the ISL was answered in the
affirmative by the Court in Gabres when it ruled
therein that the incremental penalty rule is
analogous to a modifying circumstance.
Article 315 of the RPC pertinently provides –
ARTICLE 315. Swindling (Estafa). – Any
person who shall defraud another by any of
the means mentioned hereinbelow shall be
punished by:
1st. The penalty of prisión
correccional in its maximum period
to prisión mayor in its minimum
period, if the amount of the fraud
is over 12,000 pesos 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 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 prisión
mayor or reclusión temporal, as the
case may be. x x x
Under Gabres, prisión correccional maximum
to prisión mayor minimum is the prescribed
penalty55 for estafa when the amount defrauded
exceeds P22,000.00. An amount defrauded in excess
of P22,000.00 is effectively considered as a special
aggravating circumstance in the sense that the
penalty actually imposed shall be taken from the
prescribed penalty in its maximum period without
regard to any generic mitigating circumstances.
Consequently, the penalty next lower in degree is
still based on the prescribed penalty without in the
meantime considering the effect of the amount
defrauded in excess of P22,000.00.
What is unique, however, with the afore-quoted
provision is that when the amount defrauded is
P32,000.00 or more, the prescribed penalty is not
only imposed in its maximum period but there is
imposed an incremental penalty of 1 year
imprisonment for every P10,000.00 in excess of
P22,000.00, provided that the total penalty which
may be imposed shall not exceed 20 years. This
incremental penalty rule is a special rule applicable
to estafa and theft. In the case of estafa, the
incremental penalty is added to the maximum period
73 | P a g e
of the prescribed penalty (or to anywhere from 6
years, 8 months and 21 days to 8 years) at the
discretion of the court, in order to arrive at the
penalty actually imposed (i.e., the maximum term,
within the context of the ISL).
This unique characteristic of the incremental penalty
rule does not pose any obstacle to interpreting it as
analogous to a modifying circumstance, and, hence,
falling within the letter and spirit of "attending
circumstances" for purposes of the application of the
ISL. Under the wording of the ISL, "attending
circumstances" may be reasonably interpreted as
referring to such circumstances that are applied in
conjunction with certain rules in the Code in order to
determine the penalty to be actually imposed based
on the prescribed penalty of the Code for the
offense. The incremental penalty rule substantially
meets this standard. The circumstance is the amount
defrauded in excess of P22,0000.00 and the
incremental penalty rule is utilized to fix the penalty
actually imposed. At its core, the incremental
penalty rule is merely a mathematical formula for
computing the penalty to be actually imposed using
the prescribed penalty as starting point. Thus, it
serves the same function of determining the penalty
actually imposed as the modifying circumstances
under Articles 13, 14, and 160 of the RPC, although
the manner by which the former accomplishes this
function differs with the latter. For this reason, the
incremental penalty rule may be considered as
merely analogous to modifying circumstances.
Besides, in case of doubt as to whether the
incremental penalty rule falls within the scope of
"attending circumstances" under the ISL, the doubt
should be resolved in favor of inclusion because this
interpretation is more favorable to the accused
following the time-honored principle that penal
statutes are construed strictly against the State and
liberally in favor of the accused.56 Thus, even if the
Dissenting Opinion’s interpretation is gratuitously
conceded as plausible, as between Gabres and the
dissent’s interpretation, Gabres should be sustained
since it is the interpretation more favorable to the
accused.
V.
The claim that the maximum term should only be
one degree away from the minimum term does not
make sense within the meaning of "degrees" under
the RPC because the minimum and maximum terms
consist of single fixed penalties. At any rate, the
point seems to be that the penalty from which the
minimum term is taken should only be one degree
away from the penalty from which the maximum
term is taken.
As a general rule, the application of modifying
circumstances, the majority being generic mitigating
and ordinary aggravating circumstances, does not
result to a maximum term fixed beyond the
prescribed penalty. At most, the maximum term is
taken from the prescribed penalty in its maximum
period. Since the maximum term is taken from the
prescribed penalty and the minimum term is taken
from the next lower penalty, then, in this limited
sense, the difference would naturally be only one
degree. Concretely, in the case of homicide with one
ordinary aggravating circumstance, the maximum
term is taken from reclusión temporal in its
maximum period which is within the prescribed
penalty of reclusión temporal, while the minimum
term is taken from prisión mayor which is the
penalty next lower to reclusión temporal; hence, the
one-degree difference observed by the dissent.
In comparison, under the incremental penalty rule,
the maximum term can exceed the prescribed
penalty. Indeed, at its extreme, the maximum term
can be as high as 20 years of reclusión
temporal while the prescribed penalty remains
at prisión correccional maximum to prisión
mayor minimum, hence, the penalty next lower to
the prescribed penalty from which the minimum
term is taken remains at anywhere within prisión
correccional minimum and medium, or from 6
months and 1 day to 4 years and 2 months. In this
sense, the incremental penalty rule deviates from
the afore-stated general rule.57
However, it is one thing to say that, generally, the
penalty from which the minimum term is taken is
only one degree away from the penalty from which
the maximum term is taken, and completely another
thing to claim that the penalty from which the
minimum term is taken should only be one degree
away from the penalty from which the maximum
term is taken.
The one-degree difference is merely the result of
a general observation from the application of generic
mitigating and ordinary aggravating circumstances in
the RPC in relation to the ISL. Nowhere does the ISL
refer to the one-degree difference as an essential
requisite of an "attending circumstance." If the
application of the incremental penalty rule deviates
from the one-degree difference, this only means that
the law itself has provided for an exception thereto.
Verily, the one-degree difference is a mere
consequence of the generic mitigating and ordinary
aggravating circumstances created by the legislature.
The difficulty of the dissent with the deviation from
its so-called one-degree difference rule seems to lie
with the inability to view these "attending
circumstances" as mere artifacts or creations of the
legislature. It does not make sense to argue that the
legislature cannot formulate "attending
circumstances" that operate differently than these
generic mitigating and ordinary aggravating
circumstances, and that, expectedly, leads to a
different result from the one-degree difference–for
it would be to say that the creator can only create
74 | P a g e
one specie of creatures. Further, it should be
reasonably assumed that the legislature was aware
of these special circumstances, like the incremental
penalty rule or privileged mitigating circumstances,
at the time it enacted the ISL as well as the
consequent effects of such special circumstances on
the application of said law. Thus, for as long as the
incremental penalty rule is consistent with the letter
and spirit of "attending circumstances" under the
ISL, there is no obstacle to its treatment as such.
VI.
Much has been said about the leniency, absurdity
and unjustness of the result under Gabres; the need
to adjust the minimum term of the indeterminate
penalty to make it commensurate to the gravity of
the estafa committed; the deterrence effect of a
stiffer imposition of penalties; and a host of other
similar reasons to justify the reversal of Gabres.
However, all these relate to policy considerations
beyond the wording of the ISL in relation to the RPC;
considerations that if given effect essentially seek to
rewrite the law in order to conform to one notion
(out of an infinite number of such notions) of
wisdom and efficacy, and, ultimately, of justice and
mercy.
This Court is not the proper forum for this sort of
debate. The Constitution forbids it, and the principle
of separation of powers abhors it. The Court applies
the law as it finds it and not as how it thinks the law
should be. Not too long ago in the case of People v.
Veneracion,58 this Court spoke about the dangers of
allowing one’s personal beliefs to interfere with the
duty to uphold the Rule of Law which, over a decade
later, once again assumes much relevance in this
case:
Obedience to the rule of law forms the
bedrock of our system of justice. If judges,
under the guise of religious or political
beliefs were allowed to roam unrestricted
beyond boundaries within which they are
required by law to exercise the duties of
their office, the law becomes meaningless.
A government of laws, not of men excludes
the exercise of broad discretionary powers
by those acting under its authority. Under
this system, judges are guided by the Rule
of Law, and ought "to protect and enforce it
without fear or favor," resist
encroachments by governments, political
parties, or even the interference of their
own personal beliefs.59
VII.
Mr. Justice Adolfo S. Azcuna proposes an
interpretation of the incremental penalty rule based
on the phrases "shall be termed prisión
mayor or reclusión temporal, as the case may be"
and "for the purpose of the other provisions of this
Code" found in the last sentence of said rule, viz:
ARTICLE 315. Swindling (Estafa). – Any
person who shall defraud another by any of
the means mentioned hereinbelow shall be
punished by:
1st. The penalty of prisión
correccional in its maximum period
to prisión mayor in its minimum
period, if the amount of the fraud
is over 12,000 pesos 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 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 prisión
mayor or reclusión temporal, as the
case may be. x x x (Emphasis
supplied)
While this interpretation is plausible, Gabres should
still be sustained because in construing penal
statutes, as between two reasonable60 but
contradictory constructions, the one more favorable
to the accused should be upheld, which in this case is
Gabres. The reason for this rule is elucidated in an
eminent treatise on statutory construction in this
wise:
It is an ancient rule of statutory
construction that penal statutes should be
strictly construed against the government
or parties seeking to enforce statutory
penalties and in favor of the persons on
whom penalties are sought to be imposed.
This simply means that words are given
their ordinary meaning and that any
reasonable doubt about the meaning is
decided in favor of anyone subjected to a
criminal statute. This canon of
interpretation has been accorded the status
of a constitutional rule under principles of
due process, not subject to abrogation by
statute.
The rule that penal statutes should be
strictly construed has several justifications
based on a concern for the rights and
freedoms of accused individuals. Strict
construction can assure fairness when
75 | P a g e
courts understand it to mean that penal
statutes must give a clear and unequivocal
warning, in language people generally
understand, about actions that would result
in liability and the nature of potential
penalties. A number of courts have said:
… the rule that penal statutes are
to be strictly construed … is a
fundamental principle which in our
judgment will never be altered.
Why? Because the lawmaking body
owes the duty to citizens and
subjects of making unmistakably
clear those acts for the commission
of which the citizen may lose his
life or liberty. Therefore, all the
canons of interpretation which
apply to civil statutes apply to
criminal statutes, and in addition
there exists the canon [of strict
construction] …. The burden lies on
the lawmakers, and inasmuch as it
is within their power, it is their
duty to relieve the situation of all
doubts.
xxxx
Additionally, strict construction protects the
individual against arbitrary discretion by
officials and judges. As one judge noted:
"the courts should be particularly careful
that the bulwarks of liberty are not
overthrown, in order to reach an offender
who is, but perhaps ought not to be,
sheltered behind them."
But also, for a court to enforce a penalty
where the legislature has not clearly and
unequivocally prescribed it could result in
judicial usurpation of the legislative
function. One court has noted that the
reason for the rule is "to guard against the
creation, by judicial construction, of
criminal offenses not within the
contemplation of the legislature." Thus the
rule requires that before a person can be
punished his case must be plainly and
unmistakably within the statute sought to
be applied. And, so, where a statute is open
to more than one interpretation, it is strictly
construed against the state. Courts further
rationalize this application of the rule of
strict construction on the ground that it was
not the defendant in the criminal action
who caused ambiguity in the statute. Along
these same lines, courts also assert that
since the state makes the laws, they should
be most strongly construed against
it.61 (Emphasis supplied; citations omitted)
Thus, in one case, where the statute was ambiguous
and permitted two reasonable interpretations, the
construction which would impose a less severe
penalty was adopted.62
WHEREFORE, the Decision of the Court of Appeals
is MODIFIED with respect to the indeterminate
penalties imposed on appellant for the five (5)
counts of estafa, to wit:
(1) In Criminal Case No. 02-208372, the
accused is sentenced to an indeterminate
penalty of 4 years and 2 months of prisión
correccional as minimum, to 9 years, 8
months and 21 days of prisión mayor as
maximum.
(2) In Criminal Case Nos. 02-208373, 02-
208375, and 02-208376, the accused is
sentenced to an indeterminate penalty of 4
 years and 2 months of prisión
correccional as minimum, to 10 years, 8
months and 21 days of prisión mayor as
maximum for each of the aforesaid
three estafa cases.
(3) In Criminal Case No. 02-208374, the
accused is sentenced to an indeterminate
penalty of 4 years and 2 months of prisión
correccional as minimum, to 12 years, 8
months and 21 days of reclusión
temporal as maximum.
In all other respects, the Decision of the Court of
Appeals is AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SPECIAL SECOND DIVISION
G.R. No. 151258 December 1, 2014
ARTEMIO VILLAREAL, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x-----------------------x
G.R. No. 154954
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
THE HONORABLE COURT OF APPEALS, ANTONIO
MARIANO ALMEDA, DALMACIO LIM, JR., JUNEL
ANTHONY AMA, ERNESTO JOSE MONTECILLO,
VINCENT TECSON, ANTONIO GENERAL, SANTIAGO
76 | P a g e
RANADA III, NELSON VICTORINO, JAIME MARIA
FLORES II, ZOSIMO MENDOZA, MICHAEL MUSNGI,
VICENTE VERDADERO, ETIENNE GUERRERO, JUDE
FERNANDEZ, AMANTE PURISIMA II, EULOGIO
SABBAN, PERCIVAL D. BRIGOLA, PAUL ANGELO
SANTOS, JONAS KARL B. PEREZ, RENATO BANTUG,
JR., ADEL ABAS, JOSEPH LLEDO, and RONAN DE
GUZMAN, Respondents.
x-----------------------x
G.R. No. 155101
FIDELITO DIZON, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x-----------------------x
G.R. Nos. 178057 & 178080
GERARDA H. VILLA, Petitioner,
vs.
MANUEL LORENZO ESCALONA II, MARCUS JOEL
CAPELLAN RAMOS, CRISANTO CRUZ SARUCA, JR.,
and ANSELMO ADRIANO, Respondents.
RESOLUTION
SERENO, CJ:
We are asked to revisit our Decision in the case
involving the death of Leonardo "Lenny" Villa due to
fraternity hazing. While there is nothing new in the
arguments raised by the parties in their respective
Motions for Clarification or Reconsideration, we find
a few remaining matters needing to be clarified and
resobed. Sorne oJ' these matters include the effect
of our Decision on the finality of the Court of
Appeals judgments insofar as respondents Antonio
Mariano A!meda (Almeda), June] Anthony D. Arna
(Arna), Renato Bantug, Jr. (Bantug), and Vincent
Tecson (Tecson) are concerned; the question of who
are eligible to seek probation; and the issue of the
validity of the probation proceedings and the
concomitant orders of a court that allegedly had no
jurisdiction over the case.
Before the Court are the respective Motions for
Reconsideration or Clarification filed by petitioners
People of the Philippines, through the Office of the
Solicitor General (OSG), and Gerarda H. Villa (Villa);
and by respondents Almeda, Ama, Bantug, and
Tecson (collectively, Tecson et al.) concerning the
Decision of this Court dated 1 February 2012.1 The
Court modified the assailed judgments2 of the Court
of Appeals (CA) in CA-G.R. CR No. 15520 and found
respondents Fidelito Dizon (Dizon), Almeda, Ama,
Bantug, and Tecson guilty beyond reasonable doubt
of the crime of reckless imprudence resulting in
homicide. The modification had the effect of
lowering the criminal liability of Dizon from the
crime of homicide, while aggravating the verdict
against Tecson et al. from slight physical injuries. The
CA Decision itself had modified the Decision of the
Caloocan City Regional Trial Court (RTC) Branch 121
finding all of the accused therein guilty of the crime
of homicide.3
Also, we upheld another CA Decision4 in a separate
but related case docketed as CA-G.R. S.P. Nos. 89060
& 90153 and ruled that the CA did not commit grave
abuse of discretion when it dismissed the criminal
case against Manuel Escalona II (Escalona), Marcus
Joel Ramos (Ramos), Crisanto Saruca, Jr. (Saruca),
and Anselmo Adriano (Adriano) on the ground that
their right to speedy trial was violated. Reproduced
below is the dispositive portion of our Decision:5
WHEREFORE, the appealed Judgmentin G.R. No.
155101 finding petitioner Fidelito Dizon guilty of
homicide is hereby MODIFIED and SET ASIDE IN
PART. The appealed Judgment in G.R. No. 154954 –
finding Antonio Mariano Almeda, Junel Anthony
Ama, Renato Bantug, Jr., and Vincent Tecson guilty
of the crime of slight physical injuries – is also
MODIFIED and SET ASIDE IN PART. Instead, Fidelito
Dizon, Antonio Mariano Almeda, Junel Anthony Ama,
Renato Bantug, Jr., and Vincent Tecson are found
GUILTY beyond reasonable doubt of reckless
imprudence resulting in homicide defined and
penalized under Article 365 in relation to Article 249
of the Revised Penal Code. They are hereby
sentenced to suffer an indeterminate prison term of
four (4) months and one (1) day of arresto mayor, as
minimum, to four (4) years and two (2) months of
prision correccional, as maximum. In addition,
accused are ORDERED jointly and severally to pay
the heirs of Lenny Villa civil indemnity ex delicto in
the amount of 50,000, and moral damages in the
amount of 1,000,000, plus legal interest on all
damages awarded at the rate of 12% from the date
of the finality of this Decision until satisfaction. Costs
de oficio.
The appealed Judgment in G.R. No. 154954,
acquitting Victorino et al., is hereby AFFIRMED. The
appealed Judgments in G.R. Nos. 178057 & 178080,
dismissing the criminal case filed against Escalona,
Ramos, Saruca, and Adriano, are likewise AFFIRMED.
Finally, pursuant to Article 89(1) of the Revised Penal
Code, the Petition in G.R. No. 151258 is hereby
dismissed, and the criminal case against Artemio
Villareal deemed CLOSED and TERMINATED.
Let copies of this Decision be furnished to the Senate
President and the Speaker of the House of
Representatives for possible consideration of the
amendment of the Anti-Hazing Law to include the
fact of intoxication and the presence of non-resident
or alumni fraternity members during hazing as
77 | P a g e
aggravating circumstances that would increase the to the neophytes; the "Bicol Express," which obliged
applicable penalties. the neophytes to sit on the floor with their backs
against the wall and their legs outstretched while the
SO ORDERED. Aquilans walked, jumped, or ran over their legs; the
"Rounds," in which the neophytes were held at the
To refresh our memories, we quote the factual back of their pants by the "auxiliaries" (the Aquilans
antecedents surrounding the present case:6 charged with the duty of lending assistance to
neophytes during initiation rites), while the latter
were being hit with fist blows on their arms or
In February 1991, seven freshmen law students of
withknee blows on their thighs by two Aquilans; and
the Ateneo de Manila University School of Law
the "Auxies’ Privilege Round," in which the auxiliaries
signified their intention to join the Aquila Legis Juris
were given the opportunity to inflict physical pain on
Fraternity (Aquila Fraternity). They were Caesar
the neophytes. During this time, the neophytes were
"Bogs" Asuncion, Samuel "Sam" Belleza, Bienvenido
also indoctrinated with the fraternity principles.
"Bien" Marquez III, Roberto Francis "Bert" Navera,
They survived their first day of initiation.
Geronimo "Randy" Recinto, Felix Sy, Jr., and
Leonardo "Lenny" Villa (neophytes).
On the morning of their second day – 9 February
1991 – the neophytes were made to present comic
On the night of 8 February 1991, the neophytes were
plays and to play rough basketball. They were also
met by some members of the Aquila Fraternity
required to memorize and recite the Aquila
(Aquilans) at the lobby of the Ateneo Law School.
Fraternity’s principles. Whenever they would give a
They all proceeded to Rufo’s Restaurant to have
wrong answer, they would be hit on their arms or
dinner. Afterwards, they went to the house of
legs. Late in the afternoon, the Aquilans revived the
Michael Musngi, also an Aquilan, who briefed the
initiation rites proper and proceeded to torment
neophytes on what to expect during the initiation
them physically and psychologically. The neophytes
rites. The latter were informed that there would be
were subjected to the same manner of hazing that
physical beatings, and that they could quit at any
they endured on the first day of initiation. After a
time. Their initiation rites were scheduled to last for
few hours, the initiation for the day officially ended.
three days. After their "briefing," they were brought
to the Almeda Compound in Caloocan City for the
After a while, accused non-resident or alumni
commencement of their initiation.
fraternity members Fidelito Dizon (Dizon) and
Artemio Villareal (Villareal) demanded that the rites
Even before the neophytes got off the van, they had
be reopened. The head of initiation rites, Nelson
already received threats and insults from the
Victorino (Victorino), initially refused. Upon the
Aquilans. As soon as the neophytes alighted from the
insistence of Dizon and Villareal, however, he
van and walked towards the pelota court of the
reopened the initiation rites. The fraternity
Almeda compound, some of the Aquilans delivered
members, including Dizon and Villareal, then
physical blows to them. The neophytes were then
subjected the neophytes to "paddling" and to
subjected to traditional forms of Aquilan "initiation
additional rounds of physical pain. Lenny received
rites." These rites included the "Indian Run," which
several paddle blows, one of which was so strong it
required the neophytes to run a gauntlet of two
sent him sprawling to the ground. The neophytes
parallel rows of Aquilans, each row delivering blows
heard him complaining of intense pain and difficulty
in breathing. After their last session of physical
beatings, Lenny could no longer walk. He had to be
carried by the auxiliaries to the carport. Again, the
initiation for the day was officially ended, and the
neophytes started eating dinner. They then slept at
the carport.
After an hour of sleep, the neophytes were suddenly
roused by Lenny’s shivering and incoherent
mumblings.1avvphi1 Initially, Villareal and Dizon
dismissed these rumblings, as they thought he was
just overacting. When they realized, though, that
Lenny was really feeling cold, some of the Aquilans
started helping him. They removed his clothes and
helped him through a sleeping bag to keep him
warm. When his condition worsened, the Aquilans
rushed him to the hospital. Lenny was pronounced
dead on arrival.
Consequently, a criminal case for homicide was filed
against the following 35 Aquilans:
In Criminal Case No. C-38340(91)
1. Fidelito Dizon (Dizon)
2. Artemio Villareal (Villareal)
3. Efren de Leon (De Leon)
4. Vincent Tecson (Tecson)
5. Junel Anthony Ama (Ama)
6. Antonio Mariano Almeda (Almeda)
7. Renato Bantug, Jr. (Bantug)
8. Nelson Victorino (Victorino)
78 | P a g e
9. Eulogio Sabban (Sabban)
10. Joseph Lledo (Lledo)
11. Etienne Guerrero (Guerrero)
12. Michael Musngi (Musngi)
13. Jonas Karl Perez (Perez)
14. Paul Angelo Santos (Santos)
15. Ronan de Guzman (De Guzman)
16. Antonio General (General)
17. Jaime Maria Flores II (Flores)
18. Dalmacio Lim, Jr. (Lim)
19. Ernesto Jose Montecillo (Montecillo)
20. Santiago Ranada III (Ranada)
21. Zosimo Mendoza (Mendoza)
22. Vicente Verdadero (Verdadero)
23. Amante Purisima II (Purisima)
24. Jude Fernandez (J. Fernandez)
25. Adel Abas (Abas)
26. Percival Brigola (Brigola)
In Criminal Case No. C-38340
1. Manuel Escalona II (Escalona)
2. Crisanto Saruca, Jr. (Saruca)
3. Anselmo Adriano (Adriano)
4. Marcus Joel Ramos (Ramos)
5. Reynaldo Concepcion (Concepcion)
6. Florentino Ampil (Ampil)
7. Enrico de Vera III (De Vera)
8. Stanley Fernandez (S. Fernandez)
9. Noel Cabangon (Cabangon)
Twenty-six of the accused Aquilans in Criminal Case
No. C-38340(91) were jointly tried. On the other
hand, the trial against the remaining nine accused in
Criminal Case No. C-38340 was held in abeyance due
to certain matters that had to be resolved first.
On 8 November 1993, the trial court rendered
judgment in Criminal Case No. C-38340(91), holding
the 26 accused guilty beyond reasonable doubt of
the crime of homicide, penalized with reclusion
temporal under Article 249 of the Revised Penal
Code. A few weeks after the trial court rendered its
judgment, or on 29 November 1993, Criminal Case
No. C-38340 against the remaining nine accused
commenced anew.
On 10 January 2002, the CAin (CA-G.R. No. 15520)
set aside the finding of conspiracy by the trial court
in Criminal Case No. C-38340(91) and modified the
criminal liability of each of the accused according to
individual participation. Accused De Leon had by
then passed away, so the following Decision applied
only to the remaining 25 accused, viz:
 1. Nineteen of the accused-appellants–
Victorino, Sabban, Lledo, Guerrero, Musngi,
Perez, De Guzman, Santos, General, Flores,
Lim, Montecillo, Ranada, Mendoza,
Verdadero, Purisima, Fernandez, Abas, and
Brigola (Victorino et al.) – were acquitted,as
their individual guilt was not established by
proof beyond reasonable doubt.
2. Four of the accused-appellants– Vincent
Tecson, Junel Anthony Ama, Antonio
Mariano Almeda, and Renato Bantug, Jr.
(Tecson et al.) – were found guilty of the
crime of slight physical injuriesand
sentenced to 20 days of arresto menor.
They were also ordered to jointly pay the
heirs of the victim the sum of ₱30,000 as
indemnity.
3. Two of the accused-appellants– Fidelito
Dizonand Artemio Villareal– were found
guilty beyond reasonable doubt of the
crime of homicide under Article 249 of the
Revised Penal Code. Having found no
mitigating or aggravating circumstance, the
CA sentenced them to an indeterminate
sentence of 10 years of prision mayor to 17
years of reclusion temporal. They were also
ordered to indemnify, jointly and severally,
the heirs of Lenny Villa in the sum of
₱50,000 and to pay the additional amount
of ₱1,000,000 by way of moral damages.
On 5 August 2002, the trial court in Criminal Case
No. 38340 dismissed the charge against accused
Concepcion on the ground of violation of his right to
speedy trial. Meanwhile, on different dates between
the years 2003 and 2005, the trial court denied the
respective Motions to Dismiss of accused Escalona,
Ramos, Saruca, and Adriano. On 25 October 2006,
the CA in CA-G.R. SP Nos. 89060 & 90153 reversed
79 | P a g e
the trial court’s Orders and dismissed the criminal
case against Escalona, Ramos, Saruca, and Adriano
on the basis of violation of their right to speedy trial.
From the aforementioned Decisions, the five (5)
consolidated Petitions were individually brought
before this Court. (Citations omitted)
Motion for Partial Reconsideration
filed by Petitioner Gerarda H. Villa
Petitioner Villa filed the present Motion for Partial
Reconsideration7 in connection with G.R. Nos.
178057 & 178080 (Villa v. Escalona) asserting that
the CA committed grave abuse of discretion when it
dismissed the criminal case against Escalona,
Ramos,Saruca, and Adriano (collectively, Escalona et
al.) in its assailed Decision and Resolution.8 Villa
reiterates her previous arguments that the right to
speedy trial of the accused was not violated, since
they had failed to assert that right within a
reasonable period of time. She stresses that, unlike
their co-accused Reynaldo Concepcion, respondents
Escalona et al.did not timely invoke their right to
speedy trial during the time that the original records
and pieces of evidence were unavailable. She again
emphasizes that the prosecution cannot be faulted
entirely for the lapse of 12 years from the
arraignment until the initial trial, as there were a
number of incidents attributable to the accused
themselves that caused the delay of the
proceedings. She then insists that we apply the
balancing test in determining whether the right to
speedy trial of the accused was violated.
Motion for Reconsideration filed by the OSG
The OSG, in its Motion for Reconsideration9 of G.R.
Nos. 155101 (Dizon v. People) and 154954 (People v.
Court of Appeals), agrees with the findings of this
Court that accused Dizon and Tecson et al. had
neither the felonious intent to kill (animus
interficendi) nor the felonious intent to injure
(animus iniuriandi) Lenny Villa. In fact, it concedes
that the mode in which the accused committed the
crime was through fault (culpa). However, it
contends that the penalty imposed should have been
equivalent to that for deceit (dolo) pursuant to
Article 249 (Homicide) of the Revised Penal Code. It
argues that the nature and gravity of the
imprudence or negligence attributable to the
accused was so gross that it shattered the fine
distinction between dolo and culpaby considering
the act as one committed with malicious intent. It
maintains that the accused conducted the initiation
rites in such a malevolent and merciless manner that
it clearly endangered the lives of the initiates and
was thus equivalent to malice aforethought.
With respect to the 19 other accused, or Victorino et
al., the OSG asserts that their acquittal may also be
reversed despite the rule on double jeopardy, as the
CA also committed grave abuse of discretion in
issuing its assailed Decision (CA-G.R. No. 15520). The
OSG insists that Victorino et al. should have been
similarly convicted like their other co-accused Dizon,
Almeda, Ama, Bantug, and Tecson, since the former
also participated in the hazing of Lenny Villa, and
their actions contributed to his death.
Motions for Clarification or Reconsideration of
Tecson et al.
Respondents Tecson et al.,10 filed their respective
motions pertaining to G.R. No. 154954 (People v.
Court of Appeals). They essentially seek a
clarification as to the effect of our Decision insofar as
their criminal liability and service of sentence are
concerned. According to respondents, they
immediately applied for probation after the CA
rendered its Decision (CAG.R. No. 15520) lowering
their criminal liability from the crime of homicide,
which carries a non-probationable sentence, to slight
physical injuries, which carries a probationable
sentence. Tecson et al.contend that, as a result, they
have already been discharged from their criminal
liability and the cases against them closed and
terminated. This outcome was supposedly by virtue
of their Applications for Probation on various dates
in January 200211 pursuant to Presidential Decree
No. 968, as amended, otherwise known as the
Probation Law. They argue that Branch 130 of
Caloocan City Regional Trial Court (RTC) had already
granted their respective Applications for Probation
on 11 October 200212 and, upon their completion of
the terms and conditions thereof, discharged them
from probation and declared the criminal case
against them terminated on various dates in April
2003.13
To support their claims, respondents
attached14 certified true copies of their respective
Applications for Probation and the RTC Orders
granting these applications, discharging them from
probation, and declaring the criminal case against
them terminated. Thus, they maintain that the
Decision in CA-G.R. No. 15520 had already lapsed
into finality, insofar as they were concerned,
whenthey waived their right to appeal and applied
for probation.
ISSUES
I. Whether the CA committed grave abuse
of discretion amounting to lack or excess of
jurisdiction when it dismissed the case
against Escalona, Ramos, Saruca, and
Adriano for violation of their right to speedy
trial
II. Whether the penalty imposed on Tecson
et al. should have corresponded to that for
intentional felonies
80 | P a g e
III. Whether the completion by Tecson et al.
of the terms and conditions of their
probation discharged them from their
criminal liability, and closed and terminated
the cases against them DISCUSSION
Findings on the Motion for Partial Reconsideration of
Petitioner Gerarda H. Villa
As regards the first issue, we take note that the
factual circumstances and legal assertions raised by
petitioner Villa in her Motion for Partial
Reconsideration concerning G.R. Nos. 178057 &
178080 have already been thoroughly considered
and passed uponin our deliberations, which led to
our Decision dated 1 February 2012. We emphasize
that in light of the finding of violation of the right of
Escalona et al. to speedy trial, the CA’s dismissal of
the criminal case against them amounted to an
acquittal,15 and that any appeal or reconsideration
thereof would result in a violation of their right
against double jeopardy.16 Though we have
recognized that the acquittal of the accused may be
challenged where there has been a grave abuse of
discretion,17 certiorari would lie if it is convincingly
established that the CA’s Decision dismissing the
case was attended by a whimsical or capricious
exercise of judgment equivalent to lack of
jurisdiction. It must be shown that the assailed
judgment constitutes "a patent and gross abuse of
discretion amounting to an evasion of a positive duty
or to a virtual refusal to perform a duty imposed by
law or toact in contemplation of law; an exercise of
power in an arbitrary and despotic manner by reason
of passion and hostility; or a blatant abuse of
authority to a point so grave and so severe as to
deprive the court of its very power to dispense
justice."18 Thus, grave abuse of discretion cannot be
attributed to a court simply because it allegedly
misappreciated the facts and the evidence.19
We have taken a second look at the court records,
the CA Decision, and petitioner’s arguments and
found no basis to rule that the CA gravely abused its
discretion in concluding that the right to speedy trial
of the accused was violated. Its findings were
sufficiently supported by the records of the case and
grounded in law. Thus, we deny the motion of
petitioner Villa with finality.
Ruling on the Motion for Reconsideration filed by
the OSG
We likewise deny with finality the Motion for
Reconsideration filed by the OSG with respect to
G.R. Nos. 155101 (Dizon v. People) and 154954
(People v. Court of Appeals). Many of the arguments
raised therein are essentially a mere rehash of the
earlier grounds alleged in its original Petition for
Certiorari.
Furthermore, we cannot subscribe to the OSG’s
theory that even if the act complained of was born
of imprudence or negligence, malicious intent can
still be appreciated on account of the gravity of the
actions of the accused. We emphasize that the
finding of a felony committed by means of culpa is
legally inconsistent with that committed by means of
dolo. Culpable felonies involve those wrongs done as
a result of an act performed without malice or
criminal design. The Revised Penal Code expresses
thusly:
ARTICLE 365. Imprudence and Negligence. — Any
person who, by reckless imprudence, shall commit
any act which, had it been intentional, would
constitute a grave felony, shall suffer the penalty of
arresto mayorin its maximum period toprisión
correccional in its medium period; if it would have
constituted a less grave felony, the penalty of
arresto mayor in its minimum and medium periods
shall be imposed.
Any person who, by simple imprudence or
negligence, shall commit an act which would
otherwise constitute a grave felony, shall suffer the
penalty of arresto mayorin its medium and
maximum periods; if it would have constituted a less
serious felony, the penalty of arresto mayor in its
minimum period shall be imposed.
xxxx
Reckless imprudence consists in voluntary, but
without malice, doing or falling to do an act from
which material damage results by reason of
inexcusable lack of precaution on the part of the
person performing or failing to perform suchact,
taking into consideration his employment or
occupation, degree of intelligence, physical condition
and other circumstances regarding persons, time
and place.
Simple imprudence consists in the lack of precaution
displayed in those cases in which the damage
impending to be caused is not immediate nor the
danger clearly manifest. (Emphases supplied)
On the other hand, intentional felonies concern
those wrongs in which a deliberate malicious intent
to do an unlawful act is present. Below is our
exhaustive discussion on the matter:20 Our Revised
Penal Code belongs tothe classical school of thought.
x x x The identity of mens rea– defined as a guilty
mind, a guilty or wrongful purpose or criminal intent
– is the predominant consideration. Thus, it is not
enough to do what the law prohibits. In order for an
intentional felony to exist, it is necessary that the act
be committed by means of doloor "malice."
The term "dolo" or "malice" is a complex idea
involving the elements of freedom, intelligence, and
intent. x x x x The element of intent – on which this
Court shall focus – is described as the state of mind
81 | P a g e
accompanying an act, especially a forbidden act. It
refers to the purpose of the mind and the resolve
with which a person proceeds.It does not refer to
mere will, for the latter pertains to the act, while
intentconcerns the result of the act. While motive is
the "moving power" that impels one to action for a
definite result, intent is the "purpose" of using a
particular means to produce the result. On the other
hand, the term "felonious"means, inter alia,
malicious, villainous, and/or proceeding from an evil
heart or purpose.With these elements taken
together, the requirement of intent in intentional
felony must refer to malicious intent, which is a
vicious and malevolent state of mind accompanying
a forbidden act. Stated otherwise, intentional felony
requires the existence of dolus malus– that the act
or omission be done "willfully," "maliciously," "with
deliberate evil intent," and "with malice
aforethought." The maxim is actus non facit reum,
nisi mens sit rea– a crime is not committed if the
mind of the person performing the act complained
of is innocent. As is required of the other elements
of a felony, the existence of malicious intent must be
proven beyond reasonable doubt.
xxxx
The presence of an initial malicious intent to commit
a felony is thus a vital ingredient in establishing the
commission of the intentional felony of homicide.
Being mala in se, the felony of homicide requires the
existence of malice or dolo immediately before or
simultaneously with the infliction of injuries. Intent
to kill – or animus interficendi– cannot and should
not be inferred, unless there is proof beyond
reasonable doubt of such intent. Furthermore, the
victim’s death must not have been the product of
accident, natural cause, or suicide. If death resulted
from an act executed without malice or criminal
intent – but with lack of foresight, carelessness, or
negligence – the act must be qualified as reckless or
simple negligence or imprudence resulting in
homicide.
xxxx
In order to be found guilty ofany of the felonious
acts under Articles 262 to 266 of the Revised Penal
Code, the employment of physical injuries must be
coupled with dolus malus. As an act that is mala in
se, the existence of malicious intent is fundamental,
since injury arises from the mental state of the
wrongdoer – iniuria ex affectu facientis consistat. If
there is no criminal intent, the accused cannot be
found guilty of an intentional felony. Thus, incase of
physical injuries under the Revised Penal Code, there
must be a specific animus iniuriandi or malicious
intention to do wrong against the physical integrity
or wellbeing of a person, so as to incapacitate and
deprive the victim of certain bodily functions.
Without proof beyond reasonable doubt of the
required animus iniuriandi, the overt act of inflicting
physical injuries per semerely satisfies the elements
of freedom and intelligence in an intentional felony.
The commission of the act does not, in itself, make a
man guilty unless his intentions are.
Thus, we have ruled in a number of instances that
the mere infliction of physical injuries,
absentmalicious intent, does not make a person
automatically liable for an intentional felony.x x x.
xxxx
The absence of malicious intent does not
automatically mean, however, that the accused
fraternity members are ultimately devoid of criminal
liability. The Revised Penal Code also punishes
felonies that are committed by means of fault
(culpa). According to Article 3 thereof, there is fault
when the wrongful act results from imprudence,
negligence, lack of foresight, or lack of skill.
Reckless imprudence or negligence consists of a
voluntary act done without malice, from which an
immediate personal harm, injury or material damage
results by reason of an inexcusable lack of
precaution or advertence on the part of the person
committing it. In this case, the danger is visible and
consciously appreciated by the actor. In contrast,
simple imprudence or negligence comprises an act
done without grave fault, from which an injury or
material damage ensues by reason of a mere lack of
foresight or skill. Here, the threatened harm is not
immediate, and the danger is not openly visible.
The test for determining whether or not a person is
negligent in doing an act is as follows: Would a
prudent man in the position of the person to whom
negligence is attributed foresee harm to the person
injured as a reasonable consequence of the course
about to be pursued? If so, the law imposes on the
doer the duty to take precaution against the
mischievous resultsof the act. Failure to do so
constitutes negligence.
As we held in Gaid v. People, for a person to avoid
being charged with recklessness, the degree of
precaution and diligence required varies with the
degree of the danger involved. If, on account of a
certain line of conduct, the danger of causing harm
to another person is great, the individual who
chooses to follow that particular course of conduct is
bound to be very careful, inorder to prevent or avoid
damage or injury. In contrast, if the danger is minor,
not much care is required. It is thus possible that
there are countless degrees of precaution or
diligence that may be required of an individual,
"from a transitory glance of care to the most vigilant
effort." The duty of the person to employ more or
less degree of care will depend upon the
circumstances of each particular case. (Emphases
supplied, citations omitted)
82 | P a g e
We thus reiterate that the law requires proof
beyond reasonable doubt of the existence of
malicious intent or dolus malus before an accused
can be adjudged liable for committing an intentional
felony.
Since the accused were found to have committed a
felony by means of culpa, we cannot agree with the
argument of the OSG. It contends that the imposable
penalty for intentional felony can also be applied to
the present case on the ground that the nature of
the imprudence or negligence of the accused was so
gross that the felony already amounted to malice.
The Revised Penal Code has carefully delineated the
imposable penalties as regards felonies committed
by means of culpaon the one hand and felonies
committed by means of doloon the other in the
context of the distinctions it has drawn between
them. The penalties provided in Article 365
(Imprudence and Negligence) are mandatorily
applied if the death of a person occurs as a result of
the imprudence or negligence of another.
Alternatively, the penalties outlined in Articles 246
to 261 (Destruction of Life) are automatically
invoked if the death was a result of the commission
of a forbidden act accompanied by a malicious
intent. These imposable penalties are statutory,
mandatory, and not subjectto the discretion of the
court. We have already resolved – and the OSG
agrees – that the accused Dizon and Tecson et al.
had neither animus interficendi nor animus
iniuriandi in inflicting physical pain on Lenny Villa.
Hence, we rule that the imposable penalty is what is
applicable to the crime of reckless imprudence
resulting in homicide as defined and penalized under
Article 365 of the Revised Penal Code.
Ruling on the Motions for Clarification or
Reconsideration
filed by Tecson et al.
We clarify, however, the effect of our Decision in
light of the motions of respondents Tecson et al. vis-
à-vis G.R. No. 154954 (People v. Court of Appeals).
The finality of a CA decision will not
bar the state from seeking the
annulment of the judgment via a
Rule 65 petition.
In their separate motions,21 respondents insist that
the previous verdict of the CA finding them guilty of
slight physical injuries has already lapsed into finality
as a result of their respective availments of the
probation program and their ultimate discharge
therefrom. Hence, they argue that they can no
longer be convicted of the heavier offense of
reckless imprudence resulting in
homicide.22 Respondents allude to our Decision in
Tan v. People23 to support their contention that the
CA judgment can no longer be reversed or annulled
even by this Court.
The OSG counters24 that the CA judgment could not
have attained finality, as the former had timely filed
with this Court a petition for certiorari. It argues that
a Rule 65 petition is analogous to an appeal, or a
motion for new trial or reconsideration, in that a
petition for certiorarialso prevents the case from
becoming final and executory until after the matter
is ultimately resolved.
Indeed, Rule 120 of the Rules of Court speaks of the
finality of a criminal judgment once the accused
applies for probation, viz:
SECTION 7. Modification of judgment. — A judgment
of convictionmay, upon motion of the accused, be
modified or set aside before it becomes final or
before appeal is perfected. Except where the death
penalty is imposed, a judgment becomes finalafter
the lapse of the period for perfecting an appeal, or
whenthe sentence has been partially or totally
satisfied or served, or when the accusedhas waived
in writing his right to appeal, or has applied for
probation. (7a) (Emphases supplied)
Coupled with Section 7 of Rule 11725 and Section 1 of
Rule 122,26 it can be culled from the foregoing
provisions that only the accused may appeal the
criminal aspect of a criminal case, especially if the
relief being sought is the correction or review of the
judgment therein. This rule was instituted in order to
give life to the constitutional edict27 against putting a
person twice in jeopardy of punishment for the same
offense. It is beyond contention that the accused
would be exposed to double jeopardy if the state
appeals the criminal judgment in order to reverse an
acquittal or even to increase criminal liability. Thus,
the accused’s waiver of the right to appeal – as when
applying for probation – makes the criminal
judgment immediately final and executory. Our
explanation in People v. Nazareno is worth
reiterating:28
Further prosecution via an appeal from a judgment
of acquittal is likewise barred because the
government has already been afforded a complete
opportunity to prove the criminal defendant’s
culpability; after failing to persuade the court to
enter a final judgment of conviction, the underlying
reasons supporting the constitutional ban on
multiple trials applies and becomes compelling. The
reason is not only the defendant’s already
established innocence at the first trial where he had
been placed in peril of conviction, but also the same
untoward and prejudicial consequences of a second
trial initiated by a government who has at its
disposal all the powers and resources of the State.
Unfairness and prejudice would necessarily result, as
the government would then be allowed another
opportunity to persuade a second trier of the
83 | P a g e
defendant’s guilt while strengthening any
weaknesses that had attended the first trial, all in a
process where the government’s power and
resources are once again employed against the
defendant’s individual means. That the second
opportunity comesvia an appeal does not make the
effects any less prejudicial by the standards of
reason, justice and conscience. (Emphases supplied,
citations omitted)
It must be clarified, however, that the finality of
judgment evinced in Section 7 of Rule 120 does not
confer blanket invincibility on criminal judgments.
We have already explained in our Decision that the
rule on double jeopardy is not absolute, and that this
rule is inapplicable to cases in which the state assails
the very jurisdiction of the court that issued the
criminal judgment.29 The reasoning behind the
exception is articulated in Nazareno, from which we
quote:30
In such instance, however, no review of facts and
law on the merits, in the manner done in an appeal,
actually takes place; the focus of the review is on
whether the judgment is per sevoid on jurisdictional
grounds, i.e., whether the verdict was rendered by a
court that had no jurisdiction; or where the court has
appropriate jurisdiction, whether it acted with grave
abuse of discretion amounting to lack or excess of
jurisdiction. In other words, the review is on the
question of whether there has been a validly
rendered decision, not on the question of the
decision’s error or correctness. Under the
exceptional nature of a Rule 65 petition, the burden
— a very heavy one — is on the shoulders of the
party asking for the review to show the presence of a
whimsical or capricious exercise of judgment
equivalent to lack of jurisdiction; or of a patent and
gross abuse of discretion amounting to an evasion of
a positive duty or a virtual refusal to perform a duty
imposed by law or to act in contemplation of law; or
to an exercise of power in an arbitrary and despotic
manner by reason of passion and hostility.
(Emphases supplied, citations omitted) While this
Court’s Decision in Tan may have created an
impression of the unassailability of a criminal
judgment as soon as the accused applies for
probation, we point out that what the state filed
therein was a mere motion for the modification of
the penalty, and not a Rule 65 petition. A petition for
certiorari is a special civil action that is distinct and
separate from the main case. While in the main case,
the core issue is whether the accused is innocent or
guilty of the crime charged, the crux of a Rule 65
petition is whether the court acted (a) without or in
excess of its jurisdiction; or (b) with grave abuse of
discretion amounting to lack or excess of jurisdiction.
Hence, strictly speaking, there is nomodification of
judgment in a petition for certiorari, whose
resolution does not call for a re-evaluation of the
merits of the case in order to determine the ultimate
criminal responsibility of the accused. In a Rule 65
petition, any resulting annulment of a criminal
judgment is but a consequence of the finding of lack
of jurisdiction.
In view thereof, we find that the proper
interpretation of Section 7 of Rule 120 must be that
it is inapplicable and irrelevant where the court’s
jurisdiction is being assailed through a Rule 65
petition. Section 7 of Rule 120 bars the modification
of a criminal judgment only if the appeal brought
before the court is in the nature of a regular appeal
under Rule 41, or an appeal by certiorari under Rule
45, and if that appeal would put the accused in
double jeopardy. As it is, we find no irregularity in
the partial annulment of the CA Decision in CA-G.R.
No. 15520 in spite of its finality, as the judgment
therein was issued with grave abuse of discretion
amounting to lack or excess of jurisdiction.
The orders of Caloocan City RTC
Branch 130 have no legal effect, as
they were issued without jurisdiction.
First, Tecson et al. filed their Applications for
Probation with the wrong court. Part and parcel of
our criminal justice system is the authority or
jurisdiction of the court to adjudicate and decide the
case before it. Jurisdiction refers to the power and
capacity of the tribunal to hear, try, and decide a
particular case or matter before it.31 That power and
capacity includes the competence to pronounce a
judgment, impose a punishment,32 and enforce or
suspend33 the execution of a sentencein accordance
with law.
The OSG questions34 the entire proceedings involving
the probation applications of Tecson et al. before
Caloocan City RTC Branch 130. Allegedly, the trial
court did not have competence to take cognizance of
the applications, considering that it was not the
court of origin of the criminal case. The OSG points
out that the trial court that originally rendered the
Decision in Criminal Case No. C-38340(91) was
Branch 121 of the Caloocan City RTC.
The pertinent provision of the Probation Law is
hereby quoted for reference:
SEC. 4. Grant of Probation. — Subject to the
provisions of this Decree, the trial court may, after it
shall have convicted and sentenced a defendant, and
upon application by said defendant within the period
for perfecting an appeal, suspend the execution of
the sentence and place the defendant on probation
for such period and upon such terms and conditions
as it may deem best; Provided, That no application
for probation shall be entertained or granted if the
defendant has perfected the appeal from the
judgment of conviction. x x x x (Emphases supplied)
84 | P a g e
It is obvious from the foregoing provision that the
law requires that an application for probation be
filed withthe trial court that convicted and
sentenced the defendant, meaning the court of
origin. Here, the trial court that originally convicted
and sentenced Tecson et al.of the crime of homicide
was Branch 121 – not Branch 130 – of the Caloocan
City RTC.35 Neither the judge of Branch 130 in his
Orders nor Tecson et al.in their pleadings have
presented any explanation or shown any special
authority that would clarify why the Applications for
Probation had not been filed with or taken
cognizance of by Caloocan City RTC Branch 121.
While we take note that in a previous case, the CA
issued a Decision ordering the inhibition of Branch
121 Judge Adoracion G. Angeles from hearing and
deciding Criminal Case No. C-38340(91), the ruling
was made specifically applicable to the trial of
petitioners therein, i.e. accused Concepcion, Ampil,
Adriano, and S. Fernandez.36
Tecson et al. thus committed a fatal error when they
filed their probation applications with Caloocan City
RTC Branch 130, and not with Branch 121. We stress
that applicants are not at liberty to choose the forum
in which they may seek probation, as the
requirement under Section 4 of the Probation law is
substantive and not merely procedural. Considering,
therefore, that the probation proceedings were
premised on an unwarranted exercise of authority,
we find that Caloocan City RTC Branch 130 never
acquired jurisdiction over the case.
Second, the records of the casewere still with the CA
when Caloocan City RTC Branch 130 granted the
probation applications. Jurisdiction over a case is
lodged with the court in which the criminal action
has been properly instituted.37 If a party appeals the
trial court’s judgment or final order,38 jurisdiction is
transferred to the appellate court. The execution of
the decision is thus stayed insofar as the appealing
party is concerned.39 The court of origin then loses
jurisdiction over the entire case the moment the
other party’s time to appeal has expired. 40 Any
residual jurisdiction of the court of origin shall cease
– including the authority to order execution pending
appeal – the moment the complete records of the
case are transmitted to the appellate
court.41 Consequently, it is the appellate court that
shall have the authority to wield the power to hear,
try, and decide the case before it, as well as to
enforce its decisions and resolutions appurtenant
thereto. That power and authority shall remain with
the appellate court until it finally disposes of the
case. Jurisdiction cannot be ousted by any
subsequent event, even if the nature of the incident
would have prevented jurisdiction from attaching in
the first place.
According to Article 78 of the Revised Penal Code,
"[n]o penalty shall be executed except by virtue of a
final judgment." A judgment of a court convicting or
acquitting the accused of the offense charged
becomes final under any of the following conditions
among others:42 after the lapse of the period for
perfecting an appeal; when the accused waives the
right to appeal; upon the grant of a withdrawal ofan
appeal; when the sentence has already been
partially or totally satisfied or served; or when the
accused applies for probation. When the decision
attains finality, the judgment or final order is entered
in the book of entries of judgments. 43 If the case was
previously appealed to the CA, a certified true copy
of the judgment or final order must be attached to
the original record, which shall then be remanded to
the clerk of the court from which the appeal was
taken.44 The court of origin then reacquires
jurisdiction over the case for appropriate action. It is
during this time that the court of origin may settle
the matter of the execution of penalty or the
suspension of the execution thereof,45 including the
convicts’ applications for probation.46
A perusal of the case records reveals that the CA had
not yet relinquished its jurisdiction over the case
when Caloocan City RTC Branch 130 took cognizance
of the Applications for Probation of Tecson et al. It
shows that the accused filed their respective
applications47 while a motion for reconsideration
was still pending before the CA48 and the records
were still with that court.49 The CA settled the
motion only upon issuing the Resolution dated 30
August 2002 denying it, or about seven months after
Tecson et al. had filed their applications with the trial
court.50 In September 2002, or almost a month
before the promulgation of the RTC Order dated 11
October 2002 granting the probation
applications,51 the OSG had filed Manifestations of
Intent to File Petition for Certiorari with the CA52 and
this Court.53 Ultimately, the OSG assailed the CA
judgments by filing before this Court a Petition for
Certiorari on 25 November 2002.54 We noted the
petition and then required respondents to file a
comment thereon.55 After their submission of
further pleadings and motions, we eventually
required all parties to file their consolidated
memoranda.56 The records of the case remained
with the CA until they were elevated to this Court in
2008.57
For the foregoing reasons, we find that RTC Branch
130 had no jurisdiction to act on the probation
applications of Tecson et al. It had neither the power
nor the authority to suspend their sentence, place
them on probation, order their final discharge, and
eventually declare the case against them terminated.
This glaring jurisdictional faux pasis a clear evidence
of either gross ignorance of the law oran
underhanded one-upmanship on the part of RTC
Branch 130 or Tecson et al., or both – to which this
Court cannot give a judicial imprimatur.
In any event, Tecson et al. were ineligible to seek
probation at the time they applied for it.
85 | P a g e
Probation58 is a special privilege granted by the state
to penitent qualified offenders who immediately
admit their liability and thus renounce their right to
appeal. In view of their acceptance of their fate and
willingness to be reformed, the state affords them a
chance to avoid the stigma of an incarceration
recordby making them undergo rehabilitation
outside of prison. Some of the major purposes of the
law are to help offenders to eventually develop
themselves into law-abiding and self respecting
individuals, as well as to assist them in their
reintegration with the community.
It must be reiterated that probation is not a right
enjoyed by the accused. Rather, it is an act of grace
orclemency conferred by the state. In Francisco v.
Court of Appeals,59 this Court explained thus:
It is a special prerogative granted by law to a person
or group of persons not enjoyed by others or by all.
Accordingly, the grant of probation rests solely upon
the discretion of the court which is to be exercised
primarily for the benefit of organized society, and
only incidentally for the benefit of the accused. The
Probation Law should not therefore be permitted to
divest the state or its government of any of the
latter’s prerogatives, rights or remedies, unless the
intention of the legislature to this end is clearly
expressed, and no person should benefit from the
terms of the law who is not clearly within them.
(Emphases supplied)
The OSG questions the validity of the grant of the
probation applications of Tecson et al.60 It points out
that when they appealed to the CA their homicide
conviction by the RTC, they thereby made
themselves ineligible to seek probation pursuant to
Section 4 of Presidential Decree No. 968 (the
Probation Law).
We refer again to the full text ofSection 4 of the
Probation Law as follows:
SEC. 4. Grant of Probation. — Subject to the
provisions of this Decree, the trial court may, after it
shall have convicted and sentenced a defendant, and
upon application by said defendant within the period
for perfecting an appeal, suspend the execution of
the sentence and place the defendant on probation
for such period and upon such terms and conditions
as it may deem best; Provided, That no application
for probation shall be entertained or granted if the
defendant has perfected the appeal from the
judgment of conviction.
Probation may be granted whether the sentence
imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial
court. The filing of the application shall be deemed a
waiver of the right to appeal.
An order granting or denying probation shall not be
appealable. (Emphases supplied)
Indeed, one of the legal prerequisites of probation is
that the offender must not have appealed the
conviction.61 In the 2003 case Lagrosa v. Court of
Appeals,62 this Court was faced with the issue of
whether a convict may still apply for probation even
after the trial court has imposed a non probationable
verdict, provided that the CA later on lowers the
original penalty to a sentence within the
probationable limit. In that case, the trial court
sentenced the accused to a maximum term of eight
years of prisión mayor, which was beyond the
coverage of the Probation Law. They only became
eligible for probation after the CA reduced the
maximum term of the penalty imposed to 1 year, 8
months and 21 days of prisión correccional.
In deciding the case, this Court invoked the
reasoning in Francisco and ruled that the accused
was ineligiblefor probation, since they had filed an
appeal with the CA. In Francisco, we emphasized
that Section 4 of the Probation Law offers no
ambiguity and does not provide for any distinction,
qualification, or exception. What is clearis that all
offenders who previously appealed their cases,
regardless of their reason for appealing, are
disqualified by the law from seeking probation.
Accordingly, this Court enunciated in Lagrosathat the
accused are disallowed from availing themselves of
the benefits of probation if they obtain a genuine
opportunity to apply for probation only on appeal as
a result of the downgrading of their sentence from
non-probationable to probationable.
While Lagrosa was promulgated three months after
Caloocan City RTC Branch 130 issued its various
Orders discharging Tecson et al. from probation, the
ruling in Lagrosa, however, was a mere reiteration of
the reasoning of this Court since the 1989 case
Llamado v. Court of Appeals63 and Francisco. The
Applications for Probation of Tecson et al., therefore,
should not have been granted by RTC Branch 130, as
they had appealed their conviction to the CA. We
recall that respondents were originally found guilty
of homicide and sentenced to suffer 14 years, 8
months, and 1 day of reclusion temporal as
maximum. Accordingly, even if the CA later
downgraded their conviction to slight physical
injuries and sentenced them to 20 days of arresto
menor, which made the sentence fall within
probationable limits for the first time, the RTC
should have nonetheless found them ineligible for
probation at the time.
The actions of the trial court must thus be adjudged
as an arbitrary and despotic use of authority, so
gross that it divested the court of its very power to
dispense justice. As a consequence, the RTC Orders
86 | P a g e
granting the Applications for Probation of Tecson et penalties, liability therefor is extinguished
al. and thereafter discharging them from their only when the death of the offender occurs
criminal liability must be deemed to have been before final judgment.
issued with grave abuse of discretion amounting to
lack or excess of jurisdiction. 2. By service of the sentence.
Whether for lack of jurisdiction orfor grave abuse of 3. By amnesty, which completely
discretion, amounting to lack or excess of extinguishes the penalty and all its effects.
jurisdiction, we declare all orders, resolutions, and
judgments of Caloocan City RTC Branch 130 in 4. By absolute pardon.
relation to the probation applications of Tecson et al.
null and void for having been issued without
5. By prescription of the crime.
jurisdiction. We find our pronouncement in Galman
v. Sandiganbayan64 applicable, viz:
6. By prescription of the penalty.
A void judgment is, in legal effect, no judgment at all.
By it no rights are divested. Through it, no rights can 7. By the marriage of the offended woman,
as provided in article 344 of this Code.
be attained. Being worthless, all proceedings
(Emphasis supplied)
founded upon it are equally worthless. It neither
binds nor bars anyone. All acts performed under it
and all claims flowing out of it are void. (Emphasis As previously discussed, a void judgment cannot be
supplied) the source of legal rights; legally speaking, it is as if
no judgment had been rendered at all. Considering
our annulment of the Orders of Caloocan City RTC
The ultimate discharge of Tecson et
Branch 130 in relation to the probation proceedings,
al. from probation did not totally
respondents cannot claim benefits that technically
extinguish their criminal liability.
do not exist.
Accused Bantug asserts65 that, in any event, their
In any event, Tecson et al.cannot invoke Article89 of
criminal liability has already been extinguished as a
the Revised Penal Code, as we find it inapplicable to
result of their discharge from probation and the
this case. One of the hallmarks of the Probation Law
eventual termination of the criminal case against
is precisely to "suspend the execution of the
them by Caloocan City RTC Branch 130. To support
sentence,"66 and not to replace the original sentence
his argument, he cites the following provision of the
with another, as we pointed out in our discussion in
Revised Penal Code:
Baclayon v. Mutia:67
ARTICLE 89. How Criminal Liability is Totally
An order placing defendant on "probation" is not a
Extinguished. — Criminal liability is totally
"sentence" but is rather in effect a suspension of the
extinguished:
imposition of sentence. It is not a final judgment but
is rather an "interlocutory judgment"in the nature of
1. By the death of the convict, as to the
a conditional order placing the convicted defendant
personal penalties; and as to pecuniary
under the supervision of the court for his
reformation, to be followed by a final judgment of
discharge, if the conditions of the probation are
complied with, or by a final judgment of sentence if
the conditions are violated. (Emphases supplied)
Correspondingly, the criminal liability of Tecson et
al.remains.
In light of our recent Decision in
Colinares v. People, Tecson et al.
may now reapply for probation.
Very recently, in Colinares v. People,68 we revisited
our ruling in Franciscoand modified our
pronouncements insofar as the eligibility for
probation of those who appeal their conviction is
concerned. Through a majority vote of 9-6, the Court
En Bancin effect abandoned Lagrosaand settled the
following once and for all:69
Secondly, it is true that under the probation law the
accused who appeals "from the judgment of
conviction" is disqualified from availing himself of
the benefits of probation. But, as it happens, two
judgments of conviction have been meted out to
Arnel: one, a conviction for frustrated homicide by
the regional trial court,now set aside; and, two, a
conviction for attempted homicide by the Supreme
Court.
If the Court chooses to go by the dissenting opinion’s
hard position, it will apply the probation law on
Arnel based on the trial court’s annulled judgment
against him. He will not be entitled to probation
because of the severe penalty that such judgment
imposed on him. More, the Supreme Court’s
judgment of conviction for a lesser offense and a
lighter penalty will also have to bend over to the trial
court’s judgment — even if this has been found in
error. And, worse, Arnel will now also be made to
pay for the trial court’s erroneous judgment with the
87 | P a g e
forfeiture of his right to apply for probation. Ang
kabayo ang nagkasala, ang hagupit ay sa kalabaw(the
horse errs, the carabao gets the whip). Where is
justice there?
The dissenting opinion also expresses apprehension
that allowing Arnel to apply for probation would
dilute the ruling of this Court in Francisco v. Court of
Appealsthat the probation law requires that an
accused must not have appealed his conviction
before he can avail himself of probation. But there is
a huge difference between Franciscoand this case.
xxxx
Here, however, Arnel did not appeal from a
judgment that would have allowed him to apply for
probation. He did not have a choice between appeal
and probation. Hewas not in a position to say, "By
taking this appeal, I choose not to apply for
probation." The stiff penalty that the trial court
imposed on him denied him that choice. Thus, a
ruling that would allow Arnel to now seek probation
under this Court’s greatly diminished penalty will not
dilute the sound ruling in Francisco. It remains that
those who will appeal from judgments of conviction,
when they have the option to try for probation,
forfeit their right to apply for that privilege.
xxxx
In a real sense, the Court’s finding that Arnel was
guilty, not of frustrated homicide, but only of
attempted homicide, is an original conviction that for
the first time imposes on him a probationable
penalty. Had the RTC done him right from the start,
it would have found him guilty of the correct offense
and imposed on him the right penalty of two years
and four months maximum. This would have
afforded Arnel the right to apply for probation.
The Probation Law never intended to deny an
accused his right to probation through no fault of
his. The underlying philosophy of probation is one of
liberality towards the accused. Such philosophy is
not served by a harsh and stringent interpretation of
the statutory provisions. As Justice Vicente V.
Mendoza said in his dissent in Francisco, the
Probation Law must not be regarded as a mere
privilege to be given to the accused only where it
clearly appears he comes within its letter; to do so
would be to disregard the teaching in many cases
that the Probation Law should be applied in favor of
the accused not because it is a criminal law but to
achieve its beneficent purpose.
xxxx
At any rate, what is clear is that, had the RTC done
what was right and imposed on Arnel the correct
penalty of two years and four months maximum, he
would havehad the right to apply for probation. No
one could say with certainty that he would have
availed himself of the right had the RTC doneright by
him. The idea may not even have crossed his mind
precisely since the penalty he got was not
probationable.
The question in this case is ultimately one of
fairness.1âwphi1 Is it fair to deny Arnel the right to
apply for probation when the new penalty that the
Court imposes on him is, unlike the one erroneously
imposed by the trial court, subject to probation?
(Emphases supplied)
In our Decision, we set aside the RTC and the CA
judgments and found Tecson et al.ultimately liable
for the crime of reckless imprudence resulting in
homicide. Pursuant to Article 365 of the Revised
Penal Code, the offense is punishable by arresto
mayor in its maximum period (from 4 months and 1
day to 6 months) to prisión correccional in its
medium period (from 2 years, 4 months, and 1 day
to 4 years and 2 months). Considering that the new
ruling in Colinares is more favorable to Tecson et al.,
we rule that they are now eligible to apply for
probation. Since Fidelito Dizon (Dizon) was convicted
of the same crime, we hereby clarify that Dizon is
also eligible for probation.
While we cannot recognize the validityof the Orders
of RTC Branch 130, which granted the Applications
for Probation, we cannot disregard the fact that
Tecson et al. have fulfilled the terms and conditions
of their previous probation program and have
eventually been discharged therefrom. Thus, should
they reapply for probation, the trial court may, at its
discretion, consider their antecedent probation
service in resolving whether to place them under
probation at this time and in determining the terms,
conditions, and period thereof.
Final clarificatory matters
We now take this opportunity to correct an
unintentional typographical error in the minimum
term of the penalty imposed on the accused Dizon
and Tecson et al. While this issue was not raised by
any of the parties before us, this Court deems it
proper to discuss the matter ex proprio motuin the
interest of justice. In the first paragraph of the
dispositive portion of our Decision dated 1 February
2012, the fourth sentence reads as follows:
They are hereby sentenced to suffer
anindeterminate prison term of four (4) months and
one (1) day of arresto mayor, as minimum, to four
(4) years and two (2) months of prisión correccional,
as maximum.
As we had intended to impose on the accused the
maximum term of the "penalty next lower" than that
prescribed by the Revised Penal Code for the offense
88 | P a g e
of reckless imprudence resulting in homicide, in
accordance with the Indeterminate Sentence Law
(ISL),70 the phrase "and one (1) day," which had been
inadvertently added, must be removed.
Consequently, in the first paragraph of the
dispositive portion, the fourth sentence should now
read as follows:
They are hereby sentenced to suffer
anindeterminate prison term of four (4) months of
arresto mayor, as minimum, to four (4) years and
two (2) months of prisión correccional, as maximum.
In this instance, we further find it important to clarify
the accessory penalties inherent to the principal
penalty imposed on Dizon and Tecson et al.
By operation of Articles 40 to 45 and 73 of the
Revised Penal Code, a corresponding accessory
penalty automatically attaches every time a court
lays down a principal penalty outlined in Articles 25
and 27 thereof.71 The applicable accessory penalty is
determined by using as reference the principal
penaltyimposed by the court before the prison
sentence is computed in accordance with the
ISL.72 This determination is made in spite of the two
classes ofpenalties mentioned in an indeterminate
sentence. It must be emphasized that the provisions
on the inclusion of accessory penalties specifically
allude to the actual "penalty"73 imposed, not to the
"prison sentence"74 set by a court. We believe that
the ISL did not intend to have the effect of imposing
on the convict two distinct sets of accessory
penalties for the same offense.75 The two penalties
are only relevant insofar as setting the minimum
imprisonment period is concerned, after which the
convict may apply for parole and eventually seek the
shortening of the prison term.76
Under Article 365 of the Revised Penal Code, the
prescribed penalty for the crime of reckless
imprudence resulting in homicide is arresto mayor in
its maximum period to prisión correccionalin its
medium period. As this provision grants courts the
discretion tolay down a penalty without regard to
the presence of mitigating and aggravating
circumstances, the imposable penaltymust also be
within the aforementioned range.77 Hence, before
applying the ISL, we ultimately imposed on Dizon
and Tecson et al. the actual (straight) penalty78 of
four years and two months of prisión
correccional.79 Pursuant to Article 43 of the Revised
Penal Code, the penalty of prisión correccional
automatically carries with it80 the following
accessory penalties: ARTICLE 43. Prisión
Correccional— Its accessory penalties. — The
penalty of prisión correccional shall carry with it that
of suspension from public office, from the right
tofollow a profession or calling, and that of
perpetual special disqualification from the right of
suffrage, if the duration of said imprisonment shall
exceed eighteen months. The offender shall suffer
the disqualification provided in this article although
pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the
pardon.
The duration of their suspension shall be the same as
that of their principal penalty sans the ISL; that is, for
four years and two months81 or until they have
served their sentence in accordance with law. Their
suspension takes effect immediately, once the
judgment of conviction becomes final.82
We further point out that if the length of their
imprisonment exceeds 18 months, they shall
furthermore suffer a perpetual special
disqualification from the right of suffrage. Under
Article 32 of the RevisedPenal Code, if this accessory
penalty attaches, it shall forever deprive them of the
exercise of their right (a) to vote in any popular
election for any public office; (b) to be elected to
that office; and (c) to hold any public office.83 Any
public office that they may be holding becomes
vacant upon finality of the judgment.84 The
aforementioned accessory penalties can only be
wiped out if expressly remitted in a pardon.85
Of course, the aforementioned accessory penalties
are without prejudice to a grant of probation,
shouldthe trial court find them eligible therefor. As
we explained in Baclayon,86 the grant of probation
suspends the execution of the principal penalty of
imprisonment, as well as that of the accessory
penalties. We have reiterated this point in Moreno v.
Commission on Elections:87
In Baclayon v. Mutia, the Court declared that an
order placing defendant on probation is not a
sentence but is rather, in effect, a suspension of the
imposition of sentence. We held that the grant of
probation to petitioner suspended the imposition of
the principal penalty of imprisonment, as well as the
accessory penalties of suspension from public office
and from the right to follow a profession or calling,
and that of perpetual special disqualification from
the right of suffrage. We thus deleted from the order
granting probation the paragraph which required
that petitioner refrain from continuing with her
teaching profession.
Applying this doctrine to the instant case, the
accessory penalties of suspension from public office,
from the right to follow a profession or calling, and
that of perpetual special disqualification from the
right of suffrage, attendant to the penalty of arresto
mayor in its maximum period to prision correccional
in its minimum period imposed upon Moreno were
similarly suspended upon the grant of probation.
It appears then that during the period of probation,
the probationer is not even disqualified from running
for a public office because the accessory penalty of
suspension from public office is put on hold for the
89 | P a g e
duration of the probation. x x x x. During the period
of probation, the probationer does not serve the
penalty imposed upon him by the court but is merely
required to comply with all the conditions prescribed
in the probation order.
WHEREFORE, premises considered, the Motion for
Partial Reconsideration of petitioner Gerarda H. Villa
in connection with G.R. Nos. 178057 & 178080 is
hereby DENIED. The Motion for Reconsideration
filed by the Office of the Solicitor General concerning
G.R. Nos. 155101 and 154954 is also DENIED.
The respective Motions for Clarification or
Reconsideration of Antonio Mariano Almeda, Junel
Anthony D. Arna, Renato Bantug, Jr., and Vincent
Tecson are likewise DENIED. In light of the finding
that Caloocan City Regional Trial Court Branch 130
acted without or in excess of its jurisdiction in taking
cognizance of the aforementioned Applications for
Probation, we hereby ANNUL the entire probation
proceedings and SET ASIDE all orders, resolutions, or
judgments issued in connection thereto. We,
however, CLARIFY that Antonio Mariano Almeda,
Junel Anthony D. Arna, Renato Bantug, Jr., Vincent
Tecson, and Fidelito Dizon are eligible to apply or
reapply for probation in view of our recent ruling in
Colinares v. People of the Philippines,88 without
prejudice to their remaining civil liability, if any.
Furthermore, we issue a CORRECTION of the
dispositive portion of our Decision dated 1 February
2012 and hereby delete the phrase "and one (1) day"
located in the fourth sentence of the first paragraph
thereof. The sentence shall now read as follows:
"They are hereby sentenced to suffer an
indeterminate prison term of four (4) months of
arresto mayor, as minimum, to four (4) years and
two (2) months of prisi6n correccional, as
maximum."
SO ORDERED.
MARIA LOURDES P.A. SERENO
Chief Justice
THIRD DIVISION
G.R. No. 182648, June 17, 2015
HERMAN MEDINA, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
PERALTA, J.:
This is a petition for review on certiorari under Rule
45 of the Rules of Court seeking to reverse and set
aside the January 7, 2008 Decision1 and April 21,
2008 Resolution2 of the Court of Appeals (CA) in CA-
G.R. CR No. 29634, which affirmed in toto the March
31, 2005 Decision3 of the Regional Trial Court (RTC),
Branch 35, Santiago City, Isabela, in Criminal Case
No. 35-4021 convicting petitioner Herman Medina
(Medina) of the crime of simple theft, defined and
penalized under Article 308, in relation to Article
309, Paragraph 1 of the Revised Penal Code (RPC).
The Information4 filed against Medina
states:chanroblesvirtuallawlibrary
That on or about the 27th day of April, 2002 and for
sometime thereafter, in the City of Santiago,
Philippines, within the jurisdiction of this Honorable
Court, the above-named accused, did then and
there, wilfully, unlawfully and feloniously, with
intent to gain and without the knowledge and
consent of the owner thereof, take, steal, and carry
away the following to wit: one (1) unit alternator
worth Php5,000.00, Starter worth Php5,000.00,
battery worth Php2,500.00[,] and two (2) sets of tire
2.75 x 15 with mugs worth Php10,000.00 all valued
at Php22,500.00, owned by HENRY LIM, represented
by PURTTA LIM[,] to the damage and prejudice of
the owner thereof in the total amount of
Php22,500.00.
CONTRARY TO LAW[.]
The factual antecedents appear as follows:
Henry Lim (Lim) is a resident of Calao West, Santiago
City, Isabela. He is the registered owner of a
Sangyong Korando Jeep with Plate No. WPC-207,
which was involved in an accident that caused
damage to its roof and door. On April 27, 2002, he
engaged the services of Medina, who is a mechanic
and maintains a repair shop in Buenavista, Santiago
City, Isabela. At the time the jeep was delivered to
Medina's shop, it was still in running condition and
serviceable because the under chassis was not
affected and the motor engine, wheels, steering
wheels and other parts were still functioning.
A reasonable time elapsed, but no repairs were
made on the jeep. So, in the morning of September
4, 2002, Purita Lim (Purita), Lim's sister, instructed
Danilo Beltran (Beltran) to retrieve the jeep from
Medina's shop on the agreement that he would
instead repair the vehicle in his own auto shop.
Beltran, however, was not able to get the jeep since
its alternator, starter, battery, and two tires with
rims worth P5,000.00, P5,000.00, P2,500.00, and
P10,000.00, respectively, could not be found. Upon
inquiry, Medina told him.that he took and installed
them on Lim's another vehicle, an Isuzu pick-up,
which was also being repaired in the shop. Beltran
went back in the afternoon of the same day and was
able to get the jeep, but without the missing parts.
He had it towed and brought it to his own repair
shop. Before placing the jeep therein, he reported
the incident to Purita. Later, the jeep was fully
repaired and put back in good running condition.
90 | P a g e
On September 12, 2002, a criminal complaint5 for
simple theft was filed by Purita, representing her
brother. The City Prosecutor found probable cause
to indict Medina.6 Subsequently, an Information was
filed before the court a quo.
In his arraignment, Medina pleaded not guilty.7 No
settlement, stipulation or admission was made by
the parties during the pre-trial.8 During the trial
proper, Beltran and Lim were presented as witnesses
for the prosecution, while Medina and a certain
Angelina Tumamao, a former barangay kagawad of
Buenavista, Santiago City, testified for the defense.
Eventually, the case was submitted for decision, but
without the formal offer of evidence by the
defense.9
The trial court found Medina guilty beyond
reasonable doubt of the crime charged. The fallo of
the March 31, 2005 Decision
reads:chanroblesvirtuallawlibrary
WHEREFORE, judgment is hereby rendered, finding
the accused guilty beyond reasonable doubt, and
considering the absence of mitigating [or]
aggravating circumstances and applying the
Indeterminate Sentence Law, the accused is hereby
sentenced to suffer the penalty of imprisonment of
three (3) years, six (6) months and twenty-one (21)
days of prision correccional as minimum, to eight (8)
years, eight (8) months and one (1) day of prision
mayor as maximum. The accused is likewise ordered
to indemnify Henry Lim the total amount of
P22,500.00. No imprisonment in case of insolvency.
SO ORDERED.10cralawlawlibrary
On appeal, the CA affirmed the conviction of
Medina. While the trial court was not convinced with
Medina's justification that he installed the jeep's
missing parts to the pick-up also owned by Lim, the
CA opined that his excuse is "so lame and flimsy."
The CA agreed with the lower court's findings that
Medina admitted that the jeep is more valuable than
the pickup; that unlike the pick-up, the needed
repairs on the jeep is only minor in nature; that
Medina failed to prove that the pick-up was
completely repaired and was placed in good running
condition; and that he failed to prove that the pick-
up is owned by Lim. The CA also held that the
positive testimony of Beltran deserves merit in
contrast with the self-serving testimony of Medina.
Finally, no credence was given to Medina's assertion
that the missing auto parts were turned over to
Crispin Mendoza, who is alleged to be an employee
of Lim. For the CA, the trial court correctly ruled that
such claim was unsubstantiated in view of Medina's
failure to formally offer in evidence the purported
acknowledgment receipt. Assuming that the
exception in Mato v. CA11 is taken into account, the
receipt could not still be considered because it was
not incorporated in the records of the case.
When his motion for reconsideration was denied,
Medina filed this petition which alleges the following
errors:chanroblesvirtuallawlibrary
I.
THE [HONORABLE] COURT OF APPEALS GRAVELY
ERRED WHEN IT AFFIRMED THE CONVICTION OF THE
PETITIONER DESPITE THE FACT THAT THE
PROSECUTION ONLY PRESENTED CIRCUMSTANTIAL
EVIDENCE IN THEIR ATTEMPT TO PROVE THE GUILT
OF THE ACCUSED BEYOND REASONABLE DOUBT.
WORST, IT SPECIFICALLY ADVANCED ONLY ONE
SINGLE CIRCUMSTANCE] THAT IS[,] THE TESTIMONY
OF PROSECUTION WITNESS DANILO BELTRAN THAT
THE STARTER, [ALTERNATOR], BATTERY[,] AND TWO
(2) PIECES [OF] TIRES WITH MUGS (MAG WHEELS) OF
THE KORANDO JEEP WERE SIMPLY MISSING, THUS[,]
NOT SUFFICIENT TO SUSTAIN CONVICTION IN
ACCORDANCE WITH SECTION 4, RULE 133 OF THE
RULES OF COURT.cralawlawlibrary
 II.
THE [HONORABLE] COURT OF APPEALS GRAVELY
ERRED IN AFFIRMING THE CONVICTION OF THE
PETITIONER DESPITE THE FACT THAT THE
PROSECUTION RELIED NOT ON THE STRENGTH OF
ITS EVIDENCE BUT ON THE WEAKNESS OF THE
DEFENSE CONTRARY TO THE RULING OF THE
HONORABLE COURT IN PHILIPPINES VS.
ALVARIO.cralawlawlibrary
III.
THE [HONORABLE] COURT OF APPEALS GRAVELY
ERRED WHEN IT [AFFIRMED] THE CONVICTION OF
THE PETITIONER DESPITE [THE] FACT [THAT] THERE
WAS NO FURTIVE TAKING OR UNLAWFUL
ASPORTATION, IN THE CRIMINAL SENSE,
CONSIDERING THAT THE TAKING, IF AT ALL, WAS
WITH THE KNOWLEDGE AND ACQUIESCENCE OF
THE. PRIVATE COMPLAINANT PURSUANT TO THE
RULING OF THE HONORABLE COURT IN ABUNDO VS.
SANDIGANBAYAN, ET AL. AND THE UNREBUTTED
EVIDENCE FOR THE DEFENSE.cralawlawlibrary
IV.
THE HONORABLE COURT GRAVELY ERRED IN NOT
CONSIDERING THE RECEIPT MARKED AS EXHIBIT "2"
FOR THE DEFENSE, LIKEWISE MARKED AS EXHIBIT
"C" FOR THE PROSECUTION (COMMON EVIDENCE)
NOT FORMALLY OFFERED IN EVIDENCE DUE TO THE
GROSS NEGLIGENCE OF THE FORMER COUNSEL FOR
THE PETITIONER IN THE GREATER INTEREST OF
JUSTICE, ONE OF THE EXCEPTIONS PROVIDED FOR BY
THE HONORABLE COURT IN SARRAGA, SR. VS.
BANCO FILIPINO SAVINGS AND MORTGAGE
BANK.12cralawlawlibrary
We deny.
Theft is committed by any person who, with intent
91 | P a g e
to gain, but without violence against or intimidation
of persons nor force upon things, shall take personal
property of another without the latter's
consent.13 As defined and penalized, the elements of
the crime are: (1) there was taking of personal
property; (2) the property belongs to another; (3)
the taking was done with intent to gain; (4) the
taking was without the consent of the owner; and (5)
the taking was accomplished without the use of
violence against, or intimidation of persons or force,
upon things.14 Intent to gain or animus lucrandi is an
internal act that is presumed from the unlawful
taking by the offender of the thing subject of
asportation.15 Although proof as to motive for the
crime is essential when the evidence of the theft is
circumstantial, the intent to gain is the usual motive
to be presumed from all furtive taking of useful
property appertaining to another, unless special
circumstances reveal a different intent on the part of
the perpetrator.16 As to the concept of "taking" —
The only requirement for a personal property to be
the objeGt of theft under the penal code is that it be
capable of appropriation. It need not be capable of
"asportation," which is defined as "carrying away."
Jurisprudence is settled that to "take" under the
theft provision of the penal code does not require
asportation or carrying away.
To appropriate means to deprive the lawful owner of
the thing. The word "take"' in the Revised Penal
Code includes any act intended to transfer
possession which x x x may be committed through
the use of the offenders' own hands, as well as any
mechanical device x x x.17cralawlawlibrary
In this case, Medina acknowledged without
hesitation the taking of the jeep's alternator, starter,
battery, and two tires with magwheels, but he put
up the defense that they were installed in the pick-
up owned by Lim.18 With such admission, the burden
of evidence is shifted on him to prove that the
missing parts were indeed lawfully taken. Upon
perusal of the transcript of stenographic notes, the
Court finds that Medina unsatisfactorily discharged
the burden. Even bearing in mind the testimony of
Tumamao, he failed to substantiate, through the
presentation of supporting documentary evidence or
corroborative testimony, the claims that: (1) Lim was
the owner of the pick-up; (2) the missing parts of the
jeep were exactly the same items that were placed
in the pick-up; (3) Lim consented, expressly or
impliedly, to the transfer of auto parts; and (4)
Mendoza witnessed the removal of the spare parts
from, the jeep and their placement to the pick-up.
Neither did Medina adduce any justifying19 or
exempting20 circumstance to avoid criminal liability.
On the contrary, Lim firmly testified that when he
entrusted to Medina the jeep's repair it was still in
running condition and complete with alternator,
starter, battery, and tires, which went missing by the
time the vehicle was recovered from the auto
shop.21 Likewise, the testimony of Beltran is definite
and straightforward. He declared that he was not
able to get the jeep in the morning of September 4,
2002 because its alternator, starter, battery, and two
tires with rims could not be found, and that when he
asked Medina as to their whereabouts the latter told
him that he took them, placed the starter in Lim's
pick-up while the alternator was in the repair
shop.22 Medina informed him that the jeep's missing
parts were actually installed to Lim's other vehicle
which was also being repaired at the
time.23 However, Beltran did not know or had not
seen other vehicles owned by Lim at Medina's
shop.24 In the afternoon of the same day, he was
able to get the jeep but not its missing parts.25 He
concluded that they were lost because he inspected
the jeep.26
Abundo v. Sandiganbayan,27 which was relied upon
by Medina, does not apply. In said case, the element
of lack of owner's consent to the taking of the junk
chassis was absent since the records showed that
Abundo made a request in writing to be allowed to
use one old jeep chassis among the pile of junk
motor vehicles. His request was granted. A
memorandum receipt was issued and signed.
Pursuant thereto, the chassis was taken out. There
was no furtive taking or unlawful asportation. The
physical and juridical possession of the junk chassis
was transferred to Abundo at his request, with the
consent or acquiescence of the owner, the
Government, represented by the public officials who
had legal and physical possession of it. We noted
that the crime of theft implies an invasion of
possession; therefore, there can be no theft when
the owner voluntarily parted with the possession of
the thing. The Court agreed with the observation of
the Solicitor General that a thief does not ask for
permission to steal. Indeed, a taking which is done
with the consent or acquiescence of the owner of
the property is not felonious.28
Medina cannot acquit himself on the basis of a
purported acknowledgment receipt29 that he and
Tumamao identified during their presentation as
witnesses for the defense. According to his
testimony, Mendoza came to his (Medina's) place
and saw the subject auto parts while being
transferred from the jeep to the pick-up and that,
relative thereto, Medina even called barangay
officials and let them signed a document to bear
witness on the matter.30 The document, dated July
25, 2002, which was marked as Exhibit "2," was
signed by Mendoza, Jovy Bardiaga (said to be Lim's
chief mechanic), Mario Pascual (said to be Medina's
helper), and Rosalina Bautista and Tumamao (said to
be barangay kagawads). Ostensibly, they signed the
document while facing each#other in front of
Medina's house.31
In Mato v. CA,32 which referred to People v. Napat-
a,33 citing People v. Mate,34 We relaxed the
92 | P a g e
application of Section 34, Rule 13235 of the Rules of
Court by allowing the admission of evidence not
formally offered. To be admissible, however, two
essential conditions must concur: first, the same
must have been duly identified by testimony duly
recorded and, second, the same must have been
incorporated in the records of the case. 36
As regards this case, the acknowledgment receipt
was not considered by the trial court because it was
not formally offered in evidence. While it was duly
identified by the defense testimony that was duly
recorded, the receipt itself was not incorporated in
the case records. For its part, the CA opined that
nowhere from the case records does Medina's
acknowledgment receipt appear. Yet, upon
examinatipn, it appears that the July 25, 2002
acknowledgment receipt was attached as Annex "3"
of Medina's Appellant's Brief.37 Accordingly, the CA
should have mulled over this piece of document,
especially so since the prosecution even prayed, and
was granted, during the trial proper that said receipt
be marked as Exhibit "C."38
Nevertheless, even if this Court admits in evidence
the acknowledgment receipt, the same would still
not exonerate Medina. This is due to his admission
that Bardiaga, Pascual, and Bautista did not actually
see him remove the alternator, starter, battery, and
tires with rims from the jeep and put the same to the
pick-up.39 Likewise, while Medina asserted that
Mendoza came to his place and was shown that the
missing auto parts were transferred from the jeep to
the pick-up, the latter was not presented as a hostile
witness to confirm such expedient claim.
As against the positive and categorical testimonies of
the prosecution witnesses, Medina's mere denials
cannot prevail for being self-serving and
uncorroborated. Denial is considered with suspicion
and always received with caution because it is
inherently weak and unreliable, easily fabricated and
concocted.40ChanRoblesVirtualawlibrary
Denial, essentially a negation of a fact, does not
prevail over an affirmative assertion of the fact.
Thus, courts - both trial and appellate have generally
viewed the defense of denial in criminal cases with
considerable caution, if not with outright rejection.
Such judicial attitude comes from the recognition
that denial is inherently weak and unreliable by
virtue of its being an excuse too easy and too
convenient for the guilty to make. To be worthy of
consideration at all, denial should be substantiated
by clear and convincing evidence. The accused
cannot solely rely on her negative and self-serving
negations, for denial carries no weight in law and has
no greater evidentiary value" than the testimony of
credible witnesses who testify on affirmative
matters.41cralawlawlibrary
Further, Medina did not demonstrate any evidence
of ill motive on the part of the prosecution witnesses
as to falsely testify against him. In the absence of any
evidence that the prosecution witnesses were
motivated by improper motives, the trial court's
assessment of the credibility of the witnesses shall
not be interfered with by this Court.42
There being no compelling reason to disregard the
same, the Court yields to the factual findings of the
trial court, which were affirmed by the CA. This is in
line with the precept that when the trial court's
findings have been affirmed by the appellate court,
said findings are generally conclusive and binding
upon Us.43 It is only in exceptional circumstances,
such as when the trial court overlooked material and
relevant matters, that We will recalibrate and
evaluate the factual findings of the court below.44 As
held in Co Kiat v. Court of
Appeals:45ChanRoblesVirtualawlibrary
It is a well-settled doctrine in this jurisdiction, that
factual findings of the trial court are entitled to great
weight and authority (Macua vs. Intermediate
Appellate Court, 155 SCRA 29) and that the
jurisdiction of the Supreme Court in cases brought to
it from the Court of Appeals, is limited to reviewing
and revising the errors of law imputed to it, its
findings of facts being conclusive (Chan vs. Court of
Appeals, 33 SCRA 737).
In a petition for review of decisions of the Court of
Appeals, the jurisdiction of this Court is confined to
reviewing questions of law, unless the factual
findings are totally bereft of support in the records
or are so glaringly erroneous as to constitute a
serious abuse of discretion (Canete, et al. vs. Court of
Appeals, 171 SCRA 13).
Except in criminal cases in which the penalty
imposed is reclusion perpetua or higher, appeals to
the Supreme Court are not a matter of right but of
sound judicial discretion and are allowed only on
questions of law and only when there are special and
important reasons, which we do not find in this case
(Balde vs. Court of Appeals, 150 SCRA
365).46cralawlawlibrary
Now on the propriety of the penalty imposed by the
trial court:
Under Article 309 of the RPC, an accused found
guilty of simple theft when the value of the stolen
property exceeds P22,000.00 shall be sentenced
to:chanroblesvirtuallawlibrary
Art. 309. Penalties. - Any person guilty of theft shall
be punished by:
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 exceed 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
93 | P a g e
not exceed twenty years. In such cases, and in Three (3) years, Six (6) months and Twenty-One (21)
connection with the accessory penalties which may days of prision correccional, as minimum, to Eight (8)
be imposed and for the purpose of the other years, Eight (8) months and One (1) day of prision
provisions of this Code, the penalty shall be mayor, as maximum.50
termed prision mayor or reclusion temporal, as the
case may be.47cralawlawlibrary WHEREFORE, premises considered, the Petition
is DENIED. The January 7, 2008 Decision and April 21,
Applying the Indeterminate Sentence Law, the
2008 Resolution of the Court of Appeals in CA-G.R.
maximum of the indeterminate penalty is that
which, taking into consideration the attending CR. No. 29634, which affirmed in toto the March 31,
circumstances, could be properly imposed under the 2005 Decision of the Regional Trial Court, Branch 35,
Santiago City, Isabela, in Criminal Case No. 35-4021
RPC.48 As the value of the auto parts stolen from Lim
convicting Herman Medina for the crime of simple
is in excess of P22,000.00, the penalty imposable is
the maximum period of the penalty prescribed by theft, is hereby AFFIRMED.
Article 309, which is the maximum of prision
mayor in its minimum and medium periods. Since SO ORDERED.chanroblesvirtuallawlibrary
the penalty prescribed is composed of only two
periods, Article 65 of the RPC requires the division Republic of the Philippines
SUPREME COURT
into three equal portions the time included in the
Manila
penalty, forming one period of each of the three
portions. Thus, the minimum, medium, and
maximum periods of the penalty prescribed SECOND DIVISION
are:chanroblesvirtuallawlibrary
Minimum - 6 years and 1 day to 7 years and 4
months
Medium - 7 years, 4 months and 1 day to 8 years and
8 months
Maximum - 8 years, 8 months, and 1 day to 10 years G.R. Nos. 94992-93. April 7, 1993.
The minimum of the indeterminate penalty shall be PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
anywhere within the range of the penalty next lower vs.
in degree to that prescribed for the offense, without BENJAMIN RAMIREZ SARINO, CHARLITO RAMIREZ
first considering any modifying circumstance SARINO and OSCAR FLORA, alias "OCA," accused.
attendant to the commission of the crime.49 In this BENJAMIN RAMIREZ SARINO and OSCAR FLORA, alias
case, the penalty next lower in degree to that "OCA", accused-appellants.
prescribed for the offense is prisicn correccional in its
medium and maximum periods, or anywhere from
The Solicitor General for plaintiff-appellee.
Two (2) years, Four (4) months and One (1) day to Six
(6) years.
Nestor S. Lazaro for Benjamin R. Sarino.
Thus, the trial court did not err when it sentenced
Medina to suffer the penalty of imprisonment of Felicisimo Chavez-Ilagan for Oscar Flora.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY;
FINDINGS OF FACTS OF TRIAL COURT, GENERALLY
NOT DISTURBED ON APPEAL. — The appellate courts
will not disturb the factual findings of the trial court,
especially as to credibility of witnesses; that
conclusions and findings of fact by the trial court are
entitled to great weight on appeal and should not be
disturbed except for strong and cogent reasons
because the trial court is in a better position to
examine real evidence, as well as to observe the
demeanor of the witnesses while testifying.
2. ID.; ID.; ID.; IDENTIFICATION MADE BY WITNESS
WHO DOES NOT APPEAR TO BE BIASED AND WHERE
VISIBILITY IS FAVORABLE, NORMALLY ACCEPTED. —
Where considerations of visibility are favorable and
the witness does not appear to be biased against the
accused, his or her assertions as to the identity of
the malefactor should normally be accepted. This is
more so when the witness is the victim or a close
relative because such a witness usually strives to
remember the faces of the assailants.
3. ID.; ID.; TESTIMONIAL EVIDENCE; RELATIONSHIP,
NOT A DISQUALIFICATION. — There is absolutely
nothing in our laws to disqualify a person from
testifying in a criminal case in which the said
person's relative was involved, if the former was
really at the scene of the crime and was a witness to
the execution of the criminal act.
4. CRIMINAL LAW; MOTIVE; RELEVANT WHEN
ACCUSED HAS NOT BEEN POSITIVELY IDENTIFIED. —
Lack of motive does not preclude conviction when
the crime and the participation of the accused
therein are definitely established. Motive becomes
relevant and its absence may assume determinative
significance when the accused has not been
positively identified, and proof thereof becomes
94 | P a g e
essential only when evidence of the commission of
the crime is purely circumstantial or is inconclusive.
5. REMEDIAL LAW; EVIDENCE; CREDIBILITY; NOT
AFFECTED BY MINOR INCONSISTENCIES. — We have
gone over their allegations and we are of the
considered view that such inconsistencies or
imperfections, if any there be, relate to minor details
and the fact remains that there is no disagreement
among them as to the identity of the malefactors.
Such inconsistencies, if at all, demonstrate that their
testimonies are spontaneous and unrehearsed.
These minor inconsistencies can be attributed to the
treachery of the human memory and the rigor of
examination during trial.
6. ID.; ID.; FLIGHT, AN INDICATION OF GUILT. — The
flight of appellants belies their claims of innocence,
for it is indicative of their guilt. As we have often
quoted: "The wicked flee when no man pursueth but
the righteous are as bold as the lion."
7. CRIMINAL LAW; CONSPIRACY; CONSTRUED. —
Conspiracy is the common design to commit a
felony. It is not participation in all the details of the
execution of the crime. It need not be proved by
direct evidence, but can be inferred from the acts of
the accused.
8. ID.; ID.; MANIFEST BY CONCERTED ACTS OF ALL
THE ACCUSED TOWARD A CERTAIN GOAL. — We
have repeatedly held that when the accused by their
acts aimed at the same object, one performing one
part and the other performing another part so as to
complete it, with a view to the attainment of the
same object, and their acts, though apparently
independent, were in fact concerted and
cooperative, indicating closeness of personal
association, concerted action and concurrence of
sentiments, the court will be justified in concluding
that said accused were engaged in a conspiracy.
9. ID.; QUALIFYING CIRCUMSTANCES; TREACHERY;
CONSIDERED WHEN THE VICTIM WAS SUDDENLY
ATTACKED WHILE RELAXING ON A BENCH SIPPING A
COFFEE. — The attack was also very synchronal,
sudden and unexpected. The deceased was relaxing
on a bench, sipping a cup of coffee when the three
malefactors suddenly barged into the premises of his
dwelling. Nothing could best be indicative of
treachery than the mode or manner of attack chosen
by the conspirators which insured the
accomplishment of the crime with impunity since the
victim was not afforded a chance to raise any form
of defense. Although the stabbing was frontal,
treachery was still present as said victim was also not
in a position to offer any effective defense.
10. ID.; ID.; CONSPIRACY AND TREACHERY;
MANIFEST WHERE ACCUSED AGREED TO HARM
ANYONE WHO WOULD GIVE RESISTANCE OR HINDER
THEIR PLAN OF KILLING THE DECEASED AND THAT
THE VICTIM HAD NO CHANCE TO REPEL ATTACK OR
ESCAPE FROM THE SCENE. — Conspiracy and
treachery were similarly attendant in the stabbing of
Nympha Rosel. Although appellants did not
principally plan to kill her, their actions nonetheless
reveal that they agreed to harm anyone who would
give resistance or hinder their plan of killing the
deceased. This can be inferred from the fact that,
upon entering the house, appellant Flora and
accused Charlito Ramirez Sarino respectively
threatened the deceased's mother and sister with a
gun and a bolo. Nympha Rosel's act of shouting for
help was a form of resistance which provoked
appellant Sarino to immediately stab her. This attack
was decidedly treacherous as the victim had no
chance to either repel the attack or escape from the
scene.
11. ID.; AGGRAVATING CIRCUMSTANCES; DWELLING;
NOT ATTENDANT WHERE VICTIM WAS ATTACKED
WHILE SEATED ON A BENCH OUTSIDE HIS HOUSE. —
Insofar as the killing of Jolito Rosel is concerned, we
are inclined to resolve the doubt in favor of
appellants since the records appear to concede that
he was attacked while seated on a bench outside his
house. Although that bench was beside the steps
leading to the door of the house, it cannot be
considered as an integral part or a dependency of
the victim's dwelling.
12. ID.; ID.; ID.; CONSIDERED WHERE VICTIM WAS
STABBED WHILE STANDING NEAR THE DOOR OF THE
HOUSE. — With respect to the felonious attack
against Nympha Rosel, however, said aggravating
circumstance of dwelling has to be considered
against appellants in the determination of their
liability. This victim was definitely inside her house,
standing near the door thereof when she was
stabbed immediately after her husband was
attacked. This aggravating circumstance can be
appreciated in the crime committed against her even
if not alleged in the information therefor.
13. ID.; QUALIFYING CIRCUMSTANCES; EVIDENT
PREMEDITATION; MAY BE TAKEN FOR GRANTED
WHERE CONSPIRACY IS ESTABLISHED. — Under
normal conditions, where conspiracy is directly
established with proof of the attendant deliberation
and selection of the method, time and means of
executing the crime, the existence of evident
premeditation can be taken for granted.
14. ID.; ID.; ID.; NOT APPRECIATED IN THE ABSENCE
OF PROOF FROM WHICH CAN BE INFERRED ON HOW
AND WHEN THE PLAN TO KILL THE VICTIM WAS
HATCHED. — Evident premeditation may not be
appreciated since there is a total absence of proof or
perceptible facts from which can be inferred how
and when the plan to kill the victim was hatched by
the three accused or how much time elapsed before
it was carried out, such that it cannot be determined
if appellants had sufficient time between its
95 | P a g e
inception and its fulfillment to dispassionately
consider and accept the consequences.
15. ID.; CONSPIRACY; THE ACT OF ONE IS THE ACT OF
ALL. — We are satisfied that there was a
conspiratorial concord among the accused. Once this
assent is established, each and everyone of the
conspirators is criminally liable for the crime
committed by anyone of them.
16. CIVIL LAW; DAMAGES; INDEMNITY FOR DEATH
RAISED TO P50,000. — The death indemnity to be
paid to the heirs of the deceased is increased to
P50,000.00 in accordance with current
jurisprudential policy.
DECISION
REGALADO, J p:
Accused Benjamin Ramirez Sarino, Charlito Ramirez
Sarino (who is still at large 1 and consequently has
not been arraigned) and Oscar Flora, alias "Oca,"
were charged on April 7, 1988 in Criminal Cases Nos.
6200-MN and 6201-MN of the Regional Trial Court of
Malabon, Metro Manila, Branch 72, with murder and
frustrated murder in separate informations of the
following import:
For Murder in Criminal Case No 6200-MN.
"That on or about the 25th day of February, 1988, in
the Municipality of Navotas, Metro Manila,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused armed
with a Samurai (sic), conspiring and confederating
and mutually helping with (sic) one another, with
intent to kill, treachery and evident premeditation,
did then and there willfully, unlawfully and
feloniously attack, assault and stab one JOLITO
ROSEL Y RONDINA, ** hitting the latter at the right
side of the body, thereby inflicting upon the latter
stab wounds which immediately caused his death." 2
For Frustrated Murder in Criminal Case No. 6201-
MN.
"That on or about the 25th day of February, 1988, in
the Municipality of Navotas, Metro Manila,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused
conspiring and confederating and mutually helping
with (sic) one another with intent to kill, with
treachery and evident premeditation, did then and
there willfully, unlawfully and feloniously attack,
assault and stab one Nympha Rosel, thereby
performing all the acts of execution which would
have produced the crime of Murder, but did not
produce the same for (sic) reason of causes
independent of the accused's will, that is, the able
and timely medical attendance given to the victim
Nympha Rosel which prevented her death." 3
Herein accused-appellants Benjamin Ramirez Sarino
and Oscar Flora, duly assisted by counsel de oficio,
Atty. Froilan Zapanta, pleaded not guilty at the
arraignment, 4 hence trial on the merits ensued with
respect to these appellants.
The factual antecedents of this case, as found from
the prosecution's evidence by the court a quo and
reiterated by the Solicitor General with page
references to the transcripts of the stenographic
notes of the trial, have been further carefully
reviewed by us and, finding the same to be correct,
we reproduce hereunder the pertinent parts thereof.
". . . on February 25, 1988 at past 9:00 p.m., Jolito
Rosel was in his house at Isla Puting Bato, Navotas,
Metro Manila. He was with his wife Nympha, his
mother Encarnacion and sister Ceferina. They ha(d)
just arrived from the nearby house of Ceferina
where they had a sort of reunion occasioned by the
arrival of Encarnacion from Cebu. Jolito, who sat at
the bench in the front portion of the house, asked
(for) coffee from his wife and had taken one sip
thereof only when all of a sudden accused Oscar
Flora, together with Charlito Ramirez Sarino, arrived
Oscar grabbed Encarnacion by the hair and her head
struck against (sic) a gun held by Oscar. The latter
said 'you are good for only one bullet' to Encarnacion
Charlito confronted Ceferina, who is the wife of his
brother Bienvenido, held her by the hair also and
pointed a long bolo at her neck. Charlito told
Ceferina not to move. At this point, accused
Benjamin Ramirez Sarino, brother of Charlito,
entered the place. He came from his nearby house
where he, Charlito and Oscar were earlier drinking
beer. Benjamin shouted 'putang ina ninyo' and
immediately stabbed Jolito with a knife who (sic) was
hit in the right side of the abdomen (Exh. E-1)
Nympha shouted for help, saying her husband was
stabbed. At this point, Benjamin also stabbed her at
the right side of the stomach Nympha was then two
months pregnant. Soon after Jolito and Nympha
were stabbed by Benjamin with a knife, the latter
urged his companions to ran (sic) away and all of
them did.
"Jolito and Nympha were rushed to the Tondo
Medical Center where Nympha was operated on to
prevent her death (Exhs. C and C-1). Jolito died and
the cause of his death was: `shock, traumatic, due to
a stab wound that lacerated the abdominal aorta
and the bladder' (Exhs. D and D-1).
"There was no known quarrel between Jolito and
Benjamin, Oscar and Charlito. Their relationship was
cordial. There was, however, some
misunderstanding brought about by Jolito's calling
the attention of Benjamin to the decreasing width of
96 | P a g e
a nearby canal resulting in the increase of the area
occupied by Benjamin's house." 5
The contrary presentation of the defense, based on
the evidence presented by both appellants, was
likewise completely summarized by the trial court in
its decision.
"Accused Benjamin Ramirez Sarino, after denying the
accusations against him, insisted that he was already
asleep but was awakened by shouts being made by
Jolito who was challenging the `matatapang' in the
place to come out. He ignored the challenge. Shortly,
thereafter, he heard Encarnacion saying 'saklolo'.
Benjamin looked out from his house's window and
saw Jolito lying prostrate on the ground, face up,
already allegedly stabbed. Benjamin planned to go
down but his wife prevented him from doing so for
fear of involvement in the incident as the assailant/s
may return. He and his wife then went to sleep. Early
the following morning, Benjamin left for work in
Alabang where his wife visited and told him that
they should not go home to their house anymore
because Cesar, Jolito's brother, was saying Benjamin
killed Jolito. Benjamin was arrested after sometime
during the wake for his dead child at his in-laws'
residence in Bagong Silang.
"Benjamin's version was corroborated by his wife
and witnesses Elizabeth Marquez and Daisy Alarcon,
who both claimed having seen Oscar stabbed (sic)
Jolito and probably Nympha also.
"Accused Oscar Flora, for his part, claimed that he,
being an officer of the Barangay Tanod Brigade, was
at the Barangay Tanod Outpost when two Barangay
Tanods by the names of Paterno and Edison arrived
and asked him to go with them to the scene of the
stabbing incident. He saw a commotion thereat and
(was) told that Jolito was stabbed. He asked Edison
and Paterno to bring Jolito to the hospital.
Encarnacion, who was 'nagwawala', was pacified by
him. She even gave P10.00 for the tricycle fare to
bring Jolito to the hospital. He did not notice that
Nympha was stabbed or with blood. Paterno,
however, saw her bloodied.
"Oscar saw and talked to Ceferina who said Jolito
was stabbed by Benjamin. Oscar went to the latter's
house but was told Benjamin was no longer there
Encarnacion told him the Sarino brothers had
already left.
"Oscar denied the accusations against him. He was
not aware of any reason at all for being implicated in
these cases. He added that he continued residing in
the place which he never left. His arrest by Navotas
policemen in his in-laws' house in Fairview on
October 9, 1989 was just a coincidence. He came
from work and merely passed by the place." 6
The case for the prosecution having found favor with
the lower court, on March 7, 1990 it rendered
judgment containing the following decretal portion:
"WHEREFORE, premises considered, judgment is
hereby rendered finding accused Benjamin Ramirez
Sarino and Oscar Flora guilty beyond reasonable
doubt of the crimes of Murder, for the death of
Jolito Rosel, and Frustrated Murder, for the stabbing
of Nympha Rosel, and they are each hereby
sentenced to two prison terms, as follows:
1. In Criminal Case No. 6200-MN for Murder, defined
and penalized under Article 248 of the Revised Penal
Code: life imprisonment or reclusion perpetua;
2. In Criminal Case No. 6201-MN for Frustrated
Murder, defined and penalized under Article 248, in
relation to Article 50, of the Revised Penal Code: SIX
(6) YEARS, ONE (1) MONTH and ELEVEN (11) DAYS of
prision mayor, as minimum, to TWELVE (12) YEARS,
FIVE (5) MONTHS and TWENTY (20) DAYS of
reclusion temporal, as maximum.
"The two accused Benjamin Ramirez Sarino and
Oscar Flora are ordered to pay Nympha Rosel
P30,000.00 for the loss of her husband's life as
indemnification therefor and to pay the costs.
"The two accused, who are detention prisoners, if
they agreed in writing to abide by the rules
governing the conduct of convicted prisoners shall
be credited in full for the preventive imprisonment
they have already undergone in connection with
these cases, otherwise, they shall only be credited
with 4/5 thereof." 7
In a bid to gain reversal of the lower court's
judgment, appellants have come to us, each with his
own assignment of errors on the bases of which they
fault the court below hoping to undermine its
decision.
Appellant Sarino avers that the lower court erred in
(1) holding that he was the one who stabbed the
spouses Jolito and Nympha Rosel despite the clear,
truthful and unbiased testimonies of other
eyewitnesses to the incident pinpointing Oscar Flora
as the perpetrator of the acts; (2) having favorably
appreciated the evidence of the prosecution instead
of having favorably appreciated his evidence; (3)
convicting him of the crimes of murder and
frustrated murder as charged in the information
rather than of the lower offenses of homicide and
frustrated homicide, assuming but without admitting
that he was the assailant; and (4) convicting instead
of acquitting him on the ground that his guilt has not
been proven beyond reasonable doubt. 8
Appellant Flora, on the other hand, substantially
asserts that the court a quo erred in (1) finding the
existence of a conspiracy among appellants; (2)
97 | P a g e
finding him guilty beyond reasonable doubt of the
crimes charged; and (3) not acquitting him thereof. 9
Undoubtedly, the instant cases furnish another
occasion to reiterate the settled doctrine that the
appellate courts will not disturb the factual findings
of the trial court, especially as to credibility of
witnesses; that conclusions and findings of fact by
the trial court are entitled to great weight on appeal
and should not be disturbed except for strong and
cogent reasons because the trial court is in a better
position to examine real evidence, as well as to
observe the demeanor of the witnesses while
testifying. 10 We shall nevertheless analyze the
respective submissions of the parties in these cases.
It is an established fact that the deceased Jolito Rosel
was stabbed to death and that his wife Nympha was
likewise stabbed but, due to timely medical
assistance, was fortunate enough to have a second
lease on life. The question posed by the
asseverations of appellants, however, is who
perpetrated the killing of the deceased husband and
the stabbing of his wife who, at that time, was two
months on the family way.
Just like two sides of the coin, the cases at bar
present two conflicting contentions. The prosecution
witnesses consistently point to appellant Benjamin
Ramirez Sarino as the one who stabbed the
deceased Jolito and his wife Nympha, while
appellant Oscar Flora and Charlito Ramirez Sarino
were holding the deceased's mother and sister. On
the other hand, the two appellants, each hoping to
exculpate himself, respectively point to the other as
the possible culprit by each of them denying that he
was at the scene of the crime at the time the
criminal acts were committed. Parenthetically, the
half-hearted invocations of the defense of alibi by
appellants need not be glorified by a discussion of
the puerility thereof nor by the banality of
authorities refuting the same.
From a painstaking scrutiny of the records and a
thorough consideration of the evidence, we have no
reason to doubt the veracity and the accuracy of the
identification made by the prosecution witnesses.
Three eyewitnesses who were at the scene of the
crime, namely, Encarnacion, Ceferina and Nympha,
all surnamed Rosel, positively identified appellants
as the culprits in the slaying of the deceased and the
wounding of his wife. 11 The trial court found their
testimonies as more or less with unanimity, given in
a forthright, convincing and, at times, passionate
manner. 12
Encarnacion Rosel could not have been mistaken in
identifying the assailants as she was at the scene of
the incident and was then very near the deceased.
13 Besides, there was also a kerosene lamp there
which brightly illuminated their house. This enabled
her to see within the periphery of her vision all the
people there. 14 A kerosene lamp gives off sufficient
illumination like a "gasera" or "lamparahan," and the
illumination produced by these gadgets is sufficient
for the identification of persons. 15 Where
considerations of visibility are favorable and the
witness does not appear to be biased against the
accused, his or her assertions as to the identity of
the malefactor should normally be accepted. This is
more so when the witness is the victim or a close
relative because such a witness usually strives to
remember the faces of the assailants. 16
Another added factor is that the assailant Benjamin
Ramirez Sarino is the brother of said witness' son-in-
law, Bienvenido Ramirez Sarino, and whenever she
visits them in Navotas, she sees them all together. 17
She was able to see the short firearm which was
poked at her head by appellant Oscar Flora. 18 She
came to know Flora's name when, after the stabbing,
appellant Sarino urged Flora to run away. 19
Another eyewitness is the victim herself, Nympha
Rosel, who positively identified appellant Sarino. 20
Her version of the incident corresponds with that of
her mother-in-law, Encarnacion, in all its substantial
details. They were one in pointing to all the accused
as the malefactors. In her case, she was only two
steps away from her deceased husband 21 and so
she could not have erred in giving even the minute
details of the crime. She denied that her husband
ever shouted and challenged anyone to a fight as the
appellants aver. 22 She corroborated her mother-in-
law's narration of the incident on all material points.
Furthermore, there was only a short interval of time
between the acts of appellant Sarino in stabbing her
and her deceased husband. After, she shouted:
"Kapitbahay, tulungan ninyo po kami," appellant
Sarino immediately stabbed her. 23
Ceferina Rosel Sarino, who is the wife of Bienvenido
Sarino and the sister of the deceased, was another
eyewitness who likewise positively identified
appellant Benjamin Ramirez Sarino. 24 Her
testimony fully substantiates the other eyewitnesses'
account of the incident.
The findings and declarations of the two medico-
legal officers further strengthen the eyewitnesses'
version of the factual antecedents of the case. The
three aforementioned eyewitnesses testified that
appellant Sarino suddenly appeared inside the house
and stabbed the deceased who was then sitting on a
bench. Dr. Benjamin Dizon testified that the
assailant, who could have been in front of the
deceased, may have been standing while his victim
must have been sitting. 25 The medical report shows
that the victim's abdominal aorta and bladder were
lacerated. 26 When Nympha Rosel shouted for help,
she was stabbed at the right side of the stomach. Dr.
98 | P a g e
Luisito Naguit testified that her assailant could be
standing at the time of the attack. 27 Surgical
procedure was performed at her abdominal cavity in
order to repair the peritonial rent. 28
The defense belittles the fact that the prosecution
witnesses were mainly composed of the mother of
the deceased, his sister and his wife, 29 insinuating
thereby the lack of credibility in their testimonies by
reason of familial loyalty. This is sophistic reasoning.
There is absolutely nothing in our laws to disqualify a
person from testifying in a criminal case in which the
said person's relative was involved, if the former was
really at the scene of the crime and was a witness to
the execution of the criminal act. 30 Thus, in People
vs. Bragaes, et al., 31 we held that it was immaterial
that the witnesses were related to the victim
because their testimonies, independent of the
relationship, were not inherently improbable in
themselves, and neither was there proof that they
were charged with improper motives to incriminate
the appellants.
The defense also argues that the version presented
by the prosecution, to the effect that appellant
Sarino for no apparent reason at all would just stab
the spouses Jolito and Nympha Rosel, is absurd if not
too incredible to warrant belief. 32 Such argument
loses sight of the fact that lack of motive does not
preclude conviction when the crime and the
participation of the accused therein are definitely
established. Motive becomes relevant and its
absence may assume determinative significance
when the accused has not been positively identified,
and proof thereof becomes essential only when
evidence of the commission of the crime is purely
circumstantial or is inconclusive. 33
Appellant Flora, on his part, submits that no
prosecution witness was presented to point to him
positively as the assailant. 34 Unfortunately for him,
he is legally estopped to invoke this defense and, at
any rate, such pretension has explicitly been rejected
by the trial court with good reason.
It is true that, according to the records of these
cases, he was not identified in open court by the
witnesses. This is due to the fact that at the time
these witnesses testified, he had not yet been
arraigned. 35 After his arraignment, the trial with
respect to him proceeded and he presented Paterno
Oftana who was allegedly a barangay tanod like him.
36 However, pursuant to the order of the trial court
dated November 29, 1989, counsel for appellant
Flora and the prosecution agreed that the evidence
already adduced against appellant Sarino be deemed
automatically reproduced in these cases as evidence
for the prosecution against appellant Flora. Such
stipulated evidence includes the admission of the
latter's identity, as well as the evidence formally
offered by the prosecution in these cases against
appellant Sarino. 37 Moreover, in the April 16, 1990
order of the lower court denying the motion for
reconsideration of the defense, it clearly held that
"(i)n the course of the joint trial of the cases, he was
positively identified and his participation clearly
established." 38
We have, furthermore, to reject this
misrepresentation cum disclaimer by appellant Flora
on the inevitable consideration that the issue on the
identification of an accused hinges on the credibility
of the witnesses and the determination of which, as
we have repeatedly explained, is the sole province of
the trial court. 39
The defense likewise contends that the testimonies
of the prosecution witnesses are tainted with
falsehood and contradictions. 40 We have gone over
their allegations and we are of the considered view
that such inconsistencies or imperfections, if any
there be, relate to minor details and the fact remains
that there is no disagreement among them as to the
identity of the malefactors. Such inconsistencies, if
at all, demonstrate that their testimonies are
spontaneous and unrehearsed. These minor
inconsistencies can be attributed to the treachery of
the human memory and the rigor of examination
during trial. 41
In contrast, the testimony of defense witness Elvira
Ramirez, wife of appellant Sarino, cannot be invoked
or relied upon by appellants for their purposes. This
witness testified that it was when she heard
somebody shout "saklolo" from outside her house
that she looked out and saw Jolito already sprawled
on the ground. She admitted that she did not
actually see who stabbed Jolito. 42 She also
admitted that the day after the incident, she and her
husband, appellant Sarino, as well as appellant Flora,
all left their respective residences. 43 Such
actuations, which she established by her voluntary
admissions, are obviously not consistent with
appellants' claim of innocence.
Appellant Sarino testified that it was only when
somebody shouted "saklolo, saklolo, sinaksak ang
anak ko" that he, together with his wife, looked out
of the window. 44 It turned out that Jolito and his
wife, Nympha, had been stabbed. As to why he did
not bother to go down despite the cry for help from
Encarnacion, he claimed that "fear overtook" him
and his wife, and so they simply went to sleep. 45
Considering that the deceased Jolito is the brother-
in-law of his brother, Bienvenido, 46 and Nympha is
the former's wife, and are consequently not
strangers to him, we cannot understand how
appellant Sarino could merely ignore them after the
incident of which he was fully aware. As found by the
trial court, he had no quarrel with them, 47 and his
alleged fear at that time appears to be baseless
99 | P a g e
considering that when he looked out of the window,
he did not notice the presence of any assailant.
Despite the fact that he saw Jolito being carried
away to the hospital and being helped by others, he
simply decided to retire that night. 48
He tried to explain away why, after he left for work
the following day, he later changed his residence, by
claiming that he was informed by his wife of certain
threats against them and that they were driven away
from their house by the brother of Jolito Rosel. 49
The foregoing assertions of appellant Sarino strikes
us as pure fabrications since, by his own admission
and despite his claim of innocence, he never
bothered to complain to the police or have the
matter placed in the police blotter. He further
admitted that he was in fact arrested while
attending the wake of his child in the residence of his
in-laws at Bagong Silang. 50
He also tried to bolster his claim of innocence by
presenting two witnesses in the persons of Elizabeth
Marquez and Daisy Alarcon. However, Elizabeth
Marquez herself was not positive as to who actually
stabbed the deceased. While she did initially state
that the deceased was stabbed by Oscar Flora, 51
she was thereafter constrained to admit that she
came to know about him and his name only as told
to her by her cousin, one Antonio Bagsal. 52
Despite appellants' denials, however, the records
show that after the incident, all of them (including
Charlito Ramirez who remains at large) could not be
located at their usual places of residence. 53 In fact,
there was a need for the issuance of alias warrants
of arrest to effect their apprehension. 54 Needless to
say, the flight of appellants belies their claims of
innocence, for it is indicative of their guilt. 55 As we
have often quoted: "The wicked flee when no man
pursueth but the righteous are as bold as the lion."
56
With respect to appellant Flora, it is perplexing why
he never bothered to inquire into the absence of the
Sarinos from their residences since February, 1988
(after the incident) up to October, 1989 despite
being allegedly informed that they were the
assailants of the Rosels. It is unbelievable that during
the same period, he never knew that they had
already been arrested, considering that he has been
their neighbor and friend for a long time. Moreover,
it is likewise puzzling why he, as Barangay Tanod
leader, failed to report the harrowing incident to the
police. 57
We additionally find no error in the findings of the
court below regarding the existence of conspiracy
and treachery in these cases. Conspiracy is the
common design to commit a felony It is not
participation in all the details of the execution of the
crime. 58 It need not be proved by direct evidence,
but can be inferred from the acts of the accused. 59
We have repeatedly held that when the accused by
their acts aimed at the same object, one performing
one part and the other performing another part so
as to complete it, with a view to the attainment of
the same object, and their acts, though apparently
independent, were in fact concerted and
cooperative, indicating closeness of personal
association, concerted action and concurrence of
sentiments, the court will be justified in concluding
that said accused were engaged in a conspiracy. 60
The chain of circumstances attendant to these cases
establishes the existence of conspiracy. Appellant
Flora's act of tightly holding to Encarnacion Rosel
and poking a gun at her head, coupled with Charlito
Ramirez Sarino's simultaneous act of pointing a long
"samurai" knife at Ceferina Rosel's neck prior to the
stabbing of the deceased, undoubtedly reveal a unity
of purpose. They aimed at one object, that is, to kill
Jolito Rosel. Each had his own part to perform. While
the fatal wound was inflicted by appellant Sarino,
appellant Flora is just as guilty. Significantly, at the
time Jolito and Nympha Rosel were being stabbed,
Flora and Charlito Ramirez Sarino made no effort to
prevent the assault.
As appropriately observed by the Solicitor General,
the fact that appellant Flora and Charlito Ramirez
Sarino were systematic in their approach to
immobilize Ceferina Sarino and Encarnacion Rosel
prior to the stabbing of Jolito Rosel and the
wounding of Nympha Rosel by appellant Benjamin
Ramirez Sarino, it can be inferred that conspiracy
existed. 61
The attack was also very synchronal, sudden and
unexpected. The deceased was relaxing on a bench,
sipping a cup of coffee when the three malefactors
suddenly barged into the premises of his dwelling.
Nothing could best be indicative of treachery than
the mode or manner of attack chosen by the
conspirators which insured the accomplishment of
the crime with impunity since the victim was not
afforded a chance to raise any form of defense. 62
Although the stabbing was frontal, treachery was still
present as said victim was also not in a position to
offer any effective defense. 63
Conspiracy and treachery were similarly attendant in
the stabbing of Nympha Rosel. Although appellants
did not principally plan to kill her, their actions
nonetheless reveal that they agreed to harm anyone
who would give resistance or hinder their plan of
killing the deceased. This can be inferred from the
fact that, upon entering the house, appellant Flora
and accused Charlito Ramirez Sarino respectively
threatened the deceased's mother and sister with a
gun and a bolo. Nympha Rosel's act of shouting for
help was a form of resistance which provoked
appellant Sarino to immediately stab her. This attack
was decidedly treacherous as the victim had no
100 | P a g e
chance to either repel the attack or escape from the
scene.
The aggravating circumstance of dwelling, there
having been no provocation on the part of the
victims, appears to have escaped the attention of
both the lower court and the Solicitor General.
Insofar as the killing of Jolito Rosel is concerned, we
are inclined to resolve the doubt in favor of
appellants since the records appear to concede that
he was attacked while seated on a bench outside his
house. 64 Although that bench was beside the steps
leading to the door of the house, it cannot be
considered as an integral part or a dependency of
the victim's dwelling. At any rate, there being no
mitigating circumstance, our rejection of said
aggravating circumstance would not affect the
imposable penalty for the death of the victim.
With respect to the felonious attack against Nympha
Rosel, however, said aggravating circumstance of
dwelling has to be considered against appellants in
the determination of their liability. This victim was
definitely inside her house, standing near the door
thereof when she was stabbed immediately after her
husband was attacked. 65 This aggravating
circumstance can be appreciated in the crime
committed against her even if not alleged in the
information therefor. 66
We cannot, however, consider evident
premeditation in the cases at bar, which are readily
distinguishable from seemingly similar cases by
reason of the rapidity of events culminating in the
felonies herein charged, coupled with the fact that
even the motives or actuations of the felons prior
thereto are unknown. Under normal conditions,
where conspiracy is directly established with proof
of the attendant deliberation and selection of the
method, time and means of executing the crime, the
existence of evident premeditation can be taken for
granted. 67 Withal, in the factual milieu of the
present cases, we are persuaded that evident
premeditation may not be appreciated since there is
a total absence of proof or perceptible facts from
which can be inferred how and when the plan to kill
the victim was hatched by the three accused or how
much time elapsed before it was carried out, such
that it cannot be determined if appellants had
sufficient time between its inception and its
fulfillment to dispassionately consider and accept
the consequences. 68
However, we are satisfied that there was a
conspiratorial concord among the accused. Unlike
evident premeditation, wherein a sufficient period of
time must elapse to afford full opportunity for
meditation and reflection and for the perpetrator to
deliberate on the consequences of his intended
deed, conspiracy arises on the very instant when the
plotters agree, expressly or impliedly, to commit the
felony and forthwith decide to pursue it. Once this
assent is established, each and everyone of the
conspirators is criminally liable for the crime
committed by anyone of them. 69
WHEREFORE, on the foregoing premises, the
judgment of the court a quo is hereby AFFIRMED,
with the following MODIFICATIONS, viz.: (1) In
Criminal Case No. 6200-MN for murder, the phrase
"life imprisonment" in the dispositive portion of the
judgment therein is hereby deleted and the correct
terminology of reclusion perpetua is maintained; (2)
in Criminal Case No. 6201-MN for frustrated murder,
accused-appellants Benjamin Ramirez Sarino and
Oscar Flora are sentenced to suffer an indeterminate
penalty of ten (10) years of prision mayor, as
minimum, to seventeen (17) years and four (4)
months of reclusion temporal, as maximum; and (3)
the death indemnity to be paid to the heirs of the
deceased is increased to P50,000.00 in accordance
with current jurisprudential policy.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5272 March 19, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
AH CHONG, defendant-appellant.
Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence as to many of the essential and vital
facts in this case is limited to the testimony of the
accused himself, because from the very nature of
these facts and from the circumstances surrounding
the incident upon which these proceedings rest, no
other evidence as to these facts was available either
to the prosecution or to the defense. We think,
however, that, giving the accused the benefit of the
doubt as to the weight of the evidence touching
those details of the incident as to which there can be
said to be any doubt, the following statement of the
material facts disclose by the record may be taken to
be substantially correct:
The defendant, Ah Chong, was employed as a cook
at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal
Province, and at the same place Pascual Gualberto,
deceased, was employed as a house boy
or muchacho. "Officers' quarters No. 27" as a
detached house situates some 40 meters from the
nearest building, and in August, 19087, was occupied
101 | P a g e
solely as an officers' mess or club. No one slept in
the house except the two servants, who jointly
occupied a small room toward the rear of the
building, the door of which opened upon a narrow
porch running along the side of the building, by
which communication was had with the other part of
the house. This porch was covered by a heavy
growth of vines for its entire length and height. The
door of the room was not furnished with a
permanent bolt or lock, and occupants, as a measure
of security, had attached a small hook or catch on
the inside of the door, and were in the habit of
reinforcing this somewhat insecure means of
fastening the door by placing against it a chair. In the
room there was but one small window, which, like
the door, opened on the porch. Aside from the door
and window, there were no other openings of any
kind in the room.
On the night of August 14, 1908, at about 10 o'clock,
the defendant, who had received for the night, was
suddenly awakened by some trying to force open the
door of the room. He sat up in bed and called out
twice, "Who is there?" He heard no answer and was
convinced by the noise at the door that it was being
pushed open by someone bent upon forcing his way
into the room. Due to the heavy growth of vines
along the front of the porch, the room was very dark,
and the defendant, fearing that the intruder was a
robber or a thief, leaped to his feet and called out.
"If you enter the room, I will kill you." At that
moment he was struck just above the knee by the
edge of the chair which had been placed against the
door. In the darkness and confusion the defendant
thought that the blow had been inflicted by the
person who had forced the door open, whom he
supposed to be a burglar, though in the light of after
events, it is probable that the chair was merely
thrown back into the room by the sudden opening of
the door against which it rested. Seizing a common
kitchen knife which he kept under his pillow, the
defendant struck out wildly at the intruder who, it
afterwards turned out, was his roommate, Pascual.
Pascual ran out upon the porch and fell down on the
steps in a desperately wounded condition, followed
by the defendant, who immediately recognized him
in the moonlight. Seeing that Pascual was wounded,
he called to his employers who slept in the next
house, No. 28, and ran back to his room to secure
bandages to bind up Pascual's wounds.
There had been several robberies in Fort McKinley
not long prior to the date of the incident just
described, one of which took place in a house in
which the defendant was employed as cook; and as
defendant alleges, it was because of these repeated
robberies he kept a knife under his pillow for his
personal protection.
The deceased and the accused, who roomed
together and who appear to have on friendly and
amicable terms prior to the fatal incident, had an
understanding that when either returned at night, he
should knock at the door and acquiant his
companion with his identity. Pascual had left the
house early in the evening and gone for a walk with
his friends, Celestino Quiambao and Mariano Ibañez,
servants employed at officers' quarters No. 28, the
nearest house to the mess hall. The three returned
from their walk at about 10 o'clock, and Celestino
and Mariano stopped at their room at No. 28,
Pascual going on to his room at No. 27. A few
moments after the party separated, Celestino and
Mariano heard cries for assistance and upon
returning to No. 27 found Pascual sitting on the back
steps fatally wounded in the stomach, whereupon
one of them ran back to No. 28 and called
Liuetenants Jacobs and Healy, who immediately
went to the aid of the wounded man.
The defendant then and there admitted that he had
stabbed his roommate, but said that he did it under
the impression that Pascual was "a ladron" because
he forced open the door of their sleeping room,
despite defendant's warnings.
No reasonable explanation of the remarkable
conduct on the part of Pascuals suggests itself,
unless it be that the boy in a spirit of mischief was
playing a trick on his Chinese roommate, and sought
to frightened him by forcing his way into the room,
refusing to give his name or say who he was, in order
to make Ah Chong believe that he was being
attacked by a robber.
Defendant was placed under arrest forthwith, and
Pascual was conveyed to the military hospital, where
he died from the effects of the wound on the
following day.
The defendant was charged with the crime of
assassination, tried, and found guilty by the trial
court of simple homicide, with extenuating
circumstances, and sentenced to six years and one
day presidio mayor, the minimum penalty prescribed
by law.
At the trial in the court below the defendant
admitted that he killed his roommate, Pascual
Gualberto, but insisted that he struck the fatal blow
without any intent to do a wrongful act, in the
exercise of his lawful right of self-defense.
Article 8 of the Penal Code provides that —
The following are not delinquent and are
therefore exempt from criminal liability:
xxx xxx xxx
102 | P a g e
4 He who acts in defense of his person or
rights, provided there are the following
attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means
employed to prevent or repel it.
(3) Lack of sufficient provocation on the
part of the person defending himself.
Under these provisions we think that there can be no
doubt that defendant would be entitle to complete
exception from criminal liability for the death of the
victim of his fatal blow, if the intruder who forced
open the door of his room had been in fact a
dangerous thief or "ladron," as the defendant
believed him to be. No one, under such
circumstances, would doubt the right of the
defendant to resist and repel such an intrusion, and
the thief having forced open the door
notwithstanding defendant's thrice-repeated
warning to desist, and his threat that he would kill
the intruder if he persisted in his attempt, it will not
be questioned that in the darkness of the night, in a
small room, with no means of escape, with the thief
advancing upon him despite his warnings defendant
would have been wholly justified in using any
available weapon to defend himself from such an
assault, and in striking promptly, without waiting for
the thief to discover his whereabouts and deliver the
first blow.
But the evidence clearly discloses that the intruder
was not a thief or a "ladron." That neither the
defendant nor his property nor any of the property
under his charge was in real danger at the time when
he struck the fatal blow. That there was no such
"unlawful aggression" on the part of a thief or
"ladron" as defendant believed he was repelling and
resisting, and that there was no real "necessity" for
the use of the knife to defend his person or his
property or the property under his charge.
The question then squarely presents it self, whether
in this jurisdiction one can be held criminally
responsible who, by reason of a mistake as to the
facts, does an act for which he would be exempt
from criminal liability if the facts were as he
supposed them to be, but which would constitute
the crime of homicide or assassination if the actor
had known the true state of the facts at the time
when he committed the act. To this question we
think there can be but one answer, and we hold that
under such circumstances there is no criminal
liability, provided always that the alleged ignorance
or mistake or fact was not due to negligence or bad
faith.
In broader terms, ignorance or mistake of fact, if
such ignorance or mistake of fact is sufficient to
negative a particular intent which under the law is a
necessary ingredient of the offense charged (e.g., in
larcerny, animus furendi; in murder, malice; in
crimes intent) "cancels the presumption of intent,"
and works an acquittal; except in those cases where
the circumstances demand a conviction under the
penal provisions touching criminal negligence; and in
cases where, under the provisions of article 1 of the
Penal Code one voluntarily committing a crime or
misdeamor incurs criminal liability for any wrongful
act committed by him, even though it be different
from that which he intended to commit. (Wharton's
Criminal Law, sec. 87 and cases cited; McClain's
Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28
Tex. Ap., 240; Commonwealth vs. Power, 7 Met.,
596; Yates vs. People, 32 N.Y., 509; Isham vs. State,
38 Ala., 213; Commonwealth vs. Rogers, 7 Met.,
500.)
The general proposition thus stated hardly admits of
discussion, and the only question worthy of
consideration is whether malice or criminal intent is
an essential element or ingredient of the crimes of
homicide and assassination as defined and penalized
in the Penal Code. It has been said that since the
definitions there given of these as well as most other
crimes and offense therein defined, do not
specifically and expressly declare that the acts
constituting the crime or offense must be committed
with malice or with criminal intent in order that the
actor may be held criminally liable, the commission
of the acts set out in the various definitions subjects
the actor to the penalties described therein, unless it
appears that he is exempted from liability under one
or other of the express provisions of article 8 of the
code, which treats of exemption. But while it is true
that contrary to the general rule of legislative
enactment in the United States, the definitions of
crimes and offenses as set out in the Penal Code
rarely contain provisions expressly declaring that
malice or criminal intent is an essential ingredient of
the crime, nevertheless, the general provisions of
article 1 of the code clearly indicate that malice, or
criminal intent in some form, is an essential requisite
of all crimes and offense therein defined, in the
absence of express provisions modifying the general
rule, such as are those touching liability resulting
from acts negligently or imprudently committed, and
acts done by one voluntarily committing a crime or
misdemeanor, where the act committed is different
from that which he intended to commit. And it is to
be observed that even these exceptions are more
apparent than real, for "There is little distinction,
except in degree, between a will to do a wrongful
thing and indifference whether it is done or not.
Therefore carelessness is criminal, and within limits
supplies the place of the affirmative criminal intent"
(Bishop's New Criminal Law, vol. 1, s. 313); and,
again, "There is so little difference between a
disposition to do a great harm and a disposition to
103 | P a g e
do harm that one of them may very well be looked
upon as the measure of the other. Since, therefore,
the guilt of a crime consists in the disposition to do
harm, which the criminal shows by committing it,
and since this disposition is greater or less in
proportion to the harm which is done by the crime,
the consequence is that the guilt of the crime follows
the same proportion; it is greater or less according as
the crime in its own nature does greater or less
harm" (Ruth. Ints. C. 18, p. 11); or, as it has been
otherwise stated, the thing done, having proceeded
from a corrupt mid, is to be viewed the same
whether the corruption was of one particular form
or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts
and ommissions punished by law.
Acts and omissions punished by law are
always presumed to be voluntarily unless
the contrary shall appear.
An person voluntarily committing a crime or
misdemeanor shall incur criminal liability,
even though the wrongful act committed be
different from that which he had intended
to commit.
The celebrated Spanish jurist Pacheco, discussing the
meaning of the word "voluntary" as used in this
article, say that a voluntary act is a free, intelligent,
and intentional act, and roundly asserts that without
intention (intention to do wrong or criminal
intention) there can be no crime; and that the word
"voluntary" implies and includes the words "con
malicia," which were expressly set out in the
definition of the word "crime" in the code of 1822,
but omitted from the code of 1870, because, as
Pacheco insists, their use in the former code was
redundant, being implied and included in the word
"voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention
to commit the crime can only be said to exempt from
criminal responsibility when the act which was
actually intended to be done was in itself a lawful
one, and in the absence of negligence or
imprudence, nevertheless admits and recognizes in
his discussion of the provisions of this article of the
code that in general without intention there can be
no crime. (Viada, vol. 1, p. 16.) And, as we have
shown above, the exceptions insisted upon by Viada
are more apparent than real.
Silvela, in discussing the doctrine herein laid down,
says:
In fact, it is sufficient to remember the first
article, which declared that where there is
no intention there is no crime . . . in order
to affirm, without fear of mistake, that
under our code there can be no crime if
there is no act, an act which must fall within
the sphere of ethics if there is no moral
injury. (Vol. 2, the Criminal Law, folio 169.)
And to the same effect are various decisions of the
supreme court of Spain, as, for example in its
sentence of May 31, 1882, in which it made use of
the following language:
It is necessary that this act, in order to
constitute a crime, involve all the malice
which is supposed from the operation of
the will and an intent to cause the injury
which may be the object of the crime.
And again in its sentence of March 16, 1892, wherein
it held that "considering that, whatever may be the
civil effects of the inscription of his three sons, made
by the appellant in the civil registry and in the
parochial church, there can be no crime because of
the lack of the necessary element or criminal
intention, which characterizes every action or
ommission punished by law; nor is he guilty of
criminal negligence."
And to the same effect in its sentence of December
30, 1896, it made use of the following language:
. . . Considering that the moral element of
the crime, that is, intent or malice or their
absence in the commission of an act
defined and punished by law as criminal, is
not a necessary question of fact submitted
to the exclusive judgment and decision of
the trial court.
That the author of the Penal Code deemed criminal
intent or malice to be an essential element of the
various crimes and misdemeanors therein defined
becomes clear also from an examination of the
provisions of article 568, which are as follows:
He who shall execute through reckless
negligence an act that, if done with malice,
would constitute a grave crime, shall be
punished with the penalty of arresto
mayor in its maximum degree, to prision
correccional in its minimum degrees if it
shall constitute a less grave crime.
He who in violation of the regulations shall
commit a crime through simple imprudence
or negligence shall incur the penalty
of arresto mayor in its medium and
maximum degrees.
In the application of these penalties the
courts shall proceed according to their
104 | P a g e
discretion, without being subject to the
rules prescribed in article 81.
The provisions of this article shall not be
applicable if the penalty prescribed for the
crime is equal to or less than those
contained in the first paragraph thereof, in
which case the courts shall apply the next
one thereto in the degree which they may
consider proper.
The word "malice" in this article is manifestly
substantially equivalent to the words "criminal
intent," and the direct inference from its provisions
is that the commission of the acts contemplated
therein, in the absence of malice (criminal intent),
negligence, and imprudence, does not impose any
criminal liability on the actor.
The word "voluntary" as used in article 1 of the Penal
Code would seem to approximate in meaning the
word "willful" as used in English and American
statute to designate a form of criminal intent. It has
been said that while the word "willful" sometimes
means little more than intentionally or designedly,
yet it is more frequently understood to extent a little
further and approximate the idea of the milder kind
of legal malice; that is, it signifies an evil intent
without justifiable excuse. In one case it was said to
mean, as employed in a statute in contemplation,
"wantonly" or "causelessly;" in another, "without
reasonable grounds to believe the thing lawful." And
Shaw, C. J., once said that ordinarily in a statute it
means "not merely `voluntarily' but with a bad
purpose; in other words, corruptly." In English and
the American statutes defining crimes "malice,"
"malicious," "maliciously," and "malice
aforethought" are words indicating intent, more
purely technical than "willful" or willfully," but "the
difference between them is not great;" the word
"malice" not often being understood to require
general malevolence toward a particular individual,
and signifying rather the intent from our legal
justification. (Bishop's New Criminal Law, vol. 1, secs.
428 and 429, and cases cited.)
But even in the absence of express words in a
statute, setting out a condition in the definition of a
crime that it be committed "voluntarily," willfully,"
"maliciously" "with malice aforethought," or in one
of the various modes generally construed to imply a
criminal intent, we think that reasoning from general
principles it will always be found that with the rare
exceptions hereinafter mentioned, to constitute a
crime evil intent must combine with an act. Mr.
Bishop, who supports his position with numerous
citations from the decided cases, thus forcely
present this doctrine:
In no one thing does criminal jurisprudence
differ more from civil than in the rule as to
the intent. In controversies between private
parties the quo animo with which a thing
was done is sometimes important, not
always; but crime proceeds only from a
criminal mind. So that —
There can be no crime, large or small,
without an evil mind. In other words,
punishment is the sentence of wickedness,
without which it can not be. And neither in
philosophical speculation nor in religious or
mortal sentiment would any people in any
age allow that a man should be deemed
guilty unless his mind was so. It is therefore
a principle of our legal system, as probably
it is of every other, that the essence of an
offense is the wrongful intent, without
which it can not exists. We find this doctrine
confirmed by —
 Legal maxims. — The ancient wisdom of the
law, equally with the modern, is distinct on
this subject. It consequently has supplied to
us such maxims as Actus non facit reum nisi
mens sit rea, "the act itself does not make
man guilty unless his intention were
so;" Actus me incito factus non est meus
actus, "an act done by me against my will is
not my act;" and others of the like sort. In
this, as just said, criminal jurisprudence
differs from civil. So also —
Moral science and moral sentiment teach
the same thing. "By reference to the
intention, we inculpate or exculpate others
or ourselves without any respect to the
happiness or misery actually produced. Let
the result of an action be what it may, we
hold a man guilty simply on the ground of
intention; or, on the dame ground, we hold
him innocent." The calm judgment of
mankind keeps this doctrine among its
jewels. In times of excitement, when
vengeance takes the place of justice, every
guard around the innocent is cast down. But
with the return of reason comes the public
voice that where the mind is pure, he who
differs in act from his neighbors does not
offend. And —
In the spontaneous judgment which springs
from the nature given by God to man, no
one deems another to deserve punishment
for what he did from an upright mind,
destitute of every form of evil. And
whenever a person is made to suffer a
punishment which the community deems
not his due, so far from its placing an evil
mark upon him, it elevates him to the seat
of the martyr. Even infancy itself
spontaneously pleads the want of bad
105 | P a g e
intent in justification of what has the
appearance of wrong, with the utmost
confidence that the plea, if its truth is
credited, will be accepted as good. Now
these facts are only the voice of nature
uttering one of her immutable truths. It is,
then, the doctrine of the law, superior to all
other doctrines, because first in nature from
which the law itself proceeds, that no man
is to be punished as a criminal unless his
intent is wrong. (Bishop's New Criminal Law,
vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all
things," an apparent departure from this doctrine of
abstract justice result from the adoption of the
arbitrary rule that Ignorantia juris non
excusat ("Ignorance of the law excuses no man"),
without which justice could not be administered in
our tribunals; and compelled also by the same
doctrine of necessity, the courts have recognized the
power of the legislature to forbid, in a limited class
of cases, the doing of certain acts, and to make their
commission criminal without regard to the intent of
the doer. Without discussing these exceptional cases
at length, it is sufficient here to say that the courts
have always held that unless the intention of the
lawmaker to make the commission of certain acts
criminal without regard to the intent of the doer is
clear and beyond question the statute will not be so
construed (cases cited in Cyc., vol. 12, p. 158, notes
76 and 77); and the rule that ignorance of the law
excuses no man has been said not to be a real
departure from the law's fundamental principle that
crime exists only where the mind is at fault, because
"the evil purpose need not be to break the law, and
if suffices if it is simply to do the thing which the law
in fact forbids." (Bishop's New Criminal Law, sec.
300, and cases cited.)
But, however this may be, there is no technical rule,
and no pressing necessity therefore, requiring
mistake in fact to be dealt with otherwise that in
strict accord with the principles of abstract justice.
On the contrary, the maxim here is Ignorantia facti
excusat ("Ignorance or mistake in point of fact is, in
all cases of supposed offense, a sufficient excuse").
(Brown's Leg. Max., 2d ed., 190.)
Since evil intent is in general an inseparable element
in every crime, any such mistake of fact as shows the
act committed to have proceeded from no sort of
evil in the mind necessarily relieves the actor from
criminal liability provided always there is no fault or
negligence on his part; and as laid down by Baron
Parke, "The guilt of the accused must depend on the
circumstances as they appear to him."
(Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson,
44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P.,
32 N. Y., 509; Patterson vs. P., 46 Barb., 625;
Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal.,
207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to
say, the question as to whether he honestly, in good
faith, and without fault or negligence fell into the
mistake is to be determined by the circumstances as
they appeared to him at the time when the mistake
was made, and the effect which the surrounding
circumstances might reasonably be expected to have
on his mind, in forming the intent, criminal or other
wise, upon which he acted.
If, in language not uncommon in the cases,
one has reasonable cause to believe the
existence of facts which will justify a killing
— or, in terms more nicely in accord with
the principles on which the rule is founded,
if without fault or carelessness he does
believe them — he is legally guiltless of the
homicide; though he mistook the facts, and
so the life of an innocent person is
unfortunately extinguished. In other words,
 and with reference to the right of self-
defense and the not quite harmonious
authorities, it is the doctrine of reason and
sufficiently sustained in adjudication, that
notwithstanding some decisions apparently
adverse, whenever a man undertakes self-
defense, he is justified in acting on the facts
as they appear to him. If, without fault or
carelessness, he is misled concerning them,
and defends himself correctly according to
what he thus supposes the facts to be the
law will not punish him though they are in
truth otherwise, and he was really no
occassion for the extreme measures.
(Bishop's New Criminal Law, sec. 305, and
large array of cases there cited.)
The common illustration in the American and English
textbooks of the application of this rule is the case
where a man, masked and disguised as a footpad, at
night and on a lonely road, "holds up" his friends in a
spirit of mischief, and with leveled pistol demands
his money or his life, but is killed by his friend under
the mistaken belief that the attack is a real one, that
the pistol leveled at his head is loaded, and that his
life and property are in imminent danger at the
hands of the aggressor. No one will doubt that if the
facts were such as the slayer believed them to be he
would be innocent of the commission of any crime
and wholly exempt from criminal liability, although if
he knew the real state of the facts when he took the
life of his friend he would undoubtedly be guilty of
the crime of homicide or assassination. Under such
circumstances, proof of his innocent mistake of the
facts overcomes the presumption of malice or
criminal intent, and (since malice or criminal intent is
a necessary ingredient of the "act punished by law"
in cases of homicide or assassination) overcomes at
the same time the presumption established in article
1 of the code, that the "act punished by law" was
committed "voluntarily."
106 | P a g e
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds
for believing that the person slain had a
felonious design against him, and under
that supposition killed him, although it
should afterwards appear that there was no
such design, it will not be murder, but it will
be either manslaughter or excusable
homicide, according to the degree of
caution used and the probable grounds of
such belief. (Charge to the grand jury in
Selfridge's case, Whart, Hom., 417, 418,
Lloyd's report of the case, p.7.)
In this case, Parker, J., charging the petit jury,
enforced the doctrine as follows:
A, in the peaceable pursuit of his affairs,
sees B rushing rapidly toward him, with an
outstretched arms and a pistol in his hand,
and using violent menaces against his life as
he advances. Having approached near
enough in the same attitude, A, who has a
club in his hand, strikes B over the head
before or at the instant the pistol is
discharged; and of the wound B dies. It
turns out the pistol was loaded with powder
only, and that the real design of B was only
to terrify A. Will any reasonable man say
that A is more criminal that he would have
been if there had been a bullet in the pistol?
Those who hold such doctrine must require
that a man so attacked must, before he
strikes the assailant, stop and ascertain how
the pistol is loaded — a doctrine which
would entirely take away the essential right
of self-defense. And when it is considered
that the jury who try the cause, and not the
party killing, are to judge of the reasonable
grounds of his apprehension, no danger can
be supposed to flow from this principle.
(Lloyd's Rep., p. 160.)
To the same effect are various decisions of the
supreme court of Spain, cited by Viada, a few of
which are here set out in full because the facts are
somewhat analogous to those in the case at bar.
QUESTION III. When it is shown that the
accused was sitting at his hearth, at night, in
company only of his wife, without other
light than reflected from the fire, and that
the man with his back to the door was
attending to the fire, there suddenly
entered a person whom he did not see or
know, who struck him one or two blows,
producing a contusion on the shoulder,
because of which he turned, seized the
person and took from his the stick with
which he had undoubtedly been struck, and
gave the unknown person a blow, knocking
him to the floor, and afterwards striking him
another blow on the head, leaving the
unknown lying on the floor, and left the
house. It turned out the unknown person
was his father-in-law, to whom he rendered
assistance as soon as he learned his
identity, and who died in about six days in
consequence of cerebral congestion
resulting from the blow. The accused, who
confessed the facts, had always sustained
pleasant relations with his father-in-law,
whom he visited during his sickness,
demonstrating great grief over the
occurrence. Shall he be considered free
from criminal responsibility, as having acted
in self-defense, with all the circumstances
related in paragraph 4, article 8, of the
Penal Code? The criminal branch of
the Audiencia of Valladolid found that he
was an illegal aggressor, without sufficient
 provocation, and that there did not exists
rational necessity for the employment of
the force used, and in accordance with
articles 419 and 87 of the Penal Code
condemned him to twenty months of
imprisonment, with accessory penalty and
costs. Upon appeal by the accused, he was
acquitted by the supreme court, under the
following sentence: "Considering, from the
facts found by the sentence to have been
proven, that the accused was surprised
from behind, at night, in his house beside
his wife who was nursing her child, was
attacked, struck, and beaten, without being
able to distinguish with which they might
have executed their criminal intent,
because of the there was no other than fire
light in the room, and considering that in
such a situation and when the acts executed
demonstrated that they might endanger his
existence, and possibly that of his wife and
child, more especially because his assailant
was unknown, he should have defended
himself, and in doing so with the same stick
with which he was attacked, he did not
exceed the limits of self-defense, nor did he
use means which were not rationally
necessary, particularly because the
instrument with which he killed was the one
which he took from his assailant, and was
capable of producing death, and in the
darkness of the house and the consteration
which naturally resulted from such strong
aggression, it was not given him to known
or distinguish whether there was one or
more assailants, nor the arms which they
might bear, not that which they might
accomplish, and considering that the lower
court did not find from the accepted facts
that there existed rational necessity for the
means employed, and that it did not apply
107 | P a g e
paragraph 4 of article 8 of the Penal Code, it
erred, etc." (Sentence of supreme court of
Spain, February 28, 1876.) (Viada, Vol. I, p.
266.) .
QUESTION XIX. A person returning, at night,
to his house, which was situated in a retired
part of the city, upon arriving at a point
where there was no light, heard the voice of
a man, at a distance of some 8 paces,
saying: "Face down, hand over you money!"
because of which, and almost at the same
money, he fired two shots from his pistol,
distinguishing immediately the voice of one
of his friends (who had before simulated a
different voice) saying, "Oh! they have killed
me," and hastening to his assistance, finding
the body lying upon the ground, he cried,
"Miguel, Miguel, speak, for God's sake, or I
am ruined," realizing that he had been the
victim of a joke, and not receiving a reply,
and observing that his friend was a corpse,
he retired from the place. Shall he be
declared exempt in toto from responsibility
as the author of this homicide, as having
acted in just self-defense under the
circumstances defined in paragraph 4,
article 8, Penal Code? The criminal branch
of the Audiencia of Malaga did not so find,
but only found in favor of the accused two
of the requisites of said article, but not that
of the reasonableness of the means
employed to repel the attack, and,
therefore, condemned the accused to eight
years and one day of prison mayor, etc. The
supreme court acquitted the accused on his
appeal from this sentence, holding that the
accused was acting under a justifiable and
excusable mistake of fact as to the identity
of the person calling to him, and that under
the circumstances, the darkness and
remoteness, etc., the means employed
were rational and the shooting justifiable.
(Sentence supreme court, March 17, 1885.)
(Viada, Vol. I, p. 136.)
QUESTION VI. The owner of a mill, situated
in a remote spot, is awakened, at night, by a
large stone thrown against his window — at
this, he puts his head out of the window
and inquires what is wanted, and is
answered "the delivery of all of his money,
otherwise his house would be burned" —
because of which, and observing in an alley
adjacent to the mill four individuals, one of
whom addressed him with blasphemy, he
fired his pistol at one the men, who, on the
next morning was found dead on the same
spot. Shall this man be declared exempt
from criminal responsibility as having acted
in just self-defense with all of the requisites
of law? The criminal branch of the
requisites of law? The criminal branch of
the Audiencia of Zaragoza finds that there
existed in favor of the accused a majority of
the requisites to exempt him from criminal
responsibility, but not that of reasonable
necessity for the means, employed, and
condemned the accused to twelve months
of prision correctional for the homicide
committed. Upon appeal, the supreme
court acquitted the condemned, finding
that the accused, in firing at the
malefactors, who attack his mill at night in a
remote spot by threatening robbery and
incendiarism, was acting in just self-defense
of his person, property, and family.
(Sentence of May 23, 1877). (I Viada, p.
128.)
A careful examination of the facts as disclosed in the
case at bar convinces us that the defendant
Chinaman struck the fatal blow alleged in the
information in the firm belief that the intruder who
forced open the door of his sleeping room was a
thief, from whose assault he was in imminent peril,
both of his life and of his property and of the
property committed to his charge; that in view of all
the circumstances, as they must have presented
themselves to the defendant at the time, he acted in
good faith, without malice, or criminal intent, in the
belief that he was doing no more than exercising his
legitimate right of self-defense; that had the facts
been as he believed them to be he would have been
wholly exempt from criminal liability on account of
his act; and that he can not be said to have been
guilty of negligence or recklessness or even
carelessness in falling into his mistake as to the facts,
or in the means adopted by him to defend himself
from the imminent danger which he believe
threatened his person and his property and the
property under his charge.
The judgment of conviction and the sentence
imposed by the trial court should be reversed, and
the defendant acquitted of the crime with which he
is charged and his bail bond exonerated, with the
costs of both instance de oficio. So ordered.
Johnson Moreland and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent.
Separate Opinions
TORRES, J., dissenting:
The writer, with due respect to the opinion of the
majority of the court, believes that, according to the
merits of the case, the crime of homicide by reckless
negligence, defined and punishes in article 568 of
108 | P a g e
the Penal Code, was committed, inasmuch as the
victim was wilfully (voluntariomente) killed, and
while the act was done without malice or criminal
intent it was, however, executed with real
negligence, for the acts committed by the deceased
could not warrant the aggression by the defendant
under the erroneous belief on the part of the
accused that the person who assaulted him was a
malefactor; the defendant therefore incurred
responsibility in attacking with a knife the person
who was accustomed to enter said room, without
any justifiable motive.
By reason of the nature of the crime committed, in
the opinion of the undersigned the accused should
be sentenced to the penalty of one year and one
month of prision correctional, to suffer the accessory
penalties provided in article 61, and to pay an
indemnify of P1,000 to the heirs of the deceased,
with the costs of both instances, thereby reversing
the judgment appealed from.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-47722 July 27, 1943
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO Z. OANIS and ALBERTO
GALANTA, defendants-appellants.
Antonio Z. Oanis in his own behalf.
Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibañez and Assistant
Attorney Torres for appellee.
MORAN, J.:
Charged with the crime of murder of one Serapio
Tecson, the accused Antonio Z. Oanis and Alberto
Galanta, chief of police of Cabanatuan and corporal
of the Philippine Constabulary, respectively, were,
after due trial, found guilty by the lower court of
homicide through reckless imprudence and were
sentenced each to an indeterminate penalty of from
one year and six months to two years and two
months of prison correccional and to indemnify
jointly and severally the heirs of the deceased in the
amount of P1,000. Defendants appealed separately
from this judgment.
In the afternoon of December 24, 1938. Captain
Godofredo Monsod, Constabulary Provincial
Inspector at Cabanatuan, Nueva Ecija, received from
Major Guido a telegram of the following tenor:
"Information received escaped convict Anselmo
Balagtas with bailarina and Irene in Cabanatuan get
him dead or alive." Captain Monsod accordingly
called for his first sergeant and asked that he be
given four men. Defendant corporal Alberto Galanta,
and privates Nicomedes Oralo, Venancio Serna and
D. Fernandez, upon order of their sergeant, reported
at the office of the Provincial Inspector where they
were shown a copy of the above-quoted telegram
and a newspaper clipping containing a picture of
Balagtas. They were instructed to arrest Balagtas
and, if overpowered, to follow the instruction
contained in the telegram. The same instruction was
given to the chief of police Oanis who was likewise
called by the Provincial Inspector. When the chief of
police was asked whether he knew one Irene,
a bailarina, he answered that he knew one of loose
morals of the same name. Upon request of the
Provincial Inspector, the chief of police tried to
locate some of his men to guide the constabulary
soldiers in ascertaining Balagtas' whereabouts, and
failing to see anyone of them he volunteered to go
with the party. The Provincial Inspector divided the
party into two groups with defendants Oanis and
Galanta, and private Fernandez taking the route to
Rizal street leading to the house where Irene was
supposedly living. When this group arrived at Irene's
house, Oanis approached one Brigida Mallare, who
was then stripping banana stalks, and asked her
where Irene's room was. Brigida indicated the place
and upon further inquiry also said that Irene was
sleeping with her paramour. Brigida trembling,
immediately returned to her own room which was
very near that occupied by Irene and her paramour.
Defendants Oanis and Galanta then went to the
room of Irene, and an seeing a man sleeping with his
back towards the door where they were,
simultaneously or successively fired at him with their
.32 and .45 caliber revolvers. Awakened by the
gunshots, Irene saw her paramour already wounded,
and looking at the door where the shots came, she
saw the defendants still firing at him. Shocked by the
entire scene. Irene fainted; it turned out later that
the person shot and killed was not the notorious
criminal Anselmo Balagtas but a peaceful and
innocent citizen named Serapio Tecson, Irene's
paramour. The Provincial Inspector, informed of the
killing, repaired to the scene and when he asked as
to who killed the deceased. Galanta, referring to
himself and to Oanis, answered: "We two, sir." The
corpse was thereafter brought to the provincial
hospital and upon autopsy by Dr. Ricardo de Castro,
multiple gunshot wounds inflicted by a .32 and a .45
caliber revolvers were found on Tecson's body which
caused his death.
These are the facts as found by the trial court and
fully supported by the evidence, particularly by the
testimony of Irene Requinea. Appellants gave,
however, a different version of the tragedy.
According to Appellant Galanta, when he and chief
of police Oanis arrived at the house, the latter asked
Brigida where Irene's room was. Brigida indicated
109 | P a g e
the place, and upon further inquiry as to the
whereabouts of Anselmo Balagtas, she said that he
too was sleeping in the same room. Oanis went to
the room thus indicated and upon opening the
curtain covering the door, he said: "If you are
Balagtas, stand up." Tecson, the supposed Balagtas,
and Irene woke up and as the former was about to
sit up in bed. Oanis fired at him. Wounded, Tecson
leaned towards the door, and Oanis receded and
shouted: "That is Balagtas." Galanta then fired at
Tecson.
On the other hand, Oanis testified that after he had
opened the curtain covering the door and after
having said, "if you are Balagtas stand up." Galanta
at once fired at Tecson, the supposed Balagtas, while
the latter was still lying on bed, and continued firing
until he had exhausted his bullets: that it was only
thereafter that he, Oanis, entered the door and upon
seeing the supposed Balagtas, who was then
apparently watching and picking up something from
the floor, he fired at him.
The trial court refused to believe the appellants.
Their testimonies are certainly incredible not only
because they are vitiated by a natural urge to
exculpate themselves of the crime, but also because
they are materially contradictory. Oasis averred that
be fired at Tecson when the latter was apparently
watching somebody in an attitudes of picking up
something from the floor; on the other hand,
Galanta testified that Oasis shot Tecson while the
latter was about to sit up in bed immediately after
he was awakened by a noise. Galanta testified that
he fired at Tecson, the supposed Balagtas, when the
latter was rushing at him. But Oanis assured that
when Galanta shot Tecson, the latter was still lying
on bed. It is apparent from these contradictions that
when each of the appellants tries to exculpate
himself of the crime charged, he is at once belied by
the other; but their mutual incriminating averments
dovetail with and corroborate substantially, the
testimony of Irene Requinea. It should be recalled
that, according to Requinea, Tecson was still sleeping
in bed when he was shot to death by appellants. And
this, to a certain extent, is confirmed by both
appellants themselves in their mutual
recriminations. According, to Galanta, Oanis shot
Tecson when the latter was still in bed about to sit
up just after he was awakened by a noise. And Oanis
assured that when Galanta shot Tecson, the latter
was still lying in bed. Thus corroborated, and
considering that the trial court had the opportunity
to observe her demeanor on the stand, we believe
and so hold that no error was committed in
accepting her testimony and in rejecting the
exculpatory pretensions of the two appellants.
Furthermore, a careful examination of Irene's
testimony will show not only that her version of the
tragedy is not concocted but that it contains all
indicia of veracity. In her cross-examination, even
misleading questions had been put which were
unsuccessful, the witness having stuck to the truth in
every detail of the occurrence. Under these
circumstances, we do not feel ourselves justified in
disturbing the findings of fact made by the trial
court.
The true fact, therefore, of the case is that, while
Tecson was sleeping in his room with his back
towards the door, Oanis and Galanta, on sight, fired
at him simultaneously or successively, believing him
to be Anselmo Balagtas but without having made
previously any reasonable inquiry as to his identity.
And the question is whether or not they may, upon
such fact, be held responsible for the death thus
caused to Tecson. It is contended that, as appellants
acted in innocent mistake of fact in the honest
performance of their official duties, both of them
believing that Tecson was Balagtas, they incur no
criminal liability. Sustaining this theory in part, the
lower court held and so declared them guilty of the
crime of homicide through reckless imprudence. We
are of the opinion, however, that, under the
circumstances of the case, the crime committed by
appellants is murder through specially mitigated by
circumstances to be mentioned below.
In support of the theory of non-liability by reasons of
honest mistake of fact, appellants rely on the case
of U.S. v. Ah Chong, 15 Phil., 488. The maxim
is ignorantia facti excusat, but this applies only when
the mistake is committed without fault or
carelessness. In the Ah Chong case, defendant
therein after having gone to bed was awakened by
someone trying to open the door. He called out
twice, "who is there," but received no answer.
Fearing that the intruder was a robber, he leaped
from his bed and called out again., "If you enter the
room I will kill you." But at that precise moment, he
was struck by a chair which had been placed against
the door and believing that he was then being
attacked, he seized a kitchen knife and struck and
fatally wounded the intruder who turned out to be
his room-mate. A common illustration of innocent
mistake of fact is the case of a man who was marked
as a footpad at night and in a lonely road held up a
friend in a spirit of mischief, and with leveled, pistol
demanded his money or life. He was killed by his
friend under the mistaken belief that the attack was
real, that the pistol leveled at his head was loaded
and that his life and property were in imminent
danger at the hands of the aggressor. In these
instances, there is an innocent mistake of fact
committed without any fault or carelessness because
the accused, having no time or opportunity to make
a further inquiry, and being pressed by
circumstances to act immediately, had no alternative
but to take the facts as they then appeared to him,
and such facts justified his act of killing. In the
instant case, appellants, unlike the accused in the
instances cited, found no circumstances whatsoever
which would press them to immediate action. The
110 | P a g e
person in the room being then asleep, appellants
had ample time and opportunity to ascertain his
identity without hazard to themselves, and could
even effect a bloodless arrest if any reasonable
effort to that end had been made, as the victim was
unarmed, according to Irene Requinea. This, indeed,
is the only legitimate course of action for appellants
to follow even if the victim was really Balagtas, as
they were instructed not to kill Balagtas at sight but
to arrest him, and to get him dead or alive only if
resistance or aggression is offered by him.
Although an officer in making a lawful arrest is
justified in using such force as is reasonably
necessary to secure and detain the offender,
overcome his resistance, prevent his escape,
recapture him if he escapes, and protect himself
from bodily harm (People vs. Delima, 46 Phil, 738),
yet he is never justified in using unnecessary force or
in treating him with wanton violence, or in resorting
to dangerous means when the arrest could be
effected otherwise (6 C.J.S., par. 13, p. 612). The
doctrine is restated in the new Rules of Court thus:
"No unnecessary or unreasonable force shall be used
in making an arrest, and the person arrested shall
not be subject to any greater restraint than is
necessary for his detention." (Rule 109, sec. 2, par.
2). And a peace officer cannot claim exemption from
criminal liability if he uses unnecessary force or
violence in making an arrest (5 C.J., p. 753;
U.S. vs. Mendoza, 2 Phil., 109). It may be true that
Anselmo Balagtas was a notorious criminal, a life-
termer, a fugitive from justice and a menace to the
peace of the community, but these facts alone
constitute no justification for killing him when in
effecting his arrest, he offers no resistance or in fact
no resistance can be offered, as when he is asleep.
This, in effect, is the principle laid down, although
upon different facts, in U.S. vs. Donoso (3 Phil., 234,
242).
It is, however, suggested that a notorious criminal
"must be taken by storm" without regard to his right
to life which he has by such notoriety already
forfeited. We may approve of this standard of official
conduct where the criminal offers resistance or does
something which places his captors in danger of
imminent attack. Otherwise we cannot see how, as
in the present case, the mere fact of notoriety can
make the life of a criminal a mere trifle in the hands
of the officers of the law. Notoriety rightly supplies a
basis for redoubled official alertness and vigilance; it
never can justify precipitate action at the cost of
human life. Where, as here, the precipitate action of
the appellants has cost an innocent life and there
exist no circumstances whatsoever to warrant action
of such character in the mind of a reasonably
prudent man, condemnation — not condonation —
should be the rule; otherwise we should offer a
premium to crime in the shelter of official actuation.
The crime committed by appellants is not merely
criminal negligence, the killing being intentional and
not accidental. In criminal negligence, the injury
caused to another should be unintentional, it being
simply the incident of another act performed
without malice. (People vs. Sara, 55 Phil., 939). In the
words of Viada, "para que se celifique un hecho de
imprudencia es preciso que no haya mediado en el
malicia ni intencion alguna de dañar; existiendo esa
intencion, debera calificarse el hecho del delito que
ha producido, por mas que no haya sido la intencion
del agente el causar un mal de tanta gravedad como
el que se produjo." (Tomo 7, Viada Codigo Penal
Comentado, 5.a ed. pag. 7). And, as once held by this
Court, a deliberate intent to do an unlawful act is
essentially inconsistent with the idea of reckless
imprudence (People vs. Nanquil, 43 Phil., 232;
People vs. Bindor, 56 Phil., 16), and where such
unlawful act is wilfully done, a mistake in the identity
of the intended victim cannot be considered as
reckless imprudence (People vs. Gona, 54 Phil., 605)
to support a plea of mitigated liability.
As the deceased was killed while asleep, the crime
committed is murder with the qualifying
circumstance of alevosia. There is, however, a
mitigating circumstance of weight consisting in the
incomplete justifying circumstance defined in article
11, No. 5, of the Revised Penal Code. According to
such legal provision, a person incurs no criminal
liability when he acts in the fulfillment of a duty or in
the lawful exercise of a right or office. There are two
requisites in order that the circumstance may be
taken as a justifying one: (a) that the offender acted
in the performance of a duty or in the lawful exercise
of a right; and (b) that the injury or offense
committed be the necessary consequence of the due
performance of such duty or the lawful exercise of
such right or office. In the instance case, only the
first requisite is present — appellants have acted in
the performance of a duty. The second requisite is
wanting for the crime by them committed is not the
necessary consequence of a due performance of
their duty. Their duty was to arrest Balagtas or to get
him dead or alive if resistance is offered by him and
they are overpowered. But through impatience or
over-anxiety or in their desire to take no chances,
they have exceeded in the fulfillment of such duty by
killing the person whom they believed to be Balagtas
without any resistance from him and without making
any previous inquiry as to his identity. According to
article 69 of the Revised Penal Code, the penalty
lower by one or two degrees than that prescribed by
law shall, in such case, be imposed.
For all the foregoing, the judgment is modified and
appellants are hereby declared guilty of murder with
the mitigating circumstance above mentioned, and
accordingly sentenced to an indeterminate penalty
of from five (5) years of prision correctional to fifteen
(15) years of reclusion temporal, with the accessories
111 | P a g e
of the law, and to pay the heirs of the deceased shooting the man who was found by them lying
Serapio Tecson jointly and severally an indemnity of down beside a woman. The man was thereby killed,
P2,000, with costs. but Balagtas was still alive, for it turned out that the
person shot by Oanis and Galanta was one Serapio
Yulo, C.J., Bocobo, Generoso and Lopez Vito, Tecson.
A., concur.
Consequently, Oanis and Galanta were charged with
having committed murder. The Court of First
Instance of Nueva Ecija, however, convicted them
only of homicide through reckless imprudence and
Separate Opinions sentenced them each to suffer the indeterminate
penalty of from 1 year and 6 months to 2 years and 2
months of prision correctional, to jointly and
PARAS, J., dissenting:
severally indemnify the heirs of Serapio Tecson in
the amount of P1,000, and to pay the costs. Oanis
Anselmo Balagtas, a life termer and notorious
and Galanta have appealed.
criminal, managed to escape and flee form Manila to
the provinces. Receiving information to the effect
In accomplishing the acts with which the appellants
that he was staying with one Irene in Cabanatuan,
were charged, they undoubtedly followed the order
Nueva Ecija, the office of the Constabulary in Manila
issued by the Constabulary authorities in Manila
ordered the Provincial Inspector in Cabanatuan by
requiring the Provincial Inspector in Cabanatuan to
telegram dispatched on December 25, 1938, to get
get Balagtas dead or alive, in the honest belief that
Balagtas "dead or alive". Among those assigned to
Serapio Tecson was Anselmo Balagtas. As the latter
the task of carrying out the said order, were Antonio
became a fugitive criminal, with revolvers in his
Z. Oanis, chief of police of Cabanatuan, and Alberto
possession and a record that made him extremely
Galanta, a Constabulary corporal, to whom the
dangerous and a public terror, the Constabulary
telegram received by the Provincial Inspector and a
authorities were justified in ordering his arrest,
newspaper picture of Balagtas were shown. Oanis,
whether dead or alive. In view of said order and the
Galanta and a Constabulary private, after being told
danger faced by the appellants in carrying it out,
by the Provincial Inspector to gather information
they cannot be said to have acted feloniously in
about Balagtas, "to arrest him and, if overpowered,
shooting the person honestly believed by them to be
to follow the instructions contained in the telegram,"
the wanted man. Conscious of the fact that Balagtas
proceeded to the place where the house of Irene
would rather kill than be captured, the appellants
was located. Upon arriving thereat, Oanis
did not want to take chances and should not be
approached Brigida Mallari, who was then gathering
penalized for such prudence. On the contrary, they
banana stalks in the yard, and inquired for the room
should be commended for their bravery and courage
of Irene. After Mallari had pointed out the room, she
bordering on recklessness because, without knowing
was asked by Oanis to tell where Irene's paramour,
or ascertaining whether the wanted man was in fact
Balagtas, was, whereupon Mallari answered that he
asleep in his room, they proceeded thereto without
was sleeping with Irene. Upon reaching the room
hesitation and thereby exposed their lives to danger.
indicated, Oanis and Galanta, after the former had
shouted "Stand up, if you are Balagtas," started
The Solicitor-General, however, contends that the
appellants were authorized to use their revolvers
only after being overpowered by Balagtas. In the first
place, the alleged instruction by the Provincial
Inspector to that effect, was in violation of the
express order given by the Constabulary authorities
in Manila and which was shown to the appellants. In
the second place, it would indeed be suicidal for the
appellants or, for that matter, any agent of the
authority to have waited until they have been
overpowered before trying to put our such a
character as Balagtas. In the third place, it is
immaterial whether or not the instruction given by
the Provincial Inspector was legitimate and proper,
because the facts exist that the appellants acted in
conformity with the express order of superior
Constabulary authorities, the legality or propriety of
which is not herein questioned.
The theory of the prosecution has acquired some
plausibility, though quite psychological or
sentimental, in view only of the fact that it was not
Balagtas who was actually killed, but an "innocent
man . . . while he was deeply asleep." Anybody's
heart will be profoundly grieved by the trade, but in
time will be consoled by the realization that the life
of Serapio Tecson was not vainly sacrificed, for the
incident will always serve as a loud warning to any
one desiring to follow in the footsteps of Anselmo
Balagtas that in due time the duly constituted
authorities will, upon proper order, enforce the
summary forfeiture of his life.
In my opinion, therefore, the appellants are not
criminally liable if the person killed by them was in
fact Anselmo Balagtas for the reason that they did so
in the fulfillment of their duty and in obedience to an
order issued by a superior for some lawful purpose
(Revised Penal Code, art. 11, pars. 5 and 6). They
also cannot be held criminally liable even if the
person killed by them was not Anselmo Balagtas, but
112 | P a g e
Serapio Tecson, because they did so under an honest
mistake of fact not due to negligence or bad faith.
(U.S. vs. Ah Chong, 15 Phil., 488).
It is true that, under article 4 of the Revised Penal
Code, criminal liability is incurred by any person
committing a felony although the wrongful act done
be different from that which he intended; but said
article is clearly inapplicable since the killing of the
person who was believed to be Balagtas was, as
already stated, not wrongful or felonious.
The case of U.S. vs. Mendieta (34 Phil., 242), cited by
the Solicitor-General, is not in point, inasmuch as the
defendant therein, who intended to injure Hilario
Lauigan with whom he had a quarrel, but killed
another by mistake, would not be exempted from
criminal liability if he actually injured or killed Hilario
Lauigan, there being a malicious design on his part.
The other case involved by the prosecution is U.S. vs.
Donoso (3 Phil., 234). This is also not in point, as it
appears that the defendants therein killed one Pedro
Almasan after he had already surrendered and
allowed himself to be bound and that the said
defendants did not have lawful instructions from
superior authorities to capture Almasan dead or
alive.
The appealed judgment should therefore be
reversed and the appellants, Antonio Z. Oanis and
Alberto Galanta, acquitted, with costs de oficio.
HONTIVEROS, J., dissenting:
According to the opinion of the majority, it is proper
to follow the rule that a notorious criminal "must be
taken by storm without regard to his life which he
has, by his conduct, already forfeited," whenever
said criminal offers resistance or does something
which places his captors in danger of imminent
attack. Precisely, the situation which confronted the
accused-appellants Antonio Z. Oanis and Alberto
Galanta in the afternoon of December 24, 1938, was
very similar to this. It must be remembered that
both officers received instructions to get Balagtas
"dead or alive" and according to the attitude of not
only the said appellants but also of Capt. Monsod,
constabulary provincial inspector of Nueva Ecija, it
may be assumed that said instructions gave more
emphasis to the first part; namely, to take him dead.
It appears in the record that after the shooting, and
having been informed of the case, Capt. Monsod
stated that Oanis and Galanta might be decorated
for what they had done. That was when all parties
concerned honestly believed that the dead person
was Balagtas himself, a dangerous criminal who had
escaped from his guards and was supposedly armed
with a .45 caliber pistol Brigida Mallari, the person
whom the appellants met upon arriving at the house
of Irene Requinea, supposed mistress of Balagtas,
informed them that said Balagtas was upstairs.
Appellants found there asleep a man closely
resembling the wanted criminal. Oanis said: If you
are Balagtas stand up," But the supposed criminal
showed his intention to attack the appellants, a
conduct easily explained by the fact that he should
have felt offended by the intrusion of persons in the
room where he was peacefully lying down with his
mistress. In such predicament, it was nothing but
human on the part of the appellants to employ force
and to make use of their weapons in order to repel
the imminent attack by a person who, according to
their belief, was Balagtas It was unfortunate,
however that an innocent man was actually killed.
But taking into consideration the facts of the case, it
is, according to my humble opinion, proper to apply
herein the doctrine laid down in the case of
U.S. vs. Ah Chong (15 Phil., 488). In the instant case
we have, as in the case supra, an innocent mistake of
fact committed without any fault or carelessness on
the part of the accused, who having no time to make
a further inquiry, had no alternative but to take the
facts as they appeared to them and act immediately.
The decision of the majority, in recognition of the
special circumstances of this case which favored the
accused-appellants, arrives at the conclusion that an
incomplete justifying circumstance may be invoked,
and therefore, according to Article 69 of the Revised
Penal Code, the imposable penalty should be one
which is lower by one or two degrees than that
prescribed by law. This incomplete justifying
circumstance is that defined in Article 11, No. 5 of
the Revised Penal Code, in favor of "a person who
acts in the fulfillment of a duty or in the lawful
exercise of a right or office." I believe that the
application of this circumstance is not proper. Article
69 of the Revised Penal Code provides as follows:
Art. 69. Penalty to be imposed when the
crime committed is not wholly excusable. —
A penalty lower by one or two degrees than
that prescribed by law shall be imposed if
the deed is not wholly excusable by reason
of the lack of some of the conditions
required to justify the same or to exempt
from criminal liability in the several cases
mentioned in articles 11 and 12, provided
that the majority of such conditions be
present. The courts shall impose the penalty
in the period which may be deemed proper,
in view of the number and nature of the
conditions of exemption present or lacking.
This provision has been copied almost verbatim from
Article 84 of the old Penal Code of the Philippines,
and which was also taken from Article 87 of the
Spanish Penal Code of 1870.
113 | P a g e
Judge Guillermo Guevara, one of the members of the
Committee created by Administrative Order No. 94
of the Department of Justice for the drafting of the
Revised Penal Code, in commenting on Article 69,
said that the justifying circumstances and
circumstances exempting from liability which are the
subject matter of this article are the following: self-
defense, defense of relatives, defense of strangers,
state of necessity and injury caused by mere
accident. Accordingly, justifying circumstance No. 5
of Article 11 dealing with the fulfillment of a duty or
the lawful exercise of a right, calling or office, cannot
be placed within its scope.
The eminent treatiser of criminal law Mr. Groizard,
in his commentary of Article 87 of the Spanish Penal
Code of 1870 which is the source of Article 69 of our
Code says:
Ni tratandose de la imbecilidad, ni de la
locura, ni de la menor edad, ni del que obra
violentado por una fuerza inrresistible o
impulsado por miedo insuperable de un mal
igual o mayor, o en cumplimiento de un
deber, o en el ejercito legitimo de un
derecho, oficio o cargo, o en virtud de
obediencia debida, ni del que incurre en
alguna omision hallandose impedido por
causa legitima o insuperable, puede tener
aplicacion al articulo que comentamos. Y la
razon es obvia. En ninguna de estas
execiones hay pluralidad de requisitos. La
irrespondabilidad depende de una sola
condicion. Hay o no perturbacion de la
razon; el autor del hecho es o no menor de
nueve años; existe o no violencia material o
moral irresistible, etc., etc.; tal es lo que
respectivamente hay que examinar y
resolver para declarar la culpabilidad o
inculpabilidad. Es, por lo tanto, imposible
que acontezca lo que el texto que va al
frente de estas lineas rquiere, para que se
imponga al autor del hecho la penalidad
excepcional que establece; esto es, que
falten algunos requisitos de los que la ley
exige para eximir de responsabilidad, y que
concurran el mayor numero de ellos, toda
vez que, en los casos referidos, la ley no
exige multiples condiciones.
It must be taken into account the fact according to
Article 69 a penalty lower by one or two degrees
than that prescribed by law shall be imposed if the
deed is not wholly excusable by reason of the lack of
some of the conditions required by the law to justify
the same or exempt from criminal liability. The word
"conditions" should not be confused with the word
"requisites". In dealing with justifying circumstance
No. 5 Judge Guevara states: "There are two
requisites in order that this circumstance may be
taken into account: (a) That the offender acted in
the performance of his duty or in the lawful exercise
of a right; and (b) That the injury or offense
committed be the necessary consequence of the
performance of a duty or the lawful exercise of a
right or office." It is evident that these two requisites
concur in the present case if we consider the
intimate connection between the order given to the
appellant by Capt. Monsod, the showing to them of
the telegram from Manila to get Balagtas who was
with a bailarina named Irene, the conduct of said
appellants in questioning Brigida Mallari and giving a
warning to the supposed criminal when both found
him with Irene, and the statement made by Capt.
Monsod after the shooting.
If appellant Oanis is entitled to a reversal of the
decision of the court below, there are more reasons
in favor of the acquittal of appellant Galanta.
According to the evidence no bullet from the gun
fired by this accused ever hit Serapio Tecson.
Galanta was armed in the afternoon of December
24, 1938, with a .45 caliber revolver (Exhibit L). He so
testified and was corroborated by the unchallenged
testimony of his superior officer Sgt. Valeriano
Serafica. According to this witness, since Galanta was
made a corporal of the Constabulary he was given,
as part of his equipment, revolver Exhibit L with a
serial No. 37121. This gun had been constantly used
by Galanta, and, according to Sgt. Pedro Marasigan,
who accompanied said accused when he took it from
his trunk in the barracks on the night of December
24, 1938, upon order of Captain Monsod, it was the
same revolver which was given to the witness with
five .45 caliber bullets and one empty shell. Fourteen
unused bullets were also taken from Galanta by
Sergeant Serafica, thus completing his regular
equipment of twenty bullets which he had on the
morning of December 24, 1938, when Sergeant
Serafica made the usual inspection of the firearms in
the possession of the non-commissioned officers and
privates of the constabulary post at Cabanatuan.
Galanta stated that he had fired only one shot and
missed. This testimony is corroborated by that of a
ballistic expert who testified that bullets exhibits F
and O, — the first being extracted from the head of
the deceased, causing wound No. 3 of autopsy
report Exhibit C and the second found at the place of
the shooting, — had not been fired from revolver
Exhibit L nor from any other revolver of the
constabulary station in Cabanatuan. It was
impossible for the accused Galanta to have
substituted his revolver because when Exhibit L was
taken from him nobody in the barracks doubted that
the deceased was none other than Balagtas.
Moreover, Exhibit L was not out of order and
therefore there was no reason why Galanta should
carry along another gun, according to the natural
course of things. On the other hand, aside from
wound No. 3 as above stated, no other wound may
be said to have been caused by a .45 caliber revolver
bullet. Doctor Castro's record gives the conclusion
that wound No. 2 must have been caused by a .45
114 | P a g e
caliber revolver bullet. Doctor Castro's record gives
the conclusion that wound No. 2 must have been
caused by a .45 caliber bullet, but inasmuch as the
diameter of the wound's entrance was only 8 mm.,
the caliber should be .32 and not .45, because
according to the medico-legal expert who testified in
this case, a bullet of a .45 caliber will produce a
wound entrance with either 11 mm. or 12 mm.
diameter. All other wounds found by the surgeon
who performed the autopsy appeared to have been
caused by bullets of a lesser caliber. In consequence,
it can be stated that no bullet fired by Galanta did
ever hit or kill Serapio Tecson and therefore there is
no reason why he should be declared criminally
responsible for said death.
N BANC
[G.R. No. L-6189. November 29, 1954.]
SAMSON VILORIA CALDERON, Petitioner, v. PEOPLE
OF THE PHILIPPINES and the THE HONORABLE
COURT OF APPEALS, Respondents.
Col. Fred Ruiz Castro, Capt. Eleuterio S. Abiad and
Capt. Juan G. Esguerra for Petitioner.
Assistant Solicitor General Francisco Carreon and
Solicitor Jesus A. Avanceña for Respondents.
SYLLABUS
1. CRIMINAL LAW; PUBLIC OFFICERS; PERFORMANCE
OF DUTY. — The judgment and discretion of public
officer, in the performance of their duties, must be
exercised neither capriciously nor oppressively, but
within reasonable limits. In the absence of a clear
legal provision to the contrary, they must act in
conformity with the dictates of a sound discretion,
and with the spirit and purpose of the law. This is
specially true in the case of members of the armed
forces, whose main duty is to defend the state, and
consequently, the people who, in a democratic
society like ours, are the repository of sovereignty.
Such duty would be a myth if a law abiding tax payer
could be slain in his own home with impunity.
2. ID.; ID.; COMPARED WITH CASE OF PEOPLE v.
OANIS. — Appellant in the case at bar, has much in
common with the defendant in People v. Oanis (74
Phil. 257). The latter was a peace officer who had
been ordered to apprehend "dead or alive" a
notorious gangster and escaped convict. Having
been informed that the latter was living with a taxi
dance girl, appellant proceeded to her house, where
he saw a man in bed. Thereupon, appellant shot and
killed him. Although acting under the erroneous
belief that the victim was said gangster and escaped
convict, appellant was convicted, not merely of
homicide, but of murder. Obviously, the main reason
behind this conclusion was the fact that the accused
had acted with such a disregard for the life of the
victim — without checking carefully the latter’s
identity — as to place himself on the same legal
plane as one who kills another willfully, unlawfully
and feloniously.
3. ID.; HOMICIDE NOT CRIMINAL NEGLIGENCE;
REASON FOR THE CONCLUSION. — "The crime
committed by appellant is not merely criminal
negligence, the killing being intentional and not
accidental. In criminal negligence, the injury caused
to another should be unintentional, it being simply
the incident of another act performed without
malice. (People v. Sara, 55 Phil. 939). . . . And . . ., a
deliberate intent to do an unlawful set is essentially
inconsistent with the idea of reckless imprudence
(People v. Nanquil, 43 Phil. 232; People v. Bindor, 56
Phil. 16), and where such unlawful act is willfully
done, a mistake in the identity of the intended victim
cannot be considered as reckless or imprudence
(People v. Gona, 54 Phil. 605) to support a plea of
mitigated liability." (People v. Oanis, 74 Phil. 256.)
4. EVIDENCE; CREDIBILITY OF WITNESS;
CIRCUMSTANCES AFFECTING WITNESS’ CREDIBILITY.
— According to the evidence for the defense,
appellant was, at the time of the occurrence,
squatting upon a ditch, whereas the deceased was,
not only standing, but, also trying to climb the fence,
and consequently, at a higher level than appellant.
Yet, the former’s injury had a downward direction,
although it would have gone upward, if appellant’s
testimony were true. It is thus apparent that
appellant was neither candid nor truthful in the
narration of facts, and that the Court of Appeals was
fully justified in giving no credence to his testimony
and in accepting the version of the prosecution.
DECISION
CONCEPCION, J.:
Accused of homicide, defendant Samson Viloria
Calderon was, after due trial, convicted, by the Court
of First Instance of Manila, of homicide thru reckless
negligence and sentenced to an indeterminate
penalty ranging from 4 months of arresto mayor to 1
year and 6 months of prision correccional, to
indemnify the heirs of Eustacio Rodil, deceased, in
the sum of P3,000.00, with subsidiary imprisonment
in case of insolvency, and to pay the costs. On appeal
taken by said defendant, the Court of Appeals found
him guilty of homicide and imposed upon him an
indeterminate penalty of not less than 6 years and 1
day of prision mayor nor more than 14 years, 8
months and 1 day of reclusion temporal and, in all
other respects, affirmed the decision of the court of
115 | P a g e
first instance, with costs against the defendant. The
latter has brought the case to us for review by writ
of certiorari.
The pertinent facts are set forth in the decision of
the Court of Appeals, from which we
quote:jgc:chanrobles.com.ph
"En la noche del dia primero de abril de 1951, el
Teniente del ejercito, Leopoldo Regis, al mando de
un peloton de soldados, desplego doce de los
mismos, entre ellos Samson Viloria Calderon, en el
lado izquierdo del area Tejeron-Berran, Santa Ana,
Manila, que se pusobajo cordon, por sospecharse
que dentro de ella estaban tres jefes de los Huks.
Samson formaba la linea del cordon paralela al cerco
de ’square type wire fence’ (t. n. t. p. 8) del solar de
unos dos mil metros cuadrados de la casa No. 227 de
la calle Tejeron, Santa Ana, donde vivian Eustacio
Rodil, su esposa y sus hijos. El cerco de alambre
estaba reforzado con plantas de gumamela de
trecho en trecho. En el solar habia alguno que otro
grupo de platanos y una zahurda detras de la casa,
Entre 11:00 y 12:00 de esa noche, Benjamin Rodil,
uno de los hijos de Eustacio, se desperto por los
ladridos de los perros y el ruido que luego observo
producia el paso de un hombre. Abrio la ventana y se
puso a observar, y al convencerse que habia una
persona fuera del cerco, desperto, a sus hermanas,
Elisea y Virginia, y a su sobrino, Bernardo, informoles
que alguien estaba fuera del cerco y ordeno a Elisea
que abriera las dos bombillas electricas de a cien
bujias cada una, puestas detras de la casa para
alumbrar la zahurda, pues que, como hubo tentativo
de hurto de sus cercos en dos anteriores ocasiones,
creia que otro se intentaba llevar a cabo. Encendidas
las luces, Benjamin y su sobrino Bernardo bajaron al
solar, recogieron piedras y tiraronlas hacia el lugar
donde se oian los pasos, hacienda al mismo tiempo
ruido para ahuyentar. Asi estuvieron por unos quince
minutos en que, a veces, no oian los pasos del
individuo que estaba fuera del cerco, hasta que
Eustacio Rodil bajo y pregunto que era lo que habia.
Le contestaron que se oian pasos fuera de cerco. Y
Eustacio se dirigio hacia alli, llevando en la mano
derecha un bolo que llaman army bolo, que solia
usar para cortar la hierba del solar. Apenas se habia
alejado unos quince pies de Benjamin se oyo un tiro
y Eustacio volvio diciendo que le habian tocado
palpando al afecto la parte anterior de su hombro
izquierdo, de la que manaba sangre. Se desmayo
antes de llegar a su casa y le tuvieron que alzar y
colocarle en su cama. Mientras le quitaban la ropa
para descubrir sus heridas, llegaron dos soldados del
ejercito, Samson Viloria y Ernes Lemos, y despues el
teniente Leopoldo Regis, que sugirio el traslado de
Eustacio al Hospital General, sugestion a la que se
conformo el Dr. Deogracias Rodil, uno de los hijos de
Eustacio que avisado del suceso llego poco antes que
Regis, porque no tenia a mano medios para contener
la hemorragia que manaba de las heridas de su
padre. Embarcaron a Eustacio en un jeepney, y el Dr.
Deogracias y los soldados le llevaron al Hospital
General. Segun el Dr. Deogracias, el pregunto por el
que disparo a su padre y ninguno de los dos soldados
le contesto, pero, segun Samson, el le contesto que
habia sido el. En el Hospital Eustacio fallecio al dia
siguiente, 2 de abril, y el resultado de la autopsia de
su cadaver, practicada por el Dr. Mariano B. Lara,
Chief Medical Examiner MPD, consta en el Exh. B, . . .
x x x
Segun Benjamin, no oyo mas que que el estampido
de un tiro, y de acuerdo con el soldado Lemos, que
estaba a tres metros de distancia de Viloria, no vio a
este disparar sino una sola vez. El cadaver de
Eustacio, sin embargo, presentaba tres heridas de
entrada, en la parte anterior del hombro izquierdo, y
una de salida en la espalda, en la region escapular
izquierda, heridos que tales como estan marcadas en
los diseños del Exh. B-1, la unica de salida aparece
mas baja que las de entrada.
Viloria admite que fue el quien disparo el tiro, que
hirio y mato a Eustacio en la ocasion de autos, y
explicando el suceso, dijo:chanrob1es virtual 1aw
library
A. I believe that time he was a Huk to kill me, so I
shot him.
Q. What made you believe that he was a Huk?
A. Because there was information to the effect that
there were many Huks in this area.
x x x
Q. Do you know the place where the civilian came
from?
A. I know sir.
Q. From where?
A. From my front. Be came from the direction
opposite the place where I was at that time. (t.s.n. p.
35),.
Q. Was there any conversation between you and the
civilian before you shot him?
A. The civilian and I had a conversation.
Q. What was that conversation about?
A. I told him three times to halt and he said, if we did
not clear out of the area he would kill us.
Q. Who would kill?
116 | P a g e
A. The man.
Q. When you said to the civilian to halt did you
identify yourself.
A. Yes, sir.
x x x Q. Did he hack you?
Q. In what way did you identify yourself?
A. I told him I am a soldier.
Q. What did the man say if there is any?
A. I identified myself to him that I was a soldier, and
that I told him not to move, but he said, that if we
did not clear out the area he would kill, and he
swung his bolo to me and I retreated.
Q. What more did he do?
A. He nevertheless continued advancing forward and
he made movement as if to put one of his legs over
the fence. (t.s.n. p. 36).
Q. At the time that the civilian was going toward
you, could you see him?
A. I could see him only when he was two meters
distance from me.
Q. In that distance of two meters that was you could
see him already, do you remember if that civilian
carried with him something?
A. He has. He had an army bolo in his hand.
Q. In what hand was he carrying the bolo?
A. On the right hand.
Q. When he was at a distance of two meters, that
was when he was going toward you, what did he do?
A. He was about to hack me with his bolo.
A. Yes, sir.
Q. How many times did he hack you? What did he
do?
A. Three times.
Q. At the time when the civilian was hacking you,
could you demonstrate the position of the body and
the weapon in his hand?
A. (Witness demonstrate by placing the witness chair
in front of him and letting it be supposed as the
fence in front of the witness and bends forward over
the top of the fence so that the upper part of his
body is bent and over the top of the fence with his
right hand raised as if to strike, the left leg being
placed on the witness chair, supposed to be the
fence.)
Q. What was the distance of the civilian when he was
hacking you?
A. One meter.
Q. After hacking you three times, what did you do?
A. I shot him.
Q. Would you demonstrate before this Hon. Court
your position at the time when you shot the civilian?

A. (Witness demonstrated in a squatting position
with his left foot forward, his left elbow on his left
knee and with left hand a little bit raised and his
right hand drawn back as if holding the trigger part
of a rifle.)
Q. At the time when you were about to shoot him,
what did you feel in your person?
x x x injury. In this connection the Court of Appeals
A. I thought he was trying to kill me.
Q. What made you believe that he was trying to kill
you?
A. I thought he was a Huk.
Q. After having shot the civilian, what did you do?
A. I told my companion, Ernesto, to report the
matter to Lt. Regis." (t.s.n. p. 37).
Appellant maintains that:jgc:chanrobles.com.ph
"I. The Court of Appeals erred in holding that late
Eustacio Rodil did not commit acts of unlawful
aggression against the petitioner-appellant;
II. The Court of Appeals erred in not holding that
petitioner- appellant fired the shot under the
impulse of an uncontrollable fear of an equal or
greater injury;
III. The Court of Appeals erred in holding that the
shot fired by the petitioner-appellant did not
proceed from an innocent mistake of fact;
IV. The Court of Appeals erred in holding that the
117 | P a g e
ruling held by this Honorable Court in People v.
Oanis Et. Al. (74 Phil. 259), is applicable in the instant
case.
In support of the first, second and third assignments
of error, it is urged that Eustacio Rodil gave appellant
three bolo slashes, which missed him; that he
believed Rodil to be a Huk; and that appellant fired
at Rodil in self-defense and acting under the impulse
of an uncontrollable fear of an equal or greater
said:jgc:chanrobles.com.ph
"Eustacio venia de su casa, se dirigia al cerco de su
solar, tendido fuera del cordon, y no estaba, por lo
tanto, dentro del area sospechosa, accorralada en
esa ocasion por la fuerza armada a que pertenecia
Viloria. El solar detras de la casa de Eustacio, a cuyo
cerco este se dirigia, estaba alumbrado por dos
bombillas electricas de a cien bujias cada una. Mas
aun, antes de que Eustacio bajara de su casa y fuera
al cerco, al otro lado del cual se encontraban Viloria,
a este estuvieron Benjamin y Bernardo tirandole
piedras y ahuyentandole con la voz. Todas estas
circunstancias no daban lugar a suponer que habia
Huks en el solar de la casa de Eustacio, porque
ningun Huk atacaria encendiendo primeramente las
luces electricas, para exponerse asimismo a los que
estaban en la sombra, y menos aun tiraria piedras y
ahuyentaria haciendo ruido con la voz. No se
concibe, pues, como Viloria, que debe estar
entrenado contra las emboscadas de los Huks, podia
creer que Eustacio era un disidente; sobre todo
porque, segun el mismo, fue advertido que
despejara aquel sitio o de otro modo seria muerto.
Esta advertencia no puede proceder de un Huk, y es
toda la advertencia de un hombre que vive dentro
de la ley, y quiere proteger sus intereses. Pero esta
conversacion, que segun Viloria two con Eustacio, no
fue oida por Benjamin, ni la confirma Lemos, quien
ni siquiera corrobora a Viloria en su afirmacion de
que fue atacado tres veces por Eustacio con un army
bolo, y eso que, segun Lemos, el le vio a Viloria en el
acto de disparar a Eustacio, lo que indica que el
estaba tambien en condiciones de haber podido ver
si Eustacio hubiera atacado a Viloria. Por el hecho de
que entre Viloria y Eustacio habia de por medio el
cerco de ’square type wire fence’, no era de creer
que aunque este pudiera saltarlo, cosa dificil a su
edad de 68 años y su avitaminasis que, segun el Dr.
Deogracias, lo impedia mover libremente las
extremidades inferiores, lo intentaria, sabiendo que
con ello se exponia a un ataque, sin defensa de su
parte. Ademas, estando Viloria fuera del cerco,
Eustacio no era sino un espantajo dentro del cerco,
que si levantaba su bolo, lo hacia para espantar, sin
colocar de ninguna manera a aquel en situación
peligrosa. Y debe ser asi, por que de acuerdo con las
heridas que el Dr. Lara localizo el cadaver de
Eustacio, la unica de salida en la espalda, en la region
clavicular, aparece mas baja que las de entrada, en la
cara anterior del hombro izquierdo, y su direccion,
como se ven en la figura B-1, es de un angulo de
unos 60 grados, lo que denota que el acusado
cuando dispare su arma estaba a un nivel mas alto
que Eustacio, y no como trato de demostrarlo,
aquetandose con la pierna izquierda hacia delante y
apoyando su ccdo izquierdo en su rodilla izquierda.
No siendo exculpatoria la explicacion dada por
Viloria, y admitido por el que fue quien disparo el
tiro que hirio y mato a Eustacio, el debe responder
por esta agresion criminal, sin que pueda a su favor
invocar que en esa noche estaba en su puesto de
soldado, por exigencias del deber y el servicio,
publico, porque estos, en un gobierno de orden y de
ley, no immunizan al abuso, el exceso y el crimen. El
resultado de sus actos, ni siquiera puede
considerarse justificado por una falsa o erronea
identificacion de su victima, porque esta se hallaba
dentro de su solar, fuera del cordon, caminaba a la
luz electrica de doscientas bujias, le advertia, segun
el, que despejara el sitio, todo lo cual revela
claramente que no era disidente, ni quiera dañarle, y
el no estaba de ningun modo en peligro para optar
por una determinacion extrema, porque se
interponia entre el y Eustacio el cerco de alambre,
que este no trato de saltarlo para agredirle,
maliciosa y resueltamente."cralaw virtua1aw library
It is apparent from the foregoing that the Court of
Appeals found the theory of the defense unworthy
of credence. Not being subject to our review, this
finding is conclusive in the determination of the
assignments of error under consideration, Which
thus turn out to be based upon false predicates and
are, accordingly, untenable. At any rate, if, when the
fatal shot was fired by appellant, as testified to by
him, Rodil had just raised his left foot and placed it
— or was about to raise his left foot and place it —
on the lower portion of the wire fence, which was
slightly over one yard in height, for the purpose of
climbing it, he could not have given, at the same
time, a bolo slash, for appellant was on the other
side of the fence, squatting about a yard away
therefrom, and hence, beyond his reach. Besides,
Rodil — who was weak, for, apart from being over 68
years of age, he had avitaminosis, which impaired
the freedom of movement of his legs — could not
have gone over the fence without holding it with
both hands and would have lost his balance had he
swang his bolo while he was in the position
described by appellant. Even more unbelievable is
the latter’s testimony to the effect that, when Rodil
was still about a yard from the fence, and, hence,
two (2) yards away from appellant, the former had
already tried to hack him twice with his (Rodil’s)
bolo, which, in view of the distance and the fence
separating them, had no possibility of landing on
appellant. It is, likewise, interesting to note that,
according to the evidence for the defense, appellant
was, at the time of the occurrence, squatting upon a
ditch, whereas Rodil was, not only standing, but also,
118 | P a g e
trying to climb the fence, and, consequently, at a
higher level than appellant. Yet, the former’s injury
had a downward direction, although it would have
gone upward, if appellant’s testimony were true. It is
thus apparent, from the record, that appellant was
neither candid nor truthful in the narration of facts;
that the Court of Appeals was fully justified in giving
no credence to his testimony and in accepting the
version of the prosecution; and that the first three
assignments of error cannot be sustained.
It is contended, under the last assignment of error,
that, having acted under a mistake of fact, appellant
is exempt from criminal liability and that, at most, he
is merely guilty of homicide thru negligence. In
support of this pretence, it is urged that, in deciding
the case, we should consider the condition of
emotional stress under which appellant must have
been when he fired the fatal shot, not the objective
facts, as the same appeared after the event, and
that, being a peace officer, he was entitled to act in
conformity with his honest belief at the time of the
occurrence. Although generally material, the belief
and intent of the accused are not necessarily
decisive in the disposition of the case. The judgment
and discretion of public officers, in the performance
of their duties, must be exercised neither
capriciously nor oppressively, but within reasonable
limits. In the absence of a clear legal provision to the
contrary, they must act in conformity with the
dictates of a sound discretion, and with the spirit and
purpose of the law. This is specially true in the case
of members of the armed forces, whose main duty is
to defend the state, and, consequently, the people
who, in a democratic society like ours, are the
repository of sovereignty. Such duty would be a
myth if a law abiding tax payer could be slain in his
own home with impunity.
The army bolo held by Rodil at the time of the
occurrence does not suffice to justify his killing for,
does the fundamental law not guarantee the
inviolability of his domicile? Was it not, accordingly,
the legal obligation of appellant to respect and even
protect the same? Was Rodil not entitled, therefore,
to defend it as his own "castle" or citadel? Any other
view would create the impression that peace officers
are public masters, not public servants, thus
alienating the faith and confidence of the people in
the government, and undermining the foundation of
all democratic institutions.
Furthermore, the Court of Appeals did not believe
that appellant had acted under a mistake of fact.
Indeed, he had no reason to assume, or even
suspect, that Rodil was a Huk, the latter being inside
his property, which was fenced, as well as outside
the area then guarded by the army. Moreover,
shortly before the shooting, members of the Rodil
family had switched on two 100-watt electric bulbs,
which illuminated their lot brightly. Then, they went
to the yard and started throwing stones in the
direction of the place where appellant and other
soldiers were posted, believing them to be
marauders with evil designs. In addition, the former
made some noises in order to scare the latter away.
This lasted for about 15 minutes, after which
Eustacio Rodil appeared in the scenes holding an
army bolo in his right hand, and proceeded to the
spot where the supposed marauders were posted, at
the same time bidding them to go away. As Rodil
approached or reached the fence aforementioned,
he was fatally shot by appellant. Obviously, no
individual, who is a Huk, bent on killing the
appellant, would have lighted the place with said
electric bulbs. Much less would said Huk have
performed or caused to be performed the acts above
referred to — the effect of which upon appellant and
his companions was to warn them in advance —
before attacking him. In other words, appellant had
absolutely no justification whatsoever to believe —
and could not have believed — either that Rodil was
a Huk or that he intended to kill said Appellant.
In the light of these facts, and considering that Rodil
was shot with the intent of killing him, it is clear that
appellant does not deserve an acquittal. The cases of
People v. Lara (48 Phil., 153), U. S. v. Mojica (42 Phil.,
784), U. S. v. Ah Chong (15 Phil., 448), and People v.
Bayambao (52 Phil., 311), cited by the defense, are
not in point. In the first two cases, there was actually
an unlawful agression on the part of the deceased. In
the last two cases, the defendant had reasonable
grounds — which herein appellant did not have — to
believe that their lives were in imminent danger. We
have, likewise, considered the applicability of the
rule laid down in the case of People v. Mamasalaya,*
(50 Off. Gaz., 1104), involving, among others, an
officer of the Philippine Constabulary, one Lt.
Cabelin, in command of several members of said
force, who, in compliance with his instructions, had
fired at some houses in the barrio of Sapalan,
Cotabato, Cotabato, thereby killing several innocent
persons. In acquitting him, this Court
said:jgc:chanrobles.com.ph
". . . There is no charge or claim that he acted
deliberately and criminally in killing the four
innocent civilians knowing that they were innocent.
In good faith he believed that the three houses
pointed out to him by Bulalakao were being
occupied by bandits and lawless elements whom he
was ordered to disperse, capture or destroy. The
question is whether he incurred in negligence or
reckless imprudence in ordering his men to fire upon
the houses. As previously stated, the witnesses for
the defense including Lt. Cabelin told the court
under oath that the patrol was first fired upon from
the three houses but in spite of this unprovoked fire
he and his sergeant shouted and called out to the
inmates of the houses not to fire because they
(members of the patrol) were P. C. soldiers; and it
was only when the firing persisted that he ordered
119 | P a g e
his men to return the fire. Of course, the prosecution
denies this claim. But even assuming as claimed by
the prosecution that the patrol had not been first
fired upon, and that Cabelin and his sergeant had
not shouted or called out to the inmates of the
houses to identify himself and his men, under the
circumstances, we believe that the shooting was
justified for having been done and effected under an
honest mistake." (Italics supplied)
We do not believe that appellant herein is
substantially in the same predicament as Lt. Cabelin
for: (1) the former had not been told by anybody
that Eustacio Rodil was a Huk or an outlaw, unlike
Cabelin who had been advised that the inhabitants
of the houses in question were bandits and or
lawless elements; and was requested to proceed
against them as such; (2) Cabelin was in Cotabato, in
a region known to be infested by said elements,
whereas Rodil was in Manila, outside the area
cordoned by the peace officers; (3) the Mamasalaya
case involved an appeal directly from a decision of
the court of first instance, whose findings of fact are
not binding upon the Supreme Court, which
accepted and believed the version of Cabelin, or
most of it whereas the case at bar is before us upon
a petition for review, by writ of certiorari, of a
decision of the Court of Appeals, which found the
theory of the defense to be unworthy of credence,
and this finding is conclusive upon us; and (4) a
majority of the members of this Court — with one
member writing a strong dissenting opinion and 3
members not taking part in the decision - found that
Cabelin had acted under the "honest mistake" that
the deceased were dissidents and/or outlaws, and
that he was "justified" in ordering the shooting,
unlike the case at bar in which the court of first
instance, the Court of Appeals and the majority of
this Court agree that appellant had no reason to
"mistake" Rodil for a Huk and that the former was
not justified therefore, in shooting him.
Is appellant herein guilty of homicide or, merely, of
homicide through either simple or reckless
negligence? We have given considerable thought to
this question and devoted a good deal of our time in
the study of the authorities pertinent thereto, and
the conclusion reached by the majority of the
members of this Court is in favor of the first
alternative, for the following reasons,
namely:chanrob1es virtual 1aw library
1. In People v. Guillen 1 (47 Off. Gaz., 3433, 3440) it
was held that "a deliberate intent to do an unlawful
act is essentially inconsistent with the idea of
reckless imprudence. (People v. Nanquil, 43 Phil.,
232). Where such an unlawful act is willfully done, a
mistake in the identity of the intended victim cannot
be considered as reckless imprudence. (People v.
Gona, 54 Phil., 605)." In People v. Castillo 2 (42 Off.
Gaz., 1914, 1921), this Court declared that there can
be no frustrated homicide through reckless
negligence, for reckless negligence implies lack of
intent to kill, without which the crime of frustrated
homicide can not exist. In the case of People v.
Dumon (72 Phil., 41, 49), the court convicted of
double homicide a person who killed a couple,
allegedly in the act of copulation, in the erroneous
belief that the woman was his wife committing
adultery, the theory that the offense had been
committed thru reckless negligence, having been
rejected, for the reason, among others, that "the act
of firing the fatal shot was intentional" on the part of
the accused. Similarly, a peace officer who killed a
person asleep, in the mistaken belief that he was a
notorious criminal and escaped convict, whom the
authorities wanted dead or alive, was found guilty of
murder in People v. Oanis (74 Phil., 256). In disposing
of the case, this Court said:jgc:chanrobles.com.ph
"The crime committed by appellants is not merely
criminal negligence, the killing being intentional and
not accidental. In criminal negligence, the injury
caused to another should be unintentional, it being
simply the incident of another act performed
without malice. (People v. Sara, 55 Phil., 939). In the
words of Viada, ’para que se califique un hecho de
imprudeucia es preciso que no haya mediado en el
malicia ni intencion alguna de dañar; existiendo esa
intencion, debera calificarse el hecho del delito que
ha producido, por mas que no haya sido la intencion
del agente el causar un mal de tanta gravadad como
el que se produjo.’ (Tomo 7, Viada Codigo Penal
Comentado, 5, aed., pag. 7). And, as once held by
this Court, a deliberate intent to do an unlawful act
is essentially inconsistent with the idea of reckless
imprudence (People v. Nanquil, 43 Phil., 232; People
v. Bindor, 56 Phil., 16), and where such unlawful act
is willfully done, a mistake in the identity of the
intended victim cannot be considered as reckless
imprudence (People v. Gona, 54 Phil., 605) to
support a plea of mitigated liability."cralaw
virtua1aw library
2. The case of People v. Fernando (49 Phil., 75), in
which the defendant, was convicted of homicide
through reckless negligence, is substantially different
from the case at bar. It was satisfactorily established
in said case that the defendant therein was informed
that the victim was an out-law, wanted by the
authorities, and the surrounding circumstances were
such that said defendant had some reason to believe
the information to be true. In the Fernando case, the
language used was:jgc:chanrobles.com.ph
"The status of the accused on the night in question
was that of an agent of the law, to whom notice had
been given of the presence of suspicious looking
persons who might be the Moro prisoners who had
escaped from the Penal Colony of San Ramon. The
appearance of a man, unknown to him, dressed in
clothes similar in color to the prisoners’ uniform,
who was calling the owner of the house, and the
120 | P a g e
silence of Paciencia Delgado, who did not at the time
recognize the man, undoubtedly caused the accused
to suspect that the unknown man was one of the
three persons that the owner of the house said were
prowling around the place. The suspicion became a
reality in his mind when he saw that the man
continued ascending the stairs with a bolo in his
hand, not heeding his question as to who he was. In
the midst of these circumstances and believing
undoubtedly that he was a wrongdoer he tried to
perform his duty and first fired into the air and then
at the alleged intruder. But it happened that what to
him appeared to be a wrongdoer was the nephew of
the owner of the house who was carrying three
bolos tied together. At that psychological moment
when the forces of fear and the sense of duty were
at odds, the accused was not able to take full
account of the true situation and the bundle of bolos
seemed to him to be only one bolo in the hands of a
suspicious character who intended to enter the
house. There is, however, a circumstance that should
have made him suspect that the man was not only a
friend but also a relative of the owner of the house
from the fact that he called ’Nong Miong,’ which
indicated that the owner of the house might be an
older relative of the one calling, or an intimate
friend; and in not asking Paciencia Delgado who it
was that was calling her father with such familiarity,
he did not use the ordinary precaution that he
should have used before taking such fatal action.
"Taking into consideration the state of mind of the
accused at the time, and the meaning that he gave
to the attitude of the unknown persons, in shooting
the latter he felt that he was performing his duty by
defending the owners of the house against an
unexpected attack, and such act cannot constitute
the crime of murder, but only that of simple
homicide. He cannot be held guilty, however, as
principal, with malicious intent, because he thought
at the time that he was justified in acting as he did,
and he is guilty only because he failed to exercise the
ordinary diligence which, under the circumstances,
he should have by investigating whether or not the
unknown man was really what he thought him to be.
In firing the shot, without first exercising reasonable
diligence, he acted with reckless negligence.
"The crime committed by the accused, therefore, is
homicide through reckless negligence . . ." (pp. 78-
79)
Upon the other hand, appellant herein had never
been informed that Rodil was a Huk. As already
adverted to, the conditions obtaining at the time of
the occurrence were such as to leave no room for
doubt that Rodil could not be Huk and did not intend
to kill the herein appellant. Incidentally, the
Fernando case is clear authority against appellant’s
bid for acquittal.
3. Appellant herein has much in common with the
defendant in People v. Oanis (74 Phil., 257). The
latter was a peace officer who had been ordered to
apprehend, "dead or alive" a notorious gangster and
escaped convict known as Balagtas. Having been
informed that the latter was living with a taxi dance
girl, named Irene, the accused proceeded to the
house in which she lived. As he opened the door of
her room, defendant saw a man in her bed,
whereupon he (defendant) shot and killed him.
Although, acting under erroneous belief that the
victim was Balagtas, this Court convicted the
accused, not merely of homicide, but of murder.
Obviously, the main reason behind this conclusion
was the fact that the accused had acted with such a
disregard for the life of the victim — without
checking carefully the latter’s identity — as to place
himself on the same legal plane as one who kills
another willfully, unlawfully and feloniously. In
shooting Rodil — who, obviously, could neither be a
Huk nor a killer — appellant herein has acted under
similar conditions.
4. The view of the Supreme Court of Spain in its
decision of April 26, 1883, is substantially the same.
In connection therewith, we quote from
Viada:jgc:chanrobles.com.ph
"El morador de un cortijo que oyendo ladrar los
perros, y temeroso de que alguien se acercase a
sustraer las caballerias, se asoma al balcon, dando el
’quien vive’, y como nadie contestase, dispara la
escopeta sobre un bulto, apareciendo al dia
siguiente en dicho sitio el cadaver de un sujeto,
intimo amigo de aquel, cuya familia no supo
explicarse el motivo que le condujera al lugar donde
fue encontrado muerto, sera responsable del delito
de homicidio, o simplemente del de imprudencia
temeraria? — El Tribunal Supremo ha declarado que
la primara y mas grave calificacion es la procedente:
’Considerando que en la sentencia recurrida se
declara como hecho probado que Pedro Molina,
despues de preguntar repetidamente ’quien vive?’ y
como nadie le contestase, disparo su escopeta sobre
un bulto que distinguio a distancia de seis varas, lo
cual demuestra que ejecuto este hecho voluntaria e
intencionalmente sobre una persona, porque de una
persona debio creer que era el expresado bulto,
cuando le pregunto ’quien vive?’, y por lo tanto, que
cometio el delito de homicidio por que ha sido
penado: Considerando que para que se entienda que
un hecho se ha cometido por imprudencia temeraria
y puede tener aplicacion el parrafo primero del art.
581 del Codigo penal, es requisito indispensable que
en la ejecucion no haya mediado malicia, lo cual no
ocurre en el caso del recurso porque con malicia, y
voluntad obro Pedro Molina disparando un arma de
fuego sobre el bulto de una persona a la que causo la
muerte, etc." (S. de 26 de abril de 1883, Gaceta de 5
de septiembre.) (Viada, Vol., 7 5th ed., p. 23.)
In view of the foregoing, we are of the opinion and
121 | P a g e
so hold that the decision of the Court of Appeals
should be as it is hereby affirmed. However, in view
of the appellant’s youth and considering that he had
joined the Philippine Army a few months only, prior
to the occurrence, the Clerk of Court is hereby
directed to forward a copy of this decision to the
President of the Philippines, through the Secretary of
Justice, for consideration of the propriety of
extending to appellant herein the benefits of
executive clemency, after service of such period of
the sentence imposed as maybe deemed sufficient
to satisfy the demands of justice and public interest.
With costs against the appellant. So ordered.
Pablo, Bengzon, Padilla, Reyes, A., Jugo, and Bautista
Angelo, JJ., concur.
Paras, C.J., concurs in the result.
Separate Opinions
MONTEMAYOR, J., dissenting:chanrob1es virtual
1aw library
Appellant Samson Viloria Calderon, hereafter
referred to as Viloria, a member of the Armed Forces
of the Philippines, was convicted by the Court of First
Instance of Manila, of homicide thru reckless
negligence and sentenced to an indeterminate
penalty ranging from four (4) months of arresto
mayor to one (1) year and six (6) months of prision
correccional, to indemnify the heirs of Eustacio Rodil
in the amount of P3,000, with subsidiary
imprisonment in case of insolvency, and to pay the
costs. On appeal to the Court of Appeals, said
Tribunal found him guilty of homicide and sentenced
him to an indeterminate penalty of not less than six
(6) years and one (1) day of prision mayor nor more
than fourteen (14) years, eight (8) months and one
(1) day of reclusion temporal with the same
indemnity of P3,000 imposed by the trial court. The
case is now with us on appeal.
In affirming the decision of the Court of Appeals the
majority opinion accepts and makes its own the
finding and conclusions made by the Court of
Appeals, and in fact quotes with approval said
findings and conclusions, saying that the same are
not subject to review by the Supreme Court and are
conclusive in the determination of the case. In this
dissent I venture to assert and to hold that while the
findings of fact by the Court of Appeals in this case,
as in other cases appealed to it, are conclusive and
while I accept said findings of fact, the conclusions
arrived at by the Court of Appeals on the basis of
said facts or findings of fact, involve no longer
questions of fact but rather of law, and are subject
to review and correction by this highest Tribunal.
Some of those conclusions I cannot accept, believing
as I do that they are not only contrary to the
evidence, but are not supported by the very findings
of fact made by said Court of Appeals. And in
accepting said conclusions, to me erroneous, the
majority of this Court has unwittingly also fallen into
error. Furthermore, I believe that if the Court of
Appeals fails to make findings on certain points
which are important and relevant, even decisive, we,
in order to complete the mental picture of all that
really happened and the circumstances and
conditions then obtaining, could and should
supplement and add to those findings of fact of the
Court of Appeals, as long as our own findings are
supported by the evidence and are not contrary to
the said findings of fact of the Court of Appeals, tho
contrary to its conclusions. To fill said gap in said
findings of the Court of Appeals I propose to state
the facts as I find them in the record, not only to
complete the background but also in order to show
that certain conclusions of the Court of Appeals
which led the majority of this Tribunal to unwittingly
fall into error, are not supported or warranted by the
said findings of fact.
The facts as found by the Court of Appeals and
accepted by this high Tribunal and not disputed,
briefly stated, are as follows. On or before April 1,
1951 the Headquarters of the Armed Forces of the
Philippines in Camp Murphy thru its Intelligence
Department was informed that as a result of the
infiltration of Huks in Manila, the Huk organization
had its regrouping center in the Tejeron-Herran area,
Manila, and that its members were holding regular
meetings there and that three top Huk Commanders,
among them Nick Pamintuan, could be found in that
area. The Army therefore decided to conduct as it
did conduct on April 1, 1951, a raid through its
Military Intelligence Service (MIS). To support this
raid and to prevent the escape of the dissidents
sought to be apprehended, a platoon of 36 soldiers
under the command of Lt. Leopoldo Regis was
dispatched to the area. He deployed his men in three
squads of 12 men each, and Viloria was assigned to
the left flank of the cordon. This line of 12 men was
parallel to the square-type wire fence which
surrounded the yard or lot of the deceased Eustacio
Rodil, and where his house stood. At about 11:30
that night appellant Viloria took his position next to
and outside the fence of Eustacio, squatting in a
depression or canal. It seems that the movements
and steps of the soldiers were noticed by a son of
Eustacio named Benjamin who later woke the
inmates of the house up and turned on the lights
behind the house. A word about said lights.
According to the prosecution the house of Eustacio
had previously been the object of three robberies; in
the first two, the robbers could enter the house and
were able to carry away some things, but in the
third, the robbers failed to enter the house because
of the precautions taken by Eustacio’s family. To
discourage further attempts at robbery, two electric
lights each with a 100-watt bulb were installed
122 | P a g e
behind the house, not only to light up the outside of
the house but also that of the pig pen behind the
house where many pigs were kept. Whenever the
inmates of the house felt that there were marauders
prowling around, these two lights were turned on to
discourage them.
For fifteen minutes Benjamin was at the window
looking out and observing but he could not see
anybody. In order to better observe, he and a
nephew went down and posted themselves behind
the house and because they continued hearing some
noise in the direction of the pig pen although they
could not see anyone, they emitted some sounds as
if to challenge or scare away possible prowlers in
that area, and they even threw stones in that
direction. Explaining on direct examination why he
could not see those who were making the noise near
or outside the fence, Benjamin testified as
follows:jgc:chanrobles.com.ph
"Fiscal:chanrob1es virtual 1aw library
Q. During the time that you were making hollering
sounds could you see the person making sound?
A. No. Sir.
Q. Why could you not see?
A. Because in that place of the sounds where it is
coming from, it is very dark while in our place, it is
very lighted. That is why we cannot see." (t.s.n., p.
8).
Not long thereafter, the father Eustacio came down
the house to make inquiries, carrying an Army bolo
which he was in the habit of using to cut grass in the
yard, and upon being informed that there seems to
be people in the direction of the pig pen, he
proceeded thereto with his bolo. After a short time a
shot was heard and Eustacio was seen staggering
towards the house fatally wounded in the shoulder
and back. He was taken up the house and examined
by the children and then a son who is a doctor was
sent for. Not long thereafter, Lt. Regis, having been
informed of the shooting, went up the house with
two soldiers including Viloria, and at his suggestion
and with the conformity of the son doctor who had
already arrived, Eustacio was taken to the hospital
accompanied by Viloria and the other soldier.
Eustacio later died of his wound.
No witness for the prosecution testified as to the
actual shooting which was owned and accepted by
Viloria. Only Viloria gave testimony on this point
although a fellow soldier named Limos said that he
saw Viloria fire at Eustacio. Consequently, any
finding as to the manner Eustacio was shot and the
circumstances surrounding the shooting must be
based solely on the testimony of Viloria if found
reasonable and acceptable, or it may he based on
mere inferences from the attending circumstances.
Viloria told the court that as he was squatting near
and outside the fence observing and awaiting
developments as he was instructed to do as a
member of the raiding party in that troubled area,
presumably to prevent the escape of those sought to
be apprehended, he suddenly saw a figure (Eustacio)
brandishing a bolo and advancing toward the fence
in his (Viloria’s) direction ordering whoever was
there to leave otherwise he would kill him.
Viloria said that he explained to the advancing figure
that he was a soldier and three times ordered him to
stop; but the man continued advancing not only
brandishing the bolo in front of him in slashing
fashion but when he reached the wire fence he
raised his left leg and bent over forward as if to climb
over this moment or instant that Viloria fired his
carbine, assuring the Court that he honestly believed
that the man was a Huk determined to kill and so he
shot him in self-defense. Without much if any
explanation the Court of Appeals evidently discarded
and rejected this testimony of Viloria about the
warning and exchange of words between him and
Eustacio merely saying that his fellow soldier Limos
failed to corroborate him on this point, nor was the
alleged conversation heard by Benjamin. Then, the
Court of Appeals makes this rather ambiguous and
startling statement and conclusion which to me is
unfortunate as it is unfounded.
"No se concibe, pues, como Viloria, que debe estar
entrenado contra las emboscadas de los Huks, podia
creer que Eustacio era un disidente; sobre todo
porque; segun el mismo, fue advertido que
despejara aquel sitio o de otro modo seria muerto.
Esta advertencia no puede proceder de un Huk, y es
toda la advertencia de un hombre que vive dentro
de la ley, y dentro de la ley quiere proteger sus
intereses. Pero esto conversacion, que segun Viloria
tuvo con Eustacio, no fue oida por Benjamin, ni lo
confirma Lemos, . . ."cralaw virtua1aw library
How shall we interpret the above statement of the
Court of Appeals. Did the conversation between
Eustacio and Viloria take place, namely that Eustacio
warned and ordered any one in the area to clear out
and leave, otherwise he (Eustacio) would kill him,
and the explanation of Viloria that he was a soldier
and that he ordered Eustacio three times to halt,
take place, or did it not? Apparently, to the Court of
Appeals, to show that Eustacio was a peaceful citizen
within his own premises who merely asserted his
rights, the conversation took place; but to support
Viloria’s claim that he halted him three times and
even identified himself as a soldier, it did not take
place. This ambiguity is rather disconcerting and was
what probably prompted Viloria’s counsel to say in
his brief:jgc:chanrobles.com.ph
"It is clear that by this statement, the Court of
123 | P a g e
Appeals dismisses the idea that the petitioner-
appellant could not have mistaken the deceased as a
Huk for the reason that no person not within the law
will ever give the warning so given by Eustacio. But,
the Court of Appeals in continuing stated, ’Pero esta
conversacion, que segun Viloria tuvo con Eustacio,
no fue oida por Benjamin, ni la confirma Lemos . . .’
In effect, for the purpose of showing that no Huk
could be in the yard and that Eustacio should not
have been mistaken for a Huk, the conversation took
place; but; for purposes of showing that the
deceased did not halt as ordered and that Eustacio
was menacing in attitude and determined to drive or
kill the intruder by the fence, the conversation was
deemed not to have taken place."cralaw virtua1aw
library
Again the Court of Appeals makes the following
statement and conclusion:jgc:chanrobles.com.ph
"El solar detras de la casa de Eustacio, a cuyo cerco
este se dirigia, estaba alumbrado por dos bombilias
electricas de a cien bujias cada una. Mas aun, antes
de que Eustacio bajara de su casa y fuera al cerco, al
otro lado del cual se encontraban Viloria, a este
estuvieron Benjamin Bernardo tirandole piedras y
ahuyentandole con la voz. Todas estas circunstancias
no daban lugar a suponer que habia Huks en el solar
de la casa de Eustacio, porque ningun Huk atacaria
encendiendo primeramente las luces electricas, para
exponerse asimismo a los que estaban en la sombra,
y menos aun tiraria piedras y ahuyentaria haciendo
ruido con la voz."cralaw virtua1aw library
And the majority approving the said statement and
conclusion adds:jgc:chanrobles.com.ph
". . . Obviously, no individual, who is a Huk, bent on
killing the appellant, would have lighted the place
with said electric bulbs. Much less would said Huk
have performed or caused to be performed the acts
above referred to — the effect of which upon
appellant and his companions was to warn them in
advance — before attacking him. In other words,
appellant had absolutely no justification whatsoever
to believe — and could not have believed — either
that Rodil was a Huk or that he intended to kill said
appellant."cralaw virtua1aw library
They both assume and take for granted that Viloria
saw and knew that Eustacio came from the house;
that he was the owner of the same; that it was he
who turned on the lights and that he was the same
person who approached the fence outside of which
Viloria was stationed. The Court of Appeals
overlooked the fact testified to by the very witness
for the prosecution (Benjamin) and found by itself
that the fence was nailed to and supported by
gumamela shrubs and that near or around the pig
pen there was a clump of banana trees and that it
was very dark in that vicinity and so he (Benjamin)
could not see what was behind those gumamela and
banana trees. Let me again quote what he said,
"Because in that place of the sounds where it is
coming from, it is very dark while in our place, it is
very lighted. That is why we cannot see." Besides,
the yard is quite extensive, containing 2,000 sq.
meters according to the very finding of the Court of
Appeals, and if the house was constructed on one
end as it probably was, because it fronted Tejeron
street (bearing street No. 227 Tejeron) according to
the evidence, then the backyard must indeed be
quite big so that the two lights installed behind the
house despite their power, could not have
illuminated all that area, especially that part of the
fence behind which Viloria was stationed, taking into
account the gumamela and banana trees growing
there and which according to Benjamin himself,
Eustacio’s son, was very dark. It was therefore
possible, if not probable that Viloria who was
squatting behind those banana trees and gumamela
shrubs and even outside the fence, intent on
observing what was happening in the direction of
the house or houses being raided by the MIS, did not
notice or could not even see what was happening in
the yard of Eustacio, and that even if he noticed the
light from the place where he was squatting, he
could not have possibly seen who turned it on nor
seen Eustacio as the latter walked towards the
gumamela shrubs and banana trees. For all he knew,
Eustacio may have been one of the Huks scared by
the MIS raiders, who was trying to escape through
the yard of Eustacio and who, when surprised by the
turning on of the lights in the yard sought refuge and
protection in the gumamela shrubs and banana trees
and then tried to get away by going over the fence,
when he was confronted by Viloria.
Again, the Court of Appeals says that Viloria being a
trained soldier and alerted in the ambuscades of
Huks could not possibly believe that Eustacio was a
dissident. It said "no se concibe, pues, como Viloria,
que debe estar entrenado contra las emboscadas de
los Huks, podia creer que Eustacio era una disidente;
. . . ." This statement about Viloria being trained on
ambuscades by Huks is not a finding but only a
conclusion. Because Viloria was an Army soldier
then, the Court of Appeals jumped to the conclusion
that he must have been trained in dealing with Huks.
This unfortunate conclusion not only is not
supported by the record but it is contrary to the
evidence itself which is to the effect that Viloria was
a raw recruit, having enlisted in the Army only on
January 8, 1951, less than three months before the
raid. In fact, the majority of this Court, disregarding
the above conclusion of the Court of Appeals, takes
notice of Viloria’s being very new in the service and
for this reason suggest that Viloria might merit
Executive Clemency.
Both the majority of this Court and the Court of
Appeals would not even grant that Viloria without
any criminal intent, acted recklessly in firing his gun,
124 | P a g e
without taking the necessary precautions to
ascertain the identity of Eustacio, and so is guilty
only of homicide thru reckless imprudence as was
found by the trial court, and in support of their
stand, both courts cite the case of People v. Oanis,
74 Phil. 262. It may be stated in this connection that
said case was decided by a divided court, — five for
the majority, with Justice Paras and Hontiveros
strongly dissenting, the first being presently our
Honorable Chief Justice. The case of Oanis involved
the shooting of an innocent citizen (Serapio Tecson)
sleeping in a room, with his back to the door where
the appellant were, shot by the latter in the honest
belief that Tecson was the dangerous criminal they
were alter. Chief Justice Paras in his dissent
said:jgc:chanrobles.com.ph
"In view of said order and the danger faced by the
appellants in carrying it out, they cannot be said to
have acted feloniously in shooting the person
honestly believed by them to be the wanted man.
Conscious of the fact that Balagtas would rather kill
than be captured, the appellants did not want to
take chances and should not be penalized for such
prudence. On the contrary, they should be
commended for their bravery and courage bordering
recklessness because, without knowing or
ascertaining whether the wanted man was in fact
asleep in his room, they proceeded thereto without
hesitation and thereby exposed their lives to
danger."cralaw virtua1aw library
And in relation to this aspect of the case, as to
whether or not Viloria, if guilty at all, is guilty only of
homicide through reckless imprudence, I am inclined
to believe that the case of People v. Fernando, 49
Phil., 75 cited by the trial court in support of its
decision is more applicable. In reversing the
judgment of the trial court finding Fernando guilty of
murder, and sentencing him to twenty years of
cadena temporal, the Supreme Court in finding him
guilty only of homicide thru reckless negligence
said:jgc:chanrobles.com.ph
"Taking into consideration the state of mind of the
accused at the time, and the meaning that he gave
to the attitude of the unknown person, in shooting
the letter he felt that he was performing his duty by
defending the owners of the house against an
unexpected attack, and such act cannot constitute
the crime of murder, but only that of simple
homicide. He can not be held guilty, however, as
principal, with malicious intent, because he thought
at the time that he was justified in acting as he did,
and he is guilty only because he failed to exercise the
ordinary diligence which, under the circumstances,
he should have by investigating whether or not the
unknown man was really what he thought him to be.
In firing the shot, without first exercising reasonable
diligence, he acted with reckless negligence."cralaw
virtua1aw library
The case of Fernando above cited, to me, is really
similar to the present case, assuming that Viloria is
guilty at all.
We, who are now in possession of all the facts
disclosed by the evidence presented at the trial
know that Eustacio was a peaceful citizen inside his
own yard merely trying to drive or chase away the
person or persons whom he believed to be potential
robbers or thieves, and on the basis of said facts, one
may say as do the Court of Appeals and the majority
that Viloria’s action in shooting him as wholly
unwarranted and uncalled for, because there was
absolutely no danger to him and besides, considering
the age of Eustacio who was 68 years old, and that
he was suffering from avitaminosis, he could not
anyway have gone over the fence to carry out his
empty threats to kill. But how was Viloria, at the
time, to know all these facts? How was he to know
that Eustacio was a peaceful citizen; that he was the
owner of the house and of the yard enclosed by the
fence; that he was 68 years old and suffering from
avitaminosis and so could not possibly climb over the
fence, and that he was merely trying to scare him
(Viloria) and his companions?
It is a settled rule and principle of law that a person
accused of and being held responsible for a criminal
act must be judged, not by the fact as they turned
out to be after investigation and trial but rather what
he at the time honestly believed them to be so, and
that if the facts he then believed them to be,
justified his act, then he must be held innocent. In
the case of U.S. v. Ah Chong, 15 Phil., 488, this Court
said:jgc:chanrobles.com.ph
"The question then squarely presents itself, whether
in this jurisdiction one can be held criminally
responsible who, by reason of a mistake as to the
facts, does an act for which he would be exempt
from criminal liability if the facts were as he
supposed them to be, but which would constitute
the crime of homicide or assassination if the actor
had known the true state of the facts at the time
when he committed the act. To this question we
think there can be but one answer, and we hold that
under such circumstances there is no criminal
liability, provided always that the alleged ignorance
or mistake of fact was not due to negligence or bad
faith.
". . . On the contrary, the maxim here is Ignorantia
facti excusat (’Ignorance or mistake in point of fact
is, in all cases of supposed offense, a sufficient
excuse’). (Brown’s Leg. Max., 2d ed., 190.)
"Since evil intent is in general an inseparable
element in every crime, any such mistake of fact as
shows the act committed to have proceeded from no
sort of evil in the mind necessarily relieves the actor
from criminal liability, provided always there is no
125 | P a g e
fault or negligence on his part; and as laid down by
Baron Parke, ’The guilt of the accused must depend
on the circumstances as they appear to him.’ . . .
"‘If, in language not uncommon in the cases, one has
reasonable cause to believe the existence of facts
which will justify a killing — or, in terms more nicely
in accord with the principles on which the rule is
founded, if without fault or carelessness he does
believe them — he is legally guiltless of homicide;
though he mistook the facts, and so the life of an
innocent person is unfortunately extinguished. In
other words, and with reference to the right of self-
defense and the not quite harmonious authorities, it
is the doctrine of reason, and sufficiently sustained
in adjudication, that notwithstanding some decisions
apparently adverse, whenever a man undertakes
self-defense, he is justified in acting on the facts as
they appear to him. If, without fault or carelessness,
he is misled concerning them, and defends himself
correctly according to what he thus supposes the
facts to be, the law will not punish him though they
are in truth otherwise, and he has really no occasion
for the extreme measure.’ (Bishop’s New Criminal
Law, sec. 305, and large array of cases there cited.)"
I quote with approval the citation made by
appellant’s counsel on page 20 of his brief, to
wit:jgc:chanrobles.com.ph
"A person need not be in actual imminent peril of his
life or of great bodily harm before he may stop his
assailant. It is sufficient if in good faith he has a
reasonable belief, from the facts as they appear to
him at the time, that he is in such imminent peril; if
he is threatened with death or some great bodily
harm, and has reasonable ground to believe and
does believe that his life is about to be taken or such
great bodily injury to be inflicted, he may act safely
upon appearances and kill his assailant, if that be
necessary to avoid the apprehended danger, though
it may afterwards turn out that there was in fact
neither design to do him injury nor danger that it
would be done." (Warren on Homicide, Vol. I, p. 716;
citing Glass v. State, 201 Ala. 441, 78 So. 819;
Dieburn v. State, 16 Ala. App. 371, 77 So. 983).
Viloria in his testimony said that he shot Eustacio
believing him to be a Huk who was attacking him
with a bolo. Was Viloria justified in thinking as he
did? To answer this question we must try to analyze
the state of mind of Viloria at the time. Before the
raid, he and his companions had been briefed by
their officer and told that there were dangerous
Huks in that area among them Nick Pamintuan, the
overall Huk Commander of the Manila Area, a man
who was fearless and determined to shoot it out
with the officers of the law. As a matter of fact, on
September 22nd of the same year this same Huk
Commander Nick Pamintuan was finally cornered by
a combined posse of Army officers and soldiers and
Manila Policemen in Pandacan, Manila. Alone he
battled them and although he was killed, he also was
able to kill Capt. Juan Panopio of the Armed Forces
and wound an agent of the Military Intelligence
Service (although according to paragraph 24 of the
Third Amended information against Luis M. Taruc,
the casualties were the killing of Lt. Jose Reyes of the
MPD and Lt. Juan Panopio of the AFP, and the
wounding of Sgt. Rafael Redultin of the AFP), this
according to the records of the Armed Forces and
the Manila Police Department. (See page 13,
Appellant’s Brief). As a result of that raid on April 1,
1951, 21 Huk suspects were apprehended, thus
showing that the information about the presence of
Huks in the area raided was well founded. Far from
being a veteran soldier in the Army, as erroneously
concluded by the Court of Appeals, Viloria was a raw
recruit, and it was not his fault that he was pressed
into this secret and dangerous mission of raiding or
cordoning an area said to contain desperate
dissidents and Huk Commanders; and it was not in
broad daylight either, but at midnight. Then,
suddenly from the darkness and the shadows of the
gumamela shrubs and banana trees he saw a figure
advancing towards him brandishing a bolo. What
was he to think? Peaceful and law-abiding citizens do
not usually go about at midnight, brandishing boloes
and making threats. If such a person is met in any
other place like a street or yard under ordinary
circumstances, one might yet think that he is a mere
prowler or burglar bent on stealing but not
otherwise dangerous. But that night of the raid, the
surrounding area was said to be infested with
dangerous Huks and precisely Viloria was sent there
to apprehend them if they tried to escape or even
shoot them if they resorted to resistance or
aggression. It is true that the yard of Eustacio was
just outside the area to be raided but one could not
pin point and determine accurately by metes and
bounds the exact place where the dissidents were
supposed to be. It could be that their hideout was
well inside the line or cordon of soldiers but that
when the dissidents were surprised by the MIS
agents said dissidents may have scattered and some
tried to escape into the surrounding area including
the yard of Eustacio, and that for all that Viloria
knew the figure he saw that night may have been
one of them.
We should not judge Viloria too strictly nor harshly.
Divesting ourselves awhile of the serenity of mind
and logical thinking and reasoning of a judicial
official, with all the true facts before him, let us try
to place ourselves in the situation and mental state
of Viloria at the time, not forgetting his untutored
and simple mind and his lack of training. As this
Court well said in the case of U. S. v. Santos, 36 Phil.
853, 855, in the course of its decision reversing a
sentence of conviction of a policeman by the trial
court:jgc:chanrobles.com.ph
"One should however not expect too much of an
126 | P a g e
ordinary policeman. He is not presumed to exercise
the subtle reasoning of a judicial officer. Often he
has no opportunity to make proper investigation but
must act in haste on his own belief to prevent the
escape of the criminal. To err is human. Even the
most conscientious officer must at times be misled.
If, therefore, under trying circumstances and in a
zealous effort to obey the orders of his superior
officer and enforce the law, a peace officer makes a
mere mistake in good faith, he should be exculpated.
Otherwise the courts will put a premium on crime
and will terrorize peace officers through a fear of
themselves violating the law."cralaw virtua1aw
library
From the point of view of Viloria, was there
agression which he was justified in repelling? Both
the Court of Appeals and the majority believe that
there was no such aggression because Eustacio was
a peaceful citizen within his yard merely trying to
scare away potential robbers and marauders and
that anyway he could not carry out his threat
because due to his age and his physical affliction, he
could not have possibly gone over the fence. I have
already pointed out that Viloria should be judged not
by the facts as they turned out to be but what he in
good faith believed them to be. Besides, to repel an
aggression, it is not necessary that the latter be
consummated. In the case of U.S. v. Batungbacal 37
Phil. 382, this Court said:jgc:chanrobles.com.ph
"In order that the assault may be repelled, it is not
necessary that it must have been perpetrated; it is
sufficient that there be an attempted assault. The
law protects with this exemption from liability not
only the person who repels an aggression, but even
the person who tries to prevent an aggression that is
expected."cralaw virtua1aw library
To constitute aggression it is not necessary that the
attack or assault be carried out. It is sufficient that it
be shown by the acts and by the attitude of the
assailant that he will attack. The mere opening of a
knife and making a motion as if to make an attack
constitutes a real aggression; one who brandishes a
knife and raises it during a dispute, commits
aggression; and the act of a wounded man raising a
club which he held in his hands and advancing
towards the accused with an attitude of hitting him,
constitutes real unlawful aggression (Guevarra’s
Commentaries on the Revised Penal Code, P. 11,
citing decisions of the Supreme Court of Spain. And
in the opinion of Viada, even a mere threat of an
attack such as brandishing a knife with which to stab
one or pointing a gun to discharge against one, is
aggression (I Viada, 5th Ed., p. 173).
Viloria did not have to wait until the menacing figure
had gone over the fence and within hitting distance
struck at him for then self-defense may have been
too late. Besides, Viloria was not there as a mere
civilian permitted only to protect himself in case of
aggression. He was there as a peace officer to
apprehend dissidents and when in his opinion one of
them attacked he could shoot him not only to
defend himself but also to disable or if necessary to
kill a public enemy.
Was Viloria required under the circumstances to
retreat in order to avoid inflicting injury on his
assailant? A civilian under the circumstances may
have sought refuge in flight, but Viloria was not a
civilian. He was a soldier of the Armed Forces of the
Republic with traditions to uphold, and was expected
to observe proper conduct in the presence of the
enemy. Asked by the Fiscal why he did not retreat,
like a true soldier he gave a most proper answer. He
said: "I could not retreat from that place without an
order from my officer." (t.s.n., p. 42) He was
stationed in that place by his officer. He was as it
were occupying a battle or skirmish position, and
without an order from his officer he could leave that
position only when driven by superior force. To
retreat from his position would have been an act of
cowardice and desertion of his post for which he
could be court-martialed and discharged
dishonorably and in disgrace, and so he held his
ground and stuck to his post.
In the case of U.S. v. Mojica, supra, this Court
said:jgc:chanrobles.com.ph
"A police officer, in the performance of his duty,
must stand his ground and cannot, like a private
individual, take refuge in flight; his duty requires him
to overcome his opponent. The force which he may
exert therefore differs somewhat from that which
may ordinarily be offered in self-defense. Bearing
this in mind, we do not think that the appellant in
using his revolver against the deceased can be said
to have employed unnecessary force. The deceased
attacked him with a deadly weapon; he might, duty
forbade."cralaw virtua1aw library
The Court of Appeals and the majority lay stress on
the fact that as shown by the wounds of entrance
and exit, the latter was lower, and from this they
draw the inference that Viloria did not tell the truth
when he said that he shot Eustacio from a squatting
position, because otherwise the exit would have
been higher than the entrance. Again, I am
constrained to state that both the majority and the
Court of Appeals apparently overlooked the fact as
states by Viloria without contradiction, he fired the
shot at the moment when Eustacio’s body was bent
over the fence with his left leg lifted as if to scale the
fence preparatory to going over it. In this position
and forward inclination of the body, a shot fired by
one even from a squatting position in front would
naturally produce a wound where the exit would be
lower from the point of entrance. In this connection,
to show that Eustacio was shot right at the fence
when he was bending over it, Lt. Regis testified
127 | P a g e
without contradiction or refutation that the morning
following the shooting, he inspected and went over
the scene of the shooting and found blood spots or
stains on the ground, from the fence to the house,
evidently the blood from the wound of Eustacio as
he walked back from the fence to the house after
being shot, the nearest blood stains being on the dry
leaves of a gumamela shrubs about a foot from the
fence. And what was Eustacio doing just before and
at the instant that he was shot? As asserted by
Viloria, Eustacio was brandishing his bolo and
making threats. This is the finding of the Court of
Appeals itself, accepted by the majority. I
quote:jgc:chanrobles.com.ph
"Eustacio no era sino un espantajo dentro del cerco,
que si levantaba su bolo, lo hacia para espantar, sin
colocar de ninguna manera a aquel en situacion
peligrosa."cralaw virtua1aw library
Of course we now know that in brandishing his bolo,
Eustacio was merely trying to scare and terrify, but
this Viloria did not know at the time. He said that he
thought that Eustacio was a Huk bent and
determined to kill him. In the important case of
People v. Bayambao, 52 Phil. 309, these are the
facts. One night, while defendant Bayambao was in
his house, his wife told him that someone had
thrown a stone at the house. So he took his revolver
and went down to investigate. He looked around
under the house but saw no one. At that time there
were outlaws in the vicinity and several days before,
a soldier had killed two outlaws not far from the
house. As Bayambao was walking back to the stairs,
about to go up the house, he heard a noise and saw
a black figure with hands uplifted rushing at him.
Without giving any warning, he fired at the black
figure thinking that he was an outlaw, but who later
turned out to be his own brother-in-law. Charged
with murder for the killing, he was found guilty by
the trial court and sentenced to cadena temporal.
On appeal this Tribunal acquitted him
saying:jgc:chanrobles.com.ph
"The latter, on that occasion, acted from the impulse
of an uncontrollable fear of an ill at least equal in
gravity, in the belief that the deceased was a
malefactor who attacked him with a kampilan or
dagger in hand, and for this reason, he was guilty of
no crime and is exempt from criminal liability (art. 8,
No. 10, Penal Code.) .
"Furthermore, his ignorance or error of fact was not
due to negligence or bad faith, and this rebuts the
presumption of malicious intent accompanying the
act of killing. In an analogous case, this Court
acquitted the accused (U.S. v. Ah Chong, 15 Phil.
488), and we deem the doctrine laid down in that
case applicable to this one."cralaw virtua1aw library
In the more recent case of People v. Mamalasaya, Et
Al., 50 Off. Gaz., 1104, cited in the majority opinion,
a Constabulary officer while out on patrol and a
mission to apprehend and if necessary kill outlaws,
ordered his man to fire on several houses in the
belief and assurance that the inmates thereof were
bandits or outlaws. It turned out, however, that said
inmates were innocent civilians. For the death of
several of said civilians, the officer was charged with
quadruple murder and after trial was found guilty of
the charge and sentenced to 20 years of reclusion
temporal. On appeal he was acquitted by this
Tribunal on the ground that the shooting was
justified for having been done and effected under an
honest mistake. To me, the present case of Viloria is
stronger. In the Mamasalaya case, the inmates of the
houses fired upon had done nothing or committed
any act which might lead or cause the constabulary
officer to believe that they were other than law-
abiding citizens. They were peacefully sleeping in
their homes and gave no provocation whatsoever;
and yet said Constabulary officer was exonerated
just because he honestly believed that the houses
harbored outlaws. In the present case, Viloria was
engaged in a secret and hazardous mission, a raid
not on a mere opium joint or gambling den where
the inmates would not possibly offer any resistance,
much less make aggression, but on a re-grouping
center and hideout of desperate Huks and Huk
Commanders who, Viloria was told, were
determined to fight and not to be taken alive, for
which reason the Army sent one officer and 36
soldiers armed with rifles. And it was midnight.
Viloria did not fire on said hideout but was merely
standing guard observing and awaiting
developments. Then suddenly here comes this
menacing figure of Eustacio in the darkness and
shadows of gumamela shrubs and banana trees,
advancing towards him and brandishing a bolo.
Viloria honestly thought and believed that Eustacio
was a Huk advancing towards him to attack with a
deadly weapon. So he shot him, not only to protect
himself from what he believed was a real aggression
and imminent peril, but also to carry out the purpose
of his mission which was to catch Huks or kill them if
they resisted. In my opinion, he had a better reason
and more valid ground to be exonerated than the
Constabulary officer in the case of Mamasalaya.
There is absolutely no reason to believe that Viloria
intentionally and deliberately shot Eustacio knowing
him to be an innocent citizen, just for the sake of
killing or the sheer fun of it. He did not know
Eustacio, never met him before nor ever heard of
him. Viloria is not a wanton killer. He had already
outgrown the impetuosity, rashness or
irresponsibility of youth and teen-age. He was
already 26 at the time of the shooting. He is not a
product of the slums and other breeding places of
crime of a City. He was raised in a rural community
and he was a farmer when he joined the Army,
according to him, to serve his country and possibly
make a career of it. Unfortunately for him, less than
128 | P a g e
three months after his enlistment and before he
could acquire the experience and training of a real
soldier, he was pressed into this dangerous mission
of raiding a Huk hideout.
I believe with the Court of Appeals and with the
majority that peaceful and law-abiding citizens
should be protected. At the same time, we should
equally afford protection and give sympathetic
consideration to our peace agents and soldiers when
they make honest mistakes in the performance of
their duties, specially when carrying out dangerous
missions where their lives are jeopardized and
imperiled. For there is nothing more demoralizing to
said peace agents and officery, nothing more
destructive of their morale, than the thought or
realization on their part that their Government
which sends them out on dangerous missions, is
heartless and entirely lacking in sympathy, and is
quick to punish them mercilessly for any mistake
committed, however honest said mistake, and
regardless of the difficult conditions and
circumstances under which the mistake was
committed. With that "Sword of Damocles" ever
hanging over their heads, to protect themselves,
they would always act halfheartedly, without any
initiative and play safe and they would never catch
the criminals and dissidents whom they are
supposed to apprehend to protect society. As was
said by this Court in the case of People v. Santos,
supra, if the courts did not excuse and exculpate
peace agents for mistakes committed by them in
good faith then "the courts will put a premium on
crime and will terrorize peace officers through a fear
of themselves violating the law." And, as we said in
the case of People v. Mamalasaya,
supra:jgc:chanrobles.com.ph
"All these considerations we have taken into account
in rendering verdict on the innocence or guilt of
appellant Cabelin. Because, if we make a mistake by
holding criminally responsible and sentencing to life
imprisonment or death, a peace officer sent on a
special or critical mission, who to accomplish his
mission and at the same time protect and insure the
lives of his men, had to act and acted under facts
which he honestly and in good faith believed to be
true, and under extraordinary conditions obtaining
at the time, just because later the facts turned out to
be different, we might tho without realizing, much
less intending it, demoralize our Armed Forces
specially their officers, to the extent that in the
future, to avoid any possible criminal prosecution,
they would be too slow, over cautious, vacillating
and irresolute to the point of utter inefficiency and
impotence."cralaw virtua1aw library
If I have dwelt rather at length on this case, it is
because altho I have the greatest respect for the
learned opinion of the majority, I am afraid it failed
to give due and sufficient consideration to certain
aspects of the case, besides accepting some, to me,
erroneous and unwarranted conclusions of the Court
of Appeals, and I cannot get myself to acquiesce in
the conviction and punishment of a soldier of the
Republic whose only fault, in my opinion was in
acting quickly as he should and like a true soldier, on
what he honestly believed the facts to be at the
time, in order to carry out his mission and to defend
himself, altho subsequently investigation showed
the facts to be otherwise. If guilty at all, Viloria
should be held liable only for homicide thru reckless
imprudence as was found by the trial court.
For the foregoing reasons, I believe that Viloria
should be exonerated and I agree with the majority
that he is entitled to Executive Clemency but
immediately and not after service of a part of his
sentence.
EN BANC
[G.R. No. 132633. October 4, 2000.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v.
ARMANDO GEMOYA, and RONILO TIONKO, Accused-
Appellant.
DECISION
MELO, J.:
Before us on automatic review is a joint decision of
the Regional Trial Court of the Eleventh Judicial
Region stationed in Davao City (Branch 15), finding
accused-appellants guilty of frustrated homicide in
Criminal Case No. 35,459-96, and sentencing each of
them to a prison term of two years, four months,
twenty-one days to eight years and one day. The two
accused appellants were also found guilty of murder
in Criminal Case No. 36,460-96, and were sentenced
to suffer the death penalty.chanrob1es virtua1 1aw
1ibrary
The relevant facts are summarized in the People’s
Brief as follows:chanrob1es virtual 1aw library
At about 9:00 in the evening of January 27, 1996, the
neighborhood of Barrio Malagamot, Panacan, Davao
City was awakened by a commotion. Irene Lantapon
was among those who went out to check what was
happening. She saw accused Armando Gemoya and
Candelario Aliazar running towards their house (TSN,
June 11, 1996, p. 20, November 5, 1996, p.65).
After about half an hour, Gemoya and Aliazar came
back with Ronilo and Rolly Tionko, the former’s
uncles and the latter’s in-laws. They were armed
with pipe, wood and an improvised bow and arrow
locally called "indian pana." It was like a sling shot
with an arrow made of nail with feathers in the end.
Addressing a group of people who were huddled
129 | P a g e
together, Ronilo Tionko stopped and demanded an
explanation for what happened to his brother-in-law.
They replied that nothing happened to him and
advised them to go home. Accused ignored them
and proceeded to the house of the Alferezes, which
was along the road in front of the school, when they
saw Wilfredo Alferez standing by the road waiting
for a taxi (ibid, June 11, 1996, p. 5, 16, 20-21;
November 4, 1996, p. 57; November 5, 1996, pp. 66-
67; November 6, 1996, pp. 79-81).
The quartet rushed to him. Ronilo Tionko beat him
with a cylindrical wood, Rolly Tionko with a pipe of
the same size while Aliazar held his arms behind him.
Once Gemoya had aimed his "indian pana," they
stepped aside to ensure that they would not be hit.
Wilfredo Alferez was hit directly on his left chest.
Slumped to the ground, Edgardo Jimenez rushed to
his aid. His daughter Rosalie, who had just come
from school, tried to pull him away. Irene Lantapon
yelled at her to run as Gemoya was about to shoot
his "indian pana" again. Before she could do so, she
was hit in her left ear. Then the four scampered
away (ibid., June 11, 1996, pp. 6-7, 21-24; June 13,
1996, pp. 34-36; November 4, 1996, pp. 57-58;
November 1996, pp. 66-67; November 6, 1996, pp.
79-81).
Rosalie Jimenez and Wilfredo Alferez were rushed to
the hospital. After minor treatment, she was
declared out of danger. Wilfredo Alferez was not as
lucky. He was pronounced dead on arrival (ibid., June
11, 1996, pp. 8-9; June 13, 1996, pp. 36, 41;
November 6, 1996, p. 81).chanrob1es virtua1 1aw
1ibrary
Two separate Informations were filed against four
suspects, namely, the herein two accused-appellants
and two others who have remained at large, to
wit:chanrob1es virtual 1aw library
Criminal Case No. 36,459-96
That on or about January 27, 1996, in the City of
Davao, Philippines, and within the jurisdiction of this
Honorable Court, the accused, conspiring together
and mutually helping one another, with intent to kill,
hit with the use of an "Indian Pana", one Rosalie
Jimenez. The accused performed all the acts of
execution which could produce the crime of
Homicide, as a consequence but which did not
produce it by reason of a timely medical
intervention, a cause which is independent of the
will of the perpetrators.
Contrary to law.
Criminal Case No.36,460-96
That on or about January 27, 1996 in the City of
Davao, Philippines, and within the jurisdiction of this
Honorable Court, the accused, conspiring together
and mutually helping one another, with intent to kill,
treachery and abuse of superior strength, wilfully,
unlawfully and feloniously attacked, assaulted and
hit with an "Indian Pana" one Wilfredo Alferez which
caused his subsequent death.
Contrary to law.
(pp. 7-8. Rollo.)
On May 28, 1996 and August 28, 1996, Armando
Gemoya and Ronilo Tionko, respectively, entered
their pleas of "not guilty", and the two criminal cases
were thereafter jointly tried, following which,
judgment was rendered disposing:chanrob1es virtual
1aw library
WHEREFORE, the prosecution having proven the
guilt of the accused beyond reasonable doubt in the
two cases, judgment is rendered as
follows:chanrob1es virtual 1aw library
1. Criminal Case No. 36,459-96 — the penalty of two
years, four months, twenty-one days to eight years
and one day is imposed on accused Armando
Gemoya and Ronilo Tionko for frustrated homicide
with respect to victim Rosalie Jimenez.
2. Criminal Case No. 36,460-96 — the death penalty
is imposed on accused Armando Gemoya and Ronilo
Tionko for the murder of Wilfredo Alferez.
(p. 27, Rollo.)
In their individual and separate briefs, the following
errors are assigned:chanrob1es virtual 1aw library
Accused-appellant Ronilo Tionko:chanrob1es virtual
1aw library
THE LOWER COURT ERRED IN FINDING ACCUSED-
APPELLANT RONILO TIONKO GUILTY IN CRIMINAL
CASE NO. 36,459-96 FOR FRUSTRATED HOMICIDE,
WITH RESPECT TO VICTIM ROSALIE JIMENEZ AND,
ALSO, IN FINDING HIM GUILTY IN CRIMINAL CASE
NO. 36,460-96 FOR THE MURDER OF WILFREDO
ALFEREZ AS THE SET OF FACTS OBTAINING IN THE
CASE AT BAR IS CAPABLE OF TWO OR MORE
EXPLANATION.
Accused-appellant Armando Gemoya:chanrob1es
virtual 1aw library
I.
THE TRIAL COURT SERIOUSLY ERRED IN CONVICTING
GEMOYA OF THE CRIME OF MURDER.
II.
130 | P a g e
THE TRIAL COURT SERIOUSLY ERRED IN FAILING TO
APPRECIATE THE MITIGATING CIRCUMSTANCE OF
VOLUNTARY SURRENDER IN FAVOR OF GEMOYA.
III.
THE TRIAL COURT SERIOUSLY ERRED IN CONVICTING
GEMOYA OF THE CRIME OF FRUSTRATED HOMICIDE
FOR THE WOUNDING OF ROSALIE JIMENEZ.
IV.
THE TRIAL COURT SERIOUSLY ERRED IN IMPOSING
THE DEATH PENALTY OF GEMOYA.
After reviewing the evidence on record we find no
compelling reason to depart from the factual
findings of the trial court that accused-appellants, in
conspiracy with one another, committed the crime
of murder qualified by abuse of superior strength. In
People v. Patalin (G.R. No. 125539, July 27, 1999) we
reiterated the ruling on this matter, thus:chanrob1es
virtual 1aw library
Of primordial consideration in appellate matters is
the legal principle that the assessment of the
credibility of witnesses and their testimony is a
matter best undertaken by the trial court because of
its unique opportunity to observe the witnesses
firsthand and to note their demeanor, conduct, and
attitude under grilling examination. We generally
uphold and respect this appraisal since as an
appellate court, we do not deal with live witnesses
but only with the cold pages of a written record.
(p. 15)
Accused-appellant Gemoya claims that the uniform
narration of facts by prosecution witnesses is not
supported by the documentary and the expert’s
testimony of the NBI Medico Legal Officer who
conducted the autopsy examination on the victim
Wilfredo Alferez. Dr. Ricardo M. Rodaje affirmed that
he found no other injury on Wilfredo aside from the
puncture wound on his chest which was the sole
cause of death (TSN, July 3 1996, p.46).
We are not persuaded by this argument.chanrob1es
virtua1 1aw 1ibrary
It must be borne in mind that accused-appellant
Gemoya has not denied having executed the fatal
act, which caused the death of Wilfredo Alferez. He
admittedly discharged the weapon ("indian pana")
which hit a vital organ of the victim, causing his
instantaneous death. His only lame excuse is that, to
defend himself, he used the sling shot ("indian
pana"), which he grabbed from "somebody", against
the victim in the course of a tumultuous affray
allegedly instigated by the victim himself.
When an accused admits having killed the victim, the
burden of proving his innocence is shifted to him.
We ruled in People v. Manlulu (231 SCRA 701 [1994])
that "by invoking self-defense, the accused admit
killing Alfaro. The burden of proof is thus shifted to
them. Their duty now is to establish by clear and
convincing evidence the lawful justification for the
killing." Accused-appellant Gemoya can no longer
invoke the constitutional right of being presumed
innocent of the crime charged. As far as he is
concerned, the crime of murder in the case at bar is
established once the prosecution, establishes any of
the qualifying circumstances with proof beyond
reasonable doubt. This is because the fact of death
and the cause thereof are already established by the
admission. The intent to kill is likewise presumed
from the fact of death, unless the accused proves by
convincing evidence that any of the justifying
circumstances in Article 11 or any of the exempting
circumstances in Article 12, both of the Revised
Penal Code, is present.
As we have earlier observed, however, we find no
cogent reason to disregard the trial court’s factual
findings on this score. We find nothing upon review
of the record, which would convince us that accused-
appellant Gemoya and his cohorts were not the
assailants in this case. The theory of self-defense has
not been duly established.
The fact that accused-appellant shot the victims with
an "indian pana" cannot be negated by supposed
inconsistencies between the testimony of the
eyewitnesses and the findings of the medico-legal
officer who conducted the autopsy examination. It
matters not if Wilfredo suffered no injury other than
the fatal puncture wound. His death was caused by
that puncture wound, and the fact that there were
four assailants who ganged upon the said victim is
incontestable. These established realities make
accused-appellants criminally liable for murder,
qualified by abuse of superior strength.
Abuse of superior strength is considered whenever
there is a notorious inequality of forces between the
victim and the aggressor, assessing a superiority of
strength notoriously advantageous for the aggressor
which is selected or taken advantage of in the
commission of the crime (People v. Bongadillo, 234
SCRA 233 [1994]). When four armed assailants, two
of whom are accused-appellants in this case, gang up
on one unarmed victim, it can only be said that
excessive force was purposely sought and employed.
Although only accused-appellant Gemoya may have
inflicted the fatal wound upon the victim in this
case, Accused-appellant Tionko is also liable for the
131 | P a g e
crime of murder since evidently, the concerted acts
of the two accused appellants, and their two other
companions, to obtain a common criminal objective
signify conspiracy among them. Ronilo Tionko beat
Wilfredo with a cylindrical wooden cane or "batuta",
and Rolly Tionko with a pipe, while Gemoya, after his
companions had step aside to give him a clear shot,
released his dart-missile at Wilfredo. A conspiracy
exists when two or more persons come to an
agreement concerning the commission of a felony
and decide to commit it (People v. Taguba, 229 SCRA
188, 1994).
Conspiracy need not be proved by direct evidence of
a prior agreement to commit the crime. It may he
deduced either from the mode and manner in which
the offense was committed or from the accused
themselves pointing to a community of interest or
concerted action (People v. Gayon, 269 SCRA 587
[1997]). Herein accused-appellants and their
companions ganging up upon a single common
victim until one of them is able to inflict the fatal
wound is clearly indicative of a common design to
assail and disable their victim-. Conspiracy can be
inferred and proved by the totality of the acts of the
accused when said acts point to a joint purpose and
design (People v. Bayrante, 235 SCRA 19 [1994]).
With or without himself inflicting injuries upon
victim Wilfredo, Accused appellant Ronilo Tionko is
equally liable for the crime of murder in the case at
bar as accused appellant Gemoya. He cannot escape
criminal liability under the circumstances even
though the autopsy report indicated no other
injuries except the punctured wound on the victim’s
chest. A conspirator, no matter how minimal his
participation in the crime, is as guilty as the principal
perpetrator of the crime (People v. Alas 274 SCRA
310 [1977]). Holding the victim to render him
immobile to enable his companions to consummate
their dastardly act (People v. Dinglasan, 267 SCRA 29
[1997]) or standing guard or lending moral support
to the actual perpetrator is criminally responsible to
the same extent as the one who inflicted the fatal
blow (People v. Diaz, 271 SCRA 504 [1997]).
As regards their second victim, Rosalie Jimenez,
however, we agree with accused-appellants that the
trial court erred in convicting them of frustrated
homicide. As correctly pointed out in the People’s
brief, the testimony of Jerry Lantapon and Irene
Lantapon concurred to the effect that the hitting of
Rosalie was accidental as the second "indian pana"
was intended for Wilfredo. The intent to kill Rosalie
which is essential if accused appellants were to be
held liable for frustrated homicide is therefore,
absent.
The two accused-appellants herein are liable for the
crime resulting from Gemoya’s act of releasing the
second "indian pana", which accidentally hit Rosalie.
Although Rosalie may not have been their intended
victim, Accused-Appellants, acting in conspiracy with
one another as we have earlier discussed, are liable
for the consequences of their felonious act (see:
Paragraph 1, Article 4, Revised Penal Code). Mistake
in the identity of the victim, which may either be (a)
"error in personae" (mistake of the person), or (b)
"aberratio ictus" (mistake in the blow), is neither
exempting nor mitigating (People v. Gona, 54 Phil.
605 [1930]). Accused-appellants, therefore, cannot
escape the criminal liability resulting from the injury
suffered by Rosalie.
As for the penalty, even though it appears on record
that Rosalie received medical treatment immediately
after her injury, there is no evidence regarding the
extent of incapacity said injury caused her.
Accordingly, Accused-appellants may only be held
liable for the crime of slight physical injury under
Paragraph 2 of Article 266 of the Revised Penal Code,
which provides:chanrob1es virtual 1aw library

ARTICLE 266. Slight physical injuries and
maltreatment. — The crime of slight physical injuries
shall be punished:chanrob1es virtual 1aw library
1. By arresto menor when the offender has inflicted
physical injuries which shall incapacitate the
offended party for labor from one to nine days, or
shall require medical attention during the same
period.
2. By arresto menor or a fine not exceeding 200
pesos and censure when the offender has caused
physical injuries which do not prevent the offended
party from engaging in his habitual work nor require
medical attendance;
3. By arresto menor in its minimum period or a fine
not exceeding 50 pesos when the offender shall ill-
treat another by deed without causing injury.
Since there is no showing that victim Rosalie Jimenez
was incapacitated from carrying out her habitual
work after the injury, both accused-appellants in this
case are sentenced to the penalty of arresto menor
or a fine of P200.00 and censure for the crime of
slight physical injury.
As to the imposition of the death penalty upon both
accused-appellants in this case, we agree with the
Solicitor General and accused-appellant Gemoya that
the trial court seriously erred in not considering the
mitigating circumstance of voluntary surrender in
favor of accused-appellant Gemoya. The trial court
likewise erred in imposing the maximum in the range
of penalty for murder.
Under Article 248 of the Revised Penal Code, the
crime of murder is punished by reclusion perpetua to
death. Where there are no aggravating and no
mitigating circumstances attendant in the
132 | P a g e
commission of the crime the medium penalty shall
be imposed. For the crime of murder, the medium as
well as the minimum penalty are the same because
the lower range penalty, reclusion perpetua is an
indivisible penalty.chanrob1es virtua1 1aw 1ibrary
Applying the rule to the case at bar where there is
the mitigating circumstance of voluntary surrender
and the absence of any aggravating circumstances
other than those already absorbed in the
circumstances which qualified the killing to murder
(People v. Cheng, 279 SCRA 129 [1997), the
minimum penalty of reclusion perpetua should be
imposed.
Finally, as correctly pointed out in the People’s brief.
when death occurs as a result of a crime, the heirs of
the deceased are entitled to the amount of as
P50,000.00 indemnity for the death of the victim
without need of any evidence or proof of damage
(People v. Galladan, G.R. No. 126932, November 19,
1999; People v. Española, 271 SCRA 689 [1997]).
Thus, civil indemnity in the amount of P50,000.00 for
the death of Wilfredo Alferez will have to be
awarded in favor of his heirs. Accused-appellants
being convicted as co-principals for the crime of
murder, the two shall be held solidarily liable for the
civil indemnity.chanrob1es virtua1 1aw 1ibrary
WHEREFORE, Accused-appellants are found guilty
beyond reasonable doubt of: (a) slight physical injury
in Criminal Case No. 35,459-96 and each sentenced
to a determinate prison term of thirty (30) days of
arresto menor; and (b) murder in Criminal Case No.
36,460-96 and accordingly each sentenced to
reclusion perpetua, and ordered to solidarily pay civil
indemnity in the amount of Fifty Thousand Pesos
(P50,000.00) to the heirs of Wilfredo Alferez for the
latter’s death, the two prison terms to be served
concurrently with one another. No special
pronouncement is made as to costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan,
Mendoza, Panganiban, Quisumbing, Purisima, Pardo,
Buena, Gonzaga-Reyes, Ynares-Santiago, and De
Leon, Jr., JJ., concur.
FIRST DIVISION
G.R. No. 123485 August 31, 1998
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs. ROLUSAPE SABALONES alias "Roling," ARTEMIO
TIMOTEO BERONGA, TEODULO ALEGARBES and
EUFEMIO CABANERO, accused, ROLUSAPE
SABALONES alias "Roling" and ARTEMIO TIMOTEO
BERONGA, Accused-Appellants.
PANGANIBAN, J.:
Factual findings of trial courts which are affirmed by
the Court of Appeals are, as a general rule, binding
and conclusive upon the Supreme Court. Alibi, on
the other hand, cannot prevail over positive
identification by credible witnesses. Furthermore,
alleged violations of constitutional rights during
custodial investigation are relevant only when the
conviction of the accused by the trial court is based
on the evidence obtained during such investigation.
The Case
These are the principles relied upon by the Court in
resolving this appeal from the Court of Appeals
(CA) 1 Decision 2 dated September 28, 1995,
convicting Rolusape Sabalones and Timoteo Beronga
of murder and frustrated murder. The convictions
arose from a shooting incident on June 1, 1985 in
Talisay, Cebu, which resulted in the killing of two
persons and the wounding of three others, who
were all riding in two vehicles which were allegedly
ambushed by appellants.
After conducting a preliminary investigation, Second
Assistant Provincial Prosecutor Juanito M. Gabiana
Sr. filed before the Regional Trial Court (RTC) of Cebu
City, Branch 7, 3 five amended Informations charging
four "John Does," who were later identified as
Rolusape Sabalones, Artemio Timoteo Beronga,
Teodulo Alegarbes and Eufemio Cabanero, with two
counts of murder and three counts of frustrated
murder. The Informations are quoted hereunder.
1) Crim Case No. CBU-9257 for murder:
That on the 1st day of June, 1985, at 11:45 o'clock in
the evening, more or less, at Mansueto Village,
Bulacao, Municipality of Talisay, Province of Cebu,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one
another, armed with high-powered firearms, with
intent to kill and treachery, did then and there
wilfully, unlawfully and feloniously attack, assault
and shoot GLENN TIEMPO, who was riding [i]n a jeep
and who gave no provocation, thereby inflicting
upon the latter several gunshot wounds, thereby
causing his instantaneous death.
CONTRARY TO Article 248 of the Revised Penal Code.
2) Criminal Case No. 9258 for murder:
That on the 1st day of June, 1985 at 11:45 o'clock in
the evening, more or less at Mansueto Village,
Barangay Bulacao, Municipality of Talisay, Province
of Cebu, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused,
133 | P a g e
conspiring, confederating and mutually helping one
another, armed with high-powered firearms, with
intent to kill and treachery, did [then] and there
wilfully, unlawfully and feloniously attack, assault
and shoot ALFREDO NARDO, who was riding on a
jeep and who gave no provocation, thereby inflicting
upon the latter several gunshot wounds, thereby
causing his instantaneous death.
CONTRARY TO Article 248 of the Revised Penal Code.
3) Crim Case No. CBU-9259 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 o'clock in
the evening, more or less, at Mansueto Village,
Barangay Bulacao, Municipality of Talisay, Province
of Cebu, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused
conspiring, confederating and mutually helping one
another, armed with high-powered firearms, with
intent to kill and treachery, did and there wilfully,
unlawfully and feloniously attack, assault and shoot
REY BOLO who was riding in a car and who gave no
provocation, thereby inflicting upon the latter the
following injuries to wit:
laceration, mouth due to gunshot wound, gunshot
wound (L) shoulder penetrating (L) chest; gunshot
wound (R) hand (palm); open fracture (L) clavicle (L)
scapula; contusion (L) lung;
thereby performing all the acts of execution which
would produce the crime of [m]urder as a
consequence but which, nevertheless, did not
produce it by reason of causes independent of the
will of the perpetrator, i.e. the timely medical
attendance.
IN VIOLATION of Article 248 of the Revised Penal
Code.
4) Criminal Case No. 9260 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 o'clock in
the evening, more or less, at Mansueto Village,
Barangay Bulacao, Municipality of Talisay, Province
of Cebu, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused
conspiring, confederating and mutually helping one
another, armed with high-powered firearms, with
intent to kill and treachery, did then and there
wilfully, unlawfully and feloniously attack, assault
and shoot ROGELIO PRESORES, who was riding in a
car and who gave no provocation, thereby inflicting
upon the latter the following injuries, to wit:
gunshot wound, thru and thru right chest
thereby performing all the acts of execution which
would produce the crime of [m]urder as a
consequence but which, nevertheless, did not
produce it by reason of causes independent of the
will of the perpetrator, i.e. the timely medical
attendance.
IN VIOLATION of Article 248 of the Revised Penal
Code.
5) Criminal Case No. 9261 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 o'clock in
the evening, more or less, at Mansueto Village,
Barangay Bulacao, Municipality of Talisay, Province
of Cebu, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused
conspiring, confederating and mutually helping one
another, armed with high-powered firearms, with
intent to kill and treachery, did then and there
wilfully, unlawfully and feloniously attack, assault
and shoot NELSON TIEMPO, who was riding in a car
and who gave no provocation, thereby inflicting
upon the latter the following injuries, to wit:
Gunshot wound neck penetrating wound perforating
trachea (cricoid) thereby performing all the acts of
execution which would produce the crime of
[m]urder as a consequence but which nevertheless,
did not produce it by reason of causes independent
of the will of the perpetrator, i.e. the timely medical
attendance.
IN VIOLATION of Article 248 of the Revised Penal
Code.
Of the four indictees in the five Informations,
Teodulo Alegarbes and Artemio Timoteo Beronga
were the first to be arraigned. Upon the arrest of the
two, the Informations were amended by the public
prosecutor, with the conformity of the defense
counsel, by substituting the names of the two
accused for the "John Does" appearing in the original
Informations. When arraigned, said accused, assisted
by their respective lawyers, pleaded not guilty to the
five Informations.
Alegarbes died in the course of trial; thus, the cases
against him were dismissed. Accused Cabanero
remained at large. Sabalones, on the other hand,
was eventually arrested. Subsequently, he jumped
bail but was recaptured in 1988 and thereafter
pleaded not guilty during his arraignment.
The cases against Sabalones and Beronga were
jointly tried. Thereafter, the lower court found them
guilty beyond reasonable doubt of the crimes
charged. The RTC disposed as follows:
WHEREFORE, premises above-set forth, the Court
finds accused ROLUSAPE SABALONES and (ARTEMIO)
TIMOTEO BERONGA, [g]uilty beyond reasonable
doubt, as principals:
In Crim. Case No. CBU-9257, for MURDER, defined
and penalized in Art. 248 of the Revised Penal Code,
134 | P a g e
hereby sentences each said accused to suffer the
penalty of [f]ourteen (14) years, [e]ight (8) months
and [o]ne (1) day, as minimum, to [s]eventeen (17)
years, [f]our (4) months and [o]ne (1) day,
of [r]eclusion [t]emporal, as maximum, to indemnify
the heirs of deceased, Glenn Tiempo, the sum of
P50,000.00;
In Crim. Case No. CBU-9258, for MURDER, defined
and penalized in Art. 248 of the Revised Penal Code,
hereby sentences each said accused to suffer the
penalty of [f]ourteen (14) years, [e]ight (8) months
and [o]ne (1) day, as minimum, to [s]eventeen (17)
years, [f]our (4) months and [o]ne (1) day,
of [r]eclusion [t]emporal, as maximum, to indemnify
the heirs of deceased, Alfredo Nardo, the sum of
P50,000.00;
In Crim. Case No. CBU-9259, for FRUSTRATED
MURDER, defined and penalized in Art. 248 in
relation to Art. 50 of the Revised Penal Code, hereby
sentences each said accused to suffer the penalty of
[e]ight (8) years of prision mayor, as minimum, to
[f]ourteen (14) years and [e]ight (8) months
of [re]clusion [t]emporal, as maximum, to indemnify
the victim, Rey Bolo, the sum of P20,000.00;
In Crim. Case No. CBU-9260, for FRUSTRATED
MURDER, defined and penalized in Art. 248 in
relation to Art. 50 of the Revised Penal Code, hereby
sentences each said accused to suffer the penalty of
[e]ight (8) years of prision mayor, as minimum, to
[f]ourteen (14) years and [e]ight months
of [r]eclusion [t]emporal, as maximum, to indemnify
the victim, Rogelio Presores, the sum of P20,000.00;
In Crim. Case No. CBU-9261, for FRUSTRATED
MURDER, defined and penalized in Art. 248 in
relation to Art. 50 of the Revised Penal Code, hereby
sentences each said accused to suffer the penalty of
[e]ight (8) years of prision mayor, as minimum, to
[f]ourteen (14) years and [e]ight (8) months
of [r]eclusion [t]emporal, as maximum, to indemnify
the victim, Nelson Tiempo, the sum of P20,000.00;
and
To pay the costs in all instances. The period of their
preventive imprisonment shall be credited to each
accused in full.
SO ORDERED. 4
Appellants filed a notice of appeal to the Court of
Appeals. Thereafter, the CA affirmed their conviction
but sentenced them to reclusion perpetua for the
murders they were found guilty of. Accordingly, the
appellate court, without entering judgment, certified
the case to the Supreme Court in accordance with
Section 13, Rule 124 of the Rules of Court. The
dispositive portion of the CA Decision reads:
WHEREFORE, the Decision of the trial court
convicting accused-appellants Rolusa[p]e Sabalones
and Artemio Timoteo Beronga for murder in Crim.
Cases Nos. CBU-9257 and CBU-9258, and [f]rustrated
[m]urder in Crim. Cases Nos. CBU-9259, CBU-9260,
and CBU-9261 is hereby AFFIRMED; however, the
penalties in the [f]rustrated [m]urder and [m]urder
cases are hereby MODIFIED, such that both accused-
appellants are each sentenced to imprisonment of
TEN (10) YEARS of [p]rision [m]ayor medium as
minimum to SEVENTEEN (17) YEARS and FOUR (4)
MONTHS of [r]eclusion [t]emporal medium as
maximum in each of the three [f]rustrated [m]urder
cases (Crim. Cases Nos. CBU-9259, CBU-9260 and
CBU-9261); and are each sentenced to [r]eclusion
[p]erpetua in each of the two [m]urder cases (Crim.
Cases Nos. CBU-9257 and CBU-9258). The indemnity
to the victim in each [f]rustrated [m]urder case shall
remain. In conformity with Rule 124, Section 13 of
the Rules of Court, however, this Court refrains from
entering judgment, and hereby certifies the case and
orders that the entire record hereof be elevated to
the Supreme Court for review. 5
After the Court of Appeals certified the case to this
Court, we required appellants to file supplemental
briefs. Appellants failed to comply within the
prescribed period and were deemed to have waived
their right to do so. 6 Thus, in resolving this case, this
Court will address primarily the arguments raised by
the appellants in their Brief before the Court of
Appeals, which assailed the RTC Decision.
The Facts
Version of the Prosecution
The solicitor general 7 quoted the following factual
findings of the trial court:
Edwin Santos, a resident of Mambaling, Cebu City
stated that on June 1, 1985 at 6:00 o'clock in the
evening, he was at the residence of Inday Presores,
sister of Rogelio Presores, located at Rizal Ave., Cebu
City to attend a wedding. He stayed until 9:00 o'clock
in the evening and proceeded to the house of Maj.
Tiempo at Basak, Mambaling, Cebu City where a
small gathering was also taking place. (pp. 3-6, tsn,
April 7, 1987)
Arriving thereat, he saw Nelson and Glenn Tiempo as
well as Rogelio Presores, Rogelio Oliveros, Junior
Villoria, Rey Bolo and Alfredo Nardo. (p. 7, ibid.)
At about 11:00 o'clock in the evening, Stephen Lim,
who was also at the party, called their group and
requested them to push his car. When the engine
started, the former asked them to drive his car
home. (pp. 7-11, ibid.)
135 | P a g e
Together with Nelson Tiempo, who was at the
wheel, Rogelio Presores, Rogelio Oliveros and Junior
Villoria, they drove to the residence of Stephen Lim
at Mansueto Compound, Bulacao, Talisay, Cebu. (p.
12, ibid.)
Glenn Tiempo, Rey Bolo and Alfredo Nardo also went
with them riding in an owner-type jeep, driven by
the latter, in order to bring back the group [as] soon
as the car of Mr. Lim was parked in his home. (p.
21, ibid.)
The two vehicles traveled in convoy with the jeep 3
to 4 meters ahead of the car. When they arrived at
the gate of the house of Stephen Lim, they were met
with a sudden burst of gunfire. He looked at the
direction where the gunfire came, and saw [the]
persons [who] fired at the jeep. He identified
accused, Teodulo Alegarbes, Rolusape Sabalones and
Timoteo Beronga as the persons who fired at the
vehicle. Except for Teodulo Alegarbes, who was
naked from [the] waist up, the gunmen wore
clothes. (pp. 21-23; 13-16; 33, ibid.)
After firing at the jeep, the assailants shot the ear
they were riding[,] hitting Nelson Tiempo on the
throat and Rogelio Presores on the breast. Despite
the injury he sustained, Nelson Tiempo was able to
maneuver the car back to their residence. (pp. 17-
19, ibid.)
He immediately informed Maj. Tiempo about the
incident and the lat[t]er brought the victims to the
Cebu Doctor's Hospital. (p. 20, ibid.)
Rogelio Presores corroborated in substance the
testimony of Edwin Santos, being one of those who
were in the car driven by Nelson Tiempo to the
residence of Stephen Lim. (pp. 4-6, tsn, Aug. 14,
1987)
He further testified that when the jeep driven by
Alfredo Nardo with Rey Bolo and Glenn Tiempo as
passengers arrived at the front gate of Lim's
residence and while their car was 3 meters from the
rear end of the jeep, there was a volley of gunfire.
He glanced at the direction of the gunfire and saw
the jeep being fired at by four persons, who were
standing behind a concrete wall, 42 inches in height,
and armed with long firearms. Thenceforth, he saw
Alfredo Nardo, Glenn Tiempo and Rey Bolo f[a]ll to
the ground. (pp. 6-7, ibid.)
He recognized accused, Rolusape Sabalones, as one
of those who fired at the jeep. He also identified in
Court accused, Teodulo Alegarbes, Timoteo Beronga
and another person, whom he recognized only
through his facial appearance. (pp. 7-8, ibid.)
When the shots were directed [at] their car[,] they
were able to bend their heads low. When the firing
stopped, he directed Nelson Tiempo to back out
from the place. As the latter was maneuvering the
car, the shooting continued and he was hit in the
breast while Nelson Tiempo, in the neck, and the
windshield of the vehicle was shattered. (p. 10, ibid.)
Arriving at the house of Maj. Tiempo, they were
brought to Cebu Doctor's Hospital. He and Nelson
Tiempo were operated on. He had incurred hospital
expenses in the sum of P5,412.69, (Exh. "I", "K"). (pp.
11-12, ibid.)
Ladislao Diola, Jr., [m]edico-[l]egal [o]fficer of the PC
Crime Laboratory, Regional Unit 7 stationed at Camp
Sotero Cabahug, Cebu City remembered having
performed a post-mortem examination on the dead
body of Glenn Tiempo on June 2, 1985 at the
Cosmopolitan Funeral Homes, Cebu City. (p. 7, tsn,
Nov. 11, 1987)
He issued the necessary Death Certificate, (Exh. "D")
and Necropsy Report, (Exh. "F") and indicated
therein that the victim's cause of death was "[c]ardio
respiratory arrest due to [s]hock and [h]emorrhage
[s]econdary to [g]unshot wounds to the trunk." (p.
8, ibid.)
The victim sustained gunshot wounds in the right
chest and left lumbar area. (pp. 10-11, ibid.)
He explained that in gunshot wound no. 1, the
wound entrance[,] which [was] characterized by
invaginated edges and contusion collar[,] was
located in the right chest and the bullet went up to
the left clavicle hitting a bone which incompletely
fractured it causing the navigation of the bullet to
the left and to the anterior side of the body. He
recovered a slug, (Exh. "G") below the muscles of the
left clavicle. (p. 21, ibid.)
Based on the trajectory of the bullet, the assailant
could have been [o]n the right side of the victim or in
front of the victim but [o]n a lower level than the
latter.
In both gunshot wounds, he did not find any powder
burns which would indicate that the muzzle of the
gun was beyond a distance of 12 inches from the
target. (p. 15, ibid.)
At the time he conducted the autopsy, he noted that
rigor mortis in its early stage had already set in
which denote[s] that death had occurred 5 to 6
hours earlier. (pp. 34-5, ibid.)
Maj. Juan Tiempo, father of the victims, Glenn and
Nelson Tiempo, testified that when he learned about
the incident in question, he immediately summoned
military soldiers and together they proceeded to the
scene. (pp. 4-6, tsn, Nov. 12, 1988)
136 | P a g e
Arriving thereat, he saw the lifeless body of his son,
Glenn. He immediately carried him in his arms and
rushed him to the hospital but the victim was
pronounced Dead on Arrival. (pp. 6-7, ibid.)
They buried his son, who was then barely 14 years
old, at Cebu Memorial Park and had incurred funeral
expenses (Exhs. "K", "L", "O"). (pp. 7-8, ibid.)
His other son, Nelson, then 21 years old and a
graduate of [m]edical [t]echology, was admitted at
the Cebu Doctor's Hospital for gunshot wound in the
neck. The latter survived but could hardly talk as a
result of the injuries he sustained. He had incurred
medical and hospitalization expenses in the sum of
P21,594.22, (Exh. "H"), (pp. 8-10, ibid.)
He had also incurred expenses in connection with
the hospitalization of the injured victims, Rogelio
Presores and Rey Bolo in the amount[s] of P5,412.69,
(exh. "I") and P9,431.10, (Exh. "J"), respectively. (p.
11, ibid.)
He further stated that he [was] familiar the accused,
Roling Sabalones, because the latter had a criminal
record in their office in connection with the
kidnapping of a certain Zabate and Macaraya. (p.
16, ibid.)
xxx xxx xxx
Dr. Jesus P. Cerna, [m]edico-[l]egal [o]fficer of the
PC/INP, Cebu Metrodiscom, had conducted an
autopsy on the dead body of Alfredo Nardo, who
sustained two (2) gunshot wounds in the lower lip
and left intraclavicular region, upon the request of
the [c]hief of the Homicide Section of Cebu
Metrodiscom. He issued the victim's Necropsy
Report, (Exh. "F:") and Death Certificate, (Exh. "G").
(pp. 5-8, tsn, Dec. 4, 1987; pp. 4-6, tsn, Nov. 29,
1988)
He stated that the wound of entrance in gunshot
wound no. 1 was located in the lower lip, more or
less[,] on the left side making an exit in the left
mandibular region. (pp. 9-11, tsn, Dec. 4, 1987; pp.
6-8, tsn, Nov. 29, 1988)
In gunshot wound no. 2, the wound of entrance was
in the left intraclavicular region exiting at the back as
reflected in the sketch, (Exh. "F-2"). This wound was
fatal and [could] almost cause an instantaneous
death considering that the bullet penetrated the
thoracic cavity, lacerating the lungs and perforating
the heart before making an exit. (pp. 11-13, tsn, Dec.
4, 1987; pp. 13-15, tsn, Nov. 29, 1988)
He found no tattooing around the wound of
entrance in both gunshot wounds. (pp. 8-9, tsn, Nov.
29, 1988)
He prepared and issued th[e] Necropsy Report, (Exh.
"F") and Death Certificate, (Exh. "G") of Alfredo
Nardo who was identified to him by the latter's
daughter, Anita Nardo. (pp. 26-27, ibid.)
Rey Bolo, one of the victims, testified that when the
jeep he was riding [in] together with Glenn Tiempo
and Alfredo Nardo, reached the gate of the
residence of Stephen Lim, they were suddenly fired
upon. (pp. 5-8, tsn, March 6, 1989)
He was hit in the right palm and left cheek. He
jumped out of the vehicle and ran towards the car
which was behind them but he was again shot at [,]
[and hit] in the left scapular region. He was still able
to reach the road despite the injuries he sustained
and tried to ask help from the people who were in
the vicinity but nobody dared to help him, [they]
simply disappeared from the scene, instead: (pp. 8-
9, ibid.)
He took a passenger jeepney to the city and had
himself treated at the Cebu Doctor's Hospital, and
incurred medical expenses in the sum of P9,000.00.
(p. 9, ibid.)
He was issued a Medical Certificate, (Exh. "N") by his
attending physician.
Dr. Miguel Mancao, a [p]hysician-[s]urgeon, recalled
having attended [to] the victims, Nelson Tiempo, Rey
Bolo and Rogelio Presores at the Cebu Doctor's
Hospital on June 2, 1985. (pp. 7-8, 11, 14, tsn, May
30, 1989)
Nelson Tiempo sustained gunshot wound[s] in the
neck and in the right chest but the bullet did not
penetrate the chest cavity but only the left axilla. He
was not able to recover any slugs because the same
disintegrated while the other was thru and thru. The
wound could have proved fatal but the victim
miraculously survived. As a consequence of the
injury he sustained, Nelson Tiempo permanently lost
his voice because his trachea was shattered. His only
chance of recovery is by coaching and speech
therapy. He issued his Medical Certificate. (Exh. "O").
(pp. 8-11, ibid.)
With regard to the patient, Rey Bolo, the latter
suffered multiple gunshot wounds in the left
shoulder penetrating the chest and fracturing the
2nd, 3rd, and 4th ribs in the process, in the right
hand fracturing the proximal right thumb and in the
mouth lacerating its soft tissues, per Medical
Certificate, (Exh. "N") which he issued. (pp. 11-
16, ibid.)
Based on the trajectory of the bullet, the gunman
could have been in front of the victim, when gunshot
would no. 1 was inflicted. (p. 30, ibid.)
137 | P a g e
With respect to the patient, Rogelio Presores, the
latter suffered [a] gunshot wound in the chest with
the wound of entrance in the right anterior chest
exiting at the back which was slightly lower than the
wound of entrance. He issued the victim's Medical
Certificate, (Exh. "M"). (pp. 34-35, ibid.)
Based on the location of the wound, the gunman
could have been in front of the victim but [o]n a
slightly higher elevation than the latter. (pp. 35-
36, ibid.) 8
Version of the Defense
Appellants interposed denial and alibi. Their version
of the facts is summarized by the trial court 9 thus:
. . . Timoteo Beronga, a cristo or bet caller in the
cockpit, testified that in the afternoon of June 1,
1985, he was in the Talisay Sports Complex located
at Tabunok, Talisay, Cebu to attend a cock-derby.
At about 7:00 o'clock in the evening, he was fetched
by his wife and they left taking a taxicab going to
their residence in Lapulapu City. After passing by the
market place, they took a tricycle and arrived home
at 8:00 o'clock in the evening.
After taking his supper with his family, he went
home to sleep at 10:30 in the evening. The following
morning, after preparing breakfast, he went back to
sleep until 11:00 in the morning.
On February 24, 1987, while he was playing mahjong
at the corner of R.R. Landon and D. Jakosalem Sts.,
Cebu City, complainant, Maj. Juan Tiempo with some
companions, arrived and after knowing that he [was]
"Timmy," [which was] his nickname, the former
immediately held him by the neck.
He ran away but the latter chased him and kicked
the door of the house where he hid. He was able to
escape through the back door and took refuge in
Mandaue at the residence of Nito Seno, a driver of
Gen. Emilio Narcissi. (Tsn-Abangan, pp. 4-17,
October 19, 1989)
On February 27, 1987, upon the advi[c]e of his
friend, they approached Gen. Narcissi and informed
him of the incident. The latter brought him to the
Provincial Command Headquarters in Lahug, Cebu
City to confront Maj. Juan Tiempo.
After several days, he was brought by Maj. Tiempo
to the PC Headquarter[s] in Jones Ave., Cebu City
where he was provided with a lawyer to defend him
but he was instructed that he should assent to
whatever his lawyer would ask of him.
He was introduced to Atty. Marcelo Guinto, his
lawyer, who made him sign an Affidavit, (Exh. "U")
the contents of which, co[u]ched in the dialect, were
read to him.
He also testified that before he was detained at the
CPDRC, complainant brought him inside the shop of
a certain Den Ong, where he was again mauled after
he denied having any knowledge of the whereabouts
of Roling Sabalones and the carbine.
At the instance of Col. Medija, he was physically
examined at the Southern Islands Hospital, Cebu City
and was issued a [M]edical Certificate. (Tsn-
Formentera, pp. 3-36, Jan. 18, 1990).
Justiniano Cuizon, [a]ccount [o]fficer of the Visayan
Electric Company (VECO) South Extension Office,
who is in charge of the billing, disconnection and
reconnection of electric current, testified that based
on the entries in their logbook, (Exh. "3") made by
their checker, Remigio Villaver, the electrical supply
at the Mansueto Compound, Bulacao, Talisay, Cebu,
particularly the Mansueto Homeowners covered by
Account No. 465-293000-0, (Exh. "4-B") was
disconnected on January 10, 1985, (Exh. "3-A") for
non-payment of electric bills from March 1984 to
January 1985 and was reconnected only on June 17,
1985 (Exh. "4", "4-A"). (Tsn-Abangan, pp. 22-27, Jan.
31, 1990).
Remigio Villaver, a checker of VECO, whose area of
responsibility cover[ed] the towns of Talisay and San
Fernando, Cebu had kept the record of
disconnection of electrical supply of Mansueto
Subdivision in Bulacao, Talisay, Cebu and the same
showed that on January 10, 1985, (Exh. "3-A"), a
service order was issued by their office to the
Mansueto Homeowners for the permanent
disconnection of their electric lights due to non-
payment of their electric bills from March 1984 until
January 1985. The actual disconnection took place
on December 29, 1984.
Witness Fredo Canete made efforts to corroborate
their testimony. (Tsn-Formentera, pp. 3-5, Apr. 20,
1990).
Vicente Cabanero, a resident of Mansueto
Compound in Talisay, Cebu since 1957 until the
present, remembered that on June 1, 1985, between
10:00 o'clock and 11:00 o'clock in the evening, he
heard a burst of gunfire about 15 to 20 armslength
[sic] from his residence.
He did not bother to verify because he was scared
since the whole place was in total darkness. (Tsn-
Abangan, pp. 18-23, Feb. 22, 1990).
Marilyn Boc, another witness for the accused, stated
that on the date and time of the incident in question,
while she was at the wake of Junior Sabalones,
younger brother of Roling Sabalones, who died on
138 | P a g e
May 26, 1985, a sudden burst of gunfire occurred
more or less 60 meters away.
Frightened, she went inside a room to hide and saw
accused, Roling Sabalones, sound asleep.
She came to know accused, Timoteo Beronga, only
during one of the hearings of this case and during
the entire period that the body of the late Junior
Sabalones [lay] in state at his residence, she never
saw said accused.
She was requested to testify in this case by Thelma
Beronga, wife of Timoteo Beronga. (Tsn-Abangan,
pp. 9-13, February 28, 1990).
Dr. Daniel Medina, while then the [r]esident
[p]hysician of Southern Islands Hospital, Cebu City
had treated the patient, Timoteo Beronga on March
18, 1987.
Upon examination, he found out that the patient
sustained linear abrasion, linear laceration and
hematoma in the different parts of the body. Except
for the linear laceration which he believed to have
been inflicted two or three days prior to [the] date of
examination, all the other injuries were already
healed indicating that the same were inflicted 10 to
12 days earlier.
He issued the corresponding Medical Certificate
(Exh. "2") to the patient. (Tsn-Abangan, pp. 9-13,
May 21, 1990).
Atty. Jesus Pono, counsel for accused Beronga,
mounted the witness stand and averred that he
[was] a resident of Mansueto Compound, Bulacao,
Talisay, Cebu. As shown in the pictures, (Exhs. "3",
"4" & "5" with submarkings) his house is enclosed by
a concrete fence about 5 feet 6 inches tall. It is
situated 6 meters from the residence of accused,
Roling Sabalones, which was then being rented by
Stephen Lim. Outside the fence [are] shrubs and at
the left side is a lamp post provided with 200 watts
fluorescent bulb.
On June 1, 1985 at about 7:00 o'clock in the evening,
he saw Roling Sabalones, whom he personally
[knew] because they used to be neighbors in Talisay,
Cebu, at the wake of his brother, Federico
Sabalones, Jr. or Junior Sabalones, as mentioned
repeatedly hereabout. They even had a talk and he
noticed accused to be physically indisposed being
gravely affected by the loss of his only brother, who
met a violent death in the hands of an unknown
hitman on May 26,1985.
He went home after he saw accused [lie] down on a
bamboo bench to rest.
At about 12:00 o'clock midnight, he was awakened
by a rapid burst of gunfire which emanated near his
house. He did not attempt to go down or look
outside. He [was] in no position to tell whether or
not the street light was lighted.
When he verified the following morning, he noticed
bloodstains on the ground as well as inside the jeep
which was parked 2 to 3 meters from his fence and
50 to 70 meters from the house where Junior
Sabalones [lay] in state. He observed that the jeep
was riddled with bullets and its windshield
shattered. (Tsn-Abangan, pp. 3-16, June 6, 1990).
He admitted that he used to be a counsel of accused,
Roling Sabalones, in several cases, among which
involved the death of a certain Garces and
Macaraya, which cases were however, dismissed by
the Office of the Provincial Fiscal of Cebu. (Tsn-
Tumarao, pp. 2-3, June 13, 1990).
Doroteo Ejares, a relative of accused, testified that
when he attended the wake of Junior Sabalones on
June 1, 1985 at 8:00 o'clock in the evening, he saw
accused lying on a bamboo bench in the yard of the
house of the deceased.
At past 10:00 o'clock in the evening, accused
excused himself as he was not feeling well and
entered a room to rest while he remained by the
door and slept.
At almost 12:00 o'clock midnight, he was awakened
by a burst of gunfire which took place more or less
20 meters away and saw the people scamper[ing] for
safety. He hid inside the room where accused was
sleeping and peeped thru the door. Not long after,
Marilyn Boc entered and in a low voice talked about
the incident.
They decided to wake up the accused to inform him
of what was happening, but the latter merely
opened his eyes and realizing that accused was too
weak, they allowed him to go back to sleep.
When he went home at past 5:00 o'clock in the
morning of June 2, 1985, he saw a jeep outside of
the compound. He did not bother to investigate or
inquire about the incident as he was in a hurry to go
home and prepare for the burial of Junior Sabalones.
He was requested to testify in this case by his aunt
and mother of accused Rolusape Sabalones. (Tsn-
Tumarao, pp. 10-15, June 13, 1990).
Russo Sabalones, uncle of accused, Sabalones,
averred that the latter was once, one of his
undercover agents while he was then the [c]hief of
the Intelligence Service of the PC from 1966 until
1968.
139 | P a g e
As part of their intelligence tradition, an undercover
agent is not allowed to carry his real name. In the
case of his nephew and accused, Rolusape
Sabalones, the latter chose the name "Paciano
Laput" which name was recorded in their code of
names.
When he retired in 1968, the accused ceased to be
an agent and . . . likewise ceased to have the
authority to use the name Paciano Laput. (Tsn-
Abangan, p. 12, July 23, 1990).
Alfonso Allere, a distant relative of the accused,
remembered having received a call from Roling
Sabalones, one morning after the burial of the
latter's brother, asking for his advise because of the
threats [to] his life which he received thru telephone
from the group of Nabing Velez and the group of the
military.
After he had advised accused to lie low, he had not
heard of him, since then.
Godofredo Mainegro of the Public Assistance and
Complaint Action Office of the Regional Unified
Command 7, received a complaint from one
Inocencia Sabalones on March 13, 1986.
He recorded the complaint in their Complaint Sheet,
(Exh. "6") and let complainant affix her signature.
After the document was subscribed and sworn to
before him, (Exh. "6-C"), he indorsed it to their
[c]ommanding [o]fficer, Apolinario Castano. (Tsn-
Formentera, pp. 3-10, July 24, 1990).
Ret. Col. Apolinario Castano, recalled that while he
was then with the Regional Unified Command 7, his
niece, Racquel Sabalones together with her husband
Roling Sabalones, came to him for advi[c]e because
the latter was afraid of his life brought about by the
rampant killings of which his brother and the son of
Maj. Tiempo were victims.
Considering that accused's problem matter, they
approached Gen. Ecarma, the then [c]ommander of
the PC/INP, Recom 7, and the latter referred them to
his [c]hief of [s]taff, Col. Roger Denia, who informed
them that there was no case filed against the
accused. Nevertheless, the latter was advised to be
careful and consult a lawyer.
Inocencia Sabalones, mother of accused, Roling
Sabalones, narrated that on March 12, 1986 at past
10:00 o'clock in the evening, she was roused from
sleep by a shout of a man demanding for Roling
Sabalones.
Upon hearing the name of her son, she immediately
stood up and peeped through the door of her store
and saw men in fatigue uniforms carrying long
firearms. Thenceforth, these men boarded a vehicle
and left.
On the following morning, she was again awakened
by the persistent shouts and pushing of the gate.
When she verified, the man who introduced himself
to her as Maj. Tiempo, ordered her to open the gate.
Once opened, the men of Maj. Tiempo entered the
house and proceeded to search for Roling Sabalones,
whom Maj. Tiempo suspected to have killed his son
and shot another to near death. When she
demanded for a search warrant, she was only shown
a piece of paper but was not given the chance to
read its contents.
Racquel Sabalones, wife of accused, Rolusape
Sabalones, maintained that on June 1, 1985 at 1.00
o'clock in the afternoon, she was at the wake of her
brother-in-law, Junior Sabalones, at his residence in
Bulacao, Talisay, Cebu.
At 11:00 o'clock in the evening of the same day,
together with her 3 daughters as well as Marlyn
Sabarita, Rose Lapasaran and Gloria Mondejar, left
the place in order to sleep in an unoccupied
apartment situated 30 meters away from the house
where her deceased, brother-in-law, Junior, was
lying in state, as shown in the Sketch, (Exh. "7" and
submarkings) prepared by her. They brought with
them a flashlight because the whole place was in
total darkness.
As they were about to enter the gate leading to her
apartment she noticed a sedan car coming towards
them. She waited for the car to come nearer as she
thought that the same belong[ed] to her friend, but
the vehicle instead stopped at the corner of the
road, (Exh. "7-F") and then proceeded to the end
portion of Mansueto Compound, (Exh. "7-G"). As it
moved slowly towards the highway, she rushed
inside the apartment.
Few minutes later, she heard a burst of gunfire
outside their gate. She immediately gathered her
children and instructed Marlyn Sabarita to use the
phone situated at the third door apartment and call
the police.
After the lull of gunfire, she went to the terrace and
saw people in civilian and in fatigue uniforms with
firearms, gathered around the place. One of these
men even asked her about the whereabouts of her
husband, whom she left sleeping in the house of the
deceased.
At 8:30 in the morning of June 2, 1985, during the
burial of Junior Sabalones, they were informed by
Pedro Cabanero that Roling Sabalones was a suspect
for the death of Nabing Velez and the son of Maj.
Tiempo.
140 | P a g e
She believed that the reason why her husband was
implicated in the killing of Nabing Velez was because
of the slapping incident involving her father-in-law,
Federico Sabalones, Sr. and Nabing Velez which took
place prior to the death of Junior Sabalones.
After the funeral, she began to receive mysterious
calls at their residence in Sikatuna St., Cebu City
where they began staying since 1978. She also
noticed cars with tinted windows strangely parked in
front of their residence.
Frightened and cowed, they decided to seek the
advice of Col. Apolinario Castano, who after relating
to him their fears, advised her husband to lie low
and to consult a lawyer.
To allay their apprehension, accused, Roling
Sabalones, left Cebu City for Iligan, Manila and other
cities to avoid those who were after him. When she
learned about the threat made by Maj. Tiempo on
her husband, she forewarned the latter not to return
to Cebu.
Marlyn Sabarita, an illegitimate daughter of
Rolusape Sabalones, stated that in the night in
question, she was at the wake of Junior Sabalones
and saw her Papa Roling, the herein accused, lying
on the lawn of the house of the deceased.
She was already in the apartment with her Mama
Racquel when she heard a burst of gunfire. Upon
instructions of the latter, she went out to call the
police thru the phone located [in] the third
apartment occupied by a certain Jet. (Tsn-Tumarao,
pp. 3-15, Oct. 15, 1990).
Edward Gutang, [a]sst. lay-out [e]ditor and [a]sst.
[s]ports [e]ditor of Sun-Star Daily, while then a
military and police reporter had covered the
shooting incident which took place on June 1, 1985
at the Mansueto Compound, Bulacao, Talisay, Cebu.
At past 1:00 o'clock dawn, together with their
newspaper photographer, Almario Bitang, they went
to the crime scene boarding the vehicle of the
Cosmopolitan Funeral Homes. Arriving thereat, they
decided not to proceed inside the compound
because of fear. The place was then incomplete
darkness.
Upon being informed that the victims were brought
to Cebu City Medical Center, they rushed to the
place and met Maj. Tiempo hugging the dead body
of his 14-year old son. His photographer took a
picture of that pathetic scene. (Exh. "8-B").
Samson Sabalones, a retired [a]mbassador and uncle
of Rolusape Sabalones, posted a bail bond for his
nephew with Eastern Insurance Company, when a
warrant for his arrest was issued by the Municipal
Court, on March 12, 1986 because he was bothered
by the fact that the latter was being unreasonably
hunted by several groups. He even advised the
accused to appear in [c]ourt to clarify the nature of
the case filed against him.
Virgincita Pajigal, a resident of Butuan City, met
accused, Rolusape Sabalones, who introduced
himself to her as "Paciano Laput" nicknamed, Ondo,
in a massage clinic where she was working.
For less than a year, they lived together as husband
and wife without the benefit of marriage because
according to her the accused was married but
separated from his wife, whose name was never
mentioned to her. For such a short span of time
being together, her love for the accused developed
to the extent that whatever happen[ed] to him, she
[would] always be there to defend him.
With the help of Maj. delos Santos, who advised her
to always stay close [to] the accused, she was able to
board the same vessel. She saw the latter clad in
green T-shirt, (Exh. "14") and pants, handcuffed and
guarded.
Reaching Cebu City, they took a taxicab and as the
vehicle went around the city, she was instructed by
Maj. Tiempo to place the towel, (Exh. "15") which
she found inside her bag, on the head of the
accused. They stopped at the Reclamation Area and
Maj. Tiempo pulled them out of the vehicle but she
held on tightly to Ondo, ripping his shirt. This pulling
incident happened for several times but complainant
failed to let them out of the vehicle.
The accused was finally brought to the Provincial Jail
while she stayed in the residence of the accused. She
returned to Butuan after a week. (Tsn-Formentera,
pp. 5-33, Jan. 22, 1991).
Accused, Rolusape Sabalones, alias "Roling", in his
defense, with ancillary incidental narrations,
testified, that on June 1, 1985 at 6:00 o'clock in the
evening, he was at the wake of his only brother,
Junior Sabalones, who was killed on May 26, 1985.
He had no idea as to who was responsible for the
killing of his brother inasmuch as the latter had
plenty of enemies. He also did not exert effort to
look into the case and to place it under police
authority since he had lost faith in the capabilities of
the police. The matter was however reported by his
uncle, Ambassador Sabalones, to the authorities.
He stayed at the wake until 10:00 o'clock in the
evening because he was not feeling well. He retired
in a small room adjacent to the sala of the house of
the deceased. Not long after, he felt somebody
waking him up but he merely opened his eyes and
went back to sleep as he was really exhausted.
141 | P a g e
At 6:30 the following morning, he was roused by his
wife so he could prepare for the burial. He came to
know about the burst of gunfire which took place
the previous night upon the information of his wife.
He did not take the news seriously as he was busy
preparing for the burial of his deceased brother, Jun.
The funeral started at past 8:00 o'clock in the
morning and he noticed the presence of Maj. Eddie
Ricardo and his men, who were sent by Col. Castano
purposely to provide the burial with military security,
upon the request of his wife.
He had a conversation with Maj. Ricardo who
inquired about the shooting incident which resulted
in the death of the son of Maj. Tiempo and others in
his company. Also in the course of their
conversation, he came to know that Nabing Velez
was killed earlier on that same night in Labangon,
Cebu [C]ity.
On the same occasion, Pedro Cabanero also notified
him that he was a suspect in the killing of Nabing
Velez, a radio commentator of ferocious character,
who was engaged in a protection racket with several
under his control.
He remembered that a month prior to the death of
Nabing Velez, his father, Federico Sabalones, Sr. and
the deceased while matching their fighting cocks at
the Talisay Sports Complex, had an altercation and
the latter slapped his paralytic father and challenged
him to ask one of his sons to avenge what he had
done to him. He came to know about the incident
only after a week.
He did not deny the fact that he was hurt by the
actuation of the deceased for humiliating his father
but it did not occur to him to file a case or take any
action against the deceased because he was too
busy with his business and with his work as a bet
caller in the cockpit.
He advised his father to stay in Bohol to avoid
further trouble because he knew that the latter
would frequent the cockpit[,] being a cockfight
aficionado.
Likewise, during the burial, he was informed by a PC
soldier, Roger Capuyan, that he was also a suspect in
the killing of the son of Maj. Tiempo and even
advised him to leave the place.
On the following days after the burial, his wife
started to notice cars suspiciously parked in front of
their house and [she] also received mysterious calls.
Together with his wife, they decided to see Col.
Apolinario Castaño to seek his advise. The latter
verified from the Cebu Metrodiscom and learned
that there was no case filed against him.
In the evening of June 6, 1985, he left for Iligan and
after a month, he transferred to Ozamis and ten to
Pagadian. He likewise went to Manila especially
when he learned that his uncle, Samson Sabalones,
had arrived from abroad. The latter posted a bond
for his temporary liberty immediately after being
informed that a case was filed against him, before
the Municipal Court of Talisay.
Despite . . . the bond put up his uncle, he did not
return to Cebu City because it came to his
knowledge that Maj. Tiempo inquired from the
bonding company as to his address.
He also stayed in Marikina in the house of his friend
and during his stay in the said place, he registered as
a voter and was issue a Voter's Affidavit, (Exh. "19";
Exh. "R" for the prosecution) which bore the name
"Paciano Mendoza Laput" which [was] his baptismal
name. He explained that the name[s] Mendoza and
Laput [were] the middle name and surname,
respectively of his mother. The name "Rolusape"
was given to him by his father and the same [was]
not his registered name because during the old days,
priests would not allow parents to name their
children with names not found in the Almanac; thus,
Paciano [was] his chosen name and the same
appeared in his Baptismal Certificate, (Exh. "20")
issued by the Parish of the Blessed Trinity of Talibon,
Bohol. In his Birth Certificate, it [was] the name
"Rolusape" which appeared based upon the data
supplied by his father.
He had used the name Paciano during the time when
he [was] still a secret agent under his uncle, Gen.
Russo Sabalones, when the latter was still the [c]hief
of the C-2 in 1966 until 1967 and as such, he was
issued a firearm. He likewise used said name at the
time he was employed at the Governor's Office in
Agusan and when he registered in the Civil Service
Commission to conceal his identity to protect himself
from those who were after him.
From Marikina he proceeded to Davao and then to
Butuan City where he was made to campaign for the
candidacy of Gov. Eddie Rama. When the latter won
in the election, he was given a job at the Provincial
Capitol and later became an agent of the PC in
Butuan using the name, "Paciano Laput."
During his stay in Butuan, he met Virgie Pajigal, a
manicurist who became his live-in partner.
On October 23, 1988 while he was at the Octagon
Cockpit in Butuan with Sgt. Tambok, he was arrested
by Capt. Ochate and was brought to the PC
Headquarter[s] in Libertad, Butuan City and was
detained. Among the papers confiscated from him
was his Identification Card No. 028-88, (Exh. "21")
142 | P a g e
issued by the PC Command bearing the name
Paciano Laput.
On October 26, 1988 he was taken from the City Jail
by Capt. Ochate and some soldiers, one of whom
was Maj. Tiempo whom he met for the first time.
On their way to Nasipit to board a vessel bound for
Cebu City, Maj. Tiempo made him lie flat on his belly
and stepped on his back and handcuffed him. He
cried in pain because of his sprained shoulder. A
certain soldier also took his watch and ring.
Arriving in Cebu at 7:00 o'clock in the morning, he
and Virgie Pajigal, who followed him in the boat,
were made to board a taxicab. Maj. Tiempo alighted
in certain place and talked to a certain guy.
Thereafter, they were brought to the Reclamation
Area and were forced to go down from the vehicle
but Virgie Pajigal held him tightly. They were again
pulled out of the taxi but they resisted.
From the Capitol Building, they proceeded to CPDRC
and on their way thereto, Maj. Tiempo sat beside
him inside the taxi and boxed him on the right cheek
below the ear and pulled his cuffed hands apart.
At the Provincial Jail, he was physically examined by
its resident physician, Dr. Dionisio Sadaya, and was
also fingerprinted and photographed, (Exh. "21"). He
was issued a Medical Certificate, (Exh. "22").
He further stated that he [was] acquainted with his
co-accused Timoteo Beronga, known to him as
"Timmy" being also a bet caller in the cockpit. (Tsn-
Formentera, pp. 5-23, Feb. 26, 1991; Tsn-Abangan,
pp. 3-33, Feb. 27, 1991; Tsn-Abangan, pp. 4-18, Apr.
10, 1991).
As surrebuttal witness, accused Rolusape Sabalones
denied that he bribed a certain soldier because at
the time he was arrested, his wallet as well as his
wristwatch and ring worth P2,000.00 each were
confiscated and his hands tied behind his back.
He also denied the allegation of Maj. Tiempo that he
offered the latter the amount of P1,000,000.00 to
drop the case against him, the truth being that while
they were on board a vessel bound for Cebu City,
Maj. Tiempo compelled him to tell [who] the real
killers of his son [were] because he knew that he
(Rolusape Sabalones) was not responsible. The
former also inquired from him as to the
whereabouts of the carbine.
He also rebutted complainant's testimony that upon
their arrival here in Cebu City and while on board a
taxicab, he directed the former [to] first go around
the city to locate a certain Romeo Cabañero, whom
he did not know personally. 10
Ruling of the Court of Appeals
Giving full credence to the evidence of the
prosecution, the Court of Appeals affirmed the trial
court's Decision convicting appellants of two counts
of murder and three counts of frustrated murder.
Like the trial court, it appreciated the qualifying
circumstance of treachery and rejected appellants'
defense of alibi.
The Court of Appeals, however, ruled that the
penalties imposed by the trial court were erroneous.
Hence, for each count of murder, it sentenced
appellants to reclusion perpetua. For each count of
frustrated murder, it imposed the following penalty:
ten years (10) of prision mayor (medium), as
minimum, to seventeen years (17) years and four (4)
months of reclusion temporal (medium), as
maximum. Sustaining the trial court, the Court of
Appeals awarded indemnity of P20,000 to each of
the victims of frustrated murder. However, it was
silent on the indemnity of P50,000 awarded by the
trial court to the heirs of each of the two deceased.
Having imposed reclusion perpetua on the
appellants, the Court of Appeals, as earlier noted,
refrained from entering judgment and certified the
case to the Supreme Court for review, in conformity
with Section 13, Rule 124 of the Rules of Court.
Hence, this appeal before this Court. 11
The Issues
In his Brief, 12 Appellant Sabalones raised the
following errors allegedly committed by the trial
court:
I The court a quo erred in not acquitting the accused
The court a quo erred in finding that accused
Sabalones and his friends left the house where his
brother Sabalones Junior was lying in state and
"went to their grisly destination amidst the dark and
positioned themselves in defense of his turf against
the invasion of a revengeful gang of the supporters
of Nabing Velez.
II
The court a quo erred in finding that accused
Sabalones and his two co-accused were identified as
among the four gunmen who fired at the victims.
III
The court a quo erred in overlooking or disregarding
physical evidence that would have contradicted the
testimony of prosecution witnesses Edwin Santos
143 | P a g e
and Rogelio Presores that the gunmen were shooting
at them from a standing position.
IV
The court a quo erred in holding that the instant case
is "one of aberratio ictus", which is not a defense,
and that the "defense of alibi" interposed by the
accused may not be considered.
V
The court a quo erred in not finding that the
evidence of the prosecution has not overcome the
constitutional presumption of innocence in favor of
the accused.
VI
on ground of reasonable doubt.
In a Manifestation dated December 20, 1995,
Appellant Beronga, through counsel, adopted as his
own the Brief of Sabalones. 13
The foregoing assignment of errors shall be
reformulated by the Court into these three issues or
topics: (1) credibility of the witnesses and sufficiency
of the prosecution evidence, (2) defense of denial
and alibi, and (3) characterization of the crimes
committed and the penalty therefor.
The Court's Ruling
The appeal is devoid of merit.
First Issue:
Credibility of Witnesses and
Sufficiency of Evidence
Well-entrenched is the tenet that this Court will not
interfere with the trial court's assessment of the
credibility of the witnesses, absent any indication or
showing that the trial court has overlooked some
material facts or gravely abused its
discretion, 14 especially where, as in this case, such
assessment is affirmed by the Court of Appeals. "As
this Court has reiterated often enough, the matter of
assigning values to declarations at the witness stand
is best and most competently performed or carried
out by a trial judge who, unlike appellate
magistrates, can weigh such testimony in light of the
accused's behavior, demeanor, conduct and attitude
at the trial." 15 Giving credence to the testimonies of
the prosecution witnesses, the trial court concluded:
Stripped of unnecessary verbiage, this Court, given
the evidence, finds that there is more realism in the
conclusion based on a keener and realistic appraisal
of events, circumstances and evidentiary facts on
record, that the gun slaying and violent deaths of
Glenn Tiempo and Alfredo Nardo, and the near fatal
injuries of Nelson Tiempo, Rey Bolo and Rogelio
Presores, resulted from the felonious and wanton
acts of the herein accused for mistaking said victims
for the persons [who were] objects of their wrath. 16
We stress that "factual findings of the lower courts,
the trial court and the Court of Appeals are, as a
general rule, binding and conclusive upon the
Supreme Court." 17 We find nothing in the instant
case to justify a reversal or modification of the
findings of the trial court and the Court of Appeals
that appellants committed two counts of murder
and three counts of frustrated murder.
Edwin Santos, a survivor of the assault, positively
pointed to and identified the appellants as the
authors of the crime. His categorical and
straightforward testimony is quoted hereunder: 18
COURT:
Q You stated there was a gun fired. What happened
next?
WITNESS:
A There was a rapid fire in succession.
Q When you heard this rapid firing, what did you do?
A I tried to look from where the firing came from.
Q After that, what did you find?
A I saw persons firing towards us.
Q Where were these persons situated when they
were firing towards you?
A Near the foot of the electric post and close to the
cemented wall.
Q This electric post, was that lighted at that
moment?
A Yes, sir, it was lighted.
Q How far were these persons firing, to the place
where you were?
A From here to there (The witness indicating the
distance by pointing to a place inside the courtroom,
indicating a distance of about 6 to 7 meters, making
the witness stand as the point of reference).
Q Were you able to know how many persons fired
towards you?
144 | P a g e
A I only saw 3 to 4 persons.
Q How long did these persons fire the guns at you?
A Until we went home. The persons were still firing,
until we went home.
Q You stated that you saw these persons who were
firing at you. Do you know these persons?
A I can identify [them] when I [see] them.
Q Try to look around this courtroom, if these persons
you saw who were firing at you are present in the
courtroom[.]
A Yes, sir.
Q Can you point to these persons?
A Yes, sir.
Q Point at them.
COURT INTERPRETER:
The Court directed the witness to go down from the
witness stand and [point] at them, Beronga and
Alegarbes.
FISCAL GABIANA:
I would like to make it of record that on the bench of
prisoner, only the two accused were seated.
COURT:
Make it of record that only two prisoners were
present.
Q Now, Mr. Santos, aside from these two accused
you identified as among those who fired [at] you on
that evening, were there other persons that you saw
on that particular occasion who fired at you?
A Yes, sir, there were[;] if I can see them, I can
identify them.
Corroborating the foregoing, Rogelio Presores,
another survivor, also pointed to Timoteo Beronga,
Teodulo Alegarbes and Roling Sabalones as the
perpetrators of the crime. His testimony proceeded
in this manner: 19
Q When you arrived at the residence of Stephen Lim,
can you remember of any unusual incident that took
place?
A Yes, sir.
Q What was that?
A When the jeep arrived, the car was following.
Q What happened next?
A When the jeep was near the gate, the car was
following.
Q The car was following the jeep, at what distance?
A 3 to 4 meters.
Q While the car was following the jeep at that
distance of 3 to 4 meters, what happened?
A All of a sudden, we heard the burst of gunfire.
Q From what direction was the gunfire?
A Through the direction of the jeep. Q What about the 3 persons? Positive Identification

Q After hearing the gunfire, what happened?
A We looked at the jeep.
Q What did you see?
A We saw Alfredo Nardo and Glenn Tiempo and Rey
Bolo f[a]ll to the ground. There were only 3.
Q Who was driving the jeep at that time?
A Alfredo Nardo.
Q What happened after that?
A So, I looked, whence the burst of gunfire came
from.
Q What did you see from that gunfire?
A I saw 4 persons standing at the back of the fence.
Q What were those 4 persons doing when they were
standing at the back of the fence?
A That's why the 3 persons, I do not know them. I
can recognize only their facial appearance.
Q What about one person?
A Yes, sir.
Q What is the name of the person?
A Roling Sabalones.
Q If Roling Sabalones is inside the courtroom, can
you recognize Roling Sabalones?
A Yes, sir, he is around.
Q Can you point to Roling Sabalones?
A Yes, he is there (The witness pointing to the person
who answered the name of Roling Sabalones).
Q I would like [you] again to please look around and
see, if those persons whom you know through their
faces, if they are here around?
Appellants allege that the two witnesses could not
have properly identified the appellants because,
after the first burst of shooting, they both crouched
down, such that they could not have seen the faces
of their assailants. This contention does not
persuade. Both eyewitnesses testified that the firing
was not continuous; thus, during a lull in the firing,
they raised their heads and managed a peek at the
perpetrators. Edwin Santos testified as follows:
Atty. Albino, counsel for accused Beronga:
Q You mean to say that when you bent you heard
the successive shots, [and] you again raised your
head. Is that correct?
A There, were times that the shots were not in
succession and continuous and that was the time I
raised my head again. 20
Like Santos, Rogelio Presores also stooped down
when the firing started, but he raised his head during
a break in the gunfire:
Atty. Albino:

A They were bringing long firearms.
Q Did you recognize these persons?
A I can clearly recognize one and the 3 persons[.] I
can identify them, if I can see them again.
Q If you are shown these persons, can you recognize
them? Can you name these persons?
A No, sir. Only their facial appearance.
A The two of them (The witness pointing to the 2
Q So, what did you do when you first heard that one
persons, who, when asked, answered that his name
shot?
[was] Teofilo Beronga and the other [was]
Alegarbes).
A So, after the first shot, we looked towards the
direction we were facing and when we heard the
Indeed, we have carefully waded through the second shot, that was the time we stooped down. 21
voluminous records of this case and the testimonies
of all the fifty-nine witnesses, and we find that the
He further testified:
prosecution has presented the required quantum of
proof to establish that appellants are indeed guilty as
charged. Appellants' arguments, as we shall now Atty. Acido: [Counsel for Appellant Sabalones]
discuss, fail to rebut this conclusion.

145 | P a g e
Q And you said you stooped down inside the car
when you heard the first firing to the jeep. Is that
what you want the Court to understand[?]
Presores:
A Yes, sir.
Q So, you never saw who fired the successive shots
to the car as you said you stooped down inside the
car?
A The bursts of gunfire stopped for a while and that
was the time I reared of [sic] my head.
Q And that was the first time you saw them?
A Yes, sir. 22
The records clearly show that two vehicles
proceeded to the house of Stephen Lim on that
fateful day. The first was the jeep where Alfredo
Nardo, Glenn Tiempo and Rey Bolo were riding.
About three to four meters behind was the second
car carrying Nelson Tiempo, Guillermo Viloria,
Rogelio Oliveros and the two prosecution witnesses -
Edwin Santos and Rogelio Presores. 23 As stated
earlier, said witnesses attested to the fact that after
the first volley of shots directed at the jeep, they
both looked at the direction where the shots were
coming from, and they saw their friends in the jeep
falling to the ground, as well as the faces of the
perpetrators. 24 It was only then that a rapid
succession of gunshots were directed at them, upon
which they started crouching to avoid being hit.
Hence, they were able to see and identify the
appellants, having had a good look at them after the
initial burst of shots. We stress that the normal
reaction of a person is to direct his sights towards
146 | P a g e
the source of a startling shout or occurrence. As held Q Ordinary pliers and ordinary screw driver?
in People v. Dolar, 25 "the most natural reaction for
victims of criminal violence is to strive to see the A Yes, sir.
looks and faces of their assailants and to observe the
manner in which the crime is committed. Q And does [one] need to be an expert in electronic
[sic] in order to conduct the disconnection?
In bolstering their claim that it was impossible for
the witnesses to have identified them, appellants A No, sir.
further aver that the crime scene was dark, there
being no light in the lampposts at the time. To prove
Q In other words, Mr. Canete, any ordinary
that the service wire to the street lamps at the
electrician can cut it?
Mansueto Compound was disconnected as early as
December 1984 and reconnected only on June 27,
A That is if they are connected with the Visayan
1985, they presented the testimonies of Vicente
Electric Company.
Cabanero, 26 Remigio Villaver, 27 Fredo Canete 28 and
Edward Gutang. 29 The trial court, however, did not
Q What I mean is that, can the cutting be done by
lend weight to said testimonies, preferring to believe
the statement of other prosecution witnesses that any ordinary electrician?
the place was lighted during that time.
A Yes, sir. 30
The Court of Appeals sustained said findings by citing
the testimonies of defense witnesses. Fredo Canete Said witness even admitted that he could not recall if
of the Visayan Electric Company (VECO), for he did in fact cut the electrical connection of the
instance, admitted that it was so easy to connect and Mansueto Compound. 31 The Court of Appeals
disconnect the lights. He testified thus: further noted that "none of the above witnesses
were at the crime scene at or about the exact time
that the ambush occurred. Thus, none was in a
Atty. Kintanar:
position to state with absolute certainty that there
was allegedly no light to illuminate the gunmen
Q Now, as a cutter, what instruments do you usually
when they rained bullets on the victims. 32
use in cutting the electrical connection of a certain
place?
Even assuming arguendo that the lampposts were
not functioning at the time, the headlights of the
Canete:
jeep and the car were more than sufficient to
illuminate the crime scene. 33 The Court has
A Pliers and screw driver.
previously held that the light from the stars or the
moon, an oven, or a wick lamp or gasera can give
Q Does it need . . . very sophisticated instruments to ample illumination to enable a person to identify or
disconnect the lights? recognize another. 34 In the same vein, the
headlights of a car or a jeep are sufficient to enable
A No, these are the only instruments we use.
eyewitnesses to identify appellants at the distance of
4 to 10 meters.
Extrajudicial Statement
of Beronga
Appellants insist that Beronga's extrajudicial
statement was obtained through violence and
intimidation. Citing the res inter alios acta rule, they
also argue that the said statement is inadmissible
against Sabalones. Specifically, they challenge the
trial court's reliance on the following portions of
Beronga's statement:
Q After Roling knew that Na[b]ing Velez was killed,
have you observed [if] Roling and his companions
prepared themselves for any eventuality?
A It did not take long after we knew that Na[b]ing
was killed, somebody called up by telephone looking
for Roling, and this was answered by Roling but we
did not know what they were conversing about and
then Roling went back to the house of Junior after
answering the phone. And after more than two
hours, we heard the sound of engines of vehicles
arriving, and then Meo, the man who was told by
Roling to guard, shouted saying: "They are already
here[;]" after that, Roling came out carrying a
carbine accompanied by Tsupe, and not long after
we heard gunshots and because of that we ran
towards the house where the wake was. But before
the gun-shots, I heard Pedring Sabalones father of
Roling saying: "You clarify, [t]hat you watch out for
mistake[n] in identity," and after that shout,
gunshots followed. [sic] Then after the gun-shots
Roling went back inside still carrying the carbine and
shouted: "GATHER THE EMPTY SHELLS AND MEO[,]
YOU BRING A FLASHLIGHT," and then I was called by
Meo to help him gather the empty shells of the
carbine and also our third companion to gather the
empty shells.
147 | P a g e
These arguments have no merit. In the first place, it
is well to stress that appellants were convicted based
primarily on the positive identification of the two
survivors, Edwin Santos and Rogelio Presores, and
not only on the extrajudicial statement, which
merely corroborates the eyewitness testimonies.
Thus, said arguments have no relevance to this case.
As the Court held in People vs. Tidula: 35 "Any
allegation of violation of rights during custodial
investigation is relevant and material only to cases in
which an extrajudicial admission or confession
extracted from the accused becomes the basis of
their conviction."
In any case, we sustain the trial court's holding, as
affirmed by the Court of Appeals, that the
extrajudicial statement of Beronga was executed in
compliance with the constitutional
requirements. 36 "Extrajudicial confessions, especially
those which are adverse to the declarant's interests
are presumed voluntary, and in the absence of
conclusive evidence showing that the declarant's
consent in executing the same has been vitiated,
such confession shall be upheld." 37
The exhaustive testimony of Sgt. Miasco, who
undertook the investigation, shows that the
appellant was apprised of his constitutional rights to
remain silent and to have competent and
independent counsel of his own choice. 38 Said
witness also stated that Beronga was assisted by
Atty. Marcelo Guinto during the custodial
investigation. 39 In fact, Atty. Guinto also took the
witness stand and confirmed that Appellant Beronga
was informed of his rights, and that the investigation
was proper, legal and not objectionable. Indeed,
other than appellants' bare allegations, there was no
showing that Beronga's statement was obtained by
force or duress. 40
Equally unavailing is appellants' reliance on the res
inter alios acta rule under Section 30, Rule 130 of the
Rules of Court, which provides:
The act or declaration of a conspirator relating to the
conspiracy and during its existence, may be given in
evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act
or declaration.
Appellants assert that the admission referred to in
the above provision is considered to be against a co-
conspirator only when it is given during the
existence of the conspiracy. They argue that
Beronga's statement was made after the termination
of the conspiracy; thus, it should not be admitted
and used against Sabalones.
The well-settled rule is that the extrajudicial
confession of an accused is binding only upon
himself and is nor admissible as evidence against his
co-accused, it being mere hearsay evidence as far as
the other accused are concerned. 41 But this rule
admits of exception. It does not apply when the
confession, as in this case, is used as circumstantial
evidence to show the probability of participation of
the co-accused in the killing of the victims 42 or when
the confession of the co-accused is corroborated by
other evidence. 43
Beronga's extrajudicial statement is, in fact,
corroborated by the testimony of Prosecution
Witness Jennifer Binghoy. Pertinent portions of said
testimony are reproduced hereunder:
Q While you were at the wake of Jun Sabalones and
the group were sitting with Roling Sabalones, what
were they doing?
A They were gathered in one table and they were
conversing with each other.
 xxx xxx xxx
Q On that same date, time and place, at about 10:00
[i]n the evening, can you remember if there was
unusual incident that took place?
A I heard over the radio at the Sabalones Family that
a certain Nabing Velez was shot.
Q That [a] certain Nabing Velez was shot? What else
. . . transpired?
A I observed that their reactions were so queer, - as if
they were running.
xxx xxx xxx
Q In that evening of June 1, 1985, when you went
there at the house of Jun Sabalones, have you seen
an armalite?
A Yes, sir.
Q Where aid you see this armalite?
A At the table where they were conversing.
Q How many armalites or guns [did you see] that
evening in that place?
A Two (2).
xxx xxx xxx
Q This armalite that you saw, - how far was this in
relation to the groups of Sabalones?
A There (The witness indicating a distance of about 4
to 5 meters).
148 | P a g e
ATTY. KINTANAR:
Q When you looked . . . through the window and saw
there were two vehicles and there were bursts of
gunfire, what happened after that?
A I did not proceed to look . . . through the window
because I stooped down.
Q When you stooped down, what happened?
A After the burst of gunfire, I again opened the
window.
Q And when again you opened the window, what
happened?
A I saw two persons going towards the jeep.
Q What transpired next after [you saw] those 2
persons?
A When they arrived there, they nodded their
head[s].
Q After that, what happened?
A So, they went back to the direction where they
came from, going to the house of Sabalones.
Q While they were going to the direction of the
house of Sabalones, what transpired?
A I saw 5 to 6 persons coming from the highway and
looking to the jeep, and before they reached the
jeep, somebody shouted that "it's ours".
Q Who shouted?
A The voice was very familiar to me.
Q Whose voice?
A The voice of Roling Sabalones.
Q What else have you noticed during the commotion
[when] wives were advising their husbands to go
home?
A They were really in chaos. 44
A careful reading of her testimony buttresses the
finding of the trial court that Rolusape Sabalones and
his friends were gathered at one table, conversing in
whispers with each other, that there were two rifles
on top of the table, and that they became panicky
after hearing of the death of Nabing Velez on the
radio. Hence, the observation of the trial court that
"they went to their grisly destination amidst the dark
and positioned themselves in defense of his turf
against the invasion of a revengeful gang of
supporters of the recently slain Nabing Velez." 45
Alleged Inconsistencies
Appellants also allege that the prosecution account
had inconsistencies relating to the number of shots
heard, the interval between gunshots and the
victims' positions when they were killed. These,
however, are minor and inconsequential flaws which
strengthen, rather than impair, the credibility of said
eyewitnesses. Such harmless errors are indicative of
truth, not falsehood, and do not cast serious doubt
on the veracity and reliability of complainant's
testimony. 46
Appellants further claim that the relative positions of
the gunmen, as testified to by the eyewitnesses,
were incompatible with the wounds sustained by the
victims. They cite the testimony of Dr. Ladislao Diola,
who conducted the autopsy on Glenn Tiempo. He
declared that the victim must necessarily be on a
higher level than the assailant, in the light of the
path of the bullet from the entrance wound to
where the slug was extracted. This finding, according
to appellant, negates the prosecution's account that
the appellants were standing side by side behind a
wall when they fired at the victims. If standing,
appellants must have been on a level higher than
that of the occupants of the vehicles; if beside each
other, they could not have inflicted wounds which
were supposed to have come from opposite angles.
We are not persuaded. The defense presumes that
the victims were sitting still when they were fired
upon, and that they froze in the same position
during and after the shooting. This has no
testimonial foundation. On the contrary, it was
shown that the victims ducked and hid themselves,
albeit in vain, when the firing began. After the first
volley, they crouched and tried to take cover from
the hail of bullets. It would have been unnatural for
them to remain upright and still in their seat. Hence,
it is not difficult to imagine that the trajectories of
the bullet wounds varied as the victims shifted their
positions. We agree with the following explanation
of the Court of Appeals:
The locations of the entry wounds can readily be
explained, . . . Glenn Tiempo, after looking in the
direction of the explosion, turned his body around;
and since the ambushers were between the jeep and
the car, he received a bullet in his right chest (wound
no. 1) which traveled to the left. As to wound No. 2,
it can be explained by the spot where Major Tiempo
found his fallen son.
Atty. Kintanar:
149 | P a g e
Q: Upon being informed by these occupants who
were ambushed and [you] were able to return the
car, what did you do?
Major Tiempo:
A: I immediately got soldiers and we immediately
proceeded to the area or to the place where my
fallen son was located and when we reached . . . the
place, I saw my fallen son [in] a kneeling position
where both knees [were] touching the ground and
the toes also and the forehead was touching towards
the ground. (TSN, Feb. 12, 1988, p. 6)
In such position the second bullet necessarily traveled
upwards in relation to the body, and thus the entry
wound should be lower than the exit wound. There is
no showing that both wounds were inflicted at the
same time. 47
In any event, the witnesses saw that the appellants
were the gunmen who were standing side by side
firing at them. They could have been in a different
position and in another hiding place when they first
fired, but this is not important. They were present at
the crime scene, and they were shooting their rifles
at the victims.
Aberratio Ictus
Appellants likewise accuse the trial court of engaging
in "conjecture" in ruling that there was aberratio
ictus in this case. This allegation does not advance
the cause of the appellants. It must be stressed that
the trial court relied on the concept of aberratio
ictus to explain why the appellants staged the
ambush, not to prove that appellants did in fact
commit the crimes. Even assuming that the trial
court did err in explaining the motive of the
appellants, this does not detract from its findings, as
affirmed by the Court of Appeals and sustained by
this Court in the discussion above, that the guilt of
the appellants was proven beyond reasonable doubt.
In any event, the trial court was not engaging in
conjecture in so ruling. The conclusion of the trial
court and the Court of Appeals that the appellants
killed the wrong persons was based on the
extrajudicial statement of Appellant Beronga and the
testimony of Jennifer Binghoy. These pieces of
evidence sufficiently show that appellants believed
that they were suspected of having killed the
recently slain Nabing Velez, and that they expected
his group to retaliate against them. Hence, upon the
arrival of the victims' vehicles which they mistook to
be carrying the avenging men of Nabing Velez,
appellants opened fire. Nonetheless, the fact that
they were mistaken does not diminish their
culpability. The Court has held that "mistake in the
identity of the victim carries the same gravity as
when the accused zeroes in on his intended
victim." 48
Be that as it may, the observation of the solicitor
general on this point is well-taken. The case is better
characterized as error personae or mistake in the
identity of the victims, rather than aberratio
ictus which means mistake in the blow, characterized
by aiming at one but hitting the other due to
imprecision in the blow.
Second Issue:
Denial and Alibi
Appellants decry the lower courts' disregard of their
defense of alibi. We disagree. As constantly
enunciated by this Court, the established doctrine
requires the accused to prove not only that he was
at some other place at the time of the commission of
the crime, but that it was physically impossible for
him at the time to have been present at the locus
criminis or its immediate vicinity. 49 This the
appellants miserably failed to do.
Appellant Beronga testified that, at the time of the
incident, he was in his residence in Lapulapu City,
which was not shown to be so remote and
inaccessible that it precluded his presence in
Mansueto Subdivision. The alibi of Sabalones is even
more unworthy of belief; he sought to establish that
he was a mere 20-25 meters away from the scene of
the crime. He was allegedly in the house of his
brother who was lying in state, which was so near
the ambush site that some of the defense witnesses
even testified that they were terrified by the gunfire.
Clearly, appellants failed to establish the requisites
of alibi.
Furthermore, the defense of alibi cannot overcome
the positive identification of the appellants. 50 As
aptly held by this Court in People v. Nescio: 51
Alibi is not credible when the accused-appellant is
only a short distance from the scene of the crime.
The defense of alibi is further offset by the positive
identification made by the prosecution witnesses.
Alibi, to reiterate a well-settled doctrine, is accepted
only upon the clearest proof that the accused-
appellant was not or could not have been at the
crime scene when it was committed.
Flight
Appellants further object to the finding that
Sabalones, after the incident, "made himself scarce
from the place of commission. He left for Manila,
thence Mindanao on the supposition that he
want[ed] to escape from the wrath of Maj. Tiempo
and his men for the death of Glenn Tiempo and the
near fatal shooting of the other son or from the
supporters of Nabing Velez. . . . On his supposedly
borrowed freedom, he jumped bail and hid himself
150 | P a g e
deeper into Mindanao, under a cloak of an assumed
name. Why, did his conscience bother him for
comfort?" 52
Appellants rationalized that Sabalones was forced to
jump bail in order to escape two groups, who were
allegedly out to get him, one of Nabing Velez and the
other of Major Tiempo. Their ratiocination is futile. It
is well-established that "the flight of an accused is
competent evidence to indicate his guilt, and flight,
when unexplained, is a circumstance from which an
inference of guilt may be drawn." 53 It must be
stressed, nonetheless, that appellants were not
convicted based on legal inference alone but on the
overwhelming evidence presented against them.
Third Issue:
Crime and Punishment
We agree with the appellate court that accused-
appellants are guilty of murder for the deaths of
Glenn Tiempo end Alfredo Nardo. The allegation of
treachery as charged in the Information was duly
proven by the prosecution. "Treachery is committed
when two conditions concur, namely, that the
means, methods, and forms of execution employed
gave the person attacked no opportunity to defend
himself or to retaliate; and that such means,
methods and forms of execution were deliberately
and consciously adopted by the accused without
danger to his person." 54 These requisites were
evidently present when the accused, swiftly and
unexpectedly, fired at the victims who were inside
their vehicles and were in no position and without
any means to defend themselves.
The appellate court also correctly convicted them of
frustrated murder for the injuries sustained by
Nelson Tiempo, Rey Bolo and Rogelio Presores. As
evidenced by the medical certificates and the
testimony of Dr. Miguel Mancao who attended to
the victims, Nelson Tiempo sustained a neck wound
which completely shattered his trachea and
rendered him voiceless, as well as a wound on the
right chest which penetrated his axilla but not his
chest cavity. 55 Rey Bolo sustained three injuries
which affected his clavicle, ribs and lungs. 56 Rogelio
Presores, on the other hand, sustained an injury to
his lungs from a bullet wound which entered his
right chest and exited through his back. 57
The wounds sustained by these survivors would have
caused their death had it not been for the timely
medical intervention. Hence, we sustain the ruling of
the Court of Appeals that appellants are guilty of
three counts of frustrated murder.
We also uphold the Court of Appeals' modification of
the penalty for murder, but not its computation of
the sentence for frustrated murder.
For each of the two counts of murder, the trial court
imposed the penalty of fourteen (14) years, eight (8)
months and one (1) day of reclusion
temporal (medium), as minimum, to seventeen (17)
years, four (4) months and one (1) day of reclusion
temporal (maximum), as maximum. This is incorrect.
Under Article 248 of the Ravised Penal Code, the
imposable penalty is reclusion temporal, in its
maximum period, to death. There being no
aggravating or mitigating circumstance, aside from
the qualifying circumstance of treachery, the
appellate court correctly imposed reclusion
perpetua for murder.
The Court of Appeals, however, erred in computing
the penalty for each of the three counts of frustrated
murder. It sentenced appellants to imprisonment of
ten years of prision mayor (medium) as minimum to
seventeen years and four months of reclusion
temporal (medium) as maximum. It modified the
trial court's computation of eight (8) years of prision
mayor (minimum), as minimum, to fourteen (14)
years and eight (8) months of reclusion
temporal (minimum) as maximum.
Under Article 50 of the Revised Penal Code, the
penalty for a frustrated felony is the "next lower in
degree than that prescribed by law for the
consummated felony . . . ." The imposable penalty
for frustrated murder, therefore, is prision mayor in
its maximum period to reclusion temporal in its
medium period. 58 Because there are no aggravating
or mitigating circumstance as the Court of Appeals
itself held, 59 the penalty prescribed by law should be
imposed in its medium period. With the application
of the Indeterminate Sentence Law, the penalty for
frustrated murder should be 8 years of prision
mayor (minimum), as minimum, to 14 years and 8
months of reclusion temporal (minimum) as
maximum.
Although the Court of Appeals was silent on this
point, the trial court correctly ordered the payment
of P50,000 as indemnity to the heirs of each of the
two murdered victims. In light of current
jurisprudence, this amount is awarded without need
of proof other than the fact of the victim's
death. 60 The trial court and the CA, however, erred
in awarding indemnity of P20,000 each to Nelson
Tiempo, Rogelio Presores and Rey Bolo. There is no
basis, statutory or jurisprudential, for the award of a
fixed amount to victims of frustrated murder. Hence,
they are entitled only to the amounts of actual
expenses duly proven during the trial.
Thus, Nelson Tiempo, who was treated for a gunshot
wound on the neck which shattered his trachea,
should be awarded indemnity of P21,594.22 for his
medical expenses. This is evidenced by a statement
of account from Cebu Doctor's Hospital. 61
151 | P a g e
Rogelio Presores, who was likewise treated for
gunshot wound in the same hospital, presented a
statement of account amounting to P5,412.69 for his
hospitalization. 62 Hence, he is likewise entitled to
indemnity in the said amount.
Rey Bolo, on the other hand, incurred an expense of
P9,431.10 for the treatment of his gunshot wounds,
as evidenced by a statement of account from the
same hospital. 63 This amount should be awarded to
him as indemnity.
WHEREFORE, the appeal is DENIED and the assailed
Decision is AFFIRMED. However, the penalties are
hereby MODIFIED as follows:
1) In Crim. Case No. CBU-9257, for MURDER, the
accused-appellants are each hereby sentenced
to reclusion perpetua and to indemnify, jointly and
severally, the heirs of the deceased, Glenn Tiempo,
in the sum of P50,000;
2) In Crim. Case No. CBU-9258, for MURDER, the
accused-appellants are each hereby sentenced
to reclusion perpetua and to indemnify, jointly and
severally, the heirs of the deceased, Alfredo Nardo,
in the sum of P50,000;
3) In Crim. Case No. CBU-9259, for FRUSTRATED
MURDER, the accused-appellants are each hereby
sentenced to suffer the penalty of 8 years of prision
mayor (minimum), as minimum, to 14 years and 8
months of reclusion temporal (minimum) as
maximum; and to jointly and severally pay the
victim, Rey Bolo, in the sum of P9,431.10 as actual
damages;
4) In Crim Case No. CBU-9260, for FRUSTRATED
MURDER, the accused-appellants are hereby
sentenced to suffer the penalty of 8 years of prision
mayor (minimum), as minimum, to 14 years and 8
months of reclusion temporal (minimum) as
maximum; and to jointly and severally indemnify the
victim, Rogelio Presores, in the sum of P5,412.69 for
actual damages;
5) In Crim. Case No. CBU-9261 for FRUSTRATED
MURDER, the accused-appellants are hereby
sentenced to suffer the penalty of 8 years of prision
mayor (minimum), as minimum, to 14 years and 8
months of reclusion temporal (minimum) as
maximum; and to jointly and severally indemnify the
victim, Nelson Tiempo, in the sum of P21,594.22 as
actual damages.
Let copies of this Decision be furnished the Secretary
of Interior and Local Government and the Secretary
of Justice so that Accused Eufemio Cabanero may be
brought to justice.
Costs against appellants.
SO ORDERED.
Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ.,
concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 205228 July 15, 2015
PEOPLE OF THE PHILIPPINES, Plaintiff and Appellee,
vs.
ROLLY ADRIANO y SAMSON, LEAN ADRIANO @
DENDEN, ABBA SANTIAGO y ADRIANO, JOHN DOE
AND PETER DOE, Accused,
ROLLY ADRIANO y SAMSON, Accused-Appellant.
 DECISION
PEREZ, J.:
1
This is an appeal of the Decision of the Court of
Appeals dated 30 May 2011 in CA-G.R. CR-HC No.
04028, which affirmed the Decision2 of the Regional
Trial Court dated 7 April 2009, convicting accused-
appellant Rolly Adriano y Santos (Adriano) for the
crime of Homicide (Crim. Case No. 13159-07) for the
killing of Ofelia Bulanan (Bulanan) and for the crime
of Murder (Crim. Case No. 13160-07) for the killing
of Danilo Cabiedes (Cabiedes) in "People of the
Philippines v. Rolly Adriano y Sales."
Adriano was charged with two (2) counts of Murder.
The two (2) sets of Information read:
Crim. Case No. 13159-07
On or about March 13, 2007, around 8:00 o'clock
(sic) in the morning, in Malapit, San Isidro, Nueva
Ecija, within the jurisdiction of this Honorable Court,
the above-named accused, conniving together, with
intent to kill, treachery and abuse of superior
strength, willfully shot several times with assorted
firearms Ofelia Bulanan, hitting her on the different
parts of her body, resulting in her death to the
damage of her heirs.3
Crim. Case No. 13160-07
On or about March 13, 2007, around 8:00 o'clock
(sic) in the morning, in Malapit, San Isidro, Nueva
Ecija, within the jurisdiction of this Honorable Court,
the above-named accused, conniving together, with
intent to kill, treachery and abuse of superior
strength, willfully shot several times with assorted
firearms Danilo Cabiedes, hitting him on the
152 | P a g e
different parts of his body, resulting in his death to
the damage of his heirs.4
Version of the Prosecution:
On 13 March 2007, at around 8:00 a.m., Police
Officer 1 Matthew Garabiles (POI Garabiles) and P02
Alejandro Santos (P02 Santos), in civilian clothes,
were on their way to Camp Olivas, Pampanga, riding
a motorcycle along Olongapo-Gapan National Road.5
While they were at Barangay Malapit San Isidro,
Nueva Ecija, a speeding blue Toyota Corolla (Corolla)
with plate no. WHK 635, heading towards the same
direction, overtook them and the car in front of
them, a maroon Honda CRV (CRY) with plate no. CTL
957.6
When the Corolla reached alongside the CRV, the
passenger on the front seat of the Corolla shot the
CRV and caused the CRV to swerve and fall in the
canal in the road embankment. Four (4) armed men
then suddenly alighted the Corolla and started
shooting at the driver of the CRV, who was later
identified as Cabiedes. During the shooting, a
bystander, Bulanan, who was standing near the road
embankment, was hit by a stray bullet. The four
armed men hurried back to the Corolla and
immediately left the crime scene. PO 1 Garabiles and
P02 Santos followed the Corolla but lost track of the
latter.7
Later, both Cabiedes and Bulanan died from fatal
gunshot wounds: Cabiedes was pronounced dead on
arrival (DOA) at the Good Samaritan General
Hospital due to three (3) gunshot wounds on the left
side of his chest while Bulanan died on the spot after
being shot in the head.
During the investigation, the police learned that the
Corolla was registered under the name of Antonio V.
Rivera (Rivera). Upon inquiry, Rivera admitted that
he is the owner of the Corolla but clarified that the
Corolla is one of the several cars he owns in his car
rental business, which he leased to Adriano. Later
that day, Adriano arrived at Rivera's shop with the
Corolla, where he was identified by P02 Santos and
PO 1 Garabiles as one of the four assailants who
alighted from the passenger's seat beside the driver
of the Corolla and shot Cabiedes. He was
immediately arrested and brought to the Provincial
Special Operations Group (PSOG) headquarters in
Cabanatuan City.8
In examining the crime scene, the Nueva Ecija
Provincial Crime Laboratory Office recovered one (1)
deformed fired bullet from a .45 caliber firearm and
five (5) cartridges from a .45 caliber firearm.9
Version of the Defense
Adriano testified that on 13 March 2007, at about
6:00 a.m., at the time of the incident, he was at his
house in Dolores, Magalang, Pampanga, washing the
clothes of his child. After doing the laundry, he took
his motorcycle to a repair shop and left it there.10
At about 8:00 a.m., Adriano went to the house of his
friend, Ruben Mallari (Mallari), to ask for a lighter
spring needed to repair his motorcycle. After having
coffee in Mallari' s house, Adriano went home and
brought his child to his mother. On his way to his
mother's house, he met his brother-in-law, Felix
Aguilar Sunga (Sunga). After leaving his child at his
mother's house, Adriano went to the cockpit arena
to watch cockfights, where he saw his friend, Danilo
Dizon (Dizon). After the fights, he left the cockpit at
about 2:00 p.m. and went home and took a rest.11
After resting, Adriano picked-up his motorcycle and
proceeded to a store and stayed there. At around 5
:00 p.m., he went back home. After a while, he
received a call from a certain Boyet Garcia (Garcia),
who borrowed the Corolla from him, which he
rented from Rivera.12
At 8:00 p.m., he met with Garcia to get the Corolla
back. After dropping Garcia off, Adriano went to
Rivera to return the Corolla, where he was arrested
by police officers, thrown inside the Corolla's trunk,
and brought to a place where he was tortured.13
The other defense's witnesses, Lucita Tapnio
(Tapnio), Mallari, Sunga, and Dizon corroborated
Adriano's testimony.14
When arraigned, Adriano pleaded not guilty. The
other accused, Lean Adriano alias "Denden," Abba
Santiago y Adriano, John Doe, and Peter Doe
remained at large.
During trial, the prosecution presented eight (8)
witnesses: (1) PO1 Garabiles, (2) P02 Santos, (3)
Police Senior Inspector Roger V. Sebastian, (4) SP02
Alejandro Eduardo, (5) P02 Jay Cabrera, (6) P03
Antonio dela Cruz, (7) Adelaida Cabiedes, widow of
Cabiedes, and (8) Ricky Flores.
On the other hand, the defense presented Adriano,
Tapnio, Sunga, Mallari, and Dizon as witnesses.
Ruling of the Lower Courts
After trial, the RTC convicted Adriano. The RTC
rejected Adriano's defense of alibi on the ground
that it was not supported by clear and convincing
evidence. According to the RTC, Adriano's alibi
cannot prevail over the testimonies of credible
witnesses, who positively identified Adriano as one
of the perpetrators of the crime. Also, contrary to
the allegations of the defense, the RTC gave full
credence to the testimony of prosecution witnesses,
153 | P a g e
POI Garabiles and P02 Santos. The RTC determined
that the defense failed to show proof that will show
or indicate that PO1 Garabiles and P02 Santos were
impelled by improper motives to testify against
Adriano. The RTC found as proven the assessment of
damages against the accused. Thus did the RTC order
Adriano to pay the heirs of Cabiedes the amount of
₱222,482.00 based on the following: (1) One
Hundred Thousand Pesos (Pl00,000.00) as funeral
expenses; (2) Sixty Thousand Pesos (₱60,000.00) as
expenses for the food served during the burial; (3)
Twelve Thousand Four Hundred Eighty Two Pesos
(1!12,482.00) as groceries used and served during
the wake; and Sixty Thousand Pesos (₱60,000.00) for
the parts and service repair of the CRV.15
The dispositive portion of the R TC Decision dated 7
April 2009 reads:
WHEREFORE, finding accused ROLLY ADRIANO guilty
beyond reasonable doubt of Murder, as charged, for
the death of Danilo Cabiedes, there being no
aggravating or mitigating circumstance that
attended the commission of the crime, he is hereby
sentenced to suffer the penalty of reclusion
perpetua. Accused Rolly Adriano is also ordered to
indemnify the heirs of Danilo Cabiedes in the
amount of Php 50,000.00 and to pay the sum of Php
222,482.00 as actual damages.
And finding ROLLY ADRIANO also guilty beyond
reasonable doubt of Homicide, as charged, for the
death of Ofelia Bulanan, likewise, there being no
aggravating or mitigating circumstance that
attended the commission of the offense, he is
further sentenced to suffer an indeterminate penalty
of imprisonment from Eight (8) years and One (1)
day of prision mayor medium, as minimum, to
Seventeen (17) years and Four (4) months of
reclusion temporal medium, as maximum, and to
indemnify the heirs of Ofelia Bulanan in the amount
of Php 50,000.00.16
On appeal to the Court of Appeals, Adriano alleged
that the R TC erred when it failed to appreciate his
defense of alibi, as well as the testimonies of the
other defense's witnesses. Adriano contended that
the RTC erred when it gave credence to the
testimony of the prosecution witnesses which are
inconsistent and contradictory. In detail, Adriano
referred to the following particulars: 1) whether the
culprits started shooting when the victim's vehicle
was still in motion; 2) which side of the vehicle did
the shooters alight from; 3) the identity of the culprit
who triggered the fatal shot; 4) whether the trip of
PO1 Garabiles and P02 Santos going to Camp Olivas,
Pampanga was official business; 5) the precise
distance of the assailants' vehicle from that of the
two (2) eyewitnesses; and 6) the precise minutes of
the shooting incident.
The Court of Appeals rejected Adriano's attempt to
becloud the testimony of the prosecution witnesses.
According to the Court of Appeals, the prosecution
witnesses' positive identification of Adriano as one
of the perpetrators of the crime cannot be overcome
by minor inconsistencies in their testimony. The
Court of Appeals ruled that these trivial differences
in fact constitute signs of veracity.
On the defense of alibi, the Court of Appeals
affirmed the ruling of the R TC that Adriano's claim
that he was in Dolores, Magalang, Pampanga at the
time of the incident does not convince because it
was not impossible for Adriano to be physically
present at the crime scene, in Barangay Malapit, San
Isidro, Nueva Ecija, which can be reached by car in
less than an hour.17 The dispositive portion of the
Court of Appeals Decision reads:
WHEREFORE, the appeal is DENIED. The decision of
the Regional Trial Court of Gapan City, Nueva Ecija,
Br. 36, in Crim. Case Nos. 13159-07 and 13160-07 is
AFFIRMED subject to the Modification that the
award of Fifty Thousand Pesos (Php50,000.00) as
civil indemnity to the heirs of Danilo Cabiedes is
INCREASED to Seventy-Five Thousand Pesos
(Php75,000.00). In addition, the Accused-Appellant is
ORDERED to pay the heirs of Danilo Cabiedes the
amount of Seventy-Five Thousand Pesos
(Php75,000.00) as moral damages; and the heirs of
Ofelia Bulanan the amount of Fifty Thousand Pesos
(Php50,000.00) as moral damages.
SO ORDERED.18
Our Ruling
In cases of murder, the prosecution must establish
the presence of the following elements:
1. That a person was killed.
2. That the accused killed him.
3. That the killing was attended by any of
the qualifying circumstances mentioned in
Art. 248.
4. The killing is not parricide or infanticide.
In the case at bar, the prosecution has established
the concurrence of the elements of murder: (1) the
fact of death of Cabiedes and Bulanan; (2) the
positive identification of Adriano as one of
perpetrators of the crime; and (3) the attendance of
treachery as a qualifying aggravating circumstance
and use of firearms and abuse of superior strength
as generic aggravating circumstances.
154 | P a g e
Death of Cabiedes
The present case is a case of murder by ambush. In
ambush, the crime is carried out to ensure that the
victim is killed and at the same time, to eliminate any
risk from any possible defenses or retaliation from
the victim—19 ambush exemplifies the nature of
treachery.
Paragraph 16 of Article 14 of the Revised Penal Code
(RPC) defines treachery as the direct employment of
means, methods, or forms in the execution of the
crime against persons which tend directly and
specially to insure its execution, without risk to the
offender arising from the defense which the
offended party might make. In order for treachery to
be properly appreciated, two elements must be
present: (1) at the time of the attack, the victim was
not in a position to defend himself; and (2) the
accused consciously and deliberately adopted the
particular means, methods or forms of attack
employed by him.20 The "essence of treachery is the
sudden and unexpected attack by an aggressor on
the unsuspecting victim, depriving the latter of any
chance to defend himself and thereby ensuring its
commission without risk of himself."21
Clearly, treachery is present in the case at bar as the
victims were indeed defenseless at the time of the
attack. Adriano, together with the other accused,
ambushed Cabiedes by following the unsuspecting
victim along the national highway and by surprise,
fired multiple shots at Cabiedes and then
immediately fled the crime scene, causing Cabiedes
to die of multiple gunshot wounds. When the Corolla
swerved into the CRV's lane, Cabiedes was forced to
swiftly turn to the right and on to the road
embankment, finally falling into the canal where his
CRY was trapped, precluding all possible means of
defense. There is no other logical conclusion, but
that the orchestrated ambush committed by
Adriano, together with his co-accused, who are still
on the loose, was in conspiracy with each other to
ensure the death of Cabiedes and their safety. The
means of execution employed was deliberately and
consciously adopted by Adriano so as to give
Cabiedes no opportunity to defend himself or to
retaliate.22
All these circumstances indicate that the
orchestrated crime was committed with the
presence of the aggravating circumstances of
treachery, which absorbs the aggravating
circumstance of abuse of superior strength, and use
of firearms. Indeed, Cabiedes had no way of
escaping or defending himself.
Death of Bulanan
We refer back to the settled facts of the case.
Bulanan, who was merely a bystander, was killed by
a stray bullet. He was at the wrong place at the
wrong time.
Stray bullets, obviously, kill indiscriminately and
often without warning, precluding the unknowing
victim from repelling the attack or defending
himself. At the outset, Adriano had no intention to
kill Bulanan, much less, employ any particular means
of attack. Logically, Bulanan's death was random and
unintentional and the method used to kill her, as she
was killed by a stray a bullet, was, by no means,
deliberate. Nonetheless, Adriano is guilty of the
death of Bulanan under Article 4 of the Revised
Penal Code,23 pursuant to the doctrine of aberratio
ictus, which imposes criminal liability for the acts
committed in violation of law and for all the natural
and logical consequences resulting therefrom. While
it may not have been Adriano's intention to shoot
Bulanan, this fact will not exculpate him. Bulanan' s
death caused by the bullet fired by Adriano was the
natural and direct consequence of Adriano's
felonious deadly assault against Cabiedes.
As we already held in People v. Herrera24 citing
People v. Hilario,25 "[t]he fact that accused killed a
person other than their intended victim is of no
moment." Evidently, Adriano's original intent was to
kill Cabiedes. However, during the commission of the
crime of murder, a stray bullet hit and killed Bulanan.
Adriano is responsible for the consequences of his
act of shooting Cabiedes. This is the import of Article
4 of the Revised Penal Code. As held in People v.
Herrera citing People v. Ural:
Criminal liability is incurred by any person
committing a felony although the wrongful act be
different from that which is intended. One who
commits an intentional felony is responsible for all
the consequences which may naturally or logically
result therefrom, whether foreseen or intended or
not. The rationale of the rule is found in the
doctrine, 'el que es causa de la causa es causa del
mal causado ', or he who is the cause of the cause is
the cause of the evil caused.26
As regards the crime(s) committed, we reiterate our
ruling in People v. Nelmida.27 In the aforesaid case,
we ruled that accused-appellants should be
convicted not of a complex crime but of separate
crimes of two counts of murder and seven counts of
attempted murder as the killing and wounding of the
victims were not the result of a single act but of
several acts.28 The doctrine in Nelmida here is apt
and applicable.
In Nelmida, we distinguished the two kinds of
complex crime: compound crime, when a single act
constitutes two or more grave or less grave felonies,
and complex crime proper, when an offense is a
necessary means for committing the other.
Moreover, we also made a distinction that "when
155 | P a g e
various victims expire from separate shots, such acts
constitute separate and distinct crimes,"29 not a
complex crime.
As borne by the records, the Nueva Ecija Provincial
Crime Laboratory Office recovered six (6) cartridges
of bullets from a .45 caliber firearm. This does not
indicate discharge by a single burst. Rather, separate
shots are evidenced. One or more of which, though
fired to kill Cabiedes, killed Bulanan instead. There is
thus no complex crime. The felonious acts resulted in
two separate and distinct crimes.
Finally, we ask, may treachery be appreciated in
aberratio ictus?
Although Bulanan's death was by no means
deliberate, we shall adhere to the prevailing
jurisprudence pronounced in People v.
Flora,30 where the Court ruled that treachery may be
appreciated in aberratio ictus. In Flora, the accused
was convicted of two separate counts of murder: for
the killing of two victims, Emerita, the intended
victim, and Ireneo, the victim killed by a stray bullet.
The Court, due to the presence of the aggravating
circumstance of treachery, qualified both killings to
murder. The material facts in Flora are similar in the
case at bar. Thus, we follow the Flora doctrine.
Also, contrary to the defense's allegation that
Bulanan' s death was not established, a perusal of
the records would reveal that Bulanan's fact of death
was duly established as the prosecution offered in
evidence Bulanan's death certificate.31
On the alibi as defense, time and again, we have
ruled alibis like denials, are inherently weak and
unreliable because they can easily be
fabricated.32 For alibi to prosper, the accused must
convincingly prove that he was somewhere else at
the time when the crime was committed and that it
was physically impossible for him to be at the crime
scene.33 In the case at bar, Adriano claimed he was in
Dolores, Magalang, Pampanga at the time of
incident. Adriano's claim failed to persuade. As
admitted, Dolores, Magalang, Pampanga was only
less than an hour away from the crime scene,
Barangay Malapit, San Isidro, Nueva Ecija. Hence, it
was not physically impossible for Adriano to be at
the crime scene at the time of the incident.
It is likewise uniform holding that denial and alibi will
not prevail when corroborated not by credible
witnesses but by the accused's relatives and
friends.1âwphi1 Therefore, the defense's evidence
which is composed of Adriano's relatives and friends
cannot prevail over the prosecution's positive
identification of Adriano as one of the perpetrators
of the crime.
The penalty for murder under Article 248 of the
Revised Penal Code is reclusion perpetua to death. In
the case at bar, as the circumstance of abuse of
superior strength concurs with treachery, the former
is absorbed in the latter. There being no aggravating
or mitigating circumstance present, the lower
penalty should be imposed, which is reclusion
perpetua, in accordance with Article 63, paragraph 2
of the Revised Penal Code.
To recover actual or compensatory damages, basic is
the rule that the claimant must establish with a
reasonable degree of certainty, the actual amount of
loss by means of competent proof or the best
evidence obtainable.34 Documentary evidence
support the award of actual damages in this case.
The RTC computed the amount of actual damages as
₱222,482.00. However, a perusal of the records
reveals that the amount of award of actual damages
should be ₱232,482.00 as duly supported by official
receipts.35 Therefore, we hereby increase the award
of actual damages from ₱222,482.00 to ₱232,482.00.
WHEREFORE, the appeal is DISMISSED. The assailed
Decision of the Court of Appeals in CA-G.R. CR-HC
No. 04028 is AFFIRMED with MODIFICATIONS.
Appellant-appellant ROLL Y ADRIANO y SAMSON is
found GUILTY beyond reasonable doubt of MURDER
(Criminal Case No. 13160-07) for the killing of
DANILO CABIEDES and is hereby sentenced to suffer
the penalty of reclusion perpetua. Accused-appellant
ROLLY ADRIANO y SAMSON is ordered to pay the
heirs of DANILO CABIEDES the amount of Seventy
Five Thousand Pesos (₱75,000.00) as civil indemnity,
Seventy Five Thousand Pesos (₱75,000.00) as moral
damages, Thirty Thousand Pesos (₱30,000.00) as
exemplary damages, and Two Hundred Thirty Two
Thousand Four Hundred Eighty Two Pesos
{₱232,482.00) as actual damages.
Accused-appellant ROLLY ADRIANO y SAMSON is also
found guilty beyond reasonable doubt of the crime
of MURDER (Criminal Case No. 13159-07) for the
killing of OFELIA BULANAN and is hereby sentenced
to suffer the penalty of reclusion perpetua. Accused-
appellant ROLLY ADRIANO y SAMSON is ordered to
pay the heirs of OFELIA BULANAN in the amount of
the amount of Seventy Five Thousand Pesos
(₱75,000.00) as civil indemnity, Seventy Five
Thousand Pesos (₱75,000.00) as moral damages,
Thirty Thousand Pesos (₱30,000.00) as exemplary
damages, and Twenty Five Thousand Pesos
(₱25,000.00) as temperate damages in lieu of actual
damages.
All monetary awards shall earn interest at the rate of
6o/o per annum from the date of finality until fully
paid.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
156 | P a g e
Republic of the Philippines confidence reposed upon them with intent to gain
SUPREME COURT and without the knowledge and consent of the
Manila owner thereof, did then and there willfully,
unlawfully and feloniously take, steal and deposited
THIRD DIVISION in their own account, Banco De Oro Check No.
0132649 dated July 14, 1997 in the sum of
G.R. No. 162540 July 13, 2009 ₱10,000.00, representing payment made by
customer Baby Aquino to the Mega Foam Int'l. Inc.
to the damage and prejudice of the latter in the
GEMMA T. JACINTO, Petitioner,
aforesaid stated amount of ₱10,000.00.
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
CONTRARY TO LAW.3
DECISION
The prosecution's evidence, which both the RTC and
the CA found to be more credible, reveals the events
PERALTA, J.:
that transpired to be as follows.
Before us is a petition for review on certiorari filed
In the month of June 1997, Isabelita Aquino Milabo,
by petitioner Gemma T. Jacinto seeking the reversal
also known as Baby Aquino, handed petitioner Banco
of the Decision1 of the Court of Appeals (CA) in CA-
De Oro (BDO) Check Number 0132649 postdated
G.R. CR No. 23761 dated December 16, 2003,
July 14, 1997 in the amount of ₱10,000.00. The
affirming petitioner's conviction of the crime of
check was payment for Baby Aquino's purchases
Qualified Theft, and its Resolution2 dated March 5,
from Mega Foam Int'l., Inc., and petitioner was then
2004 denying petitioner's motion for
the collector of Mega Foam. Somehow, the check
reconsideration.
was deposited in the Land Bank account of Generoso
Capitle, the husband of Jacqueline Capitle; the latter
Petitioner, along with two other women, namely,
is the sister of petitioner and the former pricing,
Anita Busog de Valencia y Rivera and Jacqueline
merchandising and inventory clerk of Mega Foam.
Capitle, was charged before the Regional Trial Court
(RTC) of Caloocan City, Branch 131, with the crime of
Meanwhile, Rowena Ricablanca, another employee
Qualified Theft, allegedly committed as follows:
of Mega Foam, received a phone call sometime in
the middle of July from one of their customers,
That on or about and sometime in the month of July
Jennifer Sanalila. The customer wanted to know if
1997, in Kalookan City, Metro Manila, and within the
she could issue checks payable to the account of
jurisdiction of this Honorable Court, the above-
Mega Foam, instead of issuing the checks payable
named accused, conspiring together and mutually
to CASH. Said customer had apparently been
helping one another, being then all employees of
instructed by Jacqueline Capitle to make check
MEGA FOAM INTERNATIONAL INC., herein
payments to Mega Foam payable to CASH. Around
represented by JOSEPH DYHENGCO Y CO, and as
that time, Ricablanca also received a phone call from
such had free access inside the aforesaid
an employee of Land Bank, Valenzuela Branch, who
establishment, with grave abuse of trust and
was looking for Generoso Capitle. The reason for the
call was to inform Capitle that the subject BDO check
deposited in his account had been dishonored.
Ricablanca then phoned accused Anita Valencia, a
former employee/collector of Mega Foam, asking
the latter to inform Jacqueline Capitle about the
phone call from Land Bank regarding the bounced
check. Ricablanca explained that she had to call and
relay the message through Valencia, because the
Capitles did not have a phone; but they could be
reached through Valencia, a neighbor and former co-
employee of Jacqueline Capitle at Mega Foam.
Valencia then told Ricablanca that the check came
from Baby Aquino, and instructed Ricablanca to ask
Baby Aquino to replace the check with cash. Valencia
also told Ricablanca of a plan to take the cash and
divide it equally into four: for herself, Ricablanca,
petitioner Jacinto and Jacqueline Capitle. Ricablanca,
upon the advise of Mega Foam's accountant,
reported the matter to the owner of Mega Foam,
Joseph Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino
and was able to confirm that the latter indeed
handed petitioner a BDO check for ₱10,000.00
sometime in June 1997 as payment for her
purchases from Mega Foam.4 Baby Aquino further
testified that, sometime in July 1997, petitioner also
called her on the phone to tell her that the BDO
check bounced.5 Verification from company records
showed that petitioner never remitted the subject
check to Mega Foam. However, Baby Aquino said
that she had already paid Mega Foam ₱10,000.00
cash in August 1997 as replacement for the
dishonored check.6
Generoso Capitle, presented as a hostile witness,
admitted depositing the subject BDO check in his
bank account, but explained that the check came
into his possession when some unknown woman
157 | P a g e
arrived at his house around the first week of July
1997 to have the check rediscounted. He parted with
his cash in exchange for the check without even
bothering to inquire into the identity of the woman
or her address. When he was informed by the bank
that the check bounced, he merely disregarded it as
he didn’t know where to find the woman who
rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with the
National Bureau of Investigation (NBI) and worked
out an entrapment operation with its agents. Ten
pieces of ₱1,000.00 bills provided by Dyhengco were
marked and dusted with fluorescent powder by the
NBI. Thereafter, the bills were given to Ricablanca,
who was tasked to pretend that she was going along
with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met
at the latter's house. Petitioner, who was then
holding the bounced BDO check, handed over said
check to Ricablanca. They originally intended to
proceed to Baby Aquino's place to have the check
replaced with cash, but the plan did not push
through. However, they agreed to meet again on
August 21, 2007.
On the agreed date, Ricablanca again went to
petitioner’s house, where she met petitioner and
Jacqueline Capitle. Petitioner, her husband, and
Ricablanca went to the house of Anita Valencia;
Jacqueline Capitle decided not to go with the group
because she decided to go shopping. It was only
petitioner, her husband, Ricablanca and Valencia
who then boarded petitioner's jeep and went on to
Baby Aquino's factory. Only Ricablanca alighted from
the jeep and entered the premises of Baby Aquino,
pretending that she was getting cash from Baby
Aquino. However, the cash she actually brought out
from the premises was the ₱10,000.00 marked
money previously given to her by Dyhengco.
Ricablanca divided the money and upon returning to
the jeep, gave ₱5,000.00 each to Valencia and
petitioner. Thereafter, petitioner and Valencia were
arrested by NBI agents, who had been watching the
whole time.
Petitioner and Valencia were brought to the NBI
office where the Forensic Chemist found fluorescent
powder on the palmar and dorsal aspects of both of
their hands. This showed that petitioner and
Valencia handled the marked money. The NBI filed a
criminal case for qualified theft against the two and
one Jane Doe who was later identified as Jacqueline
Capitle, the wife of Generoso Capitle.
The defense, on the other hand, denied having taken
the subject check and presented the following
scenario.
Petitioner admitted that she was a collector for
Mega Foam until she resigned on June 30, 1997, but
claimed that she had stopped collecting payments
from Baby Aquino for quite some time before her
resignation from the company. She further testified
that, on the day of the arrest, Ricablanca came to
her mother’s house, where she was staying at that
time, and asked that she accompany her (Ricablanca)
to Baby Aquino's house. Since petitioner was going
for a pre-natal check-up at the Chinese General
Hospital, Ricablanca decided to hitch a ride with the
former and her husband in their jeep going to Baby
Aquino's place in Caloocan City. She allegedly had no
idea why Ricablanca asked them to wait in their jeep,
which they parked outside the house of Baby
Aquino, and was very surprised when Ricablanca
placed the money on her lap and the NBI agents
arrested them.
Anita Valencia also admitted that she was the
cashier of Mega Foam until she resigned on June 30,
1997. It was never part of her job to collect
payments from customers. According to her, on the
morning of August 21, 1997, Ricablanca called her up
on the phone, asking if she (Valencia) could
accompany her (Ricablanca) to the house of Baby
Aquino. Valencia claims that she agreed to do so,
despite her admission during cross-examination that
she did not know where Baby Aquino resided, as she
had never been to said house. They then met at the
house of petitioner's mother, rode the jeep of
petitioner and her husband, and proceeded to Baby
Aquino's place. When they arrived at said place,
Ricablanca alighted, but requested them to wait for
her in the jeep. After ten minutes, Ricablanca came
out and, to her surprise, Ricablanca gave her money
and so she even asked, "What is this?" Then, the NBI
agents arrested them.
The trial of the three accused went its usual course
and, on October 4, 1999, the RTC rendered its
Decision, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court
finds accused Gemma Tubale De Jacinto y Latosa,
Anita Busog De Valencia y Rivera and Jacqueline
Capitle GUILTY beyond reasonable doubt of the
crime of QUALIFIED THEFT and each of them is
hereby sentenced to suffer imprisonment of FIVE (5)
YEARS, FIVE (5) MONTHS AND ELEVEN (11) DAYS, as
minimum, to SIX (6) YEARS, EIGHT (8) MONTHS AND
TWENTY (20) DAYS, as maximum.
SO ORDERED. 7 proved petitioner's guilt beyond reasonable
The three appealed to the CA and, on December 16,
2003, a Decision was promulgated, the dispositive
portion of which reads, thus:
IN VIEW OF THE FOREGOING, the decision of the trial
court is MODIFIED, in that:
158 | P a g e
(a) the sentence against accused Gemma
Jacinto stands;
(b) the sentence against accused Anita
Valencia is reduced to 4 months arresto
mayor medium.
(c) The accused Jacqueline Capitle is
acquitted.
SO ORDERED.
A Partial Motion for Reconsideration of the
foregoing CA Decision was filed only for petitioner
Gemma Tubale Jacinto, but the same was denied per
Resolution dated March 5, 2004.
Hence, the present Petition for Review
on Certiorari filed by petitioner alone, assailing the
Decision and Resolution of the CA. The issues raised
in the petition are as follows:
1. Whether or not petitioner can be
convicted of a crime not charged in the
information;
2. Whether or not a worthless check can be
the object of theft; and
3. Whether or not the prosecution has
doubt.8
The petition deserves considerable thought.
The prosecution tried to establish the following
pieces of evidence to constitute the elements of the
crime of qualified theft defined under Article 308, in
relation to Article 310, both of the Revised Penal
Code: (1) the taking of personal property - as shown
by the fact that petitioner, as collector for Mega
Foam, did not remit the customer's check payment
to her employer and, instead, appropriated it for
herself; (2) said property belonged to another − the
check belonged to Baby Aquino, as it was her
payment for purchases she made; (3) the taking was
done with intent to gain – this is presumed from the
act of unlawful taking and further shown by the fact
that the check was deposited to the bank account of
petitioner's brother-in-law; (4) it was done without
the owner’s consent – petitioner hid the fact that
she had received the check payment from her
employer's customer by not remitting the check to
the company; (5) it was accomplished without the
use of violence or intimidation against persons, nor
of force upon things – the check was voluntarily
handed to petitioner by the customer, as she was
known to be a collector for the company; and (6) it
was done with grave abuse of confidence –
petitioner is admittedly entrusted with the collection
of payments from customers.
However, as may be gleaned from the
aforementioned Articles of the Revised Penal
Code, the personal property subject of the theft
must have some value, as the intention of the
accused is to gain from the thing stolen. This is
further bolstered by Article 309, where the law
provides that the penalty to be imposed on the
accused is dependent on the value of the thing
stolen.
In this case, petitioner unlawfully took the postdated
check belonging to Mega Foam, but the same was
apparently without value, as it was subsequently
dishonored. Thus, the question arises on whether
the crime of qualified theft was actually produced.
The Court must resolve the issue in the negative.
Intod v. Court of Appeals9 is highly instructive and
applicable to the present case. In Intod, the accused,
intending to kill a person, peppered the latter’s
bedroom with bullets, but since the intended victim
was not home at the time, no harm came to him.
The trial court and the CA held Intod guilty of
attempted murder. But upon review by this Court,
he was adjudged guilty only of an impossible
crime as defined and penalized in paragraph 2,
Article 4, in relation to Article 59, both of the Revised
Penal Code, because of the factual impossibility of
producing the crime. Pertinent portions of said
provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal
responsibility shall be incurred:
xxxx
2. By any person performing an act which would be
an offense against persons or property, were it not
for the inherent impossibility of its
accomplishment or on account of the employment
of inadequate to ineffectual means. (emphasis
supplied)
Article 59. Penalty to be imposed in case of failure to
commit the crime because the means employed or
the aims sought are impossible. - When the person
intending to commit an offense has already
performed the acts for the execution of the same
but nevertheless the crime was not produced by
reason of the fact that the act intended was by its
nature one of impossible accomplishment or
because the means employed by such person are
essentially inadequate to produce the result desired
by him, the court, having in mind the social danger
and the degree of criminality shown by the offender,
shall impose upon him the penalty of arresto
mayor or a fine ranging from 200 to 500 pesos.
159 | P a g e
Thus, the requisites of an impossible crime are: (1)
that the act performed would be an offense against
persons or property; (2) that the act was done with
evil intent; and (3) that its accomplishment was
inherently impossible, or the means employed was
either inadequate or ineffectual. The aspect of the
inherent impossibility of accomplishing the intended
crime under Article 4(2) of the Revised Penal Code
was further explained by the Court in Intod10 in this
wise:
Under this article, the act performed by the offender
cannot produce an offense against persons or
property because: (1) the commission of the offense
is inherently impossible of accomplishment; or (2)
the means employed is either (a) inadequate or (b)
ineffectual.
That the offense cannot be produced because the
commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the
offender must be by its nature one impossible of
accomplishment. There must be either (1) legal
impossibility, or (2) physical impossibility of
accomplishing the intended act in order to qualify
the act as an impossible crime.
Legal impossibility occurs where the intended acts,
even if completed, would not amount to a crime.
xxxx
The impossibility of killing a person already dead falls
in this category.
On the other hand, factual impossibility occurs when
extraneous circumstances unknown to the actor or
beyond his control prevent the consummation of the
intended crime. x x x 11
In Intod, the Court went on to give an example of an
offense that involved factual impossibility, i.e., a man
puts his hand in the coat pocket of another with the
intention to steal the latter's wallet, but gets nothing
since the pocket is empty.
Herein petitioner's case is closely akin to the above
example of factual impossibility given in Intod. In this
case, petitioner performed all the acts to
consummate the crime of qualified theft, which is a
crime against property. Petitioner's evil intent
cannot be denied, as the mere act of unlawfully
taking the check meant for Mega Foam showed her
intent to gain or be unjustly enriched. Were it not for
the fact that the check bounced, she would have
received the face value thereof, which was not
rightfully hers. Therefore, it was only due to the
extraneous circumstance of the check being
unfunded, a fact unknown to petitioner at the time,
that prevented the crime from being produced. The
thing unlawfully taken by petitioner turned out to be
absolutely worthless, because the check was
eventually dishonored, and Mega Foam had received
the cash to replace the value of said dishonored
check.1avvphi1
The fact that petitioner was later entrapped
receiving the ₱5,000.00 marked money, which she
thought was the cash replacement for the
dishonored check, is of no moment. The Court held
in Valenzuela v. People12 that under the definition of
theft in Article 308 of the Revised Penal Code, "there
is only one operative act of execution by the actor
involved in theft ─ the taking of personal property of
another." Elucidating further, the Court held, thus:
x x x Parsing through the statutory definition of theft
under Article 308, there is one apparent answer
provided in the language of the law — that theft is
already "produced" upon the "tak[ing of] personal
property of another without the latter’s consent."
 xxxx
x x x when is the crime of theft produced? There
would be all but certain unanimity in the position
that theft is produced when there is deprivation of
personal property due to its taking by one with
intent to gain. Viewed from that perspective, it is
immaterial to the product of the felony that the
offender, once having committed all the acts of
execution for theft, is able or unable to freely
dispose of the property stolen since the deprivation
from the owner alone has already ensued from such
acts of execution. x x x
xxxx
x x x we have, after all, held that unlawful taking, or
apoderamiento, is deemed complete from the
moment the offender gains possession of the thing,
even if he has no opportunity to dispose of the
same. x x x
x x x Unlawful taking, which is the deprivation of
one’s personal property, is the element which
produces the felony in its consummated stage. x x
x 13
From the above discussion, there can be no question
that as of the time that petitioner took possession of
the check meant for Mega Foam, she had performed
all the acts to consummate the crime of theft, had it
not been impossible of accomplishment in this
case. The circumstance of petitioner receiving the
₱5,000.00 cash as supposed replacement for the
dishonored check was no longer necessary for the
consummation of the crime of qualified theft.
Obviously, the plan to convince Baby Aquino to give
cash as replacement for the check was hatched only
after the check had been dishonored by the drawee
bank. Since the crime of theft is not a continuing
offense, petitioner's act of receiving the cash
160 | P a g e
replacement should not be considered as a
continuation of the theft. At most, the fact that
petitioner was caught receiving the marked money
was merely corroborating evidence to strengthen
proof of her intent to gain.
Moreover, the fact that petitioner further planned to
have the dishonored check replaced with cash by its
issuer is a different and separate fraudulent scheme.
Unfortunately, since said scheme was not included
or covered by the allegations in the Information, the
Court cannot pronounce judgment on the accused;
otherwise, it would violate the due process clause of
the Constitution. If at all, that fraudulent scheme
could have been another possible source of criminal
liability.
IN VIEW OF THE FOREGOING, the petition
is GRANTED. The Decision of the Court of Appeals,
dated December 16, 2003, and its Resolution dated
March 5, 2004, are MODIFIED. Petitioner Gemma T.
Jacinto is found GUILTY of an IMPOSSIBLE CRIME as
defined and penalized in Articles 4, paragraph 2, and
59 of the Revised Penal Code, respectively.
Petitioner is sentenced to suffer the penalty of six (6)
months of arrresto mayor, and to pay the costs.
SO ORDERED.
G.R. No. 164749
ROMULO ABROGAR and ERLINDA
ABROGAR, Petitioners
vs
COSMOS BOTTLING COMPANY and INTERGAMES,
INC., Respondents
DECISION
BERSAMIN, J.:
This case involves a claim for damages arising from
the negligence causing the death of a participant in
an organized marathon bumped by a passenger
jeepney on the route of the race. The issues revolve
on whether the organizer and the sponsor of the
marathon were guilty of negligence, and, if so, was
their negligence the proximate cause of the death of
the participant; on whether the negligence of the
driver of the passenger jeepney was an efficient
intervening cause; on whether the doctrine of
assumption of risk was applicable to the fatality; and
on whether the heirs of the fatality can recover
damages for loss of earning capacity of the latter
who, being then a minor, had no gainful
employment.
The Case
By this appeal, the parents of the late Rommel
Abrogar (Rommel), a marathon runner, seek the
review and reversal of the decision promulgated on
March l 0, 2004,1 whereby the Court of Appeals (CA)
reversed and set aside the judgment rendered in
their favor on May 10, 1991 by the Regional Trial
Court (RTC), Branch 83, in Quezon City2 finding and
declaring respondents Cosmos Bottling Company
(Cosmos), a domestic soft-drinks company whose
products included Pop Cola, and Intergames, Inc.
(Intergames), also a domestic corporation organizing
and supervising the 1st Pop Cola Junior Marathon"
held on June 15, 1980 in Quezon City, solidarily liable
for damages arising from the untimely death of
Rommel, then a minor 18 years of age, 3 after being
bumped by a recklessly driven passenger jeepney
along the route of the marathon.
Antecedents
The CA narrated the antecedents in the assailed
judgment,4 viz.:
[T]o promote the sales of "Pop Cola", defendant
Cosmos, jointly with Intergames, organized an
endurance running contest billed as the "1st Pop
Cola Junior Marathon" scheduled to be held on June
15, 1980. The organizers plotted a 10-kilometer
course starting from the premises of the Interim
Batasang Pambansa (IBP for brevity), through public
roads and streets, to end at the Quezon Memorial
Circle. Plaintiffs' son Rommel applied with the
defendants to be allowed to participate in the
contest and after complying with defendants'
requirements, his application was accepted and he
was given an official number. Consequently, on June
15, 1980 at the designated time of the marathon,
Rommel joined the other participants and ran the
course plotted by the defendants. As it turned out,
the plaintiffs' (sic) further alleged, the defendants
failed to provide adequate safety and precautionary
measures and to exercise the diligence required of
them by the nature of their undertaking, in that they
failed to insulate and protect the participants of the
marathon from the vehicular and other dangers
along the marathon route. Rommel was bumped by
a jeepney that was then running along the route of
the marathon on Don Mariano Marcos A venue
(DMMA for brevity), and in spite of medical
treatment given to him at the Ospital ng Bagong
Lipunan, he died later that same day due to severe
head injuries.
On October 28, 1980, the petitioners sued the
respondents in the then Court of First Instance of
Rizal (Quezon City) to recover various damages for
the untimely death of Rommel (i.e., actual and
compensatory damages, loss of earning capacity,
moral damages, exemplary damages, attorney's fees
and expenses oflitigation).5
Cosmos denied liability, insisting that it had not been
the organizer of the marathon, but only its sponsor;
that its participation had been limited to providing
161 | P a g e
financial assistance to Intergames;6 that the financial
assistance it had extended to Intergames, the sole
organizer of the marathon, had been in answer to
the Government's call to the private sector to help
promote sports development and physical
fitness;7 that the petitioners had no cause of action
against it because there was no privity of contract
between the participants in the marathon and
Cosmos; and that it had nothing to do with the
organization, operation and running of the event.8
As counterclaim, Cosmos sought attorney's fees and
expenses of litigation from the petitioners for their
being unwarrantedly included as a defendant in the
case. It averred a cross-claim against Intergames,
stating that the latter had guaranteed to hold
Cosmos "completely free and harmless from any
claim or action for liability for any injuries or bodily
harm which may be sustained by any of the entries
in the '1st Pop Cola Junior Marathon' or for any
damage to the property or properties of third
parties, which may likewise arise in the course of the
race."9 Thus, Cosmos sought to hold Intergames
solely liable should the claim of the petitioners
prosper.10
On its part, Intergames asserted that Rommel's
death had been an accident exclusively caused by
the negligence of the jeepney driver; that it was not
responsible for the accident; that as the marathon
organizer, it did not assume the responsibilities of an
insurer of the safety of the participants; that it
nevertheless caused the participants to be covered
with accident insurance, but the petitioners refused
to accept the proceeds thereof;11 that there could be
no cause of action against it because the acceptance
and approval of Rommel's application to join the
marathon had been conditioned on his waiver of all
rights and causes of action arising from his
participation in the marathon;12 that it exercised due
diligence in the conduct of the race that the
circumstances called for and was appropriate, it
having availed of all its know-how and expertise,
including the adoption and implementation of all
known and possible safety and precautionary
measures in order to protect the participants from
injuries arising from vehicular and other forms of
accidents;13 and, accordingly, the complaint should
be dismissed.
In their reply and answer to counterclaim, the
petitioners averred that contrary to its claims,
Intergames did not provide adequate measures for
the safety and protection of the race participants,
considering that motor vehicles were traversing the
race route and the participants were made to run
along the flow of traffic, instead of against it; that
Intergames did not provide adequate traffic
marshals to secure the safety and protection of the
participants;14 that Intergames could not limit its
liability on the basis of the accident insurance
policies it had secured to cover the race participants;
that the waiver signed by Rommel could not be a
basis for denying liability because the same was null
and void for being contrary to law, morals, customs
and public policy;15 that their complaint sufficiently
stated a cause of action because in no way could
they be held liable for attorney's fees, litigation
expenses or any other relief due to their having
abided by the law and having acted honestly, fairly,
in good faith by according to Intergames its due, as
demanded by the facts and circumstances. 16
At the pre-trial held on April 12, 1981, the parties
agreed that the principal issue was whether or not
Cosmos and lntergames were liable for the death of
Rommel because of negligence in conducting the
marathon.17
Judgment of the RTC
In its decision dated May 10, 1991,18 the RTC ruled as
follows:
WHEREFORE, judgment is hereby rendered in favor
of plaintiffs-spouses Romulo Abrogar and Erlinda
Abrogar and against defendants Cosmos Bottling
Company, Inc. and Intergames, Inc., ordering both
defendants, jointly and severally, to pay and deliver
to the plaintiffs the amounts of Twenty Eight
Thousand Sixty One Pesos and Sixty Three Centavos
(₱28,061.63) as actual damages; One Hundred
Thousand Pesos (₱100,000.00) as moral damages;
Fifty Thousand Pesos (₱50,000.00) as exemplary
damages and Ten Percent (10%) of the total amount
of One Hundred Seventy Eight Thousand Sixty One
Pesos and Sixty Three Centavos (₱178,061,63) or
Seventeen Thousand Eight Hundred Six Pesos and
Sixteen Centavos (₱17,806.16) as attorney's fees.
On the cross-claim of defendant Cosmos Bottling
Company, Inc., defendant Intergames, Inc, is hereby
ordered to reimburse to the former any and all
amounts which may be recovered by the plaintiffs
from it by virtue of this Decision.
SO ORDERED.
The RTC observed that the safeguards allegedly
instituted by Intergames in conducting the marathon
had fallen short of the yardstick to satisfy the
requirements of due diligence as called for by and
appropriate under the circumstances; that the
accident had happened because of inadequate
preparation and Intergames' failure to exercise due
diligence;19 that the respondents could not be
excused from liability by hiding behind the waiver
executed by Rommel and the permission given to
him by his parents because the waiver could only be
effective for risks inherent in the marathon, such a:s
stumbling, heat stroke, heart attack during the race,
severe exhaustion and similar occurrences;20 that the
162 | P a g e
liability of the respondents towards the participants
and third persons was solidary, because Cosmos, the
sponsor of the event, had been the principal mover
of the event, and, as such, had derived benefits from
the marathon that in turn had carried responsibilities
towards the participants and the public; that the
respondents' agreement to free Cosmos from any
liability had been an agreement binding only
between them, and did not bind third persons; and
that Cosmos had a cause of action against
Intergames for whatever could be recovered by the
petitioners from Cosmos.21
Decision of the CA
All the parties appealed to the CA.
The petitioners contended that the RTC erred in not
awarding damages for loss of earning capacity on the
part of Rommel for the reason that such damages
were not recoverable due to Rommel not yet having
finished his schooling; and that it would be
premature to award such damages upon the
assumption that he would finish college and be
gainfully employed.22
On their part, Cosmos and Intergames separately
raised essentially similar errors on the part of the
RTC, to wit: (1) in holding them liable for the death
of Rommel; (2) in finding them negligent in
conducting the marathon; (3) in holding that
Rommel and his parents did not assume the risks of
the marathon; (4) in not holding that the sole and
proximate cause of the death of Rommel was the
negligence of the jeepney driver; and (5) in making
them liable, jointly and solidarily, for damages,
attorney's fees and expenses of litigation.23
The CA reduced the issues to four, namely:
1. Whether or not appellant Intergames was
negligent in its conduct of the "1st Pop Cola Junior
Marathon" held on June 15, 1980 and if so, whether
its negligence was the proximate cause of the death
of Rommel Abrogar.
2. Whether or not appellant Cosmos can be held
jointly and solidarily liable with appellant Intergames
for the death of Rommel Abrogar, assuming that
appellant Intergames is found to have been
negligent in the conduct of the Pop Cola marathon
and such negligence was the proximate cause of the
death of Rommel Abrogar.
3. Whether or not the appellants Abrogar are
entitled to be compensated for the "loss of earning
capacity" of their son Rommel.
4. Whether or not the appellants Abrogar are
entitled to the actual, moral, and exemplary
damages granted to them by the Trial Court.24
In its assailed judgment promulgated on March 10,
2004,25 the CA ruled as follows:
As to the first issue, this Court finds that appellant
Intergames was not negligent in organizing the said
marathon.
Negligence is the omission to do something which a
reasonable man, guided upon those considerations
which ordinarily regulate the conduct to human
affairs, would do, or doing something which a
prudent and reasonable man would not do.
The whole theory of negligence presuppose some
uniform standard of behavior which must be an
external and objective one, rather than the
individual judgment good or bad, of the particular
actor; it must be, as far as possible, the same for all
persons; and at the same time make proper
allowance for the risk apparent to the actor for his
capacity to meet it, and for the circumstances under
which he must act.
The question as to what would constitute the
conduct of a prudent man in a given situation must
of course be always determined in the light of
human experience and of the acts involved in the
particular case.
In the case at bar, the trial court erred in finding that
the appellant Intergames failed to satisfy the
requirements of due diligence in the conduct of the
race.
The trial court in its decision said that the accident in
question could have been avoided if the route of the
marathon was blocked off from the regular traffic,
instead of allowing the runners to run together with
the flow of traffic. Thus, the said court considered
the appellant Intergames at fault for proceeding with
the marathon despite the fact that the Northern
Police District, MPF, Quezon City did not allow the
road to be blocked off from traffic.
This Court finds that the standard of conduct used by
the trial court is not the ordinary conduct of a
prudent man in such a given situation. According to
the said court, the only way to conduct a safe road
race is to block off the traffic for the duration of the
event and direct the cars and public utilities to take
alternative routes in the meantime that the
marathon event is being held. Such standard is too
high and is even inapplicable in the case at bar
because, there is no alternative route from IBP to
Don Mariano Marcos to Quezon City Hall.
The Civil Code provides that if the law or contract
does not state the diligence which is to be observed
in the performance of an obligation that which is
163 | P a g e
expected of a good father of the family shall only be
required. Accordingly, appellant Intergames is only
bound to exercise the degree of care that would be
exercised by an ordinarily careful and prudent man
in the same position and circumstances and not that
of the cautious man of more than average prudence.
Hence, appellant Intergames is only expected to
observe ordinary diligence and not extraordinary
diligence.
In this case, the marathon was allowed by the
Northern Police District, MPF, Quezon City on the
condition that the road should not be blocked off
from traffic. Appellant Intergames had no choice. It
had to comply with it or else the said marathon
would not be allowed at all.
The trial court erred in contending that appellant
Intergames should have looked for alternative places
in Metro Manila given the condition set by the
Northern Police District, MPF, Quezon City; precisely
because as Mr. Jose Castro has testified the said
route was found to be the best route after a careful
study and consideration of all the factors involved.
Having conducted several marathon events in said
route, appellant Intergames as well as the volunteer
groups and the other agencies involved were in fact
familiar with the said route. And assuming that there
was an alternative place suitable for the said race,
the question is would they be allowed to block off
the said road from traffic?
Also, the trial court erred in stating that there was no
adequate number of marshals, police officers and
personnel to man the race so as to prevent injury to
the participants.
The general rule is that the party who relies on
negligence for his cause of action has the burden of
proving the existence of the same, otherwise his
action fails.
Here, the appellants-spouses failed to prove that
there was inadequate number of marshals, police
officers, and personnel because they failed to prove
what number is considered adequate.
This court considers that seven (7) traffic operatives,
five (5) motorcycle policemen, fifteen (15) patrolmen
deployed along the route, fifteen (15) boyscouts,
twelve (12) CA Ts, twenty (20) barangay tanods,
three (3) ambulances and three (3) medical teams
were sufficient to stage a safe marathon.
Moreover, the failure of Mr. Jose R. Castro, Jr. to
produce records of the lists of those constituting the
volunteer help during the marathon is not fatal to
the case considering that one of the volunteers,
Victor Landingin of the Citizens Traffic Action (CTA)
testified in court that CTA fielded five units on June
15, 1980, assigned as follows: (1) at the sphere head;
(2) at the finish line; (3) tail ender; (4) & (5) roving.
The trial court again erred in concluding that the
admission of P/Lt. Jesus Lipana, head of the traffic
policemen assigned at the marathon, that he
showed up only at the finish line means that he did
not bother to check on his men and did not give
them appropriate instructions. P/Lt. Lipana in his
testimony explained that he did not need to be in
the start of the race because he had predesignated
another capable police officer to start the race.
In addition, this Court finds that the precautionary
measures and preparations adopted by appellant
Intergames were sufficient considering the
circumstances surrounding the case.
Appellant Intergames, using its previous experiences
in conducting safe and successful road races, took all
the necessary precautions and made all the
preparations for the race. The initial preparations
included: determination of the route to be taken;
and an ocular inspection of the same to see if it was
well-paved, whether it had less corners for easy
communication and coordination, and whether it
was wide enough to accommodate runners and
transportation. Appellant Intergames choose the
Don Mariano Marcos Avenue primarily because it
was well-paved; had wide lanes to accommodate
runners and vehicular traffic; had less corners thus
facilitating easy communication and coordination
among the organizers and cooperating agencies; and
was familiar to the race organizers and operating
agencies. The race covered a ten-kilometer course
from the IBP lane to the Quezon City Hall Compound
passing through the Don Mariano Marcos A venue,
which constituted the main stretch of the route.
Appellant Intergames scheduled the marathon on a
Sunday morning, when traffic along the route was at
its lightest. Permission was sought from the then
Quezon City Mayor Adelina Rodriguez for the use of
the Quezon City Hall Grandstand and the street
fronting it as the finish line. Police assistance was
also obtained to control and supervise the traffic.
The Quezon City Traffic Detachment took charge of
traffic control by assigning policemen to the traffic
route. The particular unit assigned during the race
underwent extensive training and had been involved
in past marathons, including marathons in highly
crowded areas. The Philippine Boy Scouts tasked to
assist the police and monitor the progress of the
race; and Citizens Traffic Action Group tasked with
the monitoring of the race, which assigned five units
consisting of ten operatives, to provide
communication and assistance were likewise
obtained. Finally, medical equipments and personnel
were also requested from Camp Aguinaldo, the
Philippine Red Cross and the Hospital ng Bagong
Lipunan.
Neither does this Court find the appellant
Intergames' conduct of the marathon the proximate
cause of the death of Rommel Abrogar. Proximate
164 | P a g e
cause has been defined as that which, in natural and
continuous sequence, unbroken by any efficient
intervening cause, produces injury, and without
which the result would not have occurred.
It appears that Rommel Abrogar, while running on
Don Mariano Marcos A venue and after passing the
Philippine Atomic Energy Commission Building, was
bumped by a jeepney which apparently was racing
against a minibus and the two vehicles were trying
to crowd each other. In fact, a criminal case was filed
against the jeepney driver by reason of his having
killed Rommel Abrogar.
This proves that the death of Rommel Abrogar was
caused by the negligence of the jeepney driver.
Rommel Abrogar cannot be faulted because he was
performing a legal act; the marathon was conducted
with the permission and approval of all the city
officials involved. He had the right to be there.
Neither can the appellant Intergames be faulted, as
the organizer of the said marathon, because it was
not negligent in conducting the marathon.
Given the facts of this case, We believe that no
amount of precaution can prevent such an accident.
Even if there were fences or barriers to separate the
lanes for the runners and for the vehicles, it would
not prevent such an accident in the event that a
negligent driver loses control of his vehicle. And even
if the road was blocked off from traffic, it would still
not prevent such an accident, if a jeepney driver on
the other side of the road races with another vehicle
loses control of his wheel and as a result hits a
person on the other side of the road. Another way of
saying this is: A defendant's tort cannot be
considered a legal cause of plaintiffs damage if that
damage would have occurred just the same even
though the defendant's tort had not been
committed.
This Court also finds the doctrine of assumption of
risk applicable in the case at bar. As explained by a
well-known authority on torts:
"The general principle underlying the defense of
assumption of risk is that a plaintiff who voluntarily
assumes a risk of harm arising from the negligent or
reckless conduct of the defendant cannot recover for
such harm. The defense may arise where a plaintiff,
by contract or otherwise, expressly agrees to accept
a risk or harm arising from the defendant's conduct,
or where a plaintiff who fully understands a risk or
harm caused by the defendant's conduct, or by a
condition created by the defendant, voluntarily
chooses to enter or remain, or to permit his property
to enter or remain, within the area of such risk,
under circumstances manifesting his willingness to
accept the risk.
xxxx
"Assumption of the risk in its primary sense arises by
assuming through contract, which may be implied,
the risk of a known danger. Its essence is
venturousness. It implies intentional exposure to a
known danger; It embraces a mental state of
willingness; It pertains to the preliminary conduct of
getting into a dangerous employment or
relationship, it means voluntary incurring the risk of
an accident, which may or may not occur, and which
the person assuming the risk may be careful to
avoid; and it defeats recovery because it is a
previous abandonment of the right to complain if an
accident occurs.
"Of course, if the defense is predicated upon an
express agreement the agreement must be valid,
and in the light of this qualification the rule has been
stated that a plaintiff who, by contract or otherwise,
expressly agreed to accept a risk of harm arising
from the defendant's negligent or reckless conduct,
cannot recover for such harm unless the agreement
is invalid as contrary to public policy.
xxxx
"The defense of assumption of risk presupposes: (1)
that the plaintiff had actual knowledge of the
danger; (2) that he understood and appreciated the
risk from the danger; and (3) that he voluntarily
exposed himself to such risk. x x x
"The term 'risk' as used in this connection applies to
known dangers, and not to things from which danger
may possibly flow. The risk referred to is the
particular risk, or one of the risks, which the plaintiff
accepted within the context of the situation in which
he placed himself and the question is whether the
specific conduct or condition which caused the injury
was such a risk."
In this case, appellant Romulo Abrogar himself
admitted that his son, Rommel Abrogar, surveyed
the route of the marathon and even attended a
briefing before the race. Consequently, he was
aware that the marathon would pass through a
national road and that the said road would not be
blocked off from traffic. And considering that he was
already eighteen years of age, had voluntarily
participated in the marathon, with his parents'
consent, and was well aware of the traffic hazards
along the route, he thereby assumed all the risks of
the race. This is precisely why permission from the
participant's parents, submission of a medical
certificate and a waiver of all rights and causes of
action arising from the participation in the marathon
which the participant or his heirs may have against
appellant Intergames were required as conditions in
joining the marathon.
In the decision of the trial court, it stated that the
risk mentioned in the waiver signed by Rommel
165 | P a g e
Abrogar only involved risks such as stumbling,
suffering heatstroke, heart attack and other similar
risks. It did not consider vehicular accident as one of
the risks included in the said waiver.
This Court does not agree. With respect to voluntary
participation in a sport, the doctrine of assumption
of risk applies to any facet of the activity inherent in
it and to any open and obvious condition of the
place where it is carried on. We believe that the
waiver included vehicular accidents for the simple
reason that it was a road race run on public roads
used by vehicles. Thus, it cannot be denied that
vehicular accidents are involved. It was not a track
race which is held on an oval and insulated from
vehicular traffic. In a road race, there is always the
risk of runners being hit by motor vehicles while they
train or compete. That risk is inherent in the sport
and known to runners. It is a risk they assume every
time they voluntarily engage in their sport.
Furthermore, where a person voluntarily participates
in a lawful game or contest, he assumes the ordinary
risks of such game or contest so as to preclude
recovery from the promoter or operator of the game
or contest for injury or death resulting therefrom.
Proprietors of amusements or of places where sports
and games are played are not insurers of safety of
the public nor of their patrons.
In McLeod Store v. Vinson 213 Ky 667, 281 SW 799
(1926), it was held that a boy, seventeen years of
age, of ordinary intelligence and physique, who
entered a race conducted by a department store, the
purpose of which was to secure guinea fowl which
could be turned in for cash prizes, had assumed the
ordinary risks incident thereto and was barred from
recovering against the department store for injuries
suffered when, within catching distance, he stopped
to catch a guinea, and was tripped or stumbled and
fell to the pavement, six or eight others falling upon
him. The court further said: "In this (the race) he was
a voluntary participant. xxx The anticipated danger
was as obvious to him as it was to appellant (the
department store). While not an adult, he was
practically 17 years of age, of ordinary intelligence,
and perfectly able to determine the risks ordinarily
incident to such games. An ordinary boy of that age
is practically as well advised as to the hazards of
baseball, basketball, football, foot races and other
games of skill and endurance as is an adult
x x x."
In the case at bar, the "1st Pop Cola Junior
Marathon" held on June 15, 1980 was a race the
winner of which was to represent the country in the
annual Spirit of Pheidippides Marathon Classic in
Greece, if he equals or breaks the 29-minute mark
for the 10-km. race. Thus, Rommel Abrogar having
voluntarily participated in the race, with his parents'
consent, assumed all the risks of the race.
Anent the second issue, this Court finds that
appellant Cosmos must also be absolved from any
liability in the instant case.
This Court finds that the trial court erred in holding
appellant Cosmos liable for being the principal
mover and resultant beneficiary of the event.
In its decision it said that in view of the fact that
appellant Cosmos will be deriving certain benefits
from the marathon event, it has the responsibility to
ensure the safety of all the participants and the
public. It further said that the stipulations in the
contract entered into by the two appellants, Cosmos
and Intergames, relieving the former from any
liability does not bind third persons.
This Court does not agree with the reasoning of the
trial court. The sponsorship contract entered
between appellant Cosmos and appellant
Intergames specifically states that:
1. COSMOS BOTTLING CORPORATION shall pay
INTERGAMES the amount of FIFTY FIVE THOUSAND
PESOS (₱55,000.00) representing full sponsorship fee
and in consideration thereof, INTERGAMES shall
organize and stage a marathon race to be called '1st
POP COLA JUNIOR MARATHON.
xxxx
3. INTER GAMES shall draw up all the rules of the
marathon race, eligibility requirements of
participants as well as provide all the staff required
in the organization and actual staging of the race. It
is understood that all said staff shall be considered
under the direct employ of INTERGAMES which shall
have full control over them.
xxxx
5. INTERGAMES shall secure all the necessary
permits, clearances, traffic and police assistance in
all the areas covered by the entire route of the '1st
POP COLA JUNIOR MARATHON.
12. INTERGAMES shall hold COSMOS BOTTLING
CORPORATION, completely free and harmless from
any claim or action for liability for any injuries or
bodily harm which may be sustained by any of the
entries in the '1st POP COLA JUNIOR MARATHON', or
for any damages to the property or properties of
third parties, which may likewise arise in the course
of the race.
From the foregoing, it is crystal clear that the role of
the appellant Cosmos was limited to providing
financial assistance in the form of sponsorship.
Appellant Cosmos' sponsorship was merely in
166 | P a g e
pursuance to the company's commitment for spo1is UPON THE VIEW WE TAKE OF THIS CASE, THUS, the
development of the youth as well as for advertising judgment appealed from must be, as it hereby
purposes. The use of the name Cosmos was done for is, REVERSED and SET ASIDE, and another
advertising purposes only; it did not mean that it was entered DISMISSING the complaint a quo. The
an organizer of the said marathon. As pointed out by appellants shall bear their respective costs.
Intergames' President, Jose Castro Jr., appellant
Cosmos did not even have the right to suggest the SO ORDERED.26
location and the number of runners.
Issues
To hold a defendant liable for torts, it must be clearly
shown that he is the proximate cause of the harm In this appeal, the petitioners submit that the CA
done to the plaintiff. The nexus or connection of the gravely erred:
cause and effect, between a negligent act and the
damage done, must be established by competent
A.
evidence.
x x x in reversing the RTC Decision, (and) in holding
In this case, appellant Cosmos was not negligent in
that respondent Intergames was not negligent
entering into a contract with the appellant
considering that:
Intergames considering that the record of the latter
was clean and that it has conducted at least thirty
1. Respondent Intergames failed to exercise the
(30) road races.
diligence of a good father of the family in the
conduct of the marathon in that it did not block off
Also there is no direct or immediate causal
from traffic the marathon route; and
connection between the financial sponsorship and
the death of Rommel Abrogar. The singular act of
2. Respondent Intergames' preparations for the race,
providing financial assistance without participating in
including the number of marshal during the
any manner in the conduct of the marathon cannot
marathon, were glaringly inadequate to prevent the
be palmed off as such proximate cause. In fact, the
happening of the injury to its participants.
appellant spouses never relied on any
representation that Cosmos organized the race. It
B.
was not even a factor considered by the appellants-
spouses in allowing their son to join said marathon.
x x x in reversing the RTC Decision, (and) in holding
In view of the fact that both defendants are not that the doctrine of assumption of risk finds
liable for the death of Rommel Abrogar, appellants- application to the case at bar even though getting hit
spouses are not entitled to actual, moral, exemplary or run over by a vehicle is not an inherent risk in a
damages as well as for the "loss of earning capacity" marathon race. Even assuming arguendo that
deceased Abrogar made such waiver as claimed, still
of their son. The third and fourth issues are thus
there can be no valid waiver of one's right to life and
moot and academic.
limb for being against public policy.
 C.
x x x in reversing the RTC Decision, (and) in absolving
respondent Cosmos from liability to petitioners on
the sole ground that respondent Cosmos' contract
with respondent Intergames contained a stipulation
exempting the former from liability.
D.
x x x m reversing the RTC Decision and consequently
holding respondents free from liability, (and) in not
awarding petitioners with actual, moral and
exemplary damages for the death of their child,
Rommel Abrogar.27
Ruling of the Court
The appeal is partly meritorious.
I
Review of factual issues is allowed because of
the conflict between the findings of fact
by the RTC and the CA on the issue of negligence
The petitioners contend that Intergames was
negligent; that Cosmos as the sponsor and
Intergames as the organizer of the marathon both
had the obligation to provide a reasonably safe place
for the conduct of the race byblocking the route of
the race from vehicular traffic and by providing
adequate manpower and personnel to ensure the
safety of the participants; and that Intergames had
foreseen the harm posed by the situation but had
not exercised the diligence of a good father of a
family to avoid the risk;28 hence, for such omission,
Intergames was negligent.29
167 | P a g e
Refuting, Cosmos and Intergames submit that the
latter as the organizer was not negligent because it
had undertaken all the precautionary measures to
ensure the safety of the race; and that there was no
duty on the part of the latter as the organizer to
keep a racecourse "free and clear from reasonably
avoidable elements that would [occasion] or have
the probable tendency, to occasion injury."30
The issue of whether one or both defendants were
negligent is a mixed issue of fact and law. Does this
not restrict the Court against reviewing the records
in this appeal on certiorari in order to settle the
issue?
The Court can proceed to review the factual findings
of the CA as an exception to the general rule that it
should not review issues of fact on appeal
on certiorari. We have recognized exceptions to the
rule that the findings of fact of the CA are conclusive
and binding in the following instances: (1) when the
findings are grounded entirely on speculation,
surmises or conjectures; (2) when the inference
made is manifestly mistaken, absurd or impossible;
(3) when there is grave abuse of discretion; (4) when
the judgment is based on a misapprehension of
facts; (5) when the findings of facts are conflicting;
(6) when in making its findings the CA went beyond
the issues of the case, or its findings are contrary to
the admissions of both the appellant and the
appellee; (7) when the findings are contrary to the
trial court; (8) when the findings are conclusions
without citation of specific evidence on which they
are based; (9) when the facts set forth in the petition
as well as in the petitioner's main and reply briefs
are not disputed by the respondent; (10) when the
findings of fact are premised on the supposed
absence of evidence and contradicted by the
evidence on record; and (11) when the CA manifestly
overlooked certain relevant facts not disputed by the
parties, which, if properly considered, would justify a
different conclusion.31 Considering that the CA
arrived at factual findings contrary to those of the
trial court, our review of the records in this appeal
should have to be made.
Negligence is the failure to observe for the
protection of the interests of another person that
degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other
person suffers injury.32 Under Article 1173 of
the Civil Code, it consists of the "omission of that
diligence which is required by the nature of the
obligation and corresponds with the circumstances
of the person, of the time and of the
place."33 The Civil Code makes liability for negligence
clear under Article 2176,34 and Article 20.35
To determine the existence of negligence, the
following time-honored test has been set in Picart v.
Smith:36
The test by which to determine the existence of
negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged
negligent act use that reasonable care and caution
which an ordinarily prudent person would have used
in the same situation? If not, then he is guilty of
negligence. The law here in effect adopts the
standard supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the Roman
law. The existence of negligence in a given case is
not determined by reference to the personal
judgment of the actor in the situation before him.
The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by
that.
The question as to what would constitute the
conduct of a prudent man in a given situation must
of course be always determined in the light of
human experience and in view of the facts involved
in the particular case. Abstract speculation cannot
here be of much value but this much can be
profitably said: Reasonable men govern their
conduct by the circumstances which are before them
or known to them. They are not, and are not
supposed to be, omniscient of the future. Hence
they can be expected to take care only when there is
something before them to suggest or warn of
danger. Could a prudent man, in the case under
consideration, foresee harm as a result of the course
actually pursued? If so, it was the duty of the actor
to take precautions to guard against that harm.
Reasonable foresight of harm, followed by the
ignoring of the suggestion born of this prevision, is
always necessary before negligence can be held to
exist. Stated in these terms, the proper criterion for
determining the existence of negligence in a given
case is this: Conduct is said to be negligent when a
prudent man in the position of the tortfeasor would
have foreseen that an effect harmful to another was
sufficiently probable to warrant his foregoing the
conduct or guarding against its
consequences.37 (bold underscoring supplied for
emphasis)
A careful review of the evidence presented,
particularly the testimonies of the relevant
witnesses, in accordance with the foregoing
guidelines reasonably leads to the conclusion that
the safety and precautionary measures undertaken
by Intergames were short of the diligence demanded
by the circumstances of persons, time and place
under consideration. Hence, Intergames as the
organizer was guilty of negligence.
The race organized by Intergames was a junior
marathon participated in by young persons aged 14
to 18 years. It was plotted to cover a distance of 10
kilometers, starting from the IBP Lane,38 then going
towards the Batasang Pambansa, and on to the
168 | P a g e
circular route towards the Don Mariano Marcos route had been the best one only within the
Highway,39 and then all the way back to the Quezon vicinity of the Batasan Pambansa, to wit:
City Hall compound where the finish line had been
set.40 In staging the event, Intergames had no COURT
employees of its own to man the race,41 and relied
only on the "cooperating agencies" and volunteers q Was there any specific reason from ... Was there
who had worked with it in previous races.42 The any specific reason why you used this route from
cooperating agencies included the Quezon City Batasan to City Hall? Was there any special reason?
police, barangay tanods, volunteers from the Boy
Scouts of the Philippines, the Philippine National Red
a We have, your Honor, conducted for example the
Cross, the Citizens Traffic Action Group, and the
Milo Marathon in that area in the Batasan Pambansa
medical teams of doctors and nurses coming from
and we found it to be relatively safer than any other
the Office of the Surgeon General and the Ospital ng
areas within the vicinity. As a matter of fact, we had
Bagong Lipunan.43 According to Jose R. Castro, Jr.,
more runners in the Milo Marathon at that time and
the President of Intergames, the preparations for the
nothing happened, your Honor.52
event included conducting an ocular inspection of
the route of the race,44 sending out letters to the
The chosen route (IBP Lane, on to Don Mariano
various cooperating agencies,45 securing permits
Marcos Highway, and then to Quezon City Hall) was
from proper authorities,46 putting up directional
not the only route appropriate for the marathon. In
signs,47 and setting up the water stations.48
fact, Intergames came under no obligation to use
such route especially considering that the
We consider the "safeguards" employed and
participants, who were young and inexperienced
adopted by Intergames not adequate to meet the
runners, would be running alongside moving
requirement of due diligence.
vehicles.
For one, the police authorities specifically prohibited
Intergames further conceded that the marathon
Intergames from blocking Don Mariano Marcos
could have been staged on a blocked-off route like
Highway in order not to impair road accessibility to
Roxas Boulevard in Manila where runners could run
the residential villages located beyond the IBP
against the flow of vehicular traffic.53 Castro, Jr.
Lanc.49
stated in that regard:
However, contrary to the findings of the
COURT TO WITNESS
CA,50 Intergames had a choice on where to stage the
marathon, considering its admission of the sole
responsibility for the conduct of the event, including q What law are you talking about when you say I
cannot violate the law?
the choice of location.
a The police authority, your Honor, would not grant
Moreover, the CA had no basis for holding that "the
us permit because that is one of the conditions that
said route was found to be the best route after a
if we are to conduct a race we should run the race in
careful study and consideration of all the factors
accordance with the flow of traffic.
involved."51 Castro, Jr. himself attested that the
q Did you not inform the police this is in accordance
with the standard safety measures for a marathon
race?
a I believed we argued along that line but but (sic)
again, if we insist the police again would not grant us
any permit like ... except in the case of Roxas
Boulevard when it is normally closed from 8 a.m.
when you can run against the flow of traffic.
q You were aware for a runner to run on the same
route of the traffic would be risky because he would
not know what is coming behind him?
a I believed we talked of the risk, your Honor when
the risk has been minimized to a certain level. Yes,
there is greater risk when you run with the traffic
than when you run against the traffic to a certain
level, it is correct but most of the races in Manila or
elsewhere are being run in accordance with the flow
of the traffic.
xxxx
ATTY. VINLUAN
q Following the observation of the Court, considering
the local condition, you will agree with me the risks
here are greater than in the United States where
drivers on the whole follow traffic rules?
a That is correct.
q And because of that fact, it is with all the more
reason that you should take all necessary
precautions to insure the safety of the runners?
a That is correct.54
xxxx
169 | P a g e
COURT:
xxxx
Q In your case in all the marathons that you had
managed, how many cases have you encountered
where the routes are blocked off for vehicular
traffic?
A These are the International Marathon, Philippines
Third World Marathon and the Milo Marathon. We
are blocking them to a certain length of time.
Q What was the purpose of blocking the routes? Is it
for the safety of the runners or just a matter of
convenience?
A In blocking off the route, Your Honor, it is light
easier for the runners to run without impediments to
be rendered by the people or by vehicles and at the
same time it would be also advantageous if the road
will be blocked off for vehicle traffic permitted to us
by the traffic authorities.
Q So, in this case, you actually requested for the
traffic authorities to block off the route?
A As far as I remember we asked Sgt. Pascual to
block off the route but considering that it is the main
artery to Fairview Village, it would not be possible to
block off the route since it will cause a lot of
inconvenience for the other people in those areas
and jeepney drivers.
Q In other words, if you have your way you would
have opted to block off the route.
A Yes, Your Honor.
Q But the fact is that the people did not agree.
A Yes, Your Honor, and it is stated in the permit
given to us.55
Based on the foregoing testimony of Castro, Jr.,
Intergames had full awareness of the higher risks
involved in staging the race alongside running
vehicles, and had the option to hold the race in a
route where such risks could be minimized, if not
eliminated. But it did not heed the danger already
foreseen, if not expected, and went ahead with
staging the race along the plotted route on Don
Mariano Marcos Highway on the basis of its
supposedly familiarity with the route. Such
familiarity of the organizer with the route and the
fact that previous races had been conducted therein
without any untoward incident56 were not in
themselves sufficient safeguards. The standards for
avoidance of injury through negligence further
required Intergames to establish that it did take
adequate measures to avert the foreseen danger,
but it failed to do so.
Another failing on the part of Intergames was the
patent inadequacy of the personnel to man the
route. As borne by the records, Intergames had no
personnel of its own for that purpose, and relied
exclusively on the assistance of volunteers, that is,
"seven (7) traffic operatives, five (5) motorcycle
policemen, fifteen (15) patrolmen deployed along
the route, fifteen (15) boy scouts, twelve (12) CATs,
twenty (20) barangay tanods, three (3) ambulances
and three (3) medical teams"57 to ensure the safety
of the young runners who would be running
alongside moving vehicular traffic, to make the event
safe and well coordinated.
Although the party relying on negligence as his cause
of action had the burden of proving the existence of
the same, Intergames' coordination and supervision
of the personnel sourced from the cooperating
agencies did not satisfy the diligence required by the
relevant circumstances. In this regard, it can be
pointed out that the number of deployed personnel,
albeit sufficient to stage the marathon, did not per
se ensure the safe conduct of the race without proof
that such deployed volunteers had been properly
coordinated and instructed on their tasks.
That the proper coordination and instruction were
crucial elements for the safe conduct of the race was
well known to Intergames. Castro, Jr. stated as
much, to wit:
ATTY. LOMBOS:
xxxx
Q You also said that if you block off one side of the
road, it is possible that it would be more convenient
to hold the race in that matter. Will you tell the
Honorable Court if it is possible also to hold a race
safely if the road is not blocked off?
A Yes, sir.
Q How is it done.
A You can still run a race safely even if it is partially
blocked off as long as you have the necessary
cooperation with the police authorities, and the
police assigned along the route of the race and the
police assigned would be there, this will contribute
the safety of the participants, and also the vehicular
division, as long as there are substantial publicities in
the newspapers, normally they will take the
precautions in the use of the particular route of the
race.
Q Let me clarify this. Did you say that it is possible to
hold a marathon safely if you have this traffic
170 | P a g e
assistance or coordination even if the route is
blocked or not blocked?
A It is preferable to have the route blocked but in
some cases, it would be impossible for the portions
of the road to be blocked totally. The route of the
race could still be safe for runners if a proper
coordination or the agencies are notified especially
police detailees to man the particular stage. 58
Sadly, Intergames' own evidence did not establish
the conduct of proper coordination and instruction.
Castro, Jr. described the action plan adopted by
Intergames in the preparation for the race, as
follows:
COURT
a Did you have any rehearsal let us say the race was
conducted on June 15, now before June 15 you call a
meeting of all these runners so you can have more
or less a map-up and you would indicate or who will
be stationed in their places etc. Did you have such a
rehearsal?
WITNESS
a It is not being done, your honor, but you have to
specify them. You meet with the group and you tell
them that you wanted them to be placed in their
particular areas which we pointed out to them for
example in the case of the Barangay Tanod, I
specifically assigned them in the areas and we sat
down and we met.
COURT
q Did you have any action, plan or brochure which
would indicate the assignment of each of the
participating group?
WITNESS
a Normally, sir, many of the races don't have that
except when they called them to meeting either as a
whole group or the entire cooperating agency or
meet them per group.
COURT
q Did you have a check list of the activities that
would have to be entered before the actual
marathon some kind of system where you will
indicate this particular activity has to be checked etc.
You did not have that?
WITNESS
q Are you asking, your honor, as a race director of I
will check this because if I do that, I won't have a
race because that is not being done by any race
director anywhere in the world?
COURT
I am interested in your planning activities.
q In other words, what planning activities did you
perform before the actual marathon?
a The planning activities we had, your honor, was to
coordinate with the different agencies involved
informing them where they would be more or less
placed.
COURT
q Let us go to ... Who was supposed to be
coordinating with you as to the citizens action group
who was your ... you were referring to a person who
was supposed to be manning these people and who
was the person whom you coordinate with the
Traffic Action Group?
WITNESS
a I can only remember his name ... his family name is
Esguerra.
q How about with the Tanods?
a With the Tanods his name is Pedring Serrano.
q And with the Boys Scouts? (sic)
a And with the Boys Scouts of the Phils. (sic) it is Mr.
Greg Panelo.
COURT
q When did you last meet rather how many times
did you meet with Esguerra before the marathon on
June 15?
WITNESS
a The Citizens Traffic Action Group, your honor, had
been with me m previous races.
COURT
q I am asking you a specific question. I am not
interested in the Citizen Traffic Action Group. The
marathon was on June 15, did you meet with him on
June 14, June 13 or June 12?
a We met once, your honor, I cannot remember the
date.
q You don't recall how many days before?
171 | P a g e
a I cannot recall at the moment.
q How about with Mr. Serrano, how many times did
you meet with him before the race?
a If my mind does not fail me, your honor, I met him
twice because he lives just within our area and we
always see each other.
q How about with Panelo, how many times did you
meet him?
a With Mr. Panelo, I did not meet with them, your
honor.
q Was there an occasion where before the race you
met with these three people together since you did
not meet with Panelo anytime? Was there anytime
where you met with Serrano and Esguerra together?
WITNESS
a No, your honor.
COURT
g When you met once with Esguerra, where did you
meet? What place?
a I cannot recall at the moment, your honor, since it
was already been almost six years ago.
g How about Serrano, where did you meet him?
a We met in my place.
q From your house? He went in your house?
a Yes, your honor.
q So you did not have let us say a ... you don't have
records of your meetings with these people?
WITNESS
a With the Citizens Traffic Action, your honor?
COURT
a Yes.
WITNESS
a I don't have, your honor.
COURT
q Because you are familiar, I was just thinking this is
an activity which requires planning etc., what I was
thinking when you said this was never done in any
part of the world but all activities it has to be
planned. There must be some planning, now are you
saying that in this particular case you had no written
plan or check list of activities what activities have to
be implemented on a certain point and time, who
are the persons whom you must meet in a certain
point and time.
WITNESS
a Normally, we did not have that, your honor, except
the check list of all the things that should be ready at
a particular time prior to the race and the people to
be involved and we have a check list to see to it that
everything would be in order before the start of the
race.
COURT
Proceed.
ATTY. VINLUAN
q Following the question of the Court Mr. Castro, did
you meet with Lt. Depano of the Police Department
who were supposed to supervise the police officers
assigned to help during the race?
a I did not meet with him, sir.
q You did not meet with him?
a I did not meet with him.
q In fact, ever before or during the race you had no
occasion to talk to Lt. Depano. Is that correct?
a That is correct, sir.
ATTY. VINLUAN
Based on the question of the Court and your answer
to the question of the Court, are you trying to say
that this planning before any race of all these groups
who have committed to help in the race, this is not
done in any part of the world?
WITNESS
a In the latter years when your race became bigger
and bigger, this is being done now slowly.
ATTY. VINLUAN
q But for this particular race you will admit that you
failed to do it when you have to coordinate and even
have a dry run of the race you failed to do all of that
in this particular race, yes or no?
a Because there was ...
172 | P a g e
COURT
It was already answered by him when I asked him.
The Court has ... Everybody has a copy how of this
time planner. Any activity or even meeting a
girlfriend or most people plan.
A TTY. F .M. LOMBOS
If your honor please, before we proceed ...
WITNESS
In the latter years, your honor, when your race
became bigger and bigger, this is being done now
slowly.
q For this particular race you will admit that you
failed to do it?
59
a Because there was no need, sir.
Probably sensing that he might have thereby
contradicted himself, Castro, Jr. clarified on re-direct
examination:
ATTY. LOMBOS
Q Now, you also responded to a question during the
same hearing and this appears on page 26 of the
transcript that you did not hold any rehearsal or dry
run for this particular marathon. Could you tell the
Court why you did not hold any such rehearsal or dry
run?
A Because I believe there was no need for us to do
that since we have been doing this for many years
and we have been the same people, same
organization with us for so many years conducting
several races including some races in that area
consisting of longer distances and consisting of more
runners, a lot more runners in that areay (sic) so
these people, they know exactly what to do and
there was no need for us to have a rehearsal. I
believe this rehearsal would only be applicable if I
am new and these people are new then, we have to
rehearse.
ATTY. LOMBOS
q You also stated Mr. Castro that you did not have
any action plan or brochure which you would
indicate, an assignment of each of the participating
group as to what to do during the race. Will you
please explain what you meant when you said you
have no action plan or brochure?
WITNESS
a What I mean of action plan, I did not have any
written action plan but I was fully aware of what to
do. I mean, those people did not just go there out of
nowhere. Obviously, there was an action on my part
because I have to communicate with them
previously and to tell them exactly what the race is
all about; where to start; where it would end, and
that is the reason why we have the ambulances, we
have the Boy Scouts, we have the CT A, we have the
police, so it was very obvious that there was a plan
of action but not written because I know pretty well
exactly what to do. I was dealing with people who
have been doing this for a long period of time. 60
While the level of trust Intergames had on its
volunteers was admirable, the coordination among
the cooperating agencies was predicated on
circumstances unilaterally assumed by Intergames. It
was obvious that Intergames' inaction had been
impelled by its belief that it did not need any action
plan because it had been dealing with people who
had been manning similar races for a long period of
time.
The evidence presented undoubtedly established
that Intergames' notion of coordination only
involved informing the cooperating agencies of the
date of the race, the starting and ending points of
the route, and the places along the route to man.
Intergames did not conduct any general assembly
with all of them, being content with holding a few
sporadic meetings with the leaders of the
coordinating agencies. It held no briefings of any
kind on the actual duties to be performed by each
group of volunteers prior to the race. It did not
instruct the volunteers on how to minimize, if not
avert, the risks of danger in manning the race,
despite such being precisely why their assistance had
been obtained in the first place.
Intergames had no right to assume that the
volunteers had already been aware of what exactly
they would be doing during the race. It had the
responsibility and duty to give to them the proper
instructions despite their experience from the past
races it had organized considering that the particular
race related to runners of a different level of
experience, and involved different weather and
environmental conditions, and traffic situations. It
should have remembered that the personnel
manning the race were not its own employees paid
to perform their tasks, but volunteers whose nature
of work was remotely associated with the safe
conduct of road races. Verily, that the volunteers
showed up and assumed their proper places or that
they were sufficient in number was not really
enough. It is worthy to stress that proper
coordination in the context of the event did not
consist in the mere presence of the volunteers, but
included making sure that they had been properly
instructed on their duties and tasks in order to
ensure the safety of the young runners.
173 | P a g e
It is relevant to note that the participants of the 1st
Pop Cola Junior Marathon were mostly minors aged
14 to 18 years joining a race of that kind for the first
time. The combined factors of their youth, eagerness
and inexperience ought to have put a reasonably
prudent organizer on higher guard as to their safety
and security needs during the race, especially
considering Intergames' awareness of the risks
already foreseen and of other risks already known to
it as of similar events in the past organizer. There
was no question at all that a higher degree of
diligence was required given that practically all of
the participants were children or minors like
Rommel; and that the law imposes a duty of care
towards children and minors even if ordinarily there
was no such duty under the same circumstances had
the persons involved been adults of sufficient
discretion.61 In that respect, Intergames did not
observe the degree of care necessary as the
organizer, rendering it liable for negligence. As the
Court has emphasized in Corliss v. The Manila
Railroad Company,62 where the danger is great, a
high degree of care is necessary, and the failure to
observe it is a want of ordinary care under the
circumstances. 63
The circumstances of the persons, time and place
required far more than what Intergames undertook
in staging the race. Due diligence would have made a
reasonably prudent organizer of the race
participated in by young, inexperienced or beginner
runners to conduct the race in a route suitably
blocked off from vehicular traffic for the safety and
security not only of the participants but the
motoring public as well. Since the marathon would
be run alongside moving vehicular traffic, at the very
least, Intergames ought to have seen to the constant
and closer coordination among the personnel
manning the route to prevent the foreseen risks
from befalling the participants. But this it sadly failed
to do.
II
The negligence of Intergames as the organizer
was the proximate cause of the death of Rommel
As earlier mentioned, the CA found that Rommel,
while running the marathon on Don Mariano Marcos
A venue and after passing the Philippine Atomic
Energy Commission Building, was bumped by a
passenger jeepney that was racing with a minibus
and two other vehicles as if trying to crowd each
other out. As such, the death of Rommel was caused
by the negligence of the jeepney driver.
Intergames staunchly insists that it was not liable,
maintaining that even assuming arguendo that it was
negligent, the negligence of the jeepney driver was
the proximate cause of the death of Rommel; hence,
it should not be held liable.
Did the negligence of Intergames give rise to its
liability for the death of ommel notwithstanding the
negligence of the jeepney driver?
In order for liability from negligence to arise, there
must be not only proof of damage and negligence,
but also proof that the damage was the consequence
of the negligence. The Court has said in Vda. de
Gregorio v. Go Chong Bing:64
x x x Negligence as a source of obligation both under
the civil law and in American cases was carefully
considered and it was held:
We agree with counsel for appellant that under the
Civil Code, as under the generally accepted doctrine
in the United States, the plaintiff in an action such as
that under consideration, in order to establish his
right to a recovery, must establish by competent
evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant
personally or some person for whose acts it must
respond, was guilty.
(3) The connection of cause and effect between the
negligence and the damage." (Taylor vs. Manila
Electric Railroad and Light Co., supra, p. 15.)
In accordance with the decision of the Supreme
Court of Spain, in order that a person may be held
guilty for damage through negligence, it is necessary
that there be an act or omission on the part of the
person who is to be charged with the liability and
that damage is produced by the said act or
omission.65 (Emphasis supplied)
We hold that the negligence of Intergames was the
proximate cause despite the intervening negligence
of the jeepney driver.
Proximate cause is "that which, in natural and
continuous sequence, unbroken by any new cause,
produces an event, and without which the event
would not have occurred."66 In Vda. de Bataclan, et
al. v. Medina,67 the Court, borrowing from American
Jurisprudence, has more extensively
defined proximate cause thusly:
"* * * 'that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening
cause, produces the injury and without which the
result would not have occurred.' And more
comprehensively, 'the proximate legal cause is that
acting first and producing the injury, either
immediately or by setting other events in motion, all
constituting a natural and continuous chain of
events, each having a close causal connection with
its immediate predecessor, the final event in the
chain immediately effecting the injury as a natural
174 | P a g e
and probable result of the cause which first acted,
under such circumstances that the person
responsible for the first event should, as an
ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his
act or default that an injury to some person might
probably result therefrom."68
To be considered the proximate cause of the injury,
the negligence need not be the event closest in time
to the injury; a cause is still proximate, although
farther in time in relation to the injury, if the
happening of it set other foreseeable events into
motion resulting ultimately in the
damage.69 According to an authority on civil law:70"A
prior and remote cause cannot be made the basis of
an action, if such remote cause did nothing more
than furnish the condition or give rise to the occasion
by which the injury was made possible, if there
intervened between such prior or remote cause and
the injury a distinct, successive, unrelated and
efficient cause, even though such injury would not
have happened but for such condition or occasion. If
no damage exists in the condition except because of
the independent cause, such condition was not the
proximate cause. And if an independent negligent act
or defective condition sets into operation the
circumstances which result in injury because of the
prior defective condition, such act or condition is the
proximate cause."
Bouvier adds:
In many cases important questions arise as to which,
in the chain of acts tending to the production of a
given state of things, is to be considered the
responsible cause. It is not merely distance of place
or of causation that renders a cause remote. The
cause nearest in the order of causation, without any
efficient concurring cause to produce the result, may
be considered the direct cause. In the course of
decisions of cases in which it is necessary to
determine which of several causes is so far
responsible for the happening of the act or injury
complained of, what is known as the doctrine of
proximate cause is constantly resorted to in order to
ascertain whether the act, omission, or negligence of
the person whom it is sought to hold liable was in
law and in fact responsible for the result which is the
foundation of the action.71
xxxx
The question of proximate cause is said to be
determined, not by the existence or non-existence of
intervening events, but by their character and the
natural connection between the original act or
omission and the injurious consequences. When the
intervening cause is set in operation by the original
negligence, such negligence is still the proximate
cause; x x x If the party guilty of the first act of
negligence might have anticipated the intervening
cause, the connection is not broken; x x x. Any
number of causes and effects may intervene, and if
they arc such as might with reasonable diligence
have been foreseen, the last result is to be
considered as the proximate result. But whenever a
new cause intervenes, which is not a consequence of
the first wrongful cause, which is not under control
of the wrongdoer, which could not have been
foreseen by the exercise of reasonable diligence, and
except for which the final injurious consequence
could not have happened, then such injurious
consequence must be deemed too remote; x x
x.72 (bold underscoring supplied for emphasis)
An examination of the records in accordance with
the foregoing concepts supports the conclusions that
the negligence of Intergames was the proximate
cause of the death of Rommel; and that the
negligence of the jeepney driver was not an efficient
intervening cause.
First of all, Intergames' negligence in not conducting
the race in a road blocked off from vehicular traffic,
and in not properly coordinating the volunteer
personnel manning the marathon route effectively
set the stage for the injury complained of. The
submission that Intergames had previously
conducted numerous safe races did not persuasively
demonstrate that it had exercised due diligence
because, as the trial court pointedly observed,
"[t]hey were only lucky that no accident occurred
during the previous marathon races but still the
danger was there."73
Secondly, injury to the participants arising from an
unfortunate vehicular accident on the route was an
event known to and foreseeable by Intergames,
which could then have been avoided if only
Intergames had acted with due diligence by
undertaking the race on a blocked-off road, and if
only Intergames had enforced and adopted more
efficient supervision of the race through its
volunteers.
And, thirdly, the negligence of the jeepney driver,
albeit an intervening cause, was not efficient enough
to break the chain of connection between the
negligence of Intergames and the injurious
consequence suffered by Rommel. An intervening
cause, to be considered efficient, must be "one not
produced by a wrongful act or omission, but
independent of it, and adequate to bring the
injurious results. Any cause intervening between the
first wrongful cause and the final injury which might
reasonably have been foreseen or anticipated by the
original wrongdoer is not such an efficient
intervening cause as will relieve the original wrong of
its character as the proximate cause of the final
injury."74
175 | P a g e
In fine, it was the duty of Intergames to guard
Rommel against the foreseen risk, but it failed to do
so.
III
The doctrine of assumption of risk
had no application to Rommel
Unlike the R TC, the CA ruled that the doctrine of
assumption of risk applied herein; hence, it declared
Intergames and Cosmos not liable. The CA rendered
the following rationalization to buttress its ruling, to
wit:
In this case, appellant Romulo Abrogar himself
admitted that his son, Rommel Abrogar, surveyed
the route of the marathon and even attended a
briefing before the race. Consequently, he was
aware that the marathon would pass through a
national road and that the said road would not be
blocked off from traffic. And considering that he was
already eighteen years of age, had voluntarily
participated in the marathon, with his parents'
consent, and was well aware of the traffic hazards
along the route, he thereby assumed all the risks of
the race. This is precisely why permission from the
participant's parents, submission of a medical
certificate and a waiver of all rights and causes of
action arising from the participation in the marathon
which the participant or his heirs may have against
appellant Intergames were required as conditions in
joining the marathon.
In the decision of the trial court, it stated that the
risk mentioned in the waiver signed by Rommel
Abrogar only involved risks such as stumbling,
suffering heatstroke, heart attack and other similar
risks. It did not consider vehicular accident as one of
the risks included in the said waiver.
This Court does not agree. With respect to voluntary
participation in a sport, the doctrine of assumption
of risk applies to any facet of the activity inherent in
it and to any open and obvious condition of the
place where it is carried on. We believe that the
waiver included vehicular accidents for the simple
reason that it was a road race run on public roads
used by vehicles. Thus, it cannot be denied that
vehicular accidents are involved. It was not a track
race which is held on an oval and insulated from
vehicular traffic. In a road race, there is always the
risk of runners being hit by motor vehicles while they
train or compete. That risk is inherent in the sport
and known to runners. It is a risk they assume every
time they voluntarily engage in their sport.
Furthermore, where a person voluntarily participates
in a lawful game or contest, he assumes the ordinary
risks of such game or contest so as to preclude
recovery from the promoter or operator of the game
or contest for injury or death resulting therefrom.
Proprietors of amusements or of places where sports
and games are played are not insurers of safety of
the public nor of their patrons.
In Mc Leod Store v. Vinson 213 Ky 667, 281 SW 799
(1926), it was held that a boy, seventeen years of
age, of ordinary intelligence and physique, who
entered a race conducted by a department store, the
purpose of which was to secure guinea fowl which
could be turned in for cash prizes, had assumed the
ordinary risks incident thereto and was barred from
recovering against the department store for injuries
suffered when, within catching distance, he stopped
to catch a guinea, and was tripped or stumbled and
fell to the pavement, six or eight others falling upon
him. The comi further said: "In this (the race) he was
a voluntary participant. x x x The anticipated danger
was as obvious to him as it was to appellant (the
department store). While not an adult, he was
practically 17 years of age, of ordinary intelligence,
and perfectly able to determine the risks ordinarily
incident to such games. An ordinary boy of that age
is practically as well advised as to the hazards of
baseball, basketball, football, foot races and other
games of skill and endurance as is an adult
x x x."
In the case at bar, the "1st Pop Cola Junior
Marathon" held on June 15, 1980 was a race the
winner of which was to represent the country in the
annual Spirit of Pheidippides Marathon Classic in
Greece, if he equals or breaks the 29-minute mark
for the 19-km. race. Thus, Rommel Abrogar having
voluntarily participated in the race, with his parents'
consent, assumed all the risks of the race.75
The doctrine of assumption of risk means that one
who voluntarily exposes himself to an obvious,
known and appreciated danger assumes the risk of
injury that may result therefrom.76 It rests on the
fact that the person injured has consented to relieve
the defendant of an obligation of conduct toward
him and to take his chance of injury from a known
risk, and whether the former has exercised proper
caution or not is immaterial.77 In other words, it is
based on voluntary consent, express or implied, to
accept danger of a known and appreciated risk; it
may sometimes include acceptance of risk arising
from the defendant's negligence, but one does not
ordinarily assume risk of any negligence which he
does not know and appreciate.78 As a defense in
negligence cases, therefore, the doctrine requires
the concurrence of three elements, namely: (1) the
plaintiff must know that the risk is present; (2) he
must further understand its nature; and (3) his
choice to incur it must be free and
voluntary.79 According to Prosser:80 "Knowledge of
the risk is the watchword of assumption of risk."
176 | P a g e
Contrary to the notion of the CA, the concurrence of Clearly, the doctrine of assumption of risk does not
the three elements was not shown to exist. Rommel apply to bar recovery by the petitioners.
could not have assumed the risk of death when he
participated in the race because death was neither a IV
known nor normal risk incident to running a race.
Although he had surveyed the route prior to the race Cosmos is not liable for the negligence
and should be presumed to know that he would be of Intergames as the organizer
running the race alongside moving vehicular traffic,
such knowledge of the general danger was not
Nonetheless, the CA did not err in absolving Cosmos
enough, for some authorities have required that the
from liability.
knowledge must be of the specific risk that caused
the harm to him.81 In theory, the standard to be
The sponsorship of the marathon by Cosmos was
applied is a subjective one, and should be geared to
limited to financing the race. Cosmos did nothing
the particular plaintiff and his situation, rather than
beyond that, and did not involve itself at all in the
that of the reasonable person of ordinary prudence
preparations for the actual conduct of the race. This
who appears in contributory negligence.82 He could
verity was expressly confirmed by Intergames,
not have appreciated the risk of being fatally struck
through Castro, Jr., who declared as follows:
by any moving vehicle while running the race.
Instead, he had every reason to believe that the
COURT
organizer had taken adequate measures to guard all
participants against any danger from the fact that he
was participating in an organized marathon. Stated q Do you discuss all your preparation with Cosmos
differently, nobody in his right mind, including Bottling Company?
minors like him, would have joined the marathon if
he had known of or appreciated the risk of harm or a As far as the Cosmos Bottling Company (sic) was a
even death from vehicular accident while running in sponsor as to the actual conduct of the race, it is my
the organized running event. Without question, a responsibility. The conduct of the race is my
marathon route safe and free from foreseeable risks responsibility. The sponsor has nothing to do as well
was the reasonable expectation of every runner as its code of the race because they are not the ones
participating in an organized running event. running. I was the one running. The responsibility of
Cosmos was just to provide the sponsor's money.
Neither was the waiver by Rommel, then a minor, an
effective form of express or implied consent in the COURT
context of the doctrine of assumption of risk. There
is ample authority, cited in Prosser,83 to the effect q They have no right to who (sic) suggest the
that a person does not comprehend the risk involved location, the number of runners, you decide these
in a known situation because of his youth,84 or lack yourself without consulting them?
of information or experience,85 and thus will not be
taken to consent to assume the risk. a Yes, your honor.86
We uphold the finding by the CA that the role of
Cosmos was to pursue its corporate commitment to
sports development of the youth as well as to serve
the need for advertising its business. In the absence
of evidence showing that Cosmos had a hand in the
organization of the race, and took part in the
determination of the route for the race and the
adoption of the action plan, including the safety and
security measures for the benefit of the runners, we
cannot but conclude that the requirement for the
direct or immediate causal connection between the
financial sponsorship of Cosmos and the death of
Rommel simply did not exist. Indeed, Cosmos' mere
sponsorship of the race was, legally speaking, too
remote to be the efficient and proximate cause of
the injurious consequences.
V sports events should exercise utmost diligence in
Damages
Article 2202 of the Civil Code lists the damages that
the plaintiffs in a suit upon crimes and quasi-delicts
can recover from the defendant, viz.:
Art. 2202. In crimes and quasi-delicts, the defendant
shall be liable for all damages which are the natural
and probable consequences of the act or omission
complained of. It is not necessary that such damages
have been foreseen or could have reasonably been
foreseen by the defendant.
Accordingly, Intergames was liable for all damages
that were the natural and probable consequences of
its negligence. In its judgment, the RTC explained the
award of damages in favor of the petitioners, as
follows:
As borne by the evidence on record, the plaintiffs
incurred medical, hospitalization and burial expenses
for their son in this aggregate amount of ₱28,061.65
177 | P a g e
(Exhibits "D'', "D-1" and "D-2"). In instituting this
case, they have paid their lawyer ₱5,000 as initial
deposit, their arrangement being that they would
pay attorney's fees to the extent of 10% of whatever
amount would be awarded to them in this case.
For the loss of a son, it is unquestionable that
plaintiffs suffered untold grief which should entitle
them to recover moral damages, and this Court
believes that if only to assuage somehow their
untold grief but not necessarily to compensate them
to the fullest, the nominal amount of ₱l00,00.00
should be paid by the defendants.
For failure to adopt elementary and basic
precautionary measure to insure the safety of the
participants so that sponsors and organizers of
preventing injury to the participants and the public
as well, exemplary damages should also be paid by
the defendants and this Court considers the amount
of ₱50,000.00
as reasonable.87
Although we will not disturb the foregoing findings
and determinations, we need to add to the
justification for the grant of exemplary damages.
Article 2231 of the Civil Code stipulates that
exemplary damages are to be awarded in cases of
quasi-delict if the defendant acted with gross
negligence. The foregoing characterization by the
RTC indicated that Intergames' negligence was gross.
We agree with the characterization. Gross
negligence, according to Mendoza v. Spouses
Gomez,88 is the absence of care or diligence as to
amount to a reckless disregard of the safety of
persons or property; it evinces a thoughtless
disregard of consequences without exerting any
effort to avoid them. Indeed, the failure of
Intergames to adopt the basic precautionary
measures for the safety of the minor participants like
Rommel was in reckless disregard of their safety.
Conduct is reckless when it is an extreme departure
from ordinary care, in a situation in which a high
degree of danger is apparent; it must be more than
any mere mistake resulting from inexperience,
excitement, or confusion, and more than mere
thoughtlessness or inadvertence, or simple
inattention.89 The RTC did not recognize the right of
the petitioners to recover the loss of earning
capacity of Rommel. It should have, for doing so
would have conformed to jurisprudence whereby
the Court has unhesitatingly allowed such recovery
in respect of children, students and other non-
working or still unemployed victims. The legal basis
for doing so is Article 2206 (l) of the Civil Code, which
stipulates that 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."
Indeed, damages for loss of earning capacity may be
awarded to the heirs of a deceased non-working
victim simply because earning capacity, not
necessarily actual earning, may be lost.
In Metro Manila Transit Corporation v. Court of
Appeals,90 damages for loss of earning capacity were
granted to the heirs of a third-year high school
student of the University of the Philippines
Integrated School who had been killed when she was
hit and run over by the petitioner's passenger bus as
she crossed Katipunan Avenue in Quezon City. The
Court justified the grant in this wise:
Compensation of this nature is awarded not for loss
of earnings but for loss of capacity to earn money.
Evidence must be presented that the victim, if not
yet employed at the time of death, was reasonably
certain to complete training for a specific profession.
In People v. Teehankee, no award of compensation
for loss of earning capacity was granted to the heirs
of a college freshman because there was no
sufficient evidence on record to show that the victim
would eventually become a professional pilot. But
compensation should be allowed for loss of earning
capacity resulting from the death of a minor who has
not yet commenced employment or training for a
specific profession if sufficient evidence is presented
to establish the amount thereor.91 (bold
underscoring supplied for emphasis)
In People v. Sanchez,92 damages for loss of earning
capacity was also allowed to the heirs of the victims
of rape with homicide despite the lack of sufficient
evidence to establish what they would have earned
had they not been killed. The Court rationalized its
judgment with the following observations:
Both Sarmenta and Gomez were senior agriculture
students at UPLB, the country's leading educational
institution in agriculture.1âwphi1 As reasonably
assumed by the trial court, both victims would have
graduated in due course. Undeniably, their untimely
death deprived them of their future time and
earning capacity. For these deprivation, their heirs
are entitled to compensation. xxxx. However,
considering that Sarmenta and Gomez would have
graduated in due time from a reputable university, it
would not be unreasonable to assume that in 1993
they would have earned more than the minimum
wage. All factors considered, the Court believes that
it is fair and reasonable to fix the monthly income
that the two would have earned in 1993 at
₱8,000.000 per month (or ₱96,000.00/year) and
their deductible living and other incidental expenses
at ₱3,000.00 per month (or
178 | P a g e
₱36,000.00/year).93 (bold underscoring supplied for
emphasis)
In Perena v. Zarate,94 the Court fixed damages for
loss of earning capacity to be paid to the heirs of the
15-year-old high school student of Don Bosco
Technical Institute killed when a moving train hit the
school van ferrying him to school while it was
traversing the railroad tracks. The RTC and the CA
had awarded damages for loss of earning capacity
computed on the basis of the minimum wage in
effect at the time of his death. Upholding said
findings, the Court opined:
x x x, the fact that Aaron was then without a history
of earnings should not be taken against his parents
and in favor of the defendants whose negligence not
only cost Aaron his life and his right to work and earn
money, but also deprived his parents of their right to
his presence and his services as well. x x x.
Accordingly, we emphatically hold in favor of the
indemnification for Aaron's loss of earning capacity
despite him having been unemployed, because
compensation of this nature is awarded not for loss
of time or earnings but for loss of the deceased's
power or ability to earn money.
The petitioners sufficiently showed that Rommel
was, at the time of his untimely but much lamented
death, able-bodied, in good physical and mental
state, and a student in good standing.95 It should be
reasonable to assume that Rommel would have
finished his schooling and would turn out to be a
useful and productive person had he not died. Under
the foregoing jurisprudence, the petitioners should
be compensated for losing Rommel's power or
ability to earn. The basis for the computation of
earning capacity is not what he would have become
or what he would have wanted to be if not for his
untimely death, but the minimum wage in effect at
the time of his death. The formula for this purpose
is:
Net Earning Capacity = Life Expectancy x [Gross
Annual Income less Necessary Living Expenses ]96
Life expectancy is equivalent to 2/3 multiplied by the
difference of 80 and the age of the deceased. Since
Rommel was 18 years of age at the time of his death,
his life expectancy was 41 years. His projected gross
annual income, computed based on the minimum
wage for workers in the non-agricultural sector in
effect at the time of his death,97 then fixed at
₱l4.00/day, is ₱5,535.83. Allowing for necessary
living expenses of 50% of his projected gross annual
income, his total net earning capacity is ₱l13,484.52.
Article 2211 of the Civil Code expressly provides that
interest, as a part of damages, may be awarded in
crimes and quasi-delicts at the discretion of the
court. The rate of interest provided under Article
2209 of the Civil Code is 6% per annum in the
absence of stipulation to the contrary. The legal
interest rate of 6% per annum is to be imposed upon
the total amounts herein awarded from the time of
the judgment of the RTC on May 10, 1991 until
finality of judgment.98 Moreover, pursuant to Article
221299 of the Civil Code, the legal interest rate of
6o/o per annum is to be further imposed on the
interest earned up to the time this judgment of the
Court becomes final and executory until its full
satisfaction.100
Article 2208 of the Civil Code expressly allows the
recovery of attorney's fees and expenses of litigation
when exemplary damages have been
awarded.1âwphi1 Thus, we uphold the RTC's
allocation of attorney's fees in favor of the
petitioners equivalent to 10% of the total amount to
be recovered, inclusive of the damages for loss of
earning capacity and interests, which we consider to
be reasonable under the circumstances.
WHEREFORE, the Court PARTLY AFFIRMS the
decision promulgated on March 10, 2004 to the
extent that it absolved COSMOS BOTTLING
COMPANY, INC. from liability; REVERSES and SETS
ASIDE the decision as to INTERGAMES,
INC., and REINSTATES as to it the judgment rendered
on May 10, 1991 by the Regional Trial Court, Branch
83, in Quezon City subject to
the MODIFICATIONS that INTERGAMES, INC. is
ORDERED TO PAY to the petitioners, in addition to
the aw3:rds thereby allowed: (a) the sum of
₱l13,484.52 as damages for the loss of Rommel
Abrogar's earning capacity; (b) interest of 6% per
annum on the actual damages, moral damages,
exemplary damages and loss of earning capacity
reckoned from May 10, 1991 until full payment; (c)
compounded interest of 6% per annum from the
finality of this decision until full payment; and (d)
costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
THIRD DIVISION
G.R. No. 190912, January 12, 2015
GARY FANTASTICO AND ROLANDO
VILLANUEVA, Petitioners, v. ELPIDIO MALICSE, SR.
AND PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
179 | P a g e
PERALTA, J.:
For this Court's consideration is the Petition for
Review on Certiorari1 under Rule 45 of the 1997
Rules of Civil Procedure, dated January 20, 2010 , of
petitioners Gary Fantastico and Rolando Villanueva
assailing the Decision2 dated August 31, 2007 and
Resolution3 dated January 7, 2010 of the Court of
Appeals (CA) in CA-G. R. CR. No. 31719, affirming the
Decision4 dated March 31, 2008 of the Regional Trial
Court, Branch 11, Manila, in Criminal Case No. 93-
127049, finding petitioners guilty of attempted
murder.
The following are the antecedents:
On the afternoon of June 27, 1993, Elpidio Malicse,
Sr. (Elpidio) was outside the house of his sister
Isabelita Iguiron (Isabelita) in Pandacan, Manila
when all of a sudden, he heard Isabelita's son,
Winston, throwing invectives at him. Thus, Elpidio
confronted Isabelita but she also cursed him, which
prompted the former to slap the latter. On that
occasion, Elpidio was under the influence of alcohol.
The Barangay Chairman heard what transpired and
went to the place where the commotion was taking
place in order to pacify those who were involved.
Elpidio was eventually persuaded to go home where
he drank some coffee. Thereafter, Elpidio went back
to the house of Isabelita to offer reconciliation. On
his way there, he passed by the house
of Kagawad Andy Antonio and requested the latter
to accompany him, but was instead told to go back
home, leaving Elpidio to proceed alone.
Upon reaching Isabelita's house, Elpidio saw the
former's son, Titus Iguiron (Titus) and her son-in-law
Gary Fantastico (Gary) and asked the two where he
can find their parents. Titus and Gary responded,
“putang ina mo, and kulit mo, lumayas ka, punyeta
ka.”
In his anger with the response of Titus and Gary,
Elpidio kicked the door open and saw Isabelita's
elder son, Salvador Iguiron (Salvador) behind the
door holding a rattan stick or arnis. Salvador hit
Elpidio on the right side of his head that forced the
latter to bow his head but Salvador delivered a
second blow that hit Elpidio on the right eyebrow.
Salvador attempted to hit Elpidio for the third time
but the latter got hold of the rattan stick and the two
wrestled on the floor and grappled for the
possession of the same rattan stick. Then Titus ran
towards the two and sprayed something on Elpidio's
face. Not being able to free himself from the
clutches of Salvador and to extricate himself, Elpidio
bit Salvador's head.
Gary hit Elpidio on the right side of his head with a
tomahawk axe when the latter was about to go out
of the house. Elpidio tried to defend himself but was
unable to take the tomahawk axe from Gary. Elpidio
walked away from Titus but Gary, still armed with
the tomahawk axe and Salvador, with his arnis,
including Titus, chased him.
Roland (Rolly) Villanueva, without any warning, hit
Elpidio on the back of his head with a lead pipe
which caused the latter to fall on the ground. Elpidio
begged his assailants to stop, but to no avail.
Salvador hit him countless times on his thighs, legs
and knees using the rattan stick. While he was
simultaneously being beaten up by Salvador, Titus,
Gary, Rolly, Nestor, Eugene and Tommy, he tried to
cover his face with his arm. Gary hit him with the
tomahawk axe on his right leg, between the knees
and the ankle of his leg, which caused the fracture
on his legs and knees. Rolly hit Elpidio's head with a
lead pipe, while Tommy hit him with a piece of wood
on the back of his shoulder.
Thereafter, a certain “Mang Gil” tried to break them
off but Titus and Gary shouted at him: “Huwag
makialam, away ng mag-anak ito” and the two
continued to maul Elpidio. The people who
witnessed the incident shouted “maawa na kayo”
but they only stopped battering him when a
bystander fainted because of the incident. Elpidio
then pretended to be dead. It was then that
concerned neighbors approached him and rushed
him to the emergency room of the Philippine
General Hospital (PGH).
Thus, a case for Attempted Murder under Article
248, in relation to Article 6 of the Revised Penal
Code, was filed against Salvador Iguiron, Titus
Malicse Iguiron, Saligan Malicse Iguiron, Tommy
Ballesteros, Nestor Ballesteros, Eugene Surigao and
petitioners Gary Fantastico and Rolando Villanueva.
The Information reads:ChanRoblesVirtualawlibrary
That on or about June 27, 1993, in the City of Manila,
Philippines, the said accused conspiring and
confederating together and helping one another, did
then and there willfully, unlawfully and feloniously,
with intent to kill and with treachery and taking
advantage of superior strength, commence the
commission of the crime of murder directly by overt
acts, to wit: by then and there hitting the head of
Elpidio Malicse, Sr. y de Leon with a piece of rattan,
axe, pipe and a piece of wood and mauling him, but
the said accused did not perform all the acts of
execution which should have produced the crime of
murder, as a consequence, by reason of causes other
than their own spontaneous desistance, that is, the
injuries inflicted upon Elpidio Malicse, Sr. y de Leon
are not necessarily mortal.
They all pleaded “not guilty.” The defense, during
trial, presented the following version of the events
that transpired:
Around 4:30 p.m. of June 27, 1993, Salvador was at
the second floor of their house when he heard his
180 | P a g e
tenth son Winston crying while the latter was being
castigated by Elpidio. He went down and told Elpidio
to come back the next day to settle. His wife
Isabelita called the Barangay Chairman two blocks
away. Barangay Chairman Joseph Ramos and
Elpidio's wife and daughter went to the house and
Elpidio was given warm water, but he showered his
daughter and Winston with it. Elpidio was brought to
his house and the former told
the Barangay Chairman that it was a family problem.
Elpidio went back to the house of Salvador where
Titus was sitting on the sofa. Elpidio asked Titus to
open the door until the former kicked the door open.
Titus escaped through the open door and Salvador
went out of the house because another child was on
the roof, afraid that the said child might fall.
Thereafter, Elpidio went to the street.
According to petitioner Gary Fantastico, he was
inside their house with his wife and Titus when the
incident occurred. He and his wife ran upstairs, while
Titus went out when Elpidio hit the door. Elpidio had
a reputation for hurting people when drunk and
Gary learned that Elpidio was brought to the hospital
because he was mauled by the people.
During trial, one of the accused, Salvador Iguiron
died. Eventually, the trial court, in a Decision dated
March 31, 2008, acquitted Titus Iguiron, Saligan
Iguiron and Tommy Ballesteros but found Gary
Fantastico and Rolando Villanueva guilty beyond
reasonable doubt for Attempted Murder. The
dispositive portion of the said decision
reads:ChanRoblesVirtualawlibrary
WHEREFORE, the foregoing premises considered, the
Court finds Gary Fantastico and Rolando Villanueva
GUILTY of the crime of attempted murder and
sentences them to an indeterminate penalty of
imprisonment of eight (8) years and one (1) day as
minimum, to ten (10) years as maximum. They are
also ordered to pay the actual damages of
P17,300.00 and moral damages of P10,000.00.
Accused Titus Iguiron, Saligan Iguiron and Tommy
Ballesteros ACQUITTED.
SO ORDERED.
After their motion for reconsideration was denied,
petitioners appealed the case to the CA, but the
latter court affirmed the decision of the RTC and
disposed the case as
follows:ChanRoblesVirtualawlibrary
WHEREFORE, finding no reversible error in the
decision appealed from, we hereby AFFIRM the
same and DISMISS the instant appeal.
SO ORDERED.
A motion for reconsideration was filed, but it was
denied by the same court.
Hence, the present petition.
Petitioners stated the following
arguments:ChanRoblesVirtualawlibrary
THE CONCLUSIONS DRAWN BY THE COURT OF
APPEALS AND THE TRIAL COURT FROM THE FACTS
OF THE CASE ARE INCORRECT.
THE INFORMATION ITSELF IN THIS CASE DOES NOT
ALLEGE ALL THE ELEMENTS AND THE NECESSARY
INGREDIENTS OF THE SPECIFIC CRIME OF
ATTEMPTED MURDER.
NOT ALL OF THE ELEMENTS OF ATTEMPTED
MURDER ARE PRESENT IN THIS CASE.
THERE IS NO TREACHERY OR ANY OTHER
QUALIFYING CIRCUMSTANCE TO SPEAK OF IN THIS
CASE.
THE LOWER COURT AND THE COURT OF APPEALS
FAILED TO CONSIDER THE PRESENCE OF MITIGATING
CIRCUMSTANCES.
THERE ARE MANIFEST MISTAKES IN THE FINDINGS
OF FACTS BY THE COURT OF APPEALS AND THE TRIAL
COURT.
THE CONVICTION OF THE PETITIONERS WAS BASED
ON THE WEAKNESS OF THE DEFENSE EVIDENCE, NOT
ON THE STRENGTH OF THE PROSECUTION EVIDENCE.
THE TESTIMONY OF THE RESPONDENT THAT IT WAS
THE PETITIONERS WHO ATTACKED HIM IS INDEED
UNCORROBORATED AND THUS SELF-SERVING.
CLEARLY, THERE ARE SO MUCH REVERSIBLE ERRORS
IN THE DECISION OF THE COURT OF APPEALS AND
THE LOWER COURT THAT INJURIOUSLY AFFECTED
THE SUBSTANTIAL RIGHTS OF THE PETITIONERS AND
THESE SHOULD BE CORRECTED BY THIS HONORABLE
COURT.
At the outset, it bears stressing that under the Rules
of Court, an appeal by certiorari to this Court should
only raise questions of law distinctly set forth in the
petition.5chanRoblesvirtualLawlibrary
In the present case, the issues and arguments
presented by the petitioners involve questions of
facts. Therefore, the present petition is at once
dismissible for its failure to comply with the
requirement of Rule 45 of the Rules of Court, that
the petition should only raise questions of law.
The distinction between a “question of law” and a
“question of fact” is settled. There is a “question of
law” when the doubt or difference arises as to what
the law is on a certain state of facts, and which does
not call for an examination of the probative value of
the evidence presented by the parties-litigants. On
the other hand, there is a “question of fact” when
the doubt or controversy arises as to the truth or
falsity of the alleged facts. Simply put, when there is
181 | P a g e
no dispute as to fact, the question of whether or not
the conclusion drawn therefrom is correct, is a
question of law.6chanRoblesvirtualLawlibrary
At any rate, the arguments of herein petitioners
deserve scant consideration.
It is the contention of the petitioners that the
Information filed against them was defective
because it did not state all the elements of the crime
charged. However, a close reading of the
Information would show the contrary. The
Information partly reads:ChanRoblesVirtualawlibrary
x x x but the said accused did not perform all the acts
of the execution which should have produced the
crime of murder, as a consequence, by reason of
causes other than their own spontaneous
desistance, that is, the injuries inflicted upon Elpidio
Malicse, Sr. y de Leon are not necessarily mortal.
From the above-quoted portion of the Information,
it is clear that all the elements of the crime of
attempted murder has been included.
The last paragraph of Article 6 of the Revised Penal
Code defines an attempt to commit a felony,
thus:ChanRoblesVirtualawlibrary
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.7chanRoblesvirtualLawlibrary
The essential elements of an attempted felony are as
follows:
The offender commences the commission of the
felony directly by overt acts;
He does not perform all the acts of execution which
should produce the felony;
The offender's act be not stopped by his own
spontaneous desistance;
The non-performance of all acts of execution was
due to cause or accident other than his spontaneous
desistance.8
The first requisite of an attempted felony consists of
two (2) elements,
namely:ChanRoblesVirtualawlibrary
(1) That there be external acts;
(2) Such external acts have direct connection with
the crime intended to be committed.9
The Court in People v. Lizada10 elaborated on the
concept of an overt or external act,
thus:ChanRoblesVirtualawlibrary
An overt or external act is defined as some physical
activity or deed, indicating the intention to commit a
particular crime, more than a mere planning or
preparation, which if carried out to its complete
termination following its natural course, without
being frustrated by external obstacles nor by the
spontaneous desistance of the perpetrator, will
logically and necessarily ripen into a concrete
offense. The raison d'etre for the law requiring a
direct overt act is that, in a majority of cases, the
conduct of the accused consisting merely of acts of
preparation has never ceased to be equivocal; and
this is necessarily so, irrespective of his declared
intent. It is that quality of being equivocal that must
be lacking before the act becomes one which may be
said to be a commencement of the commission of
the crime, or an overt act or before any fragment of
the crime itself has been committed, and this is so
for the reason that so long as the equivocal quality
remains, no one can say with certainty what the
intent of the accused is. It is necessary that the overt
act should have been the ultimate step towards the
consummation of the design. It is sufficient if it was
the "first or some subsequent step in a direct
movement towards the commission of the offense
after the preparations are made." The act done need
not constitute the last proximate one for
completion. It is necessary, however, that the
attempt must have a causal relation to the intended
crime. In the words of Viada, the overt acts must
have an immediate and necessary relation to the
offense.11
Petitioners question the inclusion of the phrase “not
necessarily mortal” in the allegations in the
Information. According to them, the inclusion of that
phrase means that there is an absence of an intent
to kill on their part. Intent to kill is a state of mind
that the courts can discern only through external
manifestations, i.e., acts and conduct of the accused
at the time of the assault and immediately
thereafter. In Rivera v. People,12 this Court
considered the following factors to determine the
presence of an intent to kill: (1) the means used by
the malefactors; (2) the nature, location, and
number of wounds sustained by the victim; (3) the
conduct of the malefactors before, at the time, or
immediately after the killing of the victim; and (4)
the circumstances under which the crime was
committed and the motives of the accused. This
Court also considers motive and the words uttered
by the offender at the time he inflicted injuries on
the victim as additional determinative factors.13 All
of these, were proven during the trial. Needless to
say, with or without the phrase, what is important is
that all the elements of attempted murder are still
alleged in the Information. Section 6, Rule 110 of the
Rules on Criminal Procedure
states:ChanRoblesVirtualawlibrary
Sec. 6. Sufficiency of complaint or information. – 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
182 | P a g e
commission of the offense; and the place wherein was dull? (sic)
the offense was committed.
A. I also used that.
In any case, it is now too late for petitioners to assail
the sufficiency of the Information on the ground that
Q. Where do you usually keep that in the house of
the elements of the crime of attempted murder are
lacking. Section 9, Rule 117 of the Rules of Court Iguiron?
provides:ChanRoblesVirtualawlibrary
A. In the kitchen.
SEC. 9. Failure to move to quash or to allege any
ground therefor.- The failure of the accused to assert
any ground of a motion to quash before he pleads to Q. How far is that kitchen from where Gary emerged
from?
the complaint or information, either because he did
not file a motion to quash or failed to allege the
same in said motion, shall be deemed a waiver of A. He is right in the kitchen.
any objections except those based on the grounds
Q. Then what happened?
provided for in paragraphs (a), (b), (g), and (i) of
section 3 of this Rule.
A. When I was able to free myself from Salvador,
Anent the probative value and weight given to the Gary Iguiron was hiding in the kitchen door and
testimony of Elpidio by the CA and the RTC, the same holding a tomhack (sic) whose edge is dull and he hit
is not ridden with any error. In People v.
me on my right side and my head and I got injury
Alvarado,14 we held that greater weight is given to (sic) and blood profusely oozing, I want to get hold of
the positive identification of the accused by the the tomhawk (sic).
prosecution witness than the accused's denial and
explanation concerning the commission of the crime.
Q. Were you able to get of the tomhawk (sic) from
This is so inasmuch as mere denials are self-serving Gary?
evidence that cannot obtain evidentiary weight
greater than the declaration of credible witnesses A. No sir.16chanRoblesvirtualLawlibrary
who testified on affirmative
matters.15chanRoblesvirtualLawlibrary xxxx
It is clear from the records that Elpidio was able to
Q. You said while on that street somebody hit you
make a positive identification of the petitioners as from behind, who was that?
the assailants, thus:ChanRoblesVirtualawlibrary
Q. Then what happened next Mr. Witness? A. Rolly Villanueva.
A. When I was able to free myself from Salvador Q. Why do you say that it was Rolly Villanueva,
Iguiron, I got out of the door of the house, then, I considering that it was hit from behind?
saw Gary was hiding in the kitchen door holding an
axe. Tonahawk with blade of ax was dull and had a
A. Because they were about 5 of them at the main
handle of one foot, with the diameter of one inch. gate of the compound.
Q. Why did you know that the ax blade of the tom
Q. Who are they?
A. Rolando Villanueva, Nestor Ballesteros, Tommy
Ballesteros, Eugene Surigao, Saligan Iguiron.
Q. You said you were hit by Rolando from behind, do
you have occasion to see first before you were hit?
A. When I was hit I fell down and I was able to see
who hit (sic0, I saw him.
Q. When you fell down, you were able to realize it
was Rolando Villanueva who hit you, you mean you
realized what he used in hitting you from behind?
A. It was a pipe. 1/2 inch thick, 24 inches in length.
Q. You said you fell down because of the blow of
Rolando Villanueva and you saw him holding that
pipe, how was he holding the pipe when you saw
him?
A. When I fell down he was about trying to hit me
again.17
In connection therewith, one must not forget the
well entrenched rule that findings of facts of the trial
court, its calibration of the testimonial evidence of
the parties as well as its conclusion on its findings,
are accorded high respect if not conclusive effect.
This is because of the unique advantage of the trial
court to observe, at close range, the conduct,
demeanor and deportment of the witness as they
testify.18 The rule finds an even more stringent
application where the said findings are sustained by
the Court of Appeals.19chanRoblesvirtualLawlibrary
It is also of utmost significance that the testimony of
Elpidio is corroborated by the medico-legal findings
as testified by Dr. Edgar Michael Eufemio, PGH Chief
Resident Doctor of the Department of Orthopedics.
183 | P a g e
He testified as to the
following:ChanRoblesVirtualawlibrary
Q. And as head of that office, Mr. Witness, why are
you here today?
A. Actually, I was called upon by the complainant to
rectify regarding, the findings supposedly seen when
he was admitted and when I saw him in one of the
sessions of our Out Patient Department.
Q. When was this follow-up session at your
department did you see this complainant?
A. Based on the chart, I think it was four (4) months
post injury when I first saw the patient.
Q. Why does he has (sic) to make a follow up in your
department?
A. Based on this chart, he sustained bilateral leg
fractures which necessitated casting. Normally,
casting would take around three (3) months only but
since the nature of his fracture was relatively
unstable, I think it necessitated prolong
immobilization in a case.
PROSECUTOR TEVES:
Q. Did you personally attend on his needs on that
date when you saw him?
A. Yes, ma'am.
Q. And what could have been the cause of these
injuries he sustained?
A. I think one of his leg has close fracture, meaning,
probably it was caused by a blunt injury rather than
a hacking injury, one on the left side, with an open
wound which was very much compatible with a hack
at the leg area.20
Petitioners also claim that the prosecution was not
able to prove the presence of treachery or any other
qualifying circumstance.
In this particular case, there was no treachery. There
is treachery when the offender commits any of the
crimes against persons, employing means, methods,
or forms in the execution, which tend directly and
specially to insure its execution, without risk to the
offender arising from the defense which the
offended party might make. The essence of
treachery is that the attack comes without a warning
and in a swift, deliberate, and unexpected manner,
affording the hapless, unarmed, and unsuspecting
victim no chance to resist or escape. For treachery to
be considered, two elements must concur: (1) the
employment of means of execution that gives the
persons attacked no opportunity to defend
themselves or retaliate; and (2) the means of
execution were deliberately or consciously
adopted.21 From the facts proven by the
prosecution, the incident was spontaneous, thus, the
second element of treachery is wanting. The
incident, which happened at the spur of the
moment, negates the possibility that the petitioners
consciously adopted means to execute the crime
committed. There is no treachery where the attack
was not preconceived and deliberately adopted but
was just triggered by the sudden infuriation on the
part of the accused because of the provocative act of
the victim.22chanRoblesvirtualLawlibrary
The RTC, however, was correct in appreciating the
qualifying circumstance of abuse of superior
strength, thus:ChanRoblesVirtualawlibrary
In the case at bar, the prosecution was able to
establish that Salvador Iguiron hit Elpidio Malicsi, Sr.
twice on the head as he was entered (sic) the house
of the former. Gary Fantastico hit the victim on the
right side of the head with an axe or tomahawk. The
evidence also show that Rolando “Rolly” Villanueva
hit the victim on the head with a lead pipe. And
outside while the victim was lying down, Gary hit the
legs of the victim with the tomahawk. lvador also hit
the victim with the rattan stick on the thighs, legs
and knees. And Titus Iguiron hit the victim's private
organ with a piece of wood. The Provisional Medical
Slip (Exh. “D”), Medico Legal Certificate and Leg
Sketch (Exh. “D-2”) and the fracture sheet (Exh. “D-
4”) all prove that the victim suffered injuries to both
legs and multiple lacerations on his head. The injury
on one leg which was a close fracture was caused by
a blunt instrument like a piece of wood. This injury
was caused by Salvador Iguiron. The other leg
suffered an open fracture caused by a sharp object
like a large knife or axe. This was caused by Gary
Fantastico who used the tomahawk or axe on the
victim. The multiple lacerations on the head were
caused by Gary, Rolly and Salvador as it was proven
that they hit Elpidio on the head. There is no
sufficient evidence that the other, accused, namely
Saligan Iguiron Y Malicsi, Tommy Ballesteros, Nestor
Ballesteros and Eugene Surigao harmed or injured
the victim. Titus having sprayed Elpidio with the tear
gas is not sufficiently proven. Neither was the
alleged blow by Titus, using a piece of wood, on the
victim's private organ sufficiently established as the
medical certificate did not show any injury on that
part of the body of the victim.
The said injuries inflicted on the complainant after
he went back to his sister Isabelita's house. When he
kicked the door, the melee began. And the sequence
of the injuries is proven by victim's testimony. But it
was a lopsided attack as the victim was unarmed,
while his attackers were all armed (rattan stick,
tomahawk and lead pipe). And the victim was also
drunk. This establishes the element of abuse of
superior strength. The suddenness of the blow
inflicted by Salvador on Elpidio when he entered the
premises show that the former was ready to hit the
victim and was waiting for him to enter. It afforded
184 | P a g e
Elpidio no means to defend himself. And Salvador
consciously adopted the said actuation. He hit
Elpidio twice on the head. Treachery is present in
this case and must be considered an aggravating
circumstance against Salvador Iguiron. Rolly
Villanueva, Gary Fantastico and Salvador Iguiron
were all armed while Elpidio, inebriated, had nothing
to defend himself with. There is clearly present here
the circumstance of abuse of superior
strength.23 (Emphasis supplied)
Abuse of superior strength is present whenever
there is a notorious inequality of forces between the
victim and the aggressor, assuming a situation of
superiority of strength notoriously advantageous for
the aggressor selected or taken advantage of by him
in the commission of the crime."24 "The fact that
there were two persons who attacked the victim
does not per se establish that the crime was
committed with abuse of superior strength, there
being no proof of the relative strength of the
aggressors and the victim."25 The evidence must
establish that the assailants purposely sought the
advantage, or that they had the deliberate intent to
use this advantage.26 "To take advantage of superior
strength means to purposely use excessive force out
of proportion to the means of defense available to
the person attacked."27 The appreciation of this
aggravating circumstance depends on the age, size,
and strength of the
parties.28chanRoblesvirtualLawlibrary
Anent the penalty imposed by the RTC and affirmed
by the CA, which is an indeterminate penalty of eight
(8) years and one (1) day as minimum, to ten (10)
years as maximum and ordered them to pay actual
damages of P17,300.00 and moral damages of
P10,000.00, this Court finds an obvious error.
For the crime of attempted murder, the penalty shall
be prision mayor, since Article 51 of the Revised
Penal Code states that a penalty lower by two
degrees than that prescribed by law for the
consummated felony shall be imposed upon the
principals in an attempt to commit a felony.29 Under
the Indeterminate Sentence Law, the maximum of
the sentence shall be that which could be properly
imposed in view of the attending circumstances, and
the minimum shall be within the range of the
penalty next lower to that prescribed by the Revised
Penal Code. Absent any mitigating or aggravating
circumstance in this case, the maximum of the
sentence should be within the range of prision
mayor in its medium term, which has a duration of
eight (8) years and one (1) day to ten (10) years; and
that the minimum should be within the range
of prision correccional, which has a duration of six (6)
months and one (1) day to six (6) years. Therefore,
the penalty imposed should have been
imprisonment from six (6) years of prision
correccional, as minimum, to eight (8) years and one
(1) day of prision mayor, as maximum.
WHEREFORE, the Petition for Review
on Certiorari dated January 20, 2010 of petitioners
Gary Fantastico and Rolando Villanueva is
hereby DENIED. Consequently, the Decision dated
August 31, 2007 and Resolution dated January 7,
2010 of the Court of Appeals are
hereby AFFIRMED with the MODIFICATION that the
petitioners are sentenced to an indeterminate
penalty of imprisonment from six (6) years of prision
correccional, as minimum, to eight (8) years and one
(1) day of prision mayor, as maximum. Petitioners
are also ORDERED to pay P17,300.00 as actual
damages, as well as P10,000.00 moral damages as
originally ordered by the RTC. In addition, interest is
imposed on all damages awarded at the rate of six
percent (6%) per annum from date of finality of
judgment until fully paid.
SO ORDERED.cralawlawlibrary
Velasco, Jr., (Chairperson), Villarama, Jr., Reyes,
and Jardeleza, JJ., concur.
FIRST DIVISION
G.R. No. 206632, February 14, 2018
EDEN ETINO, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
DEL CASTILLO, J.:
We resolve this Petition for Review
on Certiorari under Rule 45 of the Rules of Court,
assailing the August 29, 2012 Decision1 and the
March 11, 2013 Resolution2 of the Court of Appeals
(CA) in CA-G.R. CR No. 00896. The CA affirmed with
modification the January 14, 2008 Decision3 of the
Regional Trial Court (RTC), Branch 29, Iloilo City,
which found petitioner Eden Etino guilty beyond
reasonable doubt of the crime of frustrated
homicide, in that the CA ordered petitioner to pay
the victim P25,000.00 as moral damages and
P10,000.00 as temperate damages.
The Antecedent Facts
Petitioner was charged with the crime of frustrated
homicide in an Information4 dated June 19, 2003
which reads:
That on or about the 5th day of November 2001, in
the Municipality of Maasin, Province of Iloilo,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed
with an unlicensed firearm of unknown caliber, with
deliberate intent and decided purpose to kill, did
then and there willfully, unlawfully and feloniously
attack, assault and shoot JESSIEREL LEYBLE with said
185 | P a g e
unlicensed firearm he was then provided at the time,
hitting and inflicting upon the victim gunshot
wounds on the different parts of ills body, thus
performing all the acts of execution which would
produce the crime of homicide as a consequence but
which nevertheless did not produce it by reason of
some cause or causes independent of the will of the
accused, that is, by the timely medical attendance
rendered to the said Jessierel Leyble which
prevented his death.
Upon arraignment, petitioner entered a plea of not
guilty.5 Trial thereafter ensued.
The Evidence for the Prosecution
The prosecution's evidence consists mainly of the
testimonies of complainant Jessierel Leyble (Leyble),
Isidro Maldecir (Maldecir), and Nida Villarete Sonza
(Sonza), the Administrative and Medical Officer of
the West Visayas State University Medical Center
(WVSUMC).
During the trial, Leyble testified that, "at about 4:30
o'clock in the afternoon of November 5, 2001, while
he and his companions[,] Isidro Maldecir and Richard
Magno[,] were walking on their way home to Bgy.
[sic] Pispis, Maasin, Iloilo, he was shot with a 12
gauge shotgun by the [petitioner,] Eden Etino[,]
hitting the back portion of his right shoulder and
other parts of his body."6
Leyble's testimony was corroborated by Maldecir
who categorically stated that Leyble was shot by
petitioner from behind, and was thereafter brought
to the Don Benito Lopez Memorial Hospital (now
known as the WVSUMC) for treatment. 7
To prove the injuries suffered by Leyble, the
prosecution presented Sonza "in her capacity as [the
officer] in-charge of the security of all the medical
records of the patients [in the WVSUMC] for the
reason that Dr. Rodney Jun Garcia, then Chief
Resident, Surgery Department, [WVSUMC], who
treated [Leyble was] unable to testify as he is now
based in General Santos City."8
In compliance with the Subpoena Duces
Tecum9 issued by the RTC on February 22, 2005,
Sonza brought the medical records of Leyble to court
which included: a) Medical Certificate10 dated
December 20, 2001, b) Trauma Sheet11 dated
November 5, 2001, c) Admission and [Discharge]
Record12 and d) Operative Records13 dated
November 16, 2001, and certified the same to be
true and faithful reproductions of the original
documents.14
The Evidence for the Defense
The defense presented the testimonies of Bautista
Etino, Wenifred Besares, Joeseryl Masiado and of
petitioner himself to prove his alibi.15
The witnesses testit1ed that, "at about 4:30 in the
afternoon of November 5, 2001, [petitioner] was
with Bgy. [sic] Captain Manuel Bomejan, Wenifredo
Besares and [Bautista Etino at] the house of the
latter which was situated about one kilometer away
from where they heard shots that afternoon."16 They
also alleged that the filing of the criminal complaint
was precipitated by a pending Comelec17 gun-ban
case before the RTC filed against Leyble, wherein
petitioner was the witness.18
The Regional Trial Court Ruling
In its January 14, 2008 Decision,19 the RTC found
petitioner guilty beyond reasonable doubt of the
crime of frustrated homicide. It ruled that petitioner
was positively identified as the perpetrator of the
crime charged against him, especially so, when the
complainant, Leyble, was alive to tell what actually
happened.20
Accordingly, the RTC sentenced petitioner to suffer
the penalty of imprisonment 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. Notably, it did not
award any damages in favor of Leyble, as it found
that the prosecution had failed to discharge its
burden of presenting evidence on the civil aspect of
the case.21
The Court of Appeals Ruling
On appellate review, the CA affirmed with
modification the RTC Decision in that, it ordered
petitioner to pay Leyble the amounts of P25,000.00
as moral damages and P10,000.00 as temperate
damages.22
The CA ruled that "the trial court did not err in giving
full weight and credence to the testimonies of the
prosecution witnesses. Evaluation of the testimonies
of the prosecution witnesses amply [showed] that
Jessierel Leyble succinctly but clearly narrated how
he was shot and he also categorically identified
[petitioner] as his assailant."23
In addition, the CA held that the mere delay in the
filing of the complaint did not necessarily undermine
the credibility of witnesses; and in this case, the fear
of reprisal explained why it took some time for
Leyble to file the complaint and to finally reveal the
identity of his assailant.24
TI1e CA also rejected petitioner's claim that Leyble
filed the case against him because he testified
against the latter in the Comelec gun-ban case. It
explained that "[e]ven assuming that there was a
grudge between Leyble and [petitioner], that [did]
not automatically render the testimony of Leyble
186 | P a g e
unbelievable. Moreover, considering that Leyble had
positively identified [petitioner], whom he [knew]
from childhood, as his assailant, motive [was] no
longer essential or relevant."25
Finally, the CA held that Leyble was entitled to moral
damages, as it was clear from his testimony that he
sustained gunshot wounds on his shoulder; and to
temperate damages for the medical treatment he
received but for which no documentary evidence
was presented to prove the actual costs thereof. 26
Petitioner moved for reconsideration, but the CA
denied the motion in its Resolution27 dated March
11, 2013. As a consequence, petitioner filed the
present Petition for Review on Certiorari before the
Court, assailing the CA's August 29, 2012
Decision28 and the March 11, 2013 Resolution.
The Issues
Petitioner raises the following issues tor the Court's
consideration:
First, whether the CA erred in holding that his guilt
for the charged crime of frustrated homicide was
proven beyond reasonable doubt, since the
physician who examined the victim was not
presented in court;
Second, whether the CA erred when it found the
testimonies of petitioner and his witnesses to be
incredible and unbelievable; and,
Third, whether the CA erred when it disregarded
petitioner's defenses, i.e., the lapse of unreasonable
time for Leyble to file the complaint against him, the
failure of Leyble to positively identify him as the
assailant, and Leyble's motive in filing the case
against him.
The Court's Ruling
At the outset, we clarify that questions of fact, as a
rule, cannot be entertained in a Rule 45 petition,
where the Court's jurisdiction is limited to reviewing
and revising errors of law that might have been
committed by the lower courts.29 Nevertheless,
when it appears that the assailed judgment is based
on a misapprehension of facts, and the findings of
the lower courts are conclusions without citation of
specific evidence on which they are based,30 as in this
case, the Court may probe questions of fact in a Rule
45 proceeding.
Article 6 of the Revised Penal Code defines the
stages of a felony as follows:
ART. 6. Consummated, frustrated, and attempted
felonies. - Consummated felonies, as well as those
which are frustrated and attempted, are punishable.
A felony is consummated when all the elements
necessary for its execution and accomplishment are
present; and it is frustrated when the offender
performs all the acts of execution which would
produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
There is an attempt when the offender commences
the commission of felony directly by overt acts, and
does not perform all the acts of execution which
should produce the felony by reason of some cause
or accident other than his own spontaneous
desistance. (Emphasis supplied)
In Palaganas v. People,31 the Court outlined the
distinctions between a frustrated and an attempted
felony:
1.) In frustrated felony, the offender has
performed all the acts of execution which
should produce the felony as a consequence;

whereas in attempted felony, the offender
merely commences the commission of a
felony directly by overt acts and does not
perform all the acts of execution.
2.) In frustrated felony, the reason for the non-
accomplishment of the crime is some cause
independent of the will of the perpetrator; on
the other hand, in attempted felony, the
reason for the non-fulfillment of the crime is a
cause or accident other than the offender's
own spontaneous desistance.
In addition to these distinctions, we have ruled in
several cases that when the accused intended to kill
his victim, as manifested by his use of a deadly
weapon in his assault, and his victim sustained fatal
or mortal wound/s but did not die because of timely
medical assistance, the crime committed is
frustrated murder or frustrated homicide depending
on whether or not any of the qualifying
circumstances under Article 249 of the Revised Penal
Code are present. However, if the wound/s
sustained by the victim in such a case were not fatal
or mortal, then the crime committed is only
attempted murder or attempted homicide. If there
was no intent to kill on the part of the accused and
the wound/s sustained by the victim were not fatal,
the crime committed may be serious, less serious or
slight physical injury.32 (Emphasis supplied)
Thus, in order to determine whether the crime
committed is attempted or frustrated parricide,
murder or homicide, or only lesiones (physical
injuries), the crucial points to consider are:
a) whether the injury sustained by the victim was
fatal, and b) whether there was intent to kill on the
part of the accused.33
No proof of the extent of injury sustained by the
187 | P a g e
victim [b)] the nature, location and number of
wounds sustained by the victim;
It is settled that "where there is nothing in the
evidence to show that the wound would be fatal if [c)] the conduct of the malefactors before, at
not medically attended to, the character of the the time, or immediately after the killing of
wound is doubtful," and such doubt should be the victim;
resolved in favor of the accused.34
[(d)] the circumstances under which the crime
was committed; and,
In this case, we find that the prosecution failed to
present evidence to prove that the victim would [e)] the motives of the accused.43
have died from his wound without timely medical
Moreover, the Court held in Rivera that intent to kill
assistance, as his Medical Certificate35 alone, absent
is only presumed if the victim dies as a result of a
the testimony of the physician who diagnosed and
deliberate act of the malefactors.44
treated him, or any physician for that
matter,36 is insufficient proof of the nature and
Although it was sufficiently shown that petitioner
extent of his injury. This is especially true, given that
fired a 12 gauge shotgun at the victim, there was
said Medical Certificate merely stated the victim's
simply no other evidence on record that tended to
period of confinement at the hospital, the location of
prove that petitioner had animus interficendi or
the gunshot wounds, the treatments he received,
intent to kill the victim. On the contrary, none of the
and his period of healing.37
prosecution's witnesses testified that petitioner had
indeed aimed and fired the shotgun to kill the victim.
Without such proof, the character of the gunshot
wounds that the victim sustained enters the realm of
It is to be noted, likewise, that petitioner only fired
doubt, which the Court must necessarily resolve in
a single shot45 at closerange,46 but did not hit any
favor of petitioner.38
vital part of the victims body - the victim's wounds,
based on his Medical Certificate, were located at the
The intent to kill was not sufficiently established
right deltoid (through and through) and the left
shoulder47 - and he immediately fled the scene right
"The assailant's intent to kill is the main element that
after the shooting.48 These acts certainly do not
distinguishes the crime of physical injuries from the
suggest that petitioner had intended to kill the
crime of homicide. The crime can only be
victim; for if he did, he could have fired multiple
homicide if the intent to kill is proven."39 The intent
shots to ensure the latter's demise.
to kill must be proven "in a clear and evident manner
[so as] to exclude every possible doubt as to the
Besides, by the victim's own narration of events, it
homicidal intent of the aggressor."40
appears that he did not sustain any fatal injury as a
result of the shooting considering that he and his
In Rivera v. People,41 the Court ruled that "[i]ntent to
companions even went in pursuit of petitioner after
kill is a specific intent which the prosecution must
the incident, viz.:
prove by direct or circumstantial evidence", 42 which
may consist of: [ASST. PROV. PROS. GUALBERTO BALLA]
[a)] the means used by the malefactors;
 Q: After Eden Etino shot you, what happened
afterwards?
A: I shouted to my companion to help me
because I have injuries.
Q: Did they help you at that particular instance?
A: Yes sir.
Q: How about Eden Etino, what did he do Mr.
Witness?
A: When we ran to the hilly portion, they were
no longer there.49 (Emphasis supplied)
Under these circumstances, we cannot reasonably
conclude that petitioner's use of a firearm was
sufficient proof that he bad intended to kill the
victim. After all, it is settled that "[i]ntent to
kill cannot be automatically drawn from the mere
fact that the use of firearms is dangerous to
life."50 Rather, "[a]nimus interficendi must be
established with the same degree of certainty as is
required of the other elements of the crime. The
inference of intent to kill should not be drawn in the
absence of circumstances sufficient to prove such
intent beyond reasonable doubt."51
This is not to say that petitioner is without any
criminal liability. When the intent to kill is lacking,
but wounds are shown to have been inflicted upon
the victim, as in this case, the crime is not frustrated
or attempted homicide but physical injuries
only.52 Since the victim's period of incapacity and
healing of his injuries was more than 30 days - he
was confined at the hospital from November 5 to 25,
2001, or for 20 days, and his period of healing was
"two (2) to four (4) weeks barring complications"53 -
the crime committed is serious physical
188 | P a g e
injuries under Article 263, par. 4 of the Revised Penal
Code.54
Petitioner's Defenses
We reject petitioner's contention that the
prosecution failed to identify him as the victim's
assailant, given that he "was not identified and never
mentioned [in the police blotter] as the one who
shot the victim" even though it was the victim
himself who personally reported the incident to the
authorities.55
Based on the Police Blotter dated January 18, 2002,
the victim had identified petitioner and his
companions as his assailants during the November 5,
2001 shooting incident, viz.:
9:20 AM - (Shooting Incident) Jessirel Leyble y
Subade, 25 years old, single, and a resident of Brgy[.]
Pispis, Maasin, Iloilo reported personally to this
Office alleging that last November 5, 2001 at around
4:30 P.M. while he was on their [sic] way home at
Brgy[.] Pispis, this Municipality[,] was waylaid and
shot with a firearms [sic] by the group of Eden Etino,
Bautista Etino, Joeserel Masiado, Alfredo Jabadan,
Wiliam Besarcs and Wenefredo Besares, all resident
[sic] of the same place. As a result, he sustained
gunshot wounds on the back portion of his body and
was confined at West Visayas State University
Hospital, Jaro, Iloilo City.56
In addition, the prosecution's witnesses never
wavered in their positive identification of petitioner
as the victim's assailant. The pertinent portion of the
victim's testimony is quoted below:
[ASST. PROV. PROS. GUALBERTO BALLA]
Q: Do you know the accused Eden Etino?
A: Yes, sir.
Q: If he is inside the courtroom[,] can you point
to him?
A: There.
Court Interpreter:
Witness is pointing to a person inside the
courtroom who, when asked[,] answered to
the name Eden Etino.
PROS. BALLA
Q: For how long have you known the accused in
this case?
A: Since childhood.
xxxx
Q: Who shot you Mr. Witness?
A: Eden Etino[.]57 (Emphasis supplied)
We also consider the following pieces of evidence
which amply support petitioner's positive
identification as the assailant in this case: first, the
manner of attack was done at close-range,58 and the
victim was able to turn around right after the shot
was fired;59 second, the shooting incident happened
in broad daylight (at around 4:30 in the
afternoon)60 in an open field,61 so the assailant could
clearly be seen; and third, the victim could readily
identify petitioner as his assailant because they had
known each other since childhood.62
Given these circumstances, we find petitioner's
identification as the victim's assailant to be positive
and conclusive. As a result, the defenses of denial
and alibi raised by petitioner must necessarily fail.
After all, "[a]libi and denial are inherently weak
defenses and must be brushed aside when the
prosecution has sufficiently and positively
ascertained the identity of the accused. And it is only
axiomatic that positive testimony prevails over
negative testimony."63
We likewise reject petitioner's claim that the delay in
the filing of the complaint against him generates
doubt as to his guilt. It is settled that the failure to
file a complaint to the proper authorities
would not impair the credibility of the
complainant if such delay was satisfactorily
explained.64 In this case, the victim testified that he
filed the case after noticing that petitioner was still
after him:
[ATTY. EDGAR SUMIDO]
Q: This incident happened on November 5, 2001
and it was only filed March 6, 2003?
A: At first, I did not intend to file a case against
him because I thought they will settle the
case, but later I noticed that he was after me.
Q: What do you mean by the word that the
accused is after you, Mr. Witness?
A: Because when I met him, he waylaid me.
xxxx
Q: But you stated before that the reason you
filed this case [was] because the accused is
after you?
189 | P a g e
The reason that you filed this case [was]
because you thought that the accused [was]
after you?
A: Because last month, he even intended to do
something against me.65 (Emphasis supplied)
The victim's initial reluctance to file the complaint is
not uncommon, considering "the natural reticence of
most people to get involved in a criminal
case."66 Fear of reprisal, too, is deemed as a valid
excuse for the temporary silence of a prosecution
witness (or in this case, the victim) and has been
judicially declared to not have any effect on his
credibility.67
Finally, we find no sufficient evidence on record to
support petitioner's claim that the victim had ill
motives to falsely institute the complaint and testify
against him. Even assuming arguendo that the victim
held a grudge against petitioner for having testified
against him in another case,68 the existence of such
grudge would not automatically render his testimony
in this case false and unreliable.69 "In the absence of
any showing that a witness was actuated by malice
or other improper motives, his positive and
categorical declarations on the witness stand under
a solemn oath deserve full faith and credence."70
The Proper Penalty
Under Article 263, par. 4, of the Revised Penal Code,
"[a]ny person who shall wound, beat, or assault
another, shall be guilty of the crime of serious
physical injuries and shall suffer" "[t]he penalty
of arresto mayor in its maximum period to prision
correccional in its minimum period [which ranges
from four (4) months and one (1) day to two (2)
years and four (4) months], if the physical injuries
inflicted shall have caused the illness or incapacity
for labor of the injured person for more than thirty
days."71
"Under the Indeterminate Sentence law,
the maximum term of the indeterminate sentence
shall be taken, in view of the attending
circumst1nces that could be properly imposed under
the rules of the Revised Penal Code, and
the minimum term shall be within the range of the
penalty next lower to that prescribed by the Revised
Penal Code."72
In the absence of any modifying circumstance, the
maximum term of the indeterminate sentence in this
case shall be taken within the medium period73 of
the penalty prescribed under Article 263, par. 4, or
one (1) year and one (1) day to one (1) year and
eight (8) months of prision correccional. The
minimum term shall be taken within the range
of arresto mayor in its minimum and medium
periods74 or from one (1) month and one (1) day to
four (4) months.
The Civil Liabilities
Article 2219 of the Civil Code provides that moral
damages may be awarded in criminal cases resulting
in physical injuries,75 as in this case. Although the
victim did not testily on the moral damages that he
suffered, his Medical Certificate76 constitutes
sufficient basis to award moral damages, since
"ordinary human experience and common sense
dictate that such wounds inflicted on [him] would
naturally cause physical suffering, fright, serious
anxiety, moral shock, and similar injury."77 Thus, we
affirm the CA's award of moral damages in the
amount of P25,000.00 in the victim's favor.
We also agree with the CA that the victim is entitled
to temperate damages in the amount of P10,000.00,
as it is clear from the records that the victim
received medical treatment at the WVSUMC and
was, in fact, confined at the hospital for twenty
days,78 although no documentary evidence was
presented to prove the cost thereof. 79
WHEREFORE, we DENY the Petition for Review
on Certiorari. The August 29, 2012 Decision and the
March 11, 2013 Resolution of the Court of Appeals in
CA-G.R. CR No. 00896
are AFFIRMED with MODIFICATION in that,
petitioner Eden Etino is found guilty beyond
reasonable doubt of the crime of SERIOUS PHYSICAL
INJURIES and is sentenced to suffer the
indeterminate penalty of imprisonment of four (4)
months of arresto mayor, as minimum, to one (1)
year and eight (8) months of prision correccional, as
maximum.
SO ORDERED.
Sereno, C.J., (Chairperson), Leonardo-De Castro,
Peralta,* and Tijam, JJ., concur.
Endnotes:
SECOND DIVISION
G.R. No. 206442, July 01, 2015
JOVITO CANCERAN, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari seeking to
reverse and set aside the August 10, 2012
Decision1 and the March 7, 2013 Resolution2 of the
Court of Appeals (CA), in CA-G.R. CR No. 00559,
which affirmed and modified the September 20,
190 | P a g e
2007 Judgment3 of the Regional Trial Court, Branch
39, Misamis Oriental, Cagayan de Oro City (RTC), in
Criminal Case No. 2003-141, convicting petitioner
Jovito Canceran (Canceran) for consummated Theft.
The records disclose that Caneeran, together with
Frederick Vequizo and Marcial Diaz, Jr., was charged
with "Frustrated Theft." The Information reads:
chanRoblesvirtualLawlibrary
That on or about October 6, 2002, at more or less
12:00 noon, at Ororama Mega Center Grocery
Department, Lapasan, Cagayan de Oro City,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, Jovito
Caneeran, conspiring, confederating together and
mutually helping one another with his co-accused
Frederick Vequizo, URC Merchandiser, and Marcial
Diaz, Jr., a Unilever Philippines merchandiser both of
Ororama Mega Center, with intent to gain and
without the knowledge and consent of the owner
thereof, did then and there wilfully, unlawfully and
feloniously take, steal and carry away 14 cartons of
Ponds White Beauty Cream valued at P28,627,20,
belonging to Ororama Mega Center, represented by
William Michael N. Arcenio, thus, performing all the
acts of execution which would produce the crime of
theft as a consequence but, nevertheless, did not
produce it by reason of some cause independent of
accused's will, that is, they were discovered by the
employees of Ororama Mega Center who prevented
them from further carrying away said 14 cartons of
Ponds White Beauty Cream, to the damage and
prejudice of the Ororama Mega Center.
Article 308 in relation to Article 309, and 6 of the
Revised Penal Code.4
chanroblesvirtuallawlibrary
Version of the Prosecution
To prove the guilt of the accused, the prosecution
presented Damalito Ompoc (Ompoc), a security
guard; and William Michael N. Arcenio (Arcenio), the
Customer Relation Officer of Ororama Mega Center
(Ororama), as its witnesses. Through their
testimonies, the prosecution established that on or
about October 6, 2002, Ompoc saw Caneeran
approach one of the counters in Ororama; that
Caneeran was pushing a cart which contained two
boxes of Magic Flakes for which he paid P1,423.00;
that Ompoc went to the packer and asked if the
boxes had been checked; that upon inspection by
Ompoc and the packer, they found out that the
contents of the two boxes were not Magic Flakes
biscuits, but 14 smaller boxes of Ponds White Beauty
Cream worth P28,627.20; that Caneeran hurriedly
left and a chase ensued; that upon reaching the Don
Mariano gate, Caneeran stumbled as he attempted
to ride a jeepney; that after being questioned, he
tried to settle with the guards and even offered his
personal effects to pay for the items he tried to take;
that Arcenio refused to settle; and that his personal
belongings were deposited in the office of
Arcenio.5ChanRoblesVirtualawlibrary
Version of the Defense
Canceran vehemently denied the charges against
him. He claimed that he was a promo merchandiser
of La Tondena, Inc. and that on October 6, 2002, he
was in Ororama to buy medicine for his wife. On his
way out, after buying medicine and mineral water, a
male person of around 20 years of age requested
him to pay for the items in his cart at the cashier;
that he did not know the name of this man who gave
him P1,440.00 for payment of two boxes labelled
Magic Flakes; that he obliged with the request of the
unnamed person because he was struck by his
conscience; that he denied knowing the contents of
the said two boxes; that after paying at the cashier,
he went out of Ororama towards Limketkai to take a
jeepney; that three persons ran after him, and he
was caught; that he was brought to the 4th floor of
Ororama, where he was mauled and kicked by one
of those who chased him; that they took his Nokia
5110 cellular phone and cash amounting to
P2,500.00; and that Ompoc took his Seiko watch and
ring, while a certain Amion took his
necklace.6ChanRoblesVirtualawlibrary
Canceran further claimed that an earlier Information
for theft was already filed on October 9, 2002 which
was eventually dismissed. In January 2003, a second
Information was filed for the same offense over the
same incident and became the subject of the present
case.7ChanRoblesVirtualawlibrary
The Ruling of the Regional Trial Court
In its Judgment, dated September 20, 2007, the RTC
found Canceran guilty beyond reasonable doubt
of consummated Theft in line with the ruling of the
Court in Valenzuela v. People8 that under Article 308
of the Revised Penal Code (RPC), there is no crime of
"Frustrated Theft." Canceran was sentenced to
suffer the indeterminate penalty of imprisonment
from ten (10) years and one (1) day to ten (10) years,
eight (8) months of prision mayor, as minimum, to
fourteen (14) years, eight (8) months of reclusion
temporal, as maximum.9ChanRoblesVirtualawlibrary
The RTC wrote that Canceran's denial deserved scant
consideration because it was not supported by
sufficient and convincing evidence and no
disinterested witness was presented to corroborate
his claims. As such, his denial was considered self-
serving and deserved no weight. The trial court was
also of the view that his defense, that the complaint
for theft filed against him before the sala of Judge
Maximo Paderanga was already dismissed, was not
persuasive. The dismissal was merely a release order
signed by the Clerk of Court because he had posted
bail.10ChanRoblesVirtualawlibrary
191 | P a g e
The Ruling of the Court of Appeals
Aggrieved, Canceran filed an appeal where he raised
the issue of double jeopardy for the first time. The
CA held that there could be no double jeopardy
because he never entered a valid plea and so the
first jeopardy never
attached.11ChanRoblesVirtualawlibrary
The CA also debunked Canceran's contention that
there was no taking because he merely pushed the
cart loaded with goods to the cashier's booth for
payment and stopped there. The appellate court
held that unlawful taking was deemed complete
from the moment the offender gained possession of
the thing, even if he had no opportunity to dispose
of the same.12ChanRoblesVirtualawlibrary
The CA affirmed with modification the September
20, 2007 judgment of the RTC, reducing the penalty
ranging from two (2) years, four (4) months and one
(1) day of prision correccional, as minimum, to eight
(8) years, eight (8) months and one (1) day of prision
mayor, as maximum.
Canceran moved for the reconsideration of the said
decision, but his motion was denied by the CA in its
March 7, 2013 resolution.
Hence, this petition.
As can be synthesized from the petition and other
pleadings, the following are the issues: 1] whether
Canceran should be acquitted in the crime of theft as
it was not charged in the information; and 2]
whether there was double jeopardy.
Canceran argues that the CA erred in affirming his
conviction. He insists that there was already double
jeopardy as the first criminal case for theft was
already dismissed and yet he was convicted in the
second case. Canceran also contends that there was
no taking of the Ponds cream considering that "the
information in Criminal Case No. 2003-141 admits
the act of the petitioner did not produce the crime of
theft."13 Thus, absent the element of taking, the
felony of theft was never proved.
In its Comment,14 the Office of the Solicitor General
(OSG) contended that there was no double jeopardy
as the first jeopardy never attached. The trial court
dismissed the case even before Canceran could enter
a plea during the scheduled arraignment for the first
case. Further, the prosecution proved that all the
elements of theft were present in this case.
In his Reply,15 Canceran averred that when the
arraignment of the first case was scheduled, he was
already bonded and ready to enter a plea. It was the
RTC who decided that the evidence was insufficient
or the evidence lacked the element to constitute the
crime of theft. He also stressed that there was no
unlawful taking as the items were assessed and paid
for.
The Court's Ruling
The Court finds the petition partially meritorious.
Constitutional Right of the Accused to be Informed of
the Nature and Cause of Accusation against Him.
No less than the Constitution guarantees the right of
every person accused in a criminal prosecution to be
informed of the nature and cause of accusation
against him.16 It is fundamental that every element
of which the offense is composed must be alleged in
the complaint or information. The main purpose of
requiring the various elements of a crime to be set
out in the information is to enable the accused to
suitably prepare his defense. He is presumed to have
no independent knowledge of the facts that
constitute the offense.17ChanRoblesVirtualawlibrary
Under Article 308 of the RPC, the essential elements
of theft are (1) the taking of personal property; (2)
the property belongs to another; (3) the taking away
was done with intent of gain; (4) the taking away
was done without the consent of the owner; and (5)
the taking away is accomplished without violence or
intimidation against person or force upon things.
"Unlawful taking, which is the deprivation of one's
personal property, is the element which produces
the felony in its consummated stage. At the same
time, without unlawful taking as an act of execution,
the offense could only be attempted theft, if at
all."18ChanRoblesVirtualawlibrary
"It might be argued, that the ability of the offender
to freely dispose of the property stolen delves into
the concept of 'taking' itself, in that there could be
no true taking until the actor obtains such degree of
control over the stolen item. But even if this were
correct, the effect would be to downgrade the crime
to its attempted, and not frustrated stage, for it
would mean that not all the acts of execution have
not been completed, the "taking not having been
accomplished."19ChanRoblesVirtualawlibrary
A careful reading of the allegations in the
Information would show that Canceran was charged
with "Frustrated Theft" only. Pertinent parts of the
Information read:
chanRoblesvirtualLawlibrary
x x x did then and there wilfully, unlawfully and
feloniously take, steal and carry away 14 cartons of
Ponds White Beauty Cream valued at P28,627,20,
belonging to Ororama Mega Center, represented by
William Michael N. Arcenio, thus performing ail the
acts of execution which would produce the crime of
theft as a consequence, but nevertheless, did not
192 | P a g e
produce it by reason of some cause independent of
accused's will x x x.
[Emphasis and Underscoring Supplied]
As stated earlier, there is no crime of Frustrated
Theft. The Information can never be read to charge
Canceran of consummated Theft because the
indictment itself stated that the crime was never
produced. Instead, the Information should be
construed to mean that Canceran was being charged
with theft in its attempted stage only. Necessarily,
Canceran may only be convicted of the lesser crime
of Attempted Theft.
"[A]n accused cannot be convicted of a higher
offense than that with which he was charged in the
complaint or information and on which he was tried.
It matters not how conclusive and convincing the
evidence of guilt may be, an accused cannot be
convicted in the courts of any offense, unless it is
charged in the complaint or information on which he
is tried, or necessarily included therein. He has a
right to be informed as to the nature of the offense
with which he is charged before he is put on trial,
and to convict him of an offense higher than that
charged in the complaint or information on which he
is tried would be an unauthorized denial of that
right."20ChanRoblesVirtualawlibrary
Indeed, an accused cannot be convicted of a crime,
even if duly proven, unless it is alleged or necessarily
included in the information filed against him.21 An
offense charged necessarily includes the offense
proved when some of the essential elements or
ingredients of the former, as alleged in the complaint
or information, constitute the
latter.22ChanRoblesVirtualawlibrary
The crime of theft in its consummated stage
undoubtedly includes the crime in its attempted
stage. In this case, although the evidence presented
during the trial prove the crime of consummated
Theft, he could be convicted of Attempted Theft
only. Regardless of the overwhelming evidence to
convict him for consummated Theft, because the
Information did not charge him with consummated
Theft, the Court cannot do so as the same would
violate his right to be informed of the nature and
cause of the allegations against him, as he so
protests.
The Court is not unmindful of the rule that "the real
nature of the criminal charge is determined, not
from the caption or preamble of the information nor
from the specification of the law alleged to have
been violated - these being conclusions of law - but
by the actual recital of facts in the complaint or
information."23 In the case of Domingo v. Rayala,24 it
was written:
chanRoblesvirtualLawlibrary
What is controlling is not the title of the complaint,
nor the designation of the offense charged or the
particular law or part thereof allegedly violated,
these being mere conclusions of law made by the
prosecutor, but the description of the crime charged
and the particular facts therein recited. The acts or
omissions complained of must be alleged in such
form as is sufficient to enable a person of common
understanding to know what offense is intended to
be charged, and enable the court to pronounce
proper judgment. No information for a crime will be
sufficient if it does not accurately and clearly allege
the elements of the crime charged. Every element of
the offense must be stated in the information. What
facts and circumstances are necessary to be included
therein must be determined by reference to the
definitions and essentials of the specified crimes.
The requirement of alleging the elements of a crime
in the information is to inform the accused of the
nature of the accusation against him so as to enable
him to suitably prepare his defense.25
chanroblesvirtuallawlibrary
In the subject information, the designation of the
prosecutor of the offense, which was "Frustrated
Theft," may be just his conclusion. Nevertheless, the
fact remains that the charge was qualified by the
additional allegation, but, nevertheless, did not
produce it by reason of some cause independent of
accused's will, that is, they were discovered by the
employees of Ororama Mega Center who prevented
them from further carrying away said 14 cartons of
Ponds White Beauty Cream, x x x26 This averment,
which could also be deemed by some as a mere
conclusion, rendered the charge nebulous. There
being an uncertainty, the Court resolves the doubt in
favor of the accused, Canceran, and holds that he
was not properly informed that the charge against
him was consummated theft.
No double jeopardy when the first jeopardy never
attached
Anent the issue of double jeopardy, the Court finds
no reason to deviate from the ruling of the CA.
No person shall be twice put in jeopardy for
punishment for the same offense. The rule of double
jeopardy has a settled meaning in this jurisdiction. It
means that when a person is charged with an
offense and the case is terminated either by
acquittal or conviction or in any other manner
without the consent of the accused, the latter
cannot again be charged with the same or identical
offense. This principle is founded upon the law of
reason, justice and
conscience.27ChanRoblesVirtualawlibrary
Canceran argues that double jeopardy exists as the
first case was scheduled for arraignment and he,
already bonded, was ready to enter a plea. It was the
RTC who decided that there was insufficient
evidence to constitute the crime of theft.
193 | P a g e
To raise the defense of double jeopardy, three
requisites must be present: (1) a first jeopardy must
have attached prior to the second; (2) the first
jeopardy must have been validly terminated; and (3)
the second jeopardy must be for the same offense as
that in the first. Legal jeopardy attaches only (a)
upon a valid indictment, (b) before a competent
court, (c) after arraignment, (d) a valid plea having
been entered; and (e) the case was dismissed or
otherwise terminated without the express consent
of the accused.28ChanRoblesVirtualawlibrary
Here, the CA correctly observed that Canceran never
raised the issue of double jeopardy before the RTC.
Even assuming that he was able to raise the issue of
double jeopardy earlier, the same must still fail
because legal jeopardy did not attach. First, he never
entered a valid plea. He himself admitted that he
was just about to enter a plea, but the first case was
dismissed even before he was able to do so. Second,
there was no unconditional dismissal of the
complaint. The case was not terminated by reason of
acquittal nor conviction but simply because he
posted bail. Absent these two elements, there can
be no double jeopardy.
Penalty of Attempted Theft
The penalty for consummated theft is prision
mayor in its minimum and medium periods.29 The
penalty lower by two degrees than that prescribed
by law for the consummated felony shall be imposed
upon principals in an attempt to commit a
felony.30 The basis for reduction of penalty by two
degrees is the penalty prescribed by law for the
consummated crime. Also, when the offenses
defined in the RPC are punished with a penalty
composed of two periods, like in the crime of theft,
the penalty lower by one degree is formed by two
periods to be taken from the same penalty
prescribed.31ChanRoblesVirtualawlibrary
Here, the products stolen were worth P28,627.20.
Following Article 309 par. 1 of the RPC, the penalty
shall be the maximum period of the penalty
prescribed in the same paragraph, because the value
of the things stolen exceeded P22,000.00. In other
words, a special aggravating circumstance shall
affect the imposable penalty.
Applying the Indeterminate Sentence Law, the
minimum penalty should be within the range
of Arresto Mayor Minimum to Arresto
Mayor Medium. In view of the special aggravating
circumstance under Article 309 (1), the maximum
penalty should be Arresto Mayor Maximum
to Prision Correccional Minimum in its maximum
period.
WHEREFORE, the petition is PARTIALLY GRANTED.
The August 10, 2012 Decision and the March 7, 2013
Resolution of the Court of Appeals m CA-G.R. CR No.
00559 are hereby MODIFIED, in that, the Court finds
accused Jovito Canceran guilty beyond reasonable
doubt of the crime of Attempted Theft.
Accordingly, the Court sentences the accused to
suffer the indeterminate prison term ranging from
Four (4) Months of Arresto Mayor, as minimum, to
Two (2) Years, Four (4) Months of Prision
Correccional, as maximum.
SO ORDERED.cralawlawlibrary
Carpio, (Chairperson), Bersamin*, Del Castillo,
and Leonen, JJ., concur.chanrobleslaw
EN BANC
G.R. No. 129433 March 30, 2000
PEOPLE OF THE PHILIPPINES, plaintiff,
vs.
PRIMO CAMPUHAN Y BELLO accused.
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita 1 finally
did away with frustrated rape 2 and allowed only
attempted rape and consummated rape to remain in
our statute books. The instant case lurks at the
threshold of another emasculation of the stages of
execution of rape by considering almost every
attempt at sexual violation of a woman as
consummated rape, that is, if the contrary view were
to be adopted. The danger there is that that concept
may send the wrong signal to every roaming
lothario, whenever the opportunity bares itself, to
better intrude with climactic gusto, sans any
restraint, since after all any attempted fornication
would be considered consummated rape and
punished as such. A mere strafing of the citadel of
passion would then be considered a deadly fait
accompli, which is absurd.
In Orita we held that rape was consummated from
the moment the offender had carnal knowledge of
the victim since by it he attained his objective. All
the elements of the offense were already present
and nothing more was left for the offender to do,
having performed all the acts necessary to produce
the crime and accomplish it. We ruled then that
perfect penetration was not essential; any
penetration of the female organ by the male organ,
however slight, was sufficient. The Court further held
that entry of the labia or lips of the female organ,
even without rupture of the hymen or laceration of
the vagina, was sufficient to warrant conviction for
consummated rape. We distinguished consummated
rape from attempted rape where there was no
penetration of the female organ because not all acts
of execution were performed as the offender merely
194 | P a g e
commenced the commission of a felony directly by
overt acts. 3 The inference that may be derived
therefrom is that complete or full penetration of the
vagina is not required for rape to be consummated.
Any penetration, in whatever degree, is enough to
raise the crime to its consummated stage.
But the Court in Orita clarified the concept of
penetration in rape by requiring entry into the labia
or lips of the female organ, even if there be no
rupture of the hymen or laceration of the vagina, to
warrant a conviction for consummated rape. While
the entry of the penis into the lips of the female
organ was considered synonymous with mere
touching of the external genitalia, e.g., labia majora,
labia minora, etc.,4 the crucial doctrinal bottom line
is that touching must be inextricably viewed in light
of, in relation to, or as an essential part of, the
process of penile penetration, and not just mere
touching in the ordinary sense. In other words, the
touching must be tacked to the penetration itself.
The importance of the requirement of penetration,
however slight, cannot be gainsaid because where
entry into the labia or the lips of the female genitalia
has not been established, the crime committed
amounts merely to attempted rape.
Verily, this should be the indicium of the Court in
determining whether rape has been committed
either in its attempted or in its consummated stage;
otherwise, no substantial distinction would exist
between the two, despite the fact that penalty-wise,
this distinction, threadbare as it may seem,
irrevocably spells the difference between life and
death for the accused — a reclusive life that is not
even perpetua but only temporal on one hand, and
the ultimate extermination of life on the other. And,
arguing on another level, if the case at bar cannot be
deemed attempted but consummated rape, what
then would constitute attempted rape? Must our
field of choice be thus limited only to consummated
rape and acts of lasciviousness since attempted rape
would no longer be possible in light of the view of
those who disagree with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found
guilty of statutory rape and sentenced by the court a
quo to the extreme penalty of death, 5 hence this
case before us on automatic review under Art. 335
of the Revised Penal Code as amended by RA 7659. 6
As may be culled from the evidence on record, on 25
April 1996, at around 4 o'clock in the afternoon, Ma.
Corazon P. Pamintuan, mother of four (4)-year old
Crysthel Pamintuan, went down from the second
floor of their house to prepare Milo chocolate drinks
for her two (2) children. At the ground floor she met
Primo Campuhan who was then busy filling small
plastic bags with water to be frozen into ice in the
freezer located at the second floor. Primo was a
helper of Conrado Plata Jr., brother of Corazon. As
Corazon was busy preparing the drinks, she heard
one of her daughters cry, "Ayo'ko,
ayo'ko!" 7 prompting Corazon to rush upstairs.
Thereupon, she saw Primo Campuhan inside her
children's room kneeling before Crysthel whose
pajamas or "jogging pants" and panty were already
removed, while his short pants were down to his
knees.
According to Corazon, Primo was forcing his penis
into Crysthel's vagina. Horrified, she cursed the
accused, "P - t - ng ina mo, anak ko iyan!" and boxed
him several times. He evaded her blows and pulled
up his pants. He pushed Corazon aside when she
tried to block his path. Corazon then ran out and
shouted for help thus prompting her brother, a
cousin and an uncle who were living within their
compound, to chase the accused. 8 Seconds later,
Primo was apprehended by those who answered
Corazon's call for help. They held the accused at the
back of their compound until they were advised by
their neighbors to call the barangay officials instead
of detaining him for his misdeed. Physical
examination of the victim yielded negative results.
No evident sign of extra-genital physical injury was
noted by the medico-legal officer on Crysthel's body
as her hymen was intact and its orifice was only 0.5
cm. in diameter.
Primo Campuhan had only himself for a witness in
his defense. He maintained his innocence and
assailed the charge as a mere scheme of Crysthel's
mother who allegedly harbored ill will against him
for his refusal to run an errand for her. 9 He asserted
that in truth Crysthel was in a playing mood and
wanted to ride on his back when she suddenly pulled
him down causing both of them to fall down on the
floor. It was in this fallen position that Corazon
chanced upon them and became hysterical. Corazon
slapped him and accused him of raping her child. He
got mad but restrained himself from hitting back
when he realized she was a woman. Corazon called
for help from her brothers to stop him as he ran
down from the second floor.
Vicente, Corazon's brother, timely responded to her
call for help and accosted Primo. Vicente punched
him and threatened to kill him. Upon hearing the
threat, Primo immediately ran towards the house of
Conrado Plata but Vicente followed him there. Primo
pleaded for a chance to explain as he reasoned out
that the accusation was not true. But Vicente kicked
him instead. When Primo saw Vicente holding a
piece of lead pipe, Primo raised his hands and turned
his back to avoid the blow. At this moment, the
relatives and neighbors of Vicente prevailed upon
him to take Primo to the barangay hall instead, and
not to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence,
the trial court on 27 May 1997 found him guilty of
statutory rape, sentenced him to the extreme
195 | P a g e
penalty of death, and ordered him to pay his victim
P50,000.00 for moral damages, P25,000.00 for
exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the
credibility of Ma. Corazon Pamintuan. He argues that
her narration should not be given any weight or
credence since it was punctured with implausible
statements and improbabilities so inconsistent with
human nature and experience. He claims that it was
truly inconceivable for him to commit the rape
considering that Crysthel's younger sister was also in
the room playing while Corazon was just downstairs
preparing Milo drinks for her daughters. Their
presence alone as possible eyewitnesses and the fact
that the episode happened within the family
compound where a call for assistance could easily be
heard and responded to, would have been enough
to deter him from committing the crime. Besides,
the door of the room was wide open for anybody to
see what could be taking place inside. Primo insists
that it was almost inconceivable that Corazon could
give such a vivid description of the alleged sexual
contact when from where she stood she could not
have possibly seen the alleged touching of the sexual
organs of the accused and his victim. He asserts that
the absence of any external signs of physical injuries
or of penetration of Crysthel's private parts more
than bolsters his innocence.
In convicting the accused, the trial court relied quite
heavily on the testimony of Corazon that she saw
Primo with his short pants down to his knees
kneeling before Crysthel whose pajamas and panty
were supposedly "already removed" and that Primo
was "forcing his penis into Crysthel's vagina." The
gravamen of the offense of statutory rape is carnal
knowledge of a woman below twelve (12), as
provided in Art. 335, par. (3), of the Revised Penal
Code. Crysthel was only four (4) years old when
sexually molested, thus raising the penalty,
from reclusion perpetua to death, to the single
indivisible penalty of death under RA 7659, Sec. 11,
the offended party being below seven (7) years old.
We have said often enough that in concluding that
carnal knowledge took place, full penetration of the
vaginal orifice is not an essential ingredient, nor is
the rupture of the hymen necessary; the mere
touching of the external genitalia by the penis
capable of consummating the sexual act is sufficient
to constitute carnal knowledge. 10 But the act of
touching should be understood here as inherently
part of the entry of the penis into the labias of the
female organ and not mere touching alone of
the mons pubis or the pudendum.
In People v. De la Peña 11 we clarified that the
decisions finding a case for rape even if the
attacker's penis merely touched the external
portions of the female genitalia were made in the
context of the presence or existence of an erect
penis capable of full penetration. Where the accused
failed to achieve an erection, had a limp or flaccid
penis, or an oversized penis which could not fit into
the victim's vagina, the Court nonetheless held that
rape was consummated on the basis of the victim's
testimony that the accused repeatedly tried, but in
vain, to insert his penis into her vagina and in all
likelihood reached the labia of her pudendum as the
victim felt his organ on the lips of her vulva, 12 or
that the penis of the accused touched the middle part
of her vagina. 13 Thus, touching when applied to rape
cases does not simply mean mere epidermal contact,
stroking or grazing of organs, a slight brush or a
scrape of the penis on the external layer of the
victim's vagina, or the mons pubis, as in this case.
There must be sufficient and convincing proof that
the penis indeed touched the labias or slid into the
female organ, and not merely stroked the external
surface thereof, for an accused to be convicted of
consummated rape. 14 As the labias, which are
required to be "touched" by the penis, are by their
natural situs or location beneath the mons pubis or
the vaginal surface, to touch them with the penis is
to attain some degree of penetration beneath the
surface, hence, the conclusion that touching the
labia majora or the labia minora of the pudendum
constitutes consummated rape.
The pudendum or vulva is the collective term for the
female genital organs that are visible in the perineal
area, e.g., mons pubis, labia majora, labia minora,
the hymen, the clitoris, the vaginal orifice, etc. The
mons pubis is the rounded eminence that becomes
hairy after puberty, and is instantly visible within the
surface. The next layer is the labia majora or the
outer lips of the female organ composed of the outer
convex surface and the inner surface. The skin of the
outer convex surface is covered with hair follicles
and is pigmented, while the inner surface is a thin
skin which does not have any hair but has many
sebaceous glands. Directly beneath the labia majora
is the labia minora. 15 Jurisprudence dictates that the
labia majora must be entered for rape to be
consummated, 16 and not merely for the penis to
stroke the surface of the female organ. Thus, a
grazing of the surface of the female organ or
touching the mons pubis of the pudendum is not
sufficient to constitute consummated rape. Absent
any showing of the slightest penetration of the
female organ, i.e., touching of either labia of the
pudendum by the penis, there can be no
consummated rape; at most, it can only be
attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not
been confined to the oft-quoted "touching of the
female organ," 17 but has also progressed into being
described as "the introduction of the male organ into
the labia of the pudendum," 18 or "the bombardment
of the drawbridge." 19 But, to our mild, the case at
bar merely constitutes a "shelling of the castle of
196 | P a g e
orgasmic potency," or as earlier stated, a "strafing of
the citadel of passion.
A review of the records clearly discloses that the
prosecution utterly failed to discharge its onus of
proving that Primo's penis was able to penetrate
Crysthel's vagina however slight. Even if we
grant arguendo that Corazon witnessed Primo in the
act of sexually molesting her daughter, we seriously
doubt the veracity of her claim that she saw the
inter-genital contact between Primo and Crysthel.
When asked what she saw upon entering her
children's room Corazon plunged into saying that she
saw Primo poking his penis on the vagina of Crysthel
without explaining her relative position to them as to
enable her to see clearly and sufficiently, in
automotive lingo, the contact point. It should be
recalled that when Corazon chanced upon Primo and
Crysthel, the former was allegedly in a kneeling
position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a
way that the chest of the accused is pinning
down the victim, while his right hand is
holding his penis and his left hand is
spreading the legs of the victim).
It can reasonably be drawn from the foregoing
narration that Primo's kneeling position rendered an
unbridled observation impossible. Not even a
vantage point from the side of the accused and the
victim would have provided Corazon an
unobstructed view of Primo's penis supposedly
reaching Crysthel's external genitalia, i.e., labia
majora, labia minora, hymen, clitoris, etc., since the
legs and arms of Primo would have hidden his
movements from Corazon's sight, not to discount the
fact that Primo's right hand was allegedly holding his
penis thereby blocking it from Corazon's view. It is
the burden of the prosecution to establish how
Corazon could have seen the sexual contact and to
shove her account into the permissive sphere of
credibility. It is not enough that she claims that she
saw what was done to her daughter. It is required
that her claim be properly demonstrated to inspire
belief. The prosecution failed in this respect, thus we
cannot conclude without any taint of serious doubt
that inter-genital contact was at all achieved. To hold
otherwise would be to resolve the doubt in favor of
the prosecution but to run roughshod over the
constitutional right of the accused to be presumed
innocent.
Corazon insists that Primo did not restrain himself
from pursuing his wicked intention despite her
timely appearance, thus giving her the opportunity
to fully witness his beastly act.
We are not persuaded. It is inconsistent with man's
instinct of self-preservation to remain where he is
and persist in satisfying his lust even when he knows
fully well that his dastardly acts have already been
discovered or witnessed by no less than the mother
of his victim. For, the normal behavior or reaction of
Primo upon learning of Corazon's presence would
have been to pull his pants up to avoid being caught
literally with his pants down. The interval, although
relatively short, provided more than enough
opportunity for Primo not only to desist from but
even to conceal his evil design.
What appears to be the basis of the conviction of the
accused was Crysthel's answer to the question of the
court —
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis
penetrated her organ, she readily said, "No." Thus —
Q: But did his penis penetrate your organ?
A: No, sir. 20
This testimony alone should dissipate the mist of
confusion that enshrouds the question of whether
rape in this case was consummated. It has foreclosed
the possibility of Primo's penis penetrating her
vagina, however slight. Crysthel made a categorical
statement denying penetration, 27 obviously induced
by a question propounded to her who could not
have been aware of the finer distinctions between
touching and penetration. Consequently, it is
improper and unfair to attach to this reply of a four
(4)-year old child, whose vocabulary is yet as
underdeveloped as her sex and whose language is
bereft of worldly sophistication, an adult
interpretation that because the penis of the accused
touched her organ there was sexual entry. Nor can it
be deduced that in trying to penetrate the victim's
organ the penis of the accused touched the middle
portion of her vagina and entered the labia of her
pudendum as the prosecution failed to establish
sufficiently that Primo made efforts to penetrate
Crysthel. 22 Corazon did not say, nay, not even hint
that Primo's penis was erect or that he responded
with an erection. 23 On the contrary, Corazon even
narrated that Primo had to hold his penis with his
right hand, thus showing that he had yet to attain an
erection to be able to penetrate his victim.
Antithetically, the possibility of Primo's penis having
breached Crysthel's vagina is belied by the child's
own assertion that she resisted Primo's advances by
putting her legs close together; 24 consequently, she
did not feel any intense pain but just felt "not happy"
about what Primo did to her. 25 Thus, she only
shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In
197 | P a g e
cases where penetration was not fully established,
the Court had anchored its conclusion that rape
nevertheless was consummated on the victim's
testimony that she felt pain, or the medico-legal
finding of discoloration in the inner lips of the
vagina, or the labia minora was already gaping with
redness, or the hymenal tags were no longer
visible. 26 None was shown in this case. Although a
child's testimony must be received with due
consideration on account of her tender age, the
Court endeavors at the same time to harness only
what in her story appears to be true, acutely aware
of the equally guaranteed rights of the accused.
Thus, we have to conclude that even on the basis of
the testimony of Crysthel alone the accused cannot
be held liable for consummated rape; worse, be
sentenced to death.1âwphi1
Lastly, it is pertinent to mention the medico legal
officer's finding in this case that there were no
external signs of physical injuries on complaining
witness' body to conclude from a medical
perspective that penetration had taken place. As Dr.
Aurea P. Villena explained, although the absence of
complete penetration of the hymen does not negate
the possibility of contact, she clarified that there was
no medical basis to hold that there was sexual
contact between the accused and the victim. 27
In cases of rape where there is a positive testimony
and a medical certificate, both should in all respects
complement each other; otherwise, to rely on the
testimonial evidence alone, in utter disregard of the
manifest variance in the medical certificate, would
be productive of unwarranted or even mischievous
results. It is necessary to carefully ascertain whether
the penis of the accused in reality entered the labial
threshold of the female organ to accurately conclude
that rape was consummated. Failing in this, the thin
line that separates attempted rape from
consummated rape will significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised
Penal Code, rape is attempted when the offender
commences the commission of rape directly by overt
acts, and does not perform all the acts of execution
which should produce the crime of rape by reason of
some cause or accident other than his own
spontaneous desistance. All the elements of
attempted rape — and only of attempted rape — are
present in the instant case, hence, the accused
should be punished only for it.
The penalty for attempted rape is two (2) degrees
lower than the imposable penalty of death for the
offense charged, which is statutory rape of a minor
below seven (7) years. Two (2) degrees lower
is reclusion temporal, the range of which is twelve
(12) years and one (1) day to twenty (20) years.
Applying the Indeterminate Sentence Law, and in the
absence of any mitigating or aggravating
circumstance, the maximum of the penalty to be
imposed upon the accused shall be taken from the
medium period of reclusion temporal, the range of
which is fourteen (14) years, eight (8) months and (1)
day to seventeen (17) years and four (4) months,
while the minimum shall be taken from the penalty
next lower in degree, which is prision mayor, the
range of which is from six (6) years and one (1) day
to twelve (12) years, in any of its periods.
WHEREFORE, the Decision of the court a quo finding
accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty
of statutory rape and sentencing him to death and to
pay damages is MODIFIED. He is instead found guilty
of ATTEMPTED RAPE and sentenced to an
indeterminate prison term of eight (8) years four (4)
months and ten (10) days of prision mayor medium
as minimum, to fourteen (14) years ten (10) months
and twenty (20) days of reclusion temporal medium
as maximum. Costs de oficio.
SO ORDERED.1âwphi1.nêt
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan,
Mendoza, Quisumbing, Purisima, Pardo, Buena,
Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ.,
concur.
Pnganiban, J., in the result.
SECOND DIVISION
G.R. No. 204644, February 11, 2015
ANGELITA CRUZ BENITO, Petitioner, v. PEOPLE OF
THE PHILIPPINES, Respondent.
DECISION
LEONEN, J.:
Conspiracy must be proven with evidence that can
convince a trial court of its existence beyond
reasonable doubt. Moreover, there can be no
conspiracy to commit a crime that has already been
consummated.
This is a Petition for Review on Certiorari1 of the Court
of Appeals' Decision,2 affirming in toto the November
17, 20093 Decision of the Regional Trial Court, Branch
80, Quezon City. The trial court convicted Angelita
Cmz Benito of estafa, finding that she conspired with
Rebecca Agbulos in misappropriating the pieces of
jewelry the latter received in trust from Dorie Cruz-
Abadilla.4
In the Information dated October 28, 1994, Rebecca
Agbulos (Agbulos) and Angelita Cruz Benito5 (Benito)
were charged with estafa punished under Article 315,
paragraph l(b) of the Revised Penal Code. The
accusatory portion of the Information reads:
That in or about the period comprised from June 8,
1994 up to August 3, 1994, in Quezon City,
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Philippines, the said accused, conspiring together,
confederating with and mutually helping with each
other, did then and there willfully, unlawfully and
feloniously defraud DORIE CRUZ-ABADILLA in the
following manner, to wit:
Assorted pieces of jewelry in the amount of
P2,070,300.00, Philippine Currency, for the purpose
of selling the same on commission basis, under the
express obligation on the part of said accused of
turning over the proceeds of the sale to said DORIS
CRUZ-ABADILLA if sold, or of returning the same if
unsold to said complainant, but the said accused,
once in possession of the said items, far from
complying with their obligation as aforesaid, with
intent to defraud, unfaithfulness and grave abuse of
confidence, failed and refused and still fails and
refuses to fulfill their aforesaid obligation despite
repeated demands made upon them to do so and
instead misapplied, misappropriated and converted
the same or the value thereof, to their own personal
use and benefit, to the damage and prejudice of said
DORIE CRUZ-ABADILLA in the aforesaid amount of
P2,070,300.00, Philippine Currency.6
Agbulos and Benito were arraigned on July 10, 1995,
pleading not guilty to the charge. Trial ensued. 7
The prosecution presented as witnesses
complainant, Dorie Cruz-Abadilla (Abadilla); her
friend, Concepcion Quinonez Pamintuan
(Pamintuan);8 and Estela Diloria (Diloria),9 a
pawnshop appraiser of E. Ochoa Pawnshop.
The prosecution's version of the facts
Abadilla knew Agbulos and Benito through Abadilla's
friend, Pamintuan. Pamintuan introduced Agbulos to
Abadilla as a jeweler.10
Abadilla and Agbulos entered into several
transactions for the sale of jewelry, with Agbulos
going to Abadilla's residence at 174 Maginhawa
Street, Sikatuna Village, Quezon City. In all these
transactions, Benito accompanied Agbulos.11
On June 9, 1994, Agbulos received pieces of jewelry
from Abadilla. They agreed that Agbulos would
return the pieces of jewelry in the afternoon should
Agbulos fail to sell them. Agbulos then issued
Abadilla a check for the value of the jewelry
received.12
Agbulos received another batch of jewelry from
Abadilla on June 14, 1994. She again issued Abadilla
a check, this time for P828,000.00. They likewise
agreed that Agbulos would return the jewelry in the
afternoon should she fail to sell them.13
On June 16, 1994, Agbulos received the last batch of
jewelry from Abadilla, issuing a check in the amount
of P453,000.00.14
On June 21, 1994, Abadilla called Agbulos on the
phone, asking for security for the pieces of jewelry
she gave Agbulos. Agbulos then gave as security the
owner's copy of Transfer Certificate of Title No.
438259.15
However, upon verification with the Land
Registration Authority, the certificate of title turned
out to be spurious.16
Abadilla deposited the checks Agbulos issued to her,
and all were dishonored by reason of "closed
account." Abadilla then tried to locate Agbulos, but
Agbulos could no longer be found.17
After several months, Abadilla learned from Agbulos'
sister-in-law that the latter received pawn tickets
from a friend. Abadilla, through her friend
Pamintuan, obtained from Agbulos' sister-in-law
pawn tickets numbered 45227 and 45306 issued by
E. Ochoa Pawnshop. Appearing on the pawn tickets
was the name "Linda Chua."18
Abadilla went to E. Ochoa Pawnshop to verify the
items described in the pawn tickets. She learned that
the items pawned were among the pieces of jewelry
she turned over to Agbulos, specifically, a men's
diamond ring and a set of diamond ring and earrings.
She also learned from Diloria, the pawnshop
appraiser, that the "Linda Chua" who pawned her
jewelry was Benito.19
The defense's version of the facts
For the defense, Agbulos and Benito testified. Benito
denied that she was the "Linda Chua" who pawned
Abadilla's jewelry. According to her, on June 8, 1994,
she was at the house of Agbulos' mother, working as
a cook and taking care of Agbulos' children. She
denied being with Agbulos when the latter
transacted with Abadilla and that she only knew of
Abadilla when the latter looked for Agbulos.20
Agbulos supported the testimony of her co-accused
Benito, stating that the latter "had no participation
[in her transactions with Abadilla]."21 Agbulos
likewise denied that Benito accompanied her to
Abadilla's residence whenever she received jewelry
from Abadilla.22
The Regional Trial Court's findings
The Regional Trial Court found that the prosecution
proved beyond reasonable doubt that Agbulos and
Benito conspired to commit estafa. According to the
trial court, Agbulos and Benito received the pieces of
jewelry in trust for Abadilla. They undertook to sell
the jewelry for Abadilla or return them in the
afternoon should they fail to sell them. However, in
violation of that trust, they failed to return the
199 | P a g e
unsold jewelry. Worse, they had the jewelry pawned
under a different name.23
Thus, in the Decision24 dated November 17, 2009,
the trial court sentenced Agbulos and Benito to
suffer the indeterminate penalty of four (4) years
and two (2) months of prision correccional as
minimum to twenty (20) years of reclusion
temporal as maximum. It also ordered Agbulos and
Benito to pay Abadilla P2,070,300.00 by way of civil
indemnity plus 12% interest from the filing of the
Information until full payment.25
Disposition of the Court of Appeals
Benito appealed before the Court of Appeals,
maintaining that she had nothing to do with Agbulos'
transaction with Abadilla.26
Nevertheless, the Court of Appeals sustained the
finding that Benito was the "Linda Chua" who
pawned Abadilla's jewelry as testified to by the
pawnshop appraiser, Diloria. Thus, even assuming
that Agbulos alone transacted with Abadilla, "it was
the action of [Benito] that paved the way [to the
misappropriation or conversion of the jewelry, to the
prejudice of Abadilla]."27 The Court of Appeals
upheld the finding that Agbulos and Benito
conspired to commit estafa.
Affirming in toto the trial court's Decision, the Court
of Appeals denied Benito's appeal in the
Decision28 dated June 30, 2011.
Benito filed a Motion for Reconsideration, which the
Court of Appeals denied in the Resolution29 dated
November 13, 2012.
Proceedings in this court
Benito filed a Petition for Review on Certiorari
before this court. On behalf of the People of the
Philippines, the Office of the Solicitor General
commented on Benito's Petition,30 after which,
Benito replied to the Comment.31
In her Petition for Review on Certiorari and Reply,
Benito insists that the prosecution failed to prove
her alleged conspiracy with Agbulos to commit
estafa. She maintains that Agbulos alone transacted
with Abadilla, denying that she received any of the
pieces of jewelry. That she allegedly accompanied
Agbulos to Abadilla's residence does not prove that
she likewise received some of the pieces of jewelry.
Thus, the element of estafa consisting of the receipt
in trust of personal property does not apply to her.32
Moreover, Benito vehemently denies that she was
the "Linda Chua" who pawned Abadilla's jewelry. She
points out that prosecution witness Diloria did not
personally transact with "Linda Chua." Diloria
allegedly testified that her co-worker entertained
"Linda Chua" and appraised the jewelry being
pawned. With "no extraordinary reason why [the
Linda Chua transaction] stuck to [Diloria's]
mind,"33 Benito argues that Diloria was incompetent
to testify as to the identity of "Linda Chua."34
Maintaining that the prosecution failed to prove her
guilt beyond reasonable doubt, Benito prays for her
acquittal.
In the Comment, the People of the Philippines
argues that Benito raises questions of fact that is not
allowed in a Petition for Review on Certiorari. In
addition, the Regional Trial Court and the Court of
Appeals agreed in their findings of fact. Thus, the
findings that Benito received jewelry from Abadilla
and that she was the "Linda Chua" who pawned
some of the jewelry are entitled to great respect, if
not finality, by this court.35
Considering that the arguments of Benito are a mere
rehash of those she raised in her appeal before the
Court of Appeals, the People of the Philippines prays
that this court deny Benito's Petition for Review on
Certiorari.
The issue for this court's resolution is whether
Angelita Cruz Benito conspired with Rebecca Agbulos
in committing estafa punished under Article 315,
paragraph l(b) of the Revised Penal Code.
We grant this Petition.
I conclusion; (8) when the findings of the Court of
The judgments of the Regional Trial
Court and the Court of Appeals are
based on a misapprehension of facts
Under Rule 45, Section 1 of the Rules of Court, only
questions of law may be raised in a Petition for
Review on Certiorari:
Section 1. Filing of petition with Supreme Court. - A
party desiring to appeal by certiorari from a
judgment, final order or resolution of the Court of
Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts,
whenever authorized by law, may file with the
Supreme Court a verified petition for review on
certiorari. The petition may include an application for
a writ of preliminary injunction or other provisional
remedies and shall raise only questions of law, which
must be distinctly set forth. The petitioner may seek
the same provisional remedies by verified motion
filed in the same action or proceeding at any time
during its pendency. (Emphasis supplied)
As an exception to the rule, questions of fact may be
200 | P a g e
raised in a Rule 45 Petition if any of the following is
present:
(1) when there is grave abuse of discretion; (2) when
the findings are grounded on speculations; (3) when
the inference made is manifestly mistaken; (4) when
the judgment of the Court of Appeals is based on a
misapprehension of facts; (5) when the factual
findings are conflicting; (6) when the Court of Appeals
went beyond the issues of the case and its findings are
contrary to the admissions of the parties; (7) when
the Court of Appeals overlooked undisputed facts
which, if properly considered, would justify a different
Appeals are contrary to those of the trial court; (9)
when the facts set forth by the petitioner are not
disputed by the respondent; and (10) when the
findings of the Court of Appeals are premised on the
absence of evidence and are contradicted by the
evidence on record.36
A question of fact exists "when the doubt or
difference arises as to the truth or the falsehood of
alleged facts."37 On the other hand, a question of law
exists "when the doubt or difference arises as to
what the law is on a certain state of facts."38
Benito raises questions of fact in her Petition for
Review on Certiorari. Specifically, she prays that this
court examine the truth of the following findings:
that she received jewelry from Abadilla and that she
posed as "Linda Chua" and pawned the jewelry she
received from Abadilla.
Despite Benito raising questions of fact in her
Petition for Review on Certiorari, we nevertheless
take cognizance of her Petition. The trial court and
Court of Appeals misapprehended the facts of this
case.
II
The prosecution failed to prove beyond
reasonable doubt Benito's conspiracy with
Agbulos to commit estafa
Under Article 8 of the Revised Penal Code, "a
conspiracy exists when two or more persons come to
an agreement concerning the commission of a felony
and decide to commit it." Proof of conspiracy may be
direct or circumstantial.39 So long as the evidence
presented show a "common design or purpose"40 to
commit the crime, all of the accused shall be held
equally liable as co-principals even if one or more of
them did not participate in all the details of the
execution of the crime.41
For this reason, the fact of conspiracy "must be
proven on the same quantum of evidence as the
felony subject of the agreement of the
parties,"42 that is, proof beyond reasonable doubt.43
Article 315, paragraph l(b) of the Revised Penal Code
punishes estafa through misappropriation:
Art. 315. Swindling (estafa). - Any person who shall
defraud another by any of the means mentioned
herein below 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 pesos
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 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.
1. With unfaithfulness or abuse of confidence,
namely:
. . . .
(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.
To prove estafa through misappropriation, the
prosecution must establish the following elements:
(1)the offender's receipt of money, goods, or other
personal property in trust, or on commission, or
for administration, or under any other obligation
involving the duty to deliver, or to return, the
same;
(2)misappropriation or conversion by the offender of
the money or property received, or denial of
receipt of the money or property;
(3)the misappropriation, conversion or denial is to
the prejudice of another; and
(4)demand by the offended party that the offender
return the money or property received. 44(Citation
omitted)
We find that the prosecution failed to prove beyond
reasonable doubt the conspiracy between Benito
and Agbulos.
201 | P a g e
As testified to by Abadilla, only Agbulos received the
pieces of jewelry from her, and Benito was merely
"present during the negotiation":
Q[:] Do you have an agreement regarding the
business of jewelry?
A[:] Our agreement is that they will get the items
on the same day and if they could not sell [the]
items, they will return it in the afternoon of the
same day.
Q[:] Who took the pieces of jewelry you mentioned
awhile ago?
A[:] Rebecca Agbulos.
Q[:] Where was accused Angelita C. Benito?
A[:] She was present during the
negotiation.45 (Emphasis supplied)
Even assuming that Benito accompanied Agbulos in
going to Abadilla's residence, this does not prove
that Benito received any jewelry from Abadilla. As
the helper of Agbulos' brother,46 Benito may have
accompanied Agbulos on her employer's order.
"Mere presence [at the scene of the crime] is not by
itself indicative of conspiracy between [the
accused]."47
Interestingly, Agbulos testified that the transaction
was only between her and Abadilla. She alone issued
security for the jewelry, namely, the dishonored
checks and the spurious certificate of title.48 Agbulos
even declared in open court that "[Benito] ha[d] no
participation in the case at bench":49
Q: Can you tell us the participation of your co-
accused Angelita Benito in this case?
A: Angelita Benito is just a maid of my brother and
assigned to fetch my kids in school.
Q: The prosecution witness testified that you were
with your co-accused at that time you went to
the place of the complainant to receive the
pieces of jewelry?
A: That is not true, sir.
Q: You said you were the only one who went to
the house of the complainant?
A: Yes, sir.50 (Emphasis supplied)
Agbulos' statement was an admission against her
interest.51 The statement negated the alleged
"common design or purpose" between her and
Benito and would lead to her being solely liable for
the crime.52 It also means that she admitted that her
companion's acts can never be attributed to
her. The Regional Trial Court and the Court of
Appeals should have considered this statement in
assessing the guilt of Benito.53
In Gomez v. IAC,54 Dolores Gomez (Dolores),
together with her husband Rodrigo Gomez (Rodrigo),
was charged with estafa for allegedly conspiring with
Rodrigo in misappropriating pieces of jewelry they
received from Rodrigo's sister. The trial court
convicted her and Rodrigo of the crime charged.55
On appeal, this court acquitted Dolores. It
considered a letter Rodrigo wrote his sister, stating
that he alone misappropriated the pieces of jewelry.
According to the court, this letter was a declaration
against Rodrigo's interest that the trial court should
have given weight.56
In Ong v. Court of Appeals,57 Santiago Ong (Ong),
together with a Tony Chua (Chua), was charged with
estafa for allegedly conspiring with Chua in
misappropriating pieces of jewelry they received
from a Florentina Buyco (Buyco). The trial court
convicted them of the crime charged.
On appeal, this court acquitted Ong. It considered an
affidavit Chua executed, "absolving [Ong] from any
participation in his jewelry transaction with [Buyco
and her sister]."58 According to this court, Chua's
statement in his affidavit was a declaration against
his interest that should have been given weight by
the trial court.59
The strongest evidence against Benito is the
testimony of Diloria, the pawnshop appraiser who
positively identified Benito as the "Linda Chua" who
pawned Abadilla's jewelry. According to the Court of
Appeals, Benito's posing as "Linda Chua" and
pawning the jewelry "paved the way for the
presence of the second and third elements of
[estafa],"60 i.e., the misappropriation of the property
to the prejudice of another.
However, the identification of Benito as the "Linda
Chua" who pawned the jewelry is "open to serious
doubt."61 As testified to by Diloria, she saw Benito in
E. Ochoa Pawnshop only on two occasions: on June 6
and 17, 1994.62 Moreover, there is evidence that
Diloria was not the pawnshop appraiser who
entertained "Linda Chua"63 but a co-worker named
Mary Ann:
Q[:] Who prepared the pawn ticket?
A[:] Anybody who is available.
Q[:] Anybody who is available?
A[:] Yes, sir.
Q[:] In this case, you appraised [pawn tickets
numbered 45227 and 45306]?
A[:] One of our appraisers.
Q[:] Who filled up this pawnshop ticket?
A[:] Mary Ann.
Q[:] Your co-employee?
A[:] Yes[,] sir.64
Therefore, as Benito argues, "[t]here is ... no special
202 | P a g e
reason why the [Linda Chua transaction] stuck to
D[e]loria's mind, such that she was able to
remember the face of a complete stranger and
positively identify her more than three (3) months
after the alleged transaction."65
Further, based on Diloria's testimony, "Linda Chua"
first went to E. Ochoa Pawnshop on June 6,
1994.66 This date was prior to the first time Agbulos
received pieces of jewelry from Abadilla on June 9,
1994. There is thus some reasonable doubt as to
whether the jewelry "Linda Chua" pawned on June 6,
1994 belonged to Abadilla.
With respect to the second time "Linda Chua" went
to the pawnshop on June 17, 1994, Benito cannot be
held liable for it as well.
Generally, demand for the return of the thing
delivered in trust is necessary before an accused is
convicted of estafa. However, if there is an agreed
period for the accused to return the thing received in
trust and the accused fails to return it within the
agreed period, demand is unnecessary. Failure to
return the thing within the agreed period
consummates the crime of estafa, i.e, the
misappropriation of the thing received in trust.67
In United States v. Sotelo,68 Manuel Araneta
(Araneta) delivered to Vicente Sotelo (Sotelo) pieces
of jewelry for the latter to sell for a price not less
than P180.00 or to return the jewelry within one
hour from delivery if unsold. Sotelo failed to return
the pieces of jewelry within one hour from their
delivery. Without demanding for the return of the
jewelry, Araneta filed against Sotelo a complaint for
estafa within the hour after Sotelo failed to return
the jewelry.
The court convicted Sotelo of estafa because "[he]
did not return [the pieces of jewelry] within the
[agreed period] nor at any other time."69
When Agbulos failed to return in the afternoon the
jewelry she received on June 9, 14, and 16, 1994, she
was already presumed to have misappropriated the
jewelry. There would be no more need to present
any act to prove the misappropriation.
Consequently, the estafa had already been
consummated when "Linda Chua" allegedly pawned
the jewelry on June 17, 1994. Benito, who was
allegedly "Linda Chua," cannot be held criminally
liable with Agbulos. "There can be no ex post
facto conspiracy to do that which has already been
done and consummated."70
In Preferred Home Specialties, Inc. v. Court of
Appeals,71 Preferred Home Specialties, Inc., through
its president, Edwin Yu (Yu), entered into an
agreement with Specialty Oils, Inc. for the toll
manufacturing of high-quality margarine. Yu,
however, had second thoughts in continuing the
agreement with Specialty Oils, Inc.72
Through the intervention of Harley Sy (Sy), Yu
continued the agreement with Specialty Oils,
Inc.73 However, the margarine delivered by Specialty
Oils, Inc. discolored and "turned white."74 Yu also
learned that Specialty Oils, Inc. claimed in an
affidavit filed before the Securities and Exchange
Commission that it was already non-operational
when it entered into the agreement with Preferred
Home Specialties, Inc.75
Claiming that Specialty Oils, Inc. defrauded it,
Preferred Home Specialties, Inc. filed a complaint for
estafa against the officers of Specialty Oils, Inc. It
impleaded Sy as respondent for allegedly conspiring
with the officers of Specialty Oils, Inc. in defrauding
Preferred Home Specialties, Inc. In a certiorari
proceeding against the Department of Justice's
Resolution, the Court of Appeals ordered the
criminal Complaint against Sy dismissed.76
This court affirmed the Court of Appeals' decision,
ruling that the crime of estafa had already been
consummated by the time Sy intervened between
Preferred Home Specialties, Inc. and Specialty Oils,
Inc. According to this court, Sy intervened after
Specialty Oils, Inc. had delivered the substandard
margarine. Therefore, Sy could not be held criminally
liable with the officers of Specialty Oils, Inc.77
In People v. Furugganan,78 Anacleto Furugganan
(Furugganan), together with other co-accused, was
charged with murder for allegedly shooting to death
several men and wounding a Joseph Ferrer (Ferrer).
According to Ferrer, he, together with other
fishermen, was sleeping in a nipa hut when he heard
gunshots. He was shot on the leg but pretended to
be dead.79
After the shooting had stopped, Ferrer saw
Furugganan and other men climbing up the hut. One
of the men hit Ferrer's head to confirm that he was
dead. After the men had left, Ferrer went home to
have his wound treated and report the incident.80
In his defense, Furugganan denied that he shot
Ferrer's companions and alleged that he was merely
threatened by one of the shooters to go up the hut
or he himself would be shot. Furugganan
emphasized that he was unarmed when he went up
the hut. Ferrer would eventually testify that
Furugganan was indeed unarmed.81
This court found Furugganan credible and acquitted
him on the ground of reasonable doubt. According to
this court, Furugganan's act of going up the hut
"cannot. . . be said to have lent in any way even a
whit of material or moral aid in the actual
commission of the [crime] charged as, by then, [the
203 | P a g e
crime] had already been consummated."82
All told, the prosecution failed to prove beyond
reasonable doubt that Benito conspired with
Agbulos in misappropriating the jewelry belonging to
Abadilla. Benito, therefore, cannot be convicted of
estafa.
There is no proof of Benito's direct participation in
the commission of the crime charged. Neither is
there proof beyond reasonable doubt of her
conspiracy with Agbulos.
The presumption of innocence holds in favor of
Benito.83 She should be acquitted on the ground that
her guilt has not been proven beyond reasonable
doubt.
WHEREFORE, the Petition for Review on Certiorari
is GRANTED. The Decision of the Regional Trial Court,
Branch 80, Quezon City in Criminal Case No. Q-94-
59259 is REVERSED and SET ASIDE with respect to
Angelita Cruz Benito. Petitioner Angelita Cruz Benito
is ACQUITTED on the ground of reasonable doubt.
SO ORDERED.
Carpio, (Chairperson), Velasco Jr.* J., Del Castillo,
and Mendoza, JJ., concur.
___________________________________
SECOND DIVISION
G.R. No. 214883, September 02, 2015
PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee, v. CRISTINA SAMSON, Accused-Appellants.
DECISION
MENDOZA, J.:
For review in this appeal is the May 6, 2014
Decision1 of the Court of Appeals (CA) in CA-G.R. CR
HC No. 05832, which affirmed the September 27,
2012 Decision2 of the Regional Trial Court, Branch
65, Tarlac City (RTC) in Criminal Case No. 12285,
convicting accused-appellant Cristina Samson
(Cristina) for parricide committed against her
husband, Gerry Delmar (Gerry), and sentencing her
to suffer the penalty of reclusion perpetua.
The Antecedents
On August 14, 2002, Cristina was charged with the
crime of Parricide, defined and penalized under
Article 246 of the Revised Penal Code (RPC). The
Information articulates the following criminal
charges, viz:
That on or about the 27th day of June, 2002 in Tarlac
City, Philippines and within the jurisdiction of this
Honorable Court, said accused, willfully, unlawfully
and feloniously and with intent to kill her husband
Gerry Delmar, with whom she was united in lawful
wedlock, armed herself with a deadly weapon, a
knife, and stabbed said Gerry Delmar on his chest,
which resulted to his death.
CONTRARY TO LAW.3
When arraigned almost four (4) years later, Cristina
entered a plea of not guilty. Thereafter, trial on the
merits ensued with the parties agreeing to a reverse
trial on account of her invocation of the justifying
circumstance of self-defense.
Version of the Defense
The version of Cristina appears in the Brief for the
Accused-Appellant4 as follows:
On June 27, 2002, CRISTINA SAMSON (Cristina) was
in their house watching television together with her
children when her husband, Gerry Delmar (Gerry),
who was drunk at that time, arrived. Gerry asked
Cristina if she had cooked food already but the latter
answered in the negative because she had no money
to buy food. Gerry scolded and uttered words
against her, and then slapped her. They had an
altercation for about ten (10) minutes when
Cristina's father arrived and pacified them. Gerry left
but after thirty (30) minutes, he returned. He
pointed a knife at Cristina's neck. The latter begged
Gerry not to hurt her and to pity their children if
something happens to her. Gerry continued pointing
the knife and told Cristina to stop talking or
otherwise, he will put a hole in her neck. Then, Gerry
slapped Cristina's face twice. While Gerry was still
holding the knife, Cristina pushed him and he fell on
the ground. She took the knife which Gerry was
holding and begged him not to come near her. She
was holding the knife near her chest pointed at
Gerry when he suddenly grabbed her and that was
the time that the knife went in contact with his
chest. When she saw her husband bloodied, she
shouted for help and her father (Rodolfo Samson)
and brother (Allan Samson) came and brought Gerry
to the hospital. Her relatives told her that Gerry died
in the hospital. (TSN, September 6, 2006, pp. 14-27)
On June 27, 2002, ALLAN SAMSON (Allan) was at
home watching television with his father. He heard
yelling and shouting from the house of his sister
Cristina and brother-in-law Gerry. Since it was just
ordinary for him to hear his sister and brother-in-law
fight, he and his father just ignored it. After fifteen
(15) minutes of listening to their quarrel, they heard
Cristina cry for help. Upon hearing this, he
immediately went to the house of his sister and saw
her holding Gerry and she requested him and his
father to bring Gerry to the hospital. They called a
tricycle and he, together with his father, brought
Gerry to Talon General Hospital. The doctor,
however, declared that Gerry was already dead.
Then, the tanod arrives and Allan instructed the
204 | P a g e
tanod to call the siblings and relatives of Gerry.
When the relatives arrived, they went home. (TSN,
November 18, 2006, pp. 4-6)5
Version of the Prosecution
In its Brief for the Appellee,6 the Office of the
Solicitor General (OSG) provided the following as its
Counter-Statement of Facts:
On January 25, 1994, appellant Cristina Samson and
victim Jerry Delmar were married. They were blessed
with two (2) daughters namely Christine and Cherrie
Lou. The couple lived in their own house which is just
adjacent to the house of appellant's family. The
union of the two was never a peaceful one. Constant
quarrels filled their household and occurred in front
of their children and other relatives.
On June 27, 2002, appellant and the victim had one
of their usual fights. As testified by appellant herself,
she and her two children were watching television in
their home when the victim arrived drunk. Victim
asked for his dinner but appellant was not able to
cook food which led to the fight. Christine, the
youngest daughter of the appellant and the victim,
narrated that she witnessed the fight between her
parents, that as the fight escalated, appellant was
able to get hold of the knife which was placed on the
roof and stabbed the victim. The victim fell on the
ground and crawled until he reached the door.
Cristine remembered that people arrived in their
home, helped the victim board a tricycle and
brought him to the hospital. Appellant, on the other
hand, ran out and went to her father and asked for
money and left. That was the last night that Christine
and Cherry Lou saw their mother.7
The Ruling of the RTC
In its September 27, 2012 Decision, the RTC found
the proffered self-defense of Cristina to be
untenable. In its view, there was no longer any
threat to her life before she stabbed her husband
Gerry. Though there was an existent danger as there
was an altercation before the stabbing incident, the
imminence of such danger ceased when, as admitted
by her, Gerry already put down the knife. The RTC
even concluded that it was she who provoked him
when she suddenly pushed him to the ground. She
then took the knife and told him not to come near
her. When he grabbed her, she stabbed him. After
she took hold of the knife, there was no longer any
unlawful aggression to speak of that would
necessitate the need to kill Gerry.8 Thus, the decretal
portion of the RTC decision reads in this wise:
WHEREFORE, finding accused CRISTINA
SAMSON guilty beyond reasonable doubt of the
felony of Parricide defined and penalized under
Article 246 of the Revised Penal Code,
accused CRISTINA SAMSON is hereby sentenced to
suffer a penalty of "Reclusion Perpetua" pursuant to
R.A. 9346 (An Act Prohibiting the Imposition of
Death Penalty in the Philippines).
Accused is also ordered to indemnify the heirs of the
victim, Christine S. Delmar and Cherrie Lo S. Delmar
the amount of P75,000.00 as civil indemnity,
P75,000.00 as moral damages, P30,000.00 as
exemplary damages and costs of suit.
SO ORDERED.9
The Ruling of the CA
The CA affirmed the ruling of the RTC. It stated that
although there could have been an unlawful
aggression at the start when Gerry repeatedly
slapped Cristina and held a knife at her throat, it
already disappeared when he put down the knife.
According to the CA, it was this precise act that gave
Cristina the opportunity to push her husband and
gain control of the knife. Moreover, the fact that she
fled and evaded arrest for four (4) years contradicted
her claim of innocence.10 The CA disposed as follows:
WHEREFORE, the Decision dated September 27,
2012 of the RTC, Branch 65, Tarlac City in Criminal
Case No. 12285, finding accused-appellant guilty
beyond reasonable doubt of the crime of parricide
and sentencing her to reclusion perpetua and to pay
damages and the cost of suit, is AFFIRMED.
SO ORDERED.11
Hence, this appeal.
ISSUE
The sole issue to be resolved in this appeal is
whether or not the CA erred in not appreciating the
justifying circumstance of self-defense in favor of
Cristina.
Let it be underscored that appeal in criminal cases
throws the whole case open for review and it is the
duty of the appellate court to correct, cite and
appreciate errors in the appealed judgment whether
they are assigned or unassigned.12 Considering that
what is at stake here is no less than the liberty of the
accused, this Court has meticulously and thoroughly
reviewed and examined the records of the case and
finds that there is merit in her appeal.
There appears to be a conflict between the
testimony of Cristina and her daughter, Christine
Delmar (Christine). Cristina claimed that she got the
knife from her husband who fell down after she
pushed him. After taking possession of the deadly
weapon, she told her husband not to come near her.
She was holding the knife near her chest and pointed
towards him when he suddenly grabbed her and that
was the time that the knife went in contact with her
husband's chest.
Christine, however, perceived it differently.
According to her, she witnessed the fight between
her parents. She narrated that as the fight escalated,
205 | P a g e
her mother was able to get hold of a knife, which
was inserted in the roof, and used it in stabbing her
father.
Both the RTC and the CA believed the version of
Cristina, but both were of the view that before she
stabbed her husband, there was no more imminent
danger to her life. For said reason, her fatal stabbing
of her husband was not justified.
The Court's Ruling
Self-defense, when invoked as a justifying
circumstance, implies the admission by the accused
that he committed the criminal act. Generally, the
burden lies upon the prosecution to prove the guilt
of the accused beyond reasonable doubt rather than
upon the accused that he was in fact innocent. When
the accused, however, admits killing the victim, it is
incumbent upon him to prove any claimed justifying
circumstance by clear and convincing
evidence.13 Well-settled is the rule that in criminal
cases, self-defense shifts the burden of proof from
the prosecution to the defense.14
To invoke self-defense, in order to escape criminal
liability, it is incumbent upon the accused to prove
by clear and convincing evidence the concurrence of
the following requisites under the second paragraph
of Article 11 of the RPC, viz: (1) unlawful aggression;
(2) reasonable necessity of the means employed to
prevent or repel it; and (3) lack of sufficient
provocation on the part of the person defending
himself.15
Presence of Unlawful Aggression even if Aggressor
was Disarmed
Among the requisites of self-defense, the most
important that needs to be proved by the accused,
for it to prosper, is the element of unlawful
aggression. It must be proven first in order for self-
defense to be successfully pleaded. There can be no
self-defense, whether complete or incomplete,
unless the victim had committed unlawful aggression
against the person who resorted to self-
defense.16 When the Court speaks of unlawful
aggression, it is an actual physical assault, or at least
a threat to inflict real imminent injury, upon a
person. There is an unlawful aggression on the part
of the victim when he puts the life, limb, or right of
the person invoking self-defense in actual or
imminent danger. There must be actual physical
force or actual use of a weapon. It is present only
when the one attacked faces real and immediate
threat to his life. It must be continuous, otherwise, it
does not constitute aggression warranting self-
defense.17
The question now is: was there unlawful aggression
when Cristina killed her husband?
The Court answers in the affirmative.
The Court hesitates to share the observation of the
RTC and the CA that Cristina failed to discharge the
burden of proving that unlawful aggression was
present when she killed her husband.
Contrary to the conclusion of the CA that Gerry's
aggression had already ceased when he was
disarmed, it is the Court's view that the aggression
still continued. Her perceived peril to her life
continued and persisted until she put an end to it.
It must be noted that after she was able to take hold
of the knife from her husband, he did not stand
down but, instead, continued to move towards her
despite her plea that he should not come nearer. He
grabbed her by the arm which could have
precipitated her well-grounded belief that her life
was still in danger if he would be able to wrest the
weapon from her. It was not farfetched to presume
that, being stronger, he could have easily
overpowered her and eventually killed her.
A similar situation was presented in the case
of People v. Rabandaban18 (Rabandaban), wherein
the Court ruled that despite the fact that the
accused succeeded in wresting the bolo from his
wife, he was still justified in using the weapon
against her because his life was still in danger. The
Court explained:
xxx When appellant got possession of the bolo he
already must have been in a precarious condition
because of his wounds, one of which was described
by the sanitary inspector as "fatal" since the large
intestine came out of it. And appellant, we think,
was justified in believing that his wife wanted to
finish him off because, according to the evidence,
she struggled to regain possession of the bolo after
he had succeeded in wresting it from her. With the
aggressor still unsubdued and showing
determination to fight to the finish, it would have
been folly on the part of appellant, who must
already have been losing strength due to loss of
blood, to throw away the bolo and thus give his
adversary a chance to pick it up and again use it
against him. Having the right to protect his life,
appellant was not in duty bound to expose himself to
such a contingency.19
[Emphases Supplied]
In Rabandaban, the victim, instead of running away
from the accused husband after the bolo was
wrested from her, continued to struggle with him to
regain possession of the bolo. This fact, together
with her husband's compromised condition, being
already badly wounded, justified him in finally
neutralizing his wife who was then determined in
putting an end to his life. In the case at bench, the
unlawful aggression would have ceased if he just
walked away from the scene considering that
206 | P a g e
Cristina had gained the upper hand, being the one in
possession of the knife. Instead, Gerry chose to
ignore her plea not to come near her and continued
moving towards her without regard to his safety
despite the fact that the knife was pointed towards
his direction.
In both Rabandaban and the present case, the
victims, despite having been disarmed, still posed a
threat to the lives of the accused. The danger to
their lives persisted leaving them with no other
choice but to defend themselves lest they be the
ones to be victimized.
In that situation, Cristina had reasons to believe that
her life was still in danger. It is to be noted that
before she was able to take hold of the weapon, her
husband held the same knife and pointed it at her
throat. So when he, who was taller and stronger,
approached her and grabbed her by the arm, it was
instinctive for her to take the extreme precautionary
measure by stabbing him before he could get back
the knife and make good his earlier threat of putting
a hole in her throat.
Contrary to the trial court's assessment, she did not
show aggression towards her husband when she
pushed him after he pointed the knife away from
her. She was, in fact, manifesting a passive attitude
towards him when she just stood her ground, with
the knife in hand, asking him not to come near her.20
It would have been a different story if Gerry, after
dropping the knife, walked away and Cristina still
went after him. If that were the case, she could not
assert self-defense. She was no longer acting in self-
defense but in retaliation for the earlier aggression.
Retaliation is inconsistent with self-defense and in
fact belies it. In retaliation, the aggression that was
begun by the injured party already ceased when the
accused attacked him; while in self-defense the
aggression still existed when the aggressor was
injured by the accused.21
Now that unlawful aggression has already been
established, it is well to consider the other two
requisites in order to determine whether the self-
defense is complete or incomplete.
Reasonable Necessity of the Means Employed
The requisite of reasonable necessity of the means
employed is met if the person invoking self-defense
used a weapon or a manner equivalent to the means
of attack used by the aggressor. The reasonable
necessity of the self-defense utilized by an accused is
to defend himself "depends upon the nature or
quality of the weapon, the physical condition, the
character, the size and other circumstances of the
aggressor; as well as those of the person who
invokes self-defense; and also the place and the
occasion of the assault."22 Moreover, the nature and
location of wounds are considered important
indicators whether or not to disprove a plea of self-
defense.23
In the case at bench, the lone stab wound located on
the victim's chest supports the argument that
Cristina feared for her life and this fear impelled her
to defend it by stabbing him. It was a reasonable
means chosen by her in view of the attending
circumstances, to wit: that her stronger husband,
who had earlier pointed the said knife to her throat,
approached her and grabbed her arm, despite her
plea that he refrain from coming near her; and that
she had no other available means or any less deadly
weapon to repel the threat other than the knife in
her hand. She did not have the time or sufficient
tranquillity of mind to think, calculate and choose
the weapon to be used. In predicaments like this,
human nature does not act upon the processes of
formal reason but in obedience to the instinct of
self-preservation.24 When it is apparent that a
person has reasonably acted upon this instinct, it is
the duty of the courts to sanction that act or to
mitigate his liability.25cralawred
Moreover, the fact that Gerry was no longer armed
does not negate the reasonableness of the means
employed by Cristina. Perfect equality between the
weapon used by the one defending himself and that
of the aggressor is not required.26 What the law
requires is a rational equivalence, in the
consideration of which will enter as principal factors
the emergency, the imminent danger to which the
accused is exposed, and the instinct more than
reason, that moves or impels his defense; and the
proportionateness thereof does not depend upon
the harm done, but upon the imminent danger of
such injury.27
Lack of Sufficient Provocation
The last requisite to be considered is lack of
sufficient provocation on the part of the person
defending himself. The Court cannot sustain the trial
court's observation that it was Cristina who
provoked her husband when she suddenly pushed
him. Her shoving him cannot be considered a
sufficient provocation proportionate to the act of
aggression.28 She merely capitalized on a window of
opportunity, when her husband removed the knife
away from her throat, to save herself from what she
had perceived to be a danger to her life. Anybody, in
her situation would have acted in the same
reasonable way.
Flight as an Indication of Guilt or Non-guilt
The CA took the fact of Cristina's flight and evasion
of arrest for four (4) years against her. To the
appellate court, it belied her claim of innocence.
207 | P a g e
Under the attendant circumstances, the Court
cannot subscribe to that view.
Generally, flight, in the absence of a credible
explanation, would be a circumstance from which an
inference of guilt might be established, for a truly
innocent person would normally grasp the first
available opportunity to defend himself and assert
his innocence.29 It has been held, however, that non-
flight may not be construed as an indication of
innocence either. There is no law or dictum holding
that staying put is proof of innocence, for the Court
is not blind to the cunning ways of a wolf which,
after a kill, may feign innocence and choose not to
flee.30 In Cristina's case, she explained that she took
flight for fear of her safety because of possible
retaliation from her husband's siblings.31 The Court
finds such reason for her choice to flee acceptable.
She did not hide from the law but from those who
would possibly do her harm.
The RTC and the CA might have some hesitation in
accepting her explanation for her choice of action.
Nevertheless, under the circumstances, a cloud of
uncertainty lingers. In such a case, it is the duty of
the Court to resolve the doubt in favor of the
accused.
Considering that Cristina was justified in killing her
husband under Article 11, paragraph 1 of the RPC,
she should be exonerated of the crime charged. For
the same reason, the Court finds no act or omission
from which a civil liability may arise.
WHEREFORE, the appeal is GRANTED. The May 6,
2014 Decision of the Court of Appeals, in CA-G.R. CR
HC No. 05832, is REVERSED and SET ASIDE. The
accused-appellant, Cristina Samson, is ACQUITTED of
the crime charged.
Let a copy of this Decision be furnished the
Superintendent, Correctional Institution for Women,
Mandaluyong City. The Superintendent
is DIRECTED to cause the immediate release of
appellant, unless she is being lawfully held for
another cause and to report the action she has taken
within five (5) days from receipt of this Decision.
SO ORDERED.chanroblesvirtuallawlibrary
Carpio, (Chairperson), Brion, Del Castillo, and Leonen,
JJ., concur.
FIRST DIVISION
G.R. No. 224498, January 11, 2018
PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee, v. PFC ENRIQUE REYES, Accused-Appellant.
DECISION
TIJAM, J.:
This is an appeal from the June 10, 2015 Decision1 of
the Court of Appeals (CA) in CA-G.R. CR-HC No.
05671, which affirmed with modification the June
25, 2012 Decision2 of the Regional Trial Court (RTC),
Branch 54, Manila, in Criminal Case No. 91-97103,
modifying accused-appellant PFC Enrique Reyes'
conviction from Murder to Homicide, and the CA's
February 3, 2016 Resolution3 which denied his
Motion for Reconsideration.
The Facts
Accused-appellant was charged with the murder of
Danilo Estrella y Sanchez (Danilo) in an Information
dated August 1, 1991, the accusatory portion of
which reads as follows:
That on or about August 13, 1990, in the City of
Manila, Philippines, the said accused, did then and
there willfully, unlawfully and feloniously, with
treachery and evident premeditation and with intent
to kill, attack, assault and use personal violence upon
C2C DANILO ESTRELLA Y SANCHEZ by then and there
firing his armalite rifle at said C2C Danilo
Estrella y Sanchez who was then walking home and
hitting him on different parts of the body, depriving
the latter of a chance to defend himself from the
attack thereby inflicting upon him mortal gunshot
wounds in the different parts of his body which
wounds were the direct and immediate cause of his
death thereafter.4
On accused-appellant's motion for the
determination of probable cause, the RTC, in its July
23, 1992 Order, found probable cause to hold
accused-appellant for trial and ordered his arrest.
Finding, however, that the evidence of guilt was not
strong, the RTC allowed accused-appellant to post
bail in the amount of P150,000.00. Upon
arraignment, accused-appellant entered a plea of
"not guilty."5
Based on the testimonies of its three eyewitnesses,
namely, Eliseo de Castro (Eliseo), Apolonio Gaza, Jr.
(Apolonio) and Rolando Quintos (Rolando), the
prosecution sought to prove that around 7:00 in the
morning of August 13, 1990, Eliseo and several
others were in the basketball court along Francisco
Street, Tondo, Manila, in front of Danilo's house,
while Rolando was cleaning his truck parked in the
same basketball court. Eliseo and Rolando saw
accused-appellant fire his Armalite rifle upwards
while his nephews, Rey Buenaflor, a certain Al and
Bernie, picked up the empty slugs. Danilo was then
walking towards his house after tending to his
fighting cock, and was three steps away from his
residence when accused-appellant suddenly fired at
him from behind, causing him to fall on the ground.
208 | P a g e
Accused-appellant then approached Danilo. Hearing
the gunshots from his house prompted Apolonio to
go to nearby Francisco Street where he saw Danilo's
body on the ground, bathing in blood, while accused-
appellant, who was wearing only a pair of
camouflage pants and holding an Armalite rifle in his
right hand, stood in front of Danilo. Accused-
appellant took the .38 caliber firearm tucked in
Danilo's waist, and fired the same upwards thrice.
Afterwards, he placed the gun on Danilo's right hand
and turned the latter's body on a lying position. Out
of fear, Eliseo and the others hid behind Rolando's
truck, and when the firing stopped, they tried to get
Danilo's body. Accused-appellant, however, fired his
Armalite upwards, saying "walang kukuha nito, " and
then walked to his house. When the policemen later
arrived, they went into accused-appellant's house.
The policemen, together with accused-appellant,
subsequently boarded the mobile car.6
Dr. Emmanuel Lagonera took the witness stand for
the prosecution to identify the certificate of
identification of dead body as well as the medico
legal report executed by the National Bureau of
Investigation's Dr. Marcial Cenido who passed away
before he could testify in court.7 Based on said
report, Danilo died from multiple gunshot wounds.8
The report listed the following injuries to Danilo's
body:
1. Gunshot wound, right clavicular region, 8.5 cm.
From the anterior midline, measuring 13 cm[.] 8 cm.,
directed obli-backwards, slightly upwards and
towards the middle fracturing the clavicle, middle
3rd, right and 6th cervical vertebra lacerating the
spinal cord, and with the recovery of a markedly
deformed copper jacket and lead fragments
embedded in the muscle tissue at the left lower
nape and a lead splinter at the left upper nape;
2. Gunshot wound, thru and thru, point of entry at
the left temporal region, 2.3 cm. above the left ear,
measuring 1.5 cm. x 0.5 cm., directed obliquely
backwards, downwards and slightly towards the
midline penetrating the cranial cavity and lacerating
the left temporal and occipital lobes and left
cerebellar hemisphere and the slug exiting behind
the left ear and which measures 7 cm. x 6 cm.;
3. Gunshot wound, thru and thru, right ring finger,
point of entry at the dorsal surface measuring 1 cm.,
x 0.6 cm., directed obliquely forwards, very slightly
upwards and towards the small finger fracturing and
dislocating the proximal interphalangeal joint, slug
exiting anteriorly measuring 3 m. 1.2 cm., and
lacerating the palmar surface of the right small finger
and which measures 5.5 cm., x 1.5 cm.;
4. Lacerated wound, proximal 3rd, right arm, antero-
lateral surface measuring 4 cm. x 3 cm. thru the
subcutaneous tissue;
5. Lacerated wound, right arm, middle 3rd, antero-
medial surface measuring 7.5 cm x 4.5 cm. thru the
subcutaneous tissue;
6. Splinter wounds, right and left thigh, anterior; and
7. Abrasion, upper distal 3rd, right leg, antero-medial
surface measuring 2 cm. x 0.2 cm.9
Testifying as the prosecution's rebuttal witness, P/Sr.
Insp. Joseph Torcita of the Philippine National Police
Crime Laboratory identified a Chemistry Report by
which the prosecution sought to prove that a
paraffin examination of Danilo's hands yielded a
negative result for the existence of gunpowder
nitrates.10
With his nephews Adelardo Buenaflor III (Adelardo)
and P/Insp. Gary Reyes (P/Inp. Gary), his neighbors
Celia Rodriguez (Celia) and Ernesto Galvez (Ernesto),
police officer Felizardo Ellano (Ellano) and retired
police ballistician Nelson Fuggan (Nelson), as his
witnesses,11 accused-appellant invoked self-defense.
He claimed that even before the incident, he was
already receiving death threats from Danilo's uncle,
Manuel Sanchez (Manuel), who was a suspected
member of the "Bawas Gang" whose activities he
had a hand in exposing as an Investigator of the
Theft and Robbery Section of the Manila Police
Department.12
According to accused-appellant, he was on his way
home in the morning of August 13, 1990, after
preparing his son's wake, when he was met by
Adelardo who informed him that he had overheard
Danilo and four other men talking on board an
owner-type jeep parked along Velasquez Street,
Tondo, Manila. One of them remarked "Itumba na
natin iyan puede na kahit anong mangyari," to which
Danilo replied "Hagisan ng granada kahit sa bahay."
Fearing for his family's safety, accused-appellant
prepared his Armalite rifle and called for assistance
from the Police Station 1, Theft and Robbery Section,
and the SWAT. After a while, someone outside the
house shouted that there were policemen in civilian
clothes. Hearing this, accused-appellant stood from a
rocking chair, got his Armalite rifle and told Gary and
his other companions not to leave the house.
Accused-appellant then proceeded towards
Francisco Street going to Velasquez Street, thinking
that the police he called had arrived. At that time,
Celia, who was on her way to accused-appellant's
house, saw a man holding a gun approaching
accused-appellant from behind. When Celia shouted
"Ricky," accused-appellant turned towards Celia and
saw Danilo holding a gun in the act of shooting him.
Accused-appellant drew and fired his Armalite rifle,
hitting Danilo who fell on the ground. He took
209 | P a g e
Danilo's gun for his safety. He was about to lift
Danilo to bring him to the hospital, when he heard
gunfire and the cocking of a gun from a container
van parked nearby. Fearful of a possible ambush, he
fired Danilo's .38 caliber revolver as well as his
Armalite rifle at the direction of the container van,
taking cover behind a ten-wheeler truck parked on
the street until the police patrol car arrived. He
proceeded to his house through the backdoor. When
he heard Ellano call his name, he surrendered
himself as well as his Armalite rifle and Danilo's
gun.13
On June 25, 2012, the RTC rendered its
Decision14 convicting accused-appellant of murder.
The dispositive portion of the Decision reads:
WHEREFORE, all premises considered, accused
Enrique Reyes is hereby found guilty beyond
reasonable doubt of the offense of Murder and is
hereby sentenced to suffer the [sic] imprisonment
of reclusion perpetua. Accordingly, the surety bond
posted by the accused for his provisional liberty is
hereby cancelled and the accused is hereby ordered
to be committed at the National Bilibid Prison.
He is, further, sentenced to compensate the Heirs of
Danny Estrella the following amounts consistent with
law and jurisprudence relating to an accused
adjudged guilty of a crime covered by Republic Act
No. 7659: P75,000.00 as civil indemnity; P75,000.00
as moral damages and P30,000 as exemplary
damages.
Furnish the Public Prosecutor, the private
complainants, the accused, his counsel and the
Warden of the Manila City Jail copies of this decision.
Given in open court this 25th day of June 2012 in the
City of Manila, Philippines.15
The RTC gave more weight to the testimonies of the
prosecution witnesses and rejected accused-
appellant's claim of self-defense, finding no clear and
convincing proof that Danilo had assaulted him or
posed an imminent threat to him. The RTC held that
the killing was attended by treachery because
accused-appellant fired at Danilo suddenly and
without giving him the chance to run or defend
himself. The trial court likewise appreciated the
qualifying circumstance of evident premeditation,
holding that accused-appellant had sufficient time to
contemplate his actions while sitting in his rocking
chair before emerging from his house armed with a
rifle, ready to kill.16
On appeal, the CA sustained the RTC's finding that
the killing was not done in self-defense in the
absence of unlawful aggression. However, finding no
sufficient evidence that would establish the
aggravating circumstances of treachery and evident
premeditation, the appellate court downgraded
accused-appellant's conviction from murder to
homicide. The dispositive portion of the CA's June
10, 2015 Decision17 reads:
WHEREFORE, the appeal is PARTIALLY GRANTED. The
June 25, 2012 Decision of the Regional Trial Court,
Branch 54, Manila in Criminal Case No. 91-97103
is AFFIRMED with MODIFICATIONS. As modified,
accused-appellant PFC ENRIQUE REYES is
found GUILTY beyond reasonable doubt of the crime
of HOMICIDE. He is hereby sentenced to suffer the
indeterminate penalty of twelve (12) years of prision
mayor as minimum to fourteen (14) years and eight
(8) months of reclusion temporal minimum as
maximum, and to pay civil indemnity and moral
damages of P50,000.00 each. The award of
exemplary damages is hereby deleted. Further, all
the monetary awards for damages are subject to a
6% interest per annum from date of finality of this
decision until fully paid.
SO ORDERED.
Accused-appellant moved for reconsideration,
assailing both his conviction and the penalty
imposed on him by the appellate court.18 Accused-
appellant also moved to post bail in view of the
downgrading of the offense from murder to
homicide.19 Both motions were denied in the CA's
Resolution dated February 3, 2016.20
In the instant appeal, accused-appellant insists that
he acted in complete self-defense and, thus, prays
for an acquittal.
The Court's Ruling
The appeal lacks merit.
By invoking self-defense, accused-appellant
admitted inflicting the fatal injuries that caused
Danilo's death, albeit under circumstances that, if
proven, would have exculpated him. With this
admission, the burden of proof shifted to him to
show that the killing was attended by the following
circumstances: (1) unlawful aggression on the part of
the victim; (2) reasonable necessity of the means
employed to prevent or repel such aggression; and
(3) lack of sufficient provocation on the part of the
person invoking self defense.21
Considering that self-defense totally exonerates the
accused from criminal responsibility, it is incumbent
upon him who invokes the same to prove by clear,
satisfactory and convincing evidence. that he indeed
acted in defense of his life or personal
safety.22 When successful, an otherwise felonious
deed would be excused, mainly predicated on the
lack of criminal intent of the accused.23
210 | P a g e
Unlawful aggression is the indispensable element of
self-defense, for if no unlawful aggression attributed
to the victim is established, self-defense is unavailing
for there is nothing to repel.24 Verily, there can be no
self-defense, whether complete or incomplete,
unless the victim had committed unlawful aggression
against the person invoking it as a justifying
circumstance.25
Unlawful aggression is an actual physical assault, or
at least a threat to inflict real imminent injury, upon
a person.26 The test for the presence of unlawful
aggression is whether the victim's aggression placed
in real peril the life or personal safety of the person
defending himself. The danger must not be an
imagined or imaginary threat. Accordingly, the
confluence of these elements of unlawful aggression
must be established by the accused, to wit: (a) there
must be a physical or material attack or assault; (b)
the attack or assault must be actual, or at least
imminent; and (c) the attack or assault must be
unlawful.27
As the second element of unlawful aggression will
show, it is of two kinds: (a) actual or material
unlawful aggression; and (b) imminent unlawful
aggression. Actual or material unlawful aggression
means an attack with physical force or with a
weapon, an offensive act that positively determines
the intent of the aggressor to cause the
injury.28 Imminent unlawful aggression means an
attack that is impending or at the point of
happening; it must not consist in a mere threatening
or intimidating attitude, nor must it be merely
imaginary, but must be offensive, menacing and
positively strong, manifestly showing the wrongful
intent to cause injury (like aiming a revolver at
another with intent to shoot or opening a knife and
making a motion as if to attack).29 There must be an
actual, sudden, unexpected attack or imminent
danger thereof, which puts the accused's life in real
peril.30
Tested against the foregoing criteria, the Court finds
the element of unlawful aggression to be wanting in
this case. As the CA succinctly held:
There is nothing in the records which would clearly
and convincingly prove Enrique's claim that his life
was in danger when he saw Danilo. Enrique claimed
that when Celia shouted his name, he saw Danilo
who was about to shoot him. However, based on
Celia's testimony, Danilo was only approaching
Enrique while holding a gun. Celia did not witness
any positive act showing the actual and material
unlawful aggression on the part of the victim. Even
P/Insp. Gary, whom Enrique presented as an alleged
eyewitness, only testified that he saw a man carrying
a small firearm approaching Enrique and when the
latter turned to his right, a volley of gunshots
followed. Evidently, the records of this case are
bereft of any indication of unlawful aggression that
would justify a finding of self-defense.31
Indeed, accused-appellant failed to show an attack
so offensive, menacing and strongly indicative of an
intent to cause injury, as to justify the killing of
Danilo. In People v. Rubiso32, the Court held:
Assuming that Hubines had a gun and pulled it,
however, records show that he did not manifest any
aggressive act which may have imperiled the life and
limb of herein appellant. It is axiomatic that the
mere thrusting of one's hand into his pocket as if for
the purpose of drawing a weapon is not unlawful
aggression. Even the cocking of a rifle without aiming
the firearm at any particular target is not sufficient
to conclude that one's life was in imminent danger.
Hence, a threat, even if made with a weapon, or the
belief that a person was about to be attacked, is not
sufficient. It is necessary that the intent be
ostensibly revealed by an act of aggression or by
some external acts showing the commencement of
actual and material unlawful aggression.33 (Emphasis
ours)
Furthermore, the prosecution's eyewitnesses have
established that Danilo was on his way home after
tending to his fighting cock, and was three steps
away from his house, when accused-appellant
suddenly fired his Armalite at him. They also testified
that Danilo's gun was tucked in his waist (or his right
side), repudiating accused-appellant's claim that the
victim had been holding a gun when accused-
appellant shot him.
Both the RTC and the CA gave weight and credence
to the testimonies of said eyewitnesses. The CA
noted that they were "made in a clear, positive,
straightforward and consistent manner that
inspire(s) belief, unwavering even under cross-
examination by the defense."34 The appellate court
further observed that the testimonies were "replete
with details that could not easily be concocted by
prevaricating witnesses."35
The trial court's assessment of the facts, as affirmed
by the CA, is entitled to great weight and
respect.36 Absent any clear disregard of evidence,
We find no reason to deviate from such finding.37
The records also show no evidence of any dubious or
improper motive on the part of the prosecution's
eyewitnesses to falsely testify against accused-
appellant.38 It is settled that where there is nothing
to indicate that 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.39
Accused-appellant harps on the alleged
inconsistencies in the prosecution witnesses'
211 | P a g e
testimonies. He points to the supposed disparity
between Rolando's testimony that accused-appellant
got Danilo's gun from his waist and Apolonio's
account that accused-appellant took it from the right
side of Danilo's chest. Accused-appellant likewise
impugns Rolando's testimony that accused-appellant
shot Danilo six times, which allegedly conflicts with
the three gunshot wounds indicated in the medico-
legal report.40
However, after having owned the crime, the burden
of proof has been shifted to accused-appellant to
establish self-defense. He, therefore, cannot simply
protest that the prosecution's evidence is weak. He
must rely on the strength of his own evidence
because even if weak, the prosecution's evidence
cannot be disbelieved after the accused himself has
admitted to the killing. His failure to adduce clear
and convincing evidence of self-defense will
accordingly result in his conviction.41
In any event, as the CA correctly found, the
inconsistencies thus cited refer to minor matters.
Inconsistencies in the witnesses' testimonies
referring to minor details do not destroy their
credibility.42 Such minor inconsistencies even
manifest truthfulness and candor and remove any
suspicion of a rehearsed testimony.43 Different
persons have different reflexes which may produce
varying reactions, impressions, perceptions and
recollections.44 Considering the natural frailties of
the human mind and its capacity to assimilate all
material details of a given incident, slight variances
in the declarations of witnesses hardly weaken their
probative value.45 As long as the testimonies of the
witnesses corroborate one another on material
points, particularly in relating the principal
occurrence and in the positive identification of the
assailant, minor inconsistencies therein will not
impair their credibility.46
The alleged inconsistencies aside, the testimonies of
the prosecution's eyewitnesses concur on material
points.47 Taken as a whole,48 they clearly establish
that Danilo was neither holding nor pointing a gun at
accused-appellant, and was in fact on his way home,
when accused-appellant shot him with an Armalite
rifle.
Besides, whether Danilo's gun was taken by accused-
appellant from his waist or from the right side of his
chest, the testimonies of Apolonio and Rolando are
consistent in showing that the gun was tucked close
to the victim's body, negating accused-appellant's
claim that Danilo was pointing the same at him.
Furthermore, in People v. Joel Tañeza y Dacal,49 the
Court held:
Accused-appellant points to the fact that Esgrina's
testimony conflicts with the medico-legal report of
Dr. Figuracion as well as the physical evidence, for
while Esgrina stated that the victim was shot four
times, the autopsy indicated at least five gunshot
wounds and only four empty shells were submitted
in evidence by the prosecution. Furthermore, there
is no indication of head bruises in the autopsy report
as to coincide with Esgrina's representation that she
saw accused-appellant strike Umandam on the head
with the gun.
Even as Esgrina's eyewitness account does not tally
to the last detail with the findings in the medico-
legal report, we do not perceive such inconsistencies
as materially affecting the substance of her
testimony. Inconsistencies such as these in the
testimonies of prosecution witnesses have been
known to happen, and indeed acquittals have been
the result where the inconsistencies and self-
contradictions dealt with material points as to
altogether erode the credibility of the witness. On
the other hand, discrepancies which are minor in
character may also serve to add credence and
veracity to a witness' testimony, and enhance her
credibility in the process. The latter rule we find
applicable to the instant case, for the inconsistencies
pointed out by the defense do not alter the
substance of Esgrina's testimony - which is that
accused-appellant attacked a defenseless Emersion
Umandam.50
Accused-appellant contends that the "looming"
death threat from Manuel's group, owing to his
exposure of the latter's alleged illegal activities,
became real and evident when his nephew,
Adelardo, overheard Danilo's plan to kill him. Thus,
he submits that Danilo's remarks were "more than
enough to show the imminent and real danger" to
his life.51
The jurisprudential standards for a finding of
unlawful aggression clearly negate accused-
appellant's argument. Granting they were true,
neither the "looming" threat perceived by accused-
appellant nor the remarks overheard by his nephew
satisfies the requirement of an actual, menacing,
sudden and unexpected danger to accused-
appellant's life. To constitute imminent unlawful
aggression, the attack must be at the point of
happening and must not be imaginary or consist in a
mere threatening attitude.52 Furthermore, as the
trial court found, the supposed threat overheard by
Adelardo actually made "no specific or definite
reference to (accused appellant)."53 The Court is thus
unconvinced that there was a real peril to accused-
appellant's life when he killed Danilo.
Accused-appellant avers that in self-defense, he fired
shots at Danilo, hitting the ring finger of the latter's
right hand which supposedly held a gun pointed at
him. Accused-appellant thus argues that the gunshot
wound through Danilo's right ring finger as well as
the lacerated wounds on his right arm prove that
212 | P a g e
Danilo was in the act of shooting and guilty of
unlawful aggression.
We are not persuaded. Said injuries do not
conclusively prove accused-appellant's theory of
unlawful aggression, and accused-appellant has
offered no credible evidence to convince the Court
otherwise. The testimonies of accused-appellant's
own witnesses failed to establish that the victim was
aiming a gun at him. Furthermore, the testimonies of
the prosecution witnesses consistently showed that
the victim was neither holding a gun nor pointing
one at accused-appellant. Plainly taken, therefore,
the argument is baseless and self-serving. Besides,
accused-appellant's contention only serves to prove
that the other gunshots, to the victim's head and
clavicle, both fatal,54 were neither necessary nor
justified in the name of self-defense.
Verily, accused-appellant failed to discharge his
burden of proving unlawful aggression by clear and
convincing evidence. Unlawful aggression on the
part of the victim is a statutory and doctrinal
requirement for the justifying circumstance of self-
defense to be appreciated. Without it, there can be
no self-defense, complete or incomplete.55
In fact, evidence clearly establishes that accused-
appellant was the aggressor. As the RTC found,
Eliseo and Rolando positively and categorically
stated that even before Danilo was shot, accused-
appellant was already firing his Armalite rifle
upwards and as Danilo was walking towards his
house, accused-appellant suddenly fired at him,
causing him to fall on the ground. Eyewitnesses also
saw accused-appellant then take the firearm tucked
in Danilo's waist and fire it thrice in an upward
direction, placing the gun thereafter on Danilo's right
hand and turning his body in a lying position. When
Eliseo and others tried to get Danilo's body, accused-
appellant fired his Armalite upward, telling them
"walang kukuha nito."
Considering that accused-appellant was the
aggressor, his employment of any means in
furtherance of the aggression cannot be considered
as the rational means to repel an illegal aggression.56
Furthermore, accused-appellant's plea of self-
defense is belied by the nature and number of
wounds suffered by Danilo which reveal an intent to
kill and not merely an effort to prevent or repel an
attack.57
The autopsy report shows that the victim died from
multiple gunshot wounds, including one on the left
temple and another on the right collarbone, both of
which proved fatal. The gunshot wound on the
victim's head, a vital part of the body, demonstrates
a mind resolved to end the life of the victim.58 The
multiple shots which accused-appellant fired at the
victim unmistakably manifested an irrevocable
decision to kill.59 It has been held in this regard that
the location, gravity and presence of several wounds
on the victim's body provide physical evidence that
eloquently refutes allegations of self-
defense.60 Physical evidence is evidence of the
highest order; it speaks more eloquently than a
hundred witnesses.61
Granting the victim was indeed holding a gun, as
defense witnesses Celia and Gary portrayed him,
accused-appellant's infliction of multiple gunshot
wounds on the victim, including one on the victim's
head, is neither commensurate nor reasonable. The
second element of self-defense is thus clearly
absent.
The last element of self-defense is also wanting. As
the clear aggressor, accused-appellant cannot
successfully argue that there was no sufficient
provocation on his part.
Another factor that militates against accused-
appellant's defense lies in the incredulous aspects of
his version of the incident.
It is settled that testimonial evidence to be believed
must not only proceed from the mouth of a credible
witness but must foremost be credible in itself.
Accordingly, the test to determine the value or
credibility of a witness' testimony is whether the
same is in conformity with common knowledge and
is consistent with the experience of mankind.62
Accused-appellant alleged that minutes after calling
the police station for assistance, "somebody shouted
coming from the outside that there were policemen
who were in civilian clothes outside [sic]," which
prompted him to go out of the house with his
Armalite rifle.63 It is, however, against common
experience for someone to shout the arrival of the
police and in the same breath describe their attire. It
appears that accused-appellant had to add that
sartorial detail if only to justify his leaving the house
when no policemen were visibly outside. The excuse
proffered, indeed, hardly inspires belief.
Furthermore, as it would have been readily apparent
that the police, whose protection accused-appellant
allegedly sought, were not in fact present, the most
natural and logical reaction was for him to have
immediately returned to the safety of his house.
Accused-appellant also alleged that when he shot
Danilo, he was merely defending himself from the
unlawful aggression of the latter and his group who
were armed.64 He averred that after he shot Danilo
in self defense, he tried to lift Danilo so he could
bring him to the hospital but he was fired upon,
allegedly by Danilo's group, until the police
arrived.65 However, it taxes credulity how the
213 | P a g e
victim's group would not have immediately fired at
him the moment he shot Danilo. It is implausible that
they would wait until he has fired several shots,
taken Danilo's revolver and tried to lift him, before
commencing fire either to protect their own or to
execute the purported plan to kill him.
In fine, the Court agrees with both the trial and
appellate courts that accused-appellant failed to
discharge his burden of proving self-defense.
Contrary to accused-appellant's assertion, the Court
cannot disregard the trial court's findings or reverse
its decision on the ground that it has been reached
by a trial judge who merely took over the case and
did not hear or observe the deportment of the
witnesses. While the trial judge who presided over
the trial of the case would be in a better position to
determine the truth or falsity of the witnesses'
testimonies, it does not necessarily follow that a
judge who was not present during the trial cannot
render a valid and just decision, as he could rely on
the transcribed stenographic notes taken during the
trial as the basis for his decision. This is the main
reason for the mandatory requirement that all trial
courts be courts of record.66
The Court agrees with the CA that the qualifying
circumstance of evident premeditation was not
sufficiently proved.
The elements of evident premeditation are: (1) the
time when the accused determined to commit the
crime; (2) an act manifestly indicating that the
accused has clung to his determination; and (3) a
sufficient lapse of time between such determination
and execution to allow him to reflect upon the
consequences of his act.67 Every element of the
circumstance must be shown to exist beyond
reasonable doubt.68 To be considered an aggravation
of the offense, the circumstance must not merely be
premeditation but must be evident premeditation.69
The foregoing elements have not been established
beyond reasonable doubt.
In finding the existence of evident premeditation,
the trial court observed that there existed an
animosity between accused-appellant and Danilo's
uncle and close ally, Manuel, after he exposed
Manuel's alleged illegal activities and the latter filed
a libel case against him. The RTC concluded that
accused-appellant, who had a grudge against
Manuel, had sufficient time to ponder his feelings for
Danilo and his uncle as he "waited several minutes
to lapse while sitting in a rocking chair inside his
house before he went out of the house carrying a
loaded assault rifle."70
It is settled, however, that mere existence of ill
feelings or grudges between the parties is not
sufficient to sustain a conclusion of premeditated
killing.71 Furthermore, it cannot be said that enough
time has passed to allow accused-appellant to reflect
upon the consequences of his act.72 "It has been held
in one case that even the lapse of 30 minutes
between the determination to commit a crime and
the execution thereof is insufficient for full
meditation on the consequences of the act."73
The essence of premeditation is that the execution
of the criminal act must be preceded by cool thought
and reflection upon the resolution to carry out the
criminal intent during an interval of time sufficient to
arrive at a calm judgment.74 There is no evident
premeditation when the attack was the result of
rising tempers or made in the heat of anger.75
The Court, however, disagrees with the CA's finding
that the qualifying circumstance of treachery was
absent.
There is treachery when the offender, in committing
any of the crimes against persons, employs means or
methods which tend to directly and specially ensure
its execution, without risk to himself arising from the
defense which the offended party might make.
When alleged in the information and clearly proved,
treachery qualifies the killing and elevates it to the
crime of murder.76
Treachery was established in this case. Prosecution
witnesses Eliseo and Rolando, whose testimonies
were found to be credible by both the RTC and the
CA, showed that Danilo was walking towards his
house after tending to his fighting cock, and was
three steps away from his residence when accused-
appellant suddenly rushed towards his direction and
shot him.77 Accused-appellant's shots, fired from an
assault rifle, were multiple and successive, depriving
Danilo of any chance to run or to defend himself and
repel the attack. The foregoing circumstances are
manifestly indicative of the presence of the
conditions under which treachery may be
appreciated.78
In finding that the killing was not attended by
treachery, the CA reasoned that "(the) bad blood
between Enrique and Danilo, taken together with
the fact that accused-appellant was firing an assault
rifle while walking towards Francisco St. and the
victim attempted to retreat to the comfort of his
residence militate against the prosecution's claim
that the attack was sudden and unexpected."79
It has been held, however, that treachery may still
be appreciated even when the victim was
forewarned of the danger to his person. What is
decisive is that the execution of the attack made it
impossible for the victim to retaliate or defend
himself,80 as in this case. Furthermore, that Danilo
did not find it necessary to pull out his gun _ and
prepare to defend himself against a possible assault
214 | P a g e
from accused-appellant, underscores the fact that he
did not expect the attack.
Even if the Court were to consider accused-
appellant's contention, supposedly based on the
autopsy report, that Danilo was shot frontally, it is
settled that the essence of treachery is the
unexpected and sudden attack on the victim that
renders the latter unable and unprepared to defend
himself because of the suddenness and severity of
the attack. This criterion applies whether the attack
is frontal or from behind. Thus, a frontal attack could
still be deemed treacherous when unexpected and
on an unarmed victim who would not be in a
position to repel the attack or avoid it.81 It has been
sufficiently established by the prosecution that
accused-appellant's attack on Danilo was
unexpected and executed in a manner that deprived
the latter of a chance to put up a defense.
The killing having been committed with alevosia,
accused-appellant's conviction for homicide, as
determined by the CA, must be modified to one for
murder. It must be stressed that an appeal in a
criminal case throws the entire case wide open for
review, and it becomes the duty of this Court to
correct any error in the appealed judgment, whether
or not raised by the parties.82 The appeal confers on
the reviewing tribunal full jurisdiction over the case
and renders such court competent to examine
records, revise the judgment appealed from, and
increase the penalty. 83
On the strength of defense witness Ellano's
testimony, the CA appreciated the mitigating
circumstance of voluntary surrender. To be
considered a mitigating circumstance, voluntary
surrender must be spontaneous and made in such
manner that it shows the intent of the accused to
surrender unconditionally to the authorities, either
because he acknowledges his guilt or wishes to save
them the trouble and expense that will be incurred
in his search and capture.84
Ellano's testimony indicates that around 6:30 in the
morning on August 13, 1990, before the shooting
incident, he received a call from accused-appellant
asking for police assistance as his family was
reportedly in danger.85 The prosecution's evidence
showed that after the incident, accused-appellant
went back to his house and the policemen later on
arrived.86 Ellano confirmed that as he and his team
of policemen approached the gate of accused-
appellant's residence, the latter appeared and
surrendered himself, his firearm and Danilo's
revolver.87
The confluence of the foregoing circumstances
justifies the appreciation of a mitigating
circumstance of a similar nature or analogous to
voluntary surrender, under number 10, Article
1388 of the Revised Penal Code.89 Indeed, it would
appear that accused-appellant returned home
following the incident and resolved to remain there,
knowing that the police was on its way to his house.
And as the policemen approached his home, he
directly gave himself up to them. If accused-
appellant wanted to abscond, he could have readily
done so but this, he did not do.90
The crime was committed prior to the effectivity of
Republic Act (RA) No. 7659,91 during the suspension
of the death penalty.92 Before RA No. 7659 took
effect on December 31, 1993 reimposing the death
penalty, the penalty for murder was reclusion
temporal, in its maximum period, to death.93 Since
the crime in this case was not attended by the
generic aggravating circumstance of evident
premeditation, and the mitigating circumstance
analogous to voluntary surrender is credited in
accused-appellant's favor, the minimum penalty for
murder, i.e., reclusion temporal in its maximum
period, shall be imposed pursuant to Article 64(2) of
the Revised Penal Code.94 Applying the
Indeterminate Sentence Law, accused-appellant is
sentenced to ten (10) years and one (1) day
of prision mayor, as minimum, to seventeen (17)
years, four (4) months and one (1) day of reclusion
temporal, as maximum.95
In keeping with prevailing jurisprudence on damages
to be awarded when murder is committed,96 the civil
indemnity and moral damages awarded by the CA
are each increased to P100,000.00. Exemplary
damages in the amount of P100,000.00 are also
awarded. Accused-appellant shall additionally pay
temperate damages in the amount of P50,000.00 as
it cannot be denied that the heirs of the victims
suffered pecuniary loss although the exact amount
was not proved.97 All monetary awards are subject to
interest at the rate of six percent (6%) per
annum from the finality of this decision until fully
paid.98
WHEREFORE, the Decision of the Court of Appeals
dated June 10, 2015 in CA-G.R. CR-HC No. 05671
is MODIFIED in that accused-appellant is held guilty
of murder and sentenced to a penalty of ten (10)
years and one (1) day of prision mayor, as minimum,
to seventeen (17) years, four (4) months and one (1)
day of reclusion temporal, as maximum.
Furthermore, accused-appellant shall pay civil
indemnity, moral damages and exemplary damages,
each in the amount of P100,000.00, as well as
temperate damages in the amount of P50,000.00.
The civil indemnity and all damages payable by
accused-appellant are subject to interest at the rate
of six percent (6%) per annum from the finality of
this Decision until fully paid.
SO ORDERED.
215 | P a g e
Sereno, C.J., (Chairperson), Velasco, Jr.,* Leonardo-De
Castro, and Del Castillo, JJ., concur.
Endnotes:
EN BANC
G.R. No. 135981 January 15, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
MARIVIC GENOSA, appellant.
DECISION
PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors
her prayer for acquittal on a novel theory -- the
"battered woman syndrome" (BWS), which allegedly
constitutes self-defense. Under the proven facts,
however, she is not entitled to complete exoneration
because there was no unlawful aggression -- no
immediate and unexpected attack on her by her
batterer-husband at the time she shot him.
Absent unlawful aggression, there can be no self-
defense, complete or incomplete.
But all is not lost. The severe beatings repeatedly
inflicted on appellant constituted a form of
cumulative provocation that broke down her
psychological resistance and self-control. This
"psychological paralysis" she suffered diminished her
will power, thereby entitling her to the mitigating
factor under paragraphs 9 and 10 of Article 13 of the
Revised Penal Code.
In addition, appellant should also be credited with
the extenuating circumstance of having acted upon
an impulse so powerful as to have naturally
produced passion and obfuscation. The acute
battering she suffered that fatal night in the hands of
her batterer-spouse, in spite of the fact that she was
eight months pregnant with their child,
overwhelmed her and put her in the aforesaid
emotional and mental state, which overcame her
reason and impelled her to vindicate her life and her
unborn child's.
Considering the presence of these two mitigating
circumstances arising from BWS, as well as the
benefits of the Indeterminate Sentence Law, she
may now apply for and be released from custody on
parole, because she has already served the minimum
period of her penalty while under detention during
the pendency of this case.
The Case
For automatic review before this Court is the
September 25, 1998 Decision 1 of the Regional Trial
Court (RTC) of Ormoc City (Branch 35) in Criminal
Case No. 5016-0, finding Marivic Genosa guilty
beyond reasonable doubt of parricide. The decretal
portion of the Decision reads:
"WHEREFORE, after all the foregoing being
duly considered, the Court finds the
accused, Marivic Genosa y Isidro, GUILTY
beyond reasonable doubt of the crime of
Parricide as provided under Article 246 of
the Revised Penal Code as restored by Sec.
5, RA No. 7659, and after finding treachery
as a generic aggravating circumstance and
 none of mitigating circumstance, hereby 'Fracture, open, depressed, circular Bilwang, Isabel, Leyte where they lived with
sentences the accused with the penalty of located at the occipital bone of the their two children, namely: John Marben
DEATH. head, resulting [in] laceration of and Earl Pierre.
the brain, spontaneous rupture of
"The Court likewise penalizes the accused to the blood vessels on the posterior "On November 15, 1995, Ben and Arturo
pay the heirs of the deceased the sum of surface of the brain, laceration of Basobas went to a cockfight after receiving
fifty thousand pesos (P50,000.00), the dura and meningeal vessels their salary. They each had two (2) bottles
Philippine currency as indemnity and producing severe intracranial of beer before heading home. Arturo would
another sum of fifty thousand pesos hemorrhage. pass Ben's house before reaching his. When
(P50,000.00), Philippine currency as moral they arrived at the house of Ben, he found
damages."2 'Blisters at both extrem[i]ties, out that appellant had gone to Isabel, Leyte
anterior chest, posterior chest, to look for him. Ben went inside his house,
The Information3 charged appellant with parricide as trunk w/ shedding of the while Arturo went to a store across it,
follows: epidermis. waiting until 9:00 in the evening for
the masiao runner to place a bet. Arturo did
"That on or about the 15th day of November 'Abdomen distended w/ gas. Trunk not see appellant arrive but on his way
1995, at Barangay Bilwang, Municipality of bloated.' home passing the side of the Genosas'
Isabel, Province of Leyte, Philippines and rented house, he heard her say 'I won't
within the jurisdiction of this Honorable which caused his death."4 hesitate to kill you' to which Ben replied
Court, the above-named accused, with 'Why kill me when I am innocent?' That was
intent to kill, with treachery and evident the last time Arturo saw Ben alive. Arturo
With the assistance of her counsel,5 appellant
premeditation, did then and there wilfully, also noticed that since then, the Genosas'
pleaded not guilty during her arraignment on March
unlawfully and feloniously attack, assault, rented house appeared uninhabited and
3, 1997.6 In due course, she was tried for and
hit and wound one BEN GENOSA, her was always closed.
convicted of parricide.
legitimate husband, with the use of a hard
deadly weapon, which the accused had "On November 16, 1995, appellant asked
The Facts
provided herself for the purpose, [causing] Erlinda Paderog, her close friend and
the following wounds, to wit: neighbor living about fifty (50) meters from
Version of the Prosecution
her house, to look after her pig because she
'Cadaveric spasm. was going to Cebu for a pregnancy check-
The Office of the Solicitor General (OSG) summarizes up. Appellant likewise asked Erlinda to sell
the prosecution's version of the facts in this wise: her motorcycle to their neighbor Ronnie
'Body on the 2nd stage of
Dayandayan who unfortunately had no
decomposition.
"Appellant and Ben Genosa were united in money to buy it.
marriage on November 19, 1983 in Ormoc
'Face, black, blownup & swollen w/ City. Thereafter, they lived with the parents "That same day, about 12:15 in the
evident post-mortem lividity. Eyes of Ben in their house at Isabel, Leyte. For a afternoon, Joseph Valida was waiting for a
protruding from its sockets and time, Ben's younger brother, Alex, and his bus going to Ormoc when he saw appellant
tongue slightly protrudes out of wife lived with them too. Sometime in going out of their house with her two kids in
the mouth. 1995, however, appellant and Ben rented tow, each one carrying a bag, locking the
from Steban Matiga a house at Barangay gate and taking her children to the waiting

216 | P a g e
 area where he was. Joseph lived about fifty
(50) meters behind the Genosas' rented
house. Joseph, appellant and her children
rode the same bus to Ormoc. They had no
conversation as Joseph noticed that
appellant did not want to talk to him.
"On November 18, 1995, the neighbors of
Steban Matiga told him about the foul odor
emanating from his house being rented by
Ben and appellant. Steban went there to
find out the cause of the stench but the
house was locked from the inside. Since he
did not have a duplicate key with him,
Steban destroyed the gate padlock with a
borrowed steel saw. He was able to get
inside through the kitchen door but only
after destroying a window to reach a hook
that locked it. Alone, Steban went inside the
unlocked bedroom where the offensive
smell was coming from. There, he saw the
lifeless body of Ben lying on his side on the
bed covered with a blanket. He was only in
his briefs with injuries at the back of his
head. Seeing this, Steban went out of the
house and sent word to the mother of Ben
about his son's misfortune. Later that day,
Iluminada Genosa, the mother of Ben,
identified the dead body as that of [her]
son.
"Meanwhile, in the morning of the same
day, SPO3 Leo Acodesin, then assigned at
the police station at Isabel, Leyte, received a
report regarding the foul smell at the
Genosas' rented house. Together with SPO1
Millares, SPO1 Colon, and Dr. Refelina
Cerillo, SPO3 Acodesin proceeded to the
house and went inside the bedroom where
they found the dead body of Ben lying on
his side wrapped with a bedsheet. There
217 | P a g e
was blood at the nape of Ben who only had
his briefs on. SPO3 Acodesin found in one
corner at the side of an aparador a metal
pipe about two (2) meters from where Ben
was, leaning against a wall. The metal pipe
measured three (3) feet and six (6) inches
long with a diameter of one and half (1 1/2)
inches. It had an open end without a stop
valve with a red stain at one end. The
bedroom was not in disarray.
"About 10:00 that same morning, the
cadaver of Ben, because of its stench, had
to be taken outside at the back of the house
before the postmortem examination was
conducted by Dr. Cerillo in the presence of
the police. A municipal health officer at
Isabel, Leyte responsible for medico-legal
cases, Dr. Cerillo found that Ben had been
dead for two to three days and his body was
already decomposing. The postmortem
examination of Dr. Cerillo yielded the
findings quoted in the Information for
parricide later filed against appellant. She
concluded that the cause of Ben's death
was 'cardiopulmonary arrest secondary to
severe intracranial hemorrhage due to a
depressed fracture of the occipital [bone].'
"Appellant admitted killing Ben. She
testified that going home after work on
November 15, 1995, she got worried that
her husband who was not home yet might
have gone gambling since it was a payday.
With her cousin Ecel Araño, appellant went
to look for Ben at the marketplace and
taverns at Isabel, Leyte but did not find him
there. They found Ben drunk upon their
return at the Genosas' house. Ecel went
home despite appellant's request for her to
sleep in their house.
"Then, Ben purportedly nagged appellant
for following him, even challenging her to a
fight. She allegedly ignored him and instead
attended to their children who were doing
their homework. Apparently disappointed
with her reaction, Ben switched off the light
and, with the use of a chopping knife, cut
the television antenna or wire to keep her
from watching television. According to
appellant, Ben was about to attack her so
she ran to the bedroom, but he got hold of
her hands and whirled her around. She fell
on the side of the bed and screamed for
help. Ben left. At this point, appellant
packed his clothes because she wanted him
to leave. Seeing his packed clothes upon his
return home, Ben allegedly flew into a rage,
dragged appellant outside of the bedroom
towards a drawer holding her by the neck,
and told her 'You might as well be killed so
nobody would nag me.' Appellant testified
that she was aware that there was a gun
inside the drawer but since Ben did not
have the key to it, he got a three-inch long
blade cutter from his wallet. She however,
'smashed' the arm of Ben with a pipe,
causing him to drop the blade and his
wallet. Appellant then 'smashed' Ben at his
nape with the pipe as he was about to pick
up the blade and his wallet. She thereafter
ran inside the bedroom.
"Appellant, however, insisted that she
ended the life of her husband by shooting
him. She supposedly 'distorted' the drawer
where the gun was and shot Ben. He did not
die on the spot, though, but in the
bedroom."7 (Citations omitted)
Version of the Defense
Appellant relates her version of the facts in this
manner:
"1. Marivic and Ben Genosa were allegedly
married on November 19, 1983. Prior to her
marriage, Marivic had graduated from San
Carlos, Cebu City, obtaining a degree of
Bachelor of Science in Business
Administration, and was working, at the
time of her husband's death, as a Secretary
to the Port Managers in Ormoc City. The
couple had three (3) children: John Marben,
Earl Pierre and Marie Bianca.
"2. Marivic and Ben had known each other
since elementary school; they were
neighbors in Bilwang; they were classmates;
and they were third degree cousins. Both
sets of parents were against their
relationship, but Ben was persistent and
tried to stop other suitors from courting
her. Their closeness developed as he was
her constant partner at fiestas.
"3. After their marriage, they lived first in
the home of Ben's parents, together with
Ben's brother, Alex, in Isabel, Leyte. In the
first year of marriage, Marivic and Ben 'lived
happily'. But apparently, soon thereafter,
the couple would quarrel often and their
fights would become violent.
"4. Ben's brother, Alex, testified for the
prosecution that he could not remember
when Ben and Marivic married. He said that
when Ben and Marivic quarreled, generally
when Ben would come home drunk, Marivic
would inflict injuries on him. He said that in
one incident in 1993 he saw Marivic holding
a kitchen knife after Ben had shouted for
help as his left hand was covered with
218 | P a g e
blood. Marivic left the house but after a
week, she returned apparently having asked
for Ben's forgiveness. In another incident in
May 22, 1994, early morning, Alex and his
father apparently rushed to Ben's aid again
and saw blood from Ben's forehead and
Marivic holding an empty bottle. Ben and
Marivic reconciled after Marivic had
apparently again asked for Ben's
forgiveness.
"Mrs. Iluminada Genosa, Marivic's mother-
in-law, testified too, saying that Ben and
Marivic married in '1986 or 1985 more or
less here in Fatima, Ormoc City.' She said as
the marriage went along, Marivic became
'already very demanding. Mrs. Iluminada
Genosa said that after the birth of Marivic's
two sons, there were 'three (3)
misunderstandings.' The first was when
Marivic stabbed Ben with a table knife
through his left arm; the second incident
was on November 15, 1994, when Marivic
struck Ben on the forehead 'using a sharp
instrument until the eye was also affected.
It was wounded and also the ear' and her
husband went to Ben to help; and the third
incident was in 1995 when the couple had
already transferred to the house in Bilwang
and she saw that Ben's hand was plastered
as 'the bone cracked.'
"Both mother and son claimed they brought
Ben to a Pasar clinic for medical
intervention.
"5. Arturo Basobas, a co-worker of Ben,
testified that on November 15, 1995 'After
we collected our salary, we went to the
cock-fighting place of ISCO.' They stayed
there for three (3) hours, after which they
went to 'Uniloks' and drank beer – allegedly
only two (2) bottles each. After drinking
they bought barbeque and went to the
Genosa residence. Marivic was not there.
He stayed a while talking with Ben, after
which he went across the road to wait 'for
the runner and the usher of the masiao
game because during that time, the hearing
on masiao numbers was rampant. I was
waiting for the ushers and runners so that I
can place my bet.' On his way home at
about 9:00 in the evening, he heard the
Genosas arguing. They were quarreling
loudly. Outside their house was one 'Fredo'
who is used by Ben to feed his fighting
cocks. Basobas' testimony on the root of
the quarrel, conveniently overheard by him
was Marivic saying 'I will never hesitate to
kill you', whilst Ben replied 'Why kill me
when I am innocent.' Basobas thought they
were joking.
"He did not hear them quarreling while he
was across the road from the Genosa
residence. Basobas admitted that he and
Ben were always at the cockpits every
Saturday and Sunday. He claims that he
once told Ben 'before when he was stricken
with a bottle by Marivic Genosa' that he
should leave her and that Ben would always
take her back after she would leave him 'so
many times'.
"Basobas could not remember when
Marivic had hit Ben, but it was a long time
that they had been quarreling. He said Ben
'even had a wound' on the right forehead.
He had known the couple for only one (1)
year.
 "6. Marivic testified that after the first year
of marriage, Ben became cruel to her and
was a habitual drinker. She said he
provoked her, he would slap her,
sometimes he would pin her down on the
bed, and sometimes beat her.
"These incidents happened several times
and she would often run home to her
parents, but Ben would follow her and seek
her out, promising to change and would ask
for her forgiveness. She said after she would
be beaten, she would seek medical help
from Dr. Dino Caing, Dr. Lucero and Dra.
Cerillo. These doctors would enter the
injuries inflicted upon her by Ben into their
reports. Marivic said Ben would beat her or
quarrel with her every time he was drunk,
at least three times a week.
"7. In her defense, witnesses who
were not so closely related to Marivic,
testified as to the abuse and violence she
received at the hands of Ben.
'7.1. Mr. Joe Barrientos, a fisherman, who
was a [neighbor] of the Genosas, testified
that on November 15, 1995, he overheard a
quarrel between Ben and Marivic. Marivic
was shouting for help and through the open
jalousies, he saw the spouses 'grappling
with each other'. Ben had Marivic in a choke
hold. He did not do anything, but had come
voluntarily to testify. (Please note this was
the same night as that testified to by Arturo
Busabos.8 )
'7.2. Mr. Junnie Barrientos, also a
fisherman, and the brother of Mr. Joe
Barrientos, testified that he heard his
neighbor Marivic shouting on the night of
219 | P a g e
November 15, 1995. He peeped through the
window of his hut which is located beside
the Genosa house and saw 'the spouses
grappling with each other then Ben Genosa
was holding with his both hands the neck of
the accused, Marivic Genosa'. He said after
a while, Marivic was able to extricate
he[r]self and enter the room of the children.
After that, he went back to work as he was
to go fishing that evening. He returned at
8:00 the next morning. (Again, please note
that this was the same night as that
testified to by Arturo Basobas).
'7.3. Mr. Teodoro Sarabia was a former
neighbor of the Genosas while they were
living in Isabel, Leyte. His house was located
about fifty (50) meters from theirs. Marivic
is his niece and he knew them to be living
together for 13 or 14 years. He said the
couple was always quarreling. Marivic
confided in him that Ben would pawn items
and then would use the money to gamble.
One time, he went to their house and they
were quarreling. Ben was so angry, but
would be pacified 'if somebody would
come.' He testified that while Ben was alive
'he used to gamble and when he became
drunk, he would go to our house and he will
say, 'Teody' because that was what he used
to call me, 'mokimas ta,' which means 'let's
go and look for a whore.' Mr. Sarabia
further testified that Ben 'would box his
wife and I would see bruises and one time
she ran to me, I noticed a wound (the
witness pointed to his right breast) as
according to her a knife was stricken to her.'
Mr. Sarabia also said that once he saw Ben
had been injured too. He said he voluntarily
testified only that morning.
'7.4. Miss Ecel Arano, an 18-year old
student, who is a cousin of Marivic, testified
that in the afternoon of November 15,
1995, Marivic went to her house and asked
her help to look for Ben. They searched in
the market place, several taverns and some
other places, but could not find him. She
accompanied Marivic home. Marivic
wanted her to sleep with her in the Genosa
house 'because she might be battered by
her husband.' When they got to the Genosa
house at about 7:00 in the evening, Miss
Arano said that 'her husband was already
there and was drunk.' Miss Arano knew he
was drunk 'because of his staggering
walking and I can also detect his face.'
Marivic entered the house and she heard
them quarrel noisily. (Again, please note
that this is the same night as that testified
to by Arturo Basobas) Miss Arano testified
that this was not the first time Marivic had
asked her to sleep in the house as Marivic
would be afraid every time her husband
would come home drunk. At one time when
she did sleep over, she was awakened at
10:00 in the evening when Ben arrived
because the couple 'were very noisy in the
sala and I had heard something was broken
like a vase.' She said Marivic ran into her
room and they locked the door. When Ben
couldn't get in he got a chair and a knife and
'showed us the knife through the window
grill and he scared us.' She said that Marivic
shouted for help, but no one came. On
cross-examination, she said that when she
left Marivic's house on November 15, 1995,
the couple were still quarreling.
'7.5. Dr. Dino Caing, a physician testified
that he and Marivic were co-employees at
PHILPHOS, Isabel, Leyte. Marivic was his
 patient 'many times' and had also received
treatment from other doctors. Dr. Caing
testified that from July 6, 1989 until
November 9, 1995, there were six (6)
episodes of physical injuries inflicted upon
Marivic. These injuries were reported in his
Out-Patient Chart at the PHILPHOS Hospital.
The prosecution admitted the qualifications
of Dr. Caing and considered him an expert
witness.'
xxx xxx xxx
'Dr. Caing's clinical history of the tension
headache and hypertention of Marivic on
twenty-three (23) separate occasions was
marked at Exhibits '2' and '2-B.' The OPD
Chart of Marivic at the Philphos Clinic which
reflected all the consultations made by
Marivic and the six (6) incidents of physical
injuries reported was marked as Exhibit '3.'
"On cross-examination, Dr. Caing said that
he is not a psychiatrist, he could not say
whether the injuries were directly related to
the crime committed. He said it is only a
psychiatrist who is qualified to examine the
psychological make-up of the patient,
'whether she is capable of committing a
crime or not.'
'7.6 Mr. Panfilo Tero, the barangay captain
in the place where the Genosas resided,
testified that about two (2) months before
Ben died, Marivic went to his office past
8:00 in the evening. She sought his help to
settle or confront the Genosa couple who
were experiencing 'family troubles'. He told
Marivic to return in the morning, but he did
not hear from her again and assumed 'that
220 | P a g e
they might have settled with each other or
they might have forgiven with each other.'
xxx xxx xxx
"Marivic said she did not provoke her
husband when she got home that night it
was her husband who began the
provocation. Marivic said she was
frightened that her husband would hurt her
and she wanted to make sure she would
deliver her baby safely. In fact, Marivic had
to be admitted later at the Rizal Medical
Centre as she was suffering from eclampsia
and hypertension, and the baby was born
prematurely on December 1, 1995.
"Marivic testified that during her marriage
she had tried to leave her husband at least
five (5) times, but that Ben would always
follow her and they would reconcile.
Marivic said that the reason why Ben was
violent and abusive towards her that night
was because 'he was crazy about his recent
girlfriend, Lulu x x x Rubillos.'
"On cross-examination, Marivic insisted she
shot Ben with a gun; she said that he died in
the bedroom; that their quarrels could be
heard by anyone passing their house; that
Basobas lied in his testimony; that she left
for Manila the next day, November 16,
1995; that she did not bother anyone in
Manila, rented herself a room, and got
herself a job as a field researcher under the
alias 'Marvelous Isidro'; she did not tell
anyone that she was leaving Leyte, she just
wanted to have a safe delivery of her baby;
and that she was arrested in San Pablo,
Laguna.
'Answering questions from the Court,
Marivic said that she threw the gun away;
that she did not know what happened to
the pipe she used to 'smash him once'; that
she was wounded by Ben on her wrist with
the bolo; and that two (2) hours after she
was 'whirled' by Ben, he kicked her 'ass' and
dragged her towards the drawer when he
saw that she had packed his things.'
"9. The body of Ben Genosa was found on
November 18, 1995 after an investigation
was made of the foul odor emitting from
the Genosa residence. This fact was
testified to by all the prosecution witnesses
and some defense witnesses during the
trial.
"10. Dra. Refelina Y. Cerillo, a physician, was
the Municipal Health Officer of Isabel, Leyte
at the time of the incident, and among her
responsibilities as such was to take charge
of all medico-legal cases, such as the
examination of cadavers and the autopsy of
cadavers. Dra. Cerillo is not a forensic
pathologist. She merely took the medical
board exams and passed in 1986. She was
called by the police to go to the Genosa
residence and when she got there, she saw
'some police officer and neighbor around.'
She saw Ben Genosa, covered by a blanket,
lying in a semi-prone position with his back
to the door. He was wearing only a brief.
xxxxxxxxx
"Dra. Cerillo said that 'there is only one
injury and that is the injury involving the
skeletal area of the head' which she
described as a 'fracture'. And that based on
her examination, Ben had been dead 2 or 3
 days. Dra. Cerillo did not testify as
to what caused his death.
"Dra. Cerillo was not cross-examined by
defense counsel.
"11. The Information, dated November 14,
1996, filed against Marivic Genosa charged
her with the crime of PARRICIDE committed
'with intent to kill, with treachery and
evidence premeditation, x x x wilfully,
unlawfully and feloniously attack, assault,
hit and wound x x x her legitimate husband,
with the use of a hard deadly weapon x x x
which caused his death.'
"12. Trial took place on 7 and 14 April 1997,
14 May 1997, 21 July 1997, 17, 22 and 23
September 1997, 12 November 1997, 15
and 16 December 1997, 22 May 1998, and 5
and 6 August 1998.
"13. On 23 September 1998, or only fifty
(50) days from the day of the last trial date,
the Hon. Fortunito L. Madrona, Presiding
Judge, RTC-Branch 35, Ormoc City, rendered
a JUDGMENT finding Marivic guilty 'beyond
reasonable doubt' of the crime of parricide,
and further found treachery as an
aggravating circumstance, thus sentencing
her to the ultimate penalty of DEATH.
"14. The case was elevated to this
Honorable Court upon automatic review
and, under date of 24 January 2000,
Marivic's trial lawyer, Atty. Gil Marvel P.
Tabucanon, filed a Motion to Withdraw as
counsel, attaching thereto, as a
precautionary measure, two (2) drafts of
Appellant's Briefs he had prepared for
221 | P a g e
Marivic which, for reasons of her own, were
not conformed to by her.
"The Honorable Court allowed the
withdrawal of Atty. Tabucanon and
permitted the entry of appearance of
undersigned counsel.
"15. Without the knowledge of counsel,
Marivic Genosa wrote a letter dated 20
January 2000, to the Chief Justice, coursing
the same through Atty. Teresita G. Dimaisip,
Deputy Clerk of Court of Chief Judicial
Records Office, wherein she submitted her
'Brief without counsels' to the Court.
"This letter was stamp-received by the
Honorable Court on 4 February 2000.
"16. In the meantime, under date of 17
February 2000, and stamp-received by the
Honorable Court on 19 February 2000,
undersigned counsel filed an URGENT
OMNIBUS MOTION praying that the
Honorable Court allow the exhumation of
Ben Genosa and the re-examination of the
cause of his death; allow the examination of
Marivic Genosa by qualified psychologists
and psychiatrists to determine her state of
mind at the time she killed her husband;
and finally, to allow a partial re-opening of
the case a quo to take the testimony of said
psychologists and psychiatrists.
"Attached to the URGENT OMNIBUS
MOTION was a letter of Dr. Raquel Fortun,
then the only qualified forensic pathologist
in the country, who opined that the
description of the death wound (as culled
from the post-mortem findings, Exhibit 'A')
is more akin to a gunshot wound than a
beating with a lead pipe.
"17. In a RESOLUTION dated 29 September
2000, the Honorable Court partly granted
Marivic's URGENT OMNIBUS MOTION and
remanded the case 'to the trial court for the
reception of expert psychological and/or
psychiatric opinion on the 'battered woman
syndrome' plea, within ninety (90) days
from notice, and, thereafter to forthwith
report to this Court the proceedings taken,
together with the copies of the TSN and
relevant documentary evidence, if any,
submitted.'
"18. On 15 January 2001, Dra. Natividad A.
Dayan appeared and testified before the
Hon. Fortunito L. Madrona, RTC-Branch 35,
Ormoc City.
"Immediately before Dra. Dayan was sworn,
the Court a quo asked if she had
interviewed Marivic Genosa. Dra. Dayan
informed the Court that interviews were
done at the Penal Institution in 1999, but
that the clinical interviews and
psychological assessment were done at her
clinic.
"Dra. Dayan testified that she has been a
clinical psychologist for twenty (20) years
with her own private clinic and connected
presently to the De La Salle University as a
professor. Before this, she was the Head of
the Psychology Department of the
Assumption College; a member of the
faculty of Psychology at the Ateneo de
Manila University and St. Joseph's College;
and was the counseling psychologist of the
National Defense College. She has an AB in
 Psychology from the University of the
Philippines, a Master of Arts in Clinical
[Counseling], Psychology from the Ateneo,
and a PhD from the U.P. She was the past
president of the Psychological Association
of the Philippines and is a member of the
American Psychological Association. She is
the secretary of the International Council of
Psychologists from about 68 countries; a
member of the Forensic Psychology
Association; and a member of the ASEAN
[Counseling] Association. She is actively
involved with the Philippine Judicial
Academy, recently lecturing on the socio-
demographic and psychological profile of
families involved in domestic violence and
nullity cases. She was with the Davide
Commission doing research about Military
Psychology. She has written a book entitled
'Energy Global Psychology' (together with
Drs. Allan Tan and Allan Bernardo). The
Genosa case is the first time she has
testified as an expert on battered women as
this is the first case of that nature.
"Dra. Dayan testified that for the research
she conducted, on the socio-demographic
and psychological profile of families
involved in domestic violence, and nullity
cases, she looked at about 500 cases over a
period of ten (10) years and discovered that
'there are lots of variables that cause all of
this marital conflicts, from domestic
violence to infidelity, to psychiatric
disorder.'
"Dra. Dayan described domestic violence to
comprise of 'a lot of incidents of
psychological abuse, verbal abuse, and
emotional abuse to physical abuse and also
sexual abuse.'
222 | P a g e
xxx xxx xxx
"Dra. Dayan testified that in her studies,
'the battered woman usually has a very low
opinion of herself. She has a self-defeating
and self-sacrificing characteristics. x x x they
usually think very lowly of themselves and
so when the violence would happen, they
usually think that they provoke it, that they
were the one who precipitated the violence,
they provoke their spouse to be physically,
verbally and even sexually abusive to them.'
Dra. Dayan said that usually a battered x x x
comes from a dysfunctional family or from
'broken homes.'
"Dra. Dayan said that the batterer, just like
the battered woman, 'also has a very low
opinion of himself. But then emerges to
have superiority complex and it comes out
as being very arrogant, very hostile, very
aggressive and very angry. They also had
(sic) a very low tolerance for frustrations. A
lot of times they are involved in vices like
gambling, drinking and drugs. And they
become violent.' The batterer also usually
comes from a dysfunctional family which
over-pampers them and makes them feel
entitled to do anything. Also, they see often
how their parents abused each other so
'there is a lot of modeling of aggression in
the family.'
"Dra. Dayan testified that there are a lot of
reasons why a battered woman
does not leave her husband: poverty, self-
blame and guilt that she provoked the
violence, the cycle itself which makes her
hope her husband will change, the belief in
her obligations to keep the family intact at
all costs for the sake of the children.
xxx xxx xxx
"Dra. Dayan said that abused wives react
differently to the violence: some leave the
house, or lock themselves in another room,
or sometimes try to fight back triggering
'physical violence on both of them.' She said
that in a 'normal marital relationship,'
abuses also happen, but these are 'not
consistent, not chronic, are not happening
day in [and] day out.' In an 'abnormal
marital relationship,' the abuse occurs day
in and day out, is long lasting and 'even
would cause hospitalization on the victim
and even death on the victim.'
xxx xxx xxx
"Dra. Dayan said that as a result of the
battery of psychological tests she
administered, it was her opinion that
Marivic fits the profile of a battered woman
because 'inspite of her feeling of self-
confidence which we can see at times there
are really feeling (sic) of loss, such feelings
of humiliation which she sees herself as
damaged and as a broken person. And at
the same time she still has the imprint of all
the abuses that she had experienced in the
past.'
xxx xxx xxx
"Dra. Dayan said Marivic thought of herself
as a loving wife and did not even consider
filing for nullity or legal separation inspite of
the abuses. It was at the time of the tragedy
that Marivic then thought of herself as a
victim.
xxx xxx xxx
 "19. On 9 February 2001, Dr. Alfredo
Pajarillo, a physician, who has since passed
away, appeared and testified before RTC-
Branch 35, Ormoc City.
"Dr. Pajarillo was a Diplomate of the
Philippine Board of Psychiatry; a Fellow of
the Philippine Board of Psychiatry and a
Fellow of the Philippine Psychiatry
Association. He was in the practice of
psychiatry for thirty-eight (38) years. Prior
to being in private practice, he was
connected with the Veterans Memorial
Medical Centre where he gained his training
on psychiatry and neurology. After that, he
was called to active duty in the Armed
Forces of the Philippines, assigned to the V.
Luna Medical Center for twenty six (26)
years. Prior to his retirement from
government service, he obtained the rank
of Brigadier General. He obtained his
medical degree from the University of Santo
Tomas. He was also a member of the World
Association of Military Surgeons; the
Quezon City Medical Society; the Cagayan
Medical Society; and the Philippine
Association of Military Surgeons.
"He authored 'The Comparative Analysis of
Nervous Breakdown in the Philippine
Military Academy from the Period 1954 –
1978' which was presented twice in
international congresses. He also authored
'The Mental Health of the Armed Forces of
the Philippines 2000', which was likewise
published internationally and locally. He
had a medical textbook published on the
use of Prasepam on a Parke-Davis grant;
was the first to use Enanthate (siquiline), on
an E.R. Squibb grant; and he published the
use of the drug Zopiclom in 1985-86.
223 | P a g e
"Dr. Pajarillo explained that psychiatry deals "In psychiatry, the post-traumatic stress
with the functional disorder of the mind disorder is incorporated under the 'anxiety
and neurology deals with the ailment of the neurosis or neurologic anxcietism.' It is
brain and spinal cord enlarged. Psychology, produced by 'overwhelming brutality,
on the other hand, is a bachelor degree and trauma.'
a doctorate degree; while one has to finish
medicine to become a specialist in xxx xxx xxx
psychiatry.
"Dr. Pajarillo explained that with 'neurotic
"Even only in his 7th year as a resident in V. anxiety', the victim relives the beating or
Luna Medical Centre, Dr. Pajarillo had trauma as if it were real, although she is not
already encountered a suit involving violent actually being beaten at that time. She
family relations, and testified in a case in thinks 'of nothing but the suffering.'
1964. In the Armed Forces of the
Philippines, violent family disputes abound, xxx xxx xxx
and he has seen probably ten to twenty
thousand cases. In those days, the
"A woman who suffers battery has a
primordial intention of therapy was
tendency to become neurotic, her
reconciliation. As a result of his experience
emotional tone is unstable, and she is
with domestic violence cases, he became a
irritable and restless. She tends to become
consultant of the Battered Woman Office in
hard-headed and persistent. She has higher
Quezon City under Atty. Nenita Deproza.
sensitivity and her 'self-world' is damaged.
"As such consultant, he had seen around
"Dr. Pajarillo said that an abnormal family
forty (40) cases of severe domestic violence,
background relates to an individual's illness,
where there is physical abuse: such as
such as the deprivation of the continuous
slapping, pushing, verbal abuse, battering
care and love of the parents. As to the
and boxing a woman even to an
batterer, he normally 'internalizes what is
unconscious state such that the woman is
around him within the environment.' And it
sometimes confined. The affliction of Post-
becomes his own personality. He is very
Traumatic Stress Disorder 'depends on the
competitive; he is aiming high all the time;
vulnerability of the victim.' Dr. Pajarillo said
he is so macho; he shows his strong façade
that if the victim is not very healthy,
'but in it there are doubts in himself and
perhaps one episode of violence may
prone to act without thinking.'
induce the disorder; if the psychological
stamina and physiologic constitutional
xxx xxx xxx
stamina of the victim is stronger, 'it will take
more repetitive trauma to precipitate the
post-traumatic stress disorder and this x x x "Dr. Pajarillo emphasized that 'even though
is very dangerous.' without the presence of the precipator (sic)
or the one who administered the battering,
 that re-experiencing of the trauma occurred
(sic) because the individual cannot control
it. It will just come up in her mind or in his
mind.'
xxx xxx xxx
"Dr. Pajarillo said that a woman suffering
post traumatic stress disorder try to defend
themselves, and 'primarily with knives.
Usually pointed weapons or any weapon
that is available in the immediate
surrounding or in a hospital x x x because
that abound in the household.' He said a
victim resorts to weapons when she has
'reached the lowest rock bottom of her life
and there is no other recourse left on her
but to act decisively.'
xxx xxx xxx
"Dr. Pajarillo testified that he met Marivic
Genosa in his office in an interview he
conducted for two (2) hours and seventeen
(17) minutes. He used the psychological
evaluation and social case studies as a help
in forming his diagnosis. He came out with a
Psychiatric Report, dated 22 January 2001.
xxx xxx xxx
"On cross-examination by the private
prosecutor, Dr. Pajarillo said that at the
time she killed her husband Marivic'c
mental condition was that she was 're-
experiencing the trauma.' He said 'that we
are trying to explain scientifically that the
re-experiencing of the trauma is not
controlled by Marivic. It will just come in
flashes and probably at that point in time
that things happened when the re-
224 | P a g e
experiencing of the trauma flashed in her
mind.' At the time he interviewed Marivic
'she was more subdued, she was not super
alert anymore x x x she is mentally stress
(sic) because of the predicament she is
involved.'
xxx xxx xxx
"20. No rebuttal evidence or testimony was
presented by either the private or the
public prosecutor. Thus, in accord with the
Resolution of this Honorable Court, the
records of the partially re-opened trial
a quo were elevated."9
Ruling of the Trial Court
Finding the proffered theory of self-defense
untenable, the RTC gave credence to the prosecution
evidence that appellant had killed the deceased
while he was in bed sleeping. Further, the trial court
appreciated the generic aggravating circumstance of
treachery, because Ben Genosa was supposedly
defenseless when he was killed -- lying in bed asleep
when Marivic smashed him with a pipe at the back
of his head.
The capital penalty having been imposed, the case
was elevated to this Court for automatic review.
Supervening Circumstances
On February 19, 2000, appellant filed an Urgent
Omnibus Motion praying that this Court allow (1) the
exhumation of Ben Genosa and the reexamination of
the cause of his death; (2) the examination of
appellant by qualified psychologists and psychiatrists
to determine her state of mind at the time she had
killed her spouse; and (3) the inclusion of the said
experts' reports in the records of the case for
purposes of the automatic review or, in the
alternative, a partial reopening of the case for the
lower court to admit the experts' testimonies.
On September 29, 2000, this Court issued a
Resolution granting in part appellant's Motion,
remanding the case to the trial court for the
reception of expert psychological and/or psychiatric
opinion on the "battered woman syndrome" plea;
and requiring the lower court to report thereafter to
this Court the proceedings taken as well as to submit
copies of the TSN and additional evidence, if any.
Acting on the Court's Resolution, the trial judge
authorized the examination of Marivic by two clinical
psychologists, Drs. Natividad Dayan10 and Alfredo
Pajarillo,11 supposedly experts on domestic violence.
Their testimonies, along with their documentary
evidence, were then presented to and admitted by
the lower court before finally being submitted to this
Court to form part of the records of the case.12
The Issues
Appellant assigns the following alleged errors of the
trial court for this Court's consideration:
"1. The trial court gravely erred in
promulgating an obviously hasty decision
without reflecting on the evidence adduced
as to self-defense.
"2. The trial court gravely erred in finding as
a fact that Ben and Marivic Genosa were
legally married and that she was therefore
liable for parricide.
"3. The trial court gravely erred finding the
cause of death to be by beating with a pipe.
 "4. The trial court gravely erred in ignoring
and disregarding evidence adduced from
impartial and unbiased witnesses that Ben
Genosa was a drunk, a gambler, a
womanizer and wife-beater; and further
gravely erred in concluding that Ben Genosa
was a battered husband.
"5. The trial court gravely erred in not
requiring testimony from the children of
Marivic Genosa.
"6. The trial court gravely erred in
concluding that Marivic's flight to Manila
and her subsequent apologies were indicia
of guilt, instead of a clear attempt to save
the life of her unborn child.
"7. The trial court gravely erred in
concluding that there was an aggravating
circumstance of treachery.
"8. The trial court gravely erred in refusing
to re-evaluate the traditional elements in
determining the existence of self-defense
and defense of foetus in this case, thereby
erroneously convicting Marivic Genosa of
the crime of parricide and condemning her
to the ultimate penalty of death."13
In the main, the following are the essential legal
issues: (1) whether appellant acted in self-defense
and in defense of her fetus; and (2) whether
treachery attended the killing of Ben Genosa.
The Court's Ruling
The appeal is partly meritorious.
Collateral Factual Issues
225 | P a g e
The first six assigned errors raised by appellant are
factual in nature, if not collateral to the resolution of
the principal issues. As consistently held by this
Court, the findings of the trial court on the credibility
of witnesses and their testimonies are entitled to a
high degree of respect and will not be disturbed on
appeal in the absence of any showing that the trial
judge gravely abused his discretion or overlooked,
misunderstood or misapplied material facts or
circumstances of weight and substance that could
affect the outcome of the case.14
In appellant's first six assigned items, we find no
grave abuse of discretion, reversible error or
misappreciation of material facts that would reverse
or modify the trial court's disposition of the case. In
any event, we will now briefly dispose of these
alleged errors of the trial court.
First, we do not agree that the lower court
promulgated "an obviously hasty decision without
reflecting on the evidence adduced as to self-
defense." We note that in his 17-page Decision,
Judge Fortunito L. Madrona summarized the
testimonies of both the prosecution and the defense
witnesses and -- on the basis of those and of the
documentary evidence on record -- made his
evaluation, findings and conclusions. He wrote a 3-
page discourse assessing the testimony and the self-
defense theory of the accused. While she, or even
this Court, may not agree with the trial judge's
conclusions, we cannot peremptorily conclude,
absent substantial evidence, that he failed to
reflect on the evidence presented.
Neither do we find the appealed Decision to have
been made in an "obviously hasty" manner. The
Information had been filed with the lower court on
November 14, 1996. Thereafter, trial began and at
least 13 hearings were held for over a year. It took
the trial judge about two months from the
conclusion of trial to promulgate his judgment. That
he conducted the trial and resolved the case with
dispatch should not be taken against him, much less
used to condemn him for being unduly hasty. If at
all, the dispatch with which he handled the case
should be lauded. In any case, we find his actions in
substantial compliance with his constitutional
obligation.15
Second, the lower court did not err in finding as a
fact that Ben Genosa and appellant had been legally
married, despite the non-presentation of their
marriage contract. In People v. Malabago,16 this
Court held:
"The key element in parricide is the
relationship of the offender with the victim.
In the case of parricide of a spouse, the best
proof of the relationship between the
accused and the deceased is the marriage
certificate. In the absence of a marriage
certificate, however, oral evidence of the
fact of marriage may be considered by the
trial court if such proof is not objected to."
Two of the prosecution witnesses -- namely, the
mother and the brother of appellant's deceased
spouse -- attested in court that Ben had been
married to Marivic.17 The defense raised no objection
to these testimonies. Moreover, during her direct
examination, appellant herself made a judicial
admission of her marriage to Ben.18 Axiomatic is the
rule that a judicial admission is conclusive upon the
party making it, except only when there is a showing
that (1) the admission was made through a palpable
mistake, or (2) no admission was in fact
made.19 Other than merely attacking the non-
presentation of the marriage contract, the defense
offered no proof that the admission made by
appellant in court as to the fact of her marriage to
the deceased was made through a palpable mistake.
Third, under the circumstances of this case, the
specific or direct cause of Ben's death -- whether by
a gunshot or by beating with a pipe -- has no legal
consequence. As the Court elucidated in its
September 29, 2000 Resolution, "[c]onsidering that
the appellant has admitted the fact of killing her
husband and the acts of hitting his nape with a metal
pipe and of shooting him at the back of his head, the
Court believes that exhumation is unnecessary, if not
immaterial, to determine which of said acts actually
caused the victim's death." Determining which of
these admitted acts caused the death is not
dispositive of the guilt or defense of appellant.
Fourth, we cannot fault the trial court for not fully
appreciating evidence that Ben was a drunk,
gambler, womanizer and wife-beater. Until this case
came to us for automatic review, appellant had not
raised the novel defense of "battered woman
syndrome," for which such evidence may have been
relevant. Her theory of self-defense was then the
crucial issue before the trial court. As will be
discussed shortly, the legal requisites of self-defense
under prevailing jurisprudence ostensibly appear
inconsistent with the surrounding facts that led to
the death of the victim. Hence, his personal
character, especially his past behavior, did not
constitute vital evidence at the time.
Fifth, the trial court surely committed no error in not
requiring testimony from appellant's children. As
correctly elucidated by the solicitor general, all
criminal actions are prosecuted under the direction
and control of the public prosecutor, in whom lies
the discretion to determine which witnesses and
evidence are necessary to present.20 As the former
further points out, neither the trial court nor the
prosecution prevented appellant from presenting
her children as witnesses. Thus, she cannot now fault
the lower court for not requiring them to testify.
226 | P a g e
Finally, merely collateral or corroborative is the
matter of whether the flight of Marivic to Manila and
her subsequent apologies to her brother-in-law are
indicia of her guilt or are attempts to save the life of
her unborn child. Any reversible error as to the trial
court's appreciation of these circumstances has little
bearing on the final resolution of the case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but, to avoid
criminal liability, invokes self-defense and/or
defense of her unborn child. When the accused
admits killing the victim, it is incumbent upon her to
prove any claimed justifying circumstance by clear
and convincing evidence.21 Well-settled is the rule
that in criminal cases, self-defense (and similarly,
defense of a stranger or third person) shifts the
burden of proof from the prosecution to the
defense.22
The Battered Woman Syndrome
In claiming self-defense, appellant raises the novel
theory of the battered woman syndrome. While new
in Philippine jurisprudence, the concept has been
recognized in foreign jurisdictions as a form of self-
defense or, at the least, incomplete self-
defense.23 By appreciating evidence that a victim or
defendant is afflicted with the syndrome, foreign
courts convey their "understanding of the justifiably
fearful state of mind of a person who has been
cyclically abused and controlled over a period of
time."24
A battered woman has been defined as a woman
"who is repeatedly subjected to any forceful physical
or psychological behavior by a man in order to
coerce her to do something he wants her to do
without concern for her rights. Battered women
include wives or women in any form of intimate
relationship with men. Furthermore, in order to be
classified as a battered woman, the couple must go
through the battering cycle at least twice. Any
woman may find herself in an abusive relationship
with a man once. If it occurs a second time, and she
remains in the situation, she is defined as a battered
woman."25
Battered women exhibit common personality traits,
such as low self-esteem, traditional beliefs about the
home, the family and the female sex role; emotional
dependence upon the dominant male; the tendency
to accept responsibility for the batterer's actions;
and false hopes that the relationship will improve. 26
More graphically, the battered woman syndrome is
characterized by the so-called "cycle of
violence,"27 which has three phases: (1) the tension-
building phase; (2) the acute battering incident; and
(3) the tranquil, loving (or, at least, nonviolent)
phase.28
During the tension-building phase, minor battering
occurs -- it could be verbal or slight physical abuse or
another form of hostile behavior. The woman usually
tries to pacify the batterer through a show of kind,
nurturing behavior; or by simply staying out of his
way. What actually happens is that she allows herself
to be abused in ways that, to her, are comparatively
minor. All she wants is to prevent the escalation of
the violence exhibited by the batterer. This wish,
however, proves to be double-edged, because her
"placatory" and passive behavior legitimizes his
belief that he has the right to abuse her in the first
place.
However, the techniques adopted by the woman in
her effort to placate him are not usually successful,
and the verbal and/or physical abuse worsens. Each
partner senses the imminent loss of control and the
growing tension and despair. Exhausted from the
persistent stress, the battered woman soon
withdraws emotionally. But the more she becomes
emotionally unavailable, the more the batterer
becomes angry, oppressive and abusive. Often, at
some unpredictable point, the violence "spirals out
of control" and leads to an acute battering
incident.29
The acute battering incident is said to be
characterized by brutality, destructiveness and,
sometimes, death. The battered woman deems this
incident as unpredictable, yet also inevitable. During
this phase, she has no control; only the batterer may
put an end to the violence. Its nature can be as
unpredictable as the time of its explosion, and so are
his reasons for ending it. The battered woman
usually realizes that she cannot reason with him, and
that resistance would only exacerbate her condition.
At this stage, she has a sense of detachment from
the attack and the terrible pain, although she may
later clearly remember every detail. Her apparent
passivity in the face of acute violence may be
rationalized thus: the batterer is almost always much
stronger physically, and she knows from her past
painful experience that it is futile to fight back. Acute
battering incidents are often very savage and out of
control, such that innocent bystanders or
intervenors are likely to get hurt.30
The final phase of the cycle of violence begins when
the acute battering incident ends. During
this tranquil period, the couple experience profound
relief. On the one hand, the batterer may show a
tender and nurturing behavior towards his partner.
He knows that he has been viciously cruel and tries
to make up for it, begging for her forgiveness and
promising never to beat her again. On the other
hand, the battered woman also tries to convince
227 | P a g e
herself that the battery will never happen again; that
her partner will change for the better; and that this
"good, gentle and caring man" is the real person
whom she loves.
A battered woman usually believes that she is the
sole anchor of the emotional stability of the batterer.
Sensing his isolation and despair, she feels
responsible for his well-being. The truth, though, is
that the chances of his reforming, or seeking or
receiving professional help, are very slim, especially
if she remains with him. Generally, only after she
leaves him does he seek professional help as a way
of getting her back. Yet, it is in this phase of
remorseful reconciliation that she is most thoroughly
tormented psychologically.
The illusion of absolute interdependency is well-
entrenched in a battered woman's psyche. In this
phase, she and her batterer are indeed emotionally
dependent on each other -- she for his nurturant
behavior, he for her forgiveness. Underneath this
miserable cycle of "tension, violence and
forgiveness," each partner may believe that it is
better to die than to be separated. Neither one may
really feel independent, capable of functioning
without the other.31
History of Abuse
in the Present Case
To show the history of violence inflicted upon
appellant, the defense presented several witnesses.
She herself described her heart-rending experience
as follows:
"ATTY. TABUCANON
Q How did you describe your marriage with
Ben Genosa?
A In the first year, I lived with him happily
but in the subsequent year he was cruel to
me and a behavior of habitual drinker.
Q You said that in the subsequent year of
your marriage, your husband was abusive to
you and cruel. In what way was this abusive
and cruelty manifested to you?
A He always provoke me in everything, he
always slap me and sometimes he pinned
me down on the bed and sometimes beat
me.
Q How many times did this happen?
A Several times already.
Q What did you do when these things
happen to you?
A I went away to my mother and I ran to my
father and we separate each other.
Q What was the action of Ben Genosa
towards you leaving home?
A He is following me, after that he sought
after me.
Q What will happen when he follow you?
A He said he changed, he asked for
forgiveness and I was convinced and after
that I go to him and he said 'sorry'.
Q During those times that you were the
recipient of such cruelty and abusive
behavior by your husband, were you able to
see a doctor?
 A Yes, sir. Q Is it daily, weekly, monthly or how many 3. March 26, 1993 - Abrasion,
times in a month or in a week? Furuncle (L) Axilla;
Q Who are these doctors?
A Three times a week. 4. August 1, 1994 - Pain, mastitis
A The company physician, Dr. Dino Caing, (L) breast, 2o to trauma. Attending
Dr. Lucero and Dra. Cerillo. Q Do you mean three times a week he physician: Dr. Caing;
would beat you?
xxx xxx xxx 5. April 17, 1995 - Trauma,
A Not necessarily that he would beat me tenderness (R) Shoulder. Attending
Q You said that you saw a doctor in relation but sometimes he will just quarrel me." 32 physician: Dr. Canora; and
to your injuries?
Referring to his "Out-Patient Chart"33 on Marivic 6. June 5, 1995 - Swelling Abrasion
A Yes, sir. Genosa at the Philphos Hospital, Dr. Dino D. Caing (L) leg, multiple contusion
bolstered her foregoing testimony on chronic battery Pregnancy. Attending physician:
in this manner: Dr. Canora.
Q Who inflicted these injuries?

"Q So, do you have a summary of those six Q Among the findings, there were two (2)
A Of course my husband.
(6) incidents which are found in the chart of incidents wherein you were the attending
your clinic? physician, is that correct?
Q You mean Ben Genosa?

A Yes, sir. A Yes, sir.

A Yes, sir.

Q Who prepared the list of six (6) incidents, Q Did you actually physical examine the
xxx xxx xxx
Doctor? accused?

[Court] /to the witness

A I did. A Yes, sir.

Q How frequent was the alleged cruelty that

Q Will you please read the physical findings Q Now, going to your finding no. 3 where
you said?
together with the dates for the record. you were the one who attended the
patient. What do you mean by abrasion
A Everytime he got drunk. furuncle left axilla?
A 1. May 12, 1990 - physical findings are as
follows: Hematoma (R) lower eyelid and
Q No, from the time that you said the A Abrasion is a skin wound usually when it
redness of eye. Attending physician: Dr.
cruelty or the infliction of injury inflicted on comes in contact with something rough
Lucero;
your occurred, after your marriage, from substance if force is applied.
that time on, how frequent was the
2. March 10, 1992 - Contusion-
occurrence?
Hematoma (L) lower arbital area, Q What is meant by furuncle axilla?
pain and contusion (R) breast.
A Everytime he got drunk.
Attending physician: Dr. Canora; A It is secondary of the light infection over
the abrasion.
228 | P a g e
 Q What is meant by pain mastitis secondary
to trauma?
A So, in this 4th episode of physical injuries
there is an inflammation of left breast. So,
[pain] meaning there is tenderness. When
your breast is traumatized, there is
tenderness pain.
Q So, these are objective physical injuries.
Doctor?
xxx xxx xxx
Q Were you able to talk with the patient?
A Yes, sir.
Q What did she tell you?
A As a doctor-patient relationship, we need
to know the cause of these injuries. And she
told me that it was done to her by her
husband.
Q What was the date?
A It was on November 6, 1995.
Q So, did you actually see the accused
physically?
A Yes, sir.
Q On November 6, 1995, will you please tell
this Honorable Court, was the patient
pregnant?
A Yes, sir.
Q Being a doctor, can you more engage at
what stage of pregnancy was she?
A Eight (8) months pregnant.
Q So in other words, it was an advance
stage of pregnancy?
A Yes, sir.
A One day.
Q Where?
A At PHILPHOS Hospital.
xxx xxx xxx
Q Lets go back to the clinical history of
Marivic Genosa. You said that you were able
to examine her personally on November 6,
1995 and she was 8 months pregnant.
What is this all about?
A Because she has this problem of tension
headache secondary to hypertension and I
think I have a record here, also the same
period from 1989 to 1995, she had a
consultation for twenty-three (23) times.
Q For what?
A Tension headache.

Q You mean, Ben Genosa? Q What was your November 6, 1995 Q Can we say that specially during the latter
examination, was it an examination about consultation, that the patient had
A Yes, sir. her pregnancy or for some other findings? hypertension?

xxx xxx xxx A No, she was admitted for hypertension A The patient definitely had hypertension. It
headache which complicates her pregnancy. was refractory to our treatment. She does
ATTY. TABUCANON: not response when the medication was
Q When you said admitted, meaning she given to her, because tension headache is
Q By the way Doctor, were you able to was confined? more or less stress related and emotional in
physical examine the accused sometime in nature.
the month of November, 1995 when this A Yes, sir.
incident happened? Q What did you deduce of tension
headache when you said is emotional in
Q For how many days?
A As per record, yes. nature?

229 | P a g e
 A From what I deduced as part of our
physical examination of the patient is the
family history in line of giving the root cause
of what is causing this disease. So, from the
moment you ask to the patient all comes
from the domestic problem.
Q You mean problem in her household?
A Probably.
Q Can family trouble cause elevation of
blood pressure, Doctor?
A Yes, if it is emotionally related and
stressful it can cause increases in
hypertension which is unfortunately does
not response to the medication.
Q In November 6, 1995, the date of the
incident, did you take the blood pressure of
the accused?
A On November 6, 1995 consultation, the
blood pressure was 180/120.
Q Is this considered hypertension?
A Yes, sir, severe.
Q Considering that she was 8 months
pregnant, you mean this is dangerous level
of blood pressure?
A It was dangerous to the child or to the
fetus." 34
Another defense witness, Teodoro Sarabia, a former
neighbor of the Genosas in Isabel, Leyte, testified
that he had seen the couple quarreling several times;
230 | P a g e
and that on some occasions Marivic would run to immediately asked my son, where was his
him with bruises, confiding that the injuries were father, then my second child said, 'he was
inflicted upon her by Ben.35 not home yet'. I was worried because that
was payday, I was anticipating that he was
Ecel Arano also testified36 that for a number of times gambling. So while waiting for him, my
she had been asked by Marivic to sleep at the eldest son arrived from school, I prepared
Genosa house, because the latter feared that Ben dinner for my children.
would come home drunk and hurt her. On one
occasion that Ecel did sleep over, she was awakened Q This is evening of November 15, 1995?
about ten o'clock at night, because the couple "were
very noisy … and I heard something was broken like A Yes, sir.
a vase." Then Marivic came running into Ecel's room
and locked the door. Ben showed up by the window Q What time did Ben Genosa arrive?
grill atop a chair, scaring them with a knife.
A When he arrived, I was not there, I was in
On the afternoon of November 15, 1995, Marivic Isabel looking for him.
again asked her help -- this time to find Ben -- but
they were unable to. They returned to the Genosa
Q So when he arrived you were in Isabel
home, where they found him already drunk. Again
looking for him?
afraid that he might hurt her, Marivic asked her to
sleep at their house. Seeing his state of drunkenness,
A Yes, sir.
Ecel hesitated; and when she heard the couple start
arguing, she decided to leave.
Q Did you come back to your house?
On that same night that culminated in the death of
A Yes, sir.
Ben Genosa, at least three other witnesses saw or
heard the couple quarreling.37 Marivic relates in
Q By the way, where was your conjugal
detail the following backdrop of the fateful night
when life was snuffed out of him, showing in the residence situated this time?
process a vivid picture of his cruelty towards her:
A Bilwang.
"ATTY. TABUCANON:
Q Is this your house or you are renting?
Q Please tell this Court, can you recall the
incident in November 15, 1995 in the A Renting.
evening?
Q What time were you able to come back in
A Whole morning and in the afternoon, I your residence at Bilwang?
was in the office working then after office
hours, I boarded the service bus and went A I went back around almost 8:00 o'clock.
to Bilwang. When I reached Bilwang, I
 Q What happened when you arrived in your
residence?
A When I arrived home with my cousin Ecel
whom I requested to sleep with me at that
time because I had fears that he was again
drunk and I was worried that he would
again beat me so I requested my cousin to
sleep with me, but she resisted because she
had fears that the same thing will happen
again last year.
Q Who was this cousin of yours who you
requested to sleep with you?
A Ecel Araño, the one who testified.
Q Did Ecel sleep with you in your house on
that evening?
A No, because she expressed fears, she said
her father would not allow her because of
Ben.
Q During this period November 15, 1995,
were you pregnant?
A Yes, 8 months.
Q How advance was your pregnancy?
A Eight (8) months.
Q Was the baby subsequently born?
A Yes, sir.
Q What's the name of the baby you were
carrying at that time?
231 | P a g e
A Marie Bianca.
Q What time were you able to meet
personally your husband?
A Yes, sir.
Q What time?
A When I arrived home, he was there
already in his usual behavior.
Q Will you tell this Court what was his
disposition?
A He was drunk again, he was yelling in his
usual unruly behavior.
Q What was he yelling all about?
A His usual attitude when he got drunk.
Q You said that when you arrived, he was
drunk and yelling at you? What else did he
do if any?
A He is nagging at me for following him and
he dared me to quarrel him.
Q What was the cause of his nagging or
quarreling at you if you know?
A He was angry at me because I was
following x x x him, looking for him. I was
just worried he might be overly drunk and
he would beat me again.
Q You said that he was yelling at you, what
else, did he do to you if any?
A He was nagging at me at that time and I
just ignore him because I want to avoid
trouble for fear that he will beat me again.
Perhaps he was disappointed because I just
ignore him of his provocation and he switch
off the light and I said to him, 'why did you
switch off the light when the children were
there.' At that time I was also attending to
my children who were doing their
assignments. He was angry with me for not
answering his challenge, so he went to the
kitchen and [got] a bolo and cut the
antenna wire to stop me from watching
television.
Q What did he do with the bolo?
A He cut the antenna wire to keep me from
watching T.V.
Q What else happened after he cut the
wire?
A He switch off the light and the children
were shouting because they were scared
and he was already holding the bolo.
Q How do you described this bolo?
A 1 1/2 feet.
Q What was the bolo used for usually?
A For chopping meat.
Q You said the children were scared, what
else happened as Ben was carrying that
bolo?
 A He was about to attack me so I run to the
room.
Q What do you mean that he was about to
attack you?
A When I attempt to run he held my hands
and he whirled me and I fell to the bedside.
Q So when he whirled you, what happened
to you?
A I screamed for help and then he left.
Q You said earlier that he whirled you and
you fell on the bedside?
A Yes, sir.
Q You screamed for help and he left, do you
know where he was going?
A Outside perhaps to drink more.
Q When he left what did you do in that
particular time?
A I packed all his clothes.
Q What was your reason in packing his
clothes?
A I wanted him to leave us.
Q During this time, where were your
children, what were their reactions?
A After a couple of hours, he went back
again and he got angry with me for packing
232 | P a g e
his clothes, then he dragged me again of the
bedroom holding my neck.
Q You said that when Ben came back to
your house, he dragged you? How did he
drag you?
COURT INTERPRETER:
The witness demonstrated to the
Court by using her right hand
flexed forcibly in her front neck)
A And he dragged me towards the door
backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to
get something and then he kept on shouting
at me that 'you might as well be killed so
there will be nobody to nag me.'
Q So you said that he dragged you towards
the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER:
(At this juncture the witness
started crying).
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought
to that drawer?
A He dragged me towards the drawer and
he was about to open the drawer but he
could not open it because he did not have
the key then he pulled his wallet which
contained a blade about 3 inches long and I
was aware that he was going to kill me and I
smashed his arm and then the wallet and
the blade fell. The one he used to open the
drawer I saw, it was a pipe about that long,
and when he was about to pick-up the
wallet and the blade, I smashed him then I
ran to the other room, and on that very
moment everything on my mind was to pity
on myself, then the feeling I had on that
very moment was the same when I was
admitted in PHILPHOS Clinic, I was about to
vomit.
COURT INTERPRETER:
(The witness at this juncture is
crying intensely).
xxx xxx xxx
ATTY. TABUCANON:
Q Talking of drawer, is this drawer outside
your room?
A Outside.
 Q In what part of the house?
A Dining.
Q Where were the children during that
time?
A My children were already asleep.
Q You mean they were inside the room?
A Yes, sir.
Q You said that he dropped the blade, for
the record will you please describe this
blade about 3 inches long, how does it look
like?
A Three (3) inches long and 1/2 inch wide.
Q Is it a flexible blade?
A It's a cutter.
Q How do you describe the blade, is it sharp
both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he
intimidate me." 38
233 | P a g e
In addition, Dra. Natividad Dayan was called by the
RTC to testify as an expert witness to assist it in
understanding the psyche of a battered person. She
had met with Marivic Genosa for five sessions
totaling about seventeen hours. Based on their talks,
the former briefly related the latter's ordeal to the
court a quo as follows:
"Q: What can you say, that you found
Marivic as a battered wife? Could you in
layman's term describe to this Court what
her life was like as said to you?
A: What I remember happened then was it
was more than ten years, that she was
suffering emotional anguish. There were a
lot of instances of abuses, to emotional
abuse, to verbal abuse and to physical
abuse. The husband had a very meager
income, she was the one who was
practically the bread earner of the family.
The husband was involved in a lot of vices,
going out with barkadas, drinking, even
womanizing being involved in cockfight and
going home very angry and which will
trigger a lot of physical abuse. She also had
the experience a lot of taunting from the
husband for the reason that the husband
even accused her of infidelity, the husband
was saying that the child she was carrying
was not his own. So she was very angry, she
was at the same time very depressed
because she was also aware, almost like
living in purgatory or even hell when it was
happening day in and day out." 39
In cross-examining Dra. Dayan, the public prosecutor
not merely elicited, but wittingly or unwittingly put
forward, additional supporting evidence as shown
below:
"Q In your first encounter with the
appellant in this case in 1999, where you
talked to her about three hours, what was
the most relevant information did you
gather?
A The most relevant information was the
tragedy that happened. The most important
information were escalating abuses that she
had experienced during her marital life.
Q Before you met her in 1999 for three
hours, we presume that you already knew
of the facts of the case or at least you have
substantial knowledge of the facts of the
case?
A I believe I had an idea of the case, but I do
not know whether I can consider them as
substantial.
xxx xxx xxx
Q Did you gather an information from
Marivic that on the side of her husband
they were fond of battering their wives?
A I also heard that from her?
Q You heard that from her?
A Yes, sir.
Q Did you ask for a complete example who
are the relatives of her husband that were
fond of battering their wives?
A What I remember that there were
brothers of her husband who are also
battering their wives.
 Q Did she not inform you that there was an
instance that she stayed in a hotel in Ormoc
where her husband followed her and
battered [her] several times in that room?
A She told me about that.
Q Did she inform you in what hotel in
Ormoc?
A Sir, I could not remember but I was told
that she was battered in that room.
Q Several times in that room?
A Yes, sir. What I remember was that there
is no problem about being battered, it really
happened.
Q Being an expert witness, our
jurisprudence is not complete on saying this
matter. I think that is the first time that we
have this in the Philippines, what is your
opinion?
A Sir, my opinion is, she is really a battered
wife and in this kind happened, it was really
a self-defense. I also believe that there had
been provocation and I also believe that she
became a disordered person. She had to
suffer anxiety reaction because of all the
battering that happened and so she became
an abnormal person who had lost she's not
during the time and that is why it happened
because of all the physical battering,
emotional battering, all the psychological
abuses that she had experienced from her
husband.
234 | P a g e
Q I do believe that she is a battered wife.
Was she extremely battered?
A Sir, it is an extreme form of battering.
Yes.40
Parenthetically, the credibility of appellant was
demonstrated as follows:
"Q And you also said that you administered
[the] objective personality test, what x x x
[is this] all about?
A The objective personality test is the
Millon Clinical Multiaxial Inventory. The
purpose of that test is to find out about the
lying prone[ne]ss of the person.
Q What do you mean by that?
A Meaning, am I dealing with a client who is
telling me the truth, or is she someone who
can exaggerate or x x x [will] tell a lie[?]
Q And what did you discover on the basis of
this objective personality test?
A She was a person who passed the honesty
test. Meaning she is a person that I can
trust. That the data that I'm gathering from
her are the truth."41
The other expert witness presented by the defense,
Dr. Alfredo Pajarillo, testified on his Psychiatric
Report,42 which was based on his interview and
examination of Marivic Genosa. The Report said that
during the first three years of her marriage to Ben,
everything looked good -- the atmosphere was fine,
normal and happy -- until "Ben started to be
attracted to other girls and was also enticed in[to]
gambling[,] especially cockfighting. x x x. At the same
time Ben was often joining his barkada in drinking
sprees."
The drinking sprees of Ben greatly changed the
attitude he showed toward his family, particularly to
his wife. The Report continued: "At first, it was
verbal and emotional abuses but as time passed, he
became physically abusive. Marivic claimed that the
viciousness of her husband was progressive every
time he got drunk. It was a painful ordeal Marivic
had to anticipate whenever she suspected that her
husband went for a drinking [spree]. They had been
married for twelve years[;] and practically more than
eight years, she was battered and maltreated
relentlessly and mercilessly by her husband
whenever he was drunk."
Marivic sought the help of her mother-in-law, but
her efforts were in vain. Further quoting from the
Report, "[s]he also sought the advice and help of
close relatives and well-meaning friends in spite of
her feeling ashamed of what was happening to her.
But incessant battering became more and more
frequent and more severe. x x x."43
From the totality of evidence presented, there is
indeed no doubt in the Court's mind that Appellant
Marivic Genosa was a severely abused person.
Effect of Battery on Appellant
Because of the recurring cycles of violence
experienced by the abused woman, her state of
mind metamorphoses. In determining her state of
mind, we cannot rely merely on the judgment of an
ordinary, reasonable person who is evaluating the
events immediately surrounding the incident. A
Canadian court has aptly pointed out that expert
evidence on the psychological effect of battering on
wives and common law partners are both relevant
and necessary. "How can the mental state of the
appellant be appreciated without it? The average
member of the public may ask: Why would a woman
put up with this kind of treatment? Why should she
continue to live with such a man? How could she
love a partner who beat her to the point of requiring
hospitalization? We would expect the woman to
pack her bags and go. Where is her self-respect?
Why does she not cut loose and make a new life for
herself? Such is the reaction of the average person
confronted with the so-called 'battered wife
syndrome.'"44
To understand the syndrome properly, however,
one's viewpoint should not be drawn from that of an
ordinary, reasonable person. What goes on in the
mind of a person who has been subjected to
repeated, severe beatings may not be consistent
with -- nay, comprehensible to -- those who have not
been through a similar experience. Expert opinion is
essential to clarify and refute common myths and
misconceptions about battered women.45
The theory of BWS formulated by Lenore Walker, as
well as her research on domestic violence, has had a
significant impact in the United States and the
United Kingdom on the treatment and prosecution
of cases, in which a battered woman is charged with
the killing of her violent partner. The psychologist
explains that the cyclical nature of the violence
inflicted upon the battered woman immobilizes the
latter's "ability to act decisively in her own interests,
making her feel trapped in the relationship with no
means of escape."46 In her years of research, Dr.
Walker found that "the abuse often escalates at the
point of separation and battered women are in
greater danger of dying then."47
Corroborating these research findings, Dra. Dayan
said that "the battered woman usually has a very low
opinion of herself. She has x x x self-defeating and
235 | P a g e
self-sacrificing characteristics. x x x [W]hen the
violence would happen, they usually think that they
provoke[d] it, that they were the one[s] who
precipitated the violence[; that] they provoke[d]
their spouse to be physically, verbally and even
sexually abusive to them."48
According to Dra. Dayan, there are a lot of reasons
why a battered woman does not readily leave an
abusive partner -- poverty, self-blame and guilt
arising from the latter's belief that she provoked the
violence, that she has an obligation to keep the
family intact at all cost for the sake of their children,
and that she is the only hope for her spouse to
change.49
The testimony of another expert witness, Dr.
Pajarillo, is also helpful. He had previously testified in
suits involving violent family relations, having
evaluated "probably ten to twenty thousand" violent
family disputes within the Armed Forces of the
Philippines, wherein such cases abounded. As a
result of his experience with domestic violence
cases, he became a consultant of the Battered
Woman Office in Quezon City. As such, he got
involved in about forty (40) cases of severe domestic
violence, in which the physical abuse on the woman
would sometimes even lead to her loss of
consciousness.50
Dr. Pajarillo explained that "overwhelming brutality,
trauma" could result in posttraumatic stress
disorder, a form of "anxiety neurosis or neurologic
anxietism."51 After being repeatedly and severely
abused, battered persons "may believe that they are
essentially helpless, lacking power to change their
situation. x x x [A]cute battering incidents can have
the effect of stimulating the development of coping
responses to the trauma at the expense of the
victim's ability to muster an active response to try to
escape further trauma. Furthermore, x x x the victim
ceases to believe that anything she can do will have
a predictable positive effect."52
A study53 conducted by Martin Seligman, a
psychologist at the University of Pennsylvania, found
that "even if a person has control over a situation,
but believes that she does not, she will be more
likely to respond to that situation with coping
responses rather than trying to escape." He said that
it was the cognitive aspect -- the individual's
thoughts -- that proved all-important. He referred to
this phenomenon as "learned helplessness." "[T]he
truth or facts of a situation turn out to be less
important than the individual's set of beliefs or
perceptions concerning the situation. Battered
women don't attempt to leave the battering
situation, even when it may seem to outsiders that
escape is possible, because they cannot predict their
own safety; they believe that nothing they or anyone
else does will alter their terrible circumstances."54
Thus, just as the battered woman believes that she is
somehow responsible for the violent behavior of her
partner, she also believes that he is capable of killing
her, and that there is no escape.55 Battered women
feel unsafe, suffer from pervasive anxiety, and
usually fail to leave the relationship.56 Unless a
shelter is available, she stays with her husband, not
only because she typically lacks a means of self-
support, but also because she fears that if she leaves
she would be found and hurt even more.57
In the instant case, we meticulously scoured the
records for specific evidence establishing that
appellant, due to the repeated abuse she had
suffered from her spouse over a long period of time,
became afflicted with the battered woman
syndrome. We, however, failed to find sufficient
evidence that would support such a conclusion.
More specifically, we failed to find ample evidence
that would confirm the presence of the essential
characteristics of BWS.
The defense fell short of proving all three phases of
the "cycle of violence" supposedly characterizing the
relationship of Ben and Marivic Genosa. No doubt
there were acute battering incidents. In relating to
the court a quo how the fatal incident that led to the
death of Ben started, Marivic perfectly described the
tension-building phase of the cycle. She was able to
explain in adequate detail the typical characteristics
of this stage. However, that single incident does not
prove the existence of the syndrome. In other words,
she failed to prove that in at least another battering
episode in the past, she had gone through a similar
pattern.
How did the tension between the partners usually
arise or build up prior to acute battering? How did
Marivic normally respond to Ben's relatively minor
abuses? What means did she employ to try to
prevent the situation from developing into the next
(more violent) stage?
Neither did appellant proffer sufficient evidence in
regard to the third phase of the cycle. She simply
mentioned that she would usually run away to her
mother's or father's house;58 that Ben would seek
her out, ask for her forgiveness and promise to
change; and that believing his words, she would
return to their common abode.
Did she ever feel that she provoked the violent
incidents between her and her spouse? Did she
believe that she was the only hope for Ben to
reform? And that she was the sole support of his
emotional stability and well-being? Conversely, how
dependent was she on him? Did she feel helpless
and trapped in their relationship? Did both of them
regard death as preferable to separation?
236 | P a g e
In sum, the defense failed to elicit from appellant
herself her factual experiences and thoughts that
would clearly and fully demonstrate the essential
characteristics of the syndrome.
The Court appreciates the ratiocinations given by the
expert witnesses for the defense. Indeed, they were
able to explain fully, albeit merely theoretically and
scientifically, how the personality of the battered
woman usually evolved or deteriorated as a result of
repeated and severe beatings inflicted upon her by
her partner or spouse. They corroborated each
other's testimonies, which were culled from their
numerous studies of hundreds of actual
cases. However, they failed to present in court the
factual experiences and thoughts that appellant had
related to them -- if at all -- based on which they
concluded that she had BWS.
We emphasize that in criminal cases, all the
elements of a modifying circumstance must be
proven in order to be appreciated. To repeat, the
records lack supporting evidence that would
establish all the essentials of the battered woman
syndrome as manifested specifically in the case of
the Genosas.
BWS as Self-Defense
In any event, the existence of the syndrome in a
relationship does not in itself establish the legal right
of the woman to kill her abusive partner. Evidence
must still be considered in the context of self-
defense.59
From the expert opinions discussed earlier, the Court
reckons further that crucial to the BWS defense is
the state of mind of the battered woman at the time
of the offense60 -- she must have actually feared
imminent harm from her batterer and honestly
believed in the need to kill him in order to save her
life.
Settled in our jurisprudence, however, is the rule
that the one who resorts to self-defense must face
a real threat on one's life; and the peril sought to be
avoided must be imminent and actual, not merely
imaginary.61 Thus, the Revised Penal Code provides
the following requisites and effect of self-defense:62
"Art. 11. Justifying circumstances. -- The
following do not incur any criminal liability:
"1. Anyone who acts in defense of his
person or rights, provided that the following
circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means
employed to prevent or repel it;
Third. Lack of sufficient provocation on the
part of the person defending himself."
Unlawful aggression is the most essential element of
self-defense.63 It presupposes actual, sudden and
unexpected attack -- or an imminent danger thereof
-- on the life or safety of a person.64 In the present
case, however, according to the testimony of Marivic
herself, there was a sufficient time interval between
the unlawful aggression of Ben and her fatal attack
upon him. She had already been able to withdraw
from his violent behavior and escape to their
children's bedroom. During that time, he apparently
ceased his attack and went to bed. The reality or
even the imminence of the danger he posed had
ended altogether. He was no longer in a position
that presented an actual threat on her life or safety.
Had Ben still been awaiting Marivic when she came
out of their children's bedroom -- and based on past
violent incidents, there was a great probability that
he would still have pursued her and inflicted graver
harm -- then, the imminence of the real threat upon
her life would not have ceased yet. Where the
brutalized person is already suffering from BWS,
further evidence of actual physical assault at the
time of the killing is not required. Incidents of
domestic battery usually have a predictable pattern.
To require the battered person to await an obvious,
deadly attack before she can defend her life "would
amount to sentencing her to 'murder by
installment.'"65 Still, impending danger (based on the
conduct of the victim in previous battering episodes)
prior to the defendant's use of deadly force must be
shown. Threatening behavior or communication can
satisfy the required imminence of
danger.66 Considering such circumstances and the
existence of BWS, self-defense may be appreciated.
We reiterate the principle that aggression, if not
continuous, does not warrant self-defense.67 In the
absence of such aggression, there can be no self-
defense -- complete or incomplete -- on the part of
the victim.68 Thus, Marivic's killing of Ben was not
completely justified under the circumstances.
Mitigating Circumstances Present
In any event, all is not lost for appellant. While she
did not raise any other modifying circumstances that
would alter her penalty, we deem it proper to
evaluate and appreciate in her favor circumstances
that mitigate her criminal liability. It is a hornbook
doctrine that an appeal in a criminal case opens it
wholly for review on any issue, including that which
has not been raised by the parties. 69
From several psychological tests she had
administered to Marivic, Dra. Dayan, in her
237 | P a g e
Psychological Evaluation Report dated November 29,
2000, opined as follows:
"This is a classic case of a Battered Woman
Syndrome. The repeated battering Marivic
experienced with her husband constitutes a
form of [cumulative] provocation which
broke down her psychological resistance
and natural self-control. It is very clear that
she developed heightened sensitivity to
sight of impending danger her husband
posed continuously. Marivic truly
experienced at the hands of her abuser
husband a state of psychological paralysis
which can only be ended by an act of
violence on her part." 70
Dr. Pajarillo corroborates the findings of Dra. Dayan.
He explained that the effect of "repetitious pain
taking, repetitious battering, [and] repetitious
maltreatment" as well as the severity and the
prolonged administration of the battering is
posttraumatic stress disorder.71 Expounding thereon,
he said:
"Q What causes the trauma, Mr. Witness?
A What causes the trauma is probably the
repetitious battering. Second, the severity
of the battering. Third, the prolonged
administration of battering or the
prolonged commission of the battering and
the psychological and constitutional
stamina of the victim and another one is the
public and social support available to the
victim. If nobody is interceding, the more
she will go to that disorder....
xxx xxx xxx
Q You referred a while ago to severity.
What are the qualifications in terms of
severity of the postraumatic stress disorder,
Dr. Pajarillo?
A The severity is the most severe
continuously to trig[g]er this
post[t]raumatic stress disorder is injury to
the head, banging of the head like that. It is
usually the very very severe stimulus that
precipitate this post[t]raumatic stress
disorder. Others are suffocating the victim
like holding a pillow on the face,
strangulating the individual, suffocating the
individual, and boxing the individual. In this
situation therefore, the victim is heightened
to painful stimulus, like for example she is
pregnant, she is very susceptible because
the woman will not only protect herself, she
is also to protect the fetus. So the anxiety is
heightened to the end [sic] degree.
Q But in terms of the gravity of the disorder,
Mr. Witness, how do you classify?
A We classify the disorder as [acute], or
chronic or delayed or [a]typical.
Q Can you please describe this pre[-
]classification you called delayed or
[atypical]?
A The acute is the one that usually require
only one battering and the individual will
manifest now a severe emotional instability,
higher irritability remorse, restlessness, and
fear and probably in most [acute] cases the
first thing will be happened to the individual
will be thinking of suicide.
Q And in chronic cases, Mr. Witness?
 A The chronic cases is this repetitious
battering, repetitious maltreatment, any
prolonged, it is longer than six (6) months.
The [acute] is only the first day to six (6)
months. After this six (6) months you
become chronic. It is stated in the book
specifically that after six (6) months is
chronic. The [a]typical one is the repetitious
battering but the individual who is
abnormal and then become normal. This is
how you get neurosis from neurotic
personality of these cases of
post[t]raumatic stress disorder." 72
Answering the questions propounded by the trial
judge, the expert witness clarified further:
"Q But just the same[,] neurosis especially
on battered woman syndrome x x x affects x
x x his or her mental capacity?
A Yes, your Honor.
Q As you were saying[,] it x x x obfuscated
her rationality?
A Of course obfuscated."73
In sum, the cyclical nature and the severity of the
violence inflicted upon appellant resulted in
"cumulative provocation which broke down her
psychological resistance and natural self-control,"
"psychological paralysis," and "difficulty in
concentrating or impairment of memory."
Based on the explanations of the expert witnesses,
such manifestations were analogous to an illness
that diminished the exercise by appellant of her will
power without, however, depriving her of
consciousness of her acts. There was, thus, a
238 | P a g e
resulting diminution of her freedom of action,
intelligence or intent. Pursuant to paragraphs 974 and
1075 of Article 13 of the Revised Penal Code, this
circumstance should be taken in her favor and
considered as a mitigating factor. 76
In addition, we also find in favor of appellant the
extenuating circumstance of having acted upon an
impulse so powerful as to have naturally produced
passion and obfuscation. It has been held that this
state of mind is present when a crime is committed
as a result of an uncontrollable burst of passion
provoked by prior unjust or improper acts or by a
legitimate stimulus so powerful as to overcome
reason.77 To appreciate this circumstance, the
following requisites should concur: (1) there is an
act, both unlawful and sufficient to produce such a
condition of mind; and (2) this act is not far removed
from the commission of the crime by a considerable
length of time, during which the accused might
recover her normal equanimity.78
Here, an acute battering incident, wherein Ben
Genosa was the unlawful aggressor, preceded his
being killed by Marivic. He had further threatened to
kill her while dragging her by the neck towards a
cabinet in which he had kept a gun. It should also be
recalled that she was eight months pregnant at the
time. The attempt on her life was likewise on that of
her fetus.79 His abusive and violent acts, an
aggression which was directed at the lives of both
Marivic and her unborn child, naturally produced
passion and obfuscation overcoming her reason.
Even though she was able to retreat to a separate
room, her emotional and mental state continued.
According to her, she felt her blood pressure rise;
she was filled with feelings of self-pity and of fear
that she and her baby were about to die. In a fit of
indignation, she pried open the cabinet drawer
where Ben kept a gun, then she took the weapon
and used it to shoot him.
The confluence of these events brings us to the
conclusion that there was no considerable period of
time within which Marivic could have recovered her
normal equanimity. Helpful is Dr. Pajarillo's
testimony80 that with "neurotic anxiety" -- a
psychological effect on a victim of "overwhelming
brutality [or] trauma" -- the victim relives the beating
or trauma as if it were real, although she is not
actually being beaten at the time. She cannot control
"re-experiencing the whole thing, the most vicious
and the trauma that she suffered." She thinks "of
nothing but the suffering." Such reliving which is
beyond the control of a person under similar
circumstances, must have been what Marivic
experienced during the brief time interval and
prevented her from recovering her normal
equanimity. Accordingly, she should further be
credited with the mitigating circumstance of passion
and obfuscation.
It should be clarified that these two circumstances --
psychological paralysis as well as passion and
obfuscation -- did not arise from the same set of
facts.
On the one hand, the first circumstance arose from
the cyclical nature and the severity of the battery
inflicted by the batterer-spouse upon appellant. That
is, the repeated beatings over a period of time
resulted in her psychological paralysis, which was
analogous to an illness diminishing the exercise of
her will power without depriving her of
consciousness of her acts.
The second circumstance, on the other hand,
resulted from the violent aggression he had inflicted
on her prior to the killing. That the incident occurred
when she was eight months pregnant with their child
was deemed by her as an attempt not only on her
life, but likewise on that of their unborn child. Such
perception naturally produced passion and
obfuscation on her part.
Second Legal Issue:
Treachery
There is treachery when one commits any of the
crimes against persons by employing means,
methods or forms in the execution thereof without
risk to oneself arising from the defense that the
offended party might make.81 In order to qualify an
act as treacherous, the circumstances invoked must
be proven as indubitably as the killing itself; they
cannot be deduced from mere inferences, or
conjectures, which have no place in the appreciation
of evidence.82 Because of the gravity of the resulting
offense, treachery must be proved as conclusively as
the killing itself.83
Ruling that treachery was present in the instant case,
the trial court imposed the penalty of death upon
appellant. It inferred this qualifying circumstances
merely from the fact that the lifeless body of Ben
had been found lying in bed with an "open,
depressed, circular" fracture located at the back of
his head. As to exactly how and when he had been
fatally attacked, however, the prosecution failed to
establish indubitably. Only the following testimony
of appellant leads us to the events surrounding his
death:
"Q You said that when Ben came back to
your house, he dragged you? How did he
drag you?
COURT:
239 | P a g e
The witness demonstrated to the
Court by using her right hand
flexed forcibly in her front neck)
A And he dragged me towards the door
backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to
get something and then he kept on shouting
at me that 'you might as well be killed so
there will be nobody to nag me'
Q So you said that he dragged you towards
the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER
(At this juncture the witness
started crying)
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought
to that drawer?
A He dragged me towards the drawer and
he was about to open the drawer but he
could not open it because he did not have
the key then he pulled his wallet which
contained a blade about 3 inches long and I
was aware that he was going to kill me and I
smashed his arm and then the wallet and
the blade fell. The one he used to open the
drawer I saw, it was a pipe about that long,
and when he was about to pick-up the
wallet and the blade, I smashed him then I
ran to the other room, and on that very
moment everything on my mind was to pity
on myself, then the feeling I had on that
very moment was the same when I was
admitted in PHILPHOS Clinic, I was about to
vomit.
COURT INTERPRETER
(The witness at this juncture is
crying intensely).
xxx xxx xxx
Q You said that he dropped the blade, for
the record will you please describe this
blade about 3 inches long, how does it look
like?
A Three (3) inches long and ½ inch wide.
Q It is a flexible blade?
A It's a cutter.
Q How do you describe the blade, is it sharp
both edges?
A Yes, because he once used it to me.
 Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he
intimidate me.
xxx xxx xxx
ATTY. TABUCANON:
Q You said that this blade fell from his grip,
is it correct?
A Yes, because I smashed him.
Q What happened?
A Ben tried to pick-up the wallet and the
blade, I pick-up the pipe and I smashed him
and I ran to the other room.
Q What else happened?
A When I was in the other room, I felt the
same thing like what happened before
when I was admitted in PHILPHOS Clinic, I
was about to vomit. I know my blood
pressure was raised. I was frightened I was
about to die because of my blood pressure.
COURT INTERPRETER:
(Upon the answer of the witness
getting the pipe and smashed him,
the witness at the same time
pointed at the back of her neck or
the nape).
240 | P a g e
ATTY. TABUCANON:
Q You said you went to the room, what else
happened?
A Considering all the physical sufferings that
I've been through with him, I took pity on
myself and I felt I was about to die also
because of my blood pressure and the baby,
so I got that gun and I shot him.
COURT
/to Atty. Tabucanon
Q You shot him?
A Yes, I distorted the drawer."84
The above testimony is insufficient to establish the
presence of treachery. There is no showing of the
victim's position relative to appellant's at the time of
the shooting. Besides, equally axiomatic is the rule
that when a killing is preceded by an argument or a
quarrel, treachery cannot be appreciated as a
qualifying circumstance, because the deceased may
be said to have been forewarned and to have
anticipated aggression from the assailant.85
Moreover, in order to appreciate alevosia, the
method of assault adopted by the aggressor must
have been consciously and deliberately chosen for
the specific purpose of accomplishing the unlawful
act without risk from any defense that might be put
up by the party attacked.86 There is no showing,
though, that the present appellant intentionally
chose a specific means of successfully attacking her
husband without any risk to herself from any
retaliatory act that he might make. To the contrary,
it appears that the thought of using the gun occurred
to her only at about the same moment when she
decided to kill her batterer-spouse. In the absence of
any convincing proof that she consciously and
deliberately employed the method by which she
committed the crime in order to ensure its
execution, this Court resolves the doubt in her
favor.87
Proper Penalty
The penalty for parricide imposed by Article 246 of
the Revised Penal Code is reclusion perpetua to
death. Since two mitigating circumstances and no
aggravating circumstance have been found to have
attended the commission of the offense, the penalty
shall be lowered by one (1) degree, pursuant to
Article 64 of paragraph 588 of the same Code.89 The
penalty of reclusion temporal in its medium period is
imposable, considering that two mitigating
circumstances are to be taken into account in
reducing the penalty by one degree, and no other
modifying circumstances were shown to have
attended the commission of the offense.90 Under the
Indeterminate Sentence Law, the minimum of the
penalty shall be within the range of that which is
next lower in degree -- prision mayor -- and the
maximum shall be within the range of the medium
period of reclusion temporal.
Considering all the circumstances of the instant case,
we deem it just and proper to impose the penalty
of prision mayor in its minimum period, or six (6)
years and one (1) day in prison as minimum;
to reclusion temporal in its medium period, or 14
years 8 months and 1 day as maximum. Noting that
appellant has already served the minimum period,
she may now apply for and be released from
detention on parole.91
Epilogue
Being a novel concept in our jurisprudence, the
battered woman syndrome was neither easy nor
simple to analyze and recognize vis-à-vis the given
set of facts in the present case. The Court agonized
on how to apply the theory as a modern-day reality.
It took great effort beyond the normal manner in
which decisions are made -- on the basis of existing
law and jurisprudence applicable to the proven facts.
To give a just and proper resolution of the case, it
endeavored to take a good look at studies conducted
here and abroad in order to understand the
intricacies of the syndrome and the distinct
personality of the chronically abused person.
Certainly, the Court has learned much. And
definitely, the solicitor general and appellant's
counsel, Atty. Katrina Legarda, have helped it in such
learning process.
While our hearts empathize with recurrently
battered persons, we can only work within the limits
of law, jurisprudence and given facts. We cannot
make or invent them. Neither can we amend the
Revised Penal Code. Only Congress, in its wisdom,
may do so.
The Court, however, is not discounting the possibility
of self-defense arising from the battered woman
syndrome. We now sum up our main points. First,
each of the phases of the cycle of violence must be
proven to have characterized at least two battering
episodes between the appellant and her intimate
partner. Second, the final acute battering episode
preceding the killing of the batterer must have
produced in the battered person's mind an actual
fear of an imminent harm from her batterer and an
honest belief that she needed to use force in order
to save her life. Third, at the time of the killing, the
batterer must have posed probable -- not necessarily
immediate and actual -- grave harm to the accused,
based on the history of violence perpetrated by the
former against the latter. Taken altogether, these
241 | P a g e
circumstances could satisfy the requisites of self-
defense. Under the existing facts of the present case,
however, not all of these elements were duly
established.
WHEREFORE, the conviction of Appellant Marivic
Genosa for parricide is hereby AFFIRMED. However,
there being two (2) mitigating circumstances and no
aggravating circumstance attending her commission
of the offense, her penalty is REDUCED to six (6)
years and one (1) day of prision mayor as minimum;
to 14 years, 8 months and 1 day of reclusion
temporal as maximum.
Inasmuch as appellant has been detained for more
than the minimum penalty hereby imposed upon
her, the director of the Bureau of Corrections may
immediately RELEASE her from custody upon due
determination that she is eligible for parole, unless
she is being held for some other lawful cause.
Costs de oficio.
SO ORDERED.
Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr.,
Azcuna and Tinga, JJ., concur.
Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-
Martinez, JJ., join Justice Santiago in her dissent.
Vitug and Quisumbing JJ., in the result.
Ynares-Santiago J., see dissenting opinion.
DISSENTING OPINION
YNARES-SANTIAGO, J.:
In convicting Marivic Genosa of the crime of
parricide, our esteemed colleague Mr. Justice
Artemio V. Panganiban found that there was no
factual basis to conclude that Marivic was suffering
from "Battered Woman Syndrome" (BWS) at the
time she took the life of her husband. With due
respect, I register my dissent.
The novel theory of "Battered Woman Syndrome" is
recognized in foreign jurisprudence as a form of self-
defense. It operates upon the premise that a woman
who has been cyclically abused and controlled over a
period of time develops a fearful state of mind.
Living in constant danger of harm or death, she
knows that future beatings are almost certain to
occur and will escalate over time. Her intimate
knowledge of the violent nature of her batterer
makes her alert to when a particular attack is
forthcoming, and when it will seriously threaten her
survival. Trapped in a cycle of violence and constant
fear, it is not unlikely that she would succumb to her
helplessness and fail to perceive possible solutions
to the problem other than to injure or kill her
batterer. She is seized by fear of an existing or
impending lethal aggression and thus would have no
opportunity beforehand to deliberate on her acts
and to choose a less fatal means of eliminating her
sufferings.1
As exhaustively discussed in the ponencia, the
"Battered Woman Syndrome" has three phases, to
wit: (1) the tension-building phase, where minor
batterings in the form of verbal or slight physical
abuse occurs. Here, the woman tries to pacify the
batterer through a show of kind, nurturing behavior;
or by simply staying out of his way; (2) the acute
battering incident phase which is characterized by
brutality, destructiveness and sometimes, death. The
battered woman usually realizes that she cannot
reason with him and that resistance would only
exacerbate her condition; and (3) the tranquil
period, where the couple experience a compound
relief and the batterer may show a tender and
nurturing behavior towards his partner.
Contrary to the findings in the ponencia, the defense
was able to establish the occurrence on more than
one occasion of the "tension-building phase" of the
cycle. The various testimonies of appellant's
witnesses clearly reveal that she knew exactly when
she would once again be subjected to acute battery.
Her cousin, Ecel Arano, testified that she often asked
the latter to sleep in her house as she was afraid
every time her husband came home drunk. Clearly,
whenever appellant requested for Arano's company,
she was experiencing a tension-building phase. The
barangay captain, Panfilo Tero, also testified that
appellant sought his help two months before she
killed her husband, again demonstrating that she
was in the tension-building phase and was
attempting to prevent another incident of acute
battery. Appellant presented evidence to prove that
the tension-building phase would occur whenever
her husband would go out looking for other women,
would lose at cockfights or would come home drunk.
She often tried to ignore her husband's attitude or,
as testified to by some witnesses for the
prosecution, even shouted back, fought off or even
injured her husband during the tension-building
phase, if only to prevent the onset of acute battery.
Appellant was able to perfectly describe the tension-
building phase of the cycle immediately prior to the
death of her husband, i.e., when she knew or felt
that she was going to be killed by the deceased. She
could not possibly have testified with clarity as to
prior tension-building phases in the cycle as she had
never tried to kill her husband before this time.
It was shown by the testimonies of appellant and
even witnesses for the prosecution that appellant
would seek shelter in her mother's or her father's
house after an acute battering incident, after which
242 | P a g e
would begin the process of begging for forgiveness,
promises of change in behavior and return to the
conjugal home, only for the same cycle to begin all
over again.
To require appellant to prove the state of mind of
the deceased, as seems to be required in
the ponencia, would mean that no person would
ever be able to prove self-defense in a battered
woman case. Appellant could not possibly prove
whether the deceased felt provoked into battering
by any act or omission of appellant. She cannot
possibly prove that she felt herself to be the sole
support of the deceased's emotional stability and
well-being. Nevertheless, appellant felt trapped and
helpless in the relationship as, in the end, she
resorted to killing her husband as no one could or
did help her, whether out of fear or insensitivity,
during the violent marriage she endured.
The "acute battering incident stage" was well
demonstrated by the severe beatings suffered by
Marivic in the hands of the deceased as well as the
threats to kill her using a bolo or a cutter.2 The
physical abuses occurred at least 3 times a week in
the 11 miserable years of their marriage,3 six
incidents of which were documented by the 1990-
1995 medical records of Marivic. They included,
among others, hematoma, contusion, and pain on
the breasts; multiple contusions and trauma on the
different parts of her body even during her
pregnancy in 1995.4 The tranquil period underwent
by Marivic was shown by the repeated "kiss and
make-up" episodes of their relationship. On more
than 5 occasions, Marivic ran to her parents' house
after violent fights with the deceased only to forgive
the latter every time he would fetch her and promise
to change.5
All these recurring phases of cycle of violence,
repentance and forgiveness developed a trauma in
the mind of Marivic making her believe that a
forthcoming attack from the deceased would cause
her death. This state of mind of Marivic was revealed
in her testimony given way back in 1998, before she
was examined by experts on BWS. Unaware of the
significance of her declarations, she candidly
narrated how she felt immediately before she killed
the deceased, thus -
ATTY. TABUCANON
Q So you said that he dragged you towards
the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
xxx xxx xxx
Q What happened when you were brought
to the drawer?
A He dragged me towards the drawer and
he was about to open the drawer but he
could not open it because he did not have
the key. [T]hen he pulled his wallet which
contained a blade about 3 inches long and I
was aware that he was going to kill me and I
smashed his arm and then the wallet and
the blade fell. The one he used to open the
drawer I saw, it was a pipe about that long,
and when he was about to pick-up the
wallet and the blade, I smashed him then I
ran to the room, and on that very moment
everything on my mind was pity on myself,
then the feeling I had on that very moment
 was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.
xxx xxx xxx6
Q What else happened?
A When I was in the room, I felt the same
thing like what happened before I was
admitted in PHILPHOS Clinic, I was about to
vomit. I know my blood pressure has raised.
I was frightened I was about to die because
of my blood pressure.
xxx xxx xxx
A Considering all the physical sufferings that
I've been through him, I took pity on myself
and I felt I was about to die also because of
my blood pressure and the baby, so I got
the gun and shot him.7
It must be stressed that the defense of "Battered
Woman Syndrome" was not raised by Marivic before
the lower court but only here on automatic review.
This makes the foregoing testimony more worthy of
great weight and credence considering that the
same could not have been cunningly given to suit or
conform to the profile of a battered woman.
Moreover, there was indeed basis for Marivic to fear
death because of her medical history. Dr. Dino Caing
testified that he treated Marivic for hypertension
due to domestically related emotional stress on 23
separate occasions. The latest one was on November
6, 1995 when she suffered from severe hypertension
and had a blood pressure of 180/120 on the
8th month of her pregnancy.8
243 | P a g e
Furthermore, Dr. Natividad A. Dayan, a clinical
psychologist and an expert on BWS who examined
Marivic, assessed the effects of the repeated
violence on the latter as follows:
A What I remember ... was it was more than
ten years that she was suffering from
emotional anguish. There were a lot of
instance of abuses, ... emotional
abuse...verbal abuse and... physical abuse.
The husband had very meager income, she
was the one who was practically the bread
earner of the family. The husband was
involved in a lot of vices, going out
with barkadas, drinking, even womanizing,
being involved in cockfighting and in going
home very angry which... triggered a lot of
physical abuse. She also had the experience
of taunting from the husband for the reason
that the husband even accused her of
infidelity, the husband was saying that the
child she was carrying was not his own. So
she was very angry, she was at the same
time very depressed because she .. .[felt]
almost like living in purgatory or even in hell
when it was happening day in and day out.
xxx xxx xxx
Q And what was it that triggered ... that
tragedy in your opinion?
A I think for several weeks, she was already
having all those tensions, all those anxieties,
they were not enough, that the husband
was even going to cockfighting x x x
A She was angry with him, he was angry
with her and I think he dragged her and
even spun her around. She tried to fight him
so there was a lot of fight and when she was
able to escape, she went to another room
and she locked herself with the children.
And when the husband was for a while very
angry he calms down then and then (sic).
But I remember before that the husband
was looking for the gun and I think he was
not able to open the cabinet because she
had the key. So during that time, I
remember, that she was very much afraid
of him, so when the husband calmed down
and he was asleep, all she was concerned
was to end up her misery, to save her child
which she was carrying and to save her two
children. I believe that somehow she's not
rational.9
xxx xxx xxx
PROS. TRUYA
Q Mrs. Witness, being an expert witness,
giving more the facts and circumstances on
this case that the books you studied in the
expertise in line and in the 77 hour contact
with appellant Mrs. Genosa, could you say
that this is not ordinary self-defense but a
survival on her part?
A Yes, sir.
Q To what she did to her husband (sic)?
A Yes, sir this is not an ordinary self-
defense, but this [is] a need to survive, a
need to survive with her two sons and [the]
child she's bringing.
Q Had she not able to kill her husband,
would she still be in the very short moment
with the victim (sic)?
 A If she did not do that she believes that she
will be the one who would be killed.10
There is no doubt therefore that Marivic was
afflicted with the "Battered Woman Syndrome" and
that it was an apprehension of death and the instinct
to defend her and her unborn child's life that drove
her to kill her husband.
The ponente further refused to sustain the self-
defense proffered by Marivic because there was
allegedly no aggression or danger posed on her life
by the victim at the time she attacked the latter.
Again, I beg to disagree.
Traditionally, in order that self-defense may be
appreciated, the unlawful aggression or the attack
must be imminent and actually in existence. This
interpretation must, however, be re-evaluated vis-a-
vis the recognized inherent characteristic of the
psyche of a person afflicted with the "Battered
Woman Syndrome." As previously discussed, women
afflicted by this syndrome live in constant fear for
their life and thus respond in self-defense. Once BWS
and an impending danger based on the conduct of
the deceased in previous battering episodes are
established, actual occurrence of an assault is no
longer a condition sine qua non before self defense
may be upheld. Threatening behavior or
communication can satisfy the required imminence
of danger. As stated in the ponencia, to require the
battered person to await an obvious deadly attack
before she can defend her life would amount to
sentencing her to murder by installment.
In the case at bar, the cycle of violence perpetrated
by the deceased, which culminated in the physical
assaults and an attempt to shoot Marivic when she
was 8 months pregnant, took the place of unlawful
aggression, thus entitling her to a complete self
defense even if there was no actual employment of
244 | P a g e
violence by the deceased at the time of the killing. A He switch[ed] off the light and the
Marivic had every reason to believe that the children were shouting because they were
deceased would kill her that night not only because scared and he was already holding a bolo.
the latter was verbally threatening to kill her while
attempting to get a gun from the drawer, but more Q How do you describe this bolo?
importantly because the deceased wounded her on
the wrist with a bolo, and because of the deceased's A 1 1/2 feet.
previous conduct of threatening to cut her throat
with a cutter which he kept in his wallet. Quoted
xxx xxx xxx
hereunder are the relevant testimonies of Marivic -
Q You said the children were scared, what
A When I arrived home, he was already in
else happened as Ben was carrying that
his usual behavior.
bolo?
xxx xxx xxx
A He was about to attack me so I ran to the
room.
A He was drunk again, he was yelling in his
usual unruly behavior.
Q What do you mean that he was about to
attack you?
xxx xxx xxx
A When I attempted] to run he held my
A He was nagging ... me at that time and I hands and he whirled me and I fell [on] the
just ignore[d] him because I want to avoid bedside.11
trouble for fear that he will beat me again.
Perhaps he was disappointed because I just
xxx xxx xxx
ignore[d] hi[s] provocation and he switch
off the light and I said to him, "why did you
COURT
switch off the light when the children were
there." At that time I was also attending to
my children who were doing their To the witness
assignments. He was angry with me for not
answering his challenge, so he went to the xxx xxx xxx
kitchen and g[o]t a bolo and cut the
antenna wire to stop me from watching Q The bolo that you said which Ben was
television. holding at that time, [was] it a bolo or a
knife?
xxx xxx xxx
A Bolo.
 Q Were you wounded or were there Q You screamed for help and he left, do you A And he dragged me towards the door
inflictions on your body when he was know where he was going? backwards.
holding and trying to frighten you [with]
that bolo? A Outside perhaps to drink more. ATTY. TABUCANON

A No, only here. Q When he left what did you do...? Q Where did he bring you?

COURT INTERPRETER A I packed all his clothes. A Outside the bedroom and he wanted to
get something and then he kept shouting at
(The witness pointed to her wrist). Q What was your reason in packing his me that "you might as well be killed so
clothes? there will be nobody to nag me.
COURT
A I wanted him to leave us.13 Q So you said that he dragged you towards
To the witness the drawer?
A I was frightened that my husband would
Q You were demonstrating a motion, hurt me, so I packed all his things then on A Yes, sir.
whirling, did your husband really whirl you? the following day I will leave, I was afraid
and I want to make sure I would deliver my Q What is there in the drawer?
A Yes, your Honor. baby safely.14
A I was aware that it was a gun.
Q How did he whirl you? xxx xxx xxx
xxx xxx xxx
A Whirled around. A After a couple of hours, he went back
again and got angry with me for packing his Q What happened when you were brought
Q Just like spinning. clothes, then he dragged me again outside to the drawer?
of the bedroom holding my neck.
xxx xxx xxx A He dragged me towards the drawer and
ATTY. TABUCANON he was about to open the drawer but he
Q Where did he whirl you, was it inside the could not open it because he did not have
bedroom or outside? Q You said that when Ben came back to the key. [T]hen he pulled his wallet which
your house, he dragged you? How did he contained a blade about 3 inches long and I
drag... you? was aware that he was going to kill me and I
A In our bedroom.
smashed his arm and then the wallet and
COURT INTERPRETER the blade fell. The one he used to open the
Q Then after the whirling what happened?
drawer I saw, it was a pipe about that long,
(The witness demonstrated to the and when he was about to pick-up the
A He kicked my ass and then I screamed. 12 wallet and the blade, I smashed him then I
Court by using her right hand
flexed forcibly in her front neck) ran to the room, and on that very moment
xxx xxx xxx everything on my mind was pity on myself,
then the feeling I had on that very moment

245 | P a g e
 was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.
xxx xxx xxx
Q You said that he dropped the blade, for
the record will you please
describe this blade about 3 inches long, how
does it look like?
A Three (3) inches long and 1/2 inch wide.
Q Is it a flexible blade?
A It's a cutter.
Q How do you describe the blade, is it sharp
both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes sir, that was the object used when he
intimidate me.15
RE-DIRECT BY ATTY. TABUCANON
Q In other words, there were two (2)
incidents, the first incident and then he left
and then two (2) hours after he came back?
A Yes, sir.
246 | P a g e
Q And the whirling happened in the first case at bar, there is more than sufficient physical
incident? evidence presented by the appellant from which her
mental state can be inferred. The prosecution did
A Yes, sir. not object to the presentation of these physical and
testimonial pieces of evidence, namely, the medical
Q And the dragging with arms flexed in her records of 23 instances of domestic violence-related
neck and on that blade injuries and the testimonies of neighbors, cousins
and even the barangay captain. Indeed, no person
would endure 23 reported instances of beatings if
happened on the second incident (sic)?
she were planning to kill her spouse in the first place.
The majority need not worry that women around the
A Ye, sir.
country will mastermind the killings of their
husbands and then use this Decision to bolster their
xxx xxx xxx attempts to employ the BWS defense.
COURT Moreover, as found in the ponencia, appellant
should be allowed the mitigating circumstance of
To the witness passion and obfuscation. This, at the very least,
supports a finding that the acts of violence and
Q Why, what is that blade about? battery committed by the deceased were illegal and
unlawful and were committed immediately before
A A cutter about 3 inches long. appellant could recover her natural equanimity. But
what is the natural equanimity of a battered
Q Who used that? woman? Appellant was not a normal married
woman. She can never be in a state of natural
equanimity as she was in a constant state of
A Ben.
alertness and hypersensitivity to the next phase of
acute battery. The esteemed ponente also correctly
Q He used that on you? found that the appellant acted with diminished will-
power. However, he failed to go further. In the case
A He scared me on that (sic). of People v. Javier,17 it was held:
xxx xxx xxx Since accused-appellant has already admitted to the
killing, it is incumbent upon him to prove the claimed
Q But he did not hit you with that? mitigating circumstance of illness. In this case,
however, aside from the testimony of the accused
A Yes, because I managed to run every time that his mind went blank when he killed his wife due
he scared (sic).16 to loss of sleep, no medical finding was presented
regarding his mental condition at the time of the
There are many things which cannot be proved by killing. This Court can hardly rely on the bare
direct evidence. One of this is state of mind. In the allegations of accused-appellant, nor on mere
presumptions and conjectures. No clear and
convincing evidence was shown that accused-
appellant was suffering an illness which diminished
his exercise of will-power at the time of the killing.18
In the case at bar, appellant was allowed and did in
fact present clear and convincing evidence that she
was a battered woman for 13-14 years and that she
suffered from the "Battered Woman Syndrome".
Expert testimony was presented and admitted to this
effect, such that the ponente ably discussed the
causes and effects of the syndrome. To ignore the
testimony and the evidence thus presented is to
make impossible the proof of mental state. Evidence
as to the mental state need not be also "beyond
reasonable doubt."
Verily, the requirement of threatening behavioral
pattern of the batterer in previous violent episodes
was sufficiently satisfied in the present case. This,
juxtaposed to Marivic's affliction with BWS justified
the killing of the deceased. The danger posed or
created in her mind by the latter's threats using
bladed weapons, bred a state of fear, where under
the circumstances, the natural response of the
battered woman would be to defend herself even at
the cost of taking the life of the batterer.
The ponencia's acknowledgement of "Battered
Woman Syndrome" as a valid form of self-defense, is
a noble recognition of the plight of, and a triumph
for battered women who are trapped in a culture of
silence, shame, and fear. This would however be an
empty victory if we deliberately close our eyes to the
antecedents of this case. The facts are simple.
Marivic was suffering from the "Battered Woman
Syndrome" and was defending herself when she
killed her husband. Her acquittal of the charge of
parricide is therefore in order.
247 | P a g e
IN VIEW WHEREOF, I vote to ACQUIT Marivic
Genosa.
SECOND DIVISION
G.R. No. 195021, March 15, 2017
NICOLAS VELASQUEZ AND VICTOR
VELASQUEZ, Petitioners, v. PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
LEONEN, J.:
An accused who pleads a justifying circumstance
under Article 11 of the Revised Penal Code1 admits
to the commission of acts, which would otherwise
engender criminal liability. However, he asserts that
he is justified in committing the acts. In the process
of proving a justifying circumstance, the accused
risks admitting the imputed acts, which may justify
the existence of an offense were it not for the
exculpating facts. Conviction follows if the evidence
for the accused fails to prove the existence of
justifying circumstances.
Through this Petition for Review on Certiorari2 under
Rule 45 of the Rules of Court, the accused petitioners
pray that the assailed March 17, 2010 Decision3 and
December 10, 2010 Resolution4 of the Court of
Appeals in CA-G.R. CR. No. 31333 be reversed and
set aside, and that they be absolved of any criminal
liability.
The Court of Appeals' assailed rulings sustained the
July 25, 2007 Decision5 of the Regional Trial Court,
Branch 41, Dagupan City, which found petitioners
guilty beyond reasonable doubt of attempted
murder.
In an Information, petitioners Nicolas Velasquez
(Nicolas) and Victor Velasquez (Victor), along with
four (4) others - Felix Caballeda (Felix), Jojo Del
Mundo (Jojo), Sonny Boy Velasquez (Sonny), and
Ampong Ocumen (Ampong) - were charged with
attempted murder under Article 248,6 in relation to
Article 6,7 of the Revised Penal Code, as follows:
That on May 24, 2003 in the evening at Brgy. Palua,
Mangaldan, Pangasinan and within the jurisdiction of
this Honorable Court, the above named accused
while armed with stones and wooden poles,
conspiring, confederating and mutually helping one
another, with intent to kill, with treachery and abuse
of superior strength, did, then and there willfully,
unlawfully and feloniously attack, maul and hit JESUS
DEL MUNDO inflicting upon him injuries in the vital
parts of his body, 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 but nevertheless
did not produce it by reason of some causes or
accident other than their own spontaneous
desistance to his damage and prejudice.
Contrary to Article 248 in relation to Article 6 and 50
of the Revised Penal Code.8
All accused, except Ampong, who remained at large,
pleaded not guilty upon arraignment.9 Trial then
ensued.10
According to the prosecution, on May 24, 2003, at
about 10:00 p.m., the spouses Jesus and Ana Del
Mundo (Del Mundo Spouses) left their home to
sleep in their nipa hut, which was about 100 meters
away.11 Arriving at the nipa hut, the Del Mundo
Spouses saw Ampong and Nora Castillo (Nora) in the
midst of having sex.12 Aghast at what he perceived to
be a defilement of his property, Jesus Del Mundo
(Jesus) shouted invectives at Ampong and Nora, who
both scampered away.13 Jesus decided to pursue
Ampong and Nora, while Ana Del Mundo (Ana) left
to fetch their son, who was then elsewhere.14 Jesus
went to the house of Ampong's aunt, but neither
Ampong nor Nora was there.15 He began making his
way back home when he was blocked by Ampong
and his fellow accused.16
Without provocation, petitioner Nicolas hit the left
side of Jesus' forehead with a stone. Petitioner Victor
also hit Jesus' left eyebrow with a stone.17 Accused
Felix did the same, hitting Jesus above his left
ear.18 Accused Sonny struck Jesus with a bamboo,
hitting him at the back, below his right
shoulder.19 Ampong punched Jesus on his left cheek.
The accused then left Jesus on the ground, bloodied.
Jesus crawled and hid behind blades of grass, fearing
that the accused might return. He then got up and
staggered his way back to their house.20
Jesus testified on his own ordeal. In support of his
version of the events, the prosecution also
presented the testimony of Maria Teresita Viado
(Maria Teresita). Maria Teresita was initially
approached by Jesus' wife, Ana, when Jesus failed to
immediately return home.21 She and Ana embarked
on a search for Jesus but were separated. 22 At the
sound of a man being beaten, she hid behind some
bamboos.23 From that vantage point, she saw the
accused mauling Jesus.24 The prosecution noted that
about four (4) or five (5) meters away was a lamp
post, which illuminated the scene.25
At the Del Mundo Spouses' residence, Maria Teresita
recounted to them what she had witnessed (Jesus
had managed to return home by then).26 Ana and
Maria Teresita then brought Jesus to Barangay
Captain Pilita Villanueva, who assisted them in
bringing Jesus to the hospital.27
After undergoing an x-ray examination, Jesus was
248 | P a g e
found to have sustained a crack in his skull.28 Dr. Jose
D. De Guzman (Dr. De Guzman) issued a medico-
legal certificate indicating the following
findings:chanRoblesvirtualLawlibrary
x.x. Positive Alcoholic Breath
3 cms lacerated wound fronto-parietal area left
1 cm lacerated wound frontal area left
Abrasion back left multi linear approximately 20 cm
Abrasion shoulder left, confluent 4x10 cm
Depressed skull fracture parietal area left.
x.x.29
Dr. De Guzman noted that Jesus' injuries required
medical attention for four (4) to six (6) weeks.30 Jesus
was also advised to undergo surgery.31 He was,
however, unable to avail of the required medical
procedure due to shortage of funds.32
The defense offered a different version of events.
According to the accused, in the evening of May 24,
2003, petitioner Nicolas was roused in his sleep by
his wife, Mercedes Velasquez (Mercedes), as the
nearby house of petitioner Victor was being
stoned.33
Nicolas made his way to Victor's place, where he saw
Jesus hacking Victor's door. Several neighbors - the
other accused - allegedly tried to pacify
Jesus.34 Jesus, who was supposedly inebriated,
vented his ire upon Nicolas and the other accused, as
well as on Mercedes.35 The accused thus responded
and countered Jesus' attacks, leading to his
injuries.36
37
In its July 25, 2007 Decision, the Regional Trial
Court, Branch 41, Dagupan City found petitioners
and Felix Caballeda guilty beyond reasonable doubt
of attempted murder.38 The court also found Sonny
Boy Velasquez guilty beyond reasonable doubt of
less serious physical injuries.39 He was found to have
hit Jesus on the back with a bamboo rod. Jojo Del
Mundo was acquitted.40 The case was archived with
respect to Ampong, as he remained at large.41
The dispositive portion of its Decision
read:chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, judgment is
hereby rendered finding accused NICOLAS
VELASQUEZ, VICTOR VELASQUEZ and FELIX
CABALLEDA guilty beyond reasonable doubt of the
crime of Attempted Murder defined and penalized
under Article 248 in relation to Articles 6, paragraph
3 and 51 of the Revised Penal Code, and pursuant to
the law, sentences each of them to suffer on (sic)
indeterminate penalty of four (4) years and one (1)
day of Arrested (sic) Mayor in its maximum period as
minimum to eight (8) years of Prison (sic)
Correctional (sic) in its maximum period to Prison
(sic) Mayor in its medium period as maximum and to
pay proportionately to private complainant Jesus del
Mundo the amount of Php55,000.00 as exemplary
damages, and to pay the cost of suit.
The Court likewise finds the accused SONNY BOY
VELASQUEZ [guilty] beyond reasonable doubt of the
[crime] of Less Serious Physical Injuries defined and
penalized under Article 265 of the Revised Penal
Code and pursuant thereto, he is hereby sentenced
to suffer the penalty of Arresto Mayor on one (1)
month and one (1) day to six (6) months.
Accused JOJO DEL MUNDO is hereby acquitted on
the ground of absence of evidence.
With respect to accused AMPONG OCUMEN, the
case against him is archived without prejudice to its
revival as soon as he is arrested and brought to the
jurisdiction of this Court.42
Petitioners and Felix Caballeda filed a motion for
reconsideration, which the Regional Trial Court
denied.43

On petitioners' and Caballeda's appeal, the Court of
Appeals found that petitioners and Caballeda were
only liable for serious physical injuries because "first,
intent to kill was not attendant inasmuch as the
accused-appellants, despite their superiority in
numbers and strength, left the victim alive and,
second, none of [the] injuries or wounds inflicted
upon the victim was fatal."44 The Court of Appeals
thus modified the sentence imposed on petitioners
and Caballeda.
The dispositive portion of its assailed March 17, 2010
Decision45 read:chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the July 25, 2007
Decision of Branch 41, Regional Trial Court of
Dagupan City is hereby MODIFIED. Instead, accused-
appellants are found guilty of Serious Physical
Injuries and each of them is sentenced to suffer the
penalty of imprisonment of six (6) months of arresto
mayor as minimum to four (4) years and two (2)
months of prision correccional as maximum.
SO ORDERED.46 (Emphasis in the original)
Following the denial of their Motion for
Reconsideration, petitioners filed the present
Petition.47 They insist on their version of events,
particularly on how they and their co-accused
allegedly merely acted in response to Jesus Del
Mundo's aggressive behavior.
For resolution is the issue of whether petitioners
may be held criminally liable for the physical harm
inflicted on Jesus Del Mundo. More specifically, this
Court is asked to determine whether there was
sufficient evidence: first, to prove that justifying
circumstances existed, and second, to convict the
petitioners.
I are present, and the further
249 | P a g e
Petitioners' defense centers on their claim that they
acted in defense of themselves, and also in defense
of Mercedes, Nicolas' wife and Victor's mother. Thus,
they invoke the first and second justifying
circumstances under Article 11 of the Revised Penal
Code:chanRoblesvirtualLawlibrary
ARTICLE 11. Justifying Circumstances. — The
following do not incur any criminal liability:
1. Anyone who acts in defense of his
person or rights, provided that the
following circumstances concur:
First. Unlawful aggression;
Second. Reasonable
necessity of the means
employed to prevent or
repel it;
Third. Lack of sufficient
provocation on the part of
the person defending
himself.
2. Anyone who acts in defense of the
person or rights of his spouse,
ascendants, descendants, or
legitimate, natural or adopted
brothers or sisters, or of his
relatives by affinity in the same
degrees, and those by
consanguinity within the fourth
civil degree, provided that the first
and second requisites prescribed in
the next preceding circumstance
requisite, in case the provocation
was given by the person attacked,
that the one making defense had
no part therein.
A person invoking self-defense (or defense of a
relative) admits to having inflicted harm upon
another person - a potential criminal act under Title
Eight (Crimes Against Persons) of the Revised Penal
Code. However, he or she makes the additional,
defensive contention that even as he or she may
have inflicted harm, he or she nevertheless incurred
no criminal liability as the looming danger upon his
or her own person (or that of his or her relative)
justified the infliction of protective harm to an
erstwhile aggressor.
The accused's admission enables the prosecution to
dispense with discharging its burden of proving that
the accused performed acts, which would otherwise
be the basis of criminal liability. All that remains to
be established is whether the accused were justified
in acting as he or she did. To this end, the accused's
case must rise on its own
merits:chanRoblesvirtualLawlibrary
It is settled that when an accused admits [harming]
the victim but invokes self-defense to escape
criminal liability, the accused assumes the burden to
establish his plea by credible, clear and convincing
evidence; otherwise, conviction would follow from
his admission that he [harmed] the victim. Self-
defense cannot be justifiably appreciated when
uncorroborated by independent and competent
evidence or when it is extremely doubtful by itself.
Indeed, in invoking self-defense, the burden of
evidence is shifted and the accused claiming self-
defense must rely on the strength of his own
evidence and not on the weakness of the
prosecution.48
To successfully invoke self-defense, an accused must
establish: "(1) unlawful aggression on the part of the
victim; (2) reasonable necessity of the means
employed to prevent or repel such aggression; and
(3) lack of sufficient provocation on the part of the
person resorting to self-defense."49 Defense of a
relative under Article 11 (2) of the Revised Penal
Code requires the same first two (2) requisites as
self-defense and, in lieu of the third "in case the
provocation was given by the person attacked, that
the one making the defense had no part therein."50
The first requisite - unlawful aggression - is the
condition sine qua non of self-defense and defense
of a relative:chanRoblesvirtualLawlibrary
At the heart of the claim of self-defense is the
presence of an unlawful aggression committed
against appellant. Without unlawful aggression, self-
defense will not have a leg to stand on and this
justifying circumstance cannot and will not be
appreciated, even if the other elements are present.
Unlawful aggression refers to an attack amounting to
actual or imminent threat to the life and limb of the
person claiming self-defense.51
The second requisite - reasonable necessity of the
means employed to prevent or repel the aggression -
requires a reasonable proportionality between the
unlawful aggression and the defensive response:
"[t]he means employed by the person invoking self-
defense contemplates a rational equivalence
between the means of attack and the
defense."52 This is a matter that depends on the
circumstances:chanRoblesvirtualLawlibrary
Reasonable necessity of the means employed does
not imply material commensurability between the
means of attack and defense. What the law requires
is rational equivalence, in the consideration of which
will enter as principal factors the emergency, the
imminent danger to which the person attacked is
exposed, and the instinct, more than the reason,
that moves or impels the defense, and the
proportionateness thereof does not depend upon
the harm done, but rests upon the imminent danger
of such injury . . . As WE stated in the case of People
250 | P a g e
vs. Lara, in emergencies of this kind, human nature
does not act upon processes of formal reason but in
obedience to the instinct of self-preservation; and
when it is apparent that a person has reasonably
acted upon this instinct, it is the duty of the courts to
sanction the act and hold the act irresponsible in law
for the consequences.53 (Citations omitted)
The third requisite - lack of sufficient provocation -
requires the person mounting a defense to be
reasonably blameless. He or she must not have
antagonized or incited the attacker into launching an
assault. This also requires a consideration of
proportionality. As explained in People v. Boholst-
Caballero,54 "[p]rovocation is sufficient when it is
proportionate to the aggression, that is, adequate
enough to impel one to attack the person claiming
self-defense."55
II
We find petitioners' claims of self-defense and
defense of their relative, Mercedes, to be sorely
wanting.
Petitioners' entire defense rests on proof that it was
Jesus who initiated an assault by barging into the
premises of petitioners' residences, hacking Victor's
door, and threatening physical harm upon
petitioners and their companions. That is, that
unlawful aggression originated from Jesus.
Contrary to what a successful averment of self-
defense or defense of a relative requires, petitioners
offered nothing more than a self-serving,
uncorroborated claim that Jesus appeared out of
nowhere to go berserk in the vicinity of their homes.
They failed to present independent and credible
proof to back up their assertions. The Regional Trial
Court noted that it was highly dubious that Jesus
would go all the way to petitioners' residences to
initiate an attack for no apparent reason.56
The remainder of petitioners' recollection of events
strains credulity. They claim that Jesus launched an
assault despite the presence of at least seven (7)
antagonists: petitioners, Mercedes, and the four (4)
other accused. They further assert that Jesus
persisted on his assault despite being outnumbered,
and also despite their and their co-accused's bodily
efforts to restrain Jesus. His persistence was
supposedly so likely to harm them that, to neutralize
him, they had no other recourse but to hit him on
the head with stones for at least three (3) times, and
to hit him on the back with a bamboo rod, aside
from dealing him with less severe blows.57
As the Regional Trial Court noted,
however:chanRoblesvirtualLawlibrary
The Court takes judicial notice of (the) big difference
in the physical built of the private complainant and
accused Victor Velasquez, Sonny Boy Velasquez, Felix
Caballeda and Jojo del Mundo, private complainant
is shorter in height and of smaller built than all the
accused. The said accused could have had easily held
the private complainant, who was heavily drunk as
they claim, and disarmed him without the need of
hitting him.58
The injuries which Jesus were reported to have
sustained speak
volumes:chanRoblesvirtualLawlibrary
3 cms lacerated wound fronto-parietal area left
1 cm lacerated wound frontal area left
Abrasion back left multi linear approximately 20 cm
Abrasion shoulder left, confluent 4x10 cm
Depressed skull fracture parietal area left.59
Even if it were to be granted that Jesus was the
initial aggressor, the beating dealt to him by
petitioners and their co-accused was still glaringly in
excess of what would have sufficed to neutralize
him. It was far from a reasonably necessary means to
repel his supposed aggression. Petitioners thereby
fail in satisfying the second requisite of self-defense
and of defense of a relative.
III
In addition to their tale of self-defense, petitioners
insist that the testimony of Maria Teresita is not
worthy of trust because she parted ways with Ana
while searching for Jesus.60 They characterize Maria
Teresita as the prosecution's "lone
eyewitness."61 They make it appear that its entire
case hinges on her. Thus, they theorize that with the
shattering of her credibility comes the complete and
utter ruin of the prosecution's case.62 Petitioners
claim that Maria Teresita is the prosecution's lone
eyewitness at the same time that they aclmowledge
Jesus' testimony, which they dismissed as laden with
inconsistencies.63
These contentions no longer merit consideration.
Petitioners' averment of justifying circumstances was
dispensed with the need for even passing upon their
assertions against Maria Teresita's and Jesus'
testimonies. Upon their mere invocation of self-
defense and defense of a relative, they relieved the
prosecution of its burden of proving the acts
constitutive of the offense. They took upon
themselves the burden of establishing their
innocence, and cast their lot on their capacity to
prove their own affirmative allegations.
Unfortunately for them, they failed.
Even if we were to extend them a measure of
consideration, their contentions fail to impress.
Petitioners' primordial characterization of Maria
Teresita as the "lone eyewitness," upon whose
testimony the prosecution's case was to rise or fall,
is plainly erroneous. Apart from her, Jesus testified
about his own experience of being mauled by
251 | P a g e
petitioners and their co-accused. Maria Teresita's
testimony was only in support of what Jesus
recounted.
Moreover, we fail to see how the mere fact of Maria
Teresita's having parted ways with Ana while
searching for Jesus diminishes her credibility. No
extraordinary explanation is necessary for this. Their
having proceeded separately may be accounted for
simply by the wisdom of how independent searches
enabled them to cover more ground in less time.
Regarding Jesus' recollection of events, petitioners'
contention centers on Jesus' supposedly flawed
recollection of who among the six (6) accused dealt
him, which specific blow, and using which specific
weapon.64 These contentions are too trivial to even
warrant an independent, point by point audit by this
Court.
Jurisprudence is replete with clarifications that a
witness' recollection of crime need not be foolproof:
"Witnesses cannot be expected to recollect with
exactitude every minute detail of an event. This is
especially true when the witnesses testify as to facts
which transpired in rapid succession, attended by
flurry and excitement."65 This is especially true of a
victim's recollection of his or her own harrowing
ordeal. One who has undergone a horrifying and
traumatic experience "cannot be expected to
mechanically keep and then give an accurate
account"66 of every minutiae.
Certainly, Jesus' supposed inconsistencies on the
intricacies of who struck him which specific blow can
be forgiven. The merit of Jesus' testimony does not
depend on whether he has an extraordinary memory
despite being hit on the head multiple times. Rather,
it is in his credible narration of his entire ordeal, and
how petitioners and their co-accused were its
authors. On this, his testimony was unequivocal.
WHEREFORE, the Petition is DENIED. The Decision of
the Court of Appeals in CA-G.R. CR. No. 31333
is AFFIRMED.
SO ORDERED.
Carpio, (Chairperson), Peralta, Mendoza,
and Martires, JJ., concur.
Endnotes:
THIRD DIVISION
G.R. No. 227421, July 23, 2018
PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee, v. RODOLFO OLARBE Y
BALIHANGO, Accused-Appellants.
DECISION
BERSAMIN, J.:
The accused who shows by clear and convincing
evidence that the death of the victim arose from the
need for self-preservation in the face of the victim's
deadly unlawful aggression, and there was a
reasonable necessity of the means employed to
prevent or repel the same, is entitled to acquittal on
the ground of self-defense in the absence of any
indication of his having provoked such unlawful
aggression.
In self-defense and defense of stranger, the
circumstances as the accused perceived them at the
time of the incident, not as others perceived them,
should be the bases for determining the merits of
the plea.
 The Case
For the killing of the late Romeo Arca, accused
Rodolfo Olarbe y Balihango (Olarbe) was charged
with and convicted of murder by the Regional Trial
Court (RTC), Branch 27, in Santa Cruz, Laguna
through the judgment rendered on August 13, 2014
in Criminal Case No. SC-12274.1
On appeal, the Court of Appeals (CA) affirmed the
conviction on March 22, 2016.2
Antecedents
The information charged Olarbe with murder, viz.:
That on or about May 7, 2006 at about 12:00 o'clock
midnight, at Sitio Pananim, Municipality of Luisiana,
Province of Laguna and within the jurisdiction of this
Honorable Court, the above-named accused, with
intent to kill and with evident premeditation and
treachery and with the use of a rifle (airgun)
converted to caliber .22 and a bolo, did then and
there, willfully, unlawfully and feloniously shoot and
hack one ROMEO ARCA with the said weapons,
thereby inflicting upon him gunshot wound and
hacking wounds on the different parts of his body
which resulted to (sic) his instantaneous death, to
the damage and. prejudice of his surviving heirs.
CONTRARY TO LAW.3
The CA recounted the factual and procedural
background of the case in its assailed decision thusly:
Arraigned, OLARBE initially pled not guilty to the
crime charged. Upon re-arraignment, OLARBE
pleaded guilty but subsequently withdrew his plea of
guilt and manifested for the presentation of his
defense. Thereafter, trial on the merits ensued.
The prosecution's diegesis of the case is synthesized
as follows:
252 | P a g e
On 8 May 2006 at around 12:30 o'clock midnight,
OLARBE voluntarily surrendered to police officers
SPO2 Vivencio Aliazas, PO3 Ricardo Cruz and PO1
William Cortez at the Police Station of Luisiana,
Laguna. OLARBE informed them that he happened to
have killed Romeo Arca (Arca) in Sitio Pananim,
Luisiana, Laguna. Forthwith, OLARBE was booked,
arrested and detained at the police station.
Thereafter, the police officers proceeded to the
crime scene and found the lifeless body of Arca with
several wounds and the bolo used by OLARBE in
killing him. The Death Certificate revealed that Arca's
antecedent cause of death was gunshot wounds and
his immediate cause of death was hacked wounds.
For his part, OLARBE invoked self-defense and
avowed -
On the fateful incident, he and his wife Juliet were
sleeping in their house in Barangay San Antonio,
Sitio Pananim, Luisiana, Laguna. Suddenly they were
awakened by the sound of a gunshot and shouting
from Arca who appeared to be drunk. Arca was
holding a rifle (an airgun converted to a calibre .22)
and shouted "mga putang ina ninyo, pagpapatayin
ko kayo." Then, Arca forcibly entered their house
and aimed the gun at them. OLARBE immediately
grabbed the gun from him and they grappled for its
possession. OLARBE managed to wrest the gun away
from Arca. In a jiff, OLARBE shot Arca causing the
latter to lean sideward ("napahilig"). Nevertheless,
Arca managed to get his bolo from his waist and
continued to attack them. OLARBE grabbed
the bolo and in their struggle for its possession, they
reached the outer portion of the house. OLARBE was
able to wrestle the bolo and instantly, he hacked
Arca. After the killing incident, OLARBE voluntarily
surrendered to the police authorities. 4
Judgment of the RTC
Rejecting Olarbe's pleas of self-defense and defense
of stranger, the RTC pronounced him guilty of
murder as charged. It observed that the initial
unlawful aggression by Arca had ceased when Olarbe
shot him in the head and caused him to "lean
sideward." It disbelieved Olarbe's insistence that
Arca had still been able to grab his bolo and assault
Olarbe's common-law spouse therewith for being
implausible considering that Arca had by then been
hit in the head. It held that Olarbe's testimony that
he had wrested the bolo from Arca after grappling
for its control, and had then hacked him with it was
improbable and pot in accord with the natural order
of things because. the injury in the head had already
weakened and subdued Arca; and that the killing
was treacherous because Olarbe had hacked the
then unarmed and weakened victim.
The dispositive portion of the judgment of the RTC
reads:
WHEREFORE, this court finds that herein accused
was unable to prove the justifying circumstance of
self-defense by clear, satisfactory and convincing
evidence that excludes any vestige of criminal
aggression on his part and further, he employed
treachery when he killed the victim Romeo Arca.
Thus, this Court finds the accused Rodolfo Olarbe y
Balihango GUILTY of "Murder".
On the other hand, finding that herein accused
voluntarily surrendered to the police authorities of
the Mrn1icipal Police Station of Luisiana, Laguna
immediately after killing Romeo Arca, he is entitled
to the said mitigating circumstance. The accused
Rodolfo Olarbe y Balihango is thereby hereby
sentenced to the minimum penalty of imprisonment
for the crime of murder, which is a period of
TWENTY (20) YEARS AND ONE (1) DAY TO
RECLUSION PERPETUA.
The accused Rodolfo Olarbe y Balihango is also
hereby ordered to pay to the heirs of Romeo Arca
the following:
Civil indemnity in the amount of P75,000.00;
Moral damages in the amount of P50,000.00;
Actual damages in the following amounts - P1,000.00
as expenses for church services from the Iglesia
Filipina Independiente; the amount of P1,200.00 for
expenses incurred in Jeralyn's Flower Shop; the
amount of P20,000.00 paid to Mancenido Funeral
Service; fees paid to the Municipal Treasurer of
Luisiana in the amount of P150.00; and, the amount
of P15,000.00 paid for the burial lot; and,
Exemplary damages in the amount of P30,000.00.
SO ORDERED.5
Decision of the CA
On appeal, the CA affirmed the conviction of Olarbe
because the factual findings of the RTC were
consistent with the evidence on record and accorded
with human experience; and because treachery had
attended the killing. The fallo of the assailed decision
reads:
WHEREFORE, the Appeal is hereby DENIED.
The Judgment dated 13 August 2014 of the Regional
Trial Court, Fourth Judicial Region, Santa Cruz,
Laguna, Branch 27, in Criminal Case No. SC-12274,
is AFFIRMED with MODIFICATION in that accused-
appellant Rodolfo Olarbe is ORDERED to pay
temperate damages in the amount of P25,000.00. He
is further ORDERED to pay interest at the rate of six
percent (6%) per annum on the civil indemnity,
moral, exemplary and temperate damages awarded
from the finality of this judgment until fully paid.
SO ORDERED.6
Hence, this appeal.
253 | P a g e
The accused and the Office of the Solicitor General
(OSG) have separately manifested that they would
no longer be filing supplemental briefs in this appeal;
and prayed that their respective briefs filed in the CA
should be considered.7
Issue
In his appellant's brief filed in the CA, Olarbe
submitted that it was erroneous to reject his pleas of
self-defense and defense of stranger because he had
killed Arca to save himself and his common-law wife
from the latter's unlawful aggression; that his use of
the victim's gun and bolo to repel or stop the
unlawful aggression was necessary and reasonable;
and that the killing was consequently legally
justified.
The OSG countered that it was Olarbe who had
mounted the unlawful aggression against Arca; and
that the latter had been defenseless when Olarbe
hacked him to death.
Ruling of the Court
The appeal has merit.
An accused who pleads any justifying circumstance
in Article 11 of the Revised Penal Code admits to the
commission of acts that show the commission of a
crime. It thus becomes his burden to prove the
justifying circumstance with clear and convincing
evidence; otherwise, his conviction for the crime
charged follows.8
In order for Olarbe to exonerate himself on the
ground of self-defense under Article 11, paragraph
1,9 of the Revised Penal Code, he must establish the
following facts, namely: (1) unlawful aggression on
the part of the victim; (2) reasonable necessity of the
means employed to prevent or repel such
aggression; and (3) lack of sufficient provocation on
the part of the person resorting to self-defense.
Olarbe also invoked defense of stranger under
Article 11, paragraph 3,10 of the Revised Penal
Code because Arca was likewise attacking his
common-law spouse. Defense of stranger requires
clear and convincing evidence to prove the
following, to wit: (1) unlawful aggression by the
victim; (2) reasonable necessity of the means to
prevent or repel it; and (3) the person defending be
not induced by revenge, resentment or other evil
motive.11
The indispensable requisite for either of these
justifying circumstances is that the victim must have
mounted an unlawful aggression against the accused
or the stranger. Without such unlawful aggression,
the accused is not entitled to the justifying
circumstance.12 The essence of the unlawful
aggression indispensable in self-defense or defense
of stranger has been fully discussed in People v.
Nugas,13 thus:
Unlawful aggression on the part of the victim is the
primordial element of the justifying circumstance of
self-defense. Without unlawful aggression, there can
be no justified killing in defense of oneself. The test
for the presence of unlawful aggression under the
circumstances is whether the aggression from the
victim put in real peril the life or personal safety of
the person defending himself; the peril must not be
an imagined or imaginary threat. Accordingly, the
accused must establish the concurrence of three
elements of unlawful aggression, namely: (a) there
must be a physical or material attack or assault; (b)
the attack or assault must be actual, or, at least,
imminent; and (c) the attack or assault must be
unlawful.
Unlawful aggression is of two kinds: (a) actual or
material unlawful aggression; and (b) imminent
unlawful aggression. Actual or material unlawful
aggression means an attack with physical force or
with a weapon, an offensive act that positively
determines the intent of the aggressor to cause the
injury. Imminent unlawful aggression means an
attack that is impending or at the point of
happening; it must not consist in a mere threatening
attitude, nor must it be merely imaginary, but must
be offensive and positively strong (like aiming a
revolver at another with intent to shoot or opening a
knife and making a motion as if to attack). Imminent
unlawful aggression must not be a mere threatening
attitude of the victim, such as pressing his right hand
to his hip where a revolver was holstered,
accompanied by an angry countenance, or like
aiming to throw a pot.
Let us now revisit the events of that fateful night of
May 7, 2006. Arca, armed with the rifle (described as
an airgun converted into a caliber .22) and the bolo,
we to the house of Olarbe towards midnight. The
latter and his household re already slumbering, but
were roused from bed because Arca fired his gun
and was loudly shouting, Mga putang ina ninyo,
pagpapatayin ko kayo. Thereafter, Arca forcibly
entered Olarbe's house. Olarbe managed to the gun
of Arca, and they struggled for control of it. Upon
wresting the gun from Arca, Olarbe fired at him,
causing him to totter. But Arca next took out
the bolo from his waist and charged at Olarbe's
common-law spouse. This forced Olarbe to fight for
possession of the bolo, and upon seizing the bolo, he
hacked Arca with it.
Arca's death was certified to have been due to the
gunshot on the head and hacking wounds. The CA
noted the following injuries, aside from the gunshot
wound in the head, namely:
• Lacerated wound on the forehead;
• Lacerated wound, front rib area;
• Lacerated wound on the left upper quadrant;
• Lacerated wound on the left lower quadrant;
254 | P a g e
• Lacerated wound on the occipital area natural course of things. Armed with both the gun
• Two (2) hacking wounds posterior of neck; and and the bolo, Acra not only disturbed Olarbe's peace
• Hacking wound on lumbar area.14 but physically invaded the sanctity of latter's home
at midnight. Given that the aggression by Arca was
Only Olarbe's account of the incident existed in the
unprovoked on the part of Olarbe, and with no other
records, but instead of giving weight to the account,
the RTC and the CA rejected his pleas of self-defense person disputing the latter's account, we should
easily see and understand why Olarbe would feel
and defense of stranger based on their common
that his and his common law spouse's lives had been
holding that Arca had been weakened from being hit
on the head; and concluded that consequently Arca put in extreme peril.
could not have charged with his bolo.
In addition, Olarbe's conduct following the killing of
Arca - of voluntarily surrendering himself to the
The CA's rejection of Olarbe's pleas of self-defense
and defense of stranger was unwarranted. police authorities immediately after the killing (i.e.,
at around 12:30 o'clock in the early morning of May
8, 2006), and reporting his participation in the killing
To start with, there was no credible showing that the
of Arca to the police authorities - bolstered his pleas
shot to the head had rendered Arca too weak to
draw the bolo and to carry on with his aggression in of having acted in legitimate self-defense and
legitimate defense of his common-law spouse. Such
the manner described by Olarbe. The conclusion of
conduct manifested innocence.
the RTC and the CA thereon was obviously
speculative. Secondly, the State did not demonstrate
that the shot from the airgun converted to .22 To disbelieve Olarbe's account is to give primacy to
surmise and speculation. That is not how courts of
caliber fired at close range sufficed to disable Arca
law whose bounden and sworn duty is to dispense
from further attacking with his bolo. Without such
demonstration, the RTC and the CA clearly indulged justice should sit in judgment in a criminal trial.
Judges should assiduously sift the records, carefully
in pure speculation. Thirdly, nothing in the record
analyze the evidence, and reach conclusions that are
indicated Arca's physical condition at the time of the
natural and reasonable.
incident How could the CA then reliably conclude
that he could not have mounted the bolo assault?
Did Olarbe clearly and convincingly establish the
And, lastly, to rule out any further aggression by Arca
justifying circumstances invoked?
with his bolo after the shot in the he,ad was again
speculative. On the other hand, our substantial
We find that Arca committed continuous and
judicial experience instructs that an armed person
persistent unlawful aggression against Olarbe and his
boldly seeking to assault others - like Arca - would
common-law spouse that lasted from the moment
have enough adrenaline to enable him to persist on
his assault despite sustaining a wound that might he forcibly barged into the house and brandished his
gun until he assaulted Olarbe's common-law spouse
otherwise be disabling.
with the bolo. Such armed assault was not a mere
threatening act. Olarbe was justified in believing his
To us, Olarbe's account of what did happen on that
fateful night was highly plausible. At the minimum, and his common-law spouse's lives to be in extreme
danger from Arca who had just fired his gun in anger
the details and sequence of the events therein
outside their home and whose threats to kill could
described conformed to human experience and the
not be considered idle in the light of his having
forced himself upon their home. The imminent
threat to life was positively strong enough to induce
Olarbe to act promptly to repel the unlawful and
unprovoked aggression. For Olarbe to hesitate to act
as he had done would have cost him his own life.
Arca's being dispossessed of his gun did not
terminate the aggression, for, although he had been
hit on the head, he quickly reached for the bolo and
turned his assault towards Olarbe's common-law
spouse. Olarbe was again forced to struggle for
control of the bolo. The swiftness of the action
heightened Olarbe's sense that the danger to their
lives was present and imminent.
In judging pleas of self-defense and defense of
stranger, the courts should not demand that the
accused conduct himself with the poise of a person
not under imminent threat of fatal harm. He had no
time to reflect and to reason out his responses. He
had to be quick, and his responses should be
commensurate to the imminent harm. This is the
only way to judge him, for the law of nature - the
foundation of the privilege to use all reasonable
means to repel an aggression that endangers one's
own life and the lives of others - did not require him
to use unerring judgment when he had the
reasonable grounds to believe himself in apparent
danger of losing his life or suffering great bodily
injury.15 The test is whether his subjective belief as
to the imminence and seriousness of the danger was
reasonable or not,16 and the reasonableness of his
belief must be viewed from his standpoint at the
time he acted.17 The right of a person to take life in
self-defense arises from his belief in the necessity for
doing so; and his belief and the reasonableness
thereof are to be judged in the light of the
circumstances as they then appeared to him, not in
the light of circumstances as they would appear to
others or based on the belief that others may or
might entertain as to the nature and imminence of
255 | P a g e
the danger and the necessity to kill.18
The remaining elements of the justifying
circumstances were likewise established.
Reasonable necessity of the means employed to
repel the unlawful aggression does not mean
absolute necessity. It must be assumed that one who
is assaulted cannot have sufficient tranquility of
mind to think, calculate and make comparisons that
can easily be made in the calmness of reason. The
law requires rational necessity, not indispensable
need. In each particular case, it is necessary to judge
the relative necessity, whether more or less
imperative, in accordance with the rules of rational
logic. The accused may be given the benefit of any
reasonable doubt as to whether or not he employed
rational means to repel the aggression.19
In determining the reasonable necessity of the
means employed, the courts may also look .at and
consider the number of wounds inflicted. A large
number of wounds inflicted on the victim can
indicate a determined effort on the part of the
accused to kill the victim and may belie the
reasonableness of the means adopted to prevent or
repel an unlawful act of an aggressor.20 Here,
however, although Arca sustained several wounds,
the majority of the wounds were lacerations whose
nature and extent were not explained. The lack of
explanations has denied us the means to fairly
adjudge the reasonableness of the means adopted
by Olarbe to prevent or repel Arca's unlawful
aggression. Accordingly, to rule out reasonable
necessity of the means adopted by Olarbe solely on
the basis of the number of wounds would be unfair
to him. In any event, we have to mention that the
rule of reasonable necessity is not ironclad in its
application, but is dependent upon the established
circumstances of each particular case.
The courts ought to remember that a person who is
assaulted has neither the time nor the sufficient
tranquility of mind to think, calculate and choose the
weapon to be used. For, in emergencies of this kind,
human nature does not act upon processes of formal
reason but in obedience to the instinct of self-
preservation; and when it is apparent that a person
has reasonably acted upon this instinct, it is the duty
of the courts to hold the actor not responsible in law
for the consequences.21 Verily, the law requires
rational equivalence, not material
commensurability, viz.:
It is settled that reasonable necessity of the means
employed does not imply material commensurability
between the means of attack and defense. What the
law requires is rational equivalence, in the
consideration of which will enter the principal
factors the emergency, the imminent danger to
which the person attacked is exposed, and the
instinct, more than the reason, that moves or impels
the defense, and the proportionateness thereof does
not depend upon the harm done, but rests upon the
imminent danger of such injury.22 [Bold underscoring
supplied for emphasis]
Lastly, the absence of any showing that Olarbe had
provoked Arca, or that he had been induced by
revenge, resentment or other evil motive has been
equally palpable. We deem to be established,
therefore, that the third elements of the justifying
circumstances of self-defense and defense of
stranger were present.
With Olarbe being entitled to the justifying
circumstances of self-defense and defense of a
stranger, his acquittal follows.
WHEREFORE, the Court REVERSES and SETS
ASIDE the decision promulgated on March 22, 2016
in CA-G.R. CR-HC No.
07112; ACQUITS accused RODOLFO OLARBE y
BALIHANGO on the grounds of SELF-
DEFENSE and DEFENSE OF A
STRANGER; DECLARES him NOT CIVILLY LIABLE to the
heirs of the late Romeo Arca;
and DIRECTS his IMMEDIATE RELEASE FROM
CONFINEMENT unless he is otherwise legally
confined for another cause.
Let a copy of this decision be sent to the Director,
Bureau of Corrections, in Muntinlupa City for
immediate implementation. The Director of the
Bureau of Corrections is DIRECTED TO REPORT the
action taken to this Court within five days from
receipt of this decision.
SO ORDERED.
Velasco, Jr., Leonen, Martires, and Gesmundo, JJ.,
concur.
August 7, 2018
NOTICE OF JUDGMENT
Sirs / Mesdames:
Please take notice that on July 23, 2018 a Decision,
copy attached hereto, was rendered by the Supreme
Court in the above-entitled case, the original of
which was received by this Office on August 7, 2018
at 1:28 p.m.
Very truly yours,
(SGD)
WILFREDO V. LAPITAN
Division Clerk of Court
ORDER OF RELEASE
TO: Director General Ronald Dela Rosa
BUREAU OF CORRECTIONS
1770 Muntinlupa City
GREETINGS:
WHEREAS, the Supreme Court on July 23,
2018 promulgated a Decision in the above-entitled
case, the dispositive portion of which reads:
"WHEREFORE, the Court REVERSES and SETS
ASIDE the decision promulgated on March 22, 2016
in CA-G.R. CR-HC No.
07112; ACQUITS accused RODOLFO OLARBE y.
BALIHANGO on the grounds of SELF-
DEFENSE and DEFENSE OF A STRANGER;
DECLARES him NOT CIVILLY LIABLE to the heirs of the
late Romeo Area; and DIRECTS his IMMEDIATE
RELEASE FROM CONFINEMENT unless he is
otherwise legally confined for another cause.
Let a copy of this decision be sent to the Director,
Bureau of Corrections, in Muntinlupa City for
immediate implementation. The Director of the
Bureau of Corrections is DIRECTED TO REPORT the
action taken to this Court within five days from
receipt of this decision.
SO ORDERED."
NOW, THEREFORE, You are hereby ordered to
immediately release RODOLFO OLARBE y
BALIHANGO unless there are other lawful causes for
which he should be further detained, and to return
this Order with the certificate of your proceedings
within five (5) days from notice hereof.
GIVEN by the Honorable PRESBITERO J. VELASCO,
JR., Chairperson of the Third Division of the Supreme
Court of the Philippines, this 23rd day of July 2018.
Very truly yours,
(SGD)
WILFREDO V. LAPITAN
Division Clerk of Cour
SECOND DIVISION
G.R. No. 197522, September 11, 2013
ELISEO V. AGUILAR, Petitioner, v. DEPARTMENT OF
JUSTICE, PO1 LEO T. DANGUPON, 1ST LT. PHILIP
FORTUNO, CPL. EDILBERTO ABORDO, SPO3
GREGARDRO A. VILLAR, SPO1 RAMON M. LARA,
SPO1 ALEX L. ACAYLAR, AND PO1 JOVANNIE C.
BALICOL, Respondents.
DECISION
PER CURIAM:
Assailed in this petition for review on certiorari1 is
the Decision2 dated June 30, 2011 of the Court of
Appeals (CA) in CA-G.R. SP No. 110110 which
affirmed the Resolution3 dated November 27, 2008
of the Department of Justice (DOJ) in I.S. No. 2002-
414, upholding the provincial prosecutor’s dismissal
of the criminal complaint for murder filed by
petitioner Eliseo V. Aguilar against respondents.
The Facts

256 | P a g e

Petitioner is the father of one Francisco M. Aguilar,
alias Tetet (Tetet). On April 10, 2002, he filed a
criminal complaint4 for murder against the members
of a joint team of police and military personnel who
purportedly arrested Tetet and later inflicted injuries
upon him, resulting to his death. The persons
charged to be responsible for Tetet’s killing were
members of the Sablayan Occidental Mindoro Police
Force, identified as respondents SPO3 Gregardro A.
Villar (Villar), SPO1 Ramon M. Lara (Lara), SPO1 Alex
L. Acaylar (Acaylar), PO1 Leo T. Dangupon
(Dangupon), and PO1 Jovannie C. Balicol (Balicol),
and members of the Philippine Army, namely,
respondents 1st Lt. Philip Fortuno5 (Fortuno) and Cpl.
Edilberto Abordo (Abordo).6cralaw virtualaw library
In the petitioner’s complaint, he averred that on
February 1, 2002, between 9:00 and 10:00 in the
morning, at Sitio Talipapa, Brgy. Pag-asa, Sablayan,
Occidental Mindoro (Sitio Talipapa), Tetet was
arrested by respondents for alleged acts of extortion
and on the suspicion that he was a member of the
Communist Party of the Philippines/National
People’s Army Revolutionary Movement. Despite his
peaceful surrender, he was maltreated by
respondents. In particular, Tetet was hit on different
parts of the body with the butts of their rifles, and
his hands were tied behind his back with a black
electric wire. He was then boarded on a military jeep
and brought to the Viga River where he was gunned
down by respondents.7 Petitioner’s complaint was
corroborated by witnesses Adelaida Samillano and
Rolando Corcotchea who stated, among others, that
they saw Tetet raise his hands as a sign of surrender
but was still mauled by armed persons.8 A certain Dr.
Neil Bryan V. Gamilla (Dr. Gamilla) of the San
Sebastian District Hospital issued a medical
certificate dated February 1, 2002,9 indicating that
Tetet was found to have sustained two lacerated
wounds at the frontal area, a linear abrasion in the
257 | P a g e
anterior chest and five gunshot wounds in different
parts of his body.10cralaw virtualaw library
In defense, respondents posited that on February 1,
2002, they were engaged in an operation – headed
by Chief of Police Marcos Barte (Barte) and Fortuno
– organized to entrap a suspected extortionist (later
identified as Tetet) who was allegedly demanding
money from a businesswoman named Estelita
Macaraig (Macaraig). For this purpose, they devised
a plan to apprehend Tetet at Sitio Talipapa which
was the place designated in his extortion letters to
Macaraig. At about 11:00 in the morning of that
same day, Tetet was collared by Sgt. Ferdinand S.
Hermoso (Hermoso) while in the act of receiving
money from Macaraig’s driver, Arnold Magalong.
Afterwards, shouts were heard from onlookers that
two persons, who were supposed to be Tetet’s
companions, ran towards the mountains. Some
members of the team chased them but they were
left uncaught. Meanwhile, Tetet was handcuffed and
boarded on a military jeep. Accompanying the latter
were Dangupon, Fortuno, Abordo, Barte, and some
other members of the Philippine Army (first group).
On the other hand, Villar, Lara, Acaylar, and Balicol
were left behind at Sitio Talipapa with the
instruction to pursue Tetet’s two companions. As the
first group was passing along the Viga River, Tetet
blurted out to the operatives that he would point
out to the police where his companions were hiding.
Barte stopped the jeep and ordered his men to
return to Sitio Talipapa but, while the driver was
steering the jeep back, Tetet pulled a hand grenade
clutched at the bandolier of Abordo, jumped out of
the jeep and, from the ground, turned on his captors
by moving to pull the safety pin off of the grenade.
Sensing that they were in danger, Dangupon fired
upon Tetet, hitting him four times in the body. The
first group brought Tetet to the San Sebastian
District Hospital for treatment but he was
pronounced dead on arrival.11cralaw virtualaw
library
Among others, the Commission on Human Rights
investigated Tetet’s death and thereafter issued a
Final Investigation Report12 dated October 3, 2002
and Resolution13 dated October 8, 2002,
recommending that the case, i.e., CHR CASE NR. IV-
02-0289, “be closed for lack of sufficient evidence.”
It found that Tetet’s shooter, Dangupon, only shot
him in self-defense and added that “Dangupon
enjoys the presumption of innocence and regularity
in the performance of his official duties, which were
not sufficiently rebutted in the instant case.” 14cralaw
virtualaw library
Likewise, the Office of the Provincial Director of the
Occidental Mindoro Police Provincial Command
conducted its independent inquiry on the matter
and, in a Report dated September 21, 2002, similarly
recommended the dismissal of the charges against
respondents. Based on its investigation, it concluded
that respondents conducted a legitimate
entrapment operation and that the killing of Tetet
was made in self-defense and/or defense of a
stranger.15cralaw virtualaw library
The Provincial Prosecutor’s Ruling
In a Resolution16 dated March 10, 2003, 1st Asst.
Provincial Prosecutor and Officer-in-Charge Levitico
B. Salcedo of the Office of the Provincial Prosecutor
of Occidental Mindoro (Provincial Prosecutor)
dismissed petitioner’s complaint against all
respondents for lack of probable cause. To note,
Barte was dropped from the charge, having died in
an ambush pending the investigation of the
case.17cralaw virtualaw library
The Provincial Prosecutor held that the evidence on
record shows that the shooting of Tetet by
Dangupon “was done either in an act of self-defense,
defense of a stranger, and in the performance of a
lawful duty or exercise of a right of office.” 18 He
further observed that petitioner failed to submit any
evidence to rebut Dangupon’s claim regarding the
circumstances surrounding Tetet’s killing.19cralaw
virtualaw library
In the same vein, the Provincial Prosecutor ruled that
Villar, Acaylar, Lara, and Balicol could not be faulted
for Tetet’s death as they were left behind in Sitio
Talipapa unaware of what transpired at the Viga
River. As to the alleged maltreatment of Tetet after
his arrest, the Provincial Prosecutor found that these
respondents were not specifically pointed out as the
same persons who mauled the former. He added
that Hermoso was, in fact, the one who
grabbed/collared Tetet during his apprehension. The
Provincial Prosecutor similarly absolved Fortuno and
Abordo since they were found to have only been in
passive stance.20cralaw virtualaw library
Aggrieved, petitioner elevated the matter via a
petition for review21 to the DOJ.
The DOJ Ruling
In a Resolution22 dated November 27, 2008, the DOJ
dismissed petitioner’s appeal and thereby, affirmed
the Provincial Prosecutor’s ruling. It ruled that
petitioner failed to show that respondents conspired
to kill/murder Tetet. In particular, it was not
established that Villar, Lara, Acaylar, and Balicol
were with Tetet at the time he was gunned down
and, as such, they could not have had any
knowledge, much more any responsibility, for what
transpired at the Viga River.23 Neither were Barte,
Fortuno, and Abordo found to have conspired with
Dangupon to kill Tetet since their presence at the
time Tetet was shot does not support a conclusion
that they had a common design or purpose in killing
him.24 With respect to Dangupon, the DOJ held that
258 | P a g e
no criminal responsibility may be attached to him
since his act was made in the fulfillment of a duty or
in the lawful exercise of an office under Article 11(5)
of the Revised Penal Code25 (RPC).26 Lastly, the DOJ
stated that petitioner’s suppositions and conjectures
that respondents salvaged his son are insufficient to
overturn the presumption of innocence in
respondents’ favor.27cralaw virtualaw library
Unperturbed, petitioner filed a petition
for certiorari28 with the CA.
The CA Ruling
In a Decision29 dated June 30, 2011, the CA dismissed
petitioner’s certiorari petition, finding no grave
abuse of discretion on the part of the DOJ in
sustaining the Provincial Prosecutor’s ruling. It found
no evidence to show that Tetet was deliberately
executed by respondents. Also, it echoed the DOJ’s
observations on respondents’ presumption of
innocence.30cralaw virtualaw library
Hence, this petition.
The Issue Before the Court
Petitioner builds up a case of extralegal killing and
seeks that the Court resolve the issue as to whether
or not the CA erred in finding that the DOJ did not
gravely abuse its discretion in upholding the
dismissal of petitioner’s complaint against
respondents.
The Court’s Ruling
The petition is partly granted.
At the outset, it is observed that the Provincial
Prosecutor’s ruling, as affirmed on appeal by the DOJ
and, in turn, upheld on certiorari by the CA, may be
dissected into three separate disquisitions: first, the
lack of probable cause on the part of Dangupon, who
despite having admitted killing the victim, was
exculpated of the murder charge against him on
account of his interposition of the justifying
circumstances of self-defense/defense of a stranger
and fulfillment of a duty or lawful exercise of a right
of an office under Article 11(5) of the RPC; second,
the lack of probable cause on the part of Fortuno
and Abordo who, despite their presence during the
killing of Tetet, were found to have no direct
participation or have not acted in conspiracy with
Dangupon in Tetet’s killing; and third, the lack of
probable cause on the part of Villar, Lara, Acaylar,
and Balicol in view of their absence during the said
incident. For better elucidation, the Court deems it
apt to first lay down the general principles which go
into its review process of a public prosecutor’s
probable cause finding, and thereafter apply these
principles to each of the above-mentioned
incidents in seriatim.
A. General principles; judicial review of a
prosecutor’s probable cause determination.
A public prosecutor’s determination of probable
cause – that is, one made for the purpose of filing an
information in court – is essentially an executive
function and, therefore, generally lies beyond the
pale of judicial scrutiny. The exception to this rule is
when such determination is tainted with grave abuse
of discretion and perforce becomes correctible
through the extraordinary writ of certiorari. It is
fundamental that the concept of grave abuse of
discretion transcends mere judgmental error as it
properly pertains to a jurisdictional aberration.
While defying precise definition, grave abuse of
discretion generally refers to a “capricious or
whimsical exercise of judgment as is equivalent to
lack of jurisdiction.” Corollary, the abuse of
discretion must be patent and gross so as to amount
to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, or to act at all in
contemplation of law.31 To note, the underlying
principle behind the courts’ power to review a public
prosecutor’s determination of probable cause is to
ensure that the latter acts within the permissible
bounds of his authority or does not gravely abuse
the same. This manner of judicial review is a
constitutionally-enshrined form of check and balance
which underpins the very core of our system of
government. As aptly edified in the recent case
of Alberto v. CA:32
It is well-settled that courts of law are precluded
from disturbing the findings of public prosecutors
and the DOJ on the existence or non-existence of
probable cause for the purpose of filing criminal
informations, unless such findings are tainted with
grave abuse of discretion, amounting to lack or
excess of jurisdiction. The rationale behind the
general rule rests on the principle of separation of
powers, dictating that the determination of probable
cause for the purpose of indicting a suspect is
properly an executive function; while the exception
hinges on the limiting principle of checks and
balances, whereby the judiciary, through a special
civil action of certiorari, has been tasked by the
present Constitution “to determine whether or not
there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the
Government.” (Emphasis supplied; citations omitted)
In the foregoing context, the Court observes that
grave abuse of discretion taints a public prosecutor’s
resolution if he arbitrarily disregards the
jurisprudential parameters of probable cause. In
particular, case law states that probable cause, for
the purpose of filing a criminal information, exists
when the facts are sufficient to engender a well-
founded belief that a crime has been committed and
that the respondent is probably guilty thereof. It
does not mean “actual and positive cause” nor does
it import absolute certainty. Rather, it is merely
259 | P a g e
based on opinion and reasonable belief and, as such,
does not require an inquiry into whether there is
sufficient evidence to procure a conviction; it is
enough that it is believed that the act or omission
complained of constitutes the offense charged.33 As
pronounced in Reyes v. Pearlbank Securities, Inc.:34
A finding of probable cause needs only to rest on
evidence showing that more likely than not a crime
has been committed by the suspects. It need not be
based on clear and convincing evidence of guilt, not
on evidence establishing guilt beyond reasonable
doubt, and definitely not on evidence establishing
absolute certainty of guilt. In determining probable
cause, the average man weighs facts and
circumstances without resorting to the calibrations
of the rules of evidence of which he has no technical
knowledge. He relies on common sense. What is
determined is whether there is sufficient ground to
engender a well-founded belief that a crime has
been committed, and that the accused is probably
guilty thereof and should be held for trial. It does not
require an inquiry as to whether there is sufficient
evidence to secure a conviction.35 (Emphasis
supplied)
Apropos thereto, for the public prosecutor to
determine if there exists a well-founded belief that a
crime has been committed, and that the suspect is
probably guilty of the same, the elements of the
crime charged should, in all reasonable likelihood, be
present. This is based on the principle that every
crime is defined by its elements, without which there
should be, at the most, no criminal offense.36cralaw
virtualaw library
With these precepts in mind, the Court proceeds to
assess the specific incidents in this case.
B. Existence of probable cause on the part of
Dangupon.
Records bear out that Dangupon admitted that he
was the one who shot Tetet which eventually caused
the latter’s death. The Provincial Prosecutor,
however, relieved him from indictment based mainly
on the finding that the aforesaid act was done either
in self-defense, defense of a stranger or in the
performance of a lawful duty or exercise of a right of
office, respectively pursuant to paragraphs 1, 2, and
5, Article 1137 of the RPC. The DOJ affirmed the
Provincial Prosecutor’s finding, adding further that
Dangupon, as well as the other respondents, enjoys
the constitutional presumption of innocence.
These findings are patently and grossly erroneous.
Records bear out facts and circumstances which
show that the elements of murder – namely: (a) that
a person was killed; (b) that the accused killed him;
(c) that the killing was attended by any of the
qualifying circumstances mentioned in Article
24838 of the RPC; and (d) that the killing is not
parricide or infanticide39 – are, in all reasonable
likelihood, present in Dangupon’s case. As to the first
and second elements, Dangupon himself admitted
that he shot and killed Tetet. Anent the third
element, there lies sufficient basis to suppose that
the qualifying circumstance of treachery attended
Tetet’s killing in view of the undisputed fact that he
was restrained by respondents and thereby,
rendered defenseless.40 Finally, with respect to the
fourth element, Tetet’s killing can neither be
considered as parricide nor infanticide as the
evidence is bereft of any indication that Tetet is
related to Dangupon.
At this juncture, it must be noted that Dangupon’s
theories of self-defense/defense of a stranger and
performance of an official duty are not clear and
convincing enough to exculpate him at this stage of
the proceedings considering the following
circumstances: (a) petitioner’s version of the facts
was corroborated by witnesses Adelaida Samillano
and Rolando Corcotchea who stated, among others,
that they saw Tetet raise his hands as a sign of
surrender but was still mauled by armed
persons41 (hence, the presence of unlawful
aggression on the part of Tetet and the lack of any
sufficient provocation on the part of Dangupon,42 the
actual motive of Tetet’s companions,43 and the
lawfulness of the act44 are put into question); (b) it
was determined that Tetet was handcuffed45 when
he was boarded on the military jeep (hence, the
supposition that Tetet was actually restrained of his
movement begs the questions as to how he could
have, in this state, possibly stole the grenade from
Abordo); and (c) petitioner’s evidence show that
Tetet suffered from lacerations and multiple gunshot
wounds,46 the shots causing which having been fired
at a close distance47 (hence, the reasonable necessity
of the means employed to prevent or repel48Tetet’s
supposed unlawful aggression, and whether the
injury committed be the necessary consequence of
the due performance of such duty or the lawful
exercise of such right49 are, among others, also put
into question). Given the foregoing, Dangupon’s
defenses are better off scrutinized within the
confines of a criminal trial.
To add, neither can the dismissal of the murder
charge against Dangupon be sustained in view of his
presumption of innocence. Jurisprudence holds that
when the accused admits killing the victim, but
invokes a justifying circumstance, the constitutional
presumption of innocence is effectively waived and
the burden of proving the existence of such
circumstance shifts to the accused.50 The rule
regarding an accused’s admission of the victim’s
killing has been articulated in Ortega v.
Sandiganbayan, to wit:51
Well settled is the rule that where the accused had
admitted that he is the author of the death of the
victim and his defense anchored on self-defense, it is
incumbent upon him to prove this justifying
260 | P a g e
circumstance to the satisfaction of the court. To do
so, he must rely on the strength of his own evidence
and not on the weakness of the prosecution, for the
accused himself had admitted the killing. The burden
is upon the accused to prove clearly and sufficiently
the elements of self-defense, being an affirmative
allegation, otherwise the conviction of the accused is
inescapable.52 (Emphasis and underscoring supplied)
Therefore, due to the ostensible presence of the
crime charged and considering that Dangupon’s
theories of self-defense/defense of a stranger and
lawful performance of one’s duty and the argument
on presumption of innocence are, under the
circumstances, not compelling enough to overcome
a finding of probable cause, the Court finds that the
DOJ gravely abused its discretion in dismissing the
case against Dangupon. Consequently, the reversal
of the CA ruling with respect to the latter is in order.
C. Existence of probable cause on the part of Fortuno
and Abordo.
In similar regard, the Court also finds that grave
abuse of discretion tainted the dismissal of the
charges of murder against Fortuno and Abordo.
To elucidate, while petitioner has failed to detail the
exact participation of Fortuno and Abordo in the
death of Tetet, it must be noted that the peculiar
nature of an extralegal killing negates the former an
opportunity to proffer the same. It is of judicial
notice that extralegal killings are ordinarily executed
in a clandestine manner, and, as such, its
commission is largely concealed from the public view
of any witnesses. Notably, unlike in rape cases
wherein the victim – albeit ravaged in the dark – may
choose to testify, and whose testimony is, in turn,
given great weight and credence sufficient enough
for a conviction,53 the victim of an extralegal killing is
silenced by death and therefore, the actual
participation of his assailants is hardly disclosed. As
these legal realities generally mire extralegal killing
cases, the Court observes that such cases should be
resolved with a more circumspect analysis of the
incidental factors surrounding the same, take for
instance the actual or likely presence of the persons
charged at the place and time when the killing was
committed, the manner in which the victim was
executed (of which the location of the place and the
time in which the killing was done may be taken into
consideration), or the possibility that the victim
would have been easily overpowered by his
assailants (of which the superior number of the
persons detaining the victim and their ability to
wield weapons may be taken into consideration).
In the present case, the existence of probable cause
against Fortuno and Abordo is justified by the
circumstances on record which, if threaded together,
would lead a reasonably discreet and prudent man
to believe that they were also probably guilty of the
crime charged. These circumstances are as follows:
(a) Fortuno and Abordo were with Dangupon during
the time the latter killed Tetet54 in an undisclosed
place along the Viga River; (b) Tetet was
apprehended, taken into custody and boarded on a
military jeep by the group of armed elements of
which Fortuno and Abordo belonged to;55 (c) as
earlier mentioned, Tetet was handcuffed56 when he
was boarded on the military jeep and, in effect,
restrained of his movement when he supposedly
stole the grenade from Abordo; and (d) also, as
previously mentioned, Tetet suffered from
lacerations and multiple gunshot wounds,57 and that
the shots causing the same were fired at a close
distance.58 Evidently, the confluence of the above-
stated circumstances and legal realities point out to
the presence of probable cause for the crime of
murder against Fortuno and Abordo. Hence, the
dismissal of the charges against them was – similar
to Dangupon – improper. As such, the CA’s ruling
must also be reversed with respect to Fortuno and
Abordo.
D. Lack of probable cause on the part of Villar, Lara,
Acaylar, and Balicol.
The Court, however, maintains a contrary view with
respect to the determination of lack of probable
cause on the part of Villar, Lara, Acaylar and Balicol.
Records are bereft of any showing that the
aforementioned respondents – as opposed to
Dangupon, Fortuno, and Abordo – directly
participated in the killing of Tetet at the Viga River.
As observed by the DOJ, Villar, Lara, Acaylar, and
Balicol were not with Tetet at the time he was shot;
thus, they could not have been responsible for his
killing. Neither could they be said to have acted in
conspiracy with the other respondents since it was
not demonstrated how they concurred in or, in any
way, participated towards the unified purpose of
consummating the same act. It is well-settled that
conspiracy exists when one concurs with the criminal
design of another, indicated by the performance of
an overt act leading to the crime
committed.59 Therefore, finding no direct
participation or conspiracy on the part of Villar, Lara,
Acaylar, and Balicol, the Court holds that the DOJ did
not gravely abuse its discretion in affirming the
Provincial Prosecutor’s dismissal of the charges
against them. In this respect, the CA’s Decision must
stand.
As a final word, the Court can only bewail the loss of
a family member through the unfortunate course of
an extralegal killing. The historical prevalence of this
deplorable practice has even led to the inception
and eventual adoption of the Rules on Amparo60 to
better protect the sacrosanct right of every person
to his life and liberty and not to be deprived of such
without due process of law. Despite the poignancy
natural to every case advanced as an extralegal
261 | P a g e
killing, the Court, as in all courts of law, is mandated
to operate on institutional impartiality – that is, its
every ruling, notwithstanding the sensitivity of the
issue involved, must be borne only out of the facts of
the case and scrutinized under the lens of the law. It
is pursuant to this overarching principle that the
Court has dealt with the killing of Tetet and partly
grants the present petition. In fine, the case against
Dangupon, Fortuno, and Abordo must proceed and
stand the muster of a criminal trial. On the other
hand, the dismissal of the charges against Villar,
Lara, Acaylar, and Balicol is sustained.
WHEREFORE, the petition is PARTLY GRANTED. The
Decision dated June 30, 2011 of the Court of Appeals
in CA-G.R. SP No. 110110 is REVERSED and SET
ASIDE. The Resolution dated March 10, 2003 of the
Provincial Prosecutor and the Resolution dated
November 27, 2008 of the Department of Justice in
I.S. No. 2002-414 are NULLIFIED insofar as
respondents PO1 Leo T. Dangupon, 1st Lt. Philip
Fortuno, and Cpl. Edilberto Abordo are concerned.
Accordingly, the Department of Justice
is DIRECTED to issue the proper resolution in order
to charge the above-mentioned respondents in
accordance with this
Decision.chanroblesvirtualawlibrary
SO ORDERED.
Carpio, (Chairperson), Brion, Del Castillo, Perez,
and Perlas-Bernabe, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 76217 September 14, 1989
GERMAN MANAGEMENT & SERVICES,
INC., petitioner,
vs.
HON. COURT OF APPEALS and ERNESTO
VILLEZA, respondents.
G.R. No. L-76216 September 14, 1989
GERMAN MANAGEMENT & SERVICES,
INC., petitioner,
vs.
HON. COURT OF APPEALS and ORLANDO
GERNALE, respondents.
Alam, Verano & Associates for petitioner.
Francisco D. Lozano for private respondents.
FERNAN, C.J.:
Spouses Cynthia Cuyegkeng Jose and Manuel Rene
Jose, residents of Pennsylvania, Philadelphia, USA
are the owners of a parcel of land situated in Sitio
Inarawan, San Isidro, Antipolo, Rizal, with an area of
232,942 square meters and covered by TCT No.
50023 of the Register of Deeds of the province of
Rizal issued on September 11, 1980 which canceled
TCT No. 56762/ T-560. The land was originally
registered on August 5, 1948 in the Office of the
Register of Deeds of Rizal as OCT No. 19, pursuant to
a Homestead Patent granted by the President of the
Philippines on July 27, 1948, under Act No. 141.
On February 26, 1982, the spouses Jose executed a
special power of attorney authorizing petitioner
German Management Services to develop their
property covered by TCT No. 50023 into a residential
subdivision. Consequently, petitioner on February
9,1983 obtained Development Permit No. 00424
from the Human Settlements Regulatory
Commission for said development. Finding that part
of the property was occupied by private respondents
and twenty other persons, petitioner advised the
occupants to vacate the premises but the latter
refused. Nevertheless, petitioner proceeded with the
development of the subject property which included
the portions occupied and cultivated by private
respondents.
Private respondents filed an action for forcible entry
against petitioner before the Municipal Trial Court of
Antipolo, Rizal, alleging that they are mountainside
farmers of Sitio Inarawan, San Isidro, Antipolo, Rizal
and members of the Concerned Citizens of Farmer's
Association; that they have occupied and tilled their
farmholdings some twelve to fifteen years prior to
the promulgation of P.D. No. 27; that during the first
week of August 1983, petitioner, under a permit
from the Office of the Provincial Governor of Rizal,
was allowed to improve the Barangay Road at Sitio
Inarawan, San Isidro, Antipolo, Rizal at its expense,
subject to the condition that it shag secure the
needed right of way from the owners of the lot to be
affected; that on August 15, 1983 and thereafter,
petitioner deprived private respondents of their
property without due process of law by: (1) forcibly
removing and destroying the barbed wire fence
enclosing their farmholdings without notice; (2)
bulldozing the rice, corn fruit bearing trees and other
crops of private respondents by means of force,
violence and intimidation, in violation of P.D. 1038
and (3) trespassing, coercing and threatening to
harass, remove and eject private respondents from
their respective farmholdings in violation of P.D.
Nos. 316, 583, 815, and 1028. 1
On January 7,1985, the Municipal Trial Court
dismissed private respondents' complaint for forcible
entry. 2 On appeal, the Regional Trial Court of
262 | P a g e
Antipolo, Rizal, Branch LXXI sustained the dismissal
by the Municipal Trial Court. 3
Private respondents then filed a petition for review
with the Court of Appeals. On July 24,1986, said
court gave due course to their petition and reversed
the decisions of the Municipal Trial Court and the
Regional Trial Court. 4
The Appellate Court held that since private
respondents were in actual possession of the
property at the time they were forcibly ejected by
petitioner, private respondents have a right to
commence an action for forcible entry regardless of
the legality or illegality of possession. 5 Petitioner
moved to reconsider but the same was denied by
the Appellate Court in its resolution dated
September 26, 1986. 6
Hence, this recourse.
The issue in this case is whether or not the Court of
Appeals denied due process to petitioner when it
reversed the decision of the court a quo without
giving petitioner the opportunity to file its answer
and whether or not private respondents are entitled
to file a forcible entry case against petitioner. 7
We affirm. The Court of Appeals need not require
petitioner to file an answer for due process to exist.
The comment filed by petitioner on February 26,
1986 has sufficiently addressed the issues presented
in the petition for review filed by private
respondents before the Court of Appeals. Having
heard both parties, the Appellate Court need not
await or require any other additional pleading.
Moreover, the fact that petitioner was heard by the
Court of Appeals on its motion for reconsideration
negates any violation of due process.
Notwithstanding petitioner's claim that it was duly
authorized by the owners to develop the subject
property, private respondents, as actual possessors,
can commence a forcible entry case against
petitioner because ownership is not in issue. Forcible
entry is merely a quieting process and never
determines the actual title to an estate. Title is not
involved. 8
In the case at bar, it is undisputed that at the time
petitioner entered the property, private respondents
were already in possession thereof. There is no
evidence that the spouses Jose were ever in
possession of the subject property. On the contrary,
private respondents' peaceable possession was
manifested by the fact that they even planted rice,
corn and fruit bearing trees twelve to fifteen years
prior to petitioner's act of destroying their crops.
Although admittedly petitioner may validly claim
ownership based on the muniments of title it
presented, such evidence does not responsively
address the issue of prior actual possession raised in
a forcible entry case. It must be stated that
regardless of the actual condition of the title to the
property, the party in peaceable quiet possession
shall not be turned out by a strong hand, violence or
terror. 9 Thus, a party who can prove prior
possession can recover such possession even against
the owner himself. Whatever may be the character
of his prior possession, if he has in his favor priority
in time, he has the security that entitles him to
remain on the property until he is lawfully ejected by
a person having a better right by accion publiciana or
accion reivindicatoria. 10
Both the Municipal Trial Court and the Regional Trial
Court have rationalized petitioner's drastic action of
bulldozing and destroying the crops of private
respondents on the basis of the doctrine of self-help
enunciated in Article 429 of the New Civil
Code. 11 Such justification is unavailing because the
doctrine of self-help can only be exercised at the
time of actual or threatened dispossession which is
absent in the case at bar. When possession has
already been lost, the owner must resort to judicial
process for the recovery of property. This is clear
from Article 536 of the Civil Code which states, "(I)n
no case may possession be acquired through force or
intimidation as long as there is a possessor who
objects thereto. He who believes that he has an
action or right to deprive another of the holding of a
thing, must invoke the aid of the competent court, if
the holder should refuse to deliver the thing."
WHEREFORE, the Court resolved to DENY the instant
petition. The decision of the Court of Appeals dated
July 24,1986 is hereby AFFIRMED. Costs against
petitioner.
SO ORDERED.
Bidin and Cortes, JJ., concur.
Gutierrez, Jr., J., concurs in the result.
Feliciano, J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 103501-03 February 17, 1997
LUIS A. TABUENA, petitioner,
vs.
263 | P a g e
HONORABLE SANDIGANBAYAN, and THE PEOPLE OF
THE PHILIPPINES, respondents.
G.R. No. 103507 February 17, 1997
ADOLFO M. PERALTA, petitioner,
vs.
HON. SANDIGANBAYAN (First Division), and THE
PEOPLE OF THE PHILIPPINES, represented by the
OFFICE OF THE SPECIAL PROSECUTOR, respondents.
FRANCISCO, J.:
Through their separate petitions for review,1 Luis A.
Tabuena and Adolfo M. Peralta (Tabuena and
Peralta, for short) appeal the Sandiganbayan
decision dated October 12, 1990,2 as well as the
Resolution dated December 20. 19913 denying
reconsideration, convicting them of malversation
under Article 217 of the Revised Penal Code.
Tabuena and Peralta were found guilty beyond
reasonable doubt Of having malversed the total
amount of P55 Million of the Manila International
Airport Authority (MIAA) funds during their
incumbency as General Manager and Acting Finance
Services Manager, respectively, of MIAA, and were
thus meted the following sentence:
(1) In Criminal Case No. 11758,
accused Luis A. Tabuena is
sentenced to suffer the penalty of
imprisonment of seventeen (17)
years and one (1) day of reclusion
temporal as minimum to twenty
(20) years of reclusion temporal as
maximum, and to pay a fine of
TWENTY-FIVE MILLION PESOS
(P25,000,000.00), the amount
malversed. He shall also reimburse
the Manila International Airport
Authority the sum of TWENTY-FIVE
MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the
penalty of perpetual special
disqualification from public office,
(2) In Criminal Case No. 11759,
accused Luis A. Tabuena is
sentenced to suffer the penalty of
imprisonment of seventeen (17)
years and one (1) day of reclusion
temporal as minimum, and twenty
(20) years of reclusion temporal as
maximum, and to pay a fine of
TWENTY-FIVE MILLION PESOS
(P25,000,000.00), the amount
malversed. He shall also reimburse
the Manila International Airport
Authority the sum of TWENTY-FIVE
MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the
penalty of perpetual special
disqualification from public office.
(3) In Criminal Case No. 11760,
accused Luis A. Tabuena and
Adolfo M. Peralta are each
sentenced to suffer the penalty of
imprisonment of seventeen (17)
years and one (1) day of reclusion
temporal as minimum and twenty
(20) years of reclusion temporal as
maximum and for each of them to
pay separately a fine of FIVE
MILLION PESOS (P5,000,000.00)
the amount malversed. They shall
also reimburse jointly and severally
the Manila International Airport
 Authority the sum of FIVE MILLION
PESOS (P5,000,000.00).
In addition, they shall both suffer
the penalty of perpetual special
disqualification from public office.
A co-accused of Tabuena and Peralta was
Gerardo G. Dabao, then Assistant General
Manager of MIAA, has remained at large.
There were three (3) criminal cases filed (nos. 11758,
11759 and 11760) since the total amount of P55
Million was taken on three (3) separate dates of
January, 1986. Tabuena appears as the principal
accused — he being charged in all three (3) cases.
The amended informations in criminal case nos.
11758, 11759 and 11760 respectively read:
That on or about the 16th day of
January, 1986, and for sometime
subsequent thereto, in the City of
Pasay, Philippines, and within the
jurisdiction of this Honorable
Court, accused Luis A. Tabuena and
Gerardo G. Dabao, both public
officers, being then the General
Manager and Assistant General
Manager, respectively, of the
Manila International Airport
Authority (MIAA), and accountable
for public funds belonging to the
MIAA, they being the only ones
authorized to make withdrawals
against the cash accounts of MIAA
pursuant to its board resolutions,
conspiring, confederating and
confabulating with each other, did
then and there wilfully, unlawfully,
feloniously, and with intent to
defraud the government, take and
264 | P a g e
misappropriate the amount of
TWENTY FIVE MILLION PESOS
(P25,000,000.00) from MIAA funds
by applying for the issuance of a
manager's check for said amount in
the name of accused Luis A.
Tabuena chargeable against
MIAA's Savings Account No. 274-
500-354-3 in the PNB Extension
Office at the Manila International
Airport in Pasay City, purportedly
as partial payment to the
Philippine National Construction
Corporation (PNCC), the mechanics
of which said accused Tabuena
would personally take care of,
when both accused well knew that
there was no outstanding
obligation of MIAA in favor of
PNCC, and after the issuance of the
above-mentioned manager's
check, accused Luis A. Tabuena
encashed the same and thereafter
both accused misappropriated and
converted the proceeds thereof to
their personal use and benefit, to
the damage and prejudice of the
government in the aforesaid
amount.
CONTRARY TO LAW.
xxx xxx xxx
That on or about the 16th day of
January, 1986, and for sometime
subsequent thereto, in the City of
Pasay. Philippines and within the
jurisdiction of this Honorable
Court, accused Luis A. Tabuena and
Gerardo G. Dabao, both public
officers, being then the General
Manager and Assistant General
Manager, respectively, of the
Manila International Airport
Authority (MIAA), and accountable
for public funds belonging to the
MIAA, they being the only ones
authorized to make withdrawals
against the cash accounts of MIAA
pursuant to its board resolutions,
conspiring, confederating and
confabulating with each other, did
then and there wilfully, unlawfully,
feloniously, and with intent to
defraud the government, take and
misappropriate the amount of
TWENTY FIVE MILLION PESOS
(P25,000,000.00) from MIAA funds
by applying for the issuance of a
manager.s check for said amount
in the name of accused Luis A.
Tabuena chargeable against
MIAA's Savings Account No. 274-
500-354-3 in the PNB Extension
Office at the Manila International
Airport in Pasay City, purportedly
as partial payment to the
Philippine National Construction
Corporation (PNCC), the mechanics
of which said accused Tabuena
would personally take care of,
when both accused well knew that
there was no outstanding
obligation of MIAA in favor of
PNCC, and after the issuance of the
above-mentioned manager's
check, accused Luis A. Tabuena
encashed the same and thereafter
both accused misappropriated and
converted the proceeds thereof to
their personal use and benefit, to
 the damage and prejudice of the
government in the aforesaid
amount.
CONTRARY TO LAW.
xxx xxx xxx
That on or about the 29th day of
January, 1986, and for sometime
subsequent thereto, in the City of
Pasay, Philippines, and within the
jurisdiction of this Honorable
Court, accused Luis A. Tabuena and
Adolfo M. Peralta, both public
officers, being then the General
Manager and Acting Manager,
Financial Services Department,
respectively, of the Manila
International Airport Authority
(MIAA), and accountable for public
funds belonging to the MIAA, they
being the only ones authorized to
make withdrawals against the cash
accounts of MIAA pursuant to its
board resolutions, conspiring,
confederating and confabulating
with each other, did then and
there wilfully, unlawfully,
feloniously, and with intent to
defraud the government, take and
misappropriate the amount of FIVE
MILLION PESOS (P5,000,000.00)
from MIAA funds by applying for
the issuance of a manager's check
for said amount in the name of
accused Luis A. Tabuena
chargeable against MIAA's Savings
Account No. 274-500- 354-3 in the
PNB Extension Office at the Manila
International Airport in Pasay City,
265 | P a g e
purportedly as partial payment to
the Philippine National
Construction Corporation (PNCC),
the mechanics of which said
accused Tabuena would personally
take care of, when both accused
well knew that there was no
outstanding obligation of MIAA in
favor of PNCC, and after the
issuance of the above-mentioned
manager's check, accused Luis A.
Tabuena encashed the same and
thereafter both accused
misappropriated and converted
the proceeds thereof to their MEMO TO: The General Manager
personal use and benefit, to the Manila International Airport
damage and prejudice of the Authority
government in the aforesaid
amount. You are hereby directed to pay
immediately the Philippine
CONTRARY TO LAW. National Construction Corporation,
thru this Office, the sum of FIFTY
Gathered from the documentary and testimonial FIVE MILLION (P55,000,000.00)
evidence are the following essential antecedents: PESOS in cash as partial payment
of MIAA's account with said
Then President Marcos instructed Tabuena over the Company mentioned in a
phone to pay directly to the president's office and in Memorandum of Minister Roberto
cash what the MIAA owes the Philippine National Ongpin to this Office dated January
Construction Corporation (PNCC), to which Tabuena 7, 1985 and duly approved by this
replied, "Yes, sir, I will do it." About a week later, Office on February 4, 1985.
Tabuena received from Mrs. Fe Roa-Gimenez, then
private secretary of Marcos, a Presidential Your immediate compliance is
Memorandum dated January 8, 1986 (hereinafter appreciated.
referred to as MARCOS Memorandum) reiterating in
black and white such verbal instruction, to wit:
Office of the President
of the Philippines
Malacanang
 E r P
R o a
D v r
I a t
N l i
A o a
N f l
D S D
M u e
A p f
R p e
C l r
O e m
S m e
. e n
4
n t
t o
The January 7, 1985 memorandum of then a f
Minister of Trade and Industry Roberto l R
Ongpin referred to in the MARCOS C e
Memorandum, reads in full: o p
n a
MEMORANDUM t y
r m
a e
For: The President
c n
t t
From: Minister Roberto V. Ongpin
s o
a f
Date: 7 January 1985 n P
d N
S R C
u e C
b q '
j u s
e e A
c s d
t t v
: f a
A o n
p r c
p
266 | P a g e
 e ental Package
s Contract Contract
f No. 12 No. 2
o Package 233,561.
r Contract 22
M No. 2
I P11,106, 6.
A 600.95 Supplem
D ental
e 2. Contract
v Supplem No. 17
e ental Package
l Contract Contract
o No. 13 No. 2
p 5,758,96 8,821,73
m 1.52 1.08
e
n 3. 7.
t Supplem Supplem
ental ental
P Contract Contract
r No. 14 No. 18
o Package Package
j Contract Contract
e No. 2 No. 2
c 4,586,61 6,110,11
t 0.80 5.75

May I request your approval of the 4. 8.

attached recommendations of Supplem Supplem
Minister Jesus S. Hipolito for eight ental ental
(8) supplemental contracts Contract Contract
pertaining to the MIA No. 15 No. 3
Development Project (MIADP) 1,699,86 Package
between the Bureau of Air 2.69 Contract
Transport (BAT) and Philippine No. II
National Construction Corporation 16,617,6
5.
(PNCC), formerly CDCP, as follows: 55.49
Supplem
ental
1. Contract (xerox copies
Supplem No. 16 only; original
267 | P a g e
 memo was i c
submitted to the c k
Office of the e o
President on May E f
28, 1984) s f
c u
In this connection, please be a n
informed that Philippine National l d
Construction Corporation (PNCC), a s
formerly CDCP, has t P
accomplishment billings on the i 1
MIA Development Project o .
aggregating P98.4 million, inclusive n 9
of accomplishments for the C m
aforecited contracts. In accordance o i
with contract provisions, m l
outstanding advances totalling m l
P93.9 million are to be deducted i i
from said billings which will leave a t o
net amount due to PNCC of only t n
P4.5 million. e
e —
At the same time, PNCC has ( E
potential escalation claims P n
amounting to P99 million in the E d
following stages of C o
approval/evaluation: ) r
b s
u e
—
t d
A
p b
p
e y
p
n p
r
d r
o
e o
v
d j
e
f e
d
o c
b
r t
y
l c
P
a o
r

268 | P a g e
 n 0 n
s . d
u 7 c
l m u
t i r
a l r
n l e
t i n
s o t
a n l
n y
d — u
c S n
u u d
r b e
r m r
e i e
n t v
t t a
l e l
y d u
b b a
e y t
i P i
n N o
g C n
e C 6
v d 6
a i .
l r 5
u e m
a c i
t t l
e l l
d y i
b t o
y o n
P P —
E E —
C C —
3 a —

269 | P a g e
 — corresponding to about 30% of
— P99.1 million in escalation claims
T of PNCC, of which P32.5 million has
o been officially recognized by
t MIADP consultants but could not
a be paid due to lack of funding.
l In obedience to President Marcos' verbal instruction
P Our proposal will allow BAT to pay and memorandum, Tabuena, with the help of Dabao
9 PNCC the amount of P34.5 million and Peralta, caused the release of P55 Million of
9 out of existing MIA Project funds. MIAA funds by means of three (3) withdrawals.
. This amount represents the excess
1 of the gross billings of PNCC of The first withdrawal was made on January 10, 1986
m P98.4 million over the undeferred for P25 Million, following a letter of even date signed
i portion of the repayment of by Tabuena and Dabao requesting the PNB extension
l advances of P63.9 million. office at the MIAA — the depository branch of MIAA
l funds, to issue a manager's check for said amount
i payable to Tabuena. The check was encashed, (
o however, at the PNB Villamor Branch. DabaoSand the
n cashier of the PNB Villamor branch counted theg
money after which, Tabuena took delivery thereof.
d
There has been no funding The P25 Million in cash were then placed in peerless
.
allocation for any of the above boxes and duffle bags, loaded on a PNB armored) car
escalation claims due to budgetary and delivered on the same day to the office ofR Mrs.
constraints. Gimenez located at Aguado Street fronting O
Malacanang. Mrs. Gimenez did not issue anyBreceipt
The MIA Project has been for the money received E
completed and operational as far R
back as 1982 and yet residual Similar circumstances surrounded the secondT
amounts due to PNCC have not withdrawal/encashment and delivery of another O P25
been paid, resulting in undue Million, made on January 16, 1986. V
burden to PNCC due to additional .
cost of money to service its O
The third and last withdrawal was made on January
obligations for this contract. 31, 1986 for P5 Million. Peralta was Tabuena'sN co-
G
signatory to the letter- request for a manager's
To allow PNCC to collect partially check for this amount. Peralta accompanied PTabuena
its billings, and in consideration of I
to the PNB Villamor branch as Tabuena requested
its pending escalation billings, may N the
him to do the counting of the P5 Million. After
we request for His Excellency's M
counting, the money was placed in two (2) peerless
approval for a deferment of the i
boxes which were loaded in the trunk of Tabuena's
repayment of PNCC's advances to n the
car. Peralta did not go with Tabuena to deliver
the extent of P30 million i
money to Mrs. Gimenez' office at Aguado Street. It
270 | P a g e
was only upon delivery of the P5 Million that Mrs. 0 0
Gimenez issued a receipt for all the amounts she , 0
received from Tabuena. The receipt, dated January 0 0
30, 1986, reads: 0 .
0 0
Malacanang . 0
Manila 0
0
J J
a a
n n
. u
1 a
6 r
— y
2 3
5 0
, ,
0 1
0 9
0 8
, 6
0
0
RECEIVED FROM LOUIE TABUENA
0
THE TOTAL AMOUNT OF FIFTY FIVE
.
MILLION PESOS (P55,000,000.00)
0
as of the following dates:
0 The disbursement of the P55 Million was, as
J described by Tabuena and Peralta themselves, "out
J
a of the ordinary" and "not based on the normal
a
n procedure". Not only were there no vouchers
n .
. prepared to support the disbursement, the P55
3 Million was paid in cold cash. Also, no PNCC receipt
1
0 for the P55 Million was presented. Defense witness
0
— Francis Monera, then Senior Assistant Vice President
—
5 and Corporate Comptroller of PNCC, even affirmed
P
, in court that there were no payments made to PNCC
2
0 by MIAA for the months of January to June of 1986.
5
0
,
0
0 The position of the prosecution was that there were
,
0 no outstanding obligations in favor of PNCC at the

271 | P a g e
time of the disbursement of the P55 Million. On the
other hand, the defense of Tabuena and Peralta, in
short, was that they acted in good faith. Tabuena
claimed that he was merely complying with the
MARCOS Memorandum which ordered him to
forward immediately to the Office of the President
P55 Million in cash as partial payment of MIAA's
obligations to PNCC, and that he (Tabuena) was of
the belief that MIAA indeed had liabilities to PNCC.
Peralta for his part shared the same belief and so he
heeded the request of Tabuena, his superior, for him
(Peralta) to help in the release of P5 Million.
With the rejection by the Sandiganbayan of their
claim of good faith which ultimately led to their
conviction, Tabuena and Peralta now set forth a total
of ten (10) errors6 committed by the Sandiganbayan
for this Court's consideration. It appears, however,
that at the core of their plea that we acquit them are
the following:
1) the Sandiganbayan convicted them of a crime not
charged in the amended informations, and
2) they acted in good faith.
Anent the first proposition, Tabuena and Peralta
stress that they were being charged with intentional
malversation, as the amended informations
commonly allege that:
. . . accused . . . conspiring,
confederating and other, then and
there wilfully, unlawfully,
feloniously, and with intent to
defraud the government, take and
misappropriated the amount of . . .
. the amended informations charged them with
But it would appear that they were
convicted of malversation by negligence. In
272 | P a g e
this connection, the Court's attention is
directed to p. 17 of the December 20, 1991
Resolution (denying Tabuena's and Peralta's
motion for reconsideration) wherein the
Sandiganbayan said:
xxx xxx xxx
On the contrary, what the evidence
shows is that accused Tabuena
delivered the P55 Million to people
who were not entitled thereto,
either as representatives of MIAA
or of the PNCC.
It proves that Tabuena had
deliberately consented or
permitted through negligence or
abandonment, some other person
to take such public funds. Having
done so, Tabuena, by his own
narration, has categorically
demonstrated that he is guilty of
the misappropriation or
malversation of P55 Million of
public funds. (Emphasis supplied.)
To support their theory that such variance is
a reversible flaw, Tabuena and Peralta
argue that:
1) While malversation may be committed
intentionally or by negligence, both modes cannot
be committed at the same time.
2) The Sandiganbayan was without jurisdiction to
convict them of malversation of negligence where
intentional malversation.7
3) Their conviction of a crime different from that
charged violated their constitutional right to be
informed of the accusation.8
We do not agree with Tabuena and Peralta on this
point. Illuminative and controlling is "Cabello v.
Sandiganbayan" 9 where the Court passed upon
similar protestations raised by therein accused-
petitioner Cabello whose conviction for the same
crime of malversation was affirmed, in this wise:
. . . even on the putative
assumption that the evidence
against petitioner yielded a case of
malversation by negligence but the
information was for intentional
malversation, under the
circumstances of this case his
conviction under the first mode of
misappropriation would still be in
order. Malversation is committed
either intentionally or by
negligence. The dolo or
the culpa present in the offense is
only a modality in the perpetration
of the felony. Even if the mode
charged differs from the mode
proved, the same offense of
malversation is involved and
conviction thereof is proper. . . .
In Samson vs. Court of Appeals,
et. al., we held that an accused
charged with willful or intentional
falsification can validly be
convicted of falsification through
negligence, thus:
While a criminal negligent act is
not a simple modality of a willful
crime, as we held in Quizon
 vs. Justice of the Peace of Bacolor.
G.R. No. L-6641, July 28, 1995, but
a distinct crime in our Penal Code,
designated as a quasi offense in
our Penal Code, it may however be
said that a conviction for the
former can be had under an
information exclusively charging
the commission of a willful offense,
upon the theory that the greater
includes the lesser offense. This is
the situation that obtains in the
present case. Appellant was
charged with willful falsification
but from the evidence submitted
by the parties, the Court of Appeals
found that in effecting the
falsification which made possible
the cashing of the checks in
question, appellant did not act
with criminal intent but merely
failed to take proper and adequate
means to assure himself of the
identity of the real claimants as an
ordinary prudent man would do. In
other words, the information
alleges acts which charge willful
falsification but which turned out
to be not willful but negligent. This
is a case covered by the rule when
there is a variance between the
allegation and proof, and is similar
to some of the cases decided by
this Tribunal.
xxx xxx xxx
Moreover; Section 5, Rule 116, of
the Rules of Court does not require
that all the essential elements of
the offense charged in the
273 | P a g e
information be proved, it being
sufficient that some of said
essential elements or ingredients
thereof be established to
constitute the crime proved. . . .
The fact that the information does
not allege that the falsification was
committed with imprudence is of
no moment for here this deficiency
appears supplied by the evidence
submitted by appellant himself and
the result has proven beneficial to
him. Certainly, having alleged that
the falsification has been willful, it
would be incongruous to allege at
the same time that it was
committed with imprudence for a
charge of criminal intent is
incompatible with the concept of
negligence.
Subsequently, we ruled in People
vs. Consigna, et. al., that the
aforestated rationale and
arguments also apply to the felony
of malversation, that is, that an
accused charged with willful
malversation, in an information
containing allegations similar to
those involved in the present case,
can be validly convicted of the
same offense of malversation
through negligence where the
evidence sustains the latter mode
of perpetrating the offense.
Going now to the defense of good faith, it is settled
that this is a valid defense in a prosecution for
malversation for it would negate criminal intent on
the part of the accused. Thus, in the two (2) vintage,
but significantmalversation cases of "US v.
Catolico" 10 and "US v. Elvina," 11 the Court stressed
that:
To constitute a crime, the act must,
except in certain crimes made such
by statute, be accompanied by a
criminal intent, or by such
negligence or indifference to duty
or to consequences as, in law, is
equivalent to criminal intent. The
maxim is actus non facit reum, nisi
mens sit rea — a crime is not
committed if the mind of the
person performing the act
complained of is innocent.
The rule was reiterated in "People v.
Pacana," 12 although this case involved
falsification of public documents and estafa:
Ordinarily, evil intent must unite
with an unlawful act for there to be
a crime. Actus non facit reum, nisi
mens sit rea. There can be no
crime when the criminal mind is
wanting.
American jurisprudence echoes the same
principle. It adheres to the view that
criminal intent in embezzlement is not
based on technical mistakes as to the legal
effect of a transaction honestly entered
into, and there can be no embezzlement if
the mind of the person doing the act is
innocent or if there is no wrongful
purpose.13 The accused may thus always
introduce evidence to show he acted in
good faith and that he had no intention to
convert.14 And this, to our mind, Tabuena
and Peralta had meritoriously shown.
In so far as Tabuena is concerned, with the due liability of only about P34.5 Million. The about 30% of
presentation in evidence of the MARCOS Sandiganbayan in this connection said: P99.1 million in
Memorandum we are swayed to give credit to his escalation claims
claim of having caused the disbursement of the P55 Exhibits "2" and "2-a" (pages 1 and of PNCC, of which
Million solely by reason of such memorandum. From 2 of the memorandum of Min. P32.6 million has
this premise flows the following reasons and/or Ongpin to the President dated been officially
considerations that would buttress his innocence of January 7, 1985) were mainly: recognized by
the crime of malversation. MIADP
a.) for the approval of eight consultants but
First. Tabuena had no other choice but to make the Supplemental Contracts; and could not be paid
withdrawals, for that was what the MARCOS due to lack of
Memorandum required him to do. He could not be funding.
b.) a request for partial deferment
faulted if he had to obey and strictly comply with the of payment by PNCC for advances
presidential directive, and to argue otherwise is made for the MIAA Development Our proposal will
something easier said than done. Marcos was Project, while at the same time allow BAT to pay
undeniably Tabuena's superior — the former being recognizing some of the PNCC's PNCC the amount
then the President of the Republic who escalation billings which would of P34.5 million
unquestionably exercised control over government result in making payable to PNCC out of existing
agencies such as the MIAA and PNCC.15 In other the amount of P34.5 million out of MIA Project
words, Marcos had a say in matters involving inter- existing MIAA Project funds. funds. This
government agency affairs and transactions, such as amount
for instance, directing payment of liability of one represents the
Thus:
entity to another and the manner in which it should excess of the
be carried out. And as a recipient of such kind of a gross billings of
"xxx xxx xxx
directive coming from the highest official of the land PNCC of P98.4
no less, good faith should be read on Tabuena's million over the
compliance, without hesitation nor any question, To allow PNCC to undeferred
with the MARCOS Memorandum. Tabuena therefore collect partially portion of the
is entitled to the justifying circumstance of "Any its billings, and in repayment of
person who acts in obedience to an order issued by a consideration of advances of
superior for some lawful purpose."16 The ifs pending P63.9 million."
subordinate-superior relationship between Tabuena escalation
and Marcos is clear. And so too, is the lawfulness of billings, may we
While Min. Ongpin may have,
the order contained in the MARCOS Memorandum, request for His
therefore recognized the
as it has for its purpose partial payment of the Excellency's
escalation claims of the PNCC to
liability of one government agency (MIAA) to approval for a
MIAA to the extent of P99.1 million
another (PNCC). However, the unlawfulness of the deferment of
(Exhibit 2a), a substantial portion
MARCOS Memorandum was being argued, on the repayment of
thereof was still in the stages of
observation, for instance, that the Ongpin Memo PNCC's advances
evaluation and approval, with only
referred to in the presidential directive reveals a to the extent
P32.6 million having been officially
of P30 million
corresponding to
274 | P a g e
 recognized by the MIADP The order to December 31,
consultants. withdraw the 1985?
amount of P55
If any payments were, therefore, million exceeded A As of
due under this memo for Min. the approved December 31,
Ongpin (upon which President payment of P34.5 1985, the
Marcos' Memo was based) they million by P20.5 receivables from
would only be for a sum of up to million. Min. MIA is shown on
P34.5 million. 17 Ongpin's Memo page 2, marked
of January 7, as Exhibit "7-a",
xxx xxx xxx 1985 could not sir, P102,475.392
therefore serve .35
as a basis for the
V. Pres. Marcos' order to Tabuena
President's order xxx xxx xxx 19
dated January 8, 1986 baseless.
to withdraw P55
million. 18
Not only was ATTY. ANDRES
Pres. Marcos'
Granting this to be true, it will not
Memo (Exhibit Q Can you tell us,
nevertheless affect Tabuena's goad faith so
"1") for Tabuena Mr. Witness,
as to make him criminally liable. What is
to pay P55 what these
more significant to consider is that the
million irrelevant, obligations
MARCOS Memorandum is patently legal (for
but it was represent?
on its face it directs payment of an
actually baseless.
outstanding liability) and that Tabuena
WITNESS
acted under the honest belief that the P55
This is easy to
million was a due and demandable debt and
see. A These
that it was just a portion of a bigger liability
to PNCC. This belief is supported by defense obligations
Exhibit "1" witness Francis Monera who, on direct represent
purports to refer examination, testified that: receivables on
itself to the the basis of our
Ongpin billings to MIA as
ATTY ANDRES
Memorandum contract-owner
(Exhibit "2", "2- of the project
Q Can you please
a"); Exhibit "1", that the
show us in this
however, speaks Philippine
Exhibit "7" and
of P55 million to National
"7-a" where it is
be paid to the Construction
indicated the
PNCC while Corporation
receivables from
Exhibit "2" constructed.
MIA as of
authorized only These are billings
P34.5 million.
275 | P a g e
 for escalation Accused was charged with availability of funds for an
mostly, sir. falsification of commercial unquestionably staggering sum of
document. A mere employee of P55 Million. 25
Q What do you R.J. Campos, he inserted in the
mean by commercial document alleged to c) failure to protest (Sec. 106, P.D. 1445)
escalation? have been falsified the word "sold"
by order of his principal. Had he But this deviation was inevitable under the
A Escalation is known or suspected that his circumstances Tabuena was in. He did not
the component principal was committing an have the luxury of time to observe all
of our revenue improper act of falsification, he auditing procedures of disbursement
billings to the would be liable either as a co- considering the fact that the MARCOS
contract-owner principal or as an accomplice. Memorandum enjoined his "immediate
that are However, there being no malice on compliance" with the directive that he
supposed to take his part, he was exempted from forward to the President's Office the P55
care of price criminal liability as he was a mere Million in cash. Be that as it may, Tabuena
increases, sir. employee following the orders of surely cannot escape responsibility for such
his principal. 24 omission. But since he was acting in good
xxx xxx xxx 20 faith, his liability should only be
Second. There is no denying that the disbursement, administrative or civil in nature, and not
which Tabuena admitted as "out of the ordinary", criminal. This follows the decision in
ATTY ANDRES
did not comply with certain auditing rules and "Villacorta v. People"26 where the Court, in
regulations such as those pointed out by the acquitting therein accused municipal
Q When you said
Sandiganbayan, to wit: treasurer of Pandan, Catanduanes of
these are
malversation after finding that he incurred a
accounts
a) [except for salaries and wages and for shortage in his cash accountability by
receivable, do I
commutation of leaves] all disbursements above reason of his payment in good faith to
understand from
P1,000.00 should be made by check (Basic certain government personnel of their
you that these
Guidelines for Internal Control dated January 31, legitimate wages leave allowances, etc.,
are due and
1977 issued by COA) held that:
demandable?

b) payment of all claims against the government had Nor can negligence approximating
A Yes, sir. 21
to be supported with complete documentation (Sec. malice or fraud be attributed to
4, P.D. 1445, "State Auditing Code of the petitioner. If he made wrong
Thus, even if the order is illegal if it is
Philippines). In this connection, the Sandiganbayan payments, they were in Good faith
patently legal and the subordinate is not observed that: mainly to government personnel,
aware of its illegality, the subordinate is not
some of them working at the
liable, for then there would only be a
There were no vouchers to provincial auditor's and the
mistake of fact committed in good
authorize the disbursements in provincial treasurer's offices And if
faith.22 Such is the ruling in "Nassif v.
question. There were no bills to those payments ran counter to
People"23 the facts of which, in brief, are as
support the disbursement. There auditing rules and regulations, they
follows:
were no certifications as to the did not amount to a criminal

276 | P a g e
 offense and he should only be held dispose of the goods of another
administratively or civilly liable. without right as if they were his
own is conversion to his own use."
Likewise controlling is "US v. (Terry v. Water Improvement Dist.
Elvina" 27 where it was held that payments No. 5 of Tulsa County, 64 p, 2d 904,
in good faith do not amount to criminal 906, 179 Okl. 106)
appropriation, although they were made
with insufficient vouchers or improper —
evidence. In fact, the Dissenting Opinion's A
reference to certain provisions in the t
revised Manual on Certificate of Settlement p
and Balances — apparently made to Conversion
. is any interference
underscore Tabuena's personal subversive
2 of the right of the
accountability, as agency head, for MIAA owner of0personal property to
funds — would all the more support the enjoy and7 control it. The gist of
view that Tabuena is vulnerable to civil conversion
, is the usurpation of the
sanctions only Sections 29.2 and 295 owner 's Wright of property, and not
expressly and solely speak of "civilly liable," the actualo damages inflicted.
describe the kind of sanction imposable on Honesty of
r purpose is not a
a superior officer who performs his duties defense. d(Ferrera v. Parks, 23 p.
with "bad faith, malice or gross negligence"' 883, 885 s19 Or. 141)
and on a subordinate officer or employee a
who commits "willful or negligent acts . . . n
which are contrary to law, morals, public d
policy and good customs even if he acted P
under order or instructions of his superiors." h
r
Third. The Sandiganbayan made the finding that a
Tabuena had already converted and misappropriated s
the P55 Million when he delivered the same to Mrs. e
Gimenez and not to the PNCC, proceeding from the s
following definitions/concepts of "conversion": ,
P
"Conversion", as necessary e
element of offense of r
embezzlement, being the m
fraudulent "appropriation to one's a
own use' of another's property n
which does not necessarily mean e xxx xxx xxx
to one's personal advantage but n
every attempt by one person to t

277 | P a g e
 The words "convert" and
"misappropriate" connote an act of
using or disposing of another's
property as if it were one's own.
They presuppose that the thing has
been devoted to a purpose or use
different from that agreed upon.
To appropriate to one's own use
includes not only conversion to
one's personal advantage but
every attempt to dispose of the
property of another without right.
278 | P a g e
3
,
2
9
3
7
By placing them at the disposal of
private persons without due
authorization or legal justification,
he became as guilty of
malversation as if he had
personally taken them and We do not agree. It must be stressed that
converted—them to his own use. the MARCOS Memorandum directed
P Tabuena "to pay immediately the Philippine
e National Construction — Corporation, thru this
o office the sum of FIFTY
P FIVE MILLION. . .",
p and that was whate Tabuena precisely did
l when he deliveredothe money to Mrs.
e Gimenez. Such delivery,
p no doubt, is in
v effect delivery to thel Office of the President
s inasmuch as Mrs. eGimenez was Marcos'
. secretary then. Furthermore,
v Tabuena had
W reasonable grounds to believe that the
e President was entitled. to receive the P55
b Million since he was L certainly aware that
b Marcos, as Chief Executive,
u exercised
e supervision and control
n over government
r agencies. And thetgood faith of Tabuena in
, having delivered the a money to the
5 President's office (thru
o Mrs. Gimenez), in
7 strict compliance with, the MARCOS
O Memorandum, was 5 not at all affected even
. if it later turned out0 that PNCC never
G received the money. O Thus, it has been said
. that: .
p G
. Good faith. in the payment of
2 public funds
p relieves a public
9 officer from
. the crime of
3 malversation.
1
 xxx xxx xxx
Not every unauthorized payment
of public funds is malversation.
There is malversation only if the
public officer who has custody of
public funds should appropriate
the same, or shall take or
misappropriate or shall consent, or
through abandonment or
negligence shall permit any other
person to take such public funds.
Where the payment of public funds
has been made in good faith, and
there is reasonable ground to
believe that the public officer to
whom the fund had been paid was
entitled thereto, he is deemed to
have acted in good faith, there is
no criminal intent, and the
payment, if it turns out that it is
unauthorized, renders him only
civilly but not criminally liable.29
Fourth. Even assuming that the real and sole
purpose behind the MARCOS Memorandum was to
siphon-out public money for the personal benefit of
those then in power, still, no criminal liability can be
imputed to Tabuena. There is no showing that
Tabuena had anything to do whatsoever with the
execution of the MARCOS Memorandum. Nor is
there proof that he profited from the felonious
scheme. In short, no conspiracy was established
between Tabuena and the real embezzler/s of the P5
Million. In the cases of "US v. Acebedo"30 and "Ang v.
Sandiganbayan",31 both also involving the crime of
malversation, the accused therein were acquitted
after the Court arrived at a similar finding of non-
proof of conspiracy. In "Acebedo", therein accused,
as municipal president of Palo, Leyte, was
prosecuted for and found guilty by the lower court of
279 | P a g e
malversation after being unable to turn over certain
amounts to the then justice of the peace. It
appeared, however, that said amounts were actually
collected by his secretary Crisanto Urbina. The Court
reversed Acebedo's conviction after finding that the
sums were converted by his secretary Urbina
without the knowledge and participation of
Acebedo. The Court said, which we herein adopt:
No conspiracy between the
appellant and his secretary has
been shown in this case, nor did
such conspiracy appear in the case
against Urbina. No guilty
knowledge of the theft committed
by the secretary was shown on the
part of the appellant in this case,
nor does it appear that he in any
way participated in the fruits of the
crime. If the secretary stole the
money in question without the
knowledge or consent of the
appellant and without negligence
on his part, then certainly the
latter can not be convicted of
embezzling the same money or any
part thereof.32
In "Ang", accused-petitioner, as MWSS bill
collector, allowed part of his collection to
be converted into checks drawn in the
name of one Marshall Lu, a non-customer
of MWSS, but the checks were
subsequently dishonored. Ang was
acquitted by this Court after giving
credence to his assertion that the
conversion of his collections into checks
were thru the machinations of one Lazaro
Guinto, another MWSS collector more
senior to him. And we also adopt the
Court's observation therein, that:
The petitioner's alleged negligence
in allowing the senior collector to
convert cash collections into
checks may be proof of poor
judgment or too trusting a nature
insofar as a superior officer is
concerned but there must be
stronger evidence to show fraud,
malice, or other indicia of
deliberateness in the conspiracy
cooked up with Marshall Lu. The
prosecution failed to show that the
petitioner was privy to the
conspirational scheme. Much less
is there any proof that he profited
from the questioned acts. Any
suspicions of conspiracy, no matter
how sincerely and strongly felt by
the MWSS, must be converted into
evidence before conviction beyond
reasonable doubt may be
imposed. 33
The principles underlying all that has been
said above in exculpation of Tabuena
equally apply to Peralta in relation to the P5
Million for which he is being held
accountable, i.e., he acted in good faith
when he, upon the directive of Tabuena,
helped facilitate the withdrawal of P5
Million of the P55 Million of the MIAA
funds.
This is not a sheer case of blind and misguided
obedience, but obedience in good faith of a duly
executed order. Indeed, compliance to a patently
lawful order is rectitude far better than
contumacious disobedience. In the case at bench,
the order emanated from the Office of the
President and bears the signature of the President
himself, the highest official of the land. It carries with
it the presumption that it was regularly issued. And
on its face, the memorandum is patently lawful for
no law makes the payment of an obligation illegal.
This fact, coupled with the urgent tenor for its
execution constrains one to act swiftly without
question. Obedientia est legis essentia. Besides, the
case could not be detached from the realities then
prevailing As aptly observed by Mr Justice Cruz in his
dissenting opinion:
We reject history in arbitrarily
assuming that the people were
free during the era and that the
Judiciary was independent and
fearless. We know it was not: even
the Supreme Court at that time
was not free. This is an undeniable
fact that we can not just blink
away. Insisting on the contrary
would only make our sincerity
suspect and even provoke scorn
for what can only be described as
our incredible credulity. 34
But what appears to be a more compelling reason
for their acquittal is the violation of the accused's
basic constitutional right to due process. "Respect for
the Constitution", to borrow once again Mr. Justice
Cruz's words, "is more important than securing a
conviction based on a violation of the rights of the
accused."35 While going over the records, we were
struck by the way the Sandiganbayan actively took
part in the questioning of a defense witness and of
the accused themselves. Tabuena and Peralta may
not have raised this as an error, there is nevertheless
no impediment for us to consider such matter as
additional basis for a reversal since the settled
doctrine is that an appeal throws the whole case
open to review, and it becomes the duty of the
appellate court to correct such errors as may be
found in the judgment appealed from whether they
280 | P a g e
are made the subject of assignments of error or (As a background, what was elicited from his direct
not. 36 examination is that the PNCC had receivables from
MIAA totalling P102,475,392.35, and although such
Simply consider the volume of questions hurled by receivables were largely billings for escalation, they
the Sandiganbayan. At the taking of the testimony of were nonetheless all due and demandable. What
Francis Monera. then Senior Assistant Vice President follows are the cross-examination of Prosecutor
and Corporate Comptroller of PNCC, Atty. Andres Viernes and the court questions).
asked sixteen (16) questions on direct examination.
Prosecutor Viernes only asked six (6) questions on CROSS-
cross-examination in the course of which the court EXAMINATION BY
interjected a total of twenty-seven (27) questions PROS. VIERNES
(more than four times Prosecutor Viernes' questions
and even more than the combined total of direct and Q You admit that
cross-examination questions asked by the counsels) as shown by
After the defense opted not to conduct any re-direct these Exhibits "7"
examination, the court further asked a total of ten and "7- a", the
(10) questions.37 The trend intensified during items here
Tabuena's turn on the witness stand. Questions from represent mostly
the court after Tabuena's cross-examination escalation
totalled sixty-seven (67). 38 This is more than five billings. Were
times Prosecutor Viernes' questions on cross- those escalation
examination (14), and more than double the total of billings properly
direct examination and cross-examination questions transmitted to
which is thirty-one (31) [17 direct examination MIA authorities?
questions by Atty. Andres plus 14 cross-examination
questions by Prosecutor Viernes]. In Peralta's case, A I don't have the
the Justices, after his cross-examination, documents right
propounded a total of forty-one (41) questions. 39 now to show that
they were
But more importantly, we note that the questions of transmitted, but I
the court were in the nature of cross examinations have a letter by
characteristic of confrontation, probing and our President,
insinuation. 40 (The insinuating type was best Mr. Olaguer,
exemplified in one question addressed to Peralta, dated July 6,
which will be underscored.) Thus we beg to quote in 1988, following
length from the transcripts pertaining to witness up for payment
Monera, Tabuena and Peralta. (Questions from the of the balance of
Court are marked with asterisks and italicized for our receivables
emphasis.) from MIA, sir.
(MONERA) *AJ AMORES
 *Q This matter of President escalations, your
escalation costs, Marcos, dated Honor.
is it not a matter January 7, 1985,
for a conference with a marginal *Q Does that
between the MIA note or approval indicate the
and the PNCC for by former computation for
the President escalations were
determination as Marcos. already billed or
to the correct you do not have
amount? *PJ any proof of that
GARCHITORENA
A I agree, your A Our subsidiary
Honor. As far as *Q Basically, the ledger was based
we are letter of Mr. on billings to MIA
concerned, our Ongpin is to what and this letter of
billings are what effect? Minister Ongpin
we deemed are appears to have
valid receivables A The subject confirmed our
And, in fact, we matter is billings to MIA,
have been approval of the your Honor.
following up for supplementary
payment. contract and *AJ AMORES
request for
*Q This partial deferment *Q Were there
determination of of payment for partial payments
the escalation MIA made by MIA an
costs was it Development these escalation
accepted as the Project, your billings?
correct figure by Honor.
MIA ?
A Based on
*Q It has nothing records available
A I don't have to do with the as of today, the
any document as implementation P102 million was
to the of the escalation reduced to about
acceptance by costs? P56.7 million, if
MIA your Honor, my recollection is
but our company A The details correct, your
was able to get a show that most Honor.
document or a of the accounts
letter by Minister refer to our *PJ
Ongpin to
GARCHITORENA
281 | P a g e
 *Q Were the of about P1 *Q This is as of
payments made million; that December 31,
before or after summed up to 1985?
February 1986, P44.4 million all
since Mr. Olaguer in all. And you A The P102
is a new entrant deduct that from million was as of
to your the P102 million, December 31,
company? the remaining 1985, your
balance would be Honor, but the
WITNESS about P57 balances is as of
million. August 1987.
A The payments
were made after *PJ *Q We are
December 31, GARCHITORENA talking now
1985 but I think about the P44
the payments *Q What you are million, more or
were made saying is that, for less, by which the
before the entry all the payments basic account has
of our President, made on this been reduced.
your Honor. P102 million, These reductions,
Actually, the only P2 million whether by
payment was in had been adjustment or
the form of: payments in cash assignment or
assignments to ? actual delivery of
State Investment cash, were made
of about P23 A Yes, your after December
million; and then Honor. 31, 1985?
there was P17.8
million *Q The rest had WITNESS
application been
against advances adjustments of A Yes, your
made or formerly accounts, Honor.
given; and there assignments of
were payments accounts, or *Q And your
to PNCC of about offsetting of records indicate
P2.6 million and accounts? when these
there was a
adjustments and
payment for
A Yes, your payments were
application on
Honor. made?
withholding and
contractual stock

282 | P a g e
 A Yes, your *Q The question payment in cash
Honor. of the Court is, or just credit of
before December some sort before
*AJ AMORES 31, 1985, were December 31,
there any 1985?
*Q You said there liquidations
were partial made by MIA A Before
payments before against these December 31,
of these escalation 1985, the
escalation billings? reference of the
billings. Do we ledger are official
get it from you A I have not receipts and I
that there was an reviewed the suppose these
admission of details of the were payments
these escalation record, your in cash, your
costs as Honor. But the Honor.
computed by you ledger card
by MIA, since indicates that *Q Do you know
there was there were how the manner
already partial collections on of this payment
payments? page 2 of the in cash was made
Exhibit earlier by MIA?
A Yes, your presented. It will
Honor. indicate that A I do not know,
there were your Honor.
collections
*Q How were
shown by credits
these payments *PJ
indicated on the
made before GARCHITORENA
credit side of the
February 1986, in
ledger.
case or check, if *Q But your
there were records will
payments made? *AJ AMORES
indicate that?

A The P44 million *Q Your ledger

A The records will
payments was in does not indicate
indicate that,
the form of the manner of
your Honor.
assignments, giving credit to
your Honor. the MIA with
*Q Except that
respect to the
you were not
escalation
*PJ
billings. Was the
GARCHITORENA
283 | P a g e
 asked to bring that, as you *Q And the
them? described it, by business way?
way of
A Yes, your assignments, A Yes, your
Honor. adjustments, by Honor.
offsets and by P2
*Q At all events, million of cash PJ
we are talking of payment? GARCHITORENA
settlement or
partial liquidation A Yes, your Continue.
prior to Honor.
December 31, PROS VIERNES
1985? *AJ AMORES
Q You mentioned
A Yes, your *Q Your standard earlier about the
Honor. operating letter of former
procedure before Minister Ongpin
*PJ December 31, to the former
GARCHITORENA 1985 in President
connection with Marcos, did you
*Q Subsequent or in case of cash say that letter
thereto, we are payment, was concurs with the
talking merely of the payment in escalation billings
about P44 cash or check? reflected in
million? Exhibits "7" and
A I would venture "7-a"?
A Yes, your to say it was by
Honor, as check, your WITNESS
subsequent Honor.
settlements. A The Company
*Q Which is the or the
*Q After safest way to do management is
December 31, it? of the opinion
1985? that this letter, a
A Yes, your copy of which we
A Yes, your Honor. were able to get,
Honor. is a confirmation
"PJ of the
*Q And they GARCHITORENA acceptance of
have liquidated our billings, sir.

284 | P a g e
 Q This letter of account. What credits made in
Minister Ongpin are indicated in favor of MIA in
is dated January the ledger are July and
7, 1985, whereas escalation November until
the entries of billings. December 1985.
escalation billings These were
as appearing in *PJ properly credited
Exhibit "7" are GARCHITORENA to the account of
dated June 30, MIA?
1985, would you *Q We are
still insist that the talking about the WITNESS
letter of January letter of Minister
1985 confirms Ongpin? A Yes, sir.
the escalation
billings as of June
A The letter of Q In 1986. from
1985?
Minister Ongpin your records as
refers to appearing in
A The entries escalation Exhibit "7-a",
started June 30 in billings, sir. there were no
the ledger card. payments made
And as of to PNCC by MIA
*Q As of what
December 31, for the months of
date?
1985, it stood at January to June
P102 million after 1986?
A The letter is
payments were
dated January 7,
made as shown
1985, your A Yes, sir.
on the credit side
Honor.
of the ledger. I
Q And neither
suppose hat the
PJ was the amount
earlier amount,
GARCHITORENA of P22 million
before the
remitted to PNCC
payment was
Continue. by MIA?
made, was bigger
and therefore I
would venture to PROS. VIERNES A Yes, sir.
say that the
letter of January Q In accordance PROS VIERNES
7, 1985 contains with this letter
an amount that is marked Exhibit That will be all,
part of the "7" and "7-a", your Honor.
original contract there were

285 | P a g e
 PJ the present 1985, your
GARCHITORENA administration? Honor.

Redirect? A After February *Q After

1986, your December 31,
ATTY ANDRES Honor. 1985?

No redirect, your *Q But before A There appears

Honor. February, in also P23 million
January 1986, as credit, that is a
*PJ there was no form of
GARCHITORENA payment settlement, your
whatsoever by Honor.
MIA to PNCC?
Questions from
the Court. *Q This is as of
A Per record September 25?
there is none
*AJ AMORES
appearing, your A Yes, your
Honor. Honor. There
*Q From your
were subsequent
records, for the
*PJ settlements P23
month of January
GARCHITORENA million is just
1986, there was
part of the P44
no payment of
*Q The earliest million.
this escalation
account by MIA? payment,
whether by *Q And what you
delivery of cash are saying is that,
WITNESS
equivalent or of PNCC passed the
adjustment of account to State
A Yes, your
account, or by Investment. In
Honor. But on assignment, or by other words,
page 2 of Exhibit
offsets, when did State Investment
"7" there appears
these payments bought the credit
an assignment of
begin? of MIA?
P23 million, that
was on
A Per ledger card, A Yes, your
September 25,
there were Honor.
1986.
payments in
1985, prior to *Q And the
*Q But that is
December 31, amount of credit
already under

286 | P a g e
 or receivables PJ at Aguado Street, who thereafter issued a receipt.
sold by PNCC to GARCHITORENA Tabuena also denied having used the money for his
State Investment own personal use.)
is P23 million? Any clarifications
you would like to CROSS-
A Yes, your make Mr. EXAMINATION BY
Honor. Estebal? PROS. VIERNES

*Q Is there a ATTY ESTEBAL Q The amount of

payback P55 million as
agreement? None, your covered by the
Honor. three (3) checks
A I have a copy of Mr. Tabuena,
the assignment PJ were delivered
to State GARCHITORENA on how many
Investment but I occasions?
have not yet Mr. Viernes?
reviewed the A Three times,
same, your sir.
PROS VIERNES
Honor.
Q And so, on the
No more, your
*AJ AMORES first two
Honor.
deliveries, you
*Q As of now, is did not ask for a
PJ
this obligation of receipt from Mrs.
GARCHITORENA
MIA, now NAIA, Gimenez?
paid to PNCC?
The witness is
A Yes, sir.
excused. Thank
A There is still a
you very much
balance of Q It was only on
Mr. Monera. . .
receivables from January 30, 1986
.41
MIA as evidenced that this receipt
by a collection Exhibit "3" was
(TABUENA)
letter by our issued by Mrs.
President dated Gimenez?
July 6, 1988, your (In his direct examination, he testified that he caused
Honor. The the preparation of the checks totalling P55 Million
A Yes, sir.
amount indicated pursuant to the MARCOS Memorandum and that he
in the letter is thereafter delivered said amount in cash on the
*PJ
P55 million. three (3) dates as alleged in the information to
GARCHITORENA
Marcos' private secretary Mrs. Jimenez at her office
287 | P a g e
 *Q So January 30 PJ Q This receipt
is the date of the GARCHITORENA was typewritten
last delivery? in Malacañang
Continue. stationery. Did
A I remember it you see who
was on the 31st PROS VIERNES typed this
of January, your receipt?
Honor What Q You did not go
happened is that, to Malacañang A No, sir. What
I did not notice on January 30, happened is that,
the date placed 1986? she went to her
by Mrs. Gimenez. room and when
she came out she
A Yes, sir, I did
Q Are you telling gave me that
not.
us that this receipt.
Exhibit "3" was
Q Do you know
incorrectly dated *PJ
at whose
GARCHITORENA
instance this
A Yes, your Exhibit "3" was
Honor. prepared? Q What you are
saying is, you do
*Q Because the not know who
A I asked for it,
third delivery was typed that
sir.
on January 31st receipt?
and yet the
Q You asked for it
receipt was WITNESS
on January 31,
dated January
1986 when you
30? A Yes, your
made the last
delivery? Honor.
A Yes, your
Honor. *Q Are you
A Yes, sir.
making an
*Q When was assumption that
Q Did you see
Exhibit "3" she typed that
this Exhibit "3"
delivered actually receipt?
prepared in the
by Mrs.
Office of Mrs.
Gimenez? A Yes, your
Gimenez?
Honor, because
A January 31st, she knows how
A Yes, sir.
your Honor. to type.

288 | P a g e
 *Q Your this receipt So, when the
assumption is Exhibit "3"? Presiding Justice
that she typed it asked you as to
herself? A No, sir, I did how you knew
not. She was that this was the
A Yes, your inside her room. signature of Mrs.
Honor. Gimenez and you
Q So, she was in answered that
PJ her room and you saw Mrs.
GARCHITORENA when she came Gimenez signed
out of the room, it, you were not
she handed this exactly truthful?
Proceed.
receipt to you
already typed A What I mean is,
PROS. VIERNES
and signed? I did not see her
sign because she
Q This receipt
A Yes, sir. went to her room
was prepared on
and when she
January 31,
came out, she
although it is *AJ
gave me that
dated January HERMOSISIMA
receipt, your
30?
Honor.
*Q So, how did
A Yes, sir, you know this
PJ
because I was was the signature
GARCHITORENA
there on January of Mrs. Gimenez?
31st.
That is why you
WITNESS
have to wait for
Q In what
the question to
particular place A Because I know
be finished and
did Mrs. Gimenez her signature,
listen to it
sign this Exhibit your Honor. I
carefully.
"3"? have been
Because when I
receiving letters
asked you, you
A In her office at from her also and said you saw her
Aguado, sir. when she
signed it. Be
requests for
careful Mr.
Q Did you something from
Tabuena.
actually see Mrs. me. Her writing is
Gimenez signing familiar to me.
WITNESS

289 | P a g e
 Yes, your Honor. That will be all, delivered was
your Honor. P55 million')
PJ
GARCHITORENA PJ A Yes, your
GARCHITORENA Honor.
Continue.
Redirect? PJ
PROS VIERNES GARCHITORENA
ATTY. ANDRES
Was there Response by Mr.
another person No redirect, your Peralta to the
inside the office Honor. testimony of Mr.
of Mrs. Gimenez Tabuena.
when she gave *PJ
you this receipt GARCHITORENA ATTY. ESTEBAL
Exhibit "3"?
Questions from We are adopting
A Nobody, sir. the Court. the testimony of
Mr. Tabuena and
Q I noticed in this *AJ we will also
receipt that the HERMOSISIMA present the
last delivery of accused, your
the sum of P55 Honor.
*Q Why did you
million was made not ask for a
on January 30. receipt on the *AJ DEL ROSARIO
Do we first and second
understand from deliveries? "Q From whom
you that this date did you receive
January 30 is the President's
A Because I know
erroneous? memorandum
that the delivery
was not marked Exhibit
A Yes, sir, that complete yet, "1"? Or more
January 30 is your Honor. precisely, who
erroneous. I handed you this
noticed it only memorandum?
*PJ
afterwards. This
GARCHITORENA
should be A Mrs. Fe Roa
January 31st, sir. Gimenez, your
*Q So you know
Honor.
that the total
PROS VIERNES
amount to be
290 | P a g e
 Q Did you ask particular *AJ DEL ROSARIO
Mrs, Fe Gimenez disbursement?
for what purpose Did you file any
the money was A I was just told written protest
being asked? to bring it to the with the manner
Office of the with which such
A The money was President, your payment was
in payment for Honor. being ordered?
the debt of the
MIA Authority to *AJ DEL ROSARIO A No, your
PNCC, your Honor.
Honor. *Q Was that
normal *Q Why not?
*Q If it was for procedure for
the payment of you to pay in A Because with
such obligation cash to the Office that instruction
why was there no of the President of the President
voucher for obligations of to me, I followed,
prepared to the MIAA in your Honor.
cover such payment of its
payment? In obligation to *Q Before
other words, why another entity? receiving this
was the delivery
memorandum
of the money not WITNESS Exhibit "1", did
covered by any
the former
voucher?
A No, your President Marcos
Honor, I was just discuss this
A The instruction following the maitter with
to me was to give Order to me of you?
it to the Office of the President.
the President,
A Yes, your
your Honor.
*PJ Honor.
GARCHITORENA
*PJ
*Q When was
GARCHITORENA
*Q So the Order that?
was out of the
*Q Be that as it ordinary? A He called me
may, why was
up earlier, a
there no voucher
A Yes, your week before
to cover this
Honor. that, that he

291 | P a g e
 wants to me pay verbal instruction *Q Did you not
what I owe the for you to pay inquire, if not
PNCC directly to MIAA's obligation from the
his office in cash, with PNCC, did President, at
your Honor. you not on your least from Mrs.
own accord Gimenez why this
*PJ already prepare procedure has to
GARCHITORENA the necessary be followed
papers and instead of the
*Q By "I OWE ", documents for regular
you mean the the payment of procedure?
MIAA? that obligation?
A No, sir.
WITNESS A He told me
verbally in the *AJ DEL ROSARIO
telephone that
A Yes, your
the Order for the *Q Why did you
Honor.
payment of that not ask?
obligation is
*AJ DEL ROSARIO
forthcoming,
A I was just
your Honor. I will
*Q And what did ordered to do
receive it.
you say in this this thing, your
discussion you Honor.
*Q Is this the first
had with him?
time you
*AJ
received such a
A I just said, "Yes, HERMOSISIMA
memorandum
sir, I will do it/" from the
*Q You said there
President?
*Q Were you the was an "I OWE
one who asked YOU"?
A Yes, your
for a Honor.
memorandum to A Yes, your
be signed by Honor.
*Q And was that
him?
the last time also
*Q Where is that
that you received
A No, your "I OWE YOU"
such a
Honor. now?
memorandum?

*Q After A All I know is

A Yes, your
receiving that that we owe
Honor.
292 | P a g e
 PNCC the amount A I think it is President, your
of P99.1 million, partly Honor.
your Honor. government,
MIAA owes PNCC your Honor. *Q Do you know
that amount. the President or
*PJ Chairman of the
*Q Was this GARCHITORENA Board of PNCC?
payment covered
by receipt from *Q That is the A Yes, your
the PNCC? former CDCP? Honor.

A It was not A Yes, your "Q How was the

covered, your Honor. obligation of
Honor. MIAA to PNCC
*AJ incurred. Was it
*Q So the HERMOSISIMA through the
obligation of President or
MIAA to PNCC *Q Why were Chairman of the
was not, for the you not made to Board?
record, cancelled pay directly, to
by virtue of that the PNCC A PNCC was the
payment? considering that one that
you are the constructed the
A Based on the Manager of MIA MIA, your Honor.
order to me by at that time and
the former the PNCC is a *Q Was the
President Marcos separate obligation
ordering me to corporation, not incurred through
pay that amount an adjunct of the President or
to his office and Malacañang? Chairman of the
then the Board or
mechanics will WITNESS President of the
come after, your PNCC? In other
Honor. words, who
A I was just
basing it from the signed the
*Q Is the PNCC a Order of contract between
private Malacanang to PNCC and MIAA?
corporation or pay PNCC
government through the A Actually, we
entity? Office of the inherited this
obligation, your
293 | P a g e
 Honor. The one Malacañang was *Q Prior to 1986?
who signed for not the creditor?
this was the A Yes, your
former Director A I saw nothing Honor.
of BAT which is wrong with that
General Singzon. because that is *Q Can you tell
Then when the coming, from the us when you
MIA Authority President, your became the
was formed, all Honor. Manager of MIA?
the obligations of
BAT were *Q The amount A I became
transferred to was not a joke, Manager of MIA
MIAA. So the amounting to way back, late
accountabilities P55 million, and 1968, your
of BAT were you agreed to Honor.
transferred to deliver money in
MIAA and we are this amount *Q Long before
the ones that are through a mere the MIA was
going to pay, receipt from the constituted as an
your Honor. private independent
secretary? authority?
*Q Why did you
agree to pay to A I was ordered A Yes, your
Malacañang by the President, Honor.
when your your Honor.
obligation was
with the PNCC? *PJ
*PJ GARCHITORENA
GARCHITORENA
A I was ordered
by the President *Q And by 1986,
*Q There is no you have been
to do that, your
question and it running the MIA
Honor.
can be a matter for 18 years?
of judicial
*Q You agreed to knowledge that
the order of the WITNESS
you have been
President with the MIA for
notwithstanding A Yes, your
sometime?
the fact that this Honor.
was not the
A Yes, your
regular course or *Q And prior to
Honor.
your Joining the

294 | P a g e
 MIA, did you ever officer of the *Q Here, you
work for the Games and were just a
government? Amusement member of the
Board? Board?
A No, your
Honor. A I was, your A Yes, your
Honor. Honor.
*Q So, is it
correct for us to *Q As Chairman *Q So you were
say that your you were running not running the
joining the MIA in the Games and commission?
1968 as its Amusement
Manager was Board? A Yes, your
your first Honor.
employment A Yes, your
,with the Honor. *Q Any other
government? entity?
*Q What else,
A Yes, your what other A No more, your
Honor. government Honor.
positions did you
*Q While you occupy that *Q As far as you
were Manager of time? can recall,
MIA, did you besides being the
have other A I was also Manager of the
subsequent Commissioner of MIA and later the
concurrent the Game Fowl MIAA for
positions in the Commission, approximately 18
government your Honor. years, you also
also? ran the Games
*PJ and Amusement
A I was also the GARCHITORENA Board as its
Chairman of the executive officer?
Games and *Q That is the
Amusement cockfighting? A Yes, your
Board, your Honor.
Honor.
WITNESS
*Q And you were
*Q But you were a commissioner
A Yes, your
not the executive only of the Came
Honor.
or operating
295 | P a g e
 Fowl that COA has *Q Sometimes,
Commission? reasons for its regardless of the
procedure and amount?
A Yes, your we learn to adopt
Honor. to them? A Yes, your
Honor.
*Q Who was WITNESS
running the *Q Now, you
commission at A Yes, your have P55 million
that time? Honor. which you were
ordered to
A I forgot his *Q As a matter of deliver in cash,
name, but he fact, sometimes not to the
retired already, we consider it creditor of the
your Honor. inefficient, particular credit,
sometimes we and to be
*Q All of us who consider it delivered in
joined the foolish, but we armored cars to
government, know there is be acknowledged
sooner or later, reason in this only by a receipt
meet with our apparent of a personal
Resident COA madness of the secretary. After
representative? COA and so we almost 18 years
comply? in the
government
A Yes, your
A Yes, your service and
Honor.
Honor. having had that
much time in
*PJ
dealing with COA
GARCHITORENA *Q And more
people, did it not
than anything
occur to you to
*Q And one of else the COA is
call a COA
our unfortunate ever anxious for
representative
experience (sic) is proper
and say, "What
when the COA documentation
will I do here?"
Representative and proper
comes to us and supporting
papers? A I did not, your
says: "Chairman
Honor.
or Manager, this
cannot be". And A Yes, your
Honor. *PJ
we learn later on
GARCHITORENA
296 | P a g e
 *Q Did you not Manager's A Yes, your
think that at least checks? Honor.
out of prudence,
you should have A Yes, your *PJ
asked the COA Honor. GARCHITORENA
for some
guidance on this *Q Of course we Under these
matter so that had no circumstances,
you will do it intimation at that did you not
properly? time that Mr. entertain some
Marcos will win apprehension
WITNESS the elections but that some
even then, the disloyal
A What I was Daily Express, employees might
going to do is, which was leak you out and
after those things considered to be banner headline
I was going to tell a newspaper it in some
that delivery friendly to the mosquito
ordered by the Marcoses at that publications like
President to the time, would the Malaya at
COA, your Honor. occasionally that time?
come with so-
*Q That is true, called expose, is WITNESS
but what that not so?
happened here is A No, your
that you and Mr. A Yes, your Honor.
Dabao or you and Honor.
Mr. Peralta *PJ
signed requests *Q And worst, GARCHITORENA
for issuance of you had the so-
Manager's checks called mosquito I bring this up
and you were press that would because we are
accommodated always come out trying to find out
by the PNB Office with the real or different areas of
at Nichols imagined scandal fear. We are in
without any in the the government
internal government and and we in the
documentation place it in the government fear
to justify your headline, do you the COA and we
request for recall that? also fear the
press. We might
297 | P a g e
 get dragged into A Yes, your Thank you for the
press releases on Honor. correction. Even
the most P1 million only.
innocent thing. *Q Is that not How much more
You believe that? quite a fearful with P5 million
experience to inside the trunk
A Yes, your you ? of your car, was
Honor. that not a
A I did not think nervous
*Q And usually of that at that experience?
our best defense time, your Honor.
is that these A As I have said,
activities are *PJ your Honor, I
properly GARCHITORENA never thought of
documented? that.
"Q You did not
A Yes, your think it fearful to PJ
Honor. be driving along GARCHITORENA
Roxas Boulevard
*Q In this with P25 million Thank you very
particular in the trunk of much, Mr.
instance, your your car? Tabuena. You are
witnesses have excused. . . . 42
told us about WITNESS
three (3) (PERALTA)
different trips A We have
from Nichols to security at that (He testified on direct examination that he co-signed
Aguado usually time your Honor. with Tabuena a memorandum request for the
late in the day issuance of the Manager's Check for P5 Million upon
almost in movie order of Tabuena and that he [Peralta] was aware
ATTY. ANDRES
style fashion. I that MIAA had an existing obligation with PNCC in
mean, the money the amount of around P27 Million. He affirmed
Your Honor, the
being loaded in having accompanied Tabuena at the PNB Villamor
P25 million was
the trunk of your Branch to withdraw the P5 Million, but denied
in the armored
official car and having misappropriated for his own benefit said
car; only P5
then you had a amount or any portion thereof.)
million was in the
back-up truck
trunk of his car.
following your CROSS-
car? EXAMINATION BY
*PJ
PROS VIERNES
GARCHITORENA

298 | P a g e
 Q Will you please A That is the only Was that marked
tell the occasion I signed, in evidence?
Honorable Court sir.
why was it WITNESS
necessary for you Q Did you say
to co-sign with you were Yes, your Honor.
Mr. Tabuena the ordered by Mr.
request for Tabuena to sign *PJ
issuance of the request? GARCHITORENA
Manager's check
in the amount of A Yes, sir, and I What exhibit?
P5 million? think the order is
part of the
WITNESS
A At that time I exhibits and
was the Acting based on that
Financial Services I have here a
order, I co-signed
Manager of in the request for copy, your
MIAA, sir, and all Honor. This was
the issuance of
withdrawals of the order and it
Manager's check
funds should was marked as
in favor of Mr.
have my exhibit "N".
Luis Tabuena.
signature
because I was PROS VIERNES
PROS VIERNES
one of the
signatories at It was marked as
Q Was there a
that time. Exhibit "M", your
separate written
Honor.
order for you to
Q As Acting co-sign with Mr.
Financial Services Tabuena? Q How did you
Manager of know there was
MIAA, you always an existing
WITNESS
co-sign with Mr. liability of MIAA
Tabuena in in favor of PNCC
A Yes, sir, an
similar requests at that time?
order was given
for the issuance
to me by Mr.
of Manager's A Because prior
Tabuena.
checks by the to this
PNB? memorandum of
*PJ
Mr. Tabuena, we
GARCHITORENA
prepared the
financial

299 | P a g e
 statement of month because Continue.
MIAA as of there will be a
December 31, Board of PROS VIERNES
1985 and it came Directors
to my attention Meeting and the Q You made
that there was an Financial mention of a
existing liability Statement of the request for
of around prior month will Escalation Clause
P27,999,000.00, be presented and by former
your Honor. discussed during Minister Ongpin.
the meeting. Did you
Q When was that personally see
Financial *PJ that request?
Statement GARCHITORENA
prepared? A When this
*Q This matter of order coming
A I prepared it preparing from Mr.
around January Financial Tabuena was
22 or 24, Statement was shown to me, I
something like not an annual was shown a
that, of 1986, sir. activity but a copy, sir. I have
monthly activity? no file because I
Q Is it your usual just read it.
practice to A Yes, your
prepare the Honor. Q It was Mr.
Financial Tabuena who
Statement after *Q This Financial showed you the
the end of the Statement you letter of Minister
year within three prepared in Ongpin?
(3) weeks after January of 1986
the end of the recapitulated the A Yes, sir.
year? financial
condition as of *PJ
A Yes, sir, it was a the end of the GARCHITORENA
normal year?
procedure for the
And that will be
MIAA to prepare A Yes, your Exhibit?
the Financial Honor.
Statement on or
ATTY. ANDRES
before the 4th PJ
Friday of the GARCHITORENA
300 | P a g e
 Exhibit "2" and A Yes, sir. two (2) peerless
"2-A", your boxes,
Honor. Q Bundles of how
much per Q And you also
PROS VIERNES bundle? went with Mr.
Tabuena to
Q You also stated A If I remember Aguado?
that you were right, the bundles
with Mr. Tabuena consisted of A No, sir, I was
when you P100s and P50s, left behind at
withdrew the sir. Nichols. After it
amount of P5 was placed at the
million from the Q No P20s and trunk of the car
PNB Extension P10s? of Mr. Tabuena, I
Office at was left behind
Villamor? A Yes, sir, I think and I went back
it was only P100s to my office at
A Yes, sir. and P50s. MIA.

Q Why was it *PJ Q But the fact is

necessary for you GARCHITORENA that, this P5
to go with him on million was
that occasion? withdrawn at
*Q If there were
passed 5:00
other
A Mr. Tabuena o'clock in the
denominations,
requested me to afternoon?
you can not
do the counting recall?
by million, sir. So A I started
what I did was to counting it I think
A Yes, your
bundle count the at around 4:30,
Honor.
P5 million and it sir. It was after
was placed in office hours. But
PROS VIERNES
two (2) peerless then I was there
boxes. at around 4:00
Q In how many o'clock and we
boxes were those started counting
Q Did you
bills placed? at around 4:30
actually
participate in the p.m. because
A The P5 million they have to
counting of the
were placed in place it in a
money by
bundles? room, which is
301 | P a g e
 the office of the paper works in the PNCC had to
Manager at that the office, sir. be paid in cash?
time.
Q So, even if it WITNESS
Q And Mr. was already after
Tabuena left for 5:00 o'clock in A Based on the
Malacañang after the afternoon, order of
5:00 o'clock in you still went President Marcos
the afternoon of back to your that we should
that date? office at MIA? pay in cash, it
was not based on
A Yes, sir. After A Yes, sir. the normal
we have counted procedure, your
the money, it was PROS VIERNES Honor.
placed in the
peerless boxes That will be all, *Q And, as Acting
and Mr. Tabuena your Honor. Financial Services
left for Manager, you
Malacanang. were aware that
PJ
GARCHITORENA all disbursements
PROS VIERNES should be
covered by
Redirect?
Q And you vouchers?
yourself,
ATTY. ESTEBAL
returned to your A Yes, your
office at MIA? Honor, the
No redirect, your
payments should
Honor.
WITNESS be covered by
vouchers. But
*PJ then, inasmuch
A Yes, sir.
GARCHITORENA as what we did
was to prepare a
Q Until what time
Questions from request to the
do you hold
the Court. PNB, then this
office at the
can be covered
MIA?
*AJ DEL ROSARIO by Journal
Voucher also.
A Usually I over-
*Q Did you not
stayed for one (1)
consider it as odd *Q Was such
or two (2) hours
that your payment of P5
just to finish the
obligation with million covered
302 | P a g e
 by a Journal Journal Voucher, Tabuena, the
Voucher? your Honor. receipt given by
Mrs. Fe Roa
A Yes, your *PJ Gimenez, your
Honor. GARCHITORENA Honor. Inasmuch
as the payment
*Q Did you *Q In other should be made
present that words, the through the
Journal Voucher recording was Office of the
here in Court? made directly to president, I
the Journal? accepted the
receipt given by
A We have a
Mrs. Fe Gimenez
copy, your WITNESS
to Mr. Tabuena.
Honor.
A Yes, your
*Q After
*Q Do you have a Honor.
receiving that
copy or an
receipt, did you
excerpt of that *Q There are no
prepare the
Journal Voucher other separate
necessary
presented in documents as
supporting
Court to show part of the
documents,
that payment? application for
vouchers, and
Manager's
use that receipt
A We have a copy Check?
as a supporting
of the Journal
document to the
Voucher, your A Yes, your voucher?
Honor. Honor, there was
none.
A Your Honor, a
*Q Was this
Journal Voucher
payment of P5 *AJ DEL ROSARIO was prepared for
million ever
that.
recorded in a *Q After the
cashbook or payment was *Q How about a
other accounting made, did your disbursement
books of MIAA ? office receive any voucher?
receipt from
A The payment of PNCC?
A Inasmuch as
P5 million was
this was a
recorded in a A I was shown a request for
receipt by Mr. Manager's check,
303 | P a g e
 no disbursement What is the approved by the
voucher was ground for proper
prepared, your impropriety? authorities ?
Honor.
ATTY. ESTEBAL A Your Honor,
*AJ DEL ROSARIO what we did was
This is not to send a request
*Q Since the covered in the for a Manager's
payment was direct check to the PNB
made on January examination, and based on the
31, I986, and that secondly, I don't request of Mr.
was very close to think there was Tabuena and the
the election held any basis, your order of Mr.
in that year, did Honor. Tabuena was
you not entertain based on the
any doubt that *PJ Order of
the amounts GARCHITORENA President
were being used Marcos.
for some other Considering the
purpose? withdrawal of the *PJ
question, just GARCHITORENA
ATTY. ESTEBAL make the
objection on *Q In your
With due respect record. capacity as
to the Honorable Financial Services
Justice, we are *AJ Manager of the
objecting to the HERMOSISIMA MIAA, did you
question on the not think it
ground that it is proper to have
*Q As a Certified
improper. this transaction
Public
covered by a
Accountant and
*AJ DEL ROSARIO disbursement
Financial
voucher?
Manager of the
I will withdraw MIAA, did you
the question. not consider it WITNESS
proper that a
*PJ check be issued A Based on my
GARCHITORENA only after it is experience,
covered by a payments out of
disbursement cash can be
voucher duly made through
304 | P a g e
 cash vouchers, or consider that Philippines can
even though legal? transfer funds
Journal Vouchers, from one office
or even through ATTY. ESTEBAL to another and
credit memo, the PNCC is a
your Honor. With due respect quasi
to the Honorable government
*AJ Justice, the entity at that
HERMOSISIMA question calls for time.
a conclusion of
*Q This was an the witness. *AJ
obligation of the HERMOSISIMA
MIAA to the *PJ
PNCC. Why did GARCHITORENA *Q Are you
you allow a saying that this
disbursement by Considering that transaction was
means of check tire witness is an made on the
in favor of Mr. expert, witness basis of that P.D.
Luis Tabuena, may answer. which you
your own referred to?
manager?
WITNESS
A I am not aware
A We based the of the motive of
A The order of
payment on the the President,
president Marcos
order of Mr. but then since he
was legal at that
Tabuena because is the President
time because the
that was the of the
order was to pay
order of Philippines, his
PNCC the amount
President Marcos order was to pay
of P5 million
to pay PNCC the PNCC
through the
through the through the
Office of the
Office of the Office of the
President and it
President and it President, your
should be paid in
should be paid in Honor.
cash, your Honor.
cash, your Honor.
And at that time,
I know for a fact *Q As Financial
*Q You are also that there Manager, why
supposed to pay was an existing did you allow a
only on legal P.D. wherein the payment in cash
orders. Did you President of the when ordinarily
Republic of the payment of an
305 | P a g e
 obligation of otherwise not misleading
MIAA is recorded. because what the
supposed to be witness stated is.
paid in check? WITNESS ..

A I caused the A Yes, your *PJ

payment through Honor. GARCHITORENA
the name of Mr.
Tabuena because *Q Therefore, Be careful in your
that was the when you said objection
order of Mr. that a Journal because the
Tabuena and also Voucher here is witness
he received an proper, you are understands the
order coming saying it is proper language you are
from the only because of speaking, and
President of the the exceptional therefore, you
Philippines at nature of the might be
that time, your transactions? coaching him.
Honor.
A Yes, your ATTY. ESTEBAL
*PJ Honor.
GARCHITORENA No, your Honor. I
*Q In other am also an
*Q Mr. Peralta, words, as an accountant that
are not Journal Accountant, you is why I could say
Vouchers merely would not that. . .
entries in the normally
Journals to authorize such a *PJ
correct certain movement of GARCHITORENA
statements of money unless it is
accounts earlier properly Please be simple
made in the documented? in your objection.
same journal?
ATTY. ESTEBAL ATTY. ESTEBAL
In other words,
really what you
With due respect The question is
are telling us is
to the Honorable misleading on the
that, a Journal
Presiding Justice, ground that what
Voucher is to
I think the the witness
explain a
question is stated earlier is
transaction was
306 | P a g e
 that the Journal *Q we are not the amount of P5
Voucher in this talking of million. Inasmuch
particular case whether or not as there is also an
was supported, there was a escalation clause
your Honor. liability. What we of P99.1 million,
are saying is, is the payment of
*PJ the order of the P5 million is fully
GARCHITORENA General Manager covered by those
by itself existing
Overruled, may adequate with no documents.
answer. other supporting
papers, to justify *PJ
the movement of GARCHITORENA
WITNESS
funds?
A The transaction You keep
A Yes, your flooding us with
was fully
Honor. The order details we are
documented
of Mr. Luis not asking for.
since we have
Tabuena was We are not
the order of the
based on our asking you
General Manager
existing liability whether or not
at that time and
of there was valid
the order of
P27,931,000.00, obligation. We
President
inasmuch as we are not asking
Marcos, your
have that liability you about the
Honor.
and I was shown escalation clause.
the order of We are asking
*Q Are you
President Marcos you whether or
saying the Order
to pay P5 million not this
of the General
through the particular order
Manager is an
Office of the of Mr. Tabuena is
adequate basis
President, I an adequate
for the
considered the basis to justify
movement of
order of Mr. Luis the movement of
money?
Tabuena, the funds?
order of
A Yes, your President Marcos WITNESS
Honor, because and also the
at that time we existing liability
have also a When we pay,
of P27 million
recorded liability your Honor, we
sufficient to pay
of P27 million. always look for
307 | P a g e
 the necessary A As far as I am Appropriation
documents and concerned, your Act is concerned?
at that time I Honor, inasmuch
know for a fact as we have a WITNESS
that there was liability and I was
this existing shown the Order A Because at that
liability. of President time, your Honor,
Marcos to pay I have knowledge
*PJ PNCC through his that the
GARCHITORENA office, I feel that President is
the order of the authorized
When we ask General through a
questions and Manager, the Presidential
when we answer order of Decree to
them, we must President transfer
listen to the Marcos, and also government
question being the funds from one
asked and not to memorandum of office to another.
whatever you Minister Ongpin
wanted to say. I are sufficient to
*PJ
know you are cause the
GARCHITORENA
trying to protect payment of P5
yourself. We are million.
*Q Under the
aware of your Appropriation
statement that *PJ
Act. Are
there are all of GARCHITORENA
payments of
these debts of the
memoranda. *Q This MIAA covered by
Presidential the
*Q By your Decree which Appropriation
disbursement of authorizes the Act?
such amount, President to
you are saying transfer funds
A I think the
that the order of from one
liability was duly
Mr. Tabuena by department to
recorded and
itself is another, is this
appropriations to
adequate? not the one that
pay the amount
refers to the
is. . . .
WITNESS realignment of
(interrupted)
funds insofar as
the

308 | P a g e
 *PJ Mr. Estebal, will balance each
GARCHITORENA you include in other, is it not?
your
*Q Tell me memorandum A Yes, your
honestly, is your what are the Honor.
answer Decrees
responsive to the authorizing this *Q So that when
question or are movement of disbursements of
you just throwing funds? funds are made,
words at us in they are made by
the hope that we ATTY. ESTEBAL authority of not
will forget what only one person
the question is? Yes, your Honor. alone so that
nobody will
A No, your *PJ restrain him?
Honor. GARCHITORENA
A Yes, your
*Q Are you *Q It is true that Honor.
telling us that the President Marcos
debts incurred by was the *Q These checks
MIAA ate President, but he and balances
covered by the was not an exist in an entity
Appropriations officer of the so that no one
Act so that the MIAA, was he? person can
payment of this dispose of funds
debt would be in A No, your in any way he
the same level as Honor. likes?
the realignment
of funds A Yes, your
*Q In fact, for
authorized the Honor.
purposes of
President? Or are
internal control,
you telling as you
you have *Q And in fact,
did not read the
different officers the purpose for
Decree?
and different having two (2)
officials in any signatories to
A I was aware of company either documents and
that Decree, your government or negotiable
Honor. private, which documents is for
are supposed to the same
*PJ check and purpose?
GARCHITORENA
309 | P a g e
 A Yes, your therefore, I will manner with
Honor. not sign it"., if in which they were
your opinion the disposed?
*PJ disbursement is
GARCHITORENA not proper? A Yes, your
Honor.
*Q In other A Yes, your
words, the co- Honor. *Q Did you
signatories submit a written
counter check *Q Therefore, as protest to the
each other? a co-signatory, manner in which
you expected to such amount was
WITNESS exercise your being disposed
judgment as to of?
A Yes, your the propriety of a
Honor. particular A A written
transactions? protest was not
*Q In your case, made, your
you would be the A Yes, your Honor, but I
counter check for Honor. called the
Mr. Tabuena? attention of Mr.
*Q And this is Tabuena that
something you since this
A Yes, your
know by the payment was
Honor.
nature of your upon the order of
position and President
*Q In the other
because you are Marcos, then I
words, even if
a Certified Public think as
Mr. Tabuena is
Accountant? President he can
the Manager, you
do things which
as Financial
A Yes, your are not ordinary.
Services Manager
and as counter Honor.
*Q If you did not
signatory are in a
*AJ DEL ROSARIO prepare a written
position to tell
protest, did you
Mr. Tabuena, "I
at least prepare a
am sorry, you are *Q You admit
memorandum for
my superior but that the payment
the record that
this of P5 million and
this was an extra-
disbursement is P50 million were
ordinary
not proper and, unusual in the
transaction?
310 | P a g e
 A I called the
attention of Mr.
Tabuena that this
was an extra-
ordinary
transaction and
no written note,
your Honor.
PJ
GARCHITORENA
Thank you very
much Mr.
Peralta, you are
excused. . . . 43
This Court has acknowledged the right of a trial
judge to question witnesses with a view to satisfying
his mind upon any material point which presents
itself during the trial of a case over which he
presides. 44 But not only should his examination be
limited to asking "clarificatory" questions, 45 the right
should be sparingly and judiciously used; for the rule
is that the court should stay out of it as much as
possible, neither interfering nor intervening in the
conduct of the trial.46 Here, these limitations were
not observed. Hardly in fact can one avoid the
impression that the Sandiganbayan had allied itself
with, or to be more precise, had taken the cudgels
for the prosecution in proving the case against
Tabuena and Peralta when the Justices cross-
examined the witnesses, their cross- examinations
supplementing those made by Prosecutor Viernes
and far exceeding the latter's questions in length.
The "cold neutrality of an impartial judge"
requirement of due process was certainly denied
Tabuena and Peralta when the court, with its
overzealousness, assumed the dual role of
magistrate and advocate. In this connection, the
observation made in the Dissenting Opinion to the
311 | P a g e
effect that the majority of this Court was "unduly
disturbed" with the number of court questions
alone, is quite inaccurate. A substantial portion of
the TSN was incorporated in the majority opinion not
to focus on "numbers" alone, but more importantly
to show that the court questions were in the interest
of the prosecution and which thus depart from that
common standard of fairness and impartiality. In
fact, it is very difficult to be, upon review of the
records, confronted with "numbers" without
necessarily realizing the partiality of the Court. In
"US v. De Sisto" (2 Cir., 1961, 289 F 2d 833), for
example, a new trial was required because the trial
judge, as in this case, indulged in extensive
questioning of defendant and his witnesses, and the
reviewing court also had to amplify on "numbers" to
bolster this. It was pointed out in the "De Sisto" case
that the judge asked 3,115 questions of all
witnesses, the prosecutor asked but 1,381, defense
counsel 3,330. The judge's questions to the
defendant De Sisto totalled 306, the prosecutor's
347, and the defense counsel's, 201. After referring
to these figures, the court stated:
. . . It is indeed an impressive
proportion, but no such
mathematical computation is of
itself determinative. However,
taking all this in conjunction with
the long and vigorous examination
of the defendant himself by the
judge, and the repeated belittling
by the judge of defendant's efforts
to establish the time that Fine left
the pier, we fear that in its zeal for
arriving at the facts the court here
conveyed to the jury too strong an
impression of the court's belief in
the defendant's probable guilt to
permit the jury freely to perform
its own function of independent
determination of the facts. . . .
The majority believes that the interference
by the Sandiganbayan Justices was just too
excessive that it cannot be justified under
the norm applied to a jury trial, or even
under the standard employed in a non-jury
trial where the judge is admittedly given
more leeway in propounding questions to
clarify points and to elicit additional
relevant evidence. At the risk of being
repetitious, we will amplify on this via some
specific examples. Based on the evidence on
record, and on the admission of Tabuena
himself, the P55 million was delivered to
the President's Office thru Mrs. Gimenez, in
obedience to the Presidential directive. One
Sandiganbayan Justice, however, hurled the
following questions to Peralta:
AJ DEL ROSARIO
Q: Since the
payment was
made on January
31, 1986, and
that was very
close to the
election held in
that year, did you
not entertain any
doubt that the
amounts were
being used for
some other
purposes?
ATTY. ESTEBAL
 With due respect Nothing from the preceding questions of that a Journal
to the Honorable counsels or of the court would serve as Voucher here is
Justice, We are basis for this question. How then, can this proper, you are
objecting to the be considered even relevant? What is the saying it is proper
question on the connection between the payment made to only because of
ground that it is the President's office and the then the exceptional
improper. forthcoming presidential "snap election"? In nature of the
another instance, consider the following transactions?
AJ DEL ROSARIO questions of Presiding Justice Garchitorena:
xxx xxx xxx
I will withdraw *PJ
the question. GARCHITORENA *Q In other
words, as an
PJ *Q Mr. Peralta, Accountant, you
GARCHITORENA are not Journal would not
Vouchers merely normally
What is the entries in the authorize such a
ground for Journals to movement of
impropriety? correct certain money unless it is
statements of properly
accounts earlier documented?
ATTY. ESTEBAL
made in the
same journal? ATTY. ESTEBAL
This is not
covered in the
xxx xxx xxx With due respect
direct
examination, and to the Honorable
secondly, I don't *Q In other Presiding Justice,
think there was words, really I think the
any basis, Your what you are question is
Honor. telling us is that, misleading
a Journal because what the
Voucher is to witness stated is .
PJ
explain a ..
GARCHITORENA
transaction was
otherwise not *PJ
Considering the
recorded. GARCHITORENA
withdrawal of the
question, just
xxx xxx xxx Be careful in your
make the
objection on objection
record. *Q Therefore, because the
when you said witness
312 | P a g e
 understands the WITNESS You keep
language you are flooding us with
speaking, and A The transaction details we are
therefore, you was fully not asking for.
might be documented We are not
coaching him. since we have asking you
the order of the whether or not
ATTY. ESTEBAL General Manager there was valid
at that time and obligation. We
No, your Honor. I the order of are not asking
am also an President you about the
accountant that Marcos, your escalation clause.
is why I could say Honor. We are asking
that . . . you whether or
*Q Are you not this
saying the Order particular order
*PJ
of the General of Mr. Tabuena is
GARCHITORENA
Manager is an an adequate
adequate basis basis to justify
Please be simple
for the the movement of
in your objection.
movement of funds?
money?
ATTY. ESTEBAL
*PJ
*Q We are not GARCHITORENA
The question is
talking of
misleading on the
whether or not When we ask
ground that what
there was a questions and
the witness when we answer
liability. What we
stated earlier is
are saying is, is them, we must
that the Journal
the order of the listen to the
Voucher in this
General Manager question being
particular case
by itself asked and not to
was supported,
adequate with no whatever you
your Honor.
other supporting wanted to say. I
papers, to justify know you are
*PJ trying to protect
the movement of
GARCHITORENA yourself. We are
funds?
aware of your
Overruled may statement that
*PJ
answer. there are all of
GARCHITORENA

313 | P a g e
 these the Mr. Estebal, will
memoranda. Appropriation you include in
Act? your
*Q By your memorandum
disbursement of *PJ what are the
such amount, GARCHITORENA Decrees
you are saying authorizing this
that the order of *Q Tell me movement of
Mr. Tabuena by honestly, is your funds?
itself is answer
adequate? responsive to the ATTY. ESTEBAL
question or are
*PJ you just throwing Yes, your Honor.
GARCHITORENA words at us in
the hope that we *PJ
*Q This will forget what GARCHITORENA
Presidential the question is?
Decree which *Q It is true that
authorizes the xxx xxx xxx President Marcos
President to was the
transfer funds *Q Are you President, but he
from one telling us that the was not an
department to debts incurred by officer of the
another, is this MIAA are MIAA, was he?
not the one that covered by the
refers to the Appropriations *Q In fact, for
realignment of Act so that the purposes of
funds insofar as payment of this internal control,
the debt would be in you have
Appropriation the same level as different in
Act is concerned? the realignment officers and
of funds different officials
*PJ authorized the in any company
GARCHITORENA President? Or are either
you telling as you government or
*Q Under the did not read the private, which
Appropriation Decree? are supposed to
Act. Are check and
payments of *PJ balance each
debts of the GARCHITORENA other, is it not?
MIAA covered by
314 | P a g e
 *Q So that when counter check for How can these questions be considered
disbursements of Mr. Tabuena? clarificatory when they clearly border more
funds are made, on cross-examination questions? Thus, the
they are made by *Q In other Dissenting Opinion's focus on the distinction
authority of not words, even if between the two kinds of trial to justify the
only one person Mr. Tabuena is Sandiganbayan's active participation in the
alone so that the Manager, you examination of petitioners Tabuena and
nobody will as Financial Peralta and witness Monera, with due
restrain him? Services Manager respect, appears insignificant to this case.
and as counter Let it, therefore, be emphasized anew that:
*Q These checks signatory are in a
and balances position to tell A trial judge should not participate
exist in an entity Mr. Tabuena, "I in the examination of witnesses as
so that no one am sorry, you are to create the impression that he is
person can my superior but allied with the prosecution.48
dispose of funds this
in any way he disbursement is We doubt not that the sole motive
likes? not proper and, of the learned judge was to
therefore, I will ascertain the truth of the
*Q And in fact, not sign it.", if in transaction, but it is never proper
the purpose for your opinion the for a judge to discharge the duties
having two (2) disbursement is of a prosecuting attorney. However
signatories to not proper? anxious a judge may be for the
documents and enforcement of the law, he should
negotiable *Q Therefore, as always remember that he is as
documents is for co-signatory, you much judge in behalf of the
the same are expected to defendant accused of crime, and
purpose? exercise your whose liberty is in jeopardy, as he
judgment as to is judge in behalf of the state, for
*PJ the propriety of a the purpose of safeguarding the
GARCHITORENA particular interests of society. 49
transaction ?
*Q In other Ordinarily it is not good practice
words, the co- *Q And this is for the presiding judge himself to
signatories something you examine witnesses at length. The
counter check know by the circumstances may be such in a
each other? nature of your given case as to justify the court in
position and so doing. . . . This court, however,
*Q In your case, because you are has more than once said that the
you would be the a Certified Public examination of witnesses is the
Accountant? 47 more appropriate function of

315 | P a g e
 counsel, and the instances are rare
and the conditions exceptional
which will justify the presiding
judge in conducting an extensive
examination. It is always
embarrassing for counsel to object
to what he may deem improper
questions by the court. Then, in
conducting a lengthy examination,
it would be almost impossible for
the judge to preserve a judicial
attitude. While he is not a mere
figurehead or umpire in a trial, and
it is his duty to see that justice is
done, he will usually not find it
necessary to conduct such
examinations. The extent to which
this shall be done must largely be a
matter of discretion, to be
determined by the circumstances
of each particular case, but in so
doing he must not forget the
function of the judge and assume
that of an advocate. . . 50
While it is true that the manner in
which a witness shall be examined
is largely in the discretion of the
trial judge, it must be understood
that we have not adopted in this
country the practice of making the
presiding judge the chief inquisitor.
It is better to observe our time-
honored custom of orderly judicial
procedure, even at the expense of
occasional delays. . . . The judge is
an important figure in the trial of a
cause, and while he has the right,
and it is often his duty, to question
witnesses to the end that justice
shall prevail, we can conceive of no
316 | P a g e
other reason, for him to take the
trial of the cause out of the hands
of counsel. 51
The examination of witnesses is
the more appropriate function of
counsel, and it is believed the
instances are rare and the
conditions exceptional in a high
degree which will justify the
presiding judge in entering upon
and conducting an extended
examination of a witness, and that
the exercise of a sound discretion
will seldom deem such action
necessary or advisable. 52
He [the judge] may properly
intervene in a trial of a case to
promote expedition, and prevent
unnecessary waste of time, or to
clear up some obscurity, but he
should bear in mind that his undue
interference, impatience, or
participation in, the examination of
witnesses, or a severe attitude on
his part toward witnesses,
especially those who are excited or
terrified by the unusual
circumstances of a trial, may tend
to prevent the proper presentation
of the cause, or the ascertainment
of the truth in respect thereto. 53
The impartiality of the judge — his
avoidance of the appearance of
becoming the advocate of either
one side or the other of the
pending controversy is a
fundamental and essential rule of
special importance in criminal
cases. . . 54
Our courts, while never unmindful
of their primary duty to administer
justice, without fear or favor, and
to dispose of these cases speedily
and in as inexpensive a manner as
is possible for the court and the
parties, should refrain from
showing any semblance of one-
sided or more or less partial
attitude in order not to create any
false impression in the minds of
the litigants. For obvious reasons,
it is the bounden duty of all to
strive for the preservation of the
people's faith in our courts.55
Time and again this Court has
declared that due process requires
no less than the cold neutrality of
an impartial judge. Bolstering this
requirement, we have added that
the judge must not only be
impartial but must also appear to
be impartial, to give added
assurance to the parties that his
decision will be just. The parties
are entitled to no less than this, as
a minimum guaranty of due
process. 56
We are well aware of the fear entertained by some
that this decision may set a dangerous precedent in
that those guilty of enriching themselves at the
expense of the public would be able to escape
criminal liability by the mere expedient of invoking
"good faith". It must never be forgotten, however,
that we render justice on a case to case basis, always
in consideration of the evidence that is presented.
Thus, where the evidence warrants an acquittal, as in urgent tenor for its execution
this case, we are mandated not only by the dictates constrains one to act swiftly
of law but likewise of conscience to grant the same. without question. Obedientia est
On the other hand, it does not follow that all those Separate Opinions legis essentia. . . .
similarly accused will necessarily be acquitted upon
reliance on this case as a precedent. For the decision What this suggests is that no one could
in this case to be a precedent, the peculiar disobey then President Marcos, a
circumstances and the evidence that led to the suggestion made more eloquent with the
DAVIDE, JR., J., dissenting:
petitioner's acquittal must also be present in quotation of the dissenting opinion of Mr.
subsequent cases. Justice Cruz in Development Bank of the
Last 20 September 1996 in Regala
Philippines v. Pundogar.3 That dissent
v. Sandiganbayan,1 this Court erected a barrier to
Furthermore, as between a mere apprehension of a cannot be used to justify the petitioners'
the constitutionally mandated task to recover ill-
"dangerous precedent" and an actual violation of "obedience," otherwise, this Court would
gotten wealth and in the punishment of those who
constitutionally enshrined rights, it is definitely the thus overturn the majority opinion in the
dirtied their hands with it. This the Court did by
latter that merits our immediate attention. For the said case and adopt the dissent as the new
impliedly granting immunity from civil suit or liability
most dangerous precedent arises when we allow rule.
under an expanded interpretation of the lawyer-
ourselves to be carried away by such fears so that it
client privilege, lawyers who were alleged to have
becomes lawful to sacrifice the rights of an accused Henceforth, all those similarly situated as the
acted as co-conspirators or dummies of certain
to calm the fearful. In our eagerness to bring to appellants or those who could simply provide any
parties in the acquisition of such wealth.
justice the malefactors of the Marcos regime, we reason for their compelled obedience to Mr. Marcos
must not succumb to the temptation to commit the can go scot-free. The meaning of EDSA and its
The acquittal decreed by the majority in the cases
greatest injustice of visiting the sins of the message for history would thus be obliterated. The
under consideration places another obstacle to such
wrongdoers upon an innocent. acquittal then perpetuates a sad day for this Court —
recovery and punishment by granting immunity from
a day of mourning for those who fought against the
any criminal liability those who were ordered by
WHEREFORE, in view of the foregoing, herein dictatorship and of triumph and joy for the dictator's
then President Marcos to disburse government
petitioners Luis A. Tabuena and Adolfo M. Peralta collaborators, nominees, associates, and friends.
funds for alleged payment of obligations. This is the
are hereby ACQUITTED of the crime of malversation
immediate impression anyone can get from the
as defined and penalized under Article 217 of the I cannot join the majority in these cases.
following sweeping pronouncement in
Revised Penal Code. The Sandiganbayan Decision of
the ponencia.2
October 12, 1990 and the Resolution dated My analysis of the ponencia indicates that the
December 20, 1991 are REVERSED and SET ASIDE. acquittal is based on the following:
In the case at bench, the order
emanated from the office of
SO ORDERED. 1. The accused-
the President and bears the
signature of the President himself, appellants
Narvasa, C.J., Vitug, Kapunan and Mendoza, JJ., the highest official of the land. It merely acted in
cocnur. carries with it the presumption obedience to an
that it was regularly issued. And on order by a
Regalado, Bellosillo, and Torres, Jr., JJ., pro hac vice. its face, the memorandum is superior for
patently lawful for no law makes some lawful
Hermosisima, Jr,., J., took no part. the payment of an obligation purpose; hence,
illegal. This fact, coupled with the they incur no
317 | P a g e
 criminal liability they are made the subject of assignments of error or question to a witness which might
pursuant to not.4 develop some material fact upon
Article 11(6) of which the judgment of the case
the Revised Penal I beg to disagree. should turn. So in a case where a
Code. trial judge sees that the degree of
First, there is no showing at all that the extensive credit which he is to give the
2. Even granting participation by the Justices of the Sandiganbayan in testimony of a given witness may
that the order questioning the appellants and their witness have an important bearing upon
was not for a indicated prejudgment of guilt, bias, hatred, or the outcome, there can be no
lawful purpose, hostility against the said appellants. On the contrary, question that in the exercise of a
they acted in the quoted portions of the questions propounded by sound discretion he may put such
good faith. the Justices manifest nothing but a sincere desire to questions to the witness as will
ferret out the facts to arrive at the truth which are enable him to formulate a sound
3. Their basic crucial in the determination of the innocence or guilt opinion as to the ability or
constitutional of the appellants. These Justices, as trial magistrates, willingness of the witness to tell
right to due have only exercised one of the inherent rights of a the truth. The questions asked by
process was judge in the exercise of judicial function. What this the trial judge in the case at bar
violated by the Court stated eighty-three years ago in United States were in our opinion entirely
way the v. Hudieres5 needs repeating: proper, their only purpose being to
Sandiganbayan clarify certain obscure phases of
actively took part the case; and while we are inclined
It is very clear, however, from a
in the to agree with counsel that some of
review of the whole proceedings
questioning of a the observations of the trial judge
that the only object of the trial
defense witness in the course of his examination
judge in propounding these
and of the might well have been omitted,
questions was to endeavor as far
accused there is no reason whatever to
as possible to get at the truth as to
themselves. believe that the substantial rights
the facts to which the witnesses
of the defendants were in anywise
were testifying. The right of a trial
prejudiced thereby.
I judge to question the witnesses
with a view to satisfying his mind
upon any material point which That the appellants themselves did not find any
I shall first take up the third.
presents itself during the trial of a impropriety in the conduct of the Justices, or that if
case over which he presides is too they did they find nothing therein to prejudice their
The ponencia admits that the appellants did not raise
well established to need right to due process is best proven by their failure to
as an issue the Sandiganbayan's violation of their
discussion. The trial judges in this assign it as error.
right to due process; nevertheless, it ruled that such
failure is not an impediment to the consideration of jurisdiction are judges of both the
law and the facts, and they would Second, even granting arguendo that the conduct of
the violation "as additional basis for a reversal since
be negligent in the performance of the Justices constituted such a violation, the
the settled doctrine is that an appeal throws the
their duties if they permitted a appellants are forever estopped from raising that
whole case open to review, and it becomes the duty
miscarriage of justice as a result of issue on ground of waiver. This Court would risk an
of the appellate court to correct such errors as may
a failure to propound a proper accusation of undue partiality for the appellants
be found in the judgment appealed from whether
318 | P a g e
were it to give them premium for their torpor and of which he is the dispensed with
then reward them with an acquittal. Such waiver is owner or which and relinquished
conclusively proven in these cases. From the quoted belongs to him or without
portions of the testimonies of the witnesses for the to which he is infringing on any
appellants, it is clear that their counsel did not object legally entitled, public right, and
to, or manifest on record his misgivings on, the whether secured without
active participation of the Justices in the by contract, detriment to the
examination (or cross-examination) of the witnesses. conferred with community at
Nothing could have prevented the counsel for the statute, large. . . .
appellants from doing so. Then, too, as correctly or guaranteed by
pointed out in the ponencia, they made no constitution, Although the
assignment of error on the matter. provided such general rule is
rights and that any right or
In our jurisdiction, rights may be waived unless the privileges rest in privilege
waiver is contrary to law, public order, public policy, the individual, conferred by
morals, or good customs, or is prejudicial to a third are intended for statute
person with a right recognized by law.6 his sole benefit, or guaranteed by
do not infringe constitution may
In People v. Donato,7 this Court made the following on the rights of be waived, a
statement on what rights may be waived: others, and waiver in
further provided derogation of a
the waiver of the statutory right is
As to what rights and privileges may be waived, the
right or privilege not favored, and
authority is settled:
is not forbidden a waiver will be
by law, and does inoperative and
. . . the doctrine
not contravene void if it infringes
of waiver extends
public policy; and on the rights of
to rights and
the principle is others, or would
privileges of any
recognized that be against public
character, and,
everyone has a policy or morals
since the word
right to waive, and the public
"waiver" covers and agree to interest may be
every
waive, the waived.
conceivable right,
advantage of a
it is the general
law or rule made While it has been
rule that a
solely for the stated generally
person may
benefit and that all personal
waive any matter
protection of the rights conferred
which affects his
individual in his by statute
property, and
private capacity, and guaranteed
any alienable
if it can be by
right or privilege
319 | P a g e
 constitution may the second may We hereby rule that the right to
be waived, it has be. bail is another of the constitutional
also been said rights which can be waived. It is a
that It is "competent for a person to right which is personal to the
constitutional waive a right guaranteed by the accused and whose waiver would
provisions Constitution, and to consent to not be contrary to law, public
intended to action which would be invalid if order, public policy, morals, or
protect property taken against his will. 10 good customs, or prejudicial to a
may be waived, third person with a right
and even some of This Court has recognized waivers recognized by law.
the constitutional of constitutional rights such as, for
rights created to example, the right against In the cases below, the perceived violation, if at all it
secure personal unreasonable searches and existed, was not of the absolute totality of due
liberty are seizures; 11 the right to counsel and process, but more appropriately of the right to
subjects of to remain silent; 12 and the right to an impartial trial, which is but an aspect of the
waiver.8 be heard. 13 guarantee of due process. 14 I submit that the right
to an impartial trial is waivable.
In Commonwealth vs. Petrillo,9 it Even the 1987 Constitution
was held: expressly recognizes a waiver of II
rights guaranteed by its Bill of
Rights Rights. Section 12(1) of Article III I also disagree with the view of the majority that all
guaranteed to thereof on the right to remain the requisites of the sixth justifying circumstance in
one accused of a silent and to have a competent and Article 11 of the Revised Penal Code are present. I
crime fall independent counsel, preferably of submit that the 8 January 1986 Memorandum of
naturally into his own choice states: President Marcos can by no means be considered a
two classes: (a) "lawful" order to pay P55 million to the PNCC as
those in which . . . These rights alleged partial payment of the MIAA's account to the
the state, as well cannot be waived former. The alleged basis of such Memorandum is
as the accused, is except in writing the 7 January 1985 Memorandum of Trade and
interested; and and in the Industry Minister Roberto Ongpin, which even
(b) those which presence of confirms the absence of any factual basis for the
are personal to counsel. order of payment of P55 million:
the accused,
which are in the In this connection, please be
This provision merely particularizes
nature of informed that Philippine National
the form and manner of the
personal Construction Corporation (PNCC),
waiver; it, nevertheless, clearly
privileges. Those formerly CDCP, has
suggests that the other rights may
of the first class accomplishment billings on the
be waived in some other form or
cannot be MIA Development Project
manner provided such waiver will
waived; those of aggregating P98.4 million, inclusive
not offend Article 6 of the Civil
Code. of accomplishments for the
320 | P a g e
 aforecited contracts. In accordance escalation claims due to budgetary amount of P93.9 million, the net amount due the
with contract provisions, constraints. PNCC was only P4.5 million.
outstanding advances totalling
P93.9 million are to be deducted The MIA Project has been However, in view of the approval by then President
from said billings which will leave a completed and operational as far Marcos of Ongpin's request "for a deferment of the
net amount due to PNCC of only back as 1982 and yet residual repayment of PNCC's advances to the extent of P30
P4.5 million, thus: amounts due to PNCC have not million," only P63.9 million of PNCC's advances was
been paid, resulting in undue to be deducted from the accomplishment billings of
At the same time, PNCC has burden to PNCC due to additional P98.4 million. The net amount due thus became
potential escalation claims cost of money to service its P34.5 million. Hence, as pointed out by the
amounting to P99 million in the obligations for this contract. Sandiganbayan, if any payments were due under
following states of Ongpin's Memorandum they would only be for that
approved/evaluation: To allow PNCC to collect partially amount (P34.5 million). The Order of then President
its billings, and in consideration of Marcos to withdraw has, therefore, exceeded by
— Approved by its pending escalation billings, may P20.5 million. Clearly, the order of payment of P55
Price Escalation we request for His Excellency's million had no factual and legal basis and was
Committee approval for a deferment of the therefore unlawful.
(PEC) but repayment of PNCC's advances to
pending for lack the extent of P30 million III
of funds P 1.9 corresponding to about 30% of
million P99.1 million in escalation claims Not an iota of good faith was shown in the conduct
of PNCC, of which P32.5 million has of the appellants.
— Endorsed by been officially recognized by
project MIADP consultants but could not Being responsible accountable officers of the MIAA,
consultants and be paid due to lack of fundings. they were presumed to know that, in light of "the
currently being undeferred portion of the repayment" of PNCC's
evaluated by PEC Our proposal will allow BAT to pay advances in the amount of P63.9 million, the MIAA's
30.7 million PNCC the amount of P34.5 million unpaid balance was only P34.5 million. They also
out of existing MIA Project funds. ought to know the procedure to be followed in the
— Submitted by This amount represents the excess payment of contractual obligations. First and
PNCC directly to of the gross billings of PNCC of foremost there were the submission by the PNCC of
PEC P98.4 million over the undeferred its claims with the required supporting documents
and currently portion of the repayment of and the approval of the claims by the appropriate
under evaluation advances of P63.9 million. approving authority of MIAA. When then President
66.5 million Marcos ordered immediate payment, he should not
————— If Ongpin's memorandum is given full faith, it is clear have been understood as to order suspension of the
T o t a l P99.1 that PNCC's "accomplishment billings" for work accepted budgeting, accounting, and auditing rules
million accomplished, including accomplishments on the on the matter. Parenthetically, it may be stated here
"supplemental contracts" (whose authority therefor that although President Marcos was a dictator, he
There has been no funding was just sought for), aggregated to P98.4 million. was reported to be, and even projected himself as, a
allocation for any of the above Since there were advances given to PNCC in the total "faithful" advocate of the rule of law. As a matter of
321 | P a g e
fact, he did not hesitate to issue a decree, letter of
instruction, or any presidential issuance in
anticipation of any planned actions or activities to
give the latter the facade or semblance of legality,
wisdom, or propriety. When he made the order to
appellant Tabuena, President Marcos must only be
understood to order expeditious compliance with
the requirements to facilitate immediate release of
the money. There was no way for Tabuena to
entertain any fear that disobedience to the order
because of its unlawfulness or delay in the execution
of the order due to compliance with the
requirements would cause his head or life. He
offered no credible evidence for such fear. This Court
should not provide one for him. That Tabuena served
Mr. Marcos until the end of the latter's regime and
even beyond only proved a loyalty not based on fear
but on other considerations.
Moreover, the manner the appellant effected the
withdrawal was most unusual, irregular, and
anomalous. He has not shown any evidence that
what he did was the usual practice in his office.
What happened in this case showed the appellants'
complicity as principals by direct participation in the
malversation of the MIAA's funds. The appellants
should, therefore, be thankful to the Sandiganbayan
for holding them liable therefor only through
negligence.
I vote then to AFFIRM in toto the assailed decision.
Padilla, Melo and Panganiban, JJ., concur.
ROMERO, J., dissenting:
Obedience, rightly directed, is a virtue well-worth
cultivating — obedience of children to their elders;
obedience to lawful authority by citizens; obedience
322 | P a g e
to the behests of what is highest and finest in one's
self.
Misguided, such as indiscriminate obeisance to
questionable mandates, no matter if emanating from
authoritative figures whose slightest whisper and
scribbled orders are law, this can lead man to
perdition.
In government, a pliant bureaucracy that is
disinclined to resist unethical, immoral, even
downright illegal directives from "above" is easily
corrupted and can only bring disrepute to the entire
system. In this context, can subordinate public
officials like herein petitioner escape criminal
prosecution by the simple expedient of claiming that
they were merely following orders from a superior?
This disquisition will demonstrate that certain
requisites are indispensable before anyone can claim
immunity from penal sanctions for seemingly
justifiable acts.
This dissenting opinion will narrate the facts for the
sake of accuracy for the ponencia seems to have
overlooked or glossed over vital circumstances which
make the conclusion embodied herein irresistible.
Petitioners were charged with violation of Article
217 of the Revised Penal Code (the Code) for alleged
malversation of a total of P55 million from the public
funds of the Manila International Airport Authority
(MIAA). The informations filed on three separate
dates in 1986 accused them, as accountable officers,
of intentionally withdrawing said amount for the
ostensible purpose of paying a non-existent
obligation of MIAA to the Philippine National
Construction Corporation (PNCC), but which they
misappropriated and converted for their personal
use and benefit.
In their defense, petitioners claimed they acted in
good faith and in compliance with a verbal and later,
a written order from no less than former President
Ferdinand E. Marcos. In a Presidential Memorandum
(the Marcos Memorandum) dated January 8, 1986,
the latter allegedly commanded petitioner Tabuena,
in his capacity as General Manager of MIAA, "to pay
immediately the Philippine National Construction
Corporation, thru this Office (Office of the
President), the sum of FIFTY FIVE MILLION
(P55,000,000.00) PESOS in cash as partial payment of
MIAA's account with said Company mentioned in a
Memorandum of (Trade and Industry) Minister
Roberto Ongpin to this Office dated January 7, 1985 .
. . ."1 (The Ongpin Memorandum). On the
assumption that MIAA indeed had a due and
demandable debt to PNCC for work done on the
airport, Tabuena, with the help of Gerardo G. Dabao
and Adolfo M. Peralta, MIAA Assistant General
Manager and Financial Services Department Acting
Manager, respectively, made three withdrawals from
the account of MIAA with the Philippine National
Bank first, on January 10, 1986 for P25 million, then
on January 16, 1986 for another P25 million and
lastly, on January 31, 1986 for P5 million. The three
manager's checks covering the withdrawals were all
applied for and issued in the name of Tabuena.
Curiously, while the checks were issued by the MIA
extension office of PNB, they were encashed at the
Villamor Air Base branch. Each time the cash was
delivered directly to the office of Marcos' private
secretary, Fe Roa-Gimenez. The latter issued a
receipt2 signed by her but only after the last
delivery. No PNCC receipt was ever given to
petitioners.
On October 22, 1990, the Sandiganbayan's First
Division rendered a decision finding petitioners
guilty.
Petitioners raise two issues, namely, that they were
charged with intentional malversation (which they
labelled as malversation by direct appropriation) but
were convicted of malversation by negligence, and
that they acted in good faith.
As regards the first argument, the variance between
the crime charged and that proved by the
prosecution is immaterial, as stated by the ponente.
As regards the second issue, it is argued that good
faith is a valid defense in malversation for it negates
criminal intent. Petitioners claim that when they
committed the acts complained of, they were merely
following then President Marcos' oral and written
directives. They rely on Article 11, paragraph 6 of the
Code which states, inter alia:
Art. 11. Justifying circumstances. —
The following do not incur any
criminal liability:
xxx xxx xxx
6. Any person who acts in
obedience to an order issued by a
superior for some lawful purpose.
For an act to be justified under the abovequoted
provision, therefore, three requisites must concur:
(a) an order must have been issued by a superior; (b)
the order must be for a lawful purpose; and (c) the
means used by the subordinate in carrying out such
order must itself be lawful.3
In the case at bar, Tabuena was allegedly ordered by
President Marcos to pay the PNCC from MIAA's fund,
thus ostensibly meeting the first requirement but
not the others. For there is a qualification which
significantly changes the picture. The payment was
323 | P a g e
to be in cash and immediately made through the
Office of the President. It is to be pointed out that it
is one thing to be ordered to pay a due and
demandable obligation; it is another to make such
payment to someone other than the lawful obligee
and worse, when the subordinate is forced to breach
official channels to comply with the order.
It must be stressed that Tabuena and his co-accused,
Peralta and Dabao, disregarded standard operating
procedures in following the President's order. As
observed by the Sandiganbayan, "there were no
vouchers to authorize the disbursements in
question. There were no bills to support the
disbursement. There were no certifications as to the
availability of funds for an unquestionably staggering
sum of P55 Million." Disbursement vouchers are
specifically required under Sec. 4 (5) of Presidential
Decree No. 1445 (P.D. No. 1445), while the
certificate of availability of funds is needed to
comply with Sec. 47, Title I-B, Bk. V of the
Administrative Code of 19874 and Sec. 344 of the
Local Government Code of 1991.5 To compound the
duplicity, the checks, issued by one branch of PNB
were encashed in another — all made in cash
instead of by crossed check payable to PNCC!
Conspicuously, such cash outlay was made without
prior approval or authority of the Commission on
Audit.6 Finally, the last two payments were made
despite the non-issuance of a receipt for the first. In
fact, the receipt given after the delivery of the last
installment was not even issued by the PNCC, the
legal obligee and avowed recipient of the money.
Instead it emanated from the office of Roa-Gimenez,
a complete stranger to the alleged contract between
MIAA and PNCC, who did not even indicate in what
capacity she signed it. To compound the mystery,
the money was even delivered to her office, not in
Malacañang, but at nearby Aguado Street. The entire
process, done with haste and with a total disregard
of appropriate auditing requirements was, in the
words of petitioners themselves, an extraordinary
transaction," 7 admittedly "out of the ordinary" and
"not based on normal procedure."8
Disbursement of government funds, especially one
as gargantuan as the one made by petitioners, is a
complex process, unlike the basic over-the-counter
transaction that they purportedly made it to appear.
Far from being lawful, the payment of the alleged
obligation of MIAA to PNCC through the Office of the
President may at best be labelled as irregular. "The
term 'irregular expenditure' signifies an expenditure
incurred without adhering to established rules,
regulations, procedural guidelines, policies,
principles or practices that have gained recognition
in law. Irregular expenditures are incurred without
conforming with prescribed usages and rules of
discipline. There is no observance of an established
pattern, course, mode of action, behavior, or
conduct in the incurrence of an irregular
expenditure. . . . ."9
Specifically, disbursement of public funds must
conform with the following principles:
(1) No money shall be paid out of
the Treasury except in pursuance
of an appropriation made by law. 10
(2) No public money or property
shall be appropriated, applied,
paid, or employed, directly or
indirectly, for the use, benefit, or
support of any sect, church,
denomination, sectarian
institution, or system of religion, or
of any priest, preacher, minister, or
other religious teacher, or dignitary
as such, except when such priest,
preacher, minister, or dignitary is
assigned to the armed forces, or to
 any penal institution, or
government orphanage or
leprosarium. 11
(3) All money collected on any tax
levied for a special purpose shall
be treated as a special fund and
paid out for such purpose only. If
the purpose for which this special
fund was created has been fulfilled
or abandoned, the balance, if any,
shall be transferred to the general
funds of the Government. 12
(4) All resources of the government
shall be managed, expended or
utilized in accordance with law and
regulations and safeguarded
against loss or wastage through
illegal or improper disposition to
ensure efficiency, economy and
effectiveness in the operations of
government. The responsibility to
take care such policy is faithfully
adhered to rests directly with the
chief or head of the government
agency concerned. 13
(5) Disbursement or disposition of
government funds or property
shall invariably bear the approval
of the proper officials. 14
(6) Claims against government
funds shall be supported with
complete documentation. 15
(7) All laws and regulations
applicable to financial transactions
shall be faithfully adhered to. 16
324 | P a g e
(8) Generally accepted principles
and practices of accounting as well
as of sound management and fiscal
administration shall be observed,
provided that they do not
contravene existing laws and
regulations. 17
Assuming arguendo that petitioners acted in good
faith in following the President's order, undeniably,
they were negligent as found by the trial court. The
instructions in the President's order should have
sufficed to put any accountable head of an office,
Tabuena included, on guard. Why was he being
required to pay MIAA's obligation to the PNCC, if
indeed there were any, and not directly to the latter
but through the Office of the President? Why was
the entire transaction not coursed through proper
channels, viz., the accounting office? Why was such a
huge disbursement to be made in cash, instead of by
crossed check, which is not only safer, faster, and
more convenient, but in accord with auditing
requirements?
Obedience to a superior's order does not connote
blind obedience. Being the general manager of such
a mammoth organization like the MIAA, he should,
at the very least, have exercised ordinary prudence
by verifying with the proper official under him
whether the agency had indeed an outstanding
indebtedness to the PNCC before ordering any
payment to be made through official channels. Such
routine measures were cavalierly disregarded. The
whole process seemed no different from a petty,
personal transaction.
As evidence later revealed, PNCC's receivables from
MIAA amounted to P102,475,392.35, the bulk of
which comprised escalation charges. From that time
until Corazon C. Aquino assumed the Presidency, a
total of P44.4 million was paid, but only P2 million of
this in cash; the rest was set off or compensated
against other debts, or assigned to other creditors.
The financial records did not show that PNCC
received any sums of money from MIAA during the
period January to June, 1986 when the block
payments were being made in quarter millions. Only
on September 25, 1986, long after President Marcos
had gone, was an assignment of P23 million actually
made by MIAA in favor of PNCC. 18
Even the Ongpin Memorandum, which is the basis of
the Marcos Memorandum, failed to show where the
amount of P55 million cropped up. The former
contained, inter alia, the following matters: (a) it
requested the President's approval of Minister
Ongpin's recommendations "for eight (8)
supplemental contracts pertaining to the MIA
Development Project (MIADP) between the Bureau
of Air Transport (BAT) and Philippine National
Construction Corporation (PNCC), formerly CDCP, . . .
."; 19 (b) it informed the President that PNCC had
collectibles from MIAA only in the amount of P4.5
million, which is the difference between the
accomplishment billings on the MIADP totalling
P98.4 million and PNCC's advances of P93.9 million;
and (c) it informed the President that PNCC had
potential escalation claims against MIAA in the
amount of P99 million, "potential" because they
have yet to be approved by the Price Escalation
Committee (PEC).
The only remaining piece of evidence which would
show that MIAA owed PNCC anything as of the date
of the Marcos Memorandum is MIAA's balance
sheet, 20 which indicates its liability to PNCC as of
December 31, 1985 to be P27,931,000.00. 21 How
can petitioners claim to have acted in good faith
when they withdrew the P55 million from MIAA's
funds knowing fully well that the amount due PNCC
was only a little over half that amount, as shown by
their own evidence?
The ponencia states that ". . . . the good faith of
Tabuena . . . . was not at all affected even if it later
turned out that PNCC never received the money."
It is precisely our thesis that Tabuena did not act in
good faith in complying with the President's orders
because of the reasons aforesatated, summarized as
follows:
(a) The President's order was "out
of the ordinary" and "not based on
normal procedure," which would
have entailed making an
"extraordinary transaction," as
admitted by petitioners
themselves. This proves that they
were, at the time they received the
order, aware that paying MIAA's
supposed P55 million obligation to
PNCC through the Office of the
President in cash was
questionable.
(b) As the head of MIAA, Tabuena
should have been more cautious in
disbursing the funds. He did not
even stop to think about the
legality of the entire process even
when he did not receive any kind
of receipt for the first two
deliveries of money worth P50
million. When he did get a receipt,
it was not an official receipt from
PNCC, the legal creditor, but from
the President's private secretary. It
must also be noted that the cash
was all delivered to Gimenez' office
at Aguado St., not to her office at
Malacañang.
325 | P a g e
(c) Tabuena breached official
channels to procure the money.
There were no vouchers nor bills to
authorize or support the
disbursements. There was also no
certificate of availability of funds.
The payment was made in cash
without COA's approval, at a time
when the ceiling for cash payments
was merely P5,000.00. As stated
earlier, no official receipt from
PNCC supported the payment. The
entire process was "done with
haste and with a total disregard of
appropriate auditing
requirements."
As regards the payments to Roa-Gimenez, these
were absolutely unwarranted because whatever
"authority" she claimed to have emanated, not from
the creditor PNCC but from the President.
Petitioners were required by law to settle their
indebtedness with PNCC directly, the party in whose
favor the obligation was constituted. 22 The only
instance when such questionable payment could
have been valid was if it had redounded to PNCC's
benefit, which was not proved at all in this case. 23 As
creditor, the PNCC was not even bound to accept
payment, if any, from the President's private
secretary, the latter being a third person who had no
interest whatsoever in the discharge of MIAA's
obligation. 24
The ponencia states that the Marcos Memorandum
was "patently lawful for no law makes the payment
of an obligation illegal."
This statement is premised on the existence of an
established creditor-debtor relationship between the
payor and the payee. In this, case, however, the
obligor was being made to pay to a party other than
the legal obligee when no novation of the obligation
has taken place. How can such an arrangement be
possibly in accord with law?
The preceding established facts clearly show that
petitioners were remiss in discharging their duties as
accountable officers. As correctly observed by the
court a quo:
. . .(T)he Ongpin Memorandum
could not justify Pres. Marcos'
memorandum of January 8, 1986;
this in turn could not justify Luis
Tabuena's payment of P55 million
to Fe Roa Gimenez.
. . . (T)he amount which could be
payable by Tabuena in his capacity
as head of the MIAA in January of
1986 could not be in excess of
P27.931 million — until other
claims had been duly approved.
This approval, on the other hand,
could not come from the President
but from the Price Escalation
Committee (PEC) before which,
according to the Ongpin
Memorandum itself, these claims
for escalation had been submitted
for approval.
The PEC was not shown to have
approved these amounts as of the
time Tabuena made any of the
withdrawals for P55 million.
xxx xxx xxx
Tabuena says he had properly
accounted for the P55 million he
had withdrawn from the MIAA's
 funds. By this Tabuena means he
gave the money to Fe Roa
Gimenez, presumably in
representation of Pres. Ferdinand
Marcos.
Neither Pres. Marcos, however,
nor Fe Roa Gimenez was entitled
to receive or issue acquittance for
a debt in favor of the PNCC.
Tabuena's claim, therefore, that he
delivered the P55 million to her is
not properly accounting for P55
million.
In fact, when we come right down
to it, nobody has issued an
acquittance in behalf of the PNCC
for the P55 million paid by Luis
Tabuena. Since Tabuena says he
was paying P55 million to the
PNCC, it was incumbent upon him
to show a receipt from or in behalf
of the PNCC. Tabuena has shown
no receipt.
Tabuena was not authorized to
part with government money
without receipt
When Tabuena gave P55 million
intended for the PNCC to Fe Roa
Gimenez or to Pres. Marcos,
Tabuena was paying government
funds to persons not entitled to
receive those funds. He was,
therefore, guilty of malversation of
those funds.
xxx xxx xxx
326 | P a g e
Tabuena says he has accounted for
the money because he has told us
where the money went. But to
account, in the more proper use of
the term, injects a sense of
responsibility for the disposition of
funds for which one is answerable.
So when one asks if Tabuena has
accounted for the P55 million
belonging to the MIAA, the
question really is whether accused
Tabuena disposed of the sum in a
responsible manner consistent
with his duty. The answer must be
in the negative.
Payments must be delivered to
payees. Payments intended for the
PNCC must be delivered to the
PNCC or to someone authorized by
the PNCC to accept payments for
it. Neither Pres. Marcos nor Fe Roa
Gimenez are shown to have been
authorized to accept money for the
PNCC nor to deliver money to the
PNCC (or to any creditor of the
MIAA for that matter). In fact,
though Pres. Marcos may have
been the Supreme Magistrate of
the land and the chief enforcer of
the law, the law neither authorized
him to pay for the MIAA nor
to accept money for the PNCC.
Accused Tabuena's statement,
therefore, that he had presented
overwhelming evidence of the
delivery of the P55 million to Pres.
Marcos' private secretary does not
prove that he has accounted for
that money, that is, that he has
properly disposed of that sum
according to law.
On the contrary, what the evidence
shows is that accused Tabuena
delivered the P55 million to people
who were not entitled thereto,
either as representatives of MIAA
or of the PNCC.
It proves that Tabuena had
deliberately consented or
permitted through negligence or
abandonment, some other person
to take such public funds. Having
done so, Tabuena, by his own
narration, has categorically
demonstrated that he is guilty of
the misappropriation or
malversation of P55 million of
public funds. 25
Time and again, this Court has deferred to the
findings of fact of the trial court, owing to its
enviable position of having seen the physical
evidence and observed the witnesses as they
testified. We see no reason to depart now from this
policy.
Tabuena was also personally accountable for the
funds in his custody, being the head of a government
agency such as MIAA and discharging fiscal functions
as such. In this regard, the Manual on Certificate of
Settlement and Balances (Rev. 1993) (The Manual)
states, inter alia:
TITLE IV. ACCOUNTABILITY,
RESPONSIBILITY AND LIABILITY FOR
GOVERNMENT FUNDS AND
PROPERTY
 Government officials and
employees, in the discharge of
fiscal functions, shall ensure that
all government resources are
managed, expended and utilized in
accordance with law, rules and
regulations and safeguarded
against loss or wastage thru illegal
or improper disposition.
In the implementation of the
above functions, they shall be
guided by the following provisions:
Sec. 26. ACCOUNTABILITY FOR
GOVERNMENT FUNDS AND
PROPERTY
26.1. Every officer of any
government agency whose duties
permit or require the possession or
custody of government funds or
property shall be
accountable therefor and for the
safekeeping thereof in conformity
with law.
26.2 Every accountable officer shall
be properly bonded in accordance
with law.
Sec. 27. RESPONSIBILITY FOR
GOVERNMENT FUNDS AND
PROPERTY
The head of any agency of the
government is immediately and
primarily responsible for all
government funds and property
pertaining to his agency.
327 | P a g e
Persons entrusted with the
possession or custody of the funds
or property under the agency head
shall be immediately responsible to
him without prejudice to the
liability of either party to the
government.
Sec. 28. SUPERVISION OVER
ACCOUNTABLE OFFICERS
The head of any agency or
instrumentality of the national
government or any government-
owned or controlled corporation
and any other self-governing board
or commission of the
government shall exercise the
diligence of good father of a family
in supervising the accountable
officers under his control to
prevent the incurrence of loss of
government funds or property,
otherwise he shall be jointly and
severally liable with the person
primarily accountable therefor. . . .
Sec. 29. LIABILITY OF
ACCOUNTABLE, SUPERIOR AND
SUBORDINATE OFFICERS FOR
GOVERNMENT FUNDS
29.1 Every officer accountable for
government funds shall be
liable for alllosses resulting from
the unlawful deposit, use, or
application thereof and for all
losses attributable to negligence in
the keeping of the funds.
29.2 Liability of Superior Officers.
— A public officer shall not be
civilly liable for acts done in the
performance of his official
duties, unless there is a clear
showing of bad faith, malice or
gross negligence.
xxx xxx xxx
29.5 Liability of Subordinate
Officers. — No subordinate officer
or employee shall be civilly liable
for acts done by him in good faith
in the performance of his duties.
However, he shall be liable for
willful or negligent acts done by
him which are contrary to law,
morals, public policy and good
customs even if he acted under
order or instructions of his
superiors.
Sec. 30. LIABILITY FOR
UNLAWFUL/ILLEGAL
EXPENDITURES OR USES OF
GOVERNMENT FUNDS
30.1.1 Expenditures of government
funds or uses of government
property in violation of law or
regulations shall be
a personal liability of the official or
employee found to be directly
responsible therefor.
30.1.2 Every expenditure or
obligation authorized or incurred in
violation of law or of the annual
budgetary measure shall be
void. Every payment made in
 violation thereof shall be illegal
and every official or employee
authorizing or making such
payment, or taking part therein,
and every person receiving such
payment shall be jointly and
severally liable for the full amount
so paid or received. (Emphasis
supplied)
The ponente points out that our reference to the
Manual supports the view that Tabuena was only
civilly liable.
This is a misappreciation of the entire sense of the
dissent. It must be borne in mind that said reference
was made after the conclusion was reached that
Tabuena was indeed criminally liable for his acts. It is
hornbook knowledge that criminal liability carries
with it the civil, specially when, as in this case, the
latter arose from the former. Hence, the statement:
"Tabuena was also personally accountable for the
funds in his custody, . . . ."
Sections 29.2 and 29.5 of the Manual, which
the ponente uses to illustrate his point, actually
includes exceptions to the grant of immunity from
civil liability of a public officer for acts done in the
performance of his official duties: (a) The preceding
statement itself says that the acts must be done "in
the performance of his official duties;" (b) Sec. 29.2
exempts him from civil liability, "unless there is a
clear showing of bad faith, malice or gross
negligence;" and (c) Sec. 29.5 states that "he shall be
liable for willful or negligent acts done by him which
are contrary to law, morals, public policy and good
customs even if he acted under order or instructions
of his superiors." The quoted provisions have been
once more underscored herein.
328 | P a g e
The ponencia futher states that "(t)here is no
showing that Tabuena has anything to do
whatsoever with the execution of the MARCOS
Memorandum." But very clearly, the admitted facts
show that it was precisely Tabuena who
implemented or executed the said Memorandum.
The ponencia cites Acebedo where the accused was
acquitted after it was shown that it was actually the
latter's secretary who collected and converted the
money. Tabuena's case is starkly different, for here it
was Tabuena himself who personally turned over the
money to the President's secretary. It was done with
his full knowledge and consent, the obvious
irregularity thereof notwithstanding.
In petitioner Peralta's case, we again yield to the
factual findings of the trial court. It said:
. . . . The question is whether or not
Peralta properly signed the third
application for the issuance of a
Manager's Check drawn against
the MIAA's savings account with
the Villamor Office of the
Philippine National Bank.
At the time that accused Peralta
signed the request for the issuance
of a Manager's Check, he was the
Acting Financial Services Manager
of the MIAA and all withdrawals of
funds required is (sic) co-signature.
The reason for the designation of
more than one co-signatory is not
merely useless ceremony; it is to
serve as a counter check for the
propriety of the disbursement.
While, indeed, accused Luis
Tabuena was the highest official in
the MIAA and had authority to
disburse its funds, this authority
was not absolute. It had to be for
properly subsisting obligations and
the disbursement had to be against
funds existing for that purpose.
This is one reason for the need for
supporting documentation before
disbursements of funds are
authorized. And this is the special
need for finance officers such as
Adolfo Peralta, as Financial
Services Manager, to be co-
signatories (sic): to ascertain the
validity of the obligation and, in
this particular instance, the
existence of the balance to be
covered by the manager's check
the application for which had been
presented for his co-signature.
In this case, Adolfo Peralta speaks
of the existence of (the) P27.9
million liability in favor of the PNCC
as justification for his acts herein.
True enough, for that amount was
the liability as of December 31,
1985. As finance officer, however,
he could not claim ignorance of the
fact that as of January 29, 1986,
the date of the application for a
manager's check which he signed,
two previous manager's checks
worth P25 million each had already
been applied for and the total
amount of P50 million had already
been withdrawn . . . .
 It was only two weeks after these
two withdrawals when Peralta, as
Finance Services Manager,
participated in the authorization
for the disbursement of another P5
million. This last withdrawal
brought up the total of
withdrawals to P55 million for the
payment of a P27.9 million
obligation.
Thus while it is true, as Adolfo
Peralta claims, that there was a
liability in favor of the PNCC, there
was no way Peralta could disclaim
responsibility for the excessive
withdrawals to the extent of P5
million thereof allegedly to pay
that liability. There was no way
Peralta could justify his co-signing
the application for a manager's
check for P5 million on January 29,
1986.
The ponente cites a dissenting opinion of Justice
Isagani A. Cruz in Development Bank of the
Philippines v. Pandogar to uphold his ponencia. Need
we remind our respected colleague that the
corroborative value of a dissenting opinion is
minimal? Precisely, it supports a position contrary to,
and obviously unacceptable to the majority.
Petitioners were found guilty of malversation by
negligence, which is possible even if the charge was
for intentional malversation. This does not negate,
however, their criminal liability; it merely declares
that negligence takes the place of malice. Article 3 of
the Code provides the rationale when it explicitly
states that "felonies are committed not only by
means of deceit but also by means of fault."
329 | P a g e
The Sandiganbayan's finding that petitioners
converted and misappropriated the P55 million
cannot simply be brushed aside upon petitioners'
claim that the money was delivered in good faith to
the Office of the President under the mistaken
assumption that the President was entitled to
receive the same. They rely on the case of People
v. Fabian, 26 which declared that "(g)ood faith in the
payment of public funds relieves a public officer
from the crime of malversation." But the very same
decision also cites Article 217 to the effect that
malversation may be committed by an accountable
public officer by negligence if he permits any other
person to take the public funds or property in his
custody. It is immaterial if petitioners actually
converted or misappropriated MIAA's funds for their
own benefit, for by their very negligence, they
allowed another person to appropriate the same.
The fact that no conspiracy was established between
petitioners and the true embezzlers of the P55
million is likewise of no moment. The crime of
malversation, as defined under Article 217 of the
Code, 27 was consummated the moment petitioners
deliberately turned over and allowed the President's
private secretary to take custody of public funds
intended as payment of MIAA's obligations to the
PNCC, if obligation there was at all. That petitioner
Tabuena who was then General Manager of MIAA
personally and knowingly participated in the
misfeasance compounds the maleficence of it all.
Rank may have its privileges but certainly a blatant
disregard of law and administrative rules is not one
of them. It must be etched in the minds of public
officials that the underside of privileges is
responsibilities.
As accountable officers, petitioners clearly
transgressed administrative and legal bounds. Even
on the pretext of obeying a superior's seemingly
legitimate orders, their actuations can hardly be
justified. To rule otherwise would set an alarming
precedent where all that public officials who have
unlawfully enriched themselves at the people's
expense and those accused of graft and corruption
would have to do to exculpate themselves from any
wrongdoing would be to invoke Article 11, paragraph
6 of the Code, thus gaining instant immunity from
criminal prosecution.
Government officials, particularly heads of their
agencies who, by virtue of their exalted positions
exude power and authority but pay blind obeisance
to orders of those higher up in the bureaucratic
hierarchy regardless of the illegality, impropriety or
immorality of such orders, would do well to
internalize this prayer for national leaders delivered
by former Senate President Jovito R. Salonga in
Malacanang on November 24, 1996:
xxx xxx xxx
When they begin to think of how
much power they possess, help
them to know the many things that
are beyond their power — the
change of seasons, sun and rain,
moonlight and starlight and all the
wonders of Your creation;
When they are led to believe that
they are exempt from public
accountability, help them to know
that they are ultimately
accountable to You, the God of
truth and justice and mercy;
xxx xxx xxx
The ponencia makes the final observation that the
limitations on the right of judges to ask questions
during the trial were not observed by respondent
court; that the three Justices who heard the
testimonies asked 37 questions of witness Francis
Monera, 67 of Tabuena, and 41 of Peralta — more
than what the prosecutors and defense counsels
propounded.
While such numbers unduly disturbed the ponente,
it cannot be gainsaid that such action by the
members of the First Division of respondent
Sandiganbayan was, under the circumstances, not
only necessary and called for, but likewise legally
acceptable.
In the first place, even the ponente makes the
observation that petitioners did not raise this matter
as error. In other words, they did not feel prejudiced
by the respondent court's actuations; nor did they
construe the series of questions asked of them by
the Justices as indicative of any unfairness or
partiality violative of their right to due process.
Then, too, it must be noted that there is a difference
in the right of a judge in a non-jury system, like that
obtaining in the Philippines, to question witnesses or
parties themselves, and that of a judge in a jury trial.
The bulk of jurisprudence used in the ponencia was
decided in the United States, where the jury system
is extensively utilized in civil as well as in criminal
trials. In this regard, "(i)t has been noted that the
opinion of the judge, on account of his position and
the respect and confidence reposed in him and in his
learning and assumed impartiality, is likely to have
great weight with the jury, and such fact of necessity
requires impartial conduct on his part. The judge is a
figure of overpowering influence, whose every
change in facial expression is noted, and whose
every word is received attentively and acted upon
with alacrity and without question." 28
Thus, while a trial judge is expected to be
circumspect in his choice of words lest they be
330 | P a g e
construed as signs of partiality, he "is not, however,
required to remain silent and passive throughout a
jury trial;"29 he should, instead, "conduct a trial in an
orderly way with a view to eliciting the truth and to
attaining justice between the parties."30
Inasmuch as it is the jury which has the burden of
meting out justice, it is acceptable for a judge in a
jury trial to "ask any question which would be proper
for the prosecutor or defense counsel to ask so long
as he does not depart from a standard of fairness
and impartiality."31 "Questions designed to clarify
points and to elicit additional relevant
evidence, particularly in a non-jury trial, are not
improper." 32
The numerous questions asked by the court a
quo should have been scrutinized for any possible
influence it may have had in arriving at the assailed
decision. The true test for the appropriateness or
inappropriateness of court queries is not their
quantity but their quality, that is, whether the
defendant was prejudiced by such questioning.33 To
repeat, petitioners did not feel prejudiced by the
trial court's actions; otherwise, they would have
raised this issue in the instant petition.
The ponencia states that he is "well aware of the fear
entertained by some that this decision may set a
dangerous precedent in that those guilty of enriching
themselves at the expense of the public would be
able to escape criminal liability by the mere
expedient of invoking "good faith." Our position has
been either misinterpreted or misread for we do not
merely speak of "good faith." In fact, our main thrust
is that such a breed of people who enriched
themselves at the expense of the public might
handily use as an excuse or a justifying circumstance
to escape liability their having obeyed the "lawful
orders" of their superior under Article 11, paragraph
6 of the Revised Penal Code.
The ponente makes a plea towards the close of his
decision, that we should not act impulsively in the
instant case. "In our eagerness to bring to justice the
malefactors of the Marcos regime, we must not
succumb to the temptation to commit the greatest
injustice of visiting the sins of the wrongdoers upon
an innocent."
In our opinion, precisely, Tabuena and
Peralta are wrongdoers, guilty of acts punishable by
law. Needless to say, under our system of laws, they
must be meted out the corresponding penalty. We
draw attention to the fact that nowhere in this
dissent do we single out the so-called "malefactors
of the Marcos regime" alone. We addressed
ourselves to all who commit venalities at the
expense of the people, as defined and punished by
law but who try to justify their actions by invoking
the very law which they violated.
For the reasons stated above, I vote to affirm
petitioners' conviction by respondent court.
Padilla, Melo and Panganiban, JJ., concur.
PUNO, J., dissenting:
I join the Dissenting Opinion of Madam Justice
Flerida Ruth Romero where I find both right and
righteousness happily intersecting each other. I am,
however, constrained to write this brief dissent in
view of the impact of the majority decision to our
criminal justice system which many perceive leaves
much to be desired.
I
It should be immediately stressed that petitioners
were convicted of the crime of malversation by
negligence. The felony was committed by petitioners
not by means of deceit (dolo) but by fault (culpa).
According to Article 3 of the Revised Penal Code,
there is fault when the wrongful act results from
imprudence, negligence, lack of foresight, or lack of
skill. Justice J.B.L. Reyes explains the difference
between a felony committed by deceit and that
committed by fault in this wise: ". . . In intentional
crimes, the act itself is punished; in negligence or
imprudence, what is principally penalized is the
mental attitude or condition behind the act, the
dangerous recklessness, lack of care or foresight, the
imprudencia punible."1
In light of this well-carved distinction, the long
discourse of the majority decision hailing petitioners'
good faith or lack of intent to commit malversation is
off-line. To justify the acquittal of petitioners, the
majority should strive to show that petitioners did
not commit any imprudence, negligence, lack of
foresight or lack of skill in obeying the order of
former President Marcos. This is nothing less than a
mission impossible for the totality of the evidence
proves the utter carelessness of petitioners in the
discharge of their duty as public officials. The
evidence and their interstices are adequately
examined in the dissent of Madame Justice Romero
and they need not be belabored.
For the same reason, the majority cannot rely on the
doctrine of mistake of fact as ground to acquit
petitioners. It found as a fact that ". . . Tabuena
acted under the honest belief that the P55 million
was a due and demandable debt. . . ." This Court has
never applied the doctrine of mistake of fact when
negligence can be imputed to the accused. In the
old, familiar case of People vs. Ah Chong,2 Mr. Justice
Carson explained that ignorance or mistake of fact, if
such ignorance or mistake of fact is sufficient to
331 | P a g e
negative a particular intent which under the law is a
necessary ingredient of the offense charge (e.g., in
larceny animus furendi, in murder, malice, etc.),
cancels the presumption of intent and works an
acquittal, except in those cases where the
circumstances demand conviction under the penal
provisions touching criminal negligence. Hence, Ah
Chong was acquitted when he mistook his houseboy
as a robber and the evidence showed that his
mistake of fact was not due to negligence. In the
case at bar, the negligence of the petitioners
screams from page to page of the records of the
case. Petitioners themselves admitted that the
payments they made were "out of the ordinary" and
"not based on normal procedure."
As aforestated, the cornerstone of the majority
decision is its finding of good faith on the part of the
petitioners. Viewed from a more critical lens,
however, the evidence cannot justify a finding of
good faith. The violations of auditing rules are too
many yet the majority merely winks at them by
ruling that petitioner Tabuena ". . . did not have the
luxury of time to observe all auditing procedures of
disbursement considering the fact that the Marcos
Memorandum enjoined 'immediate compliance'
with the directive that he forward to the President's
Office the P55 million in cash." With due respect, I
am disquieted by the mischiefs that will be
mothered by this ruling. To begin with, the country
was no longer under martial rule in 1986 and
petitioners were under no compulsion to violate our
laws. It also ought to be obvious that the order for
immediate compliance even if made by the former
President cannot be interpreted as a green signal by
a subordinate official to disregard our laws. Indeed,
no person, not even the President can order the
violation of our laws under any excuse whatsoever.
The first and foremost duty of the President is to
uphold the sanctity of our laws. Thus, the
Constitution requires the President to take an oath
or affirmation where he makes the solemn pledge to
the people: "I do solemnly swear (or affirm) that I
will faithfully and conscientiously fulfill my duties as
President of the Philippines, preserve and defend its
Constitution, execute its laws, do justice to every
man, and consecrate myself to the service of the
Nation. . . .3 To be sure, the need for petitioners to
make an immediate payment is really not that
immediate. The facts show that former President
Marcos first called petitioner Tabuena by telephone
and asked him to make the payment. One week after
or on January 8, 1986, the former President issued a
written memorandum reiterating the order to pay.
Payments were made in three tranches — the first
on January 10, 1986, the second on January 16, 1986
and the third on January 31, 1986. Clearly then, it
took petitioner one month to comply with the Order.
Given the personnel of petitioner Tabuena in his
office, one month provides enough time to comply
with the rules. In any event, petitioners did not
request former President Marcos for additional time
to comply with the rules if they felt in good faith that
they needed more time. Petitioners short-circuited
the rules by themselves. Nothing in the Marcos
Memorandum compelled them to disregard the
rules. The Memorandum merely stated "Your
immediate compliance is appreciated". The language
of the Memorandum was as polite as it could be. I
fail to discern any duress in the request as the
majority did.
II
The determination of the degree of participation
that should be allowed to a judge in the questioning
of a witness is a slippery slope in constitutional law.
To a certain extent, I agree with the majority that
some of the questions propounded by the justices of
the respondent Court crossed the limits of propriety.
Be that as it may, I am not prepared to conclude with
certainty that the text and tone of the questions
denied petitioners the right to an impartial trial. Bias A The instruction PJ Garchitorena
is a state of mind which easily eludes evidence. On to me was to give
the basis of the evidence before us, we cannot hold it to the Office of Q So the Order
that we have plumbed the depth of prejudice of the the President, was out of the
justices and have unearthed their partiality. The your Honor. ordinary?
more telling evidence against the petitioners are
documentary in nature. They are not derived from PJ Garchitorena A Yes, your
the answers elicited by questions from the justices Honor.
which the majority, sua sponte, examined and Q Be that as it
condemned as improper. may, why was AJ del Rosario
there no voucher
III to cover this Q Did you file any
particular written protest
Finally, I can not but view with concern the disbursement? with the manner
probability that the majority decision will chill with which such
complaints againsts graft pending before the A I was just told payment was
respondent Court. From the majority decision, it is to bring it to the being ordered?
crystalline that petitioners blindly obeyed the Office of the
Marcos Memorandum despite its fatal and facial President, your A No, your
flaws. The majority even quotes these inculpatory Honor. Honor.
admissions of petitioner Tabuena, viz:4
AJ del Rosario Q Why not?
xxx xxx xxx
Q Was that A Because with
AJ del Rosario normal that instruction
procedure for of the President
xxx xxx xxx you to pay in to me, I followed
cash to the Office your Honor.
Q If it was for the of the President
payment of such for obligations of
xxx xxx xxx
obligation why the MIAA in
was there no payment of its
AJ Hermosisima
voucher to cover obligation to
such payment? In another entity?
Q Why were you
other words, why
not made to pay
was the delivery A No, your
directly to the
of the money not Honor, I was just
covered by any following the PNCC considering
that you are the
voucher? Order to me of
manager of MIA
the President.
at that time and

332 | P a g e
 the PNCC is a President should always be obeyed as if the In 1947, the United Nations General Assembly
separate President is above and beyond the law. I adopted a Resolution firmly entrenching the
corporation, not cannot accept this dangerous ruling even if I principle of moral choice, inter alia, as follows:2
an adjunct of look at it through the eyes of faith. One of
Malacanang? the gospels in constitutional law is that the The fact that a person acted
President is powerful but is not more pursuant to an order of his
A I was just paramount than the law. And in criminal government or of a superior does
basing it from the law, our catechism teaches us that it is not relieve him from responsibility
Order of the loyalty to the law that saves, not loyalty to under international law, provided a
Malacanang to any man. Let us not bid goodbye to these moral choice was in fact possible to
pay PNCC sacrosanct principles. him.
through the
Office of the Padilla, Melo and Panganiban, JJ., concur. In the Nuremberg trials, the defendants
President, your were military officers of the Third Reich who
Honor. PANGANIBAN, J., dissenting: were duty-bound to obey direct orders on pain of
court martial and death at a time when their country
xxx xxx xxx In the main, the majority ruled that Petitioners Luis was at war. Nonetheless, they were meted out death
Tabuena and Adolfo Peralta should be acquitted sentences by hanging or long-term imprisonments.
Q You agreed to because they were merely obeying the order of then In the present case, the accused are civilian
the order of the President Ferdinand E. Marcos to deliver "thru this officials purportedly complying with a memorandum
President Office, the sum of FIFTY FIVE MILLION of the Chief Executive when martial law had already
notwithstanding (P55,000,000.00) PESOS in cash as partial payment of been lifted and the nation was in fact just about to
the fact that this MIAA's account" with the Philippine National vote in the "snap" presidential election in 1986. The
was not the Construction Company. In their Dissenting Opinions, Sandiganbayan did not impose death but only
regular course or Justices Romero, Davide and Puno have shown how imprisonment ranging from seventeen years and one
Malacanang was weak and unpersuasive this ruling is under day to twenty years. Certainly a moral choice was
not the creditor? applicable Philippine laws and jurisprudence. I will not only possible. It was in fact available to the
not repeat their illuminative discussions. Let me just accused. They could have opted to defy the illegal
A I saw nothing stress three more points: order, with no risk of court martial or death. Or they
wrong with that could have resigned. They knew or should have
because that is (1) The defense of "obedience to a superior's order" known that the P55 million was to be paid for a debt
coming from the is already obsolete. Fifty years ago, the Nazi war that was dubious3 and in a manner that was
President, your criminals tried to justify genocide against the Jews irregular. That the money was to be remitted in cold
Honor. and their other crimes against humanity by alleging cash and delivered to the private secretary of the
they were merely following the orders of Adolf President, and not by the normal crossed check to
Hitler, their adored fuehrer. However, the the alleged creditor, gave them a moral choice to
In effect, petitioners' shocking submission is
International Military Tribunal at Nuremberg in its refuse. That they opted to cooperate compounded
that the President is always right, a
Judgment dated October 1, 1946,1 forcefully their guilt to a blatant conspiracy to defraud the
frightening echo of the antedeluvian idea
debunked this Nazi argument and clearly ruled that public treasury.
that the King can do no wrong. By allowing
the petitioners to walk, the majority has "(t)he true test . . . is not the existence of the order
validated petitioners' belief that the but whether moral choice was in fact possible."
333 | P a g e
(2) Resurrecting this internationally discredited Nazi
defense will, I respectfully submit, set a dangerous
precedent in this country. Allowing the petitioners to
walk deprives this Court of the moral authority to
convict any subaltern of the martial law dictator who
was merely "following orders." This ludicrous
defense can be invoked in all criminal cases pending
not only before this Court but more so before
inferior courts, which will have no legal option but to
follow this Court's doctrine.4
(3) Mercy and compassion are virtues which are
cherished in every civilized society. But before they
can be invoked, there must first be justice. The
Supreme Court's duty is to render justice. The power
to dispense pardon lies elsewhere. Verily, the
Constitution ordains a final conviction by the courts
before the President can exercise his power to wipe
away penalty.5 Such is the legal and natural
precedence and order of things: justice first before
mercy. And only he who sincerely repents his sin,
restitutes for it, and reforms his life deserves
forgiveness and mercy.
I therefore vote to AFFIRM the assailed
Sandiganbayan Decision onvicting the petitioners of
malversation.
Padilla, Melo and Panganiban, JJ., concur.
Separate Opinions
DAVIDE, JR., J., dissenting:
Last 20 September 1996 in Regala
v. Sandiganbayan,1 this Court erected a barrier to
the constitutionally mandated task to recover ill-
gotten wealth and in the punishment of those who
334 | P a g e
dirtied their hands with it. This the Court did by thus overturn the majority opinion in the
impliedly granting immunity from civil suit or liability said case and adopt the dissent as the new
under an expanded interpretation of the lawyer- rule.
client privilege, lawyers who were alleged to have
acted as co-conspirators or dummies of certain Henceforth, all those similarly situated as the
parties in the acquisition of such wealth. appellants or those who could simply provide any
reason for their compelled obedience to Mr. Marcos
The acquittal decreed by the majority in the cases can go scot-free. The meaning of EDSA and its
under consideration places another obstacle to such message for history would thus be obliterated. The
recovery and punishment by granting immunity from acquittal then perpetuates a sad day for this Court —
any criminal liability those who were ordered by a day of mourning for those who fought against the
then President Marcos to disburse government dictatorship and of triumph and joy for the dictator's
funds for alleged payment of obligations. This is the collaborators, nominees, associates, and friends.
immediate impression anyone can get from the
following sweeping pronouncement in I cannot join the majority in these cases.
the ponencia.2
My analysis of the ponencia indicates that the
In the case at bench, the order acquittal is based on the following:
emanated from the office of
the President and bears the 1. The accused-
signature of the President himself, appellants
the highest official of the land. It merely acted in
carries with it the presumption obedience to an
that it was regularly issued. And on order by a
its face, the memorandum is superior for
patently lawful for no law makes some lawful
the payment of an obligation purpose; hence,
illegal. This fact, coupled with the they incur no
urgent tenor for its execution criminal liability
constrains one to act swiftly pursuant to
without question. Obedientia est Article 11(6) of
legis essentia. . . . the Revised Penal
Code.
What this suggests is that no one could
disobey then President Marcos, a 2. Even granting
suggestion made more eloquent with the that the order
quotation of the dissenting opinion of Mr. was not for a
Justice Cruz in Development Bank of the lawful purpose,
Philippines v. Pundogar.3 That dissent they acted in
cannot be used to justify the petitioners' good faith.
"obedience," otherwise, this Court would
 3. Their basic
constitutional
right to due
process was
violated by the
way the
Sandiganbayan
actively took part
in the
questioning of a
defense witness
and of the
accused
themselves.
I judge to question the witnesses
I shall first take up the third.
The ponencia admits that the appellants did not raise
as an issue the Sandiganbayan's violation of their
right to due process; nevertheless, it ruled that such
failure is not an impediment to the consideration of
the violation "as additional basis for a reversal since
the settled doctrine is that an appeal throws the
whole case open to review, and it becomes the duty
of the appellate court to correct such errors as may
be found in the judgment appealed from whether
they are made the subject of assignments of error or
not.4
I beg to disagree.
First, there is no showing at all that the extensive
participation by the Justices of the Sandiganbayan in
questioning the appellants and their witness
indicated prejudgment of guilt, bias, hatred, or
hostility against the said appellants. On the contrary,
the quoted portions of the questions propounded by
the Justices manifest nothing but a sincere desire to
ferret out the facts to arrive at the truth which are
335 | P a g e
crucial in the determination of the innocence or guilt
of the appellants. These Justices, as trial magistrates,
have only exercised one of the inherent rights of a
judge in the exercise of judicial function. What this
Court stated eighty-three years ago in United States
v. Hudieres5 needs repeating:
It is very clear, however, from a
review of the whole proceedings
that the only object of the trial
judge in propounding these
questions was to endeavor as far
as possible to get at the truth as to
the facts to which the witnesses
were testifying. The right of a trial
with a view to satisfying his mind
upon any material point which
presents itself during the trial of a
case over which he presides is too
well established to need
discussion. The trial judges in this
jurisdiction are judges of both the
law and the facts, and they would
be negligent in the performance of
their duties if they permitted a
miscarriage of justice as a result of
a failure to propound a proper
question to a witness which might
develop some material fact upon
which the judgment of the case
should turn. So in a case where a
trial judge sees that the degree of
credit which he is to give the
testimony of a given witness may
have an important bearing upon
the outcome, there can be no
question that in the exercise of a
sound discretion he may put such
questions to the witness as will
enable him to formulate a sound
opinion as to the ability or
willingness of the witness to tell
the truth. The questions asked by
the trial judge in the case at bar
were in our opinion entirely
proper, their only purpose being to
clarify certain obscure phases of
the case; and while we are inclined
to agree with counsel that some of
the observations of the trial judge
in the course of his examination
might well have been omitted,
there is no reason whatever to
believe that the substantial rights
of the defendants were in anywise
prejudiced thereby.
That the appellants themselves did not find any
impropriety in the conduct of the Justices, or that if
they did they find nothing therein to prejudice their
right to due process is best proven by their failure to
assign it as error.
Second, even granting arguendo that the conduct of
the Justices constituted such a violation, the
appellants are forever estopped from raising that
issue on ground of waiver. This Court would risk an
accusation of undue partiality for the appellants
were it to give them premium for their torpor and
then reward them with an acquittal. Such waiver is
conclusively proven in these cases. From the quoted
portions of the testimonies of the witnesses for the
appellants, it is clear that their counsel did not object
to, or manifest on record his misgivings on, the
active participation of the Justices in the
examination (or cross-examination) of the witnesses.
Nothing could have prevented the counsel for the
appellants from doing so. Then, too, as correctly
pointed out in the ponencia, they made no
assignment of error on the matter.
In our jurisdiction, rights may be waived unless the privileges rest in privilege
waiver is contrary to law, public order, public policy, the individual, conferred by
morals, or good customs, or is prejudicial to a third are intended for statute
person with a right recognized by law.6 his sole benefit, or guaranteed by
do not infringe constitution may
In People v. Donato,7 this Court made the following on the rights of be waived, a
statement on what rights may be waived: others, and waiver in
further provided derogation of a
As to what rights and privileges may be waived, the the waiver of the statutory right is
authority is settled: right or privilege not favored, and
is not forbidden a waiver will be
by law, and does inoperative and
. . . the doctrine
not contravene void if it infringes
of waiver extends
public policy; and on the rights of
to rights and
the principle is others, or would
privileges of any
recognized that be against public
character, and,
everyone has a policy or morals
since the word
right to waive, and the public
"waiver" covers
and agree to interest may be
every
waive, the waived.
conceivable right,
advantage of a
it is the general
law or rule made While it has been
rule that a
solely for the stated generally
person may
benefit and that all personal
waive any matter
protection of the rights conferred
which affects his
individual in his by statute
property, and
private capacity, and guaranteed
any alienable
if it can be by
right or privilege
dispensed with constitution may
of which he is the
and relinquished be waived, it has
owner or which
without also been said
belongs to him or
infringing on any that
to which he is
public right, and constitutional
legally entitled,
without provisions
whether secured
detriment to the intended to
by contract,
community at protect property
conferred with
large. . . . may be waived,
statute,
or guaranteed by and even some of
constitution, Although the the constitutional
provided such general rule is rights created to
rights and that any right or secure personal

336 | P a g e
 liberty are to remain silent; 12 and the right to process, but more appropriately of the right to
subjects of be heard. 13 an impartial trial, which is but an aspect of the
waiver.8 guarantee of due process. 14 I submit that the right
Even the 1987 Constitution to an impartial trial is waivable.
9
In Commonwealth vs. Petrillo, it expressly recognizes a waiver of
was held: rights guaranteed by its Bill of II
Rights. Section 12(1) of Article III
Rights thereof on the right to remain I also disagree with the view of the majority that all
guaranteed to silent and to have a competent and the requisites of the sixth justifying circumstance in
one accused of a independent counsel, preferably of Article 11 of the Revised Penal Code are present. I
crime fall his own choice states: submit that the 8 January 1986 Memorandum of
naturally into President Marcos can by no means be considered a
two classes: (a) . . . These rights "lawful" order to pay P55 million to the PNCC as
those in which cannot be waived alleged partial payment of the MIAA's account to the
the state, as well except in writing former. The alleged basis of such Memorandum is
as the accused, is and in the the 7 January 1985 Memorandum of Trade and
interested; and presence of Industry Minister Roberto Ongpin, which even
(b) those which counsel. confirms the absence of any factual basis for the
are personal to order of payment of P55 million:
the accused, This provision merely particularizes
which are in the the form and manner of the In this connection, please be
nature of waiver; it, nevertheless, clearly informed that Philippine National
personal suggests that the other rights may Construction Corporation (PNCC),
privileges. Those be waived in some other form or formerly CDCP, has
of the first class manner provided such waiver will accomplishment billings on the
cannot be not offend Article 6 of the Civil MIA Development Project
waived; those of Code. aggregating P98.4 million, inclusive
the second may of accomplishments for the
be. We hereby rule that the right to aforecited contracts. In accordance
bail is another of the constitutional with contract provisions,
It is "competent for a person to rights which can be waived. It is a outstanding advances totalling
waive a right guaranteed by the right which is personal to the P93.9 million are to be deducted
Constitution, and to consent to accused and whose waiver would from said billings which will leave a
action which would be invalid if not be contrary to law, public net amount due to PNCC of only
taken against his will. 10 order, public policy, morals, or P4.5 million, thus:
good customs, or prejudicial to a
This Court has recognized waivers third person with a right At the same time, PNCC has
of constitutional rights such as, for recognized by law. potential escalation claims
example, the right against amounting to P99 million in the
unreasonable searches and In the cases below, the perceived violation, if at all it following states of
seizures; 11 the right to counsel and existed, was not of the absolute totality of due approved/evaluation:
337 | P a g e
 — Approved by its pending escalation billings, may
Price Escalation we request for His Excellency's
Committee approval for a deferment of the
(PEC) but repayment of PNCC's advances to
pending for lack the extent of P30 million
of funds P 1.9 corresponding to about 30% of
million P99.1 million in escalation claims
of PNCC, of which P32.5 million has
— Endorsed by been officially recognized by
project MIADP consultants but could not
consultants and be paid due to lack of fundings.
currently being
evaluated by PEC Our proposal will allow BAT to pay
30.7 million PNCC the amount of P34.5 million
out of existing MIA Project funds.
— Submitted by This amount represents the excess
PNCC directly to of the gross billings of PNCC of
PEC P98.4 million over the undeferred
and currently portion of the repayment of
under evaluation advances of P63.9 million.
66.5 million
————— If Ongpin's memorandum is given full faith, it is clear
T o t a l P99.1 that PNCC's "accomplishment billings" for work
million accomplished, including accomplishments on the
"supplemental contracts" (whose authority therefor
There has been no funding was just sought for), aggregated to P98.4 million.
allocation for any of the above Since there were advances given to PNCC in the total
escalation claims due to budgetary amount of P93.9 million, the net amount due the
constraints. PNCC was only P4.5 million.
The MIA Project has been However, in view of the approval by then President
completed and operational as far Marcos of Ongpin's request "for a deferment of the
back as 1982 and yet residual repayment of PNCC's advances to the extent of P30
amounts due to PNCC have not million," only P63.9 million of PNCC's advances was
been paid, resulting in undue to be deducted from the accomplishment billings of
burden to PNCC due to additional P98.4 million. The net amount due thus became
cost of money to service its P34.5 million. Hence, as pointed out by the
obligations for this contract. Sandiganbayan, if any payments were due under
Ongpin's Memorandum they would only be for that
To allow PNCC to collect partially amount (P34.5 million). The Order of then President
its billings, and in consideration of Marcos to withdraw has, therefore, exceeded by
338 | P a g e
P20.5 million. Clearly, the order of payment of P55
million had no factual and legal basis and was
therefore unlawful.
III
Not an iota of good faith was shown in the conduct
of the appellants.
Being responsible accountable officers of the MIAA,
they were presumed to know that, in light of "the
undeferred portion of the repayment" of PNCC's
advances in the amount of P63.9 million, the MIAA's
unpaid balance was only P34.5 million. They also
ought to know the procedure to be followed in the
payment of contractual obligations. First and
foremost there were the submission by the PNCC of
its claims with the required supporting documents
and the approval of the claims by the appropriate
approving authority of MIAA. When then President
Marcos ordered immediate payment, he should not
have been understood as to order suspension of the
accepted budgeting, accounting, and auditing rules
on the matter. Parenthetically, it may be stated here
that although President Marcos was a dictator, he
was reported to be, and even projected himself as, a
"faithful" advocate of the rule of law. As a matter of
fact, he did not hesitate to issue a decree, letter of
instruction, or any presidential issuance in
anticipation of any planned actions or activities to
give the latter the facade or semblance of legality,
wisdom, or propriety. When he made the order to
appellant Tabuena, President Marcos must only be
understood to order expeditious compliance with
the requirements to facilitate immediate release of
the money. There was no way for Tabuena to
entertain any fear that disobedience to the order
because of its unlawfulness or delay in the execution
of the order due to compliance with the
requirements would cause his head or life. He
offered no credible evidence for such fear. This Court
should not provide one for him. That Tabuena served
Mr. Marcos until the end of the latter's regime and
even beyond only proved a loyalty not based on fear
but on other considerations.
Moreover, the manner the appellant effected the
withdrawal was most unusual, irregular, and
anomalous. He has not shown any evidence that
what he did was the usual practice in his office.
What happened in this case showed the appellants'
complicity as principals by direct participation in the
malversation of the MIAA's funds. The appellants
should, therefore, be thankful to the Sandiganbayan
for holding them liable therefor only through
negligence.
I vote then to AFFIRM in toto the assailed decision.
Padilla, Melo and Panganiban, JJ., concur.
ROMERO, J., dissenting:
Obedience, rightly directed, is a virtue well-worth
cultivating — obedience of children to their elders;
obedience to lawful authority by citizens; obedience
to the behests of what is highest and finest in one's
self.
Misguided, such as indiscriminate obeisance to
questionable mandates, no matter if emanating from
authoritative figures whose slightest whisper and
scribbled orders are law, this can lead man to
perdition.
In government, a pliant bureaucracy that is
disinclined to resist unethical, immoral, even
downright illegal directives from "above" is easily
corrupted and can only bring disrepute to the entire
system. In this context, can subordinate public
339 | P a g e
officials like herein petitioner escape criminal
prosecution by the simple expedient of claiming that
they were merely following orders from a superior?
This disquisition will demonstrate that certain
requisites are indispensable before anyone can claim
immunity from penal sanctions for seemingly
justifiable acts.
This dissenting opinion will narrate the facts for the
sake of accuracy for the ponencia seems to have
overlooked or glossed over vital circumstances which
make the conclusion embodied herein irresistible.
Petitioners were charged with violation of Article
217 of the Revised Penal Code (the Code) for alleged
malversation of a total of P55 million from the public
funds of the Manila International Airport Authority
(MIAA). The informations filed on three separate
dates in 1986 accused them, as accountable officers,
of intentionally withdrawing said amount for the
ostensible purpose of paying a non-existent
obligation of MIAA to the Philippine National
Construction Corporation (PNCC), but which they
misappropriated and converted for their personal
use and benefit.
In their defense, petitioners claimed they acted in
good faith and in compliance with a verbal and later,
a written order from no less than former President
Ferdinand E. Marcos. In a Presidential Memorandum
(the Marcos Memorandum) dated January 8, 1986,
the latter allegedly commanded petitioner Tabuena,
in his capacity as General Manager of MIAA, "to pay
immediately the Philippine National Construction
Corporation, thru this Office (Office of the
President), the sum of FIFTY FIVE MILLION
(P55,000,000.00) PESOS in cash as partial payment of
MIAA's account with said Company mentioned in a
Memorandum of (Trade and Industry) Minister
Roberto Ongpin to this Office dated January 7, 1985 .
. . ."1 (The Ongpin Memorandum). On the
assumption that MIAA indeed had a due and
demandable debt to PNCC for work done on the
airport, Tabuena, with the help of Gerardo G. Dabao
and Adolfo M. Peralta, MIAA Assistant General
Manager and Financial Services Department Acting
Manager, respectively, made three withdrawals from
the account of MIAA with the Philippine National
Bank first, on January 10, 1986 for P25 million, then
on January 16, 1986 for another P25 million and
lastly, on January 31, 1986 for P5 million. The three
manager's checks covering the withdrawals were all
applied for and issued in the name of Tabuena.
Curiously, while the checks were issued by the MIA
extension office of PNB, they were encashed at the
Villamor Air Base branch. Each time the cash was
delivered directly to the office of Marcos' private
secretary, Fe Roa-Gimenez. The latter issued a
receipt2 signed by her but only after the last
delivery. No PNCC receipt was ever given to
petitioners.
On October 22, 1990, the Sandiganbayan's First
Division rendered a decision finding petitioners
guilty.
Petitioners raise two issues, namely, that they were
charged with intentional malversation (which they
labelled as malversation by direct appropriation) but
were convicted of malversation by negligence, and
that they acted in good faith.
As regards the first argument, the variance between
the crime charged and that proved by the
prosecution is immaterial, as stated by the ponente.
As regards the second issue, it is argued that good
faith is a valid defense in malversation for it negates
criminal intent. Petitioners claim that when they
committed the acts complained of, they were merely
following then President Marcos' oral and written
directives. They rely on Article 11, paragraph 6 of the
Code which states, inter alia:
Art. 11. Justifying circumstances. —
The following do not incur any
criminal liability:
xxx xxx xxx
6. Any person who acts in
obedience to an order issued by a
superior for some lawful purpose.
For an act to be justified under the abovequoted
provision, therefore, three requisites must concur:
(a) an order must have been issued by a superior; (b)
the order must be for a lawful purpose; and (c) the
means used by the subordinate in carrying out such
order must itself be lawful.3
In the case at bar, Tabuena was allegedly ordered by
President Marcos to pay the PNCC from MIAA's fund,
thus ostensibly meeting the first requirement but
not the others. For there is a qualification which
significantly changes the picture. The payment was
to be in cash and immediately made through the
Office of the President. It is to be pointed out that it
is one thing to be ordered to pay a due and
demandable obligation; it is another to make such
payment to someone other than the lawful obligee
and worse, when the subordinate is forced to breach
official channels to comply with the order.
It must be stressed that Tabuena and his co-accused,
Peralta and Dabao, disregarded standard operating
procedures in following the President's order. As
observed by the Sandiganbayan, "there were no
vouchers to authorize the disbursements in
question. There were no bills to support the
disbursement. There were no certifications as to the
availability of funds for an unquestionably staggering
340 | P a g e
sum of P55 Million." Disbursement vouchers are conforming with prescribed usages and rules of
specifically required under Sec. 4 (5) of Presidential discipline. There is no observance of an established
Decree No. 1445 (P.D. No. 1445), while the pattern, course, mode of action, behavior, or
certificate of availability of funds is needed to conduct in the incurrence of an irregular
comply with Sec. 47, Title I-B, Bk. V of the expenditure. . . . ."9
Administrative Code of 19874 and Sec. 344 of the
Local Government Code of 1991.5 To compound the Specifically, disbursement of public funds must
duplicity, the checks, issued by one branch of PNB conform with the following principles:
were encashed in another — all made in cash
instead of by crossed check payable to PNCC! (1) No money shall be paid out of
Conspicuously, such cash outlay was made without the Treasury except in pursuance
prior approval or authority of the Commission on of an appropriation made by law. 10
Audit.6 Finally, the last two payments were made
despite the non-issuance of a receipt for the first. In
(2) No public money or property
fact, the receipt given after the delivery of the last
shall be appropriated, applied,
installment was not even issued by the PNCC, the
paid, or employed, directly or
legal obligee and avowed recipient of the money.
indirectly, for the use, benefit, or
Instead it emanated from the office of Roa-Gimenez,
support of any sect, church,
a complete stranger to the alleged contract between
denomination, sectarian
MIAA and PNCC, who did not even indicate in what
institution, or system of religion, or
capacity she signed it. To compound the mystery,
of any priest, preacher, minister, or
the money was even delivered to her office, not in
other religious teacher, or dignitary
Malacañang, but at nearby Aguado Street. The entire
as such, except when such priest,
process, done with haste and with a total disregard
preacher, minister, or dignitary is
of appropriate auditing requirements was, in the
assigned to the armed forces, or to
words of petitioners themselves, an extraordinary
any penal institution, or
transaction," 7 admittedly "out of the ordinary" and
government orphanage or
"not based on normal procedure."8
leprosarium. 11
Disbursement of government funds, especially one
(3) All money collected on any tax
as gargantuan as the one made by petitioners, is a
levied for a special purpose shall
complex process, unlike the basic over-the-counter
be treated as a special fund and
transaction that they purportedly made it to appear.
paid out for such purpose only. If
Far from being lawful, the payment of the alleged
the purpose for which this special
obligation of MIAA to PNCC through the Office of the
fund was created has been fulfilled
President may at best be labelled as irregular. "The
or abandoned, the balance, if any,
term 'irregular expenditure' signifies an expenditure
shall be transferred to the general
incurred without adhering to established rules,
funds of the Government. 12
regulations, procedural guidelines, policies,
principles or practices that have gained recognition
(4) All resources of the government
in law. Irregular expenditures are incurred without
shall be managed, expended or
 utilized in accordance with law and
regulations and safeguarded
against loss or wastage through
illegal or improper disposition to
ensure efficiency, economy and
effectiveness in the operations of
government. The responsibility to
take care such policy is faithfully
adhered to rests directly with the
chief or head of the government
agency concerned. 13
(5) Disbursement or disposition of
government funds or property
shall invariably bear the approval
of the proper officials. 14
(6) Claims against government
funds shall be supported with
complete documentation. 15
(7) All laws and regulations
applicable to financial transactions
shall be faithfully adhered to. 16
(8) Generally accepted principles
and practices of accounting as well
as of sound management and fiscal
administration shall be observed,
provided that they do not
contravene existing laws and
regulations. 17
Assuming arguendo that petitioners acted in good
faith in following the President's order, undeniably,
they were negligent as found by the trial court. The
instructions in the President's order should have
sufficed to put any accountable head of an office,
Tabuena included, on guard. Why was he being
required to pay MIAA's obligation to the PNCC, if
indeed there were any, and not directly to the latter
341 | P a g e
but through the Office of the President? Why was
the entire transaction not coursed through proper
channels, viz., the accounting office? Why was such a
huge disbursement to be made in cash, instead of by
crossed check, which is not only safer, faster, and
more convenient, but in accord with auditing
requirements?
Obedience to a superior's order does not connote
blind obedience. Being the general manager of such
a mammoth organization like the MIAA, he should,
at the very least, have exercised ordinary prudence
by verifying with the proper official under him
whether the agency had indeed an outstanding
indebtedness to the PNCC before ordering any
payment to be made through official channels. Such
routine measures were cavalierly disregarded. The
whole process seemed no different from a petty,
personal transaction.
As evidence later revealed, PNCC's receivables from
MIAA amounted to P102,475,392.35, the bulk of
which comprised escalation charges. From that time
until Corazon C. Aquino assumed the Presidency, a
total of P44.4 million was paid, but only P2 million of
this in cash; the rest was set off or compensated
against other debts, or assigned to other creditors.
The financial records did not show that PNCC
received any sums of money from MIAA during the
period January to June, 1986 when the block
payments were being made in quarter millions. Only
on September 25, 1986, long after President Marcos
had gone, was an assignment of P23 million actually
made by MIAA in favor of PNCC. 18
Even the Ongpin Memorandum, which is the basis of
the Marcos Memorandum, failed to show where the
amount of P55 million cropped up. The former
contained, inter alia, the following matters: (a) it
requested the President's approval of Minister
Ongpin's recommendations "for eight (8)
supplemental contracts pertaining to the MIA
Development Project (MIADP) between the Bureau
of Air Transport (BAT) and Philippine National
Construction Corporation (PNCC), formerly CDCP, . . .
."; 19 (b) it informed the President that PNCC had
collectibles from MIAA only in the amount of P4.5
million, which is the difference between the
accomplishment billings on the MIADP totalling
P98.4 million and PNCC's advances of P93.9 million;
and (c) it informed the President that PNCC had
potential escalation claims against MIAA in the
amount of P99 million, "potential" because they
have yet to be approved by the Price Escalation
Committee (PEC).
The only remaining piece of evidence which would
show that MIAA owed PNCC anything as of the date
of the Marcos Memorandum is MIAA's balance
sheet, 20 which indicates its liability to PNCC as of
December 31, 1985 to be P27,931,000.00. 21 How
can petitioners claim to have acted in good faith
when they withdrew the P55 million from MIAA's
funds knowing fully well that the amount due PNCC
was only a little over half that amount, as shown by
their own evidence?
The ponencia states that ". . . . the good faith of
Tabuena . . . . was not at all affected even if it later
turned out that PNCC never received the money."
It is precisely our thesis that Tabuena did not act in
good faith in complying with the President's orders
because of the reasons aforesatated, summarized as
follows:
(a) The President's order was "out
of the ordinary" and "not based on
normal procedure," which would
have entailed making an
"extraordinary transaction," as
admitted by petitioners
 themselves. This proves that they
were, at the time they received the
order, aware that paying MIAA's
supposed P55 million obligation to
PNCC through the Office of the
President in cash was
questionable.
(b) As the head of MIAA, Tabuena
should have been more cautious in
disbursing the funds. He did not
even stop to think about the
legality of the entire process even
when he did not receive any kind
of receipt for the first two
deliveries of money worth P50
million. When he did get a receipt,
it was not an official receipt from
PNCC, the legal creditor, but from
the President's private secretary. It
must also be noted that the cash
was all delivered to Gimenez' office
at Aguado St., not to her office at
Malacañang.
(c) Tabuena breached official
channels to procure the money.
There were no vouchers nor bills to
authorize or support the
disbursements. There was also no
certificate of availability of funds.
The payment was made in cash
without COA's approval, at a time
when the ceiling for cash payments
was merely P5,000.00. As stated
earlier, no official receipt from
PNCC supported the payment. The
entire process was "done with
haste and with a total disregard of
appropriate auditing
requirements."
342 | P a g e
As regards the payments to Roa-Gimenez, these
were absolutely unwarranted because whatever
"authority" she claimed to have emanated, not from
the creditor PNCC but from the President.
Petitioners were required by law to settle their
indebtedness with PNCC directly, the party in whose
favor the obligation was constituted. 22 The only
instance when such questionable payment could
have been valid was if it had redounded to PNCC's
benefit, which was not proved at all in this case. 23 As
creditor, the PNCC was not even bound to accept
payment, if any, from the President's private
secretary, the latter being a third person who had no
interest whatsoever in the discharge of MIAA's
obligation. 24
The ponencia states that the Marcos Memorandum
was "patently lawful for no law makes the payment
of an obligation illegal."
This statement is premised on the existence of an
established creditor-debtor relationship between the
payor and the payee. In this, case, however, the
obligor was being made to pay to a party other than
the legal obligee when no novation of the obligation
has taken place. How can such an arrangement be
possibly in accord with law?
The preceding established facts clearly show that
petitioners were remiss in discharging their duties as
accountable officers. As correctly observed by the
court a quo:
. . .(T)he Ongpin Memorandum
could not justify Pres. Marcos'
memorandum of January 8, 1986;
this in turn could not justify Luis
Tabuena's payment of P55 million
to Fe Roa Gimenez.
. . . (T)he amount which could be
payable by Tabuena in his capacity
as head of the MIAA in January of
1986 could not be in excess of
P27.931 million — until other
claims had been duly approved.
This approval, on the other hand,
could not come from the President
but from the Price Escalation
Committee (PEC) before which,
according to the Ongpin
Memorandum itself, these claims
for escalation had been submitted
for approval.
The PEC was not shown to have
approved these amounts as of the
time Tabuena made any of the
withdrawals for P55 million.
xxx xxx xxx
Tabuena says he had properly
accounted for the P55 million he
had withdrawn from the MIAA's
funds. By this Tabuena means he
gave the money to Fe Roa
Gimenez, presumably in
representation of Pres. Ferdinand
Marcos.
Neither Pres. Marcos, however,
nor Fe Roa Gimenez was entitled
to receive or issue acquittance for
a debt in favor of the PNCC.
Tabuena's claim, therefore, that he
delivered the P55 million to her is
not properly accounting for P55
million.
 In fact, when we come right down
to it, nobody has issued an
acquittance in behalf of the PNCC
for the P55 million paid by Luis
Tabuena. Since Tabuena says he
was paying P55 million to the
PNCC, it was incumbent upon him
to show a receipt from or in behalf
of the PNCC. Tabuena has shown
no receipt.
Tabuena was not authorized to
part with government money
without receipt
When Tabuena gave P55 million
intended for the PNCC to Fe Roa
Gimenez or to Pres. Marcos,
Tabuena was paying government
funds to persons not entitled to
receive those funds. He was,
therefore, guilty of malversation of
those funds.
xxx xxx xxx
Tabuena says he has accounted for
the money because he has told us
where the money went. But to
account, in the more proper use of
the term, injects a sense of
responsibility for the disposition of
funds for which one is answerable.
So when one asks if Tabuena has
accounted for the P55 million
belonging to the MIAA, the
question really is whether accused
Tabuena disposed of the sum in a
responsible manner consistent
343 | P a g e
with his duty. The answer must be
in the negative.
Payments must be delivered to
payees. Payments intended for the
PNCC must be delivered to the
PNCC or to someone authorized by
the PNCC to accept payments for
it. Neither Pres. Marcos nor Fe Roa
Gimenez are shown to have been
authorized to accept money for the
PNCC nor to deliver money to the
PNCC (or to any creditor of the
MIAA for that matter). In fact,
though Pres. Marcos may have
been the Supreme Magistrate of
the land and the chief enforcer of
the law, the law neither authorized
him to pay for the MIAA nor
to accept money for the PNCC.
Accused Tabuena's statement,
therefore, that he had presented
overwhelming evidence of the
delivery of the P55 million to Pres.
Marcos' private secretary does not
prove that he has accounted for
that money, that is, that he has
properly disposed of that sum
according to law.
On the contrary, what the evidence
shows is that accused Tabuena
delivered the P55 million to people
who were not entitled thereto,
either as representatives of MIAA
or of the PNCC.
It proves that Tabuena had
deliberately consented or
permitted through negligence or
abandonment, some other person
to take such public funds. Having
done so, Tabuena, by his own
narration, has categorically
demonstrated that he is guilty of
the misappropriation or
malversation of P55 million of
public funds. 25
Time and again, this Court has deferred to the
findings of fact of the trial court, owing to its
enviable position of having seen the physical
evidence and observed the witnesses as they
testified. We see no reason to depart now from this
policy.
Tabuena was also personally accountable for the
funds in his custody, being the head of a government
agency such as MIAA and discharging fiscal functions
as such. In this regard, the Manual on Certificate of
Settlement and Balances (Rev. 1993) (The Manual)
states, inter alia:
TITLE IV. ACCOUNTABILITY,
RESPONSIBILITY AND LIABILITY FOR
GOVERNMENT FUNDS AND
PROPERTY
Government officials and
employees, in the discharge of
fiscal functions, shall ensure that
all government resources are
managed, expended and utilized in
accordance with law, rules and
regulations and safeguarded
against loss or wastage thru illegal
or improper disposition.
In the implementation of the
above functions, they shall be
guided by the following provisions:
 Sec. 26. ACCOUNTABILITY FOR
GOVERNMENT FUNDS AND
PROPERTY
26.1. Every officer of any
government agency whose duties
permit or require the possession or
custody of government funds or
property shall be
accountable therefor and for the
safekeeping thereof in conformity
with law.
26.2 Every accountable officer shall
be properly bonded in accordance
with law.
Sec. 27. RESPONSIBILITY FOR
GOVERNMENT FUNDS AND
PROPERTY
The head of any agency of the
government is immediately and
primarily responsible for all
government funds and property
pertaining to his agency.
Persons entrusted with the
possession or custody of the funds
or property under the agency head
shall be immediately responsible to
him without prejudice to the
liability of either party to the
government.
Sec. 28. SUPERVISION OVER
ACCOUNTABLE OFFICERS
The head of any agency or
instrumentality of the national
344 | P a g e
government or any government-
owned or controlled corporation
and any other self-governing board
or commission of the
government shall exercise the
diligence of good father of a family
in supervising the accountable
officers under his control to
prevent the incurrence of loss of
government funds or property,
otherwise he shall be jointly and
severally liable with the person
primarily accountable therefor. . . .
Sec. 29. LIABILITY OF
ACCOUNTABLE, SUPERIOR AND
SUBORDINATE OFFICERS FOR
GOVERNMENT FUNDS
29.1 Every officer accountable for
government funds shall be
liable for alllosses resulting from
the unlawful deposit, use, or
application thereof and for all
losses attributable to negligence in
the keeping of the funds.
29.2 Liability of Superior Officers.
— A public officer shall not be
civilly liable for acts done in the
performance of his official
duties, unless there is a clear
showing of bad faith, malice or
gross negligence.
xxx xxx xxx
29.5 Liability of Subordinate
Officers. — No subordinate officer
or employee shall be civilly liable
for acts done by him in good faith
in the performance of his duties.
However, he shall be liable for
willful or negligent acts done by
him which are contrary to law,
morals, public policy and good
customs even if he acted under
order or instructions of his
superiors.
Sec. 30. LIABILITY FOR
UNLAWFUL/ILLEGAL
EXPENDITURES OR USES OF
GOVERNMENT FUNDS
30.1.1 Expenditures of government
funds or uses of government
property in violation of law or
regulations shall be
a personal liability of the official or
employee found to be directly
responsible therefor.
30.1.2 Every expenditure or
obligation authorized or incurred in
violation of law or of the annual
budgetary measure shall be
void. Every payment made in
violation thereof shall be illegal
and every official or employee
authorizing or making such
payment, or taking part therein,
and every person receiving such
payment shall be jointly and
severally liable for the full amount
so paid or received. (Emphasis
supplied)
The ponente points out that our reference to the
Manual supports the view that Tabuena was only
civilly liable.
This is a misappreciation of the entire sense of the
dissent. It must be borne in mind that said reference
was made after the conclusion was reached that
Tabuena was indeed criminally liable for his acts. It is
hornbook knowledge that criminal liability carries
with it the civil, specially when, as in this case, the
latter arose from the former. Hence, the statement:
"Tabuena was also personally accountable for the
funds in his custody, . . . ."
Sections 29.2 and 29.5 of the Manual, which
the ponente uses to illustrate his point, actually
includes exceptions to the grant of immunity from
civil liability of a public officer for acts done in the
performance of his official duties: (a) The preceding
statement itself says that the acts must be done "in
the performance of his official duties;" (b) Sec. 29.2
exempts him from civil liability, "unless there is a
clear showing of bad faith, malice or gross
negligence;" and (c) Sec. 29.5 states that "he shall be
liable for willful or negligent acts done by him which
are contrary to law, morals, public policy and good
customs even if he acted under order or instructions
of his superiors." The quoted provisions have been
once more underscored herein.
The ponencia futher states that "(t)here is no
showing that Tabuena has anything to do
whatsoever with the execution of the MARCOS
Memorandum." But very clearly, the admitted facts
show that it was precisely Tabuena who
implemented or executed the said Memorandum.
The ponencia cites Acebedo where the accused was
acquitted after it was shown that it was actually the
latter's secretary who collected and converted the
money. Tabuena's case is starkly different, for here it
was Tabuena himself who personally turned over the
money to the President's secretary. It was done with
his full knowledge and consent, the obvious
irregularity thereof notwithstanding.
345 | P a g e
In petitioner Peralta's case, we again yield to the
factual findings of the trial court. It said:
. . . . The question is whether or not
Peralta properly signed the third
application for the issuance of a
Manager's Check drawn against
the MIAA's savings account with
the Villamor Office of the
Philippine National Bank.
At the time that accused Peralta
signed the request for the issuance
of a Manager's Check, he was the
Acting Financial Services Manager
of the MIAA and all withdrawals of
funds required is (sic) co-signature.
The reason for the designation of
more than one co-signatory is not
merely useless ceremony; it is to
serve as a counter check for the
propriety of the disbursement.
While, indeed, accused Luis
Tabuena was the highest official in
the MIAA and had authority to
disburse its funds, this authority
was not absolute. It had to be for
properly subsisting obligations and
the disbursement had to be against
funds existing for that purpose.
This is one reason for the need for
supporting documentation before
disbursements of funds are
authorized. And this is the special
need for finance officers such as
Adolfo Peralta, as Financial
Services Manager, to be co-
signatories (sic): to ascertain the
validity of the obligation and, in
this particular instance, the
existence of the balance to be
covered by the manager's check
the application for which had been
presented for his co-signature.
In this case, Adolfo Peralta speaks
of the existence of (the) P27.9
million liability in favor of the PNCC
as justification for his acts herein.
True enough, for that amount was
the liability as of December 31,
1985. As finance officer, however,
he could not claim ignorance of the
fact that as of January 29, 1986,
the date of the application for a
manager's check which he signed,
two previous manager's checks
worth P25 million each had already
been applied for and the total
amount of P50 million had already
been withdrawn . . . .
It was only two weeks after these
two withdrawals when Peralta, as
Finance Services Manager,
participated in the authorization
for the disbursement of another P5
million. This last withdrawal
brought up the total of
withdrawals to P55 million for the
payment of a P27.9 million
obligation.
Thus while it is true, as Adolfo
Peralta claims, that there was a
liability in favor of the PNCC, there
was no way Peralta could disclaim
responsibility for the excessive
withdrawals to the extent of P5
million thereof allegedly to pay
 that liability. There was no way
Peralta could justify his co-signing
the application for a manager's
check for P5 million on January 29,
1986.
The ponente cites a dissenting opinion of Justice
Isagani A. Cruz in Development Bank of the
Philippines v. Pandogar to uphold his ponencia. Need
we remind our respected colleague that the
corroborative value of a dissenting opinion is
minimal? Precisely, it supports a position contrary to,
and obviously unacceptable to the majority.
Petitioners were found guilty of malversation by
negligence, which is possible even if the charge was
for intentional malversation. This does not negate,
however, their criminal liability; it merely declares
that negligence takes the place of malice. Article 3 of
the Code provides the rationale when it explicitly
states that "felonies are committed not only by
means of deceit but also by means of fault."
The Sandiganbayan's finding that petitioners
converted and misappropriated the P55 million
cannot simply be brushed aside upon petitioners'
claim that the money was delivered in good faith to
the Office of the President under the mistaken
assumption that the President was entitled to
receive the same. They rely on the case of People
v. Fabian, 26 which declared that "(g)ood faith in the
payment of public funds relieves a public officer
from the crime of malversation." But the very same
decision also cites Article 217 to the effect that
malversation may be committed by an accountable
public officer by negligence if he permits any other
person to take the public funds or property in his
custody. It is immaterial if petitioners actually
converted or misappropriated MIAA's funds for their
own benefit, for by their very negligence, they
allowed another person to appropriate the same.
346 | P a g e
The fact that no conspiracy was established between xxx xxx xxx
petitioners and the true embezzlers of the P55
million is likewise of no moment. The crime of When they begin to think of how
malversation, as defined under Article 217 of the much power they possess, help
Code, 27 was consummated the moment petitioners them to know the many things that
deliberately turned over and allowed the President's are beyond their power — the
private secretary to take custody of public funds change of seasons, sun and rain,
intended as payment of MIAA's obligations to the moonlight and starlight and all the
PNCC, if obligation there was at all. That petitioner wonders of Your creation;
Tabuena who was then General Manager of MIAA
personally and knowingly participated in the When they are led to believe that
misfeasance compounds the maleficence of it all. they are exempt from public
Rank may have its privileges but certainly a blatant accountability, help them to know
disregard of law and administrative rules is not one that they are ultimately
of them. It must be etched in the minds of public accountable to You, the God of
officials that the underside of privileges is truth and justice and mercy;
responsibilities.
xxx xxx xxx
As accountable officers, petitioners clearly
transgressed administrative and legal bounds. Even
The ponencia makes the final observation that the
on the pretext of obeying a superior's seemingly
limitations on the right of judges to ask questions
legitimate orders, their actuations can hardly be
during the trial were not observed by respondent
justified. To rule otherwise would set an alarming
court; that the three Justices who heard the
precedent where all that public officials who have
testimonies asked 37 questions of witness Francis
unlawfully enriched themselves at the people's
Monera, 67 of Tabuena, and 41 of Peralta — more
expense and those accused of graft and corruption
than what the prosecutors and defense counsels
would have to do to exculpate themselves from any
propounded.
wrongdoing would be to invoke Article 11, paragraph
6 of the Code, thus gaining instant immunity from
While such numbers unduly disturbed the ponente,
criminal prosecution.
it cannot be gainsaid that such action by the
members of the First Division of respondent
Government officials, particularly heads of their
Sandiganbayan was, under the circumstances, not
agencies who, by virtue of their exalted positions
only necessary and called for, but likewise legally
exude power and authority but pay blind obeisance
acceptable.
to orders of those higher up in the bureaucratic
hierarchy regardless of the illegality, impropriety or
In the first place, even the ponente makes the
immorality of such orders, would do well to
observation that petitioners did not raise this matter
internalize this prayer for national leaders delivered
as error. In other words, they did not feel prejudiced
by former Senate President Jovito R. Salonga in
by the respondent court's actuations; nor did they
Malacanang on November 24, 1996:
construe the series of questions asked of them by
the Justices as indicative of any unfairness or
partiality violative of their right to due process.
Then, too, it must be noted that there is a difference
in the right of a judge in a non-jury system, like that
obtaining in the Philippines, to question witnesses or
parties themselves, and that of a judge in a jury trial.
The bulk of jurisprudence used in the ponencia was
decided in the United States, where the jury system
is extensively utilized in civil as well as in criminal
trials. In this regard, "(i)t has been noted that the
opinion of the judge, on account of his position and
the respect and confidence reposed in him and in his
learning and assumed impartiality, is likely to have
great weight with the jury, and such fact of necessity
requires impartial conduct on his part. The judge is a
figure of overpowering influence, whose every
change in facial expression is noted, and whose
every word is received attentively and acted upon
with alacrity and without question." 28
Thus, while a trial judge is expected to be
circumspect in his choice of words lest they be
construed as signs of partiality, he "is not, however,
required to remain silent and passive throughout a
jury trial;"29 he should, instead, "conduct a trial in an
orderly way with a view to eliciting the truth and to
attaining justice between the parties."30
Inasmuch as it is the jury which has the burden of
meting out justice, it is acceptable for a judge in a
jury trial to "ask any question which would be proper
for the prosecutor or defense counsel to ask so long
as he does not depart from a standard of fairness
and impartiality."31 "Questions designed to clarify
points and to elicit additional relevant
evidence, particularly in a non-jury trial, are not
improper." 32
The numerous questions asked by the court a
quo should have been scrutinized for any possible
347 | P a g e
influence it may have had in arriving at the assailed law but who try to justify their actions by invoking
decision. The true test for the appropriateness or the very law which they violated.
inappropriateness of court queries is not their
quantity but their quality, that is, whether the For the reasons stated above, I vote to affirm
defendant was prejudiced by such questioning.33 To petitioners' conviction by respondent court.
repeat, petitioners did not feel prejudiced by the
trial court's actions; otherwise, they would have Padilla, Melo and Panganiban, JJ., concur.
raised this issue in the instant petition.
The ponencia states that he is "well aware of the fear
entertained by some that this decision may set a
PUNO, J., dissenting:
dangerous precedent in that those guilty of enriching
themselves at the expense of the public would be
I join the Dissenting Opinion of Madam Justice
able to escape criminal liability by the mere
Flerida Ruth Romero where I find both right and
expedient of invoking "good faith." Our position has
righteousness happily intersecting each other. I am,
been either misinterpreted or misread for we do not
however, constrained to write this brief dissent in
merely speak of "good faith." In fact, our main thrust
view of the impact of the majority decision to our
is that such a breed of people who enriched
criminal justice system which many perceive leaves
themselves at the expense of the public might
much to be desired.
handily use as an excuse or a justifying circumstance
to escape liability their having obeyed the "lawful
orders" of their superior under Article 11, paragraph I
6 of the Revised Penal Code.
It should be immediately stressed that petitioners
The ponente makes a plea towards the close of his were convicted of the crime of malversation by
decision, that we should not act impulsively in the negligence. The felony was committed by petitioners
instant case. "In our eagerness to bring to justice the not by means of deceit (dolo) but by fault (culpa).
malefactors of the Marcos regime, we must not According to Article 3 of the Revised Penal Code,
succumb to the temptation to commit the greatest there is fault when the wrongful act results from
injustice of visiting the sins of the wrongdoers upon imprudence, negligence, lack of foresight, or lack of
an innocent." skill. Justice J.B.L. Reyes explains the difference
between a felony committed by deceit and that
committed by fault in this wise: ". . . In intentional
In our opinion, precisely, Tabuena and
crimes, the act itself is punished; in negligence or
Peralta are wrongdoers, guilty of acts punishable by
law. Needless to say, under our system of laws, they imprudence, what is principally penalized is the
mental attitude or condition behind the act, the
must be meted out the corresponding penalty. We
dangerous recklessness, lack of care or foresight, the
draw attention to the fact that nowhere in this
imprudencia punible."1
dissent do we single out the so-called "malefactors
of the Marcos regime" alone. We addressed
ourselves to all who commit venalities at the In light of this well-carved distinction, the long
expense of the people, as defined and punished by discourse of the majority decision hailing petitioners'
good faith or lack of intent to commit malversation is
off-line. To justify the acquittal of petitioners, the
majority should strive to show that petitioners did
not commit any imprudence, negligence, lack of
foresight or lack of skill in obeying the order of
former President Marcos. This is nothing less than a
mission impossible for the totality of the evidence
proves the utter carelessness of petitioners in the
discharge of their duty as public officials. The
evidence and their interstices are adequately
examined in the dissent of Madame Justice Romero
and they need not be belabored.
For the same reason, the majority cannot rely on the
doctrine of mistake of fact as ground to acquit
petitioners. It found as a fact that ". . . Tabuena
acted under the honest belief that the P55 million
was a due and demandable debt. . . ." This Court has
never applied the doctrine of mistake of fact when
negligence can be imputed to the accused. In the
old, familiar case of People vs. Ah Chong,2 Mr. Justice
Carson explained that ignorance or mistake of fact, if
such ignorance or mistake of fact is sufficient to
negative a particular intent which under the law is a
necessary ingredient of the offense charge (e.g., in
larceny animus furendi, in murder, malice, etc.),
cancels the presumption of intent and works an
acquittal, except in those cases where the
circumstances demand conviction under the penal
provisions touching criminal negligence. Hence, Ah
Chong was acquitted when he mistook his houseboy
as a robber and the evidence showed that his
mistake of fact was not due to negligence. In the
case at bar, the negligence of the petitioners
screams from page to page of the records of the
case. Petitioners themselves admitted that the
payments they made were "out of the ordinary" and
"not based on normal procedure."
As aforestated, the cornerstone of the majority
decision is its finding of good faith on the part of the
348 | P a g e
petitioners. Viewed from a more critical lens,
however, the evidence cannot justify a finding of
good faith. The violations of auditing rules are too
many yet the majority merely winks at them by
ruling that petitioner Tabuena ". . . did not have the
luxury of time to observe all auditing procedures of
disbursement considering the fact that the Marcos
Memorandum enjoined 'immediate compliance'
with the directive that he forward to the President's
Office the P55 million in cash." With due respect, I
am disquieted by the mischiefs that will be
mothered by this ruling. To begin with, the country
was no longer under martial rule in 1986 and
petitioners were under no compulsion to violate our
laws. It also ought to be obvious that the order for
immediate compliance even if made by the former
President cannot be interpreted as a green signal by
a subordinate official to disregard our laws. Indeed,
no person, not even the President can order the
violation of our laws under any excuse whatsoever.
The first and foremost duty of the President is to
uphold the sanctity of our laws. Thus, the
Constitution requires the President to take an oath
or affirmation where he makes the solemn pledge to
the people: "I do solemnly swear (or affirm) that I
will faithfully and conscientiously fulfill my duties as
President of the Philippines, preserve and defend its
Constitution, execute its laws, do justice to every
man, and consecrate myself to the service of the
Nation. . . .3 To be sure, the need for petitioners to
make an immediate payment is really not that
immediate. The facts show that former President
Marcos first called petitioner Tabuena by telephone
and asked him to make the payment. One week after
or on January 8, 1986, the former President issued a
written memorandum reiterating the order to pay.
Payments were made in three tranches — the first
on January 10, 1986, the second on January 16, 1986
and the third on January 31, 1986. Clearly then, it
took petitioner one month to comply with the Order.
Given the personnel of petitioner Tabuena in his
office, one month provides enough time to comply
with the rules. In any event, petitioners did not
request former President Marcos for additional time
to comply with the rules if they felt in good faith that
they needed more time. Petitioners short-circuited
the rules by themselves. Nothing in the Marcos
Memorandum compelled them to disregard the
rules. The Memorandum merely stated "Your
immediate compliance is appreciated". The language
of the Memorandum was as polite as it could be. I
fail to discern any duress in the request as the
majority did.
II
The determination of the degree of participation
that should be allowed to a judge in the questioning
of a witness is a slippery slope in constitutional law.
To a certain extent, I agree with the majority that
some of the questions propounded by the justices of
the respondent Court crossed the limits of propriety.
Be that as it may, I am not prepared to conclude with
certainty that the text and tone of the questions
denied petitioners the right to an impartial trial. Bias
is a state of mind which easily eludes evidence. On
the basis of the evidence before us, we cannot hold
that we have plumbed the depth of prejudice of the
justices and have unearthed their partiality. The
more telling evidence against the petitioners are
documentary in nature. They are not derived from
the answers elicited by questions from the justices
which the majority, sua sponte, examined and
condemned as improper.
III
Finally, I can not but view with concern the
probability that the majority decision will chill
complaints againsts graft pending before the
respondent Court. From the majority decision, it is
crystalline that petitioners blindly obeyed the
Marcos Memorandum despite its fatal and facial President, your A No, your
flaws. The majority even quotes these inculpatory Honor. Honor.
admissions of petitioner Tabuena, viz:4
AJ del Rosario Q Why not?
xxx xxx xxx
Q Was that A Because with
AJ del Rosario normal that instruction
procedure for of the President
xxx xxx xxx you to pay in to me, I followed
cash to the Office your Honor.
Q If it was for the of the President
payment of such for obligations of xxx xxx xxx
obligation why the MIAA in
was there no payment of its AJ Hermosisima
voucher to cover obligation to
such payment? In another entity?
Q Why were you
other words, why not made to pay
was the delivery A No, your directly to the
of the money not Honor, I was just PNCC considering
covered by any following the that you are the
voucher? Order to me of manager of MIA
the President. at that time and
A The instruction the PNCC is a
to me was to give PJ Garchitorena separate
it to the Office of corporation, not
the President, Q So the Order an adjunct of
your Honor. was out of the Malacanang?
ordinary?
PJ Garchitorena A I was just
A Yes, your basing it from the
Q Be that as it Honor. Order of the
may, why was Malacanang to
there no voucher AJ del Rosario pay PNCC
to cover this through the
particular Q Did you file any Office of the
disbursement? written protest President, your
with the manner Honor.
A I was just told with which such
to bring it to the payment was xxx xxx xxx
Office of the being ordered?

349 | P a g e
 Q You agreed to
the order of the
President
notwithstanding
the fact that this
was not the
regular course or
Malacanang was
not the creditor?
A I saw nothing
wrong with that
because that is
coming from the
President, your
Honor.
In effect, petitioners' shocking submission is
that the President is always right, a
frightening echo of the antedeluvian idea
that the King can do no wrong. By allowing
the petitioners to walk, the majority has
validated petitioners' belief that the
President should always be obeyed as if the
President is above and beyond the law. I
cannot accept this dangerous ruling even if I
look at it through the eyes of faith. One of
the gospels in constitutional law is that the
President is powerful but is not more
paramount than the law. And in criminal
law, our catechism teaches us that it is
loyalty to the law that saves, not loyalty to
any man. Let us not bid goodbye to these
sacrosanct principles.
Padilla, Melo and Panganiban, JJ., concur.
PANGANIBAN, J., dissenting:
In the main, the majority ruled that Petitioners Luis
Tabuena and Adolfo Peralta should be acquitted
350 | P a g e
because they were merely obeying the order of then
President Ferdinand E. Marcos to deliver "thru this
Office, the sum of FIFTY FIVE MILLION
(P55,000,000.00) PESOS in cash as partial payment of
MIAA's account" with the Philippine National
Construction Company. In their Dissenting Opinions,
Justices Romero, Davide and Puno have shown how
weak and unpersuasive this ruling is under
applicable Philippine laws and jurisprudence. I will
not repeat their illuminative discussions. Let me just
stress three more points:
(1) The defense of "obedience to a superior's order"
is already obsolete. Fifty years ago, the Nazi war
criminals tried to justify genocide against the Jews
and their other crimes against humanity by alleging
they were merely following the orders of Adolf
Hitler, their adored fuehrer. However, the
International Military Tribunal at Nuremberg in its
Judgment dated October 1, 1946,1 forcefully
debunked this Nazi argument and clearly ruled that
"(t)he true test . . . is not the existence of the order
but whether moral choice was in fact possible."
In 1947, the United Nations General Assembly
adopted a Resolution firmly entrenching the
principle of moral choice, inter alia, as follows:2
The fact that a person acted
pursuant to an order of his
government or of a superior does
not relieve him from responsibility
under international law, provided a
moral choice was in fact possible to
him.
In the Nuremberg trials, the defendants
were military officers of the Third Reich who
were duty-bound to obey direct orders on pain of
court martial and death at a time when their country
was at war. Nonetheless, they were meted out death
sentences by hanging or long-term imprisonments.
In the present case, the accused are civilian
officials purportedly complying with a memorandum
of the Chief Executive when martial law had already
been lifted and the nation was in fact just about to
vote in the "snap" presidential election in 1986. The
Sandiganbayan did not impose death but only
imprisonment ranging from seventeen years and one
day to twenty years. Certainly a moral choice was
not only possible. It was in fact available to the
accused. They could have opted to defy the illegal
order, with no risk of court martial or death. Or they
could have resigned. They knew or should have
known that the P55 million was to be paid for a debt
that was dubious3 and in a manner that was
irregular. That the money was to be remitted in cold
cash and delivered to the private secretary of the
President, and not by the normal crossed check to
the alleged creditor, gave them a moral choice to
refuse. That they opted to cooperate compounded
their guilt to a blatant conspiracy to defraud the
public treasury.
(2) Resurrecting this internationally discredited Nazi
defense will, I respectfully submit, set a dangerous
precedent in this country. Allowing the petitioners to
walk deprives this Court of the moral authority to
convict any subaltern of the martial law dictator who
was merely "following orders." This ludicrous
defense can be invoked in all criminal cases pending
not only before this Court but more so before
inferior courts, which will have no legal option but to
follow this Court's doctrine.4
(3) Mercy and compassion are virtues which are
cherished in every civilized society. But before they
can be invoked, there must first be justice. The
Supreme Court's duty is to render justice. The power
to dispense pardon lies elsewhere. Verily, the
Constitution ordains a final conviction by the courts
before the President can exercise his power to wipe
away penalty.5 Such is the legal and natural
precedence and order of things: justice first before
mercy. And only he who sincerely repents his sin,
restitutes for it, and reforms his life deserves
forgiveness and mercy.
I therefore vote to AFFIRM the assailed
Sandiganbayan Decision onvicting the petitioners of
malversation.
Padilla, Melo and Panganiban, JJ., concur.
THIRD DIVISION
March 22, 2017
G.R. No. 225599
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee
vs
CHRISTOPHER MEJARO ROA, Accused-Appellant
DECISION
VELASCO. JR., J.:
The Case
This is an appeal from the Decision1 promulgated on
August 27, 2015, in CA-G.R. CR-H.C. No. 06456,
which affirmed accused-appellant's conviction for
the offense of murder, punished under Article 248 of
the Revised Penal Code, by the Regional Trial Court
(RTC), Branch 32, Pili, Camarines Sur, in its Decision
in Criminal Case No. P-4100, promulgated on
September 3, 2013.
The present case stems from an Information filed
against accused-appellant Christopher Mejaro Roa
(Roa) on June 5, 2007, charging him for the murder
351 | P a g e
of Eliseo Delmiguez (Delmiguez), committed as
follows:
That on or about 16 March 2007 at around 3:30 in
the afternoon at Barangay San Miguel, Municipality
of Bula, Province of Camarines Sur, Philippines, and
within the jurisdiction of this Court, the above-
named accused, with intent to kill and without
justifiable cause, did then and there willfully,
unlawfully, and feloniously attack, assault, and stab
Eliseo Delmiguez with the use of a bladed weapon,
locally known as "ginunting," hitting and injuring the
body of the latter, inflicting multiple mortal hack
wound[s] thereon, which were the immediate and
direct cause of his instantaneous death, to the
damage and prejudice of the heirs of the victim in
such amount that may be proven in court.
That the killing was committed 1) with treachery, as
the qualifying circumstance or which qualified the
killing to murder, and 2) [w]ith taking advantage of
superior strength, as aggravating circumstance.2
The Facts
The facts surrounding the incident, as succinctly put
by the RTC, are as follows:
A resident of Brgy. San Miguel, Bula, Camarines Sur,
accused [Roa] is known to have suffered mental
disorder prior to his commission of the crime
charged. While his uncle, Issac [Mejaro ], attributes
said condition to an incident in the year 2000 when
accused was reportedly struck in the head by some
teenagers, SPOl [Nelson] Ballebar claimed to have
learned from others and the mother of the accused
that the ailment is due to his use of illegal drugs
when he was working in Manila. When accused
returned from Manila in 2001 , Issac recalled that, in
marked contrast to the silent and formal deportment
with which he normally associated his nephew, the
latter became talkative and was observed to be
"always talking to himself' and "complaining of a
headache."
On September 27, 2001, accused had a psychotic
episode and was brought to the [Don Susana J.
Rodriguez Mental Hospital] DSJRM by his mother
and Mrs. Sombrero. Per the October 10, 2005
certification issued by Dr. Benedicto Aguirre, accused
consulted and underwent treatment for
schizophrenia at the [Bi col Medical Center] BMC in
the years 2001, 2002, 2003, 2004, and 2005. In her
Psychiatric Evaluation Report, Dr. [Edessa Padre-
]Laguidao also stated that accused was prescribed
antipsychotic medication which he was, however,
not able to continue taking due to financial
constraints. Edgar [Sapinoso] and Rico [Ballebar],
who. knew accused since childhood, admitted
hearing about the latter's mental health issues
and/or his treatment therefor. Throughout the wake
of an unnamed aunt sometime in March 2007, it was
likewise disclosed by Issac that accused neither slept
nor ate and was known to have walked by himself all
the way to Bagumbayan, Bula.
On March 16, 2007, Issac claimed that accused was
unusually silent, refused to take a bath and even
quarreled with his mother when prompted to do so.
At about 3 :30 p.m. of the same day, it appears that
Eliseo, then 50 years old, was walking with Edgar on
the street in front of the store of Marieta Ballecer at
Zone 3, San Miguel, Bula, Camarines Sur. From a
distance of about 3 meters, the pair was spotted by
Rico who, while waiting for someone at the roadside,
also saw accused sitting on the sidecar of a trimobile
parked nearby. When Eliseo passed by the trimobile,
he was approached from behind by accused who
suddenly stabbed him on the left lower back with a
bolo locally known as ginunting of an approximate
length of 8 to 12 inches. Taken aback, Eliseo
exclaimed "Tara man, " before falling to the ground.
Chased by both Edgar and Rico and spotted running
by Mrs. Sombrero who went out of the Barangay
Hall upon hearing the resultant din, accused
immediately fled and took refuge inside the house of
his uncle, Camilo Mejaro.
With the incident already attracting people's
attention, Barangay Captain Herminion Ballebar
called for police assistance even as Isaac tried to
appease Eliseo's relatives. Entering Camilo's house,
Issac saw accused who said nothing when queried
about what he did. Shortly thereafter, SPO 1
Hermilando Manzano arrived on board a motorcycle
with SPO 1 Ballebar who called on accused to
surrender. Upon his voluntary surrender and tum
over of the jungle knife he was holding to the police
officers, accused was brought to the Bula Municipal
Police Station for investigation and detention. In the
meantime, Eliseo was brought to the Bula Municipal
Health Center where he was pronounced dead on
arrival and, after the necropsy examination, later
certified by Dr. Consolacion to have died
of Hypovolemia secondary to multiple stab
wounds.3 (citations omitted)
When arraigned, accused-appellant pleaded "not
guilty," but in the certificate of arraignment, he
signed his name as "Amado M. Tetangco." Trial on
the merits ensued. There was no contest over the
fact that accused-appellant, indeed, stabbed the
victim, but he interposed the defense of insanity.
The Ruling of the RTC
In its Decision promulgated on September 3, 2013,
the RTC of Pili, Camarines Sur found that accused-
appellant is guilty of the offense of Murder. The RTC
ruled that the defense of insanity was not sufficiently
proven as to exculpate accused-appellant from the
offense charged. The RIC noted that as an exempting
circumstance, insanity presupposes that the accused
352 | P a g e
was completely deprived of reason or discernment
and freedom of will at the time of the commission of
the crime. Thus, the RTC said, the accused must be
shown to be deprived of reason or that he acted
without the least discernment because there is a
complete absence of the power to discern, or that
there is a total deprivation of the will. It is the
accused who pleads the exempting circumstance of
insanity that has the burden of proving the same
with clear and convincing evidence. This entails, the
RTC added, opinion testimony which may be given
by a witness who has rational basis to conclude that
the accused was insane based on the witness' own
perception of the accused, or by a witness who is
qualified as an expert, such as a psychiatrist.4
In the case of accused-appellant, the RTC ruled, he
failed to discharge the burden of proving the claim of
insanity. First, while Isaac Mejaro's testimony was
able to sufficiently prove that accused-appellant
started having mental health issues as early as 2001 ,
the trial court ruled that his past medical history
does not suffice to support a finding that he was
likewise insane at the time that he perpetrated the
killing of Delmiguez in 2007. To the trial court, the
lack of showing of any psychotic incidents from the
time of his discharge in 2002 until March 2007
suggests that his insanity is only occasional or
intermittent and, thus, precludes the presumption of
continuity.5
Second, the trial court acknowledged that accused-
appellant exhibited abnormal behavior after the
incident, particularly in writing the name of Amado
M. Tetangco in his certificate of arraignment. It also
noted that midway through the presentation of the
prosecution's evidence, accused-appellant's mental
condition worsened, prompting his counsel to file
another motion for psychiatric evaluation and
treatment, and that he was subsequently diagnosed
again to be suffering from schizophrenia of an
undifferentiated type. The trial court, however, cited
the rule that the evidence of insanity after the fact of
commission of the offense may be accorded weight
only if there is also proof of abnormal behavior
immediately before or simultaneous to the
commission of the crime. The trial court then ruled
that the witnesses' account of the incident provides
no clue regarding the state of mind of the accused,
and all that was established was that he approached
Delmiguez from behind and stabbed him on his
lower back. To the trial court, this actuation of the
accused, together with his immediate flight and
subsequent surrender to the police authorities, is
not indicative of insanity.
Finally, while the accused was reputed to be "crazy"
in his community, the trial court ruled that such is of
little consequence to his cause. It said:
The popular conception of the word "crazy" is to
describe a person or act that is unnatural or out of
the ordinary. A man may, therefore, behave in a
crazy manner but it does not necessarily or
conclusively prove that he is legally so. The legal
standard requires that the accused must be so
insane as to be incapable of entertaining a criminal
intent.6
Hence, the RTC found accused-appellant guilty of the
crime of murder, and sentenced him as follows:
WHEREFORE, premises considered, judgment is
rendered finding accused Christopher Mejaro Roa
GUILTY beyond reasonable doubt of the crime of
Murder defined and penalized under Article 248 of
the Revised Penal Code, and imposing upon him the
penalty of reclusion perpetua.
Accused is ordered to pay the Heirs of Eliseo
Delmiguez the following sums: (1) ₱75,000.00 as civil
indemnity for the death of said victim; (b)
₱50,000.00 as moral damages; and (c) ₱30,000.00 as
exemplary damages.
Aggrieved, accused-appellant appealed his
conviction to the CA.
The Ruling of the CA
In its presently assailed Decision, the CA affirmed the
finding of conviction by the trial court. The CA first
noted that all the elements of the crime of murder
had been sufficiently established by the evidence on
record. On the other hand, the defense of insanity
was not sufficiently proven by clear and convincing
evidence. The CA said:
Record shows that the accused-appellant has
miserably failed to prove that he was insane when
he fatally stabbed the victim on March 16, 2007. To
prove his defense, accused-appellant's witnesses
including Dr. Edessa Padre-Laguidao testified that
they knew him to be insane because he was brought
and confined to the Bicol Medical Center,
Department of Psychiatry for treatment in the year
2001 . However, such fact does not necessarily
follow that he still suffered
from schizophrenia during the time he fatally
attacked and stabbed the victim, Eliseo Delmiguez.
No convincing evidence was presented by the
defense to show that he was not in his right mind, or
that he had acted under the influence of a sudden
attack of insanity, or that he had generally been
regarded as insane around the time of the
commission of the acts attributed to him.
An inquiry into the mental state of the accused
should relate to the period immediately before or at
the very moment the act under prosecution was
committed. Mere prior confinement in a mental
institution does not prove that a person was
deprived of reason at the time the crime was
353 | P a g e
committed. It must be noted that accused-appllant
was discharged from the mental hospital in 2002, or
long before he committed the crime charged. He
who relies on such plea of insanity (proved at
another time) must prove its existence also at the
time of the commission of the offense. This,
accused-appellant failed to do.7 (citations ommitted)
Moreover, the CA ruled that the testimonies of the
defense witnesses that purport to support the claim
of insanity are based on assumptions, and are too
speculative, presumptive, and conjectural to be
convincing. To the CA, their observation that
accused-appellant exhibited unusual behavior is not
sufficient proof of his insanity, because not every
aberration of the mind or mental deficiency
constitutes insanity.8 On the contrary, the CA found
that the circumstances of the attack bear indicia that
the killing was done voluntarily, to wit: (1) the use of
a long bolo locally known as ginunting, (2) the
location of the stab wounds, (3) the attempt of
accused-appellant to flee from the scene of the
crime, and (4) his subsequent surrender upon being
called by the police authorities.
Thus, the CA dismissed the claim of insanity, and
affirmed the conviction of the RTC for the offense
charged. The CA merely modified the award of
damages, and dispositively held, thus:
WHEREFORE, in view of the foregoing, the Judgment
dated September 3, 2013 of the Regional Trial Court
of Pili, Camarines Sur, Branch 32, is hereby
AFFIRMED with MODIFICATION. Accused-appellant
Christopher Mejaro Roa is found GUILTY beyond
reasonable doubt of Murder as defined in Article 248
of the Revised Penal Code, and he is sentenced to
suffer the penalty of Reclusion Perpetua. Accused-
appellant is ORDERED to pay the heirs of the victim,
Eliseo Delmiguez, the amount of: (1) P7 5, 000. 00 as
civil indemnity for the death of the said victim, (b)
P50,000 .00 as moral damages, and (c) P30,000 .00
as exemplary damages as provided by the Civil Code
in line with recent jurisprudence, with costs. In
addition, all awards for damages shall bear legal
interest at the rate of six [percent] (6%) per
annum from the date of finality of judgment until
fully paid.9
Aggrieved by the ruling of the CA, accused-appellant
elevated the case before this Court by way of a
Notice of Appeal.10
The Issue
The sole issue presented in the case before the Court
is: whether there is sufficient evidence to uphold the
conviction of accused-appellant for the offense of
Murder, punishable under Article 248 of the Revised
Penal Code. However, there being no contest that
accused-appellant perpetrated the stabbing of the
victim, which caused the latter's death, the
resolution of the present issue hinges on the pleaded
defense of insanity.
The Court's Ruling
The Court finds no reversible error in the findings of
fact and law by the CA. Hence, the assailed Decision
affirming the conviction of accused-appellant for
murder must be upheld.
Insanity as an exempting circumstance is provided
for in Article 12, par. 1 of the Revised Penal Code:
Article 12. Circumstances which exempt from
criminal liability. - The following are exempt from
criminal liability:
1. An imbecile or an insane person, unless the latter
has acted during a lucid interval.
When the imbecile or an insane person has
committed an act which the law defines as a felony
(delito), the court shall order his confinement in one
of the hospitals or asylums established for persons
thus afflicted, which he shall not be permitted to
leave without first obtaining the permission of the
same court.
In People v. Fernando Madarang,11 the Court had the
opportunity to discuss the nature of the defense of
insanity as an exempting circumstance. The Court
there said:
In all civilized nations, an act done by a person in a
state of insanity cannot be punished as an offense.
The insanity defense is rooted on the basic moral
assumption of criminal law. Man is naturally
endowed with the faculties of understanding and
free will. The consent of the will is that which
renders human actions laudable or culpable. Hence,
where there is a defect of the understanding, there
can be no free act of the will. An insane accused is
not morally blameworthy and should not be legally
punished. No purpose of criminal law is served by
punishing an insane accused because by reason of
his mental state, he would have no control over his
behavior and cannot be deterred from similar
behavior in the future.
xxxx
In the Philippines, the courts have established a
more stringent criterion for insanity to be exempting
as it is required that there must be a complete
deprivation of intelligence in committing the act, i.e.,
the accused is deprived of reason; he acted without
the least discernment because there is a complete
absence of the power to discern, or that there is a
total deprivation of the will. Mere abnormality of the
mental faculties will not exclude imputability.
354 | P a g e
The issue of insanity is a question of fact for insanity
is a condition of the mind, not susceptible of the
usual means of proof As no man can know what is
going on in the mind of another, the state or
condition of a person's mind can only be measured
and judged by his behavior. Establishing the insanity
of an accused requires opinion testimony which may
be given by a witness who is intimately acquainted
with the accused, by a witness who has rational basis
to conclude that the accused was insane based on
the witness' own perception of the accused, or by a
witness who is qualified as an expert, such as a
psychiatrist. The testimony or proof of the accused's
insanity must relate to the time preceding or
coetaneous with the commission of the offense with
which he is charged. (citations omitted)
In this jurisdiction, it had been consistently and
uniformly held that the plea of insanity is in the
nature of confession and avoidance.12 Hence, the
accused is tried on the issue of sanity alone, and if
found to be sane, a judgment of conviction is
rendered without any trial on the issue of guilt,
because the accused had already admitted
committing the crime.13 This Court had also
consistently ruled that for the plea of insanity to
prosper, the accused must present clear and
convincing evidence to support the claim.
Insanity as an exempting circumstance is not easily
available to the accused as a successful defense. It is
an exception rather than the rule on the human
condition. Anyone who pleads insanity as an
exempting circumstance bears the burden of proving
it with clear and convincing evidence. The testimony
or proof of an accused's insanity must relate to the
time immediately preceding or simultaneous with
the commission of the offense with which he is
charged.14
In the case at bar, the defense of insanity of accused-
appellant Roa was supported by the testimony of the
following witnesses: (1) his uncle, Isaac Mejaro
(Mejaro), (2) municipal health worker Mrs. Lourdes
Padregon Sombrero (Sombrero), and (3) Dr. Edessa
Padre-Laguidao (Dr. Laguidao).
Dr. Laguidao testified that in 2001, accused-
appellant was admitted at the Bicol Medical Center,
and was discharged in 2002. She examined accused-
appellant on March 15, 2012 and August 15, 2012.
She evaluated his mental condition and found out
that his answers to her queries were unresponsive,
and yielding a meaningless conversation. She then
diagnosed him as having undifferentiated type of
Schizophrenia, characterized by manifest illusions
and auditory hallucinations which are commanding
in nature. She also recommended anti-psychotic
drug maintenance.15
Mejaro testified that accused-appellant's mental
illness could be attributed to an incident way back in
May 8, 2000, when he was struck on the head by
some teenager. After that incident, accused-
appellant, who used to be silent and very formal,
became very talkative and always talked to himself
and complained of headaches. On September 27,
2001, accused-appellant had a psychotic episode,
prompting his mother to confine him at Don Suzano
Rodriguez Mental Hospital (DSRMH). He was
observed to be well after his confinement. The
illness recurred, however, when he failed to
maintain his medications. The symptoms became
worse in March 2007, when his aunt died. He neither
slept nor ate, and kept walking by himself in the
morning until evening. He did not want to take a
bath, and even quarreled with his mother when told
to do so.16
The foregoing testimonies must be examined in light
of the quantum of proof required, which is that of
clear and convincing evidence to prove that the
insanity existed immediately preceding or
simultaneous to the commission of the offense.
Taken against this standard, the testimonies
presented by accused-appellant unfortunately fail to
pass muster. First, the testimony of Dr. Laguidao to
the effect that accused-appellant was suffering from
undifferentiated schizophrenia stems from her
psychiatric evaluation of the accused in 2012, or
about five years after the crime was committed. His
mental condition five years after the crime was
committed is irrelevant for purposes of determining
whether he was also insane when he committed the
offense. While it may be said that the 2012 diagnosis
of Dr. Laguidao must be taken with her testimony
that the accused was also diagnosed with
schizophrenia in 2001, it is worth noting that the
testimony of Dr. Laguidao as to the 2001 diagnosis of
the accused is pure hearsay, as she had no personal
participation in such diagnosis. Even assuming that
that portion of her testimony is admissible, and even
assuming that it is credible, her testimony merely
provides basis for accused-appellant's mental
condition in 2001 and in 2012, and not immediately
prior to or simultaneous to the commission of the
offense in 2007.
Second, the testimony of Mejaro also cannot be used
as a basis to find that accused-appellant was insane
during the commission of the offense in 2007. His
testimony merely demonstrated the possible
underlying reasons behind accused-appellant's
mental condition, but similar to Dr. Laguidao's
testimony, it failed to shed light on accused-
appellant's mental condition immediately prior to,
during, and immediately after accused-appellant
stabbed the victim without any apparent
provocation.
355 | P a g e
Accused-appellant further argues that the
presumption of sanity must not be applied in his
case, because of the rule that a person who has been
committed to a hospital or to an asylum for the
insane is presumed to continue to be insane. In this
case, however, it is noteworthy that while accused-
appellant was confined in a mental institution in
2001, he was properly discharged therefrom in 2002.
This proper discharge from his confinement clearly
indicates an improvement in his mental condition;
otherwise, his doctors would not have allowed his
discharge from confinement. Absent any contrary
evidence, then, the presumption of sanity resumes
and must prevail.
In fine, therefore, the defense failed to present any
convincing evidence of accused-appellant's mental
condition when he committed the crime in March
2007. While there is evidence on record of his
mental condition in 2001 and in 2012, the dates of
these two diagnoses are too far away from the date
of the commission of the offense in 2007, as to
altogether preclude the possibility that accused-
appellant was conscious of his actions in 2007.
Absent any supporting evidence, this Court cannot
sweepingly conclude that accused-appellant was
mentally insane for the whole 11-year period from
2001 to 2012, as to exempt him criminal liability for
an act committed in 2007. It was the defense's duty
to fill in the gap in accused-appellant's state of mind
between the 2001 diagnosis and the 2012 diagnosis,
and unfortunately, it failed to introduce evidence to
paint a full picture of accused-appellant's mental
condition when he committed the crime in 2007.
With that, the Court has no other option but to
adhere to the presumption of sanity, and conclude
that when accused-appellant attacked the victim, he
was conscious of what he was doing, and was not
suffering from an insanity.
This conclusion is based not merely on the
presumption of sanity, but bolstered by the
circumstances surrounding the incident.1âwphi1 As
the prosecution correctly argued in its Appellee's
Brief, there are circumstances surrounding the
incident that negate a complete absence of
intelligence on the part of accused-appellant when
he attacked the victim. First, he surprised the victim
when he attacked from behind. This is supported by
the companion of the victim, who testified that while
they were walking, they did not notice any danger
when they saw accused-appellant standing near the
trimobile. Second, accused-appellant's attempt to
flee from the scene of the crime after stabbing the
victim indicates that he knew that what he just
committed was wrong. And third, when the police
officers called out to accused-appellant to surrender,
he voluntarily came out of the house where he was
hiding and voluntarily turned himself over to them.
The foregoing actions of accused-appellant
immediately before, during, and immediately after
he committed the offense indicate that he was
conscious of his actions, that he intentionally
committed the act of stabbing, knowing the natural
consequence of such act, and finally, that such act of
stabbing is a morally reprehensible wrong. His
actions and reactions immediately preceding and
succeeding the act of stabbing are similar if not the
same as that expected of a fully sane person.
Therefore, the Court finds no reasonable basis to
reverse the findings of the RTC, as affirmed by the
CA, that accused-appellant's culpability had been
proven beyond a reasonable doubt.
As to the award of damages, however, the Court
finds the need to modify the same, in line with the
rule enunciated in People v. Jugueta, where the
Court laid down the rule that in cases where the
imposable penalty is reclusion perpetua, the proper
amounts of awarded damages should be ₱75,000 as
civil indemnity, ₱75,000 as moral damages and
₱75,000 as exemplary damages, regardless of the
number of qualifying aggravating circumstances
present.
IN VIEW OF THE FOREGOING, the instant appeal is
hereby DISMISSED. The assailed Decision of the
Court of Appeals, promulgated on August 27, 2015,
in CA-GR. CR-H.C. No. 06456, is hereby AFFIRMED
with MODIFICATION. As modified, the fallo of the
Decision must read:
WHEREFORE, in view of the foregoing, the Judgment
dated September 3, 2013 of the Regional Trial Court
of Pili, Camarines Sur, Branch 32, is hereby
AFFIRMED with MODIFICATION. Accused-appellant
Christopher Mejaro Roa is found GUILTY beyond
reasonable doubt of Murder as defined in Article 248
of the Revised Penal Code, and he is sentenced to
suffer the penalty of Reclusion
Perpetua. Accusedappellant is ORDERED to pay the
heirs of the victim, Eliseo Delmiguez, the amount of:
(1) ₱75,000.00 as civil indemnity for the death of the
said victim, (b) ₱75,000.00 as moral damages, and (c)
₱75,000.00 as exemplary damages as provided by
the Civil Code in line with recent jurisprudence, with
costs. In addition, all awards for damages shall bear
legal interest at the rate of six percent (6%) per
annum from the date of finality of judgment until
fully paid.
SO ORDERED.
PRESBITERO J. VELASCO. JR.
Associate Justice
WE CONCUR:
Third DIVISION
356 | P a g e
November 29, 2017 his body; thereby inflicting upon him fatal injuries
which caused his death; to the damage and
G.R. No. 223114 prejudice of the heirs of the victim.
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee When arraigned on 4 April 2011, accused-appellant
vs. pleaded not guilty. Trial ensued.
JONAS PANTOJA Y ASTORGA, Accused-Appellants
Version of the Prosecution
DECISION
The prosecution presented the testimonies of
Cederina Pantoja (Cederina), mother of the accused-
MARTIRES, J.:
appellant, as hostile witness; BBB5 father of the
On automatic review before this Court is the 20 victim; and Dr. Voltaire P. Nulud (Dr. Nulud), a
medico-legal officer of the Philippine National Police
March 2015 Decision1 rendered by the Court of
Southern Police District (PNP-SPD) Crime Laboratory.
Appeals (CA) in CA-G.R. CR.-H.C. No. 06492, which
affirmed with modification the 2 September 2013
Cederina testified that accused-appellant was
Decision2 of the Regional Trial Court (RTC) of Pasig
admitted to the National Center for Mental
City, Branch 163, Taguig City Station, in Criminal Case
Health (NCMH) on 8 July 2010. Prior to that, he had
No. 143350 finding accused-appellant Jonas Astorga
already exhibited signs of mental illness which
Pantoja (accused-appellant) guilty beyond
started manifesting after he was mauled by several
reasonable doubt of the crime of murder and
persons in an altercation when he was twenty-one
sentencing him to reclusion perpetua.
(21) years old. Because of the incident, he sustained
head injuries, which required stitches. No further
THE FACTS
physical examination was conducted on him,
because they did not have the funds to pay for
Accused-appellant was charged in an
additional checkups. Further, Cederina observed that
information3 which reads as follows:
his personality had changed, and he had a hard time
sleeping. There was a time when he did not sleep at
That on or about the 22nd day of July 2010, in the
all for one week, prompting Cederina to bring the
City of Taguig, Philippines, and within the jurisdiction
accused-appellant to the psychiatric department of
of this Honorable Court, the above-named accused,
the Philippine General Hospital (PGH). There, the
with intent to kill, armed with a bladed
attending physician diagnosed him with
weapon (kitchen knife), a deadly weapon, with
schizophrenia.6
treachery, and taking advantage of his superior
strength, did then there willfully, unlawfully,
Accused-appellant escaped from the hospital on 14
treacherously, and feloniously, attack, assault and
July 2010, at around 7:45 in the evening, and arrived
repeatedly stab one [AAA],4 who was 6 years of age
at their house the day after. When Cederina inquired
at the time of the commission of the offense, which
from accused-appellant how he was able to find his
is an act also considered to be cruelty against
way home, accused-appellant responded that he
children, hitting the latter on the different parts of
roamed around until he remembered the correct
jeepney route to their house. Cederina then
informed the NCMH that the accused-appellant was
in her custody, and she was advised to bring him
back to the hospital. However, they were unable to
do so at that time because they could not afford the
transportation expenses.7
On 22 July 2010, at around 8:00 o'clock in the
morning, Cederina and the accused-appellant were
inside their house. She was washing dishes while he
was sitting on the balcony. She kept an eye on him
from time to time but, eventually, she noticed that
accused-appellant was gone. She went outside to
look for him and noticed that the front door of the
house where six-year-old AAA resided was open. She
found this unusual because it was normally closed.
She became nervous when she heard the cry of a
child coming from the house. She entered the house
and, sensing that the cry emanated from upstairs,
she went up.8
She then saw accused-appellant holding a knife and
the victim sprawled on the floor, bloodied. She took
the knife from him and asked him what happened.
He did not respond and appeared dazed. She took
him downstairs and out of the house where she
called out for help for the victim. Nobody responded,
until she saw Glenda, who immediately ran to their
house when Cederina told her that her son AAA had
been hurt.9
After a while, barangay officials arrived and brought
the accusedappellant with them. Cederina later
learned that the victim had died. She went to Glenda
and asked for her forgiveness.10
Cederina further testified that from the time
accused-appellant came home until that fateful
morning of 22 July 2010, he continued to take his
medications. She observed, however, that accused-
357 | P a g e
appellant exhibited odd behavior, such as repeatedly
going in and out of the house.11
Dr. Nulud testified that he conducted an autopsy on
the victim. His examination revealed that the victim
sustained four (4) stab wounds: on his forehead, his
neck, his right shoulder, and below his collar bone.12
BBB testified that he was working in Qatar, when his
son died. He immediately returned to the
Philippines, arriving on 29 July 2010. The victim was
buried a week after.13
He further testified that the family incurred
expenses for their son's funeral service and for his
wake, which lasted for two (2) weeks, in the
amounts of ₱32,000.00 and ₱65,244.00,
respectively. The former has corresponding official
receipts while the latter is evidenced by a
breakdown of expenses prepared by Glenda.14
Version of the Defense
The defense presented the testimonies of accused-
appellant and Cederina.
Accused-appellant testified that he was first
confined for his mental illness at the PGH in 2003
because his mother observed that he was speaking
differently and was starting to hurt people; that he
had been in and out of the hospital for the same
reason since then; that he would be released from
confinement whenever the doctors deemed him well
enough after a series of examinations and
interviews; that the doctors prescribed medicine,
which he had been taking from 2003 up to the time
his testimony was taken; that there was never an
instance when any of the doctors recommended him
to stop taking his medications; that there were times
when he would stop taking his medicine if he felt
that he was well, which was a source of quarrel for
him and his mother; that he knew the victim as his
younger brother's playmate; that he could not recall
what happened on the fateful morning of 22 July
2010.15
The RTC Ruling
The RTC found accused-appellant guilty beyond
reasonable doubt of the crime of murder and
sentenced him to suffer the penalty of reclusion
perpetua. The dispositive portion of the decision
reads:
WHEREFORE, premises considered, Jonas Pantoja y
Astorga is hereby found GUILTY beyond reasonable
doubt of the crime of murder, defined and penalized
under Article 248 of the Revised Penal Code and,
there being no mitigating or aggravating
circumstances, is hereby meted the penalty
of reclusion perpetua without eligibility for parole
conformably with Republic Act No. 9346.
Accused is ordered to pay the heirs of [AAA] the
amounts of ₱65,244.00 by way [of] actual damages,
₱75,000.00 as civil indemnity and ₱50,000.00 as
moral damages. Interest at the rate of six percent
(6%) per annum shall be applied to the award of all
damages from the finality of the judgment until fully
paid.16
The RTC reasoned that all the pieces of evidence
proffered by the defense are insufficient to warrant
a finding that accused-appellant was insane at the
time immediately preceding or simultaneous with
the crime. Consequently, the presumption of sanity
stands.
Aggrieved, accused-appellant appealed before the
CA.
The CA Ruling
The CA affirmed the conviction of the accused-
appellant, with modification as to the award of
damages. The dispositive portion of its decision
reads as follows:
WHEREFORE, the Decision of the Regional Trial Court
of Pasig City, Branch 163, Taguig City Station, in
Criminal Case No. 143350, is hereby AFFIRMED WITH
MODIFICATION in that accused-appellant Jonas
Pantoja y Astorga (JONAS) is ORDERED to pay actual
damages in the amount of ₱35,000,00.17
The CA agreed with the RTC that the evidence of the
defense do not prove that accused-appellant was
insane at the time he committed the crime.
Furthermore, while the CA acknowledged that
accused-appellant has a history of mental illness
which diminished the exercise of his willpower
without depriving him of the consciousness of his
acts, it also ruled that this mitigating circumstance
could not serve to lower the penalty meted against
accused-appellant because reclusion perpetua is a
single and indivisible penalty.
Hence, this appeal.
ISSUE
This Court is tasked to determine whether accused-
appellant has clearly and convincingly proven his
defense of insanity to exempt him from criminal
liability and, in the negative, whether his mental
issues constitute diminished willpower so as to
mitigate his liability and to lower the penalty.
THE COURT'S RULING
358 | P a g e
After a careful evaluation of the records, this Court
sees no reason to overturn the decision of the CA,
except to modify the amount of damages awarded.
The defense of insanity is in the
nature of a confession and
avoidance, requiring defendant
to prove it with clear and
convincing evidence.
The RTC and the CA both found that all the elements
constituting murder exist in the case at bar, with
accused-appellant as the perpetrator. The accused-
appellant did not present evidence controverting
such findings. However, accused-appellant raises the
defense of insanity in claiming that he should not be
found criminally liable.
Insanity is one of the exempting circumstances
enumerated in Article 12 of the Revised Penal
Code, viz:
Art. 12. Circumstances which exempt from criminal
liability. - The following are exempt from criminal
liability:
1. An imbecile or an insane person, unless the latter
has acted during a lucid interval.
xxxx
Strictly speaking, a person acting under any of the
exempting circumstances commits a crime but
cannot be held criminally liable therefor. The
exemption from punishment stems from the
complete absence of intelligence or free will in
performing the act.18
The defense of insanity is thus in the nature of a
confession or avoidance. The defendant who asserts
it is, in effect, admitting to the commission of the
crime. Consequently, the burden of proof shifts to
defendant, who must prove his defense with clear
and convincing evidence.19
In People v. Madarang,20 the Court ruled that a more
stringent standard in appreciating insanity as an
exempting circumstance has been established, viz:
In the Philippines, the courts have established
a more stringent criterion for insanity to be
exempting as it is required that there must be a
complete deprivation of intelligence in committing
the act, i.e., the accused is deprived of reason; he
acted without the least discernment because there is
a complete absence of the power to discern, or that
there is a total deprivation of the will. Mere
abnormality of the mental faculties will not exclude
imputability. (emphasis supplied)
Moreover, the evidence of the defense must
establish that such insanity constituting complete
deprivation of intelligence existed immediately
preceding or simultaneous to the commission of the
crime.21
Thus, for the defense of insanity to prosper, two (2)
elements must concur: (1) that defendant's insanity
constitutes a complete deprivation of intelligence,
reason, or discernment; and (2) that such insanity
existed at the time of, or immediately preceding, the
commission of the crime.
Since no man can know what goes on in the mind of
another, one's behavior and outward acts can only
be determined and judged by proof. Such proof may
take the form of opinion testimony by a witness who
is intimately acquainted with the accused; by a
witness who has rational basis to conclude that the
accused was insane based on the witness' own
perception of the accused; or by a witness who is
qualified as an expert, such as a psychiatrist.22
The proof proffered by accused-
appellant is insufficient to
sustain his defense of insanity.
To prove its assertion, the defense presented the
testimonies of accused-appellant and Cederina. It
also offered in evidence a (1) letter from the NCMH
addressed to Cederina; (2) accused-appellant's
patient identification cards from the NCMH and the
PGH; (3) accused-appellant's clinical record; and (4)
doctor's prescriptions.
A scrutiny of the evidence presented by accused-
appellant unfortunately fails to establish that he was
completely bereft of reason or discernment and
freedom of will when he fatally stabbed the victim.
The paucity in accused-appellant's proof is shown by
the following circumstances:
First, the testimony of Cederina tends to show that
accused-appellant exhibited signs of mental illness
only after being injured in an altercation in 2003;
that she observed changes in his personality and
knew he had difficulty sleeping since then; that
accused-appellant was confined in the hospital a few
times over the years for his mental issues; and that
he was confined at the NCMH on 8 July 2010 from
where he subsequently escaped. Nothing in her
testimony pointed to any behavior of the accused-
appellant at the time of the incident in question, or
in the days and hours before the incident, which
could establish that he was insane when he
committed the offense, as seen from the following
exchange during trial:
Prosecutor
(to Cederina)
359 | P a g e
Q. And where were you on July 22, 2010 at around Q. And when you went up, what did you see? If any.
past 8:00 in the morning?
A. Nakita ko po, yung anak ko po, may hawak pong
A. At our house, sir. kutsilyo, sir.
Q. So when you were at your house, what Q. And what else did you see?
happened?
A. I saw Evo bloodied and sprawled on the floor, sir.
A. My son at that time was seated at our balcony of (emphasis supplied)
our house while I was washing the dishes. And I was
looking at him from there, then later on, I noticed xxxx
that he was gone, sir.
Defense attorney
Q. And when you noticed that your son was no
longer at the place where you saw him last, what (to Cederina)
happened next?
Q. Now, on July 22, 2010, you said that you were
A. I went outside and looked for him, sir. inside your house while Jonas was out on the
terrace.
Q. And what happened when you were looking for
him? A. Yes, ma' am.
A. I saw the front door of the house of Glenda open Q. Were (sic) he still on medication?
and I heard the cry of the child, sir.
A. Yes, ma'am.
Q. So when you heard the cry of the child, what did
you do next?
Q. And when he was in your house, I'd like withdraw
that, Your Honor. When he was under your custody,
A. Kinabahan po ako, kasi po bukas po yung pinto ng did he take his pills?
bahay nila, dahil hindi naman po dating bukas 'yon
dahil laging sarado. Tapos po, kinabahan ako. Inano
A: Yes, ma'am.
ko po, pinakinggan ko yung iyak ng bata. Pumasok
po ako, kasi nga, parang kinabahan ako. Tapos po,
Q. Now, what did you observe of him when he was
pag-ano, walang tao po, sabahay po nila (the voice
still in your custody?
of the witness starts to tremble), tapos po,
pinakinggan ko po yung iyak. Nasa taas po yung
iyak. Umakyat po ako. (The witness is teary-eyed.) A Para naman po sivang ano, magaling. tapos balisa
po sya nagikot po siya ng ikot pag gabi, ma'am.
xxxx
Q. You said, "ikot siya ng ikot." What do you mean?
A. Lalabas po sya ng bahay tapos po papasok. Labas-
pasok po siya ng bahay, ma'am.
Q. Okay, did you ask him if he was religiously taking
his medicines?
A. I'm the one giving him his medicines, ma'am.
Q. Now, did you ask him why he was acting that
way?
A. Yes, ma'am.
Q. And what was his reply?
A. Ang sabi po niya, bumili Jang daw po siya ng
sigarilyo, ma 'am.
Q. At that point oftime, did he also take drugs?
A. I don't know, ma'am.
Q. You did not ask him if he took drugs?
A. No, ma'am, hindi ko naman po sya nakikita na
nagda-drugs.23 (emphasis and underlining supplied)
The foregoing narration does not attribute to
accused-appellant any behavior indicative of insanity
at the time of, or immediately preceding, the
incident. His seemingly odd behaviour of repeatedly
going in and out of the house in the days prior to the
incident does not, in any way, demonstrate his
insanity.
In People v. Florendo,24 the Court held that "the
prevalent meaning of the word 'crazy' is not
synonymous with the legal terms 'insane,' 'non
compos mentis,' 'unsound mind,' 'idiot,' or 'lunatic.'
The popular conception of the word 'crazy' is being
360 | P a g e
used to describe a person or an act unnatural or out Defense attorney
of the ordinary. A man may behave in a crazy
manner but it does not necessarily and conclusively (to accused-appellant)
prove that he is legally so." Not every aberration of
the mind or mental deficiency constitutes insanity.25 Q. Are you an out-patient of the Mental Hospital or
an in-patient?
For purposes of exemption from criminal liability,
mere behavioral oddities cannot support a finding of A. I'm being released whenever I'm fine and well.
insanity unless the totality of such behavior
indubitably shows a total absence of reason,
Q. And what are the conditions before you are
discernment, or free will at the time the crime was
released, what are the conditions asked by your
committed.
doctor?
As admitted by Cederina, prior to the incident, there
A. We were examined and interviewed many times
were moments when she observed that accused-
and also given tests before we can be declared
appellant appeared well. On the day in question and
mentally fit to be released.28 (emphasis and
immediately preceding the incident, no improper,
underlining supplied)
violent or aberrant behavior was observed of
accused-appellant, as he was merely sitting on the
Thus, even assuming accused-appellant was insane,
balcony before he suddenly disappeared to go to the
such insanity was clearly not continuous, as he had
victim's house. During the commission of the crime
lucid intervals. Consequently, it is presumed that he
itself, there were no eyewitnesses who could relay
was sane, or was in a lucid interval, at the time he
the behavior of accused-appellant, as even Cederina
committed the crime.
happened upon the accused-appellant and the
victim only after the stabbing incident.
Third, the documents offered in evidence by the
defense do not categorically state that accused-
Second, accused-appellant testified that he was
appellant was insane; nor do they show when he
admitted to the hospital for his mental illness several
became insane; whether such insanity constituted
times prior to the incident, which is corroborated by
absolute deprivation of reason, intelligence, and
the testimony of his mother and in a report26 on his
discernment; and whether such insanity existed at
mental condition issued by the NCMH on 21
the time he committed the crime. No expert
February 2011. This fact, however, does not also
testimony was also presented to testify on such.
prove that he was insane at the time he committed
the crime. Prior confinement at a mental institution
does not, by itself, constitute proof of insanity at the As correctly held by the R TC, the letter from the
time of the commission of the crime.27 Even accused- NCMH merely informed Cederina of the accused-
appellant admitted during trial that he was released appellant's escape on 14 July 2010; but the fact that
from confinement from time to time, which resulted he was able to escape unnoticed from the institution
after doctors deemed him well after a series of and to return home by himself is indicative of
examinations and interviews, to wit: reasonable intelligence and free will merely a week
before the commission of the crime. The patient's
identification cards29 issued by the NCMH and the
PGH are only indicative of accused-appellant's
admission therein, which is not disputed, and
nothing else. The clinical abstract30 issued by PGH,
while diagnosing accused-appellant with paranoid
schizophrenia, appears to have been issued on 18
February 2007, years before the commission of the
crime and could not serve as basis to rule that he
was insane when he committed it. Finally, the
doctor's prescription slips only contain the
medications prescribed, but do not show the specific
illness targeted by the medicine.
A consideration of all the foregoing pieces of
evidence clearly does not point to accused-
appellant's insanity at the time he committed the
crime.
Since the victim was a child of
tender years, treachery was
properly appreciated against
accused-appellant.
The RTC properly considered the killing as murder
qualified by treachery, thereby warranting the
imposition of reclusion perpetua.
Well-settled is the rule that treachery exists when
the prosecution has sufficiently proven the
concurrence of the following elements: (1) the
accused employs means of execution that gives the
person attacked no opportunity to defend himself or
to retaliate; and (2) the means of execution was
deliberate or consciously adopted.31
This Court has held that the killing of a child is
characterized by treachery even if the manner of the
assault is not shown because the weakness of the
victim due to his tender age results in the absence of
any danger to the accused.32
361 | P a g e
Considering that the victim in this case was only six
(6) years old, treachery attended his murder.
Even if the mitigating
circumstance of diminished
willpower were to be considered
in accused-appellant's favor, it
cannot be a basis for changing
the nature of the crime nor for
imposing a penalty lower than
that prescribed by law.
Accused-appellant contends that even assuming his
insanity was not sufficiently proven, the Court
should convict him of homicide only because the
defense has proven that he has an illness which
diminishes the exercise of his willpower without,
however, depriving him of the consciousness of his
acts.
This contention is without merit. At the outset, the
presence of mitigating circumstances does not
change the nature of the crime. It can only affect the
imposable penalty, depending on the kind of penalty
and the number of attendant mitigating
circumstances.
While the evidence of accused-appellant does not
show that he was completely deprived of
intelligence or consciousness of his acts when he
committed the crime, there is sufficient indication
that he was suffering from some impairment of his
mental faculties; thus, he may be credited with the
mitigating circumstance of diminished willpower.
Under Art. 248 of the Revised Penal Code, as
amended by R.A. No. 7659, murder shall be
punishable by the penalty of reclusion perpetua to
death. It is composed of two indivisible penalties,
warranting the application of Article 63 of the
Revised Penal Code, viz:
Article 63. Rules for the Application of Indivisible
Penalties. - In all cases in which the law prescribes a
single indivisible penalty, it shall be applied by the
courts regardless of any mitigating or aggravating
circumstances that may have attended the
commission of the deed.
In all cases in which the law prescribes a penalty
composed of two indivisible penalties, the following
rules shall be observed in the application thereof:
1. When in the commission of the deed there is
present only one aggravating circumstance, the
greater penalty shall be applied.
2. When there are neither mitigating nor aggravating
circumstances in the commission of the deed, the
lesser penalty shall be applied.
3. When the commission of the act is attended by
some mitigating circumstance and there is no
aggravating circumstance, the lesser penalty shall be
applied.
4. When both mitigating and aggravating
circumstances attended the commission of the act,
the courts shall reasonably allow them to offset one
another in consideration of their number and
importance, for the purpose of applying the penalty
in accordance with the preceding rules, according to
the result of such compensation. (emphasis
supplied)
Clearly, the RTC properly imposed the penalty
of reclusion perpetua.
The amount of damages must
be modified.
Present jurisprudence holds that when the
circumstances surrounding the crime call for the
imposition of reclusion perpetua only, there being no
ordinary aggravating circumstance, the proper
amounts for damages should be ₱75,000.00 as civil
indemnity, ₱75,000.00 as moral damages, and
₱75,000.00 as exemplary damages, regardless of the
number of qualifying aggravating circumstances
present.33 In conformity thereto, the Court awards
the foregoing damages in the instant case.
WHEREFORE, the Court finds accused-appellant
Jonas Pantoja y Astorga GUILTY beyond reasonable
doubt of murder under Article 248 of the Revised
Penal Code, as amended, and is sentenced
to reclusion perpetua. The 20 March 2015 Decision
of the Court of Appeals in CA-G.R. CR.-H.C. No.
06492 is AFFIRMED with MODIFICATION in that the
heirs of the victim are entitled to ₱75,000.00 as civil
indemnity, ₱75,000.00 as moral damages, and
₱75,000.00 as exemplary damages. The award of
damages shall earn interest at the rate of six percent
(6%) per annum from the date of finality of the
judgment until fully paid.
SO ORDERED.
SAMUEL R. MARTIRES
Associate Justice
WE CONCUR:
SECOND DIVISION
G.R. No. 216021, March 02, 2016
SOLOMON VERDADERO Y
GALERA, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
362 | P a g e
DECISION
MENDOZA, J.:
The expectations of a person possessed with full
control of his faculties differ from one who is totally
deprived thereof and is unable to exercise sufficient
restraint on his. Thus, it is but reasonable that the
actions made by the latter be measured under a
lesser stringent standard than that imposed on those
who have complete dominion over their mind, body
and spirit.
This petition for review on certiorari seeks to reverse
and set aside the July 10, 2014 Decision1 and the
December 15, 2014 Resolution2 of the Court of
Appeals (CA) in CA-G.R. CR No. 35894 which affirmed
the May 30, 2013 Judgment3 of the Regional Trial
Court, Branch 03, Tuguegarao City (RTC) in Criminal
Case No. 13283, finding accused Solomon
Verdadero y Galera (Verdadero) guilty beyond
reasonable doubt of the crime of Homicide, defined
and penalized under Article 249 of the Revised Penal
Code (RPC).
The Facts
In an Information,4 dated September 9, 2009,
Verdadero was charged with the crime of murder for
killing Romeo B. Plata (Romeo), the accusatory
portion of which reads:
chanRoblesvirtualLawlibrary
That on or about March 12, 2009, in the municipality
of Baggao, Province of Cagayan, and within the
jurisdiction of this Honorable Court, the said
accused SOLOMON VERDADERO armed with a
Rambo knife, with intent to kill, evident
premeditation and with treachery, did then and
there wilfully, unlawfully and feloniously attack,
assault and stab ROMEO B. PLATA, thereby inflicting
upon him stab wounds on the different parts of his
body which caused his death.
Contrary to law.5ChanRoblesVirtualawlibrary
On June 3, 2011, Verdadero was arraigned and
pleaded "Not Guilty." During the pre-trial, he
invoked the defense of insanity but did not consent
to a reverse trial. Thereafter, trial ensued.6
Evidence of the Prosecution
The evidence of the prosecution tended to establish
the following:
On March 12, 2009, at around 3:00 o'clock in the
afternoon, Maynard Plata (Maynard) and his father
Romeo were at the Baggao Police Station. Together
with Ronnie Elaydo (Ronnie), they went there to
report that Verdadero had stolen the fan belt of
their irrigation pump.7
After a confrontation with Verdadero at the police
station, the three men made their way home on a
tricycle but stopped at a drugstore as Maynard
intended to buy some baby supplies. Romeo
proceeded towards a store near the drugstore while
Ronnie stayed inside the tricycle. From the drug
store, Maynard saw Verdadero stabbing Romeo,
after he was alerted by the shouts of Ronnie.8
Verdadero stabbed Romeo on the left side of the
latter's upper back with the use of a Rambo knife. He
again struck Romeo's upper back, just below the
right shoulder. Maynard tried to help his father but
Verdadero attempted to attack him as well. He
defended himself using a small stool, which he used
to hit Verdadero in the chest.9
Meanwhile, Ronnie ran towards the police station to
seek assistance. The responding police officers
arrested Verdadero, while Maynard and Ronnie
brought Romeo to a clinic but were advised to bring
him to the Cagayan Valley Medical Center (CVMC).
Romeo, however, died upon arrival at the CVMC.
Based on the Post-Mortem Examination Report, his
cause of death was cardiopulmonary arrest
secondary to severe hemorrhage secondary to
multiple stab wounds and hack wounds.10
Evidence of the Defense
The evidence for the defense did not refute the
material allegations but revolved around
Verdadero's alleged insanity, to wit:
Since 1999, Verdadero had been an outpatient of
CVMCs Psychiatric Department as he claimed to hear
strange voices and had difficulty in sleeping.
Sometime in 2001, Miriam Verdadero (Miriam),
Verdadero's sister, again brought him to the
Psychiatric Department of CVMC after he became
violent and started throwing stones at a tricycle with
a child on board. Verdadero was confined for two (2)
months and was diagnosed to be suffering from
mental depression.
On July 21, 2003, he was diagnosed with
schizophrenia and was given medications to address
his mental illness. Verdadero would irregularly
consult with his doctors as he had a lifelong chronic
disease. Then, in 2009, he was again confined for the
fourth (4th) time at CVMC due to a relapse.
On March 12, 2009, Miriam proceeded to CVMC,
after she heard of the stabbing incident. There, she
saw Verdadero removing the IV tubes connected to
his body and, thereafter, locked himself inside the
comfort room. Eventually, Verdadero was given
sedatives and was transferred to an isolation room
after Miriam informed the nurses of the incident. 11
On March 20, 2009, he was transferred to the
Psychiatry Department after Dr. Leonor Andres-
Juliana (Dr. Andres-Juliana) had diagnosed that he
363 | P a g e
was having difficulty sleeping. Dr. Andres-Juliana
opined that Verdadero suffered a relapse, as
evidenced by his violent behaviour.
Acting on the January 4, 2011 Order of the RTC, Dr.
Ethel Maureen Pagaddu (Dr. Pagaddu) conducted a
mental examination on Verdadero. She confirmed
that as early as 1999, he was already brought to
CVMC and that he was diagnosed with schizophrenia
on July 21, 2003. Dr. Pagaddu agreed with Dr.
Andres-Juliana that Verdadero had suffered a
relapse on the day of the stabbing incident.12
The RTC Ruling
On May 30, 2013, the RTC rendered a decision
finding Verdadero guilty for the crime of homicide.
The dispositive portion of which reads:
chanRoblesvirtualLawlibrary
WHEREFORE, in light of the foregoing, this Court
finds the accused SOLOMON VERDADERO y Galera
GUILTY beyond reasonable doubt of the felony of
Homicide, defined and penalized under Article 249
of the Revised Penal Code, as amended, and hereby
sentences him:
1. To suffer an indeterminate prison sentence
ranging from twelve (12) years of prision mayor [as
maximum] as minimum to seventeen (17) years and
four (4) months of reclusion temporal medium, as
maximum; and,
2. To pay the heirs of Romeo Plata the amounts of:
a. P50,000.00 as death indemnity;
b. P50,000.00 as moral damages and
c. P30,000.00 as stipulated actual damages; and,
3. To pay the costs.
SO ORDERED.13ChanRoblesVirtualawlibrary
The RTC ruled that the crime committed was only
homicide, as the prosecution failed to establish the
presence of treachery and evident premeditation to
qualify the killing to murder. The trial court,
however, opined that Verdadero failed to establish
insanity as an exempting circumstance. The trial
court posited that Verdadero was unsuccessful in
establishing that he was not in a lucid interval at the
time he stabbed Romeo or that he was completely of
unsound mind prior to or coetaneous with the
commission of the crime.
Aggrieved, Verdadero appealed before the CA.
The CA Ruling
In its July 10, 2014 Decision, the CA upheld
Verdadero's conviction of homicide. The appellate
court agreed that the defense was able to establish
that Verdadero had a history of schizophrenic
attacks, but was unable to prove that he was not
lucid at the time of the commission of the offense.
The decretal portion of the decision states:
chanRoblesvirtualLawlibrary
WHEREFORE, in view of the foregoing, the Appeal
is DENIED. The Judgment, dated May 30, 2013,
rendered by the Regional Trial Court of Tuguegarao
City, Branch 3 in Criminal Case No. 13283,
is AFFIRMED.
SO ORDERED.14ChanRoblesVirtualawlibrary
Verdadero moved for reconsideration, but his
motion was denied by the CA in its resolution, dated
December 15, 2014.
Hence, this present petition, raising the following
ISSUE
WHETHER THE COURT OF APPEALS GRAVELY ERRED
IN AFFIRMING THE PETITIONER'S CONVICTION
DESPITE THE FACT THAT HIS INSANITY AT THE TIME
OF THE INCIDENT WAS ESTABLISHED BY CLEAR AND
CONVINCING EVIDENCE.
Verdadero insists that he was able to fully support
his defense of insanity. He claims that Maynard even
admitted that he was not in the proper state of mind
when they were at the police station before the
stabbing took place. Further, it appeared that
Verdadero was having hallucinations after the
stabbing incident as testified to by Dr. Andres-
Juliana. Verdadero notes that Dr. Pagaddu concluded
that he had a relapse at the time of the stabbing
incident on March 12, 2009.
In its Comment,15 the Office of the Solicitor General
(OSG) contended that the present petition presented
a question of fact, which could not be addressed in a
petition for review under Rule 45 of the Rules of
Court. Moreover, it asserted that the CA did not
misapprehend the facts as the evidence presented
failed to completely establish Verdadero's insanity at
the time of the stabbing.
In his Manifestation (in Lieu of Reply),16 Verdadero
indicated that he would no longer file a reply as his
petition for review already contained an exhaustive
discussion of the issues.
The Court's Ruling
The present petition primarily assails the conviction
despite his defense of insanity. Before delving into
the merits of the case, a discussion of the procedural
issue is in order.
Only questions of law may be raised in a petition for
review under Rule 45; Exceptions
The OSG argues that the Court should not entertain
Verdadero's petition for review as it principally
revolves around the issue of his insanity — a
question of fact which should no longer be
364 | P a g e
addressed in a petition for review. The Court
disagrees.
Generally, questions of fact are beyond the ambit of
a petition for review under Rule 45 of the Rules of
Court as it is limited to reviewing only questions of
law. The rule, however, admits of exceptions
wherein the Court expands the coverage of a
petition for review to include a resolution of
questions of fact. In Laborte v. Pagsanjan Tourism
Consumers' Cooperative et al.,17 the Court reiterated
the following exceptions to the rule that only
questions of law may be raised under Rule 45, to wit:
(1) when the findings are grounded entirely on
speculations, surmises, or conjectures; (2) when the
inference made is manifestly mistaken, absurd, or
impossible; (3) when there is a grave abuse of
discretion; (4) when the judgment is based on
misappreciation of facts; (5) when the findings of
fact are conflicting; (6) when in making its findings,
the same are contrary to the admissions of both
appellant and appellee; (7) when the findings are
contrary to those of the trial court; (8) when the
findings are conclusions without citation of specific
evidence on which they are based; (9) when the
facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by
the respondent; and (10) when the findings of fact
are premised on the supposed absence of evidence
and contradicted by the evidence on record.
The present petition mainly delves into Verdadero's
state of mind at the time of the stabbing incident.
Obviously, it is a question of fact, which, ordinarily is
not entertained by the Court in a petition for review.
As will be discussed below, the Court, nevertheless,
finds that the circumstances in the case at bench
warrant the application of the exception rather than
the rule.
Insanity must be present at the time the crime had
been committed
To completely evade culpability, Verdadero raises
insanity as a defense claiming that he had suffered a
relapse of his schizophrenia. Under Article 12 of the
RPC, an imbecile or an insane person is exempt from
criminal liability, unless the latter had acted during a
lucid interval. The defense of insanity or imbecility
must be clearly proved for there is a presumption
that the acts penalized by law are voluntary.18
In the case at bench, it is undisputed that (1) as early
as 1999, Verdadero was brought to the Psychiatric
Department of CVMC for treatment; (2) he was
diagnosed with depression in 2001; (3) he was
diagnosed with schizophrenia on July 21, 2003; (4)
he was confined in the psychiatric ward sometime in
2009 due to a relapse; (5) he was in and out of
psychiatric care from the time of his first
confinement in 1999 until the stabbing incident; and
(6) he was diagnosed to have suffered a relapse on
March 20, 2009.
Thus, it is without question that he was suffering
from schizophrenia and the only thing left to be
ascertained is whether he should be absolved from
responsibility in killing Romeo because of his mental
state.
Schizophrenia is a chronic mental disorder
characterized by inability to distinguish between
fantasy and reality, and often accompanied by
hallucinations and delusions.19 A showing that an
accused is suffering from a mental disorder,
however, does not automatically exonerate him
from the consequences of his act. Mere abnormality
of the mental faculties will not exclude
imputability.20
In People v. Florendo,21 the Court explained the
standard in upholding insanity as an exempting
circumstance, to wit:
chanRoblesvirtualLawlibrary
Insanity under Art. 12, par. 1, of The Revised Penal
Code exists when there is a complete deprivation of
intelligence in committing the act, i.e., appellant is
deprived of reason; he acts without the least
discernment because of complete absence of the
power to discern; or, there is a total deprivation of
freedom of the will. The onus probandi rests upon
him who invokes insanity as an exempting
circumstance, and he must prove it by clear and
convincing evidence.
[Emphasis Supplied]
22
In People v. Isla, the Court elucidated that insanity
must relate to the time immediately preceding or
simultaneous with the commission of the offense
with which the accused is charged. Otherwise, he
must be adjudged guilty for the said offense. In
short, in order for the accused to be exempted from
criminal liability under a plea of insanity, he must
categorically demonstrate that: (1) he was
completely deprived of intelligence because of his
mental condition or illness; and (2) such complete
deprivation of intelligence must be manifest at the
time or immediately before the commission of the
offense.
In raising the defense of insanity, Verdadero admits
to the commission of the crime because such
defense is in the nature of a confession or
avoidance.23 As such, he is duty bound to establish
with certainty that he was completely deprived, not
merely diminished, of intelligence at the time of the
commission of the crime. Failing which, Verdadero
should be criminally punished for impliedly admitting
to have stabbed Romeo to death.
Proving insanity is a tedious task for it requires an
examination of the mental state of the accused.
In People v. Opuran24 the Court explained how one's
365 | P a g e
insanity may be established, to wit:
chanRoblesvirtualLawlibrary
Since insanity is a condition of the mind, it is not
susceptible of the usual means of proof. As no man
can know what is going on in the mind of another,
the state or condition of a person's mind can only be
measured and judged by his behavior. Thus, the
vagaries of the mind can only be known by outward
acts, by means of which we read the thoughts,
motives, and emotions of a person, and then
determine whether the acts conform to the practice
of people of sound mind.
Insanity is evinced by a deranged and perverted
condition of the mental faculties which is manifested
in language and conduct. xxx
Establishing the insanity of an accused often requires
opinion testimony which may be given by a witness
who is intimately acquainted with the accused; has
rational basis to conclude that the accused was
insane based on his own perception; or is qualified
as an expert, such as a psychiatrist.
In the earlier case of People v. Austria,25 the Court
elucidated that evidence of the mental condition of
the accused during a reasonable period before and
after the commission of the offense is material, to
wit:
chanRoblesvirtualLawlibrary
In order to ascertain a person's mental condition at
the time of the act, it is permissible to receive
evidence of his mental condition during a reasonable
period before and after. Direct testimony is not
required nor are specific acts of disagreement
essential to establish insanity as a defense. A
person's mind can only be plumbed or fathomed by
external acts. Thereby his thoughts, motives and
emotions may be evaluated to determine whether
his external acts conform to those of people of
sound mind. To prove insanity, clear and convincing
circumstantial evidence would suffice.
Guided by the precepts laid out by the above-
mentioned jurisprudence, the Court finds that
Verdadero sufficiently proved that he was insane at
the time of the stabbing. Thus, the Court takes a
view different from that of the CA as the latter
concluded that Verdadero's insanity was not clearly
proven.
It is true that there is no direct evidence to show
Verdadero's mental state at the exact moment the
crime was committed. This, however, is not fatal to
the finding that he was insane. His insanity may still
be shown by circumstances immediately before and
after the incident. Further, the expert opinion of the
psychiatrist Dr. Pagaddu may also be taken into
account.
Dr. Pagaddu categorically testified that Verdadero
was suffering a relapse at the time of the stabbing
incident. During her testimony, she stated as follows:
chanRoblesvirtualLawlibrary
On direct examination
Atty. Tagaruma
Q: By the way what was the mental condition of the
accused referred which involved your diagnosis as a
life long chronic disease?
Witness
A: The accused was diagnosed schizophrenia, sir.
Q: When for the first time Solomon Verdadero was
diagnosed with schizophrenia?
A: It was on July 21, 2003, sir. xxx
Q: As an expert witness tell the Honorable Court if a
person who has relapse of schizophrenia could
distinguish his act?
A: This mental disorder influence (sic) the impulse. It
could at the time of the commission of the crime
that the impulse control and judgment of an
individual was affected sir.
Q: Could it be accurate to state that a person who
has the relapse of schizophrenia could not
distinguish any act from right or wrong?
A: There is a possibility, sir.
Court
Q: Why did you say that Solomon Verdadero has the
possibility of relapse upon admission on March 19,
2009?
A: There was a period of relapse meaning the
symptom was present and there must be a remission
if the symptom is abated, your Honor.
xxx
Atty. Tagaruma
Q: You have read for the record the report of Dr.
Juliana on the alleged violent behavior of Solomon
Verdadero on March 12, 2009 which is the date of
the incident, as an expert psychiatrist is it possible
that the violent behavior of Solomon Verdadero on
March 12, 2009 was the basis of Dr. Juliana in
diagnosing that the accused was in relapse upon
admission on March 12, 2009?
A: Yes sir.
Q: Following the remark of scientific conclusion of
Dr. Juliana, Dr. Janet Taguinod and the conclusion
made by you, is it also your conclusion that Solomon
Verdadero was in relapse on March 12, 2009 due to
violent behavior?
A: Yes, sir.
On cross examination
Prosecutor Aquino
Q: But definitely during the disorder of the patient,
the relapse would somewhat be continued even
366 | P a g e
when medications is administered to him?
A: The symptom is controlled although there is a
circumstances (sic) that the patient may have relapse
(sic) even with medication, sir.
Q: If a continuous medication was undertaken by the
accused-patient in this case could that have a long
effect on his mental condition?
A: Continuous medication could somehow control
the symptom and not absolutely eradicate the
symptom.
Q: On March 12 , 2009 the accused-patient was on a
lucid interval, in view of the medication undertaken
as of January 19, 2009?
A: It's haphazard, sir.
xxx
Court
Q: Madam witness what type of schizophrenia the
accused was diagnosed?
A: Undifferentiated, your honor.26
[Emphases Supplied]
Dr. Paggadu, without any reservations, stated that
Verdadero was suffering a relapse of his
schizophrenia at the time of the stabbing incident. In
contrast, she was hesitant to opine that Verdadero
might have been in a lucid interval because of the
medications taken. Thus, it is reasonable to
conclude, on the basis of the testimony of an expert
witness, that Verdadero was of unsound mind at the
time he stabbed Romeo.
Further, the finding of Verdadero's insanity is
supported by the observations made by Maynard, a
witness for the prosecution. In his testimony,
Maynard gave his opinion on Verdadero's behavior
and appearance when they met at the police station,
to wit:
chanRoblesvirtualLawlibrary
On cross examination
Atty. Tagurama
Q: Having made the report against Solomon
Verdadero, do I (sic) correct to say that you are
familiar with Solomon Verdadero even before March
12, 2009?
A: Yes, sir.
Q: Tell us why you are familiar to him even prior to
March 12, 2009?
A: We are neighbors, sir.
Q: You are immediate neighbors?
A: Yes, sir
Q: Since you are neighbors with Solomon Verdadero
you see him almost a (sic) time?
A: Yes, sir. I saw him daily.
Q: When you see Solomon Verdadero daily you see
his actuation?
A: Yes, sir.
xxx
Q: Sometimes he boxes when he is not in his proper
mind, what aberrant behavior did you observe from
him?
A: That's the only thing I observed and sometimes he
steal (sic), sir.
Q: For a long time that Solomon Verdadero is your
neighbor does his relapse or what you called not in
his proper mind occurred often?
A: It occurred once in a while, sir.
Q: When you said it occurred once in a while, this
relapse may occur once a week?
A: Yes, sir. remember his actuation or how he was reacting?
A: Yes, your honor. He was somewhat drank (sic).
Q: Prior to March 12, 2009, when did you first
observe that Solomon Verdadero appears not in his Q: You said that he was not on his proper mind for
proper mind? the passed (sic) years?
A: He was not in his proper mind for a long time, sir. A: Yes, your honor.27cralawred
Q: Maybe it could be 5 months before March 12, [Emphases Supplied]
2009? Maynard was familiar with Verdadero as the latter
A: Yes, sir. was his neighbor for a long time. He had observed
that there were times that Verdadero appeared to
xxx be of unsound mind as he would sometimes become
violent. On the day of the stabbing incident,
Court Maynard perceived that Verdadero was again of
Q: You testified that you observed the accused not in unsound mind noting that he had reddish eyes and
his proper mind for the passed (sic) years before this appeared to be drunk. Moreover, he was
incident was he also violent like what happened on immediately transferred to the psychiatry
March 12, 2009? department because of his impaired sleep and to
control him from harming himself and others.28
Witness
A: Yes, your honor. These circumstances are consistent with Dr.
Paggadu's testimony that drinking wine, poor sleep
Q: When you went to the police station you allegedly and violent behavior were among the symptoms of a
reported the stolen fan belt do I get you right that relapse, the same testimony that was used as basis
Solomon Verdadero was with you at the police for his previous diagnosis.29 The evidence on record
station? supports the finding that Verdadero exhibited
A: Yes, your honor. symptoms of a relapse of schizophrenia at the time
of the stabbing incident. Thus, Dr. Pagaddu
Q: When he was with you at the police station what reiterated Dr. Andre-Juliana's conclusion that
did you observe? Verdadero was having a relapse of his illness on that
A: He was not again in his proper mind (sumro fateful day.
manen), your Honor.
Further, on March 22, 2009, he was officially
xxx diagnosed to have suffered a relapse of
schizophrenia. Generally, evidence of insanity after
Q: Can you describe his appearance? the commission of the crime is immaterial. It,
A: His eyes was (sic) very sharp and reddish. however, may be appreciated and given weight if
there is also proof of abnormal behavior before or
xxx simultaneous to the crime.30
Q: As far as his appearance is concern (sic) do you Indeed, the grant of absolution on the basis of
367 | P a g e
insanity should be done with utmost care and
circumspection as the State must keep its guard
against murderers seeking to escape punishment
through a general plea of insanity.31 The
circumstances in the case at bench, however, do not
indicate that the defense of insanity was merely
used as a convenient tool to evade culpability.
The Court notes that at the very first opportunity,
Verdadero already raised the defense of insanity and
remained steadfast in asserting that he was deprived
of intelligence at the time of the commission of the
offense. He no longer offered any denial or alibi and,
instead, consistently harped on his mental
incapacity. Unlike in previous cases32 where the
Court denied the defense of insanity as it was raised
only when the initial defense of alibi failed to
prosper, Verdadero's alleged insanity was not a mere
afterthought.
In exonerating Verdadero on the ground of insanity,
the Court does not totally free him from the
responsibilities and consequences of his acts. Article
12(1) of the RPC expressly states that "[w]hen an
insane person has committed an act which the law
defines as a felony, the court shall order his
confinement in one of the hospitals or asylums
established for persons thus afflicted, which he shall
not be permitted to leave without first obtaining the
permission of the same court." Instead of
incarceration, Verdadero is to be confined in an
institution where his mental condition may be
addressed so that he may again function as a
member of society. He shall remain confined therein
until his attending physicians give a favorable
recommendation for his release.
Verdadero still liable for damages in spite of his
exoneration
In appreciating insanity in favor of Verdadero, the
Court absolves him from criminal responsibility. He
is, nevertheless, responsible to indemnify the heirs
of Romeo for the latter's death. An exempting
circumstance, by its nature, admits that criminal and
civil liabilities exist, but the accused is freed from the
criminal liability.33
The amount of damages awarded, however, must be
modified in order to conform to recent
jurisprudence.34 The P50,000.00 civil indemnity and
P50,000.00 moral damages awarded by the RTC
must each be increased to P75,000.00. In addition,
an interest at the rate of six per cent (6%) per annum
should be imposed on all damages awarded
computed from the finality of the decision until the
same have been fully paid.chanrobleslaw
WHEREFORE, the Court grants the petition
and ACQUITS accused-appellant Solomon
Verdadero y Galera of Homicide by reason of
insanity. He is ordered confined at the National
Center for Mental Health for treatment and shall be
released only upon order of the Regional Trial Court
acting on a recommendation from his attending
physicians from the institution.
He is also ordered to pay the heirs of Romeo B. Plata
the amounts of P75,000.00 as civil indemnity;
P75,000.00 as moral damages; and P30,000.00 as
stipulated actual damages, plus interest on all
damages awarded at the rate of 6% per annum from
the date of finality of this decision until the same
shall have been fully paid.
SO ORDERED.cralawlawlibrary
Carpio, (Chairperson), Del Castillo, and Leonen, JJ.,
concur.
Brion, J., on leave.chanroblesvirtuallawlibrary
368 | P a g e
Republic of the Philippines Contrary to law. 1
SUPREME COURT
Manila The appellant having entered a plea of not guilty on
arraignment, the case proceeded to trial. On 10 May
THIRD DIVISION 1990, judgment was rendered by the trial court with
the following dispositive portion:
WHEREFORE, finding the accused
Laroy Buenaflor y Tuazon, alias
G.R. No. 93752 July 15, 1992
"Larry," guilty beyond reasonable
doubt of the crime of rape under
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
Article 335, paragraph 1 of the
vs.
Revised Penal Code, as amended,
LAROY BUENAFLOR y TUAZON alias
he is hereby sentenced to suffer
"Larry," defendant-appellant.
the penalty of reclusion perpetua.
The accused is further ordered to
indemnify the offended party,
Isabella Federis, the sum of
FELICIANO, J.:
P30,000.00 and to pay the costs of
suit.
Laroy Buenaflor, who was charged with and
convicted of rape and sentenced to suffer the
SO ORDERED. 2
penalty of reclusion perpetua and to indemnify the
offended party in the sum of P30,000.00 and the
The facts constituting the offense were
costs of suit, is before the Court on appeal.
summarized by the trial court in its decision
in the following manner:
The complaint filed by the offended party, Isabella
Federis, against appellant Buenaflor reads as follows:
As the evidence of the prosecution
stands, we find from the clear and
That on or about August 19, 1989,
positive testimony of the
in the City of Naga, Philippines and complainant that she is 21 years
within the jurisdiction of this
old, single, a student at the
Honorable Court, the above-
University of Nueva Caceres in
named accused, with lewd design,
Naga City, with residence at
did, then and there, wilfully,
Lourdes Young, Nabua, Camarines
unlawfully and feloniously, by
Sur; that at about 11:00 o'clock in
means of force, threats and
the evening of August 19, 1989,
intimidation, commit sexual
she was on her way home to her
intercourse against one Isabella
boarding house in Peñafrancia
Federis y Cedron, against her will
Avenue, Naga City, together with
and consent.
her boardmate Imelda Barcebal,
 coming from the Bichara Theater,
and they had to walk in returning
to their boarding house; that when
they reached the Naga City Post
Office along Peñafrancia Avenue,
the accused coming from behind
them and armed with a knife put
his left arm on her shoulder and
with his right hand poked a knife
on the right side of her body and
told her not to move because she
might be killed; that she called for
Imelda Barcebal but the latter kept
on running away and left her
alone. The accused then
transferred the position of the
knife from the right side of her
body to the right side of her neck.
She tried to shout but the accused
pressed harder the knife on her
neck and dragged her to a darker
portion of the Mabini Interior and
she noticed that the accused had
no more pants and brief and then
pushed her down and laid on top
of her and tried to remove her t-
shirt (Exhibit D), and [told] her not
to shout because he was going to
kill her. The accused was also able
to remove her pants (Exhibit E) and
panty (Exhibit F) and, thereafter,
inserted his penis on her vagina for
which she felt pain and the
accused started kissing her on her
lips and other parts of her body.
That she kept on crying and the
accused threatened to kill her.
From the testimony of the
complainant it has been further
sufficiently established that, when
369 | P a g e
she was able to regain her strength
she told the accused that wherever
he will go she will go with him, but
requested the accused that she
first be allowed to go home to got
her clothes and money, to which
the accused agreed. The accused
then accompanied the complainant
on the way to her boarding house,
but when they reached the Mary
Anne Snackhouse which was just in
front of the boarding house, the
complainant told the accused to
wait for her in that place. She then
proceeded to her boarding house
and upon reaching the same she
was met by Aurora Ozaeta, Imelda
Barcebal and the rest of her co-
boarders. She then related to them
the incident that happened to her
and further told them that the man
who raped her was waiting for her
in front of the Mary Anne
Snackhouse and described to them
the person of the accused and the
clothes he was wearing. Her
boardmate, Aurora Ozaeta, called
up the police station giving said
information given by the
complainant identifying the person
of the accused and where he could
be found. That after a while
policemen arrived informing them
that they were able to apprehend
the person reported to have raped
the complainant. The policemen
showed to her a knife (Exhibit B)
which the complainant identified
as the one used by the accused in
poking at her. The policemen went
back to their police headquarters.
After a while her parents arrived
and they all went to the police
headquarters. Aurora Ozaeta and
Imelda Barcebal followed to the
police headquarters. That at the
police headquarters the policemen
showed to the complainant the
person apprehended and the
complainant readily identified him
as the person who raped her. 3
Before this Court, the sole error assigned by the
appellant is that:
[t]he trial court erred in not
considering the mitigating
circumstances of imbecility and
drunkenness in convicting the
accused/appellant of the crime
charged. 4
Appellant did not seriously try to deny that he had
sexual intercourse with Isabella Federis on the night
of 19 August 1989. He, however, denied having
sexually assaulted Isabella; he claimed that Isabella
did not physically resist the act of penile penetration
and had in effect given her consent to it.
Appellant Buenaflor testified in substance that he
was in Naga City Subdivision on 19 August 1989, in
the house of one Badong for whom he worked. He
later declared that he was staying in his sister's
house in Canaman, Camarines Sur. On the night of
19 August 1989, he saw a movie at the Robertson
Cinema; he left the cinema at 12:00 midnight and
proceeded to the public plaza where he allegedly
had been staying for fifteen (15) days. On cross-
examination, he declared that while at the plaza, he
saw two (2) women talking. He approached them,
poked a knife at one of them (Isabella Federis) and
led her away to a dark alley. There they performed
the sexual act, appellant stated, without Isabella
offering any resistance and even embracing
appellant in the course of copulation. Appellant also
testified that he was a "little bit drunk" during that
time. 5
The trial court found that appellant Buenaflor had
indeed forced himself on Isabella, that he had
explicitly admitted "poking a knife" at Isabella and
that the testimony of Isabella that she had been
forced down upon or near a garbage heap in the
dark alley of Mabini Interior and there ravished
against her will, was forthright and candid and
worthy of belief. Appellant having presented no
basis for rejecting and overturning the above finding
of coercion and intimidation, that finding must
stand.
The principal submission of appellant was in fact that
his criminal liability, if any, should at least have been
mitigated in view of his impaired mental faculties.
Appellant apparently does not seek completely to
avoid criminal liability on the ground of imbecility as
an exempting circumstance. The pleadings filed by
appellant merely tended to show erratic behavior
and lack of coherence on his part in the course of
trial, said to be symptomatic of a diseased mind,
which behavior, although not indicating complete
deprivation of intelligence and freedom of will, we
are urged to take as basis for mitigation of liability.
During the pretrial conference, counsel for appellant
stated that his client was suffering from mental
disease. The pretrial conference was thereupon
reset to a later date and the trial court ordered
appellant examined by a physician to ascertain
appellant's mental condition. Appellant Buenaflor
was examined by Dr. Imelda Escuadra, a medical
specialist at the Don Susano Rodriguez Regional
Mental Hospital. The report prepared by Dr.
Escuadra set forth the following information:
370 | P a g e
Brief Background History:
The patient is the fifth among eight
siblings. He was born on February
14, 1968 by normal spontaneous
delivery, assisted by hilot at home.
At age three months, he started to
have convulsions, up to age three
years old. As a consequence, he
had poor scholastic standing,
repeating Grade I several times
and stopped at Grade II. He was
observed to be childish with poor
speech development and behaved
as "uto-uto."
Patient was accused of raping a girl
last August 20, 1989. He was
ordered to submit himself for
neuropsychiatric evaluation.
Mental Status Examination:
An adult male, with handcuffs,
wearing clean printed polo shirt
and faded maong pants. He had
pockmarks on his face due to
pimple scars. He looked serious,
with faraway gaze and at times
downcast eyes.
He claimed he was Larry Buenaflor,
a resident of San Jose, Camarines
Sur. He recognized his companions:
his mother and police escort. He
claimed he finished Grade III.
Initially, he denied knowing the
number of children in their family,
later, he said there are four boys
and five girls. He also claimed he
did not know his age.
He admitted he had a case in court
— rape; mentioned a girl named
Annabel Frias as the victim, a
resident of Peñafrancia Street,
Naga City. He narrated that he
brought her home from Naga City.
With him that time was Ruel
Villegas. He said he loved the girl
and has been courting her giving
several dates when his love [was]
accepted. He also said he raped
the girl once but it was Ruel who
did it first. He cannot give the
details of the incident of the crime.
He spoke coherently and relevantly
but not spontaneous in character.
He denied not [sic] knowing some
facts as his age, the number of
children of the family and he was
not sure of the dates he gave. As
he spoke, he sighed deeply.
He complained of impaired sleep
and impaired appetite. He had
impaired memory as evidenced by
his inability to recall important
facts like number of children in the
family.
During the second interview he
was more relaxed, responded
spontaneously and claimed he had
good sleep and appetite. No
hallucinations were elicited.
In his third interview, he looked
depressed, complaining of
insomnia.
 During the last interview, he was
also depressed and complained of
poor sleep.
Physical Examinations:
Essentially normal findings.
Psychological Testing:
Subject weighted a score of 37
with an IQ equivalent to 63
indicating mild mental deficiency
level of intellectual functioning. His
judgment and comprehension are
poor. Projectivewise, depressive
reaction is prominently
established. Poor reality testing
Article 12 (1) of the Revised Penal Code provides as
function is elicited. Diagnosis:
follows:
1. Mental retardation
2. Reactive depression
3. No psychosis.
Remarks and Recommendations:
In view of the foregoing
examinations and observations,
the patient is suffering from
Mental Retardation and Reactive
Depression. However, he is not
psychotic.
A person with mental retardation
has below normal intelligence as
evidenced by the intelligence
quotient tests. He has poor
memory, poor judgment and poor
371 | P a g e
grasp of general information. He is
trainable up to the primary grades
only. According to the "Synopsis of
Psychiatry" by Kaplan a patient
with mental retardation "has
concurrent deficits or impairment
in adaptive functioning, i.e., a
person's effectiveness in meeting
the standards expected for his or
her age by his or her cultural group
in area such as social skills and
responsibility, communicates daily
living skills, personal indulgence
and self-sufficiency." (sic)
Therefore, he is capable of
undergoing judicial trial with much
difficulty. 6
Art. 12. Circumstances which
Exempt from Criminal Liability. —
The following are exempt from
criminal liability:
1. An imbecile or insane person,
unless the latter has acted during a
lucid interval.
xxx xxx xxx
Imbecility, like insanity, is a defense which
pertains to the mental condition of a
person. Our case law projects the same
standards in respect of both insanity and
imbecility, that is, that the insanity or
imbecility must constitute complete
deprivation of intelligence in committing
the criminal act, or total deprivation of
freedom of the will. 7 The above quoted
medical evidence that was admitted into
the record in the case at bar does not show
complete deprivation (nor even substantial
deprivation) of intelligence on the part of
appellant Buenaflor and he, accordingly,
cannot be deemed exempted from criminal
liability for the rape of Isabella Federis. His
behavior on the night he raped Isabella
showed that he was quite conscious of his
acts and aware of the moral quality thereof.
At the same time, we believe, however, that the
medical evidence of record does show that appellant
Buenaflor's mental faculties were to some extent
retarded or impaired in their development, which
impairment or retardation reflects a diminished level
of responsibility for his criminal acts. Article 13 (9) of
the Revised Penal Code provides as follows:
Art. 13. Mitigating Circumstances.
— The following are mitigating
circumstances:
xxx xxx xxx
(9) Such illness of the offender as
would diminish the exercise of the
will power of the offender without,
however, depriving him of the
consciousness of his acts.
xxx xxx xxx
We think that the mitigating circumstance
contemplated in Article 13 (9) of the Revised Penal
Code was present in the case at bar.
Appellant, in addition, claimed intoxication as a
mitigating circumstance. As earlier noted, he had
declared on cross-examination that he was a "little
bit drunk" at the time be committed the act
complained of. On that basis alone, appellant asserts
he should be credited with a mitigating
circumstance.
The ordinary rule is that intoxication may be
considered either as aggravating or as mitigating,
depending upon the circumstances attending the
commission of the crime. Intoxication has the effect
of decreasing the penalty, if the intoxication is not
habitual or subsequent to the plan to commit the
contemplated crime; upon the other hand, when
intoxication is habitual or intentional, it is considered
as an aggravating circumstance. 8 The person
pleading intoxication must present proof that he had
taken a quantity of alcoholic beverage, prior to the
commission of the crime, sufficient to produce the
effect of blurring his reason; 9 and at the same time,
he must prove that not only was intoxication not
habitual 10 but also that his imbibing the alcoholic
drink was not intended to fortify his resolve to
commit the crime. 11
The record here does not show that appellant had
taken an alcoholic beverage prior to raping Isabella
Federis. The testimony of appellant himself on direct
examination did not establish such drinking as a fact.
The sole basis of appellant's claim to the alternative
circumstance of intoxication is his own remark
during cross-examination that he was a "little bit
drunk" when he inflicted himself sexually upon
Isabella Federis. We do not believe that appellant's
own remark sufficiently established his asserted
state of intoxication.
At any rate, the appreciation of a mitigating
circumstance in favor of appellant Buenaflor would
not have the effect of reducing the penalty
of reclusion perpetua imposed upon him by the trial
court. Article 63 of the Revised Penal Code
prescribes that "in all cases in which the law
372 | P a g e
prescribes a single indivisible penalty, [such penalty)
shall be applied by the courts regardless of any
mitigating circumstances that may have attended
the commission of the deed." Reclusion perpetua is a
single indivisible penalty. 12
WHEREFORE, the decision of the trial court dated 10
May 1990 is hereby AFFIRMED in toto. Costs against
appellant.
S0 ORDERED.
Gutierrez, Jr., Bidin, Davide, Jr. and Romero, JJ.,
concur.
Footnotes
SECOND DIVISION
G.R. No. 216671, October 03, 2016
JERWIN DORADO, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
MENDOZA, J.:
This is a Petition for Review on Certiorari seeking to
reverse and set aside the August 8, 2014
Decision1 and the January 29, 2015 Resolution2 of
the Court of Appeals (CA) in CA-G.R. CR No. 33581,
which affirmed the July 5, 2010 Decision3 of the
Regional Trial Court, Taguig City, Branch 163 (RTC), in
Criminal Case No. 127784, finding accused Jerwin
Dorado (Dorado) guilty of the crime of Frustrated
Murder.
The Antecedents
Dorado, Julius Ramos (Ramos), Jeffrey Confessor
(Confessor) and Jayson Cabiaso (Cabiaso) were
charged with the crime of frustrated murder, defined
under Article 248 in relation to Article 6 of the
Revised Penal Code (RPC) committed against Ronald
Bonion (Ronald) before the RTC. They were also
charged with violation of Section 10(a) of Republic
Act (R.A.) No. 7610, or the Special Protection of
Children Against Abuse, Exploitation and
Discrimination Act, committed against Raniel Parino
(Raniel). These cases were docketed, as Criminal
Case Nos. 127784-85. The respective Informations
read as follows:
chanRoblesvirtualLawlibrary
Criminal Case No. 127784
xxxx
That on or about the 15th day of March 2004, in the
Municipality of Taguig, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court,
the above-named accused, in conspiracy with one
another and with Jerwin Dorado y Felipe @ Ewing
who is a 16 year old minor, and with two (2)
unidentified companions whose true identities and
present whereabouts are still unknown, with intent
to kill by means of the qualifying circumstances of
treachery and evident premeditation, aggravated by
the circumstances of nighttime and with the use of
an improvised shotgun (sumpak), a deadly weapon
and unlicensed firearm, did then and there wilfully,
unlawfully and feloniously attack, assault and shoot
with said deadly weapon, one Ronald Bonion y
Bozar, thus performing all the acts of execution
which would have produced the crime of murder as
a consequence, but nevertheless, did not produce it
by reason of causes independent of the will of the
accused, that is due to the timely and able medical
assistance rendered to said victim which prevented
his death.
Contrary to law.4chanrobleslaw
Criminal Case No. 127785
xxxx
That on or about the 15th day of March 2004, in the
Municipality of Taguig, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court,
the above-named accused, in conspiracy with one
another and with Jeffrey Confessor, Jayson Cabiaso,
Jerwin Dorado y Felipe @ Ewing who is a 16 year old
minor, and with two (2) unidentified companions
whose true identities and present whereabouts are
still unknown, did then and there wilfully, unlawfully
and feloniously commit acts of cruelty upon the
person of complainant Raniel Parino, a 15 year old
minor by then and there hurling stones at the latter,
which act is prejudicial to the normal growth and
development of said child.
Contrary to law.5chanroblesvirtuallawlibrary
On November 9, 2004, Dorado and his co-accused
were arraigned and they all pleaded "not guilty" to
the charges. Thereafter, the trial ensued.
Evidence of the Prosecution
The prosecution presented the victims, Ronald,
Ronald's brother, Robert Bonion (Robert), Raniel
Parino (Raniel) and Dr. Ronaldo Artes (Dr. Artes), as
its witnesses. Their combined testimonies tended to
establish the following:
chanRoblesvirtualLawlibraryOn April 15, 2004, at
around 11:00 o'clock in the evening, Ronald was
talking to his friends Raniel, Delon Busar, Annan
Luna, Jerome Amergo and a certain Erwin (Ronald's
373 | P a g e
group) along A. Reyes Street, Lower Bicutan, Taguig.
At that very time, Dorado, carrying a sumpak, and his
friends, Confessor and Cabiaso (Dorado's group),
arrived and threw stones and bottles at Ronald's
group.
Ronald's group scampered for shelter toward
the talipapa and hid inside to avoid being hit by the
stones and bottles. When Ronald thought that
Dorado's group was no longer-in the vicinity, they
came out of hiding. Dorado's group, however, was
out there waiting for them. When they finally
surfaced, Dorado's group resumed throwing stones
at Ronald's group. During the commotion, Dorado
fired his sumpak and hit Ronald between the eyes.
Ronald fell unconscious for about ten (10) minutes
while Dorado's group ran away. Thereafter, Ronald
was brought to the Rizal Medical Center by Raniel
and Delon Busan. He sustained the following injuries:
chanRoblesvirtualLawlibrary
Xxx Ruptured Globe, OU; S/P Excision of prolapsed
Uvea + Repair of Corneal & Scleral laceration, OD;
S/P Enucleation & Evacuation of Foreign body's +
Repair of Lower lid margin laceration, OS
xxx.6chanroblesvirtuallawlibrary
Ronald was operated on his forehead and was
confined for a month at the Rizal Medical Center. As
a result of the shooting incident, Ronald lost his left
eye while his right eye could only see some light. Dr.
Artes, the operating surgeon, testified that without
medical intervention, Ronald could have died.
Evidence of the Defense
The defense presented the accused Dorado and
Ramos; Gloria Confessor and Jessie Confessor, the
mother and brother of accused Confessor; Mark
Matuguina; Jeffrey Quijano; Aurin Reyes, and Ofelia
Ramos (Ofelia) as its witnesses, who collectively
narrated the following:
chanRoblesvirtualLawlibraryOn April 15, 2004,
between 8:00 o'clock and 11:00 o'clock in the
evening, Dorado was at home watching television
with his siblings and his mother. Suddenly, the
barangay tanods arrived and blamed him for the
shooting of Ronald. Dorado denied any participation
in the incident and did not go with the tanods.
No sumpak was taken from his house. He also
denied that he was a gang member and that he went
into hiding.
The witnesses for Ramos, Confessor and Cabiaso
testified that they were not present in the crime
scene when Ronald was shot.
Ofelia, on the other hand, testified that on April 15,
2004, between 10:00 and 10:30 o'clock in the
evening, she was on her way to see her friend when
she noticed five persons running in the opposite
direction. Four of them entered an alley, while one
stayed and shot the face of another teenager. She
added that she would be able to recognize the
assailant, but it was not Dorado.
The RTC Ruling
On July 5, 2010, the RTC rendered its decision. In
Criminal Case No. 127784, the trial court found
Dorado guilty beyond reasonable doubt of the crime
of frustrated murder; while in Criminal Case No.
127785, accused Dorado, Ramos, Confessor and
Cabiaso were all acquitted as the crime was not
proven beyond reasonable doubt. It noted that their
participation in the crime was limited to the
throwing of stones and bottles and there was no
indication that they Singled out Ronald as their
target. The RTC also acquitted all the accused for the
charge of violation of R.A. No. 7610 because the
prosecution failed to establish Ronald's minority.
 privileged mitigating The CA Ruling
In finding Dorado guilty of frustrated murder, as circumstance of minority,
defined under Article 248, in relation to Article 6, is sentenced to suffer the In its assailed decision, dated August 8, 2014, the CA
paragraph 2, of the RPC, the RTC gave credence to penalty of six (6) months affirmed the RTC decision, finding that Dorado
the testimonies of the prosecution witnesses that it and one (1) day of prision committed the crime of frustrated murder because
was Dorado who shot Ronald with a sumpak. The correctional, as minimum, he had the intent to kill Ronald when he fired
trial court considered the qualifying circumstance of to eight (8) years his sumpak hitting the portion between the two eyes
evident premeditation because of the following: of prision mayor, as of the victim. It noted that Ronald would have died
Dorado's group had an ongoing feud with Ronald's maximum, with all the were it not for the timely medical attention. The
group; when the assault began, Dorado was already effects thereof as appellate court also agreed with the RTC that
holding a sumpak; after Ronald fled, Dorado waited provided" by law. He is Dorado's act of waiting for Ronald to come out of
intently for an opportunity to shoot him; and when further ordered to pay the the talipapa, where the latter was hiding, indicated
Ronald came out, Dorado shot him on the face. The victim Php50,000.00 as evident premeditation.
RTC, nevertheless, appreciated the privileged civil indemnity;
mitigating circumstance of minority in Dorado's favor Php50,000.00 by way of The CA did not give credence to Dorado's defense of
as he was still a minor at the time of the incident. It, moral damages; and to alibi because his house was merely one block away
however, stated that Dorado was not entitled to a pay the costs, at the legal from the talipapa. It opined that it was not physically
suspension of sentence because he was above rate of interest from the impossible for him to be at the crime scene at the
twenty-one (21) years old at the time of the time of the filing of the time in question.
pronouncement of guilt. Thus, it disposed the case in Information until fully
this wise: paid. Accused Julius Dorado moved for reconsideration but his motion
Ramos y Labanero, Jeffrey was denied by the CA in its assailed resolution, dated
chanRoblesvirtualLawlibrary Confessor and January 29, 2015.
WHEREFORE, taking all the foregoing into Jayson Cabiaso are
consideration, it is hereby adjudged that: ACQUITTED on ground o Hence, this petition.
f reasonable doubt.
chanRoblesvirtualLawlibrary SOLE ISSUE
2. In Criminal Case No.
1. In Criminal Case No. 127785, CICL Jerwin WHETHER THE COURT OF APPEALS GRAVELY ERRED
127784, CICL Jerwin Dorado y Felipe, accused IN
Dorado y Felipe is hereby Julius Ramos y Labanero, AFFIRMING THE CONVICTION OF THE PETITIONER
found GUILTY beyond Jeffrey Confessor and FOR
reasonable doubt of the Jayson Cabiaso are THE CRIME CHARGED.8
crime of Frustrated ACQUITTED on ground of
Murder, defined and reasonable doubt. No
penalized under Article costs. Dorado argues that his defenses of alibi and denial
248, in relation to Article should be fully appreciated by the Court as there
6, 2nd paragraph, 2nd SO ORDERED.7chanroblesvirtuallawlibrary was enough evidence to support them; that he was
phrase of the Revised at his home at the time of the incident; that defense
Penal Code and, taking witness Ofelia testified that he was not the one who
Aggrieved, Dorado elevated an appeal before the CA.
into consideration the shot Ronald; and that the barangay officials did not

374 | P a g e
find the sumpak in his possession.
In its Comment,9 the Office of the Solicitor General
(OSG) countered that Dorado had the intent to kill
when he fired the sumpak and hit Ronald between
the eyes; that the felony would have caused the
death of the victim, were it not for the timely
medical intervention; and that Dorado's defenses of
denial and alibi could not overcome the positive
identification by the prosecution witnesses.
In his Reply,10 Dorado reiterated that his defense
was supported by Ofelia's testimony and that the CA
committed a misapprehension of facts when it did
not consider his defenses.
The Court's Ruling
The Court finds merit in the petition.
Dorado was a minor at the
time of the commission of
the crime
A perusal of the records will readily show that
Dorado was a sixteen (16) year old minor at the time
of the commission of the crime on March 15, 2004.
The Informations filed against him consistently
stated his minority.11 For said reason, he must
benefit from the provisions of R.A. No. 9344, or the
Juvenile Justice and Welfare Act of 2006, as
amended. Even though the said law was enacted on
April 28, 2006, the same must still be retroactively
applied for the benefit of Dorado pursuant to the
well-entrenched principle in criminal law
— favorabilia sunt amplianda adiosa
restrigenda (penal laws which are favorable to the
accused are given retroactive effect).12chanrobleslaw
Curiously, neither the RTC nor the CA paid much
attention to Dorado's minority and how it affected
375 | P a g e
his criminal responsibility. Thus, the Court deems it
proper to lay down the salient provisions of R.A. No.
9344 regarding the prosecution of a Child In Conflict
with the Law (CICL).13chanrobleslaw
One of the significant features of R.A. No. 9344 is the
increase of the minimum age of criminal
responsibility, to wjt:
chanRoblesvirtualLawlibrary
SEC. 6. Minimum Age of Criminal Responsibility. — A
child fifteen (15) years of age or under at the time of
the commission of the offense shall be exempt from
criminal liability. However, the child shall be
subjected to an intervention program pursuant to
Section 20 of this Act.
A child is deemed to be fifteen (15) years of age on
the day of the fifteenth anniversary of his/her
birthdate.
A child above fifteen (15) years but below eighteen
(18) years of age shall likewise be exempt from
criminal liability and be subjected to an intervention
program, unless he/she has acted with discernment,
in which case, such child shall be subjected to the
appropriate proceedings in accordance with this Act.
The exemption from criminal liability herein
established does not include exemption from civil
liability, which shall be enforced in accordance with
existing laws.14
In sum, Section 6 of R.A. No. 9344 provides that the
following minors shall be exempt from criminal
liability:
chanRoblesvirtualLawlibrary
1. Those below fifteen (15) years of age at the
time of the commission of the crime; and ,
2. Those above fifteen (15) years but below
eighteen (18) years of age who
acted without discernment.
Thus, if a child falls under the above-cited ages, he or
she shall be released and shall be subjected to an
intervention program as may be determined by a
local social welfare and development officer,
pursuant to Section 20 of the said law.
Consequently, under R.A. No. 9344, only a child
above fifteen (15) years but below eighteen (18)
years of age who acted with discernment shall not
be exempted from criminal
responsibility.15 Nevertheless, the said child does not
immediately proceed to trial. Instead, he or she may
undergo a diversion, which refers to an alternative,
child-appropriate process of determining the
responsibility and treatment of the CICL without
resorting to formal court proceedings. If the
diversion is unsuccessful or if the other grounds
provided by law16 are present, then the CICL shall
undergo the appropriate preliminary investigation of
his or her criminal case, and trial before the courts
may proceed.
Once the CICL is found guilty of the offense charged,
the court shall not immediately execute its
judgment; rather, it shall place the CICL under
suspended sentence. Notably, the suspension 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 or her guilt. During the
suspension, the court shall impose the appropriate
disposition measures as provided in the Supreme
Court Rule on Juveniles in Conflict with the Law. If
the disposition measures are successful, then the
court shall discharge the CICL. Conversely, if
unsuccessful, then the court has the following
options: (1) to discharge the child, (2) to order
execution of sentence, or (3) to extend the
suspended sentence for a certain specified period or
until the child reaches the maximum age of twenty-
one (21) years.17chanrobleslaw
In other words, aside from increasing the minimum
age of criminal responsibility, R.A. No. 9344 also
provides for alternative measures to address the
criminal tendencies of a minor. The law endeavors
that a minor should be given several opportunities to
mend his or her ways without resorting to detention
and incarceration. A judgment for conviction shall
only be executed if all the alternative measures
prove to be ineffective. Indeed, the emphatic
policies of R.A. No. 9344 emulate the right of every
child alleged, accused of, adjudged, or recognized, as
having infringed the penal law to be treated in a
manner consistent with the promotion of the child's
sense of dignity and worth, taking into account the
child's age and desirability of promoting his or her
reintegration.18chanrobleslaw
The Prosecution did not
determine the discernment
of Dorado at the time of
the commission of the crime
To recapitulate, R.A. No. 9344 provides that only
those minors above fifteen (15) years but below
eighteen (18) years of age who acted with
discernment shall not be exempted from criminal
responsibility. During the deliberations for Senate
Bill No. 1402, the following discussions transpired:
chanRoblesvirtualLawlibrary
Senator Pangilinan: xxx there is no criminal
responsibility below 18 and above 15, provided that
it can be shown that the individual did not act with
discernment.
The President: Can we have it again?
376 | P a g e
Senator Pimentel: Yes, Mr. President.
The President: Beyond 15 up to below...
Senator Pangilinan: Up to below 18, yes, Mr.
President.
The President: Is there an exemption from criminal
liability?
Senator Pangilinan: Provided that the individual did
not act with discernment, Mr. President.
The President: So we are actually raising the age to
18?
Senator Pangilinan: Yes, Mr. President. However, if
he is above 15 and below 18 and he committed a
criminal offense and it is shown that he acted with
discernment, then he is criminally liable.
The President: So that there is no presumption that
if he committed a crime when he is 15 and above,
that he has acted with discernment.
Senator Pangilinan: There is no presumption, Mr.
President. It has to be shown that discernment was
in fact]..
Senator Pimentel: Which means, Mr. President, in
actual law practice, that the prosecutor is under
obligation to establish by competent evidence that
this accused who is above 15 but below 18 acted
with discernment as a separate circumstance.
Senator Pangilinan: That is correct.
The President: All right.19 [Emphases supplied]
Based on the above-cited discussion, when a minor
above fifteen (15) but below eighteen (18) years old
is charged with a crime, it cannot be presumed that
he or she acted with discernment. During the trial,
the prosecution must specifically prove as a separate
circumstance that the CICL committed the alleged
crime with discernment.
Notably, R.A. Np. 9344 was enacted while Dorado's
trial was pending before the RTC. Consequently,
Resolution No. 03-2006, dated July 11, 2006, of the
Juvenile Justice Welfare Council (JJWC)20 must apply
in the present case. It established the guidelines for
the implementation of the transitory provisions of
R.A. No. 9344 and it stated that one of the duties of
the prosecution during the trial regarding the CICL
was as follows:
chanRoblesvirtualLawlibrary
4. For above 15 but below 18 years
old at the time of the commission
of the alleged offense, with
pending case but released on bail
or on recognizance or under
detention
• Trial may proceed for the
prosecution to prove discernment.
JJWC Resolution No. 03-2006 is in accordance with
Section 6 of R.A. No. 9344 because only those minors
above fifteen (15) but below eighteen (18) years old
who acted with discernment may be subjected to
criminal prosecution. Hence, in the present case, the
Court must decide whether the prosecution made a
determination of discernment on the part of Dorado
during the trial.
"The discernment that constitutes an exception to
the exemption from criminal liability of a minor x x x
who commits an act prohibited by law, is his mental
capacity to understand the difference between right
and wrong, and such capacity may be known and
should be determined by taking into consideration
all the facts and circumstances accorded by the
records in each case, the very appearance, the very
attitude, the very comportment and behavior of said
minor, not only before and during the commission of
the act, but also after and even during the
trial."21chanrobleslaw
"The basic reason behind the exempting
circumstance is complete absence of intelligence,
freedom of action of the offender which is an
essential element of a felony either by dolus or
by culpa. Intelligence is the power necessary to
determine the morality of human acts to distinguish
a licit from an illicit act. On the other hand,
discernment is the mental capacity to understand
the difference between right and wrong."22 As earlier
stated, the "prosecution is burdened to prove that
the accused acted with discernment by evidence of
physical appearance, attitude or deportment not
only before and during the commission of the act,
but also after and during the trial. The surrounding
circumstances must demonstrate that the minor
knew what he was doing and that it was wrong. Such
circumstance includes the gruesome nature of the
crime and the minor's cunning and shrewdness."23 In
an earlier case, it was written:
chanRoblesvirtualLawlibrary
For a minor at such an age to be criminally liable, the
prosecution is burdened to prove beyond reasonable
doubt, by direct or circumstantial evidence, that he
acted with discernment, meaning that he knew what
he was doing and that it was wrong. Such
circumstantial evidence may include the utterances
of the minor; his overt acts before, during and after
the commission of the crime relative thereto; the
nature of the weapon used in the commission of the
377 | P a g e
crime; his attempt to silence a witness; his disposal
of evidence or his hiding the corpus delicti.24
After a judicious study of the records, the Court finds
that the prosecution did not make an effort to prove
that Dorado, then a sixteen (16)-year old minor,
acted with discernment at the time of the
commission of the crime. The RTC decision simply
stated that a privileged mitigating circumstance of
minority in favor of Dorado must be appreciated as it
was proven that he was a minor at the time of the
incident. Glaringly, there was no discussion at all on
whether Dorado acted with discernment when he
committed the crime imputed against him.
Discernment cannot be presumed even if Dorado
intended to do away with Ronald. Discernment is
different from intent. The distinction was elaborated
in Guevarra v. Almodovar.25cralawred Thus:
chanRoblesvirtualLawlibrary
Going through the written arguments of the parties,
the surfacing of a corollary controversy with respect
to the first issue raised is evident, that is, whether
the term "discernment," as used in Article 12(3) of
the Revised Penal Code (RPC) is synonymous with
"intent." It is the position of the petitioner that
"discernment" connotes "intent" (p. 96, Rollo),
invoking the unreported case of People vs.
Nieto, G.R. No. 11965, 30 April 1958. In that case We
held that the allegation of "with intent to kill..."
amply meets the requirement that discernment
should be alleged when the accused is a minor
between 9 and 15 years old. Petitioner completes his
syllogism in saying that:
chanRoblesvirtualLawlibrary
"If discernment is the equivalent of 'with intent',
then the allegation in the information that the
accused acted with discernment and willfully
unlawfully, and feloniously, operate or cause to be
fired in a reckless and imprudent manner an air rifle
.22 caliber' is an inherent contradiction tantamount
to failure of the information to allege a cause of
action or constitute a legal excuse or exception."
(Memorandum for Petitioner, p. 97, Rollo)
If petitioner's argument is correct, then no minor
between the ages of 9 and 15 may be convicted of a
quasi-offense under Article 265 of the,RPC.
On the contrary, the Solicitor General insists that
discernment and intent are two different
concepts. We agree with the Solicitor General's view;
the two terms should not be confused.
The word "intent" has been defined
as:ChanRoblesVirtualawlibrary
"(a) design; a determination to do a certain things;
an aim the purpose of the mind, including such
knowledge as is essential to such intent; . . .; the
design resolve, or determination with which a
person acts." (46 CJS Intent, p. 1103.)
It is this intent which comprises the third element of
dolo as a means of committing a felony, freedom
and intelligence being the other two. On the other
hand, We have defined the term "discernment," as
used in Article 12(3) of the RPC, in the old case
of People vs. Doquena, 68 Phil. 580(1939), in this
wise:ChanRoblesVirtualawlibrary
"The discernment that constitutes an exception to
the exemption from criminal liability of a minor
under fifteen years of age but over nine, who
commits an act prohibited by law, is his mental
capacity to understand the difference between right
and wrong ..." (italics Ours) p. 583
From the foregoing, it is clear that the terms "intent"
and "discernment" convey two distinct thoughts.
While both are products of the mental processes
within a person, the former refers to the desire of
one's act while the latter relate to the moral
significance that person ascribes to the said act.
Hence, a person may not intend to shoot another
but may be aware of the consequences of his
negligent act which may cause injury to the same
person in .negligently handling an air rifle. It is not
correct, therefore, to argue, as petitioner does, that
since a minor above nine years of age but below
fifteen acted with discernment, then he intended
such act to be done. He may negligently shoot his
friend, thus, did not intend to shoot him, and at the
same time recognize the undesirable result of his
negligence.
In further outlining the distinction between the
words "intent" and "discernment," it is worthy to
note the basic reason behind the enactment of the
exempting circumstances embodied in Article 12 of
the RPC; the complete absence of intelligence,
freedom of action, or intent, or on the absence of
negligence on the part of the accused. In expounding
on intelligence as the second element of dolus,
Albert has stated:
chanRoblesvirtualLawlibrary
"The second element of dolus is intelligence; without
this power, necessary to determine the morality of
human acts to distinguish a licit from an illicit act, no
crime can exist, and because . . . the infant (has) no
intelligence, the law exempts (him) from criminal
liability.26" (Emphasis Ours)
Considering that there was no determination of
discernment by the trial court, the Court cannot rule
with certainty that Dorado was criminally
responsible. As earlier stated, there can be no
presumption of discernment on the part of the CICL.
In the absence of such determination, it should be
presumed that the CICL acted without discernment.
This is in accordance with Section 3 of R.A. No. 9344,
to wit:
378 | P a g e
chanRoblesvirtualLawlibrary
Section 3. Liberal Construction of this Act. — In case
of doubt, the interpretation of any of the provisions
of this Act, including its implementing rules and
regulations (IRRs), shall be construed liberally in
favor of the child in conflict with the law.
Accordingly, Dorado is deemed exempted from
criminal liability. Nevertheless, he is not excused
from the civil liability that arose from the act.27 Thus,
the Court is tasked to determine the crime
committed and the civil liability that results from it.
Only Frustrated Homicide
was committed as Evident
Premeditation was not
duly proven
The crime of murder is committed when there is an
unlawful killing of any person, which is not parricide
or infanticide, and any of the qualifying
circumstances under Article 248 of the RPC exists.
On the other hand, a felony is in its frustrated stage
when the offender performs all the acts of execution
which would produce the felony as a consequence
but which, nevertheless, do not produce it by reason
of causes independent of the will of the
perpetrator.28chanrobleslaw
The prosecution witnesses positively identified
Dorado as the person who shot Ronald between the
eyes with a sumpak. The crime was not
consummated as Ronald survived because of the
medical assistance provided to him after he was
immediately brought to the hospital by his friends.
Dr. Artes testified that without the timely medical
intervention, the shooting of Ronald could have led
to his death. Accordingly, the CA and the RTC
properly ruled that the crime committed was at its
frustrated stage.
The Court is of the view, however, that the
prosecution was unable to establish the element of
evident premeditation to qualify the crime to
frustrated murder. For evident premeditation to be
appreciated, the following must be proven beyond
reasonable doubt: (1) the time when the accused
determined to commit the crime; (2) an act
manifestly indicating that the accused clung to his
determination; and (3) sufficient lapse of time
between such determination and execution to allow
him to reflect upon the circumstances of his
act.29 For this aggravating circumstance to be
considered, it is indispensable to show how and
when the plan to kill was hatched or how much time
had elapsed before it was carried
out.30chanrobleslaw
In this case, evident premeditation was not
established because, first, the prosecution evidence
only referred to the matters that happened during
the incident, and not to the preparations undertaken
by Dorado beforehand to kill Ronald. There was no
evidence on record which would indicate how and
when Dorado hatched his plan to kill Ronald. The
mere fact that Dorado was seen with a sumpak at
the beginning of the . altercation does not
unequivocally establish that he earlier devised a
deliberate plot to murder Ronald. In order to be
considered an aggravation of the offense, the
circumstance must not merely be "premeditation"
but must be "evident
premeditation."31chanrobleslaw
Second, the prosecution failed to show a sufficient
lapse of time between such determination and
execution to allow Dorado to reflect upon the
circumstances of his act. Raniel simply testified that:
chanRoblesvirtualLawlibrary
Q: Jerwin Dorado only? Did he had (sic) companions?
A: Also Jeffrey Confessor, Jayson Cabiaso, and I don't
know the other who came, ma'am.
Q: Can you estimate how many they were?
A: About seven (7) up, ma'am.
Q: When they came, what did you do?
A: We ran because they were armed with sumpak
ma'am.
Q: Who was armed with a sumpak?
A: Jerwin Dorado, (witness pointing to accused
Jerwin Dorado)
Q: You said you ran, what did you do after you ran?
A: We hid, ma'am.
Q: Where did you hide?
A: We hide (sic) at the back of the talipapa, ma'am.
Q: After you hid, what happened?
A: When we came out, stones were hurled to us and
they fired the sumpak to Ronald.32 [Emphasis
supplied]
As can be gleaned above, the prosecution witness
did not testify on how long they hid at the back of
the talipapa or how long Dorado's group waited for
them to come out. As the lapse of time between the
determination until the execution of the unlawful
deed was unclear, it cannot be established that
Dorado had sufficient time to reflect on his actions.
Lastly, Dorado did not have a cool thought and
reflection when he shot Ronald. The RTC observed
that there was an ongoing feud between Dorado's
group and Ronald's group.33 Certainly, Dorado would
not have a calm and reflective mind - from the time
Ronald's group hid inside the talipapa market until
they moved out of hiding - as he was obscured by
379 | P a g e
the heat or anger of the moment. The essence of
evident premeditation is that the execution of the
criminal act is preceded by cool thought and
reflection upon the resolution to carry out the
criminal intent within a space of time sufficient to
arrive at a calm judgment.34chanrobleslaw
The OSG itself, in its Brief for Plaintiff-Appellee (With
recommendation for reduction of penalty)35 filed
before the CA, submitted that "the shooting of
Ronald was not attended by evident
premeditation.36 For said reason, the crime
committed was only frustrated homicide.
Civil Liabilities
Pursuant to the recent case of People v.
Jugueta,37 the crime of frustrated homicide entails
the following awards of damages: P30,000.00 as civil
indemnity and P30,000.00 as moral damages. In
addition, the damages awarded shall earn legal
interest at the rate of 6% per annum from date of
finality of the judgment until fully paid.
WHEREFORE, the petition is GRANTED. The
judgment of conviction of Jerwin Dorado is
hereby REVERSED and SET ASIDE by reason of the
exempting circumstance of minority. He is hereby
referred to the local social welfare and development
officer of the locality for the appropriate
intervention program.
He is also ordered to pay the private complainant,
Ronald B onion, civil indemnity in the amount of
P30,000.00 and moral damages in the amount of
P30,000.00.,
The amounts of damages awarded shall have an
interest at the rate of 6% per annum from the date
of finality of judgment until fully paid.
Let copies of this decision be furnished the two
houses of Congress for their information and
guidance in future legislation regarding children in
conflict with the laws.
SO ORDERED.chanRoblesvirtualLawlibrary
Del Castillo, (Acting Chairperson), and Leonen, JJ.,
concur.
Carpio, on Official Leave.
Brion, J., on Leave.
Endnotes:
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 176102 November 26, 2014
ROSAL HUBILLA y CARILLO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
RESOLUTION
BERSAMIN, J.:
The Court recognizes the mandate of Republic Act
No. 9344 (Juvenile Justice and Welfare Act of 2006)
to protect the best interest of the child in conflict
with the law through measures that will ensure the
observance of international standards of child
protection,1 and to apply the principles of restorative
justice in all laws, policies and programs applicable
to children in conflict with the law.2 The mandate
notwithstanding, the Court will not hesitate or halt
to impose the penalty of imprisonment whenever
warranted on a child in conflict with the law.
Antecedents
The Office of the Provincial Prosecutor of Camarines
Sur charged the petitioner with homicide under the
following information docketed as Criminal Case No.
2000-0275 of the Regional Trial Court (RTC), Branch
20, in Naga City, to wit:
That on or about the 30th day of March, 2000 at
about 7:30 P.M., in Barangay Dalupaon, Pasacao,
Camarines Sur, Philippines, and within the
jurisdiction of this Honorable Court, the said
accused, with intent to kill, and without any
justifiable cause, did then and there willfully,
unlawfully and feloniously assault, attack and stab
one JAYSON ESPINOLA Y BANTA with a knife ,
inflicting upon the latter mortal wounds in his body,
thus, directly causing his death, per Death
Certification hereto attached as annex "A" and made
an integral part hereof, to the damage and prejudice
of the deceased’s heirs in such amount as may be
proven in court.
Acts Contrary to Law.3
The CA summarized the facts established by the
Prosecution and the Defense as follows: Alejandro
Dequito testified that around seven in the evening or
so of March 30, 2000, he, together with his
compadre Nicasio, was at the gate of Dalupaon
Elementary School watching the graduation
ceremony if the high school students. While
watching, his cousin Jason Espinola, herein victim,
arrived. Later, however, appellant approached the
victim and stabbed the latter. When asked to
demonstrate in open court how the appellant
stabbed the victim, this witness demonstrated that
with the appellant’s left arm around the neck of the
380 | P a g e
victim, appellant stabbed the victim using a bladed
weapon.
He aided the victim as the latter was already
struggling to his feet and later brought him to the
hospital.
Nicasio Ligadia, witness Dequito’s companion at the
time of the incident, corroborated the testimony of
Dequito on all material points.
Marlyn Espinosa, the mother of the deceased,
testified that her son was stabbed in front of the
[elementary] school and later brought to the Bicol
Medical Center. She stated that her son stayed for
more than a month in the hospital. Thereafter, her
son was discharged. Later, however, when her son
went back to the hospital for a check-up, it was
discovered that her son’s stab wound had a
complication. Her son was subjected to another
operation, but died the day after. She, further,
stated that the stabbing incident was reported to the
police authorities. She, likewise, stated the amounts
she incurred for the wake and burial of her son.
Robert Casin, the medico legal expert, testified that
the cause of death of the victim, as stated by Dr.
Bichara, his co-admitting physician, was organ failure
overwhelming infection. He, further, stated that the
underlined cause of death was a stab wound.
The appellant, in his testimony, narrates his
statement of facts in this manner:
He testified that around seven inthe evening or so of
March 30, 2000, he was at the Dalupaon High School
campus watching the high school graduation rites. At
half past seven, while walking towards the gate of
Dalupaon High School on his way home, he was
ganged up by a group of four (4) men.
The men attacked and started to box him. After the
attack he felt dizzy and fell to the ground. He was
not able to see or even recognize who attacked him,
so he proceeded home. Shortly after leaving the
campus, however, he met somebody whom he
thought was one of the four men who ganged up on
him. He stabbed the person with the knife he was,
then, carrying. When asked why he was in
possession of a knife, he stated that he used it in
preparing food for his friend, Richard Candelaria,
who was graduating that day. He went home after
the incident.
While inside his house, barangay officials arrived,
took him and brought him to the barangay hall, and
later to the Pasacao PNP. On his way to the town
proper, he came to know that the person he stabbed
was Jason Espinola. He felt sad after hearing it.4
Judgment of the RTC
After trial, the RTC rendered its judgment finding the
petitioner guilty of homicide as charged, and
sentenced him to suffer the indeterminate penalty
of imprisonment for four years and one day of
prision correccional, as minimum, to eight years and
one day of prision mayor, as maximum; and to pay
to the heirs of the victim ₱81,890.04 as actual
damages for medical and funeral expenses, and
₱50,000.00 as moral damages.5
Decision of the CA
On appeal, the Court of Appeals (CA) affirmed the
petitioner’s conviction but modified the penalty and
the civil liability through the decision promulgated
on July 19, 2006,6 disposing thus: WHEREFORE,
premises considered, the decision of the Regional
Trial Court of Naga City, Branch 20, in Criminal Case
Number 2000-0275, finding appellant Rosal Hubilla y
Carillo, guilty beyond reasonable doubt of Homicide
is, hereby, AFFIRMED with MODIFICATIONS.
Appellants (sic) sentence is reduced to six months
and one day to six years of prision correccionalas
minimum, to six years and one day to twelve years of
prision mayor as maximum.
The civil aspect of the case is MODIFIED to read: The
award of actual damages in the amount of Php
81,890.04, representing expenses for medical and
funeral services, is reduced to Php 16,300.00. A civil
indemnity, in the amount of Php 50,000.00, is
awarded to the legal heirs of the victim Jason
Espinola. Weaffirm in all other respects.
SO ORDERED.
On motion for reconsideration by the petitioner, the
CA promulgated its amended decision on December
7, 2006, decreeing as follows:7
WHEREFORE, the instant Motion for Reconsideration
is PARTIALLY GRANTED. Our decision promulgated
on July 16, 2006, which is the subject of the instant
motion is, hereby AMENDED such that the judgment
shall now read as follows:
WHEREFORE, premises considered, the decision of
the Regional Trial Court of Naga City, Branch 20, in
Criminal Case Number 2000-0275, finding appellant
Rosal Hubilla y Carillo, guilty beyond reasonable
doubt of Homicide is, hereby, AFFIRMED with
MODIFICATIONS. Appellant is sentenced to an
indeterminate penalty of six months and one day of
prision correccional, as minimum, to eight (8) years
and one (1) day of prision mayor.
The civil aspect of the case is MODIFIED to read: The
award of actual damages in the amount of Php
81,890.04, representing expenses for medical and
funeral services, is reduced to Php 16,300.00. A civil
indemnity, in the amount of Php 50,000.00, is
381 | P a g e
awarded to the legal heirs of the victim Jason
Espinola. We affirm in all other respects.
The case is, hereby, remanded to the Regional Trial
Court of Naga, Branch 20, for appropriate action on
the application for probation of, herein, appellant.
SO ORDERED.
Issues
The petitioner has come to the Court imputing grave
error to the CA for not correctly imposing the
penalty, and for not suspending his sentence as a
juvenile in conflict with the law pursuant to the
mandate of Republic Act No. 9344. In fine, he no
longer assails the findings of fact by the lower courts
as well as his conviction, and limits his appeal to the
following issues, namely: (1) whether or not the CA
imposed the correct penalty imposable on him
taking into consideration the pertinent provisions of
Republic Act No. 9344, the Revised Penal Codeand
Act No. 4103 (Indeterminate Sentence Law); (2)
whether or not he was entitled to the benefits of
probation and suspension of sentence under
Republic Act No. 9344; and (3) whether or not
imposing the penalty of imprisonment contravened
the provisions of Republic Act No. 9344 and other
international agreements.
Ruling of the Court
Article 249 of the Revised Penal Code prescribes the
penalty of reclusion temporalfor homicide.
Considering that the petitioner was then a minor at
the time of the commission of the crime, being 17
years, four months and 28 days old when he
committed the homicide on March 30, 2000,8 such
minority was a privileged mitigating circumstance
that lowered the penalty to prision mayor.9
Under the Indeterminate Sentence Law, the
minimum of the indeterminate sentence should be
within the penalty next lower than the imposable
penalty, which, herein, was prision correccional (i.e.,
six months and one day to six years). For the
maximum of the indeterminate sentence, prision
mayor in its medium period – eight years and one
day to 10 years – was proper because there were no
mitigating or aggravating circumstances present.
Accordingly, the CA imposed the indeterminate
penalty of imprisonment of six months and one day
of prision correccional, as minimum, to eight years
and one day of prision mayor, as maximum.
The petitioner insists, however, that the maximum of
his indeterminate sentence of eight years and one
day of prison mayor should be reduced to only six
years of prision correccional to enable him to apply
for probation under Presidential Decree No. 968.
The petitioner’s insistence is bereft of legal basis.
Neither the Revised Penal Code, nor Republic Act No.
9344, nor any other relevant law or rules support or
justify the further reduction of the maximum of the
indeterminate sentence. To yield to his insistence
would be to impose an illegal penalty, and would
cause the Court to deliberately violate the law.
A.M. No. 02-1-18-SC10 (Rule on Juveniles in Conflict
with the Law) provides certain guiding principles in
the trial and judging in cases involving a child in
conflict with the law. One of them is that found in
Section 46 (2), in conjunction with Section 5 (k),
whereby the restrictions on the personal liberty of
the child shall be limited to the
minimum.11 Consistent with this principle, the
amended decision of the CA imposed the ultimate
minimums of the indeterminate penalty for
homicide under the Indeterminate Sentence Law. On
its part, Republic Act No. 9344 nowhere allows the
trial and appellate courts the discretion to reduce or
lower the penalty further, even for the sake of
enabling the child in conflict with the law to qualify
for probation.
Conformably with Section 9(a) of Presidential Decree
968,12 which disqualifies from probation an offender
sentenced to serve a maximum term of
imprisonment of more than six years, the petitioner
could not qualify for probation. For this reason, we
annul the directive of the CA to remand the case to
the trial court to determine if he was qualified for
probation.
Although Section 38 of Republic Act No. 9344 allows
the suspension of the sentence of a child in conflict
with the law adjudged as guilty of a crime, the
suspension is available only until the child offender
turns 21 years of age, pursuant to Section 40 of
Republic Act No. 9344, to wit:
Section 40. Return of the Child in Conflict with the
Law to Court.– If the court finds that the objective of
the disposition measures imposed upon the child in
conflict with the law have not been fulfilled, or if the
child in conflict with the law has wilfully failed to
comply with the conditions of his/her disposition or
rehabilitation program, the child in conflict with the
law shall be brought before the court for execution
of judgment.
If said child in conflict with the law has reached
eighteen (18) years of age while under suspended
sentence, the court shall determine whether to
discharge the child in accordance with this Act, to
order execution of sentence, or to extend the
suspended sentence for a certain specified period or
until the child reaches the maximum age of twenty-
one (21) years.
We note that the petitioner was well over 23 years
of age at the time of his conviction for homicide by
382 | P a g e
the RTC on July 19, 2006. Hence, the suspension of
his sentence was no longer legally feasible or
permissible.
Lastly, the petitioner posits that condemning him to
prison would be in violation of his rights as a child
inconflict with the law as bestowed by Republic Act
No. 9344 and international agreements.1avvphi1 A
review of the provisions of Republic Act No. 9344
reveals, however, that imprisonment of children in
conflict with the law is by no means prohibited.
While Section 5 (c) of Republic Act No. 9344 bestows
on children in conflict with the law the rightnot to be
unlawfully or arbitrarily deprived of their liberty;
imprisonment as a proper disposition of a case is
duly recognized, subject to certain restrictions on the
imposition of imprisonment, namely: (a) the
detention or imprisonment is a disposition of last
resort, and (b) the detention or imprisonment shall
be for the shortest appropriate period of
time.Thereby, the trial and appellate courts did not
violate the letter and spirit of Republic Act No. 9344
by imposing the penalty of imprisonment on the
petitioner simply because the penalty was imposed
as a last recourse after holding him to be disqualified
from probation and from the suspension of his
sentence, and the term of his imprisonment was for
the shortestduration permitted by the law.
A survey of relevant international
agreements13 supports the course of action taken
herein. The United Nations Standard Minimum Rules
for the Administration of Juvenile Justice (Beijing
Guidelines),14 the United Nations Guidelines for the
Prevention of Juvenile Delinquency (Riyadh
Guidelines) and the United Nations Rules for the
Protection of Juveniles Deprived of Liberty15 are
consistent in recognizing that imprisonment is a valid
form of disposition, provided it is imposed asa last
resort and for the minimum necessary period.
Lastly, following Section 51 of Republic Act No. 9344,
the petitioner, although he has to serve his sentence,
may serve it in an agricultural camp or other training
facilities to be established, maintained, supervised
and controlled by the Bureau of Corrections, in
coordination with the Department of Social Welfare
and Development, in a manner consistent with the
offender child’s best interest. Such service of
sentence will be in lieu of service in the regular penal
institution.
WHEREFORE, the Court DENIES the petition for
review on certiorari; AFFIRMS the amended decision
promulgated on December 7, 2006 in C.A.-G.R. CR
No. 29295, but DELETING the order to remand the
judgment to the trial court for implementation; and
DIRECTS the Bureau of Corrections to commit the
petitioner for the service of his sentence in an
agricultural camp or other training facilities under its
control, supervision and management, in
coordination with the Department of Social Welfare
and Development.
No pronouncement on costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
THIRD DIVISION
G.R. No. 200026, October 04, 2017
PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee, v. ARMANDO DELECTOR, Accused-
Appellant.
DECISION
 BERSAMIN, J.:
This case involves a brother fatally shooting his own
brother. In his defense, the accused pleaded
accident as an exempting circumstance. The trial and
intermediate appellate courts rejected his plea and
found him guilty of murder qualified by treachery.
Hence, he has come to us to air his final appeal for
absolution.
The Case
Under review is the decision promulgated on
September 22, 2006,1 whereby the Court of Appeals
(CA) affirmed the decision rendered on March 17,
2003 by the Regional Trial Court (RTC), Branch 41, in
Gandara, Samar convicting the accused of murder
for the killing of the late Vicente Delector, and
penalizing him with reclusion perpetua, with
modification by increasing moral damages to
P50,000.00.2
Antecedents
At about 6:00 o'clock in the afternoon of August 8,
1997, the late Vicente Delector was talking with his
brother, Antolin, near his residence in Barangay Diaz
in Gandara, Samar when the accused, another
brother, shot him twice. Vicente was rushed to the
Gandara District Hospital where he was attended to
by Dr. Leonida Taningco, but he was later on
transferred to the Samar Provincial Hospital where
he succumbed to his gunshot wounds at about 1:00
a.m. of the next day.3
Vicente's son, Arnel, identified his uncle, the
accused, as his father's assailant. Arnel attested that
the accused had fired his gun at his father from their
mother's house,4 and had hit his father who was
then talking with Antolin. Corroborating Arnel's
identification was Raymond Reyes, who had
383 | P a g e
happened to be along after having come from his
school. Raymond also said that Vicente had been
only conversing with Antolin when the accused shot
him twice.5
On October 2, 1997, the Office of the Provincial
Prosecutor of Samar charged the accused with
murder in the RTC through the following
information, viz.:
That on or about the 8th day of August, 1997, at
about 6:00 o'clock in the afternoon, at Barangay
Diaz, Municipality of Gandara, Province of Samar,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with
deliberate intent to kill, with treachery and evident
premeditation, did then and there willfully,
unlawfully and feloniously attack, assault and shoot
one VICENTE DELECTOR alias TINGTING with the use
of a firearm (revolver), which the accused had
conveniently provided himself for the purpose,
thereby inflicting upon the latter mortal wounds on
the different parts of his body, which caused the
untimely death of said Vicente Delector.
CONTRARY TO LAW.6
In his defense, the accused insisted during the trial
that the shooting of Vicente had been by accident.
His own son corroborated his insistence. According
to them, Vicente had gone to their house looking for
him, but he had earlier left to go to their mother's
house nearby in order to avoid a confrontation with
Vicente; however, Vicente followed him to their
mother's house and dared him to come out,
compelling Antolin to intervene and attempt to
pacify Vicente. Instead, Vicente attacked Antolin,
which forced the accused to go out of their mother's
house. Seeing Vicente to be carrying his gun, he tried
to wrest the gun from Vicente, and they then
grappled with each other for control of the gun. At
that point, the gun accidentally fired, and Vicente
was hit.7
Ruling of the RTC
After trial, the RTC rendered its decision,8 finding the
accused guilty of murder, and disposing:
WHEREFORE, accused Armando Delector is hereby
found GUILTY beyond reasonable doubt of the crime
of Murder and is hereby meted a penalty
of RECLUSION PERPETUA.
Accused shall likewise indemnify the heirs of Vicente
Delector the sum of Php50,000.00, actual damages
of Php12,000.00, moral damages of Php30,000.00
and costs.
In line with Section 5, Rule 114 of the Rules on
Criminal Procedure, the Warden of the Sub-
Provincial Jail, Calbayog City, is hereby directed to
immediately transmit the living body of the accused
Armando Delector to the New Bilibid Prison at
Muntinlupa City, Metro Manila where he may
remain to be detained. The accused shall be credited
for the period he was under preventive detention
provided he has previously expressed his written
conformity to comply with the discipline, rules and
regulations by the detention center, otherwise he
shall be entitled to only 4/5 thereof pursuant to
Article 29 of the Revised Penal Code, as amended.
SO ORDERED.9
Decision of the CA
Aggrieved, the accused appealed, contending that:
I
THAT THE LOWER COURT ERRED GIVING FULL FAITH
AND CEREDENCE TO THE TESTIMONIES OF THE
PROSECUTION WITNESSES; and
II
THAT THE LOWER COURT ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY BEYOND REASONABLE
DOUBT OF THE CRIME OF MURDER.
Nonetheless, the CA affirmed the conviction for
murder subject to an increase of the moral damages
to P50,000.00,10 to wit:
WHEREFORE, in view of the foregoing premises,
judgment is hereby rendered by us DENYING the
appeal filed in this case and AFFIRMING the decision
of the lower court in Criminal Case No. 3403 with
the MODIFICATION that the award of moral damages
is increased to P50,000.00.
SO ORDERED.
The CA opined that the exempting circumstance of
accident was highly improbable, stating:
Indeed, given the circumstances surrounding the
death of the victim, it is highly improbable that the
same was due to an accident. It is unlikely that the
accused-appellant would purposely set out and
grapple with the victim who, if he is to be believed,
was already armed with a gun while he (accused-
appellant) was totally unarmed. Such actuation is
utterly inconsistent with the ordinary and normal
behavior of one who is facing imminent danger to
one's life, considering the primary instinct of self-
preservation. But then, even granting that the
accused-appellant merely acted in defense of his
other brother, Antolin, his failure to help or show
concern to the victim, who was also his brother,
casts serious doubts to his defense of accident.
Furthermore, a revolver, the gun involved in this
case, is not one that is prone to accidental firing
because of the nature of its mechanism.
Considerable pressure on the trigger must have been
applied for it to have fired.11
Hence, this appeal, in which the accused insists that:
I the police investigator interviewing him that it was
THE COURT A QUO GRAVELY ERRED IN GIVING FULL
384 | P a g e
FAITH AND CREDENCE TO THE TESTIMONIES OF THE
PROSECUTION WITNESSES.
II
THE COURT A QUO GRAVELY ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY BEYOND REASONABLE
DOUBT OF THE CRIME OF MURDER.12
On its part, the State, through the Office of the
Solicitor General, submitted its appellee's
brief maintaining that the evidence of guilt was
sufficient, but recommending that the crime for
which the accused should be held guilty of was
homicide, not murder, considering that the records
did not support the holding that he had deliberately
and consciously adopted a method of attack that
would insure the death of the victim; and that
evident premeditation was not also shown to be
attendant.13
Ruling of the Court
We affirm the decision of the CA that accident could
not be appreciated in favor of the accused, but we
must find and declare that, indeed, the crime
committed was homicide, not murder.
To start with, the lower courts did not err in giving
more credence to the testimonies of the
Prosecution's witnesses instead of to the testimony
of the accused and his son. Arnel and Raymond
positively identified the accused as the assailant.
Their identification constituted direct evidence of
the commission of the crime, and was fully
corroborated by the recollection of a disinterested
witness in the person of Dr. Taningco, the attending
physician of the victim at the Gandara District
Hospital, to the effect that the victim had declared to
the accused who had shot him.14 The testimonies of
Raymond and Dr. Taningco are preferred to the self-
serving and exculpatory declarations of the accused
and his son.
The factual findings of the RTC are accorded the
highest degree of respect, especially if, as now, the
CA adopted and confirmed them. Unlike the
appellate courts, including ours, the trial judge had
the unique firsthand opportunity to observe the
demeanor and conduct of the witnesses when they
testified at the trial, which were factors in the proper
appreciation of evidence of past events. Such factual
findings should be final and conclusive on appeal
unless there is a demonstrable error in appreciation,
or a misapprehension of the facts.15
Secondly, the RTC and the CA both observed that the
exempting circumstance of accident was highly
improbable because the accused grappled with the
victim for control of the gun. We see no reason to
overturn the observations of the lower courts.
Article 12, paragraph 4, of the Revised Penal
Code exempts from criminal liability "(a)ny person
who, while performing a lawful act with due care,
causes an injury by mere accident without fault or
intention of causing it." The elements of this
exempting circumstance are, therefore, that the
accused: (1) is performing a lawful act; (2) with due
care; (3) causes injury to another by mere accident;
and (4) without fault or intention of causing it.
Accident could not be appreciated herein as an
exempting circumstance simply because the accused
did not establish that he had acted with due care,
and without fault or intention of causing the injuries
to the victim. The gun was a revolver that would not
fire unless there was considerable pressure applied
on its trigger, or its hammer was pulled back and
released. The assertion of accident could have been
accorded greater credence had there been only a
single shot fired, for such a happenstance could have
been attributed to the unintentional pulling of the
hammer during the forceful grappling for control of
the gun. Yet, the revolver fired twice, which we think
eliminated accident. Verily, the CA itself pointedly
debunked the story of the accused as to how the
accident had occurred by characterizing such story
not only incomprehensible but also contrary to
human experience and behavior.16 We adopt and
reiterate the following observations by the CA:
... had the accused really been grappling and twisting
the victim's right hand which was holding a gun, the
latter would not have sustained the wounds. It was
improbable that the gun would fire not only once
but twice and both times hitting the victim, had its
trigger not been pulled. Further, the location of the
gunshot wounds belies and negate(d) accused
(appellant's) claim of accident.
Also, the Court finds incredible [the] accused
(appellant's) allegation that he did not know that the
victim was hit. He admitted there were two gun
reports. The natural tendency of (a) man in his
situation would (be to) investigate what was hit. He
surely must have known his brother was hit as he
even said he let go of the gun. Then he said his
brother went home so he also went home. It is odd
that he did not attempt to help or show concern for
the victim, his brother, had his intention (been)
really merely to pacify.17
We reiterate that issues concerning the credibility of
the witnesses and their account of the events are
best resolved by the trial court whose calibration of
testimonies, and assessment of and conclusion
about their testimonies are generally given
conclusive effect. This settled rule acknowledges
that, indeed, the trial court had the unique
opportunity to observe the demeanor and conduct
of the witnesses, and is thus in the best position to
discern whether they were telling or distorting the
truth.18
385 | P a g e
Nonetheless, the Court cannot uphold the judgments
of the CA and the RTC and convict the accused for
murder. A reading of the information indicates that
murder had not been charged against him. The
allegation of the information that:
xxx the above-named accused, with deliberate intent
to kill, with treachery and evident premeditation, did
then and there willfully, unlawfully and feloniously
attack, assault and shoot one VICENTE DELECTOR
alias TINGTING with the use of a firearm (revolver),
which the accused had conveniently provided
himself for the purpose, thereby inflicting upon the
latter mortal wounds on the different parts of his
body, which caused the untimely death of said
Vicente Delector.
did not sufficiently aver acts constituting either or
both treachery and evident premeditation. The
usage of the terms treachery and evident
premeditation, without anything more, did not
suffice considering that such terms were in the
nature of conclusions of law, not factual averments.
The sufficiency of the information is to be judged by
the rule under which the information against the
accused was filed. In this case, that rule was Section
9, Rule 110 of the 1985 Rules on Criminal Procedure,
which provided thusly:
Section 9. Cause of accusation. - The acts or
omissions complained of as constituting the
offense must be stated in ordinary and concise
language without repetition, not necessarily in the
terms of the statute defining the offense, but in such
form as is sufficient to enable a person of common
understanding to know what offense is intended to
be charged, and enable the court to pronounce
proper judgment. (8)
Section 9 required that the acts or omissions
complained of as constituting the offense must be
stated "in ordinary and concise language without
repetition, not necessarily in the terms of the statute
defining the offense." As such, the nature and
character of the crime charged are determined not
by the specification of the provision of the law
alleged to have been violated but by the facts
alleged in the indictment, that is, the actual recital of
the facts as alleged in the body of the information,
and not the caption or preamble of the information
or complaint nor the specification of the provision of
law alleged to have been violated, they being
conclusions of law.19 The facts alleged in the body of
the information, not the technical name given by the
prosecutor appearing in the title of the information,
determine the character of the crime.20
To enable "a person of common understanding to
know what offense is intended to be charged," as
Section 9 further required, the courts should be
mindful that the accused should be presumed
innocent of wrongdoing, and was thus completely
unaware of having done anything wrong in relation
to the accusation. The information must then
sufficiently give him or her the knowledge of what
he or she allegedly committed. To achieve this, the
courts should assiduously take note of what Justice
Moreland appropriately suggested in United States v.
Lim San,21 and enforce compliance therewith by the
State, to wit:
xxxx Notwithstanding apparent contradiction
between caption and body, we believe that we
ought to say and hold that the characterization of
the crime by the fiscal in the caption of the
information is immaterial and purposeless, and that
the facts stated in the body of the pleading must
determine the crime of which the defendant stands
charged and for which he must be tried. The
establishment of this doctrine is permitted by the
Code of Criminal Procedure, and is thoroughly in
accord with common sense and with the
requirements of plain justice.
xxxx
From a legal point of view, and in a very real sense, it
is of no concern to the accused what is the technical
name of the crime of which he stands charged. It in
no way aids him in a defense on the merits, xxx. That
to which his attention should be directed, and in
which he, above all things else, should be most
interested, are the facts alleged. The real question is
not did he commit a crime given in the law some
technical and specific name, but did he perform the
acts alleged in the body of the information in the
manner therein set forth. If he did, it is of no
consequence to him, either as a matter of procedure
or of substantive right, how the law denominates the
crime which those acts constitute. The designation
of the crime by name in the caption of the
information from the facts alleged in the body of
that pleading is a conclusion of law made by the
fiscal. In the designation of the crime the accused
never has a real interest until the trial has ended. For
his full and complete defense he need not know the
name of the crime at all. It is of no consequence
whatever for the protection of his substantial rights.
The real and important question to him is, "Did you
perform the acts alleged in the manner alleged?" If
he performed the acts alleged, in the manner stated,
the law determines what the name of the crime is
and fixes the penalty therefor. It is the province of
the court alone to say what the crime is or what it is
named. xxx.
In People v. Dimaano,22 the Court has reiterated the
foregoing guideline thuswise:
For complaint or information to be sufficient, it must
state the name of the accused; the designation of
the offense given 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. What is
controlling is not the title of the complaint, nor the
designation of the offense charged or the particular
law or part thereof allegedly violated, these being
386 | P a g e
mere conclusions of law made by the prosecutor,
but the description of the crime charged and the
particular facts therein recited. The acts or omissions
complained of must be alleged in such form as is
sufficient to enable a person of common
understanding to know what offense is intended to
be charged, and enable the court to pronounce
proper judgment. No information for a crime will be
sufficient if it does not accurately and clearly allege
the elements of the crime charged. Every element of
the offense must be stated in the information. What
facts and circumstances are necessary to be included
therein must be determined by reference to the
definitions and essentials of the specified crimes.
The requirement of alleging the elements of a crime
in the information is to inform the accused of the
nature of the accusation against him so as to enable
him to suitably prepare his defense. The
presumption is that the accused has no independent
knowledge of the facts that constitute the
offense. (Bold underscoring supplied for emphasis)
If the standards of sufficiency defined and set by the
applicable rule of procedure were not followed, the
consequences would be dire for the State, for the
accused could be found and declared guilty only of
the crime properly charged in the information. As
declared in People v. Manalili:23
xxx an accused cannot be convicted of an offense,
unless it is clearly charged in the complaint or
information. Constitutionally, he has a right to be
informed of the nature and cause of the accusation
against him. To convict him of an offense other than
that charged in the complaint or information would
be violative of this constitutional right. Indeed, the
accused cannot be convicted of a crime, even if duly
proven, unless it is alleged or necessarily included in
the information filed against him.
Article 14, paragraph 16, of the Revised Penal
Code states that "[t]here is treachery when the
offender commits any of the crimes against the
person, employing means, methods or forms in the
execution thereof which tend directly and specially
to insure its execution, without risk to himself arising
from the defense which offended party might
make." For treachery to be appreciated, therefore,
two elements must concur, namely: (1) that the
means of execution employed gave the person
attacked no opportunity to defend himself or
herself, or retaliate; and (2) that the means of
execution were deliberately or consciously
adopted,24 that is, the means, method or form of
execution must be shown to be deliberated upon or
consciously adopted by the offender.25
Treachery, which the CA and the RTC ruled to be
attendant, always included basic constitutive
elements whose existence could not be assumed.
Yet, the information nowhere made any factual
averment about the accused having deliberately
employed means, methods or forms in the execution
of the act - setting forth such means, methods or
forms in a manner that would enable a person of
common understanding to know what offense was
intended to be charged - that tended directly and
specially to insure its execution without risk to the
accused arising from the defense which the offended
party might make. To reiterate what was earlier
indicated, it was not enough for the information to
merely state treachery as attendant because the
term was not a factual averment but a conclusion of
law.
The submission of the Office of the Solicitor General
that neither treachery nor evident premeditation
had been established against the accused is also
notable. A review reveals that the record did not
include any showing of the presence of the elements
of either circumstance.
As a consequence, the accused could not be properly
convicted of murder, but only of homicide, as
defined and penalized under Article 249, Revised
Penal Code, to wit:
Art. 249. Homicide. — Any person who, not falling
within the provisions of Article 246, shall kill another
without the attendance of any of the circumstances
enumerated in the next preceding article, shall be
deemed guilty of homicide and be punished
by reclusion temporal.
The accused is entitled to the benefits under
the Indeterminate Sentence Law. Thus, the minimum
of his indeterminate sentence should come
from prision mayor, and the maximum from the
medium period of reclusion temporal due to the
absence of any modifying circumstance. Accordingly,
the indeterminate sentence is nine years of prision
mayor, as the minimum, to 14 years, eight months
and one day of reclusion temporal, as the maximum.
Conformably with People v. Jugueta,26 the Court
grants to the heirs of the late Vicente Delector
P50,000.00 as civil indemnity, P50,000.00 as moral
damages, and P25,000.00 as temperate damages (in
lieu of actual damages for burial expenses), plus
interest of 6% per annum from the finality of this
decision until the full satisfaction.
The records show that the accused was first
detained at the Sub-Provincial Jail in Calbayog City
on November 19, 1997,27 and was transferred by the
RTC on July 18, 2003 following his conviction for
murder to the custody of the Bureau of Corrections
in Muntinlupa City, Metro Manila.28 Under the terms
of this decision, the period of his actual
imprisonment has exceeded his maximum sentence,
and now warrants his immediate release from his
place of confinement.
WHEREFORE, the Court AFFIRMS the decision
promulgated on September 22, 2006 of the Court of
Appeals subject to the MODIFICATION that
accused ARMANDO DELECTOR is found and
387 | P a g e
pronounced guilty beyond reasonable doubt
of HOMICIDE, and, ACCORDINGLY, sentences him to
suffer the indeterminate sentence of NINE YEARS
OF PRISION MAYOR, AS THE MINIMUM, TO 14
YEARS, EIGHT MONTHS AND ONE DAY
OF RECLUSION TEMPORAL, AS THE MAXIMUM;
and ORDERS him to pay to the heirs of the late
Vicente Delector P50,000.00 as civil indemnity,
P50,000.00 as moral damages, and P25,000.00 as
temperate damages, plus interest of 6% per
annum from the finality of this decision until the full
satisfaction, and the costs of suit.
Considering that accused ARMANDO
DELECTOR appears to have been in continuous
detention since November 19, 1997, his immediate
release from the New Bilibid Prison at Muntinlupa
City, Metro Manila is ordered unless there are other
lawful causes warranting his continuing detention.
The Court DIRECTS the Director of the Bureau of
Corrections to immediately implement this decision,
and to render a report on his compliance within 10
days from notice.
SO ORDERED.
January 13, 2016
G.R. No. 211062
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
MANUEL MACAL y BOLASCO, Accused-Appellant.
DECISION
PEREZ, J.:
Violence between husband and wife is nothing new.
Marital violence that leads to spousal killing is
parricide. Perceived as a horrific kind of killing, penal
laws impose a harsher penalty on persons found
guilty of parricide compared to those who commit
the felony of homicide.
For review is the June 28, 2013 Decision1 of the
Court of Appeals (CA) in CA-G.R. CEB-CR H.C. No.
01209 which affirmed with modification the August
18, 2009 Decision2 of the Regional Trial Court (RTC)
of Tacloban City, Branch 6, convicting Manuel
Macal y Bolasco (accused-appellant) of the crime of
parricide and sentencing him to suffer the penalty
of reclusion perpetua.
The Facts
For allegedly killing his spouse, Auria Ytac Macal
(Auria), the accused-appellant was charged with the
crime of parricide in a February 13, 2003
Information3 that reads:
"That on or about the 12th day of February, 2003, in
the City of Tacloban, Philippines and within the
jurisdiction of this Honorable Court, the above-
named accused, MANUEL MACAL y BOLASO, did,
then and there, wilfully, unlawfully and feloniously
and with evident premeditation, that is, having
conceived and deliberated to kill his wife, AURIA
MACAL y YTAC, with whom he was united in lawful
wedlock, armed with an improvised bladed weapon
(belt buckle) and a kitchen knife, stab said Auria
Macal on the front portion of her body inflicting a
fatal wound which caused her death, which incident
happened inside the bedroom of the house they are
residing.
CONTRARY TO LAW."
On July 7, 2003, upon arraignment, the accused-
appellant, duly assisted by counsel, pleaded not
guilty to the charge of parricide.4 During the pre-trial
conference, the parties agreed to stipulate that Auria
was the wife of the accused-appellant.5 Thereafter,
trial on the merits ensued.
Version of the Prosecution
To prove the accusation, the prosecution presented
Angeles Ytac (Angeles) and Erwin Silvano (Erwin) as
witnesses.
Angeles, the mother of Auria, narrated that Auria
and the accused-appellant got married in March
2000 and that out of their union, they begot two (2)
children. Angeles claimed that, at the time of the
incident, they were all living together in a house
located in V & G Subdivision, Tacloban City. The said
house was entrusted to Angeles by her brother,
Quirino Ragub, who was then residing in Canada.
Angeles testified that at around 1:20 in the morning
of February 12, 2003, she, her children Catherine,
Jessica, Auria and Arvin were walking home after
playing bingo at a local peryahan. Some friends
tagged along with them so that they could all feast
on the leftover food prepared for the fiesta that was
celebrated the previous day. Along the way, Angeles
and her group met Auria's husband, the accused
appellant. The latter joined them in walking back to
their house.
When they arrived at the house, the group
proceeded to the living room except for Auria and
the accused-appellant who went straight to their
bedroom, about four (4) meters away from the living
room. Shortly thereafter, Angeles heard her
daughter Auria shouting, "mother help me I am
going to be killed."6 Upon hearing Auria's plea for
help, Angeles and the rest of her companions raced
388 | P a g e
towards the bedroom but they found the door of the
room locked. Arvin kicked open the door of the
bedroom and there they all saw a bloodied Auria on
one side of the room. Next to Auria was the accused-
appellant who was then trying to stab himself with
the use of an improvised bladed weapon (belt
buckle). Auria was immediately taken to a hospital,
on board a vehicle owned by a neighbor, but was
pronounced dead on arrival. Angeles declared that
the accused-appellant jumped over the fence and
managed to escape before the policemen could
reach the crime scene.
Erwin corroborated Angeles' testimony that Auria
was killed by the accused-appellant. Erwin claimed
that he was part of the group that went to Angeles'
residence on that fateful morning. From where he
was seated in the living room, Erwin recounted that
he heard Auria's screaming for her mother's help.
The cry for help prompted him to ran towards the
bedroom. Once the door was forcibly opened, Erwin
became aware that the accused-appellant stabbed
Auria on the upper left portion of her chest with a
stainless knife. Erwin testified that the accused-
appellant stabbed himself on the chest with a knife-
like belt buckle and that soon after, the accused-
appellant hurriedly left the house.
The prosecution formally offered in evidence the
Certificate of Death wherein it is indicated that Auria
died of hemorrhagic shock secondary to stab
wound.7
Version of the Defense
To substantiate its version of the fact, the defense
called to the witness stand the accused-appellant,
Benito Billota (Benito) and Nerissa Alcantara
(Nerissa).1âwphi1
The accused-appellant did not refute the factual
allegations of the prosecution that he stabbed his
wife, resulting in the latter's death, but seeks
exoneration from criminal liability by interposing the
defense that the stabbing was accidental and not
intentional.
The accused-appellant admitted that he was married
to Auria in March 2000 and the wedding was held in
Manila. The couple had two children but one of
them died. According to the accused-appellant, he
was employed as a security guard by Fighter Wing
Security Agency which was based in Manila. While
the accused-appellant was working in Manila, his
family lived with Angeles in Tacloban City. The
accused-appellant came home only once a year to
his family in Tacloban City.
On February 12, 2003, the accused-appellant arrived
home in V & G Subdivision, Tacloban City from
Manila. Before the accused-appellant could reach
the bedroom, he was warned by Arvin, his brother-
in-law, not to go inside the bedroom where his wife
was with a man for he might be killed. Ignoring
Arvin's admonition, the accused-appellant kicked the
door but it was opened from the inside. After the
bedroom door was opened, the accused-appellant
saw his wife and a man seated beside each other
conversing. Furious by what he had seen, the
accused-appellant went out of the room, got a knife
and delivered a stab blow towards the man but the
latter was shielded by Auria. In the process, the stab
blow landed on Auria. After Auria was accidentally
stabbed, the man ran outside and fled. The accused-
appellant testified that out of frustration for not
killing the man, he wounded himself on the chest. He
then left the house and went to Eastern Visayas
Regional Medical Center (EVRMC) for medical
treatment.
Benito attested that he came to know the accused-
appellant while they were seated next to each other
on board a Christopher Bus bound for Tacloban City.
The bus they were riding reached Tacloban City past
midnight of February 12, 2003. Considering the
lateness of the hour and there was no bus available
that would take Benito to his final destination, the
accused-appellant convinced Benito to simply go
home with him. Once they got home, the accused-
appellant went inside the house while Benito opted
to stay by the main door. The accused-appellant
asked someone from the living room the
whereabouts of his wife, Auria. Benito testified that
a female informed the accused-appellant that Auria
was inside the bedroom but advised him not to go in
as Auria was not alone in the room. Undettered, the
accused-appellant proceeded to the bedroom and
was able to get inside the room. Moments later,
Benito heard a thudding sound coming from the
bedroom. Then, Benito saw a man running out of the
house. Sensing trouble, Benito immediately
proceeded to the bus terminal.
To support the accused-appellant's claim that he
brought himself to a hospital on February 12, 2003,
Nerissa, the Administrative Officer/OIC Records
Officer of EVRMC, was presented as witness for the
defense. Her testimony focused on the existence of
the medical record concerning the examination
conducted on the accused-appellant by a physician
at EVRMC. Per hospital record, Nerissa confirmed
that the accused-appellant sustained a three-
centimeter wound located at the left parastemal,
level of the 5th ICS non-penetrating and another
lacerated wound in the left anterior chest. 8
The RTC's Ruling
The RTC convicted the accused-appellant of the
crime of parricide and the dispositive portion of its
judgment reads:
389 | P a g e
WHEREFORE, in view of the foregoing
considerations, this Court finds accused MANUEL
MACAL y BOLASCO guilty beyond reasonable doubt
of the crime of Parricide, and sentences him to suffer
the penalty of imprisonment of RECLUSION
PERPETUA; to pay the heirs of the victim, Aurea Ytac
Macal, P.50,000.00 as civil indemnity, and
P.50,000.00 for moral damages. And, to pay the
Costs.
SO ORDERED.9
The RTC gave full credence to the testimonies of the
prosecution witnesses. In contrast, the RTC found
accused-appellant's declarations doubtful and
contrary to human experience and reason. The RTC
was not persuaded by the accused-appellant's
argument that the stabbing incident was purely
accidental after it took into account Auria's terrifying
wail that she was going to be killed. The RTC also
refused to believe accused-appellant's claim that
there was a man with Auria inside the bedroom.
Logic dictates that a man in that situation would
normally run away the first opportunity he had
specifically when the accused-appellant stepped out
of the bedroom to obtain a knife. The RTC even went
further by saying that the accused-appellant injured
himself so that he can later on invoke self-defense
which he failed to do as there are witnesses who can
easily disprove his theory of self-defense.
The CA 's Ruling
On appeal, the CA affirmed with modification the
RTC decision. The fallo of the CA decision states:
IN LIGHT OF ALL THE FOREGOING, the Court hereby
AFFIRMS with MODIFICATION the assailed Decision
dated August 18, 2009, of the Regional Trial Court,
Branch 6, Tacloban City in Criminal Case No. 2003-
02-92. Accused-Appellant MANUEL MACAL y
BOLASCO is found GUILTY of parricide committed
against his legal wife, Auria Ytac Macal, on February
12, 2003 and is sentenced to suffer the penalty
of reclusion perpetua. He is further ordered to pay
the heirs of Auria Ytac Macal the amounts of Php
50,000.00 as civil indemnity, Php 50,000.00 as moral
damages, Php 25,000.00 as temperate damages and
Php 30,000.00 as exemplary damages. All monetary
awards for damages shall earn interest at the legal
rate of six percent (6%) per annum from date of
finality of this Decision until fully paid.
SO ORDERED.10
The appellate court ruled that all the elements of
parricide are present in this case. Moreover, the CA
reasoned out that while Angeles did not actually see
the accused-appellant stab Auria, the prosecution
adduced sufficient circumstantial evidence to sustain
his conviction. From the viewpoint of the CA, the
prosecution's case against the accused-appellant was
strengthened by the latter's own testimony and
admission that he stabbed his wife. The CA further
held that neither can the act of the accused-
appellant be covered under the exempting
circumstance of accident under Article 12(4)11 of the
Revised Penal Code nor under absolutory cause
found in Article 2412 of the same Code.
Hence, this appeal.
The Issue
The principal issue before the Court is whether the
court a quo erred in finding the accused-appellant
guilty beyond reasonable doubt of the crime of
parricide.
In the resolution of March 10, 2014, the Court
required the parties to submit their respective
supplemental briefs within thirty (30) days from
notice. However, both parties manifested that they
will no longer file the required briefs as they had
already exhaustively and extensively discussed all
the matters and issues of this case in the briefs
earlier submitted with the CA.
The Court's Ruling
The Court affirms the conviction of the accused-
appellant with modifications.
All the Essential Elements of Parricide Duly
Established and Proven by the Prosecution
Parricide is committed when: (1) a person is killed;
(2) the deceased is killed by the accused; (3) the
deceased is the father, mother, or child, whether
legitimate or illegitimate, or a legitimate other
ascendants or other descendants, or the legitimate
spouse of the accused.13
Among the three requisites, the relationship
between the offender and the victim is the most
crucial.14 This relationship is what actually
distinguishes the crime of parricide from
homicide.15 In parricide involving spouses, the best
proof of the relationship between the offender and
victim is their marriage certificate.16 Oral evidence
may also be considered in proving the relationship
between the two as long as such proof is not
contested.17
In this case, the spousal relationship between Auria
and the accused-appellant is beyond dispute. As
previously stated, the defense already admitted that
Auria was the legitimate wife of the accused-
appellant during the pre-trial conference. Such
admission was even reiterated by the accused-
appellant in the course of trial of the case.
Nevertheless, the prosecution produced a copy of
the couple's marriage certificate which the defense
390 | P a g e
admitted to be a genuine and faithful reproduction Q: Were you able to hit the man?
of the original.18 Hence, the key element that
qualifies the killing to parricide was satisfactorily A: No, because my wife shielded him.
demonstrated in this case.
Q: Since your wife shielded the man, what happened
Just like the marital relationship between Auria and to your wife?
the accused-appellant, the fact of Auria's death is
incontestable. Witnesses, from both the prosecution A: My wife got hit.
and defense, were in agreement that Auria expired
on February 12, 2003. As additional proof of her
Q: Now, in what of the body of his wife was hit?
demise, the prosecution presented Auria's
Certificate of Death which was admitted by the RTC
A: I cannot exactly tell where she was hit but he
and the defense did not object to its admissibility.
delivered a stabbing blow at the man.
Anent the remaining element, there is no doubt that
Q: So, after your wife was hit by the stabbing blow to
Auria was killed by the accused-appellant. The
stabbing incident was acknowledged by the accused- be directed to the man, what happened next?
appellant himself during his direct examination by
defense counsel Emelinda Maquilan, to wit: A: Out of desperation because I was not able to kill
the man, I wounded myself.
xxxx
Q: How about the man whom you wanted to stab,
what happened to him?
Q: What is the name of your wife?
A: He ran.
A: Aurea Ytac.
Q: Since you said your wife was hit by that stabbing
Q: You said you saw your wife in your room with a
blow, what happen to your wife then?
man. Now, what was the man doing when you saw
this man together with your wife?
A: She died.
A: They were conversing.
Q: How about you, what happened to you after you
yourself?
Q: They were conversing in what part of your room?
A: I left the place.19
A: At one side of the room.
The outright admission of the accused-appellant in
Q: So, what did you do upon seeing the man, if there
open court that he delivered the fatal stabbing blow
was any?
that ended Auria's life established his culpability.
A: Because of my anger, I stabbed the man.
Clearly, all the elements of the crime of parricide as
defined in Article 246 of the Revised Penal Code are
present in this case.
Affirmative Defense of Accident as an Exempting
Circumstance Must Fail
The defense invoked Article 12 paragraph 4 of the
Revised Penal Code to release the accused-appellant
from criminal liability. Pursuant to said provision, the
essential requisites of accident as an exempting
circumstance are: (1) a person is performing a lawful
act; (2) with due care; (3) he causes an injury to
another by mere accident; and (4) without fault or
intention of causing it.20
A close scrutiny of the transcripts of stenographic
notes would reveal that the accused-appellant was
not performing a lawful act at the time Auria was
stabbed. This can be gathered from the narration of
the accused-appellant during cross-examination
conducted by Prosecutor Percival Dolina:
xxxx
Q: Now, of course, when you saw the man and your
wife, according to you, they were just conversing
with each other, correct?
A: Yes, sir.
Q: How far where they to each other?
A: They were beside each other.
Q: They were sitting?
A: Yes, sir, both were sitting.
Q: Of course, when you saw them, you got angry?
391 | P a g e
A: I became angry.
Q: That is why you got a knife and stabbed the man?
A: Yes, sir.
Q: And when you stabbed the man, you had the
intention to kill him?
A: Yes, my intention was to kill him.
Q: But it was your wife who was hit?
A: My wife was the one hit.21
The defense of accident presupposes lack of
intention to kill.22 This certainly does not hold true in
the instant case based on the aforequoted testimony
of the accused-appellant. Moreover, the prosecution
witnesses, who were then within hearing distance
from the bedroom, testified that they distinctly
heard Auria screaming that she was going to be
killed by the accused-appellant.
Given these testimonies, the accused-appellant's
defense of accident is negated as he was carrying out
an unlawful act at the time of the incident.
It also bears stressing that in raising the defense of
accident, the accused-appellant had the inescapable
burden of proving, by clear and convincing evidence,
of accidental infliction of injuries on the victim. 23 In
so doing, the accused-appellant had to rely on the
strength of his own evidence and not on the
weakness of the prosecution's evidence.24 As aptly
pointed out by the CA, the defense failed to
discharge the burden of proving the elements of the
exempting circumstance of accident that would
otherwise free the accused-appellant from
culpability. Aside from the accused-appellant's self-
serving statement, no other proof was adduced that
will substantiate his defense of accidental stabbing.
Further, contrary to what the accused-appellant
wants the Court to believe, his actuations closely
after Auria was stabbed tell a different
story.1avvphi1 If Auria was really accidentally
stabbed by him, the accused-appellant's natural
reaction would have been to take the lead in
bringing his wife to a hospital. Instead, his priority
was to come up with an improvised bladed weapon
that he could use to hurt himself. Additionally, the
fact that the accused-appellant ran away from the
crime scene leaving Auria's relatives and neighbors
to tend to his dying wife is indicative of his guilt.
The CA took one step further when it examined the
applicability of Article 247 of the Revised Penal Code
in this case. For this purpose, the CA
assumed arguendo that there is another man inside
the bedroom with Auria.
Article 247 is an absolutory cause that recognizes the
commission of a crime but for reasons of public
policy and sentiment there is no penalty
imposed.25 The defense must prove the concurrence
of the following elements: (1) that a legally married
person surprises his spouse in the act of committing
sexual intercourse with another person; (2) that he
kills any of them or both of them in the act or
immediately thereafter; and (3) that he has not
promoted or facilitated the prostitution of his wife
(or daughter) or that he or she has not consented to
the infidelity of the other spouse.26 Among the three
elements, the most vital is that the accused-
appellant must prove to the court that he killed his
wife and her paramour in the act of sexual
intercourse or immediately thereafter.27
Having admitted the stabbing, the burden of proof is
shifted to the defense to show the applicability of
Article 247.28 As disclosed by the accused-appellant,
when he saw Auria with a man, the two were just
seated beside each other and were simply talking.
Evidently, the absolutory cause embodied in Article
247 is not applicable in the present case.
In sum, the Court agrees with the trial and appellate
courts that the evidence of the prosecution has
established the guilt of the accused-appellant
beyond reasonable doubt.
Penalty and Pecuniary Liability
Article 246 of the Revised Penal Code provides that
the imposable penalty for parricide is reclusion
perpetua to death.1âwphi1 With the enactment of
Republic Act No. 9346 (RA 9346), the imposition of
the penalty of death is prohibited. Likewise
significant is the provision found in Article 63 of the
Revised Penal Code stating that in the absence of
mitigating and aggravating circumstances in the
commission of the crime, the lesser penalty shall be
imposed. Applying these to the case at bar and
considering that there are no mitigating and
aggravating circumstances present, the penalty
of reclusion perpetua was correctly imposed by the
RTC and CA.
Civil indemnity is automatically awarded upon proof
of the fact of death of the victim and the commission
by the accused-appellant of the crime of
parricide.29 Current jurisprudence sets civil
indemnity in the amount of P75,000.00. As such, the
Court finds it necessary to increase the civil
indemnity awarded by the trial and appellate courts
from P50,000.00 to P75,000.00.
There is no question that Auria's heirs suffered
mental anguish by reason of her violent death.
Consequently, the award of moral damages is in
order. Similar to civil indemnity, prevailing
392 | P a g e
jurisprudence pegs moral damages in the amount of
P75,000.00. On that account, the Court must also
adjust the moral damages from P50,000.00 to
P75,000.00.
Given that this is a case of a husband killing his wife
where relationship a qualifying circumstance, the
award of exemplary damages is justified. The
exemplary damages of P30,000.00 awarded by the
CA is maintained as it is consistent with the latest
rulings of the Court.
Temperate damages may be recovered when some
pecuniary loss has been suffered but definite proof
of its amount was not presented in court.30 In People
v. De Leon,31 the Court awarded P25,000.00 as
temperate damages where the expenses for the
funeral cannot be determined with certainty
because of the absence of receipts to prove them. In
keeping with the said ruling, the Court affirms the
CA's award of P25,000.00 as temperate damages.
On a final note, the Court upholds the imposition of
interest at the legal rate of 6% per annum on all the
monetary awards for damages reckoned from the
date of finality of this Decision until fully paid.32 This
is in accordance with the Court's discretionary
authority to levy interest as part of the damages and
in conformity with the latest Court policy on the
matter.
WHEREFORE, the CA's decision dated June 28, 2013
in CA-G.R. CEB-CR H.C. No. 01209, finding accused-
appellant, Manuel Macal y Bolasco, guilty beyond
reasonable doubt of the crime of Parricide, is
hereby AFFIRMED with MODIFICATIONS. Accused-
appellant is sentenced to suffer the penalty
of reclusion perpetua and to pay the heirs of the
victim, Auria Ytac Macal, the amounts of P75,000.00
as civil indemnity, P75,000.00 as moral damages,
P30,000.00 as exemplary damages, and P25,000.00
as temperate damages. In addition, all the monetary
awards shall earn an interest at the legal rate of
6% per annum from the date of finality of this
Decision until fully paid.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
WE CONCUR:
THIRD DIVISION
[G.R. NO. 186420 : August 25, 2009]
PEOPLE OF THE PHILIPPINES, Appellee, v. SAMUEL
ANOD, Appellant.
RESOLUTION
NACHURA, J.:
Before this Court is an Appeal,1 assailing the Court of
Appeals (CA) Decision2 dated August 27, 2008 which
affirmed with modification the Decision3 dated July
3, 2001 of the Regional Trial Court (RTC) of Bislig,
Surigao del Sur, Branch 29, finding appellant Samuel
Anod (appellant) and his co-accused Lionel
Lumbayan (Lumbayan) guilty beyond reasonable
doubt of the crime of Murder committed against
Erlando Costan (Costan).
The Facts
Appellant and Lumbayan were charged with the
crime of Murder in an Information dated June 23,
1997 which reads:
That on or about 10:30 o'clock (sic) in the evening,
more or less, of May 16, 1997, at Purok 1, [B]arangay
Borbonan, [M]unicipality of Bislig, [P]rovince of
Surigao del Sur, Philippines and within the
jurisdiction of this Honorable Court, the above-
named [appellant] conspiring, confederating and
mutually helping one another for a common
purpose, with intent to kill, treachery and evident
premeditation, did then and there willfully,
unlawfully and feloniously attack, assault[,] stab and
hack one Erlando Costan with the use of a pointed
bolo, thereby inflicting upon the latter multiple stab
and hack wounds which cause[d] his instantaneous
death, to the damage and prejudice of the heirs of
the said Costan.
CONTRARY TO LAW: In violation of Article 248 of the
Revised Penal
Code.4 ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
During the arraignment on November 12, 1997,
appellant and Lumbayan entered pleas of "not
guilty" to the crime charged. Thereafter, trial on the
merits ensued. In the course of the trial, two varying
versions arose.
Version of the Prosecution
Before midnight of May 16, 1997, the victim, Costan,
was stabbed and hacked to death in his house
situated in Barangay Borbonan,5 Bislig, Surigao del
Sur (Borbonan). His body was found by Miguel Platil.
The following day, May 17, 1997, appellant and
Lumbayan surrendered to Andromeda Perater,
Barangay Chairperson of Borbonan (Barangay
Chairperson), before whom they admitted the killing
of Costan. On May 18, 1997, appellant and
Lumbayan were brought to the police station. The
Barangay Chairperson testified before the RTC that
appellant narrated and admitted to her that he and
Lumbayan killed Costan. This narration of facts
393 | P a g e
was entered in the Barangay Logbook, duly signed by
appellant and Lumbayan, and authenticated by two
(2) other witnesses.
Version of the Defense
Appellant averred that at around 7 p.m. of May 16,
1997, he and Lumbayan were having a drinking spree
in the store of one Dodoy Advincula in Borbonan
where they were joined by a certain Angges. An hour
later, appellant asked his companions to go home.
On their way home and upon reaching a dark place,
Lumbayan suddenly stabbed Angges. He then invited
appellant to sleep at the house of Lumbayan's aunt.
Subsequently, however, Lumbayan told appellant
that they would spend the night at Costan's house.
Upon reaching Costan's house, Lumbayan called for
the victim. Costan opened the door for them and
immediately thereafter, Lumbayan poked a knife at
Costan and ordered appellant to tie the victim while
the latter was lying down. He then ordered appellant
to stab Costan. Out of fear of being stabbed by
Lumbayan who, at the time, was poking a knife at
appellant's breast, appellant stabbed Costan once at
the back. Thereafter, appellant and Lumbayan went
to the house of Lumbayan's aunt. They surrendered
to the Barangay Chairperson allegedly upon the
prodding of appellant. On the other hand, Lumbayan
denied all the charges, claiming that he and
appellant slept early on the night of the incident at
his aunt's house. The following day, they were
fetched and brought to the house of the Barangay
Chairperson.
The RTC's Ruling
On July 3, 2001, the RTC found appellant and
Lumbayan guilty beyond reasonable doubt of the
crime of Murder and sentenced them to suffer the
penalty of reclusion perpetua and to pay the widow
of Costan in the amount of P50,000.00 as damages.
Only appellant interposed an appeal6 assailing the
RTC Decision. Accordingly, the case was elevated to
this Court on automatic review. However, in our
Resolution7 dated September 6, 2004, and pursuant
to our ruling in People v. Mateo, the case was
transferred to the CA.
The CA's Ruling
In its Decision dated August 27, 2008, the CA
affirmed the factual findings of the RTC with
modification, imposing upon appellant the penalty
of reclusion perpetua without eligibility for parole
and ordering him to pay the heirs of Costan the
amount of P75,000.00 as civil indemnity, P50,000.00
as moral damages, P25,000.00 as exemplary
damages, and P25,000.00 as actual damages.
Aggrieved, appellant appealed. In their respective
Manifestations filed before this Court, appellant, as
represented by the Public Attorney's Office, and the
Office of the Solicitor General (OSG) opted to adopt
their respective Briefs filed before the CA as their
Supplemental Briefs.
Hence, this Appeal with the following assignment of
errors:
I.
ASSUMING WITHOUT ADMITTING THAT
APPELLANT'S CULPABILITY WAS PROVEN BEYOND
REASONABLE DOUBT, THE COURT A QUO GRAVELY
ERRED IN NOT CONSIDERING THE EXEMPTING
CIRCUMSTANCES OF IRRESISTIBLE FORCE AND
UNCONTROLLABLE FEAR.
 II.
THE COURT A QUO GRAVELY ERRED IN
APPRECIATING TREACHERY AND EVIDENT
PREMEDITATION AS QUALIFYING CIRCUMSTANCES.8
Appellant argues that he blindly obeyed Lumbayan
and stabbed Costan, an act that was against his will
and done under the compulsion of an irresistible
force and uncontrollable fear for his life. Moreover,
appellant contends that the qualifying circumstances
of evident premeditation and treachery were not
proven beyond reasonable doubt. Except for the
testimony of the Barangay Chairperson which did
not prove these qualifying circumstances, no other
witness was presented to corroborate the same. 9
On the other hand, the OSG opines that the force
supposedly exerted upon appellant was not
sufficient to exempt him from criminal liability. Apart
from initially refusing Lumbayan's order, as appellant
alleged, he did not offer any protest or objection to
the said order. Appellant could have easily evaded
Lumbayan, or he could have defended himself in
equal combat as he himself was armed with a knife.
The OSG claims that, while it may be conceded that
evident premeditation was not adequately proven,
treachery was, however, duly established. Thus, the
crime committed was murder.10
Our Ruling
We dismiss the appeal.
Appellant failed to sufficiently show that the CA
committed any reversible error in its assailed
Decision. Under Article 12 of the Revised Penal Code,
a person is exempt from criminal liability if he acts
under the compulsion of an irresistible force, or
under the impulse of an uncontrollable fear of equal
or greater injury, because such person does not act
394 | P a g e
with freedom. However, we held that for such a
defense to prosper, the duress, force, fear, or
intimidation must be present, imminent and
impending, and of such nature as to induce a well-
grounded apprehension of death or serious bodily
harm if the act be done. A threat of future injury is
not enough. In this case, as correctly held by the CA,
based on the evidence on record, appellant had the
chance to escape Lumbayan's threat or engage
Lumbayan in combat, as appellant was also holding a
knife at the time. Thus, appellant's allegation of fear
or duress is untenable. We have held that in order
for the circumstance of uncontrollable fear may
apply, it is necessary that the compulsion be of such
a character as to leave no opportunity for escape or
self-defense in equal combat.11 Therefore, under the
circumstances, appellant's alleged fear, arising from
the threat of Lumbayan, would not suffice to exempt
him from incurring criminal liability.
Indubitably, the killing of the victim was attended by
treachery. Treachery exists when the offender
commits a crime against persons, employing means,
methods or forms in the execution thereof which
tend, directly and specifically, to ensure its
execution, without risk to himself arising from any
defense or retaliatory act which the victim might
make. Here, appellant tied Costan while the latter
was lying down before he and Lumbayan stabbed
the latter to death; thus, ensuring the execution of
the crime without risk to themselves. Obviously,
Costan could not flee for his life or retaliate. This
aggravating circumstance qualifies the crime to
murder.12
We apply the cardinal rule that factual findings of
the trial court, its calibration of the testimonies of
the witnesses, and its conclusions anchored on its
findings are accorded with great respect, if not
conclusive effect, more so when affirmed by the CA.
The exception is when it is established that the trial
court ignored, overlooked, misconstrued, or
misinterpreted cogent facts and circumstances that,
if considered, would change the outcome of the
case. We have reviewed the records of the RTC and
the CA and we find no reason to deviate from the
lower courts' findings and their uniform conclusion
that appellant is indeed guilty beyond reasonable
doubt of the crime of murder.13
As to damages, we held in People of the Philippines
v. Judito Molina and John Doe, and Joselito
Tagudar,14 that when death occurs due to a crime,
the following damages may be awarded: (1) civil
indemnity ex delicto for the death of the victim; (2)
actual or compensatory damages; (3) moral
damages; (4) exemplary damages; and (5) temperate
damages.
Civil indemnity is mandatory and granted to the heirs
of the victim without need of proof other than the
commission of the crime. In this regard, however, we
reduce the award made by the CA, from P75,000.00
to P50,000.00.
It is worth stressing that, at the outset, the
appellant, together with Lumbayan, was sentenced
by the RTC to suffer the penalty of reclusion
perpetua. Thus, the CA's reliance on our ruling in
People v. dela Cruz15 was misplaced. In dela Cruz,
this Court cited our ruling in People v.
Tubongbanua,16 wherein we held that the civil
indemnity imposed should be P75,000.00. However,
the instant case does not share the same factual
milieu as dela Cruz and Tubongbanua. In the said
cases, at the outset, the accused were sentenced to
suffer the penalty of death. However, in view of the
enactment of Republic Act No. 9346 or the Act
Prohibiting the Imposition of the Death Penalty on
June 24, 2006, the penalty meted to the accused was
reduced to reclusion perpetua. This jurisprudential
trend was followed in the recent case of People of
the Philippines v. Generoso Rolida y Moreno,
etc.,17 where this Court also increased the civil
indemnity from P50,000.00 to P75,000.00. Based on
the foregoing disquisitions and the current
applicable jurisprudence, we hereby reduce the civil
indemnity awarded herein to P50,000.00.18 We
affirm all the other awards made by the CA.
WHEREFORE, the appealed Decision dated August
27, 2008 of the Court of Appeals in CA-G.R. CR-H.C.
No. 00195, finding appellant Samuel Anod guilty of
the crime of murder and sentencing him to suffer
the penalty of reclusion perpetua is AFFIRMED with
MODIFICATION in that the award of civil indemnity
of P75,000.00 is reduced to P50,000.00. In all other
respects, the assailed Decision is AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 45186 September 30, 1936
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-
appellee,
vs.
JOSEFINA BANDIAN, defendant-appellant.
Jose Rivera Yap for appellant.
Office of the Solicitor-General Hilado for appellee.
DIAZ, J.:
Charged with the crime of infanticide, convicted
thereof and sentenced to reclusion perpetua and the
corresponding accessory penalties, with the costs of
395 | P a g e
the suit, Josefina Bandian appealed from said
sentence alleging that the trial court erred:
I. In taking into consideration, to convict
her, her alleged admission to Dr.
Nepomuceno that she had thrown away her
newborn babe, and
II. In holding her guilty of infanticide,
beyond reasonable doubt, and in
sentencing her to reclusion perpetua, with
costs.
The facts of record ma be summarized as follows:
At about 7 o'clock in the morning of January 31,
1936, Valentin Aguilar, the appellant's neighbor, saw
the appellant go to a thicket about four or
five brazas from her house, apparently to respond to
a call of nature because it was there that the people
of the place used to go for that purpose. A few
minutes later, he again saw her emerge from the
thicket with her clothes stained with blood both in
the front and back, staggering and visibly showing
signs of not being able to support herself. He ran to
her aid and, having noted that she was very weak
and dizzy, he supported and helped her go up to her
house and placed her in her own bed. Upon being
asked before Aguilar brought her to her house, what
happened to her, the appellant merely answered
that she was very dizzy. Not wishing to be alone with
the appellant in such circumstances, Valentin Aguilar
called Adriano Comcom, who lived nearby, to help
them, and later requested him to take bamboo
leaves to stop the hemorrhage which had come
upon the appellant. Comcom had scarcely gone
about five brazas when he saw the body of a
newborn babe near a path adjoining the thicket
where the appellant had gone a few moments
before. Comcom informed Aguilar of it and latter
told him to bring the body to the appellant's house.
Upon being asked whether the baby which had just
been shown to her was hers or not, the appellant
answered in the affirmative.
Upon being notified of the incident at 2 o'clock in the
afternoon of said day, Dr. Emilio Nepomuceno,
president of the sanitary division of Talisayan,
Oriental Misamis, went to the appellant's house and
found her lying in bed still bleeding. Her bed, the
floor of her house and beneath it, directly under the
bed, were full of blood. Basing his opinion upon said
facts, the physician in question declared that the
appellant gave birth in her house and in her own
bed; that after giving birth she threw her child into
the thicket to kill it for the purpose of concealing her
dishonor from the man, Luis Kirol, with whom she
had theretofore been living maritally, because the
child was not his but of another man with whom she
had previously had amorous relations. To give force
to his conclusions, he testified that the appellant had
admitted to him that she had killed her child, when
he went to her house at the time and on the date
above-stated.
The prosecuting attorney and the lower court giving
absolute credit to Dr. Nepomuceno whose testimony
was not corroborated but, on the contrary, was
contradicted by the very witnesses for the
prosecution and by the appellant, as will be stated
later, they were of the opinion and the lower court
furthermore held, that the appellant was an
infanticide. The Solicitor-General, however, does not
agree with both. On the contrary, he maintains that
the appellant may be guilty only of abandoning a
minor under subsection 2 of article 276 of the
Revised Penal Code, the abandonment having
resulted in the death of the minor allegedly
abandoned.
By the way, it should be stated that there is no
evidence showing how the child in question died. Dr.
Nepomuceno himself affirmed that the wounds
found in the body of the child were not caused by
the hand of man but by bites animals, the pigs that
usually roamed through the thicket where it was
found.
Infanticide and abandonment of a minor, to be
punishable, must be committed wilfully or
consciously, or at least it must be result of a
voluntary, conscious and free act or omission. Even
in cases where said crimes are committed through
mere imprudence, the person who commits them,
under said circumstances, must be in the full
enjoyment of his mental faculties, or must be
conscious of his acts, in order that he may be held
liable.
The evidence certainly does not show that the
appellant, in causing her child's death in one way or
another, or in abandoning it in the thicket, did so
wilfully, consciously or imprudently. She had no
cause to kill or abandon it, to expose it to death,
because her affair with a former lover, which was
not unknown to her second lover, Luis Kirol, took
place three years before the incident; her married
life with Kirol — she considers him her husband as
he considers her his wife — began a year ago; as he
so testified at the trial, he knew that the appellant
was pregnant and he believed from the beginning,
affirming such belief when he testified at the trial,
that the child carried by the appellant in her womb
was his, and he testified that he and she had been
eagerly waiting for the birth of the child. The
appellant, therefore, had no cause to be ashamed of
her pregnancy to Kirol.
If to the foregoing facts is added the testimony of
the witnesses Valentin Aguilar and Adriano Comcom
that the child was taken from the thicket and carried
already dead to the appellant's house after the
appellant had left the place, staggering, without
396 | P a g e
strength to remain on her feet and very dizzy, to the
extent of having to be as in fact she was helped to go
up to her house and to lie in bed, it will clearly
appear how far from the truth were Dr.
Nepomuceno's affirmation and conclusions. Also add
to all these the fact that the appellant denied having
made any admission to said physician and that from
the time she became pregnant she continuously had
fever. This illness and her extreme debility
undoubtedly caused by her long illness as well as the
hemorrhage which she had upon giving birth,
coupled with the circumstances that she is a
primipara, being then only 23 years of age, and
therefore inexperienced as to childbirth and as to
the inconvenience or difficulties usually attending
such event; and the fact that she, like her lover Luis
Kirol — a mere laborer earning only twenty-five
centavos a day — is uneducated and could supplant
with what she had read or learned from books what
experience itself could teach her, undoubtedly were
the reasons why she was not aware of her childbirth,
or if she was, it did not occur to her or she was
unable, due to her debility or dizziness, which causes
may be considered lawful or insuperable to
constitute the seventh exempting circumstance (art.
12, Revised Penal Code), to take her child from the
thicket where she had given it birth, so as not to
leave it abandoned and exposed to the danger of
losing its life.
The act performed by the appellant in the morning in
question, by going into the thicket, according to her,
to respond to call of nature, notwithstanding the fact
that she had fever for a long time, was perfectly
lawful. If by doing so she caused a wrong as that of
giving birth to her child in that same place and later
abandoning it, not because of imprudence or any
other reason than that she was overcome by strong
dizziness and extreme debility, she should not be
blamed therefor because it all happened by mere
accident, from liability any person who so acts and
behaves under such circumstances (art. 12,
subsection 4, Revised Penal Code).
In conclusion, taking into account the foregoing facts
and considerations, and granting that the appellant
was aware of her involuntary childbirth in the thicket
and that she later failed to take her child therefrom,
having been so prevented by reason of causes
entirely independent of her will, it should be held
that the alleged errors attributed to the lower court
by the appellant are true; and it appearing that
under such circumstances said appellant has the
fourth and seventh exempting circumstances in her
favor, is hereby acquitted of the crime of which she
had bee accused and convicted, with costs de oficio,
and she is actually confined in jail in connection with
this case, it is ordered that she be released
immediately. So ordered.
Avanceña, C. J., and Abad Santos, J., concur.
Separate Opinions
VILLA-REAL, J., concurring:
I concur in the acquittal of the accused Josefina
Bandian not on the ground that she is exempt from
criminal liability but because she has committed no
criminal act or omission.
The evidence conclusively shows that on the day in
question the accused Josefina Bandian had spent a
year of marital life with her lover Luis Kirol by whom
she was begotten with a child for the first time. Her
said lover knew that she was pregnant and both
were waiting for the arrival of the happy day when
the fruit of their love should be born. Since she
became pregnant she continuously had fever, was
weak and dizzy. On January 31, at about 7 o'clock in
the morning, she went down from her house and
entered a thicket about four or five brazas away,
where the residents of said place responded to the
call of nature. After some minutes the accused
emerged from the thicket staggering and apparently
unable to support herself. Her neighbor Valentin
Aguilar, who saw her enter the thicket and emerged
therefrom, ran to help her, supported her and aided
her in going up to her house and to bed. Asked by
Aguilar what happened to her, she merely answered
that she was very dizzy. Thinking that he alone was
unable to attend to her, Valentin Aguilar called
Adriano Comcom, who lived nearby, and requested
him to take bamboo leaves to stop the appellant's
hemorrhage. Adriano had scarcely gone about
five brazas, when he saw the body of a newborn
child near the path adjoining the thicket where the
accused had been a few moments before. Upon
being informed of the discovery, Valentin Aguilar
told Adriano Comcom to bring the child into the
appellant's house. Upon being asked whether or not
the child shown to her was hers, the appellant
answered in the affirmative. After an autopsy had
been made of the body, it was found that the child
was born alive.
Unconscious, precipitate or sudden deliveries are
well known in legal medicine among young
primiparæ who, by reason of their ignorance of the
symptoms of parturition and of the process of
expulsion of fetus, are not aware that they are giving
birth when they are responding to an urgent call of
nature (Dr. A. Lacassagne, Precis de Medicine Legale,
pages, 799-781; Annales de Medicine Legale,
December 1926, page 530; Vibert, Manual de
Medicina Legal y Toxicologia, vol. I, pages 512-514).
There is no doubt that the accused, in her feverish,
weak and dizzy condition when she went into the
thicket to defecate and being a primipara with no
397 | P a g e
experience in childbirth, was not aware that upon
defecating she was also expelling the child she was
carrying in her womb. Believing that she did nothing
more to respond to an urgent call of nature which
brought her there, she returned home staggering for
lack of strength to support herself and for being
dizzy, without suspecting that she was leaving a
newborn child behind her, and she only knew that
she had given birth when she was shown the already
dead child with wounds on the body produced by
the bites of pigs.
Article 3 of the Revised Penal Code provides that acts
and omissions punishable by law are felonies, which
may be committed not only by means of deceit
(dolo) but also by means of fault (culpa); there being
deceit when the act is performed with deliberate
intent, and fault when the wrongful act results from
imprudence, negligence, lack of foresight or lack of
skill.
As the herein accused was not aware that she had
delivered and that the child had been exposed to the
rough weather and to the cruelty of animals, it
cannot be held that she deceitfully committed the
crime of infanticide or that of abandonment of a
minor, because according to the above-cited legal
provision there is deceit when the act punishable by
law is performed with deliberate intent. Suffering
from fever and from dizziness, the appellant under
the circumstances was not aware that she had given
birth and, consequently, she could not have
deliberately intended to leave her child, of whose
existence she was ignorant, to perish at the mercy of
the elements and of the animals. Neither can it be
held that she faultily committed it because, as
already stated, not knowing for lack of experience in
childbirth that in defecating — a perfectly lawful
physiological act, being natural — she might expel
the child she carried in her womb, she cannot be
considered imprudent, a psychological defect of a
person who fails to use his reasoning power to
foresee the pernicious consequences of his willful
act. Having had no knowledge of the fact of her
delivery, the accused could not think that by leaving
the child in the thicket, it would die as a
consequence of the rough weather or of the cruelty
of animals. Neither can she be considered negligent
because negligence is the omission to do what the
law or morals obliges one to do, which implies
knowledge of the thing which is the subject matter
of the compliance with the obligation. Inasmuch as
the accused was not aware of her delivery, her mind
cannot contemplate complying with her legal and
moral duty to protect the life of her child. Neither
can it be held that the appellant lacked foresight
because, having been absolutely ignorant of her
delivery, she could not foresee that by abandoning
her child in a thicket it would die. Neither can it be
held that her act was the result of lack of skill
because she did not know that to defecate in a state
of pregnancy might precipitate her delivery, and as
defecation is a natural physiological function, she
could not refrain from satisfying it.
We cannot apply to the accused fourth exempting
circumstance of article 12 of the Revised Penal Code
which reads: "Any person who, while performing a
lawful act with due care, causes an injury by mere
accident without fault or intention of causing it,"
because although the lawful act of satisfying a
natural physiological necessity accidentally provoked
the delivery, the delivery itself was not an injury, but
the exposure of the child at the mercy of the
elements and of the animals which cased its death.
As the child was born alive, if the accused had been
aware of her delivery and she had deliberately
abandoned the child, her accidental delivery would
not exempt her from criminal liability because then
the death of said child no longer would have been
accidental. Neither can we consider the seventh
exempting circumstance of article 12 of the Revised
Penal Code consisting in the failure to perform an act
required by law, when prevented by some lawful or
insuperable cause, because this exempting
circumstance implies knowledge of the precept of
the law to be complied with but is prevented by
some lawful or insuperable cause, that is by some
motive which has lawfully, morally or physically
prevented one to do what the law commands. In the
present case, what the law requires of the accused-
appellant, with respect to the child, is that she care
for, protect and not abandon it. Had she been aware
of her delivery and of the existence of the child,
neither her debility nor her dizziness resulting from
the fever which consumed her, being in the full
enjoyment of her mental faculties and her illness not
being of such gravity as to prevent her from asking
for help, would constitute the lawful or insuperable
impediment required by law. Having been ignorant
of her delivery and of the existence of the child, to
her there was subjectively no cause for the law to
impose a duty for her to comply with.
Having had no knowledge of the expulsion of her
fetus, the death thereof resulting from its exposure
to the rough weather and to the cruelty of the
animals cannot be imputed to the accused, because
she had neither deceitfully nor faultily committed
any act or omission punishable by law with regard to
the child.
Imperial and Laurel, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 178065 February 20, 2013
398 | P a g e
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ARNOLD T APERE y POLPOL, Accused-Appellant.
DECISION
BERSAMIN, J.:
An accused arrested during a valid entrapment
operation is not entitled to an acquittal on the
ground that his arrest resulted from instigation.
Arnold P. Tapere was charged with, tried for and
found guilty of illegally selling shabu in violation of
Section 5, Article II of Republic Act No.
9165 (Comprehensive Dangerous Drugs Act of
2002) by the Regional Trial Court (RTC), Branch 6, in
Iligan City, which sentenced him to suffer life
imprisonment and to pay a fine of ₱500,000.00.
On appeal, the Court of Appeals (CA) affirmed the
conviction and the prescribed penalty through the
decision promulgated on February 27, 2007.1
Hence, this appeal.
Antecedents
The information dated September 3, 2002 charged
Tapere with illegally selling shabu in violation of
Section 5, Article II of Republic Act No. 9165
(Comprehensive Dangerous Drugs Act of 2002), as
follows:
That on or about September 2, 2002, in the City of
Iligan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, without authority
of law, did then and there willfully, unlawfully and
feloniously sell and deliver one (1) plastic sachet
containing Methamphetamine Hydrochloride, a
dangerous drug commonly known as
Shabu.
Contrary to and in violation of R.A. 9165, x x x.2
The evidence for the State showed the following.
At around 7:30 p.m. on September 2, 2002, elements
of the Philippine Drug Enforcement Agency (PDEA)
arrested Tapere for selling shabu to a poseur buyer
during a buy-bust operation conducted against him
in Purok San Antonio, Iligan City. Prior to the buy-
bust operation, Tapere was already included in the
PDEA’s drug watch list as a drug pusher based on the
frequent complaints made against him by residents
of Purok San Antonio, Iligan City. It appears that
SPO2 Diosdado Cabahug of the PDEA, a neighbor,
had warned Tapere to stop his illegal activities, but
he apparently ignored the warning and continued to
sell shabu in that locality. Such continuing activity on
the part of Tapere was the subject of the report of
PDEA informant Gabriel Salgado.
In order to determine the veracity of the report of
Salgado, PDEA agents conducted an investigation
and surveillance of the activities of Tapere on August
30, August 31, and September 1, 2002, during which
a test buy confirmed the veracity of the report. With
the positive result of the test buy, the agents
decided to conduct a buy-bust operation against
Tapere on September 2, 2002. Consonant with their
standard procedure, the agents first secured a
certification from the Office of the City Prosecutor
regarding the buy-bust money to be used during the
buy-bust operation. They presented to City
Prosecutor II Roberto Z. Albulario, Jr. of Iligan City
the ₱100.00 bill bearing serial number YU859011
(Exhibit E-1) for that purpose,3 and said public
prosecutor then issued the certification (Exhibit E) to
the effect that the bill (Exhibit E-1) was identical to
the xerox copy previously made of the bill (Exhibit
A). Armed with the certification, the agents went
back to their office and held a pre-operation briefing.
In attendance at that briefing were Team Leader
SPO2 Edgardo Englatiera, SPO3 Jaime Bastatas, SPO2
George Salo, SPO2 Cabahug, PO1 Amado Margaja
and Salgado. The team instructed Salgado to act as
the poseur buyer, and gave to him the ₱100.00 bill
(Exhibit E-1) earlier certified by the public
prosecutor.
At 7:10 p.m. of September 2, 2002, the team
proceeded on board the jeep of SPO2 Cabahug to
Alcuizar Avenue in San Antonio, Iligan City where
Tapere engaged in drug pushing. They stopped at
some distance from the target area, and walked the
rest of the way. They posted themselves within view
of the target place, which was on the left side of the
road going towards Tipanoy, Iligan City and a few
meters from the Tubod Bridge. The first structure
nearest the bridge on the left side of the road going
towards Tipanoy was a blacksmith shop, and next to
the shop was a row of stalls where fish, meat and
other commodities were sold. The agents spotted
Tapere vending lanzones along that side of the road
to Tipanoy, outside the row of stalls.4
With each agent being strategically posted, Salgado
was signalled to approach Tapere according to the
plan. Salgado went towards Tapere. The agents saw
the two conversing for a brief while before Salgado
handed money to Tapere. In turn, Tapere took a
small heat-sealed plastic sachet from his pocket and
gave it to Salgado. After accepting the sachet,
Salgado made the pre-arranged signal of scratching
his head to signify the consummation of the
transaction. The agents rushed towards Tapere,
introduced themselves as PDEA agents, and placed
him in custody. They searched him and recovered
the ₱100.00 bill (Exhibit E-1) from his right
399 | P a g e
pocket.5 At that point, he voluntarily produced three
more sachets of shabu from his pocket and handed
them to SPO2 Bastatas.6 The agents brought Tapere
to the PDEA headquarters in Camp Cabili, Tipanoy,
Iligan City.
In Camp Cabili, SPO2 Englatiera immediately
prepared and signed a request for laboratory
examination (Exhibit B),7 addressed to the PNP Crime
Laboratory in Iligan City to determine whether the
confiscated substances contained in the four sachets
marked "AT-1" to "AT-4" contained dangerous
drugs.8 On the following day, PO1 Margaja delivered
to the PNP Crime Laboratory the request and the
confiscated articles in four sachets marked "AT-1" to
"AT-4".
The request for laboratory examination and the
confiscated articles were received in due course at
the PNP Crime Laboratory, and turned over by the
receiving personnel to Sr. Police Insp. Mary Leoncy
M. Jabonillo, the Chief of the Crime Laboratory, who
conducted the laboratory examination. She issued
Chemistry Report No. D-083-02 on September 4,
2002 (Exhibit C),9 whereby she confirmed the
presence of methamphetamine hydrochloride
or shabu in the four heat-sealed transparent plastic
sachets, giving the weight and marking as follows:
"AT-1" – 0.09 gram; "AT-2" – 0.51 gram; "AT-3" –
0.03 gram; and "AT-4" – 0.10 gram.10 The chemistry
report was duly approved by Police Supt. Liza
Madeja Sabong, Chief of the PNP Regional Crime
Laboratory Service.
On the other hand, Tapere denied the accusation. He
and his wife rendered their own version of the
incident that led to his arrest.
On September 2, 2002, at around 6:30 p.m. to 7:00
p.m., Tapere went to his usual place in Tubod to
vend lanzones near the fish stalls. His wife followed
him there to ask what she would prepare for their
lunch. While he was there, Salgado, his neighbor of
four years11 whom he knew to be a drug user
currently under probation,12 and with whom in the
past he had sniffed shabu in Salgado’s house,
approached and requested him to buy shabu for
Salgado’s use.13 They talked beyond the hearing
distance of his wife. At first, he refused Salgado’s
request, but he ultimately agreed to do the errand,
explaining: I don’t want him to be angry at me, I
don’t want trouble and besides he is my neighbor so
whenever he requested me to buy shabu I do
it.14 With Salgado giving him the money, he asked his
wife’s permission to go downtown to do something.
He rode on a jeepney to go to Saray, also in Iligan
City, where he bought a sachet of shabu.15 In the
meantime, the wife was left to tend to the sale of
the lanzones. Salgado, whose name the wife did not
then know, went to a nearby small store.
When he returned after an hour, Tapere did not find
Salgado in the stall but in a nearby small store. He
handed the shabu there. Salgado then immediately
left. Tapere went back to his stall after buying a
bottle of Coca Cola at the store. Upon returning to
his stall, a multi-cab vehicle came to stop there and
five men alighted, two of whom he immediately
recognized as "Sir Englatierra and Cabahug." The
men, all armed, surrounded him, pointing their .45
caliber pistols at him. They frisked him, put
handcuffs on him, and took him to the PDEA office.
There, they produced a bill, noted its serial number
and confirmed that it was the bill used in the
transaction. They next brought him to the PNP
Central Office in Iligan City where he was
detained.16 At about 10:00 p.m. that same night, his
wife visited him in the jail and gave him fresh clothes
to replace his clothes wet from the rain. On the next
day, he was taken to the Office of the City
Prosecutor and from there to the City Jail.
 Decision of the RTC
After trial, on April 15, 2003, the RTC rendered
judgment convicting Tapere as charged,17 to wit:
WHEREFORE, the court finds the accused Arnold
Tapere y Polpol GUILTY beyond reasonable doubt for
violation of Section 5, Article II of Rep. Act No. 9165
and hereby sentences him to suffer the penalty of
LIFE IMPRISONMENT and to pay a fine of FIVE
HUNDRED THOUSAND (₱500,000.00) PESOS without
subsidiary imprisonment in case of solvency.
Having been under preventive detention since
September 3, 2002 until the present, the period of
such imprisonment shall be credited in full in favor of
the accused in the service of his sentence.
The four (4) sachets of shabu are ordered
confiscated in favor of the government to be
disposed of pursuant to the provisions of Section 21,
Article II, R.A. No. 9165.
SO ORDERED.
The RTC pointed out that the PDEA agents had
arrested Tapere following a legitimate buy-bust
operation conducted in a methodical manner; that
on the other hand, Tapere did not plausibly explain
why he had agreed to run the errand to
buy shabu for Salgado, because he did not show that
he had owed Salgado any great personal debt of
gratitude that led him to ignore his personal risk and
that put him in no position to refuse Salgado’s
request; and because he did not also show that
Salgado exercised an overpowering influence by
intimidation or otherwise that rendered him
incapable of refusing Salgado’s bidding.
Ruling of the CA
400 | P a g e
On intermediate review, Tapere assailed his
conviction, stating that the RTC gravely erred in not
ruling that instigation, not entrapment, had led to his
apprehension.18
On February 27, 2007, however, the CA affirmed the
conviction of Tapere,19 declaring that the
Prosecution competently established the details of
the illegal sale of shabu between Tapere, as the
seller, and Salgado, as the poseur buyer; that the
PDEA agents were not shown to have harbored any
malicious motives for arresting Tapere; and that the
non-presentation of Salgado as the poseur buyer did
not weaken the case against Tapere considering that
the members of the buy-bust team who testified
against Tapere had witnessed the consummation of
the illegal sale of shabu.
Hence, Tapere appeals to the Court.
Issue
Tapere reiterates to us that his apprehension was
the product of an instigation, not entrapment; and
that he should consequently be acquitted because
instigation was an absolutory cause.
Ruling of the Court
The appeal has no merit.
To establish the crime of illegal sale of shabu as
defined and punished under Section 5,20 Article II of
Republic Act No. 9165, the Prosecution must prove
beyond reasonable doubt (a) the identity of the
buyer and the seller, the identity of the object and
the consideration of the sale; and (b) the delivery of
the thing sold and of the payment for the thing. The
commission of the offense of illegal sale of
dangerous drugs, like shabu, requires simply the
consummation of the selling transaction, which
happens at the moment the buyer receives the drug
from the seller. In short, the Prosecution must show
that the transaction or sale actually took place, and
present in court the thing sold as evidence of
the corpus delicti.21
The State conclusively established the concurrence
of the foregoing elements of illegal sale of dangerous
drugs. Firstly, the members of the buybust team
identified Tapere as the person with whom Salgado
had contracted on the purchase of the shabu.
Secondly, the subject of the sale was one plastic
sachet of shabu that the PNP Crime Laboratory later
on confirmed in due course to contain
methamphetamine hydrochloride, a dangerous drug.
It is of no consequence that three other sachets
of shabu recovered from Tapere’s possession at the
time of his arrest were also presented as evidence
during the trial, or that the Prosecution failed to
specify which of the four sachets was the sachet
involved in the transaction between him and
Salgado, because what is decisive is that one of the
four sachets was definitely the subject of the
transaction between Tapere and the poseur buyer.
Thirdly, the consideration of the sale was ₱100.00,
and the actual payment of that amount through the
₱100.00 bill bearing serial number YU859011
covered by the public prosecutor’s certification
ensured the identification of it as the consideration.
And, fourthly, the Prosecution’s witnesses fully
described the details of the consummated sale
of shabu between Tapere as seller and Salgado as
buyer.
Section 21(1) of Republic Act No. 9165 provides the
procedure to be followed in the seizure and custody
of dangerous drugs, to wit:
Section 21. Custody and Disposition of Confiscated,
Seized, and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors
and Essential Chemicals, Instruments/Paraphernalia
and/or Laboratory Equipment. - The PDEA shall take
charge and have custody of all dangerous drugs,
plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or
surrendered, for proper disposition in the following
manner:
(1) The apprehending team having initial custody
and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and
photograph the same in the presence of the accused
or the person/s from whom such items were
confiscated and/or seized, or his/her representative
or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public
official who shall be required to sign the copies of
the inventory and be given a copy thereof;
xxxx
This procedure underscores the value of preserving
the integrity of the confiscated, seized, or
surrendered dangerous drugs, plant sources of
dangerous drugs, controlled precursors and essential
chemicals, instruments, paraphernalia and
laboratory equipment. It puts into focus the
essentiality of the confiscated articles as the corpus
delicti that the State must establish during the trial,
as a means of avoiding the commission of abuses by
the lawmen in their enforcement of the laws against
illegal drug trade.
The members of the buy-bust team substantially
complied with the requirements. To shield the
operation from suspicion, they first saw to the
certification of the buy-bust bill by the Office of the
City Prosecutor of Iligan City, pursuant to their then
401 | P a g e
standard operating procedure.22 After arresting
Tapere, they lost no time in bringing him and the
confiscated sachets (marked and identified as "AT-1"
to "AT-4", inclusive) to the PDEA office, where Team
Leader SPO2 Englatiera immediately prepared and
signed the request for laboratory examination. Due
to the lateness of the hour, PO1 Margaja, another
member of the team, brought the request and the
sachets to the PNP Crime Laboratory on the next
day, and the request and the sachets were received
in due course. Sr. Police Insp. Jabonillo of the PNP
Crime Laboratory subjected the sachets to
examination, and confirmed the presence in all of
them of methamphetamine hydrochloride, a
dangerous drug. She also gave the weights of the
contents of the four sachets in her Chemistry Report
No. D-083-02 dated September 4, 2002. Her report
was approved by her superior, Police Supt. Sabong of
the PNP Regional Crime Laboratory. Based on all the
foregoing, there was a conscious effort exerted by
the buy-bust team to ensure the proper
incrimination of Tapere.
Still, Tapere contends that his arrest resulted from
an instigation, not from a legitimate entrapment. He
insists that poseur buyer Salgado, then acting as a
covert PDEA civilian agent or informant, a fact
unknown to him, made him purchase the shabu for
Salgado. Hence, being instigated to sell the shabu, he
was entitled to be acquitted because the instigation
was an absolutory cause.
Instigation takes place when a peace officer induces
a person to commit a crime.1âwphi1 Without the
inducement, the crime would not be committed.
Hence, it is exempting by reason of public policy;
otherwise, the peace officer would be a co-principal.
It follows that the person instigating must not be a
private person, because he will be liable as a
principal by inducement.23 On the other hand,
entrapment signifies the ways and means devised by
a peace officer to entrap or apprehend a person who
has committed a crime. With or without the
entrapment, the crime has been committed already.
Hence, entrapment is not mitigating. Although
entrapment is sanctioned by law, instigation is
not.24 The difference between the two lies in the
origin of the criminal intent – in entrapment,
the mens rea originates from the mind of the
criminal, but in instigation, the law officer conceives
the commission of the crime and suggests it to the
accused, who adopts the idea and carries it into
execution.25
In light of the foregoing differentiation between
instigation and entrapment, the Court rejects the
contention of Tapere for its being contrary to the
established facts.
Tapere was caught in flagrante delicto committing
the illegal sale of shabu during the buy-bust
operation. In that operation, Salgado offered to buy
from him a definite quantity of shabu for ₱100.00.
Even if, as he claims, he was unaware that Salgado
was then working as an undercover agent for the
PDEA, he had no justification for accepting the offer
of Salgado to buy the shabu. His explanation that he
could not have refused Salgado's offer to buy for
fear of displeasing the latter was implausible. He did
not show how Salgado could have influenced him at
all into doing something so blatantly illegal. What is
clear to us, therefore, is that the decision to peddle
the shabu emanated from his own mind, such that
he did not need much prodding from Salgado or
anyone else to engage in the sale of
the shabu; hence, he was not incited, induced,
instigated or lured into committing an offense that
he did not have the intention of committing.26
WHEREFORE, the Court AFFIRMS the decision
promulgated by the Court of Appeals on February
27,2007, finding ARNOLD TAPERE y POLPOL guilty as
charged for violation of Section 5, Article II of
Republic Act No. 9165 (Comprehensive Dangerous
Drugs Act of 2002).
The accused shall pay the costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
FIRST DIVISION
No 191726 : February 06, 2013
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
v. NOEL BARTOLOME y BAJO, Accused-Appellant.
DECISION
BERSAMIN, J.:
A buy-bust operation has been recognized in this
jurisdiction as a legitimate form of entrapment of
the culprit. It is distinct from instigation, in that the
accused who is otherwise not predisposed to
commit the crime is enticed or lured or talked into
committing the crime. While entrapment is legal,
instigation is not.
This final appeal is taken by the accused from the
decision promulgated on January 29, 20 I
0,1 whereby the Court of Appeals (CA) affirmed his
conviction for illegal sale of methampethamine
hydrochloride or shabu in violation of Section 5,
Article II of Republic Act No. 9165 (Comprehensive
Dangerous Drugs Act of 2002) handed down by the
402 | P a g e
Regional Trial Court, Branch 120, in Caloocan City
(RTC) through its decision dated July 12, 20062?r?l1
Antecedents
On August 13, 2003, the City Prosecutors Office of
Caloocan City charged the accused with illegally
selling methamphetamine hydrochloride or shabu in
violation of Section 5, Article II, of Republic Act No.
9165 through the information reading
thus:cralawlibrary
That on or about the 10th day of August 2003 in
Caloocan City, Metro Manila, Philippines and within
the jurisdiction of this Honorable Court, the above-
named accused, without any authority of law, did
then and there willfully, unlawfully and feloniously
sell and deliver to PO1 Borban Paras, who posed as
poseur buyer, one (1) heat sealed transparent plastic
sachet containing 0.06 gram of Methylamphetamine
Hydrochloride (shabu), knowing the same to be
dangerous drug.
Contrary to Law.3?r?l1
After the accused pleaded not guilty, trial ensued.
The evidence for the State was as follows.
On August 10, 2003, at around 1:00 a.m., an
informant went to the Anti-Illegal Drugs Special
Operations Unit (ADSOU) in Caloocan City to report
the illicit drug dealings of the accused on Reparo
Street, Bagong Barrio, Caloocan City. Acting on the
report, Police Inspector Cesar Cruz of ADSOU
immediately instructed some of his men to conduct
a buy-bust operation against the accused. During the
pre-operation briefing, the buy-bust team
designated PO1 Borban Paras as the poseur-buyer.
Paras was given a P100.00 bill that he marked with
his initials BP. It was agreed that the informant
would drop a cigarette butt in front of the suspect to
identify him to Paras; and that Paras would scratch
his head to signal to the buy-bust team that the
transaction with the suspect had been
consummated. The operation was coordinated with
the Philippine Drug Enforcement Agency.
Upon arriving at the target area at around 2:00 a.m.
of August 10, 2003, the team members positioned
themselves in the vicinity of a store. The informant
then approached a person who was standing in front
of the store and dropped a cigarette butt in front of
the person. Paras, then only two meters away from
the informant, saw the dropping of the cigarette
butt. Paras went towards the suspect and said to
him: Pre pa-iskor nga. The suspect responded: Pre,
piso na lang tong hawak magkano ba kukunin
mo? Paras replied: Ayos na yan, piso lang naman
talaga ang kukunin ko, after which he handed the
marked ?100.00 bill to the suspect, who in turn drew
out a plastic sachet containing white substances
from his pocket and gave the sachet to Paras. With
that, Paras scratched his head to signal the
consummation of the sale. As the other members of
the team were approaching, Paras grabbed the
suspect. PO3 Rodrigo Antonio, another member of
the team, confiscated the marked ?100.00 bill from
the suspect, who was identified as Noel
Bartolome y Bajo. Paras immediately marked the
sachet at the crime scene with Bartolomes
initials NBB.4?r?l1
Insp. Cruz later requested in writing the PNP Crime
Laboratory in Caloocan City to conduct a laboratory
examination of the contents of the plastic sachet
seized from Bartolome.5 PO2 Rolando De Ocampo,
another member of the buy-bust team, brought the
request and the sachet and its contents to the
laboratory. In due course, Forensic Chemical Officer
Jesse Abadilla Dela Rosa of the PNP Crime
Laboratory confirmed in Physical Science Report No.
D-1038-03 that the plastic sachet contained 0.06
gram of methamphetamine hydrocholoride
or shabu, a dangerous drug.6?r?l1
On his part, the accused claimed that the arresting
officers had framed him up because they wanted to
extort a substantial amount from him in exchange
for his release. The version of the accused tended to
show the following.
On August 9, 2003, at about 12:00 in the afternoon,
the accused went to his brothers house located on
Zapote Street, Bagong Barrio, Caloocan City, to take
a rest from his work as a construction worker. While
he and his brother were watching the television
show Eat Bulaga inside the house, two policemen
suddenly entered the house. One of the policemen,
whom the accused later identified as PO3 Antonio,
frisked the accused but spared his brother because
the latter was asthmatic. The policemen then
brought the accused to the police station and
detained him. At the police station, PO3 Antonio
inquired from the accused if he was selling shabu,
but the accused denied doing so. It was then that
PO3 Antonio demanded ?20,000.00 from the
accused in exchange for his freedom. The accused
refused to pay because he did not have the
money.7?r?l1
Ruling of the RTC
As stated, the RTC convicted Bartolome of the crime
charged,8 to wit:cralawlibrary
WHEREFORE, premises considered, the Court finds
and so holds that accused NOEL BARTOLOME Y BAJO
is GUILTY beyond reasonable doubt for violation of
Section 5, Article II, Republic Act No. 9165 and
imposes upon him the penalty of LIFE
403 | P a g e
IMPRISONMENT and a fine of Five Hundred
Thousand Pesos (Php500,000.00).
The one (1) piece of heat-sealed transparent plastic
sachet containing 0.06 gram of Methylamphetamine
Hydrochloride is hereby ordered confiscated in favor
of the government to be turned over to the
Philippine Drug Enforcement Agency (PDEA) for
proper disposition.
SO ORDERED.
Ruling of the CA
On appeal, the accused assailed his conviction,
stating:cralawlibrary
I
ASSUMING THAT THE ACCUSED-APPELLANT
PARTICIPATED IN THE SELLING OF ILLEGAL DRUGS,
THE TRIAL COURT GRAVELY ERRED IN CONVICTING
HIM OF THE CRIME CHARGED SINCE HE WAS
MERELY INSTIGATED BY THE POLICE INTO DOING IT.
II
THE TRIAL COURT GRAVELY ERRED IN NOT
CONSIDERING THE POLICES FAILURE TO COMPLY
WITH THE PROCEDURE IN THE CUSTODY OF SEIZED
PROHIBITED AND REGULATED DRUGS PRESCRIBED
UNDER THE IMPLEMENTING RULES AND
REGULATION OF REPUBLIC ACT NO. 9165 WHICH
CASTS SERIOUS DOUBT ON THE IDENTITY OF THE
SEIZED DRUG CONSTITUTING THE CORPUS DELICTI
OF THE OFFENSE. ???ñr?bl?š ??r†??l l?? l?br?rÿ
The accused argued that the operation mounted
against him was not an entrapment but an
instigation, contending that without the proposal
and instigation made by poseur buyer Paras no
transaction would have transpired between them;
that the police team did not show that its members
had conducted any prior surveillance of him; and
that the Prosecution should have presented the
informant as a witness against him.
On January 29, 2010, the CA promulgated its assailed
decision,9 rejecting the assigned errors of the
accused, and affirmed his conviction. It held that the
operation against him was not an instigation but an
entrapment, considering that the criminal intent to
sell dangerous drugs had originated from him, as
borne out by the shabu being inside his pocket prior
to the transaction with Paras; that the accused did
not show that Paras had any ill motive to falsely
testify against him; that the conduct of a prior
surveillance and the presentation of the informant
as a witness were not necessary to establish the
validity of the entrapment; and that the non-
compliance by the buy-bust team with the
requirements under Section 21 of the Implementing
Rules and Regulations for Republic Act No. 9165
(IRR) was not fatal because there was a justifiable
ground for it, and because the apprehending team
properly preserved the integrity and evidentiary
value of the confiscated drugs.
Hence, the accused is now before the Court in a final
bid for acquittal.
Ruling
The appeal lacks merit.
To establish the crime of illegal sale of shabu, the
Prosecution must prove beyond reasonable doubt
(a) the identity of the buyer and the seller, the
identity of the object and the consideration of the
sale; and (b) the delivery of the thing sold and of the
payment for the thing. The commission of the
offense of illegal sale of dangerous drugs, like shabu,
requires simply the consummation of the selling
transaction, which happens at the moment the
buyer receives the drug from the seller. In short,
what is material is the proof showing that the
transaction or sale actually took place, coupled with
the presentation in court of the thing sold as
evidence of the corpus delicti. If a police officer goes
through the operation as a buyer, the crime is
consummated when the police officer makes an
offer to buy that is accepted by the accused, and
there is an ensuing exchange between them
involving the delivery of the dangerous drugs to the
police officer.10?r?l1
The concurrence of the foregoing elements was
conclusively established herein.
To start with, Paras, as the poseur-buyer, testified
that the accused sold to him shabu during the buy-
bust operation, to wit:cralawlibrary
Q So when the informant proceeded to the place of
Noel Bartolome, what did the informant do?
A After he threw cigarette in front of Noel
Bartolome, I approached him.?r?l??
xxx
Q What happened next?
A When I approached the accused, I told him.
"Pre-paiskor nga" and he said
"Pre, piso na lang tong hawak ko
Magkano ba ang kukunin mo" and he said
404 | P a g e
"ayos nay an, piso lang naman talaga ang kukunin
ko."
Q Who handed first you or the accused?
A I was the one who handed the buy bust money.
Q After giving him the P100.00 pesos to Noel
Bartolome where did he place it?
A Then after that he placed it on his front pocket and
then after that he got one (1) plastic sachet from his
left front pocket.
Q And then after giving you the plastic sachet
containing illegal drug, what did you do?
A I scratched my head, sir.
Q After scratching your head, what transpired if any?
A When I saw my companions approaching me, I
grabbed Noel Bartolome,
sir.11?r?l1 ???ñr?bl?š ??r†??l l?? l?br?rÿ
Secondly, the transmission of the plastic sachet and
its contents from the time of their seizure until they
were delivered to the PNP Crime Laboratory for
chemical examination was properly documented,
starting with the marking of the plastic sachet at the
crime scene by Paras. This was followed by the
preparation of the written request by Insp. Cruz at
the ADSOU. PO2 De Ocampo then personally
brought the plastic sachet and its contents, together
with the written request, to the PNP Crime
Laboratory, where the delivery of the request and of
the sachet and its contents was recorded by SPO1
Bugabuga of that office. In Physical Sciences Report
No. D-1038-03, Chemist Dela Rosa of the PNP Crime
Laboratory ultimately certified that the contents of
the plastic sachet were examined and found to be
0.06 grams of methamphetamine hydrochloride
or shabu, a dangerous drug.12?r?l1
And, thirdly, the Prosecution presented the shabu,
the marked P100.00 bill, and Chemist Dela Rosas
Physical Sciences Report No. D-1038-03 at the
trial.13?r?l1
On the other hand, the accuseds claim of being the
victim of a vicious frame-up and extortion is
unworthy of serious consideration. The fact that
frame-up and extortion could be easily concocted
renders such defenses hard to believe. Thus,
although drug-related violators have commonly
tendered such defenses to fend off or refute valid
prosecutions of their drug-related violations, the
Court has required that such defenses, to be
credited at all, must be established with clear and
convincing evidence.14 But the accused did not
adduce such evidence here, for all he put up were
self-serving denials. Had the version of the Defense
been what really transpired, there was no reason for
the accused and his brother not to have formally
charged the police officers with the severely
penalized offense of planting of evidence under
Section 2915 of Republic Act No. 9165 and extortion.
Thereby, the allegations of frame-up and extortion
were rendered implausible.
Yet, the accused discredits the validity of his arrest
by contending that the arrest resulted from an
instigation, not from a legitimate entrapment. He
insists that the evidence of the Prosecution did not
show him to be then looking for buyers
of shabu when Paras and the informant approached
him; that it was Paras who proposed to
buy shabu from him; and that consequently Paras
instigated him to sell shabu. He submits that the
transaction would not have transpired without the
proposal and instigation by Paras; that Paras
initiated the commission of the crime by offering to
him P100.00 for the purchase of the shabu; and that
he should be acquitted due to the absolutory cause
of instigation.16?r?l1
The Court is not persuaded to side with the accused.
The trial judge and the CA agreed in their findings on
the arrest of the accused being the result of a
legitimate entrapment procedure. Such findings
were based on the credible testimonies of the
poseur buyer and other competent witnesses of the
Prosecution. We concur with their findings. Indeed,
the trial judges assessment of the credibility of the
witnesses is entitled to respect. This is because of
the trial judges unique opportunity to observe the
demeanor of the witnesses as they testified before
him.17 The rule applies even more if, like here, the
trial judges assessment was affirmed by the CA upon
review.18 This rule should be obeyed here.
Moreover, we find no glaring errors or
misapprehension of facts committed by the RTC in
not according credence to the version of the accused
and his brother. In this regard, it is significant that
the accused did not ascribe any ill motive to Paras
that could have made the officer testify falsely
against him. Considering that the records were
patently bereft of any indicium of ill motive or of any
distorted sense of duty on the part of the
apprehending team, particularly Paras as the poseur
buyer, full credence was properly accorded to the
Prosecutions evidence incriminating the accused.
Without the clear and convincing indication of the
lawmens ill motive and irregular performance of
duty, it is always good law to presume them to have
performed their official duties in a regular
manner.19 That presumption became conclusive for
lack of contravention.
405 | P a g e
To be clear, then, the insistence by the accused that
he was entitled to the benefit of an absolutory cause
as the result of an instigation is unwarranted.
There is a definite distinction between instigation
and entrapment. The Court highlighted the
distinction in People v. Bayani, 20 viz:cralawlibrary
Instigation is the means by which the accused is
lured into the commission of the offense charged in
order to prosecute him. On the other hand,
entrapment is the employment of such ways and
means for the purpose of trapping or capturing a
lawbreaker. Thus, in instigation, officers of the law or
their agents incite, induce, instigate or lure an
accused into committing an offense which he or she
would otherwise not commit and has no intention of
committing. But in entrapment, the criminal intent
or design to commit the offense charged originates
in the mind of the accused, and law enforcement
officials merely facilitate the apprehension of the
criminal by employing ruses and schemes; thus, the
accused cannot justify his or her conduct. In
instigation, where law enforcers act as co-principals,
the accused will have to be acquitted. But
entrapment cannot bar prosecution and conviction.
As has been said, instigation is a "trap for the unwary
innocent," while entrapment is a "trap for the
unwary criminal."???ñr?bl?š ??r†??l l?? l?br?rÿ
As a general rule, a buy-bust operation, considered
as a form of entrapment, is a valid means of
arresting violators of Republic Act No. 9165. It is an
effective way of apprehending law offenders in the
act of committing a crime. In a buy-bust operation,
the idea to commit a crime originates from the
offender, without anybody inducing or prodding him
to commit the offense.
A police officers act of soliciting drugs from the
accused during a buy-bust operation, or what is
known as a "decoy solicitation," is not prohibited by
law and does not render invalid the buy-bust
operations. The sale of contraband is a kind of
offense habitually committed, and the solicitation
simply furnishes evidence of the criminals course of
conduct. In People v. Sta. Maria, the Court clarified
that a "decoy solicitation" is not tantamount to
inducement or instigation:cralawlibrary
It is no defense to the perpetrator of a crime that
facilities for its commission were purposely placed in
his way, or that the criminal act was done at the
"decoy solicitation" of persons seeking to expose the
criminal, or that detectives feigning complicity in the
act were present and apparently assisting its
commission. Especially is this true in that class of
cases where the office is one habitually committed,
and the solicitation merely furnishes evidence of a
course of conduct.
As here, the solicitation of drugs from appellant by
the informant utilized by the police merely furnishes
evidence of a course of conduct. The police received
an intelligence report that appellant has been
habitually dealing in illegal drugs. They duly acted on
it by utilizing an informant to effect a drug
transaction with appellant. There was no showing
that the informant induced the appellant to sell
illegal drugs to him.
Conversely, the law deplores instigation or
inducement, which occurs when the police or its
agent devises the idea of committing the crime and
lures the accused into executing the offense.
Instigation absolves the accused of any guilt, given
the spontaneous moral revulsion from using the
powers of government to beguile innocent but
ductile persons into lapses that they might otherwise
resist.
People v. Doria enumerated the instances when this
Court recognized instigation as a valid defense, and
an instance when it was not applicable:cralawlibrary
In United States v. Phelps, we acquitted the accused
from the offense of smoking opium after finding that
the government employee, a BIR personnel, actually
induced him to commit the crime in order to
persecute him. Smith, the BIR agent, testified that
Phelps apprehension came after he overheard
Phelps in a saloon say that he like smoking opium on
some occasions. Smiths testimony was disregarded.
We accorded significance to the fact that it was
Smith who went to the accused three times to
convince him to look for an opium den where both
of them could smoke this drug. The conduct of the
BIR agent was condemned as "most reprehensible."
In People v. Abella, we acquitted the accused of the
crime of selling explosives after examining the
testimony of the apprehending police officer who
pretended to be a merchant. The police officer
offered "a tempting price, xxx a very high one"
causing the accused to sell the explosives. We found
there was inducement, "direct, persistent and
effective" by the police officer and that outside of his
testimony, there was no evidence sufficient to
convict the accused. In People v. Lua Chu and Uy Se
Tieng, [W]e convicted the accused after finding that
there was no inducement on the part of the law
enforcement officer. We stated that the Customs
secret serviceman smoothed the way for the
introduction of opium from Hong Kong to Cebu after
the accused had already planned its importation and
ordered said drug. We ruled that the apprehending
officer did not induce the accused to import opium
but merely entrapped him by pretending to have an
understanding with the Collector of Customs of Cebu
to better assure the seizure of the prohibited drug
and the arrest of the surreptitious importers.
406 | P a g e
In recent years, it has become common practice for
law enforcement officers and agents to engage in
buy-bust operations and other entrapment
procedures in apprehending drug offenders, which is
made difficult by the secrecy with which drug-
related offenses are conducted and the many
devices and subterfuges employed by offenders to
avoid detection. On the other hand, the Court has
taken judicial notice of the ugly reality that in cases
involving illegal drugs, corrupt law enforcers have
been known to prey upon weak, hapless and
innocent persons. The distinction between
entrapment and instigation has proven to be crucial.
The balance needs to be struck between the
individual rights and the presumption of innocence
on one hand, and ensuring the arrest of those
engaged in the illegal traffic of narcotics on the
other.
Applying the foregoing, we declare that the accused
was not arrested following an instigation for him to
commit the crime. Instead, he was caught in
flagrante delicto during an entrapment through buy-
bust. In a buy-bust operation, the pusher sells the
contraband to another posing as a buyer; once the
transaction is consummated, the pusher is validly
arrested because he is committing or has just
committed a crime in the presence of the buyer.
Here, Paras asked the accused if he could buy shabu,
and the latter, in turn, quickly transacted with the
former, receiving the marked bill from Paras and
turning over the sachet of shabu he took from his
pocket. The accused was shown to have been ready
to sell the shabu without much prodding from Paras.
There is no question that the idea to commit the
crime originated from the mind of the accused.
The accused argues that the absence of a prior
surveillance cast doubt on the veracity of the buy-
bust operation; and that the failure to present the
informant as a witness against him, as well as the
buy-bust teams failure to comply with the
requirements under Section 21, Article II, of Republic
Act No.9165, were fatal to the cause of the
Prosecution.21?r?l1
The argument of the accused lacks merit. We have
held that prior surveillance is not necessary to
render a buy-bust operation legitimate, especially
when the buy-bust team is accompanied to the
target area by the informant.22 That was what
precisely happened here.
Similarly, the presentation of an informant as a
witness is not regarded as indispensable to the
success of a prosecution of a drug-dealing accused.
As a rule, the informant is not presented in court for
security reasons, in view of the need to protect the
informant from the retaliation of the culprit arrested
through his efforts. Thereby, the confidentiality of
the informants identity is protected in deference to
his invaluable services to law enforcement. 23 Only
when the testimony of the informant is considered
absolutely essential in obtaining the conviction of
the culprit should the need to protect his security be
disregarded. Here, however, the informants
testimony as a witness against the accused would
only be corroborative of the sufficient testimony of
Paras as the poseur-buyer; hence, such testimony
was unnecessary.24?r?l1
We consider as unwarranted the contention of the
accused about the non-compliance by the buy-bust
team with the requirements of the law for the
proper seizure and custody of dangerous drugs.
The requirements are imposed by Section 21,
paragraph 1, Article II of Republic Act No. 9165,
whose pertinent portion reads as
follows:cralawlibrary
Section 21. Custody and Disposition of Confiscated,
Seized, and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors
and Essential Chemicals, Instruments/Paraphernalia
and/or Laboratory Equipment. The PDEA shall take
charge and have custody of all dangerous drugs,
plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or
surrendered, for proper disposition in the following
manner:cralawlibrary
(1) The apprehending team having initial custody
and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and
photograph the same in the presence of the accused
or the person/s from whom such items were
confiscated and/or seized, or his/her representative
or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public
official who shall be required to sign the copies of
the inventory and be given a copy thereof;
x x x ???ñr?bl?š ??r†??l l?? l?br?rÿ
To implement the requirements of Republic Act No.
9165, Section 21 (a), Article II of the IRR relevantly
states:cralawlibrary
xxx
(a) The apprehending officer/team having initial
custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory
and photograph the same in the presence of the
accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative
or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public
official who shall be required to sign the copies of
407 | P a g e
the inventory and be given a copy thereof: Provided,
that the physical inventory and photograph shall be
conducted at the place where the search warrant is
served; or at the nearest police station or at the
nearest office of the apprehending officer/team,
whichever is practicable, in case of warrantless
seizures; Provided, further that non-compliance with
these requirements under justifiable grounds, as
long as the integrity and the evidentiary value of the
seized items are properly preserved by the
apprehending officer/team, shall not render void
and invalid such seizures of and custody over said
items;
x x x ???ñr?bl?š ??r†??l l?? l?br?rÿ
It is notable that pursuant to the IRR, supra, the non-
observance of the requirements may be excused if
there is a justification, provided the integrity of the
seized items as evidence is "properly preserved by
the apprehending
officer/team."???ñr?bl?š ??r†??l l?? l?br?rÿ
Although it appears that the buy-bust team did not
literally observe all the requirements, like
photographing the confiscated drugs in the presence
of the accused, of a representative from the media
and from the Department of Justice, and of any
elected public official who should be required to sign
the copies of the inventory and be given a copy of it,
whatever justification the members of the buy-bust
team had to render in order to explain their non-
observance of all the requirements would remain
unrevealed because the accused did not assail such
non-compliance during the trial. He raised the
matter for the first time only in the CA. As such, the
Court cannot now dwell on the matter because to do
so would be against the tenets of fair play and
equity. That is what the Court said in People v. Sta.
Maria, 25 to wit:cralawlibrary
The law excuses non-compliance under justifiable
grounds. However, whatever justifiable grounds may
excuse the police officers involved in the buy-bust
operation in this case from complying with Section
21 will remain unknown, because appellant did not
question during trial the safekeeping of the items
seized from him. Indeed, the police officers alleged
violations of Sections 21 and 86 of Republic Act No.
9165 were not raised before the trial court but were
instead raised for the first time on appeal. In no
instance did appellant least intimate at the trial court
that there were lapses in the safekeeping of seized
items that affected their integrity and evidentiary
value. Objection to evidence cannot be raised for the
first time on appeal; when a party desires the court
to reject the evidence offered, he must so state in
the form of objection. Without such objection, he
cannot raise the question for the first time on
appeal.
We point out that the non-adherence to Section 21,
Article II of Republic Act No. 9165 was not a serious
flaw that would make the arrest of the accused
illegal or that would render the shabu subject of the
sale by him inadmissible as evidence against him.
What was crucial was the proper preservation of the
integrity and the evidentiary value of the
seized shabu, inasmuch as that would be significant
in the determination of the guilt or innocence of the
accused.26?r?l1 ???ñr?bl?š ??r†??l l?? l?br?rÿ
The State showed here that the chain of custody of
the shabu was firm and unbroken. The buy-bust
team properly preserved the integrity of
the shabu as evidence from the time of its seizure to
the time of its presentation in court. Immediately
upon the arrest of the accused, Paras marked the
plastic sachet containing the shabu with the
accuseds initials of NBB. Thereafter, Paras brought
the sachet and the contents to the ADSOU,27 where
his superior officer, Insp. Cruz, prepared and signed
the request for the laboratory examination of the
contents of the marked sachet.28 P02 De Ocampo
handcarried the request and the evidence to the PNP
Crime Laboratory.29 SPO 1 Bugabuga of that office
recorded the delivery of the request and the marked
sachet, which were all received by Chemist Dela
Rosa.30 In turn, Chemist Dela Rosa examined the
contents of the marked sachet, and executed
Physical Sciences Report No. D-1 03 8-03 confirming
that the marked sachet contained 0.06 gram
of shabu.31 In this regard, the accused did not deny
that Paras and Chemist Dela Rosa affirmed the
sequence of custody of the shabu during the
trial.32?r?l1
The CA and the RTC correctly imposed life
imprisonment and fine of P500,000.00. Section 5,
Article II of Republic Act No. 9165 states that the
penalty for the illegal sale of dangerous drugs,
like shabu, regardless of the quantity and purity,
shall be life imprisonment to death and a fine
ranging from P500,000.00 to P 10,000,000.00.33?r?l1
WHEREFORE, we AFFIRM the decision promulgated
by the Court of Appeals on January 29, 2010; and
ORDER the accused to pay the costs of suit.
SO ORDERED.
HIRD DIVISION
[G.R. No. 181409 : February 11, 2010]
INTESTATE ESTATE OF MANOLITA GONZALES VDA.
DE CARUNGCONG, REPRESENTED BY MEDIATRIX
CARUNGCONG, AS ADMINISTRATRIX, PETITIONER,
VS. PEOPLE OF THE PHILIPPINES AND WILLIAM SATO,
RESPONDENTS.
DECISION
408 | P a g e
CORONA, J.:
Article 332 of the Revised Penal Code provides:
ART. 332. Persons exempt from criminal liability. - No
criminal, but only civil liability shall result from the
commission of the crime of theft, swindling, or
malicious mischief committed or caused mutually by
the following persons:
1. Spouses, ascendants and
descendants, or relatives by
affinity in the same line;
2. The widowed spouse with respect
to the property which belonged to
the deceased spouse before the
same shall have passed into the
possession of another; and
3. Brothers and sisters and brothers-
in-law and sisters-in-law, if living
together.
The exemption established by this article shall not be
applicable to strangers participating in the
commission of the crime. (emphasis supplied)
For purposes of the aforementioned provision, is the
relationship by affinity created between the husband
and the blood relatives of his wife (as well as
between the wife and the blood relatives of her
husband) dissolved by the death of one spouse, thus
ending the marriage which created such relationship
by affinity? Does the beneficial application of Article
332 cover the complex crime of estafa thru
falsification?
Mediatrix G. Carungcong, in her capacity as the duly
appointed administratrix[1] of petitioner intestate
estate of her deceased mother Manolita Gonzales
vda. de Carungcong, filed a complaint-affidavit[2] for
estafa against her brother-in-law, William Sato, a
Japanese national. Her complaint-affidavit read:
I, MEDIATRIX CARUNGCONG Y GONZALE[S], Filipino,
of legal age, single, and resident of Unit 1111, Prince
Gregory Condominium, 105 12th Avenue, Cubao,
Quezon City, after being duly sworn, depose and
state that:
1. I am the duly appointed Administratrix of the
Intestate Estate of Manolita Carungcong Y
Gonzale[s], docketed as Spec. Procs. No. [Q]-95-
23621[,] Regional Trial Court of Quezon City, Branch
104, being one (1) of her surviving daughters. Copy
of the Letters of Administration dated June 22, 1995
is hereto attached as Annex "A" to form an integral
part hereof.
2. As such Administratrix, I am duty bound not only
to preserve the properties of the Intestate Estate of
Manolita Carungcong Y Gonzale[s], but also to
recover such funds and/or properties as property
belonging to the estate but are presently in the
possession or control of other parties.
3. After my appointment as Administratrix, I was
able to confer with some of the children of my sister
Zenaida Carungcong Sato[,] who predeceased our
mother Manolita Carungcong Y Gonzales, having
died in Japan in 1991.
4. In my conference with my nieces Karen Rose Sato
and Wendy Mitsuko Sato, age[d] 27 and 24
respectively, I was able to learn that prior to the
death of my mother Manolita Carungcong Y
Gonzale[s], [s]pecifically on o[r] about November 24,
1992, their father William Sato, through fraudulent
misrepresentations, was able to secure the signature
and thumbmark of my mother on a Special Power of
Attorney whereby my niece Wendy Mitsuko Sato,
who was then only twenty (20) years old, was made
her attorney-in-fact, to sell and dispose four (4)
valuable pieces of land in Tagaytay City. Said Special
Power of Attorney, copy of which is attached as
ANNEX "A" of the Affidavit of Wendy Mitsuko Sato,
was signed and thumbmark[ed] by my mother
because William Sato told her that the documents
she was being made to sign involved her taxes. At
that time, my mother was completely blind, having
gone blind almost ten (10) years prior to November,
1992.
5. The aforesaid Special Power of Attorney was
signed by my mother in the presence of Wendy, my
other niece Belinda Kiku Sato, our maid Mana
Tingzon, and Governor Josephine Ramirez who later
became the second wife of my sister's widower
William Sato.
6. Wendy Mitsuko Sato attests to the fact that my
mother signed the document in the belief that they
were in connection with her taxes, not knowing,
since she was blind, that the same was in fact a
Special Power of Attorney to sell her Tagaytay
properties.
7. On the basis of the aforesaid Special Power of
Attorney, William Sato found buyers for the property
and made my niece Wendy Mitsuko Sato sign three
(3) deeds of absolute sale in favor of (a) Anita Ng
(Doc. 2194, Page No. 41, Book No. V, Series of 1992
of Notary Public Vicente B. Custodio), (b) Anita Ng
(Doc. No. 2331, Page No. 68, Book No. V, Series of
1992 of Notary Public Vicente B. Custodio) and (c)
Ruby Lee Tsai (Doc. No. II, Page No. 65, Book No. II,
Series of 1993 of Notary Public Toribio D. Labid). x x x
8. Per the statement of Wendy Mitsuko C. Sato, the
considerations appearing on the deeds of absolute
sale were not the true and actual considerations
409 | P a g e
received by her father William Sato from the buyers
of her grandmother's properties. She attests that
Anita Ng actually paid P7,000,000.00 for the
property covered by TCT No. 3148 and
P7,034,000.00 for the property covered by TCT No.
3149. All the aforesaid proceeds were turned over to
William Sato who undertook to make the proper
accounting thereof to my mother, Manolita
Carungcong Gonzale[s].
9. Again, per the statement of Wendy Mitsuko C.
Sato, Ruby Lee Tsai paid P8,000,000.00 for the
property covered by Tax Declaration No. GR-016-
0735, and the proceeds thereof were likewise turned
over to William Sato.
10. The considerations appearing on the deeds of
sale were falsified as Wendy Mitsuko C. Sato has
actual knowledge of the true amounts paid by the
buyers, as stated in her Affidavit, since she was the
signatory thereto as the attorney-in-fact of Manolita
Carungcong Y Gonzale[s].
11. Wendy was only 20 years old at the time and was
not in any position to oppose or to refuse her
father's orders.
12. After receiving the total considerations for the
properties sold under the power of attorney
fraudulently secured from my mother, which total
P22,034,000.00, William Sato failed to account for
the same and never delivered the proceeds to
Manolita Carungcong Y Gonzale[s] until the latter
died on June 8, 1994.
13. Demands have been made for William Sato to
make an accounting and to deliver the proceeds of
the sales to me as Administratrix of my mother's
estate, but he refused and failed, and continues to
refuse and to fail to do so, to the damage and
prejudice of the estate of the deceased Manolita
Carungcong Y Gonzale[s] and of the heirs which
include his six (6) children with my sister Zenaida
Carungcong Sato. x x x[3]
Wendy Mitsuko Sato's supporting affidavit and the
special power of attorney allegedly issued by the
deceased Manolita Gonzales vda. de Carungcong in
favor of Wendy were attached to the complaint-
affidavit of Mediatrix.
In a resolution dated March 25, 1997, the City
Prosecutor of Quezon City dismissed the
complaint.[4] On appeal, however, the Secretary of
Justice reversed and set aside the resolution dated
March 25, 1997 and directed the City Prosecutor of
Quezon City to file an Information against Sato for
violation of Article 315, paragraph 3(a) of the
Revised Penal Code.[5] Thus, the following
Information was filed against Sato in the Regional
Trial Court of Quezon City, Branch 87:[6]
INFORMATION
The undersigned accuses WILLIAM SATO of the crime
of ESTAFA under Article 315[,] par. 3(a) of the
Revised Penal Code, committed as follows:
That on or about the 24th day of November, 1992, in
Quezon City, Philippines, the above-named accused,
by means of deceit, did, then and there, wil[l]fully,
unlawfully and feloniously defraud MANOLITA
GONZALES VDA. DE CARUNGCONG in the following
manner, to wit: the said accused induced said
Manolita Gonzales Vda. De Carungcong[,] who was
already then blind and 79 years old[,] to sign and
thumbmark a special power of attorney dated
November 24, 1992 in favor of Wendy Mitsuko C.
Sato, daughter of said accused, making her believe
that said document involved only her taxes, accused
knowing fully well that said document authorizes
Wendy Mitsuko C. Sato, then a minor, to sell, assign,
transfer or otherwise dispose of to any person or
entity of her properties all located at Tagaytay City,
as follows:
1. One Thousand Eight Hundred
Seven(ty) One (1,871) square
meters more or less and covered
by T.C.T. No. 3147;
2. Five Hundred Forty (540) square
meters more or less and covered
by T.C.T. No. 3148 with Tax
Declaration No. GR-016-0722,
Cadastral Lot No. 7106;
3. Five Hundred Forty (540) square
meters more or less and covered
by T.C.T. No. 3149 with Tax
Declaration No. GR-016-0721,
Cadastral Lot No. 7104;
4. Eight Hundred Eighty Eight (888)
square meters more or less with
Tax Declaration No. GR-016-1735,
Cadastral Lot No. 7062;
registered in the name of Manolita Gonzales Vda. De
Carungcong, and once in the possession of the said
special power of attorney and other pertinent
documents, said accused made Wendy Mitsuko Sato
sign the three (3) Deeds of Absolute Sale covering
Transfer Certificate of Title [TCT] No. 3148 for
P250,000.00, [TCT] No. 3149 for P250,000.00 and
[Tax Declaration] GR-016-0735 for P650,000.00 and
once in possession of the proceeds of the sale of the
above properties, said accused, misapplied,
misappropriated and converted the same to his own
personal use and benefit, to the damage and
prejudice of the heirs of Manolita Gonzales Vda. De
Carungcong who died in 1994.
410 | P a g e
Contrary to law.[7]
Subsequently, the prosecution moved for the
amendment of the Information so as to increase the
amount of damages from P1,150,000, the total
amount stated in the deeds of sale, to P22,034,000,
the actual amount received by Sato.
Sato moved for the quashal of the Information,
claiming that under Article 332 of the Revised Penal
Code, his relationship to the person allegedly
defrauded, the deceased Manolita who was his
mother-in-law, was an exempting circumstance.
The prosecution disputed Sato's motion in an
opposition dated March 29, 2006.
[8]
In an order dated April 17, 2006, the trial court
granted Sato's motion and ordered the dismissal of
the criminal case:
The Trial Prosecutor's contention is that the death of
the wife of the accused severed the relationship of
affinity between accused and his mother-in-law.
Therefore, the mantle of protection provided to the
accused by the relationship is no longer obtaining.
A judicious and thorough examination of Article 332
of the Revised Penal Code convinces this Court of the
correctness of the contention of the [d]efense. While
it is true that the death of Zenaida Carungcong-Sato
has extinguished the marriage of accused with her, it
does not erase the fact that accused and Zenaida's
mother, herein complainant, are still son[-in-law]
and mother-in-law and they remained son[-in-law]
and mother-in-law even beyond the death of
Zenaida.
Article 332(1) of the Revised Penal Code, is very
explicit and states no proviso. "No criminal, but only
civil liability[,] shall result from the commission of
the crime of theft, swindling or malicious
mischief committed or caused mutually by xxx 1)
spouses, ascendants and descendants, or relatives by
affinity in the same line."
Article 332, according to Aquino, in his
Commentaries [to] Revised Penal Code, preserves
family harmony and obviates scandal, hence even in
cases of theft and malicious mischief, where the
crime is committed by a stepfather against his
stepson, by a grandson against his grandfather, by a
son against his mother, no criminal liability is
incurred by the accused only civil (Vicente Alavare,
52 Phil. 65; Adame, CA 40 OG 12th Supp.
63; Cristobal, 84 Phil. 473).
Such exempting circumstance is applicable herein.
WHEREFORE, finding the Motion to Quash Original
Information meritorious, the same is GRANTED and,
as prayed for, case is hereby DISMISSED.
SO ORDERED.[9] (underlining supplied in the original)
The prosecution's motion for reconsideration[10] was
denied in an order dated June 2, 2006.[11]
Dissatisfied with the trial court's rulings, the
intestate estate of Manolita, represented by
Mediatrix, filed a petition for certiorari in the Court
of Appeals[12] which, however, in a decision[13] dated
August 9, 2007, dismissed it. It ruled:
[W]e sustain the finding of [the trial court] that the
death of Zenaida did not extinguish the relationship
by affinity between her husband, private respondent
Sato, and her mother Manolita, and does not bar the
application of the exempting circumstance under
Article 332(1) of the Revised Penal Code in favor of
private respondent Sato.

We further agree with the submission of the [Office
of the Solicitor General (OSG)] that nothing in the
law and/or existing jurisprudence supports the
argument of petitioner that the fact of death of
Zenaida dissolved the relationship by affinity
between Manolita and private respondent Sato, and
thus removed the protective mantle of Article 332 of
the Revised Penal Code from said private
respondent; and that notwithstanding the death of
Zenaida, private respondent Sato remains to be the
son-in-law of Manolita, and a brother-in-law of
petitioner administratrix. As further pointed out by
the OSG, the filing of the criminal case for estafa
against private respondent Sato already created
havoc among members of the Carungcong and Sato
families as private respondent's daughter Wendy
Mitsuko Sato joined cause with her aunt [Mediatrix]
Carungcong y Gonzales, while two (2) other children
of private respondent, William Francis and Belinda
Sato, took the side of their father.
There is a dearth of jurisprudence and/or
commentaries elaborating on the provision of Article
332 of the Revised Penal Code. However, from the
plain language of the law, it is clear that the
exemption from criminal liability for the crime of
swindling (estafa) under Article 315 of the Revised
Penal Code applies to private respondent Sato, as
son-in-law of Manolita, they being "relatives by
affinity in the same line" under Article 332(1) of the
same Code. We cannot draw the distinction that
following the death of Zenaida in 1991, private
respondent Sato is no longer the son-in-law of
Manolita, so as to exclude the former from the
exempting circumstance provided for in Article 332
(1) of the Revised Penal Code.
Ubi lex non distinguit nec nos distinguere debemos.
Basic is the rule in statutory construction that where
the law does not distinguish, the courts should not
411 | P a g e
distinguish. There should be no distinction in the
application of law where none is indicated. The
courts could only distinguish where there are facts or
circumstances showing that the lawgiver intended a
distinction or qualification. In such a case, the courts
would merely give effect to the lawgiver's intent. The
solemn power and duty of the Court to interpret and
apply the law does not include the power to correct
by reading into the law what is not written therein.
Further, it is an established principle of statutory
construction that penal laws are strictly construed
against the State and liberally in favor of the
accused. Any reasonable doubt must be resolved in
favor of the accused. In this case, the plain meaning
of Article 332 (1) of the Revised Penal Code's simple
language is most favorable to Sato.[14]
The appellate court denied
reconsideration.[15] Hence, this petition.
Petitioner contends that the Court of Appeals erred
in not reversing the orders of the trial court. It cites
the commentary of Justice Luis B. Reyes in his book
on criminal law that the rationale of Article 332 of
the Revised Penal Code exempting the persons
mentioned therein from criminal liability is that the
law recognizes the presumed co-ownership of the
property between the offender and the offended
party. Here, the properties subject of the estafa case
were owned by Manolita whose daughter, Zenaida
Carungcong-Sato (Sato's wife), died on January 28,
1991. Hence, Zenaida never became a co-owner
because, under the law, her right to the three
parcels of land could have arisen only after her
mother's death. Since Zenaida predeceased her
mother, Manolita, no such right came about and the
mantle of protection provided to Sato by the
relationship no longer existed.
Sato counters that Article 332 makes no distinction
that the relationship may not be invoked in case of
death of the spouse at the time the crime was
allegedly committed. Thus, while the death of
Zenaida extinguished her marriage with Sato, it did
not dissolve the son-in-law and mother-in-law
relationship between Sato and Zenaida's mother,
Manolita.
For his part, the Solicitor General maintains that Sato
is covered by the exemption from criminal liability
provided under Article 332. Nothing in the law and
jurisprudence supports petitioner's claim that
Zenaida's death dissolved the relationship by affinity
between Sato and Manolita. As it is, the criminal
case against Sato created havoc among the members
of the Carungcong and Sato families, a situation
sought to be particularly avoided by Article 332's
provision exempting a family member committing
theft, estafa or malicious mischief from criminal
liability and reducing his/her liability to the civil
aspect only.
The petition has merit.
The resolution of this case rests on the
interpretation of Article 332 of the Revised Penal
Code. In particular, it calls for the determination of
the following: (1) the effect of death on the
relationship by affinity created between a surviving
spouse and the blood relatives of the deceased
spouse and (2) the extent of the coverage of Article
332.
Effect of Death on Relationship
By Affinity as Absolutory Cause
Article 332 provides for an absolutory cause[16] in the
crimes of theft, estafa (or swindling) and malicious
mischief. It limits the responsibility of the offender
to civil liability and frees him from criminal liability
by virtue of his relationship to the offended party.

In connection with the relatives mentioned in the
first paragraph, it has been held that included in the
exemptions are parents-in-law, stepparents and
adopted children.[17] By virtue thereof, no criminal
liability is incurred by the stepfather who commits
malicious mischief against his stepson;[18] by the
stepmother who commits theft against her
stepson;[19] by the stepfather who steals something
from his stepson;[20] by the grandson who steals
from his grandfather;[21] by the accused who
swindles his sister-in-law living with him;[22] and by
the son who steals a ring from his mother.[23]
Affinity is the relation that one spouse has to the
blood relatives of the other spouse. It is a
relationship by marriage or a familial relation
resulting from marriage.[24] It is a fictive kinship, a
fiction created by law in connection with the
institution of marriage and family relations.
If marriage gives rise to one's relationship by affinity
to the blood relatives of one's spouse, does the
extinguishment of marriage by the death of the
spouse dissolve the relationship by affinity?
Philippine jurisprudence has no previous encounter
with the issue that confronts us in this case. That is
why the trial and appellate courts acknowledged the
"dearth of jurisprudence and/or commentaries" on
the matter. In contrast, in the American legal system,
there are two views on the subject. As one Filipino
author observed:
In case a marriage is terminated by the death of one
of the spouses, there are conflicting views. There are
some who believe that relationship by affinity is not
terminated whether there are children or not in the
marriage (Carman vs. Newell, N.Y. 1 [Denio] 25, 26).
However, the better view supported by most judicial
authorities in other jurisdictions is that, if the
412 | P a g e
spouses have no living issues or children and one of
the spouses dies, the relationship by affinity is
dissolved. It follows the rule that relationship by
affinity ceases with the dissolution of the marriage
which produces it (Kelly v. Neely, 12 Ark. 657, 659,
56 Am Dec. 288). On the other hand, the relationship
by affinity is continued despite the death of one of
the spouses where there are living issues or children
of the marriage "in whose veins the blood of the
parties are commingled, since the relationship of
affinity was continued through the medium of the
issue of the marriage" (Paddock vs. Wells, 2 Barb. Ch.
331, 333).[25]
The first view (the terminated affinity view) holds
that relationship by affinity terminates with the
dissolution of the marriage either by death or
divorce which gave rise to the relationship of affinity
between the parties.[26] Under this view, the
relationship by affinity is simply coextensive and
coexistent with the marriage that produced it. Its
duration is indispensably and necessarily determined
by the marriage that created it. Thus, it exists only
for so long as the marriage subsists, such that the
death of a spouse ipso facto ends the relationship by
affinity of the surviving spouse to the deceased
spouse's blood relatives.
The first view admits of an exception. The
relationship by affinity continues even after the
death of one spouse when there is a surviving
issue.[27] The rationale is that the relationship is
preserved because of the living issue of the marriage
in whose veins the blood of both parties is
commingled.[28]
The second view (the continuing affinity view)
maintains that relationship by affinity between the
surviving spouse and the kindred of the deceased
spouse continues even after the death of the
deceased spouse, regardless of whether the
marriage produced children or not.[29] Under this
view, the relationship by affinity endures even after
the dissolution of the marriage that produced it as a
result of the death of one of the parties to the said
marriage. This view considers that, where statutes
have indicated an intent to benefit step-relatives or
in-laws, the "tie of affinity" between these people
and their relatives-by-marriage is not to be regarded
as terminated upon the death of one of the married
parties.[30]
After due consideration and evaluation of the
relative merits of the two views, we hold that the
second view is more consistent with the language
and spirit of Article 332(1) of the Revised Penal
Code.
First, the terminated affinity view is generally
applied in cases of jury disqualification and
incest.[31] On the other hand, the continuing affinity
view has been applied in the interpretation of laws
that intend to benefit step-relatives or in-laws. Since
the purpose of the absolutory cause in Article 332(1)
is meant to be beneficial to relatives by affinity
within the degree covered under the said provision,
the continuing affinity view is more appropriate.
Second, the language of Article 332(1) which speaks
of "relatives by affinity in the same line" is couched
in general language. The legislative intent to make
no distinction between the spouse of one's living
child and the surviving spouse of one's deceased
child (in case of a son-in-law or daughter-in-law with
respect to his or her parents-in-law)[32] can be drawn
from Article 332(1) of the Revised Penal Code
without doing violence to its language.
Third, the Constitution declares that the protection
and strengthening of the family as a basic
autonomous social institution are policies of the
State and that it is the duty of the State to
strengthen the solidarity of the family.[33] Congress
has also affirmed as a State and national policy that
courts shall preserve the solidarity of the
family.[34] In this connection, the spirit of Article 332
is to preserve family harmony and obviate
scandal.[35] The view that relationship by affinity is
not affected by the death of one of the parties to the
marriage that created it is more in accord with family
solidarity and harmony.
Fourth, the fundamental principle in applying and in
interpreting criminal laws is to resolve all doubts in
favor of the accused. In dubio pro reo. When in
doubt, rule for the accused.[36] This is in consonance
with the constitutional guarantee that the accused
shall be presumed innocent unless and until his guilt
is established beyond reasonable doubt.[37]
Intimately related to the in dubio pro reo principle is
the rule of lenity.[38] The rule applies when the court
is faced with two possible interpretations of a penal
statute, one that is prejudicial to the accused and
another that is favorable to him. The rule calls for
the adoption of an interpretation which is more
lenient to the accused.
Lenity becomes all the more appropriate when this
case is viewed through the lens of the basic purpose
of Article 332 of the Revised Penal Code to preserve
family harmony by providing an absolutory cause.
Since the goal of Article 332(1) is to benefit the
accused, the Court should adopt an application or
interpretation that is more favorable to the accused.
In this case, that interpretation is the continuing
affinity view.
Thus, for purposes of Article 332(1) of the Revised
Penal Code, we hold that the relationship by affinity
created between the surviving spouse and the blood
relatives of the deceased spouse survives the death
of either party to the marriage which created the
413 | P a g e
affinity. (The same principle applies to the justifying
circumstance of defense of one's relatives under
Article 11[2] of the Revised Penal Code, the mitigating
circumstance of immediate vindication of grave
offense committed against one's relatives under
Article 13[5] of the same Code and the absolutory
cause of relationship in favor of accessories under
Article 20 also of the same Code.)
SCOPE OF ARTICLE 332 OF
THE REVISED PENAL CODE
The absolutory cause under Article 332 of the
Revised Penal Code only applies to the felonies of
theft, swindling and malicious mischief. Under the
said provision, the State condones the criminal
responsibility of the offender in cases of theft,
swindling and malicious mischief. As an act of grace,
the State waives its right to prosecute the offender
for the said crimes but leaves the private offended
party with the option to hold the offender civilly
liable.
However, the coverage of Article 332 is strictly
limited to the felonies mentioned therein. The plain,
categorical and unmistakable language of the
provision shows that it applies exclusively to the
simple crimes of theft, swindling and malicious
mischief. It does not apply where any of the crimes
mentioned under Article 332 is complexed with
another crime, such as theft through falsification or
estafa through falsification.[39]
The Information against Sato charges him with
estafa. However, the real nature of the offense is
determined by the facts alleged in the Information,
not by the designation of the offense.[40] What
controls is not the title of the Information or the
designation of the offense but the actual facts
recited in the Information.[41] In other words, it is the
recital of facts of the commission of the offense, not
the nomenclature of the offense, that determines
the crime being charged in the Information.[42] It is
the exclusive province of the court to say what the
crime is or what it is named.[43] The determination by
the prosecutor who signs the Information of the
crime committed is merely an opinion which is not
binding on the court.[44]
A reading of the facts alleged in the Information
reveals that Sato is being charged not with simple
estafa but with the complex crime of estafa through
falsification of public documents. In particular, the
Information states that Sato, by means of deceit,
intentionally defrauded Manolita committed as
follows:
(a) Sato presented a document to Manolita (who was
already blind at that time) and induced her to sign
and thumbmark the same;
(b)he made Manolita believe that the said document
was in connection with her taxes when it was in
fact a special power of attorney (SPA) authorizing
his minor daughter Wendy to sell, assign, transfer
or otherwise dispose of Manolita's properties in
Tagaytay City;
(c) relying on Sato's inducement and representation,
Manolita signed and thumbmarked the SPA in
favor of Wendy Mitsuko Sato, daughter of Sato;
(d)using the document, he sold the properties to
third parties but he neither delivered the
proceeds to Manolita nor accounted for the same
and despite repeated demands, he failed and
refused to deliver the proceeds, to the damage
and prejudice of the estate of Manolita.
The above averments in the Information show that
the estafa was committed by attributing to Manolita
(who participated in the execution of the document)
statements other than those in fact made by her.
Manolita's acts of signing the SPA and affixing her
thumbmark to that document were the very
expression of her specific intention that something
be done about her taxes. Her signature and
thumbmark were the affirmation of her statement
on such intention as she only signed and
thumbmarked the SPA (a document which she could
not have read) because of Sato's representation that
the document pertained to her taxes. In signing and
thumbmarking the document, Manolita showed that
she believed and adopted the representations of
Sato as to what the document was all about, i.e.,
that it involved her taxes. Her signature and
thumbmark, therefore, served as her conformity to
Sato's proposal that she execute a document to
settle her taxes.
Thus, by inducing Manolita to sign the SPA, Sato
made it appear that Manolita granted his daughter
Wendy a special power of attorney for the purpose
of selling, assigning, transferring or otherwise
disposing of Manolita's Tagaytay properties when
the fact was that Manolita signed and thumbmarked
the document presented by Sato in the belief that it
pertained to her taxes. Indeed, the document itself,
the SPA, and everything that it contained were
falsely attributed to Manolita when she was made to
sign the SPA.
Moreover, the allegations in the Information that
(1)"once in the possession of the said special power
of attorney and other pertinent documents, [Sato]
made Wendy Mitsuko Sato sign the three (3)
Deeds of Absolute Sale" and
(2)"once in possession of the proceeds of the sale of
the above properties, said accused, misapplied,
misappropriated and converted the same to his
own personal use and benefit"
raise the presumption that Sato, as the possessor of
414 | P a g e
the falsified document and the one who benefited
therefrom, was the author thereof.
Furthermore, it should be noted that the
prosecution moved for the amendment of the
Information so as to increase the amount of
damages from P1,150,000 to P22,034,000. This was
granted by the trial court and was affirmed by the
Court of Appeals on certiorari. This meant that the
amended Information would now state that, while
the total amount of consideration stated in the
deeds of absolute sale was only P1,150,000, Sato
actually received the total amount of P22,034,000 as
proceeds of the sale of Manolita's properties.[45] This
also meant that the deeds of sale (which were public
documents) were also falsified by making untruthful
statements as to the amounts of consideration
stated in the deeds.
Therefore, the allegations in the Information
essentially charged a crime that was not simple
estafa. Sato resorted to falsification of public
documents (particularly, the special power of
attorney and the deeds of sale) as a necessary means
to commit the estafa.
Since the crime with which respondent was charged
was not simple estafa but the complex crime of
estafa through falsification of public documents,
Sato cannot avail himself of the absolutory cause
provided under Article 332 of the Revised Penal
Code in his favor.
EFFECT OF ABSOLUTORY CAUSE UNDER
ARTICLE 332 ON CRIMINAL LIABILITY
FOR THE COMPLEX CRIME OF ESTAFA
THROUGH FALSIFICATION OF PUBLIC
DOCUMENTS
The question may be asked: if the accused may not
be held criminally liable for simple estafa by virtue of
the absolutory cause under Article 332 of the
Revised Penal Code, should he not be absolved also
from criminal liability for the complex crime of estafa
through falsification of public documents? No.
True, the concurrence of all the elements of the two
crimes of estafa and falsification of public document
is required for a proper conviction for the complex
crime of estafa through falsification of public
document. That is the ruling in Gonzaludo v.
People.[46] It means that the prosecution must
establish that the accused resorted to the
falsification of a public document as a necessary
means to commit the crime of estafa.
However, a proper appreciation of the scope and
application of Article 332 of the Revised Penal Code
and of the nature of a complex crime would negate
exemption from criminal liability for the complex
crime of estafa through falsification of public
documents, simply because the accused may not be
held criminally liable for simple estafa by virtue of
the absolutory cause under Article 332.
The absolutory cause under Article 332 is meant to
address specific crimes against property, namely, the
simple crimes of theft, swindling and malicious
mischief. Thus, all other crimes, whether simple or
complex, are not affected by the absolutory cause
provided by the said provision. To apply the
absolutory cause under Article 332 of the Revised
Penal Code to one of the component crimes of a
complex crime for the purpose of negating the
existence of that complex crime is to unduly expand
the scope of Article 332. In other words, to apply
Article 332 to the complex crime of estafa through
falsification of public document would be to
mistakenly treat the crime of estafa as a separate
simple crime, not as the component crime that it is
in that situation. It would wrongly consider the
indictment as separate charges of estafa and
falsification of public document, not as a single
charge for the single (complex) crime of estafa
through falsification of public document.
Under Article 332 of the Revised Penal Code, the
State waives its right to hold the offender criminally
liable for the simple crimes of theft, swindling and
malicious mischief and considers the violation of the
juridical right to property committed by the offender
against certain family members as a private matter
and therefore subject only to civil liability. The
waiver does not apply when the violation of the right
to property is achieved through (and therefore
inseparably intertwined with) a breach of the public
interest in the integrity and presumed authenticity
of public documents. For, in the latter instance, what
is involved is no longer simply the property right of a
family relation but a paramount public interest.
The purpose of Article 332 is to preserve family
harmony and obviate scandal.[47] Thus, the action
provided under the said provision simply concerns
the private relations of the parties as family
members and is limited to the civil aspect between
the offender and the offended party. When estafa is
committed through falsification of a public
document, however, the matter acquires a very
serious public dimension and goes beyond the
respective rights and liabilities of family members
among themselves. Effectively, when the offender
resorts to an act that breaches public interest in the
integrity of public documents as a means to violate
the property rights of a family member, he is
removed from the protective mantle of the
absolutory cause under Article 332.
In considering whether the accused is liable for the
complex crime of estafa through falsification of
public documents, it would be wrong to consider the
component crimes separately from each
other. While there may be two component
415 | P a g e
crimes (estafa and falsification of documents), both
felonies are animated by and result from one and
the same criminal intent for which there is only one
criminal liability.[48] That is the concept of a complex
crime. In other words, while there are two
crimes, they are treated only as one, subject to a
single criminal liability.
As opposed to a simple crime where only one
juridical right or interest is violated (e.g., homicide
which violates the right to life, theft which violates
the right to property),[49] a complex crime constitutes
a violation of diverse juridical rights or interests by
means of diverse acts, each of which is a simple
crime in itself.[50] Since only a single criminal intent
underlies the diverse acts, however, the component
crimes are considered as elements of a single crime,
the complex crime. This is the correct interpretation
of a complex crime as treated under Article 48 of the
Revised Penal Code.
In the case of a complex crime, therefore, there is a
formal (or ideal) plurality of crimes where the same
criminal intent results in two or more component
crimes constituting a complex crime for which there
is only one criminal liability.[51] (The complex crime of
estafa through falsification of public document falls
under this category.) This is different from a material
(or real) plurality of crimes where different criminal
intents result in two or more crimes, for each of
which the accused incurs criminal liability.[52] The
latter category is covered neither by the concept of
complex crimes nor by Article 48.
Under Article 48 of the Revised Penal Code, the
formal plurality of crimes (concursus
delictuorum or concurso de delitos) gives rise to a
single criminal liability and requires the imposition of
a single penalty:
Although [a] complex crime quantitatively consists of
two or more crimes, it is only one crime in law on
which a single penalty is imposed and the two or
more crimes constituting the same are more
conveniently termed as component
crimes.[53] (emphasis supplied)
-- ∞ -- -- ∞ -- -- ∞ --
In [a] complex crime, although two or more crimes
are actually committed, they constitute
only one crime in the eyes of the law as well as in the
conscience of the offender. The offender has only
one criminal intent. Even in the case where an
offense is a necessary means for committing the
other, the evil intent of the offender is only one.[54]
For this reason, while a conviction for estafa through
falsification of public document requires that the
elements of both estafa and falsification exist, it
does not mean that the criminal liability for estafa
may be determined and considered independently of
that for falsification. The two crimes of estafa and
falsification of public documents are not separate
crimes but component crimes of the single complex
crime of estafa and falsification of public documents.
Therefore, it would be incorrect to claim that, to be
criminally liable for the complex crime of estafa
through falsification of public document, the liability
for estafa should be considered separately from the
liability for falsification of public document. Such
approach would disregard the nature of a complex
crime and contradict the letter and spirit of Article
48 of the Revised Penal Code. It would wrongly
disregard the distinction between formal plurality
and material plurality, as it improperly treats the
plurality of crimes in the complex crime of estafa
through falsification of public document as a mere
material plurality where the felonies are considered
as separate crimes to be punished individually.
FALSIFICATION OF PUBLIC DOCUMENTS MAY BE
A NECESSARY MEANS FOR COMMITTING
ESTAFA EVEN UNDER ARTICLE 315 (3[A])
The elements of the offense of estafa punished
under Article 315 (3[a]) of the Revised Penal Code
are as follows:
(1) the offender induced the offended party to sign a
document;
(2) deceit was employed to make the offended party
sign the document;
(3) the offended party personally signed the
document and
(4) prejudice is caused to the offended party.
While in estafa under Article 315(a) of the Revised
Penal Code, the law does not require that the
document be falsified for the consummation
thereof, it does not mean that the falsification of the
document cannot be considered as a necessary
means to commit the estafa under that provision.
The phrase "necessary means" does not connote
indispensable means for if it did, then the offense as
a "necessary means" to commit another would be an
indispensable element of the latter and would be an
ingredient thereof.[55] In People v. Salvilla,[56] the
phrase "necessary means" merely signifies that one
crime is committed to facilitate and insure the
commission of the other.[57] In this case, the crime of
falsification of public document, the SPA, was such a
"necessary means" as it was resorted to by Sato to
facilitate and carry out more effectively his evil
design to swindle his mother-in-law. In particular, he
used the SPA to sell the Tagaytay properties of
Manolita to unsuspecting third persons.
416 | P a g e
When the offender commits in a public document
any of the acts of falsification enumerated in Article
171 of the Revised Penal Code as a necessary means
to commit another crime, like estafa, theft or
malversation, the two crimes form a complex crime
under Article 48 of the same Code.[58] The
falsification of a public, official or commercial
document may be a means of committing estafa
because, before the falsified document is actually
utilized to defraud another, the crime of falsification
has already been consummated, damage or intent to
cause damage not being an element of the crime of
falsification of a public, official or commercial
document.[59] In other words, the crime of
falsification was committed prior to the
consummation of the crime of estafa.[60] Actually
utilizing the falsified public, official or commercial
document to defraud another is estafa.[61] The
damage to another is caused by the commission of
estafa, not by the falsification of the document.[62]
Applying the above principles to this case, the
allegations in the Information show that the
falsification of public document was consummated
when Sato presented a ready-made SPA to Manolita
who signed the same as a statement of her intention
in connection with her taxes. While the falsification
was consummated upon the execution of the SPA,
the consummation of the estafa occurred only when
Sato later utilized the SPA. He did so particularly
when he had the properties sold and thereafter
pocketed the proceeds of the sale. Damage or
prejudice to Manolita was caused not by the
falsification of the SPA (as no damage was yet
caused to the property rights of Manolita at the time
she was made to sign the document) but by the
subsequent use of the said document. That is why
the falsification of the public document was used to
facilitate and ensure (that is, as a necessary means
for) the commission of the estafa.
The situation would have been different if Sato,
using the same inducement, had made Manolita sign
a deed of sale of the properties either in his favor or
in favor of third parties. In that case, the damage
would have been caused by, and at exactly the same
time as, the execution of the document, not prior
thereto. Therefore, the crime committed would only
have been the simple crime of estafa.[63] On the
other hand, absent any inducement (such as if
Manolita herself had been the one who asked that a
document pertaining to her taxes be prepared for
her signature, but what was presented to her for her
signature was an SPA), the crime would have only
been the simple crime of falsification.[64]
WHEREFORE, the petition is hereby GRANTED. The
decision dated August 9, 2007 and the resolution
dated January 23, 2008 of the Court of Appeals in
CA-G.R. S.P. No. 95260 are REVERSED and SET ASIDE.
The case is remanded to the trial court which is
directed to try the accused with dispatch for the
complex crime of estafa through falsification of
public documents.
SO ORDERED.
BERSAMIN, J.:
The accused is guilty only of homicide in a
prosecution for murder where the record does not
substantiate the attendance of treachery. But he
may not benefit from the privileged mitigating
circumstance of incomplete self-defense if there was
no unlawful aggression from the victim.
The Case

Alfredo Dulin y Narag appeals the decision
promulgated on August 26, 2005,[1] whereby the
Court of Appeals (CA) affirmed with modification his
conviction for the murder of Francisco Batulan
rendered on December 29, 1997 by the Regional
Trial Court (RTC), Branch 3, in Tuguegarao,
Cagayan.[2] In convicting him, the RTC had
appreciated the privileged mitigating circumstance
of incomplete self-defense, and had then sentenced
him to “suffer the penalty of reclusion temporal in its
maximum period of imprisonment ranging from 17
years and 4 months and 1 day to 20 years.” On
appeal, the CA prescribed reclusion perpetua.
Antecedents
The information filed on January 7, 1991 averred as
follows:
That on or about August 22, 1990, in the
Municipality of Tuguegarao, Province of Cagayan,
and within the jurisdiction of this Honorable Court,
the said accused, Alfredo Dulin y Narag alias Freddie,
armed with a sharp blade(d) instrument, with intent
to kill, with evident premeditation and with
treachery did then and there willfully, unlawfully and
feloniously attack, assault and stab one, Francisco
Batulan, inflicting upon him several stab wounds on
the different parts of his body which caused his
death.
Contrary to law.[3]
During the trial, the Prosecution presented four
witnesses, namely: (a) Dr. Nelson Macaraniag, (b)
Alexander Tamayao, (c) Romulo Cabalza and (d)
Estelita Batulan. Their version follows.
Tamayao was on Tamayao Street in Atulayan Norte,
Tuguegarao at about 10:00 o’clock in the evening of
417 | P a g e
August 22, 1990 when a young man came running
from the house of Vicente Danao towards the house
of Batulan, shouting that his Uncle Totoy (Batulan)
had been stabbed. Tamayao rushed towards Danao’s
house, which was about 30 meters from his own
house, and there he saw Dulin stabbing Batulan who
was already prostrate face down. Dulin was on top
of Batulan, as if kneeling with his left foot touching
the ground. Dulin was holding Batulan by the hair
with his left hand, and thrusting the knife at the
latter with his right hand. Seeing this, Tamayao ran
towards Batulan’s house to inform Estelita Batulan,
the victim’s wife who was his aunt, about the
incident. He went home afterwards.
Tamayao mentioned of the long standing grudge
between Batulan and Dulin, and of seeing them
fighting in April 1990. He recalled Dulin uttering on
two occasions: He will soon have his day and I will kill
him.[4]
Cabalza, a barangay tanod, was in his house around
10:00 o’clock in the evening of August 22, 1990
when he heard the commotion in Danao’s house
which was facing his house. It was Carolina, Danao’s
daughter, screaming for help. He thus sought out a
fellow barangay tanod. On his return to the scene,
he found Batulan at the door of Danao’s house, with
Dulin wielding a sharp pointed instrument, about 6-7
inches long. Fearing for his safety, he rushed to the
Barangay Hall to seek the assistance of Edwin
Cabalza and Nanding Buenaflor to bring Batulan to
the Provincial Hospital in Carig, Tuguegarao.[5]
Estelita recalled that Tamayao went to her house
around 10:00 o’clock in the evening of August 22,
1990 to inform her that Dulin had stabbed her
husband in Danao’s house. She rushed to Danao’s
house but fainted on the way. Upon regaining
consciousness, she learned that her husband had
been rushed to the hospital. On her way to the
hospital, she met Barangay Captain Loreto Meman,
who told her: Finally, Freddie Dulin killed your
husband as he vowed to do. At the hospital, she was
told that her husband had sustained two wounds in
the back and several stab wounds in the front, and
was being attended to at the hospital’s intensive
care unit (ICU) before he expired.
Estelita said that Barangay Captain Meman went to
her husband’s wake and repeated what he had said
to her about Dulin. But when she later on sought
out Barangay Captain Meman to ask him to confirm
what he had told her about Dulin’s vowing to kill her
husband, Barangay Captain Meman’s response
was: I’m sorry I cannot go and declare what I have
stated because I am afraid of FREDDIE and he will kill
all those persons who will testify in their favor.[6]
Estelita mentioned of the heated discussion between
her husband and his nephew, Seong Bancud, in front
of Danao’s house in April 1990. On that occasion,
Dulin wielded a knife with which he tried to stab her
husband. Dulin was pacified only when she went to
the aid of her husband, but she then heard Dulin
saying: You will soon have your day, I will kill you.[7]
Batulan was attended to at the Cagayan Valley
Regional Hospital on August 22, 1990 by Dr.
Macaraniag, who said that the victim was in a state
of shock from his 12 stab wounds. Dr. Macaraniag
was part of the three teams that conducted the
surgery on Batulan. He issued the Medico-Legal
Certificate[8] attesting that Batulan died on August
24, 1990 at 12:15 a.m.; and that Batulan had
sustained several injuries, as follows:
Multiple stab wounds #12
(1) Lacerated wound, sternum, 1 cm.
(2) Lacerated wound, 4th ICS, 2 cm. MCL

(3) Lacerated wound, 1 cm. post axillary line
(4) Lacerated wound, 3 x 2 cm. 3 cm below scapula
(5) Lacerated wound, 3 cm. lateral aspect, left hand
(6) Lacerated wound, 3 cm. anterior aspect, left hand
(7) Lacerated wound, 3 cm. anterior aspect, about 3
cm. from elbow, left
(8) Lacerated wound, 2 cm. middle third, left
forearm
(9) Lacerated wound, 3 cm. posterior aspect left
forearm 4 cm. from left wrist
(10) Lacerated wound, 3 cm. lateral aspect of left
foot
(11) Lacerated wound, 4 cm. lateral aspect, left thigh
(12) Lacerated wound, 2 cm. scapular area.
x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-
x.[9]
Dr. Macaraniag stated the cause of death to be
“Hypovolemic shock secondary to Massive
Hemothorax secondary to Multiple stab
wounds.”[10] He clarified in court that there were
clerical errors in the preparation of the Medico-Legal
Certificate because his handwritten records
indicated that Batulan had sustained stab instead of
lacerated wounds. He surmised that one of the
clerks could have misread his handwriting in the
process of transcription.[11]
Estelita declared that her late husband had earned a
living from buying pigs, deriving a monthly income of
P8,000.00; that their marriage bore only one child;
418 | P a g e
that she spent more or less P6,500.00 for Batulan’s
hospitalization, including his medicines, and
P36,000.00 for Batulan’s 10-day wake, his burial
attire and his coffin; that during the wake she
butchered one cow worth P6,800.00 and six pigs
worth P15,000.00; that his death caused her and her
family so much pain; and that she and her family
expended a total of P70,000.00, plus the P20,000.00
for the counsel’s services in bringing the criminal
charge against Dulin.[12]
In his defense, Dulin testified that in the evening of
August 22, 1990, he was in his house in Atulayan
Norte, Tuguegarao, Cagayan with Doming Narag,
Imelda Danao, Jun Danao, Carolina Dulin and Caridad
Narag; that Nicanor Annariao and Raymund Soriano
arrived at his house to see the fighting cocks being
sold by Alberto Eugenio (Alberto); that Alberto was
not yet around, arriving only at about 8:00 o’clock in
the evening to talk with Raymund and Nicanor about
the price of the fighting cocks; that after their
transaction, Alberto served Nicanor and Raymund
food, and he (Dulin) and Jun Danao thereafter
accompanied Raymund and Nicanor to the highway
to get a tricycle ride, but on their way, they passed
Angel Bancud who called out to him: that he (Dulin)
asked the others to go ahead, and he would just
catch up with them; that as he (Dulin) approached
Bancud, Batulan, the cousin of his (Dulin) mother,
stabbed him on the right side of his body and in the
left hand; that he complained to Batulan: Uncle, you
hit me (Dinisgrasya nakun), but Batulan replied: I will
really kill you; that he (Dulin) ran to the upper level
of Carolina Danao’s house, pursued by Batulan who
stabbed him again several times; that they grappled
for the weapon until he (Dulin) was able to wrest it
from Batulan; that he (Dulin) stabbed Batulan with
the weapon, and they struggled until he (Dulin) felt
weak, eventually falling to the ground; and that he
(Dulin) regained consciousness only the next day at
the hospital.
Dulin insisted that there was no grudge between him
and Batulan, but interjected that
the barangay captain would summon him to bring
Batulan home each time the latter got drunk at
night.
Erlinda Danao, Records Officer of the Cagayan Valley
Regional Hospital in Tuguegarao, Cagayan,
authenticated the hospital records showing that
Dulin had also been injured.[13]
Judgment of the RTC
On December 29, 1997, the RTC rendered its
decision convicting Dulin of murder,[14] to wit:
WHEREFORE, judgment is hereby rendered finding
the accused Alfredo Dulin guilty beyond reasonable
doubt of the crime of Murder, and appreciating the
privileged mitigating circumstance of incomplete
self-defense and no aggravating circumstance, this
Court hereby lowers the penalty of said crime by two
degrees and hereby sentences him to suffer the
penalty of reclusion temporal in its maximum period
of imprisonment ranging from 17 years and 4
months and 1 day to 20 years and to indemnify the
heirs of the victim in the amount of P50,000.00 and
to pay actual damages in the amount of P36,000.00
and moral damages for P40,000.00.
Without subsidiary imprisonment in case of
insolvency and without pronouncement as to costs.
SO ORDERED.[15]
Decision of the CA
In his appeal, Dulin contended that his crime should
be homicide instead of murder, considering the
RTC’s appreciation of incomplete self-defense as a
privileged mitigating circumstance; and that even if
self-defense should be unavailing, he could be found
guilty only of homicide because it was the victim
who had first attacked by stabbing him, and that the
multiple wounds inflicted on the victim did not mean
that he had not been justified in killing the victim. He
argued that the penalty imposed on him was
incorrect considering the absence of any aggravating
circumstance and the presence of the privileged
mitigating circumstance of incomplete self-defense.
On August 26, 2005, the CA affirmed the conviction
subject to the modification of the civil liability,
decreeing:
The Court agrees with the OSG representing the
State that the penalty requires modification. The
Court a quo committed error in the imposition of the
proper penalty. The crime committed by appellant in
the case at bench is murder qualified by treachery.
There being no aggravating and no mitigating
circumstance, the proper penalty is reclusion
perpetua. Where no mitigating or aggravating
circumstance attended the commission of the crime,
the medium period of the imposable penalty, which
is reclusion perpetua, should be imposed by the trial
court.
WHEREFORE, the judgment of conviction is
hereby AFFIRMED subject to the modification of the
penalty and awards of damages. Appellant ALFREDO
DULIN y NARAG is hereby sentenced to suffer the
penalty of reclusion perpetua. The award of P36,000
actual damages is DELETED. Appellant is ordered to
pay the heirs of Francisco Batulan P20,000 as
temperate damages and P50,000 by way of moral
damages.
SO ORDERED.[16]
On January 12, 2006, the CA denied Dulin’s motion
for reconsideration.[17]
419 | P a g e
Issues
In this appeal, Dulin submits the following issues for
our review and consideration, to wit:
I reasonable necessity of the means employed to
WHETHER OR NOT THE COURT OF APPEALS ERRED
IN FAILING TO APPRECIATE THE PRESENCE OF THE
JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE
DESPITE CLEAR AND CONVINCING EVIDENCE
SHOWING THE ELEMENTS OF SELF-DEFENSE.
II
WHETHER OR NOT THE COURT OF APPEALS ERRED
IN NOT CONSIDERING SELF-DEFENSE AS A
PRIVILEGED MITIGATING CIRCUMSTANCE, IN THE
EVENT THAT THE APPRECIATION OF A COMPLETE
SELF-DEFENSE IS UNAVAILING.
III
WHETHER OR NOT THE COURT OF APPEALS ERRED
IN APPRECIATING THE QUALIFYING CIRCUMSTANCE
OF TREACHERY IN THE KILLING OF FRANCISCO.[18]
Ruling of the Court
The appeal is partly meritorious.
I.
There was no self-defense
The accused who pleads self-defense admits the
authorship of the crime. The burden of proving self-
defense rests entirely on him, that he must then
prove by clear and convincing evidence the
concurrence of the following elements of self-
defense, namely: (1) unlawful aggression; (2)
prevent or repel the unlawful aggression; and (3)
lack of sufficient provocation on the part of the
person defending himself.[19] The most important of
all the elements is unlawful aggression,[20] which is
the condition sine qua non for upholding self-
defense as a justifying circumstance. Unless the
victim committed unlawful aggression against the
accused, self-defense, whether complete or
incomplete, should not be appreciated, for the two
other essential elements of self-defense would have
no factual and legal bases without any unlawful
aggression to prevent or repel.
Unlawful aggression as the condition sine qua
non for upholding self-defense is aptly described
in People v. Nugas,[21] as follows:
Unlawful aggression on the part of the victim is the
primordial element of the justifying circumstance of
self-defense. Without unlawful aggression, there can
be no justified killing in defense of oneself. The test
for the presence of unlawful aggression under the
circumstances is whether the aggression from the
victim put in real peril the life or personal safety of
the person defending himself; the peril must not be
an imagined or imaginary threat. Accordingly, the
accused must establish the concurrence of three
elements of unlawful aggression, namely: (a) there
must be a physical or material attack or assault; (b)
the attack or assault must be actual, or, at least,
imminent; and (c) the attack or assault must be
unlawful.
Unlawful aggression is of two kinds: (a) actual or
material unlawful aggression; and (b) imminent
unlawful aggression. Actual or material unlawful
aggression means an attack with physical force or
with a weapon, an offensive act that positively
determines the intent of the aggressor to cause the
injury. Imminent unlawful aggression means an
attack that is impending or at the point of
happening; it must not consist in a mere threatening
attitude, nor must it be merely imaginary, but must
be offensive and positively strong (like aiming a
revolver at another with intent to shoot or opening a
knife and making a motion as if to attack). Imminent
unlawful aggression must not be a mere threatening
attitude of the victim, such as pressing his right hand
to his hip where a revolver was holstered,
accompanied by an angry countenance, or like
aiming to throw a pot.
Dulin argues that the CA should have appreciated
the justifying circumstance of self-defense in his
favor because all its elements had been present in
the commission of the crime.
In rejecting Dulin’s argument, the CA observed that
although Batulan had initiated the attack against
Dulin the unlawful aggression from Batulan
effectively ceased once Dulin had wrested the
weapon from the latter. The CA thus found and held
in its assailed decision:
Appellant testified that after the initial stabbing
attack on him, he was able to take possession of the
weapon and ran towards the second level of the
house of Vicente Danao, away from FRANCISCO. At
that point, the unlawful aggression against him
effectively ceased. When FRANCISCO and appellant
again grappled for possession of the weapon,
appellant now became the armed protagonist, and
FRANCISCO’s act of trying to wrest the weapon
cannot be considered as unlawful aggression. At that
moment, appellant no longer faced any imminent or
420 | P a g e
immediate danger to his life and limb from
FRANCISCO.
xxxx
From the foregoing, it is evidently clear that
FRANCISCO could no longer be considered as
unlawful aggressor. Appellant had nothing to repel.
Therefore, appellant’s theory that he was merely
defending himself when he killed FRANCISCO is
unavailing. A fortiori, there would be no basis for the
second requisite of self-defense.[22]
We uphold the finding and holding of the CA.
Batulan, albeit the initial aggressor against Dulin,
ceased to be the aggressor as soon as Dulin had
dispossessed him of the weapon. Even if Batulan still
went after Dulin despite the latter going inside the
house of Danao, where they again grappled for
control of the weapon, the grappling for the weapon
did not amount to aggression from Batulan for it was
still Dulin who held control of the weapon at that
point. Whatever Dulin did thereafter – like stabbing
Batulan with the weapon – constituted retaliation
against Batulan. In this regard, retaliation was not
the same as self-defense. In retaliation, the
aggression that the victim started already ceased
when the accused attacked him, but in self-defense,
the aggression was still continuing when the accused
injured the aggressor.[23] As such, there was no
unlawful aggression on the part of Batulan to justify
his fatal stabbing by Dulin.
Still, Dulin vigorously insists that the initial
aggression employed by Batulan did not cease
because the latter followed him into Danao’s house
with the singular purpose of ending his life; and that
there was no gap in the aggression initiated by
Batulan.[24]
The insistence is unwarranted. Dulin admitted having
successfully disarmed Batulan and then running
away from him. With the aggression by Batulan
having thereby ceased, he did not anymore pose any
imminent threat against Dulin. Hence, Batulan was
not committing any aggression when Dulin fatally
stabbed him.
It is notable, too, that the results of the medico-legal
examination indicating Batulan to have sustained
twelve stab wounds[25] confirmed the cessation of
the attack by Batulan. The numerosity and nature of
the wounds inflicted by the accused reflected his
determination to kill Batulan, and the fact that he
was not defending himself.[26]
II.
Incomplete self-defense was not proved
Pursuant to Article 69 of the Revised Penal Code, the
privileged mitigating circumstance of incomplete
self-defense reduces the penalty by one or two
degrees than that prescribed by law. For this
purpose, the accused must prove the existence of
the majority of the elements for self-defense, but
unlawful aggression, being an indispensable
element, must be present. Either or both of the
other requisites may be absent, namely: reasonable
necessity of the means employed to prevent or repel
it, or the lack of sufficient provocation on the part of
the person defending himself.[27]
Dulin posits that the totality of circumstances
indicated that his acts constituted incomplete self-
defense, and must be appreciated as a privileged
mitigating circumstance.[28]
Dulin’s position is untenable. Like in complete self-
defense, Dulin should prove the elements of
incomplete self-defense by first credibly establishing
that the victim had committed unlawful aggression
against him. With Batulan’s aggression having
already ceased from the moment that Dulin divested
Batulan of the weapon, there would not be any
incomplete self-defense. Moreover, as borne out by
his stabbing of Batulan several times, Dulin did not
act in order to defend himself or to repel any attack,
but instead to inflict injury on Batulan.
III.
The RTC and CA erred in appreciating the attendance
of treachery
Murder is the unlawful killing of any person attended
by any of the circumstances listed Article 248 of
the Revised Penal Code. Treachery, which was
alleged in the information, is one such qualifying
circumstance.
There is treachery when the offender commits any of
the crimes against persons, employing means and
methods or forms in the execution thereof which
tend to directly and specially ensure its execution,
without risk to himself arising from the defense
which the offended party might make.[29] Two
conditions must concur in order for treachery to be
appreciated, namely: one, the assailant employed
means, methods or forms in the execution of the
criminal act which give the person attacked no
opportunity to defend himself or to retaliate;
and two, said means, methods or forms of execution
were deliberately or consciously adopted by the
assailant.[30] Treachery, whenever alleged in the
information and competently and clearly proved,
qualifies the killing and raises it to the category of
murder.[31]
Based on the established facts, Dulin and Batulan
grappled for control of the weapon Batulan had
initially wielded against Dulin, who divested Batulan
421 | P a g e
of it and ran with it into the house of Danao, with
Batulan in immediate pursuit. They continued to
grapple for the weapon inside the house of Danao,
and it was at that point when Dulin stabbed Batulan
several times. Under the circumstances, treachery
should not be appreciated in the killing of Batulan
because the stabbing by Dulin did not take Batulan
by surprise due to his having been sufficiently
forewarned of Dulin’s impending assault,[32] and
being thus afforded the opportunity to defend
himself, or to escape, or even to recover control of
the weapon from Dulin. The essence of treachery is
that the attack comes without warning, or is done in
a swift, deliberate and unexpected manner,
affording the hapless, unarmed and unsuspecting
victim no chance to resist or to escape, without the
slightest provocation on the part of the
victim.[33] The mode of attack must not spring from
the unexpected turn of events.
Consequently, Dulin should be liable only for
homicide, the penalty for which is reclusion
temporal.[34] There being no aggravating or
mitigating circumstances, the penalty is imposed in
its medium period (i.e., 14 years, eight months and
one day to 17 years and four months). The
indeterminate sentence of Dulin is, therefore, eight
years and one day of prision mayor, as the minimum,
to 14 years, eight months and one day of reclusion
temporal, with full credit of his preventive
imprisonment, if any.
Anent the civil liability, the CA ordered the accused
to pay to the heirs of Batulan P20,000.00 as
temperate damages and P50,000.00 as moral
damages. We modify the awards, and grant to the
heirs of Batulan P50,000.00 as civil indemnity,
P50,000.00 as moral damages, and P25,000.00 as
temperate damages. Indeed, the current judicial
policy sets the civil indemnity for death caused by a
crime at P50,000.00. In addition, the heirs of the
victim are entitled to moral damages of P50,000.00.
The civil indemnity and moral damages are allowed
even without allegation and proof, it being a
certainty that the victim’s heirs were entitled
thereto as a matter of law. Temperate damages of
P25,000.00 should further be granted to the heirs of
the victim for they were presumed to have spent for
his interment. It would be unjust to deny them this
amount for the reason that they were not able to
establish the actual expenditure for his interment
with certainty.[35]
In line with recent jurisprudence,[36] interest of
6% per annum shall be charged on all the items of
the civil liability fixed and imposed herein, computed
from the date of the finality of this decision until the
items of the civil liability shall be fully paid.
WHEREFORE, the Court MODIFIES the judgment
promulgated on August 26, 2005 by finding ALFREDO
DULIN Y NARAG guilty beyond reasonable doubt
of HOMICIDE, and SENTENCES him to suffer the
indeterminate sentence of EIGHT YEARS AND ONE
DAY OF PRISION MAYOR, AS THE MINIMUM, TO 14
YEARS, EIGHT MONTHS AND ONE DAY
OF RECLUSION TEMPORAL, with full credit of his
preventive imprisonment; ORDERS him to pay to the
heirs of Francisco Batulan P50,000.00 as civil
indemnity, P50,000.00 as moral damages, and
P25,000.00 as temperate damages, plus interest of
6% per annum on each item reckoned from the
finality of this decision until full payment;
and DIRECTS him to pay the costs of suit.
SO ORDERED.
THIRD DIVISION
G.R. No. 193134, March 02, 2016
 RAFAEL NADYAHAN, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
RESOLUTION
PEREZ, J.:
For review is the Decision1 of the Court of Appeals
dated 17 December 2009 affirming the
Judgment2 dated 5 February 2008 of the Regional
Trial Court (RTC), Branch 34 of Lagawe, Ifugao
finding petitioner Rafael Nadyahan guilty beyond
reasonable doubt of homicide.
In an Information3 filed by the Assistant Provincial
Prosecutor on 2 July 2004, petitioner was charged
with homicide, thus:
chanRoblesvirtualLawlibrary
That on or about the evening of May 26, 2004, at
Banaue, Ifugao and within the jurisdiction of this
Honorable Court, the above-named accused, armed
with a knife and with intent to kill DID then and
there willfully, unlawfully, and feloniously attack and
stab one Mark Anthony D. Pagaddut inflicting
multiple stab wounds on his body that caused his
death thereafter.
When arraigned, petitioner pleaded not guilty to the
charge.
The defense manifested at pre-trial that while
petitioner indeed stabbed the victim, he did so in
self-defense. For this reason, a reverse trial, upon
agreement of the parties, was conducted with the
defense presenting its evidence first.
The defense presented petitioner himself as its
principal witness and a certain Pedro Binwag who
sought to corroborate the latter's statement.
422 | P a g e
Their version goes:
In the evening of 26 May 2004, petitioner was
driving his motorcycle on the way to Poblacion with
Mark Apilis at his back. As they reached the marker
of the junction road going to Bontoc, they were
flagged down by Marcial Acangan (Acangan), who
was then accompanied by Elias Nabejet (Nabejet),
Moreno Binwag (Binwag) and Mark Pagaddut
(Pagaddut). Acangan asked petitioner for a ride
home and the latter readily obliged. Acangan further
asked that they be treated to a drink. Petitioner
refused and explained that he had already spent his
last money on drinks earlier in the day. This angered
Acangan. He slapped petitioner on the forehead and
kicked his foot. Petitioner did not back down.
Instead, he got off his motorcycle and prepared to
fight Acangan. At that instance, he saw Acangan's
companions pick up pieces of wood. Petitioner then
ran towards Apilis and instructed the latter to start
the engine of the motorcycle. Before petitioner
could leave, he was struck on the back with a piece
of wood by Nabejet. Petitioner impulsively took his
knife from the windshield of the motorcycle and ran
to the direction of his house. Acangan's group
followed him. Upon reaching the parking area of the
KMS Line, petitioner was met by Binwag. Petitioner
even managed to ask Binwag why his group was
ganging up on him when he was hit by Pagaddut
with a belt buckle. As petitioner was starting to lose
consciousness, he thrust his knife and stabbed
Pagaddut before both of them fell down. Petitioner
then got up, wiped his face and prepared to go
home. Fie met Apilis who was driving his motorcycle.
Apilis refused to go with him so petitioner drove the
motorcycle away and proceeded towards the house
of a congressman. Petitioner then spent four days in
Barangay O-ong before going to San Jose City in
Nueva Ecija to have his wounds treated. Finally, he
went back to Ifugao to surrender.4
Pedro Binwag witnessed a commotion while he was
waiting for a jeepney near the junction road. He saw
one person armed with a knife and running towards
Bontoc while he was being chased by two men. The
person holding a knife was eventually cornered by
three men and he was struck in the head by a club.
While he was about to fall down, he was bumped by
another man holding a swinging object, causing the
latter to fall. Sensing danger, Pedro Binwag
immediately left the area.5
Petitioner presented a medical certificate6 issued by
the hospital in San Jose City to prove that he
suffered a lacerated wound on his forehead.
The prosecution presented Acangan and Nabejet
whose version portrayed petitioner as the aggressor.
Acangan narrated that he and Pagaddut had just
come from Viewer's Live Band located at the market
where they had a few drinks. Pagaddut went inside
the cab of a tricycle with Acangan as driver. While
Acangan was about to start the engine, petitioner
and Apilis, who were riding a motorcycle, approach
them. After saying that he has no problem with
Pagaddut, petitioner suddenly wielded a knife.
Acangan ran and petitioner chased him around the
tricycle. Pagaddut alighted from the tricycle cab and
tried to start the motorcycle engine. When
petitioner saw Pagaddut, he kicked the latter in the
chest. Petitioner turned his ire on Pagaddut and
stabbed his upper right buttock. Nabejet came and
tried to hit petitioner with a piece of wood but he
missed. Petitioner, in turn chased Nabejet. Acangan
followed them and upon reaching the station of the
KMS Line, he saw petitioner pull the knife from
Pagaddut's body. Acangan brought Pagaddut to the
hospital. Pagaddut expired at the hospital.7
Nabejet recounted that he had just come from a
wake and was near Viewer's Live Band when he saw
petitioner, who was armed with a knife, standing
near Pagaddut. He took a piece of wood nearby and
approached Pagaddut. He then saw petitioner chase
Pagaddut. He saw petitioner stab Pagaddut in the
back causing the latter to fall down. Petitioner
continued stabbing Pagaddut but the latter was able
to parry the blows. Nabejet tried to hit petitioner
with a piece of wood but he missed. Petitioner
turned his attention to Nabejet and chased him.
Nabejet was able to escape.8
According to the Certificate of Death, Pagaddut
sustained the following injuries:
chanRoblesvirtualLawlibrary
1. Multiple Stab Wounds, Penetrating, perforating
a. Right infraclavicular, 7 cm
b. Right anterior axillary fold, 5 cm
2. Stab wound, penetrating 3 cm. base of neck
right
3. Stab wound, lateral aspect upper arm, 2
cm.9ChanRoblesVirtualawlibrary
Dr. Antonio Ligot testified that the victim had three
stab wounds: 1) one was perforating and penetrating
wound on the anterior chest wall on the right side;
2) other is perforating and penetrating stab wound
at the base of the right side of the neck; and 3) one
was a stab wound on the right upper arm.10
Finding an incomplete self-defense, the trial court
found petitioner guilty beyond reasonable doubt of
homicide. The dispositive portion reads:
chanRoblesvirtualLawlibrary
WHEREFORE, there being an incomplete self-
defense, ACCUSED, Rafael Nadyahan is
found GUILTY beyond reasonable doubt of Homicide.
Pursuant to Article 69 of the Revised Penal Code and
applying the Indeterminate Sentence Law, he is
hereby sentenced to suffer the penalty of
imprisonment of four (4) years and two (2) months
of prision correccional medium, as minimum, to
eight (8) years of prision mayor minimum, as
423 | P a g e
maximum. He is likewise ordered to pay the heirs of
the victim, Mark Anthony D. Pagaddut, the amount
of Fifty Thousand (P50,000.00) Pesos as civil
indemnity.11ChanRoblesVirtualawlibrary
The trial court lent credence to the version of the
defense that petitioner is not the aggressor.
However, the trial court found that there is an
incomplete self-defense on the part of petitioner.
Particularly, the trial court ruled that based on the
wounds sustained by the victim, the means used by
petitioner to prevent or repel the attack was not
reasonable. In the imposition of penalty, the trial
court considered incomplete self-defense as a
privileged mitigating circumstance and voluntary
surrender as an ordinary mitigating circumstance.
On 17 December 2009, the appellate court rendered
its decision affirming petitioner's conviction.
Petitioner maintains that the court a quo gravely
erred: (1) in ruling that there is an incomplete self-
defense; and (2) in sustaining the penalty imposed
by the trial court without considering the
circumstances favorable to accused.12
In its Comment,13 the Office of the Solicitor-General
(OSG) defends the ruling of the appellate court that
there is incomplete self-defense. However, the OSG
recommends the modification of the penalty to
arresto mayor in its medium period to prision
correccional minimum.
Case law has established that in invoking self-
defense, whether complete or incomplete, the onus
probandi is shifted to the accused to prove by clear
and convincing evidence all the elements of the
justifying circumstance, namely: (a) unlawful
aggression on the part of the victim; (b) the
reasonable necessity of the means employed to
prevent or repel it; and (c) lack of sufficient
provocation on the part of the person defending
himself.14
We agree with the trial court that there was
unlawful aggression on the part of the victim and
lack of sufficient provocation on the part of
petitioner. We quote the pertinent portion of the
decision of the trial court:
chanRoblesvirtualLawlibrary
After a thorough evaluation of the evidence and
testimonies from both parties, the court gives more
weight to the account that the accused was not the
aggressor. His narration that Marcial Acangan
requested him to take Marcial Acangan home was
supported by the statement in the affidavit of
Marcial where the accused said "MUD PROBLEMA
INE TE BARKADA HI MARCIAL' (THERE IS NO
PROBLEM WITH THAT BECAUSE MARCIAL IS A
FRIEND). The records do not disclose previous
conversation in Marcial's affidavit to which accused
replied with such a statement but it jibes with the
account of the accused that Marcial requested him
to take the latter home. It is illogical that after saying
that, accused alighted from the motorcycle and
chased his friend with a knife without any
provocation. There was also no mention in Marcial's
affidavit that accused kicked and stabbed the victim.
He narrated it in his oral testimony because it was in
the affidavit of the other witnesses. We must bear in
mind that Martial was the companion of the victim
as early as when they were inside Viewer's Live Band
and was continuously in close proximity with the
victim until the chase started so it is improbable that
he did not mention such incident to the police if it
indeed happened. As to the testimony of the other
witness for the prosecution, Eleazar Nabejet, he was
presented to prove lack of sufficient provocation on
the part of the victim yet in his testimony he never
mentioned any kicking incident. It is most likely that
he arrived late at the scene to have witnessed the
beginning of the altercation and without personal
knowledge to judge who the aggressor was. He does
not even have an accurate grasp of the time of the
incident relative to the time they left the house
where the wake was, saying that they left the house
where the wake was, saying that they left about 9:00
o'clock and later saying that it was perhaps at 9:55
so that if they reached the road it was 10:00 o'clock.
Finally Dr. Ligot stated in his testimony that there
was no stab wound on the lower back portion of the
victim, and that the injuries sustained by the victim
were frontal wounds. This will explain the fact why
Martial Acangan, the first witness for the
prosecution offered to answer when asked why he
did not mention in his affidavit the stabbing incident
in front of Viewer's Live Band. This testimony,
supported with physical evidence impeaches the
testimonies of the two earlier witnesses for the
prosecution. With the inconsistencies of the
testimonies of the witnesses for the prosecution, the
court concludes that the oral testimony of Marcial
Acangan is not credible and he adapted it from the
story narrated by the other witnesses. With the
foregoing, the court gives full credence to the
testimony of the accused that he was not the
aggressor.
Another factor which contributed to the failure of
the cause of the prosecution is the fact that not one
of the prosecution witnesses had seen the exchange
of blows between the accused and the victim. The
prosecution evidence failed to prove the details on
how the stabbing took place that led to the death of
the victim. In fact the first witness for the
prosecution who was supposed to have seen the
accused stab the victim and whose testimony will
prove that the accused inflicted the fatal wounds on
the victim admitted in his testimony that he saw only
the "last pull of the knife" and then accused went to
his motorcycle. It appeared that during the span of
time that the accused and the victim were facing
each other and exchanging blows, the witnesses for
the prosecution were not around to see what
424 | P a g e
happened. Marcial stated that he noticed Moreno
Binwag at the site of the incident. Eleazar Nabejet
said he was not around as he was running back to
where the wake was using the pathway near the
Viewer's Live band. Moreno Binwag was not
presented as witness. The evidence of both parties
however, are one in saying that there was a chasing
incident, one after the other, a few meters from
each other. The court finds it strange that not one of
the prosecution witnesses had seen the exchange of
blows between the accused and the victim when
they were only a few meters away from each other.
Mr. Moreno Binwag who could have seen it all as he
was the alleged companion of the victim in attacking
the accused near the KMS Lines was not presented[.]
In effect, the claim of the accused corroborated by
his witness, Pedro Binwag, that the group of the
victim were the aggressors is undisputed.
xxxx
We go next to the other requirement of self-defense
to qualify as justifying circumstance, lack of sufficient
provocation on the part of the person defending
him. The same set of testimonies may be
appreciated to determine if the accused did not
provide sufficient provocation. The court rules and
so holds that there was no sufficient provocation on
the part of the accused to invite the attack from
Martial Acangan and his companions. In fact he
acceeded (sic) to the request of Marcial to take him
home. His subsequent refusal or failure to buy drinks
as requested definitely is not sufficient provocation
for the attack by the group of the
victim.15ChanRoblesVirtualawlibrary
Petitioner defends the use of a knife against four (4)
men who were armed with a belt buckle and a club.
Petitioner claims that since the aggressors were
ganging up on him, he was put in a situation where
he could not control or calculate the blows, nor
could he have had time to reflect whether to
incapacitate the victim or hit the less vital part of his
body. Petitioner asserts that a penalty lower by two
degrees under Article 69 of the Revised Penal Code is
proper, assuming without admitting, that the
evidence warrants a conviction.
The means employed by the person invoking self-
defense contemplates a rational equivalence
between the means of attack and the defense. 16
The following circumstances, as cited by the
appellate court, negate the presence of a reasonable
necessity of the means employed to prevent or repel
it:
chanRoblesvirtualLawlibrary
First, there is intrinsic disproportion between a knife
and a belt buckle. Although this disproportion is not
conclusive and may yield a contrary conclusion
depending on the circumstances, we mention this
disproportionality because we do not believe that
the circumstances of the case dictate a contrary
conclusion.
Second, physical evidence shows that the accused-
appellant suffered only a lacerated wound on the
forehead. Contrary to what the accused-appellant
wishes to imply, he could not have been a defender
reeling from successive blows inflicted by the victim
and Binwag.
Third, the victim Pagaddut and his companions were
already drunk before the fatal fight. This state of
intoxication, while not critically material to the
stabbing that transpired, is still material for purposes
of defining its surrounding circumstances,
particularly the fact that a belt buckle and a piece of
wood might not have been a potent weapon in the
hands of a drunk wielder.
Fourth, and as the trial court aptly observed, the
knife wounds were all aimed at vital parts of the
body, thus pointing a conclusion that the accused-
appellant was simply warding off belt buckle thrusts
and used his knife as a means commensurate to the
thrusts he avoided.
To be precise, the accused-appellant inflicted on the
victim: two penetrating and perforating stab
wounds, one at the right infraclavicular, 7 cms. deep,
and at the right anterior axillary fold, 5 cms. deep,
anther was at the base of the neck, 5 cms. deep, and
a last one was in the lateral aspect upper arm, 2 cms.
deep. The depth of these wounds shows the force
exerted in the accused-appellant's thrusts while the
locations are indicative that the thrusts were all
meant to kill, not merely disable the victim, and
thereby avoid his drunken
thrusts.17ChanRoblesVirtualawlibrary
In sum, we do not find any error in the Court of
Appeals' ruling with respect to incomplete-self
defense to warrant its reversal. However, we find
the need to modify the penalty it imposed which is
four (4) years and two (2) months of prision
correccional medium, as minimum, to eight (8) years
of prision mayor minimum, as maximum.
Article 249 of the Revised Penal Code prescribes for
the crime of homicide the penalty ofreclusion
temporal, the range of which is twelve (12) years and
one (1) day to twenty (20) years. Under Article 69 of
the Revised Penal Code, the privileged mitigating
circumstance of incomplete self-defense reduces the
penalty by one or two degrees than that prescribed
by law. There being an incomplete self-defense, the
penalty should be one (1) degree lower or
from reclusion temporal to prision mayor to be
imposed in its minimum period considering the
presence of one ordinary mitigating circumstance of
voluntary surrender pursuant to Article 64(2).
Applying the Indeterminate Sentence Law, the
maximum of the penalty shall be prision
425 | P a g e
mayor minimum, the proper period after considering
the mitigating circumstance, which has a range of six
(6) years and one (1) day to eight (8) years. The
minimum penalty is the penalty next lower in degree
which is prision correccional in any of its periods, the
range of which is six (6) months and one (1) day to
six (6) years. Thus, the trial court correctly sentenced
petitioner to four (4) years and two (2) months
of prision correccional medium, as minimum to eight
(8) years of prision mayor minimum, as
maximum.chanrobleslaw
WHEREFORE, the petition is DENIED and the Decision
and Resolution of the Court of Appeals in CA-G.R. CR
No. 31643 dated 17 December 2009 and 21 July
2010, respectively, are AFFIRMED.
Costs against petitioner.
SO ORDERED.cralawlawlibrary
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-48976 October 11, 1943
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MORO MACBUL, defendant-appellant.
Cesar C. Climaco for appellant.
Office of the Solicitor General De la Costa and
Solicitor Madamba for appellee.
OZAETA, J.:
Appellant pleaded guilty to an information for theft
of two sacks of papers valued at P10 belong to the
Provincial Government of Sulu, alleged to have been
committed on March 9, 1943, in the municipality of
Jolo; it being also alleged that he was a habitual
delinquent, having been twice convicted of the same
crime on November 14, 1928, and August 20, 1942.
The trial court sentenced him to suffer one month
and one day of arresto mayor as principal penalty
and two years, four months, and one day of prision
correccional as additional penalty for habitual
delinquency.
The trial court found two mitigating circumstances:
plea of guilty under paragraph 7, and extreme
poverty and necessity under paragraph 10, of article
13 of the Revised Penal Code; but it took into
account the aggravating circumstance of recidivism
in imposing the principal as well as the additional
penalty.
The only question raised here by counsel for the
appellant is the correctness of the consideration by
the trial court of recidivism as an aggravating
circumstance for the purpose of imposing the
additional penalty for habitual delinquency, counsel
contending that recidivism should not have been
taken into account because it is inherent in habitual
delinquency. While that contention is correct, as we
have decided in the case of People vs. Tolentino, 1
Off. Gaz., 682, it is beside the point here because the
error committed by the trial court lies not so much in
its having considered recidivism as an aggravating
circumstance for the purpose of penalizing habitual
delinquency, as in its having considered appellant as
a habitual delinquent at all, it appearing from the
information that his two previous convictions were
more than ten years apart. "A person shall be deems
to be habitually delinquent, if within a period of ten
years from the date of his release or last conviction
of the crimes of robo, hurto, estafa, or falsification,
he is found guilty of any of said crimes a third time or
oftener." (See last paragraph, article 62, No. 5, of the
Revised Penal Code.) Therefore, appellant's first
conviction, which took place in November, 1928,
cannot be taken into account because his second
conviction took place in August, 1942, or fourteen
years later. Hence within the purview of the Habitual
Delinquency Law appellant has only one previous
conviction against him, namely, that of 1942.
The trial court considered extreme poverty and
necessity as a mitigating circumstance falling within
No. 10 of article 13 of the Revised Penal Code, which
authorizes the court to consider in favor of an
accused "any other circumstance of a similar nature
and analogous to those above mentioned." The trial
court predicates such consideration upon its finding
that the accused, on account of extreme poverty and
of the economic difficulties brought about by the
present cataclysm, was forced to pilfer the two sacks
of papers mentioned in the information from the
Customhouse Building, which he sold for P2.50, in
order to be able to buy something to eat for various
minor children of his. (The stolen goods were
subsequently recovered.) The Solicitor General
interposes no objection to the consideration of such
circumstance as mitigating under No. 10 of article
13. We give it our stamp of approval, recognizing the
immanent principle that the right to life is more
sacred than a mere property right. That is not to
encourage or even countenance theft but merely to
dull somewhat the keen and pain-producing edges of
the stark realities of life.
Conformably to the recommendation of the Solicitor
General, the sentence appealed from is modified by
affirming the principal penalty and eliminating the
additional penalty, without costs.
426 | P a g e
Yulo, C.J., Moran and Paras, JJ., concur.
Separate Opinions
BOCOBO, J., concurring:
I concur in the result. In view of the far-reaching
significance of the doctrine enunciated in the
foregoing opinion — that extreme poverty is a
mitigating circumstance — and of the fact that such
a rule deviates from established precedents, I deem
it appropriate to set forth my reasons for subscribing
to the new principle.
I believe that extreme poverty and necessity is a
mitigating circumstance, not only because it is
analogous mitigating circumstance under No. 10 of
art. 13 of the Revised Penal Code, as stated in the
above opinion, but also for the reason that it is an
incomplete exempting circumstance contemplated
in No. 1 of said article 13, in relation to Nos. 5
(irresistable force) and 6 (uncontrollable fear) of art.
12. The trial court found that the accused committed
the crime of theft "por extrema pobreza y
necesidad," and considered this as an analogous
mitigating circumstance within the meaning of No.
10, art. 13 of the Revised Penal Code. Such a finding
is based on the fact that on March 9, 1943, the
accused took the two sacks of papers and sold the
same for P2.50 because he is the father of several
minor children and they and he had nothing to eat
on that day.
The Supreme Tribunal of Spain has refused to
recognize extreme poverty as a mitigating
circumstance by analogy in cases of robbery and
theft. (See sentences of April 20, 1871; July 12, 1904;
April 18, 1907; and July 9, 1907).lawphil.net
As for Philippine jurisprudence, as far as I know, this
question has never been squarely passed upon by
this court. Possibly one of the reasons is that in view
of the well-established doctrine of the Spanish
Supreme Court, above referred to, it seems to have
been taken for granted by the legal profession here
that extreme poverty and need is not a mitigating
circumstance by analogy in cases of robbery and
theft.
In spite of precedents and widespread belief to the
contrary, I do not hesitate to hold the proposition
that extreme poverty and need is a mitigating
circumstance analogous to two of the circumstances
enumerated in art. 13. These two are:
1. "That of having acted upon an impulse so
powerful as naturally to have produced
passion or obfuscation." (No. 6)
2. "Such illness of the offender as would
diminish the exercise of will-power without
however depriving him of consciousness of
his acts." (No. 9)
It will be noted that there is a common idea
underlying these two mitigating circumstances,
namely, that the offender either by a powerful
impulse or through illness had no effective control
over himself at the time he committed the crime.
Was this the state of mind of the defendant herein
when he took the papers? I believe so because the
thought that his little children would starve on that
day must have temporarily dulled his conscience and
driven him to steal. The spectre of hunger of his
loved ones terrified him into stealing. The reason for
Nos. 6 and 9 of art. 13, above quoted, being the
same as in the instant case, the rule of analogy
authorized in No. 10 of that article should be
applied. The ancient principle upheld by the Roman
jurists, Eadem dispositio, ubi eadem ratio is a
puissant logic and is eminently just.
Furthermore, the facts of this case come within the
purview of No. 1 of art. 13, which provides:
Art. 13. Mitigating circumstances. — The
following are mitigating circumstances:
1. Those mentioned in the preceding
chapter, when all the requisites necessary
to justify the act or to exempt from criminal
liability in the respective cases are not
attendant.
In other words, the offense of the accused herein
may be properly considered as mitigated by
incomplete exemption from criminal liability, under
Nos. 5 and 6 of art. 12, (irresistible force and
uncontrollable fear of an equal or greater injury.)
The first question in this aspect of the case is
whether No. 1 of art. 13 refers only to those
exempting circumstances which contain two or more
requisites (self-defense, defense of relatives or of
stranger, and avoidance of an evil or injury in Nos. 1
to 4, art. 11.) The answer is negative because No. 1
of art. 13 refers to the preceding chapter relative to
justifying and exempting circumstances, and the
preceding chapter, which consists of art. 11 and 12,
includes circumstances which are not composed of
several requisites. In People vs. Oanis, G.R. No.
47722, (July 27, 1943) we held that improper
performance of a duty (No. 5, art. 11) is mitigating
circumstance.
427 | P a g e
Coming now to irresistible force, No. 5 of art. 12
provides that "any person who acts under the
compulsion of an irresistible force" is exempt from
criminal liability. It is true that according to the
doctrine of the Supreme Tribunal of Spain, the
irresistible force must be external, proceeding from a
third person (S. of Feb. 28, 1891). But considering
that the law makes no distinction between force
within the accused himself and from another person,
and that one type of force is just as compelling as
another, I think it is but right to hold that such force
need not be exerted by another person.
This being so, why should the offense of the accused
herein be mitigated by extreme poverty and need?
Because misery and hunger impelled him to steal,
although such force was not absolutely irresistible,
under No. 5 of art. 12. His condition was sufficiently
grave to drive him to take the papers, but it was not
utterly inevitable that he should do so.
The same considerations apply in regard to
uncontrollable fear of an equal or greater injury (No.
6, art. 12). The accused, desperate because of fear
that his little children would starve, stole the papers,
but his fear was not absolutely uncontrollable.
Taking irresistible force and uncontrollable fear
together, I believe that the force and the fear which
coerced the accused herein to steal are of the same
nature contemplated in Nos. 5 and 6 of art. 12, but
they are of less degree than that required for
complete exemption from criminal responsibility.
Therefore, I am of the opinion that according to No.
1 of art. 13, there is a mitigating circumstance of
incomplete exemption from criminal liability under
Nos. 5 and 6 of art. 12 of the Revised Penal Code.
I am not unmindful of the possible objection that the
doctrine herein enunciated may encourage theft and
robbery and undermines the right of property, and is
therefore revolutionary. But so long as extreme
poverty and need is not declared an exempting but
only a mitigating circumstance, the rule herein
announced is fully warranted. The crime itself is
condemned, though the punishment is tempered. It
can not be successfully contended that a mitigating
circumstance fosters crime. It is easy to understand
the conservatism of the precedents and of the
attitude of the legal profession, but considerable
water has flowed under the bridge during the last
two decades. Governments and peoples all over the
world have visualized more clearly the sufferings and
hardships of the poor. Humanitarian ideas have
loomed larger on the horizon. More and more,
legislation in all countries has been removing from
the bending backs of the underprivileged the
unbearable burdens which had been crushing and
overwhelming their existence. More and more,
lawmaking bodies throughout the world have seen
to it that the toiling masses participate, as much as
possible, in the good things of life. More and more,
legislatures have realized that extreme poverty is
brought about by general social conditions and
through no fault of the poor. More and more,
legislation has remedied the sinister state of affairs
which seemed to consider poverty a crime.
Therefore, the original interpretation of laws must
give way to a new one, which should be attuned to
the spirit of the age all over the earth. Although the
wording of the articles of the Penal Code under
discussion has not been changed, their
interpretation may be changed in order that they
may not become anachronistic. Considering that
social conditions often unfold faster than legislation,
it is a salutary function of old laws as to adjust them
to contemporary exigencies of the public weal. This
is not judicial legislation at all because the
lawmakers intended that the law which they
approved should govern for many years to come,
and that therefore it should be interpreted by the
courts in such a way as to meet new problems,
provided the fundamental objectives of the law are
distinctly kept in view. In the instant case, theft is
punished, so the principle of crime repression is
carried out; and the penalty is moderated because of
extreme poverty and need, so the idea of
punishment according to the circumstances of each
case is also recognized.
Finally, so long as there is widespread
unemployment and so long as relief work, both
private and governmental, is inadequate, the
punishment for stealing because of hunger should be
lessened, but not waived or lifted. Unless and until
there is a job for every person willing to work, to
mete out the ordinary or highest penalty for stealing
due to dire necessity flies in the face of the principle
of social justice. It is tantamount to exacting the
pound of flesh in accordance with the letter of the
law.
The foregoing considerations are strengthened by
the leeway given to the courts in determining what
in each case constitutes a mitigating circumstance by
analogy. The lawmaker, fully aware of the
impossibility of laying down an exhaustive
enumeration of circumstances that would extenuate
crime, has formulated a general statement in No. 10
of art. 13. It is thus that each case must be judged by
the courts on its own merits, the only condition
being that there must be similarity or analogy to one
or more of the nine circumstances specifically
mentioned in said art. 13. Commenting on a similar
provision of the Spanish Penal Code (No. 8, art. 9),
Groizard makes these observations:
Recuerdense una por una las siete
circunstancias atenuantes que ya llevamos
examinadas, y se advertira la exactitud de lo
que venimos diciendo. Todas y cada una son
generalizaciones y en todas se hallara que la
428 | P a g e
libertad, o la inteligencia, o la intencion
aparecen mutiladas en bastante grado para
influir en la responsabilidad de los actos
humanos. Descender a demostrar esta
verdad, lo tenemos por inutil: su evidencia
no han de ponerla en duda los que
recuerden el texto de los numeros y el
espiritu que las vivifica.
Pero ese estudio amplio, vastisimo; estudio
en el cual parece que se pierde el hombre
dentro de la humanidad; esas grandes
corrientes, puntos cardinales, moldes en
que todos se funden, aunque el legislador
crea que lo abarcan todo, podria suceder
que se equivocase, y logico en su aspiracion
de ser un reflejo de la justicia moral, al
trazar el circulo en que queda a salvo el
principio de que parte, en prevision de que
algun caso quedase sin definir y fuera de las
clasificaciones hechas, que ni por su
generalidad, ni por su alcance, pudiera
engendrar una regla de aplicacion
constante, un canon, fue preciso establecer
el unico criterio que pudiera apreciarle con
entera conciencia: aludimos al criterio de
los Tribunales.
De aqui la circunstancia 8.a, que, en rigor,
no es mas que una regla generica para todo
lo que hallandose fuera del cuadro de las
anteriormente formuladas pudiera correr
igual suerte que estas, cuando lo exigieran
igual identidad y analogia, El Codigo Penal
de 1870, Concordado y Comentado, Vol. 1,
p. 401. (Emphasis supplied).
Although perhaps many decades will have to elapse
before penal codes of the world recognize extreme
poverty and need as an exempting circumstance, yet
I believe that in the meantime it is in keeping with
the humanitarian ideas of this generation to
recognize the cruel pangs of hunger as a factor that
mitigates the penalty. Possibly the growing
atmosphere favorable to the submerged classes will
eventually uphold the stand of Judge Paul Magnaud
who about fifty years ago became popularly known
in France as the "bon judge" because of his
significant decisions acquitting those who had been
impelled to steal on account of the excruciating
tortures of hunger. Be that as it may, I am convinced
that the doctrine herein declared responds to the
heart-throbs of mankind.
All in all, I am persuaded that the principal penalty
fixed by the trial court, one month and one day of
arresto mayor, extreme poverty and need having
been considered as a mitigating circumstance by
analogy, fits the facts of the instant case.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 176102 November 26, 2014
ROSAL HUBILLA y CARILLO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
RESOLUTION
BERSAMIN, J.:
The Court recognizes the mandate of Republic Act
No. 9344 (Juvenile Justice and Welfare Act of 2006)
to protect the best interest of the child in conflict
with the law through measures that will ensure the
observance of international standards of child
protection,1 and to apply the principles of restorative
justice in all laws, policies and programs applicable
to children in conflict with the law.2 The mandate
notwithstanding, the Court will not hesitate or halt
to impose the penalty of imprisonment whenever
warranted on a child in conflict with the law.
Antecedents
The Office of the Provincial Prosecutor of Camarines
Sur charged the petitioner with homicide under the
following information docketed as Criminal Case No.
2000-0275 of the Regional Trial Court (RTC), Branch
20, in Naga City, to wit:
That on or about the 30th day of March, 2000 at
about 7:30 P.M., in Barangay Dalupaon, Pasacao,
Camarines Sur, Philippines, and within the
jurisdiction of this Honorable Court, the said
accused, with intent to kill, and without any
justifiable cause, did then and there willfully,
unlawfully and feloniously assault, attack and stab
one JAYSON ESPINOLA Y BANTA with a knife ,
inflicting upon the latter mortal wounds in his body,
thus, directly causing his death, per Death
Certification hereto attached as annex "A" and made
an integral part hereof, to the damage and prejudice
of the deceased’s heirs in such amount as may be
proven in court.
Acts Contrary to Law.3
The CA summarized the facts established by the
Prosecution and the Defense as follows: Alejandro
Dequito testified that around seven in the evening or
so of March 30, 2000, he, together with his
compadre Nicasio, was at the gate of Dalupaon
Elementary School watching the graduation
ceremony if the high school students. While
watching, his cousin Jason Espinola, herein victim,
arrived. Later, however, appellant approached the
429 | P a g e
victim and stabbed the latter. When asked to
demonstrate in open court how the appellant
stabbed the victim, this witness demonstrated that
with the appellant’s left arm around the neck of the
victim, appellant stabbed the victim using a bladed
weapon.
He aided the victim as the latter was already
struggling to his feet and later brought him to the
hospital.
Nicasio Ligadia, witness Dequito’s companion at the
time of the incident, corroborated the testimony of
Dequito on all material points.
Marlyn Espinosa, the mother of the deceased,
testified that her son was stabbed in front of the
[elementary] school and later brought to the Bicol
Medical Center. She stated that her son stayed for
more than a month in the hospital. Thereafter, her
son was discharged. Later, however, when her son
went back to the hospital for a check-up, it was
discovered that her son’s stab wound had a
complication. Her son was subjected to another
operation, but died the day after. She, further,
stated that the stabbing incident was reported to the
police authorities. She, likewise, stated the amounts
she incurred for the wake and burial of her son.
Robert Casin, the medico legal expert, testified that
the cause of death of the victim, as stated by Dr.
Bichara, his co-admitting physician, was organ failure
overwhelming infection. He, further, stated that the
underlined cause of death was a stab wound.
The appellant, in his testimony, narrates his
statement of facts in this manner:
He testified that around seven inthe evening or so of
March 30, 2000, he was at the Dalupaon High School
campus watching the high school graduation rites. At
half past seven, while walking towards the gate of
Dalupaon High School on his way home, he was
ganged up by a group of four (4) men.
The men attacked and started to box him. After the
attack he felt dizzy and fell to the ground. He was
not able to see or even recognize who attacked him,
so he proceeded home. Shortly after leaving the
campus, however, he met somebody whom he
thought was one of the four men who ganged up on
him. He stabbed the person with the knife he was,
then, carrying. When asked why he was in
possession of a knife, he stated that he used it in
preparing food for his friend, Richard Candelaria,
who was graduating that day. He went home after
the incident.
While inside his house, barangay officials arrived,
took him and brought him to the barangay hall, and
later to the Pasacao PNP. On his way to the town
proper, he came to know that the person he stabbed
was Jason Espinola. He felt sad after hearing it.4
Judgment of the RTC
After trial, the RTC rendered its judgment finding the
petitioner guilty of homicide as charged, and
sentenced him to suffer the indeterminate penalty
of imprisonment for four years and one day of
prision correccional, as minimum, to eight years and
one day of prision mayor, as maximum; and to pay
to the heirs of the victim ₱81,890.04 as actual
damages for medical and funeral expenses, and
₱50,000.00 as moral damages.5
Decision of the CA
On appeal, the Court of Appeals (CA) affirmed the
petitioner’s conviction but modified the penalty and
the civil liability through the decision promulgated
on July 19, 2006,6 disposing thus: WHEREFORE,
premises considered, the decision of the Regional
Trial Court of Naga City, Branch 20, in Criminal Case
Number 2000-0275, finding appellant Rosal Hubilla y
Carillo, guilty beyond reasonable doubt of Homicide
is, hereby, AFFIRMED with MODIFICATIONS.
Appellants (sic) sentence is reduced to six months
and one day to six years of prision correccionalas
minimum, to six years and one day to twelve years of
prision mayor as maximum.
The civil aspect of the case is MODIFIED to read: The
award of actual damages in the amount of Php
81,890.04, representing expenses for medical and
funeral services, is reduced to Php 16,300.00. A civil
indemnity, in the amount of Php 50,000.00, is
awarded to the legal heirs of the victim Jason
Espinola. Weaffirm in all other respects.
SO ORDERED.
On motion for reconsideration by the petitioner, the
CA promulgated its amended decision on December
7, 2006, decreeing as follows:7
WHEREFORE, the instant Motion for Reconsideration
is PARTIALLY GRANTED. Our decision promulgated
on July 16, 2006, which is the subject of the instant
motion is, hereby AMENDED such that the judgment
shall now read as follows:
WHEREFORE, premises considered, the decision of
the Regional Trial Court of Naga City, Branch 20, in
Criminal Case Number 2000-0275, finding appellant
Rosal Hubilla y Carillo, guilty beyond reasonable
doubt of Homicide is, hereby, AFFIRMED with
MODIFICATIONS. Appellant is sentenced to an
indeterminate penalty of six months and one day of
prision correccional, as minimum, to eight (8) years
and one (1) day of prision mayor.
430 | P a g e
The civil aspect of the case is MODIFIED to read: The
award of actual damages in the amount of Php
81,890.04, representing expenses for medical and
funeral services, is reduced to Php 16,300.00. A civil
indemnity, in the amount of Php 50,000.00, is
awarded to the legal heirs of the victim Jason
Espinola. We affirm in all other respects.
The case is, hereby, remanded to the Regional Trial
Court of Naga, Branch 20, for appropriate action on
the application for probation of, herein, appellant.
SO ORDERED.
Issues
The petitioner has come to the Court imputing grave
error to the CA for not correctly imposing the
penalty, and for not suspending his sentence as a
juvenile in conflict with the law pursuant to the
mandate of Republic Act No. 9344. In fine, he no
longer assails the findings of fact by the lower courts
as well as his conviction, and limits his appeal to the
following issues, namely: (1) whether or not the CA
imposed the correct penalty imposable on him
taking into consideration the pertinent provisions of
Republic Act No. 9344, the Revised Penal Codeand
Act No. 4103 (Indeterminate Sentence Law); (2)
whether or not he was entitled to the benefits of
probation and suspension of sentence under
Republic Act No. 9344; and (3) whether or not
imposing the penalty of imprisonment contravened
the provisions of Republic Act No. 9344 and other
international agreements.
Ruling of the Court
Article 249 of the Revised Penal Code prescribes the
penalty of reclusion temporalfor homicide.
Considering that the petitioner was then a minor at
the time of the commission of the crime, being 17
years, four months and 28 days old when he
committed the homicide on March 30, 2000,8 such
minority was a privileged mitigating circumstance
that lowered the penalty to prision mayor.9
Under the Indeterminate Sentence Law, the
minimum of the indeterminate sentence should be
within the penalty next lower than the imposable
penalty, which, herein, was prision correccional (i.e.,
six months and one day to six years). For the
maximum of the indeterminate sentence, prision
mayor in its medium period – eight years and one
day to 10 years – was proper because there were no
mitigating or aggravating circumstances present.
Accordingly, the CA imposed the indeterminate
penalty of imprisonment of six months and one day
of prision correccional, as minimum, to eight years
and one day of prision mayor, as maximum.
The petitioner insists, however, that the maximum of
his indeterminate sentence of eight years and one
day of prison mayor should be reduced to only six
years of prision correccional to enable him to apply
for probation under Presidential Decree No. 968.
The petitioner’s insistence is bereft of legal basis.
Neither the Revised Penal Code, nor Republic Act No.
9344, nor any other relevant law or rules support or
justify the further reduction of the maximum of the
indeterminate sentence. To yield to his insistence
would be to impose an illegal penalty, and would
cause the Court to deliberately violate the law.
A.M. No. 02-1-18-SC10 (Rule on Juveniles in Conflict
with the Law) provides certain guiding principles in
the trial and judging in cases involving a child in
conflict with the law. One of them is that found in
Section 46 (2), in conjunction with Section 5 (k),
whereby the restrictions on the personal liberty of
the child shall be limited to the
minimum.11 Consistent with this principle, the
amended decision of the CA imposed the ultimate
minimums of the indeterminate penalty for
homicide under the Indeterminate Sentence Law. On
its part, Republic Act No. 9344 nowhere allows the
trial and appellate courts the discretion to reduce or
lower the penalty further, even for the sake of
enabling the child in conflict with the law to qualify
for probation.
Conformably with Section 9(a) of Presidential Decree
968,12 which disqualifies from probation an offender
sentenced to serve a maximum term of
imprisonment of more than six years, the petitioner
could not qualify for probation. For this reason, we
annul the directive of the CA to remand the case to
the trial court to determine if he was qualified for
probation.
Although Section 38 of Republic Act No. 9344 allows
the suspension of the sentence of a child in conflict
with the law adjudged as guilty of a crime, the
suspension is available only until the child offender
turns 21 years of age, pursuant to Section 40 of
Republic Act No. 9344, to wit:
Section 40. Return of the Child in Conflict with the
Law to Court.– If the court finds that the objective of
the disposition measures imposed upon the child in
conflict with the law have not been fulfilled, or if the
child in conflict with the law has wilfully failed to
comply with the conditions of his/her disposition or
rehabilitation program, the child in conflict with the
law shall be brought before the court for execution
of judgment.
If said child in conflict with the law has reached
eighteen (18) years of age while under suspended
sentence, the court shall determine whether to
discharge the child in accordance with this Act, to
order execution of sentence, or to extend the
suspended sentence for a certain specified period or
431 | P a g e
until the child reaches the maximum age of twenty-
one (21) years.
We note that the petitioner was well over 23 years
of age at the time of his conviction for homicide by
the RTC on July 19, 2006. Hence, the suspension of
his sentence was no longer legally feasible or
permissible.
Lastly, the petitioner posits that condemning him to
prison would be in violation of his rights as a child
inconflict with the law as bestowed by Republic Act
No. 9344 and international agreements.1avvphi1 A
review of the provisions of Republic Act No. 9344
reveals, however, that imprisonment of children in
conflict with the law is by no means prohibited.
While Section 5 (c) of Republic Act No. 9344 bestows
on children in conflict with the law the rightnot to be
unlawfully or arbitrarily deprived of their liberty;
imprisonment as a proper disposition of a case is
duly recognized, subject to certain restrictions on the
imposition of imprisonment, namely: (a) the
detention or imprisonment is a disposition of last
resort, and (b) the detention or imprisonment shall
be for the shortest appropriate period of
time.Thereby, the trial and appellate courts did not
violate the letter and spirit of Republic Act No. 9344
by imposing the penalty of imprisonment on the
petitioner simply because the penalty was imposed
as a last recourse after holding him to be disqualified
from probation and from the suspension of his
sentence, and the term of his imprisonment was for
the shortestduration permitted by the law.
A survey of relevant international
agreements13 supports the course of action taken
herein. The United Nations Standard Minimum Rules
for the Administration of Juvenile Justice (Beijing
Guidelines),14 the United Nations Guidelines for the
Prevention of Juvenile Delinquency (Riyadh
Guidelines) and the United Nations Rules for the
Protection of Juveniles Deprived of Liberty15 are
consistent in recognizing that imprisonment is a valid
form of disposition, provided it is imposed asa last
resort and for the minimum necessary period.
Lastly, following Section 51 of Republic Act No. 9344,
the petitioner, although he has to serve his sentence,
may serve it in an agricultural camp or other training
facilities to be established, maintained, supervised
and controlled by the Bureau of Corrections, in
coordination with the Department of Social Welfare
and Development, in a manner consistent with the
offender child’s best interest. Such service of
sentence will be in lieu of service in the regular penal
institution.
WHEREFORE, the Court DENIES the petition for
review on certiorari; AFFIRMS the amended decision
promulgated on December 7, 2006 in C.A.-G.R. CR
No. 29295, but DELETING the order to remand the
judgment to the trial court for implementation; and
DIRECTS the Bureau of Corrections to commit the
petitioner for the service of his sentence in an
agricultural camp or other training facilities under its
control, supervision and management, in
coordination with the Department of Social Welfare
and Development.
No pronouncement on costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
Republic of the Philippines
SUPREME COURT
Manila
 FIRST DIVISION
G.R. No. L-47941 April 30, 1985
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JAIME TOMOTORGO y ALARCON, defendant-
appellant.
ALAMPAY, J.:
Jaime Tomotorgo y Alarcon, the accused-appellant in
this case, appeals from the decision rendered on
December 22, 1977, by the Court of First Instance of
Camarines Sur, Branch IV, in Criminal Case No. 403 of
said court finding him guilty of the crime of parricide
for having killed his wife Magdalena de los Santos.
The dispositive portion of said judgment reads, as
follows:
WHEREFORE, in view of the
foregoing considerations, the
accused Jaime Tomotorgo y
Alarcon is hereby condemned to
suffer the penalty of reclusion
perpetua and to indemnify the
heirs of the deceased Magdalena
delos Santos in the sum of
P12,000.00 without subsidiary
imprisonment, plus costs. And
considering the circumstances
under which the offense was
committed, the court hereby
recommends executive clemency
for him, after serving the minimum
of the medium penalty of prision
mayor.
432 | P a g e
Let copy of this decision be
furnished, his Excellency, the
President of the Philippines, and
the Chairman of the Board of
Pardons and Parole.
SO ORDERED.
Given at Naga City, this 22nd day
of December, 1977.
SGD. ALFREDO S. REBUENA
Judge (Rollo, pg. 10)
The facts of this case as recited in the decision of the
trial court and in the appellee's brief stand
uncontroverted and undisputed. From the evidence
submitted it is disclosed that the victim, Magdalena
de los Santos, was the wife of the herein accused.
Several months prior to the occurrence of the fatal
incident on June 23, 1977, Magdalena de los Santos
had been persistently asking her husband to sell the
conjugal home which was then located at Sitio
Dinalungan, Barangay Cabugao, Municipality of
Siruma, Camarines Sur. She wanted their family to
transfer to the house of her husband's in-laws which
is in the town of Tinambac, Camarines Sur. (TSN, pp.
6-10, December 13, 1977). Accused Tomotorgo
would not accede to his wife's request. He did not
like to abandon the house wherein he and his wife
were then living. Furthermore, he had no inclination
to leave because he has many plants and
improvements on the land which he was then
farming in said municipality of Siruma, Camarines
Sur, a town very far from the place of his in-laws
where his wife desired their family to transfer to.
On June 23, 1977, at about seven o'clock in the
morning, the accused left his home to work on his
farm Upon his return at about nine o'clock that same
morning. He found his wife and his three-month old
baby already gone. He proceeded to look for both of
them and sometime later on, on a trail about two
hundred (200) meters from their home, he finally
saw his wife carrying his infant son and bringing a
bundle of clothes. He asked and pleaded with his
wife that she should return home with their child but
she adamantly refused to do so. When appellant
sought to take the child from his wife, the latter
threw the baby on the grassy portion of the trail
hereby causing the latter to cry. This conduct of his
wife aroused the ire of the herein accused. Incensed
with wrath and his anger beyond control, appellant
picked lip a piece of wood nearby and started hitting
his wife with it until she fell to the ground
complaining of severe pains on her chest. Realizing
what he had done, the accused picked his wife in his
arms and brought her to their home. He then
returned to the place where the child was thrown
and he likewise took this infant home. Soon
thereafter, Magdalena de los Santos died despite the
efforts of her husband to alleviate her pains.
After the accused changed the dress of his wife, he
reported the tragic incident to the Barangay Captain
of their place who brought him to Policeman
Arellosa to whom the accused surrendered. He also
brought with him the piece of wood he used in
beating his wife.
Charged with the crime of parricide, the accused at
his arraignment on November 24, 1977, with
assistance from his counsel de-oficio, pleaded not
guilty to the said offense. However, when his case
was called for trial on December 13, 1977, his
counsel manifested to the court that after his
conference with the accused, the latter expressed a
desire to change his previous plea of not guilty to
that of guilty. Accordingly, and upon motion by the
counsel of the accused and without objection on the
part of the prosecution, the trial court allowed the
accused to withdraw his original plea. Upon being re-
arraigned, the accused entered a plea of guilty. He
confirmed the manifestations made by his counsel to
the court regarding his desire to change his initial
plea. He expressed his realization of the gravity of
the offense charged against him and the
consequences of his plea. His counsel was then
permitted by the court to establish the mitigating
circumstances which were then invoked in favor of
the accused.
After the accused had testified and upon his plea
given in open court, the court below found him
guilty of the crime of parricide, but with three
mitigating circumstances in his favor, namely:
voluntary surrender, plea of guilty, and that he acted
upon an impulse so powerful as naturally to have
produced passion and obfuscation.
With the imposition by the court below of the
penalty of reclusion perpetua on the herein accused
and the subsequent denial of his motion for
reconsideration of the judgment rendered against
him, the accused through his counsel filed a notice of
appeal to this Court.
In his appeal, accused argues and contends that the
lower court erred:
1. In disregarding its own findings
of fact which showed manifest lack
of intent to kill;
2. In disregarding the provisions of
Article 49 of the Revised Penal
Code which prescribes the proper
applicable penalty where the crime
committed is different from that
intended;
433 | P a g e
3. In not following the mandatory
sequence of procedures for
determining the correct applicable
penalty;
4. In denying the appellant the
benefits of the Indeterminate
Sentence Law. (Appellant's Brief,
pg. 1, pars. 1-4)
We find no merit in the appeal of the accused herein
which assails only the correctness of the penalty
imposed by the trial court on him.
Appellant submits that the penalty for the felony
committed by him which is parricide being higher
than that for the offense which he intended to
commit, and which he avers to be that of physical
injuries only, the provisions of Article 49 of the
Revised Penal Code which relate to the application
of penalties should have been observed and
followed by the trial court. The said provision of law
which accused invokes provides that:
ART. 49. Penalty to be imposed
upon the principals when the crime
committed is different from that
intended in cases in which the
felony committed is different from
that which the offender intended
to commit, the following rules shag
be observed;
1. If the penalty prescribed for the
felony committed be higher than
that corresponding to the offense
which the accused intended to
commit, the penalty corresponding
to the latter shall be imposed in its
maximum period.
xxx xxx xxx
Continuing, appellant argues in his appeal brief
submitted to this Court, that:
xxx xxx xxx
The felony actually committed,
parricide. has a higher penalty
(reclusion perpetua to death) than
the felony intended, qualified
physical injuries (reclusion
temporal medium and maximum).
Hence, since the penalty
corresponding to the felony
intended shall be imposed in its
maximum period, the prescribed
penalty is therefore reclusion
temporal maximum. This is a
divisible penalty.
Under Article 64, sub-par. 5, of the
Penal Code,
When there are two or more
mitigating circumstances and no
aggravating circumstances are
present, the court shall impose the
penalty next lower to that
prescribed by law, in the period
that it may deem applicable,
according to the number and
nature of such circumstances.
The trial court itself found "that
the accused is entitled to three (3)
mitigating circumstances with no
aggravating circumstances,
namely: voluntary surrender, plea
of guilty, and obfuscation. We
submit that the plea of guilty,
 which, as we had shown earlier,
was improvidently made, should
no longer be considered. This
leaves only two mitigating with no
aggravating. Sufficient compliance
with the law. Hence, an automatic
lowering of the penalty by one
degree, or to reclusion temporal
medium This being a case where a
period constitutes the entire range
of the penalty prescribed, and
therefore, also a degree.
(Appellant's Brief, pp. 8-9)
Appellant maintains the belief that he should be
punished only for the offense he intended to commit
which he avers to be serious physical injuries,
qualified by the fact that the offended party is his
spouse. Pursuant to the sub-paragraph of paragraph
4 of Art. 263 of the Revised Penal Code and as his
wife is among the persons mentioned in Art. 246 of
the same code, appellant contends that the penalty
imposable should then be reclusion temporal in its
medium and maximum periods. On this mistaken
premise, appellant therefore claims that the penalty
prescribed by law for his offense is divisible and he
should thus be entitled to the benefits of the
Indeterminate Sentence Law.
These contentions of the accused are manifestly
untenable and incorrect. Article 4 of the Revised
Penal Code expressly states that criminal liability
shall be incurred by any person committing a felony
(delito) although the wrongful act be different from
that which he intended and that the accused is liable
for all the consequences of his felonious acts.
The reference made by the accused to Article 263 of
the Revised Penal Code which prescribes graduated
penalties for the corresponding physical injuries
committed is entirely misplaced and irrelevant
434 | P a g e
considering that in this case the victim died very
soon after she was assaulted. It will be, therefore,
illogical to consider appellant's acts as falling within
the scope of Article 263 of the Revised Penal Code.
The crime committed is parricide no less.
We are in complete accord with and we sustain the
ruling made by the courts below that the accused is
not entitled to the benefits of the Indeterminate
Sentence Law. The court sustains the submissions of
the appellee that —
... Article 49 of the Revised Penal
Code does not apply to cases
where more serious consequences
not intended by the offender result
from his felonious act because,
under Article 4, par. I of the same
Code, he is liable for all the direct
and natural consequences of his
unlawful act. His lack of intention
to commit so grave a wrong is, at
best mitigating (Article 13, par. 3).
Article 49 applies only to cases
where the crime committed is
different from that intended and
where the felony committed
befalls a different person (People
vs. Albuquerque, 59 Phil. 150).
Article 246 of the Revised Penal
Code punished parricade with the
penalty of reclusion perpetua to
death, which are two indivisible
penalties. As the commission of
the act was attended by
mitigitating circumstances with no
aggravating circumstances, the
lesser penalty, which is reclusion
perpetua, should be imposed
(People vs. Laureano, et al., 71 Phil.
530; People vs. Francisco, 78 Phil.
697; People vs. Belarmino, 91 Phil.
118) Appellee's Brief, pp. 6-7).
(Emphasis supplied)
We hold that the fact that the appellant intended to
maltreat the victim only or inflict physical imjuries
does not exempt him from liability for the resulting
and more serious crime committed. In the case of
People vs. Climaco Demiar, 108 Phil. 651, where the
accused therein had choked his mother in a fit of
anger because the latter did not prepare any food
for him, it was ruled that hte crime committed by
Demiar is parricide (Article 246, Revised Penal Code),
the deceased victim of his criminal act being his
legitimate mother. Said crime was declared as
punishable with reclusion perpetua to death. As the
mitigating circumstance of alck of intent to commit
so grave a wrong. (Article 13 (3 Id.) The penalty
imposed on the herein accused is therefore correct
in the light of the relevant provisions of law and
jurisprudence.
The trial court in its consideration of this case had
added a recommendation that "executive clemency
be extended to the accused-appellant after his
service of the minimum of the medium penalty of
prison mayor." The Solicitor General likewise
concludes and prays in the People's Brief that in view
of the circumstances which attended the
commission of the offense, a recommendation for
the commutation of the penalty would be
appropriate. (Appellee's Brief, pg. 7). This Court is
constrained to take note that the accused-appellant
is said to have been in detention since June 23, 1977
or for more than seven years already. This Court can
do no less than express its hope that hte accused-
appellant can be now extended an absolute or
conditional pardon by the President of the Republic
of the Philippines or that there be a commutation of
his sentence so that he may qualify and be eligible
for parole.
WHEREFORE, the appealed judgment is hereby
affirmed without any pronouncement as to costs.
Considering the circumstances which attended the
commission of the offense, the manifest repentant
attitude of the accused and his remorse for his act
which even the trial court made particular mention
of in its decision and the recommendation made by
the Office of the Solicitor General as well as number
of years that the accused-appellant had been
imprisoned, this Court can do no less than
recommend that executive clemency be extended to
the accused-appellant, Jaime Tomotorgo y Alarcon,
or that his sentence be commuted so that he can
now qualify and be considered eligible for parole.
This recommendation of the Court should be
promptly brought to the attention of the President
of the Republic of the Philippines by the proper
authorities in whose custody the herein accused has
been placed.
Aside from this, let copy of this decision be furnished
the Office of the President of the Republic of the
Philippines and the Chairman of the Board of
Pardons and Parole.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana,
Relova, Gutierrez, Jr. and De la Fuente, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
435 | P a g e
G.R. No. 213792 June 22, 2015
GUILLERMO WACOY y BITOL, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent,
x-----------------------x
G.R. No. 213886
JAMES QUIBAC y RAFAEL, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERLAS-BERNABE, J.:
Assailed in these consolidated petitions for review
on certiorari1 are the Decision2 dated December 6,
2013 and the Resolution3 dated July 21, 2014 of the
Court of Appeals (CA) in CA-G.R. CR No. 34078,
which, inter alia, found petitioners Guillermo Wacoy
y Bitol (Wacoy) and James Quibac Rafael (Quibac)
guilty beyond reasonable doubt of the crime of
Homicide.
The Facts
In an Information dated June 10, 2004, Wacoy and
Quibac were charged with the crime of Homicide,
defined and penalized under Article 249 of the
Revised Penal Code (RPC), before the Regional Trial
Court of Benguet, Branch 10 (RTC), as follows:
That on or about the 11th day of April 2004, at
Ambongdolan, Municipality of Tublay, Province of
Benguet, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused,
conspiring, confederating and mutually aiding each
other, with intent to kill, did then and there willfully,
unlawfully and feloniously attack, assault, maul and
kick the stomach of one ELNER ARO y LARUAN,
thereby inflicting upon him blunt traumatic injuries
which directly caused his death thereafter.
That the offense committed was attended by the
aggravating circumstance of superior strength.
CONTRARY TO LAW.4
According to prosecution witness Edward Benito
(Benito), at around 3 o'clock in the afternoon of April
11, 2004, he was eating corn at a sari-sari store
located at Bungis Ambongdolan, Tublay, Benguet,
when he heard a commotion at a nearby
establishment. Upon checking what the ruckus was
all about, he saw his cousin, Elner Aro (Aro), already
sprawled on the ground. While in that position, he
saw Wacoy kick Aro's stomach twice, after which,
Wacoy picked up a rock to throw at Aro but was
restrained from doing so. As Aro stood up, Quibac
punched him on the stomach, causing him to
collapse and cry in pain. Thereafter, Aro was taken to
the hospital.5
At the hospital, Aro was diagnosed to be suffering
from "blunt abdominal trauma with injury to the
jejunum" and was set for operation. It was then
discovered that he sustained a perforation on his
ileum, i.e., the point where the small and large
intestines meet, that caused intestinal bleeding, and
that his entire abdominal peritoneum was filled with
air and fluid contents from the bile. However, Aro
suffered cardiac arrest during the operation, and
while he was revived through cardiopulmonary
resuscitation, he lapsed into a coma after the
operation.6
Due to financial constraints, Aro was taken out of the
hospital against the doctor's orders and eventually,
died the next day. While Aro's death certificate
indicated that the cause of his
death was "cardiopulmonary arrest antecedent to a
perforated ileum and generalized peritonitis
secondary to mauling," an autopsy performed on his
remains revealed that the cause of his death was
"rupture of the aorta secondary to blunt traumatic
injuries."7
In their defense, herein petitioners, Wacoy and
Quibac, denied the charge against them. They
averred that while playing pool, they saw Aro drunk
and lying down. Suddenly, Aro became unruly and
kicked the leg of the pool table, causing Wacoy to
shout and pick up a stone to throw at Aro but Quibac
pacified him. They also claimed that Aro almost hit
Wacoy with a 2x3 piece of wood if not for Quibac' s
intervention. Wacoy ran but Aro chased him and
then tripped and fell to the ground. Quiniquin Carias
(Kinikin), Aro's companion, followed Wacoy to the
waiting shed nearby, cornered and kicked the latter,
and the two engaged in a fist fight. Quibac came
over to pacify the two and told Wacoy to go home.8
The RTC Ruling In a Judgment9 dated February 28,
2011, the RTC found Wacoy and Quibac guilty
beyond reasonable doubt of the crime of Death
Caused in a Tumultuous Affray under Article 251 of
the RPC and, accordingly, sentenced them to suffer
the penalty of imprisonment for an indeterminate
period of six (6) months and one (1) day of prision
correccional, as minimum, to eight (8) years and one
(1) day of prision mayor , as maximum, and ordered
them to pay Aro's heirs the amounts of ₱25,000.00
as temperate damages, ₱50,000.00 as civil indemnity
ex delicto, and ₱50,000.00 as moral damages.10
The RTC found that Benito's testimony on the
mauling incident does not firmly establish that
Wacoy and Quibac conspired in the killing of Aro,
436 | P a g e
and that the medical reports were neither
categorical in stating that the injuries Aro sustained
from the mauling directly contributed to his death. 11
In this relation, it opined that "[a]s conspiracy was
not proven and the prosecution has failed to show
the extent and effect of injury [that Wacoy and
Quibac] personally inflicted on [Aro] that led to his
death xx x," Wacoy and Quibac should be held
criminally liable for the crime of Death Caused in a
Tumultuous Affray and not for Homicide. 12
Aggrieved, Wacoy and Quibac appealed to the CA.13
The CA Ruling
In a Decision14 dated December 6, 2013, the CA
modified Wacoy and Quibac's conviction to that of
Homicide under A1iicle 249 of the RPC with the
mitigating circumstance of lack of intent to commit
so grave a wrong, and accordingly adjusted their
prison term to an indeterminate period of six (6)
years and one (1) day of prision mayor, as minimum,
to twelve (12) years and one ( 1) day of reclusion
temporal, as maximum. Further, the CA also
imposed a legal interest of six percent ( 6%) per
annum on the damages awarded by the RTC
pursuant to prevailing jurisprudence.15
In so ruling, the CA gave credence to Benito's simple,
direct, and straightforward testimony. In this
relation, it observed that the mere fact that Benito is
Aro's cousin should not militate against his credibility
since there was no proof that his testimony was
driven by any ill motive.16 However, contrary to the
RTC's findings, the CA ruled that Wacoy and Quibac
should not be convicted of the crime of Death
Caused in a Tumultuous Affray since there were only
(2) persons who inflicted harm on the victim, and
that there was no tumultuous affray involving
several persons. Instead, they were convicted of the
crime of Homicide, with the mitigating circumstance
of lack of intent to commit so grave a wrong
appreciated as it was shown that the purpose of
their assault on Aro was only to maltreat or inflict
physical harm on him.17
Aggrieved, Wacoy and Quibac separately moved for
reconsideration. 18 In a Resolution19 dated July 21,
2014, the CA denied Quibac's motions for
reconsideration;20 hence, the instant petitions.
The Issue Before the Court
The core issue for the Court's resolution is whether
or not the CA correctly found Wacoy and Quibac
guilty beyond reasonable doubt of the crime of
Homicide.
The Court's Ruling
The petition is without merit.
At the outset, it must be stressed that in criminal
cases, an appeal throws the entire case wide open
for review and the reviewing tribunal can correct
errors, though unassigned in the appealed judgment,
or even reverse the trial court's decision based on
grounds other than those that the parties raised as
errors. The appeal confers upon the appellate court
full jurisdiction over the case and renders such court
competent to examine records, revise the judgment
appealed from, increase the penalty, and cite the
proper provision of the penal law.21
Proceeding from the foregoing, the Court agrees
with the CA's ruling modifying Wacoy and Quibac' s
conviction from Death Caused in a Tumultuous
Affray to that of Homicide, as will be explained
hereunder.
Article 251 of the RPC defines and penalizes the
crime of Death Caused in a Tumultuous Affray as
follows:
Art. 251. Death caused in a tumultuous affray. -
When, while several persons, not composing groups
organized for the common purpose of assaulting and
attacking each other reciprocally, quarrel and assault
each other in a confused and tumultuous manner,
and in the course of the affray someone is killed, and
it cannot be ascertained who actually killed the
deceased, but the person or persons who inflicted
serious physical injuries can be identified, such
person or persons shall be punished by prision
mayor.
If it cannot be determined who inflicted the serious
physical injuries on the deceased, the penalty of
prision correccional in its medium and maximum
periods shall be imposed upon all those who shall
have used violence upon the person of the victim.
The elements of Death Caused in a Tumultuous
Affray are as follows: (a) that there be several
persons; (b) that they did not compose groups
organized for the common purpose of assaulting and
attacking each other reciprocally; (c) that these
several persons quarrelled and assaulted one
another in a confused and tumultuous manner; (d)
that someone was killed in the course of the affray;
(e) that it cannot be ascertained who actually killed
the deceased; and (j) that the person or persons who
inflicted serious physical injuries or who used
violence can be identified.22 Based on case law, a
tumultuous affray takes place when a quarrel occurs
between several persons and they engage in a
confused and tumultuous affray, in the course of
which some person is killed or wounded and the
author thereof cannot be ascertained.23
437 | P a g e
On the other hand, the crime of Homicide is defined
and penalized under Article 249 of the RPC, which
reads:
Art. 249. Homicide. - Any person who, not falling
within the provisions of Article 246, shall kill another,
without the attendance of any of the circumstances
enumerated in the next preceding article, shall be
deemed guilty of homicide and be punished by
reclusion temporal. The elements of Homicide are
the following: (a) a person was killed; (b) the accused
killed him without any justifying circumstance; (c)
the accused had the intention to kill, which is
presumed; and (d) the killing was not attended by
any of the qualifying circumstances of Murder, or by
that of Parricide or Infanticide.24
In the instant case, there was no tumultuous affray
between groups of persons in the course of which
Aro died.1âwphi1 On the contrary, the evidence
clearly established that there were only two (2)
persons, Wacoy and Quibac, who picked on one
defenseless individual, Aro, and attacked him
repeatedly, taking turns in inflicting punches and
kicks on the poor victim. There was no confusion and
tumultuous quarrel or affray, nor was there a
reciprocal aggression in that fateful incident.25 Since
Wacoy and Quibac were even identified as the ones
who assaulted Aro, the latter's death cannot be said
to have been caused in a tumultuous
affray.26 Therefore, the CA correctly held that Wacoy
and Quibac' s act of mauling Aro was the proximate
cause27 of the latter's death; and as such, they must
be held criminally liable therefore, specifically for the
crime of Homicide.
On this note, the Court does not find merit in
Wacoy's contention that in view of their intent only
to inflict slight physical injuries on Aro, they should
only be meted the corresponding penalty therefore
in its maximum period,28 pursuant to Article 49 of
the RPC. The said provision reads:
Art. 49. Penalty to be imposed upon the principals
when the crime committed is different from that
intended. - In cases in which the felony committed is
different from that which the offender intended to
commit, the following rules shall be observed.
1. If the penalty prescribed for the felony
committed be higher than that
corresponding to the offense which the
accused intended to commit, the penalty
corresponding to the latter shall be imposed
in its maximum period.
2. If the penalty prescribed for the felony
committed be lower than that
corresponding to the one which the accused
intended to commit, the penalty for the
former shall be imposed in its maximum
period.
3. The rule established by the next
preceding paragraph shall not be applicable
if the acts committed by the guilty person
shall also constitute an attempt or
frustration of another crime, if the law
prescribes a higher penalty for either of the
latter offenses, in which case the penalty
provided for the attempt or the frustrated
crime shall be imposed in the maximum
period.
Jurisprudence instructs that such provision should
only apply where the crime committed is different
from that intended and where the felony committed
befalls a different person (error in personae); and
not to cases where more serious consequences not
intended by the offender result from his felonious
act (praeter intentionem),29
as in this case. It is well-settled that if the victim dies
because of a deliberate act of the malefactors, intent
to kill is conclusively presumed.30 In such case, even
if there is no intent to kill, the crime is Homicide
because with respect to crimes of personal violence,
the penal law looks particularly to the material
results following the unlawful act and holds the
aggressor responsible for all the consequences
thereof.31
Be that as it may, the penalty for the crime of
Homicide must be imposed in its minimum period
due to the presence of the mitigating circumstance
of lack of intention to commit so grave a wrong
under Article 13 (3) of the RPC in favor of Wacoy and
Quibac, as correctly appreciated by the CA. In
determining the presence of this circumstance, it
must be considered that since intention is a mental
process and is an internal state of mind, the
accused's intention must be judged by his conduct
and external overt acts.32 In this case, the aforesaid
mitigating circumstance is available to Wacoy and
Quibac, given the absence of evidence showing that,
apart from kicking and punching Aro on the stomach,
something else had been done; thus, evincing the
purpose of merely maltreating or inflicting physical
harm, and not to end the life of Aro.
Anent the proper penalty to be imposed on Wacoy
and Quibac, the CA correctly imposed the penalty of
imprisonment for an indeterminate period of six ( 6)
years and one ( 1) day of prision mayor, as minimum,
to twelve (12) years and one (1) day of reclusion
temporal, as maximum, taking into consideration the
provisions of the Indeterminate Sentence Law.
Finally, the awards of civil indemnity and moral
damages in the original amount of ₱50,000.00 each
are increased to ₱75,000.00 each in order to
conform with prevailing jurisprudence.33 All other
awards, as well as the imposition of interest at the
438 | P a g e
rate of six percent ( 6%) per annum on all the
monetary awards from the date of finality of
judgment until the same are fully paid, are retained.
WHEREFORE, the petition is DENIED. The Decision
dated December 6, 2013 and the Resolution dated
July 21, 2014 of the Court of Appeals in CA-G.R. CR
No. 34078 are hereby AFFIRMED with
MODIFICATION. Accordingly, petitioners Guillermo
Wacoy y Bitol and James Quibac y Rafael are found
GUILTY beyond reasonable doubt of the crime of
Homicide defined and penalized under Article 249 of
the Revised Penal Code with the mitigating
circumstance of lack of intent to commit so grave a
wrong under Article 13 (3) of the same Code. They
are sentenced to suffer the penalty of imprisonment
for an indeterminate period of six ( 6) years and one
(1) day of prision mayor, as minimum, to twelve (12)
years and one (1) day of reclusion temporal, as
maximum, and ordered to pay the heirs of Elner Aro
the amounts of ₱25,000.00 as temperate damages,
₱75,000.00 as civil indemnity ex delicto, and
₱75,000.00 as moral damages, all with interest at
the rate of six percent (6%) per annum from the
finality of this Decision until fully paid.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice
November 29, 2017
G.R. No. 193085
PETRONILO NAPONE, JR. and EDGAR
NAPONE, Petitioners
vs.
PEOPLE OF THE PHILIPPINES, Respondent
DECISION
MARTIRES, J.:
This is a petition for review seeking the reversal of
the 9 December 2009 Decision1 and 21 July 2010
Resolution2 of the Court of Appeals (CA) in CA-G.R.
CR No. 00384 which affirmed with modification the
14 November 2006 Decision3 of the Regional Trial
Court, Branch 11, Manolo Fortich, Bukidnon (RTC), in
Criminal Case No. 1190 finding accused-appellants
Petronilo Napone, Jr. (Junior) and Edgar
Napone (Edgar) guilty of the crime of homicide.
THE FACTS
Junior and Edgar, together with their father,
Petronilo Napone, Sr. (Senior; collectively, the
Napones), were charged with the crime of murder
for the death of Salvador Espelita (Salvador) under
an information, dated 13 November 1992, the
accusatory portion of which reads:
That on or about the 22nd day of September, 1992,
in the evening at [B]arangay Mabunga, [M]unicipality
of Baungon, [P]rovince of Bukidnon, Philippines, and
within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating
and mutually helping one another, with intent to kill,
by means of treachery and superior strength, armed
with a bolo, firearm and stone, did then and there
willfully, unlawfully and criminally attack, hack, shoot
and throw stone at SALVADOR ESPELITA, inflicting
mortal wounds to wit:
- Hack wounds, frontal left side of the head, (1) 4 x 1
cm. (2) 2.5 x 1 cm. (3) 3.5 cm. (4) 1 cm. - Gunshot
wound, left chest measuring 8cm. in diameter, 2
inches from the midline, at the 4th intercostal space
[surrounded] by contusion collar, directed straight
forward penetrating [and] perforating the left
ventricle thru [and] thru, traversing towards the
right piercing the intervertebral muscle at the back
at the level 5th inter space 4 inches from the
vertebral column.
that caused his death thereafter.
To the damage and prejudice [of] the heirs of the
deceased SALVADOR ESPELITA in such sum they are
entitled to under the law.
Contrary to and in violation of Article 248 of the
Revised Penal Code.4
On 4 May 1993, the Napones were arraigned and
pleaded not guilty.5 Trial ensued.
On 17 January 2005, the trial court ordered the
dismissal of the case against Senior due to his death
on 8 October 2003, a month after he completed his
testimony.
Evidence for the Prosecution
The prosecution anchored mainly on the testimonies
of three (3) witnesses, namely: Jocelyn
Janioso (Janioso), Dante Sadaya (Sadaya), Janioso's
storekeeper, and Dr. Apolinar Vacalares, M.D. (Dr.
Vacalares), the medico-legal officer who conducted
the post-mortem examinations on Salvador's
cadaver. Their combined testimonies tended to
establish the following:
On 22 September 1992, at about 8:00 o'clock in the
evening, at Barangay Mabunga, Municipality of
Baungon, Province of Bukidnon, Salvador and his
son, Robert Espelita (Robert) arrived at Janioso's
house calling out for help. When Janioso came out of
her house, she saw Salvador whose forehead was
oozing with blood,6 and Calib Napone (Calib) likewise
439 | P a g e
bloodied on the face, mud-laden,7 and trying to
extricate himself from Salvador who held him by the
back collar of his shirt.8 Calib is the son of Senior and
the brother of Junior and Edgar.
When Janioso asked what happened, Salvador
replied that Calib waylaid him and struck him with an
iron bar while he and Robert were on their way
home from their farm.9 Salvador turned over to
Janioso the iron bar which he allegedly wrested from
Calib. Thereafter, Janioso directed one of her
employees to find a vehicle to be used to bring
Salvador and Calib to the hospital.10 Janioso was
Salvador's balae.11
After a while, the Napones arrived in a vehicle.12 To
avoid further conflict, Janioso pulled Salvador inside
her house. Unfortunately, Senior followed them and
immediately hacked Salvador from behind using
a borak, a big bolo ordinarily used for chopping
wood, hitting Salvador at the back of his
head.13 Salvador, in retaliation, also hacked Senior.
Meanwhile, Edgar and Junior also alighted from the
vehicle. Edgar threw a stone the size of a fist at
Salvador.14 Junior then shot Salvador three (3) times
with a small firearm, hitting the latter on the chest
which caused him to fall.15 Janioso immediately
rushed to Salvador's aid. While she was trying to lift
Salvador, she saw Junior running away with the gun.
She no longer took notice of Edgar and Senior as her
concern was to bring Salvador to the hospital. At the
hospital, Salvador was pronounced dead.16
The post-mortem findings on Salvador revealed that
he sustained four (4) hack wounds on the left side of
his head and a gunshot wound on his chest.17 Dr.
Vacalares, the medico-legal officer who conducted
the autopsy, concluded that the cause of death was
the perforation of the left ventricule due to gunshot
wound,18 which necessarily proved to be the fatal
wound. Dr. Vacalares also took the witness stand
where he elaborated that the bullet perforated
Salvador's left ventricule resulting in his death in less
than ten (10) minutes.19 As regards the hack wounds,
Dr. Vacalares stated that they were caused by a
sharp bladed instrument.20 However, he did not
state whether these hack wounds were fatal or not.
Evidence for the Defense
The defense presented Senior, Junior, and Johnny
Palasan (Palasan) as witnesses. Calib was also
presented as a witness but his testimony was
deemed inadmissible in evidence for being hearsay
because he was not sworn in when he took the
witness stand. The testimonies of the defense
witnesses tended to establish that the Napones
acted in self-defense and in defense of a relative, as
follows:
On 22 September 1992, at around 8:00 o'clock in the
evening, while Senior was chopping firewood, and
while Junior and Edgar were conversing inside their
house at Mabunga, Baungon, Bukidnon, a certain
Ervin "Ungat" Tagocon (Tagocon) came and told
them that he saw Calib bloodied and dragged by
Salvador and Robert to the house of Janioso, located
approximately 100 meters from their house. Upon
hearing the news, Junior hurriedly ran towards
Janioso's house, while Edgar and Senior immediately
followed.21 Before running to Calib's aid, Senior got
hold of his borak,22 because he suspected that the
Espelitas had hacked Calib.23
Upon arriving at Janioso's place, the Napones saw
Calib bloodied and being held by the Espelitas who,
upon seeing them coming, dropped Calib, who was
then prostrate and unconscious. The Espelitas then
went inside the fenced premises of Janioso's house.
When Senior attempted to lift Calib from the ground,
Salvador rushed towards him and hacked him with a
bolo multiple times. Senior, unable to retaliate
because he was lifting Calib,24 parried the attacks
with his left hand but was unsuccessful. His ring and
middle fingers were severed from his left hand and
his forehead was wounded. Thereafter, Senior fell to
the ground and lost consciousness.25
Edgar tried to defend his father from Salvador by
throwing a stone at the latter. Because of this,
Salvador shifted his attention towards Edgar and
chased him with a bolo.26
Meanwhile, Junior was about to rush to Senior's aid
when a man, later identified to be Palasan, alerted
him that Robert was aiming a firearm at him. Junior
wrestled with Robert for the possession of the
firearm. When Junior got hold of the firearm, Robert
allegedly shouted "watch out, my firearm was taken"
and ran away.27 Salvador stopped chasing after
Edgar, turned to Junior, and hacked him three (3)
times: the first blow missed, the second hit Junior's
belt buckle, but the third struck Junior's left leg.28
Junior fell to the ground face down from the third
strike. With Salvador still behind him, he crawled
away from his assailant. When he stood up and saw
that Salvador was still coming after him, Junior fired
his gun at Salvador.29 Junior claimed that was the
first time he had fired a gun.30 Despite the first shot,
Salvador kept advancing towards Junior; thus, he
again shot at Salvador hitting him in the
chest.31 Thereafter, Junior left the gun by Janioso's
fence and took Senior and Calib to the provincial
hospital in Cagayan de Oro City, for treatment.32
On 23 June 1992, Junior surrendered to the
authorities in Baungon, Bukidnon.33 However, the
firearm he used to shoot Salvador was never
recovered.
The RTC Ruling
440 | P a g e
In its 14 November 2006 decision, the RTC found Costs against [the] accused.34
Junior and Edgar guilty beyond reasonable doubt of
the crime of homicide. It gave more weight to the Aggrieved, petitioners appealed before the CA.
version of the prosecution witnesses finding them to
be more credible, straightforward, and duly The CA Ruling
supported by the post-mortem findings. The trial
court rejected petitioners' claim of self-defense and
In its assailed decision, the CA affirmed the RTC
in defense of a relative ratiocinating that they failed
decision, with modifications.
to establish the presence of unlawful aggression on
the part of Salvador. It further ruled that a
The appellate court concurred that the testimonies
conspiracy among the Napones existed as shown by
of Janioso and Sadaya were more truthful and
their successive attacks on Salvador. The trial court
candid, but disagreed with the RTC with regard to
also ruled that no aggravating or mitigating
the appreciation of modifying circumstance. While it
circumstance attended the felony. The dispositive
conceded that no aggravating circumstance
portion of the decision reads:
attended the killing of Salvador, it opined that the
trial court failed to appreciate the mitigating
WHEREFORE, IN VIEW OF THE ABOVE, judgment is
circumstance of passion and obfuscation. It observed
hereby rendered finding the two (2) remaining
that the unfortunate incident occurred at the "spur
accused PETRONILO NAPONE, Jr. and EDGAR
of the moment" and because of the Napones'
NAPONE GUILTY beyond reasonable doubt of the
"impulse reaction" upon seeing Calib wounded and
felony of HOMICIDE, and applying the indeterminate
lying on the ground. It also noted that the
sentence law, the court hereby sentences the two
testimonies of both the prosecution and defense
(2) remaining accused aforecited to suffer the
witnesses showed that there was no prior animosity
penalty of imprisonment of TWELVE (12) YEARS OF
between the Espelitas and the Napones. In fact,
PRISION MAYOR IN ITS MAXIMUM PERIOD AS
Senior testified that Salvador was his friend or
MINIMUM TO SEVENTEEN (17) YEARS FOUR (4)
"compadre."
MONTHS OF RECLUSION TEMPORAL AS MAXIMUM.
Likewise, the CA ruled that conspiracy could not be
The two (2) remaining accused further hereby
appreciated considering that the incident happened
ordered to PAY, solidarily, the heirs of SALVADOR
at "the spur of the moment." Thus, the appellate
ESPELITA in the sum of One Hundred Eighty
court reduced Edgar's liability to that of a mere
Thousand (₱180,000.00) Pesos, as actual damages,
accomplice reasoning that his participation in
Forty Three Thousand (₱43,000.00) Pesos, as
throwing a stone at Salvador during the incident,
Attorney's Fees, and the amount of Seventy Five
while showing community of criminal design, was
Thousand (₱75,000.00) Pesos, as moral damages for
otherwise not indispensable to the commission of
the death of SALVADOR ESPELITA. The Bond for the
the felony.
provisional liberty of the accused are hereby
CANCELLED. Let warrant of arrest issue and the
The dispositive portion of the assailed decision
accused are hereby ordered committed to serve
reads:
their sentence [at] the DAVAO PENAL COLONY,
PANABO, DAVAO DEL NORTE.
WHEREFORE, the assailed Judgment is hereby
AFFIRMED with MODIFICATION that appellants
Petronilo Napone, Jr. and Edgar Napone are found
GUILTY beyond reasonable doubt of HOMICIDE, as
PRINCIPAL and ACCOMPLICE, respectively, and
accordingly SENTENCED to suffer the penalt[ies] of:
As to PETRONILO NAPONE, JR.- eight (8) years and
one (1) day of prision mayor as minimum to twelve
(12) years and one (1) day of reclusion temporal as
maximum.
As to EDGAR NAPONE.- four (4) years and two (2)
months of prision correccional as minimum to eight
(8) years and one (1) day of prision mayor as
maximum.
They are also mandated to PAY jointly the heirs of
deceased Salvador Espelita, the following:
1. Fifty Thousand Pesos (₱50,000.00) as death
indemnity;
2. Fifty Thousand Pesos (₱50,000.00) as moral
damages; and
3. Twenty Five Thousand Pesos (₱25,000.00) as
temperate damages, in lieu of the award of actual
damages which the prosecution failed to prove.
And, pursuant to the Tampus35 ruling, (re:
graduation of pecuniary penalties vis-a-vis the
different degrees of liability in the commission of the
felony), Petronilo Napone, Jr. (as a principal) has to
pay 2/3 of the sum total of the above-mentioned
amounts, i.e., a total of EIGHTY-THREE THOUSAND
THREE HUNDRED THIRTY-THREE PESOS and THIRTY-
FOUR CENTAVOS (₱83,333.34), while Edgar Napone
(as an accomplice) shall bear 1/3 thereof, i.e., a total
441 | P a g e
of FORTY-ONE THOUSAND SIX HUNDRED SIXTY-SIX
PESOS and SIXTY-SIX CENT A VOS (₱41,666.66).
With subsidiary imprisonment, in case of non-
payment.36
Petitioners moved for reconsideration, but the same
was denied by the CA in its Resolution, dated 21 July
2010
Hence, the present petition.
THE ISSUE
WHETHER THE TRIAL AND APPELLATE COURTS
ERRED WHEN THEY RULED THAT THE PETITIONERS
DID NOT ACT IN SELF-DEFENSE AND/OR DEFENSE OF
RELATIVES
THE COURT'S RULING
The petition lacks merit.
Justifying circumstances of self-defense
and defense of relatives
The petitioners interpose self-defense and defense
of relatives. They insist that the actions they
committed and which resulted in Salvador's death
were necessary and reasonable under the
circumstances to repel the latter's unlawful
aggression towards them and their father.
It has been held that when the accused invokes the
justifying circumstance of self-defense and, hence,
admits to killing the victim, the burden of evidence
shifts to him. The rationale for this shift is that the
accused, by his admission, is to be held criminally
liable unless he satisfactorily establishes the fact of
self-defense.37 Thus, it is incumbent upon the
accused to prove his innocence by clear and
convincing evidence.38 For this purpose, he must rely
on the strength of his evidence and not on the
weakness of that of the prosecution for, even if the
latter is weak, it could not be denied that he has
admitted to be the author of the victim's death.39
To successfully claim self-defense, the accused must
satisfactorily prove the concurrence of all of its
elements, which are: (1) unlawful aggression; (2)
reasonable necessity of the means employed to
prevent or repel it; and (3) lack of sufficient
provocation on the part of the person defending
himself.40 Similarly, for defense of a relative to
prosper, the following requisites must concur,
namely: (1) unlawful aggression by the victim; (2)
reasonable necessity of the means employed to
prevent or repel the aggression; and (3) in case the
provocation was given by the person attacked, that
the person making the defense took no part in the
provocation.41
In both self-defense and defense of relatives,
whether complete or incomplete, it is essential that
there be unlawful aggression on the part of the
victim. After all, there would be nothing to prevent
or repel if such unlawful aggression is not present.
For unlawful aggression to be appreciated there
must be an actual, sudden, and unexpected attack or
imminent danger thereof, not merely a threatening
or intimidating attitude.42
The defense failed to prove self-defense
and defense of relative.
After a careful examination of the records, the Court
finds that the defense failed to discharge the burden
of proving that the petitioners acted in self-defense
or defense of relatives.
The defense would have this Court believe that the
Napones proceeded to the place of Janioso without
any malice in mind and with the only goal of rescuing
Calib. To refute the accusations against them, they
painted a picture of Salvador mercilessly attacking
Senior who merely wanted to carry his son who was
then lying on the ground and covered with blood.
They maintain that the petitioners were forced to
retaliate against Salvador who was unlawfully
attacking their father.
The Court is not persuaded.
The version of the defense may be amusing, yet it
still pales in comparison in terms of credibility when
faced with the testimonies of the eyewitnesses
Janioso and Sadaya and the post-mortem report by
Dr. Vacalares. Needless to state, the Court concurs
with the findings of the trial and appellate courts.
It is doctrinally settled that findings of trial courts on
the credibility of witnesses deserve a high degree of
respect and will not be disturbed during appeal in
the absence of any clear showing that the trial court
overlooked, misunderstood or misapplied some facts
or circumstances of weight and substance which
could have altered the conviction of the
appellant.43 Furthermore, factual findings of the trial
court, when affirmed by the CA, are deemed binding
and conclusive.44 While this rule admits of
exceptions, such as when the evaluation was
reached arbitrarily or when the trial court
overlooked, misunderstood, or misapplied some
facts or circumstances of weight and substance
which could affect the result of the case, 45 the Court
is of the view that none of these exceptions is
present in this case.
The prosecution was able to establish that the
Napones, and not the Espelitas, were the unlawful
aggressors.1âwphi1 During her direct and cross-
442 | P a g e
examinations, Janioso was steadfast in her account
that Senior immediately hacked Salvador, thus:
ATTY. ADAZA:
Q. When you saw Petronilo Napone, Sr. and
Petronilo Napone, Jr. with others arrive, what
happened next?
A. When Petronilo Napone, Sr. arrived he
immediately hacked Salvador Espelita.
Q. What instrument did he use?
A. A bolo.
Q. Where was Salvador Espelita hit?
A. In the head.
Q. Which part of the head?
A. Back of the head.46 (emphasis supplied)
xxx
ATTY. MUSNI:
Q. When Petronilo, Sr. arrived together with
Petronilo, Jr., there was no exchange of words
between Salvador Espelita and Petronilo, Sr.?
A. With Petronilo Napone, Sr., none.
Q. And immediately, Petronilo Napone, Sr.
immediately hack Salvador Espelita?
A. Yes.47 (emphasis supplied)
The view that Senior initiated the hostility was
actually consistent with his testimony. During the
trial, Senior narrated that he brought his borak to
defend himself against the Espelitas because he was
of the belief that they hacked Calib, thus:
ATTY. ADAZA:
Q. Alright, now, according to you, you believed that
your son was already dead that is why you brought
along that weapon on that evening of September 22,
1992. Question, Mr. Napone, when you brought
along that weapon, and you said in your affidavit
that you wanted to defend yourself against whom
and from whom?
A. It is to defend myself if he will include me.48
xxx
Q. How did you know that it was Salvador Espelita
who hacked your son when you never talked to your
son according to you, your son was sprawled on the
ground bloodied?
A. What I have said before, it was Ungat Tagocon
who told me.
Q. But according to you, Ungat Tagocon never told
you that these Espelitas injured your son, it was only
the information that your son was bloodied, which is
which now?
A. Because he was bloodied, I presumed that it was
Salvador Espelita who caused the injury because
they were the ones who brought him to the store of
Jocelyn Janioso.49
Clearly, Senior armed himself with a bolo and was
ready to use it against the Espelitas making them his
specific targets because of his belief that they were
his son's assailants. At this juncture, it is well to
emphasize that the fact that Calib was seen lying on
the ground is not the unlawful aggression required
under the law. It was established during trial that
any attack on the person of Calib by the Espelitas, if
there was any, had already ceased at the time the
Napones arrived. No actual, sudden, and unexpected
attack or imminent danger on the life or limb of
Calib, therefore, could justify Senior's attack on
Salvador.
Coming now to the actual shooting of Salvador, both
Janioso and Sadaya's testimonies were positive and
categorical with respect to its material aspects. They
were consistent and corroborated each other in their
narration of who committed the crime, and when
and how it was committed. During her direct and
cross-examinations, Janioso recounted how the
events transpired, thus:
ATTY. ADAZA:
Q. When he was hit at the back of his head, what
happened next?
A. He face[d] Petronilo Napone, Sr. and retaliated by
hacking then he was shot by Petronilo Napone, Jr.
Q. How many times did you hear a shot?
A. Three (3) shots.50 (emphasis supplied)
xxx
ATTY. MUSNI:
Q. When Petronilo, Sr. arrived together with
Petronilo, Jr., there was no exchange of words
between Salvador Espelita and Petronilo, Sr.?
443 | P a g e
A. With Petronilo Napone, Sr., none.
Q. And immediately, Petronila Napone, Sr.
immediately hacked Salvador Espelita?
A. Yes.51 (emphasis supplied)
On Sadaya's part, his testimony was unwavering
despite the defense counsel's apparent attempts to
confuse him during cross-examination, in this wise:
ATTY. MUSNI:
Q. You said in your affidavit that you already heard
the two gunshots when you were already inside the
sala of the house of Jocelyn Janioso, is that right?
A. I heard two gunshots when I was already inside
the house of Janioso.
Q. Now, you have read your affidavit, please go over
your affidavit again Mr. Sadaya and tell the
Honorable Court whether you have stated that you
have first heard a gunshot when you were still inside
the house, if there is a statement aside from hearing
two shots when you were already inside the house?
A. The answer of Question No. 11, last sentence
"because of fear I entered the house through the
kitchen and when I was already at the sala I heard
two gunshots."
Q. So, that is your answer, you are referring to the
last sentence of Question No. 11 of your affidavit?
A. Yes sir.
Q. In this last sentence in your Answer to Question
No. 11, it refers only to Mr. Sadaya to two gunshots
that you heard when you were inside the sala, is that
correct?
A. Yes sir.
Q. It did not refer in any way to what you have
testified that you heard a gunshot while you were
outside the house?
A. It's not placed in the affidavit.
Q. Because the truth of the matter Mr. Sadaya is
that, you only heard two gunshots on that particular
night of September 22, 1992, is that correct?
A. I saw the actual shooting then when I turned
around and went inside the house I heard two
gunshots.52
xxx
Q. So, that at the time you claimed that you have
seen somebody shot Salvador Espelita, your back
was turned to where Salvador Espelita was standing,
is that correct?
A. After he made the shot.
Q. But you did not see at the time the shot was
made, is that correct?
A. I saw it.53 (emphasis supplied)
The prosecution witnesses were not only credible
but were also not shown to have harbored any ill
motive toward the Napones. Thus, the Court has no
reason to doubt their respective testimonies. They
were surely entitled to full faith for those reasons,
and both the RTC and the CA properly accorded
them such credence. Their positive and categorical
statements that the Napones assaulted Salvador
without any unlawful aggression on his part prevail
over the claim of self-defense and defense of relative
which were unsubstantiated by clear and convincing
proof.
Petitioners capitalize on the apparent
inconsistencies between the testimonies of Janioso
and Sadaya, who testified that Senior was hacked at
the back of his head, and the post-mortem report by
Dr. Vacalares, which revealed that Senior sustained
hacks wound on the "frontal left side of the head."
The variance as to the location of the hack wounds,
however, is a relatively minor matter which does not
necessarily discredit Janioso and Sadaya as
witnesses. This supposed discrepancy could be easily
explained by the fact that the incident happened at
nighttime, at on or about 8 o'clock in the evening,
which might have caused some minor departures in
the witnesses' perception. Such minor inconsistency
does not weaken, as in fact it serves to strengthen,
the credibility of the prosecution witnesses.
Thus, the defense's claim of self-defense and
defense of relatives, which have been held to be
inherently weak defenses because they are easy to
fabricate,54 were reduced into incredulity when
scrutinized against the prosecution's evidence. The
Court, therefore, sees no reason to disturb the trial
and the appellate courts' findings that the killing of
Salvador was not attended by any justifying
circumstance.
Conspiracy did not attend the
commission of the felony.
The Court agrees with the appellate court that
conspiracy does not obtain in the present case.
Settled is the rule that much like the criminal act
itself, proof beyond reasonable doubt is necessary to
establish the existence of conspiracy. It cannot be
444 | P a g e
established by conjectures, but by positive and
conclusive evidence.55
In this case, no other evidence was presented by the
prosecution to establish conspiracy aside from the
circumstances that the accused were members of
the same family, that they arrived at the scene of the
crime at about the same time, and that they
attacked Salvador successively. These pieces of
circumstantial evidence would not suffice to
establish conspiracy. It has been held that the fact
that the defendants were relatives and had acted
with some degree of simultaneity in attacking their
victim does not prove conspiracy in the absence of
other independent evidence positively and
convincingly showing its presence.56
From the foregoing, no concerted action pursuant to
a common criminal design could be attributed to the
petitioners. In the absence of conspiracy, each of the
accused, herein petitioners, is responsible only for
the consequences of his own acts.57
Edgar is liable only as an accomplice
to the attempted homicide.
While the appellate court ruled that no conspiracy
could be ascribed to the Napones, it, nevertheless,
opined that Edgar's act of throwing a stone at
Salvador sufficiently showed that he agreed with
Junior's criminal design to kill Salvador thereby
establishing his complicity to the felony.
The Court disagrees.
In order that a person may be considered an
accomplice, the following requisites must concur: (1)
that there be community of design; that is, knowing
the criminal design of the principal by direct
participation, he concurs with the latter in his
purpose; (2) that he cooperates in the execution by
previous or simultaneous act, with the intention of
supplying material or moral aid in the execution of
the crime in an efficacious way; and (3) that there be
a relation between the acts done by the principal
and those attributed to the person charged as
accomplice.58
Edgar's act which ensued prior to the shooting of
Salvador did not necessarily demonstrate his
concurrence with Junior's criminal purpose. There
was no showing that Edgar committed the deed
knowing that Junior would shoot or otherwise harm
Salvador moments after. Community of design was
lacking. Thus, Edgar could not be held liable as an
accomplice to the consummated homicide because
the cooperation which the law punishes is the
assistance knowingly or intentionally given and
which is not possible without previous knowledge of
the principal's criminal purpose.59
Nevertheless, while Edgar's complicity and
participation in the consummated homicide was not
sufficiently shown, he should still be held liable for
his participation in and concurrence with Senior's
criminal purpose.
In Araneta, Jr. v. CA,60 the Court ruled that absent
conspiracy, the liability of an accused who, with the
intent to kill, slightly wounded the victim who was
killed by his co-accused is limited to the "slight
injury" he had caused the victim.
The prosecution was able to prove that Senior
hacked Salvador at least four (4) times, inflicting
upon the latter four (4) hack wounds. Senior's intent
to kill Salvador was also established by the nature of
the weapon he used and the location of the wounds.
However, there was no showing that these hack
wounds had caused or would have caused Salvador's
death. In fact, Dr. Vacalares, both in his Post-Mortem
Findings and during his testimony, was silent
whether there was any mortal risk from the hack
wounds. Instead, Dr. Vacalares was categorical that
the mortal wound was the gunshot wound which
caused Salvador's death.
Clearly, and considering that conspiracy is not
attendant in this case, Senior would not be liable for
the death of Salvador. Instead, he would have been
held liable as a principal by direct participation in the
crime of attempted homicide, were it not for the
total extinction of his criminal liability as a
consequence of his demise during trial.
Knowledge of the principal's criminal design is shown
by the fact that the person accused as an accomplice
has seen the criminal acts of the principal. It has
been established that the Napones arrived at the
scene of the crime at the same time on board a
jeepney. It is also beyond dispute that Edgar threw a
stone at Salvador during the latter's struggle with
Senior which fact the defense had admitted but with
the assertion that it was committed in defense of a
relative.
The Court opines that Edgar witnessed his father's
assault on Salvador and was thus knowledgeable of
his criminal design. The simultaneous act of throwing
a stone at Salvador was made to assist Senior in
achieving his criminal purpose. Thus, Edgar's assent
and participation to the criminal acts of his father
were sufficiently established. As Edgar's participation
was not indispensable to the felony, he must be held
liable as an accomplice to the criminal acts of Senior.
Therefore, Edgar is guilty as an accomplice to the
crime of attempted homicide.
Mitigating circumstances which
attended the case; Appropriate
penalties
445 | P a g e
The appellate court erred when it credited passion
or obfuscation in favor of the petitioners. Acts done
in the spirit of revenge cannot be considered acts
done with passion or obfuscation.61 Thus, to avail of
the mitigating circumstance, it is necessary to show
that the passion and obfuscation arose from lawful
sentiments and not from a spirit of lawlessness or
revenge.62
The acts of the Napones after they were informed
that Calib was dragged by the Espelitas were more
consistently driven by revenge rather than mere
impulsive reaction. Senior even got hold of his
weapon first before going to the place where his son
was reportedly harmed. Thus, the extenuating
circumstance of passion or obfuscation could not be
appreciated in petitioners' favor.
Nevertheless, the circumstances surrounding the
unfortunate incident merit the appreciation of the
mitigating circumstance of vindication for a grave
offense. For such to be credited, the following
requisites must be satisfied: (1) that there be a grave
offense done to the one committing the felony, his
spouse, ascendants, descendants, legitimate, natural
or adopted brothers or sisters, or relatives by affinity
within the same degrees; and (2) that the felony is
committed in vindication of such grave offense.63
Although it was not witnessed by the Napones, the
attack on Calib which put his life at risk must have
infuriated them. The belief that the Espelitas were
responsible for the grave injuries sustained by a
member of their family created rage in their minds
which clouded their judgment. Upon seeing Calib
bloody, prostrate on the ground and possibly
clinging for dear life, the Napones were filled with
resentment that resulted in the assault on Salvador.
Their acts, therefore, were committed in vindication
of a grave offense.
The CA also erred when it failed to appreciate
voluntary surrender in favor of Junior. In denying
him the benefit of this mitigating circumstance, the
appellate court reasoned that no evidence on record
other than Junior's own testimony was offered to
prove that he voluntarily surrendered to the
authorities.
In People v. Malabago,64 we held that where the
accused testified that he voluntarily surrendered to
the police and the prosecution did not dispute such
claim, the mitigating circumstance should be
appreciated in his favor. A perusal of the record
revealed that the prosecution did not dispute
Junior's claim that he surrendered to the police
authorities in Baungon, Bukidnon, on 23 June 1992.
Hence, the mitigating circumstance of voluntary
surrender must be credited in his favor.
In fine, the Court finds Junior liable as principal for
the crime of homicide with the prescribed penalty
of reclusion temporal. Considering, however, that
the two mitigating circumstances could be credited
in his favor, and no aggravating circumstance
attended the commission of the felony, the
imposable penalty is prision mayor,65 lower
than reclusion temporal, and within which the
maximum term of the indeterminate sentence shall
be taken.
The Court finds Edgar liable as an accomplice to the
attempted homicide and, thus, should be meted a
penalty three (3) degrees lower than that prescribed
by the code for homicide. Further, the mitigating
circumstance of vindication of a grave offense shall
be credited in his favor.
Appropriate monetary awards
Since Edgar and Junior are liable for separate crimes
which arose from different criminal resolutions, they
must also be separately liable for civil indemnities
arising from these crimes.
In People v. Jugueta,66 the Court summarized the
amounts of damages which may be awarded for
different crimes. In said case, the Court held that for
the crime of consummated homicide, the following
amounts may be awarded: (1) ₱50,000.00, as civil
indemnity; (2) ₱50,000.00, as moral damages; and
(3) ₱50,000.00 as temperate damages when no
documentary evidence of burial or funeral expenses
is presented in court. On the other hand, for
attempted homicide, the foilowing amounts may be
awarded: (1) ₱20,000.00, as civil indemnity; and (2)
₱20,000.00, as moral damages.
In People v. Tampus,67 the Court ruled that the
penalty and liability, including civil liability, imposed
upon an accused must be commensurate with the
degree of his participation in the commission of the
crime. Thus, the Court held that the principal must
be adjudged liable to pay two-thirds (2/3) of the civil
indemnity and moral damages; while the accomplice
should pay one-third (1/3) portion thereof. The
Court further advanced that the accomplice would
not be subsidiarily liable for the amount allotted to
the principal if the latter dies before the finality of
the decision. The reason for this is that there would
be nothing that could be passed to the accomplice as
the principal's criminal liability, including the civil
liability arising thereon, had been extinguished by his
death.
WHEREFORE, the assailed Decision, dated 9
December 2009 of the Court of Appeals in CA-G.R.
CR No. 00384, which affirmed with modification the
decision, dated 14 November 2006, of the Regional
Trial Court of Manolo Fortich, Bukidnon, Branch 11
in Criminal Case No. 1190, is
hereby AFFIRMED with MODIFICATIONS. Petitioner
Petronilo Napone, Jr. is found GUILTY beyond
446 | P a g e
reasonable doubt as principal for the crime of
homicide and is sentenced to suffer the
indeterminate penalty of four (4) years and two (2)
months of prision correccional, as minimum, to eight
(8) years and one (1) day of prision mayor, as
maximum. He is further ordered to pay the heirs of
the deceased Salvador Espelita the following
amounts: (1) ₱50,000.00, as civil indemnity; (2)
₱50,000.00, as moral damages; and (3) ₱50,000.00
as temperate damages in lieu of the award of actual
damages which the prosecution failed to prove.
Petitioner Edgar Napone is found GUILTY beyond
reasonable doubt as an accomplice to the crime of
attempted homicide and is sentenced to suffer the
penalty of two (2) months of arresto mayor. Further,
he is ordered to pay the following amounts: (1)
₱6,667.00, as civil indemnity; and (2) ₱6,667.00, as
moral damages. All monetary awards shall earn
interest at the rate of six percent (6%) per
annum reckoned from the finality of this decision
until its full payment.68
SO ORDERED.
SAMUEL R. MARTIRES
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 95357 June 9, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EDUARDO GELAVER, accused-appellant.
The Solicitor General for plaintiff-appellee.
Joffrey L. Montefrio for accused-appellant.
QUIASON, J.:
This is an appeal from the decision of the Regional
Trial Court, Branch 26, Surallah, South Cotabato,
finding Eduardo Gelaver, guilty beyond reasonable
doubt of Parricide (Art. 246, Revised Penal Code) and
sentencing him to "suffer the penalty of reclusion
perpetua and to indemnify the heirs of his wife,
Victoria Pacinabao, in the amount of P30,000.00."
(Decision, p. 7; Rollo, p. 28)
In the Information filed with the trial court and
docketed as Criminal Case No. 643, Eduardo Gelaver,
was charged with Parricide committed as follows:
That on or about the 24th day of
March, 1988 at 7:00 o'clock in the
morning, more or less, in Barangay
Poblacion, Municipality of Sto.
Niño, Province of South Cotabato,
Philippines, and within the
jurisdiction of this Honorable
Court, said accused with intent to
kill and being then armed with a
knife did then and there wilfully,
unlawfully and feloniously attack,
assault and stab one VICTORIA
GELAVER Y PACINABAO, his
lawfully wedded wife, with the use
of the said knife hitting her and
 wounding her on the different
parts of her body and as a result
thereof said Victoria Gelaver y
Pacinabao died instantly. (Rollo, p.
7)
At his arraignment, appellant entered a plea of "not
guilty", and thereafter trial on the merits ensued.
The prosecution presented Randy Mamon, who
testified that at 7:00 a.m. of March 24, 1988, he
heard shouts coming from the house of Tessie
Lampedario in Barangay Poblacion, Municipality of
Sto. Niño, South Cotabato. He saw the appellant and
a woman having a heated argument. Thereafter,
appellant held the neck of the victim, dragged her
and with a knife on his right hand, stabbed the latter
three times on the breast. Appellant then went out
of the gate and fled in the direction of the public
market of Sto Niño. (TSN, June 27, 1988, pp. 7-10)
Eduardo Gelaver admitted killing his wife but
claimed that he did so after catching her having
carnal act with her paramour.
Appellant testified that he was married to Victoria
Pacinabao, with whom he begot four children. (TSN,
December 19, 1988, p. 9) They lived together at their
conjugal home until July 3, l987 when she
abandoned her family to live with her paramour.
(TSN, December 19, 1988, pp. 10-11) He did not
know the name of his wife's paramour nor the name
of the owner of the house where his wife and her
paramour had lived together.
Appellant further testified that on March 24, 1988,
after he was informed by his daughter that his wife
and paramour were living at a house in front of the
Sto. Niño Catholic Church, appellant immediately
repaired to that place. Upon entering the house, he
447 | P a g e
saw his wife lying on her back and her paramour on
top of her, having sexual intercourse.
Appellants version of the killing was that when his
wife saw him, she pushed her paramour aside. Her
paramour immediately stood up, took a knife placed
on top of the bedside table and attacked appellant.
The latter was able to wrest possession of the knife
and then used it against the paramour, who evaded
the thrusts of the appellant by hiding behind the
victim. Thus, it was the victim who received the stab
intended for the paramour.
As to why he continued to stab his wife, appellant
said that his mind had been "dimmed" or
overpowered by passion and obfuscation by the
sight of his wife having carnal act with her paramour.
Appellant faults the trial court in imposing the
penalty of reclusion perpetua for the crime of
parricide, instead of the penalty of destierro for
killing under exceptional circumstances pursuant to
Article 247 of the Revised Penal Code. (Appellant's
Brief, p. 1)
Appellant's contention is bereft of merit.
Before Article 247 of the Revised Penal Code can be
operative, the following requisites must be
compresent:
1. That a legally married person or
a parent surprises his spouse or his
daughter, the latter under 18 years
of age and living with him, in the
act of committing sexual
intercourse with another person.
2. That he or she kills any or both
of them or inflicts upon any or
both of them any serious physical
injury in the act or immediately
thereafter.
3. That he has not promoted or
facilitated the prostitution of his
wife or daughter, or that he or she
has not consented to the infidelity
of the other spouse. (II Reyes, The
Revised Penal Code, 12th Ed., pp.
452-53; Emphasis supplied)
These requisites must be established by the defense.
Implicit in this exceptional circumstance is that the
death caused must be the proximate result of the
outrage overwhelming the accused after chancing
upon his spouse in the act of infidelity (People v.
Abarca, 153 SCRA 735 [1987]). In this case, appellant
wants this Court to believe that he caught his wife
and her paramour in sexual intercourse. However,
his testimony is tainted with inconsistencies which
leads Us to believe otherwise.
Appellant's failure to inform the police that he killed
his wife when he saw her having sexual intercourse
with her paramour, devastated in one fell swoop
whatever credibility could possibly be accorded to
his version of the incident. As noted by the Solicitor
General, the natural thing for a person to do under
the circumstances was to report to the police the
reason for killing his wife. (Appellee's Brief, p.
8; Rollo, p. 76) Appellant's contention that he
thought that only the killing itself should be
blottered, reserving the details to the defense
lawyer, sounded like a spoonfed afterthought.
If there was a naked man with the victim, he would
have had no time to get dressed because he was
then under attack by appellant. There would then
have been the spectacle of a man in the nude
running in the streets.
The trial court noted several contradictions in
appellant's testimony. Appellant claimed that he
chased the paramour but was unable to overtake
him and at the same time, he testified that the
paramour stayed in the room and used the victim as
a shield against appellant's attack with the knife.
Appellant also claimed that upon entering the gate
of the fence, he saw his wife and her paramour
having carnal act and at the same breath, he testified
that he saw his wife and her paramour only when he
opened the main door of the house.
The trial court found as contrary to human nature
appellant's claims that he went to confront the
paramour of his wife unarmed and that he never
learned the name of the paramour inspite of the fact
that his wife, allegedly, had been living with the
paramour in the same town for almost a year before
the incident.
Absent any substantial proof that the trial court's
decision was based on speculation, the same must
be accorded full consideration (People v. Martinada,
194 SCRA 36 [1991) and should not be disturbed on
appeal (Mercury Drug v. CIR, 56 SCRA 694 [1974]).
Appellant's claim that on the day prior to his killing
of the victim, his daughter Sheryl had confided to
him that her mother was living with a paramour at
the house in front of the Sto. Niño Catholic Church
was belied by Sheryl herself. In her testimony, she
stated that she did not know the house where the
crime was committed and she had not gone to that
place. She further testified that she had not seen her
mother in any other house except that of her
grandfather's. (TSN, January 17, 1989, p. 5)
448 | P a g e
The trial court was correct in finding the presence of
the mitigating circumstance of voluntary surrender
to the authorities. Appellant, immediately after
committing the offense, voluntarily placed himself at
the disposal of the police authorities as evidenced by
the entry in the official police blotter.
(Exh. "1")
However, the trial court erred in finding the
presence of the mitigating circumstance of passion
or obfuscation "as a result of his (appellant's) wife
leaving their home and their children." (Rollo, p. 28)
Before this circumstance may be taken into
consideration, it is necessary to establish the
existence of an unlawful act sufficient to produce
such a condition of mind. The act producing the
obfuscation must not be far removed from the
commission of the crime by a considerable length of
time, during which the accused might have
recovered his equanimity. (I Revised Penal Code,
Aquino, 1987 ed., p. 267) The crime was committed
almost a year after the victim had abandoned the
conjugal dwelling.
WHEREFORE, the Judgment appealed from is
AFFIRMED except with the MODIFICATION that the
indemnity, be increased to P50,000.00 (People v.
Sison, 189 700 [1990]).
SO ORDERED.
Cruz, Griño Aquino and Bellosillo, JJ., concur.
ECOND DIVISION
March 18, 2015
G.R. No. 211159
PEOPLE OF THE PHILIPPINES, Plaintiff-appellee,
vs.
MARCELINO OLOVERIO, Accused-appellant.
DECISION
LEONEN,J.:
Passion and obfuscation as a mitigating circumstance
need not be felt only in the seconds before the
commission of the crime. It may build up and
strengthen over time until it can no longer be
repressed and will ultimately motivate the
commission of the crime.
This is a review of the Decision1 dated January 29,
2013 of the Court of Appeals which affirmed the
conviction of accused-appellant Marcelino Oloverio
(Oloverio) of murder and sentenced him to reclusion
perpetua and the payment of civil indemnity and
damages.
An Information was filed charging Oloverio with the
crime of murder.2 The Information reads:
That at around 2:00 o’clock in the afternoon of
October 2, 2003, at Brgy. Belen, Palompon, Leyte,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused met the
victim, DOLFO GULANE, while the latter was walking
on his lonesome, and with treachery, did then and
there willfully, unlawfully and feloniously, stab the
said victim using a sharp-pointed bolo, which the
accused has provided for the purpose, thereby
hitting and inflicting mortal wounds on the different
parts of the body of the aforesaid victim causing his
instantaneous death.
CONTRARY TO LAW.3
Oloverio was arraigned on January 25, 2005, where
he pleaded not guilty. Trial on the merits ensued.4
According to the prosecution, on October 2, 2003, at
around 3:00 p.m., Rudipico Pogay (Pogay) and
Dominador Panday (Panday) saw Rodulfo Gulane
walking about five (5) meters away from them with
Oloverio trailing behind him. Oloverio allegedly
tapped Gulane’s right shoulder and hacked him on
the chest and extremities with a bolo until Gulane
collapsed on the ground. Oloverio then allegedly
took Gulane’s money from his pocket.5
Pogay heard Oloverio shouting the words, "Patay na
ang datu sa Brgy. San Pablo!" ("The rich man in San
Pablo is already dead!") Gulane managed to tell
Oloverio, "Man luba ka man, Ling?" ("Ling, why did
you stab me?") After, Gulane died. Panday
proceeded to inform Gulane’s family of the incident. 6
In his defense, Oloverio alleged that at the time and
day of the incident, Gulane had been accusing him of
having an incestuous relationship with his mother.
He allegedly kept his cool and told Gulane to go
home, but the latter continued to mock him by
asking in a loud voice, "How many times did you
have sexual intercourse with your mother?" He
allegedly asked Gulane to go home again but the
latter angrily replied, "Who are you to tell me to go
home?"7
Gulane allegedly attempted to draw his bolo but
Oloverio stopped him by drawing his own bolo. They
grappled with it, and eventually, Oloverio ended up
stabbing Gulane, which resulted in the latter’s death.
Accompanied by a barangay tanod, Oloverio went to
the municipal hall to surrender to the authorities. He
admitted that he stabbed Gulane because he could
no longer bear the insulting remarks against him. 8
449 | P a g e
Romulo Lamoste (Lamoste), then Barangay Captain penalty of Reclusion Perpetua. The voluntary
of Barangay Belen, Palompon, Leyte, alleged that surrender is none availing as reclusion perpetua is
Gulane and Oloverio had an altercation before the not a divisible penalty as defined by the Revised
incident. He alleged that Oloverio’s daughter had Penal Code.
once confided to Oloverio that Gulane wanted to
touch her private parts. About a month later, he The accused Marcelino Oloverio is also ordered to
allegedly heard Gulane ask Oloverio "in a joking pay Fifty Thousand (50,000.00) Pesos damages to
manner about his incestuous relationship with his the heirs of Rodulfo Gulane.
mother."9 Oloverio allegedly got mad and they
ended up fighting, but Lamoste was able to subdue SO ORDERED.13
them. He, however, admitted that he was not
present during the incident.10
The case records were forwarded to the Court of
Appeals on May 6, 2010.14
On January 29, 2010, Branch 17 of the Regional Trial
Court of Palompon, Leyte rendered its
On January 29, 2013, the Court of Appeals rendered
Decision11 finding Oloverio guilty beyond reasonable
its Decision15 affirming the conviction. It found that
doubt of murder.
Oloverio failed to establish with clear and convincing
evidence that Gulane "committed an unlawful act
The trial court ruled that the mitigating circumstance which sufficiently caused him to act with passion and
of passion and obfuscation was not present in this obfuscation."16
case since it could not co-exist with the presence of
treachery. The only mitigating circumstance it found
The Court of Appeals found that Gulane’s act of
present was of voluntary surrender. As murder was
insulting Oloverio before the stabbing was
punishable by reclusion perpetua to death, it
unsupported by evidence.17 Instead, it found that
imposed the lesser penalty of reclusion
treachery was present since Gulane was
perpetua.12 The dispositive portion reads:
unsuspecting when Oloverio suddenly attacked him.
The court also noted that Gulane was already 83
Wherefore, as to the proffer of mitigating years old and might not have had a chance to defend
circumstances of Passion and Obfuscation as defined himself.18
by Art. 13 of the Revised Penal Code cannot be
appreciated, what can be appreciated only is the
The Court of Appeals also affirmed the trial court’s
voluntary surrender which is covered by Art. 13 par.
imposition of the lesser penalty of reclusion
7 of the Revised Penal Code.
perpetua in view of Oloverio’s voluntary
surrender.19 It, however, modified the award of
So from the evidence extant from the records, the damages to include moral, temperate, and
court finds the accused Marcelino Oloverio, GUILTY exemplary damages.20 The dispositive portion reads:
of the crime of Murder as the evidence proved the
guilt of the accused beyond reasonable doubt that
WHEREFORE, in view of the foregoing, the appeal
he committed the crime of Murder as defined and
is DENIED. The Decision dated January 29, 2010 of
penalized under Article 248 of the Revised Penal
the RTC, Branch 17, of Palompon, Leyte in Criminal
Code and therefore sentences him to suffer the
Case No. P-1163 finding appellant guilty beyond
reasonable doubt of the crime of murder
is AFFIRMED with the MODIFICATION that with
respect to the trial court’s award of Php50,000.00
damages, this should be understood to represent the
civil indemnity. Appellant is further ordered to pay
the heirs of Rodulfo Gulane Php50,000.00 as moral
damages, Php25,000.00 as temperate damages, and
Php30,000.00 as exemplary damages. All damages
shall be subject to interest at the legal rate of 6% per
annum from the finality of this Decision until fully
paid.
SO ORDERED.21 (Emphasis in the original)
On March 18, 2013, Oloverio filed his Notice of
Appeal,22 which was favorably acted upon by the
Court of Appeals.23
In compliance with this court’s Resolution24 dated
April 2, 2014, Oloverio and the Office of the Solicitor
General separately manifested that they were no
longer filing their supplemental briefs before this
court since they have already stated their arguments
in their briefs before the Court of Appeals.25
Upon review of the case records, this court resolves
to modify the Decision of the Court of Appeals.
Accused-appellant Marcelino Oloverio is guilty only
of homicide under Article 249 of the Revised Penal
Code. He is entitled to the mitigating circumstances
of passion and obfuscation and of voluntary
surrender.
I Gulane?
Murder is the act of killing a person under the
circumstances mentioned in Article 248 of the
Revised Penal Code. The provision states:
450 | P a g e
ARTICLE 248. Murder. — Any person who, not falling 4. The killing is not parricide or infanticide.27
within the provisions of article 24626 shall kill
another, shall be guilty of murder and shall be For murder or homicide, the prosecution must also
punished by reclusion temporal in its maximum be able to prove the accused had the intent to kill.28
period to death, if committed with any of the
following attendant circumstances: The witnesses, Panday and Pogay, positively
identified accused-appellant as the one who stabbed
1. With treachery, taking advantage of superior Gulane with a bolo.
strength, with the aid of armed men, or employing
means to weaken the defense or of means or Panday stated:
persons to insure or afford impunity.
Q: When you saw Rodulfo Gulane walking alone
2. In consideration of a price, reward or promise. towards Brgy. San Pablo, Palompon, Leyte, do you
recall of any untoward incident that took place?
3. By means of inundation, fire, poison, explosion,
shipwreck, stranding of a vessel, derailment or A: Yes, sir, I saw the incident.
assault upon a street car or locomotive, fall of an
airship, by means of motor vehicles, or with the use
Q: What was that incident?
of any other means involving great waste and ruin.
A: Rodulfo Gulane was killed by [a] certain Marcelino
4. On occasion of any of the calamities enumerated
Oloverio.
in the preceding paragraph, or of an earthquake,
eruption of a volcano, destructive cyclone, epidemic,
Q: Now, you said that Rodulfo Gulane was killed by
or any other public calamity.
Marcelino Oloverio, what was used by Marcelino
Oloverio in killing the deceased?
5. With evident premeditation.
A: A bolo.
6. With cruelty, by deliberately and inhumanly
augmenting the suffering of the victim, or outraging
....
or scoffing at his person or corpse.
Q: Now, you said that Rodulfo Gulane was killed by
To be able to sustain a conviction for murder, the
Marcelino Oloverio with the use of this bolo, would
prosecution must prove the following elements:
you describe to this Honorable Court, how and in
what way did Marcelino Oloverio killed [sic] Rodulfo
1. That a person was killed.
2. That the accused killed him.
A: Yes, while Rodulfo Gulane was walking, Marcelino
Oloverio held the right shoulder of Rodulfo Gulane
3. That the killing was attended by any of the then stabbed him many times and there was
qualifying circumstances mentioned in Art. 248. strucking [sic] the victim Rodulfo Gulane.29
(Emphasis supplied)
Pogay also testified:
Q: When you reached Brgy. Belen, what have you
observed?
A: I observed Lino stabbed Dolpo [sic] Gulane and
when Dolfo Gulane fell down, he said "Patay na ang
datu sa Brgy. San Pablo."
....
Q: If you can recall, how many times did Marcelino
Oloverio stab Rodulfo Gulane?
A: Many times and there was also a hacking blow.30
Their testimonies were consistent with the medico-
legal findings that Gulane died due to multiple stab
wounds. Both the trial court and the Court of
Appeals also found that the witnesses had no ill
motive to testify against accused-appellant.31
The intent to kill is established not only by the
number of stab wounds found on Gulane, but also by
accused-appellant’s own admission that he stabbed
Gulane.32
II
The presence of treachery, however, has not been
sufficiently established. Treachery is defined by the
Revised Penal Code as:
ARTICLE 14. Aggravating Circumstances. — The
following are aggravating circumstances:
....
451 | P a g e
16. That the act be committed with treachery
(alevosia).
There is treachery when the offender commits any of
the crimes against the person, employing means,
methods, or forms in the execution thereof, which
tend directly and specially to insure its execution,
without risk to himself arising from the defense
which the offended party might make.
For treachery to be appreciated, the following
elements must be proven:
(a) the employment of means of execution that gives
the person attacked no opportunity to defend
himself or retaliate, and (b) the means of execution
was deliberately or consciously adopted.33
In People v. Lobino:34
In People vs. Estrellanes, we declared in no uncertain
terms that ‘the mere fact that the victim had no
weapon with which he could have defended himself
is not sufficient to prove the existence of the first
element of treachery, for settled is the rule that
treachery cannot be presumed; it must be proved by
clear and convincing evidence or as conclusively as
the killing itself.’ [sic] Furthermore, there must be
some evidence, none of which, however, obtains in
the instant case, showing that this mode of assault is
deliberately or consciously adopted to insure the
execution of the crime without risk to the offender.
Accordingly, if the attack was not preconceived and
deliberately adopted but was just triggered by the
sudden infuriation on the part of the accused
because of the provocation on the part of the victim,
then no treachery attended the commission of the
crime. The essence of treachery is the sudden and
unexpected attack without the slightest provocation
on the part of the person being
attacked[.]35 (Emphasis supplied)
Pogay testified that Gulane was walking down the
road when accused-appellant came up behind him,
tapped him on the shoulder, and then stabbed him
repeatedly, thus:
Q: You said Rodulfo Gulane[,] before the stabbing,
was heading towards Brgy. San Pablo, while he was
walking where was the accused positioned himself?
[sic]
A: He was following the victim and then he tapped
the right shoulder and stabbed him.
....
Pros. Macapugas: Mr. Witness, during the stabbing
incident, did you know whether or not the victim in
this case was able to retaliate?
A: No ma’am, he was not able to
retaliate.36 (Emphasis supplied)
The mere suddenness of an attack should not be the
sole basis in finding treachery. There must be
evidence to show that the accused deliberately or
consciously adopted the means of execution to
ensure its success.37
At the time of the incident, Gulane was already 83
years old. Accused-appellant was standing behind
him. He already had the advantage of surprise with
Gulane’s back turned. Gulane’s advanced age and
position would have ensured his death as it would
have prevented him from being able to retaliate.
Instead, accused-appellant tapped Gulane on the
shoulder as if to call his attention. He waited until
Gulane was facing him before he started stabbing.
The medico-legal report indicates stab wounds on
the chest and extremities,38 proving that Gulane was
stabbed from the front.
In People v. Real:39
As a rule, a sudden attack by the assailant, whether
frontally or from behind, is treachery if such mode of
attack was coolly and deliberately adopted by him
with the purpose of depriving the victim of a chance
to either fight or retreat. The rule does not apply,
however, where the attack was not preconceived and
deliberately adopted but was just triggered by the
sudden infuriation on the part of the accused
because of the provocative act of the
victim.40 (Emphasis supplied)
The attack, while sudden, cannot be said to have
been unexpected or unprovoked. Accused-appellant
alleged that before the attack, Gulane had been
insulting him and mocking him in a loud voice, "How
many times did you have sexual intercourse with
your mother?"41 This utterance, along with
testimonies of Gulane’s previous insults, would have
been sufficient provocation for accused-appellant to
stab him.
Since treachery has not been proven, the crime is
merely homicide. Under the Revised Penal Code:
ARTICLE 249. Homicide. — Any person who, not
falling within the provisions of article 246 shall kill
another without the attendance of any of the
circumstances enumerated in the next preceding
article, shall be deemed guilty of homicide and be
punished by reclusion temporal.
The penalties of the accused-appellant must be
modified accordingly.
III
452 | P a g e
The mitigating circumstance of passion and
obfuscation42 is present in this case.
To be able to successfully plead the mitigating
circumstance of passion and obfuscation, the
accused must be able to prove the following
elements:
1. that there be an act, both unlawful and sufficient
to produce such condition of mind; and
2. that said act which produced the obfuscation was
not far removed from the commission of the crime
by a considerable length of time, during which the
perpetrator might recover his normal equanimity.43
In People v. Lobino:44
It has been held that "[T]here is passional
obfuscation when the crime was committed due to
an uncontrollable burst of passion provoked by prior
unjust or improper acts, or due to a legitimate
stimulus so powerful as to overcome reason."
"The obfuscation must originate from lawful feelings.
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, because the cause
of this condition of mind must necessarily have
preceded the commission of the offense."
Moreover, "the act producing the obfuscation must
not be far removed from the commission of the crime
by a considerable length of time, during which the
accused might have recovered his normal
equanimity."45 (Emphasis supplied)
There is no uniform rule on what constitutes "a
considerable length of time." The provocation and
the commission of the crime should not be so far
apart that a reasonable length of time has passed
during which the accused would have calmed down
and be able to reflect on the consequences of his or
her actions. What is important is that the accused
has not yet "recovered his normal equanimity" when
he committed the crime.
To appreciate passion and obfuscation as a
mitigating circumstance, the facts must be examined
on a case-to-case basis.
In People v. Mojica,46 Aurelio Mojica was accused of
murder for stabbing Diosdado Tormon to death. He
attempted to mitigate his liability by alleging that the
victim humiliated him a month before the incident.
The trial court convicted him of murder without
appreciating the mitigating circumstance of passion
and obfuscation. This court agreed, stating:
The last point to consider is whether the mitigating
circumstance of passion or obfuscation ought to
have been appreciated in favor of appellant. What
was done to him on that fateful day of November 16,
1968 when he was subjected to treatment offensive
to his dignity, having been slapped and asked to
kneel down in the attitude of a supplicant, certainly
could give rise to the feeling of passion or
obfuscation. There is a host of cases from United
States v. Ferrer, a 1901 decision, to People v. Pareja,
decided in 1969, that so attests. Conduct of that
character, in the language of United States v.
Salandanan, would ordinarily be expected to have
produced "such powerful excitement as to overcome
reason and self-control." Unfortunately for
appellant, however, this mitigating circumstance
cannot be invoked because the killing took place one
month and five days later. The language of Justice
Malcolm in United States v. Sarikala is relevant: "As
to the mitigating circumstance of passion and
obfuscation we likewise cannot agree that it can be
taken into consideration because more than
twentyfour hours elapsed after the insults of Cotton
to the accused and the criminal act." In the relatively
recent case of People v. Constantino, such a plea was
likewise rejected. There the killing took place after
four days. As pointed out by Justice Romualdez
in People v. Alanguilang: "In order that the
circumstance of obfuscation can be considered, it is
necessary to establish the existence of an act both
unlawful and sufficient to produce such a condition
of mind; and that said act which produced the
obfuscation was not far removed from the
commission of the crime by a considerable length of
time, during which the perpetrator might recover his
normal equanimity." Reference may also be made
to People v. Dagatan, where this Court could not
consider the presence of this mitigating
circumstance as the act that caused the resentment
"took place long before the commission of the
crime." People v. Gervacio had another way of
putting it, "a time not far removed from the
commission of the crime." The lower court,
therefore, did not commit any error in refusing to
credit appellant with the mitigating circumstance of
passion and obfuscation.47 (Emphasis supplied,
citations omitted)
However, a fight between the accused and the victim
prior to the crime is not always enough to be able to
successfully prove that passion and obfuscation
attended it.
This court did not appreciate passion and
obfuscation in People v. Rabanillo,48 where the
accused killed the victim 30 minutes after they came
to blows:
Suarez and Magalong testified that before the
hacking incident, MORALES reprimanded RABANILLO
453 | P a g e
in front of their drinking mates for dousing him with
water, which entered into his ear. RABANILLO
resented it and felt humiliated. Hence, a fistfight
ensued, but was eventually broken up. The event
must have continued to dominate RABANILLO’s
thought that he decided to strike back at the victim
by hacking him to death. Clearly, the assault was
made in a fit of anger.
For passion and obfuscation to be mitigating, the
same must originate from lawful feelings. The
turmoil and unreason that 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. The excitement
which is inherent in all persons who quarrel and
come to blows does not constitute obfuscation.
Moreover, the act producing obfuscation must not be
far removed from the commission of the crime by a
considerable length of time, during which the
accused might have regained his normal equanimity.
Thus, it has been held that where at least half an
hour elapsed between the previous fight and the
killing, the accused cannot be given the benefit of the
attenuating circumstance of obfuscation.
In this case, 30 minutes intervened between the
fistfight and the killing of MORALES by RABANILLO.
The attack cannot, therefore, be said to be the result
of a sudden impulse of natural and uncontrollable
fury. Having been actuated more by the spirit of
revenge or by anger and resentment for having been
publicly berated by MORALES, RABANILLO cannot be
credited with the extenuating circumstance of
passion and obfuscation.49 (Emphasis supplied)
This court clarifies in People v. Bautista:50
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, because the cause
of this condition of mind must necessarily have
preceded the commission of the offense.51
This court has also ruled that acts done in the spirit
of revenge cannot be considered acts done with
passion and obfuscation.
In People v. Caber,52 Francisco Caber was seen
chasing Teodoro Ramirez with a bladed weapon,
locally known as a pisao, and stabbing Ramirez twice,
which resulted in his death.
Caber tried to argue that he stabbed Ramirez in a fit
of passion and obfuscation and alleged that Ramirez
raped his wife three (3) days before the incident.
This court rejected the claim:
Even assuming, however, that he really killed
Ramirez because of passion or obfuscation in order
to avenge the wrong done to his wife by the victim,
still he cannot be credited with this circumstance as
he would then have acted "in the spirit of
revenge." Furthermore, although accused-
appellant's wife was allegedly raped by Ramirez on
November 17, 1994, the stabbing incident in
question took place three days later or on November
20, 1994. Thus, the act which was supposed to have
caused passion or obfuscation on the part of the
accused-appellant was so far removed from the date
of the stabbing. In United States v. Sarikala, the
Court ruled that the lapse of more than 24 hours,
reckoned from the commission of the act which
produced the passion or obfuscation up to the time
of the commission of the felony, constituted a
considerable period of time after which such
circumstance would no longer be deemed
present.53 (Emphasis supplied)
The facts of this case, however, are similar to that
in People v. Real.54 In Real, Melchor Real and
Edgardo Corpuz, his fellow market vendor, engaged
in a heated argument over the right to use the
market table to display their fish. The municipal
mayor, then present at the scene, tried to pacify
them and told them that they were arguing over
trivial matters. Both parties calmed down after a
while.
Corpuz, however, said something to Real, to which
Real softly uttered, "You are being too oppressive."
When Corpuz kept walking near the table, Real
started to sharpen his bolo. As Corpuz turned his
back, Real hacked him with his bolo which caused his
death.
Real was held liable for homicide, but this court took
into account the mitigating circumstance of passion
and obfuscation, stating that:
[t]he act of the victim in berating and humiliating
appellant was enough to produce passion and
obfuscation, considering that the incident happened
in a market place within full view and within hearing
distance of many people.55
This court also noted:
In the case at bench, the assault came in the course
of an altercation and after appellant had sharpened
his bolo in full view of the victim. Appellant's act of
sharpening his bolo can be interpreted as an attempt
to frighten the victim so the latter would leave him
alone. It was simply foolhardy for the victim to
continue walking to and fro near appellant in a
taunting manner while the latter was sharpening his
bolo.56
454 | P a g e
Accused-appellant admitted that he stabbed Gulane
but alleged that they had been fighting. He alleged
that Gulane had been hurling insults at him which
provoked him to react; in effect, he alleged that the
mitigating circumstance of passion and obfuscation
was present in this case.57
The Court of Appeals rejected his contention and
stated that no evidence was presented to prove that
immediately before or at the time of the incident,
there was an altercation between accused-appellant
and Gulane that would provoke his reaction.
Panday testified:
Q: Do you remember if there was any altercation
that took place between the accused and the victim
in this case before the incident?
A: I have not heard any argument from both of them
and he stabbed Rodulfo Gulane and Rodulfo Gulane
uttered the words in a vernacular, "Man luba kaman
Ling."58
Pogay further testified:
Q: Before the stabbing incident, have you noticed if
there was an altercation between Rodulfo Gulane
and Marcelino Oloverio?
A: No, sir.59
Panday, however, clarifies:
Q: Now, before the actual stabbing of the victim in
this case, you said there was no altercation between
the accused and Rodulfo Gulane, now, if you can
recall[,] if there was any incident that took place
immediately before the stabbing incident?
A: I cannot say any but what I only say is that I only
saw the incident.60 (Emphasis supplied)
The prosecution could not prove that an altercation
might have occurred between accused-appellant and
Gulane before the incident since their eyewitnesses
could only testify to the actual stabbing.
The Court of Appeals also failed to take into account
the testimony of Lamoste, the defense witness.
Lamoste testified that he and accused-appellant
worked together, as he was then
the barangay captain and accused-appellant was
a barangay tanod. He alleged that accused-
appellant’s daughter once confided to
accusedappellant that Gulane told her that he
wanted to touch her private parts.61
Lamoste testified that about a month before the
incident, he witnessed Gulane telling accused-
appellant, "Kumusta na man mo imo mama nagtap-il
mo imo mama naba mo produkto?" ("How is your
relationship with your mother have you produced
fruits with your mother?") He alleged that accused-
appellant got angry and tried to attack Gulane, but
he was able to intervene and part the two.62
The prosecution did not deny any portion of
Lamoste’s testimony and only insisted that no
altercation occurred immediately before the
stabbing.
Both the trial court and the Court of Appeals
narrowed its understanding of passion and
obfuscation to refer only to the emotions accused-
appellant felt in the seconds before a crime is
committed. It failed to understand that passion may
linger and build up over time as repressed anger
enough to obfuscate reason and self-control.
The circumstances of both victim and accused-
appellant were also not taken into account by the
trial court and the Court of Appeals.
Accused-appellant referred to Gulane as the "datu"
or rich man of Barangay San Pablo. Gulane enjoyed
an economic ascendancy over accused-appellant, a
mere barangay tanod.
Gulane not only threatened to molest accused-
appellant’s daughter but also accused him in public
of having incestuous relations with his mother.
Gulane was said to have insulted accused-appelant
in full view of his immediate superior, the barangay
captain.
Both victim and accused-appellant lived in the small
locality of Palompon, Leyte. As with any small town,
it was a place where a person’s degrading remarks
against another could be made the measure of the
latter’s character. Gulane’s insults would have been
taken into serious consideration by the town’s
residents because of his wealth and stature in the
community.
There was neither a reason given why Gulane acted
that way towards accused-appellant nor any
evidence to show that accused-appellant had
previously wronged him.
The prosecution did not deny that Gulane insulted
accused-appellant on various occasions. The
witnesses could not state with reasonable certainty
that Gulane did not provoke accused-appellant a few
minutes before the incident; they could only testify
to the incident itself and the seconds which
preceded it.
In view of these considerations, we find that the
mitigating circumstance of passion and obfuscation
is present in this case.
455 | P a g e
IV
According to Article 249 of the Revised Penal Code,
homicide is punishable by reclusion temporal. The
trial court and the Court of Appeals considered
accused-appellant’s voluntary surrender to the
authorities as a mitigating circumstance.63 We find
no reason to disturb this conclusion.
Considering that there are two (2) mitigating
circumstances in accused-appellant’s favor, the
imposable penalty must be that which is next lower
to that prescribed by law. Article 64 (5) of the
Revised Penal Code provides:
ARTICLE 64. Rules for the Application of Penalties
Which Contain Three Periods. — In cases in which
the penalties prescribed by law contain three
periods, whether it be a single divisible penalty or
composed of three different penalties, each one of
which forms a period in accordance with the
provisions of articles 76 and 77, the courts shall
observe for the application of the penalty the
following rules, according to whether there are or
are not mitigating or aggravating circumstances:
....
5. When there are two or more mitigating
circumstances and no aggravating circumstances are
present, the court shall impose the penalty next
lower to that prescribed by law, in the period that it
may deem applicable, according to the number and
nature of such circumstances.
Accordingly, the imposable penalty is prision mayor.
Applying the Indeterminate Sentence Law, accused-
appellant should be sentenced to suffer the penalty
of imprisonment, the minimum of which should be
within the range of prision correccional64 and the
maximum of which should be within the range
of prision mayor.65
Based on the records, accused-appellant was put
under preventive imprisonment pending his
conviction by the trial court.
In accordance with Article 29 of the Revised Penal
Code, the time undergone by accused-appellant
under preventive imprisonment shall be credited to
his service of sentence, provided that he has given
his written conformity to abide by the disciplinary
rules imposed upon convicted prisoners. The
provision states:
"ART. 29. Period of preventive imprisonment
deducted from term of imprisonment. – Offenders or
accused who have undergone preventive
imprisonment shall be credited in the service of their
sentence consisting of deprivation of liberty, with
the full time during which they have undergone
preventive imprisonment if the detention prisoner
agrees voluntarily in writing after being informed of
the effects thereof and with the assistance of
counsel to abide by the same disciplinary rules
imposed upon convicted prisoners, except in the
following cases:
"1. When they are recidivists, or have been
convicted previously twice or more times of any
crime; and
"2. When upon being summoned for the execution
of their sentence they have failed to surrender
voluntarily.
"If the detention prisoner does not agree to abide by
the same disciplinary rules imposed upon convicted
prisoners, he shall do so in writing with the
assistance of a counsel and shall be credited in the
service of his sentence with four-fifths of the time
during which he has undergone preventive
imprisonment[.]"66
The letter of PGI Gilbert P. Cayubit, Officer-in-Charge
of the Leyte Sub-Provincial Jail, stated that accused-
appellant had been transferred to Leyte Regional
Prison on May 4, 2010.67 The transfer to Leyte
Regional Prison was also confirmed by SO2 Jorge A.
Colanta, Officer-in-Charge of the Leyte Regional
Prison, who stated that accused-appellant was
received by the prison on May 27, 2010.68
As the exact length of time cannot be determined
with certainty, the trial court shall determine the
exact period of preventive imprisonment that may
be credited in accused-appellant’s favor.
The monetary awards must also be modified. In a
prosecution for murder or homicide, civil indemnity
and moral damages may be awarded without need
of further proof other than the victim’s death. 69 The
monetary awards of _50,000.00 in civil indemnity
and _50,000.00 in moral damages are in line with
prevailing jurisprudence.70 Temperate damages may
also be awarded in lieu of actual damages, as in this
case where the prosecution failed to prove proof of
actual damages.71 The award of exemplary damages,
however, ·must be deleted in view of Article 2230 of
the Civil Code.72
WHEREFORE, the Decision of the Court of Appeals
is SET ASIDE. Accused-appellant Marcelino Oloverio
is found GUILTY beyond reasonable doubt of the
crime of homicide under Article 249 of the Revised
Penal Code.
As the crime was attended with the mitigating
circumstances of passion and obfuscation and
voluntary surrender with no aggravating
circumstance, accused-appellant Marcelino Oloverio
is SENTENCED to suffer the indeterminate penalty of
456 | P a g e
imprisonment for two (2) years, four ( 4) months, Pursuant to Section 13, Article VIII of the
and one ( 1) day of prision correccional as minimum, Constitution, I certify that the conclusions in the
to eight (8) years and one (1) day of prision mayor as above Decision had been reached in consultation
maximum.73 The period of his preventive before the case was assigned to the writer of the
imprisonment shall be credited in his favor if he has opinion of the Court's Division.
given his written confonnity to abide by the
disciplinary rules imposed upon convicted prisoners ANTONIO T. CARPIO
in accordance with Article 29 of the Revised Penal
Code, as amended. Acting Chief Justice
Accused-appellant Marcelino Oloverio is further
Republic of the Philippines
ordered to pay the heirs of Rodulfo Gulane the
SUPREME COURT
amounts of P50,000.00 as civi.l indemnity,
Manila
P50,000.00 as moral damages, and P25,000.00 as
temperate damages. All damages awarded shall be
subject to the rate of 6% legal interest per annum FIRST DIVISION
from the finality of this Decision until its full
satisfaction. G.R. No. 181753 October 9, 2013
SO ORDERED. PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
MARVIC M.V.F. LEONEN RAMON PLACER, Accused-Appellant.
Associate Justice
DECISION
WE CONCUR:
BERSAMIN, J.:
ANTONIO T. CARPIO
Associate Justice In the absence of proof beyond reasonable doubt
Chairperson that treachery attended the killing of the victim, the
crime is homicide, not murder.
PRESBITERO J. VELASCO, JR.
Associate Justice Ramon Placer hereby appeals the affirmance of his
conviction for murder promulgated by the Court of
Appeals CA) on August 31, 2007.
MARIANO C. DEL CASTILLO
Associate Justice
Antecedents
JOSE CATRAL MENDOZA
On August 3, 2001, the Office of the Provincial
Associate Justice
Prosecutor of Sorsogon charged Ramon and his
CERTIFICATION
brother Virgilio Placer with murder in the Regional
Trial Court RTC) in Sorsogon City, alleging thuswise:
That on or about June 24, 2001, at more or less 7:00
o’clock in the evening at barangay Somagongsong,
Municipality of Bulan, Province of Sorsogon,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, while
armed with a bladed weapon, conspiring,
confederating and mutually helping one another,
with intent to kill, with treachery, evident
premeditation and abuse of superior strength, did
then and there willfully, unlawfully, and feloniously
attack, assault and stab one Rosalino Gernale,
thereby inflicting mortal/fatal wounds which caused
his instantaneous death to the damage and
prejudice of his legal heirs.
CONTRARY TO LAW.2
After the two accused pleaded not guilty to the
foregoing information,3 trial ensued.
The State presented seven witnesses, namely: Maria
Gernale, Dr. Estrella Payoyo, Dr. Joseph Chavez, Gina
Listana, Angelina Gestiada, SPO3 June Dominguez,
and SPO2 Eulogio Santos. In the Brief for the People,
the Office of the Solicitor General (OSG) summed up
the State’s evidence,4 viz:
xxxx
On June 24, 2001, around 7 P.M., Maria Gernale and
her husband, Rosalino Gernale, were on their way
home to Brgy. Inararan, Bulan, Sorsogon on board a
tricycle. They were in the company of Maria’s father,
another female passenger and five (5) young
children. While their tricycle was moving, another
tricycle carrying appellants Ramon and Virgilio Placer
almost hit them. Appellants and Rosalino alighted
[from] their respective tricycles and a heated
457 | P a g e
altercation ensued between them. When things had
subsided, Gernale and appellants proceeded their
separate ways. (TSN, March 24, 2002, p. 9)
Sometime later, Maria realized that appellants were
chasing them. The latter were able to overtake the
tricycle driven by Rosalino and later blocked its path.
Appellants alighted from their tricycle and
proceeded towards the direction of Rosalino who
had also alighted from his tricycle. A confrontation
followed and Angelina Gestiada, Rosalino’s sister,
tried to pacify appellants. But appellant Ramon
Placer did not heed as he stabbed Rosalino in the
chest. (Id) Maria who was only about two (2) steps
away saw the incident. (TSN, January 7, 2002, p. 10)
Rosalino fell towards the direction of his tricycle and
just as he was about to fall, this time Virgilio stabbed
him in the stomach. (Id)
Thereafter, appellants immediately fled the area on
board their tricycle. It was Virgilio who drove the
tricycle. Maria frantically shouted for help and
Angelina ran towards the house of their nearest
relative to ask for assistance. Rosalino was brought
to the Bulan Municipal Hospital where he was
pronounced dead. (TSN, May 7, 2002, p.7)
Dr. Estrella A. Payoyo, of the Rural Health Unit, Bulan
Municipal Hospital, testified that the immediate
cause of Rosalino’s death was internal hemorrhage
secondary to multiple stab wounds. (TSN, January 7,
2002, p. 16) Dr. Joseph Chavez, the Medical Officer
of Bulan Municipal Hospital who prepared the
necropsy report testified that the multiple stab
wounds inflicted upon Rosalino were fatal and that
some vital organs were injured. The possible assault
weapon according to Dr. Chavez was a sharp pointed
object, more or less 0.5 cm. in width with a gape of
0.5 cm. (TSN, February 11, 2002, pp. 5-7)
Rosalino’s sister, Angelina Gestiada, reported the
incident to the police authorities. (Police Blotter,
Entry No. 1308, p. 281, June 24, 2001) Angelina
accompanied SPO3 June Dominguez and a Barangay
Kagawad of Somagongsong to the residence of
appellant Virgilio Placer but the latter’s wife
informed them that Virgilio was out. When they
reached the residence of appellant Ramon Placer,
they were informed that the latter had also gone
out. SPO2 Eulogio Santos and PO1 Giado discovered
the tricycle used by appellants parked some fifty (50)
meters away from the house of the father of
appellants. (TSN, July 9, 2002, p. 11)
On June 25, 2001, Ramon Placer voluntarily
surrendered himself to Brgy. Capt. Rey Loilo of
Beguin, Bulan, Sorsogon who then accompanied him
to the local police authorities.
xxxx
On the other hand, the version of the Defense was
rendered by Ramon and three other witnesses,
namely: Aproniana Manchos, Rey Loilo and SPO2
Eugenio Magno. Virgilio opted not to testify in court.
The CA summarized this version in its
decision,5 thusly:
xxxx
Ramon tried to show that he was informed by Randy
Gordola that Virgilio was having an altercation with
someone, who turned out to be Rosalino. Ramon
rode his bicycle and proceeded to the place
mentioned. Ramon saw Rosalino chasing Virgilio
with a bolo, but the latter was able to go inside a
fence, and Rosalino being pulled by his wife.
Rosalino went to his tricycle and drove away. After a
while, Rosalino stopped, alighted from his tricycle
and returned to the place where he chased Virgilio.
Ramon told Rosalino to go home in order to avoid
trouble. Rosalino asked Ramon who he was, uttered
invectives and attacked the latter. Ramon was
surprised and boxed Rosalino on the mouth, causing
the latter to fall on the ground. Rosalino stood up
and attempted to stab Ramon with a Batangas knife,
but the latter was able to grab the Batangas knife
and he stabbed Rosalino. Ramon, who could not
remember how many times he stabbed Rosalino,
then ran towards his house. The following day,
Ramon went to the house of Barangay Captain Rey
Loilo and requested the latter to accompany him to
the police authorities in order to surrender himself
and the knife which he used in stabbing somebody.
Appropriana Manchos, an aunt of Ramon and
Virgilio, testified that she was inside her house when
she heard a commotion. She ran to the place of the
commotion, which was about 80-100 meters away
from her house, and she saw Ramon being attacked
by someone. Ramon retaliated by boxing said person
on the mouth, causing the latter to fall down. Said
person then stood up holding a bladed weapon and
tried to stab Ramon. Ramon was able to get hold of
the knife and stabbed said person. Appropriana
stated that she did not see Virgilio at the place of the
incident.
xxxx
After trial, the RTC convicted Ramon and Virgilio of
murder upon finding the States’s version more
credible than that of the Defense,6 decreeing:
WHEREFORE, premises considered, accused RAMON
PLACER and VIRGILIO PLACER having been found
GUILTY beyond reasonable doubt of the crime of
MURDER defined and penalized under Article 248 of
the Revised Penal Code, as amended by RA 7659, are
hereby sentenced as follows:
458 | P a g e
a) RAMON PLACER being the principal by
direct participation involved in the actual
killing of ROSALINO GERNALE (deceased), to
him is imposed the indivisible penalty of
RECLUSION PERPETUA regardless of the
presence of mitigating circumstance of
VOLUNTARY SURRENDER (Art. 63, Revised
Penal Code), with all the accessory
penalties;
b) VIRGILIO PLACER having been found to
be liable as an ACCOMPLICE, to him is
imposed the lesser indeterminate penalty
of 8 years and 1 day of prision mayor, as
minimum, to 14 years, 10 months and 20
days of reclusion temporal, as maximum,
absent any mitigating or aggravating
circumstance (par. (1), Art. 64, Revised
Penal Code, as amended)
c) To indemnify the heirs of the late
Rosalino Gernale jointly and solidarily in the
amount of ₱25,000.00 as actual damages;
₱50,000.00 as civil indemnity for his death;
and another ₱50,000.00 as moral damages;
and to pay the costs.
The period of preventive imprisonment already
served by accused Virgilio and Ramon both
surnamed Placer, shall be credited in the service of
their sentences pursuant to Article 29 of the R.P.C.,
as amended.
SO ORDERED.
Ramon and Virgilio appealed via notice of appeal
directly to the Court,7 but the Court remanded the
appeal to the CA on February 20, 2006.8 Virgilio
subsequently filed an Urgent Motion to Withdraw
Appeal in the CA,9 averring that he had already
served more than six years in detention for this case
and had thus qualified to apply for parole or
executive clemency; that he had already applied for
parole or executive clemency; and that he would
need a certification of non-appeal to support his
application for parole or executive clemency.10 Upon
verification from Atty. Elmer M. Rejano, then the
Acting Chief Legal Officer of the Bureau of
Corrections, that Virgilio had voluntarily executed his
motion and had fully understood its
consequences,11 the CA granted the Urgent Motion
to Withdraw Appeal and considered the appeal
closed and terminated as to him.12
As earlier mentioned, the CA affirmed Ramon’s
conviction on August 31, 2007.13 Hence, his present
appeal.
Issues
Ramon still contends that he incurred no criminal
liability because he had acted in self-defense in
stabbing Rosalino; that, assuming that he was
criminally liable for the killing of the victim, the
crime committed was homicide, not murder; and
that his voluntary surrender was a mitigating
circumstance that entitled him to a lower penalty.14
Ruling
The appeal is partly meritorious.
I. Ramon’s plea of self-defense was not established
By pleading self-defense, Ramon admitted the
authorship of the killing of Rosalino Gernale. The
consequence of the plea of self-defense was to shift
to Ramon’s shoulders the burden of evidence, that
he must then prove clearly and convincingly the
following elements of self-defense, to wit: (1)
unlawful aggression on the part of the victim; (2)
reasonable necessity of the means employed to
prevent or repel the attack; and (3) lack of sufficient
provocation on the part of the person defending
himself.15 Although the elements must concur, self-
defense must rest firstly on proof of the unlawful
aggression on the part of the victim.
There can be no self-defense, whether complete or
incomplete, if no unlawful aggression from the
victim is established.16 In self-defense, unlawful
aggression is a primordial element, a condition sine
qua non. If no unlawful aggression attributable to
the victim is established, self-defense is not a
defense, because there would then be nothing to
repel on the part of the accused.17
In People v. Nugas,18 the Court has properly
delineated the character of unlawful aggression as
an indispensable element of self-defense in the
following manner:
x x x. The test for the presence of unlawful
aggression under the circumstances is whether the
aggression from the victim put in real peril the life or
personal safety of the person defending himself; the
peril must not be an imagined or imaginary threat.
Accordingly, the accused must establish the
concurrence of three elements of unlawful
aggression, namely: (a) there must be a physical or
material attack or assault; (b) the attack or assault
must be actual, or, at least, imminent; and (c) the
attack or assault must be unlawful.
Unlawful aggression is of two kinds: (a) actual or
material unlawful aggression; and (b) imminent
unlawful aggression. Actual or material unlawful
aggression means an attack with physical force or
with a weapon, an offensive act that positively
determines the intent of the aggressor to cause the
injury. Imminent unlawful aggression means an
attack that is impending or at the point of
459 | P a g e
happening; it must not consist in a mere threatening
attitude, nor must it be merely imaginary, but must
be offensive and positively strong (like aiming a
revolver at another with intent to shoot or opening a
knife and making a motion as if to attack). Imminent
unlawful aggression must not be a mere threatening
attitude of the victim, such as pressing his right hand
to his hip where a revolver was holstered,
accompanied by an angry countenance, or like
aiming to throw a pot.
The fatal confrontation between Rosalino emanated
from the near collision between Rosalino’s tricycle
and the tricycle driven by Virgilio which then also
carried Ramon. The near collision immediately led to
a heated exchange of words between Rosalino and
Virgilio, but they later parted with each going his
separate way. However, Virgilio soon after pursued
Rosalino’s tricycle and blocked its path. Both Ramon
and Virgilio quickly alighted from their tricycle to
confront Rosalino, who also alighted from his tricycle
to protest. It was at that point when Ramon
assaulted Rosalino by stabbing the latter in the chest
with his balisong, causing the latter to fall towards
his own tricycle. On his part, Virgilio also stabbed
Rosalino in the stomach supposedly with an ice pick
just as the latter was falling down from Ramon’s
attack,19 but Virgilio’s supposed assault with the ice
pick was deemed by the RTC to be unproved. This
sequence of the events showed that the aggression
originated from Ramon, not from Rosalino, thereby
removing any factual and legal bases for Ramon’s
plea of self-defense.
II. Ramon committed homicide, not murder
Murder is defined and punished by Article 248 of the
Revised Penal Code (RPC), as amended by Republic
Act No. 7659, viz:
Article 248. Murder. — Any person who, not falling
within the provisions of Article 246 shall kill another,
shall be guilty of murder and shall be punished by
reclusion perpetua to death, if committed with any
of the following attendant circumstances:
1. With treachery, taking advantage of superior
strength, with the aid of armed men, or employing
means to weaken the defense or of means or
persons to insure or afford impunity.
xxxx
There is treachery when the offender commits any of
the crimes against persons, employing means,
methods or forms in the execution thereof which
tend directly and specially to insure its execution,
without risk to himself arising from the defense
which the offended party might make.20 Treachery is
not presumed but must be proved as conclusively as
the crime itself.21
The essence of treachery is the sudden and
unexpected attack on the unsuspecting victim. 22
Hence, treachery is absent when the victim was
placed on his guard, like when a heated argument
has preceded the attack,23 or when the victim was
standing face to face with his assailants.24
The fatal stabbing of Rosalino by Ramon was
immediately preceded by two altercations between
Ramon and Virgilio, on one hand, and Rosalino, on
the other. The first altercation occurred right after
the near-collision of the tricycles,25 while the other
happened shortly after Ramon and Virgilio had
blocked Rosalino’s tricycle.26 During the second
altercation, Rosalino stood face to face with Ramon
and Virgilio. It was then when Ramon stabbed the
victim twice,27 the sequential method of attack being
borne out in the necropsy report showing that
Rosalino had sustained two fatal stab wounds in the
chest and abdomen.28 Under the circumstances,
Rosalino was rendered completely aware of the
imminent danger to himself from Ramon and
Virgilio, rendering their assault far from sudden and
unexpected as to put Rosalino off his guard against
any deadly assault. To stress, treachery cannot be
appreciated if the victim was forewarned of an
impending danger and could have foreseen the
aggression of the accused.
With treachery not being proved beyond reasonable
doubt, the crime Ramon was properly guilty of was
homicide. Pursuant to Article 249 of the Revised
Penal Code, the penalty for homicide is reclusion
temporal.29
III. Ramon’s voluntary surrender was a mitigating
circumstance that lowered the imposable penalty
Voluntary surrender is a circumstance that reduces
the penalty for the offense. Its requisites as a
mitigating circumstance are that: (1) the accused has
not been actually arrested; (2) the accused
surrenders himself to a person in authority or the
latter’s agent; and (3) the surrender is voluntary.30
The presence of the foregoing requisites was
sufficiently proven by Ramon. He had voluntarily
yielded himself and the balisong used in the stabbing
to Barangay Chairman Rey Loilo of Beguin, Bulan,
Sorsogon, who then brought him and the weapon to
the police station for proper disposal. This took place
at about 9:25 o’clock in the morning of June 25,
2001, the day following the fatal stabbing of Rosalino
in the evening of June 24, 2001. The time and
manner of the surrender were documented in the
police blotter of Bulan Police Station.31 That the
surrender preceded the filing of the criminal
complaint with the Municipal Trial Court of Bulan on
June 27, 200132 is notable. There is every indication
460 | P a g e
that the surrender was spontaneous on Ramon’s
part,33 indicating his intent to unconditionally submit
himself to the authorities, either because he
acknowledged his guilt or he wished to save them
the trouble and expenses necessary for his search
and capture.34
Upon taking the mitigating circumstance of voluntary
surrender into consideration, the imposable penalty
is the minimum period of reclusion temporal, that is,
from 12 years and one day to 14 years and eight
months.35 The range of the indeterminate penalty
under the Indeterminate Sentence Law is prision
mayor in any of its periods, as minimum, to the
minimum period of reclusion temporal minimum, as
maximum. Accordingly, Ramon’s indeterminate
penalty is eight years and one day of prision mayor,
as minimum, to 14 years of reclusion temporal, as
maximum.
IV. Despite his non-appeal, Virgilio’s criminal liability
should be downgraded
The revised characterization of the crime committed
as homicide necessarily favors Virgilio despite his
non-appeal. As an accomplice in murder, he was
prescribed the indeterminate penalty of eight years
and one day of prision mayor, as minimum, to 14
years, ten months and 20 days of reclusion temporal,
as maximum, but he should now instead be found
guilty conformably with this decision as an
accomplice in homicide, a result definitely favorable
to him as an accused. Pursuant to Article 52, Revised
Penal Code, the accomplice is imposed the penalty
next lower in degree than that prescribed by law for
the consummated felony. He is entitled to the
benefits of the lighter sentence.
As such, Virgilio’s penalty should be within the
medium period of prision mayor, the penalty next
lower in degree to reclusion temporal, to be
imposed in the medium period due to the absence of
any modifying circumstances. The duration of the
penalty is from eight years and one day to ten
years.36 Considering that the minimum of the
indeterminate sentence under the Indeterminate
Sentence Law is taken from prision correccional, the
penalty next lower in degree to prision mayor, which
ranges from six months and one day to six years, his
sentence is modified to an indeterminate penalty of
two years of prision correccional, as minimum, to
eight years and one day of prision mayor, as
maximum.
WHEREFORE the Court FINDS AND DECLARES
appellant RAMON PLACER guilty of homicide and
IMPOSES on him the indeterminate penalty of eight
years and one day of prision mayor as minimum to
14 years of reclusion temporal as maximum.
The Court CORRECTS the indeterminate penalty
imposed on VIRGILIO PLACER to two years of prision
correccional as minimum to eight years and one day
of prision mayor as maximum.
Costs of suit to be paid by appellant RAMON PLACER.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
September 4, 2017
G.R. No. 224886
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee
vs.
ROGER RACAL @ RAMBO, Accused-Appellant
 DECISION
PERALTA, J.:
Before the Court is an ordinary appeal filed by
accused-appellant, Roger Racal @ Rambo (Racal),
assailing the Decision1 of the Court of Appeals (CA),
dated February 27, 2015, in CA-G.R. CR-H.C. No.
01450, which affirmed, with modification, the
Decision2 of the Regional Trial Court (RTC) of Cebu
City, Branch 18, in Criminal Case No. CBU-77654,
finding herein appellant guilty of the crime of
murder and imposing upon him the penalty
of reclusion perpetua.
The antecedents are as follows:
In an Information filed by the Cebu City Prosecutor's
Office on August 15, 2006, Racal was charged with
the crime of murder as defined and penalized under
Article 248 of the Revised Penal Code (RPC), as
amended. The accusatory portion of the Information
reads, thus:
That on or about the 19th day of April 2006, at about
4:20 A.M., more or less, in the City of Cebu,
Philippines, and within the jurisdiction of this
Honorable Court, the said accused, armed with a
knife, with deliberate intent, with treachery and
evident premeditation, and with intent to kill, did
then and there, suddenly and unexpectedly, attack,
assault, and use personal violence upon the person
of one Jose "Joe" Francisco by stabbing the latter, at
his body, thereby inflicting a fatal wound and as a
consequence of which he died.
CONTRARY TO LAW.3
Upon arraignment, Racal entered a plea of not
guilty.4 Subsequently, trial on the merits ensued.
461 | P a g e
The evidence for the prosecution established that
around 4 o'clock in the morning of April 19,
2006, "trisikad" drivers were lining up to pick
passengers along Lopez St. at Sitio Alseca in Cebu
City. Among the "trisikad" drivers was Jose Francisco
(Francisco). Also present at that place during that
time was Racal, who was then standing near
Francisco. While the "trisikad" drivers were waiting
for passengers, Racal spoke in a loud voice, telling
the group of drivers not to trust Francisco because
he is a traitor. Francisco, who was then holding a
plastic container in one hand and a bread in another,
and was eating, retorted and asked Racal why the
latter called him a traitor. Without warning, Racal
approached Francisco and stabbed him several times
with a knife, hitting him in the chest and other parts
of his body. Francisco, then, fell to the pavement.
Immediately thereafter, Racal stepped backwards
and upon reaching a dark portion of the street, he
hailed a "trisikad" and sped away. Thereafter, one of
the "trisikad" drivers called the barangay tanod, but
by the time they arrived, Francisco was already dead.
Racal, on his part, did not deny having stabbed
Francisco. However, he raised the defense of
insanity. He presented expert witnesses who
contended that he has a predisposition to snap into
an episode where he loses his reason and thereby
acts compulsively, involuntarily and outside his
conscious control. Under this state, the defense
argued that Racal could not distinguish right from
wrong and, thus was not capable of forming a
mental intent at the time that he stabbed Francisco.
After Trial, the RTC rendered judgment convicting
Racal as charged. The dispositive portion of the RTC
Decision, dated September 14, 2011, read as follows:
WHEREFORE, on the following considerations, the
court renders judgment finding accused ROGER
RACAL @ RAMBO guilty beyond reasonable doubt of
Murder and sentences him to the penalty
of reclusion perpetua with all its accessory penalties.
He is likewise directed to pay the heirs of the late
Jose "Joe" Francisco the amount of Thirty Thousand
Pesos (P30,000.00) as actual damages, Seventy-Five
Thousand Pesos (P75,000.00) as civil indemnity, and
Fifty Thousand Pesos (PS0,000.00) as moral
damages.
SO ORDERED.5
The RTC ruled that the evidence for the defense is
insufficient to convince the court that Racal was
indeed deprived of his mind and reason at the time
when he committed the crime as to exempt him
from criminal liability becaµse his depression and
psychotic features are not the kind of insanity
contemplated by law. The trial court found the
circumstance of treachery to be present, but ruled
out the presence of the aggravating circumstance of
evident premeditation.
Racal filed a Motion for Reconsideration6 contending
that the trial court failed to appreciate the mitigating
circumstances of sufficient provocation on the part
of the offended party and voluntary confession of
guilt on the part of Racal. However, the RTC denied
the Motion for
Reconsideration in its Order7 dated December 15,
2011. Aggrieved by the ruling of the RTC, Racal
appealed to the CA. In his Appellant's Brief, Racal
reiterated his defense of insanity contending that, at
the time he stabbed the victim, he snapped into a
fatal episode of temporary loss of rational judgment
and that such a predisposition to "snap" was
testified upon by his expert witnesses.
In its assailed Decision, the CA affirmed the
conviction of Racal but modified the judgment of the
RTC by imposing interest on the damages awarded.
The CA disposed, thus:
WHEREFORE, the September 14, 2011 Judgment in
Criminal Case No. CBU-77654, convicting accused-
appellant Roger Racal @ Rambo of Murder and
sentencing him with reclusion perpetua and its
accessory penalties is AFFIRMED with
MODIFICATION. Accusedappellant is also ORDERED
to pay the heirs of Jose "Joe" Francisco, interest on
damages awarded, the amount of 6% from the date
of finality of the judgment until fully paid, and to pay
costs.
SO ORDERED. 8
The CA held that the prosecution proved all the
elements of the crime necessary to convict Racal for
the murder of Francisco. The CA gave credence to
the testimonies of the prosecution witnesses. It also
affirmed the presence of the qualifying circumstance
of treachery and affirmed the trial court in ruling out
the presence of the aggravating circumstance of
evident premeditation. As to Racal's defense of
insanity, the CA held that he failed to rebut the
presumption the he was sane at the time of his
commission of the crime. The CA, nonetheless,
appreciated the mitigating circumstance which is
analogous to an illness of the offender that would
diminish the exercise of his will-power.
Racal filed a Motion for
Reconsideration,9 questioning the penalty imposed
upon him, but the CA denied it in its Resolution 10 of
October 22, 2015.
Thus, on November 23, 2015, Racal, through
counsel, filed a Notice of Appeal 11 manifesting his
intention to appeal the CA Decision to this Court.
462 | P a g e
In its Resolution 12 dated March 16, 2016, the CA
gave due course to Racal's Notice of Appeal and
directed its Archives Section to transmit the records
of the case to this Court.
Hence, this appeal was instituted.
In a Resolution13 dated July 20, 2016, this Court,
among others, notified the parties that they may file
their respective supplemental briefs, if they so
desire.
In its Manifestation and Motion, 14 filed on
September 23, 2016, the Office of the Solicitor
General (OSG) manifested that it will no longer file a
supplemental brief because it had already
adequately addressed in its brief filed before the CA
all the issues and arguments raised by accused-
appellant in his brief.
On the other hand, Racal filed a Supplemental
Brief15 dated October 21, 2016, reiterating his
defense of insanity by contending that at the time of
the commission of the crime, expert evidence
demonstrates that he had, within him, predisposing
factors that cause insanity. He also argues that the
lower courts failed to appreciate the mitigating
circumstances of sufficient provocation on the part
of the victim and voluntary confession of guilt on his
part.
The basic issue for the Court's resolution in the
present appeal is whether or not the CA correctly
upheld the conviction of herein appellant, Racal, for
murder.
The Court rules in the affirmative.
At the outset, it bears to reiterate that in the review
of a case, the Court is guided by the long-standing
principle that factual findings of the trial court,
especially when affirmed by the CA, deserve great
weight and respect.16 These factual findings should
not be disturbed on appeal, unless there are facts of
weight and substance that were overlooked or
misinterpreted and that would materially affect the
disposition of the case.17
In the present case, after a careful rading of the
records and pleadings, this Court finds no cogent
reason to deviate from the RTC’s factual findings.
There is no indication that the trial court,
overlooked, misunderstood or misapplied the
surrounding facts and circumstances of the case.
Moreover, the factual findings of the RTC are
affirmed by the CA. Hence, the Court defers to the
trial court in this respect, especially considering that
it was in the best position to assess and determine
the credibility of the witnesses presented by both
parties.
In any case, the Court will proceed to resolve the
present appeal on points of law.
The Information in the instant case charged
appellant with the crime of murder, for stabbing the
victim, Francisco, which offense was alleged to have
been attended by treachery and evident
premeditation.
Murder is defined and punished by Article 248 of the
RPC, as amended by Republic Act No. 7659, to wit:
Article 248. Murder. - Any person who, not falling
within the provisions of Article 246, shall kill another,
shall be guilty of murder and shall be punished
by reclusion perpetua, to death if committed with
any of the following attendant circumstances:
1. With treachery, taking advantage of superior
strength, with the aid of armed men, or employing
means to weaken the defense or of means or
persons to insure or afford impunity;
xxx
2. With evident premeditation;
xxx
To successfully prosecute the crime of murder, the
following elements must be established: (1) that a
person was killed; (2) that the accused killed him or
her; (3) that the killing was attended by any of the
qualifying circumstances mentioned in Article 248 of
the RPC; and (4) that the killing is not parricide or
infanticide.18
In the present case, the prosecution was able to
clearly establish that (1) Francisco was stabbed and
killed; (2) appellant stabbed and killed him; (3)
Francisco's killing was attended by the qualifying
circumstance of treachery as testified to by
prosecution eyewitnesses; and, (4) the killing of
Francisco was neither parricide nor infanticide.
Paragraph 16, Article 14 of the RPC defines treachery
as the direct employment of means, methods, or
forms in the execution of the crime against persons
which tend directly and specially to insure its
execution, without risk to the offender arising from
the defense which the offended party might make.
The essence of treachery is that the attack is
deliberate and without warning, done in a swift and
unexpected way, affording the hapless, unarmed and
unsuspecting victim no chance to resist or
escape. 19 In order for treachery to be properly
appreciated, two elements must be present: (1) at
the time of the attack, the victim was not in a
position to defend himself; and (2) the accused
consciously and deliberately adopted the particular
means, methods, or forms of attack employed by
463 | P a g e
him.20 These elements are extant in the facts of this In the absence of evidence to the contrary, the law
case and as testified to by the prosecution witnesses. presumes that every person is of sound mind and
To emphasize, the victim, Francisco, was caught off that all acts are voluntary. The moral and legal
guard when appellant attacked him. As testified to presumption under our law is that freedom and
by a prosecution witness, Francisco was then holding intelligence constitute the normal condition of a
a plastic container containing bread and was eating. person. This presumption, however, may be
The stealth, swiftness and methodical manner by overthrown by other factors; and one of these is
which the attack was carried out gave the victim no insanity which exempts the actor from criminal
chance at all to evade when appellant thrust the liability.
knife to his torso. Thus, there is no denying that
appellant's sudden and unexpected onslaught upon The Revised Penal Code in Article 12 (1) provides:
the victim, and the fact that the former did not
sustain any injury, evidences treachery. Also, the fact ART. 12. Circumstances which exempt from criminal
that appellant was facing Francisco when he stabbed liability. The following are exempt frorri criminal
the latter is of no consequence. Even a frontal attack liability:
could be treacherous when unexpected and on an
unarmed victim who would be in no position to repel
1. An imbecile or an insane person, unless the latter
the attack or avoid it,21 as in this case. Undoubtedly,
has acted during a lucid interval.
the RTC and the CA correctly held that the crime
committed was murder under Article 248 of the RPC
When the imbecile or an insane person has
by reason of the qualifying circumstance of
committed an act which the law defines as a felony
treachery.
(delito), the court shall order his confinement in one
of the hospitals or asylums established for persons
Appellant, nonetheless, insists on his defense of
thus afflicted, which he shall not be permitted to
insanity. In this regard, the Court's pronouncement
leave without first obtaining the permission of the
in the case of People v. Estrada22 is instructive, to
same court.
wit:
An insane person is exempt from criminal liability
The basic principle in our criminal law is that a
unless he has acted during a lucid interval. If the
person is criminally liable for a felony committed by
court therefore finds the accused insane when the
him. Under the classical theory on which our penal
alleged crime was committed, he shall be acquitted
code is mainly based, the basis of criminal liability is
but the court shall order his confinement in a
human free will. Man is essentially a moral creature
hospital or asylum for treatment until he may be
with an absolutely free will to choose between good
released without danger. An acquittal of the accused
and evil. When he commits a felonious or criminal
does not result in his outright release, but rather in a
act (delito doloso), the act is presumed to have been
verdict which is followed by commitment of the
done voluntarily, i.e., with freedom, intelligence and
accused to a mental institution.
intent. Man, therefore, should be adjudged or held
accountable for wrongful acts so long as free will
In the eyes of the law, insanity exists when there is a
appears unimpaired.
complete deprivation of intelligence in committing
the act. Mere abnormality of the mental faculties
will not exclude imputability. The accused must be
"so insane as to be incapable of entertaining a
criminal intent." He must be deprived of reason and
act without the least discernment because there is a
complete absence of the power to discern or a total
deprivation of freedor~/ of the will.
Since the presumption is always in favor of sanity, he
who invokes insanity as an exempting circumstance
must prove it by clear and positive evidence. And the
evidence on this point must refer to the time
preceding the act under prosecution or to the very
moment of its execution.
To ascertain a persons mental condition at the time
of the act, it is permissible to receive evidence of the
condition of his mind within a reasonable period
both before and after that time. Direct testimony is
not required. Neither are specific acts of
derangement essential to establish insanity as a
defense. Circumstantial evidence, if clear and
convincing, suffices; for the unfathomable mind can
only be known by overt acts. A person's thoughts,
motives, and emotions may be evaluated only by
outward acts to determine whether these conform
to the practice of people of sound mind.23
In the present case, the defense failed to overcome
the presumption of sanity. The testimonies of Dr.
Preciliana Lee Gilboy (Dr. Gilboy) and Dr. Andres
Suan Gerong (Dr. Gerong), as the defense's qualified
expert witnesses, failed to support appellant's claim
of insanity. As correctly observed by the CA, the
separate psychiatric evaluations of appellant were
taken in June 2009 and July 2010, which are three
and four years after the crime was committed on
April 19, 2006. In People v. So,24 which is a case of
recent vintage, this Court ruled that an inquiry into
the mental state of an accused should relate to the
period immediately before or at the very moment
the felony is committed.25 Hence, the results of the
464 | P a g e
psychiatric tests done on appellant and testified to
by the defense witnesses, may not be relied upon to
prove appellant's mental condition at the time of his
commission of the crime.
In any case, during cross-examination, Dr. Gilboy
testified that for a number of years up to the time
that appellant killed Francisco, he had custody of and
served as the guardian of his sister's children.26 He
took care of their welfare and safety, and he was the
one who sends them to and brings them home from
school. Certainly, these acts are not manifestations
of an insane mind. On his part, Dr. Gerong testified,
on direct examination, that he found appellant to
have "diminish[ ed] capacity to discern what was
wrong or right at the time of the commission of the
crime."27 "Diminished capacity" is not the same as
"complete deprivation of intelligence or
discernment." Mere abnormality of mental faculties
does not exclude imputability. 28 Thus, on the basis
of these examinations, it is clearly evident that the
defense failed to prove that appellant acted without
the least discernment or that he was suffering from a
complete absence of intelligence or the power to
discern at the time of the commission of the crime.
Furthermore, appellant's act of treachery, that is by
employing means and methods to ensure the killing
of Francisco without risk to himself arising from the
defense which the victim might make, as well as his
subsequent reaction of immediately fleeing after his
commission of the crime and, thereafter, evading
arrest, is not the product of a completely aberrant
mind. In other words, evidence points to the fact
that appellant was not suffering from insanity
immediately before, simultaneous to, and even right
after the commission of the crime.
In his Supplemental Brief, appellant cites
the "Durham Rule" which was used in criminal courts
in the United States of America. This rule postulated
that an accused is not criminally responsible if his
unlawful act was the result of a mental disease or
defect at the time of the incident.29 However, in
subsequent rulings, US Federal Courts and State
Courts, even by the court which originally adopted it,
rejected and abandoned this rule for being too broad
and for lacking a clear legal standard for criminal
responsibility. 30 As earlier discussed, in the
Philippines, the courts have established a clearer and
more stringent criterion for insanity to be exempting
as it is required that there must be a complete
deprivation of intelligence in committing the act, i.e.,
the accused is deprived of reason; he acted without
the least discernment because there is a complete
absence of the power to discern, or that there is a
total deprivation of the will.31 Thus, appellant's
reliance on the Durham Rule is misplaced and, thus,
may not be given credit.
Having been shown beyond doubt that the
prosecution was able to prove with certainty all the
elements of the crime charged, the Court will now
proceed to determine the correctness of the penalty
and the civil liabilities imposed upon appellant.
As to the penalty, the crime of murder qualified by
treachery is penalized under Article 248 of the RPC,
as amended by Republic Act No. 7659, with reclusion
perpetua to death. As to the alleged aggravating
circumstance of evident premeditation, this Court
has ruled that for it to be considered as an
aggravating circumstance, the prosecution must
prove (a) the time when the offender determined to
commit the crime, (b) an act manifestly indicating
that the culprit has clung to his determination, and
(c) a sufficient lapse of time between the
detennination and execution, to allow him to reflect
upon the consequences of his act and to allow his
conscience to overcome the resolution of his
will.32 In the instant case, no proof has been adduced
to establish that appellant had previously planned
the killing of Francisco. There is no evidence when
and how he planned and prepared for the same, nor
was there a showing that sufficient time had lapsed
between his determination and execution. In this
respect, the Court quotes with approval the
disquisition of the CA, to wit:
The circumstances that transpired immediately
before and after the stabbing negate evident
premeditation. The time when accused-appellant
conceived the crime cannot be determined. Even
assuming that there was an altercation that arose
between the accused-appellant and the victim due
to the remarks made by the former to the latter, this
is not the overt act indicative of his criminal intent.
Simply put, the prosecution failed to establish that
there was a sufficient lapse of time for accused-
appellant to reflect on his decision to kill the victim
and the actual execution thereof. 33
Thus, the RTC and the CA are correct in not
considering the aggravating circumstance of evident
premeditation.
The Court likewise agrees with the RTC and the CA in
not appreciating the mitigating circumstances of
sufficient provocation on the part of the offended
party and voluntary plea of guilt on the part of
appellant.
With respect to the alleged mitigating circumstance
of sufficient provocation on the part of Francisco,
the rule is that, as a mitigating circumstance,
sufficient provocation is any unjust or improper
conduct or act of the victim adequate enough to
~xcite a person to commit a wrong, which is
accordingly proportionate in gravity.34 In the present
case, appellant asserts that several days before he
stabbed the victim, the latter teased appellant to be
"gay" and taunted him that the girl whom appellant
courted rejected him. However, the Court finds no
465 | P a g e
cogent reason to depart from the ruling of the RTC
on this matter, to wit:
For sufficient provocation under Article 13,
paragraph 4 of the Revised Penal Code of the
Philippines to apply, three requisites must be
present:
a) provocation must be sufficient;
b) it must be immediate to the commission
of the crime; and
c) it must originate from the offended party.
"Sufficient" according to jurisprudence means
adequate to excite a person to commit the crime and
must accordingly be proportionate to its gravity. In
Bautista v. Court of Appeals [G.R. No. L-46025,
September 2, 1992], the mitigating circumstance did
not apply since it is not enough that the provocating
act be unreasonable or annoying. Certainly, calling a
person gay as in this case is not the sufficient
provocation contemplated by law that would lessen
the liability of the accused.
"Immediate" on the other hand means that there is
no interval of time between the provocation and the
commission of the crime. Hence, in one case [People
v. Co, 67 O.G. 7451] the Supreme Court ruled that
provocation occurring more than one hour before
the stabbing incident is not immediate and in People
v. Benito [62 SCRA 351] 24 hours before the
commission of the crime. Per admission of the
defense witnesses, the taunting done by the victim
occurred days before the stabbing incident hence
the immediacy required by law was absent. The
lapse of time would have given the accused [chance]
to contemplate and to recover his serenity enough
to refrain from pushing through with his evil plan. 35
Anent the supposed voluntary plea of guilt on
appellant's part, it is settled that a plea of guilty
made after arraignment and after trial had begun
does not entitle the accused to have such plea
considered as a mitigating circumstance.36 Again, the
Court quotes with approval the RTC's disquisition,
thus:
The second mitigating circumstance of voluntary
plea of guilt. claimed by the accused could likewise
not be considered.1âwphi1 The voluntary plea of
guilt entered by the accused is not spontaneous
because it was made after his arraignment and only
to support his claim of the exempting circumstance
of insanity. The voluntary plea of guilt required by
law is one that is made by the accused in cognizance
of the grievous wrong he has committed and must
be done as an act of repentance and respect for the
law. It is mitigating because it indicated a moral
disposition in the accused favorable to his reform. It
may be recalled that accused in the case at bar did
not change his plea from "not guilty" to "guilty". In a
last ditch effort to elude liability, however, accused
claimed the defense of admitting the act of
[stabbing].37
The Court, however, agrees with the CA in
appreciating the mitigating circumstance of illness as
would diminish the exercise of willpower of
appellant without, however, depriving him of the
consciousness of his acts, pursuant to Article 13,
paragraphs 9 and 10 of the RPC, as he was found by
his examining doctors to have "diminish[ ed]
capacity to discern what was wrong or right at the
time of the commission of the crime."38 Thus, on the
basis of the foregoing, appellant was correctly meted
the penalty of reclusion perpetua, conformably with
Article 63, paragraph 3 of the RPC.
With respect to appellant's civil liability, the
prevailing rule is that when the circumstances
surrounding the crime call for the imposition
of reclusion perpetua only, there being no ordinary
aggravating circumstance, as in this case, the proper
amounts should be ₱75,000.00 as civil indemnity,
₱75,000.00 as moral damages and ₱75,000.00 as
exemplary damages, regardless of the number of
qualifying aggravating circumstances present.39 In
conformity with the foregoing rule, the awards
granted by the lower courts must, therefore, be
modified. Thus, the award of moral damages should
be increased from ₱50,000.00 to P75,000.00.
Appellant should also pay the victim's heirs
exemplary damages in the amount of P75,000.00.
The award of ₱75,000.00, as civil indemnity, is
sustained.
As regards the trial court's award of actual damages
in the amount of P30,000.00, the same must,
likewise, be modified. The settled rule is that when
actual damages proven by receipts during the trial
amount to less than the sum allowed by the Court as
temperate damages, 40 the award of temperate
damages is justified in lieu of actual damages which
is of a lesser amount.41 Conversely, ifthe amount of
actual damages proven exceeds, then temperate
damages may no longer be awarded; actual damages
based on the receipts presented during trial should
instead be granted.42 The rationale for this rule is
that it would be anomalous and unfair for the
victim's heirs, who tried and succeeded in presenting
receipts and other evidence to prove actual
damages, to receive an amount which is less than
that given as temperate damages to those who are
not able to present any evidence at all.43 In the
present case, Francisco's heirs were able to prove,
and were awarded, actual damages in the amount of
₱30,000.00. Since, prevailing jurisprudence now fixes
the amount of ₱50,000.00 as temperate damages in
murder cases, the Court finds it proper to award
temperate damages to Francisco's heirs, in lieu of
actual damages.
466 | P a g e
The imposition of six percent (6%) interest per
annum on all damages awarded from the time of
finality of this decision until fully paid, as well as the
payment of costs, is likewise sustained.
WHEREFORE, the Court AFFIRMS the Decision of the
Court of Appeals, dated February 27, 2015, in CA-
G.R. CR-HC No. 01450, finding accused-appellant
Roger Racal @ Rambo GUILTY beyond reasonable
doubt of the crime of Murder, with the
following MODIFICATIONS:
(1) The award of moral damages is INCREASED to
Seventy-Five Thousand Pesos (₱75,000.00);
(2) Accused-appellant is DIRECTED TO PAY the heirs
of the victim Jose "Joe" Francisco exemplary
damages in the amount of Seventy-Five Thousand
Pesos (₱75,000.00); and (3) The award of actual
damages is DELETED and, in lieu thereof, temperate
damages in the amount of Fifty Thousand Pesos
(₱50,000.00) is awarded to the heirs of the victim.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
IRST DIVISION
G.R. No. 160675 June 16, 2006
OFFICE OF THE OMBUDSMAN, Petitioner,
vs.
COURT OF APPEALS (Sixteenth Division) and
NICOMEDES ARMILLA, DELIA BATASIN-IN, JAMES
FUENTES, OSCAR GADOR, SANTOS GUIGAYOMA, JR.,
CLARITO MIÑOZA, ERNESTO NARAJA, NELSON
OBESO,* SENEN SERIÑO, and MARTIN
YASE, Respondents.
DECISION
CALLEJO, SR., J.:
The Office of the Ombudsman filed the instant
petition for review on certiorari assailing the
Decision1 dated October 30, 2003 of the Court of
Appeals (CA) in CA-G.R. SP No. 69313, which had
declared that the Office of the Ombudsman has no
power to impose the penalty of suspension.
According to the appellate court, its power is limited
only to the recommendation of the penalty of
removal, suspension, demotion, fine, censure, or
prosecution of a public officer or employee found to
be at fault.
Factual and Procedural Antecedents
Joan and Thomas Corominas, and Maria Constancia
Corominas-Lim filed with the Office of the
Ombudsman (Visayas) a criminal complaint for
violation of Article 281 (Other Forms of Trespass) of
the Revised Penal Code against herein Edmondo
Arregadas, Nicomedes Armilla, Delia Batasin-in,
James Fuentes, Oscar Gador, Santos Guigayoma, Jr.,
Clarito Miñoza, Nelson Obeso, Senen Seriño, Ernesto
Naraja, and Martin Yase, all employees of the
Department of Environment and Natural Resources
(DENR), Regional Office No. VII, Banilad, Mandaue
City. The case was docketed as OMB-VIS-CRIM-99-
1227. The same criminal complaint was also treated
by the Office of the Ombudsman as an
administrative complaint for abuse of authority and
misconduct. The administrative case was docketed
as OMB-VIS-ADM-99-1044.
It was alleged that the above-named DENR
employees conspired to enter the parcel of land
owned by the Corominas family without seeking
permission from the latter or their representative
and despite the big "NO TRESPASSING" sign attached
to the perimeter fences enclosing the said property.
Except for Arregadas, who executed his own
affidavit, Armilla, et al. executed a joint counter-
affidavit decrying the charge against them as
malicious, unfounded and untrue. By way of
refutation, they alleged that they entered the
Corominas landholding pursuant to the Order dated
September 14, 1999 of the Regional Trial Court (RTC)
of Cebu City, Branch 9 thereof, in connection with
Civil Case No. CEB-17639 (entitled Republic of the
Philippines v. Larrazabal, et al.), involving a
complaint for annulment and cancellation of title.
The said Order stated:
WHEREFORE, the Court hereby Grants the Motion.
The Court hereby orders the relocation survey of the
questioned lots and the Sudlon National Park based
on the technical description of the official
government cadastral survey duly approved by the
Republic of the Philippines, Bureau of Lands.
Expenses for the relocation survey shall be
shouldered jointly by plaintiff and plaintiff-
intervenors. Reasonable notice of the date/dates of
relocation survey should be furnished the
defendants through their counsels and to this Court.
SO ORDERED.2
In compliance with the foregoing order, the DENR
Regional Executive Director issued Travel Order Nos.
99-10-19, 11-01, and 99-11-11 authorizing Armilla, et
al. to "conduct relocation survey of the corners of
Proclamation No. 56, S-36 and Lot No. 18454, Cad.
12 Ext."3 Consequently, on October 25, 1999,
Armilla, et al., as the designated DENR Survey Team,
together with two members of the Philippine
467 | P a g e
National Police (PNP), Cebu City Police Office, paid a
courtesy call to the barangay captain of Sudlon II to
inform him that they would conduct a relocation
survey of the Sudlon National Park. However, the
barangay captain was not around so the team
requested the barangay secretary to relay the
message to him.
The following day, the DENR Survey Team, the
members of the PNP and two barangay tanods of
Sudlon II, Cebu City, commenced the relocation
survey. The team initially identified the Municipal
Boundary Movement (MBM) No. 8, similar to City
Boundary Movement (CBM) 15, Cad. 12 Extension
Cebu Cadastre, as the tie point reference.
Thereafter, with the use of the Electronic Distance
Measuring (EDM) and Theodolite, it was able to
relocate the boundary of the Sudlon National Park in
accordance with the RTC Order in Civil Case No. CEB-
17639, and to establish corners 17, 18, 19, and 20
within 15 days.
To establish and monument corners 20 and 21, the
DENR Survey Team asked permission from a person
inside Lot No. 18466 to be allowed to put a stake
inside the said lot to serve as a traverse station. On
November 12, 1999, the team was able to establish
and monument corner 20 inside Lot No. 18466. On
the other hand, it had difficulty in establishing corner
21 because it fell on a very steep slope.
The DENR Survey Team then submitted its
Report4 dated November 25, 1999 together with the
Sketch Plan and notified the RTC in Civil Case No.
CEB-17639 that the relocation survey of the lot
subject thereof and the Sudlon National Park had
been completed and terminated.
Armilla, et al. concluded their joint counter-affidavit
by vehemently denying the charge that they,
conspiring with each other, trespassed on the
Corominas property. They maintained that they
were merely acting in the performance of their
official functions and complying with a court order.
Moreover, they could not defy the said court order
and the travel orders, lest they be punished for
contempt of court or subjected to disciplinary action.
They intimated that the sole reason that
complainants filed the charge against them was to
prevent the DENR from filing a reversion case against
the owners of Lot No. 18466, a portion of which was
ascertained to be within the Sudlon National Park.5
For his part, Arregadas averred in his counter-
affidavit that he was not part of the DENR Survey
Team tasked to relocate and monument the western
boundary corners of the Sudlon National Park. He
met with the group briefly on October 25, 1999 but
since then, he had not returned nor had been
physically present inside the said park or area that
he had allegedly trespassed on. Hence, the charge
against him was baseless and malicious.6
In the Resolution7 dated August 31, 2001, Charina
Navarro-Quijano, Graft Investigation Officer (GIO) I
of the Office of the Ombudsman, dismissed the
criminal complaint in OMB-VIS-CRIM-99-1227 for
lack of probable cause. The said resolution was
recommended for approval by Virginia Palanca-
Santiago, GIO III, and approved by the Primo C. Miro,
Deputy Ombudsman for the Visayas.
However, in the administrative case (OMB-VIS-ADM-
99-1044), the Office of the Ombudsman rendered
the Decision8 dated October 24, 2001, finding that,
except for Arregadas, the other named DENR
employees are guilty of simple misconduct and
imposed on them the penalty of suspension for one
month. The decretal portion of the decision reads:
WHEREFORE, premises considered, it is hereby
deemed that respondents, namely: Nicomedes
Rivera Ar[m]illa; Delia Batasin-in; James Magalona
Fuentes; Oscar Tatongoy Gador; Santos Guigayoma,
Jr.; Clarito Umerez Minoza; Ernesto Subingsubing
Naraja; Nelson Obeso; Senen Calaurian Sereno; and,
Martin Yococa Yase are guilty of Simple Misconduct,
and are hereby meted the penalty of suspension for
one month.
The complaint against Edmondo Ar[r]egadas is
hereby dismissed for insufficiency of evidence.9
A motion for reconsideration thereof was filed by
Armilla, et al. but the same was denied by the Office
of the Ombudsman in the Order10 dated January 10,
2002.
Armilla, et al. thus filed with the CA a petition for
certiorari alleging grave abuse of discretion on the
part of the Office of the Ombudsman in finding them
guilty of simple misconduct and imposing on them
the penalty of one month suspension. They alleged
that they could not be guilty of simple misconduct
considering that they simply complied with a court
order and directive of their superiors for them to
conduct a relocation survey of the Sudlon National
Park. In addition, they pointed out that the
ownership of the Corominas family over a parcel of
land within the said park was still in issue; hence, no
right of the said family had been violated in
conducting the court-ordered survey. Armilla, et al.
also assailed the denial of their motion for
reconsideration on the ground that under Republic
Act No. 6770 (RA 6770)11 a decision imposing the
penalty of not more than one month is final and
unappealable.
In its Decision dated October 30, 2003, the appellate
court granted the petition of Armilla, et al. It
affirmed the finding of the Office of the Ombudsman
that Armilla, et al. were guilty of simple misconduct.
However, it ruled that the Office of the Ombudsman
468 | P a g e
committed grave abuse of discretion in imposing on
them the penalty of suspension for one month.
Citing the case of Tapiador v. Office of the
Ombudsman,12 the appellate court declared that the
Office of the Ombudsman’s power is limited only to
the recommendation of the penalty of removal,
suspension, demotion, fine, censure, or prosecution
of a public officer or employee found to be at fault.
Accordingly, it has no power to impose the penalty
of suspension on Armilla, et al.
The dispositive portion of the assailed CA decision
reads:
WHEREFORE, the Petition for Certiorari is hereby
GRANTED. The decision of the Office of the
Ombudsman dated October 24, 2001, as well as the
Order dated January 10, 2002 in OMB-VIS-ADM-99-
1044 is hereby SET ASIDE.
SO ORDERED.13
Aggrieved, the Office of the Ombudsman forthwith
sought recourse to this Court.
The Petitioner’s Arguments
In support of its petition, the Office of the
Ombudsman (the petitioner) alleges as follows:
WITH DUE RESPECT, THE COURT OF APPEALS
(SIXTEENTH DIVISION) SERIOUSLY ERRED IN ITS
DECISION DATED OCTOBER 30, 200[3] IN CA-G.R. SP
NO. 69313 WHEN IT AGREED IN THE FINDINGS OF
THE OFFICE OF THE OMBUDSMAN IN THE
ADMINISTRATIVE DISCIPLINARY CASE OMB-VIS-
ADM-99-1044, BUT NONETHELESS PROCEEDED TO
REVERSE AND SET ASIDE THE OMBUDSMAN
DECISION THEREIN CITING ONLY THE OBITER
DICTUM IN THE CASE OF TAPIADOR V. OFFICE OF
THE OMBUDSMAN, G.R. NO. 129124, 15 MARCH
2002 (SECOND DIVISION) TO THE EFFECT THAT THE
OFFICE OF THE OMBUDSMAN HAS NO AUTHORITY
TO DIRECTLY DISMISS AN ERRING PUBLIC OFFICIAL
OR EMPLOYEE FROM GOVERNMENT SERVICE,
CONSIDERING THE FOLLOWING:
(I) THE PASSING STATEMENT IN TAPIADOR
V. OFFICE OF THE OMBUDSMAN, G.R. NO.
129124, 15 MARCH 2002 HAS REMAINED
AN OBITER DICTUM WHICH DOES NOT
HAVE THE STATUS OF A BINDING
PRECEDENT;
(II) SEC. 13, ART. XI OF THE 1987
CONSTITUTION VESTS THE OFFICE OF THE
OMBUDSMAN NOT ONLY WITH THE
AUTHORITY TO "RECOMMEND"
ADMINISTRATIVE SANCTIONS ON ERRING
PUBLIC SERVANTS BUT ALSO WITH THE
POWER TO ENSURE COMPLIANCE WITH ITS
"RECOMMENDATION"; FURTHER, IT IS THE
CONSTITUTIONAL INTENDMENT TO LEAVE
TO THE LEGISLATURE THE PREROGATIVE TO
FURTHER DEFINE OR REINFORCE SUCH
ADMINISTRATIVE DISCIPLINARY
AUTHORITY;
(III) SECS. 13, 15(1) AND (3), 16, 19, 21, AND
25 OF REPUBLIC ACT NO. 6770 (THE
OMBUDSMAN ACT OF 1989) CLOTHE THE
OFFICE OF THE OMBUDSMAN WITH ALL
THE CONCOMITANT PREROGATIVES OF A
POWER TO DISCIPLINE, INCLUDING THE
POWER TO ASSESS PENALTIES AND TO
CAUSE THE SAME TO BE MINISTERIALLY
IMPLEMENTED BY THE CONCERNED
AGENCY, AND WHICH FULL
ADMINISTRATIVE DISCIPLINARY POWER
HAS TIME AND TIME AGAIN BEEN
 VALIDATED AND AFFIRMED BY THE
HONORABLE COURT;
(IV) THE GENERAL ADMINISTRATIVE
DISCIPLINARY AUTHORITY OF THE OFFICE
OF THE OMBUDSMAN, WHICH IS SIMILAR
TO ITS PLENARY AND UNQUALIFIED
CRIMINAL INVESTIGATORY POWER,
INCLUDES THE LESSER POWER OF
IMPLEMENTATION OF DULY-ISSUED
JUDGMENTS; AND
(V) A GENERAL APPLICATION OF THE
TAPIADOR OBITER DICTUM LEADS TO
PARALYZING CONFUSION, LEGAL CHAOS
AND UNREASONABLE ABSURDITIES, AS
WELL AS TO THE ACCELERATION OF THE
CRIPPLING AND DEBILITATING EFFECTS OF
INEFFICIENCY AND GRAFT AND
CORRUPTION.14
Petitioner assails the appellate court’s reliance on
Tapiador in declaring that the power of the Office of
the Ombudsman is limited only to the
recommendation of the penalty of removal,
suspension, demotion, fine, censure or prosecution
of a public officer or employee found to be at fault.
According to petitioner, the statement made by the
Court in Tapiador relating to the Office of the
Ombudsman’s lack of authority to impose a penalty
is mere obiter dictum.
Petitioner submits that apart from the powers and
functions of the Office of the Ombudsman
enumerated in the Constitution, it expressly
authorized Congress to grant the Office of the
Ombudsman additional powers. Pursuant to this
constitutional fiat, Congress enacted Republic Act
No. 6770 vesting in the Ombudsman full
administrative disciplinary powers. Citing the
pertinent provisions15 in Republic Act No. 6770,
469 | P a g e
petitioner posits that it possesses the following
powers: "(1) [it] can, on its own, investigate any
apparent illegality, irregularity, impropriety, or
inefficiency committed by any public officer or
employee not excepted from its disciplinary
authority; (2) it can and must act on administrative
complaints against them; (3) it can conduct
administrative adjudication proceedings; (4) it can
determine their guilt; (5) at its discretion, it can fix
the penalty in case of guilt; (6) it can order the head
of the office or agency to which the guilty public
officer belongs to implement the penalty imposed;
and (7) it can ensure compliance with the
implementation of the penalty it fixed."16
By declaring that the Office of the Ombudsman can
only recommend, but cannot directly impose, the
penalty in administrative cases, the appellate court
allegedly, in effect, nullified and invalidated the
provisions of Republic Act No. 6770 relating to its
administrative disciplinary powers. Stated in another
manner, the appellate court has allegedly deemed
that the Office of the Ombudsman cannot make a
determination of guilt for an administrative offense;
it cannot assess a penalty; and it cannot cause its
decisions to be implemented.
Petitioner stresses that the grant of administrative
disciplinary authority to the Office of the
Ombudsman is not prohibited by, or inconsistent
with, the Constitution. It invokes the legislative
history of Republic Act No. 6770 to buttress its claim
that it was the intention of the lawmakers to provide
for an independent constitutional body that would
serve as "the protector of the people" with "real
powers."17
Petitioner opines that the statutory grant of
disciplinary powers to the Office of the Ombudsman
– complete in all its components including the
determination of guilt, assessment of commensurate
penalty and compulsion on the head of agency
concerned to implement the same under pain of
administrative sanctions – was encouraged and
ushered in by the Constitution.18 Further, its framers
intended the Office of the Ombudsman to exercise
disciplinary authority as an indispensable and major
rampart in its operational effectiveness.
In this connection, petitioner reiterates that this
disciplinary authority necessarily includes the
authority to determine the penalty in an
administrative proceeding and cause its
implementation. Specifically, Section 1319 of
Republic Act No. 6770 states that the Ombudsman
has the authority to enforce administrative liability
where the evidence warrants. Section 1520 provides,
in the alternative, that the Ombudsman may
proceed administratively against an erring public
officer and threatens with administrative sanction
the refusal of any officer, without just cause, to
implement the order of the Ombudsman imposing
administrative penalties. Section 2521 prescribes the
range of penalties that the Ombudsman may enforce
against public officers it finds administratively guilty.
Finally, Section 2722 pronounces as not susceptible to
review on appeal administrative penalties not higher
than suspension for thirty (30) days or fine not
exceeding the salary for the same period.
Section 13(3), Article XI of the Constitution is also
cited by petitioner. The said provision reads that the
Ombudsman has the authority "to direct the officer
concerned to take appropriate action against a
public official or employee at fault, and recommend
his removal, suspension, demotion, fine, censure, or
prosecution, and ensure compliance therewith."
According to petitioner, the clause "ensure
compliance therewith" taken together with the term
"recommend" connotes an element of compulsion
such that the latter does not merely signify "to
advise" or "to prescribe." Rather, the clause "ensure
compliance therewith" prescribes that the
Ombudsman procedurally pass on to the head of
office concerned the imposition of the penalty on
the public officer at fault, and then compels said
head to enforce the same penalty. This element of
compulsion, petitioner theorizes, was provided by
the framers of the Constitution in order to keep the
Ombudsman from becoming a "toothless tiger," a
"eunuch" or a "scarecrow."23
It is petitioner’s submission that a contrary ruling,
i.e., to limit its power only to recommend the
penalty in administrative disciplinary cases, would
lead to legal and practical absurdities. Among them,
it would allegedly run counter to the fact that the
Office of the Ombudsman is an independent
constitutional body. Likewise, heads of office, e.g., a
municipal mayor, would have the authority to adopt
or reject the Ombudsman’s decision, as if in review,
when no such recourse is provided by law. The
problem of how the various administrative penalties
that have already been enforced by the Office of the
Ombudsman would be treated was also raised.
In fine, petitioner maintains that it meted a just and
commensurate disciplinary penalty of one-month
suspension on Armilla, et al. upon its finding that
they were guilty of simple misconduct. Such finding
was arrived at by petitioner in the exercise of its
administrative disciplinary authority and only after
proper adjudication proceedings. The appellate
court, in reversing this judgment on the sole ground
that petitioner has no authority to impose the
penalty but merely to recommend it citing the obiter
dictum in Tapiador, allegedly committed reversible
error. Petitioner thus urges this Court to reverse and
set aside the assailed appellate court’s decision and
to affirm the Office of the Ombudsman’s authority to
impose the penalty in OMB-VIS-ADM-99-1044.
The Respondents’ Counter-Arguments
470 | P a g e
Armilla, et al. (the respondents) maintain that the
Office of the Ombudsman has no authority to
impose administrative sanctions on erring public
officials. It is their position that subparagraph (8) of
Section 13, Article XI of the Constitution which states
that the Ombudsman shall "perform such other
functions or duties as may be provided by law" is
circumscribed by subparagraph (3) thereof which
enjoins the Ombudsman to recommend the removal,
suspension, demotion, fine, censure, or prosecution
of public officials found to be at fault.
According to respondents, subparagraph (8) of
Section 13, Article XI is a catch-all phrase intended to
bestow on the Office of the Ombudsman such other
powers necessary to discharge its function as the
constitutional watchdog of the government.
However, the said provision does not include powers
inconsistent with those already enumerated. Hence,
its recommendatory power to impose penalties in
subparagraph (3) of the same section necessarily
forecloses the grant of the power to actually impose
the said penalties.
Refuting petitioner’s assertion that the framers of
the 1987 Constitution intended the Office of the
Ombudsman to be more than a recommendatory
institution, respondents aver that the clear intent
was to deny the Ombudsman punitive powers. In
support of this averment, respondents refer to the
deliberations of the Constitutional Commission
where some members thereof said that the
Ombudsman was to have neither prosecutory nor
punitive powers.
Respondents further submit that Republic Act No.
6770 withheld punitive powers from the Office of
the Ombudsman and merely authorized it to
recommend or suggest sanctions. They cite Section
15 thereof particularly subparagraph (3) thus:
SEC. 15. Powers, Functions and Duties. – The Office
of the Ombudsman shall have the following powers,
functions and duties:
xxxx
(3) Direct the officer concerned to take appropriate
action against a public officer or employee at fault or
who neglects to perform an act or discharge a duty
required by law, and recommend his removal,
suspension, demotion, fine, censure, or prosecution,
and ensure compliance therewith; or enforce its
disciplinary authority as provided in Section 21 of
this Act; Provided, That the refusal by any officer
without just cause to comply with an order of the
Ombudsman to remove, suspend, demote, fine,
censure, or prosecute an officer or employee who is
at fault or who neglects to perform an act or
discharge a duty required by law shall be ground for
disciplinary action against said officer;
Again refuting petitioner’s argument that the term
"recommend" construed together with the clause
"ensure compliance therewith" imports an element
of compulsion and warrants direct imposition by the
Office of the Ombudsman of the penalties,
respondents contend that to recommend necessarily
excludes the power to directly impose the penalty.
Echoing the appellate court’s ruling, respondents
invoke Tapiador in arguing that the Office of the
Ombudsman has no authority to directly impose on
them the penalty of suspension for one month, but
only to recommend the said penalty. Accordingly,
they pray that the petition be denied for utter lack of
merit.
The Court’s Ruling
The petition is meritorious.
In declaring that the Office of the Ombudsman only
has the power to recommend, but not to impose,
the penalty of removal, suspension, demotion, fine,
censure, or prosecution of a public officer or
employee found to be at fault, the appellate court
mainly relied on the following statement made by
the Court in Tapiador, thus:
x x x Besides, assuming arguendo, that petitioner
were administratively liable, the Ombudsman has no
authority to directly dismiss the petitioner from the
government service, more particularly from his
position in the BID. Under Section 13, subparagraph
3, of Article XI of the 1987 Constitution, the
Ombudsman can only "recommend" the removal of
the public official or employee found to be at fault,
to the public official concerned.24
Reliance by the appellate court on the foregoing
statement is misplaced. As correctly pointed out by
petitioner, the foregoing statement is mere obiter
dictum. In fact, in Ledesma v. Court of Appeals,25 the
Court categorically pronounced that the statement
in Tapiador on the Ombudsman’s power "is, at best,
merely an obiter dictum" and, as such, "cannot be
cited as a doctrinal declaration of the Supreme
Court:"
x x x [A] cursory reading of Tapiador reveals that the
main point of the case was the failure of the
complainant therein to present substantial evidence
to prove the charges of the administrative case. The
statement that made reference to the power of the
Ombudsman is, at best, merely an obiter dictum and,
as it is unsupported by sufficient explanation, is
susceptible to varying interpretations, as what
precisely is before us in this case. Hence, it cannot be
cited as a doctrinal declaration of this Court nor is it
safe from judicial examination.26
471 | P a g e
Likewise in Ledesma, the Court rejected the
argument that the power of the Office of the
Ombudsman is only advisory or recommendatory in
nature. It cautioned against the literal interpretation
of Section 13(3), Article XI of the Constitution which
directs the Office of the Ombudsman to
"recommend" to the officer concerned the removal,
suspension demotion, fine, censure, or prosecution
of any public official or employee at fault.
Notwithstanding the term "recommend," according
to the Court, the said provision, construed together
with the pertinent provisions in Republic Act No.
6770, is not only advisory in nature but is actually
mandatory within the bounds of law.
The Court further explained in Ledesma that the
mandatory character of the Ombudsman’s order
imposing a sanction should not be interpreted as
usurpation of the authority of the head of office or
any officer concerned. This is because the power of
the Ombudsman to investigate and prosecute any
illegal act or omission of any public official is not an
exclusive authority but a shared or concurrent
authority in respect of the offense charged. By
stating therefore that the Ombudsman
"recommends" the action to be taken against an
erring officer or employee, the provisions in the
Constitution and in Republic Act No. 6770 intended
that the implementation of the order be coursed
through the proper officer.
Consequently in Ledesma, the Court affirmed the
appellate court’s decision which had, in turn,
affirmed an order of the Office of the Ombudsman
imposing the penalty of suspension on the erring
public official.
In the present case, the Court similarly upholds the
Office of the Ombudsman’s power to impose the
penalty of removal, suspension, demotion, fine,
censure, or prosecution of a public officer or
employee found to be at fault, in the exercise of its
administrative disciplinary authority. The exercise of
such power is well founded in the Constitution and
Republic Act No. 6770.
The mandate of the Office of the Ombudsman is
expressed in Section 12, Article XI of the Constitution
in this wise:
Sec. 12. The Ombudsman and his Deputies, as
protectors of the people, shall act promptly on
complaints filed in any form or manner against
public officials or employees of the Government, or
any subdivision, agency, or instrumentality thereof,
including government-owned or controlled
corporations, and shall, in appropriate cases, notify
the complainants of the action taken and the result
thereof.
Section 13 thereof vests in the Office of the
Ombudsman the following powers, functions, and
duties:
(1) Investigate on its own, or on complaint
by any person, any act or omission of any
public official, employee, office or agency,
when such act or omission appears to be
illegal, unjust, improper, or inefficient;
(2) Direct, upon complaint or at its own
instance, any public official or employee of
the Government, or any subdivision, agency
or instrumentality thereof, as well as of any
government-owned and controlled
corporation with original charter, to
perform and expedite any act or duty
required by law, or to stop, prevent and
correct any abuse or impropriety in the
performance of duties;
 (3) Direct the officer concerned to take
appropriate action against a public official
or employee at fault, and recommend his
removal, suspension, demotion, fine,
censure, or prosecution, and ensure
compliance therewith;
(4) Direct the officer concerned, in any
appropriate case, and subject to such
limitations as may be provided by law to
furnish it with copies of documents relating
to contracts or transactions entered into by
his office involving the disbursement or use
of public funds or properties, and report
any irregularity to the Commission on Audit
for appropriate action;
(5) Request any government agency for
assistance and information necessary in the
discharge of its responsibilities, and to
examine, if necessary, pertinent records
and documents;
(6) Publicize matters covered by its
investigation when circumstances so
warrant and with due prudence;
(7) Determine the causes of inefficiency, red
tape, mismanagement, fraud and
corruption in the Government and make
recommendations for their elimination and
the observance of high standards of ethics
and efficiency; and
(8) Promulgate its rules of procedure and
exercise such other powers or perform such
functions or duties as may be provided by
law.
In Acop v. Office of the Ombudsman,27 the Court
recognized that the foregoing enumeration is not
472 | P a g e
exclusive and that the framers of the Constitution
had given Congress the leeway to prescribe, by
subsequent legislation, additional powers to the
Ombudsman. The observation of Commissioner
Christian Monsod, quoted in Acop, is apropos:
MR. MONSOD (reacting to statements of
Commissioner Blas Ople):
May we just state that perhaps the honorable
Commissioner has looked at it in too much of an
absolutist position. The Ombudsman is seen as a civil
advocate or a champion of the citizens against the
bureaucracy, not against the President. On one
hand, we are told he has no teeth and he lacks other
things. On the other hand, there is the interpretation
that he is a competitor to the President, as if he is
being brought up to the same level as the President.
With respect to the argument that he is a toothless
animal, we would like to say that we are promoting
the concept in its form at the present, but we are
also saying that he can exercise such powers and
functions as may be provided by law in accordance
with the direction of the thinking of Commissioner
Rodrigo. We do not think that at this time we should
prescribe this, but we leave it up to Congress at
some future time if it feels that it may need to
designate what powers the Ombudsman need in
order that he be more effective. This is not
foreclosed.
So, this is a reversible disability, unlike that of a
eunuch; it is not an irreversible disability.28
Congress thus enacted Republic Act No. 6770 to
provide for the functional and structural
organization of the Office of the Ombudsman. It
substantially reiterates the constitutional provisions
relating to the Office of the Ombudsman. Further,
Section 13 thereof restates the mandate of the
Office of the Ombudsman in this wise:
Sec. 13. Mandate. – The Ombudsman and his
Deputies, as protectors of the people, shall act
promptly on complaints filed in any form or manner
against officers or employees of the Government, or
of any subdivision, agency or instrumentality
thereof, including government-owned or controlled
corporations, and enforce their administrative, civil
and criminal liability in every case where the
evidence warrants in order to promote efficient
service by the Government to the people.
Section 15 thereof substantially reiterates Section
13, Article XI of the Constitution. In particular,
subparagraph (3) of Section 15 of Republic Act No.
6770 restates Section 13(3), Article XI of the
Constitution, quoted anew below:
Sec. 15. Powers, Functions and Duties. – The Office
of the Ombudsman shall have the following powers,
functions and duties:
xxxx
(3) Direct the officer concerned to take appropriate
action against a public officer or employee at fault or
who neglects to perform an act or discharge a duty
required by law, and recommend his removal,
suspension, demotion, fine, censure, or prosecution,
and ensure compliance therewith; or enforce its
disciplinary authority as provided in Section 21 of
this Act: Provided, That the refusal by any officer
without just cause to comply with an order of the
Ombudsman to remove, suspend, demote, fine,
censure or prosecute an officer or employee who is
at fault or who neglects to perform an act or
discharge a duty required by law shall be a ground
for disciplinary action against said officer.
The authority of the Ombudsman to conduct
administrative investigations is beyond cavil. It is
mandated by no less than Section 13(1), Article XI of
the Constitution.29 In conjunction therewith, Section
19 of Republic Act No. 6770 grants to the
Ombudsman the authority to act on all
administrative complaints:
Sec. 19. Administrative Complaints. – The
Ombudsman shall act on all complaints relating, but
not limited, to acts or omissions which:
(1) Are contrary to law or regulation;
(2) Are unreasonable, unfair, oppressive or
discriminatory;
(3) Are inconsistent with the general course
of an agency’s functions, though in
accordance with law;
(4) Proceed from a mistake of law or an
arbitrary ascertainment of facts;
(5) Are in the exercise of discretionary
powers but for an improper purpose; or
(6) Are otherwise irregular, immoral or
devoid of justification.
Other provisions in Republic Act No. 6770, likewise,
pertain to the exercise by the Office of the
Ombudsman of its administrative disciplinary
authority. For example, Section 19 states that
Republic Act No. 6770 shall apply "to all kinds of
malfeasance, misfeasance, and non-feasance that
have been committed by any officer or employee x x
x, during his tenure of office." Section 21 defines the
jurisdiction of its disciplinary authority to include "all
elective and appointive officials of the Government
473 | P a g e
and its subdivisions, instrumentalities and agencies,
including members of the Cabinet, local government,
government-owned, or controlled corporations and
their subsidiaries, except over officials who may be
removed only by impeachment or over Members of
Congress, and the Judiciary."
Section 2230 thereof vests in the Office of the
Ombudsman the power to investigate any serious
misconduct in the office allegedly committed by
officials removable by impeachment, for the purpose
of filing a verified complaint for impeachment, if
warranted. Such power, likewise, includes the
investigation of private persons who conspire with
public officers and employees. Section 2331 requires
that the administrative investigations conducted by
the Office of the Ombudsman shall be in accordance
with its rules of procedure and consistent with due
process. The Office of the Ombudsman is, however,
given the option to refer certain complaints to the
proper disciplinary authority for the institution of
appropriate administrative proceedings against
erring public officers or employees.
Still in connection with their administrative
disciplinary authority, the Ombudsman and his
deputies are expressly given the power to
preventively suspend public officials and employees
facing administrative charges in accordance with
Section 24 of Republic Act No. 6770:
Sec. 24. Preventive Suspension. – The Ombudsman
and his Deputy may preventively suspend any officer
or employee under his authority pending an
investigation, if in his judgment the evidence of guilt
is strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave
misconduct, or neglect in the performance of duty;
(b) the charges would warrant removal from the
service; or (c) the respondent’s continued stay in
office may prejudice the case filed against him.
The preventive suspension shall continue until the
case is terminated by the Office of the Ombudsman
but not more than six months, without pay, except
when the delay in the disposition of the case by the
Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which
case the period of such delay shall not be counted in
computing the period of suspension herein provided.
Section 25 thereof sets forth the penalties as
follows:
Sec. 25. Penalties. – (1) In administrative proceedings
under Presidential Decree No. 807, the penalties and
rules provided therein shall be applied.
(2) In other administrative proceedings, the penalty
ranging from suspension without pay for one year to
dismissal with forfeiture of benefits or a fine ranging
from five thousand pesos (P5,000.00) to twice the
amount malversed, illegally taken or lost, or both at
the discretion of the Ombudsman, taking into
consideration circumstances that mitigate or
aggravate the liability of the officer or employee
found guilty of the complaint or charges.
As referred to in the above provision, under
Presidential Decree No. 807,32 the penalties that may
be imposed by the disciplining authority in
administrative disciplinary cases are removal from
the service, transfer, demotion in rank, suspension
for not more than one year without pay, fine in an
amount not exceeding six months’ salary, or
reprimand.33
Section 27 of Republic Act No. 6770 provides for the
period of effectivity and finality of the decisions of
the Office of the Ombudsman:
Sec. 27. Effectivity and Finality of Decisions. – (1) All
provisionary orders of the Office of the Ombudsman
are immediately effective and executory.
A motion for reconsideration of any order, directive
or decision of the Office of the Ombudsman must be
filed within five (5) days after receipt of written
notice and shall be entertained only on any of the
following grounds:
(1) New evidence has been discovered
which materially affects the order, directive
or decision;
(2) Errors of law or irregularities have been
committed prejudicial to the interest of the
movant. The motion for reconsideration
shall be resolved within three (3) days from
filing: Provided, That only one motion for
reconsideration shall be entertained.
Findings of facts by the Office of the Ombudsman
when supported by substantial evidence are
conclusive. Any order, directive or decision imposing
the penalty of public censure or reprimand,
suspension of not more than one month’s salary
shall be final and unappealable.
[In all administrative disciplinary cases, orders,
directives or decisions of the Office of the
Ombudsman may be appealed to the Supreme Court
by filing a petition for certiorari within ten (10) days
from receipt of the written notice of the order,
directive or decision or denial of the motion for
reconsideration in accordance with Rule 45 of the
Rules of Court.]34
The above rules may be amended or modified by the
Office of the Ombudsman as the interest of justice
may require.
474 | P a g e
All these provisions in Republic Act No. 6770 taken
together reveal the manifest intent of the lawmakers
to bestow on the Office of the Ombudsman full
administrative disciplinary authority. These
provisions cover the entire gamut of administrative
adjudication which entails the authority to, inter alia,
receive complaints, conduct investigations, hold
hearings in accordance with its rules of procedure,
summon witnesses and require the production of
documents, place under preventive suspension
public officers and employees pending an
investigation, determine the appropriate penalty
imposable on erring public officers or employees as
warranted by the evidence, and, necessarily, impose
the said penalty.
The explanation of Senator Edgardo Angara, one of
the sponsors of Senate Bill No. 534 which, as
consolidated with House Bill No. 13646, became RA
6770, is instructive:
Senator Laurel. Because, Mr. President, in the light
of another section of the bill, with respect to Section
13, disciplinary authority, first, the Ombudsman here
is granted the power of disciplining public officers
and employees, while other bodies may not be so
authorized; second, the Constitution itself empowers
the Office of the Ombudsman merely to investigate
and review; but the bill here authorizes the
Ombudsman, and grants the power of disciplining
public officers and employees. It goes beyond the
constitutional provision.
Senator Angara. Well, if the Gentleman is through
with his statement…
Senator Laurel. Well, yes.
Senator Angara. I do not agree that this bill is going
beyond what the Constitution has prescribed for the
Ombudsman; because, as I understand it, the
constitutional provision was construed in the
proceedings of the Constitutional Commission and in
fact, left it to the Legislature to determine the
powers and functions to be allocated to the
Ombudsman. It did not say or it did not prohibit the
Legislature from granting disciplinary power that we
are now granting to the Ombudsman. But over and
beyond that interpretation, Mr. President, is the
question that one must always ask, if he wants this
institution of the Ombudsman to be effective, rather
than simply be like the other watchdogs the past
administrations created. Then we believe, the
Committee believes, that we must give the
Ombudsman the necessary teeth in order to
implement its own decision. We believe that this is
fully in accord with the Filipino custom and tradition,
and based on our historical experience. Short of not
giving the Ombudsman the disciplining authority, I
think we might as well kiss the system goodbye,
because it will be like the same watchdogs created in
the past-toothless and inutile.35
Senator Angara, by way of reply to the queries of
Senator Neptali Gonzales, further explained:
Senator Gonzales. All right. There are certain
admissions and, however reluctantly given, at least,
let us go further because the Gentleman is invoking
the whole of Section 13. I might really be wrong, and
I want to be corrected this early.
Now, under paragraph (2), it says:
Direct, upon complaint or at its own instance, any
public official or employee of the Government, or
any subdivision thereof to perform and expedite…
probably a ministerial act because it says:
… any act or duty required by law or to stop, prevent
and correct any abuse or impropriety in the
performance of duties.
There is neither a grant of disciplining authority, nor
can we imply one from this specific provision; only
from this specific provision.
Senator Angara. My answer, again, Mr. President, is
that one cannot derive that broad, sweeping
conclusion solely on the basis of this provision.
Senator Gonzales. There is none solely on this
provision. Let us go to (3):
Direct the officer concerned to take appropriate
action against a public official or employee at fault - -
There is a determination, that is, at fault, and this is
very important,
-recommend his removal, suspension, demotion,
fine, censure, or prosecution, and ensure compliance
therewith.
Mr. President, the power here, even after a
determination of fault, is merely to recommend to
the appropriate office or agency the imposition of
administrative sanctions, which, under this law,
instead are to be imposed by the Ombudsman
himself or directly. Could not the Gentleman see a
conflict between these two provisions, Mr.
President?
Senator Angara. I do not see any conflict, Mr.
President. As I said, the grant of disciplinary power is
something that the Constitution does not forbid.
Senator Gonzales. Well, we will take it differently.
475 | P a g e
Senator Angara. Again, the question is: Is it
necessary to grant the Ombudsman such a power in
order to make it effective? That is a means necessary
to the end, to the objective.
Senator Gonzales. Is it, therefore, now another
power?
Senator Angara. I submit that the means, that is, the
disciplinary power, is necessary to achieving that
objective of making an effective Ombudsman.36
The legislative history of Republic Act No. 6770 thus
bears out the conclusion that the Office of the
Ombudsman was intended to possess full
administrative disciplinary authority, including the
power to impose the penalty of removal, suspension,
demotion, fine, censure, or prosecution of a public
officer or employee found to be at fault. The
lawmakers envisioned the Office of the Ombudsman
to be "an activist watchman," not merely a passive
one.37 And this intent was given validation by the
Court in Uy v. Sandiganbayan,38 where it stated that:
Clearly, the Philippine Ombudsman departs from the
classical Ombudsman model whose function is
merely to receive and process the people’s
complaints against corrupt and abusive government
personnel. The Philippine Ombudsman, as protector
of the people, is armed with the power to prosecute
erring public officers and employees, giving him an
active role in the enforcement of laws on anti-graft
and corrupt practices and such other offenses that
may be committed by such officers and employees.
The legislature has vested him with broad powers to
enable him to implement his own actions. x x x
At this point, it is noted that the Office of the
Ombudsman and the appellate court invariably
found respondents guilty of simple misconduct. The
Court affirms this finding following the salutary rule
that factual findings of administrative bodies are
accorded great respect by this Court.39
WHEREFORE, premises considered, the petition is
GRANTED. The Decision dated October 30, 2003 of
the Court of Appeals in CA-G.R. SP No. 69313 is
REVERSED AND SET ASIDE. The Decision dated
October 24, 2001 of the Office of the Ombudsman in
OMB-VIS-ADM-99-1044 is REINSTATED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 7450, 7451 and 7452 September 18,
1912
THE UNITED STATES, plaintiff-appellee,
vs.
FLORENCIO TORRIDA, defendant-appellant.
Pastor Salo, for appellant.
Office of the Solicitor General Harvey, for appellee.
TRENT, J.:
These cases come before us on appeal from the
Court of First Instance of the First Judicial District.
Appellant was charged with three separates crimes
of estafa in three separate actions, tried and found
guilty in each case and sentenced in each of the first
and second to four months and in the third to six
months of arresto mayor. He was also condemned to
indemnify the offended parties, to temporary special
disqualification for the period of ten years and one
day and to pay the costs of the causes. By agreement
the three cases were tried together in the court
below and also in this court.
The facts are these:
The appellant shortly after entering upon his duties
as councilman of the town of Aparri, Province of
Cagayan, gave, in the month of October, 1910,
directions to his subordinates that the death of all
large animals must be reported by the owners to him
as councilman. These orders were conveyed to the
people as directed. Damaso Rabilas lost one carabao,
Bonifacio Rante one, Santiago Rante two, and Felipe
Rante one (those of Santiago and Felipe were
included in the same complaint. The respective
owners of these animals reported their death to the
appellant. Upon the receipt of this information the
appellant informed these owners that they must pay
a fine of P5 for each animal, these fees to be turned
into the municipality by him. The owners, believing
that the municipality had provided for the payment
of such fines, turned over to the appellant five pesos
for each animal that died. There was no provision
whatever made by the municipality or any other
entity for the imposition of such fines. These facts
clearly constitute the crime of estafa as defined and
penalized in paragraph 1, article 535, in relation with
paragraphs 1, article 534, Penal Code.
Appellant insists that the trial court erred (1) finding
that there were present in the commission of these
crimes the aggravating circumstances numbers 10,
11, and 18 of article 10 of the Penal Code; and (2) in
imposing the penalty set forth in article 399 of said
code. These provisions read:
ART. 10. The following are aggravating
circumstances:
xxx xxx xxx
476 | P a g e
10. That the act be committed with abuse
of confidence.
11. That advantage be taken by the
offender of his public position.
xxx xxx xxx
18. That the accused is a recidivist.
xxx xxx xxx
ART. 399. Any public officer who, taking
advantage of his official position, shall
commit any of the crimes enumerated in
chapter 4 of the section 2 of title 13 of this
book shall, in addition to the penalties
therein prescribed, suffer a penalty ranging
from temporary special disqualification in
its maximum degree to perpetual special
disqualification.
We agree with the counsel that there were not
present the aggravating circumstances mentioned in
numbers 10 and 18, supra, because there is nothing
to show that the crimes were committed with abuse
of confidence. There were no confidential relations
between the appellant and the injured parties. The
mere fact that people had reposed in the appellant
sufficient confidence to elect him to a public office
does not constitute the aggravating circumstance set
forth in number 10. In order to constitute this
circumstance the confidence between the parties
must be immediate and personal and such as would
give the accused person some advantage or make it
easier for him to commit the criminal act.
These three cases were tried together in the court
below. The judgments in all three of these cases
were rendered at the same time; in fact, the three
judgments are contained in the same paragraph and
were pronounced at the same time. A recidivist is
one who at the time of his trial for one crime shall
have been convicted by the final judgment of
another crime embraced in the same title of the
Penal Code. At the time the trial court held that the
accused was twice a recidivist there was no final
judgment against him. In fact, the judgments
imposed could not have become final until after the
expiration of fifteen days and this only in the event
that an appeal was not taken. So it is clear that the
aggravating circumstance mentioned in number 18
was not present.
It is insisted that the appellant in committing these
crimes did not take advantage of his public position
or office. in this we cannot agree with counsel. The
fact that the appellant was councilman at the time
placed him in a position to commit these crimes. If
he had not been councilman he could not have
induced the injured parties to pay these alleged
fines. It was on account of his being councilman that
the parties believed that he had the right to collect
fines and it was for this reason that they made the
payments. It is true that he had no right to either
impose or collect any fines whatsoever. It is also true
that a municipal councilman is not an official
designated by law to collect public fines. But these
facts do not destroy or disprove the important fact
that the accused did by taking advantage of his
public position deceive and defraud the injured
parties out of the money which they paid him. This
holding is not in conflict with the doctrine
enunciated in the case of United States vs. Casin (8
Phil. Rep., 589). In that case Casin and Calleja, the
offended party, lived in the same house. Calleja gave
Casin two pesos for the purpose of buying her a
cedula in order that she might institute a civil action
in the courts. Casin received the money promising to
buy the cedula. He neither purchased the cedula nor
returned the money but converted it to his own use.
The fact that he was a councilman did not have
anything to do with his receiving the two pesos. He
acted purely in his private capacity. Consequently, he
did not in any manner take advantage of his public
position.
It is also insisted that it was error to take into
consideration the aggravating circumstance number
11 and also impose the penalty provided in article
399. The aggravating circumstance number 11 was
found to be present and was taken into
consideration for the purpose of increasing the
penalty which the law says must be imposed. The
disqualification mentioned in article 399 is a part of
the penalty to be imposed. This penalty is never
imposed as an aggravating circumstance because
from the very nature of the penalty it cannot be so
considered.
There being present one aggravating circumstance
and no extenuating circumstances in the commission
of these crimes, the penalty should be imposed in
each case in its maximum degree, which is four
months of arresto mayor. In the first and second
cases the penalties imposed are in accordance with
the law; in the third the court erred in imposing six
months instead of four. This penalty is, therefore,
reduced to four months. In all other respects the
judgment appealed from are affirmed, with costs
against the appellant. So ordered.
Arellano, C.J., Mapa, Johnson and Carson, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-35156 November 20, 1981
477 | P a g e
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FLORO RODIL defendant-appellant.
MAKASIAR, J.:
Accused Floro Rodil was found guilty, beyond
reasonable doubt, of the crime of murder by the
Circuit Criminal Court of Pasig, Rizal, for the death of
Lt. Guillermo Masana of the Philippine Constabulary.
Accordingly, he was sentenced to death, to
indemnify the heirs of the deceased in the amount of
P12,000.00, to pay the amount of P10,000.00 as
moral damages and another P10,000.00 as
exemplary damages, and to pay the costs.
The information alleges:
That on or about April 24, 1971, in
the Municipality of Indang,
Province of Cavite, Philippines, and
within the jurisdiction of this
Honorable Court, the above-
named accused, armed with a
double-bladed dagger, with
evident premeditation and
treachery, and with intent to kill,
did, then and there, wilfully,
unlawfully, and feloniously, attack
and stab PC Lt. Guillermo Masana
while the latter was in the
performance of his official duties,
inflicting upon him stab wounds on
the different parts of his body
which directly caused his death.
Contrary to law
From the evidence adduced by the prosecution, We
glean the following facts:
At about 1:00 o'clock in the afternoon of April 24,
1971, the deceased, PC Lt. Guillermo Masana
together with PC soldier Virgilio Fidel, Philippine
Coast Guard serviceman Ricardo Ligsa and Patrolman
Felix Mojica of Indang, Cavite, was having lunch
inside a restaurant in front of the Indang market (pp.
2,3, t.s.n., Oct. 30, 1971; pp. 10, 19, t.s.n., Nov. 22,
1971; p. 21, t.s.n., Jan. 20, 1972). While they were
eating, they saw, through the glass panel of the
restaurant, appellant outside the restaurant blowing
his whistle. Their attention having been drawn to
what appellant was doing, Lt. Masana then in civilian
clothing, accompanied by PC soldier Virgilio Fidel,
went out of the restaurant, approached appellant
and asked the latter, after Identifying himself as a PC
officer, whether the gun that was tucked in his waist
had a license. Instead of answering the question of
Lt. Masana appellant moved one step backward and
attempted to draw his gun. PC soldier Virgilio Fidel
immediately grabbed appellant's gun from
appellant's waist and gave it to Lt. Masana After
that, Lt. Masana told the appellant to go inside the
restaurant. PC soldier Virgilio Fidel followed. Lt.
Masana and the appellant occupied a separate table
about one and one-half (1 1/2) meters from the
table of Lt. Masana's three companions — Fidel,
Ligsa and Mojica (p. 10, t.s.n., Nov. 22, 1971). After
the two were already seated, Lt. Masana placed
appellant's gun on the table. After that Lt. Masana
pulled out a piece of coupon bond paper from his
pocket and wrote thereon the receipt for the gun,
and after signing it, he asked appellant to
countersign the same, but appellant refused to do
so. Instead, he asked Lt. Masana to return the gun to
him. Lt. Masana rejected appellant's plea, telling, the
latter that they would talk the matter over in the
municipal building of Indang, Cavite. When Lt.
Masana was about to stand up, appellant suddenly
pulled out a double-bladed dagger and with it he
stabbed Lt. Masana several times, on the chest and
stomach causing his death several hours thereafter
(pp. 4, 5, 6, 7, 8, t.s.n., Oct. 30, 1971; pp. 10, 11, 12,
t.s.n., Nov. 22, 1971).
While the stabbing incident was taking place, the
three companions of Lt. Masana — PC soldier Virgilio
Fidel, Coast Guard Ricardo Ligsa and policeman Felix
Mojica — who were all seated at a separate table
about one and one-half (1 1/2) meters away from
that occupied by the accused and Lt. Masana stood
up to assist Lt. Masana but Chief of Police Primo
Panaligan of Indang, Cavite, who happened to be
taking his lunch in the same restaurant, was quicker
than any of them in going near the combatants and
embraced and/or grabbed the accused from behind,
and thereafter wrested the dagger from the
accused-appellant. Immediately thereafter, the Chief
of Police brought the accused to the municipal
building of Indang, Cavite (p. 8, t.s.n., Oct. 30, 1971;
pp. 19-20, t.s.n., Nov. 22, 1971; pp. 26, 28, t.s.n., Jan.
20, 1972), while the companions of Lt. Masana
brought the latter to the V. Luna Hospital in Quezon
City where he expired several hours later as a result
of the stab wounds inflicted by the accused (pp. 21,
22, t.s.n., Nov. 22, 1971). Dr. Felicisimo del Rosario,
Medico-Legal Officer of the Armed Forces of the
Philippines, conducted an autopsy of the cadaver of
Lt. Masana and made the following findings, which
are embodied in his Report, Exhibits "D" and "D-1 "
(pp. 88-89, rec.), and which reads as follows:
Postmortem findings.
General:
Fairly developed and nourished
male subject in rigor mortis with
postmortem lividity over the
dependent portions of the body.
478 | P a g e
Pupils are dilated. Finger and toe
tips are pale. There is an
exploratory laparotomy incision at
the abdomen, measuring 21 cm.
long, 3 cm. left of the anterior
midline, with eighteen (18) stitches
applied. There are surgical incisions
at the left and right abdomen,
measuring 2 cm. long, 9 cm. from
the anterior midline and 2 cm.
long, 6.5 cm. from the anterior
midline with two (2) stitches
applied and a rubber drain sticking
out of each, respectively.
TRUNK:
(1) Stab wound, left chest,
measuring 0.9 by 0.4 cm., 5 cm.
from the anterior midline, 128 cm.
above the heel, 1 cm. deep,
directed posterior wards and
slightly upwards, passing
superficially between muscles and
tissues.
(2) Stab wound, left chest,
measuring 1.2 by 0.4 cm., 9 cm.
from the anterior midline, 121 cm.
above the heel, 5.5. cm. deep,
directed posterior wards,
downwards and to the left,
lacerating the muscles at the 4th
intercostal space.
(3) Stab wound, abdomen,
measuring 0.9 by 0.2 cm. just left
of the anterior midline, 96 cm.
above the heel 11 cm. deep,
directed posterior wards, upwards
and to the left, perforating the
greater curvature of the stomach
and the gastric vessels, grazing the
liver, perforating the diaphragm
and infero-medial border of the
lower lobe of the right lung.
(4) Impact abrasion, right scapular
region, measuring 2 by 0.2 cm., 12
cm. from the posterior midline,
127 cm. above the heel.
UPPER EXTREMITIES:
(5) Incised wound, anterior aspect
of the distal third of the left arm,
measuring 3 by 0.5 cm., just medial
to its anterior midline.
(6) Incised wound, posterior aspect
of the proximal phalange of the
right index finger, measuring 1 by
0.2 cm., just medial to its posterior
midline.
Five hundred (500) cc. blood and
blood clots accumulated in the
thoracic cavity.
There are four (4) sutures applied
at a lacerated wound at the greater
curvature of the stomach.
There is nothing remarkable in the
unaffected organs internally.
REMARKS:
Cause of death is cardio-
respiratory arrest due to severe
shock and intrathoracic
 hemorrhage as a result of multiple
stab wounds of the body,
perforating the stomach, gastric
vessels, liver, diaphragm and lower
lobe of the right lung.
Claiming self-defense, the accused, on the other
hand, maintains and relies on the following facts:
At about 1: 00 o'clock in the afternoon of April 24,
1971, the accused and his wife were in a restaurant
near the market place of Indang, Cavite, in order to
take their lunch. They had just come from
Mandaluyong, Rizal where they reside (pp. 21, 22,
t.s.n., Dec. 10, 1971). Inside the restaurant, the
accused saw three persons to his right, eating, while
to his left he saw a person whom he later learned to
be Lt. Guillermo Masana drinking beer alone. While
the accused and his wife were waiting for the food to
be served, Lt. Masana approached him and asked
him whether he was Floro Rodil and whether he was
a member of the Anti- Smuggling Unit. After
receiving an affirmative answer, Lt. Masana invited
the accused to join him in his table. The accused
accepted the invitation so the two moved over to
the officer's table where the deceased offered beer
to the accused who, however, refused saying he was
still hungry. In the course of their conversation, Lt.
Masana told the accused not to report any matter
about smuggling to the PC. The accused informed
the officer that he had not reported any smuggling
activity to the authorities. Lt. Masana then asked the
accused for his identification card as a member of
the Anti-Smuggling Unit, which the latter did by
showing his ID card, Exhibit " 1 ", bearing his picture
and indicating that he was an officer of the Anti-
Communist League of the Philippines (pp. 62-68,
t.s.n., Dec. 7, 1971).
Thereupon, Lt. Masana told the accused that the
latter's ID was fake, and after the accused insisted
479 | P a g e
that it was genuine, Lt. Masana tried to take it away
from the accused when the latter was about to put it
back in his pocket. Because of his refusal to give his
Id card to Lt. Masana the latter got mad and, in an
angry tone of voice, demanded: "Will you give it to
me or not?" (P. 7 1, Ibid). Still the accused refused to
surrender his ID to Lt. Masana Thereupon, the latter
pulled a gun from his waist and hit the accused on
the head with its handle two (2) time Immediately,
blood gushed from his head and face. When Lt.
Masana was about to hit the accused for the third
time, the latter parried the right hand of the officer,
pulled his "pangsaksak" and stabbed the officer two
or three times and then pushed him away from him
and ran out of the restaurant (pp. 74,75,79, Ibid).
The accused went in the direction of the municipal
building of Indang, Cavite, where he intended to
surrender to the authorities. But on his way, he met
Primo Panaligan, the Chief of Police of Indang,
Cavite. The Chief of Police asked him why his head
and face were bloody and he answered that he was
hit by Lt. Masana on the head with a gun (pp. 86, 89,
t.s.n., Ibid). If here upon, the Chief of Police asked
somebody to accompany the accused to the
municipal building. Arriving there, one Victor, a
policeman of Indang, Cavite, accompanied him to Dr.
Ruben Ochoa, whose clinic was just across the street
where the municipal building is located (p. 9,
t.s.n., Ibid; p. 4, t.s.n., Dec. 15, 1971). After he was
given first aid treatment, he was brought back by the
Indang policeman to the municipal, building where
he was detained for two days before he was picked
up by the Philippine Constabulary operatives and
transferred to the 121th PC Headquarters in
Tagaytay City (pp. 90-91, t.s.n., Ibid; pp. 4, 39, 40,
t.s.n., Dec. 10, 1971; p. 6, t.s.n., Dec. 15, 1971; p. 5,
t.s.n., Jan. 20, 1972).
After due trial, the court a quo rendered a decision
sentencing the accused as heretofore stated.
I
Self-defense is an affirmative allegation that must be
proven by clear, sufficient, satisfactory and
convincing evidence (People vs. Libed 14 SCRA 410,
413; People vs. Mendoza, 13 SCRA 11, 17; People vs.
Solaña, 6 SCRA 60, 65-66; People vs. Davis, 1 SCRA
473; 477; People vs. Paras, 80 Phil. 149; 152; People
vs. Berio 59 Phil. 533; 536; People vs. Gimena, 59
Phil. 509, 514). Moreover, to prove justification, the
accused must rely on the strength of his own
evidence and not on the weakness of that of the
prosecution, for even if it were weak, it could not be
disbelieved after the accused had admitted the
killing (People vs. Llamera, 51 SCRA 48, 57; People
vs. Talaboc, 30 SCRA 87; People vs. Navarro, 25 SCRA
491; 496; People vs. Solaña, 6 SCRA 60, 65-66;
People vs. Espenilla, 62 Phil. 264, 270; People vs.
Apolinario, 58 Phil 586-588; People vs. Ansoyon, 65
Phil. 7 7 2). The rationale for this jurisprudence is
that, having admitted the wounding or killing of the
victim, the accused must be held criminally liable for
the crime unless he establishes to the satisfaction of
the court the fact of legitimate self-defense.
In the case at bar, the accused contends that it was
the deceased, Lt. Guillermo Masana who committed
unlawful aggression when the latter hit him on his
head with the handle of his gun after he refused to
surrender his (accused's) ID to him.
This claim does not merit belief.
The accused claims that after he refused to give his
ID to the deceased because the same was his and he
also spent money for it, the latter hit him with the
handle of his (deceased's) gun. WE cannot perceive
how this refusal of the accused could have provoked
or enraged the deceased to the extent of initiating
the aggression by drawing his pistol and hitting the
accused with its butt, knowing that the accused was
no longer armed after the latter's gun had earlier
been taken away from him. Besides, an agent of
authority, like the deceased, ordinarily is not
authorized to use force, except in an extreme case
when he is attacked, or subject to active resistance,
and finds no other way to comply with his duty or
cause himself to be obeyed by the offender.
Furthermore, the records reveal an unrebutted fact
to the effect that the deceased was unarmed when
the incident happened, he being then on leave. As a
matter of fact, he was then in civilian clothing (pp.
29-30, t.s.n., Jan. 20, 1972). WE are, therefore,
inclined to believe that it was the accused who had
every reason to be resentful of the deceased and to
be enraged after the deceased refused to heed his
plea that his gun be returned him; because he might
be prosecuted for illegal possession of firearms.
Accordingly, We are constrained to draw the
inescapable conclusion that it was the accused, not
the deceased, who initiated the aggression which
ended in the fatal wounding of the deceased
resulting in his death.
The accused further claims that he was hit twice by
the deceased before he parried the third blow. This
claim is belied by the record. During the trial, the
court a quo asked the accused to show the scar
produced by the injuries inflicted by the deceased
when he refused to give his ID thus —
Court
Q Where is that
scar?
(Witness showing
his right side of
the head to the
Court)"
[pp. 86,88, t.s.n., Dec. 7, 1971].
480 | P a g e
Dr. Ruben Ochoa who treated the injuries of the appellant with such force that appellant bumped his
accused corroborated the foregoing testimony in his head on the edge of the table causing blood to ooze
medical findings, Exhibit "3", which reads: from the resulting injury on his head.
Injuries: When the accused allegedly met the Chief of Police
of Indang, Cavite, on his way to the municipal
(1) lacerated wound 1/2 inch, building from the scene of the stabbing incident
parietal region. purportedly to surrender to the authorities, he
claims that he told the Chief of Police that Lt.
Masana hit him on his head with the handle of his
(2) lacerated wound, 1 1/2 inches,
(Masana's) gun. On his return from the clinic of Dr.
rt ear lobe
Ochoa where his injuries were treated, he was
detained in the municipal building of Indang, Cavite
(3) contusion, right mastoid area
for two days before he was transferred to the
[Exh. "3"; p. 116, rec] .
Tagaytay PC Headquarters. During all this time, he
did not give any written statement, much less inform
The record reveals that the deceased was a right-
any PC or other police agency that he stabbed Lt.
handed person (pp. 76-77, t.s.n., Dec. 7, 1971). It
Masana in self-defense. It was only on July 8, 1971.
also shows that before the stabbing incident took
after the lapse of more than two and one-half (2 1/2)
place, the deceased and the accused were facing
months that he claimed self-defense during the
each other. If that was the case, and considering that
preliminary investigation of the case before the
the deceased was, according to the accused, holding
municipal judge of Indang, Cavite (pp. 44, t.s.n., Dec.
the gun with his right hand, why was the accused hit
10, 1971). If the accused had really acted in self-
on the right side of his head and and on his right ear
defense, he would surely have so informed the Chief
lobe WE find that this particular claim of the accused
of Police at the first opportunity. He only allegedly
that it was the deceased who first hit him twice with
told the Chief of Police, who allegedly asked him why
the handle of his gun before parrying the third blow
his head and face were bloody, that Lt. Masana hit
and then stabbing the latter is definitely belied not
him with a gun. He did not tell the Police Chief that
only by the location of the scar but also by the
he was surrendering for stabbing the deceased in
medical finding of Dr. Ochoa aforequoted. Indeed, if
self-defense. This claim of the accused made before
the protagonists were facing each other, and it
the municipal judge of Indang, Cavite, on July 8, 1971
appearing that they were both right- handed (p. 13,
aforesaid constitutes an exculpatory statement
t.s.n., Nov. 22, 1971), the blow given by one, if not
made so long after the crime was committed on
parried by the other, would perforce land on the left,
April 24, 1971. Such claim does not deserve credence
and not on the right, side of the body of the
since the same is obviously an afterthought, which
recipient of the blow. WE, therefore, reject such
cannot overthrow the straightforward testimony of
claim for being improbable, the same being contrary
prosecution witnesses PC soldier Virgilio Fidel and
to the natural course of human behavior.
Coast Guard serviceman Ricardo Ligsa both
disinterested and unbiased witnesses, whose
The fact of the matter, however, as testified to by testimony as peace officers, in the absence of any
state witness PC soldier Virgilio Fidel, is that the showing as to any motive that would impel them to
victim parried with both hands the thrust of the
distort the truth, must be afforded full faith and COURT Q Who bumped
credit as a whole. the head of Rodil
Q What is the on the table?
The fact that the chief of police detained the accused truth?
that same day after he was treated by Dr. Ochoa, A When Masana
confirms the testimony of the state witnesses that A The truth is parried his stab
the police was present during the incident between that when I saw with his hands he
the appellant and the victim and that the police chief that Floro Rodil accidentally
embraced appellant and grabbed the knife from stabbed Lt. bumped his head
appellant, whom he thereafter brought to the Guillermo on the table.
municipal building. Masana, Masana
parried him and Q Is it not a fact
II his head (Rodil's that Floro Rodil is
head) bumped on much bigger than
Was the crime committed murder or homicide the edge of a Lt. Masana
merely or murder or homicide complexed with table; that is why
assault upon an agent of authority? he sustained an A Yes, sir.
injury and blood
According to the Solicitor General, the crime oozed from his Q You mean, by
committed was murder because "it was established head (pp. 8-9, simple parrying,
by the prosecution that during the stabbing incident, t.s.n., Jan. 20, Floro Rodil was
appellant suddenly and without giving the victim a 1972; emphasis pushed to the
chance to defend himself, stabbed the latter several supplied). extent that he
times with a dagger, inflicting upon mortal wounds bumped his head
on the chest and stomach. ...Needless to say, such a Then, on cross-examination, the same witness on the table?
sudden and unexpected attack with a deadly testified:
weapon on an unarmed and unsuspecting victim, A The force of Lt.
which made it impossible for the latter to flee or ATTY. MUÑOZ Masana might
defend himself before the fatal blow is delivered, is have been strong
alevosia or treachery" (p. 14, Appellee's brief). Q You said that in parrying.
Floro Rodil's head
In support of his contention, the Solicitor General was bumped on xxx xxx xxx
cited the cases of U.S. vs. Cornejo (28 Phil. the edge of a
475); People vs. Palomo (43 O.G. No. 10, 4190). table and you Q When the head
saw blood oozing of Rodil bumped
WE do not agree with the Solicitor from his head, is on the table, was
General. Alevosia or treachery is belied by the that correct? Lt. Masana
following testimony of Virgilio Fidel, star witness for already stabbed?
the prosecution: A Yes, sir.

481 | P a g e
 A It could be that
he was already
stabbed or he
was not yet
stabbed.
pp 30-31, 33, t.s.n., Jan. 20, 1972;
emphasis supplied].
After a thorough analysis of the aforequoted
portions of the testimony of Virgilio Fidel, one of the
prosecution witnesses, WE can only conclude that
the assailant and the victim were indeed face to face
when the stabbing took place. As such the attack
was not treacherous because the victim was able to
ward off the same with his hand. As a matter of fact,
the force he used in warding off the attack was so
strong that the accused bumped his head on a table
nearby, causing injuries to him which necessitated
medical treatment. In short, the attack on the victim
was made on the spur of the moment. The
suddenness of the attack does not by itself suffice to
support a finding of treachery (People vs. Torejas, et
al., 43 SCRA 158, 167). Besides, the record failed to
show that the accused made any preparation to kill
his victim so as to insure the commission of the
crime, making it at the same time possible or hard
for the victim to defend himself or retaliate (People
vs. Saez, 1 11 Phil. 546, 553, citing the case of People
vs. Tumaob, 83 Phil. 738). Neither does it show that
the accused employed means directly and specially
tending to insure the killing without risk to himself.
On the contrary, it shows that the accused was easily
within striking distance of his three companions, two
of whom were police officers. Furthermore, there
was an altercation between the accused and the
victim about the confiscation by the latter of the gun
belonging to the former, and at the moment when
the victim was about to stand up, the accused drew
a knife from his pocket and with it stabbed the
victim in the chest. Clearly, therefore, the impelling
482 | P a g e
motive for the attack by appellant on his victim was
the latter's performance of official duty, which the
former resented. This kind of evidence does not
clearly show the presence of treachery in the
commission of the crime. Alevosia is not to be
presumed, but must be proved as conclusively as the
act which it qualifies (People vs. Abril, 51 Phil. 670,
675). This is so because in the explicit language of
the Revised Penal Code, alevosia or treachery exists
when the offender commits any of the crimes
against the person, employing means, methods, or
forms in the execution thereof which tend directly
and specially to insure its execution, without risk to
himself arising from the defense which the offended
party might make [Art. 14, par. 16, Revised Penal
Code].
While the evidence definitely demonstrated that
appellant knew because the victim, who was in
civilian clothing, told him that he was an agent of a
person in authority; he cannot be convicted of the
complex crime of homicide with assault upon an
agent of a person in authority, for the simple reason
that the information does not allege the fact that the
accused then knew that, before or at the time of the
assault, the victim was an agent of a person in
authority. The information simply alleges that
appellant did attack and stab PC Lt. Guillermo
Masana while the latter was in the performance of
his official duties, ..." Such an allegation cannot be an
adequate substitute for the essential averment to
justify a conviction of the complex crime, which
necessarily requires the imposition of the maximum
period of the penalty prescribed for the graver
offense. Like a qualifying circumstance, such
knowledge must be expressly and specifically
averred in the information; otherwise, in the
absence of such allegation, the required knowledge,
like a qualifying circumstance, although proven,
would only be appreciated as a generic aggravating
circumstance. Applying this principle, the attack on
the victim, who was known to the appellant as a
peace officer, could be considered only as
aggravating, being "in contempt or with insult to the
public authorities" (Par. 1, Art. XIV of the Revised
Penal Code), or as an "insult or in disregard of the
respect due the offended party on account of his
rank, ..." (par. 3, Art. XIV, Revised Penal Code).
It is essential that the accused must have knowledge
that the person attacked was a person in authority
or his agent in the exercise of his duties, because the
accused must have the intention to offend, injure, or
assault the offended party as a person in authority or
agent of a person in authority (People vs. Villaseñor
35 SCRA 460 [19701, People vs. Rellin 72 Phil. 1038
[1947]; US vs. Alvear et al., 35 Phil. 626 [1916]).
In the case of People vs. Balbar (21 SCRA 1119, Nov.
29, 1967), it was held that failure to expressly
alleged in the information that the accused had
knowledge that the person attacked was a person in
authority does not render the information defective
so long as there are facts alleged therein from which
it can be implied that the accused knew that the
person attacked was a person in authority. Thus, the
information for Direct Assault upon a person in
authority reads as follows:
The undersigned Assistant
Provincial Fiscal accuses Tiburcio
Balbar of the crime of Assault upon
a Person in Authority, committed
as follows:
That on or about the 29th day of
August, 1960, in Barrio Cumba,
Municipality of Lian, Province of
Batangas, Philippines, and within
the jurisdiction of this Honorable
Court, the abovenamed accused
did then and there wilfully,
 unlawfully and feloniously assault
Miss Ester Gonzales, a public
school teacher in the school
bonding of Lian, duly qualified and
appointed as such and while in the
performance of her official duties
or on the occasion therefor, by
then and there pulling his dagger,
embraced and kissed. and
repeatedly trying to embrace and
kiss the said teacher, Miss Ester
Gonzales. That the crime was
committed with the aggravating
circumstances of having
committed it inside the school
building and during school classes.
Contrary to law.
And the ruling of the Court was:
Direct assault is committed 'by any
person or persons who, without a
public uprising, ... shall attack,
employ force, or seriously
intimidate or resist any person in
authority or any of his agents,
while engaged in the performance
of official duties, or on occasion of
such performance' (See Art. 148,
Revised Penal Code).
By express provision of law (Com.
Act No. 578, now part of Article
152 of the Revised Penal Code, as
amended by Republic Act No.
1978), "teachers, professors, and
persons charged with the
supervision of public or duly
recognized private schools,
colleges and universities shall be
483 | P a g e
deemed persons in authority, in
applying the provisions of article
148." This special classification is
obviously intended to give teachers
protection, dignity, and respect
while in the performance of their
official duties. The lower court,
however, dismissed the
information on the ground that
there is no express allegation in the
information that the accused had
knowledge that the person
attacked was a person in authority.
This is clearly erroneous.
Complainant was a teacher. The
information sufficiently alleges that
the accused knew that fact, since
she was in her classroom and
engaged in the performance of her
duties. He therefore knew that she
was a person in authority, as she
was so by specific provision of law.
It matters not that such knowledge
on his part is not expressly alleged,
complainant's status as a person in
authority being a matter of law and
not of fact, ignorance thereof could
not excuse non- compliance on his
part (Article 3, Civil Code). This
article applies to all kinds of
domestic laws, whether civil or
penal (De Luna vs. Linatoc, 74 Phil
15) and whether substantive or
remedial (Zulueta vs. Zulueta, 1
Phil. 254) for reasons of
expediency, policy and necessity.
But, in the case of People vs. CFI of Quezon, Branch
V (68 SCRA 305, Nov. 28, 1975), the information for
Direct Assault reads:
That on or about the 17th day of
January, 1974, at Barrio Languyin,
Municipality of Potillo, Province of
Quezon, Philippines, and within the
jurisdiction of this Honorable
Court, the above-named accused,
Ernesto Busto, Paulo Coralde, Dony
Grande and Jose Astjada each of
whom was armed with a piece of
wood, except Paulo Coraide
conspiring and confederating
together and mutually helping one
another, did then and there
wilfully, unlawfully and feloniously
attack, assault, box and strike with
said pieces of wood one Rufino
Camonias a councilman of barrio
Languyin of said municipality, duly
elected and qualified as such while
said councilman was engaged in
the actual performance of his
duties.
The trial court dismissed the same on the ground
that:
Of importance in this case is the
lack of allegation in the complaint
or in the information that the
offended party was an agent of a
person in authority and that such
fact was known to the accused.
The absence of such allegation is
fatal in this case."
The People appealed to this Court through a petition
for review on certiorari.
This Court held that the fiscal's proper course of
action is not a petition for review on certiorari but
the refiling of a valid information against the knew that such position was that
accused, for the following considerations: of a person in authority, since 'this
is a matter of law' thus:
The Solicitor General in his
comment of November 4, 1975 Complainant was
duly observed that '(I)t is patent a teacher. The
that the acquittal of the accused information
herein is not on the merits. There sufficiently
is want of factual finding upon alleges that the
which their conviction or acquittal accused knew
could have been based.' that fact, since
she was in her
It need only be observed that classroom and
contrary to the fiscal's contention, engaged in the
the information was deficient in performance of
that it did not allege an essential her duties. He
element of the crime of direct therefore knew
assault that the accused had that she was a
knowledge of or knew the position person in
of authority held by the person authority, as she
attacked, viz. that of a barrio was so by specific
councilman (and hence the agent provision of law.
of a person in authority under It matters not
Article 152 of the Revised Penal that such
Code as amended by Republic Act knowledge on
No. 1978) [See U.S. vs. Alvear 35 `his part is not
Phil. 626; People vs. Rellin 77 Phil. expressly alleged,
1038; Vol. 11, Padilla's Revised complainant's
Penal Code, 10th Ed., p. 225]. status as a
person in
What was held in People vs. authority being a
Balbar 21 SCRA, 119,1123, cited by matter of law
the fiscal is that it is sufficient that and not of fact,
the information alleged that the ignorance
accused knew the position of whereof could
authority, held by the offended not excuse non-
party, in that case a public school compliance on
teacher, then engaged in the his part (Article 3,
performance of her official duties, Civil Code). This
and that it is not necessary to article applies to
allege further that the accused also all kinds of
484 | P a g e
domestic laws,
whether civil or
penal (De Luna
vs. Linatoc, 74
Phil. 15) and
whether
substantive or
remedial (Zulueta
vs. Zulueta, 1
Phil, 254) for
reasons of
expediency,
policy and
necessity.
Since the 'decision' of acquittal was
really a mere dismissal of the
information for failure to charge an
offense and was not a decision on
the merits with factual findings as
per the trial judge's own disavowal
it is patent that the fiscal's proper
course is not the present petition
but the refiling of a valid
information against respondents-
accused, as herein indicated.
ACCORDINGLY, the petition is
dismissed without prejudice to the
refiling of a valid information
against respondents-accused as
hereinabove indicated (emphasis
supplied).
The ruling in the aforementioned case of People vs.
CFI of Quezon, etc., supra, applies to the instant
case; because the information in the former is
strikingly similar to the information in the latter and
does not allege facts from which inference can be
deduced that the accused knew that the person
assaulted is a person, or an agent of a person, in
authority.
The aggravating circumstance of disregard of rank
should be appreciated because it is obvious that the
victim, PC. Lt. Masana Identified himself as a PC
officer to the accused who is merely a member of
the Anti-Smuggling Unit and therefore inferior both
in rank and social status to the victim.
The term "rank" should be given its plain, ordinary
meaning, and as such, refers to a high social position
or standing as a grade in the armed forces
(Webster's Third New International Dictionary of the
English Language Unabridged, p. 1881); or to a
graded official standing or social position or station
(75 CJS 458); or to the order or place in which said
officers are placed in the army and navy in relation
to others (Encyclopedic Law Dictionary, Third
Edition, Walter A. Shumaker and George Foster
Longsdorf, p. 90); or to the designation or title of
distinction conferred upon an officer in order to fix
his relative position in reference to other officers in
matters of privileges, precedence, and sometimes of
command or by which to determine his pay and
emoluments as in the case of army staff officers
(Bouvier's Law Dictionary, Third Edition, p. 2804); or
to a grade or official standing, relative position in
civil or social life, or in any scale of comparison,
status, grade, including its grade, status or scale of
comparison within a position (Vol. 36, Words and
Phrases, Permanent Edition, p. 100).
Thus, rank aggravated the killing of a staff sergeant
by his corporal (People vs. Mil 92 SCRA 89, 105-106,
July 30, 1979), the killing of the Assistant Chief of
Personnel Transaction of the Civil Service
Commission by a clerk therein (People vs. Benito, 62
SCRA 351, 357-358, Feb. 13, 1975), the murder by a
pupil of his teacher (U.S. vs. Cabling, 7 Phil. 469. 474;
People vs. Aragon & Lopez, 107 Phil. 706, 709), the
485 | P a g e
murder of a municipal mayor (People vs. Lopez de
Leon, et al., 69 Phil. 298), the murder -of a city chief
of police by the chief of the secret service division
(People vs. Hollero 88 Phil. 167), assault upon a 66-
year old District Judge of the Court of First Instance
by a justice of the peace (People vs. Torrecarreori CA
52 OG 7644), the killing of a Spanish consul by his
subordinate — a mere chancellor (People vs.
Godinez, 106 Phil. 597, 606607), and the killing of an
army general (People vs. Torres, et al., L-4642, May
29, 1953).
As explained by Mr. Justice Mariano Albert, then of
the Court of Appeals, those "generally considered of
high station in life, on account of their rank (as well
as age or sex), deserve to be respected. Therefore,
whenever there is a difference in social condition
between the offender and the offended party, this
aggravating circumstance sometimes is present"
(Albert M.A. — The Revised Penal Code Annotated,
1946 Ed., p. 109).
The difference in official or social status between a
P.C. lieutenant and a mere member of an anti-
smuggling unit, is patent.
If the accused herein were charged with the complex
crime of murder with assault against an agent of a
person in authority, and not merely murder, then
the aggravating circumstance of disregard of rank or
contempt of or insult to public authority cannot be
appreciated as aggravating because either
circumstance is inherent in the charge of assault
against a person in authority or an agent of a person
in authority. But in the case at bar, the appellant is
accused of murder only. Consequently, either
aggravating circumstance should be considered in
the imposition of the penalty.
Thus, in the following cases where the charge was
merely murder or frustrated murder, the aggravating
circumstance of disregard of rank was appreciated:
(1) People vs. Benito, supra — the appellant, a clerk
in the Civil Service Commission, was charged with
and convicted of the murder of the assistant chief of
the personnel transaction of the said Commission;
(2) People vs. Torres, et al., supra — the appellants
were charged with and convicted of murder for the
death of Army Col. Valentin Salgado and attempted
murder for the injuries inflicted on Army Gen.
Mariano Castaneda;
(3) People vs. Valeriano, et al. — appellants were
accused and convicted of robbery with homicide for
the killing of District Judge Bautista of the Court of
First Instance of Pampanga [90 Phil. 15, 34-35]; and
(4) People vs. Hollero supra — where the accused
chief of the Secret Division of the Bacolod City Police
Department was convicted of murder for the killing
of the chief of police.
The aggravating circumstance of contempt of, or
insult to, public authority under paragraph 2 of
Article 14 of the Revised Penal Code can likewise be
appreciated in the case at bar.
The evidence of the prosecution clearly established
that Chief of Police Primo Panaligan of Indang was
present as he was taking his lunch in the same
restaurant when the incident occurred.
As a matter of fact, the said chief of police was the
one who embraced or grabbed the accused from
behind, wrested the dagger from him and thereafter
brought him to the municipal building of Indang. And
appellant admittedly knew him even then as the
town chief of police, although he now claims that he
went to the municipal building to surrender to the
chief of police who was not allegedly in the
restaurant during the incident.
While it is true that in the cases of U.S. vs. Rodriguez,
et al. (19 Phil. 150, 157-158), People vs. Siojo (61
Phil. 307, 317), and People vs. Verzo (21 SCRA 1403),
this Court ruled that the term public authority refers
to a person in authority and that a PC lieutenant or
town chief of police is not a public authority but
merely an agent of a person in authority; there is
need of re-examining such a ruling since it is not
justified by the employment of the term public
authority in aforesaid paragraph 2 of Article 14
instead of the term person in authority which is
specifically used in Articles 148 and 152 of the
Revised Penal Code. There is no extended reasoning
of the doctrine enunciated in the aforesaid three (3)
cases why the phrase public authority should
comprehend only persons in authority. The
lawmaker could have easily utilized the term
"persons in authority" in the aforesaid paragraph 2
of Article 14 in much the same way that it employed
the said phrase in Articles 148 and 1452. The
lawmaker must have intended a different meaning
for the term public authority, which may however
include, but not limited to persons in authority.
Under the decided cases, a municipal mayor, barrio
captain, barrio lieutenant or barangay captain is a
person in authority or a public authority. Even a
public school teacher is now considered a person in
authority under CA 578 amending Article 152 of the
Revised Penal Code (Sarcepudes vs. People, 90 Phil
228). So is the town municipal health officer (People
vs. Quebral et al., 73 Phil 640), as well as a nurse, a
municipal councilor or an agent of the Bureau of
Internal Revenue (People vs. Yosoya, CA-GR No.
8522-R, May 26, 1955; People vs. Reyes, et al O.G.S.
11 p. 24).
486 | P a g e
The chief of police should therefore be considered a
public authority or a person in authority; for he is
vested with jurisdiction or authority to maintain
peace and order and is specifically duty bound to
prosecute and to apprehend violators of the laws
and municipal ordinances, more than the
aforementioned officials who cannot prosecute and
who are not even enjoined to arrest malefactors
although specifically mentioned as persons in
authority by the decided cases and by Article 152 of
the Revised Penal Code as amended by R.A. 1978 of
June 22, 1957. The town chief of police heads and
supervises the entire police force in the municipality
as well as exercises his authority over the entire
territory of the municipality, which is patently
greater than and includes the school premises or the
town clinic or barrio, to which small area the
authority or jurisdiction of the teacher, nurse, or
barrio lieutenant, respectively, is limited.
With two aggravating circumstances and no
mitigating circumstance, the appellant should
therefore be condemned to suffer the maximum
period of reclusion temporal the penalty prescribed
for homicide.
WHEREFORE, HAVING BEEN FOUND GUILTY BEYOND
REASONABLE DOUBT OF HOMICIDE AGGRAVATED BY
CONTEMPT FOR OR INSULT TO A PUBLIC AUTHORITY
OR DISREGARD OF THE RESPECT DUE THE OFFENDED
PARTY ON ACCOUNT OF HIS RANK, APPELLANT
FLORO RODIL IS HEREBY SENTENCED TO SUFFER AN
INDETERMINATE TERM OF IMPRISONMENT
RANGING FROM 12 YEARS OF RECLUSION
TEMPORAL AS MAXIMUM.
THUS MODIFIED, THE JUDGMENT APPEALED FROM
IS HEREBY AFFIRMED IN ALL OTHER RESPECTS.
Aquino, Concepcion Jr., Fernandez and Guerrero, JJ.,
concur.
Fernando, C.J., concur in the result.
Separate Opinions
TEEHANKEE, J., concurring:
I concur with the judgment's imposition of the
maximum penalty for homicide, although I join
Mme. Justice Herrera's partial dissent insofar as she
holds that the aggravating circumstance of contempt
of or insult to the public authorities may not be
appreciated. However, disregard of rank was
properly appreciated as a generic aggravating
circumstance, and hence the maximum penalty for
homicide is properly imposed in the absence of any
mitigating circumstance.
Barredo, J., concur.
MELENCIO-HERRERA, J., dissenting:
I believe that neither the aggravating circumstance
of contempt of, or insult to the public authorities
under Article 14, par. 2 of the Revised Penal Code,
nor that of insult or disregard of the respect due to
the offended party on account of his rank under
Article 14, par. 3 of the same Code, is applicable to
the present case.
1. For the circumstance of contempt of, or with
insult to, public authorities to be considered
aggravating, it is essential (a) that the crime is
committed in the presence of a public authority, not
a mere agent of the authorities (People vs. Siojo, 61
Phil. 307 [19351; People vs. Verzo, et al 21 SCRA
1403 [1967]; and (b) that the public authority is
engaged in the exercise of his functions and is not
the person against whom the crime is committed
(People vs. Siojo, citing U.S. vs. Rodriguez, 19 Phil.
150 [191]; Decision of the Supreme Court of Spain
dated January 24, 1881, 1 Viada 310), nor the one
injured by the commission of the offense (People vs.
Pardo, 79 Phil. 568 [1947]).
In this case, Lt. Guillermo Masana of the Philippine
Constabulary is not a public authority nor a person in
authority as these terms are defined by Article 152,
par. 1 of the Revised Penal Code for he is not directly
vested with jurisdiction, that is, power or authority
to govern and execute the laws or to hear and
decide a cause; he is a mere agent of a person in
authority as defined by Article 152, par. 2 of the
Revised Penal Code, he being a member of the
Philippine Constabulary which is a government
military agency in charge of the maintenance of
public order and the protection and security of fife
and property. In fact, the Decision itself calls him an
agent of a person in authority (p. 13).
And even if Lt. Masana were a person in authority,
this aggravating circumstance cannot be taken into
account because it is he himself who is the offended
party (People vs. Siojo, supra).
2. Neither can the second circumstance, that of
disregard of the respect due to rank, be made to
apply. It is not the existence alone of rank of the
offended party that determines the presence of this
aggravating circumstance. There must be a
difference in the social condition of the offender and
the offended party.
El concepto de dignidad en su
aspects general no esta constituido
solo por el caracter de authoridad
487 | P a g e
solo por la funcion publica o cargo
que desempene el ofendido sino
tambien pro la diferencia de
condicion social entre la victims y
el ofensor ... (Cuello Calon,
Derecho Penal Decimotercera
edicion Tomo I, p. 554).
Where the offender and the offended party are of
the same rank, this aggravating circumstance does
not apply.
Las personas constituidas en
dignidad, y que por esta razon
merecen mayor respeto, son las
que generalmente se consideran
por todo el mundo como
superiores o mas elevadas que el
que comets el delito: tales son los
sacerdotes y las Autoridades
respecto de los particulares, los
maestros con relacion a sus
discipulos, los guardadores
respecto de sus pupilos, etc.
Siempre, pues, que hay diferencia
de condicion social entre el ofensor
y el ofendido, concurrira la
agravante de este numero, mas no
cuando hay igualdad Asi pues, si un
Sacerdote o un Magistrado
calumnian a otro Sacerdote o
Magistrado respectivamente, no
existira la circunstancia de
agravacion que comentamos.
(Viada Codigo Penal Reformado de
1870, Tomo II, p. 316).
The provision contemplates such a different in rank
as that of a teacher where the offender is a pupil
(U.S. vs. Cabiling, 7 Phil. 469 [1907]) (although a
teacher is now considered a person in authority);
a Judge where the offender is a private citizen
(People vs. Valeriano, et al., 90 Phil. 15 [1951]);
a General of the Philippine Army where the offender
is a private citizen (People vs. Torres, et al., L- 4642,
May 29, 1953); a Chief of Police, a superior of the
accused, who was chief of a division of the secret
police (People vs. Hollero 88 Phil. 167 [1951]);
a ranking official of the Civil Service Commission
where the offender is a clerk thereat (People vs.
Benito, 74 SCRA 271 [1976]); a Consul who was killed
by a chancellor in the Consulate, who is a
subordinate (People vs. Martinez Godinez, 106 Phil
597 [1959]).
In the case at bar, the difference in the social
condition and rank of the victim, a Lieutenant in the
Philippine Constabulary, and that of the accused,
who is a member of an anti-smuggling unit and an
officer of the Anti-Communist League of the
Philippines, is not of such a degree as to justify
consideration of disrespect of rank due to the
offended party as an aggravating circumstance.
In the absence of the two aggravating circumstances
discussed above or of any mitigating circumstance,
the penalty imposable is reclusion temporal in its
medium period, and the accused should be
sentenced to an indeterminate term of
imprisonment ranging from ten (10) years of prision
mayor, as minimum, to seventeen (17) years
of reclusion temporal as maximum.
Abad Santos and De Castro, JJ., concur.
Separate Opinions
TEEHANKEE, J., concurring:
I concur with the judgment's imposition of the
maximum penalty for homicide, although I join
Mme. Justice Herrera's partial dissent insofar as she
holds that the aggravating circumstance of contempt
of or insult to the public authorities may not be
appreciated. However, disregard of rank was
properly appreciated as a generic aggravating
circumstance, and hence the maximum penalty for
homicide is properly imposed in the absence of any
mitigating circumstance.
Barredo, J., concur.
MELENCIO-HERRERA, J., dissenting:
I believe that neither the aggravating circumstance
of contempt of, or insult to the public authorities
under Article 14, par. 2 of the Revised Penal Code,
nor that of insult or disregard of the respect due to
the offended party on account of his rank under
Article 14, par. 3 of the same Code, is applicable to
the present case.
1. For the circumstance of contempt of, or with
insult to, public authorities to be considered
aggravating, it is essential (a) that the crime is
committed in the presence of a public authority, not
a mere agent of the authorities (People vs. Siojo, 61
Phil. 307 [19351; People vs. Verzo, et al 21 SCRA
1403 [1967]; and (b) that the public authority is
engaged in the exercise of his functions and is not
the person against whom the crime is committed
(People vs. Siojo, citing U.S. vs. Rodriguez, 19 Phil.
150 [191]; Decision of the Supreme Court of Spain
dated January 24, 1881, 1 Viada 310), nor the one
injured by the commission of the offense (People vs.
Pardo, 79 Phil. 568 [1947]).
488 | P a g e
In this case, Lt. Guillermo Masana of the Philippine
Constabulary is not a public authority nor a person in
authority as these terms are defined by Article 152,
par. 1 of the Revised Penal Code for he is not directly
vested with jurisdiction, that is, power or authority
to govern and execute the laws or to hear and
decide a cause; he is a mere agent of a person in
authority as defined by Article 152, par. 2 of the
Revised Penal Code, he being a member of the
Philippine Constabulary which is a government
military agency in charge of the maintenance of
public order and the protection and security of fife
and property. In fact, the Decision itself calls him an
agent of a person in authority (p. 13).
And even if Lt. Masana were a person in authority,
this aggravating circumstance cannot be taken into
account because it is he himself who is the offended
party (People vs. Siojo, supra).
2. Neither can the second circumstance, that of
disregard of the respect due to rank, be made to
apply. It is not the existence alone of rank of the
offended party that determines the presence of this
aggravating circumstance. There must be a
difference in the social condition of the offender and
the offended party.
El concepto de dignidad en su
aspects general no esta constituido
solo por el caracter de authoridad
solo por la funcion publica o cargo
que desempene el ofendido sino
tambien pro la diferencia de
condicion social entre la victims y
el ofensor ... (Cuello Calon,
Derecho Penal Decimotercera
edicion Tomo I, p. 554).
Where the offender and the offended party are of
the same rank, this aggravating circumstance does
not apply.
Las personas constituidas en
dignidad, y que por esta razon
merecen mayor respeto, son las
que generalmente se consideran
por todo el mundo como
superiores o mas elevadas que el
que comets el delito: tales son los
sacerdotes y las Autoridades
respecto de los particulares, los
maestros con relacion a sus
discipulos, los guardadores
respecto de sus pupilos, etc.
Siempre, pues, que hay diferencia
de condicion social entre el ofensor
y el ofendido, concurrira la
agravante de este numero, mas no
cuando hay igualdad Asi pues, si un
Sacerdote o un Magistrado
calumnian a otro Sacerdote o
Magistrado respectivamente, no
existira la circunstancia de
agravacion que comentamos.
(Viada Codigo Penal Reformado de
1870, Tomo II, p. 316).
The provision contemplates such a different in rank
as that of a teacher where the offender is a pupil
(U.S. vs. Cabiling, 7 Phil. 469 [1907]) (although a
teacher is now considered a person in authority);
a Judge where the offender is a private citizen
(People vs. Valeriano, et al., 90 Phil. 15 [1951]);
a General of the Philippine Army where the offender
is a private citizen (People vs. Torres, et al., L- 4642,
May 29, 1953); a Chief of Police, a superior of the
accused, who was chief of a division of the secret
police (People vs. Hollero 88 Phil. 167 [1951]);
a ranking official of the Civil Service Commission
where the offender is a clerk thereat (People vs.
Benito, 74 SCRA 271 [1976]); a Consul who was killed
by a chancellor in the Consulate, who is a
subordinate (People vs. Martinez Godinez, 106 Phil
597 [1959]).
In the case at bar, the difference in the social
condition and rank of the victim, a Lieutenant in the
Philippine Constabulary, and that of the accused,
who is a member of an anti-smuggling unit and an
officer of the Anti-Communist League of the
Philippines, is not of such a degree as to justify
consideration of disrespect of rank due to the
offended party as an aggravating circumstance.
In the absence of the two aggravating circumstances
discussed above or of any mitigating circumstance,
the penalty imposable is reclusion temporal in its
medium period, and the accused should be
sentenced to an indeterminate term of
imprisonment ranging from ten (10) years of prision
mayor, as minimum, to seventeen (17) years
of reclusion temporal as maximum.
Abad Santos, and De Castro, JJ., concur.
FIRST DIVISION
G.R. No. 218945, December 13, 2017
PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee, v. LORETO DAGSIL Y CARITERO, Accused-
Appellant.
DECISION
DEL CASTILLO, J.:
489 | P a g e
Accused-appellant Loreto Dagsil y Caritero is
interposing this appeal upon a lone assignment of
error, to wit:
THE COURT A QUO GRAVELY ERRED IN NOT TAKING
INTO CONSIDERATION THE EXEMPTING
CIRCUMSTANCE OF TEMPORARY INSANITY IN FAVOR
OF THE ACCUSED-APPELLANT.1
Accused-appellant was charged with the felony of
murder committed, according to the
Information2 instituted therefor, as follows:
That on or about 6:00 o'clock in the morning of
December 2, 2008, at Barangay San Pedro,
Municipality of Sto. Domingo, Province of Albay,
Philippines and within the jurisdiction of this
Honorable Court, the said accused, with intent to kill
and with treachery and evident premeditation,
armed with a knife, did then and there willfully,
unlawfully and feloniously attack, assault and use
personal violence upon the person of AMEAN R.
BANZUELA, a 14-year old minor girl by then and
there stabbing her chest, thereby inflicting upon her
[a] mortal and fatal stab wound which was the direct
and immediate cause of her death, to the damage
and prejudice of the heirs of said Amean R. Banzuela.
The aggravating circumstances of treachery and
evident premeditation attended the commission of
the crime as the attack perpetrated by the accused
was so sudden, unexpected and treacherous as the
victim was asleep at the time and he deliberately
planned to take the life of the said victim having
been seen roaming outside the house prior to the
stabbing and [waiting] for an opportune time to get
inside the victim's house and he [had] sufficient time
to reflect upon the consequences of his unlawful act.
The aggravating circumstances of dwelling, abuse of
superior strength and disregard of age and sex also
attended the commission of the crime. The crime
took place inside the house of the victim after [the]
accused gained unlawful entry [and] stabbed the
sleeping victim, [who was] a minor 14 years of age
and a female.
ACTS CONTRARY TO LAW.3
This indictment was docketed as Criminal Case No.
FC-08-0361 of the Regional Trial Court (RTC) of
Legazpi City.
During his arraignment, the accused-appellant
refused to enter any plea, hence the Court entered a
plea of not guilty for him.
Since it accords with the records, we take the liberty
of quoting the statement of facts as thoroughly and
comprehensively narrated in the brief for the
accused-appellant, thus:
EVIDENCE FOR THE PROSECUTION:
In the morning of 01 December 2008, Amelita
Banzuela (Amelita for brevity) was rousing her
fourteen (14)-year old daughter Amean Banzuela
(Amean for brevity) to prepare for school. The latter
complained of [a] headache. It was then that Amean
told her that accused Loreto C. Dagsil raped her.
Amelita then proceeded to the police station to
report what happened to Amean.
The next day, 02 December 2008, at about 6:00
o'clock in the morning, while Amelita was ironing
their clothes, she noticed the accused lurking outside
their house and so she directed her son, Angelo, to
close the front door. At that time, Amean was still
asleep in her room.
Thereafter, Amelita was shocked when Amean came
to her, with blood all over her and said that the
accused just stabbed her. She (Amelita) suddenly
went hysterical and began shouting for help. Her
other daughter rushed to help Amean while Amelita
asked for help. It was then that she saw the accused
heading towards his house carrying a knife.
In court, Amelita testified that she incurred the
amount of about Twenty Thousand Pesos
(Php20,000.00) for funeral expenses but was only
able to present receipts worth Twelve Thousand Six
Hundred Fifty Pesos (Php12,650.00).
Meanwhile, on 02 December 2008, at around 5:00
o'clock in the morning, Angelo Banzuela (Angelo for
brevity) was watching television while waiting for his
sister to finish taking a bath when he heard his
mother asking him to close their front door since the
latter spotted the accused outside their house.
After closing the door, he (Angelo) went to check on
the boiling pot in the kitchen. It was at that time that
he saw his sister Amean, with blood all over her
body, telling their mother that she was stabbed by
the accused.
Fearing that the accused might come back, Angelo
locked the back door while his mother was shouting
for help. He then saw the accused getting out of
their house and into their yard. Thereafter, his other
sister Jeca brought Amean to the hospital for
treatment.
Dr. James Margallo Belgira conducted an autopsy of
Amean's body. In Medico Legal Report No. MLB-150-
08, Dr. Belgira declared that the cause of death is
hemorrhagic shock secondary to a stab wound of the
trunk. He, likewise, found clear signs of blunt vaginal
penetrating trauma on her genitals.
490 | P a g e
EVIDENCE FOR THE DEFENSE:
For his part, accused Loreto C. Dagsil interjected that
although he indeed stabbed Amean, he was,
however, confused and did not know what he was
doing at that time. In the early morning of 02
December 2008, the accused took a stroll in his yard
and then went to the store to buy cigarettes. On his
way back to his house, he passed by Amean's house
and he remembered her taunting him that he was
going to be killed and her threatening gestures at
him. He was suddenly overcome with confusion and
he was not conscious of what was going on.
Not really certain of what happened, the accused
then found himself seated inside his bedroom. When
he saw the policemen, confusion prevailed over him
and he started stabbing himself with the knife he
was holding. Thereafter, his bedroom door was
forced open and he was brought to the hospital.
Afterwards, he was brought to the precinct for
processing.4
In rejecting the accused-appellant's argument that
he should be declared criminally exempt of the
murder charge because he was in a state of
temporary insanity when he stabbed the now
deceased Amean, the RTC ruled:
Accused, while admitting the commission of the act
complained of, wants to impress upon this court that
he was somewhat not in his right senses at the time,
or to borrow his words, he was "confused" and "lost
[my] mind" (TSN, June 13, 2011, page 6). The Court
held- :
Insanity is the exception rather than the rule in the
human condition. While Art. 12(1) of the Revised
Penal Code provides that an imbecile or insane
person is exempt from criminal liability, unless that
person has acted during a lucid interval, the
presumption, under Art. 800 of the Civil Code, is that
every human is sane. Anyone who pleads the
exempting circumstance of insanity bears the burden
of proving it with clear and convincing evidence. It is
in the nature of confession and avoidance. An
accused invoking insanity admits to have committed
the crime but claims that he or she is not guilty
because of insanity. The testimony or proof of an
accused's insanity must, however, relate to the time
immediately preceding or coetaneous with the
commission of the offense with which he is charged.
xxx
There is a vast difference between a genuinely insane
person and one who has worked himself up into such
a frenzy of anger that he fails to use reason or good
judgment in what he does. We reiterate
jurisprudence which has established that only when
there is a complete deprivation of intelligence at the
time of the commission of the crime should the
exempting circumstance of insanity be considered.
It is apt to recall x x x where this Court ruled that the
professed inability of the accused to recall events
before and after the stabbing incident, as in the
instant case, does not necessarily indicate an
aberrant mind but is more indicative of a concocted
excuse to exculpate himself. It is simply too
convenient x x x to claim that he could not remember
anything rather than face the consequences of his
terrible deed.
The requirements for a finding of insanity have not
been met by the defense. x x x The presumption of
sanity has not been overcome (People of the
Philippines vs. Honoria Tibon y Dieso, G.R. No.
188320, June 29, 2010).'
Except for his self-serving testimony, no other
corroborative, much less medical and/or expert,
evidence was presented by the defense to prove the
professed mental aberration of the accused. 5
With regard to the civil aspect of the case, the RTC
held:
As to actual damages, the official receipts that the
prosecution presented showed expenses that
amounted to P 12,650.00 only (Exhibits F to F-3).
'However, we have held that when actual damages
proven by receipts amount to less than P25,000.00,
the award of temperate damages [amounting] to
P25,000.00 is justified, in lieu of actual damages for a
lesser amount. This is based on the sound reasoning
that it would be anomalous and unfair to the heirs of
the victim who tried but succeeded only in proving
actual damages of less than P25,000.00. They would
be in a worse situation than another who might have
presented no receipts at all, but is entitled to
P25,000.00 temperate damages (People of the
Philippines [v]s. Alvin Del Rosario, G.R. No. 189580,
February 9, 2011).'
Thus, considering that expenses in the amount of
P12,650.00 were proven by Amean's heirs, an award
of P25,000.00 as temperate damages in lieu of this
lesser amount of actual damages, is proper.6
The RTC thereafter disposed as follows:
ALL THE FOREGOING CONSIDERED, the guilt of the
accused having been proved beyond peradventure
of doubt, LORETO DAGSIL y CARITERO is hereby
found guilty of murder. Accordingly, he is hereby
sentenced to suffer the penalty of reclusion
perpetua without eligibility of parole, pursuant to
Section 3 of Republic Act No. 9346, and ordered to
indemnify the heirs of Amean Banzuela, the
following amounts:
491 | P a g e
(a) Php50,000.00 as civil indemnity;
(b) Php50,000.00 as moral damages;
(c) Php25,000.00 as temperate damages; and
(d) Php30,000.00 as exemplary damages.
SO ORDERED.7
The accused-appellant elevated the RTC's verdict to
the Court of Appeals (CA) whereat it was docketed
as CA-G.R. CR. HC. No. 05536; and in support of his
appeal, the accused-appellant insisted that the RTC
committed a reversible error in not pronouncing him
criminally exempt of the murder charge since he was
in the state of temporary insanity at the time he
committed the crime. But the CA rejected this
argument, and reasoned out viz.:
Thus, this Court is only faced with the issue raised by
accused-appellant that he should be exculpated
from the crime since he committed the same while
he was in a state of temporary insanity.
We are not convinced.
Article 12 of the RPC provides for one of the
circumstances which will exempt one from criminal
liability which is when the perpetrator of the act was
an imbecile or insane, unless the latter has acted
during a lucid interval. This circumstance, however,
is not easily available to an accused as a successful
defense. Insanity is the exception rather than the
rule in the human condition. Under Article 800 of the
Civil Code, the presumption is that every human is
sane. Anyone who pleads the exempting
circumstance of insanity bears the burden of proving
it with clear and convincing evidence. It is in the
nature of confession and avoidance. An accused
invoking insanity admits to have committed the
crime but claims that he or she is not guilty [thereof]
because of insanity. The testimony or proof of an
accused's insanity must, however, relate to the time
immediately preceding or simultaneous with the
commission of the offense with which he is charged.
In order for insanity to be an acceptable defense to
exempt an accused from criminal liability, the same
must have been proven with clear and convincing
evidence. In the instant case, as aptly observed by
the RTC, the accused-appellant failed to present any
corroborative medical evidence to support his claim.
What he presented were mere statements that he
was 'confused' when he committed the horrible act
which are, at best, self-serving and devoid of
credence. As such, the accused-appellant failed to
overthrow the presumption that he was sane during
the commission of the offense.8
The foregoing finding was evidently based upon the
following testimony-in-chief of the accused-
appellant taken during the hearing before the RTC
on June 13, 2011:
ATTY.
CIMANES
[defense
counsel]
Q You said x x x you were in your
residence [at Sto. Domingo].
xxxx
Q After you woke up, Mr. Witness,
what did you do?
A x x x I took a stroll [in] the yard.
 Q x x x [D]o you have any companion
in your residence?
A My wife.
xxxx
Q [A]fter [taking] a stroll in your yard,
what did you do next x x x?
A I went to a store to buy cigarettes.
Q Were you able to buy cigarettes?
A Yes, sir.
Q What did you do after [buying]
cigarettes?
A I went back home.
Q xxx
A x x x On my way home I happened
to pass by the house [of] this person
who filed a case against me. I saw
the victim and at that time I x x x
felt so confused. It seems that I lost
my mind. I stabbed that girl.
Q x x x [W]ho filed a case against you x
x x?
A Amelita Banzuela.
492 | P a g e
Q You said that you were able to stab
a person, how is this person related
to Amean Banzuela?
A A daughter of [Amelita].
Q x x x [W]hy [did] you x x x stab the
daughter of [Amelita]?
A Because she x x x told me that I will
be killed and even [placed] her hand
across her neck which I interpreted
as I will be killed.
Q x x x [W]ere you conscious x x x [of]
your actuation at the time you
[stabbed] the child of Mrs. Amelita
Banzuela?
A I [was] not conscious of what I did
then. I [was] confused. I [was]
seeing my face as so blurred.
Q You said that you [stabbed] the
daughter of Amelita Banzuela,
where did you get the knife?
A From my residence. From my house.
Q [When you bought cigarettes, did]
you already have that knife with
you?
A I cannot recall.
Q [After stabbing] the daughter of
Amelita Banzuela, [could] you recall
where you proceed[ed] at that
time?
A I went back to my residence and
took a seat inside our bedroom.
Q What did you do after you entered
your x x x bedroom?
A While waiting in my bedroom I
noticed the presence of policemen.
x x x I [was] confused of the
situation and I decided to also stab
myself using the same knife which [I
was holding].
Q After you stabbed yourself x x x
what happened next?
A I noticed that the door [to] my
bedroom was being forced open x x
x. The policeman came and x x x
they placed me in the porch.
Q What happened after the policeman
brought you to the porch, x x x?
A From the porch the policeman took
me to the municipal police station
of Sto. Domingo, Albay.
Q Were you treated [of] the injuries
you sustained considering that you
also stabbed yourself?
A I was also brought to the hospital.
 Q You mentioned that you were able
to stab the daughter of Amelita
Banzuela, her daughter Amean
Banzuela, who is the victim in this
case?
A Yes, sir.
Q [Did] you know x x x that this
Amean Banzuela died because of
the stabbing incident?
A I did not know earlier.9
Like the RTC, the CA adjudged that the crime
committed by the accused-appellant in this case
was, indeed, murder, qualified by treachery and by
evident premeditation. The CA declared thus:
Under Article 248 of the RPC, murder is committed
when the killing of a person by another is attended
by the qualifying circumstances [of] treachery,
evident premeditation and abuse of superior
strength.
In People v. Isla, the Supreme Court clarified that for
treachery to exist 'the offender commits any of the
crimes against persons, employing means, methods,
or forms in the execution, which tend directly and
specially to insure its execution, without risk to the
offender arising from the defense which the
offended party might make.' It is important in
ascertaining the existence of treache1y that it be
proven that the attack was made swiftly,
deliberately, unexpectedly, and without a warning,
thus affording the unsuspecting victim no chance to
resist or escape the attack. In the instant case,
Loreto killed Amean while the latter was sleeping
and had no chance to resist or escape the attack.
Clearly, there was treachery. Meanwhile, the
493 | P a g e
circumstance of abuse of superior strength is
deemed absorbed in treachery.
The essence of evident premeditation is that the
execution of the criminal act is preceded by cool
thought and reflection upon the resolution to carry
out the criminal intent within a space of time
sufficient to arrive at a calm judgment. In the case
before Us, the accused-appellant went home after
taking a stroll and after buying cigarettes, then he
took the k.'1ife from his residence and used same to
kill the victim. Thus, We are one with the RTC in its
findings that there was evident premeditation in the
commission of the crime.10
The CA, however, modified the civil indemnity
awarded by the RTC, as well as imposed interest on
the damages awarded, to wit:
Lastly, in light of the Supreme Court's ruling
in People v. Malicdem and People v. Laurio, the civil
indemnity awarded to the heirs of Amean is
increased from P50,000.00 to P75,000.00. The award
of civil indemnity in the instant case is, thus,
modified accordingly. Further, in accordance with
the current policy, We also impose on all the
monetary awards for damages an interest at the
legal rate of six (6%) percent from date of finality of
this Decision until fully paid.11
Ultimately, the CA decreed dispositively as follows:
WHEREFORE, in view of the foregoing, instant appeal
is hereby DENIED. The Decision dated February 24,
2012 of the Regional Trial Court (RTC) of Legazpi City,
Branch 8 in Criminal Case No. FC-08-0361, convicting
accused-appellant Loreto Dagsil y Caritero of the
crime of Murder is hereby AFFIRMED with
MODIFICATION.
The civil indemnity imposed in the RTC's Decision,
contained in its dispositive portion, is hereby
modified to read as follows:
ALL THE FOREGOING CONSIDERED, the guilt of the
accused having been proved beyond peradventure
of doubt, LORETO DAGSIL y CARITERO is hereby
found guilty of murder. Accordingly, he is hereby
sentenced to suffer the penalty of reclusion
perpetua without eligibility for parole, pursuant to
Section 3 of Republic Act No. 9346, and ordered to
indemnity the heirs of Amean Banzuda, the following
amounts:
(a) Php75,000.00 as civil indemnity;
(b) Php50,000.00 as moral damages;
(c) Php25,000.00 as temperate damages; and
(d) Php30,000.00 as exemplary damages.
In addition, interest shall be imposed on all the
monetary awards for damages assessed at the legal
rate of six (6%) percent from the date of finality of
this Decision until fully paid.
SO ORDERED.12
As already stated, given that the instant appeal
before this Court is anchored on the same ground as
the appeal before the CA, a premise that the CA
correctly spurned and rejected because it is utterly
devoid of merit, it stands to reason that the instant
appeal must now suffer the same fate that befell it
before the appellate court.
A simple reading of the aforequoted testimony of
the accused-appellant shows that he was hardly the
mentally deranged or insane (whether temporarily
or permanently) person that he claimed he was
when he stabbed Amean Banzuela (Amean) to
death. His answers to the questions propounded to
him by his counsel were intelligent, responsive, and
straightforward; they were not the answers of an
unintelligent person or nitwit that he says he is. In
fact, he knew where he lives - at Sto. Domingo; he
knew what he did when he woke up that morning
when the incident happened - he took a stroll in the
yard; he knew that he has a wife who is still alive; he
remembered that after taking a stroll in the yard, he
went to a store to buy cigarettes; he recalled that
after buying cigarettes, he went back home; he also
mentioned that on the way home, he happened to
pass by the house of Amelita Banzuela (Amelita) who
filed a rape case against him because he violated her
daughter Amean; he admitted that when he saw
Amean, he felt "confused" and stabbed the girl; he
acknowledged that Amean was a daughter of
Amelita; he stabbed Amean because she told him
that he would be killed, and even made the gesture
of placing her hand across her neck; he knew that
the knife he used in the stabbing of Amean came
from his residence; he also recalled what transpired
after the stabbing, i.e., he went back to his
residence, and while inside his bedroom, he stabbed
himself using the same knife which he used in
stabbing Amean; he also recalled that the policeman
forced open the door to his bedroom, which he
himself locked after entering; placed him in the
porch, and thereafter took him to the municipal
police station in Sto. Domingo, Albay. Against this
factual backdrop, which convincingly showed that he
is an intelligent, cognitive, rational and thinking
person at the time of the stabbing, the accused-
appellant's plea of insanity must be rejected because
it has no leg to stand on.
It must be stated, however, that in view of the
attendant circumstance of treachery which qualified
the killing to murder, as well as the presence of
evident premeditation, and the ordinary aggravating
circumstance of dwelling, the imposable penalty
would have been death if not for the proscription for
its imposition under Republic Act No. 9346. Thus,
494 | P a g e
both the RTC and the CA correctly imposed the
penalty of reclusion perpetua on accused-appellant.
However, there is a need to modify the damages
awarded. Pursuant to People v. Jugueta,13 the
awards for civil indemnity, moral damages, and
exemplary damages are increased to P100,000.00
each.14 The award of temperate damages, in lieu of
actual damages, is also increased to
P50,000.00.15 The interest of 6% per annum imposed
on all damages awarded is proper.
WHEREFORE, the instant appeal is
hereby DISMISSED. The June 19, 2014 Decision of
the Court of Appeals in CA-G.R. CR. HC. No. 05536,
finding accused-appellant Loreto Dagsil y Caritero
guilty beyond reasonable doubt of murder and
sentencing him to suffer the penalty of reclusion
perpetua is AFFIRMED with further
MODIFICATIONS that the awards for civil indemnity,
moral damages, and exemplary damages are
increased to P100,000.00 each while temperate
damages, in lieu of actual damages, is increased to
P50,000.00.
SO ORDERED.
SECOND DIVISION
[G.R. No. 45704. May 25, 1938.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
v. CLEMENTE MANGSANT Y ESMIÑA, Defendant-
Appellant.
Felix D. Agcaoili for Appellant.
Solicitor-General Tuason for Appellee.
SYLLABUS
1. CRIMINAL LAW; MURDER; AGGRAVATING
CIRCUMSTANCES OF DISREGARD OF SEX AND ABUSE
OF SUPERIORITY. — The aggravating circumstance of
disregard of sex cannot be considered because it has
neither been proved nor admitted by the defendant
that in committing the. crime he had intended to
offend or insult the sex of the victim. (Viada,
Commentaries on the Penal Code, volume I, page
329.) Neither may the aggravating circumstance of
abuse of superior strength be taken into account just
because of the fact that the defendant is a man and
the deceased a woman, inasmuch as the
circumstance is inherent in the crime committed
and, is moreover absorbed by the treachery which,
in this case, qualifies the crime as murder. (Viada, in
the same work, volume I, page 279.)
2. ID.; ID.; MITIGATING CIRCUMSTANCES OF LACK OF
INSTRUCTION AND OBFUSCATION. — Lack of
instruction cannot be taken into account where the
defendant admitted that he studied in the first grade
in a public elementary school. Lack of instruction
cannot apply to one who has studied in the first
grade in a public school, but only to him who really
has not received any instruction (art. 15, first
paragraph, Revised Penal Code). Much less may the
circumstance that the defendant had acted upon an
impulse so powerful as naturally to have produced
obfuscation be considered. in his favor because the
revelation by the deceased that she loved another
man, under the circumstances in which it was made,
was not sufficient to produce that mental blindness
which article 13, No. 6, of the Revised Penal Code,
recognize as mitigating.
DECISION
IMPERIAL, J.:

The defendant appealed from the judgment of the
Court of First Instance of Manila finding him guilty of
the crime of murder and sentencing him to reclusion
perpetua, to indemnify the heirs of the deceased in
the amount of one thousand pesos (P1,000), and to
pay the costs. The information against him alleged
that on April 7, 1937, in the City of Manila, with
evident premeditation, disregard of sex and taking
advantage of superior strength, and with the
deliberate intention to kill, the said accused did then
and there attack Demetria Ferrer, a girl 14 years of
age, stabbing her from behind with a knife and
inflicting upon her various wounds in different parts
of the body which produced her instantaneous
death.
Upon arraignment the defendant pleaded "not
guilty," but during the trial and before the
presentation of the evidence for the prosecution,
said plea was changed to that of "guilty." He was
then allowed to testify under oath to the
circumstances under which he committed the crime.
He testified in substance that the deceased and he,
were lovers, having agreed to marry in the following
May; that on the afternoon of April 7, 1937, the date
alleged in the information, he visited his fiancee, and
as in the course of the conversation, she revealed
that she loved another man, he became so
obfuscated that he wounded her with a knife until
she was lifeless.
In view of the foregoing explanation and the
allegations of the information, the court found that
in the commission of the crime the aggravating
circumstances of evident premeditation, disregard of
sex and abuse of superior strength (Nos. 13, 3 and
15, respectively, of article 14 of the Revised Penal
Code) were present as were also the mitigating
circumstances of lack of instruction, obfuscation and
495 | P a g e
plea of guilty (par. 1 of art. 15 and Nos. 6 and 7,
respectively, of Art. 13 of the Revised Penal Code) in
addition to the aggravating circumstance of
treachery which, in this case, qualifies the crime, and
offsetting one against the other, it imposed the
penalty prescribed in article 248 in its medium
period. The attorney de oficio for the defendant,
after analyzing the facts and the law, has
recommended that the judgment appealed from be
affirmed for being in accordance with law. The
Solicitor-General holds a view different from both
consisting in that the aggravating and mitigating
circumstances which were taken into account in the
decision of the lower court, with the exception of
the qualifying circumstance of treachery and the
mitigating circumstance of voluntary confession,
have not been proved; that inasmuch as the
defendant was allowed to explain the circumstances
of the crime, he impliedly denied the aggravating
circumstances, alleged in the information, which
cannot be taken into consideration unless they have
been proved; and that the mitigating circumstances
cannot be deduced from the explanations made by
the defendant nor from the allegations of the
information, which he admitted.
We agree with the Solicitor-General. There was no
premeditation according to the description or
account of the crime given in the information. The
aggravating circumstance of disregard of sex cannot
be considered because it was neither been proved
nor admitted by the defendant that in committing
the crime he had intended to offend or insult the sex
of the victim. Viada, in his commentaries on the
Penal Code, volume I, page 329, says: "Question III.
In the murder of a girl of 14 years, qualified as such
by treachery, is it proper to consider the aggravating
circumstance of disregard of respect due the
offended party on account of her age? The Supreme
Court has resolved the same in the negative, saying:
’Considering that the trial court did not err in not
considering against the accused the 20th aggravating
circumstance of article 10, because nothing appears
in the judgment from which it may be presumed that
in the commission of the crime, the accused
deliberately intended to offend or insult the sex or
age of the offended party, but only to execute his
evil purpose in a treacherous manner, taking
advantage of the weakness of her sex and the
tenderness of her age in order to perpetrate the
same without risk to his person, etc.’ (Decision of
June 25, 1878, published in the Gazette of August
25th.)" Neither may the aggravating circumstance of
abuse of superior strength be taken into account just
because of the fact that the defendant is a man and
the deceased a woman, inasmuch as this
circumstance is inherent in the crime committed and
is moreover absorbed by the treachery which, in this
case, qualifies the crime as murder. Viada, in the
same work, volume I, page 279, cites the following
cases: "Question I. Does the man who kills a woman
commit thereby the crime of homicide with the
aggravating circumstance of abuse of superior
strength? — The Audiencia de la Coruña so decided.
However, the Supreme Court, in its decision of April
28, 1873, published on July 12 in the Gazette, held
negatively, on the ground that the circumstance of
sex is inherent in the crime in such a way that
without it the crime could not have been committed,
and it does not, therefore, by itself, suffice to
constitute said aggravating circumstance. — The
same doctrine is laid down in the decision of June 7,
1873, published on September 28, in the Gazette.
Question IV. Qualifying the crime as murder because
of the presence of treachery, is it also proper to
consider the aggravating circumstance of abuse of
superior strength?. — The Supreme Court held the
negative in its decision of September 14, 1887,
published on the 28th of the same month in the
Gazette, on the ground that the circumstance of
abuse of superior strength is merged into that of
treachery and is inherent in the same. — The same
doctrine has been laid down in the last paragraph of
the decision of said Supreme Court of November 11,
1872, published on January 7, 1873 in the Gazette,
and in the penultimate paragraph of the decision of
August 21, 1873, published in the Gazette of
November 15."cralaw virtua1aw library
As to the mitigating circumstances, it is not proper to
consider lack of instruction in favor of the defendant,
inasmuch as he admitted that he had studied in the
first grade in a public elementary school. Lack of
instruction cannot apply to one who has studied in
the first grade in a public school, but only to him
who really has not received any instruction (art. 15,
first paragraph, Revised Penal Code). Much less may
the circumstance that the defendant had acted upon
an impulse so powerful as naturally to have
produced obfuscation be considered in his favor
because the revelation by the deceased that she
loved another man, under the circumstances in
which it was made, was not sufficient to produce
that mental blindness which article 13, No. 6, of the
Revised Penal Code, recognizes as mitigating.
The defendant and appellant is guilty of the crime of
murder defined in article 248 of the Revised Penal
Code and penalized by reclusion temporal in its
maximum period to death. Inasmuch as the
mitigating circumstance of voluntary confession is
present in its commission, without any aggravating
circumstance to offset it, the judgment appealed
from is hereby modified and said penalty imposed in
its minimum period. In accordance with the
provisions of the Indeterminate Sentence Law (Act
No. 4103), the defendant is sentenced to the penalty
of from ten years of prision mayor to seventeen
years, four months and one day of reclusion
temporal, to the accessories of the law, to indemnify
the heirs of the deceased in the amount of P1,000,
and to pay the costs of both instances. So ordered.
496 | P a g e
Villa-Real, Abad Santos, Diaz, Laurel and
Concepcion,, JJ., concur.
EN BANC
G.R. No. 171271 August 31, 2006
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
ELBERTO TUBONGBANUA y PAHILANGA, Appellant.
DECISION
YNARES-SANTIAGO, J.:
Appellant Elberto Tubongbanua was charged with
the crime of murder in an amended
Information 1 that reads:
That on or about the 12th of February, 2001, in the
Municipality of San Juan, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court,
the above named accused, with intent to kill and
with evident premeditation, treachery, taking
advantage of superior strength, did then and there
willfully, unlawfully and feloniously attack, assault
and stab Evelyn Kho y Sua on the different parts of
her body with the use of a deadly weapon, thereby
inflicting upon said Evelyn Kho y Sua stab wounds,
which directly caused her death; that the act was
committed inside the dwelling of Evelyn Kho y Sua
and with insult or in disregard of the respect due to
the offended party on account of his (sic) rank, age
or sex.
CONTRARY TO LAW.
When arraigned, appellant pleaded not guilty and
trial on the merits ensued.
The facts are as follows:
Accused was employed as a family driver by Atty.
Evelyn Sua-Kho since 1998. The latter worked as the
managing partner of the Lawyer’s Advocate Circle, a
law firm operated as a sole proprietorship, and
located at 2302 Atlanta Center, 31 Anapolis St.,
Greenhills, San Juan, M.M. Accused was initially paid
P6,000.00 a month as wages, aside from boarding,
food, overtime and extra pay, which he received
when he did extra driving and other work for Atty.
Sua-Kho’s family.
On February 12, 2001, at around 6:00 o’clock in the
evening, the accused drove Atty. Sua Kho to her
condominium unit at 1702 Platinum 2000, Anapolis
St., Greenhills, San Jun M.M. After handing his
employer’s bag to Marissa Hiso, the housemaid,
accused proceeded to the kitchen where he drank a
glass of water. Also in the condominium unit were
Atty. Sua-Kho’s three year old daughter Issa and her
nanny, Nelie Maglasang. After talking and playing
with her daughter for a few minutes, Atty. Sua-Kho
emerged from the bedroom to talk with the accused.
Shortly thereafter, Marrisa heard her employer
screaming, and she saw the accused stabbing her
with their kitchen knife. She tried to stop the
accused, shouting "Kuya Bert!", but the latter
continued to stab Atty. Sua-Kho. Meanwhile, Nelie
also heard her employer’s screams, and locked
herself with Issa in the master’s bathroom. When
she peeped-out from her hiding place, she saw
Marissa, whom she signaled to go downstairs for
help. The latter did so, and sought help from the
security guard. Nellie, meanwhile called Atty. Sua-
Kho’s father, Marcelino Sua, and husband, Daniel
Kho, on the bedroom phone.
When Marcelino Sua arrived, he saw Marissa and a
security guard in front of the condominium unit.
When they entered, they saw the bloodied and
unmoving body of Atty. Sua-Kho sprawled on the
floor. Marcelino then brought his daughter to the
Cardinal Santos Memorial Hospital, where doctors
tried to revive her, but failed. The accused,
meanwhile, fled, using the victim’s car. He was
arrested soon afterwards in Calapan, Mindoro, while
on his way to his home province.
Upon examination of the victim’s body, Dr. Edgardo
Rodriguez Vida found that she suffered eighteen (18)
stab wounds and three (3) incise wounds aside from
other minor injuries. The stab wounds on her chest
were considered fatal as they affected both lungs,
the main blood vessel of the heart and the heart
itself. There were four stab wounds on the heart,
one on the right lung and four on the left lung.
According to the doctor, the wounds could have
been caused by a sharp single-bladed object and that
the incise wounds found on the left forearm, right
wrist and left leg could have been inflicted while
Atty. Sua-Kho tried to parry the blows.
Marian Aquino, legal secretary of the Lawyer’s
Advocate Circle, where the victim worked, related
that prior to the killing of Atty. Sua-Kho, the accused
had confided to her about his grudges against the
victim, such as being given spoiled food, that his
meals were being measured, that he worked long
hours of the day and served many bosses. On
February 11, 2001, accused spent the day at her
boarding house where he told her he could no longer
take the way Atty. Sua-Kho treated him. Later he
said "nadedemonyo na ako" and that he would finish
Atty. Sua-Kho. He would hit her at the back, very
deep, and he would make sure that she would die.
Then he would go to the province, his territory,
where he could not be followed.
Atty. Joel Baguio, an associate at the Lawyer’s
Advocate Circle, also testified that before the killing,
the accused told him of his grudges against Atty.
497 | P a g e
Sua-Kho, like his being scolded for being late, and
being called a thief, a killer, and ex-convict and other
bad names. On February 12, 2001, the accused also
told him not to get too close, as he might get
involved in what was going to happen.
The accused, on the other hand, raised the defense
of self-defense. Atty. Sua-Kho, he testified, didn’t
want her husband to know that she had been taking
trips with a company guest, a certain Phillip
Robinson, to Puerto Azul and Daranak Falls in Tanay.
She warned the accused that something bad would
happen to him if her husband would learn about it.
In the evening of February 12, 2001, Atty. Sua-Kho
urged accused to go to her father’s house, because
her husband Daniel Kho would be arriving. As she
and the accused argued about Phillip Robinson, the
former got a knife and stabbed him with it, catching
him on the wrist. Accused managed to wrest control
of the knife, and with it, stabbed Atty. Sua-Kho three
or four times. After he stabbed her he was shocked
and left the place using the victim’s car. He fled to
Mindoro where he allegedly surrendered to the
police. 2
On March 26, 2002, the Regional Trial Court of Pasig
City, Branch 163, rendered judgment, the dispositive
portion of which reads:
WHEREFORE, accused, Elberto Tubongbanua y
Pahilanga, is found GUILTY beyond reasonable doubt
of the crime of murder under Article 248 of the
Revised Penal Code and is sentenced to suffer the
severe penalty of death by lethal injection with all
the accessory penalties provided by law and to pay
the costs.
On the civil liability of the accused, he is ordered to
pay the legal heirs of the victim actual, moral,
nominal, exemplary and temperate damages in the
respective sums of P298,202.25, P50,000.00,
P200,000.00, P200,000.00 and P50,000.00. He is also
ordered to pay the victim’s heirs P50,000.00 for the
loss of the victim’s life, all with interest thereon at
the legal rate of 6 percent per annum from this date
until fully paid.
SO ORDERED. 3
The case was elevated to this Court because the
penalty imposed was death. However, pursuant to
our ruling in People v. Mateo, 4 the case was
transferred and referred to the Court of Appeals. 5
On October 21, 2005, the Court of Appeals affirmed
with modifications the decision of the trial court. The
dispositive portion of the decision reads:
WHEREFORE, the Decision of the Regional Trial Court
of Pasig City is hereby AFFIRMED with
MODIFICATIONS, in that, the accused-appellant,
having been found guilty beyond reasonable doubt
of Murder, is hereby sentenced to Death. He is
ordered to indemnify the heirs of the victim the
following:
(1) P50,000.00 as civil indemnity;
(2) P50,000.00 as moral damages;
(3) P298,202.25 as actual damages; and
(4) P50,000.00 as exemplary damages
The awards of temperate and nominal damages are
hereby DELETED.
Since the imposition of the death penalty in this case
was affirmed, this Decision and the complete records
of this case are hereby ordered TRANSMITTED to the
Supreme Court on automatic review, immediately
upon the promulgation of this Decision.
SO ORDERED. 6
The Court of Appeals disregarded appellant’s claim
of self defense for lack of evidence and for being
incredible considering the number and location of
wounds sustained by the victim and his flight from
the crime scene. It also noted that treachery did not
attend the commission of the crime as there were no
particulars as to how the killing began or executed.
However, the appellate court found that evident
premeditation was adequately established which
qualified the killing to murder. Likewise, it
appreciated abuse of superior strength as an
aggravating circumstance.
As regards the aggravating circumstances of dwelling
and insult to the rank, sex and age of the victim, the
Court of Appeals noted that these circumstances
were included as amendments to the information
after the presentation by the prosecution of its
evidence. As such, the same should not be allowed
because it will prejudice the rights of the appellant.
In a Resolution dated March 7, 2006, we required
both parties to file supplemental briefs. The Office of
the Solicitor General manifested that it will no longer
be filing a supplemental brief. On the other hand,
appellant insisted on his theory of self defense and
prayed for his acquittal.
We agree with the findings of the trial court and the
Court of Appeals that appellant’s claim of self-
defense is self-serving hence should not be given
credence. In Cabuslay v. People, 7 we ruled that:
498 | P a g e
One who invokes self defense admits responsibility
for the killing. Accordingly, the burden of proof shifts
to the accused who must then prove the justifying
circumstance. He must show by clear and convincing
evidence that he indeed acted in self-defense, or in
defense of a relative or a stranger. With clear and
convincing evidence, all the following elements of
self defense must be established: (1) unlawful
aggression on the part of the victim; (2) reasonable
necessity of the means employed to prevent or repel
it; and (3) lack of sufficient provocation on the part
of the person claiming self defense.
Appellant’s version of the stabbing incident does not
inspire belief. His testimony that it was Atty. Sua-Kho
who attacked him is uncorroborated and
improbable. Appellant’s alleged use of reasonable
means to repel the aggression is also untenable
considering the nature and number of wounds
inflicted on the victim which demonstrate a
determined effort to kill the victim and not just
defend oneself. 8 We note that the victim suffered
18 stab wounds which were all directed to her chest,
heart and lungs. She also had incised wounds which
were inflicted while she was parrying the blows
coming from the appellant. In fact, appellant
testified that Atty. Sua-Kho was running away from
him but he still pursued her and inflicted the fatal
wounds:
Q: According to you, Atty. launched at you and you
covered and cut on your left hand and that was the
time you got the knife and what happened after
that?
A: What I remember is that she went inside.
Q: So, she run (sic) away from you, is that what you
are saying?
A: When I was hit and I was able to stab her, she ran
towards the room.
Q: So she was trying to avoid [you] after she stabbed
you the first time?
A: I do not know, what I know is that when I stabbed
her, she went inside the room.
Q: What part of the body did you hit her the first
time?
A: At the abdominal area, sir.
Q: After that initial wound, Atty. Kho run (sic)
towards the room, is that correct?
A: What I remember, she run (sic), sir. 9
Moreover, appellant’s act of fleeing from the crime
scene instead of reporting the incident to the police
authorities is contrary to his proclaimed innocence
but highly indicative of guilt and negate his claim of
self defense. 10
We agree with the Court of Appeals that the
qualifying circumstance of treachery was not
present. Treachery under paragraph 16 of Article 14
of the Revised Penal Code is defined as the
deliberate employment of means, methods, or forms
in the execution of a crime against persons which
tend directly and specially to insure its execution,
without risk to the offender arising from the defense
which the intended victim might raise. For treachery
to be present, two conditions must concur: (a) the
employment of means of execution which would
ensure the safety of the offender from defensive and
retaliatory acts of the victim, giving the victim no
opportunity to defend himself; and (b) the means,
method and manner of the execution were
deliberately and consciously adopted by the
offender. 11 Treachery cannot be presumed; it must
be proved by clear and convincing evidence or as
conclusively as the killing itself. 12
In the instant case, there is no proof on how the
attack was commenced. Where no particulars are
known as to the manner in which the aggression was
made or how the act which resulted in the death of
the victim began and developed, it can in no way be
established from mere suppositions that the killing
was perpetrated by treachery. 13
We find however that evident premeditation and
taking advantage of superior strength attended the
killing.
Like any other circumstance that qualifies a killing as
murder, evident premeditation must be established
by clear and positive evidence; 14 that is, by proof
beyond reasonable doubt. 15 The essence of
premeditation is that the execution of the act was
preceded by cool thought and reflections upon the
resolution to carry out the criminal intent during a
space of time sufficient to arrive at a calm judgment.
To be considered, the following elements must be
proven: (1) the time when the accused decided to
commit the crime; (2) an overt act manifestly
indicating that he has clung to his determination;
and (3) sufficient lapse of time between the decision
and the execution, to allow the accused to reflect
upon the consequences of his act. 16
Prosecution witnesses Marian Aquino and Atty. Joel
Baguio testified as to appellant’s state of mind and
predisposition to avenge the alleged maltreatment
by the victim. Both witnesses testified on appellant’s
ill-plans against his employer the day prior to the
crime. Absent evidence showing any reason or
motive for the witnesses to falsely testify against the
appellant, the logical conclusion is that no such
499 | P a g e
improper motive exists and their testimonies should
be accorded full faith and credit. Thus, the lower
courts correctly concluded that evident
premeditation attended the commission of the
crime.
Appellant likewise took advantage of his superior
strength to perpetuate the criminal act. He killed
Atty. Sua-Kho by overpowering her and driving the
murder weapon into her body several times, despite
her attempts to parry the blows. He could not have
executed the dastardly act without employing
physical superiority over the victim. In People v.
Espina, 17 we have ruled that an attack by a man with
a deadly weapon upon an unarmed and defenseless
woman constitutes the circumstance of abuse of
that superiority which his sex and the weapon used
in the act afforded him, and from which the woman
was unable to defend herself.
We find, however, that the Court of Appeals erred in
not allowing the amendments in the information
regarding the aggravating circumstances of dwelling
and insult or disregard of the respect due to rank,
age or sex. Section 14, Rule 110 of the Rules of
Court, 18 provides that an amendment after the plea
of the accused is permitted only as to matters of
form, provided leave of court is obtained and such
amendment is not prejudicial to the rights of the
accused. A substantial amendment is not permitted
after the accused had already been arraigned. 19
In Teehankee, Jr. v. Madayag, 20 we had the occasion
to distinguish between substantial and formal
amendments:
A substantial amendment consists of the recital of
facts constituting the offense charged and
determinative of the jurisdiction of the court. All
other matters are merely of form. Thus, the
following have been held to be merely formal
amendments, viz.: (1) new allegations which relate
only to the range of the penalty that the court might
impose in the event of conviction; (2) an amendment
which does not charge another offense different or
distinct from that charged in the original one; (3)
additional allegations which do not alter the
prosecution’s theory of the case so as to cause
surprise to the accused and affect the form of
defense he has or will assume; and (4) an
amendment which does not adversely affect any
substantial right of the accused, such as his right to
invoke prescription.
The test as to whether an amendment is only of
form and an accused is not prejudiced by such
amendment is whether or not a defense under the
information as it originally stood would be equally
available after the amendment is made, and whether
or not any evidence which the accused might have
would be equally applicable to the information in
one form as in the other; if the answer is in the
affirmative, the amendment is one of form and not
of substance. 21
Tested against these guidelines, the insertion of the
aggravating circumstances of dwelling and insult or
disregard of the respect due to rank, age, or sex of
the victim is clearly a formal, not a substantial,
amendment. These amendments do not have the
effect of charging another offense different or
distinct from the charge of murder as contained in
the original information. They relate only to the
range of the penalty that the court might impose in
the event of conviction. The amendment did not
adversely affect any substantial right of
appellant. 22 Besides, appellant never objected to the
presentation of evidence to prove the aggravating
circumstances of dwelling and insult or in disregard
of the respect due to the offended party on account
of rank, age or sex. 23 Without any objection by the
defense, the defect is deemed waived. 24
There is no dispute that Atty. Sua-Kho was killed in
her home. Appellant could have killed her elsewhere
but he decided to commit the crime at her home;
thus we appreciate the aggravating circumstance of
dwelling. However, it was not convincingly shown
that appellant deliberately intended to offend or
disregard the respect due to rank, age, or sex of Atty.
Sua-Kho. The motive for the murder was his grudge
against the victim and not because she was a lawyer
and his employer. Neither did appellant took into
consideration the age of Atty. Sua-Kho and the fact
that she is a woman when he killed her.
Article 248 of the Revised Penal Code, 25 as amended
by R.A. No. 7659, 26 prescribes the penalty
of reclusion perpetua to death for the crime of
murder. Considering the qualifying circumstance of
evident premeditation and the aggravating
circumstances of dwelling, and taking advantage of
superior strength without any mitigating
circumstance, the proper imposable penalty would
have been death. 27
However, in view of the enactment of Republic Act
No. 9346 or the Act Prohibiting the Imposition of
Death Penalty on June 24, 2006 28, the penalty that
should be meted is reclusion perpetua, thus:
SECTION 1. The imposition of the penalty of death is
hereby prohibited. Accordingly, Republic Act No.
Eight Thousand One Hundred Seventy-Seven (R.A.
No. 8177), otherwise known as the Act Designating
Death by Lethal Injection is hereby repealed.
Republic Act No. Seven Thousand Six Hundred Fifty-
Nine (R.A. No. 7659), otherwise known as the Death
Penalty Law and all other laws, executive orders and
decrees insofar as they impose the death penalty are
hereby repealed or amended accordingly.
SEC. 2. In lieu of the death penalty, the following
shall be imposed:
500 | P a g e
(a) the penalty of reclusion perpetua, when the law
violated makes use of the nomenclature of the
penalties of the Revised Penal Code; or
(b) the penalty of life imprisonment, when the law
violated does not make use of the nomenclature of
the penalties of the Revised Penal Code.
Pursuant to the same law, appellant shall not be
eligible for parole under Act No. 4103, otherwise
known as the Indeterminate Sentence Law.
Regarding damages, when death occurs due to a
crime, the following may be recovered: (1) civil
indemnity ex delicto for the death of the victim; (2)
actual or compensatory damages; (3) moral
damages; (4) exemplary damages; (5) attorney's fees
and expenses of litigation, and (6) interest, in proper
cases. 29
We affirm the monetary awards granted by the
Court of Appeals but modify the amount of actual
damages and exemplary damages.
The award for civil indemnity is mandatory and is
granted to the heirs of the victim without need of
proof other than the commission of the crime.
Hence, based on recent jurisprudence, the award of
civil indemnity ex delicto of P75,000.00 for the heirs
Atty. Sua-Kho is in order.
Actual or compensatory damages are those awarded
in order to compensate a party for an injury or loss
he suffered. They arise out of a sense of natural
justice and are aimed at repairing the wrong
done. 30 To be recoverable, actual and compensatory
damages must be duly proved with reasonable
degree of certainty. 31 In the present case, the award
of actual damages of P298,210.25 32 is correct,
considering that the said amount has been duly
proven.
The Court of Appeals correctly awarded moral
damages in the amount of P50,000.00 in view of the
violent death of the victim and the resultant grief of
her family.
Article 2230 of the Civil Code specifically states that
exemplary damages may be imposed when the
crime was committed with one or more aggravating
circumstances, as in this case. Moreover, as an
example and deterrent to future similar
transgressions, the Court finds that an award of
P25,000.00 for exemplary damages is proper.
WHEREFORE, the Decision of the Court of Appeals in
CA-G.R. CR HC No. 01366, is AFFIRMED with
MODIFICATION. Appellant Elberto Tubongbanua y
Pahilanga isfound GUILTY beyond reasonable doubt
of MURDER as defined in Article 248 of the Revised
Penal Code, as amended by Republic Act No. 7659,
qualified by evident premeditation and with the
attendant aggravating circumstances of taking
advantage of superior strength and dwelling, with no
mitigating circumstances. The proper imposable
penalty would have been death. However, pursuant
to Republic Act No. 9346, appellant is sentenced to
suffer the penalty of Reclusion Perpetua without
possibility of parole. The appellant is ORDERED to
pay the heirs of Atty. Evelyn Sua-Kho, the amounts of
P75,000.00 as civil indemnity; P298,210.25 as actual
damages; 50,000.00 as moral damages; and
P25,000.00 as exemplary damages; all with interest
at the legal rate of six percent (6%) per annum from
this date until fully paid.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 191197 June 22, 2015
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
RODRIGO LAPORE, Accused-Appellant.
RESOLUTION
PEREZ, J.:
For review is the conviction of accused-appellant
RODRIGO LAPORE (Lapore) of rape as defined in
Article 266-A and penalized under Article 266-B of
the Revised Penal Code, as amended, committed
against AAA.1 The Decision2 dated 20 March 2007,
rendered by the Regional Trial Court (RTC), Branch
50, Puerto Princesa City, in Criminal Case· No. 15286
was affirmed by the Decision3 dated 12 October
2009 of the Court of Appeals in CA-G.R. CR H.C. No.
02771.
The Information
That sometime in the month of October, (sic) 1998,
at Barangay Berong (sic) Municipality of Quezon,
Province of Palawan, Philippines and within the
jurisdiction of this Honorable Court, the said accused
with force, threat, violence and intimidation and
with lewd designed, (sic) did and (sic) then and there
willfully, unlawfully and feloniously have (sic) carnal
knowledge with one AAA, a girl of 13 years of age,
against her will and consent, to her damage and
prejudice.
501 | P a g e
Contrary to law.4
While a warrant of arrest was issued on 26 January
1999, Lapore remained at large until his arrest on 11
February 2000. During his arraignment, Lapore
pleaded not guilty to the crime. Trial on the merits
then ensued.
The Prosecution Evidence
The victim, AAA, is thirteen (13) years old and
illiterate. She lives with her parents in Baranga y
Berong, Municipality of Quezon, Palawan. On 1
October 1998, when AAA’s parents went to Puerto
Princesa City, Palawan, AAA was left at their house
with her older brother, two (2) younger siblings , and
accused-appellant Lapore who was staying at their
house as a guest. Lapore was a pastor in their
church.5
One evening, AAA’s older brother left the house to
go fishing while AAA was asleep. Lapore went inside
AAA’s room and removed AAA’s panty. Lapore then
removed his underwear and inserted his penis into
her vagina. AAA cried. When she tried to shout,
Lapore pointed a knife at her neck and threatened to
kill her.
With his penis still insider her vagina, Lapore made
push and pull movements and then left.6
On 20 October 1998, when AAA’s parents returned
home, AAA reported her ordeal to her parents.
When AAA’s parents confronted Lapore, Lapore
admitted to the rape and promised to marry AAA.
After the confrontation, Lapore left. Three (3)
months passed. Lapore failed to return. Thus, AAA
and her mother reported the incident to the
Barangay Chairman and to the police. AAA was
brought to Dr. Josieveline M. Abiog-Damalerio, the
Municipal Health Officer of Quezon, Palawan, for
medical examination. On 23 December 1998, AAA
filed the instant criminal complaint for the crime of
rape against Lapore.7
AAA’s mother, BBB, testified and presented AAA’s
Birth Certificate to prove that AAA was born on 16
December 1984. The authenticity of the certificate
was admitted by the defense.8
Dr. Alma Feliciano-Rivera testified and interpreted
the Medical Certificate issued by Dr. Josieveline M.
Abiog-Damalerio. The Medical Certificate revealed
that AAA was diagnosed with healed lacerations,
which may have been sustained a week prior to the
examination and that AAA’s physical virginity was
lost.9
The Evidence of the Defense
Lapore first knew AAA in April 1999 when he began
helping AAA’s family by doing apostolic work for
them for six (6) months. In the evening of one
Sunday, while the mother, BBB, was having a drink
with the locals, AAA approached Lapore. They talked
for several hours. After the conversation, AAA
offered herself to Lapore in marriage but he advised
AAA to instead pray. Since then, AAA offered herself
to Lapore for marriage for two (2) more occasions.
On the first two attempts, Lapore pitied AAA.
However, on her third attempt, Lapore finally
accepted AAA’s proposal but told her that they had
to wait until AAA gives birth as she was four (4)
months pregnant then.10
Lapore spoke to AAA’s parents regarding their plan
to marry, but the marriage did not pursue because
AAA filed a criminal case accusing Lapore of rape.
According to Lapore, the criminal complaint was a
personal vendetta because he reprimanded AAA’s
mother, BBB, for having vices, such as drinking and
selling alcohol. Because of their anger, they told
Lapore to leave and never to return. Also, Lapore
insinuated that it was AAA’s boyfriend, in the person
of a certain Julio Flores, who impregnated AAA.
Lapore averred that AAA was already pregnant when
he saw her, and because he pitied her, he agreed to
marry her only after she has given birth.11
Ruling of the RTC
After trial, the RTC found La pore guilty beyond
reasonable doubt of the crime of rape. The pertinent
portion of the dispositive of the RTC Decision reads:
WHEREFORE, premises considered, judgment is
hereby rendered finding accused RODRIGO LAPORE
@ "DIGING" GUILTY beyond reasonable doubt of the
crime of Rape, as defined and penalized under
Article 266-A and 266-B of the Revised Penal Code as
amended by R.A. 8353. In view of the presence of
the special aggravating circumstance of the use of a
deadly weapon and the generic aggravating
circumstance of the abuse of confidence or obvious
ungratefulness, the accused is hereby sentenced to
suffer the penalty of RECLUSION PERPETUA and to
pay the costs. He is likewise ordered to pay the
victim AAA the amount of FIFTY THOUSAND
(₱50,000.00) PESOS as civil indemnity and FIFTY
THOUSAND (₱50,000.00) PESOS as moral damages.12
As defense, Lapore alleged that the prosecution
failed to establish his identity as the perpetrator of
the crime. According to Lapore, AAA was
inconsistent in identifying the accused:
Q: You did not see his face?
A: No, Sir.
502 | P a g e
Q: When he started to rape you, how did you notice
that it was Lapore?
A: Because I lighted a lamp.
Q: While you were being raped?
A: There is a light coming from his room.
Q: But the room of Lapore is separated by a wall
from your room, is it not?
A: Our rooms are beside each other.
Q: So it means that you did not light a lamp?
A: I did not, Sir.13 (Emphases supplied)
Ruling of the Court of Appeals
Contrary to the defense’s allegation, the Court of
Appeals resolved that AAA positively identified
Lapore as the man who perpetrated the crime
because AAA’ s account of the incident was clearly
expressed in a straightforward manner. The
inconsistency in AAA’s testimony is minor and
inconsequential in nature. As resolved by the Court
of Appeals, "[w]hat is controlling is that AAA
remained intractable and consistent in identifying
the accused as the person who raped her."
Furthermore, AAA’s testimony is corroborated by a
medical examination which revealed that AA A had
healed lacerations and that her physical virginity was
lost. The Court of Appeals ratiocinated that
"hymenal laceration is a telling, irrefutable and best
physical evidence of forcible defloration."14 Further,
the medical certificate belied Lapore’s allegation that
AAA was five (5) months pregnant with AAA’s
boyfriend.15
With regard to the imposable penalty, the Court of
Appeals modified the penalty imposed by the RTC.
The Court of Appeals ruled that the
aggravating/qualifying circumstances of abuse of
confidence and obvious ungratefulness, minority,
and use of a deadly weapon cannot be appreciated
to qualify the crime from simple rape to qualified
rape. According to the Court of Appeals, "to justify
the
imposition of death penalty, the two qualifying
circumstances of minority and relationship must
concur as provided in Article 266-B of the Revised
Penal Code and must be alleged in the information
and duly proven during the trial by the quantum of
proof required for conviction".16 Thus, there being
no modifying circumstances to be appreciated, the
Court of Appeals ruled that the crime committed is
only simple rape, punishable by reclusion perpetua .
The dispositive portion of the Decision of the Court
of Appeals, to wit:
WHEREFORE, the RTC Decision is AFFIRMED with the
MODIFICATION that accused is further ordered to
pay ₱25,000.00 as exemplary damages.
SO ORDERED.17
Our Ruling
We affirm the ruling of the Court of Appeals.
The inconsistencies in AAA’s testimony are minor.
These inconsistencies add to the veracity of her
already truthful account of her ordeal in the hands of
Lapore. Besides, Lapore’s conviction is not based
solely on AAA’s positive identification of Lapore as
the perpetrator of the crime. Her testimony was
corroborated by the medical examination and
testimony of witnesses, Dr. Feliciano Rivera, the
medico-legal expert, who interpreted the medical
certificate, and BBB, AAA’s mother, who testified
that AAA was mentally retarded and narrated the
incident that occurred when they went home from
Puerto Princesa City to Quezon, Palawan. The
prosecution has gone beyond the principle, where,
the sole testimony of a witness, if found credible,
would suffice to sustain a conviction.18
With regard to the presence of abuse of confidence
and obvious ungratefulness, minority, and use of a
deadly weapon, we affirm the ruling of the Court of
Appeals.1âwphi1 Although the prosecution has duly
proved the presence of abuse of confidence and
obvious ungratefulness, minority, and use of a
deadly weapon, they may not be appreciated to
qualify the crime from simple rape to qualified rape.
Sections 8 and 9 of Rule 110 of the Rules on Criminal
Procedure provide that for qualifying and
aggravating circumstances to be appreciated, it must
be alleged in the complaint or information.19 This is
in line with the constitutional right of an accused to
be informed of the nature and cause of the
accusation against him.20 Even if the prosecution has
duly proven the presence of the circumstances, the
Court cannot appreciate the same if they were not
alleged in the Information. Hence, although the
prosecution has duly established the presence of the
aforesaid circum stances, which, however, were not
alleged in the Information, this Court cannot
appreciate the same. Notably, these circumstances
are not among those which qualify a crime from
simple rape to qualified rape as defined under Article
266-B of the Revised Penal Code, as amended. Thus
even if duly alleged and proven, the crime would still
be simple rape.
Therefore, as all the elements necessary to sustain a
conviction for simple rape are present: (1) that
Lapore had carnal knowledge of AAA; and (2) that
said act was accomplished through the use of force
503 | P a g e
or intimidation,21 we find Lapore guilty beyond
reasonable doubt of the crime of simple rape.
WHEREFORE, the Decision of the Court of Appeals
dated 12 October 2009 in CA-G.R. CR H.C. No. 02771,
entitled "People of the Philippines v. Rodrigo Lapore
alias ‘Diging’" finding accused-appellant Rodrigo
Lapore GUILTY beyond reasonable doubt of the
crime of Rape as defined and penalized under Article
266-A of the Revised Penal Code, as amended by
Republic Act No. 7659, is hereby AFFIRMED with
MODIFICATIONS as to the civil damages:
1. Fifty Thousand Pesos (₱50,000.00) as civil
indemnity;
2. Fifty Thousand Pesos (₱50,000.00) as
moral damages; and
3. Thirty Thousand Pesos (₱30,000.00) as
exemplary damages.
Interest at the rate of six percent ( 6%) per annum is
likewise imposed on all the damages awarded in this
case from date of finality of this judgment until fully
paid.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
WE CONCUR:
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-51797 May 16, 1983
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
JOSE VERDAD alias ALFREDO VERDAD, defendant-
appellant.
The Solicitor General for plaintiff-appellee.
Liberato Bruto for defendant-appellant.
MELENCIO-HERRERA, J.:
Mandatory review of the death penalty imposed by
the Court of First Instance of Nueva Ecija, Branch II,
on the accused Jose Verdad alias Alfredo Verdad, for
the crime of Robbery with Homicide.
The Amended Information charged the accused as
follows:
That on or about the 7th day of
July, 1979, in Cabanatuan City,
Philippines, and within the
jurisdiction of this Honorable
Court, the above- named accused,
armed with a bolo, with intent of
gain and by means of violence and
intimidation of person, did then
and there, wilfully, unlawfully and
feloniously, take, steal and carry
away from the residence of Tomas
Ramos the following, to wit:
1. Stereo Casette - P1,000.00
2. Cash money amounting to
P30.00
 3. Assorted jewelries valued at
P6,000.00
belonging to Maria Rowena Ramos
and Tomas Ramos and, as a further
result thereof said accused by
reason of or on the occasion of
said rsobbery, with intent to kill,
assaulted and used violence upon
the person of the same Maria
Rowena Ramos, that is by hacking
her thru the use of a bolo, inflicting
upon the latter serious physical
injuries particularly on the head
which directly caused the latter's
death.
The crime was committed with the
attendance of the aggravating
circumstances of abuse of
confidence or obvious
ungratefulness, evident
premeditation, taking advantage of
and with use of superior strength
and with the use of a motor vehicle
and nighttime.
CONTRARY TO LAW.
The accused pleaded guilty upon arraignment
notwithstanding clarification by the Court of the
gravity of the crime and the effects of conviction.
Mindful of the doctrines of this Tribunal, however,
warning against the entry of improvident pleas of
guilty, the Trial Court resolved to take additional
evidence as to the guilt of the accused and
practically conducted a full-dress trial. Before and
after trial, the lower Court gave the accused the
chance to withdraw his plea of guilty but the accused
remained adamant. 1
504 | P a g e
We adopt the counterstatement of facts contained
in the People's Brief, which we find sufficiently
substantiated by the evidence on record.
Appellant Jose Verdad was
employed as houseboy in the
residence of Tomas Ramos in
Cabanatuan City since February 26,
1979. Because appellant enjoyed
the trust and confidence of Tomas
Ramos and his family, appellant
was allowed to sleep in the sala
and to stay alone in the house
when the whole family was away.
He was also entrusted with the
keys to the house.
At 2:00 p.m. of July 6, 1979, Tomas
Ramos and his wife, Zenaida,
motored to Manila, leaving behind
their three children, Raymond,
Lourdes and Rowena, with
appellant. (Rowena was a 14-year
old girl, the eldest of the threee).
The couple returned to
Cabanatuan at about 12:30 a.m. of
July 7, and found their children
already asleep. Half an hour later,
the couple retired to their
bedroom.
At about 2:00 a.m., appellant
sensing that the couple were
already sound asleep, picked up an
18-inch bolo in the kitchen and
knocked on the door of Rowena's
room. Rowena woke up and asked
for the caller's Identity. After
appellant had Identified himself,
Rowena opened the door and
asked what it was that appellant
wanted. Appellant told her that
she was being called by her
mother. Not believing him,
Rowena started to close the door.
However, appellant pushed his way
in and started attacking Rowena.
Rowena sustained three wounds
on the head and one on the
forearm. Appellant then entered
the master's bedroom which was
unlocked, took P30.00, a college
ring, and a portable stereo casette.
Appellant returned to Rowena's
bedroom and took her watch and
necklace. Appellant then unlocked
the door of the garage, opened the
gate, and Pushed out the car.
Afterwards, he drove off, but
rammed the car aganst a concrete
flower pot near the national
highway. Appellant abandoned the
car and boarded a bus bound for
Manila.
At around 6:30 a.m. of that day,
Tomas Ramos found Rowena dying
and the loss of his stereo casette
and jewelry. He took his daughter
to the hospital and reported the
incident to the police. Rowena died
on July 15, 1979, but before her
death, she was able to tell her
mother how she was attacked by
appellant.
Appellant was apprehended in
Pasay City on August 7, 1979 and
was immediately taken to
Cabanatuan for investigation.
There he readily confessed to his
guilt in an affidavit (Exh. T). He was
 later charged of robbery with upon the accused Jose Verdad alias A. I held her
homicide to which he pleaded Alfredo Verdad, as it hereby mouth, I covered
guilty (tsn., pp. 6-46, Aug. 27, impoes upon said accused. the her mouth.
1979). 2 supreme penalty of DEATH, and to
sentence him to indemnify the Q. With your
In his extrajudicial confession (Exhibit "T"), the heirs of the deceased Rowena hand?
accused, 21 years of age, single, also declared that Ramos in the sum of P12,000.00,
he had intended to abuse Rowena. without subsidiary imprisonment A. Yes, sir.
in case of insolvency, but with the
In its judgment, the lower Court found the accused accessories of the law, and to pay
Q. Why? "
gulty beyond reasonable doubt, held the aggravating the costs. 3
circumstances of abuse of confidence and abuse of A. So that she
superior strength proven, and imposed the capital Before us, de-officio counsel's only submission is that
could not shout.
penalty, thus: the accused cannot be convicted under the present
Information, which charges him with Robbery with
Q. When you
WHEREFORE, by his plea of guilty, Homicide, but that he should be charged instead
were already
the Court finds the accused Jose under another Information for Attempted Rape with
covering the
Verdad alias Alfredo Verdad guilty Homicide.
mouth of
beyond reasonable doubt of the Rowena, what
crane of robbery with homicide, There is an attempt to commit a felony when the
happened next?
defined and punished under Article offender commences the commission of a felony
294, paragraph 1, in relation to directly by overt acts, and does not perform all the
A. She was able
Article 63, paragraph 4, of the acts of execution which should produce the felony
to free herself
Revised Penal Code, with the by reason of some cause or accident other than his
from my hold.
mitigating circumstance of own spontaneous desistance. 4
voluntary plea of guilty and two
Q. What did you
aggravating circumstances of Applying the criterion to the case at bar, it is a fact
do when Rowena
abuse of confidence or obvious that in his extra-judicial confession, the accused
was able to free
ungratefulness and abuse of admitted that he had intended to abuse the victim.
herself?
superior strength. One of two In open Court, he had also declared that he entered
aggravating circumstances being Rowena's room to frighten her and take advantage
offset by the mitigating of her.5 As the crime unfolded, however, the accused A. When she was
circumstances of voluntary plea of did not perform any direct overt act commencing the able to free
guilty, one more aggravating execution of the crime of rape. We quote the herself, I
circumstance remains, which accused's testimony: happened "to
should be appreciated in hack her." 6
determining the appropriate Q. When you
penalty upon the accused. were already The foregoing actuations of the accused do not
inside (the disclose the criminal objective originally intended. If
Accordingly, it now becomes the room), what did it were the accused's intent to rape Rowena, there
painful task of the Court to impose you do? was no overt act showing it like kissing or embracing

505 | P a g e
her or throwing himself upon her. There was no Ramos if she did lack of the necessary votes to impose this extreme
external act whatsoever in furtherance of his design. reply? penalty, the sentence is commuted to reclusion
In fact, even Rowena's private nurse in the hospital, perpetua.
Jose Dalusong, Jr., reiterated what he had stated in A She answered
his affidavit (Exhibit "S", Folder of Exhibits), and in the negative WHEREFORE, with the modification as to the
testified: side. (T.s.n., penalty, which is hereby reduced to reclusion
September 3, perpetua the judgment under automatic review is
Q. What else did 1979, p. 5). hereby affirmed in all other respects.
Rowena Ramos
tell her mother? We find then that the Trial Court had properly Costs against the accused Jose Verdad alias Alfredo
characterized the offense as Robbery with Homicide. Verdad.
A She also That the accused's intent was tempered with a
related when she design to abuse the victim did not affect the SO ORDERED.
opened the door, propriety of the charge of that indivisible felony. The
the houseboy fact that the accused took cash and valuables Teehankee, Actg. C.J., Makasiar, Aquino, Concepcion
Jose rushed into valuables immediately after he had killed the victim Jr., Guerrero, De Castro, Plana, Escolin Vasquez,
her bedroom and clearly proves robbery. It is well settled that when Relova and Gutierrez, Jr., JJ., concur.
hacked her head there is a direct relation, an intimate connection
and body with a between the robbery and the killing —whether the
Fernando, C.J., is on leave.
bolo. latter be prior or subsequent to the former. or
whether both crimes be committed at the same time
Abad Santos, J., I vote for affirmance of the judgment
A Were those the — it is unquestionable that they constitute the
special complex crime of Robbery with Homicide. 7 of the trial court.
only narration
made by Rowena
Ramos to her The aggravating circumstance of abuse of confidence THIRD DIVISION
mother? or obvious ungratefulness, 8 and abuse of superior
strength 9 were properly appreciated by the Trial G.R. No. 217974, March 05, 2018
Q. How about the Court. The accused was treated like a member of the
mother, did not family and was completely trusted. That confidence PEOPLE OF THE PHILIPPINES, Plaintiff-
the mother ask facilitated the commission of the offense. The Appellee, v. RESURRECION JUANILLO MANZANO, JR.
any question to circumstance of abuse of superior strength is AND REZOR JUANILLO MANZANO, ACCUSED, REZOR
Rowena Ramos? likewise present. The accused had abused that JUANILLO MANZANO, Accused-Appellant.
superiority which his sex and the weapon he had
A. Mrs. Ramos employed afforded him and from which the 14-year- DECISION
also asked old Rowena was unable to defend herself. 10
Rowena Ramos if MARTIRES, J.:
she was kissed. With the plea of guilty offsetting only one of the
aggravating circumstances, there still remains This resolves the appeal of accused-appellant Rezor
Q What was the another aggravating circumstance that calls for the Juanillo Manzano (accused-appellant) from the 29
reply of Rowena imposition of the penalty in its maximum period, or October 2014 Decision1 of the Court of Appeals (CA),
death, 11 as found by the Trial Court. However, for
506 | P a g e
Twentieth Division in CA-G.R. CR-HC No. 01473
affirming in toto the 17 April 2012 Decision2 of the
Regional Trial Court (RTC), Branch 12, San Jose,
Antique, finding him guilty beyond reasonable doubt
of Murder under Article (Art.) 248 of the Revised
Penal Code (RPC).
THE FACTS
The accused-appellant and his elder brother
Resurrecion Manzano (Resurrecion) were charged
with murder before the RTC of San Jose, Antique, in
an Information3 docketed as Crim. Case No. 10-07-
8009, the accusatory portion of which reads:
That on or about the 19th day of March 2010, in the
Municipality of Hamtic, Province of Antique,
Republic of the Philippines and within the
jurisdiction of this Honorable Court, the above-
named accused, being then armed with knives,
conspiring, confederating, and mutually helping one
another, with intent to kill, did then and there,
willfully, unlawfully, and feloniously attack, assault,
and stab with said knives one Lucio Silava, thereby
inflicting upon the latter wounds on his body which
caused his instantaneous death.
With qualifying circumstance of treachery and abuse
of superior strength.
Contrary to the provisions of Article 248 of the
Revised Penal Code, as amended.
The parties agreed to have an inverted trial after the
accused-appellant who, pleading not guilty during
the arraignment, raised the justifying circumstance
of self-defense. Resurrecion remained at large.
To prove his claim of self-defense, the accused-
appellant himself testified. SPO2 Roberto Javier
507 | P a g e
(SPO2 Javier) of the Hamtic police office took the
witness stand to prove that the accused-appellant
voluntarily surrendered.
The prosecution tried to prove its case against the
accused-appellant by calling to the witness stand Dr.
Ma. Eva D. Pacificador (Dr. Pacificador), Victoria N.
Silava (Victoria), Atty. Rean S. Sy (Atty. Sy), and Luisa
P. Monteclaro (Luisa).
Version of the Defense
At about 9:30 p.m. on 19 March 2010, while the
accused-appellant was home sitting by the window,
he saw Lucio Silava (Lucio) throwing stones at his
house. The electric lamppost was lighted, thus, the
accused-appellant, who was then eighteen years old,
was sure that it was Lucio.4
The accused-appellant immediately went out to
inquire from Lucio why he was throwing stones at his
house but Lucio threw a stone at him that hit his
right knee and caused him to fall down. Lucio rushed
towards the accused-appellant to stab him with a
knife but was unsuccessful as they grappled for its
possession. It was at that instance that the accused-
appellant called out to Resurrecion, who was home
that time, to run away so that he would not be
involved. Because Lucio was very drunk, the
accused-appellant was able to take hold of the knife,
but blacked out and started stabbing Lucio.
Thereafter, the accused-appellant ran away and
proceeded to the house of Reno Manzano (Reno), an
elder brother, at Barangay San Angel, San Jose,
Antique, where he also met Resurrecion. The
following day, the accused-appellant surrendered to
the police authorities.5
The accused-appellant had known Lucio for eight
years already since the latter's house was in front of
his house and were separated only by the road.
Accused-appellant was as tall as Lucio but the latter
had a bigger body build. Resurrecion had a
dislocated right shoulder and a smaller build than
that of Lucio and the accused-appellant.6
Version of the Prosecution
At about 9:00 p.m. on 19 March 2010, the spouses
Lucio and Victoria were inside their store fronting
the accused-appellant's house. Lucio was having his
dinner at the kitchen inside the store while Victoria
was watching the store when the accused-appellant
and Resurrecion called out from the gate saying that
they would buy cigarettes. Because the gate leading
to the store was already closed, Lucio told the
accused-appellant and Resurrecion to come in.7
Resurrecion stood outside the store and told Victoria
that he wanted to buy Fortune white cigarettes and
handed her P20.00. The accused-appellant entered
the store and proceeded to where Lucio was having
dinner. After realizing that she had no more stock of
the Fortune white cigarette, Victoria told
Resurrecion who, in reply, said that he would no
longer buy cigarettes and then proceeded towards
the kitchen. Thereafter, Victoria heard Lucio ask,
"What wrong have I committed?" Victoria rushed to
the kitchen and there saw Lucio bloodied and
leaning on the door, while the accused-appellant and
Resurrecion were stabbing him.8
Victoria went out of the store shouting for help and
saying that the accused-appellant and Resurrecion
were stabbing Lucio. When Victoria went back
inside, she saw Lucio run outside the store but still
within the fenced premises, and the accused-
appellant and Resurrecion were going after him.
From where she stood, Victoria saw Resurrecion
hold Lucio's hands while the accused-appellant, who
was positioned behind Lucio, held Lucio's body with
one arm while with his other hand stabbed Lucio's
back. When Resurrecion released his grip on Lucio,
the latter fell face down but the accused-appellant
and Resurrecion continued to stab him causing
Victoria to utter, "I will let you eat the whole body of
my husband alive." The accused-appellant and
Resurrecion thereafter ran towards the direction of
the farm.9
Lucio was brought to the hospital but Victoria had to
stay behind to find money for his medical expenses.
On her way to the hospital, Victoria was informed
that Lucio had died. Luisa, a cousin of Lucio, took
pictures of the dead body. Victoria had the
pictures10 developed and secured Lucio's death
certificate.11 Victoria incurred a total of
P15,000.0012 for the funeral expenses.13
On 23 March 2010, Dr. Pacificador conducted a
postmortem examination on the body of Lucio, the
results of which follow:
Left Anterior Thorax
Stab Wound # 1 - Horizontal in direction about 3 cm
in length located at the left anterior chest below the
left clavicle penetrating the upper lobe of the left
lung and aorta.
Stab Wound # 2 - Vertical in direction about 3 cm in
length located below wound #1 resulting into
fracture of 3rd rib.
Right Anterior Thorax
Stab Wound # 3 - Vertical in direction about 2 cm in
length on the left shoulder, non-penetrating.
Stab Wound # 4 - Vertical in direction about 4.5 cm
in length located below right clavicle penetrating the
upper lobe of the right lung.
508 | P a g e
Stab Wound # 5 - Vertical in direction about 4 cm in
length below the sternum penetrating the liver.
Stab Wound # 6 - Vertical in direction about 4.5 cm
in length about 3 cm below wound # 5 penetrating
the liver.
Stab Wound # 7 - Vertical in direction about 1.5 cm
in length below wound # 6 non-penetrating.
Extremities
Stab Wound # 8 - Vertical in direction about 3.5 cm
in length located on the left upper arm going
through the axilla.
Stab Wound # 9- Horizontal in direction about 2.5 cm
in length on the left lower arm below the left
antecubital fossa, non-penetrating.
Stab Wound# 10- Horizontal in direction about 3 cm
in length just below wound # 9 left lower arm.
Stab Wound# 11 -Horizontal in direction about 2 cm
in length located below left wrist, non-penetrating.
Posterior Thorax
Stab Wound # 12- Vertical in direction about 2.5 cm
in length just below the neck in between scapula,
non-penetrating.
Stab Wound# 13- Vertical in direction about 5 cm in
length just below wound # 12, non-penetrating.
Stab Wound # 14 - Vertical in direction about 2 cm in
length below wound # 13, non-penetrating.
Stab Wound # 15- Horizontal in direction about 1.5
cm in length on the right lumbar area, non-
penetrating.
Cause of death:
Hypovolemic Shock secondary to Hemorrhage
secondary to Multiple Stab Wounds.14
It was a week after the stabbing incident that Atty.
Sy took pictures15 of the place where Lucio was
attacked. He saw splatters of dried blood inside the
store and within the fenced perimeter enclosing the
crime scene.16
The Ruling of the RTC
According to the RTC, a careful and deeper
examination of the facts and circumstances tend to
contradict the accused-appellant's version of the
incident and his claim that he acted in self-defense.
In so ruling, the RTC considered the following: that if
there was no intention on the part of the accused-
appellant and Resurrecion to kill Lucio, they could
have easily overpowered him because he was very
drunk at that time; it was not convinced that Lucio
hit the accused-appellant on his right knee causing
him to fall since the latter failed to present a medical
certificate notwithstanding his contention that he
was brought by a police officer to a doctor for his
knee injury; it was not satisfied with the accused-
appellant's version that after he fell down, Lucio held
his neck and stabbed him because not once was the
accused-appellant hit; the number of stab wounds
sustained by Lucio negates self-defense; the serious
injuries sustained by Lucio demonstrate the accused-
appellant's intent to kill; the splattered blood inside
the store and on the bamboo slats serving as wall of
the kitchen are proofs that the incident started at
the kitchen of Lucio's store and continued outside
but still within the fenced perimeter; that when the
accused-appellant blacked out, he was still able to
shout at Resurrecion to run away so as not to be
involved in the incident; the portrayal on how the
accused-appellant singlehandedly stabbed Lucio was
not worthy of credence; the claim of the accused-
appellant that he hit Lucio frontally was denied by
the postmortem examination results; the only
plausible explanation for Lucio's back injuries was
that these were inflicted by either the accused-
appellant or Resurrecion or by both of them; and the
accused-appellant had not assailed or contradicted,
by testimonial or documentary evidence, the
truthfulness and trustworthiness of Victoria's
testimony.17
On the one hand, the RTC found that the accused-
appellant and Resurrecion conspired as shown by
their concerted action of surprising Lucio in the
kitchen and, without justifiable reason, helping each
other assault their victim. Moreover, the RTC ruled
that the commission of the felony was attended by
the aggravating circumstance of nocturnity which
facilitated the assailants' escape. According to the
RTC, it was unfortunate that this circumstance was
not properly appreciated as this was not alleged in
the information.18
The RTC, however, was not convinced that the
accused-appellant voluntarily surrendered
considering the following reasons: he fled from the
locus criminis and proceeded to Reno's house in San
Jose instead of going to the Hamtic police station; he
did not surrender to the San Jose police; and it was
Reno who informed the Hamtic police station of the
accused-appellant's presence in San Jose, thus, the
policemen proceeded to Reno's house and took
custody of the accused-appellant.
The dispositive portion of the RTC decision reads:
509 | P a g e
PREMISES CONSIDERED, judgment is hereby WHEREFORE, the appeal is hereby DENIED. The
rendered convicting accused REZOR Decision dated March 20, 2012 of the RTC, Branch
MANZANO y JUANILLO, beyond reasonable doubt, of 12, San Jose, Antique in Criminal Case No. 10-07-
Murder under Art. 248 of the Revised Penal Code. 8009 is hereby AFFIRMED in toto.
Accordingly, he is hereby sentenced to suffer the
penalty of reclusion perpetua. SO ORDERED.22
He is also ordered to indemnify the legal heirs of ISSUES
Lucio Silava the amount of P75,000.00 for the death
of the said victim and to pay the said legal heirs I
actual expenses in the amount of P15,000.00 as well
as moral damages amounting to P25,000.00 and to
THE TRIAL COURT ERRED IN GIVING CREDENCE TO
pay the costs.
THE INCONSISTENT AND IMPROBABLE TESTIMONY
OF VICTORIA SILAVA.
SO ORDERED.19
II
Feeling aggrieved with the decision of the RTC, the
accused-appellant appealed before the CA.
THE TRIAL COURT ERRED IN NOT APPRECIATING
INCOMPLETE SELF-DEFENSE BY ACCUSED-
The Ruling of the CA APPELLANT REZOR MANZANO, AS A PRIVILEGED
MITIGATING CIRCUMSTANCE.
The CA noted the absence of unlawful aggression on
the part of Lucio which made the claim of self- III
defense unavailable. According to the CA, the
accused-appellant must rely on the strength of his
THE TRIAL COURT ERRED IN FINDING THAT THE
evidence and not on the weakness of the
ACCUSED-APPELLANT ACTED WITH ABUSE OF
prosecution's evidence since he had admitted that
SUPERIOR STRENGTH.
he killed Lucio. The CA held that there was no proof
that the RTC failed to appreciate facts and
IV
circumstances which would have merited the
accused-appellant's acquittal.20
THE TRIAL COURT ERRED IN NOT APPRECIATING THE
ACCUSED-APPELLANT'S VOLUNTARY SURRENDER AS
The CA sustained the ruling of the RTC that treachery
A MITIGATING CIRCUMSTANCE.23
and abuse of superior strength attended the killing
of Lucio, and that the accused appellant had not
OUR RULING
voluntarily surrendered to the police authorities. 21
In view of its findings, the CA affirmed in toto the The appeal does not deserve any merit.
decision of the RTC, thus:

The findings of the RTC as to the credibility of
witnesses should be respected especially when
these are affirmed by the CA.
It has been trenchantly maintained in a catena of
cases that when the issues involve matters of
credibility of witnesses, the findings of the trial
court, its calibration of the testimonies, and its
assessment of the probative weight thereof, as well
as its conclusions anchored on said findings, are
accorded high respect, if not conclusive effect.24 The
assessment of the credibility of the witnesses and
their testimonies is best undertaken by the trial
court because of its unique opportunity to observe
the witnesses first hand and to note their demeanor,
conduct, and attitude under gruelling examination.
These factors are the most significant in evaluating
the sincerity of witnesses and in unearthing the
truth, especially in the face of conflicting
testimonies.25 The factual findings of the RTC,
therefore, are accorded the highest degree of
respect especially if the CA adopted and confirmed
these,26 unless some facts or circumstances of
weight were overlooked, misapprehended or
misinterpreted as to materially affect the disposition
of the case.27 In the absence of substantial reason to
justify the reversal of the trial court's assessment
and conclusion, as when no significant facts and
circumstances are shown to have been overlooked
or disregarded, the reviewing court is generally
bound by the former's findings.28
It must be noted that it is a general rule in criminal
cases that an examination of the entire records of a
case may be explored for the purpose of arriving at a
correct conclusion; as an appeal in criminal cases
throws the whole case open for review, it being the
duty of the appellate court to correct such error as
may be found in the judgment appealed from,
whether they are made the subject of the
510 | P a g e
assignment of errors or not.29 It is for this reason
that the Court has painstakingly reviewed the
records of this case; yet, it found no reason to depart
from the well-entrenched rule that the findings of
the RTC as to the credibility of witnesses should not
be disturbed considering the absence of any showing
that it had overlooked a material fact that otherwise
would change the outcome of the case or had
misunderstood a circumstance of consequence in
their evaluation of the credibility of the witnesses. 30
The testimony of Victoria identifying the accused-
appellant and Resurrecion as the ones who assaulted
Lucio was positive, convincing, and
straightforward, viz:
Q. You said a while ago that your store is lighted
with bulb, what is the voltage of the electric
bulb?
A. Ten (10) watts.
Q. So, what did you do after you heard your
husband said those words?
A. I immediately went towards the door of the
store towards the kitchen area and I saw my
husband leaning on the wall full of blood and
the two accused simultaneously stabbing my
husband.
Q. So both of them are holding a knife?
A. Yes, sir.
Q. And you saw both of them stabbing your
husband?
A. Yes, sir.
Q. Please tell us how near is your door to the
[location] of your husband when he was
stabbed?
A. (Witness as this juncture pointed at the
distance from the witness stand to the place
occupied by Atty. Rivero which is estimated to
be about two (2) meters, as agreed upon by
the prosecution and the defense, as the
distance from the door to the [location] where
the husband was stabbed.)
Q. And when you came out of your door that was
your distance from your husband after he was
being stabbed?
A. Yes, sir.
Q. And please describe to us what did you do
immediately after coming out of that door?
A. From the door, I saw my husband leaning on
the wall full of blood with the two accused
simultaneously stabbing him.
Q. And you saw that there was no structure
blocking your side?
A. No, sir.
Q. While they were stabbing your husband, can
you tell us if the two accused uttered any
words?
A. Nothing, sir.

Q. Can you recall while standing how many times
did the two accused stab your husband?
A. I cannot count how many times the two
accused stabbed my husband but I saw both
of them stabbing my husband.
Q. At that time your husband is facing you?
A. Yes, sir because he was leaning on the wall.
Q. What did you do next?
A. After that I ran out of [the] house and ran
towards the fence and shouted that
Resurrecion and Rezor are stabbing my
husband and I went back inside the house
after saying those words.
Q. When you [said] that, you went out and asked
for help?
A. Yes, sir.
Q. When you said those words you came back to
your house, please tell us when you came
back to your house, you entered the main
gate or front of the road?
A. Just in front of our store when I shouted for
help.
Q. While standing on the road facing your
husband, please tell us what did you see?
511 | P a g e
A. While I was standing on the road, I saw
Resurrecion holding my husband and holding
[his] hands while Rezor was behind my
husband and one hand was holding the body
of my husband and the other hand was
stabbing at the back of my husband.
Q. At that point did you see on what portion of
the body of your husband was Rezor stabbing
him?
A. At the back.
Q. How far were you from them?
A. Very near. (x x x two (2) meters, as agreed
upon by both counsel)
Q. Please tell us, when the two accused
Resurrecion and Rezor were holding your
husband and Resurrecion was stabbing on the
back, in what portion were they located?
A. In front of our store.
COURT:
Q. Are you telling the court that the two accused
were already outside the store?
A. Yes, sir.
ATTY. SY:
Q. Outside the store but within the gate?
A. Yes, sir.
COURT:
Q. From inside the kitchen, can you tell the court
where did the three pass by?
A. My husband was able to run outside the
house.
Q. So when your husband ran outside the house,
the two accused followed him?
A. Yes, sir.
Q. When you saw your husband and the two
accused in that position they were directly in
front of your store but still within the gate?
A. Yes, sir.
Q. Is this store lighted?
A. Yes, sir, it is lighted with a bulb.
Q. And from your position you can properly see
their faces?
A. Yes, sir.
Q. Tell us what happened next?
 A. At that particular moment, I saw Resurrecion
holding the two hands of my husband while
Rezor's [other] hand was holding my husband
while the other hand was stabbing my
husband. I cannot recall which hand was used
by him in stabbing my husband.
COURT:
Q. You said you saw Rezor stabbing your
husband, why [is it that] you cannot recall
what hand was holding the knife?
A. Because at that time I was in a state of shock.
Resurrecion was holding my husband with his
two hands, while Rezor was stabbing my
husband.
xxxx
Q. So, are you telling the court that Rezor was in
the grip of your husband?
A. Yes, sir.
xxxx
Q. Now, do you realize that both injuries of your
husband were in [the] front portion of his
body?
A. Yes, sir.
512 | P a g e
Q. About how many times did you see
Resurrecion stab your husband while he was
at the back of your husband?
A. I saw Rezor stabbed my husband once and
that was the time that Resurrecion released
my husband from his grip and so my husband
fell to the ground facing down.
xxxx
ATTY. SY:
xxxx
Q. So, when your husband fell down, what did
you do next?
A. Rezor and Resurrecion helped each other in
stabbing him and at that point in time I told
Rezor and Resurrecion "I will let you eat the
whole body of my husband alive," and then
that was the time the two accused ran
away."31
It was clear from the testimony of Victoria that she
was able to personally witness when the accused-
appellant and Resurrecion assaulted Lucio; and that
she could not be mistaken as to the assailants'
identity since the place where the crime happened
was well-lighted.
Accused-appellant tried to dent the credibility of
Victoria by asserting that she did not actually see the
scuffle between him and Lucio as verified by her
admission during the cross-examination by the
defense.32
The contention of the accused-appellant is without
merit. The records bear out that Victoria admitted
that right after she heard Lucio utter "What wrong
did I commit," she immediately went to the kitchen
and found her husband leaning on the kitchen door,
bloodied, while the accused-appellant and
Resurrecion were stabbing him. Contrary to the
claim of the accused appellant, a review of the
testimony of Victoria would show that what she
claimed she did not witness was the scuffle, if there
was any, between Lucio and the accused-appellant
prior to her hearing her husband utter "What wrong
did I commit?" It was also pointed out that Victoria
had claimed that she did not hear anything from the
accused-appellant and Resurrecion before she heard
Lucio utter these words in a soft and pleading
manner, hence, accentuating the fact that no such
scuffle had taken place.
In the same vein, the position of the accused-
appellant that Victoria could not have seen the
actions of Lucio and the accused-appellant as she
had gone out of the house to ask for help,33 fails to
persuade. Victoria stated that after running out to
the street and shouting for help, she went back
inside the fenced premises of the store; thus, she
was able to see Lucio run outside from the kitchen,
and saw the accused-appellant and Resurrecion
follow Lucio, get hold of him, and stab him again.34
In stark contrast to the allegation of the accused-
appellant that Victoria's statements before the trial
court were inconsistent and incredible, a
perspicacious review of her testimony sustains a
finding that her narration of what happened on that
fateful day of 19 March 2010 was plausible, being
consistent in all important details. For sure, the
records are bereft of any showing that Victoria's
testimony was inspired by ill motive or was attended
by bad faith. Jurisprudence holds that when there is
no evidence to show any improper motive on the
part of the witness to testify falsely against the
accused or to pervert the truth, the logical
conclusion is that no such motive exists, and that the
former's testimony is worthy of full faith and
credit.35
We underscore that, except for the alleged
inconsistencies which to the mind of the Court are
inconsequential, the accused-appellant failed to
proffer any convincing and material variations in the
testimony of Victoria that would warrant the Court
to reverse the RTC's finding as to her credibility. It is
settled in this jurisdiction that as long as the
testimony of the witness is coherent and intrinsically
believable as a whole, discrepancies in minor details
and collateral matters do not affect the veracity or
detract from the essential credibility of the
witnesses' declarations.36 Of utmost meaning to this
case is the ruling laid down in Velasquez v.
People,37viz:
Jurisprudence is replete with clarifications that a
witness' recollection of [a] crime need not be
foolproof: "Witnesses cannot be expected to
recollect with exactitude every minute detail of an
event. This is especially true when the witnesses
testify as to facts which transpired in rapid
succession, attended by flurry and excitement." This
is especially true of a victim's recollection of his or
her own harrowing ordeal. One who has undergone
a horrifying and traumatic experience "cannot be
expected to mechanically keep and then give an
accurate account" of every minutiae.
The accused-appellant assumes the burden of
establishing his plea of self-defense by credible,
clear, and convincing evidence.
513 | P a g e
Jurisprudence instructs that an accused who pleads a
justifying circumstance under Article 1138 of the
Revised Penal Code admits to the commission of
acts, which would otherwise engender criminal
liability.39 Corollary thereto, the rule consistently
adhered to in this jurisdiction is that when the
accused admit that they are the authors of the death
of the victim, and their defense is anchored on self-
defense, it becomes incumbent upon them to prove
the justifying circumstance to the satisfaction of the
court.40 With this admission, the burden of evidence
is shifted to the appellant to prove that all the
essential elements of self-defense are
present.41 Verily, to invoke self-defense effectually,
there must have been an unlawful and unprovoked
attack that endangered the life of the accused, who
was then forced to inflict severe wounds upon the
assailant by employing reasonable means to resist
the attack.42 Self-defense, to be successfully invoked,
must be proven by clear and convincing evidence
that excludes any vestige of criminal aggression on
the part of the person invoking it.43 Conviction
follows if the evidence for the accused fails to prove
the existence of justifying circumstances.44
Accused-appellant contends that he merely repelled
the unlawful aggression of Lucio, viz: when Lucio
threw a stone at him that hit his knee; and when
Lucio rushed towards him to stab him. Additionally,
accused appellant avers that his testimony was
credible that he alone inflicted the stab wounds on
Lucio.45
To successfully invoke self-defense, an accused must
establish: (1) unlawful aggression on the part of the
victim; (2) reasonable necessity of the means
employed to prevent or repel such aggression; and
(3) lack of sufficient provocation on the part of the
person resorting to self-defense.46
On the first element, the consistent teaching by the
Court on unlawful aggression is as follows:
Unlawful aggression on the part of the victim is the
primordial element of the justifying circumstance of
self-defense. Without unlawful aggression, there can
be no justified killing in defense of oneself. The test
for the presence of unlawful aggression under the
circumstances is whether the aggression from the
victim put in real peril the life or personal safety of
the person defending himself; the peril must not be
an imagined or imaginary threat. Accordingly, the
accused must establish the concurrence of three
elements of unlawful aggression, namely: (a) there
must be a physical or material attack or assault; (b)
the attack or assault must be actual, or, at least,
imminent; and (c) the attack or assault must be
unlawful.
Unlawful aggression is of two kinds: (a) actual or
material unlawful aggression; and (b) imminent
unlawful aggression. Actual or material unlawful
aggression means an attack with physical force or
with a weapon, an offensive act that positively
determines the intent of the aggressor to cause the
injury. Imminent unlawful aggression means an
attack that is impending or at the point of
happening; it must not consist in a mere threatening
attitude, nor must it be merely imaginary, but must
be offensive and positively strong (like aiming a
revolver at another with intent to shoot or opening a
knife and making a motion as if to attack). Imminent
unlawful aggression must not be a mere threatening
attitude of the victim, such as pressing his right hand
to his hip where a revolver was holstered,
accompanied by an angry countenance, or like
aiming to throw a pot.47
The evidence before the Court palpably lend
negative credence to the presence of unlawful
aggression. Primarily, when compared to Victoria's
testimony which withstood the crucible of intense
cross-examination by the defense and the
clarificatory questioning by the trial court, accused-
appellant's testimony was not only incongruous with
the evidence on record but also improbable.
The version of the defense was that the unlawful
aggression began with Lucio who was outside the
accused-appellant's house throwing stones at its
roof. Allegedly, Lucio likewise threw a stone at the
accused-appellant when he came out of the house
which hit his knee and caused him to fall down. Lucio
was about to stab the accused-appellant with a knife
but then a scuffle ensued for its possession. When
the accused-appellant got hold of the knife, he
"blacked out" and stabbed Lucio several times.
The defense's version of the events is swiftly denied
by the prosecution's pictures48 showing Lucio's blood
splattered in the kitchen of Victoria's store and at
the fenced premises. These pictures are silent
evidence that confirm the truth of Victoria's
testimony and easily weaken the defense's version
that when the accused-appellant acted in self-
defense to Lucio's unlawful aggression, they were at
the road in front of accused appellant's house.
Where the physical evidence on record runs counter
to the testimonies of witnesses, the primacy of the
physical evidence must be upheld.49
It is noteworthy that the accused-appellant has
neither witness nor evidence to fortify his claim that
the unlawful aggression started with Lucio. Self-
defense cannot be justifiably appreciated when
uncorroborated by independent and competent
evidence or when it is extremely doubtful by
itself.50 The fact that Resurrecion is still in hiding
instead of giving his testimony before the trial court
to boost the theory proffered by the accused
appellant well confirms the finding that the
defense's version of the events was contrived.
514 | P a g e
To amplify his position that he acted in self-defense,
the accused-appellant tried to make issue of his
absence of motive to stab Lucio. The accused-
appellant basically anchored his position on the
ruling laid down by the Court in Borguilla v. Court of
Appeals,51 that "the absence of motive is important
in ascertaining the truth as between two
antagonistic theories or versions of the killing.
Herein, it was the victim who had reason to harm
the accused."52
The quoted ruling in Borguilla does not find meaning
in this case considering that the identity of the
accused-appellant as the assailant of Lucio has been
firmly established by the prosecution. For sure, even
the accused-appellant admitted that he stabbed
Lucio several times after he blacked out. In Borguilla,
because of the contradictory accounts of the event
by both parties, the Court resorted to searching for
facts or circumstances which could be used as
valuable aids in evaluating the probability or
improbability of a testimony; thus, the Court had
appreciated the presence of motive of the victim to
harm the accused in ascertaining which of the
versions was true. In the present case, however,
both the testimonial and documentary evidence of
the prosecution demonstrably disproved the
defense's version that unlawful aggression was
initiated by Lucio. Also revealing was that, in contrast
to the Borguilla ruling, there was conspicuous dearth
of evidence to establish that Lucio had motive to kill
the accused-appellant.
Notwithstanding the accused-appellant's contention
that he has no motive in killing Lucio, we point out
that motive is not material in this case. As a general
rule, proof of motive for the commission of the
offense charged does not show guilt; and the
absence of proof of such motive does not establish
the innocence of accused for the crime charged such
as murder.53 To emphasize, "motive is irrelevant
when the accused has been positively identified by
an eyewitness. Intent is not synonymous with
motive. Motive alone is not a proof and is hardly
ever an essential element of a crime."54
It is vigorously underscored that the pith and soul of
the justifying circumstance of self-defense is the
presence of unlawful aggression; thus, the absence
of this requisite readily converts the claim of self-
defense into nothingness even with the existence of
the other elements because the two other essential
elements of self-defense would have no factual and
legal bases without any unlawful aggression to
prevent or repel.55 As case law puts it, there can be
no self-defense unless the victim committed
unlawful aggression against the person who resorted
to self-defense.56
Accused-appellant's plea of self-defense is
controverted by the nature, number, and location of
the wounds inflicted on the victim, since the gravity
of said wounds is indicative of a determined effort to
kill and not just to defend.57 The postmortem
examination58 conducted by Dr. Pacificador on the
body of Lucio revealed that he sustained fifteen
wounds, four of which were fatal, and that the cause
of his death was hypovolemic shock secondary to
hemorrhage secondary to multiple stab wounds. The
findings of Dr. Pacificador justify a declaration that
there was undeniable intent on the part of the
accused-appellant to kill Lucio.
The absence of unlawful aggression on the part of
Lucio in this case unmistakably belies the accused-
appellant's claim of self-defense, whether complete
or incomplete. In view of this, the Court finds no
reason to further discuss the other elements of the
justifying circumstance of self-defense and will
proceed to determine the offense committed by the
accused-appellant.

The crime committed by the accused-appellant
was murder.
The accused-appellant averred that the trial court
erred in convicting him of murder; he maintained
that he was guilty only of homicide in view of the
absence of the qualifying circumstances of treachery
and abuse of superior strength.59
The crime of murder, under Article (Art.) 24860 of the
Revised Penal Code (RPC), is committed by any
person who, not falling within the provisions of Art.
24661 of the same Code, shall kill another with
treachery, taking advantage of superior strength,
with the aid of armed men, or employing means to
weaken the defense or of means or persons to
insure or afford impunity.62 Jurisprudence provides
that to warrant a conviction for the crime of murder,
the following essential elements must be present: (a)
that a person was killed; (b) that the accused killed
him or her; (c) that the killing was attended by any of
the qualifying circumstances mentioned in Art. 248
of the RPC; and (d) that the killing is not parricide or
infanticide.63
There is no question that the first, second, and
fourth elements are present in this case. It is the
resolution of the issue on whether the qualifying
circumstances of treachery and abuse of superior
strength that attended the killing of Lucio can
determine whether the accused-appellant should be
held liable for murder. The presence of any one of
the circumstances enumerated in Article 248 of the
Code is sufficient to qualify a killing as murder.64 On
the one hand, if the qualifying circumstances are not
present or cannot be proven beyond reasonable
doubt, the accused may only be convicted with
homicide under Art. 24965 of the RPC.66
515 | P a g e
Both the trial and the appellate courts appreciated
treachery and abuse of superior strength in
convicting the accused-appellant of murder.
Treachery is present when the offender commits any
of the crimes against a person, employing means,
methods, or forms in the execution thereof which
tend directly and specially to insure its execution,
without risk to himself arising from the defense
which the offended party might make.67 Treachery is
not presumed but must be proved as conclusively as
the crime itself.68 Treachery, whenever alleged in the
information and competently and clearly proved,
qualifies the killing and raises it to the category of
murder.69
For the qualifying circumstance of treachery to be
appreciated, the following elements must be shown:
(1) the employment of means, method, or manner of
execution would ensure the safety of the malefactor
from the defensive or retaliatory acts of the victim,
no opportunity being given to the latter to defend
himself or to retaliate; and (2) the means, method,
or manner of execution was deliberately or
consciously adopted by the offender.70
Relative to the first element, the legal teaching
consistently upheld by the Court is that the essence
of treachery is when the attack comes without a
warning and in a swift, deliberate, and unexpected
manner, affording the hapless, unarmed, and
unsuspecting victim no chance to resist or escape
the sudden blow.71
As to the second element, jurisprudence requires
that there must be evidence to show that the
accused deliberately or consciously adopted the
means of execution to ensure its success72 since
unexpectedness of the attack does not always
equate to treachery.73 The means adopted must
have been a result of a determination to ensure
success in committing the crime.74
Additionally, in murder or homicide, the offender
must have the intent to kill; otherwise, the offender
is liable only for physical injuries.75 The evidence to
prove intent to kill may consist of, inter alia, the
means used; the nature, location, and number of
wounds sustained by the victim; and the conduct of
the malefactors before, at the time of or
immediately after the killing of the victim.76
The prosecution established that the accused-
appellant and Resurrecion deliberately made it
appear to Victoria and Lucio on the night of 19
March 2010, that their main purpose in coming to
the store was to buy cigarettes. They came at night
when neighbors were probably asleep which would
make it impossible for them to lend assistance to
Lucio. Once the accused-appellant and Resurrecion
were allowed to enter the premises, the accused-
appellant immediately went inside the store and
proceeded to the kitchen where Lucio was having
dinner. In the meantime, Resurrecion engaged
Victoria in a talk by pretending that he was buying
cigarettes but he, too, forthwith went to the kitchen
upon being told by Victoria that she had run out of
the cigarette he was looking for. Thereafter, Victoria
heard Lucio uttering softly, "What wrong have I
committed"; and then she saw her bloodied husband
being stabbed by the accused-appellant and
Resurrecion. The absence of scuffle among Lucio, the
accused-appellant, and Resurrecion substantiate the
finding that the attack was swift and deliberate so
that the unarmed and unsuspecting Lucio had no
chance to resist or escape the blow from his
assailants.
The intent to kill by the accused-appellant and
Resurrecion was confirmed by the fact that they
were armed with knives when they attacked Lucio
who sustained a total of fifteen wounds. Despite the
fact that Lucio was already bleeding from his
wounds, he was able to run away from his assailants
who pursued him. Resurrecion stood in front of Lucio
while the accused-appellant held him at the back
and both assailants continued to stab him. According
to Dr. Pacificador, there were four fatal wounds
inflicted on Lucio, i.e., wounds numbered 1, 4, 5, and
6 which penetrated his major organs.77
It must be pointed out that since treachery had
qualified the crime to murder, the generic
aggravating circumstance of abuse of superior
strength is necessarily included in the former.78
The RTC and the CA were correct in not
appreciating the mitigating circumstance of
voluntary surrender.
For voluntary surrender to be appreciated as a
mitigating circumstance, the following elements
must be present, to wit: (1) the accused has not
been actually arrested; (2) the accused surrenders
himself to a person in authority or the latter's agent;
and (3) the surrender is voluntary.79 The essence of
voluntary surrender is spontaneity and the intent of
the accused to give himself up and submit himself to
the authorities, either because he acknowledges his
guilt or he wishes to save the authorities the trouble
and expense that may be incurred for his search and
capture.80
Records show that it was Reno who went to the
Hamtic police station to request that they take
custody of the accused-appellant who was then in
his house.81 Undoubtedly, when the police went to
Reno's house at San Angel, San Jose, Antique, it was
for the purpose of arresting the accused-appellant
and not because he was surrendering to them
voluntarily. Simply put, Reno merely facilitated the
516 | P a g e
accused-appellant's arrest. Thus, without the
elements of voluntary surrender, and where the
clear reasons for the supposed surrender are the
inevitability of arrest and the need to ensure his
safety, the surrender is not spontaneous and
therefore cannot be characterized as "voluntary
surrender" to serve as a mitigating circumstance.82
The penalty to be imposed upon the accused-
appellant
Pursuant to Art. 248 of the RPC, the penalty for
murder is reclusion perpetua to death. Applying Art.
63(2)83 of the RPC, the lesser of the two indivisible
penalties, i.e., reclusion perpetua, shall be imposed
upon the accused-appellant in view of the absence
of any mitigating or aggravating circumstance that
attended the killing of Lucio.
Following the jurisprudence laid down by the Court
in People v. Jugueta,84 accused-appellant shall be
held liable for civil indemnity, moral damages, and
exemplary damages in the amount of P75,000.00
each. It was also ruled in Jugueta that when no
documentary evidence of burial or funeral expenses
is presented in court, the amount of P50,000.00 as
temperate damages shall be awarded. In this case,
Victoria showed that she spent a total of P13,000.00
for the funeral expenses of Lucio. In conformity with
the jurisprudence in Ocampo v. People,85 the
temperate damages of P50,000.00 shall likewise be
awarded instead of the damages substantiated by
the receipts. In addition, interest at the rate of six
percent (6%) per annum shall be imposed on all
monetary awards from date of finality of this
decision until fully paid.86
On the loss of earning capacity, it is noted that
Victoria failed to substantiate her claim that her
husband was receiving a monthly income of
P20,000.00. The Court reiterates its ruling that "for
lost income due to death, there must be unbiased
proof of the deceased' average income. Self-serving,
hence unreliable statement, is not enough."87
WHEREFORE, the appeal is DISMISSED. The assailed
Decision of the Court of Appeals in CA-G.R. CR-HC
No. 01473 finding the accused appellant Rezor
Juanillo Manzano guilty beyond reasonable doubt of
Murder and sentencing him to suffer the penalty
of reclusion perpetua is AFFIRMED but
with MODIFICATION as to the award of damages to
the heirs of Lucio Silava, as follows: civil indemnity of
P75,000.00; moral damages of P75,000.00;
exemplary damages of P75,000.00; and temperate
damages of P50,000.00. In addition, interest at the
rate of six percent (6%) per annum shall be imposed
on all monetary awards from the date of finality of
this decision until fully paid.
SO ORDERED.
Velasco, Jr., J., (Chairperson), Bersamin, Leonen,
and Gesmundo, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-26789 April 25, 1969
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DICTO ARPA and MAALUM ARPA defendants-
appellants.
Office of the Solicitor General Antonio P. Barredo,
Assistant Solicitor General Felicisimo R. Rosete and
Solicitor Antonio M. Martinez for plaintiff-appellee.
Antonio L. Africa for defendants-appellants.
TEEHANKEE, J.:
Automatic review by this Court of the death penalty
imposed by the trial court on the accused for the
crime of Robbery with Triple Homicide.
In the information filed before the Court of First
Instance of Davao, the accused, Dicto Arpa and
Maalum Arpa, were charged with the crime of
Robbery with Triple Homicide (Criminal Case No.
9694); alleged to have been committed as follows:
That on or about February 20, 1966, in the
City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the
above-mentioned accused, having boarded
a motor banca named "MAMI I", owned by
Epimaco Mola together with other
passengers bound for Talicud Island, Davao,
and once the motor banca was in the
middle of the sea and when it developed
engine trouble, the accused, conspiring
together and helping one another, with
intent to steal the motor banca and by
means of intimidation, the accused Dicto
Arpa firing his .22 cal. revolver to scare the
passengers of the banca, and fired at one of
the passengers, hitting the said passenger
at the right shoulder, wilfully, unlawfully
and feloniously took and carried away the
said motor banca "MAMI I" belonging to the
said Epimaco Mola valued at P2,100.00, to
the damage and prejudice of the above-
named owner in the aforementioned
amount of P2,100.00, and as a result of the
jumping into the sea of all the passengers of
the motor banca, Alfonso Villegas, Bernardo
517 | P a g e
Villegas and Lourdes Villegas, all passengers
of the motor banca were drowned and died.
On the scheduled date of arraignment on March 7,
1966, the accused, through their counsel de oficio,
Atty. Bernardino Bolcan Jr., manifested their desire
to plead guilty only as to the fact of "the killing of
one of the persons mentioned in the
information," 1 denying the killing of the two other
persons. The fiscal, however, manifested that the
State could not agree to the accused's offer to plead
guilty to only one homicide, since "the two other
persons were lost on the same occasion, ... because
of the incident. They jumped overboard after the
firing at one of the victims, ..." 2 The trial judge, Hon.
Manases G. Reyes, accordingly did not accept the
plea and reset the arraignment for the next day,
informing the accused that as the prosecution was
not agreeable to their qualified plea, they would
have to enter into trial.
When the case was called on the following day, the
information was read to the accused in the dialect
they understood, and both accused pleaded guilty,
their counsel de oficio invoking, in their favor two
mitigating circumstances of plea of guilty and lack of
intent to commit so grave a wrong. The fiscal
objected to the appreciation of the latter
circumstance, demonstrating that "there could be no
lack of intent when they immediately fired at one of
the victims point blank with a pistol, that is fatal." 3
The case was submitted and the trial court rendered
thereafter on March 11, 19661, its decision, crediting
the accused with the mitigating circumstance of their
voluntary plea of guilty, but rejecting the claimed
mitigating circumstance of lack of intent to commit
so grave a wrong, in view of "the nature and gravity
of the offense committed." The trial court further
found two aggravating circumstances against the
accused, as follows;
A perusal of the information reveals the
following, allegation in the information:
...and once the motor banca was in the
middle of the sea and when it developed
engine trouble....
These allegations to the mind of the Court
constitute two aggravating circumstances.
The first underlined portion constitutes the
aggravating circumstance that the crime
was committed in an uninhabited place.
(People vs. Rubia 52 Phil. 172). And the
second constitutes the aggravating
circumstance that the crime is committed
on the occasion of conflagration, shipwreck,
earthquake, epidemic or other calamity or
misfortune.
The Court believes that the development of
engine trouble in the middle of the sea is a
misfortune which tends to create confusion
and apprehensions of the passengers and,
thereby, to commit a crime such a time the
accused manifested greater perversity and
instead of rendering help increased their
affliction by taking advantage of the said
misfortune.
As it is, therefore, the accused in the
commission of this crime has one mitigating
circumstance in their favor and two
aggravating circumstances against them,
and offsetting one another there is still
remaining one aggravating circumstance to
the accused.4
Consequently, the trial court sentenced each of the
accused to the penalty of death and order both of
them, jointly and severally, to indemnify the heirs of
the deceased Alfonso Villegas, Bernardo Villegas and
Lourdes Villegas in the amount of P6,000.00 for each
of them, without subsidiary imprisonment in case of
insolvency by reason of the penalty imposed, and to
indemnify Epimaco Mola in the sum of P2,100.00,
and to pay the costs proportionately.
For purposes of this review, Atty. Antonio L. Africa
was appointed counsel de oficio for the accused,
upon the latter's request for such counsel. Said
Counsel urges the reversal of the death sentence,
and the Solicitor-General recommends the
affirmance thereof. Counsel for the accused in a
well-prepared brief, assigns the following errors: —
I. THE LOWER COURT ERRED IN HOLDING
THAT THE CRIME COMMITTED IS ROBBERY
WITH TRIPLE HOMICIDE.
II. THE LOWER COURT ERRED IN HOLDING
THAT THE CRIME COMMITTED WAS
ATTENDED BY THE AGGRAVATING
CIRCUMSTANCES OF UNINHABITED PLACE
AND ON THE OCCASION OF A MISFORTUNE.
III. THE LOWER COURT ERRED IN NOT
CONSIDERING THE MITIGATING
CIRCUMSTANCE OF LACK OF INTENT TO
COMMIT SO GRAVE A WRONG AS THAT
COMMITTED.
IV. THE LOWER COURT ERRED IN IMPOSING
UPON THE ACCUSED THE SUPREME
PENALTY OF DEATH.
The accused, leaving voluntarily pleaded guilty to the
information, come under the firmly settled doctrine
of being deemed to have admitted all the material
facts alleged in the information, including the
aggravating circumstances therein alleged. 5
518 | P a g e
The first error assigned that "if the original criminal
design does not clearly comprehend homicide, (in
view of the allegations in the information that the
accused's intent was to steal the motor banca and
that accused Dicto Arpa fired his 22 cal. revolver to
scare the passengers of the banca), but homicide
follows the robbery as an incident of the latter, the
criminal acts should be viewed as constitutive of two
offenses, and not as a single special offense (of
robbery with homicide)" 6 is without merit. Article
294, paragraph 1 of the Revised Penal Code which
defines the special, single and indivisible crime of
robbery with homicide with the use of violence
against, or intimidation of any person, imposes one
distinct penalty of reclusion perpetua to death
"when by reason or on occasion of the robbery, the
crime of homicide shall have been committed." In
the case of People vs. Mangulabnan, et al., 7 this
Court pointed out that the "English version of the
Code is a poor translation of the prevailing Spanish
text of sale paragraph, which reads as
follows:lawphi1.nêt
I. o Con la pena de reclusion perpetua a
muerte cuando con motivo o' con occasion
del robo resultare homicidio.
We see, therefore, that in order to
determine the existence of the crime of
robbery with homicide it is enough that a
homicide would result by reason or on the
occasion of the robbery (Decision of the
Supreme Court of Spain of November 26,
1892, and January 7, 1878, quoted in 2
Hidalgo's Penal code, p. 267 and 259-260,
respectively). This High Tribunal speaking of
the accessory character of the
circumstances leading to the homicide, has
also held that it is immaterial that the death
would supervene by mere accident
(Decision of September 9, 1886; October
22, 1907; April 30, 1910 and July 14, 1917),
provided that the homicide be produced by
reason or on occasion of the robbery,
inasmuch as it is only the result obtained,
without reference or distinction as to the
circumstances, causes, modes or persons
intervening in commission of the crime, that
has to be taken into consideration (Decision
of January 12, 1889 — see Cuello Calon's
Codigo Penal p. 501-502).
In that case, one of the two unidentified co-
participants of the appellant Mangulabnan climbed
up a table and fired at the ceiling, which was
conceded to be "an unpremeditated act that surged
on the spur of the moment and possibly without any
idea that Vicente Pacson was hiding therein" that
resulted in the killing of said Vicente Pacson, but said
appellant having been shown to have participated in
the criminal design to commit the robbery with his
co-defendants was held guilty of the crime of
robbery with homicide. Here, upon the accused
carrying out their criminal design to steal the motor
banca, one of them, Dicto Arpa, started firing his
revolver to scare the passengers and fired directly at
one of the passengers, hitting him at the right
shoulder, and as a result, the three passengers
jumped into the sea and met their death by
drowning. Even if we were to concede appellants'
contention that their original criminal design did not
clearly comprehend homicide, and that homicide
followed the robbery "as an incident of the latter",
still the deaths clearly resulted by reason of or on
the occasion of the robbery and the trial court
therefore correctly found them guilty of the crime of
robbery with triple homicide.
The remaining errors assigned concern the trial
court's appreciation and finding of two aggravating
circumstances as against one mitigating
circumstance of a voluntary plea of guilty in the
commission of the crime and the mandatory
imposition, as a consequence, of the penalty of
death.
We hold that the trial court correctly held that the
crime committed was attended by the aggravating
circumstance of uninhabited place. The accused, in
having boarded at Davao City the motor banca,
together with other passengers bound for Talicud
Island, Davao, and carrying out their criminal design
of stealing the said motor banca, once it was in the
middle of the sea and when it developed engine
trouble, with one of them firing revolver shots in
order to forestall any resistance, certainly cannot
disclaim that they sought the isolation of the sea to
attain their criminal objective without interference.
As held by this Court in People vs. Rubia, 8 the
aggravating circumstance of the crime of homicide
having been committed in an uninhabited place
must be considered, where the deed was committed
at sea, where it was difficult for the offended party
to receive any help, while the assailants could easily
have escaped punishment, and the purely accidental
circumstance that another banca carrying the
eyewitnesses to the crime was also at sea in the
vicinity at the time without the assailants' knowledge
is no argument against the appreciation of said
circumstance.
We hold, however, against the trial court's finding of
a second aggravating circumstance in that the crime
was committed "on the occasion of a conflagration,
shipwreck, earthquake, epidemic, or other calamity
or misfortune." 9 In so holding, the trial Court
reasoned:
The Court believes that the development of
engine trouble in the middle of the sea is a
misfortune which tends to create
confusions and apprehensions of the
passengers and, thereby, to commit a crime
519 | P a g e
at such a time the accused manifested
greater perversity and instead of rendering
help increased their affliction by taking
advantage of the said misfortune. (Decision,
p. 3).
The development of engine trouble at sea is a
misfortune, but it does not come within the context
of the phrase "other calamity or misfortune" as used
in Article 14, paragraph 7 of the Revised Penal Code,
which refer to other conditions of distress similar to
those precedingly enumerated therein, namely,
"configuration, shipwreck, earthquake, epidemic",
such as the chaotic conditions resulting from war or
the liberation of the Philippines during the last
World War. The reason for the provision of this
aggravating circumstance "is found in the debased
form of criminality met in one who, in the midst of a
great calamity, instead of lending aid to the afflicted
adds to their suffering by taking advantage of their
misfortune to despoil them." 10 Clearly, no such
condition of great calamity or misfortune existed
when the motor banca developed engine trouble.
It should be added that there is nothing in the record
whatever to indicate that the engine trouble
developed was a serious one such as to create
confusion and apprehension on the part of the
passengers as perceived by the trial court, and that
the same was not easily repaired; if at all, the
indications are to the contrary, for as alleged in the
information, the accused succeeded in stealing the
motor banca at sea.
We hold also against the accused's claim of a second
mitigating circumstance of lack of intent to commit
so grave a wrong. The trial court correctly held that
this circumstance could not properly be appreciated
in favor of the accused "viewed from the nature and
gravity of the offense committed." As previously
pointed out by this Court in the case of People vs.
Boyles, 11 the true nature of this circumstance
"addresses itself to the intention of the offender at
the particular moment when he executes or commits
the criminal act; not to his intention during the
planning stage. Therefore, when, as in the case
under review the original plan was only to rob, but
which plan, on account of the resistance offered by
the victim, was compounded into the more serious
crime of robbery with homicide, the plea of lack of
intention to commit so grave a wrong cannot be
rightly granted." In the present case, the accused
embarked on their most reprehensible criminal
design of pirating a motor banca at sea, firing a
volley of shots at the passengers notwithstanding
the lack of indications of any resistance, thus forcing
them to jump overboard in a desperate act of self-
preservation only to be swallowed by the sea. The
accused cannot now disclaim their lack of criminal
intent and responsibility for the direct, logical and
fearsome consequences of their unlawful acts.
As thus established, therefore, the crime committed
was Robbery with Triple Homicide, attended by the
aggravating circumstance of the same having been
committed in an uninhabited place which is offset by
the accused's voluntary plea of guilty, and the proper
imposable penalty is the lesser penalty of reclusion
perpetua. (Article 294, paragraph 1 in relation to
Article 3, Revised Penal Code.) The compensatory
damages awarded to the heirs of the victims should
properly be increased to P12,000.00. (People vs.
Pantoja, G.R. L-18793, Oct. 11, 1968.)
It may be noted that even if the accused were to be
granted the additional claimed mitigating
circumstance of lack of intent, the said imposable
penalty would still be the same. 12 The question of
the fact of death of the two other passengers, since
the accused deny knowledge of the fact of their
death, as their counsel in the lower court claimed
that there was no showing of such fact, 13 although
both counsels in this Court as well as in the lower
court do not dispute the "judicial admission by the
accused appellants of the fact of killing (death) of
one of the persons named in the
information" 14 would not affect the nature of the
single and indivisible crime of Robbery with
Homicide committed by the accused nor the proper
imposable penalty as herein established, since all the
homicides perpetrated by reason or occasion of the
robbery are merged in the composite, integrated
whole that constitutes the crime of robbery with
homicide. 15
Nevertheless, we feel constrained to add that in
reviewing the records of the case, we were struck
with the paucity of facts and evidence attending the
commission of the crime other than those stated in
the information and other circumstances that would
aid the Court in its ordained task of passing en
consulta upon the legality and propriety of the death
penalty imposed by the trial court, e.g. the age and
education or lack thereof of the accused, and
whether there were other passengers who survived,
aside from the three persons named in the
information as having drowned, as well as what the
crew did, if anything, during the commission of the
crime. Were it not for the conclusion here reached of
imposing the lesser penalty of reclusion perpetua, by
virtue of our disallowance of the additional
aggravating circumstance of calamity or misfortune
found by the trial court, we might have been
constrained to remand the case for new trial to the
court a quo in order to satisfy ourselves as to the
degree of culpability of the accused in relation to the
death penalty imposed, especially since the
information did not expressly designate as such the
aggravating circumstances found by the trial court
and there was no discussion nor spelling out thereof
whatever in the eight-page transcript of the entire
proceedings. We therefore reiterate the rule of
practice recommended since the early cases of U.S.
520 | P a g e
vs. Talbanos 16 and U.S. vs. Rota. 17 set out in Rule
118 section 5 of the Rules of Court, 18 and thereafter
suggested a number of cases, lastly, in the case
of People vs. Bulalake, 19 where this Court said:
It is of course true that the taking of such
evidence is a matter left to the discretion of
the trial court. Nevertheless, inasmuch as
judgments of conviction imposing the
extreme penalty of death are subject to
review by the Supreme Court as law and
justice shall dictate, whether the defendant
appeals or not, which automatic review
neither the Court nor the accused could
waive or evade it would seem that the
proper and prudent course to follow where
the accused enters a plea of 'guilty' to
capital offenses specially where he is an
ignorant person with little or no education,
is to take testimony not only to satisfy the
trial judge himself but to aid the Supreme
Court in determining whether the accused
really and truly understood and
comprehended the meaning, full
significance and consequences of his plea.
WHEREFORE, the decision under review is modified:
the accused are imposed the penalty of reclusion
perpetua and ordered, jointly and severally, to
indemnify the heirs of the deceased Alfonso Villegas,
Bernardo Villegas and Lourdes Villegas in the amount
of P12,000.00 for each of them, and Epimaco Mola in
the sum of P2,100.00, and proportionately to pay
the costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal,
Zaldivar, Sanchez, Fernando and Barredo, JJ., concur.
Castro and Capistrano, JJ., took no part.
Footnotes
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19491 August 30, 1968
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
APOLONIO APDUHAN, JR. alias JUNIOR, ET
AL., defendants,
APOLONIO APDUHAN, JR. alias JUNIOR, defendant-
appellant.
Office of the Solicitor General for plaintiff-appellee.
Alberto M. Meer for defendant-appellant.
CASTRO, J.:
This is an automatic review of the judgment
rendered on August 30, 1961 by the Court of First
Instance of Bohol (Judge Hipolito Alo presiding)
convicting Apolonio Apduhan, Jr. of robbery with
homicide and sentencing him to death and "to
idemnify the heirs of the deceased Geronimo Miano
in the amount of P6,000.00, to indemnify the heirs of
the other deceased Norberto Aton in the same
amount of P6,000.00 ..."
On August 2, 1961 the accused Apduhan, then
represented by Atty. David Ocangas, together with
his co-accused Rodulfo Huiso and Felipe Quimson,
both represented by Atty. David Tirol, pleaded not
guilty to a second amended information which
recites:.
The undersigned Provincial Fiscal accuses
Apolonio Apduhan, Jr., alias Junior, Rodulfo
Huiso and Felipe Quimson of the crime of
 Robbery with Homicide, committed as Geronimo Miano, to the damage and the strong possibility that the capital penalty might
follows: prejudice of the said Honorato Miano and be imposed upon him despite a plea of guilty,
the heirs of the deceased Geronimo Miano Apduhan persisted in his intention to plead guilty
That on or about the 23rd day of May, 1961, in the sum of Three Hundred Twenty-two with the request, however, that the death penalty be
at about 7:00 o'clock in the evening, in the Pesos (P322.00) with respect to the amount not imposed. Then after hearing the arguments of
Municipality of Mabini, Province of Bohol, robbed, and also to the damage and Provincial Fiscal Jesus N. Borromeo and Atty. Tirol on
Philippines, the above-named accused and prejudice of the heirs of deceased the effect of articles 295 and 296 of the Revised
five (5) other persons whose true names are Geronimo Miano and Norberto Aton by Penal Code on the case at bar, the trial judge advised
not yet known (they are presently known reason of the death of these two persons. the herein accused anew that he could be sentenced
only with their aliases of Bernabe Miano, to death notwithstanding his projected plea of guilty,
Rudy, Angel-Angi, Romeo and Tony) and Act committed contrary to the provisions of but the latter reiterated his desire to confess his guilt
who are still at large (they will be charged in Art. 294, par. 1, of the Revised Penal Code on the specific condition that he be sentenced to life
separate information or informations as with the special aggravating circumstance imprisonment. Eventually, however, Apduhan
soon as they are arrested and preliminary that the crime was committed by a band desisted from pleading guilty and let his previous
proceedings in Crim. Case No. 176 with the use of unlicensed firearms (Art. plea stand on record after further warnings that he
completed before the Justice of the Peace 296, Rev. Penal Code), and other faced the grave danger of being sentenced to death
Court), all of them armed with different aggravating circumstances, as follows: in view of the circumstances of his case. But the
unlicensed firearms, daggers, and other aforesaid desistance was merely momentary as it did
deadly weapons, conspiring, confederating 1. That the crime was committed in the not end the accused's equivocation on the matter of
and helping one another, with intent of dwelling of the offended parties without his plea. After a five-minute recess requested by
gain, did then and there willfully, unlawfully any provocation from the latter; Atty. Tirol in order to confer with the accused, the
and feloniously enter, by means of violence, former informed the court a quo that his client
the dwelling house of the spouses Honorato would insist on entering a plea of guilty. The
2. That nighttime was purposely sought to
Miano and Antonia Miano, which was also following appears on record:
facilitate the commission of the crime; and.
the dwelling house of their children, the
spouses Geronimo Miano and Herminigilda Atty. D. TIROL:
3. That advantage was taken of superior
de Miano; and, once inside the said
strength, accused and their companions,
dwelling house, the above-named accused Your Honor, please, I had a conference with
who were fully armed, being numerically
with their five (5) other companions, did the accused and I apprised him with the
superior to the offended parties who were
attack, hack and shoot Geronimo Miano situation of the case and after hearing our
unarmed and defenseless.
and another person by the name of apprisal he manifested that he will insist on
Norberto Aton, who happened to be also in his entering a plea of guilty, Your Honor. I
When the case was called for trial on August 9, 1961,
the said dwelling house, thereby inflicting made it clear to him that we are not forcing
Atty. Tirol informed the court a quo that he was
upon the said two (2) persons physical him to enter the plea of guilty.
appearing also for Apduhan, but only as counsel de
injuries which caused their death; and
oficio. In view of this manifestation, the trial court
thereafter the same accused and their five COURT (To accused Apolonio Apduhan, Jr.)
appointed Atty. Tirol as counsel de oficio for the said
(5) other companions, did take and carry
accused. Forthwith, Atty. Tirol manifested that
way from said dwelling house cash money
Apduhan would change his former plea of not guilty Q. Is it true that you are withdrawing your
amounting to Three Hundred Twenty-two
to a plea of guilty. The record discloses that after the plea of not guilty?
Pesos (P322.00), Philippine Currency,
trial, judge had repeatedly apprised Apduhan of the
belonging to Honorato Miano and
severity of the offense for which he was indicted and A. I will just enter the plea of guilty.
521 | P a g e
 Q. Have you been forced to enter the plea
of guilty by your lawyer?.
A. No, Sir.
Q. And why do you said "I will JUST enter
the plea of not guilty"?
A. I have proposed to enter the plea of
guilty even before.
Q. Now the Court warns you again. Are you
conscious of the fact that notwithstanding
your plea of guilty the Court may impose
upon you the penalty of death?
A. I will just enter the plea of guilty, at the
discretion of the Court.
Q. Even with all those dangers mentioned
by the Court to you? .
A. Yes, Sir. (t.s.n. pp. 23-25).
Subsequently the prosecuting fiscal and the
counsel de oficio resumed their oral arguments
regarding the effect on the instant case of articles
295 and 296, particularly the use of unlicensed
firearm as a special aggravating circumstance under
the latter article. Also discuss were the existence and
effect of the alleged mitigating and aggravating
circumstances. All of these points will be later
analyzed.
When the lower court subsequently reviewed the
proceedings, it found that the accused's plea of
guilty was ambiguous. Hence, on August 30, 1961,
the case was reopened with respect to Apduhan, and
on said date the latter entered a categorical plea of
guilty, as evidenced by the record:
522 | P a g e
COURT (To Accused Apduhan, Jr.):
The Court reopened this case because after a review
of the proceedings it found that your plea was not
definite. In answer to a question of the Court you
simply said "I will just enter the plea of guilty". The
Court wants to know whether you enter the plea of
guilty of the crime charged in the second amended
information.
ACCUSED APDUHAN:.
I enter the plea of guilty.
COURT (To same accused Apduhan):
Q. Therefore, you admit that you have
committed the crime charged in the second
information?
A. Yes, Your Honor.
Q. Is it necessary for you that the second
amended information be read again?
A. No more; it is not necessary.
Q. Do you want that the second amended
information be read to you again?
A. No more, Your Honor. (t.s.n. pp. 50-51).
On the same day, the court a quo rendered its
decision, the pertinent dispositive portion of which
reads:.
PREMISES CONSIDERED, the Court renders
judgment finding accused Apolonio
Apduhan, Jr., alias Junior guilty of the
complex crime of robbery with homicide,
punished by Article 294 of the Revised
Penal Code, in relation to Article 296 of the
game Code, as amended, and sentences
him to suffer the penalty of death.
Considering that Apduhan had voluntarily confessed
his guilt in open court, then the only aspect of the
case properly subject to review is the correctness of
the penalty imposed by the court a quo. In this
respect, the appreciation of the use of unlicensed
firearm as a special aggravating circumstance (art.
296) in fixing the appropriate penalty for robbery
with homicide (Art, 294 [1]) committed by a band
with the use of unlicensed firearms, and the
interplay and counter-balancing of the attendant
mitigating and aggravating circumstances, would
determine the severity of the penalty imposable.
The disposition of the question at hand necessitates
a discussion of the interrelation among articles 294,
295 and 296 of the Revised Penal Code. For this
purpose the said articles are hereunder quoted:
ART. 294. Robbery with violence against or
intimidation of persons — Penalties. — Any
person guilty of robbery with the use of
violence against or intimidation of any
person shall suffer:
1. The penalty of reclusion
perpetua to death, when by reason
or on occasion of the robbery, the
crime of homicide shall have been
committed.
2. The penalty of reclusion
temporal in its medium period
to reclusion perpetua, when the
robbery shall have been
accompanied by rape or
intentional mutilation, or if by
 reason or on occasion of such
robbery, any of the physical
injuries penalized in subdivision 1
of article 263 shall have been
inflicted.
3. The penalty of reclusion
temporal, when by reason or on
occasion of the robbery, any of the
physical injuries penalized in
subdivision 2 of the article
mentioned in the next preceding
paragraph, shall have been
inflicted.
4. The penalty of prision mayor in
its maximum period to reclusion
temporal in its medium period, if
the violence or intimidation
employed in the commission of the
robbery shall have been carried to
a degree clearly unnecessary for
the commission of the crime, or
when in the course of the
execution, the offender shall have
inflicted upon any person not
responsible for its commission any
of the physical injuries covered by
subdivisions 3 and 4 of said article
263.
5. The penalty of prision
correccional in its maximum period
to prision mayor in its medium
period in other cases. (As amended
by Rep. Act 18.).
ART 295. Robbery with physical injuries,
committed in an uninhabited place and by a
band, or with the use of firearm on a street,
road or alley. — If the offenses mentioned in
523 | P a g e
subdivisions three, four, and five of the next
preceding article shall have been committed
in an uninhabited place or by a band, or by
attacking a moving train, street car, motor
vehicle or airship, or by entering the
passengers' compartments in a train or, in
any manner, taking the passengers thereof
by surprise in the respective conveyances,
or on a street, road highway, or alley, and
the intimidation is made with the use of a
firearm, the offender shall be punished by
the maximum period of the proper
penalties. (As amended by Rep. Acts Nos. 12
and 373.) (Emphasis supplied) .
ART. 296. Definition of a band and penalty
incurred by the members thereof.— When
more than three armed malefactors take
part in the commission of a robbery, it shall
be deemed to have been committed by a
band. When any of the arms used in the
commission of the offense be an unlicensed
firearm the penalty to be imposed upon all
the malefactors shall be the maximum of
the corresponding penalty provided by
law, without prejudice to the criminal
liability for illegal possession of such
unlicensed firearm.
Any member of a band who is present at
the commission of a robbery by the band,
shall be punished as principal of any of the
assaults committed by the band, unless it
be shown that he attempted to prevent the
same. (As amended by Rep. Act No. 12).
(Emphasis supplied).
The afore-quoted art. 294 enumerates five
classes of robbery with violence against or
intimidation of persons and prescribes the
corresponding penalties. The case at bar
falls under art. 294(1) which defines
robbery with homicide and fixes the penalty
from reclusion perpetua to death.
Article 295 provides, inter alia, that when the
offenses described in subdivisions 3, 4 and 5 of art.
294 are committed by a band, the proper penalties
must be imposed in the maximum periods. The
circumstance of band is therefore qualifying only in
robbery punished by subdivisions 3, 4, and 5 of art.
294. Consequently, art. 295 is inapplicable to
robbery with homicide, rape, intentional mutilation,
and lesiones graves resulting in insanity, imbecility,
impotency or blindness. If the foregoing classes of
robbery which are described in art. 294(1) and (2)
are perpetrated by a band, they would not be
punishable under art. 295, but then cuadrilla would
be a generic aggravating under Art. 14 of the
Code.1 Hence, with the present wording of art.
2952 there is no crime as "robbery with homicide in
band." If robbery with homicide is committed by a
band, the indictable offense would still be
denominated as "robbery with homicide" under art.
294(1), but the element of band, as stated above,
would be appreciated as an ordinary aggravating
circumstance.
Article 296, as quoted above, defines "band", creates
the special aggravating circumstance of use of
unlicensed firearm, and provides the criminal liability
incurred by the members of the band. The
ascertainment of the definite function and range of
applicability of this article in relation to articles 294
and 295 is essential in the disposition of the case at
bar.
In imposing the death penalty, the trial court
appears to have accorded validity to the Provincial
Fiscal's contention that in robbery with homicide
committed by a band, the use of unlicensed firearm
must be appreciated as a special aggravating
circumstance pursuant to art. 296. Thus convinced,
the trial judge stressed in his decision that "under
the express mandate of the law, we cannot escape
the arduous task of imposing the death penalty."
Subscribing to the said position, the Solicitor General
adds that the "penalty for robbery under the
circumstances mentioned in Articles 294, paragraph
1, and 296 of the Code is the maximum of reclusion
perpetua to death, or the supreme penalty of death.
This is mandatory." .
On the other hand, Atty. Alberto M. Meer, the
accused's counsel de oficio in the present review,
contends that the use of unlicensed firearm, if ever
appreciated in the case at bar, must be considered a
generic aggravating factor which "may be off-set by
the existence of mitigating circumstances so that the
penalty to be imposed should be the penalty of
reclusion perpetua." .
Both the foregoing contentions are untenable.
After a perceptive analysis of the provisions of art.
296, we reach the considered opinion that the said
article is exclusively linked and singularly applicable
to the immediately antecedent provision of art. 295
on robbery in band, as the latter article, in turn, is
explicitly limited in scope to subdivisions 3, 4, and 5
of art. 294. Consequently, although the use of
unlicensed firearm is a special aggravating
circumstance under art. 296, as amended by Rep.
Act 12, 3 it cannot be appreciated as such in relation
to robbery with homicide, described and penalized
under paragraph 1 of art. 294.
As previously stated, art. 295 provides that if any of
the classes of robbery described in subdivisions 3, 4,
and 5 of art. 294 is committed by a band, the
offender shall be punished by the maximum period
of the proper penalty. Correspondingly, the
immediately following provisions of art. 296 define
524 | P a g e
the term "band", prescribe the collective liability of
the members of the band, and state that "when any
of the arms used in the commission of the offense be
in unlicensed firearm, the penalty to be imposed
upon all the malefactors shall be the maximum of
the corresponding penalty provided by law." Viewed
from the contextual relation of articles 295 and 296,
the word "offense" mentioned in the above-quoted
portion of the latter article logically means the crime
of robbery committed by a band, as the phrase "all
the malefactors" indubitably refers to the members
of the band and the phrase "the corresponding
penalty provided by law" relates to the offenses of
robbery described in the last three subdivisions of
art. 294 which are all encompassed within the ambit
of art. 295. Evidently, therefore, art. 296 in its
entirety is designed to amplify and modify the
provision on robbery in band which is nowhere to be
found but in art. 295 in relation to subdivisions 3, 4,
and 5 of art. 294. Verily, in order that the aforesaid
special aggravating circumstance of use of
unlicensed firearm may be appreciated to justify the
imposition of the maximum period of the proper
penalty it is a condition sine qua non that the
offense charged be robbery committed by a band
within the contemplation of art. 295. To reiterate,
since art. 295, does not apply to subdivision 1 and 2
of art. 294, then the special aggravating factor in
question, which is solely applicable to robbery in
band under art. 295, cannot be considered in fixing
the penalty imposable for robbery with homicide
under art. 294(1), even if the said crime was
committed by a band with the use of unlicensed
firearms.
The legislative intent of making art. 296 corollary to
art. 295 with respect to robbery in band was
unmistakably articulated by Congressman Albano in
his sponsorship speech on H. B. No. 124
(subsequently enacted as Rep. Act No. 12, amending,
among others, articles 295 and 296 of the Revised
Penal Code). Said Congressman Albano: "Article 296
as a corollary of Article 295 would change the
definition heretofore known of the term "band"
under the law. The purpose of this amendment is to
inject therein the element of aggravation, when any
member of the band carries an unlicensed firearm .
." 4.
The special aggravating circumstance of use of
unlicensed firearm, however, was initially applicable
to all the subdivisions of art. 294 since the said Rep.
Act No. 12 also amended art. 295 to include within
its scope all the classes of robbery described in art.
294. With the then enlarged coverage of art. 295,
art. 296, being corollary to the former, was perforce
made applicable to robbery with homicide (art.
294[1]). Thus, in People vs. Bersamin, 5 this Court, in
passing, opined: "The use of unlicensed firearm is a
special aggravating circumstanceapplicable only in
cases of robbery in band (Art. 296, Revised Penal
Code, as amended by Section 3, Republic Act No.
12)." .
In the said case, this Court declared in effect that in
robo con homicidio the use of unlicensed firearm is
not a special aggravating circumstance when the said
offense is not committed by a band. Inferentially,
had the robbery with homicide in Bersamin been
perpetrated by a band, the use of unlicensed firearm
would have been appreciated. This implied
pronouncement would have been justified under art.
296 in relation to art. 295, as amended by Rep. Act
12. But the aforesaid inference lost all legal moorings
in 1949 with the enactment of Rep. Act 373 which
excluded subdivisions 1 and 2 of art. 294 from the
coverage of art. 295. Since art. 296, as repeatedly
emphasized above, is corollary to art. 295, the
diminution of the latter's scope correspondingly
reduced the former's extent of applicability. In other
words, the passage of the foregoing amendment did
not only jettison the first two subdivisions of art. 294
from the periphery of art. 295 but also removed the
said subdivisions (which pertain, inter alia, to the
offense of robbery with homicide) from the effective
range of art. 296.
Notwithstanding that the special aggravating
circumstance of use of unlicensed firearm cannot be
appreciated in the instant case, we are constrained,
in the final analysis, to observe that the imposition of
the death penalty on the accused Apduhan would
appear to be a logical legal consequence, because as
against the attendant mitigating circumstances the
aggravating circumstances numerically and
qualitatively preponderate.
After Apduhan had pleaded guilty, the defense
counsel offered for consideration three mitigating
circumstances, namely, plea of guilty, intoxication,
and lack of intent to commit so grave a wrong.
Subsequently, however, the defense withdrew the
last mentioned mitigating circumstance after the
prosecution had withdrawn the aggravating
circumstance of abuse of superior strength. The
following manifestations appear on record: .
"FISCAL BORROMEO: .
"In fairness to the accused, because the
crime charged is robbery in band (the case
at bar is actually robbery with homicide), it
is natural that in robbery in band there is
already abuse of superior strength, so we
will just withdraw that superior strength.
"COURT (To Atty. D. Tirol): .
"What do you say now? .
"ATTY. D. TIROL: .
525 | P a g e
"Such being the case, we will not insist on
presenting evidence in support of our
contention that the accused did not intend
to commit so grave a wrong.
"COURT: .
"Moreover by the mere use of firearm the
accused cannot claim that he did not intend
to commit so grave a wrong as that
committed. So now you withdraw your
petition that you be allowed to present
evidence to that effect? .
"ATTY. D. TIROL: .
"Yes, Your Honor." (t.s.n. pp. 47-48).
Thus, only two alleged mitigating
circumstances remain for consideration.
Anent the plea of guilty, we believe that
under art. 13 (7) its appreciation in the case
at bar is beyond controversion.
However, apropos the alternative
circumstance of intoxication, we find no
evidence on record to support the defense's
claim that it should be considered as a
mitigating factor. This absence of proof can
be attributed to the defense's erroneous
belief that it was not anymore its burden to
establish the state of intoxication of the
accused when he committed the offense
charged since anyway the prosecution had
already admitted the attendance of the said
mitigating circumstance on the ground that
the State did not have strong evidence to
overthrow the accused's claim of non-
habituality to drinking. The record discloses
the following pertinent discussion: .
"COURT (To Fiscal Borromeo):.
"Do you agree, Mr. Fiscal, that the non-
habitual intoxication of the accused be also
taken into account in his favor as a
mitigating circumstance? "FISCAL
BORROMEO: .
"We have no evidence exactly to know at
this time that the accused was intoxicated,
but his affidavit states that before the
commission of the crime they took young
coconuts and there is no mention about the
taking of any liquor, so that, as it is now, we
are constrained to object.
"COURT (To the Fiscal): .
"But do you have evidence to counteract
that allegation? .
"FISCAL BORROMEO: .
"We do not have any evidence to
counteract that.
"COURT (To the Fiscal): .
"But do you not admit the attendance of
that circumstance? .
"FISCAL BORROMEO: With that
manifestation we submit because actually
we do not have evidence to counteract that
he was a habitual drinker. "COURT (To the
Fiscal): .
 "But do you prefer to admit that mitigating
circumstance or you need that evidence be
presented to that effect? "FISCAL
BORROMEO: .
"Inasmuch as we do not have strong
evidence to contradict that circumstance in
fairness to the accused, we would rather
submit.
"COURT (To the Fiscal): .
"The attendance of the mitigating
circumstance of non-habitual intoxication? .
"FISCAL BORROMEO: .
"Yes, Your Honor." (t.s.n. pp. 7-9) (Emphasis
supplied) .
From the above proceedings in the trial court, it
would appear that what the prosecution actually
intended to admit was the non-habituality of the
accused to drinking liquor, not as a matter of fact,
but due to the State's inability to disprove the same.
The prosecution apparently did not concede the
actual intoxication of the accused. We are of the firm
conviction that, under the environmental
circumstances, the defense was not relieved of its
burden to prove the accused's actual state of
intoxication. Otherwise, to appreciate the
attendance of a mitigating factor on the mere
allegation of the accused, coupled with the dubious
acquiescence of the prosecution, would open wide
the avenue for unscrupulous and deceitful collusion
between defense and prosecution in order to unduly
and unjustly minimize the penalty imposable upon
the accused.
The last paragraph of art. 15 of the Code provides:.
526 | P a g e
"The intoxication of the offender shall be taken into
consideration as a mitigating circumstance when the
offender has committed a felony in a state of
intoxication, if the same is not habitual or
subsequent to the plan to commit said felony but
when the intoxication is habitual or intentional it
shall be considered as an aggravating circumstance.
(Emphasis supplied).
Under the foregoing provision, intoxication is
mitigating when it is not habitual or intentional, that
is, not subsequent to the plan to commit the crime.
However, to be mitigating the accused's state of
intoxication must be proved. 6 Once intoxication is
established by satisfactory evidence, 7 then in the
absence of proof to the contrary" it is presumed to
be non-habitual or unintentional. 8 .
In People vs. Noble 9 the defendant testified that
before the murder he took a bottle of wine and
drank little by little until he got drunk. The policeman
who arrested the accused testified that the latter
smelled wine and vomited. The Court held that the
evidence presented was not satisfactory to warrant a
mitigation of the penalty. Intoxication was likewise
not competently proved in a case 10 where the only
evidence was that the defendant had a gallon of
tuba with him at the time he committed the crime.
In the case at bar the accused merely alleged that
when he committed the offense charged he was
intoxicated although he was "not used to be drunk,"
11This self-serving statement stands
uncorroborated. Obviously, it is devoid of any
probative value.
To recapitulate, the accused has in his favor only one
mitigating circumstance: plea of guilty. As
aforementioned, the defense withdrew its claim of
"lack of intent to commit so grave a wrong" and
failed to substantiate its contention that intoxication
should be considered mitigating.
While an unqualified plea of guilty is mitigating, it at
the same time constitutes an admission of all the
material facts alleged in the information, including
the aggravating circumstances therein recited. 12
The four aggravating circumstances are (1) band; (2)
dwelling; (3) nighttime; and (4) abuse of superior
strength. The circumstance of abuse of superiority
was, however, withdrawn by the prosecution on the
ground that since the offense of robbery with
homicide was committed by a band, the element of
cuadrilla necessarily absorbs the circumstance of
abuse of superior strength. We believe that said
withdrawal was ill-advised since the circumstances
of band and abuse of superiority are separate and
distinct legal concepts. The element of band is
appreciated when the offense is committed by more
than three armed malefactors regardless of the
comparative strength of the victim or victims. Hence,
the indispensable components of cuadrilla are (1) at
least four malefactors and (2) all of the four
malefactors are armed. On the other hand, the
gravamen of abuse of superiority is the taking
advantage by the culprits of their collective strength
to overpower their relatively weaker victim or
victims. Hence, in the latter aggravating factor, what
is taken into account is not the number of aggressors
nor the fact that they are armed, but their relative
physical might vis-a-vis the offended party.
Granting, however, that the said withdrawal was
valid, there still remain three aggravating
circumstances which render inutile the solitary
extenuating circumstance of plea of guilty. The
prosecution does not need to prove the said three
circumstances (all alleged in the second amended
information) since the accused by his plea of guilty,
has supplied the requisite proof. 13 Hence, we will
not belabor our discussion of the attendance
aggravating circumstances.
The settled rule is that dwelling is aggravating in
robbery with violence or intimidation of persons, 14
like the offense at bar. The rationale behind this
pronouncement is that this class of robbery could be
committed without the necessity of transgressing
the sanctity of the home. Morada is inherent only in
crimes which could be committed in no other place
than in the house of another, such as trespass and
robbery in an inhabited house. 15 This Court in
People vs. Pinca, 16 citing People vs. Valdez, 17 ruled
that the "circumstances (of dwelling and scaling)
were certainly not inherent in the crime committed,
because, the crime being robbery with violence or
intimidation against persons (specifically, robbery
with homicide) the authors thereof could have
committed it without the necessity of violating or
scaling the domicile of their victim." Cuello Calon
opines that the commission of the crime in another's
dwelling shows greater perversity in the accused and
produces greater alarm. 18.
Nocturnity is aggravating when it is purposely and
deliberately sought by the accused to facilitate the
commission of the crime 19 or to prevent their being
recognized or to insure unmolested escape. 20
Nocturnidad must concur with the intent and design
of the offender to capitalize on the intrinsic impunity
afforded by the darkness of night. 21 In the case at
bar, the affidavit (exh. I-1) of the accused Apduhan
shows that he and his co-malefactors took
advantage of the nighttime in the perpetration of
the offense as they waited until it was dark before
they came out of their hiding place to consummate
their criminal designs.
In his decision, the trial judge recommends to, the
President of the Republic the commutation of the
death sentence which he imposed on the accused to
527 | P a g e
life imprisonment. The Solicitor General supports
this recommendation for executive clemency.
We find no compelling reason to justify such
recommendation. Contrary to the trial judge's
observation, the accused's plea of guilty was far from
"spontaneous" and "insistent". It will be recalled that
his initial plea was one of not guilty. Later, he
changed his plea but with the persistent condition
that he be sentenced to life imprisonment, not
death. It was only after much equivocation that he
finally decided to "just" plead guilty. Because his plea
was still ambiguous, the court a quo had to reopen
the case to ascertain its real nature. Conceding,
however, that his plea was "spontaneous" and
"insistent," such manifestation of sincere repentance
cannot serve to obliterate the attendant aggravating
circumstances which patently reveal the accused's
criminal perversity.
It appears from a cursory reading of the decision
under review that the trial judge also anchored his
recommendation on the ground that there is "the
possibility that the firearm was used in order to
counteract the resistance of the deceased." This is
no justification at all for executive clemency. Firstly,
the above observation is a mere conjecture - in the
language of the presiding judge, a "possibility."
Secondly, even granting that the said observation
relates to the actual happening, to employ a firearm
in subduing the lawful resistance of innocent
persons is a criminal act by any standard.
Even as we purge the decision under review of its
errors, we must hasten to commend the trial judge,
the Hon. Hipolito Alo, for his earnest and patient
efforts to forestall the entry of an improvident plea
of guilty by the accused Apduhan, notwithstanding
that the latter was already represented by a counsel
de oficio and hence presumed to have been advised
properly. Judge Alo made sure that the accused
clearly and fully understood the seriousness of the
offense charged and the severity of the penalty
attached to it. When the accused proposed to
confess his guilt, Judge Alo repeatedly warned him
that the death penalty might be imposed despite his
plea of guilty. As aforementioned, when it appeared
that Apduhan's plea of guilty was ambiguous, Judge
Alo reopened the case to determine with
definitiveness the nature of his plea.
The virtue of Judge Alo's efforts in ascertaining
whether Apduhan pleaded guilty with full knowledge
of the significance and consequences of his act,
recommends itself to all trial judges who must
refrain from accepting with alacrity an accused's plea
of guilty, for while justice demands a speedy
administration, judges are duty bound to be extra
solicitous in seeing to it that when an accused pleads
guilty he understands fully the meaning of his plea
and the import of an inevitable conviction.
As a final commentary on the criminal conduct of the
accused herein, it must be emphasized that the
instant review was delayed for several years because
he escaped from the New Bilibid Prisons on June 17,
1963, less than six months after he was committed
to the said penitentiary. He was recommitted on July
10, 1964 with a new mittimus from the Court of First
Instance of Leyte for robbery in band in criminal case
10099, for which he was sentenced to serve a prison
term of from 8 years and 1 day to 12 years and 1 day
commencing on October 31, 1963. 22 His
recommitment was reported to this Court only on
July 5, 1966.
Notwithstanding the foregoing disquisition, for
failure to secure the required number of votes, the
penalty of death cannot be legally imposed. The
penalty next lower in degree - reclusion perpetua -
should consequently be imposed on the accused.
ACCORDINGLY, with the modification that the death
sentence imposed upon Apolonio Apduhan, Jr. by
the court a quo is reduced to reclusion perpetua, the
judgment a quo is affirmed in all other respects,
without pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal,
Zaldivar, Sanchez, Angeles and Fernando, JJ., concur.
THIRD DIVISION
G.R. No. 229829, January 22, 2018
PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee, v. ARNEL KALIPAYAN Y ANIANO, Accused-
Appellant.
DECISION
GESMUNDO, J.:
This is an appeal from the Decision1 dated July 29,
2016 of the Court of Appeals-Visayas Station (CA)
docketed as CA-G.R. CEB-CR-HC No. 01962. The CA
affirmed with modification the Judgment2 dated
November 26, 2014 of the Regional Trial
Court (RTC) of Tacloban City, Branch 34, finding
accused-appellant Arnel Kalipayan y
Aniano (accused-appellant) guilty of murder.
The Antecedents
Accused-appellant was charged with the crime of
murder under Article 248 of the Revised Penal
Code (RPC). The accusatory portion of the
information reads:
Criminal Case No. 2008-06-323
528 | P a g e
That on or about the 25th day of June 2008 in the City
of Tacloban and within the jurisdiction of this
Honorable Court the above-named accused with
intent to kill, with treachery, evident premeditation
and abuse of superior strength did then and there
wilfully [sic] and feloniously stab several times Glaiza
Molina, his former live-in partner inside her house
with the use of bladed knife hitting different parts of
the latter's body causing her some injuries thereon
resulting to her instantaneous death.
Said act is attended with the aggravating
circumstance of "dwelling."
Contrary to law.3
On September 10, 2008, accused-appellant was
arraigned and he pleaded not guilty to the
charge.4 Thereafter, trial ensued.
Evidence for the Prosecution
Prosecution witnesses testified that Glaiza
Molina (Glaiza) and accused-appellant were lovers
and they have a child. They lived with Glaiza's
grandmother Celestina Molina (Celestina) for some
time. Their living arrangements changed throughout
the years until it was agreed that Glaiza, together
with the couple's daughter, would live with Celestina
so that Glaiza can continue her studies. Glaiza and
accused-appellant's relationship took a negative turn
with the incident that occurred on June 25, 2008.5
Josephine Paraiso (Josephine), Glaiza's mother,
testified that on June 25, 2008, at around 5:45 p.m.,
she was watching television inside their house while
Celestina and Glaiza were in the kitchen preparing
their dinner. Accused-appellant entered their house
without permission, approached Glaiza, stabbed her
in the back and held her hair. Accused-appellant
then made Glaiza face him and continued stabbing
her in the abdomen. Josephine tried to stop accused-
appellant but the latter poked the knife at her,
telling her not to interfere as it was none of her
business. Josephine then ran outside the house and
asked for help. A neighbor, Dennis Alegre, tried to
stop accused-appellant but the latter was
undeterred, even when Josephine was begging him
to stop. Josephine decided to leave the house while
accused-appellant escaped. With accused-appellant
gone, Josephine went back inside their house, where
she found Glaiza still breathing. Glaiza was brought
to Remedios Trinidad Romualdez Medical
Foundation Hospital where she was declared dead
on arrival.
On cross examination, she testified that accused-
appellant entered the house through the main door.
Glaiza was about to put the pot on the stove with
her back facing accused-appellant when the latter
stabbed her using a 9 ½ inch long Rambo knife,
which they did not have in their kitchen. She likewise
said that accused-appellant and Glaiza did not have a
conversation immediately prior to the incident.
Celestina testified that she was in the kitchen with
Glaiza while the latter was trying to cook rice.
Celestina was doing something to the gas tank when
accused-appellant suddenly entered the house and
stabbed Glaiza. The latter fell to the ground but
accused-appellant continued stabbing her. Celestina
then went out of the house to seek help and she was
prevented by their neighbors to go back inside.
SPO2 Marion Lavadia testified that he was the
policeman on duty and he received the phone call
about the stabbing incident. Celestina met the police
who responded to the incident and informed them
that Glaiza was stabbed several times. They later
discovered that accused-appellant could be
somewhere in V&G Subdivision in Tacloban City.
When they saw accused-appellant, Josephine
confirmed that he was the one that stabbed Glaiza.
The police arrested accused-appellant and frisked
him, which resulted in the discovery of the knife
used against Glaiza.
The Medico-Legal Autopsy Report6 stated that the
victim Glaiza Molina (Glaiza) suffered one (1)
puncture wound on her head, eight (8) stab wounds
and one (1) puncture wound on her chest, one (1)
stab wound on her abdomen, two (2) incise wounds,
and three (3) stab wounds on her extremities.7
Evidence for the Defense
Accused-appellant presented a different account of
the incident. He claimed that he confronted Glaiza
because he believes that the latter was having an
affair with another man and the situation hurt him.
Accused-appellant and Glaiza then went to the
balcony of the house near the kitchen, where they
ended up arguing and shouting. Glaiza was angry at
him, and thereafter went to the kitchen, and he
followed her. Accused-appellant took a knife from
the sink and threatened Glaiza, causing the latter to
slap him. Accused-appellant then lost control and
started stabbing Glaiza, and he could not remember
the number of times he stabbed her. He could also
not recall what happened until he surrendered when
the police saw him at V&G Subdivision.
On cross-examination, accused-appellant stated that
he had no intention of hurting Glaiza; instead he
wanted to mend their relationship. Glaiza, however,
was cold to him. He insisted that he was not armed
when he went to Glaiza and he only found the knife
inside the house.
The RTC Ruling
In the judgment dated November 26, 2014, the RTC
529 | P a g e
found accused-appellant guilty beyond reasonable death indemnity, Php30,000.00 for funeral expenses
doubt of committing the crime of murder. On the and Php 25,000.00 as exemplary damages.
matter of the circumstance of abuse of superior
strength, it noted that Glaiza was unarmed and The herein accused Arnel Kalipayan shall be credited
stabbed numerous times and it showed that the period of his detention during the pendency of
accused-appellant abused his superior strength and this case in accordance with existing laws and
demonstrated his brutality. Nevertheless, the RTC procedures.
opined that this circumstance is absorbed in
treachery which was also present in this case. COSTS against the accused
Treachery was proven by the clear and credible
testimony of Celestina. The trial court observed that SO ORDERED.8
due to the suddenness of the attack, Glaiza was
unable to defend herself and repel the attack. On
the subject of dwelling as an aggravating
Accused-appellant appealed to the CA.
circumstance, the RTC stated that there is no
evidence showing that the crime was deliberately
The CA Ruling
and purposely intended to be inside Glaiza's house
and to cause disrespect to the sanctity of the
In its decision dated July 29, 2016, the CA denied the
dwelling.
appeal. It held that there was suddenness in the
attack, as gathered from the testimonies of the
It held, however, that the evidence presented by the prosecution, when accused-appellant swiftly
prosecution did not sufficiently show that the killing
appeared inside Glaiza's house and attacked her. The
was attended by evident premeditation. As pointed
numerous stab wounds found on Glaiza's body,
out by the court, though accused-appellant planned delivered in a sudden manner, negates the claim
to confront Glaiza, it was not tantamount to
that Glaiza might have defended herself. The CA
planning to kill Glaiza. The RTC concluded that there
likewise agreed with the RTC that there was the
was no direct or circumstantial proof demonstrated
qualifying circumstance of abuse of superior strength
by the prosecution to show that accused-appellant but the same is absorbed in the circumstance of
meditated and reflected on committing murder. The
treachery.
dispositive portion of the RTC ruling states:
The CA sustained the grant of civil indemnity and
WHEREFORE, premises considered, the herein
moral damages of P75,000.00, and the award of
accused ARNEL KALIPAYAN y Aniano is hereby found
P30,000.00 for funeral expenses and P25,000.00 as
guilty beyond reasonable doubt of the offense of
exemplary damages. The monetary award was,
MURDER and is hereby sentenced to suffer a penalty
however, modified by adding an interest of six
of Reclusion Perpetua.
percent (6%) per annum on the aggregate amount of
the monetary awards, computed from the time of
Accused Arnel Kalipayan is hereby ordered to
finality of the decision until its full payment. The CA
indemnify Josephine Paraiso, the mother of the
disposed the appeal in this wise:
victim, the amount of Php75,000.00 as moral
damages, the heirs of Glaiza Molina Php75,000.00 as
WHEREFORE, this appeal is DENIED.
The Judgment dated 26 November 2014 of Branch
34 of the Regional Trial Court of Tacloban City in
Crim. Case No. 2008-06-323 is AFFIRMED with
MODIFICATION. Appellant shall pay an interest of six
percent (6%) per annum on the aggregate amount of
the monetary awards computed from the time of
finality of this Decision until full payment.
SO ORDERED.9
Hence, this appeal.
Issue
WHETHER THE TRIAL COURT ERRED IN CONVICTING
ACCUSED-APPELLANT OF MURDER DESPITE THE
FAILURE OF THE PROSECUTION TO ESTABLISH ANY
QUALIFYING CIRCUMSTANCE.
The records of this case were forwarded by the CA
pursuant to its Resolution10 dated October 26, 2016,
which gave due course to the notice of appeal. The
Court required the parties to submit their respective
supplemental briefs. The Office of the Solicitor
General (OSG), representing the appellee People of
the Philippines, filed a Manifestation11 stating it will
not file a Supplemental Brief to avoid a repetition of
arguments already presented in its Appellee's Brief
dated January 29, 2016. Appellant likewise filed a
Manifestation in lieu of a Supplemental
Brief[12 adopting in toto the Appellant's Brief filed
before the CA.
Arguments of accused-appellant
Accused-appellant admits that he committed the
acts that eventually led to Glaiza's death. However,
he argues that the qualifying circumstances alleged
530 | P a g e
in the information were not sufficiently proven by
the prosecution. Accused-appellant points to the
nature of the attack against Glaiza, which he
characterizes as not sudden and unexpected. He
claims that there was a commotion and a heated
argument prior to the killing, which would have
allowed Glaiza to raise her guard. The weapon used
was also found in Glaiza's residence showing that the
means of execution was only adopted as a result of
an impulse prior to the killing. Thus, accused-
appellant argues that there was no treachery
proven.
Accused-appellant likewise posits that the presence
of evident premeditation is not backed by evidence,
which was acknowledged by the RTC. There was no
proof that accused-appellant decided to kill the
victim and that there was time for him to reflect
upon his decision.
Finally, accused-appellant reiterates abuse of
superior strength was also not present. He insists
that the prosecution failed to show the disparity in
age, size and strength, or force, except for the
gender of the parties. Further, there appeared no
actual difference between the body types of
accused-appellant and Glaiza that will constitute
superior strength on his part.
Accused-appellant concludes that these
circumstances negate the suddenness of the attack,
the deliberateness or conscious adoption of the
method of killing, and the existence of treachery.
Hence, he underscores that his conviction should
only be for the crime of homicide.
Arguments of appellee
Contrary to the protestations of appellant, the OSG
claims that the presence of a prior heated argument
is untrue based on the testimonies of the
prosecution witnesses. Both Josephine and Celestina
were actually surprised of his presence in their
house. The OSG also highlights that the testimonies
show that Glaiza was held by the hair and was
stabbed in the back, rendering the latter incapable of
defending herself. Not only was Glaiza unaware of
accused-appellant's presence, she was also caught
unaware of his impending attack on her.
The Court's Ruling
The appeal is unmeritorious.
It is a hornbook rule that an appeal of a criminal case
throws the entire case up for review. It becomes the
duty of the appellate court to correct any error that
may be found in the appealed judgment, whether
assigned as an error or not.13 Bound by this doctrine,
this Court will thus review not just the propriety of
appellant's conviction, but likewise the penalty and
monetary award given to the heirs of the victim.
The elements of murder were proven
beyond reasonable doubt by the
prosecution
Accused-appellant is charged with the murder of his
former girlfriend who also happened to be the
mother of his child. Art. 248 of the RPC states:
Murder. — Any person who, not falling within the
provisions of article 246 shall kill another, shall be
guilty of murder and shall be punished by reclusion
temporal in its maximum period to death, if
committed with any of the following attendant
circumstances:
5. With treachery, taking advantage
of superior strength, with the aid
of armed men, or employing
 means to weaken the defense or of
means or persons to insure or
afford impunity.
XXX
5. With evident premeditation.
XXX
Jurisprudence dictates that the elements of murder
are as follows: (a) that a person was killed; (b) that
the accused killed him; (c) that the killing was
attended by any of the qualifying circumstances
mentioned in Article 248; and (d) that the killing is
not parricide or infanticide.14
There is no need to dwell on the first two (2)
elements. Accused-appellant admitted that he
indeed stabbed Glaiza which resulted to the latter's
death. The last element also exists as Glaiza and
accused-appellant were only in a boyfriend-girlfriend
relationship at the time of the crime, albeit with a
common child, but no relationship that would be
classified as falling within the definition of parricide
or infanticide. The sole issue in this case is the
existence of a circumstance that would qualify the
killing of Glaiza to the crime of murder.
There is no question that appellate courts will not
overturn the findings of fact of the trial court unless
there is a showing that the latter overlooked facts or
circumstances of weight and substance that would
affect the result of the case. Generally, though, the
findings of the trial court, especially as to its
calibration of witnesses' testimonies and assessment
of their credibility and conclusions anchored on
these findings, are given due deference and
respect.15
531 | P a g e
As concluded by the RTC, evident premeditation is
not present in this case. This Court is in agreement
but for a different reason. The elements of evident
premeditation are: (1) a previous decision by the
accused to commit the crime; (2) an overt act or acts
manifestly indicating that the accused has clung to
his determination; and (3) a lapse of time between
the decision to commit the crime and its actual
execution enough to allow the accused to reflect
upon the consequences of his acts.16 These elements
have to be proven beyond reasonable doubt.17
Though accused-appellant went into the house in a
sudden and unexpected manner, presumably to
attack Glaiza, there is no proof beyond reasonable
doubt that he decided to do so and clung to this
amounting to evident premeditation. The Court
cannot fully subscribe to the RTC's theory that
accused-appellant planned to confront Glaiza but did
not plan to kill her. On the contrary, the evidence
shows that when he swiftly entered the house and
went straight to the kitchen, he already had a
decision to harm Glaiza. However, the element that
there was a sufficient lapse of time between the
decision to commit the crime and its actual
commission was not proven satisfactorily inasmuch
as it would qualify the killing as murder. The
testimonies and object evidence do not necessarily
yield the conclusion that he clung to the
determination to kill Glaiza. The decision to kill prior
to the moment of its execution must have been the
result of meditation, calculation, reflection or
persistent attempts.18 This aspect was not proven by
the prosecution beyond reasonable doubt and as
such, evident premeditation cannot be said to be
present here. Nevertheless, the conclusion that the
crime is still murder stays not because of the
existence of evident premeditation, but of treachery.
Treachery is present in this case
Accused-appellant's main contention is that the
qualifying circumstance of treachery was not proven
by the prosecution; hence, the crime should be
homicide, not murder.
The Court disagrees.
Based on the clear, consistent, and convincing
testimonies of Josephine and Celestina, accused-
appellant entered the house and commenced
stabbing Glaiza while the latter was preparing
dinner. Celestina was even in the same small vicinity
where the attack was committed while she was
working with the gas tank that Glaiza needed to cook
the rice.
Accused-appellant's version is belied by the
testimonies of Celestina and Josephine, who averred
that they did not notice his presence and arrival at
their home prior to the stabbing incident. Not only
was his account of the events riddled with
inconsistencies, it is also self-serving and
unsupported by any other circumstance that would
make the Court believe his story over that of
Josephine's and Celestina's.
Treachery has long been defined by this Court,
especially as to its character as a qualifying
circumstance for murder. It is a circumstance that
must be proven as indubitably as the crime itself and
constitutes two (2) elements: (1) the employment of
means of execution which gives the person attacked
no opportunity to defend or retaliate, and (2) that
said means of execution were deliberately or
consciously adopted.19
The essence of treachery is the sudden and
unexpected attack without the slightest provocation
on the part of the person being attacked.20 A swift
and unexpected attack on an unarmed victim that
insures its execution without risk to the assailant
arising from the defense of his victim is an indication
that treachery is present.21 What is decisive is that
the execution of the attack made it impossible for
the victim to defend himself or to retaliate.22 In that
sense, even attacks that occur from the front may be
considered treacherous if the attack was so sudden
and unexpected that the deceased had no time to
prepare for self-defense.23 The mode of attack must
also be consciously adopted. The accused must make
some preparation to kill the deceased in a manner as
to insure the execution of the crime or to make it
impossible or hard for the person attacked to defend
himself or retaliate. The attack, then, must not
spring from the unexpected turn of events.24
Both elements of treachery are doubtlessly
attendant here. Even in the short span of time that
Celestina turned her back to switch on the stove,
accused-appellant already managed to start his
deplorable deed. This is a sign of his conscious choice
to employ the specific means and methods to kill
Glaiza, and not the product of some sudden
emotional response. There is also no proof to show
that he and Glaiza were engaged in a heated
discussion immediately prior to the incident. On the
other hand, the courts a quo were thoroughly
convinced that accused-appellant unexpectedly
entered the house, went straight for Glaiza, and
immediately, without warning and through an
almost stealthy manner, stabbed the latter
numerous times. The circumstances are typical of a
treacherous attack constituting of murder and not
homicide.
Further, Glaiza was attacked in the back, with
accused-appellant holding her hair to prevent her
from moving. Josephine testified to this fact in this
wise:
Q: While watching TV, what if any happened?
A: While watching TV my daughter Glaiza was
532 | P a g e
preparing for our supper.
Q: And after that, what happened next?
A: At the time Arnel Kalipayan, the former live-in
partner of my daughter suddenly entered our house
having with him a bladed weapon.
Q: Upon entering your house, what if any did Arnel
Kalipayan do?
A: He suddenly entered the house without
permission and approached my daughter who was at
that time preparing for our meals stabbed her at her
back and held her hair and let my daughter faced
him and stabbed her on her stomach and the food
that she ate spilled out of her stomach.
Q: As far as you know, how many times did Arnel
Kalipayan stabbed your daughter?
A: 17 times.
Q: And while he was stabbing your daughter, what
did you do, if any?
A: I tried to stop him but he instead faced me and
poked at me the bladed weapon that he used in
stabbing my daughter and he said "do you intervene
because you have no business."25
XXX
Q: When your daughter was stabbed, what was she
doing at the time she was stabbed?
A: She was cooking.
Q: You mean she was preparing for the rice to be
cooked?
A: She was preparing to cook the rice.
Q: So, what is that, was she washing the rice to be
cooked?
A: When she was about to put the rice to be cooked
over the stove she requested my mother to open the
stove because it was leaking and at that time when
they were having a conversation with my mother
that was the time when Arnel Kalipayan entered the
house.
Q: If you know, where was your daughter hit for the
first time?
A: At her back (witness pointed to her back towards
the shoulder).
Q: Using the Interpreter, please indicate whether
your daughter was hit for the first time?
A: Here (witness indicated by touching the middle
portion of the back of the Interpreter, the spinal
column).26 (emphasis supplied)
Celestina's account of the events also shows not only
the suddenness of the attack but that accused-
appellant rendered Glaiza defenseless as well, to wit:
Q: After she requested you to open the tank, what
did you do?
A: I went near the LPG tank to open it.
Q: Were you able to open it?
A: I was not able to open it, because when I was
about to open it I saw Arnel Kalipayan already
stabbing my granddaughter.
Q: Did you notice where Arnel Kalipayan came from?
A: I just saw him inside our house already stabbing
Glaiza.
Q: What was the position of Glaiza when
she [sic] first stabbed by Arnel Kalipayan?
A: She was already lying down faced up and she was
being stabbed by Arnel.
Court: The first time you saw Arnel Kalipayan what
she was doing?
A: That's it, when I was about to open the gas, when
I turned my head to the left (witness demonstrated
by turning her head to the left) that was what I saw,
Arnel Kalipayan was already stabbing my
granddaughter Glaiza.27
Though she was asked several times28 at various
points during the course of her testimony, Celestina
did not waver in her story and remained consistent
throughout.
The Medico-Legal Autopsy Report corroborates
these statements. From what can be made out from
the said report, the following are the wounds
sustained by Glaiza:
HEAD:
- Punctured wound, right lower mandibular
region, measuring 1 x 0.5 x 1 cms AML.
CHEST:
- Stab wound, left chest, anterior at the level of
the 3rd ICS, measuring 3 x 1 x 9 cms. AML, 8 cms
in depth penetrating the left thoracic cavity
hitting the upper lobe of the left lung.
- Punctured wound, anterior chest, left,
measuring 1 x 0.5 x 2 cms AML, muscle deep,
non-penetrating.
- Stab wound, left chest, anterior portion,
measuring 3 x 1 x 12 cms AML, directed
medialwards, non-penetrating.
- Stab wound, left anterior chest, measuring 3 x 2
x 1 cms AML, 6 cms in deep, directed
posteriorwards penetrating [indiscernible]
cavity, left hitting the substance of the heart.
- Stab wound, [indiscernible] portion of the left
chest at the level of the 4th ICS, measuring
[indiscernible] x 13 cms AML, directed medially,
penetrating the left thoracic cavity hitting the
left lung and the side of the heart.
533 | P a g e
- Stab wound, right anterior chest, at the level of
the 3rd ICS, measuring 3 x 2 x 9 cms AML, 4 cms
in depth, directed posteriorwards, penetrating
the right thoracic cavity hitting the middle lobe
of the left lung.
- Stab wound, anterior chest right, at the level of
the 3rd ICS, at the level of the anterior mid
mammary line, measuring 3 x 1 x 3 cms AML,
non-penetrating.
- Stab wound, [indiscernible] posterior chest,
right at the level of the 5th ICS, measuring 1 x 1
just along the posterior median line measuring
1 x 1 cms.
- Stab wound, left posterior chest at the level of
the 5th CIS, measuring 1x 1 x 2 cms, non-
penetrating.
ABDOMEN:
- Stab WOUND, lateral left portion of the
abdomen, measuring 3 x 3 x 10 cms AML,
directed medially, penetrating the abdominal
cavity.
EXTREMITIES:
- Stab wound, right forearm, middle third,
anterior portion, measuring 3 x 1 cms.
- Incised wound, left hand, at the base portion of
the left finger, measuring 3 x 2 cms.
- Incised wound, posterior portion of the left
hand, measuring 4 x 3 cms.
- Stab wound, left thigh, anterior lower third,
measuring 4 x 2 cms.
- Stab wound, medial portion of the left thigh
measuring 1 x 1 cms. (emphasis supplied)
While many of the stab and puncture wounds were
frontally made, it is notable that Glaiza sustained
posterior wounds, which strengthens Josephine's
claim that Glaiza was first struck in the back. Given
this, and uncontroverted by convincing evidence, the
only reasonable conclusion that can be made is that
the attack was attended by treachery.
Furthermore, the above details show that Glaiza was
not expecting the attack. She was also rendered
helpless and unprotected not only by the swiftness
of the attack, but also because she was already
stabbed in the back before even becoming fully
aware that a reprehensible act was being committed
against her. From this, the first element of treachery
is demonstrated without question.
The second element of treachery is likewise
undoubtedly present. The time and place, and
manner of attack were deliberately chosen and
accused-appellant was immediately cloaked with
impunity to ensure its successful execution. The time
of the attack, at around 5:30 p.m., was a time in
which people usually prepare their supper and
households are buzzing with activity. Accused-
appellant's mode of attack, of suddenly entering the
house and going straight to where Glaiza was while
the latter was preparing food, is also clearly
indicative of his nefarious plan to attack when Glaiza
was not in a position to defend herself.
With this finding that treachery is present, the
conclusion that the circumstance of abuse of
superior strength is absorbed therein necessarily
follows. Even without a definite finding as to
whether it exists in this case or not, it is beyond cavil
that treachery, as a qualifying circumstance, absorbs
the aggravating circumstance abuse of superior
strength even though the latter was alleged in the
information.29 Thus, the circumstance of abuse of
superior strength should not be appreciated as a
separate aggravating circumstance.
Penalty and damages
As correctly held by the RTC and CA, the crime
committed by accused-appellant is murder, qualified
by treachery. However, the Court has to modify the
penalty, as well as the awarded damages, because of
the existence of the aggravating circumstance of
dwelling. This circumstance was discussed by the
RTC in this wise:
Reviewing the evidence of the prosecution, there is
no evidence to prove that Arnel had deliberately and
purposely intended to carry his evil design inside the
house of Glaiza, and to cause disrespect to the
sanctity of Glaiza's dwelling place. In fact, this Court
even eliminated the presence of evident
premeditation as an attendant qualifying
circumstance.30
Notably, the aggravating circumstance of dwelling
need not be "deliberately and purposely intended"
by an accused for it to be appreciated. Rather, it
aggravates the felony when the crime was
committed in the residence of the offended party
and the latter did not give any provocation. It is
considered an aggravating circumstance primarily
534 | P a g e
because of the sanctity of privacy accorded to the
human abode. Repeated across many cases are
these lines: "[o]ne's dwelling is a sanctuary worthy of
respect thus one who slanders another in the latter's
house is more severely punished than one who
offends him elsewhere. According to Cuello Calon,
the commission of the crime in another's dwelling
shows worse perversity and produces graver
harm."31 He who goes to another's house to hurt him
or do him wrong is more guilty than he who offends
him elsewhere.32
As pointed out earlier, Glaiza was only preparing
dinner in the sanctity of her home when the attack
happened. There was no prior incident that would
give rise to accused-appellant's sudden actions.
Clearly, there was no provocation that would exempt
this case from being aggravated by the circumstance
of dwelling. There is also no question that Glaiza was
living in the same house where the crime was
committed. Therefore, the penalty imposed upon
accused-appellant should be that for an aggravated
crime, the higher of the two (2) indivisible penalties,
which is death in this case. However, pursuant to
Republic Act No. 934633 , the penalty of reclusion
perpetua shall be imposed, with no eligibility for
parole. Not only that, the amount of the civil
indemnity, moral and exemplary damages have to be
modified accordingly. The case of People v.
Jugueta34 laid down the amounts that should be
awarded to the victims of some particular crimes.
For the crime of murder, punished by death but
reduced to reclusion perpetua without eligibility for
parole because of Republic Act No. 9346, the heirs of
Glaiza should be awarded the amount of
P100,000.00 as civil indemnity, P100,000.00 as moral
damages, and P100,000.00 as exemplary damages.
The award of funeral expenses claimed by Josephine
is sustained.
WHEREFORE, the appeal is DISMISSED. The July 29,
2016 Decision of the Court of Appeals-Visayas
Station in CA-GR CEB-CR-HC No. 01962 is AFFIRMED
with MODIFICATION that accused-appellant Arnel
Kalipayan y Aniano is found GUILTY beyond
reasonable doubt of murder and sentenced to suffer
the penalty of reclusion perpetua without eligibility
for parole. He is ordered to pay the heirs of Glaiza
Molina P100,000.00 as civil indemnity, P100,000.00
as moral damages, and P100,000.00 as exemplary
damages. All the other monetary awards ordered by
the RTC are sustained. Appellant shall pay an interest
of six percent (6%) per annum on the aggregate
amount of the monetary awards computed from the
time of finality of this Decision until full payment.
SO ORDERED.
Velasco, Jr., (Chairperson), Bersamin, and Leonen,
JJ., concur.
Martires, J., on leave.
N BANC
[G.R. NO. 149368. April 14, 2004]
PEOPLE OF THE PHILIPPINES, Appellee, v. FRANCISCO
DACILLO aliasDODOY AND JOSELITO PACOT y IBARRA
(case provisionally dismissed), Accused,
FRANCISCO DACILLO aliasDODOY, Appellant.
DECISION
CORONA, J.:
Before us on automatic review is the decision 1 of the
Regional Trial Court of Davao City, Branch 31, in
Criminal Case No. 45,283-2000 convicting appellant
Francisco Dacillo y Timtim aliasDodoy of the crime of
murder and sentencing him to suffer the penalty of
death.
Appellant Dacillo together with Joselito Pacot y
Ibarra were indicted for murder in an information
that read:chanroblesvirtua1awlibrary
The undersigned accuses the above-named accused
of the crime of Murder, under Art. 248 of the
Revised Penal Code, as amended by R. A. 7659,
committed as follows:chanroblesvirtua1awlibrary
That on or about February 6, 2000, in the City of
Davao, Philippines, and within the jurisdiction of this
Honorable Court, the above-mentioned accused,
conspiring, confederating together and helping one
another, with treachery and evident premeditation,
and with intent to kill, willfully, unlawfully and
feloniously attacked, assaulted and stabbed one
Rosemarie B. Tallada with a bladed weapon, thereby
inflicting upon the latter mortal wounds which
caused her death.
That the commission of the foregoing offense was
attended by the aggravating circumstance of abuse
of superior strength.
CONTRARY TO LAW.2 cralawred
The case against appellants co-accused, Joselito
Pacot, was provisionally dismissed for lack of
sufficient evidence to identify him with certainty.
Appellant was arraigned on February 21, 2001 and,
assisted by counsel, pleaded not guilty. Pre-trial was
conducted on March 1, 2001 and trial ensued
thereafter.
To establish appellants guilt, the prosecution
presented the following witnesses: Charlita Tallada,
535 | P a g e
the victims mother; Patricia Turlao, the victims aunt;
appellant Dacillos neighbors, Jovelyn Dagmil,
Augusto Cesar Arara, Roche Abregon, Resna
Abregon, Allan Castanares, Jupiter Campaner; police
officers SPO2 Rodolfo Taburda and SPO1 Avelino
Alcobus, and medico-legal officer Dr. Danilo P.
Ledesma.
The facts, as established by the prosecution
witnesses collective testimonies, follow.
The victim, seventeen-year-old Rosemarie B. Tallada,
was last seen alive at dusk on February 6, 2000, on
the bridge near appellants house at Purok No. 3,
New Society Village, Ilang, Davao City.
Around 7:45 p. m. that evening, witness Jovelyn
Dagmil, who was living with her aunt in the house
adjacent to appellants, was looking for her cousin
when she saw the victim Rosemarie on the bridge.
Because it was drizzling, she invited Rosemarie inside
their house but the latter declined and told her she
was waiting for someone.3 cralawred
After a while, Jovelyn heard a man inside appellants
house calling Psst, psst. .. Thinking the call was
meant for her, she turned but instead saw
Rosemarie walking towards and entering appellants
house.4 cralawred
Not long after Rosemarie went inside the house, a
struggle was heard therein. Witnesses Roche and
Resna Abregon, who were in the adjacent house
singing with a karaoke machine, suddenly felt the
floor shaking as if a scuffle was going on at the other
side of the wall. The houses were built on stilts
above the seashore, adjoining one another with
mere wooden partitions in between. Roche Abregon
peeped through a hole on the wall and saw appellant
and another man grappling with a woman who was
gagged with a handkerchief.5 When Roche saw
appellant choking the woman, she informed her aunt
about the commotion in appellants house but the
aunt brushed it aside as a simple family quarrel. 6 For
a while they heard the sound of a woman being
beaten up. Then everything became quiet. Later that
evening, they saw appellant leaving his
house.7 cralawred
The following day, February 7, 2000, at around 8:00
a. m., appellant was seen entering his house carrying
lumber and screen.8 He was observed going in and
out of his house several times, each time carefully
locking the gate as he left.9 At around 9:00 a. m.,
appellant was seen with ready-mixed cement in a
plastic pail and, when asked what he was going to do
with the cement, replied that it was for the sink he
was constructing.10 cralawred
Later, appellant entrusted a bag of womans personal
belongings to barangay tanodAllan Castaares and
told the latter that it belonged to his woman
companion. He allegedly could not bring it home
because his wife might see them.11 cralawred
By February 11, 2000, neighbors started smelling the
rotten odor of Rosemaries already decomposing
body.12 cralawred
At 5:00 p. m. the same day, witnesses Roche, Resna,
and Rachel were gathering seashells under
appellants house when they saw droplets of blood
and pus dripping from appellants comfort room.
They immediately reported it to their aunt who in
turn instructed her husband to get a stick and poke
the sacks covering the comfort room. However, the
husband instead climbed up the house and was
greeted by the stink emanating from the corner
where he saw a tomb-like structure. They
immediately reported the matter
to barangayofficials who called the
police.13 cralawred
At about 10:00 p. m., policemen arrived at
appellants house, accompanied by his wife, and
forcibly opened the lock. They proceeded to where
the tomb was located.
When cracked open, the tomb revealed the
decomposing body of a woman.14 cralawred
The corpse was brought to the Rivera Funeral Parlor
where it was identified by the victims mother
Charlita Tallada and aunt Patricia Turlao as that of
Rosemarie, through the keloid scar on her forearm.
Dr. Danilo Ledesma conducted an autopsy on
Rosemaries remains. His necropsy report revealed
that Rosemarie died from a stab wound in the
abdomen. The report further disclosed that she
suffered contusions in the anterior chest wall and
her right hand; an incised wound on her left middle
finger; a stab wound on the left side of the face and
fractures on the 2nd, 3rd, 4th, 5th, 6thand 7thribs on her
side.15 cralawred
Dr. Ledesma testified that the wounds suffered by
Rosemarie indicated that she put up a struggle and
the wounds were inflicted before her
death.16 cralawred
In his defense, appellant admitted complicity in the
crime but minimized his participation. Appellant
alleged that he only held down Rosemaries legs to
prevent her from struggling and, after the latter was
killed by another man he identified as Joselito Pacot,
he encased the corpse in cement.
He claimed that Pacot, a co-worker at Davao Union
Cement Corporation (DUCC), was looking for a house
where he and his girlfriend Rosemarie could spend
the night. He offered his brothers house which was
under his care. In the evening of February 6, 2000,
he and Joselito Pacot brought Rosemarie to the
536 | P a g e
house at Purok No. 3, New Society Village, Ilang,
Davao City.
After accompanying the couple there, he went home
to take supper. Later that evening, he returned to
the house with the bottle of Sprite Pacot had
ordered. When he arrived, Pacot and Rosemarie
were already grappling with each other and Pacot
was strangling the girl. He told Pacot to stop but
instead of heeding him, the latter ordered him to
close the door. Pacot told appellant that he was
going to be implicated just the same so he closed the
door as ordered and helped Pacot (hold) the feet of
the woman as her feet kept hitting the
walls.17 cralawred
The two men stopped only when Rosemarie was
already motionless. Pacot wanted to dump the body
into the sea but appellant told him it was low tide.
Appellant then suggested that they entomb the body
in cement for which Pacot gave appellant P500.
Pacot left the house at dawn the following day,
February 7, 2000. At past 10:00 a. m., appellant
brought the concrete mixture and cast the dead
body in cement. After finishing the job in the
afternoon of that day, appellant reported for work at
DUCC.
When the body was discovered in the evening of
February 11, 2000, appellant immediately left for
Cebu City, arriving there the next day, February 12,
2000. He stayed in Cebu City until his arrest the
following year.
On May 31, 2001, the trial court rendered judgment
finding appellant guilty of murder and imposed upon
him the supreme penalty of
death:chanroblesvirtua1awlibrary
WHEREFORE, this Court finds the accused Francisco
Dacillo GUILTY beyond reasonable doubt of the
crime of MURDER for the death of Rosemarie
Tallada, as defined and penalized under Art. 248 of
the Revised Penal Code, as amended. Considering
the aggravating circumstance of recidivism with no
mitigating circumstance to offset the same, he is
hereby sentenced to the extreme penalty of DEATH,
He is further ordered to indemnify the heirs of the
offended party in the amount of P50,000. 00, plus
the sum of P50,000. 00 as moral damages, and the
sum of P50,000. 00 as exemplary damages.
His immediate confinement to the national
penitentiary is hereby ordered.
Costs de oficio.
SO ORDERED.18 cralawred
Thus, this automatic review.
In his brief, appellant raises the following errors
allegedly committed by the trial court:
I
THE COURT A QUOGRAVELY ERRED IN FINDING THE
APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
THE CRIME OF MURDER.
II
THE COURT A QUOGRAVELY ERRED IN AWARDING
THE HEIRS OF THE OFFENDED PARTY THE AMOUNT
OF PHP50,000. 00, WHICH APPEARS AS PAYMENT
FOR ACTUAL DAMAGES.19 cralawred
Appellant admitted that he had a hand in the killing
of Rosemarie but attempted to downgrade his
participation in the crime by claiming he only held
Rosemaries legs as Pacot was strangulating her. The
rule is that any admission made by a party in the
course of the proceedings in the same case does not
require proof to hold him liable therefor. Such
admission may be contradicted only by showing that
it was made through palpable mistake or no such
admission was in fact made. There was never any
such disclaimer by appellant.
Moreover, despite appellants self-serving,
exculpatory statement limiting his involvement in
the crime, all circumstances pointed to his guilt. His
declaration faltered in the face of the testimonies of
eyewitnesses positively identifying him as one of the
two men who were with Rosemarie when she was
killed. Witness Roche Abregon pointed to appellant
as the one who strangled Rosemarie. He was
established to be inside the house at the time the
witnesses heard a woman being battered. Thus,
assuming for the sake of argument that Pacot was
the mastermind, appellants admission that he
participated in its commission by holding Rosemaries
legs made him a principal by direct participation.
Two or more persons taking part in the commission
of a crime are considered principals by direct
participation if the following requisites are present:
1. they participatedin the criminal resolution and
2. they carried out their plan and personally took
partin its execution by acts which directly tended to
the same end.20 cralawred
Both requisites were met in this case. Two or more
persons are said to have participated in the criminal
resolution when they were in conspiracy at the time
of the commission of the crime. To establish
537 | P a g e
conspiracy, it is not essential that there be proof of
the previous agreement and decision to commit the
crime, it being sufficient that the malefactors acted
in concert pursuant to the same
objective.21 cralawred
The prosecution was able to prove appellants
participation in the criminal resolve by his own
admission that, right after he was told by Pacot to
close the door, he held down Rosemaries legs. He
was pinpointed as the one who throttled the victim.
He admitted that they only stopped when they were
sure that Rosemarie was already dead. The two men
planned how to dispose of the victims body; it was in
fact appellants idea to pour concrete on the body,
prevailing over Pacots suggestion to just dump the
body into the sea. It was appellant himself who
encased the body in cement and made sure that
there were no leaks from which foul odor could
emanate. He was a conspirator in the killing and,
whether or not he himself did the strangling or the
stabbing, he was also liable for the acts of the other
accused.
It is well-settled that a person may be convictedfor
the criminal act of another where, between them,
there is conspiracy or unity of purpose and intention
in the commission of the crime
charged.22 Conspiracy need not be proved by direct
evidence of prior agreement on the commission of
the crime as the same can be inferred from the
conduct of the accused before, during, and after the
commission of the crime showing that they acted in
unison with each other pursuant to a common
purpose or design.23 cralawred
We are convinced beyond doubt of the joint and
concerted effort between appellant and the man he
identified as Pacot in the killing of Rosemarie.
Appellant likewise contends that the trial court erred
in ruling that the presence of the aggravating
circumstance of abuse of superior strength qualified
the killing to murder. He contends that the qualifying
circumstance of abuse of superior strength was not
specifically alleged in the information. Nothing can
be farther from the truth. A cursory reading of the
information reveals that appellant was sufficiently
informed of the charges against him, including the
use of superior strength in killing the hapless and
defenseless female victim.
The aggravating circumstance of abuse of superior
strength necessitates a showing of the relative
disparity in the physical characteristics of the
aggressor and the victim such as age, gender,
physical size and strength. We agree with the trial
court that the killing of Rosemarie was committed
with abuse of superior strength. As found by the
court a quo, two grown-up men against a young
fragile woman whose ability to defend herself had
been effectively restrained revealed a shocking
inequality of physical strength. The victim was much
weaker in constitution and could not have possibly
defended herself from her stronger assailants.24 Such
disparity was manifest in the contusions in the chest
and hands, wounds on the fingers, a stab wound on
the left side of the face and multiple fractures in the
ribs of the victim.25 The abuse of superior strength
was obvious in the way Rosemarie was mercilessly
beaten to a pulp.
The killing of Rosemarie was thus correctly qualified
to murder by the abuse of superior strength, a
circumstance specifically pleaded in the information
and proved beyond reasonable doubt.
The Court, however, finds that the trial court erred in
imposing the death penalty on the ground that
appellant admitted during re-cross examination that
he had a prior conviction for the death of his former
live-in partner. The fact that appellant was a
recidivist was appreciated by the trial court as a
generic aggravating circumstance which increased
the imposable penalty from reclusion perpetuato
death.
In order to appreciate recidivism as an aggravating
circumstance, it is necessary to allege it in the
information and to attach certified true copies of the
sentences previously meted out to the
accused.26 This is in accord with Rule 110, Section 8
of the Revised Rules of Criminal Procedure which
states:chanroblesvirtua1awlibrary
SEC. 8. Designation of the offense. - The complaint or
information shall state the designation of the offense
given by the statute, aver the acts or omissions
constituting the offense, and specify its qualifying
and aggravating circumstances. If there is no
designation of the offense, reference shall be made
to the section or subsection of the statute punishing
it. (Emphasis supplied)cralawlibrary
The aggravating circumstance of recidivism was not
alleged in the information and therefore cannot be
appreciated against appellant. Hence the imposable
penalty should be reduced toreclusion perpetua.
Regarding the award of P50,000 as civil indemnity to
the heirs of the victim, appellant claims that said
amount was awarded by the trial court as payment
for actual damages. This claim is misleading. As aptly
pointed out by the Solicitor General, the amount was
granted by the trial court by way of indemnity ex
delictoto compensate for the death of the victim
which prevailing jurisprudence fixes
at P50,000.27 The award of such indemnity requires
no proof other than the death of the victim and the
accuseds responsibility therefor.28 cralawred
538 | P a g e
The award of P50,000 as moral damages is proper,
supported as it was by the testimony of Charlita
Tallada, the victims mother, that Rosemaries death
caused her immeasurable pain.29 cralawred
In addition, the Court awards P25,000 in temperate
damages, said amount being awarded in homicide or
murder cases when no evidence of burial and funeral
expenses is presented in the trial court.30 cralawred
With regard to the award of exemplary damages, the
Civil Code of the Philippines
provides:chanroblesvirtua1awlibrary
ART. 2229. Exemplary or corrective damages are
imposed, by way of example of correction for the
public good, in addition to the moral, temperate,
liquidated or compensatory damages.
ART. 2230. In criminal offenses, exemplary damages
as a part of the civil liability may be imposed when
the crime was committed with one or more
aggravating circumstances. Such damages are
separate and distinct from fines and shall be paid to
the offended party.
In People v. Catubig ,31 we explained
that:chanroblesvirtua1awlibrary
The term aggravating circumstances used by the Civil
Code, the law not having specified otherwise, is to
be understood in its broad or generic sense. The
commission of an offense has a two-pronged effect,
one on the public as it breaches the social order and
the other upon the private victim as it causes
personal sufferings, each of which is addressed by,
respectively, the prescription of heavier punishment
for the accused and by an award of additional
damages to the victim. The increase of the penalty or
a shift to a graver felony underscores the
exacerbation of the offense by the attendance of
aggravating circumstances, whether ordinary or
qualifying, in its commission. Unlike the criminal
liability which is basically a State concern, the award
of damages, however, is likewise, if not primarily,
intended for the offended party who suffers thereby.
It would make little sense for an award of exemplary
damages to be due the private offended party when
the aggravating circumstance is ordinary but to be
withheld when it is qualifying. Withal, the ordinary
or qualifying nature of an aggravating circumstance
is a distinction that should only be of consequence to
the criminal, rather than to the civil, liability of the
offender. In fine, relative to the civil aspect of the
case, an aggravating circumstance, whether ordinary
or qualifying, should entitle the offended party to an
award of exemplary damages within the unbridled
meaning of Article 2230 of the Civil Code.
Thus, the award of exemplary damages is warranted
under Art. 2230 of the Civil Code in view of the
presence of the aggravating circumstance of abuse
of superior strength. Imposition of exemplary
damages is also justified under Art. 2229 of the Civil
Code in order to set an example for the public
good.32 For this purpose, we believe that the amount
of P25,000 may be appropriately awarded.
WHEREFORE, the assailed judgment in Criminal Case
No. 45,283-2000 of the Regional Trial Court of Davao
City, Branch 31, is hereby AFFIRMED with
MODIFICATION. Appellant Francisco Dacillo y
Timtim aliasDodoy is declared guilty beyond
reasonable doubt of murder as defined and
penalized under Article 248 of the Revised Penal
Code. There being neither aggravating nor mitigating
circumstances, appellant is hereby sentenced
to reclusion perpetuaand is further ordered to
indemnify the heirs of Rosemarie Tallada the sum
ofP50,000 as civil indemnity, P50,000 as moral
damages,P25,000 as temperate damages
and P25,000 as exemplary damages.
Costs de oficio.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 93436 March 24, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MELCHOR REAL y BARTOLAY, accused-appellant.
QUIASON, J.:
This is an appeal from the decision of the Regional
Trial Court, Branch 44, Masbate, Masbate, in
Criminal Case No. 1606 finding appellant guilty of
murder.
We affirm with modification, the appealed decision.
I After trial, the court convicted appellant and
The information against appellant reads as follows:
That on or about March 11, 1978,
in the morning thereof, at the
Poblacion of the Municipality of
Aroroy, Province of Masbate,
Philippines, within the jurisdiction
of this Court, the said accused with
539 | P a g e
intent to kill, evident
premeditation and treachery, did
then and there willfully, unlawfully,
feloniously and criminally attack,
assault and hack with a sharp bolo
one Edgardo Corpus y Rapsing,
hitting the latter on the nape,
causing an injury which caused the
death of the said Edgardo Corpus y
Rapsing several days thereafter.
That the accused is a recidivist
having been convicted by the
Municipal Court of Aroroy, in the
following cases:
Crime Date of Conviction
1. Ill treatment
by Deed — July 6,
1965
2. Grave Threats
— November 25,
1968
(Rollo, p. 14).
Upon being arraigned, appellant pleaded not guilty.
sentenced him to suffer the penalty of reclusion
perpetua and to pay the heirs of the victim the sum
of P30,000.00 and costs.
Hence, this appeal.
II
At about 9:00 A.M. on March 17, 1978, in the public
market of Aroroy, Masbate, appellant and Edgardo
Corpus, both vendors, engaged in a heated
argument over the right to use the market table to
display their fish.
Moreno de la Rosa, the Municipal Mayor, who
happened to be at the public market, tried to pacify
them, saying that they were arguing over trivial
matters.
The two protagonists momentarily kept their peace
but after awhile Corpus raised his voice again and
said something to appellant. The latter, in a soft
voice, uttered "SOBRA NA INA NA IMO
PAGDAOGDAOG" (You are being too oppressive).
When Corpus kept on walking to and fro near the
disputed fish table, appellant started to sharpen his
bolo while murmuring to himself. Once Corpus
turned around with his back towards appellant, the
latter hacked him on the nape. The blow caused
Corpus to collapse. He was rushed to a medical
clinic. When asked by his wife as to who hacked him,
he answered "Melchor Real."
A police investigator went to the clinic to take the
dying declaration of Corpus, who said that it was
appellant who stabbed him. Corpus died two days
later.
Appellant admitted hacking Corpus but claimed that
he did so out of humiliation and anger when the
victim threw his fish in the presence of so many
people.
He testified as follows:
Q. When Edgardo
Corpus was
 lambasting you in hacked him on The suddenness of the attack does not, by itself,
the presence of his neck? suffice to support a finding of alevosia where the
the public, what decision to attack was made peremptorily and the
did you do, how A. Yes, sir ( TSN, victim's helpless position was accidental (People v.
did you feel? July 9, 1986, pp. Ardisa, 55 SCRA 245 [1974]).
6-8; Emphasis
A. I got angry. supplied). Appellant also claims that he is entitled to two
mitigating circumstances: namely, vindication of a
Q. And what did III grave offense and passion and obfuscation. The
you do? peculiarity of these two mitigating circumstances is
Before us, appellant argues that the crime that they cannot be applied at the same time if they
A. So I hacked committed was only homicide and not murder and arise from the same facts or motive.
him. that he is entitled to two mitigating circumstances:
namely, passion and obfuscation and vindication of a If appellant attacked his victim in the proximate
Q. Was he hit? grave offense. vindication of a grave offense, he cannot successfully
claim in the same breath that he was also blinded by
We agree with appellant that the offense committed passion and obfuscation. At most, only one of two
A. Yes, Sir.
was homicide. He is entitled to the benefit of the circumstances could be considered in favor of
doubt as to whether he acted with alevosia when he appellant (People v. Yaon, Court of Appeals, 43 O.G.
Q. In what part of
attacked the victim. As a rule, a sudden attack by the 4142 cited in I Reyes, Revised Penal Code [1981]).
his body was he
hit? assailant, whether frontally or from behind, is
treachery if such mode of attack was cooly and The act of the victim in berating and humiliating
deliberately adopted by him with the purpose of appellant was enough to produce passion and
A. At the right
depriving the victim of a chance to either fight or obfuscation, considering that the incident happened
neck.
retreat. The rule does not apply, however, where the in a market place within full view and within hearing
attack was not preconceived and deliberately distance of many people.
Q. Did you admit
adopted but was just triggered by the sudden
to the authorities
infuriation on the part of the accused because of the The trial court held, and the Solicitor General agreed,
that it was you
provocative act of the victim (People v. Aguiluz, 207 that the attendant aggravating circumstance
who hacked
SCRA 187 [1992]). This is more so, where the assault was reiteracion and not reincidencia as alleged in the
Edgardo Corpus?
upon the victim was preceded by a heated exchange information. The trial court and the Solicitor General
of words between him and the accused (People v. are in error.
A. Yes, sir. Rillorta, 180 SCRA 102 [1989]). In the case at bench,
the assault came in the course of an altercation and According to the information charging appellant of
On cross-examination, he again admitted his guilt. after appellant had sharpened his bolo in full view of murder and the evidence, the accused was
the victim. Appellant's act of sharpening his bolo can previously convicted of ill-treatment by deed on July
Q. And when this be interpreted as an attempt to frighten the victim 6, 1965 and grave threats on November 25, 1968.
Edgardo Corpus so the latter would leave him alone. It was simply
turn (sic) his foolhardy for the victim to continue walking to and In recidivism or reincidencia, the offender shall have
back, you fro near appellant in a taunting manner while the been previously convicted by final judgment of
immediately latter was sharpening his bolo. another crime embraced in the same title of the
540 | P a g e
Revised Penal Code (Revised Penal Code, Art. 14[g]). WHEREFORE, the judgment of the trial court is additional penalty of six years and one day of prision
In reiteracion, the offender shall have been punished AFFIRMED with the MODIFICATION that appellant is mayor for habitual delinquency. He alone appealed
previously for an offense to which the law attaches convicted of the crime of homicide and sentenced to to this Court.chanroblesvirtualawlibrary chanrobles
an equal or greater penalty or for two or more an indeterminate penalty of TEN (10) YEARS virtual law library
crimes to which it attaches a lighter penalty (Revised of prision mayor as minimum to SEVENTEEN (17)
Penal Code, Art. 14[10]). Unlike in reincidencia, the YEARS and FOUR (4) MONTHS of reclusion The only question raised by the appellant is the
offender in reiteracion commits a crime different in temporal as maximum. The indemnity to be paid to correctness of the additional penalty. The pertinent
kind from that for which he was previously tried and the heirs of the victim is increased to P50,000.00. allegation of the information is that the accused
convicted (Guevarra, Penal Sciences and Philippine Faustino Tolentino y de Dios is a habitual delinquent,
Criminal Law 129 [1974]). SO ORDERED. he having been convicted of the crimes of theft
and estafa by final judgments rendered by
Appellant was previously convicted of ill-treatment Padilla, Davide, Jr., Bellosillo and Kapunan, JJ., competent court, as follows:
by deed (Revised Penal Code, Art. 266, Title Eight) concur.
and grave threats (Revised Penal Code, Art. 282, Title Date of Date of Crime Sentence Date of
Nine). He was convicted of homicide in the instant commission sentence release
EN BANC
criminal case (Revised Penal Code, Art. 249, Title 10-13-25 Qualified 6 months and 3-18-26
Eight). Inasmuch as homicide and ill-treatment by theft, P3 indemnity
deed fall under Title Eight, the aggravating G.R. No. L-48740 August 5, 1942
MCDE-
circumstance to be appreciated against him is 16887
recidivism under Article 14[g] rather THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs. FAUSTINO TOLENTINO Y DE DIOS and LUISA 10-29-26 10-30-26 Theft, 3 months and 1 1-20-27
than reiteracion under Article 14(10) of the Revised
CORPUZ Y QUITONG, defendants. NCDE - day
Penal Code.
FAUSTINO TOLENTINO Y DE DIOS, Appellant. 42165
8-1-27 8-1-27 Qualified 6 months 1 day 8-10-30
There is no reiteracion because that circumstance
Crispin Oben for appellant. theft, and P15
requires that the previous offenses should not be
Assistant Solicitor-General Enriquez and Solicitor NCDE- indemnity
embraced in the same title of the Code. While grave
Kapunan, Jr. for appellee. 57895
threats fall in title (Title Nine) different from
homicide (Title Eight), still reiteracion cannot be 9-14-35 9-30-35 Estafa, 2 months 1
appreciated because such aggravating circumstance OZAETA, J.: CFID- day arresto
requires that if there is only one prior offense, that 50973 mayor, to
offense must be punishable by an equal or greater In the municipal court of Manila, where this action return the
penalty than the one for which the accused has been was commenced, as well as in the Court of First bicycle stolen
convicted. Likewise, the prosecution has to prove Instance, to which it was appealed, both of the or its value P40,
that the offender has been punished for the previous above-named defendants pleaded guilty to the and additional
offense. There is no evidence presented by the charge of theft of seven shirts valued at P14 penalty of 2
prosecution to that effect. belonging to one Cosme Famorca. Both being, years 4 months
recidivists, were sentenced in the Court of First 21 days
Instance to suffer two months and one day of prision
Appellant is convicted of homicide, appreciating in
his favor the mitigating circumstance of passion and of arresto mayor and to pay the corresponding civil correccional,
indemnity to the offended party. Faustino Tolentino and costs.
obfuscation, which is offset by the aggravating
circumstance of recidivism. y de Dios was further sentenced to suffer an

541 | P a g e
The trial court sentenced the appellant under
paragraph 5 ( b) of article 62 of the Revised Penal
Code, as if this were only his fourth and not his fifth
conviction. The Solicitor General recommends the
affirmance of that sentence, on the theory that
appellant's fourth previous conviction alleged in the
information should bee disregarded because the
date of his release in connection therewith was not
shown. On the other hand counsel for the appellant,
on the basis of the trial court's implied finding that
this is appellant's fourth conviction, contends that
appellant should be sentenced under paragraph 5
( a) of article 62, as if the present were only his third
conviction, on the ground that the first conviction
should be taken circumstance and should be
disregarded as an element of habitual,
delinquency.chanroblesvirtualawlibrary chanrobles
virtual law library
We cannot uphold appellant's contention. Under his
theory an accused cannot be sentenced for habitual
delinquency unless he has had at least three
previous convictions, because the first conviction has
to be taken only as an aggravating circumstance and
has to be disregarded for the purpose of determining
habitual delinquency. That, we think, would be
unwarranted interpretation of the Habitual
Delinquency Law (paragraph 5 of article 62 of the
Revised Penal Code), which reads as follows:
5. Habitual delinquency shall have the following
effects:chanrobles virtual law library
(a) Upon a third conviction the culprit shall be
sentenced to the penalty provided by law for the last
crime of which he be found guilty and to the
additional penalty of prision correccional in its
medium and maximum periods:chanrobles virtual
law library
542 | P a g e
(b) Upon a fourth conviction the culprit shall be
sentenced to the penalty provided for the last crime
of which he be found guilty and to the additional
penalty of prision mayor in its minimum and medium
period; andchanrobles virtual law library
(c) Upon fifth or additional conviction, the culprit
shall be sentenced to the penalty provided for the
last crime of which he be found guilty a guilty to the
additional penalty of prision mayor in its maximum
period to the reclusion temporal in its minimum
period.chanroblesvirtualawlibrary chanrobles virtual
law library
Notwithstanding the provisions of this article, the
total of the penalties to be imposed upon the
offender in conformity herewith, shall in no case
exceed 30
years.chanroblesvirtualawlibrary chanrobles virtual
law library
For the purposes of this article, a person shall be
deemed to be habitual delinquent if within a period
of ten years from the date of his release or last
conviction of the crimes of robo, hurto, estafa,
or falsificacion, he is found guilty of any of said
crimes a third time or oftener.
A habitual delinquent is necessarily a recidivist, and
in imposing the principal penalty upon him the
aggravating circumstance of recidivism has to be
taken into account. In fixing the penalty provided by
law for the last crime " as required in paragraph 5
( a) ( b), and ( c) of article 62 of the Revised Penal
Code, the court cannot disregard articles 14 (9) and
Revised Penal Code, which respectively define
recidivism as an aggravating circumstance and lay
down the rule for the application of aggravating and
mitigating circumstances. We reaffirm the holding of
this Court in People vs. Melendez, 59 Phil.,
154; People vs. Espina, 62 Phil., 607; and the People
vs. De Jesus, 63 Phil., 760, as a correct interpretation
of the Habitual Delinquency Law. However, for the
purpose of fixing the additional penalty, recidivism
cannot be taken as an aggravating circumstance for
the reason it is inherent in habitual delinquency
(People vs. de
Jesus, supra).chanroblesvirtualawlibrary chanrobles
virtual law library
Neither can we accept the recommendation for
affirmance made by the Solicitor General on the
theory that the present is appellant's fourth
conviction. We cannot disregard his previous fourth
conviction alleged in the information solely because
the date of his release in connection therewith has
not been shown. It appearing that he was sentenced
for the fourth time on September 30, 1935, to suffer
two months and done day of arresto mayor plus an
additional penalty of two years, four months, and
twenty-one days of prision correctional, we can
readily see that he must have been released in
connection therewith less than ten years previous to
August 13, 1941, the date of the commission of the
offense complained of in the present case. The stand
taken by the trial court and the Solicitor General is
untenable because if appellant's fourth previous
conviction be disregarded, he could not be
sentenced to any additional penalty as a habitual
delinquent, his previous third conviction and release
having taken place more than ten years prior to
August 13,
1941.chanroblesvirtualawlibrary chanrobles virtual
law library
It results that this is appellant's fifth conviction, and
accordingly, he must be sentenced under paragraph
5 ( c) of article 62 to the additional penalty of prision
mayor in its maximum period to reclusion
temporal in its minimum period. This penalty must
be imposed in its minimum degree because of the
mitigating circumstance of plea of
guilty.chanroblesvirtualawlibrary chanrobles virtual
law library
Wherefore, with the modification that the appellant
Faustino Tolentino y de Dios shall suffer an
additional penalty of ten years and one day of prision
mayor, the sentence appealed from is affirmed, with
costs. So
ordered.chanroblesvirtualawlibrary chanrobles
virtual law library
Yulo, C.J., Paras and Moran, JJ., concur.
Separate Opinions chanrobles virtual law library
BOCOBO, J., dissenting:chanrobles virtual law library
I am constrained to dissent from the majority
opinion which, upon the fifth conviction of the
accused, considers recidivism as an aggravating
circumstance in fixing the principal penalty, despite
the fact that, in imposing the additional penalty for
habitual delinquency, previous conviction is also
counted. In this case, none of the conviction prior to
the fifth should be deemed an aggravating
circumstance of recidivism in fixing the principal
penalty, which should therefore be arresto mayor in
its minimum degree, or one month and one day, in
view of the plea of
guilty.chanroblesvirtualawlibrary chanrobles virtual
law library
Article 14 paragraph 9 and 10 of the Revised Penal
Code provides as follows:
ART. 1. Aggravating circumstances. - The following
are aggravating circumstances:
543 | P a g e
xxx xxx x x xchanrobles virtual law
library
9. The accused is a
recivist.chanroblesvirtualawlibrary chanrobles virtual
law library
A recidivist is one who, at the time of his trial for one
crime, shall have been previously convicted by final
judgment of another crime embraced in the same
title of this
Code.chanroblesvirtualawlibrary chanrobles virtual
law library
10. That the offender has been previously punished
for an offense to which the law attaches an equal or
greater penalty or for two or more crimes to which it
attaches a lighter penalty.
and Article 62, paragraph 5 of the same Code reads:
ART. 62. Effect of the attendance of mitigating or
aggravating circumstances and of habitual
delinquency. - Mitigating or aggravating
circumstances and habitual delinquency shall be
taken into account for the purpose of diminishing or
increasing the penalty in conformity with the
following rules:
xxx xxx x x xchanrobles virtual law
library
5. Habitual delinquency shall have the following
effects:chanrobles virtual law library
(a) Upon a third conviction the culprit shall be
sentenced to the penalty provided by law for the last
crime of which he be found guilty and to the
additional penalty of prision correctional in its
medium and maximum periods;chanrobles virtual
law library
(b) Upon a fourth conviction the culprit shall be
sentenced to the penalty provided for the last crime
of which he be found guilty and to the additional
penalty of prision mayor in its minimum and medium
periods; andchanrobles virtual law library
(c) Upon a fifth or additional conviction, the culprit
shall be sentenced to the penalty provided for the
last crime of which he be found guilty and to the
additional penalty of prision mayor in its maximum
period of reclusion temporal in its minimum
period.chanroblesvirtualawlibrary chanrobles virtual
law library
Notwithstanding the provisions of this article the
total of the two penalties to be imposed upon the
offender, in conformity herewith, shall in no case
exceed 30
years.chanroblesvirtualawlibrary chanrobles virtual
law library
For the purposes of this article, a person shall be
deemed to be habitual delinquent, if within a period
of ten years from the date of his release or last
conviction of the crimes of robo, hurto, estafa,
or falsificacion, he is found guilty of any of said
crimes a third time or oftener.
From the above provisions it can be seen that the
Revised Penal Code recognizes three situations in
which offenders who are convicted more than once
find themselves, namely, reiteration, recidivism and
habitual deliquency. Reiteration refers to any crime
which is not in the same title of the Revised Penal
Code, recidivism to crimes in the same title of the
Code, and habitual delinquency to robbery, theft and
estafa, and falsification. In reiteration, the number of
previous punishments is unimportant provided there
has been at least one if the law attaches an equal or
greater penalty, or at least two if the penalty is
lighter. In recidivism, if the previous convictions are
of crimes other than robbery, theft, estafa and
falsification, but are embraced in the same title as
the last offense, the number of previous convictions
is also immaterial. But if the previous convictions are
of robbery, etc. the number of the same is important
because if there is only one previous conviction,
there is recidivism but if there have been two or
more previous convictions of robbery, etc., habitual
delinquency
exists.chanroblesvirtualawlibrary chanrobles virtual
law library
Therefore it can be inferred that the law has
followed a logical and general plan in dealing with
criminals who commit robbery, etc., more than once.
That plan is that if there is only who is convicted for
the second time is a recidivist, and if thereafter he
does not reform, but commits robbery or kindred
crimes for the third time or oftener, he is a habitual
delinquent. Thus there is first recidivism and then
habitual delinquency. These two conditions are
successive and not simultaneous stages in the life of
the criminal in cases of robbery, etc. Therefore, upon
the third, fourth or subsequent conviction, he is no
longer a recidivist but a habitual delinquent. His first
conviction having already been counted as an
aggravating circumstance of recidivism in fixing the
principal penalty when he was convicted for the
second time, it would seem that to consider his first
conviction again as an aggravating circumstance of
recidivism in meeting out the principal penalty when
he is found guilty for the third, fourth fifth or
additional times, runs counter to the general scheme
of the law as I construe it and already
explained.chanroblesvirtualawlibrary chanrobles
virtual law library
544 | P a g e
I believe therefore that upon the fifth conviction of
robbery or similar crimes, as in the present case,
none of the prior convictions should be considered
an aggravating circumstance of recidivism in laying
down the principal penalty. It is enough that all the
four previous convictions are considered as part of
the habitual delinquency and the proper additional
penalty is applied
accordingly.chanroblesvirtualawlibrary chanrobles
virtual law library
Moreover, it would seem to be unjust, on fifth
conviction to count any one of the previous
convictions as an aggravating circumstance in fixing
the principal penalty, because all the prior
convictions are already considered in meeting out
the additional penalty. This interpretation of the law
takes into account the same offense twice at the
same time, namely, first as an aggravating
circumstance in imposing the principal penalty, and
then as one of the required previous convictions in
fixing the additional penalty for habitual
delinquency. Non bis in idem. To punish a person
twice for the same offense is frowned upon in this
legal maxim.chanroblesvirtualawlibrary chanrobles
virtual law library
But it is said in the majority opinion that the court
cannot disregard articles 14 (9) and 64 of the Revised
Penal Code, which respectively define recidivism as
an aggravating circumstance and lay down the rule
for the application of aggravating and mitigating
circumstances. But these articles are not disregarded
in my view of the question because, as already set
forth there is no recidivism, but habitual
delinquency, on the third or subsequent conviction,
of robbery, theft, estafa, or
falsification.chanroblesvirtualawlibrary chanrobles
virtual law library
Furthermore, penal laws are liberally construed in
favor of the accused. This has not been done in the
majority opinion because it considers the same
offense twice.chanroblesvirtualawlibrary chanrobles
virtual law library
Lastly, the object of article 14, paragraph 9 and
article 62, paragraph 5 of the Revised Penal Code is
the same: to be severe on those who manifest
criminal tendencies in order to curb criminality. The
object is already attained when the additional
penalty (which is very heavy compared with the
principal) for habitual delinquency is applied. It is
therefore unnecessary to consider the first or any
other previous conviction as an aggravating
circumstance in order to increase the principal
penalty. To do so is tantamount to saying: "The
accused is a dangerous character because he has
been previously convicted of robbery, etc., twice or
oftener; therefore he should get the additional
penalty for habitual delinquency. But he is also a
dangerous character because the first or any other
of these same previous convictions for similar crime
means recidivism; therefore, he should also get a
higher penalty because of the aggravating
circumstance of recidivism." It would, however,
seem more reasonable to hold that inasmuch as the
more includes the less, the previous conviction
which is the essence of recidivism is absorbed in the
total number of convictions that make up habitual
delinquency. The majority opinion itself admits that
"a habitual delinquent is necessarily a recidivist." If
so, why should he be punished as a recidivist when
he is already punished as a habitual delinquent?
N BANC
G.R. No. L-15515 April 29, 1961
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs. ROGER PERETE Y MANLAPAS, ET AL., accused.
ROGER PERETE Y MANLAPAS, accused-appellant.
Office of the Solicitor General for plaintiff-appellee.
Jose R. Hernando for accused-appellant.
PER CURIAM:chanrobles virtual law library
Roger Perete y Manlapas and Victorio Sajorda y
Campus, for having killed a co-prisoner in the Bilibid
Prisons at Muntinlupa, were charged with murder in
the Court of First Instance of Rizal, in an information
as follows:
That on or about the 25th day of March 1959, in the
New Bilibid Prisons, municipality of Muntinlupa,
province of Rizal, Philippines, and within the
jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating
together and mutually helping one another, armed
with deadly weapons to wit: sharp-pointed
instruments, with intent to kill and with treachery
and evident premeditation, did then and there,
wilfully, unlawfully and feloniously attack, assault
and stab one Receval Langlangan, thereby inflicting
upon the latter stab wounds on the different parts of
his body which caused his death
instantaneously.chanroblesvirtualawlibrarychanrobl
es virtual law library
That the accused are quasi-recidivists having
committed the above-mentioned felony while
serving their respective sentences after having been
convicted of final judgment by competent courts.
Arraigned on June 2, 1959, and assisted by
counsel de oficio, Roger Perete pleaded guilty while
the other accused, Sajorda, entered a plea of not
guilty. On the same day, the trial court rendered
judgment as to appellant Perete, convicting him of
545 | P a g e
the crime as charged, the dispositive part of which
reads -
WHEREFORE, the Court finds the accused ROGER
PERETE y MANLAPAS guilty of murder, penalized
under Art. 248 of the Revised Penal Code, and it
appearing that said accused is a quasi-recidivist, the
Court, pursuant to Art. 160 of said code, hereby
sentences him to the death penalty, to indemnify the
heirs of the deceased in the amount of Six Thousand
Pesos (P6,000.00) with no subsidiary imprisonment
in case of insolvency, and to pay one-half of the
costs.
The case is now before this Court on automatic
review due to the penalty imposed. Atty. Jose
Hernando, counsel de oficio for this appeal, assigns
seven (7) errors, the salient burdens of which are: (1)
that the trial court should have examined the
evidence and or heard witnesses, after which
appellant Perete should have been acquitted on
reasonable doubt; (2) that there was no treachery or
evident premeditation, so that the crime was only
homicide, granting that appellant killed the victim;
(3) that plea of guilt and voluntary surrender should
have been considered mitigating to homicide;(4) that
the trial court should have required evidence on the
quasi-recidivism before appreciating
it.chanroblesvirtualawlibrarychanrobles virtual law
library
It is well-settled that a plea of guilt, when formally
entered on arraignment, is sufficient to sustain a
conviction even for a capital offense without the
introduction of further evidence, and that such plea
admits all the material allegations of the
information, including the attendant circumstances
qualifying and/or aggravating the crime (Peo v.
Yamson, et al., L-14189, October 25, 1960; Peo. v.
Ala L-15633, August 31, 1960; Peo. vs. Salazar, L-
11601, June 30, 1959; Peo. vs. Santos, et al., L-
12448, January 22, 1959; Peo. v. Acosta, L-7449,
March 23, 1956). While it may be the better practice
in serious cases, as the one at bar, to receive such
additional evidence as would sustain the conviction
independently of the plea of guilt, this depends on
the sound discretion of the trial court, according to
whether it was satisfied that the plea of guilt was
made with knowledge of its import Peo v. Yamson,
et al. supra; Peo. v. Acosta, supra.). The record does
not show that the trial court committed any abuse of
discretion in not requiring additional evidence.
When appellant Perete was arraigned on June 2,
1959, he was assisted by counsel de oficio. The
presumption is that said counsel regularly and
faithfully discharged his official functions, which
included the duty of advising the accused as to the
meaning of his plea of guilt Peo v. Yamson, et
al., supra.). In any case, accused or his counsel were
never heard to complain, at the arraignment, or any
time thereafter, in fact, not even after the death
sentence was imposed, that the plea of guilt was
improvidently given without understanding its
significance. Indeed, the trial judge must have fully
satisfied himself that appellant Perete entered his
plea of guilt with full knowledge of the meaning and
consequences of his act, for the information was
read and a copy thereof delivered to said accused
and his counsel before the plea was entered.
According to the trial judge, appellant entered his
plea "spontaneously and voluntarily". Nothing in the
record justified us to conclude
otherwise.chanroblesvirtualawlibrarychanrobles
virtual law library
The record itself amply demonstrates that the plea
of guilt was taken as a calculated risk, to invite the
mercy of the trial court in the face of what
portended to be overwhelming evidence for the
prosecution. Both appellant Perete and his co-
accused Sajorda, in their respective affidavits
executed on the very morning when prisoner
Receval Langlangan was found sprawled and dying in
the toilet of Dormitory-A, confessed to the macabre
details of their heinous crime (PP. 7-10, Record).
According to their own version, they silently
pounced on Langlangan and stabbed him many
times with their sharp-pointed instruments inside
the toilet of Dormitory-A. Their victim sustained no
less than about 41 stabs on different parts of the
body (Autopsy Report, pp. 3-4, Record). A few
minutes after, prison guard Deogracias Salvador and
his companions, responding to a call to bring out two
prisoners, came upon appellant Perete and accused
Sajorda, holding sharp-pointed weapons, and who
readily admitted having just killed a prisoner (P. 6,
Record). Perete and Sajorda ere immediately
brought to the Officer of the Day, before whom they
executed the affidavits already
mentioned.chanroblesvirtualawlibrarychanrobles
virtual law library
Even viewing the case in the most favorable light,
the death penalty cannot be avoided. The crime
committed is murder, qualified by treachery, with
the aggravating circumstances of evident
premeditation and quasi-recidivism (Art. 160,
Revised Penal Code), all alleged in the information
which the accused admitted by his plea.
Conceding arguendo that not only plea of guilt but
voluntary surrender as well are present, these
cannot alter the penalty of death, since even without
evident premeditation, quasi recidivism, as a special
aggravating circumstance, raises the penalty to the
maximum period of that prescribed by law for the
new crime committed. And we find the allegations in
the information pertaining to quasi-recidivism
sufficient, its essence being that a person shall
commit a felony after having been convicted by final
judgment for another crime before beginning the
service of such sentence or while serving the same.
We find it unnecessary to discuss the other points
raised in counsel de oficio's brief, which are clearly
546 | P a g e
without merit.chanroblesvirtualawlibrarychanrobles
virtual law library
Finding no error in the decision under review, the
same is hereby affirmed. With costs de
oficio.chanroblesvirtualawlibrarychanrobles virtual
law library
Bengzon, C.J., Padilla, Bautista Angelo, Labrador,
Concepcion, Reyes, J.B.L., Barrera and Dizon,
JJ., concur.
EN BANC
[G.R. No. L-31402. August 17, 1981.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
v. FELICIANO HIPOLITO Y CLEMENTE and CIRILO
MALAGAMBA Y MONTARAS, Defendants, FELICIANO
HIPOLITO Y CLEMENTE, Defendant-Appellant.
The Solicitor General for Plaintiff-Appellee.
Cipriano Azada, for Defendant-Appellant.
SYNOPSIS
The victim was shot and mortally wounded while
making a telephone call outside a small "tienda"
which caused his death. Upon
arrest, Accused Hipolito admitted having killed the
victim while accused Malagamba admitted
participation in the commission of the crime in a
custodial investigation conducted in 1968, without
the assistance of counsel. Based on the said
extrajudicial confession, the Court of First Instance of
Manila found both accused guilty of murder,
qualified by evident premeditation, with aggravating
circumstance of price, reward or promise as to
Hipolito, and without any aggravating or mitigating
circumstance as to Malagamba. Hipolito was
sentenced to death while Malastamba was
sentenced to reclusion perpetua. Malagamba
appealed but subsequently withdrew the same.
On automatic review as to Hipolito where the
voluntariness and the absence of counsel in the
custodial investigation was raised, the Supreme
Court ruled: (a) the claim of maltreatment is not
corroborated; (b)the records of the case do not
support the claim of the accused that the confession
in question was secured through a promise of
leniency or immunity; (c) the right to counsel at
custodial investigation is applicable only after the
enactment of the 1973 Constitution; and (d) the
offense cannot be Homicide as claimed because the
killing is qualified by evident premeditation.
Judgment affirmed.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; EXTRA-JUDICIAL
CONFESSION; FACTORS THAT MILITATE AGAINST
CLAIM OF INVOLUNTARINESS; UNCORROBORATED
CLAIM AND FAILURE TO COMPLAIN OF
MALTREATMENT; CASE AT BAR. — Where the claim
of maltreatment is not corroborated, and the
accused had not filed any case, whether
administrative, criminal, or civil, against those
persons who had allegedly coerced or forced him to
sign the extra-judicial confession in question, his
failure to do so militates against the veracity of his
claim that bit confession was involuntary. (See
People v. Abejero, G.R. No. L-36039, May 17, 1980,
and cases cited; 97 SCRA 647)
2. ID.; ID.; ID.; ID.; PHOTOGRAPHS TAKEN AFTER
EXECUTION OF CONFESSION FAIL TO SHOW SIGN OF
MALTREATMENT. — The photographs taken of the
 accused after he had executed the confession in
question do not show any sign of maltreatment, or
that the accused had been beaten and bullied into
submission.
3. ID.; ID.; ID.; ID.; PRESENCE OF DETAILS ONLY THE
DECLARANT COULD HAVE KNOWN. — The claim that
the confession in question was prepared beforehand
and obtained under duress or by force is
contradicted by the presence of details which only
the declarant could have known. The said confession
is replete with details on how the crime was planned
and executed which could not have been the
product of mere imagination.
4. ID.; ID.; ID.; ID.; PROMISE OF LENIENCY OR
IMMUNITY WHICH IS NOT SUPPORTED BY THE
RECORDS OF THE CASE. — The alleged promise of
immunity which is not supported by the records of
the case, made by Pedro Jesuitas, who is not a
prosecuting officer and cannot honor nor comply
with his promise is not sufficient ground to render
the confession in question inadmissible. (People v.
de Torres, 110 Phil. 982)
5. ID.; ID.; ID.; CUSTODIAL INVESTIGATION BEFORE
THE 1973 CONSTITUTION; LACK OF ASSISTANCE BY
COUNSEL AND OF INFORMATION AS TO RIGHT TO
SILENCE AND TO COUNSEL; DOES NOT RENDER THE
CONFESSION IN ADMISSIBLE. — The fact that the
accused was not assisted by counsel during the
custodial investigation, as required under Article IV,
Section 20 of the 1973 Constitution, and that he had
not been informed of his right to silence and to
counsel, does not also render the confession in
question, which was executed by the accused
previous to the effectivity of the 1973 Constitution,
inadmissible, since no law gave the accused the right
to be so informed before that date. (People v.
Urminita, G.R. No. L-33314, December 14, 1979 and
cases cited; 94 SCRA 666). The right to counsel at
547 | P a g e
custodial investigation is applicable only after the
enactment of the 1973 Constitution and not before.
(People v. Molleda, G.R. No. L-34248, November 21,
1978,86 SCRA 667)
6. CRIMINAL LAW; MURDER; WHEN KILLING IS
QUALIFIED BY EVIDENT PREMEDITATION. — The
claim of the accused that the offense committed is
only HOMICIDE is without merit where the killing is
qualified by evident premeditation and the record
shows that there were meditation and reflection by
the accused resulting in a deliberate determination
to commit the crime.
7. ID.; AGGRAVATING CIRCUMSTANCES; EVIDENT
PREMEDITATION AND PRICE, REWARD OR PROMISE;
MUST BE CONSIDERED SEPARATELY. — The
contention of the accused that evident
premeditation is inherent in, and cannot be
considered separately from the aggravating
circumstance that the crime was committed in
consideration of price, reward or promise cannot
sustained. In the case of U.S. v. Rabor, 7 Phil. 726,
728, the Court said: ". . . This contention, however . .
. is fully answered by the language of the Supreme
Court of Spain in its decision of March 3,1885:
‘Considering, it says, that one or the other of the
circumstances(treachery or premeditation) is
present, either one of them serves to qualify the
crime of assassination, and the other to determine
the penalty according to the constant jurisprudence
of the Supreme Court, and it further appears that
the assassination was committed for a price, without
there existing any incompatibility between this
circumstance and that of premeditation, because. if
it is certain that by the general rule the first implies
the second, it is not less certain that the latter
maybe present without the former, and in the
present case, after the agreement of the criminals as
to the price, they exhibited in their acts a studied
and insistent tenacity in accomplishing the criminal
object they had proposed.’ (Vinda, Volume 1, p.
263)."cralaw virtua1aw library
8. ID.; ID.; PRICE, REWARD OR PROMISE; PRESENT
REGARDLESS OF NON-PROSECUTION OF ALLEGED
GIVER OF PRICE OR REWARD; CASE AT BAR. — There
is no merit in the claim of the accused that the
aggravating circumstance of price. reward or
promise is not present in view of the non-
prosecution of Vicente Ang, the alleged giver of the
price or reward. The record shows that the accused
Feliciano Hipolito made arrangements with his co-
accused Cirilo Malagamba relative to the killing of
Concepcion Bustamante Ang and not with Vicente
Ang, although Cirilo Malagamba said that he was
acting at the instance of the said Vicente Ang. and it
was the accused Cirilo Malagamba who paid him the
amount of P2,800.00. Accordingly, whether or not
Vicente Ang was prosecuted in connection with the
slaying of Concepcion Bustamante Ang is of little
importance, the trial court, therefore, did not
commit an error in finding the accused Feliciano
Hipolito guilty of the crime of MURDER, for the
killing of Concepcion Bustamante Ang, qualified by
evident premeditation and aggravated by the
circumstance that the crime was committed in
consideration of a price, reward, or promise.
DECISION
PER CURIAM:
MANDATORY REVIEW of the decision rendered in
Criminal Case No. 90010 of the Court of First
Instance of Manila, entitled: "The People of the
Philippines, plaintiff, versus Feliciano Hipolito y
Clemente and Cirilo Malagamba y Montaras,
defendants." Hipolito was found guilty of murder,
qualified by evident premeditation and aggravated
by the circumstance that the crime was committed
in consideration of a price, reward, or promise.
Malagamba was also found guilty of murder
qualified by evident premeditation, but without any
aggravating or mitigating circumstance. The
dispositive portion of the said decision reads, as
follows:jgc:chanrobles.com.ph
"WHEREFORE, Feliciano Hipolito y Clemente and
Cirilo Malagamba y Montaras are declared guilty
beyond reasonable doubt of the crime of murder
and each is hereby sentenced as follows:chanrob1es
virtual 1aw library
1. Feliciano Hipolito y Clemente, to suffer the
penalty of DEATH, to be executed in the manner
provided by law; and
2. Cirilo Malagamba y Montaras, to suffer the
penalty of RECLUSION PERPETUA, with the accessory
penalties provided by law.
Both accused to indemnify, jointly and severally, the
heirs of the deceased in the amount of twelve
thousand pesos (P12,000.00), and each to pay one-
half (1/2) of the costs."cralaw virtua1aw library
The record shows that on September 18, 1966,
Concepcion Bustamante Ang was shot and mortally
wounded while making a telephone call outside a
small "tienda" near the corner of San Bartolome
Street and Harrison Boulevard (now Pres. Quirino
Avenue) in Malate, Manila. The necropsy report, 1
showed the following:jgc:chanrobles.com.ph
"MISCELLANEOUS EXTERNAL WOUNDS AND
EXTENSION INTERNALLY :chanrob1es virtual 1aw
library
548 | P a g e
(1) A gunshot wound of entry, thru and thru in the
left axillary line at the level of the 7th intercostal
space measuring 0.8 cm. in diameter, directed
horizontally to the right and made an exit in the left
anterior chest 2.0 cm. in diameter.
(2) Another gunshot wound of entry thru and thru,
left axillary line, level of the 8th intercostal space
measuring 0.8 cm. in diameter, directed horizontally
to the right and made an exit in the right anterior
chest measuring 2.0 cm. in diameter.
"MISCELLANEOUS FINDINGS IN INTERNAL
ORGANS:chanrob1es virtual 1aw library
RESPIRATORY SYSTEM:chanrob1es virtual 1aw library
Penetrating gunshot wound, lung, left.
Grazing gunshot wound, lung, right.
CARDIOVASCULAR SYSTEM:chanrob1es virtual 1aw
library
Penetrating gunshot wound, heart.
Penetrating gunshot wound, arch of aorta.
Hemothorax, 1500 cc.
Vena cavae collapsed.
CAUSE OF DEATH:chanrob1es virtual 1aw library
Hemorrhage and shock due to gunshot wounds (2)
thru and thru the chest penetrating the heart, lungs
and aorta."cralaw virtua1aw library
The crime remained unsolved for more than a year
and a half so that on May 9, 1968, the Criminal
Investigation Service (CIS) of the Philippine
Constabulary ordered its Agent Pedro Jesuitas to
conduct an investigation and to apprehend and file
the proper charges against the malefactor if the
evidence so warrants.
In the course of his investigation, Pedro Jesuitas
learned that one Feliciano Hipolito was responsible
for the crime so that on May 16, 1968, the said
Feliciano Hipolito was arrested and brought to the
PC Headquarters at Camp Crame, Quezon City for
investigation. Upon questioning, Feliciano Hipolito
admitted having killed the said Concepcion
Bustamante Ang and implicated one Cirilo, the driver
of Ang Kung alias Vicente Ang, the husband of the
deceased, as the person who hired him to kill the
deceased for the amount of P5,000.00 at the
instance of the said Ang Kung alias Vicente Ang. 2
In view thereof, Cirilo Malagamba, the driver of
Vicente Ang, was taken into custody on May 20,
1968, and after questioning, he also admitted
participation in the commission of the crime. 3
As a result, an information was filed with the Court
of First Instance of Manila on June 5, 1968, charging
Feliciano Hipolito, Cirilo Malagamba, and another
person whose identity and whereabouts are still
unknown, with the crime of Murder for the killing of
Concepcion Bustamante Ang. 4
In subsequent time following the conclusion of the
trial, the trial court rendered the disputed decision; 5
Cirilo Malagamba appealed, 6 but his appeal was
subsequently withdrawn. 7
Under consideration is the DEATH sentence imposed
upon the accused Feliciano Hipolito. The accused
seeks a reversal of the judgment and his consequent
acquittal upon the ground that the evidence of the
prosecution is not sufficient to sustain a conviction
since the extrajudicial confession of the accused,
upon which the judgment in question is based, was
obtained from him by means of deceit, if not by
force and violence, and during a custodial
investigation where he was not assisted by counsel
of his choice. In the alternative, he prays that he be
found guilty of HOMICIDE only due to the absence of
circumstances that would qualify the killing to
Murder.
The accused testified that after his arrest on May 16,
1968 CIS Agent Pedro Jesuitas took him to the
latter’s house at Santolan, Pasig, Rizal, and later to
the Manhattan Hotel in Pasay City where he was
urged to admit that he was the triggerman in the
killing of Concepcion Bustamante Ang and to point to
Vicente Ang, the husband of the deceased, as the
mastermind, so that they could get some money
from the said Vicente Ang. Pedro Jesuitas promised
him that he would not be jailed if he will implicate
Vicente Ang. At first, he refused to enter into such a
scheme, but after Pedro Jesuitas had slapped him
and dunked his head inside a toilet bowl containing
human excreta, he acceded. Thereafter, he was
given a bar of soap and a towel and told to take a
bath, after which he was made to sign some papers.
He wanted to read the papers, but he was not
allowed to do so. When he insisted, he was
maltreated until he fell unconscious. After regaining
consciousness, he signed the papers given to him,
which turned out to be the extra-judicial confession
in question. The following day, he was brought to
the office of Col. Dumlao, chief of the CIS, where he
was told to point at Ang Kung alias Vicente Ang as
the mastermind in the killing of the deceased. From
Camp Crame, he was brought back to the Manhattan
Hotel and instructed not to reveal their scheme to
anybody. Then, he was allowed to visit his family.
After visiting with his family, he returned to the
Manhattan Hotel. 8
The claim of maltreatment, however, is not
549 | P a g e
corroborated, and the accused had not filed any
case, whether administrative, criminal, or civil,
against those persons who had allegedly coerced or
forced him to sign the extra-judicial confession in
question. On the other hand, CIS Agent Pedro
Jesuitas testified that the accused Feliciano Hipolito
furnished the statements contained therein freely
and voluntarily. His testimony is corroborated by
Capt. Protacio Laroya, before whom the accused
Feliciano Hipolito had subscribed and sworn to the
veracity of the contents of the extra-judicial
confession, who declared that the said accused read
the extra-judicial confession in his presence after
which he told the accused to raise his right hand and
asked him (the accused) if he understood the
contents thereof, and when the accused answered in
the affirmative, he requested the said accused to
affix his signature on the document, which the
accused did. 9
If it were true that the accused Hipolito was
maltreated and that his confession was involuntary,
he could have complained about the maltreatment
to Col. Dumlao, who could have acted upon it since
the accused was brought before Col. Dumlao on May
17, 1968 and confronted with Vicente Ang, whom he
pointed to as the mastermind in the killing of the
deceased. His failure to do so militates against the
veracity of his claim that his confession was
involuntary. 10
Besides, the photographs taken of the accused
Feliciano Hipolito on May 17, 1968, 11 the day after
he had executed the confession in question, do not
show any sign of maltreatment, or that the accused
had been beaten and bullied into submission.
The claim that the confession in question was
prepared beforehand and obtained under duress or
by force is further contradicted by the presence of
details which only the declarant could have known.
The said confession is replete with details on how
the crime was planned and executed which could
not have been the product of mere imagination.
The records of the case do not also support the claim
of the accused Feliciano Hipolito that the confession
in question was secured through a promise of
leniency or immunity given by Pedro Jesuitas. The
accused did not reveal the existence of such promise
to Capt. Laroya, before whom he subscribed and
swore to the veracity of his confession. Neither did
he inform Fiscal Modesto A. Obispo, Assistant City
Fiscal of Quezon City, before whom he
acknowledged having executed the confession in
question freely and voluntarily. 12 Nor did he ask for
confirmation from Col. Rafael Dumlao, the chief of
the CIS. The accused cannot plausibly pretend
immaturity to be so easily duped by his investigators.
At any rate, the alleged promise of immunity by
Pedro Jesuitas, who is not a prosecuting officer and
cannot honor nor comply with his promise is not
sufficient ground to render the confession in
question inadmissible. 13
The fact that the accused was not assisted by
counsel during the custodial investigation, as
required under Art. IV, Sec. 20 of the 1973
Constitution, and that he had not been informed of
his right to silence and to counsel, does not also
render the confession in question, which was
executed by the accused previous to the effectivity
of the 1973 Constitution, inadmissible, since no law
gave the accused the right to be so informed before
that date. 14 The right to counsel at custodial
investigations is applicable only after the enactment
of the 1973 Constitution and not before. 15
2. The claim of the accused that the offense
committed is only HOMICIDE is without merit. The
killing is qualified by evident premeditation. The
record shows that there were meditation and
reflection by the accused resulting in a deliberate
determination to commit the crime. The trial court
said:jgc:chanrobles.com.ph
"Feliciano Hipolito determined to commit the crime
earlier in the afternoon of September 15, 1966,
when he agreed to kill the deceased upon the
promise of Cirilo Malagamba that he (Hipolito)
would be given P5,000.00. Feliciano Hipolito
performed acts manifestly indicating that he clung to
his determination to commit the crime when he and
Cirilo Malagamba rode in the car driven by the latter
at 5 o’clock in the afternoon and went to the places
where the deceased could be found; when at 6
o’clock in the afternoon of the same day he accepted
from Cirilo Malagamba .38 caliber pistol with six
bullets to be used by him in the killing of the
deceased; when on September 16, 1966, at 8 o’clock
in the morning he went to the residence of the
deceased and made preparation to shoot her,
staying in the vicinity up to 12 o’clock noon, the
intended victim not having shown up the whole
morning; when on September 17, 1966, he went
back to the place of residence of the deceased, but
not having seen her there he went back to his home;
and when on September 18, 1966, he went again to
the place of residence of the deceased and waited
there. From the time he determined to commit the
crime earlier in the afternoon of September 15,
1966, up to the time when he shot the deceased at
11 o’clock in the morning of September 18, 1966, a
sufficient time had elapsed for Feliciano Hipolito to
reflect upon the consequence of what he had
planned to do."cralaw virtua1aw library
The contention of the accused that evident
premeditation is inherent in, and cannot be
considered separately from the aggravating
circumstance that the crime was committed in
consideration of price, reward or promise cannot be
sustained: In the case of U.S. v. Rabor, 16 the Court
550 | P a g e
said:jgc:chanrobles.com.ph
"It has been suggested that the commission of the
crime with deliberate premeditation and ‘for a price
or promise of reward’ should not be treated as two
distinct aggravating circumstances, because it is said
that the latter necessarily implies the former. This
contention, however, can not be sustained in this
case and is fully answered by the language of the
Supreme Court of Spain in its decision of March 3,
1885:chanrob1es virtual 1aw library
‘Considering, it says, ‘that one or the other of the
circumstances (treachery or premeditation) is
present, either one of them serves to qualify the
crime of assassination, and the other to determine
the penalty according to the constant jurisprudence
of the Supreme Court, and it further appears that
the assassination was committed for a price, without
there existing any incompatibility between this
circumstance and that of premeditation, because, if
it is certain that by the general rule the first implies
the second, it is not less certain that the latter may
be present without the former, and in the present
case, after the agreement of the criminals as to the
price, they exhibited in their acts a studied and
insistent tenacity in accomplishing the criminal
object they had proposed.’ (Vinda, Vol. 1, p.
263)."cralaw virtua1aw library
There is, likewise, no merit in the claim of the
accused that the aggravating circumstance of price,
reward or promise is not present in view of the non-
prosecution of Vicente Ang, the alleged giver of the
price or reward. The record shows that the accused
Feliciano Hipolito made arrangements with his co-
accused Cirilo Malagamba relative to the killing of
Concepcion Bustamante Ang and not with Vicente
Ang, although Cirilo Malagamba said that he was
acting at the instance of the said Vicente Ang, and it
was the accused Cirilo Malagamba who paid him the
amount of P2,800.00. Accordingly, whether or not
Vicente Ang was prosecuted in connection with the
slaying of Concepcion Bustamante Ang is of little
importance.chanroblesvirtualawlibrary
The trial court, therefore, did not commit an error in
finding the accused Feliciano Hipolito guilty of the
crime of MURDER for the killing of Concepcion
Bustamante Ang, qualified by evident premeditation
and aggravated by the circumstance that the crime
was committed in consideration of a price, reward,
or promise.
WHEREFORE, the judgment should be, as it is hereby
AFFIRMED in toto. Without costs.
SO ORDERED.
Barredo, Makasiar, Aquino, Concepcion Jr.,
Fernandez, Guerrero, Abad Santos, De Castro and
Melencio-Herrera, JJ., concur.
Fernando, C.J., is on leave.
Teehankee, Acting C.J., concurs in the result.
EN BANC
G.R. No. 127157 July 10, 1998
PEOPLE OF THE PHILIPPINES, Petitioner, v. JAIME
MEDINA y BANAG, and VIRGILIO CARLOS, accused,
JAIME MEDINA y BANAG, Accused-Appellant.
REGALADO, J.:
Accused-appellant Jaime B. Medina and accused
Virgilio Carlos were apprehended on October 3, 1996
by members of the Narcotics Intelligence and
Suppression Unit (NISU) under the Philippine
National Police Narcotics Command (PNP-NARCOM)
for selling methamphetamine hydrochloride without
authority of law.
Based on a complaint 1 filed by the NARCOM, the
two were brought before Assistant City Prosecutor
Lillian H. Ramiro for inquest. In their counter-
affidavits submitted to said prosecutor, accused
Carlos 2 denied any involvement in the transaction
by claiming that he merely accompanied appellant to
the place of the sale, while appellant 3 stated that he
was only supposed to buy the regulated drug at the
agreed price of P250,000.00 when the policemen
arrived and arrested them. Appellant added that, at
his request, Carlos merely drove the car used by
them.
Relying on these affidavits, Prosecutor Ramiro
recommended the filing of an information against
appellant and the dismissal of the charge against
accused Carlos. 4 The appropriate information 5 was
therefore filed and docketed as Criminal Case No. Q-
9563471 against appellant alone for violating Section
15 of Republic Act No. 8425, as amended, otherwise
known as the Dangerous Drugs Act.
However, after a reinvestigation was authorized by
the trial court and conducted by Prosecutor Rogelio
A. Velasco, accused Carlos was found to be likewise
probably guilty of the same violation. 6 Hence, an
amended information was filed before the Regional
Trial Court of Quezon City, Branch 78, against
accused-appellant and accused Carlos alleging:
That on or about the 3rd day of October, 1995 in
Quezon City, Philippines, the said
accused, conspiring, confederating together and
mutually helping each other not having been
authorized by law to sell, dispense, deliver, transport
551 | P a g e
or distribute any regulated drug, did then and there
wilfully and unlawfully sell or offer for sale 306.71
grams of white crystalline substance known as
"SHABU" containing methamphetamine
hydrochloride, which is a regulated drug. 7
It is important to note that during the
reinvestigation, appellant executed another counter-
affidavit 8 wherein he affirmed and adopted the
contents of his first counter-affidavit submitted at
the inquest proceedings.
Only appellant was present at the reading of the
amended information on February 26, 1996 as Carlos
remained at large after the dismissal of the
complaint against him. Appellant pleaded not guilty
to the accusation 9 and stood alone in his defense for
the entire trial wherein he presented his wife,
Zenaida Medina, as his only other witness, in
addition to some documentary evidence.
The prosecution tried to establish the events leading
to the arrest in flagrante delicto of appellant and
accused Carlos through the affidavits and
testimonies of SPO1 Edwin Anaviso 10 and PO3
Rolando Azurin. 11 Both police officers were
members of the NISU.
The People's version begins with a confidential
informant (CI) of the NARCOM approaching PO3
Azurin and telling him that he knew of two men
engaged in the sale and distribution of
methamphetamine hydrochloride, or shabu in
common parlance. PO3 Azurin relayed this
information to his superiors and was instructed to
arrange a possible entrapment for the arrest of the
two men. A deal, through the intercession of the CI,
was thereafter arranged for the sale and delivery of
300 grams of shabu at the price of P300,000.00. The
actual sale was set on October 3, 1995 at 8:00 P.M.
in front of the GQ Club and Restaurant located along
Quezon Avenue, Quezon City.
A team of NARCOM agents was formed for the high-
level anti-narcotics buy-bust operation. PO3 Azurin
was designated as the poseur-buyer and was
provided with a personal beeper 12 and an
envelope 13 containing twelve pieces of five
hundred-peso bills dusted with ultraviolet powder
and interspersed with "boodle" money consisting of
bond paper cut to size. SPO1 Anaviso was assigned
to the group which would provide security and
backup to PO3 Azurin.
While PO3 Azurin and the CI were waiting in the
parking lot of the restaurant, a black car bearing
plate No. TJM 468 arrived and stopped at some
distance from them. Afterwards, the driver of the
car, later identified by PO3 Azurin and SPO1 Anaviso
as herein appellant, approached the two and asked if
they brought the money ("Dala ninyo ang pera?").
After Azurin answered in the affirmative, appellant
turned to the car and made a thumbs-up signal.
Appellant then led PO3 Azurin and the CI to the car.
PO3 Azurin proceeded to the backseat of the car
while the CI remained outside. Appellant sat down
on the driver's seat.
PO3 Azurin found accused Carlos waiting at the
backseat of the car. After Carlos asked PO3 Azurin
for the money, the latter opened the envelope he
was carrying and showed its contents to Carlos.
Satisfied with what he saw, Carlos passed over to
Azurin a plastic bag containing three bluish
transparent sachets. 14 Azurin noticed that the
packets contained white crystalline substances.
When Carlos started counting the money handed to
him, Azurin covertly pressed his personal beeper to
give the signal to his colleagues that the first phase
of the operation had been completed. Within
seconds, Azurin's teammates, who had pre-
positioned themselves around the parking area,
immediately blocked the car of the accused and
effected the arrest of both suspected drug dealers.
Chemical and confirmatory examinations conducted
by Leslie C. Maala, 15 a forensic chemist of the PNP
Crime Laboratory Service, on the contents of the
three sachets yielded positive results for
methamphetamine hydrochloride. 16 When the
plastic bag was brought to Maala for examination,
the total weight of the contents of the three packets
was 306.71 grams. However, after representative
samples were taken from the confiscated substances
for purposes of examination, the total weight was
reduced to 279.01 grams.
Appellant 17 denied the charge against him and
claimed that he had no knowledge of and
participation in that sale of shabu by Carlos on
October 3, 1995. While he admitted that he went
with Carlos to GQ Restaurant on the night of October
3, 1995, he insisted that he did not leave the car
contrary to what the prosecution witnesses said. He
explained to the trial court that he was with Carlos at
the time of their arrest because Carlos, a childhood
friend, invited him to the restaurant. According to
appellant, they had just parked in front of that
restaurant when the policemen suddenly pounced
upon them.
Appellant also tried to retract in court the
statements he made in his two counter-affidavits,
contending that they do not reflect the truth. He
explained that he signed his first counter-affidavit
without reading it, under the assurance of the
lawyer of Carlos that he would take care of him.
Regarding the second counter-affidavit, he said that
he read only some parts thereof, hence he
understood only some of its contents.
552 | P a g e
Appellant's wife, Zenaida Medina, 18 corroborated
appellant's explanation regarding the circumstances
surrounding the execution of the two affidavits.
After evaluating the stories of the parties, the court
below rendered judgment holding that appellant
conspired with accused Carlos in the illegal sale of
306.71 grams of shabu. As the trial court appreciated
the presence of craft, fraud or disguise as
aggravating circumstances against herein appellant,
he was sentenced to suffer the supreme penalty of
death. In the same decision, an alias warrant of
arrest was issued by the court for the arrest of
accused Virgilio
Carlos. 19
Appellant is now before us in this automatic review
of the lower court's judgment, seeking its reversal
and ascribing the following errors to the said
court, viz., (1) that it erred in finding a conspiracy
between him and Virgilio Carlos; (2) that it erred in
maintaining the regularity of the buy-bust operation;
and (3) that it erred in convicting appellant despite
the failure of the prosecution to prove his guilt
beyond reasonable doubt.
Under the second assignment of error, appellant
claims that the trial court should not have
completely accepted the statements of the police
officers implicating him in the crime, but that it
should have believed instead his claim of innocence.
While this contention essentially raises a question of
credibility of witnesses, we have deemed it
necessary to meticulously and thoroughly review the
lower court's findings of fact due to the capital
punishment involved in this case.
After a painstaking scrutiny of the records and a
conscientious calibration of the evidence, we find no
reason to doubt the veracity and the accuracy of the
evidence and the version of the case presented by
the prosecution.
The testimonies of PO3 Azurin and SPO1 Anaviso,
not to mention their respective affidavits, conform
with each other, revealing a logically coherent and
sufficiently detailed account of what actually
happened on the night of October 3, 1995. They
were unwavering throughout their separate
testimonies and narrated the incident in a forthright
and convincing manner. Such frank and consistent
manner of testifying bears the mark of a credible
witness. 20
Appellant cannot blame the court below for
disbelieving his version. His defense of being an
innocent bystander does not impress us. In contrast
to the prosecution witnesses, appellant does not
pass the test of consistency to qualify him as a
credible witness. His extrajudicial
statements 21 regarding the circumstances of his
arrest drastically vary from his recitals thereof in
court. Such variance between his sworn statements
and his testimony renders him an unreliable
witness. 22
Since the counter-affidavits were precisely
submitted for the purpose of presenting his defense
during the preliminary investigation, it was thus
unnatural for him not to have presented therein the
same defense he invoked in court, if such was the
fact. With the vacillating stance evident in his
contradictory. submissions, it is not possible to grant
probative value to either his affidavits or to his
testimony in court.
Although minor discrepancies between the
statements of an affiant in his affidavit and those
made by him on the witness stand would not
necessarily discredit him, it is different where the
omission in the affidavit refers to a very important
detail such that the affiant would not have failed to
mention it, and which omission could affect affiant's
credibility. 23
Appellant's frail excuses cannot prevail over the
categorical and unshaken testimonies of the
apprehending officers who caught him and Carlos
red-handed. There was no claim, much less any
proof, that appellant was threatened or coerced by
the police into executing his affidavits. To top it all,
appellant even had the temerity to admit his liability
for perjury on the witness stand. 24 With such
demonstrated propensity for lying, the story he
presented to the trial court is riven with doubts of
his own making.
While appellant reminds us in his brief that courts
should be wary of buy-bust operations, he does not
advance any reason why the lower court should not
have believed PO3 Azurin and SPO1 Anaviso.
Appellant does not impute any ill motive to these
law officers who arrested him. Absent any
persuasive evidence showing why these officers
would testify falsely, the logical conclusion is that no
such improper motive existed and that their
testimonies are worthy of full faith and credit. 25
On such evaluation and analysis, we hold that the
trial court committed no error in according greater
weight to the positive identification and forthright
declarations of the prosecution witnesses over the
lame denials of appellant. This brings us then to the
issue posed by appellant's first and third assignment
of errors as to whether or not the facts established
by the prosecution justify a finding of conspiracy
between appellant and accused Carlos. The query
has to be answered affirmatively.
Conspiracy is always predominantly mental in
composition because it consists primarily of a
meeting of minds and intent. By its nature,
553 | P a g e
conspiracy is planned in utmost secrecy. 26 Hence,
for collective responsibility to be established, it is not
necessary that conspiracy be proved by direct
evidence of a prior agreement to commit the crime
as only rarely would such agreement be
demonstrable since, in the nature of things, criminal
undertakings are rarely documented by agreements
in writing. 27
But the courts are not without resort in the
determination of its presence. The existence of
conspiracy may be inferred and proved through the
acts of the accused, whose conduct before, during
and after the commission of the crime point to a
common purpose, concert of action, and community
of interest. 28 In short, conduct may establish
conspiracy. 29
An accepted badge of conspiracy is when the
accused by their acts aimed at the same object, one
performing one part and another performing
another so as to complete it with a view to the
attainment of the same object, and their acts though
apparently independent were in fact concerted and
cooperative, indicating closeness of personal
association, concerted action and concurrence of
sentiments. 30
There is nothing new in our adoption of this principle
in crimes involving narcotics. In three cases involving
the illegal sale of dangerous drugs, 31 we approved
the lower courts' findings of conspiracy based on the
coordinated actuations and movements of the
accused therein.
In the case at bar, appellant was not merely present
in a passive manner at the scene of the crime as he
contends. He definitely took an active participation
in the sale of the shabu. He was positively identified
as the driver of the car carrying accused Carlos and
the regulated drugs. When the duo arrived at the
agreed place, appellant went down to check if the
buyer brought the money while Carlos waited inside
the car. Then, upon learning that the poseur-buyer
had the money, appellant signaled to his companion
indicating such fact.
No other conclusion could follow from appellant's
actions except that he had a prior understanding and
community of interest with Carlos. His preceding
inquiry about the money and the succeeding signal
to communicate its availability reveal a standing
agreement between appellant and his co-accused
under which it was the role of appellant to verify
such fact from the supposed buyer before Carlos
would hand over the shabu. Without such
participation of appellant, the sale could not have
gone through as Carlos could have withdrawn from
the deal had he not received that signal from
appellant. It is undeniable, therefore, that appellant
and his co-accused acted in unison and, moreover,
that appellant knew the true purpose of Carlos in
going to the restaurant.
We accordingly reject appellant's pretension that he
was left in the dark until the last moment by Carlos
as to the latter's criminal intention. In fact, when
PO3 Azurin and Carlos were talking to each other at
the backseat, appellant was intently listening at the
front seat, 32 thus indicating his interest in the
outcome of their transaction.
Taking another tack, appellant now insists that he
should not be convicted because he was not the one
who actually dealt with the buyer. He maintains that
it was not he who was in possession of the
seized shabu; all he did was to ask for the purchase
money. Since such a contention entirely misses the
rule on collective responsibility of malefactors in a
conspiracy, we shall essay its rudiments hereunder.
It is elementary that when there is a conspiracy, the
act of one is the act of all the conspirators, and a
conspirator may be held as a principal even if he did
not participate in the actual commission of every act
constituting the offense. 33 In conspiracy, all those
who in one way or another helped and cooperated in
the consummation of the crime are considered co-
principals since the degree or character of the
individual participation of each conspirator in the
commission of the crime becomes immaterial. 34
It is of no moment, therefore, that appellant did not
possess the shabu, or that he did not personally
deliver it to PO3 Azurin and receive the
corresponding monetary consideration. Conspiracy
having been adequately shown, appellant is liable for
the illegal sale of shabu despite his seemingly
minimal participation. Liability exists
notwithstanding non-participation in every detail in
the execution of the crime. 35
Finding sufficient evidence supporting the illegal sale
of shabu through their conspiracy, the presumption
of innocence enjoyed by appellant has been
overcome by proof beyond reasonable doubt. The
prosecution has satisfactorily discharged its
obligation to prove the guilt of appellant beyond
moral certainty. Due to the unreliability of his own
testimony, appellant was not able to go forward with
clear and convincing evidence to controvert the
People's case against him.
Withal, as stated earlier, the lower court sentenced
appellant to death due to its appreciation of the
aggravating circumstances of craft, fraud or disguise.
A comprehensive search in the records of this case
do not reveal these circumstances. The reason for
this can be found in the very rationale adopted by
the lower court in appreciating the said
circumstances against appellant in the dispositive
portion of its decision. The court stated that craft,
554 | P a g e
fraud or disguise led to the escape and non-arrest of
Virgilio Carlos, hence it apparently imputes the same
to appellant.
While we share the trial court's disgust over the still
unexplained escape of accused Carlos, we cannot
approve its attribution to herein appellant as the
author of such craft, fraud or disguise or even that
the same should aggravate his liability in the present
case. For, even assuming ex gratia argumenti that
appellant had a part in the release of Carlos, it is
obvious that the aggravating circumstances involved
do not pertain to the offense charged in the
information and are completely unrelated to the
crime of illegal sale of shabu.
The court a quo should have borne in mind that the
charge against appellant is for illegal sale
of shabu and not for obstructing the apprehension
and prosecution of a criminal offender 36 or, for that
matter, perjury. 37 In fact, if such circumstances in
themselves constitute punishable crimes, or are
included by the law in defining a crime and
prescribing the penalty therefor, they cannot be
considered as aggravating circumstances. 38
To be considered as an aggravating circumstance
and thereby resultantly increase the criminal liability
of an offender, the same must accompany and be an
integral part or concomitant of the commission of
the crime specified in the information; and although
it is not necessarily an element thereof, it must not
be factually and legally discrete therefrom. Besides,
it is highly problematical whether the Spanish legal
concept of astucia, fraude and disfraz, adopted in
our Revised Penal Code, can find application at all to
the dismissal of the case against Carlos.
In view of the foregoing, we hold that the lower
court erred in considering against herein appellant
the supposed aggravating circumstances of craft,
fraud or disguise. The violation of Section 15 subject
of the amended indictment was consequently
committed without any aggravating circumstance.
Accordingly, the corresponding adjustment in the
punishment imposed upon appellant by the trial
court is called for.
Sec. 15 of the Dangerous Drugs Act, as last amended,
prescribes the penalty of reclusion perpetua to death
and a fine ranging from five hundred thousand pesos
to ten million pesos where the shabu or
methylampethamine hydrochloride sold weighs 200
grams of more. 39
Beginning with our decision in People vs.
Simon, 40 and reiterated in a number of decisions
thereafter, this Court has recognized the suppletory
application of the rules on penalties in the Revised
Penal Code to the Dangerous Drugs Act after the
amendment of the latter by Republic Act No. 7659
on December 31, 1993. Applying the rule in the Code
governing the application of a penalty composed of
two indivisible penalties, 41 the lesser of the two
penalties prescribed by the Dangerous Drugs
Act, i.e., reclusion perpetua, should be imposed on
herein appellant since there was no aggravating
circumstance attendant in the crime of illegal sale
of shabu. 42
Still on the penalty imposed by the trial court, we
further notice a serious omission on its part in not
imposing a fine. Section 15 of the Act mandates the
conjunctive penalty of a fine ranging from
P500,000.00 to P10,000.000.00 together with the
penalty of reclusion perpetua to death for
convictions thereunder. The personal corporal
punishment must be complemented by the
pecuniary penalty provided therein. With respect to
the latter, the courts may determine the amount of
the fine within the range provided by law, subject to
the rule on increasing or reducing the same by
degrees as provided by the Code. 43
WHEREFORE, the judgment of the trial court finding
accused-appellant Jaime B. Medina guilty beyond
reasonable doubt of the offense charged is
AFFIRMED, with the MODIFICATION that he is
hereby sentenced to serve the penalty of reclusion
perpetua and to pay a fine of P500,000.00, with costs
in all instances.
SO ORDERED.
N BANC
[G.R. No. L-27401. October 31, 1969.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
v. DIEGO BALONDO, Defendant-Appellant.
Solicitor General Antonio P. Barredo, Assistant
Solicitor General Antonio G. Ibarra and Solicitor
Conrado T. Limcaoco for Plaintiff-Appellee.
Justo R. Albert (Counsel de Officio), for Defendant-
Appellant.
SYLLABUS
1. CRIMINAL LAW; EXEMPTING CIRCUMSTANCES;
INSANITY; PSYCHIATRIC TEST OF ACCUSED IN
INSTANT CASE, NOT NECESSARY. — Where the facts
and circumstances narrated by the defendant in his
duly signed statements tally in important details and
he had voluntarily admitted his guilt before the
municipal court during the preliminary investigation
and voluntarily pleaded guilty when arraigned before
the trial court, the conclusion that the defendant
was not insane at the time of the commission of the
555 | P a g e
crime is sufficiently justified and there is no merit in
the plea of counsel de officio to subject the
defendant to some psychiatric test to determine his
sanity before the trial court rendered judgment.
2. ID.; QUALIFYING CIRCUMSTANCES; TAKING
ADVANTAGE OF SUPERIOR STRENGTH IN KILLING A
PERSON. — Taking advantage by the defendant of
his superior strength qualifies the crime committed
as murder, defined in Article 248 of the Revised
Penal Code.
3. ID.; AGGRAVATING CIRCUMSTANCES; MEANS
EMPLOYED OR CIRCUMSTANCES BROUGHT ABOUT
THAT ADD IGNOMINY TO NATURAL EFFECTS OF ACT,
NOT PRESENT IN INSTANT CASE. — Where nothing in
the record shows that before the deceased victim
died she was subjected to such indignities as would
cause her shame or moral suffering, the aggravating
circumstance that means was employed or
circumstances were brought about which add
ignominy to the natural effects of the act, did not
attend the commission of the crime.
4. ID.; ALTERNATIVE CIRCUMSTANCE; RELATIONSHIP,
WHEN CONSIDERED. — Under Article 15 of the
Revised Penal Code, the alternative circumstance of
relationship shall be taken into consideration only
when the offended party is the spouse, ascendant,
descendant, legitimate, natural or adopted brother
or sister, or relative by affinity in the same degree of
the offended.
DECISION
ZALDIVAR, J.:
The Court of First Instance of Leyte found the
defendant Diego Balondo guilty of the crime of
murder and sentenced him to suffer the extreme
penalty of death. This case is now before this Court
on automatic review of the decision of the trial
court.
On October 21, 1966 the Provincial Fiscal of Leyte
filed the following information against the
defendant:jgc:chanrobles.com.ph
"The undersigned Provincial Fiscal accuses Diego
Balondo of the crime of murder, committed as
follows:jgc:chanrobles.com.ph
"That on or about the 29th day of September, 1966,
in the Municipality of Kawayan, Subprovince of
Biliran, Province of Leyte, Philippines, and within the
jurisdiction of this Honorable Court, the above-
named accused, with deliberate intent to kill, with
treachery and evident premeditation, did, then and
there, wilfully, unlawfully and feloniously attack,
assault and strangle one Gloria Bulasa and inflicting
upon the said Gloria Bulasa the following injuries, to
wit:chanrob1es virtual 1aw library
‘1. Liver mortis of the face, anterior abdominal wall,
and anterior chest wall;
2. Semi-circular marks at the lateral portion of the
neck, both sides;
3. Circular incision around the upper third of the
thigh at the level of the inferior border of the gluteal
muscles of both tighs;
4. Complete lose of the soft tissues of the thighs and
legs in such manner that only the bones of the parts
mentioned were left;
5. Both feet were missing from the ankle joints
downwards;
6. All digits of the left hand were missing from the
carpal-metacarpal joints downward;
7. Incised wound from the left shoulder along the
medial border of the left scapula to the inferior angle
of the right scapula, upwards along its lateral border
to the right shoulder, medially towards the base of
the neck posteriorly to the left shoulder, with loss of
the skin and the underlying tissues.’
thus causing the instantaneous death of the
aforementioned Gloria Bulasa.
"That the crime was committed with the aggravating
circumstances of abuse of superior strength; that the
wrong done in the commission of the crime was
deliberately augmented by causing another wrong
not necessary for its commission; that means was
employed or circumstances brought about which
add ignominy to the natural effects of the act; that
the act was committed in utter disregard of sex; and
also the aggravating circumstance of relationship,
the victim being the niece of the accused.
"Contrary to Article 248 of the Revised Penal
Code."cralaw virtua1aw library
The record shows that when this defendant was
apprehended after the discovery of the dead body of
Gloria Bulasa, upon being investigated by the Chief
of Police of Kawayan, he readily admitted having
killed Gloria Bulasa. His admission was reduced to
writing in the Visayan dialect understood by him,
and signed by him. Subsequently, a more lengthy
investigation was conducted by the Chief of Police,
and again the defendant admitted having killed
Gloria Bulasa and narrated in detail how he killed
Gloria Bulasa and what he did with the body of
Gloria Bulasa. The defendant was taken to the place
556 | P a g e
where the crime was committed and he even
reenacted what he did with the deceased Gloria
Bulasa. The statements made by the defendant in
this detailed examination by the Chief of Police,
including his statements during the reenactment of
the crime, were reduced to writing, and were
subscribed and sworn to by him before the
municipal Judge of Kawayan. The statements made
by the defendant in his written admissions were
corroborated in important details by Meliton Bulasa,
father of the victim and by Anatalio Bulasa, an uncle
of the victim who both signed sworn statements
before the municipal judge. A post mortem
examination of the body of the deceased Gloria
Bulasa was made by Dr. Jose J. Tupaz, the municipal
health officer of Kawayan, and the injuries found by
the medical officer on the body of the deceased
indicated the brutal acts committed by the
defendant on his victim, as narrated by the
defendant himself in his sworn statements.
The corresponding criminal complaint was filed by
the Chief of Police of Kawayan, Leyte, before the
municipal court of the said municipality. During the
preliminary investigation of the case, the defendant
pleaded guilty to the charge of murder when he was
arraigned. He not only admitted his guilt, but he
narrated before the municipal judge the
circumstances attending the killing of Gloria Bulasa.
On October 24, 1966 the defendant was arraigned
before the Court of First Instance of Leyte. The trial
court appointed Atty. Delia Tantuico counsel de
officio for the defendant. Atty. Tantuico conferred
with the defendant, and after the conference the
counsel manifested before the court that the
defendant was ready for arraignment. The
information was read to the defendant in the local
dialect, called the Waray-Waray dialect, which is
understood by the defendant. After the reading of
the information the defendant voluntarily pleaded
guilty to the charge of murder alleged in the
information. Thereafter, the trial court rendered the
decision which is now before this Court on review.
We have carefully examined the record of this case,
and We fully agree with the findings and
observations of the trial court in its decision, as
follows:jgc:chanrobles.com.ph
"From the records and varied written admissions of
the accused, Diego Balondo, that on Sept. 29, 1966,
at about 6:00 o’clock a.m., he was in his farm in the
barrio of Balacson, Kawayan, Subprovince of Biliran,
Leyte. That he stayed in his farm for about three
hours clearing his camote plantation; that at about
9:00 o’clock in that same day, he went home to take
his breakfast that at about 1:00 o’clock, he saw
Gloria Bolasa going to the direction of the nipa
grooves of the Ayono Asilo, behind the Aglipayan
church; that upon seeing her, he followed behind
surreptitiously; that upon seeing her cutting the
banana leaves he told her, ‘why, you are here again
to cut the banana leaves?’, that the late Gloria
Bolasa answered,’ it is none of your business for it’s
the property of the government’, that he got furious
and immediately grabbed her by his left hand
strangled her by the neck and pushed her violently
to the ground face downward; that he firmly held
her left arm and neck; rode on her back and pinned
her down with his knees and then continuously
lifting her head and smashed her face against the
mud; that he choked and buried her face in the mud
for about an hour until she died.
"And that when she was already dead, he lifted her
from the mud and laid her flat on her back, and then
he held her by the feet, dragged her to a place from
where he killed her, at a distance of thirty brazas;
that he covered the body with nipa leaves to keep
her from the sunlight; that the deceased was
carrying a knife for cutting the banana leaves, and
she was a niece of the accused from a second degree
cousin; that he sliced and took the flesh from the
thighs, legs and shoulder by the use of the knife of
Gloria Bolasa because his bolo was dull, after which
he threw the knife away; that he cut away also the
feet; that he intended to slice all the flesh of the
cadaver but he was caught by the darkness of the
night; that he put the sliced flesh with a piece of
rattan, tied it and brought it to his farm; that upon
reaching his farm, he started to build a fire and
barbecued the sliced pieces of human flesh (roasted
it) and he ate the barbecued pieces of human flesh
and used it as a viand for the roasted banana fruits;
that the taste of the human flesh was bitter and
poignant like a gall bladder; that he killed Gloria
Bolasa first to taste the human flesh if its good; that
after doing all those atrocious acts, he went home at
about 7:00 o’clock in that evening."cralaw virtua1aw
library
x x x He likewise voluntarily pleaded guilty when
"In passing judgment to the accused, Diego Balondo,
the Court has this lamentable observation with this
peculiar case.
"The spectacle of knowing a human being killed and
slaughtered in this island, subprovince of Biliran,
Leyte, for unknown motivation is not a news at all in
this jurisdiction because such incidents are too
common and numerous for the court to recall. But
when one, like in this case, choked a maiden to
death just 16 years old for the simple reason that
she was getting leaves from the banana plants of the
accused to wrap local cookies, the said accused after
killing her, sliced the flesh of the legs, shoulder and
the thigh, cooked those human flesh; devoured them
like an ancient cannibal; the accused, Diego Balondo
went bizarrely beyond the extreme of a carnivorous
wild beast."cralaw virtua1aw library
557 | P a g e
Counsel de officio, Atty. Justo R. Albert, in his brief
for the defendant, urges that the trial court should
have subjected the defendant to some psychiatric
test to determine his sanity before rendering
judgment, and prays this Court "that the judgment of
the lower court be set aside and this case be
remanded for trial with admonition to the lower
court to order the submission of the accused to a
psychiatric test to determine his sanity." We do not
find merit in the plea of counsel de officio. We find in
the record sufficient justification for the conclusion
that the defendant was not insane at the time of the
commission of the crime. The defendant had made
several statements, which were reduced to writing
and duly signed by him. We find that the facts and
circumstances narrated by the defendant in those
different statements tally in important details. The
defendant voluntarily admitted his guilt before the
municipal court during the preliminary investigation.
arraigned before the trial court. Considering that the
defendant is charged of having killed Gloria Bulasa
way back on September 29, 1966 — or more than
three years ago — it is not possible now to ascertain
the mental condition of the defendant as of the time
when he committed the crime of which he is
charged.
The trial court has correctly found that in killing the
deceased Gloria Bulasa, the defendant had taken
advantage of his superior strength. This attendant
circumstance qualifies the crime committed as
murder, defined in Article 248 of the Revised Penal
Code.
We agree with the trial court that the commission of
the crime by the defendant was attended by the
aggravating circumstances of (1) disregard of the
respect due the offended party on account of her
sex, and (2) that the wrong done in the commission
of the crime was deliberately augmented by causing
other wrong not necessary for its commission.
The trial court, however, erred when it declared that
two other aggravating circumstances attended the
commission of the crime; namely, that means was
employed or circumstance brought about which add
ignominy to the natural effects of the act, and that
the victim was the niece of the accused. We find
nothing in the record which shows that before the
deceased Gloria Bulasa died she was subjected to
such indignities as would cause her shame or moral
suffering. Under Article 15 of the Revised Penal
Code, the alternative circumstance of relationship
shall be taken into consideration only when the
offended party is the spouse, ascendant,
descendant, legitimate, natural or adopted brother
or sister, or relative by affinity in the same degree of
the offended (U.S. v. Insierto, 15 Phil. 358).
One mitigating circumstance can be considered in
favor of the defendant, namely, the circumstance of
his having made a voluntary plea of guilt in court
before the presentation of evidence by the
prosecution.
We, therefore, find that the defendant had
committed the crime of murder, with two
aggravating circumstances that should be counted
against him, and one mitigating circumstance in his
favor. However, for lack of the required number of
votes by the members of the Court, for the
imposition of the maximum penalty of death, the
Court has resolved to modify that portion of the
judgment of the trial court which imposes the
penalty of death, by imposing on the defendant the
penalty of reclusión perpetua.
WHEREFORE, the decision of the lower court is
modified. The defendant is sentenced to reclusión
perpetua, to indemnify the heirs of the deceased
Gloria Bulasa in the sum of P12,000.00, and to pay
the costs. It is so ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal,
Sanchez, Castro, Fernando and Teehankee, JJ.,
concur.
Barredo, J., took no part.
THIRD DIVISION
January 18, 2016
G.R. No. 206291
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
ZALDY SALAHUDDIN and Three (3) other
UNIDENTIFIED COMPANIONS, Appellants.
DECISION
PERALTA, J.:
This is an appeal from the Decision1 dated October
25, 20 l1 of the Court of Appeals in CA-G.R. CR-J-IC
No. 00638-MIN, which affirmed the Clecision2 of the
Regional Trial Court (RTC) of Zamboanga City, Branch
16, finding Zaldy Salahuddin guilty beyond
reasonable doubt of the crime of murder in Criminal
Case No. 20664.
Appellant Zaldy Salahuddin was charged with the
crime of murder in the Information elated June 9,
2004, the accusatory portion of which reads:
That on or about February 10, 2004, in the City of
Zamboanga, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused,
being then armed with a .45 caliber pistol and other
558 | P a g e
handguns, conspiring and confederating (sic)
together, mutually aiding and assisting one another,
by means or treachery, evident premeditation and
abuse of superior strength, and with intent to kill,
did then and there, wilfully, unlawfully and
feloniously, assault, attack and shoot with the use of
said weapons ATTY. SEGUNDO SOTTO, JR. y
GONZALO, employing means, manner and form
which tended directly and specially to insure its
execution without any danger to the persons of the
herein accused, as a result of which attack, said Atty.
Segundo Sotto, Jr. y Gonzalo sustained mortal
gunshot wounds on the fatal parts of his body which
directly caused his death, to the damage and
prejudice of the heirs of said victim;
That the commission of the above-stated offense has
been attended by the following aggravating
circumstances, to wit:
1. Use of unlicensed firearm; and
2. Use of motorcycle to facilitate not only
the commission of the crime but also the
escape of the accused from the scene of the
crime.
3. That the crime be committed at night
time.
CONTRARY TO LAW.3
Upon arraignment, appellant pleaded not guilty to
the murder charge. Trial ensued afterwards.
Appellant was also charged with frustrated murder
in Criminal Case No. 20665 for having fatally
wounded Liezel Mae Java, the niece of the victim,
during the same shooting incident. Since Java was
alleged in the Information to be a minor, the said
case was transferred to Branch 15 of the RTC of
Zamboanga City, which is the only designated family
court in the city.
To establish its murder case against appellant, the
prosecution presented the testimonies of nine (9)
witnesses, namely: (1) Juanchito Vicente Delos
Reyes, the security guard who witnessed the
shooting incident; (2) Dr. Melvin Sotto Talaver, the
one who assisted the doctor who examined the
victim’s cadaver; (3) Java, the niece and companion
of the victim at the time of the incident; (4) Michal
Maya, the secretary of the victim in his law office; (5)
Vicente Essex Minguez, the National Bureau of
Investigation Agent who investigated the incident;
(6) SPO3 Ronnie Eleuterio, a police officer attending
to records of firearms and licenses; (7) Police Chief
Inspector Constante Sonido, the one who conducted
ballistic examination over the 2 empty shells; (8)
Atty. Wendell Sotto, the son of the victim; and (9)
Gloria Sotto, the victim’s wife.
As summarized by the Court of Appeals (CA), the
facts established by the evidence for the prosecution
are as follows:
On February 10, 2004, at around 5:30 in the
afternoon, Atty. Segundo Sotto Jr., a prominent law
practitioner in Zamboanga City, together with his
niece, Liezel Mae Java[,] left the former’s law office
and went home driving an owner[-]type jeep. On the
way towards their house at Farmer’s Drive, Sta.
Maria, Zamboanga City, they passed by Nunez
Street, then turned left going to Governor Camins
Street and through Barangay Sta. Maria. When the
jeep was nearing Farmer’s Drive, the jeep slowed
down, then, there were two gun shots. Liezel Mae,
the one sitting at the right side of the jeep felt her
shoulder get numb. Thinking that they were the ones
being fired at, she bent forward and turned left
towards her uncle. While bending downwards, she
heard a sound of a motorcycle at her right side.
Then, she heard another three (3) [gunshots] from
the person in the motorcycle. After that, the
motorcycle left.
While Liezel’s head was touching the abdomen of
her uncle, she was crying and calling out his name. A
few minutes later, rescuers arrived. Liezel and Atty.
Segundo, with the use of tricycles, were brought to
Western Mindanao Medical Center (WMMC).
Juanchito Vicente Delos Reyes, a Security Guard at
the house of George Camins, located in Brgy. Sta.
Maria, while seated on a stool at the inner side of
the gate, facing the road, noticed that in the early
evening of February 10, 2004, he saw a man driving a
jeep, with a woman inside. He then heard two
[gunshots]. Immediately after that, the jeep bumped
at an interlink wire at the left side of the road, going
to the entrance of Farmer’s Drive. He peeped
through the jeep and saw the face of the person in
the driver’s seat slammed on the steering wheel. He
thereafter saw the motorcycle in front of the victim
and the latter was shot again. The motorcycle went
to the right side of the jeep and the backrider again
shot the victim. Seeing the shooting incident, Delos
Reyes aimed his gun at the person shooting. When
the latter saw this, he made a sign – with his
extended left hand, moving his left with open palms
sidewards. To Delos Reyes’ mind, the sign means
that the assailant does not want to be interfered
[with]. When the motorcycle was about to leave, the
assailant fired again.
After the motorcycle left, Delos Reyes called two
tricycles in the highway to bring the wounded
victims to the hospital. After the tricycles left, three
(3) policemen from Sta. Maria Police Station arrived.
Delos Reyes right away contacted the manager of
WW Security Agency, Mr. Wilfredo Manlangit and
told him about the incident. When the police officers
559 | P a g e
were already in the crime scene, Delos Reyes told
them that he still cannot relay everything that
happened for he was still in a state of shock. It was
his first time to see such an incident.
Atty. Wendell Sotto, the son of the victim, on the
date of the incident, came from the law office and
went home to their house at Farmer’s Drive ten (10)
minutes after the victim and his niece left the office.
When Atty. Wendell was about to turn right to
Farmer’s Drive, he saw his father’s jeep stalled at the
left side of the said street. Upon seeing his father’s
jeep, he stopped his car and saw his father already
slouching on the steering wheel of the jeep and his
cousin slouching on his father’s side. He noticed that
his father was already full of blood. He went to the
left side of the jeep, tried to pull his father out and
shouted for help. Atty. Wendell brought his father to
the Operating Room of WMMC. Dr. Lim and Dr.
Melvin Talaver attended to the victim, but they
pronounced the victim to be dead on arrival.
Dr. Melvin Sotto Talaver, the one who assisted Dr.
Lim in the examination of the cadaver testified that
on February 10, 2004, at around 5:30 in the
afternoon, he was at home, taking a rest from his
duty. At around 6 o’clock, he was called by a staff of
the Emergency Room of WMMC informing him
about what happened to his relative, Atty. Segundo.
Immediately thereafter, he went to the hospital.
When he arrived there, Dr. Lim already declared the
patient to be dead. After that announcement, the
deceased was transferred to a smaller room. Dr.
Talaver and Dr. Lim examined the body and made
the recording of the entry and exit wounds. Dr.
Talaver witnessed how Dr. Lim used a sketch of the
human body, front and back, to document her
findings.
As seen in the Physical Examination Form, there
were four wounds in the front anatomy – one in the
neck area, another on the chest above the left
nipple, the third one was in the solarplexus –
between the two breasts, and the last is somewhere
in the abdominal area. For the back anatomy, they
discovered exit wounds, from where they recovered
the two (2) slugs, which they gave to Atty. Wendell,
the son of the victim. Based on the Medical
Certificate issued by Dr. Lim, the diagnosis stated
Dead on Arrival – Cardiorespiratory arrest, secondary
to hypovolemia, secondary to multiple gunshot
wounds.
Vicente Essex Minguez, an NBI agent assigned at
Western Mindanao Regional Office, Zamboanga City
stated under oath that on February 13, 2004, Mayor
Sotto of the Municipality of Siay, Zamboanga
Sibugay, the brother of the deceased, filed a
complaint before the NBI Office. On March 17, 2004,
the NBI Office also received a Resolution from the
City Government of Zamboanga City requesting the
said agency to conduct an investigation regarding
the killer of Atty. Segundo Sotto. Upon receipt of the
resolution, NBI Agent Minguez then coordinated
with his civilian agents to gather information about
the death of Atty. Segundo. He also went to Sta.
Maria Police Station and asked the police officers the
progress of the investigation that they conducted.
Sta. Maria Police then gave him a copy of the Report
and told him that the empty shells were turned over
to the crime laboratory. Subsequently, he tacked
(sic) some investigation agents to look for witnesses
of the said crime. When they came to know the
name of the Security Guard Delos Reyes, they asked
him to be a witness.
On March 3, 2004, Delos Reyes was brought by his
manager Manlangit at the NBI Office, and there he
gave a statement as to what happened during the
incident on February 10, 2004. Delos Reyes also
mentioned in his testimony that on February 17,
2004, at around 10 o’clock in the evening, while he
was at the side of the gate inside the fence of the
residence of George Camins, a motorcycle with two
(2) males riding on it stopped. Delos Reyes called on
the two (2) maids of George Camins to peep through
the persons outside. After that, the maids returned
and told him that they saw the backrider holding
something and demonstrated the left or right hand
pulling something backward and pulled it again
forward, as if making a cocking action. The next day
after the said incident, Delos Reyes stopped
reporting for work, with the permission of his
manager, because it came to his mind that those
were the people who killed Atty. Segundo.
On March 16, 2004, Delos Reyes was again at the
NBI Office, and was asked to piece together the eyes,
ears, mouth and nose of the accused. After having
the sketch of the assailant, NBI Agent Minguez
designated it to his informants to gather more
information. During the later part of March 2004, an
informant told Agent Minguez that he can identify
the gunman. On March 28, 2004, the NBI then
conducted a surveillance in Barangay Dita where the
assailant was residing, as informed by the informant.
In the said area, the NBI spotted the gunman riding a
motorcycle.
On April 1, 2004, NBI agents, about ten (10) of them,
together with Delos Reyes, disguised themselves as
campaigners of the late Fernando Poe Jr. During that
time, accused was spotted in a shop talking to two
(2) women agents. Agent Minguez asked
confirmation from Delos Reyes if the person in the
sketch was the same person that they saw in the
shop. Thereafter, the agents backed out, Minguez
went to the NBI Office and prepared into writing the
surveillance that was conducted.
On April 22, 2004, NBI filed the case with the Office
of the City Prosecutor. Thereafter, a warrant of
arrest was issued. On July 22, 2004, Minguez and
560 | P a g e
some of the NBI agents served the warrant at
Barangay Vitali and arrested the accused. Upon his
arrest, the agents recovered a .45 caliber firearm
from the accused.
On the next day, Agent Minguez invited Delos Reyes
and Liezel Mae to identify if the person that they
arrested was the same person whom they saw kill
the victim. Both [eyewitnesses] positively identified
the person to be the gunman.
Michal Macaya, the secretary of the law office of
deceased Atty. Segundo, testified that on February
10, 2004, at about 10:30 in the morning, while Atty.
Segundo was having a hearing at Branch 13, two
men arrived at the office, looked for Atty. Segundo
and asked where he was having a hearing. They left
but returned thirty (30) minutes later. Macaya told
them to come inside the office, but they refused to
do so. They left again, and when they came back at
past eleven, there were already four (4) of them,
looking for Atty. Segundo. The four (4) men left and
came back at about 12 o’clock in the morning. After
the accused was arrested, Macaya was asked to
come to the NBI Office to identify the accused. She
stated that the accused and the person who went to
the law office four (4) times have the same shape of
the face.
Mrs. Gloria Sotto, the wife of the deceased, testified
that at the time of the incident, she was at home.
She came to know about what happened to her
husband when her neighbors came shouting that
Atty. Segundo was shot outside. She trembled and
her children cried, but still she managed to go to the
crime scene, and found that her husband was no
longer there. She immediately went to the hospital
and saw her husband already dead. The body of the
victim was released at around 7:30 to 8 o’clock on
that same night. The body of her husband was made
to lie at La Merced Memorial Homes for nine (9)
days and was buried at Forest Lake.
SPO3 Ronnie Eleuterio, a Police Office[r] attending
records pertaining to firearms and licenses, testified
that on August 5, 2004, he received a request for
verification from the Fiscal Office to issue a
Certification whether accused Zaldy Salahuddin has a
licensed firearm. He checked the records and found
that accused has no existing record of any firearms
license, permit to transport or permit to carry
firearms outside of his residence.
Police Chief Inspector Constante Sonido, Regional
Chief and Firearm Examiner of the Regional Crime
Laboratory, Region IX, testified that on February 11,
2004, he received a request from Sta. Maria Police
Station for the conduct of a ballistic examination on
the 2 empty shells. Based on his examination and as
seen in the Firearms Identification Section Report
No. FAIS-003-04, the two (2) cartridge cases were
part from the same .45 caliber firearm.4
To substantiate appellant’s defenses of denial
and alibi, on the other hand, the defense presented
the testimonies of 9 witnesses, namely: (1)
appellant; (2) Sarabi Hussin; (3) Jauhari Hussin; (4)
Sairaya Temong; (5) SPO1 Vicente Alama y Tanuan;
(6) PO2 Donato Acosta y Mendoza; (7) Wilfredo
Manlangit; (8) P/Sr. Ins. Hado Edding; and (9) P/Chief
Insp. Roman Cornel Arugay.
As summarized by the CA, the facts established by
the evidence for the defense are as follows:
The accused, on the other hand, interposed the
defense of denial. He averred that on February 10,
2004, he was on duty as a Barangay Tanod, together
with Jauhari Hussin, a Barangay Kagawad. On that
day, he reported for duty at 7 o’clock in the morning
until 5 o’clock in the afternoon, and stayed, during
the whole day, in the barangay hall, and in some
instances at the nearby elementary school. After 5
o’clock P.M. of that day, he passed by the house of
Barangay Chairman, Sarabi Hussin, the brother of
the above-named Kagawad. He stayed there and had
a long conversation with the Barangay Chief and
went home at around 9 o’clock in the evening. He
claimed that he does not know about any
participation in the killing of Atty. Segundo. During
the time of the incident, accused insisted that he
was at the house of the Barangay Captain for the
latter did not go to the Barangay Hall.
Major Wilfredo Manlangit, a Major of the Philippine
Army and Operator of WW Security Agency testified
that based on the Monthly Disposition Report of
WW Security Agency for the month of February
2004, no name of Juanchito Delos Reyes appears as
one of the security guards for the month of
February. A Certification dated September 30, 2004
stated that Juanchito Delos Reyes was on active duty
at "Tu Casa" residence under the residence of Mrs.
Corazon Camins as of March 3, 2004 only. However,
on cross-examination, Major Manlangit affirmed that
Delos Reyes was already one of the Security Guards
of the agency. He remembered that Delos Reyes had
already started working as one of its security guards
in February 2004. He explained that Delos Reyes’
name did not appear in the report because he did
not complete the 30[-]day period in one month. It
was required that he completes the 30-day period
because the names in the report reflected only the
names of the guards who completed the whole
month.
Another defense witness Police Officer Donato
Acosta, the assigned duty investigator for the killing
of Atty. Segundo testified that he, together with his
assistant PO1 Alama, under the supervision of Police
Chief Edding, tried to find witnesses on the incident.
He spoke with a certain Bayot, the seller of the store,
561 | P a g e
near the place of the incident. The seller told the
investigator that she saw the driver wearing a closed
helmet, and the one riding at the back wore a shade.
The result of their investigation was that a certain
Toto Amping is the alleged assailant. These findings
were written down by another defense witness PO1
Vicente Alama, who prepared a Special Investigation
Report dated February 25, 2004, which was
submitted to NBI Agent Minguez, but was unsigned
by Chief of Police Edding.
Chief of Police Hado Edding testified that he did not
sign the Special Investigation Report because the
name mentioned in the report, purporting to be the
assailant, was not supported by witnesses. He stated
that the Special Investigation Report could not be
taken as an official report of the Sta. Maria Police
Station because as a matter of procedure, a report is
considered official when the Chief of Police approves
it. x x x.
Sarabi Hussin, the Barangay Chairman of Barangay
Dita, testified that on February 10, 2004, he was at
the Barangay Hall of Barangay Dita from 7 o’clock in
the morning until 5 o’clock in the afternoon. He
affirmed that he and accused Zaldy just stayed at the
Barangay hall the whole day. He left the barangay
hall at around 5 o’clock in the afternoon with the
accused Salahuddin, through a motorcycle. Accused
Zaldy, and Kagawad Jauhari Hussi[n] stayed at the
house of the barangay chairman, ate there and left
at around 8 o’clock in the evening.
Jauhari Hussin, a Barangay Kagawad of Barangay Dita
corroborated the testimony of the barangay
chairman. He declared that on February 10, 2004, he
reported for duty with accused Salahuddin. Accused
and the barangay chairman went home together,
with the use of a motorcycle. He just walked home a
little later.
Another defense witness, Saiyara Temong, the
barangay secretary of Dita supported the testimony
of the barangay chairman, kagawad and accused.
She declared that the persons present on February
10, 2004 were Brgy. Kagawad, Jauhari Hussin, Brgy.
Chairman Sarabi Hussin and accused Barangay Tanod
Salahuddin.
Chief of Firearm Explosive Security Agencies and
Guard Section (FESAGS) Roman Arungay, testified
that he received a request from Atty. Mendoza of
the Public Attorney’s Office to submit some data
regarding a Security Guard named Juanchito Delos
Reyes. He issued a Certification stating that Delos
Reyes was not included in the monthly disposition of
the guards of WW Security Agency Specialist Services
covering the period from 01 to 29 February 2004.
Delos Reyes was, however, included in the list of
security guards employed under the said agency.5
After trial, the RTC convicted appellant of the crime
of murder. The dispositive portion of its Decision
dated March 28, 2008 states:
WHEREFORE, the Court finds accused ZALDY
SALAHUDDIN y MUSU GUILTY BEYOND REASONABLE
DOUBT of the crime of Murder, as principal, for the
unjustified killing of Atty. Segundo Sotto, Jr. y
Gonzalo with the qualifying circumstances of
treachery and evident premeditation and the
ordinary aggravating circumstances of use of
unlicensed firearm and use of motor vehicle which
facilitated the commission of the crime and the
escape of the accused and his companion from the
crime scene, and SENTENCES said accused to suffer
the penalty of RECLUSION PERPETUA and its
accessory penalties; to pay the heirs of the late Atty.
Segundo G. Sotto, Jr. the amount of Php50,000.00
indemnity for his death; Php100,000.00 as moral
damages; Php50,000.00 as exemplary damages;
Php197,548.25 as actual damages; and
Php4,378,000.00 for loss of earning capacity; and to
pay the costs.
SO ORDERED.6
The trial court found that two (2) eyewitnesses
positively and categorically identified appellant as
the gunman who shot Atty. Segundo and Java at
around 6:00 p.m. on February 10, 2004 at Farmer’s
Drive, Sta. Maria, Zamboanga City. The trial court
stressed that Java could not have been mistaken in
identifying appellant as the gunman as he was just a
meter away when he shot Atty. Segundo, while
Juanchito Delos Reyes, a security guard on-duty at an
establishment near the crime scene, also positively
identified appellant as the gunman, and could not be
mistaken as to the latter’s identity because they had
an eye-to-eye contact for about 5 seconds at a
distance of 6 meters. The trial court added that the
testimonies of the defense witnesses were replete
with inconsistencies and contradictions, and were
incredible when ranged against the positive
testimonies of the prosecution witnesses who were
not shown to have any improper motive to falsely
testify against appellant.
On appeal, the CA affirmed with modification the
trial court’s decision by increasing the civil indemnity
from P50,000.00 to P75,000.00, and reducing the
award of exemplary damages from P50,000.00 to
P30,000.00. The dispositive portion of the CA
decision reads:
WHEREFORE, the appeal is DENIED. We affirm the
Regional Trial Court Branch 16 of Zamboanga City
Decision dated March 28, 2008 in Criminal Case No.
20664, finding ZALDY SALAHUDDIN y MUSU guilty of
Murder and sentencing him to suffer Reclusion
Perpertua and its accessory penalties, subject to the
modification that he is held liable to pay the heirs of
[the] late Atty. Segundo G. Sotto, Jr., death
562 | P a g e
indemnity of PhP75,000.00, moral damages of
PhP100,000.00, Php30,000.00 as exemplary
damages, Php197,548.25 as actual damages and
PhP4,378,000.00 for loss of earning capacity and to
pay the costs.
SO ORDERED.7
The CA found that Java, Atty. Segundo’s niece,
positively identified appellant as the gunman, as it
was not yet dark and she was just about 1 meter
away from him, while Delos Reyes, a security guard
at a nearby establishment, was about 4 to 6 meters
away from the crime scene when he aimed his
service firearm at the appellant who, in turn, made a
hand sign at him not to interfere. The CA ruled that
appellant failed to present convincing evidence that
he was indeed at the barangay hall the whole day of
February 10, 2004, and that his defenses were
anchored on the testimonies of the Barangay
Chairman, Kagawad and Secretary, which were all
inconsistent from his very own testimony. Even if
appellant’s denial and alibi were corroborated by
said defense witnesses, the CA rejected such
defenses as unworthy of belief and credence, as they
were established mainly by appellant himself, his
friends and comrades-in-arms. The CA also found
that it was not physically impossible for appellant to
be present at the crime scene because the barangay
hall where he supposedly stayed the whole day was
just about 44 kilometers away and can be reached
within a travel time of about 1 hour and 30 minutes.
On the issue of whether the crime was committed
with evident premeditation, the CA noted that
although the prosecution has clearly established the
second element of overt act indicating that appellant
had clung to his determination to commit the crime,
no evidence was adduced to prove the first and third
elements, i.e., the time when the appellant had
determined to commit the crime, and the sufficient
lapse of time between the decision to commit and
the execution of such crime. Nevertheless, the CA
upheld appellant’s conviction for murder, as the
prosecution has established beyond reasonable
doubt that the killing of the victim was qualified by
treachery.
Hence, this appeal.
In support of his theory that the trial court gravely
erred in convicting him despite the failure of the
prosecution to provide evidence of his guilt beyond
reasonable doubt, appellant reiterates the same
arguments he raised before the CA.
According to appellant, he was at the barangay hall
on February 10, 2004 at 7:00 a.m. and rendered duty
together with Barangay Kagawad Jauhari Hussin until
5:00 p.m. Thereafter, he passed by the house of
Barangay Chairman Sarabi Hussin, who was his
neighbor and stayed there until 9:00 p.m. before he
finally went home. For his part, Barangay Chairman
Sarabi corroborated appellant’s alibi, and testified
that appellant had reported for duty on February 10,
2004 from 7:00 a.m. to 5:00 p.m., and that they
went home together afterwards. Barangay Kagawad
Jaurai Hussin and Barangay Secretary Saiyara
Temong also confirmed that appellant had indeed
reported for duty on even date. They added that
appellant and the Barangay Chairman rode a
motorcycle and went home together at 5:00 p.m.
The barangay logbook showed that appellant timed
in at 7:30 a.m. and timed out at 5:00 p.m. on
February 10, 2004.
Considering the foregoing evidence that he was at
the barangay hall from 7:30 a.m. to 5:00 p.m. on
February 10, 2004, appellant insists that the defense
has shown that it was impossible for him to have
committed the crime by going to Atty. Segundo’s law
office which is about 44 kilometers away or 1½ hour-
ride from the city proper. He asserts that the said
barangay officials are credible witnesses, and that
their testimonies are worthy of full faith and credit,
since they testified in a categorical and frank
manner, and were not shown to have any improper
motive to falsely testify in court. He concedes that
there are a few discrepancies and inconsistencies in
the testimonies of the defense witnesses, which
pertain only to minor details, and are not of a nature
and magnitude that would impair their credibility.
The appeal lacks merit.
It is well settled that the trial court’s evaluation of
the credibility of witnesses is entitled to great
respect because it is more competent to so
conclude, having had the opportunity to observe the
witnesses’ demeanor and deportment on the stand,
and the manner in which they gave their
testimonies.8 The trial judge, therefore, can better
determine if such witnesses were telling the truth,
being in the ideal position to weigh conflicting
testimonies. Further, factual findings of the trial
court as regards its assessment of the witnesses’
credibility are entitled to great weight and respect by
the Court, particularly when the Court of Appeals
affirms the said findings, and will not be disturbed
absent any showing that the trial court overlooked
certain facts and circumstances which could
substantially affect the outcome of the case. After a
careful review of the records, the Court finds that no
compelling reason exists to warrant a deviation from
the foregoing principles, and that the RTC and the CA
committed no error in giving credence to the
testimonies of the prosecution witnesses.
Prosecution witnesses Java and Delos Reyes were
clear and consistent in the identification of appellant
as the one who fatally shot Atty. Segundo several
times. As aptly held by the CA:
563 | P a g e
In the case at bar, eyewitnesses Liezel Mae Java and
Juanchito Delos Reyes positively and categorically
identified the accused-appellant to be the assailant
of the murder (sic). Liezel Mae Java, in her
testimony, stated that she was one hundred percent
(100%) sure that the accused-appellant was the man
who shot her uncle. She could not forget the man
because even if it was around 6 o’clock in the
evening it was not yet totally dark and she was only
about one meter from the accused. Juanchito Delos
Reyes also declared that he was about four (4) to six
(6) meters away from the scene of the crime and he
saw the accused making a sign at him, by the time he
aimed his gun at the assailant. These direct,
straightforward and positive testimonies of the
aforesaid witnesses pointing to the accused
appellant as the gunman created strong and credible
evidence against him, thus no weight can be given to
the alibi of the accused.9
Murder is defined under Article 24810 of the Revised
Penal Code as the unlawful killing of a person, which
is not parricide or infanticide, attended by
circumstances such as treachery or evident
premeditation.11 The essence of treachery is the
sudden attack by the aggressor without the slightest
provocation on the part of the victim, depriving the
latter of any real chance to defend himself, thereby
ensuring the commission of the crime without risk to
the aggressor.12 Two conditions must concur for
treachery to exist, namely, (a) the employment of
means of execution gave the person attacked no
opportunity to defend himself or to retaliate; and (b)
the means or method of execution was deliberately
and consciously adopted.13 In People v. Biglete,14 the
Court ruled:
x x x Indeed, the victim had no inkling of any harm
that would befall him that fateful night of August 27,
2001. He was merely plying his regular [jeepney]
route. He was unarmed. The attack was swift and
unexpected. The victim’s arms were on the steering
wheel; his focus and attention on the traffic before
him. All these showed that the victim was not
forewarned of any danger; he also had no
opportunity to offer any resistance or to defend
himself from any attack.15
In this case, the trial court correctly ruled that the
fatal shooting of Atty. Segundo was attended by
treachery because appellant shot the said victim
suddenly and without any warning with a deadly
weapon, thus:
x x x Atty. Segundo G. Sotto, Jr., who was driving his
jeep with his teenage niece as passenger sitting on
his right side on the front seat, was totally unaware
that he will be treacherously shot just 200 meters
away from his residence. He was unarmed and was
not given any opportunity to defend himself or to
escape from the deadly assault. After he was hit
when the gunman fired the first two shots at him
and his niece and after he lost control of his jeep
which bumped an interlink wire fence and stopped,
he was again shot three times by the gunman. x x x16
The essence of evident premeditation, on the other
hand, is that the execution of the criminal act must
be preceded by cool thought and reflection upon the
resolution to carry out the criminal intent during a
space of time sufficient to arrive at a calm
judgment.17 For it to be appreciated, the following
must be proven beyond reasonable doubt: (1) the
time when the accused determined to commit the
crime; (2) an act manifestly indicating that the
accused clung to his determination; and (3) sufficient
lapse of time between such determination and
execution to allow him to reflect upon the
circumstances of his act.18 As aptly pointed out by
the Office of the Solicitor General, the trial court
conceded that the specific time when the accused
determined to commit the crime, and the interval
between such determination and execution, cannot
be determined.19 After a careful review of the
records, the Court agrees with the CA’s finding that
no evidence was adduced to prove the first and third
elements of evident premeditation.
In seeking his acquittal, appellant raises the defenses
of denial and alibi. However, such defenses, if not
substantiated by clear and convincing evidence, are
negative and self-serving evidence undeserving of
weight in law.20 They are considered with suspicion
and always received with caution, not only because
they are inherently weak and unreliable but also
because they are easily fabricated and concocted.
Denial cannot prevail over the positive testimony of
prosecution witnesses who were not shown to have
any ill-motive to testify against the
appellants.21 Between the categorical statements of
the prosecution eyewitnesses Java and Delos Reyes,
on one hand, and the bare denial of the appellant,
on the other, the former must prevail. After all, an
affirmative testimony is far stronger than a negative
testimony especially when it comes from the mouth
of a credible witness. In order for the defense
of alibi to prosper, it is also not enough to prove that
the accused was somewhere else when the offense
was committed, but it must likewise be shown that
he was so far away that it was not possible for him to
have been physically present at the place of the
crime or its immediate vicinity at the time of its
commission.22 The Court sustains the CA in rejecting
appellant’s defenses of denial and alibi, as follows:
In the instant case, accused-appellant failed to
present convincing evidence that he was indeed at
the barangay hall the whole day of February 10,
2004. Accused anchored his defense from the
testimonies of [the] Barangay Chairman, Barangay
Kagawad and Barangay Secretary, which were all
inconsistent from his very own statements in court.
564 | P a g e
First, accused claimed that on February 10, 2004, he
just stayed at the Barangay Hall and then did some
rounds at the school nearby. However, Barangay
Chairman Hussin claimed that accused just stayed
only at the barangay hall for the whole day. Second,
accused claimed that at around 5 o’clock in the
afternoon, he went home walking together with
Barangay Kagawad Jauhari Hussin. On the other
hand, Barangay Chairman testified that he went
home together with the accused at around 5 o’clock
in the afternoon of that day. Jauhari Hussin
corroborated [the] Barangay Chairman’s statement
saying that accused and the latter went home
together with the accused driving the motorcycle.
Third, accused claimed that they did not eat at the
house of the Barangay Captain, for they only had
long conversations and he only ate at their house, at
around 9 o’clock. Conversely, Barangay Captain
Hussin testified that accused stayed at their house
and ate dinner there. Fourth, accused claimed that
he does not know how to drive a motorcycle for he
was just learning the skill. On the other hand, the
barangay captain, corroborated by the testimony of
his brother Barangay Kagawad affirmed that the
accused and the former went home together by the
use of a motorcycle, with the accused driving it. All
of these are declarations of the defense witnesses
which, instead of corroborating accused’s defense
of alibi and denial, tend to diminish the credibility of
the accused.1avvphi1
Furthermore, even if the defense of alibi was
corroborated by [the] testimonies of the Barangay
Chairman, Barangay Kagawad, and Barangay
Secretary, it is undeserving of belief because it has
been held that alibi becomes more unworthy of
merit where it is established mainly by the accused
himself and his or her relatives, friends, and
comrades-in-arms, and not by credible persons.23
In contrast to the credible testimonies of the
prosecution witnesses Delos Reyes and Java who
positively identified appellant as the gunman, the
testimonies of the defense witnesses in support of
appellant’s denial and alibi, are tainted with material
inconsistencies.
On the one hand, Barangay Chairman Sarabi Hussin
testified that he, together with appellant, reported
for work at the Barangay Hall of Dita on February 10,
2004 at 7 o’clock in the morning and left at 5 o’clock
in the afternoon, and that he let appellant drive his
motorcycle from his home, to the barangay hall, and
back.24 Despite his insistence that he signed the
attendance logbook on February 10, 2004, Sarabi
later admitted that his signature does not appear
thereon.25 On the other hand, appellant testified
that Sarabi did not report for work that day, and that
aside from himself, the two (2) other persons at the
Barangay Hall that day were Barangay Kagawad
Jauhari Hussin and Barangay Secretary Sairaya
Temong.26 Appellant added that after 5 o’clock in the
afternoon of February 10, 2004, his companion in
going home was Barangay Kagawad Jauhari, and not
Sarabi.
With respect to the aggravating circumstances
alleged in the Information, the Court finds that the
trial court duly appreciated the presence of the use
of unlicensed firearm in the commission of the
crime, as well as the use of motor vehicle to facilitate
its commission and escape of the accused from the
crime scene.
To establish the special aggravating circumstance of
use of unlicensed firearm in the fatal shooting of
Atty. Segundo, the prosecution presented the
following evidence: (1) testimony of Delos Reyes that
the gun used by appellant was a "short gun"; 27 (2)
the testimony of SPO3 Ronnie Eleuterio and the
Certification28 from the Firearms, Explosives, Security
Agencies and Guards Section (FESAGS) of the Police
Regional Office 9 of the Philippine National Police
(PNP) to the effect that records of the said office do
not show that a firearms license, permit to carry or
permit to transport firearms outside of residence
were issued to appellant; (3) the request29 for
ballistics examination of two pieces .45 caliber slugs
recovered by the attending physicians on the body of
the victim and two pieces of .45 caliber slugs that
were test-fired from the .45 caliber pistol recovered
from appellant when he was arrested by NBI
operatives; and (4) FID Report No. 192-2-2-8-
200430 dated September 15, 2004 which contain the
result of the said examination.
In People v. Dulay,31 the Court ruled that the
existence of the firearm can be established by
testimony even without the presentation of the
firearm. In the said case, it was established that the
victims sustained and died from gunshot wounds,
and the ballistic examinations of the slugs recovered
from the place of the incident showed that they
were fired from a .30 carbine rifle and a .38 caliber
firearm. The prosecution witnesses positively
identified appellant therein as one of those who
were holding a long firearm, and it was also proven
that he was not a licensed firearm holder. Hence, the
trial court and the CA correctly appreciated the use
of unlicensed firearm as a special aggravating
circumstance.
In contrast, in People v. De Leon,32 the Court found
that the said aggravating circumstance was not
proven by the prosecution because it failed to
present written or testimonial evidence to prove
that appellant did not have a license to carry or own
a firearm. Although jurisprudence dictates that the
existence of the firearm can be established by mere
testimony, the fact that appellant therein was not a
licensed firearm holder must still be established.33
565 | P a g e
Despite the result of the ballistic examination that
the slugs test-fired from the gun recovered from
appellant when he was arrested, were different from
the 2 slugs recovered from the body of the victim,
the prosecution was still able to establish the special
aggravating circumstance of use of unlicensed
firearm in the commission of the crime. Given that
the actual firearm used by appellant in shooting the
victim was not presented in court, the prosecution
has nonetheless proven through the testimony of
Delos Reyes that the firearm used by appellant was a
"short gun."34 It has also established through the
testimony of SPO3 Ronnie Eleuterio and the
Certification35 from the FESAGS of the PNP that
appellant was not issued a firearms license, a permit
to carry or permit to transport firearms outside of
residence.
Notably, the term unlicensed firearm includes the
unauthorized use of licensed firearm in the
commission of the crime, under Section 5 36 of
Republic Act (RA) No.
8294.37 Assuming arguendo that the actual firearm
used by appellant was licensed, he still failed to
prove that he was so authorized to use it by the duly
licensed owner. The prosecution having proven that
appellant was not issued a firearms license or permit
to carry or permit to transport firearms, the burden
of evidence is then shifted to appellant to prove his
authorization to use the firearm. All told, the trial
court correctly appreciated the presence of the said
aggravating circumstance in imposing the penalty
against appellant.
Meanwhile, the use of a motor vehicle is aggravating
when it is used either to commit the crime or to
facilitate escape,38 but not when the use thereof was
merely incidental and was not purposely sought to
facilitate the commission of the offense or to render
the escape of the offender easier and his
apprehension difficult.39 In People v. Herbias,40 the
Court held:
The use of motor vehicle may likewise be considered
as an aggravating circumstance that attended the
commission of the crime. The records show that
assailants used a motorcycle in trailing and
overtaking the jeepney driven by Saladio after which
appellant’s back rider mercilessly riddled with his
bullets the body of Jeremias. There is no doubt that
the motorcycle was used as a means to commit the
crime and to facilitate their escape after they
accomplished their mission.41
The prosecution has proven through the testimonies
of Java and Delos Reyes that appellant was riding a
motorcycle behind the unknown driver when he
twice shot Atty. Segundo who thus lost control of his
owner-type jeep and crashed into the interlink wire
fence beside the road. The motorcycle then stopped
near the jeep, and appellant shot Atty. Segundo
again thrice, before leaving the crime scene aboard
the motorcycle. Clearly, the trial court correctly
appreciated the generic aggravating circumstance of
use of motor vehicle in the commission of the crime.
Since the fatal shooting of the victim was attended
by the qualifying circumstance of treachery, the
Court upholds the trial court in convicting appellant
of the crime of murder. The penalty for murder
under Article 248 of the Revised Penal Code
is reclusion perpetua to death. Article 63 of the same
Code provides that, in all cases in which the law
prescribes a penalty composed of two indivisible
penalties, the greater penalty shall be applied when
the commission of the deed is attended by one
aggravating circumstance. Although evident
premeditation was not established, the other
aggravating circumstances of use of unlicensed
firearm and use of motor vehicle in the commission
thereof, were alleged in the Information and proven
during the trial. The presence of such aggravating
circumstances warrants the imposition of the death
penalty. However, in view of the enactment of RA
No. 9346,42 the death penalty should be reduced
to reclusion perpetua "without eligibility for parole"
pursuant to A.M. No. 15-08-02-SC.43
Anent the civil liability of appellant, the award of
actual damages in the amount of P197,548.25 is in
order because the victim’s spouse, Gloria Sotto, had
testified that funeral expenses were incurred and
they were duly supported by official receipts.44
In addition, the award of civil indemnity is
mandatory and granted to the heirs of the victim
without need of proof other than the commission of
the crime.45 Even if the penalty of death is not to be
imposed because of the prohibition in R.A. No. 9346,
the award of civil indemnity of P75,000.00 is proper,
because it is not dependent on the actual imposition
of the death penalty but on the fact that qualifying
circumstances warranting the imposition of the
death penalty attended the commission of the
offense.46 In recent jurisprudence,47 the Court has
increased the award of civil indemnity from
P75,000.00 to P100,000.00.
Moreover, in line with current jurisprudence48 on
heinous crimes where the imposable penalty is
death but reduced to reclusion perpetua pursuant to
R.A. No. 9346, the award for moral damages has
been increased from P75,000.00 to P100,000.00,
while the award for exemplary damages has likewise
been increased from P30,000.00 to P100,000.00.
Hence, while the CA correctly affirmed the trial
court’s award of P100,000.00 as moral damages, the
award of civil indemnity and exemplary damages in
the amounts of P50,000.00 each should be both
increased to P100,000.00. The award of moral
damages is called for in view of the violent death of
the victim, and these do not require any allegation or
566 | P a g e
proof of the emotional sufferings of the heirs.49 The
award of exemplary damages is also proper because
of the presence of the aggravating circumstances of
use of unlicensed firearm and use of a motor vehicle
in the commission of the crime.
However, the Court is constrained to disallow the
award of P4,398,000.00 as compensation for loss of
earning capacity for insufficiency of evidence. The
rule is that documentary evidence should be
presented to substantiate a claim for loss of earning
capacity.50 By way of exception, damages for loss of
earning capacity may be awarded despite the
absence of documentary evidence when: (1) the
deceased is self-employed and earning less than the
minimum wage under current labor laws, in which
case, judicial notice may be taken of the fact that in
the deceased's line of work, no documentary
evidence is available; or (2) the deceased is
employed as a daily wage worker earning less than
the minimum wage under current labor laws.51 None
of such exceptions was shown to obtain in this case.
Even if the testimony of Gloria Sotto, the victim’s
spouse, was not disputed by the defense, the
prosecution failed to present any documentary
evidence to prove the victim’s monthly income.
Thus, the Court disagrees with the trial court in
awarding P4,398,000.00 as compensation for loss of
earning capacity based on the unsubstantiated
testimony of Gloria that her husband had a good law
practice and earned at least P50,000.00 a month or
P600,000.00, as one of the prominent law
practitioners in Zamboanga City with almost daily
appearance in court. Be that as it may, in light of
settled jurisprudence and of Gloria’s undisputed
testimony, the Court finds it reasonable to award
P1,000,000.00 as temperate damages in lieu of
actual damages for loss of earning capacity. As held
in Tan, et al. v. OMC Carrier, Inc., et al.:52
In the past, we awarded temperate damages in lieu
of actual damages for loss of earning capacity where
earning capacity is plainly established but no
evidence was presented to support the allegation of
the injured party’s actual income.
In Pleno v. Court of Appeals, we sustained the award
of temperate damages in the amount of P200,000.00
instead of actual damages for loss of earning
capacity because the plaintiffs’ income was not
sufficiently proven.
We did the same in People v. Singh, and People v.
Almedilla, granting temperate damages in place of
actual damages for the failure of the prosecution to
present sufficient evidence of the deceased’s
income.
Similarly, in Victory Liner, Inc. v. Gammad, we
deleted the award of damages for loss of earning
capacity for lack of evidentiary basis of the actual
extent of the loss. Nevertheless, because the
income-earning capacity lost was clearly established,
we awarded the heirs P500,000.00 as temperate
damages.53
Finally, all the damages awarded shall incur legal
interest at the rate of six percent (6%) per
annum from the finality of judgment until fully
paid.54
WHEREFORE, the appeal is DISMISSED. The Decision
dated October 25, 2011 of the Court of Appeals in
CA-G.R. CR-HC No. 00638-MIN is AFFIRMED with the
following MODIFICATIONS: (1) to qualify the penalty
of reclusion perpetua to be "without eligibility for
parole"; (2) to increase the award of civil indemnity
from P75,000.00 to P100,000.00; (3) to increase the
award of exemplary damages from P30,000.00 to
Pl00,000.00; (4) to award Pl,000,000.00 as
temperate damages in lieu of the award of
P4,398,000.00 as compensation for loss of earning
capacity of Atty. Segundo G. Sotto Jr.; and (5) to
impose the legal interest rate of six percent (6%) per
annum on all the damages awarded from the finality
of judgment until fully paid.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
FIRST DIVISION
[G.R. NO. 185726 : October 16, 2009]
PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee, v. DARWIN BERNABE y GARCIA, Accused-
Appellant.
DECISION
LEONARDO-DE CASTRO, J.:
Before the Court is an appeal from a Decision 1 of the
Court of Appeals (CA) dated July 10, 2008 in CA-G.R.-
CR-HC No. 02619 affirming with modification the
decision2 of the Regional Trial Court of Las Piñas City,
Branch 202 (RTC) in Criminal Case No. 05-0683
finding accused-appellant Darwin Bernabe y Garcia
a.k.a. "Bong" guilty beyond reasonable doubt of the
crime of Murder.
The information,3 dated June 7, 2005, charged
accused-appellant with Murder, to wit:
That on or about the 26th day of May, 2005, in the
City of Las Piñas, Philippines and within the
jurisdiction of this Honorable Court, the above-
named accused, with intent to kill and without
justifiable motive, did, then and there, willfully,
567 | P a g e
unlawfully and feloniously, with treachery, evident
premeditation abuse of superior strength, and
cruelty, assault, attack, hit the head of one JANN
MICHAEL OLIVO Y FRANCIA with an iron pipe,
causing the latter to fall unconscious, in which state
said accused strangled the victim with a G.I. wire,
directly causing the death of said JANN MICHAEL
OLIVO y FRANCIA.
CONTRARY TO LAW.
When arraigned, accused-appellant pleaded not
guilty and trial on the merits ensued.
The prosecution presented six witnesses, namely,
Alvin Tarrobago (Alvin), and Jomar Butalid (Jomar),
who both witnessed the commission of the crime;
Dr. Ruperto Sambilon, Jr., the Medico Legal Officer
who performed the autopsy on the victim's body;
Nora Olivo, the victim's mother; SPO2 Roger Bato;
and Prudencio Aristan. The following narration of
events is culled from the testimonies of
eyewitnesses Alvin and Jomar, as well as those of the
other witnesses.
In the evening of May 25, 2005, accused-appellant
invited Jomar, Alvin, and three girls known only as
Kambal, Mandy, and Cherry to his house for a
drinking spree. Accused-appellant allowed his guests
to stay on and sleep in his bedroom.
At about 2:00 a.m. of May 26, 2005, Jomar was
awakened by the voice of accused-appellant telling
Alvin to join him in buying some cigarettes. Outside
the house, they met the victim Jann Michael Olivo.
While the three were walking along Chico Street, the
victim told accused-appellant that he knew the
latter. Accused-appellant poked a gun at the victim
and ordered the latter to go with them to accused-
appellant's house where he started questioning the
victim why the latter was roaming around the house.
Jomar, who was in the bedroom, heard accused-
appellant strongly utter the words, "Sino ang
nagbayad sa iyo na subaybayan ako," to which the
victim answered "Walang nagutos sa akin na
subaybayan ka." Then, Jomar heard some punching
sounds and then he heard a person plead, "Kuya
Bong parang awa niyo na ho kahit dito na lang ako
tumira sa inyo, huwag mo lang akong patayin."
Accused-appellant replied, "Hindi naman kita
papatayin, aminin mo lang sa akin kung sinong
nagbayad sa iyo para subaybayan ako. Sabihin mo
lang sa akin at dodoblehin ko ang bayad."4
Unable to go back to sleep, Jomar peeped outside
the bedroom. He saw accused-appellant holding a
piece of wood while the victim was sitting near the
front door of the house. He also saw Alvin, who was
seemingly frightened, seated near another room.
Jomar stayed inside the bedroom from where he
saw accused-appellant hit the victim thrice with the
piece of wood until it broke. Accused appellant then
instructed the weakened victim to undress while he
went to the kitchen to get a toothbrush and some
lotion. Accused-appellant commanded the victim to
bend over and the former then put lotion on the
victim's butt. The victim shouted in pain as accused-
appellant inserted the toothbrush into the victim's
anus.5
Accused-appellant continued to interrogate the
victim and hit the latter two times with a metal pipe.
He then ordered the victim to lie down and tied the
latter's hands with a plastic straw. Accused-appellant
got GI wire or "alambre," placed a gray shirt over the
victim's head, and then strangled the latter with the
wire. While doing this, accused-appellant called out
to Jomar and Alvin and ordered the two to hold the
struggling victim's feet. When the victim stopped
breathing, accused-appellant got hold of two sacks
from his bodega or stockroom, put the lifeless body
inside the sacks, placed it at a corner of the house,
and covered it with "yero" or GI sheets. In the
afternoon of May 26, 2005, accused-appellant and
Alvin borrowed the sidecar of Prudencio Aristan
(Aristan).6
At dawn of May 27, 2005, accused-appellant
commanded Alvin and Jomar to load the victim's
body on the sidecar and dispose of the same. The
two dumped the corpse in a water lily-filled vacant
lot located on Guyabano St., Golden Acres
Subdivision, Talon Uno, Las Piñas. Thereafter,
accused-appellant threatened Alvin and Jomar that
he will kill them if they report the incident to the
police. Jomar and Alvin then went their separate
ways and into hiding.7
The victim's body was found at 11:30 a.m. on May
27, 2005 and brought to the Funeraria Filipinas
where an autopsy was performed by Medico Legal
Officer Dr. Ruperto J. Sambilon, Jr. The Autopsy
Report8 contained the following findings:
Body in early to moderate state of decomposition,
bloated and with eyeballs having prominent
appearance and seemingly about to pop-out from
the eye sockets.
Cyanosis, marked, head, neck and upper areas of the
torso.
Lacerated wound, 3.0 cm., forehead, left aspect.
Ligature marks:
1. Neck, 55.0 cm. long circumference, oriented
horizontally around the neck below the thyroid
cartilage. Widest portion 0.7 cm. at the right side
and the narrowest portion 0.3 cm. at the left antero-
lateral aspect. Approximate depth 0.4-0.5 cm.
568 | P a g e
2. Left wrist area, two (2) in number. Upper one is
16.0 cm long and 2.5 cm. wide and 0.2-0.3 cm.
deepest portion, almost completely surrounding the
distal 3rd of the left forearm near the wrist joint;
12.0 cm. long and 1.0 cm. wide 0.2-0.3 cm. deepest
portion, and almost completely [surrounding] the
wrist.
3. Right wrist area, 16.0 cm. long, 1.0 cm. wide and
approximately 0.2 cm. deepest portion, incompletely
surrounding the wrist.
Fracture, windpipe (trachea), 2nd ring below the
thyroid cartilage, complete, close.
Hemorrhage, moderate, soft tissues, surrounding
fractured ring. Neck muscular layer, anterior to
trachea.
Heart and lungs: with several Tardieu's spots noted
in the subepicardial and subpleural layers.
Tracheal wall, markedly congested.
Brain, in moderate liquefaction.
Other visceral organs, congested.
Stomach, about - filled with yellowish fluid.
CAUSE OF DEATH: ASPHYXIA BY STRANGULATION
(Words in brackets ours.)
On June 3, 2005, relatives of Jomar and Alvin
arranged the surrender of the two minors to the
authorities. Upon inquiry, they divulged what they
witnessed and how they allegedly accidentally
participated in the commission of the crime. They
voluntarily offered themselves to help in the
immediate arrest of accused-appellant.9 On June 4,
2005, Alvin and Jomar executed their respective
Sinumpaang Salaysay.10
On or about 7:30 p.m. of June 3, 2005, accused-
appellant was arrested on follow-up operation at his
hideout on Camias St., Golden Acres Subdivision,
Talon Uno, Las Piñas. Confiscated from the
possession of the accused-appellant were: a) a black
nylon holster; b) one (1) live ammunition for a
caliber .38 revolver; and c) a knife. The accused-
appellant was brought to the Las Piñas Police Station
for investigation and proper disposition.11
The testimony of Dr. Ruperto J. Sambilon, Jr. was
dispensed with in view of the stipulation of
facts12 entered into by the prosecution and the
defense, viz:
1. Dr. Sambilon was an expert witness;
2. He conducted an autopsy on the cadaver of the
victim Jann Michael Olivo; andcralawlibrary
3. Based on his findings, the cause of death of the
victim was asphyxia by strangulation.
In lieu of the testimony of the victim's mother, Nora
Olivo, the prosecution and the defense entered into
the following stipulation of facts:13
1. She is the mother of the victim, Jann Michael
Olivo;
2. She can identify her affidavit and certain
documents relative to the case;
3. Before the death of her son, Jann Michael Olivo,
the latter was employed, as per Certification14 issued
by his employer;
4. The witness will present several documents to
prove the expenses incurred for the burial of the
victim; andcralawlibrary
5. The witness will present the death
certificate15 and the certificate of live birth16 of the
victim, as well as [a] picture of the victim.
Anent the testimony of SPO2 Roger Bato, the
prosecution and the defense entered into the
following stipulation of facts:17
1. That the witness was a member of the arresting
team who apprehended accused-appellant;
2. Upon investigation conducted, two persons by the
name of Jomar Butalid and Alvin Tarrobago narrated
the incident pertaining to the death of one Jann
Michael Olivo;
3. In connection with the said investigation, Jomar
Butalid and Alvin Tarrobago pointed to accused
Darwin Bernabe as the one who killed Jann Michael
Olivo; andcralawlibrary
4. After investigation, the arresting team caused the
arrest of the accused-appellant.
The defense made a counter-stipulation that SPO2
Bato had no personal knowledge of the alleged
commission of the crime; that the arresting team
was not armed with any warrant at the time of
arrest; and that the accused-appellant was only
arrested eight to nine days after the commission of
the crime.
With regard to the testimony of Aristan, the
prosecution and the defense entered into a
stipulation18 that both accused-appellant and Alvin
569 | P a g e
borrowed Aristan's pedicab in the afternoon of May
26, 2005.
The defense had another version of the facts. It
presented as witnesses accused-appellant Darwin
Bernabe, Amy Bandala, and Dr. Francisco Raura.
Accused-appellant's account of the incident is as
follows:
In the afternoon of May 25, 2005, accused-appellant
was cleaning his backyard when Jomar and Alvin
arrived and asked him if they could stay in his house.
Since he had known the two for more than five (5)
months already, accused-appellant allowed the two
to stay on condition that they help him clean his
backyard. He brought Alvin and Jomar along to the
"manukan," which was five (5) streets away from his
house, to visit his fighting cocks. After checking the
food and medication of his roosters, he invited his
caretaker, Noel Wagas, for a drinking session. Alvin
and Jomar took some shots of liquor. At around 8:30
p.m., the two asked accused-appellant's permission
to go back to the latter's house. Accused-appellant
handed them the key to his gate and stayed behind.
Accused-appellant arrived home at around 2:00 a.m.
of May 26, 2005 and found Alvin and Jomar having
an argument with the victim, who was allegedly
unknown to him at the time. He pacified the three
and asked the name of the victim who introduced
himself as Jann-jann. He told Alvin and Jomar to fix
the problem and have Jann-jann leave his house. He
then entered his bedroom where he saw three girls
sleeping. He got mad and scolded Jomar and Alvin.
He slept in another room until around 7:00 a.m.
When he woke up, the victim was already gone,
while the three girls were still sleeping. He found
Jomar and Alvin fixing things on the table.
He went to the manukan to check on his roosters
and returned home at around 1:00 p.m. to take his
lunch. He rested until 5:00 p.m. and then instructed
Alvin to borrow a sidecar in the nearby junkshop and
to dispose of the garbage. Thereafter, he proceeded
to his brother-in-law's house in Manuyo II, Las Pinãs
City to borrow money for the vitamins of his fighting
cocks. However, his brother-in-law was not there.
After waiting for some time, accused-appellant went
home. He arrived at his house at around 11:00 p.m.
He invited Jomar and Alvin to drink. He noticed that
Alvin was nervous. The following morning, he
observed Jomar and Alvin pacing back and forth and
having a conversation under the aratiles tree, but he
did not hear what they were talking about.
According to accused-appellant, Jomar asked if he
could borrow money because they were going to
some place. He then told the two to sell the scraps in
the stockroom and from the proceeds amounting
to P500.00, he gave them P300.00, and kept the
remaining P200.00. Jomar and Alvin left for Cavite
between 7:00 to 7:30 p.m. of May 27, 2005.
Accused-appellant denied the charges hurled against
him. He claimed that he had no capacity to strangle
the victim because he could not use his left hand
effectively after undergoing an operation on his two
(2) fingers.
In lieu of the oral testimony of Amy Bandala, the
prosecution and the defense entered into a
stipulation19 that Amy Bandala was the Medical
Records Supervisor of Las Piñas Doctor's Hospital
and she caused the production of the original copy
of the Record of Operation20 of accused-appellant
which showed that on June 15, 2003, Dr. Francisco
Raura operated on the accused-appellant's
neglected fracture on the 4th and 5th metacarpal
fingers.
On December 4, 2006, the RTC rendered its
judgment convicting accused-appellant of the crime
charged, thus:
WHEREFORE, accused Darwin Bernabe y Garcia a.k.a.
"Bong" is hereby pronounced guilty beyond
reasonable doubt of the crimes (sic) of murder
defined in Article 248 of the Revised Penal Code, as
amended, and there being no mitigating or
aggravating circumstances in the commission of the
crime is meted the penalty of reclusion perpetua.
Accordingly, herein accused is hereby ordered to pay
the heirs of the victim the amounts of P100,000.00
as civil indemnity, P100,000.00 as moral damages
and P33,000.00 as actual damages.
SO ORDERED.21
On appeal, the CA rendered the herein challenged
decision dated July 10, 2008, which affirmed with
modification the decision of the RTC. The pertinent
portions of the CA decision read:
Contrary to the trial court's finding of actual
damages in the amount of P33,000.00, the actual
damages established in evidence is only P23,000.00,
broken down as follows: Official Receipt No.
1333222 (Exhibit "D") dated 05/31/2005 issued by
the Manila Memorial Park Cemetery, Inc. in the
amount of P10,000.00 for cremation fee; and Official
Receipt No. 4191 (Exhibit "I") dated 10 June 2005
issued by the Funeraria Filipinas, Inc. in the sum
of P13,000.00 as payment for the funeral services.
When actual damages proven by receipts during the
trial amount to less than P25,000.00, such as in the
present case, the award of temperate damages
for P25,000.00, is justified in lieu of actual damages
for a lesser amount. Hence, the amount
of P25,000.00 as temperate damages is awarded to
the heirs of the victim in lieu of the actual damages
570 | P a g e
of P23,000.00 as proven by said official receipts. In
addition to the damages awarded, We also impose
on all the amounts of damages an interest at the
legal rate of 6% from this date until fully paid.
The trial court also found that there was no
aggravating nor mitigating circumstance and
imposed on appellant the penalty of reclusion
perpetua.
We modify.
The qualifying circumstance of treachery being
present, the crime committed by the appellant is
Murder under Article 248. The penalty for murder
under Article 248 of the Revised Penal Code
is reclusion perpetua to death. With the aggravating
circumstance of cruelty and no mitigating
circumstance, the penalty imposed should be in its
maximum, which is death. However, in view of
Republic Act No. 9346, entitled "An Act Prohibiting
the Imposition of Death Penalty in the Philippines,"
signed into law on June 24, 2006, the penalty
imposed must be reduced from death to reclusion
perpetua without eligibility for parole.
WHEREFORE, premises considered, the appeal is
DENIED. The Decision dated 04 December 2006 in
Crim. Case No. 05-0683 of the Regional Trial Court,
Las Piñas City, Branch 202, which found accused-
appellant Darwin Bernabe y Garcia a.k.a. "Bong"
guilty beyond reasonable doubt of Murder under
Article 248 of the Revised Penal Code, as amended,
is AFFIRMED with MODIFICATION in that, the
accused-appellant is hereby sentenced to reclusion
perpetua without eligibility for parole and ordered to
indemnify the heirs of the victim Jann Michael
Francia Olivo the amounts of Php 75,000.00 as civil
indemnity, Php 50,000.00 as moral damages, Php
25,000.00 as exemplary damages, Php 25,000.00 as
temperate damages and an interest on all the
damages awarded at the legal rate of 6% from this
date until fully paid.22
On March 6, 2009 and April 2, 2009, the Office of the
Solicitor General (OSG) and accused-appellant filed
their respective manifestations that they would no
longer file any supplemental brief and they were
submitting the case for decision based on the
pleadings filed.
The instant appeal is anchored on the catch-all
argument that accused-appellant's guilt has not been
proven beyond reasonable doubt.
Accused-appellant capitalizes on the alleged
inconsistencies in the testimonies of eyewitnesses
Alvin and Jomar in their direct examination and cross
examination. Accused-appellant points out that Alvin
had testified that he and accused-appellant first saw
the victim outside accused-appellant's house.
However, on cross examination, Alvin stated that
they saw the victim on Chico Street, the street next
to Camias Street where accused-appellant's house
was located. Alvin likewise testified that he was
locked up inside the bedroom while accused-
appellant was inflicting harm upon the victim. He
witnessed the incident because the bedroom
window was facing the living room, where the
incident allegedly took place. However, on cross
examination, he allegedly admitted that it was
impossible for him to have seen what was happening
at the sala through the bedroom window. While
Jomar corroborated the testimony of Alvin that it
was the accused-appellant who killed the victim, he
never testified that they were locked inside the room
when the incident allegedly happened. According to
him, he witnessed the incident because he went
outside the room. Accused-appellant even ordered
him and Alvin to hold the victim's feet, which order
they obeyed.
Accused-appellant suggests that it is quite strange
why Alvin and Jomar went into hiding right after the
incident, if they were not the ones who killed the
victim, while he remained in his house. He could
have fled if he was indeed responsible for the crime.
Lastly, accused-appellant maintains that he was
incapable of strangling the victim because the bones
of his two fingers were broken.
We are not persuaded by the aforesaid arguments of
accused-appellant. Hence, the appeal must be
denied.
True, there were discrepancies in the testimonies of
the two eyewitnesses, particularly as to their
participation (or non-participation) in the murder of
the victim. There was an apparent attempt on the
part of both witnesses, especially of Alvin, to
downplay their role in the whole incident. These
discrepancies, however, are not sufficient to negate
the guilt of accused-appellant. The evident attempt
of Alvin and Jomar to downplay their participation in
the commission of the crime did not completely
render weightless the evidentiary value of their
testimonies.
Alvin, who was seventeen (17) years old when
presented in court, recounted the acts of accused-
appellant in killing the victim, thus:
Q When you further saw Bong hitting Jann-Jann with
a piece of wood in his leg, what happened next after
that?cralawred
A When he repeatedly harm (sic) Jann-Jann, it was at
that time when he tied the hands of Jann-Jann at his
back, Sir.
xxx. crvll
571 | P a g e
Q Now what happened afterwards when he finished
tying both hands of Jann-Jann at Jann-Jann's
back?cralawred
A Jann-Jann pleaded not to kill him, Sir.
Q Now, after Jann-Jann pleaded to Darwin not to kill
him, what did Darwin do, if any?cralawred
A Bong did not [heed] such plea and he [seemed] to
be out of his mind, Sir.
Q And, what happened afterwards?cralawred
A Then, he hit Jann-Jann with a piece of pipe [on] his
head, Sir.
Q What object did Bong use in hitting Jann-Jann in
his head?cralawred
A Bakal, Sir.
Q When he hit Jann-Jann with a hard metal object in
his head, what happened to Jann-Jann?cralawred
A He lost consciousness, Sir.
Q After Jann-Jann lost consciousness because of the
hit (sic) in his head with the use of a metal object by
Bong, what happened afterwards?cralawred
A It was at that time that Bong strangled Jann-Jann,
Sir.
Q With the use of what, Mr. Witness?cralawred
A With a wire, Sir.
Q How did he do that? What did he do with the wire
before he strangled Jann-Jann?cralawred
A Tinali po sa leeg niya, sir.
SP QUIAMBAO
Your Honor, the witness has just demonstrated on
how the accused Bong alias Darwin Bernabe
wrapped - the wire around the neck of the deceased
Jann Michael Olivo.
Q And, what did he do after he finished 'tinali sa leeg
iyong wire' in the neck of the deceased Jann Michael
Olivo?cralawred
xxx. crvll
A He strangled viciously Jann-Jann, Sir.
Q With the use of what instrument, Mr.
Witness?cralawred
A The wire was wrapped around his hands, Sir.
Q What happened when he strangled Jann Michael
Olivo with the use of a metal wire?cralawred
A When he saw Jann-Jann dead, it was the time he
put Jann-Jann's body inside a sack, Sir.
Q Are you saying, Mr. Witness, that when Bong
strangled Jann-Jann with the use of that wire, that
was the time you came to know that Jann Michael
Olivo has died?cralawred
A Yes, sir.23 (Words in brackets ours.)
Alvin's testimony was corroborated by Jomar, who
was sixteen (16) years old when he was presented in
court. The trial court summarized his testimony,
thus:
The aforesaid testimony was, likewise, corroborated
by witness Jomar Butalid in his affidavit dated June
4, 2005. He narrated that on the day of the incident,
he saw the accused holding a piece of wood while
Alvin was sitting near another room seemingly
frightened. He also saw the victim sitting near the
front door of the house. Frightened at the scenery
he saw, Jomar never left the room. Subsequently,
Bong called him and ordered him to guard the said
victim. He then saw Bong hit the victim thrice with
the piece of wood until it broke. After which, he
again saw the accused [strike] the victim's head with
a pipe and later, strangled him to death with a
wire.24
Alvin and Jomar were consistent in pointing to
accused-appellant as the one who hit the victim with
a metal pipe in the head causing the latter to lose
consciousness, and who strangled the victim to
death using a G.I. wire (alambre).
The Court has held that although there may be
inconsistencies in the testimonies of witnesses on
minor details, they do not impair their credibility
where there is consistency in relating the principal
occurrence and positive identification of the
assailants.25
In People v. Togahan,26 the Court likewise held:
While witnesses may differ in their recollections of
an incident, it does not necessarily follow from their
disagreement that all of them should be disbelieved
as liars and their testimonies completely discarded
as worthless. As long as the mass of testimony jibes
on material points, the slight clashing statements
neither dilute the witnesses' credibility nor the
veracity of their testimony, for indeed, such
572 | P a g e
inconsistencies are but natural and even enhance
credibility as these discrepancies indicate that the
responses are honest and unrehearsed.
The trial court is correct in disregarding the minor
inconsistencies in the testimonies of Alvin and
Jomar. We quote with approval its findings on this
matter:
In the case at bar, there may be a few minor
inconsistencies in both the statements of the
prosecution witnesses as Alvin Tarrobago stated that
he was at the room where Jomar Butalid was
sleeping and saw through a window facing the sala
the ordeal that the victim [had] gone through in the
hands of the accused while Jomar Butalid narrated
that he went out of the said room and saw the
accused hitting the victim whereas Alvin was merely
sitting in the sala. However, these matters do not
affect the undeniable fact that the accused [had]
committed the crime charge[d]. The primordial
concern is the fact that it was the accused himself
who killed the victim through strangulation and as
testified by the two (2) prosecution witnesses who
saw the said dastardly act. The qualifying
circumstances of treachery and cruelty indeed
attended the killing of Jann Michael Olivo. Assuming
ex gratia arguendo that the statement of Jomar
Butalid would be believed, i.e., that he and Alvin
helped the accused in holding the legs of the victim,
they would still be exempted from criminal liability
as they did the said act because of fear. Article 12 of
the Revised Penal Code exempts a person from
criminal liability if he acts under the compulsion of
an irresistible force, or under the impulse of an
uncontrollable fear of equal or greater injury,
because such persons did not act with freedom.
The trial court accorded greater weight to the
testimonies of the prosecution witnesses and
dismissed accused-appellant's defenses of denial and
alibi, holding the same as self-serving evidence that
cannot be given evidentiary weight greater than that
of credible witnesses who testify on affirmative
matters. As often stressed by this Court, the issue of
credibility of witnesses is a function properly lodged
with the trial court, whose findings are entitled to
great weight and accorded the highest respect by
the reviewing courts.27
Accused-appellant attempts to deflect culpability to
Alvin and Jomar by pointing out that they were the
ones who went into hiding right after the incident.
As the Court held in People v. Simon,28 however,
different people react differently to a given situation,
and there is no standard form of behavioral response
when one is confronted with a strange, startling, or
frightful experience. In this case, we take into
account the fact that Alvin and Jomar were still
minors at the time they witnessed accused-
appellant's brutality. Moreover, accused-appellant
threatened to kill said witnesses if they reported the
matter to the authorities, as shown in Alvin's
testimony below:
Q And, after you were able to [dispose of] the body
of the deceased, what happened
afterwards?cralawred
A I and Jomar were led off by Bong and we were told
by Bong not to tell anything to the police because he
is going to kill us, Sir.
Q What did you feel when you were threatened by
accused Darwin Bernabe that you and Jomar would
be killed if ever you are going to tell to the police as
to what happened?cralawred
A Jomar and I were so afraid, Sir.
Q And, eventually, what did you do after the lapse of
certain number of days after this incident
happened?cralawred
A Jomar and I went separate ways and we [hid] for a
while and we were bothered by our conscience, Sir.29
Likewise in People v. Simon,30 the Court belittled the
defense's attempt to destroy the credibility of the
prosecution witness, declaring thus:
xxx There is no clear cut standard form of behavior
that can be drawn. Witnesses are usually reluctant
to volunteer information about a criminal case or are
unwilling to be involved in or dragged into criminal
investigations due to a variety of valid reasons. One
may immediately report the incident to the proper
authorities, while another, in fear and/or avoiding
involvement in a criminal investigation, may keep to
himself what he had witnessed. Others reveal the
perpetrator of the crime only after the lapse of one
year or so to make sure that the possibility of a
threat to his life or to his loved ones is already
diminished, if not totally avoided.
As to accused-appellant's defenses of alibi and
denial, he must prove not only that he was at some
other place at the time of the commission of the
crime but also that it was physically impossible for
him to be at the locus delicti or within its immediate
vicinity. Between the categorical statements of the
prosecution witnesses on one hand and the bare
denial of accused-appellant on the other, the former
must perforce prevail. Accused-appellant's alibi does
not meet the requirement of physical impossibility as
he was within the immediate vicinity of the scene of
the crime. The manukan was merely five (5) streets
away from his house, while Manuyo II is also within
Las Piñas City. In People v. Crisanto,31 the Court
reiterated:
573 | P a g e
It is jurisprudentially-embedded that where the A: Usually, Sir, but not all.
distance between the scene of the crime and the
alleged whereabouts of the accused is only two (2) Q: But at this time, you could tell this Honorable
kilometers, three (3) kilometers, or even five (5) Court that the accused, at this time, has lost the total
kilometers, the same are not considered to be too function of his left hand?cralawred
far as to preclude the possibility of the presence of
the accused at the locus criminis, even if the sole A: Sir, when we speak of total function is not capable
means of traveling between the two places at that of doing anything.
time was only by walking. xxx
Q: Yes, that is what I am trying to ask you?cralawred
Alibi and denial, if not substantiated by clear and
convincing evidence, are negative and self-serving
A: The affected bone is only 4th and 5th and the
evidence undeserving of weight in law. They are
majority bones that are needed for the proper
considered with suspicion and always received with
function to which are your first, second and third, it
caution, not only because they are inherently weak
is only fourth and fifth. So, if ever there would be
and unreliable but also because they are easily
some problem after the procedure, it is a little
fabricated and concocted.32
percentage only, Sir.
Lastly, accused-appellant claims that he is physically
Q: So, you are definite in stating, Mr. Witness, that
incapable of perpetrating the alleged criminal act
the first, second and third hand bones of the
against the victim because the bones of his two
accused, he is still capable of making use of his left
fingers were already broken.
hand?cralawred
Evidence on record reveals that the disability relied
A: Yes, Sir.33
upon by accused-appellant did not render him
incapable of perpetrating the crime. The testimony
The two courts below correctly appreciated
of defense witness Dr. Francisco Raura, the surgeon
treachery, which qualified the killing of Jann Michael
who operated on accused-appellant's hand on June
Olivo to Murder. The essence of treachery is the
15, 2003, belied accused-appellant's claim, thus:
sudden and unexpected attack by an aggressor on an
unsuspecting victim, depriving the latter of any real
Q: But, after the surgery that you performed on the
chance to defend himself, thereby ensuring its
accused on June 15, 2003, would you say that
commission without risk to the aggressor, and
accused has lost total function of his left
without the slightest provocation on the part of the
hand?cralawred
victim. As affirmed by the CA, the RTC found, thus:
A: Temporarily, yes Sir.
As vividly narrated by the prosecution witnesses, the
attack on the victim Jann Michael Olivo y Francia was
Q: So, in the long period of time after the surgery, is sudden wherein the victim had no inkling or
it a consequence after that surgery that the accused opportunity to anticipate the imminence of the
would regain the total function of his left attack of the accused nor was he in a position to
hand?cralawred
defend himself or repel the aggression because he
was unarmed. To ensure the success of his criminal
design, the accused hit the legs of the deceased
victim several times with a piece of wood so the
latter would be crippled and have no means to
escape. Then, the accused hit the victim with a piece
of pipe on the head which rendered the victim
unconscious. Lastly, the accused strangled the victim
to death by the use of a wire.34
We agree with the CA when it appreciated cruelty as
an aggravating circumstance in the murder of the
victim. Accused-appellant, with unmitigated cruelty,
inhumanly augmented the suffering of the victim.
We quote with approval the following disquisition of
the CA on this matter:
We also appreciate the presence of the aggravating
circumstance of cruelty as appellant deliberately and
inhumanly augmented the suffering of the victim.
Paragraph 21, Article 14 of the Revised Penal Code
provides that there is cruelty in the commission of a
felony when the wrong done in the commission of
the crime is deliberately augmented by causing other
wrong not necessary for its commission. There is no
cruelty when the other wrong is done after the
victim is already dead. The test in appreciating
cruelty as an aggravating circumstance is whether
the accused deliberately and sadistically augmented
the wrong by causing another wrong not necessary
for its commission, or inhumanly increased the
victim's suffering or outraged or scoffed at his
person or corpse. In the instant case, appellant
slapped the victim; hit the victim's legs with a piece
of wood; tied the victim's hands at his back; hit him
on the head by a piece of pipe; and when he lost
consciousness, appellant strangled him with a wire.
Witness Jomar further narrated in his Sinumpaang
Salaysay (Exhibit 'Q-1' ), viz:
574 | P a g e
S: Nakita kong pinalo ng kahoy ni Bong iyong
nakalikmong lalaki (biktima) sa ibabang tuhod nito
na napa-aray sa sakit at dalawa (2) pang sunod na
hataw na nagpatumba sa biktima. Nabali iyong
kahoy sa huling hataw ni BONG kaya lalong nagalit
ito at pinatayo itong biktima na umaaringking sa
sakit. Pagkatapos ay nagalit ito at pinatayo itong
biktima na umaaringking sa sakit. Pagkatapos ay nag-
utos itong si BONG na maghubad ng kanyang suot na
damit at sapatos itong biktima na noon ay naka-
briefs na lang. Nakita kung pumunta sa parating
kusina itong si BONG at kumuha ng sepilyo at lotion
na nakalagay sa sisidlang bilog at inutusan ang noon
ang takot na umiiyak na biktima na hubarin ang
kanyang briefs. Pinatuwad ni Bong and biktima na
hubad na ang briefs at pinahiran ito ng lotion sa
puwet.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
08T: Pagkatapos ano ang sumunod na
pangyayari?cralawred
S: Isinaksak ni BONG and hawak na sepilyo sa puwet
ng biktima at napasigaw sa sakit ito at nagmakaawa
pero parang sayang saya itong si Bong na nagsabi ng
'IYAN ANG PEBORIT KONG LARO, MASARAP BA
GUSTO MONG ULITIN KO?
It is clear from the foregoing that cruelty attended
the appellant's commission of the crime.
The CA's ruling finds support in People v.
Bonito,35 where the Court held, thus:
xxx The test in appreciating cruelty as an aggravating
circumstance is whether the accused deliberately
and sadistically augmented the wrong by causing
another wrong not necessary for its commission and
inhumanly increased the victim's suffering or
outraged or scoffed at his/her person or corpse. The
victim in this case was already weak and almost
dying when appellant Bonito inserted the cassava
trunk inside her private organ. What appellant
Bonito did to her was totally unnecessary for the
criminal act intended and it undoubtedly inhumanly
increased her suffering. xxx
The penalty for murder under Article 248 of the
Revised Penal Code is reclusion perpetua to death.
With the aggravating circumstance of cruelty and no
mitigating circumstance, the penalty imposed should
be in its maximum, which is death. However, in view
of Republic Act No. 9346,36 which was signed into
law on June 24, 2006, the penalty imposed must be
reduced from death to reclusion perpetua without
eligibility for parole.
We now review the award of damages. The CA
modified the damages awarded by the trial court
and made the following awards: P75,000.00 as civil
indemnity, P25,000.00 as temperate
damages, P50,000 as moral damages,
and P25,000.00 as exemplary damages.
As to damages awarded by the CA, modification is in
order. When death occurs as a result of a crime, the
heirs of the deceased are entitled to civil indemnity
for the death of the victim without need of proof of
damages. Prevailing jurisprudence dictates the
award of civil indemnity in the amount
of P75,000.00.37 Likewise, the awarded moral
damages should be increased to P75,000.00 and the
exemplary damages increased to P30,000.00 to
conform with current jurisprudence.38
The two courts below made no pronouncement as to
the loss of earning capacity. Indemnification for loss
of earning capacity partakes of the nature of actual
damages which must be duly proven. The certificate
of employment which did not state the victim's
salary is not enough proof for lost income to be
recovered. There must likewise be an unbiased proof
of the deceased's average income. An award for loss
of earning capacity refers to the net income of the
deceased, i.e., his total income net of expenses.39
WHEREFORE, the appeal is hereby DENIED and the
assailed Decision convicting accused-appellant,
imposing the penalty of reclusion perpetua without
eligibility for parole, is AFFIRMED with the
MODIFICATION that the monetary awards to be paid
by accused-appellant are as follows: P75,000.00 as
civil indemnity, P75,000.00 as moral
damages, P30,000.00 as exemplary damages,
and P25,000.00 as temperate damages; and interest
on all the damages awarded at the legal rate of 6%
per annum from this date until fully paid is
imposed.40
SO ORDERED.
EN BANC
G.R. No. 196342, August 08, 2017
PEOPLE OF THE PHILIPPINES, Petitioner, v. NOEL GO
CAOILI ALIAS "BOY TAGALOG", Respondent.
G.R. No. 196848, August 8, 2017
NOEL GO CAOILI, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
TIJAM, J.:
Assailed in these consolidated petitions for
review1 under Rule 45 of the Rules of Court are the
July 22, 2010 Decision2 and March 29, 2011
Resolution3 of the Court of Appeals (CA) in CA-G.R.
CR-HC No. 00576- MIN, which set aside the June 17,
2008 Decision4 of the Regional Trial Court (RTC) of
575 | P a g e
Surigao City, Branch 30, in Criminal Case No. 7363,
finding Noel Go Caoili (Caoili) alias "Boy Tagalog"
guilty of the crime of Rape by Sexual Assault under
paragraph 2 of Article 266-A of the Revised Penal
Code (RPC), as amended by Republic Act (R.A.) No.
8353,5 and remanded the case to the RTC for further
proceedings consistent with the CA's opinion.
The Facts
On June 22, 2006, First Assistant Provincial
Prosecutor Raul O. Nasayao filed an Information
against Caoili, charging him with the crime of rape
through sexual intercourse in violation of Article 266-
A, in relation to Article 266-B, of the RPC as
amended by R.A. No. 8353, and R.A. No. 7610.6 The
accusatory portion of the Information reads:
That on or about the 23rd day of October 2005, at
7:00 o'clock in the evening, more or less, in Purok
[III], Barangay [JJJ], [KKK], [LLL], Philippines, and
within the jurisdiction of this Honorable Court, the
above-named accused, with full freedom and
intelligence, with lewd design, did, then and there,
willfully, unlawfully and feloniously had sexual
intercourse with one [AAA],7 a minor, fifteen (15)
years of age and the daughter of the herein accused,
through force, threat and intimidation and against
her will, to her damage and prejudice in the amount
as may be allowed by law.
CONTRARY TO Article 266-A, in relation to Article
266-B of R.A. 8353, with the aggravating
circumstance that the accused is the father of the
victim and R.A. 7610[.]8
On July 31, 2006, the RTC issued an
Order9 confirming Caoili 's detention at the
Municipal Station of the Bureau of Jail Management
and Penology after his arrest10 on October 25, 2005.
Upon arraignment on September 15, 2006,11 Caoili
pleaded not guilty to the crime charged. After the
pre-trial, trial on the merits ensued.
The victim, AAA, testified that on October 23, 2005,
at 7:00p.m., her father, Caoili, sexually molested her
at their house located in Barangay JJJ, Municipality
of KKK, in the Province of LLL. Caoili kissed her lips,
touched and mashed her breast, inserted the fourth
finger of his left hand into her vagina, and made a
push and pull movement into her vagina with such
finger for 30 minutes. AAA felt excruciating pain
during and after the ordeal. Against her father's
harsh warning not to go out of the house, AAA
proceeded to the house of her uncle, BBB, located
20 meters away from their house. When he learned
of this, Caoili fetched AAA and dragged her home. He
beat and hit her with a piece of wood, and boxed her
on the stomach.12
On October 26, 2005, AAA disclosed to Emelia
Loayon (Loayon), the guidance counselor at AAA's
school, the sexual molestation and physical violence
committed against her by her own father. Loayon
accompanied AAA to the police station to report the
sexual and physical abuse. AAA also executed a
sworn statement13 regarding the incident before the
Municipal Mayor.14
AAA underwent a medical examination conducted by
Dr. Ramie Hipe (Dr. Hipe) at the [KKK] Medicare
Community Hospital. Dr. Hipe issued a medical
certificate dated October 26, 2005 showing that AAA
had suffered:15
xxxx
1. Contusion, 5 inches in width, distal 3rd,
lateral aspect, left Thigh.
2. Contusion, 2 cms in width, distal 3rd, lateral
aspect, left Forearm
 3. (+) tenderness, left parietal area, head
4. (+)tenderness, over the upper periumbilical
area of abdomen
5. tenderness, over the hypogastric area
xxxx
Genital Examination
xxxx
Hymen
- fimbriated in shape
- with laceration on the following:
-complete laceration - 12 o'clock position
- partial laceration - 3 o'clock position
-complete laceration - 6 o'clock position
-partial laceration - 8 o'clock position
-complete laceration - 9 o'clock position
-partial laceration - 11 o'clock position16
Dr. Hipe referred AAA to a Medical Specialist, Dr.
Lucila Clerino (Dr. Clerino), for further Medico-Legal
examination and vaginal smear. Dr. Clerino issued a
Supplementary Medical Certificate dated October
28, 2005, indicating that AAA's hymenal area had
lacerations complete at 6 o'clock and 9 o'clock
superficial laceration at 12 o'clock.17
AAA sought the assistance of the Department of
Social Welfare and Development which facilitated
her admission to a rehabilitation center run by the
Missionary Sisters of Mary.18
For his defense, Caoili denied molesting AAA. He
alleged that on October 23, 2005, at about 7:00p.m.,
he saw AAA with her boyfriend at the cassava
plantation. He recognized AAA by the fragrance of
her perfume and by the outline of her ponytail. He
even greeted them "good evening" but they did not
576 | P a g e
respond. He then went home. When AAA arrived at P50,000.00; moral damages of P50,000.00; and
their house, he confronted her and the latter exemplary damages of another P50,000.00.
admitted that she was with her boyfriend "Dodong"
earlier that evening. He was so angry so he struck SO ORDERED.21
AAA's right thigh with a piece of wood and pushed
the same piece of wood on her forehead. When AAA On September 29, 2008, pursuant to a Commitment
cried out in pain, he became remorseful and asked Order22 issued by the RTC on August 27, 2008,
for forgiveness, but AAA kept mum. After they had provincial jail guards escorted Caoili for his
supper, Caoili and his son slept in one room; while confinement at the Davao Prisons and Penal Farm,
AAA and her siblings slept in another room.19 Panabo, Davao del Norte (Davao Penal Colony).23
The RTC's Ruling Thereafter, Caoili filed his appeal before the CA.
On June 17, 2008, the RTC rendered its The CA's Ruling
Decision20 declaring Caoili guilty of rape by sexual
assault. The dispositive portion of the Decision
On July 22, 2010, the CA rendered the assailed
reads:
Decision,24 the dispositive portion of which reads,
thus:
WHEREFORE, finding the accused NOEL GO CAOILI
alias "Boy Tagalog" guilty beyond reasonable doubt,
FOR THESE REASONS, the appealed Decision of
as principal, of the crime of rape, defined and
Branch 30 of the Regional Trial Court of Surigao City,
penalized in paragraph 2 of Article 266-A in relation
in Criminal Case Nos. 7363, is SET ASIDE. Let this case
to Article 266-B of the Revised Penal Code, as
be as it is IMMEDIATELY REMANDED to the trial
amended by R.A. No. 8353, and after considering the
court for further proceedings consistent with this
aggravating circumstance of being the parent of the
opinion. Costs de oficio.
complainant, who was fourteen (14) years, one (1)
month and ten (10) days old at the time of the
SO ORDERED.25
incident in question, there being no mitigating
circumstance to off-set the same, this Court hereby
sentences the said accused to suffer imprisonment The CA held that although Caoili is clearly guilty of
rape by sexual assault, what the trial court should
for an indefinite period of TEN (10) YEARS and ONE
have done was to direct the State Prosecutor to file a
(1) DAY of Prision Mayor in its maximum period, as
new Information charging the proper offense, and
minimum, to SEVENTEEN (17) YEARS, FOUR (4)
after compliance therewith, to dismiss the original
MONTHS and ONE (1) DAY of Reclusion Temporal in
its maximum period, as maximum, and to pay the Information. The appellate court found it
"imperative and morally upright" to set the
costs. Four-fifths (4/5) of the preventive detention of
judgment aside and to remand the case for further
said accused shall be credited to his favor.
proceedings pursuant to Section 14, Rule 110,26 in
relation to Section 19, Rule 11927 of the Rules of
The same accused is hereby ordered to pay
Court.
complainant [AAA] an indemnity ex delicto of
Thereafter, Caoili and the Office of the Solicitor
General (OSG) filed their respective petitions for
review before this Court: G.R. No. 196342 was
instituted by the OSG and G.R. No. 196848 was filed
by Caoili. These petitions were ordered consolidated
by the Court in its Resolution28 dated on August 1,
2011.
In G.R. No. 196342, the OSG assails the CA's Decision
for not being in accord with the law and established
jurisprudence. Their petition was anchored on the
following grounds:29
I.
[CAOILI] WAS CONVICTED OF A CRIME NECESSARILY
INCLUDED IN THE OFFENSE CHARGED IN THE
INFORMATION AND EMBRACED WITHIN THE SAME
ARTICLE OF [R.A. NO.] 8353.
II.
[CAOILI'S] CONSTITUTIONAL RIGHT TO BE INFORMED
OF THE CHARGE AGAINST HIM WAS NOT VIOLATED
SINCE HE ACTIVELY PARTICIPATED DURING THE
TRIAL PROCEEDINGS AND NEVER QUESTIONED THE
PRESENTATION OF EVIDENCE SHOWING THAT THE
CRIME COMMITTED WAS SEXUAL ASSAULT AND NOT
SIMPLE RAPE.
III.
THE HONORABLE [CA] HAS ALREADY AFFIRMED THE
CONVICTION OF [CAOILI] FOR THE CRIME OF RAPE
BY SEXUAL ASSAULT.
IV.
THE LAST PARAGRAPH OF SECTION 14, RULE 110 OF
THE RULES OF COURT, IN RELATION TO SECTION 19,
577 | P a g e
RULE 119, OF THE SAME RULES, IS NOT APPLICABLE
IN THE INSTANT CASE.
In G.R. No. 196848, Caoili raises the following
issues30 for our consideration:
I.
WHETHER RAPE BY SEXUAL ASSAULT IS NECESSARILY
INCLUDED IN RAPE BY SEXUAL INTERCOURSE;
II.
WHETHER THE CASE MAY BE REMANDED TO THE
COURT A QUO FOR FURTHER PROCEEDINGS
PURSUANT TO SECTION 14, RULE 110 AND SEC. 19,
RULE 119 OF THE RULES OF COURT;
III.
WHETHER THE PROSECUTION HAS SUFFICIENTLY
ESTABLISHED BEYOND REASONABLE DOUBT THE
GUILT OF [CAOILI] ON [sic] THE CRIME CHARGED IN
THE INFORMATION;
IV.
WHETHER THE DECISION OF THE HONORABLE [CA]
ACQUITTED [CAOILI.]
The Court's Ruling
The petitions lack merit.
The prosecution has established rape by sexual
assault.
R.A. No. 8353 or the "Anti-Rape Law of 1997"
amended Article 335, the provision on rape in the
RPC, reclassifying rape as a crime against persons
and introducing rape by "sexual assault," as
differentiated from rape through "carnal knowledge"
or rape through "sexual intercourse."31 Incorporated
into the RPC by R.A. No. 8353, Article 266-A reads:
Article 266-A. Rape, When and How Committed.
Rape is committed -
1) By a man who shall havecarnal knowledge of a
woman under any of the following circumstances:
(a) Through force, threat or intimidation;
(b) When the offended party is deprived of reason or
is otherwise unconscious;
(c) By means of fraudulent machination or grave
abuse of authority; [and]
(d) When the offended party is under twelve (12)
years of age or is demented, even though none of
the circumstances mentioned above be present[.]
2) By any person who, under any of the
circumstances mentioned in paragraph 1 hereof,
shall commit an act ofsexual assault by inserting his
penis into another person's mouth or anal orifice, or
any instrument or object, into the genital or anal
orifice of another person.32 (Emphasis ours)
Thus, rape under the RPC, as amended, can be
committed in two ways:
(1) Article 266-A paragraph 1 refers to rape through
sexual intercourse, also known as "organ rape" or
"penile rape." The central element in rape through
sexual intercourse is carnal knowledge, which must
be proven beyond reasonable doubt.
(2) Article 266-A paragraph 2 refers to rape by sexual
assault, also called "instrument or object rape," or
"gender-free rape." It must be attended by any of
the circumstances enumerated in sub-paragraphs (a)
to (d) of paragraph 1.33 (Emphasis ours)
Through AAA's testimony, the prosecution was able
to prove that Caoili molested his own daughter when
he inserted his finger into her vagina and thereafter
made a push and pull movement with such finger for
30 minutes,34 thus, clearly establishing rape by
sexual assault35 under paragraph 2, Article 266-A of
the RPC.
Caoili, however, questions AAA's credibility, arguing
that her testimony lacked veracity since she
harbored hatred towards him due to the latter's
strict upbringing.36
The Court however, oppugns the veracity of Caoili's
claim.
It is settled that ill motives become inconsequential
if there is an affirmative and credible declaration
from the rape victim, which clearly establishes the
liability of the accused.37
AAA was a little over 15 years old when she
testified,38 and she categorically identified Caoili as
the one who defiled her. She positively and
consistently declared that Caoili inserted his finger
into her vagina and that she suffered tremendous
pain during the insertion. Her account of the
incident, as found by the RTC39 and the CA,40 was
clear, convincing and straightforward, devoid of any
material or significant inconsistencies.
In People v. Pareja,41 the Court held that:
578 | P a g e
[T]he "assessment of the credibility of witnesses is a
domain best left to the trial court judge because of
his unique opportunity to observe their deportment
and demeanor on the witness stand; a vantage point
denied the appellate courts, and when his findings
have been affirmed by the CA, these are generally
binding and conclusive upon this Court."42
While there are recognized exceptions to the rule,
this Court has found no substantial reason to
overturn the identical conclusions of the trial and
appellate courts on the matter of AAA's credibility. 43
When a rape victim's testimony on the manner she
was molested is straightforward and candid, and is
corroborated by the medical findings of the
examining physician, as in this case, the same is
sufficient to support a conviction for rape.44 In a long
line of cases,45 this Court has given full weight and
credit to the testimonies of child victims, considering
that their youth and immaturity are generally badges
of truth and sincerity. Indeed, leeway should be
given to witnesses who are minors, especially when
they are relating past incidents of abuse.46
It is likewise settled that in cases where the rape is
committed by a close kin, such as the victim's father,
stepfather, uncle, or the common-law spouse of her
mother, it is not necessary that actual force or
intimidation be employed; moral influence or
ascendancy takes the place of violence or
intimidation.47
Verily, the prosecution has sufficiently proved the
crime of rape by sexual assault as defined in
paragraph 2 of Article 266-A of the RPC. Caoili,
however, cannot be convicted of said crime.
Rape by sexual assault is not subsumed in rape
through sexual intercourse.
We cannot accept the OSG's argument that based on
the variance doctrine,48 Caoili can be convicted of
rape by sexual assault because this offense is
necessarily included in the crime of rape through
sexual intercourse.
The variance doctrine, which allows the conviction of
an accused for a crime proved which is different
from but necessarily included in the crime charged,
is embodied in Section 4, in relation to Section 5 of
Rule 120 of the Rules of Court, which reads:
Sec. 4. Judgment in case of variance between
allegation and proof. — When there is variance
between the offense charged in the complaint or
information and that proved, and the offense as
charged is included in or necessarily includes the
offense proved, the accused shall be convicted of the
offense proved which is included in the offense
charged, or of the offense charged which is included
in the offense proved. (Emphasis ours)
Sec. 5. When an offense includes or is included in
another. - An offense charged necessarily includes
the offense proved when some of the essential
elements or ingredients of the former, as alleged in
the complaint or information, constitute the latter.
And an offense charged is necessarily included in the
offense proved, when the essential ingredients of
the former constitute or form part of those
constituting the latter.
By jurisprudence,49 however, an accused charged in
the Information with rape by sexual intercourse
cannot be found guilty of rape by sexual assault,
even though the latter crime was proven during trial.
This is due to the substantial distinctions between
these two modes of rape.50
The elements of rape through sexual intercourse are:
(1) that the offender is a man; (2) that the offender
had carnal knowledge of a woman; and (3) that such
act is accomplished by using force or
intimidation.51 Rape by sexual intercourse is a crime
committed by a man against a woman, and the
central element is carnal knowledge.52
On the other hand, the elements of rape by sexual
assault are: (1) that the offender commits an act of
sexual assault; (2) that the act of sexual assault is
committed by inserting his penis into another
person's mouth or anal orifice or by inserting any
instrument or object into the genital or anal orifice
of another person; and that the act of sexual assault
is accomplished by using force or intimidation,
among others.53
In the first mode (rape by sexual intercourse): (1) the
offender is always a man; (2) the offended party is
always a woman; (3) rape is committed through
penile penetration of the vagina; and (4) the penalty
is reclusion perpertua.54
In the second mode (rape by sexual assault): (1) the
offender may be a man or a woman; (2) the
offended party may be a man or a woman; (3) rape is
committed by inserting the penis into another
person's mouth or anal orifice, or any instrument or
object into the genital or anal orifice of another
person; and (4) the penalty is prision mayor.55
The Court en banc's categorical pronouncement
in People v. Abulon,56 thus, finds application:
In view of the material differences between the two
modes of rape, the first mode is not necessarily
included in the second, and vice-versa. Thus, since
the charge in the Information in Criminal Case No.
SC-7424 is rape through carnal knowledge, appellant
cannot be found guilty of rape by sexual assault
although it was proven, without violating his
579 | P a g e
constitutional right to be informed of the nature and
cause of the accusation against him.57
Our esteemed colleague, Justice Marvic M.V.F.
Leonen (Justice Leonen), is of the view that Caoili
should be convicted of rape by sexual
intercourse.58 According to him, sexual intercourse
encompasses a wide range of sexual activities, and is
not limited to those involving penetration, genitals,
and opposite sexes;59 it may be penetrative or simply
stimulative.60 Thus, he maintains that Caoili's act of
inserting his finger into his daughter's genitalia
qualifies as carnal knowledge or sexual intercourse.61
The Court, however, cannot adopt Justice Leonen's
theory.
The language of paragraphs 1 and 2 of Article 266-A
of the RPC, as amended by R.A. No. 8353, provides
the elements that substantially differentiate the two
forms of rape, i.e., rape by sexual intercourse and
rape by sexual assault. It is through legislative
process that the dichotomy between these two
modes of rape was created. To broaden the scope of
rape by sexual assault, by eliminating its legal
distinction from rape through sexual intercourse,
calls for judicial legislation which We cannot traverse
without violating the principle of separation of
powers. The Court remains steadfast in confining its
powers within the constitutional sphere of applying
the law as enacted by the Legislature.
In fine, given the material distinctions between the
two modes of rape introduced in R.A. No. 8353, the
variance doctrine cannot be applied to convict an
accused of rape by sexual assault if the crime
charged is rape through sexual intercourse, since the
former offense cannot be considered subsumed in
the latter.
The Court, thus, takes this occasion to once again
remind public prosecutors of their crucial role in
drafting criminal complaints or Information. They
have to be more judicious and circumspect in
preparing the Information since a mistake or defect
therein may not render full justice to the State, the
offended party and even the offender.
Thus, in Pareja,62 the Court held that:
The primary duty of a lawyer in public prosecution is
to see that justice is done - to the State, that its
penal laws are not broken and order maintained; to
the victim, that his or her rights are vindicated; and
to the offender, that he is justly punished for his
crime.63
Caoili can be convicted of the crime of lascivious
conduct under Section 5(b) of R.A. No. 7610.
R.A. No. 761064 finds application when the victims of
abuse, exploitation or discrimination are children or
those "persons below 18 years of age or those over
but are unable to fully take care of themselves or
protect themselves from abuse, neglect, cruelty,
exploitation or discrimination because of a physical
or mental disability or condition."65
It is undisputed that at the time of the commission
of the lascivious act, AAA was fourteen (14) years,
one (1) month and ten (10) days old. This calls for
the application of Section 5(b) of R.A. No.
761066 which provides:
SEC. 5. Child Prostitution and Other Sexual Abuse.
Children, whether male or female, who for money,
profit, or any other consideration or due to the
coercion or influence of any adult, syndicate or
group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in
prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium
period to reclusion perpetua shall be imposed upon
the following:
xxxx
(b) Those who commit the act of sexual intercourse
or lascivious conduct with a child exploited in
prostitution or subjected to other sexual abuse:
Provided, That when the victim is under twelve (12)
years of age, the perpetrators shall be prosecuted
under Article 335, paragraph 3, for rape and Article
336 of Act No. 3815, as amended, the Revised Penal
Code, for rape or lascivious conduct, as the case may
be: Provided, That the penalty for lascivious conduct
when the victim is under twelve (12) years of age
shall be reclusion temporal in its medium period.
(Emphasis ours.)
The elements of sexual abuse under Section 5(b) of
R.A. No. 7610 are as follows:
(1) The accused commits the act of sexual
intercourse or lascivious conduct;
(2) The said act is performed with a child exploited in
prostitution or subjected to other sexual abuse; and
(3) The child, whether male or female, is below 18
years of age.67 (Emphasis ours)
The prosecution's evidence has sufficiently
established the elements of lascivious conduct under
Section 5(b) of R.A. No. 7610.
Caoili's lascivious conduct
580 | P a g e
The evidence confirms that Caoili committed Q Who has done this to you?
lascivious acts against AAA when he kissed her lips,
touched and mashed her breast, and inserted his A Noel Go Caoili.
finger into her vagina and made a push and pull
movement with such finger for 30 minutes.
Pros. Silvosa
AAA's testimony during direct examination showed
how her father, Caoili, committed lascivious acts
against her: Q If that Noel Go Caoili is present in the
courtroom, can you identify him?
(On Direct Examination) A Yes, sir.
Pros. Silvosa
Court
Q Now, was there any unusual incident that
happened at around 7:00 o'clock in the Q What is your relationship with Noel Caoili?
evening of October 23, 2005?
A My father.
A Yes, sir.
xxxx
Q What happened on October 23, 2005 at
around 7:00 o'clock in the evening?
A First, he kissed my lips, 2nd, he touched and Pros. Silvosa
mashed my breast and his 4th finger touched
my private part.
Q [AAA], you said that your father touched your
vagina and inserted his, the 4th finger of his left
Court hand, for how many minutes, if you could still
recall, when he inserted... I withdraw the
question, your Honor... What specifically did
Q 4th finger of what hand? he do with his 4th finger in your vagina?
A He inserted it in my vagina, sir.
A Left, your Honor.
xxxx Q While the finger was already inside your
vagina, what did he do with his finger?
 A He inserted it and pulled it, he inserted and
pulled it inside my vagina.
Q Can you still recall or how many or for how
long did he made [sic] the push and pull
movement of his fingers inside you vagina?
A Thirty 30 minutes, sir.
Q Now, what did you feel while the finger of your
father was inserted in your vagina?
A Pain, sir.68 (Emphasis ours)
AAA likewise confirmed on cross examination69 that
Caoili molested her. She even recounted that her
father threatened her not to tell anybody about the
incident.
Caoili's acts are clearly covered by the definitions of
"sexual abuse" and "lascivious conduct" under
Section 2 of the rules and regulations70 of R.A. No.
7610:
(g) "Sexual abuse" includes the employment, use,
persuasion, inducement, enticement orcoercion of a
child to engage in, or assist another person to
engage in, sexual intercourse orlascivious conduct or
the molestation, prostitution, or incest with children;
(h) "Lascivious conduct" means the intentional
touching, either directly or through clothing, of
the genitalia, anus, groin,breast, inner thigh, or
buttocks, or the introduction of any object into the
genitalia, anus or mouth, of any person, whether of
the same or opposite sex, with an intent toabuse,
humiliate, harass, degrade, or arouse or gratify
the sexual desire of any person, bestiality,
581 | P a g e
masturbation, lascivious exhibition of the genitals or
pubic area of a person. (Emphasis ours)
It has been settled that Section 5(b) of R.A. No. 7610
does not require a prior or contemporaneous abuse
that is different from what is complained of, or that
a third person should act in concert with the
accused.71
The victim's minority
AAA was a child below 18 years old at the time the
lascivious conduct was committed against her. Her
minority was both sufficiently alleged in the
Information and proved.
Influence and coercion
"Influence" is the improper use of power or trust in
any way that deprives a person of free will and
substitutes another's objective. On the other hand,
"coercion" is the improper use of power to compel
another to submit to the wishes of one who wields
it.72
In People v. Leonardo,73 the Court ruled that:
Section 5 of R.A. No. 7610 does not merely cover a
situation of a child being abused for profit, but also
one in which a child is coerced to engage in
lascivious conduct. To repeat, intimidation need not
necessarily be irresistible. It is sufficient that some
compulsion equivalent to intimidation annuls or
subdues the free exercise of the will of the offended
party. This is especially true in the case of young,
innocent and immature girls who could not be
expected to act with equanimity of disposition and
with nerves of steel. Young girls cannot be expected
to act like adults under the same circumstances or to
have the courage and intelligence to disregard the
threat.74
It cannot be denied that AAA, who is only a little
over 14 years old at the time the offense was
committed, was vulnerable and would have been
easily intimidated by an attacker who is not only a
grown man but is also someone exercising parental
authority over her. Even absent such coercion or
intimidation, Caoili can still be convicted of lascivious
conduct under Section 5(b) of R.A. No. 7610 as he
evidently used his moral influence and ascendancy
as a father in perpetrating his lascivious acts against
AAA. It is doctrinal that moral influence or
ascendancy takes the place of violence and
intimidation.75
It bears emphasis, too, that consent is immaterial in
cases involving violation of Section 5 of R.A. No.
7610.76 The mere act of having sexual intercourse or
committing lascivious conduct with a child who is
exploited in prostitution or subjected to sexual
abuse constitutes the offense because it is a malum
prohibitum, an evil that is proscribed.77
Clearly, therefore, all the essential elements of
lascivious conduct under Section 5(b) of R.A. No.
7610 have been proved, making Caoili liable for said
offense.
Variance doctrine applied
Caoili had been charged with rape through sexual
intercourse in violation of Article 266-A of the RPC
and R.A. No. 7610. Applying the variance doctrine
under Section 4, in relation to Section 5 of Rule 120
of the Revised Rules of Criminal Procedure, Caoili
can be held guilty of the lesser crime of acts of
lasciviousness performed on a child, i.e., lascivious
conduct under Section 5(b) of R.A. No. 7610, which
was the offense proved, because it is included in
rape, the offense charged.78 This echoes the Court's
pronouncement in Leonardo, viz.:
This Court holds that the lower courts properly
convicted the appellant in Criminal Case Nos. 546-V-
02, 547-V-02, 548-V-02, 554-V- 02 and 555-V-02 for
five counts of sexual abuse under Section 5(b),
Article III of Republic Act No. 7610 even though the
charges against him in the aforesaid criminal cases
were for rape in relation to Republic Act No. 7610.
The lower court['s] ruling is in conformity with
the variance doctrine embodied in Section 4, in
relation to Section 5, Rule 120 of the Revised Rules
of Criminal Procedure, x x x:
xxxx
With the aforesaid provisions, the appellant can be
held guilty of a lesser crime of acts of lasciviousness
performed on a child, i.e., sexual abuse under
Section 5(b), Article III of Republic Act No. 7610,
which was the offense proved because it is included
in rape, the offense charged.79 (Emphasis ours)
The due recognition of the constitutional right of an
accused to be informed of the nature and cause of
the accusation through the criminal complaint or
information is decisive of whether his prosecution
for a crime stands or not.80 Nonetheless, the right is
not transgressed if the information sufficiently
alleges facts and omissions constituting an offense
that includes the offense established to have been
committed by the accused,81 which, in this case, is
lascivious conduct under Section 5(b) of R.A. No.
7610.
Guidelines: Nomenclature of crime and penalties
for lascivious conduct under Section 5(b) of R.A.
No. 7610
582 | P a g e
The Court is aware of its previous pronouncements
where, applying the variance doctrine, it convicted
the accused, charged with the rape of a minor, for
the offense designated not as "Lascivious Conduct
under Section 5(b) of R.A. No. 7610" but as "Acts of
Lasciviousness under Article 336 of the RPC in
relation to Section 5(b) of R.A. No. 7610."
Thus, in People v. Bon,82 the accused was charged
with having carnal knowledge of a six-year-old child
against her will and with the use of force and
intimidation. The trial court convicted the accused of
rape. The evidence, however, merely showed that
accused inserted his finger into the victim's vaginal
orifice. Applying the variance doctrine, the Court en
banc held that the accused could still be made liable
for acts of lasciviousness under the RPC because said
crime is included in rape. The accused was convicted
of Acts of Lasciviousness under Article 336 of the
RPC in relation to Section 5(b) of R.A. No. 7610, since
all the elements of the said offense were
established.
Likewise, in Navarrete v. People,83 the accused was
charged with statutory rape for having sexual
intercourse with a five-year-old girl. Absent clear and
positive proof of the entry of accused's penis into
the labia of the victim's vagina, the trial court
convicted the accused of the crime of Acts of
Lasciviousness under Article 336 of the RPC in
relation to Section 5(b) of R.A. No. 7610. The CA and
this Court affirmed the conviction. In the case
of Bon,84 the Court held that the crime of acts of
lasciviousness is included in rape. The Court likewise
found that the victim's testimony established that
accused committed acts of lewdness which
amounted to lascivious conduct under R.A. No. 7610.
So also, in People v. Rellota,85 the Court modified the
accused's conviction for attempted rape86 of a 12-
year-old minor to a conviction for Acts of
Lasciviousness as defined in the RPC in relation to
Section 5 of R.A. No. 7610, holding that the
accused's acts, while lascivious, did not exactly
demonstrate an intent to have carnal knowledge
with the victim. The Court applied the variance
doctrine and reiterated that the crime of acts of
lasciviousness is included in rape. The conviction was
based on the Court's finding that the elements of
acts of lasciviousness under Article 336 of the RPC
and of lascivious conduct as defined in the rules and
regulations of R.A. No. 7610 have been established.
Based on the language of Section 5(b) of R.A. No.
7610, however, the offense designated as Acts of
Lasciviousness under Article 336 of the RPC in
relation to Section 5 of R.A. No. 7610 should be used
when the victim is under 12 years of age at the time
the offense was committed. This finds support in the
first proviso in Section 5(b) of R.A. No. 7610 which
requires that "when the victim is under twelve (12)
years of age, the perpetrators shall be prosecuted
under Article 335, paragraph 3, for rape and Article
336 of Act No. 3815, as amended, the Revised Penal
Code, for rape or lascivious conduct, as the case may
be." Thus, pursuant to this proviso, it has been held
that before an accused can be convicted of child
abuse through lascivious conduct on a minor below
12 years of age, the requisites for act of
lasciviousness under Article 336 of the RPC must be
met in addition to the requisites for sexual abuse
under Section 5 of R.A. No. 7610.87
Conversely, when the victim, at the time the offense
was committed, is aged twelve (12) years or over but
under eighteen (18), or is eighteen (18) or older but
unable to fully take care of herself/himself or protect
himself/herself from abuse, neglect, cruelty,
exploitation or discrimination because of a physical
or mental disability or condition,88 the nomenclature
of the offense should be Lascivious Conduct under
Section 5(b) of R.A. No. 7610, since the law no longer
refers to Article 336 of the RPC, and the perpetrator
is prosecuted solely under R.A. No. 7610.
In the case at bar, AAA was a little over 14 years old
when the lascivious conduct was committed against
her. Thus, We used the nomenclature "Lascivious
Conduct" under Section 5(b) of R.A. No. 7610.
Accordingly, for the guidance of public prosecutors
and the courts, the Court takes this opportunity to
prescribe the following guidelines in designating or
charging the proper offense in case lascivious
conduct is committed under Section 5(b) of R.A. No.
7610, and in determining the imposable penalty:
1. The age of the victim is taken into consideration in
designating or charging the offense, and in
determining the imposable penalty.
2. If the victim is under twelve (12) years of age, the
nomenclature of the crime should be "Acts of
Lasciviousness under Article 336 of the Revised Penal
Code in relation to Section 5(b) of R.A. No. 7610."
Pursuant to the second proviso in Section 5(b) of R.A.
No. 7610, the imposable penalty is reclusion
temporal in its medium period.
3. If the victim is exactly twelve (12) years of age, or
more than twelve (12) but below eighteen (18) years
of age, or is eighteen (18) years old or older but is
unable to fully take care of herself/himself or protect
herself/himself from abuse, neglect, cruelty,
exploitation or discrimination because of a physical
or mental disability or condition, the crime should be
designated as "Lascivious Conduct under Section 5(b)
of R.A. No. 7610," and the imposable penalty
is reclusion temporal in its medium period
to reclusion perpetua.89
583 | P a g e
The CA's order to remand the case to the trial
court is procedurally infirm.
The CA erred in remanding the case to the trial court
for the purpose of filing the proper Information on
the basis of the last paragraph of Section 14, Rule
110 and Section 19, Rule 119 of the Rules of Court,
which read:
Sec. 14. Amendment or substitution. — x x x
xxxx
If it appears at any time before judgment that a
mistake has been made in charging the proper
offense, the court shall dismiss the original
complaint or information upon the filing of a new
one charging the proper offense in accordance with
section 19, Rule 119, provided the accused shall not
be placed in double jeopardy. The court may require
the witnesses to give bail for their appearance at the
trial.
Sec. 19. When mistake has been made in charging
the proper offense. — When it becomes manifest at
any time before judgment that a mistake has been
made in charging the proper offense and the
accused cannot be convicted of the offense charged
or any other offense necessarily included therein,
the accused shall not be discharged if there appears
good cause to detain him. In such case, the court
shall commit the accused to answer for the proper
offense and dismiss the original case upon the filing
of the proper information. (Emphasis ours)
It is clear that the rules are applicable only before
judgment has been rendered. In this case, the trial
has been concluded. The RTC already returned a
guilty verdict, which has been reviewed by the CA
whose decision, in turn, has been elevated to this
Court.
The CA's judgment did not amount to an acquittal.
Contrary to Caoili's stance, the CA's decision did not
amount to a judgment of acquittal. It is true the CA
declared that given the substantial distinctions
between rape through sexual intercourse, as
charged, and rape by sexual assault, which was
proved, "no valid conviction can be had without
running afoul of the accused's Constitutional right to
be informed of the charge." This statement,
however, must be read alongside the immediately
succeeding directive of the appellate court,
remanding the case to the RTC for further
proceedings pursuant to Section 14, Rule 110 and
Section 19, Rule 119 of the Rules of Court. Said
directive clearly shows that the CA still had cause to
detain Caoili and did not discharge him; in fact, the
CA would have Caoili answer for the proper
Information which it directed the prosecution to file.
These are not consistent with the concept of
acquittal which denotes a discharge, a formal
certification of innocence, a release or an
absolution.90 While the procedure adopted by the CA
is certainly incorrect, its decision cannot be deemed
to have the effect of an acquittal.
Penalty and Damages
Considering that AAA was over 12 but under 18
years of age at the time of the commission of the
lascivious act, the imposable penalty is reclusion
temporal in its medium period to reclusion perpetua.
Since the crime was committed by the father of the
offended party, the alternative circumstance of
relationship should be appreciated.91 In crimes
against chastity, such as acts of lasciviousness,
relationship is always aggravating.92 With the
presence of this aggravating circumstance and no
mitigating circumstance, the penalty shall be applied
in its maximum period, i.e., reclusion
perpetua,93 without eligibility of parole.94 This is in
consonance with Section 31(c)95 of R.A. No. 7610
which expressly provides that the penalty shall be
imposed in its maximum period when the
perpetrator is, inter alia, the parent of the victim.
Likewise, Section 31(f)96 of R.A. No. 7610 imposes a
fine upon the perpetrator, which jurisprudence pegs
in the amount of Php 15,000.97
Parenthetically, considering the gravity and
seriousness of the offense, taken together with the
evidence presented against Caoili, this Court finds it
proper to award damages.
In light of recent jurisprudential rules, when the
circumstances surrounding the crime call for the
imposition of reclusion perpetua, the victim is
entitled to civil indemnity, moral damages and
exemplary damages each in the amount of Php
75,000.00, regardless of the number of qualifying
aggravating circumstances present.98
The fine, civil indemnity and all damages thus
imposed shall be subject to interest at the rate of six
percent (6%) per annum from the date of finality of
this judgment until fully paid.99
WHEREFORE, both petitions are DENIED. The Court
of Appeals' July 22, 2010 Decision and March 29,
2011 Resolution are SET ASIDE. Accused Noel Go
Caoili alias Boy Tagalog is guilty of Lascivious
Conduct under Section 5(b) of Republic Act No. 7610.
He is sentenced to suffer the penalty of reclusion
perpetua, without eligibility of parole, and to pay a
fine of Php 15,000.00. He is further ordered to pay
the victim, AAA, civil indemnity, moral damages and
584 | P a g e
exemplary damages each in the amount of Php
75,000.00. The fine, civil indemnity and damages so
imposed are subject to interest at the rate of six
percent (6%) per annum from the date of finality of
this Decision until fully paid.
SO ORDERED.
FIRST DIVISION
G.R. No. 208091, April 23, 2018
PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee, v. BENITO MOLEJON, Accused-Appellant.
DECISION
TIJAM, J.:
Challenged in this appeal1 is the Decision2 dated
April 24, 2013 of the Court of Appeals (CA) in CA-G.R.
CR. HC No. 00919-MIN, which affirmed with
modification the Joint Decision3 dated August 5,
2010 of the Regional Trial Court (RTC), Branch 1 of
Isabela, Basilan, convicting accused-appellant Benito
Molejon of five counts of Qualified Rape under Art.
266-A of the Revised Penal Code (RPC), as amended
by Republic Act No. 8353 (R.A.) No. 8353,4 in
Criminal Case Nos. 3895-604, 3896-605, 3897-606,
3901-608, 3902-609; and 11 counts of acts of
lasciviousness under Art. 336 of the RPC, in Criminal
Case Nos. 4156-798, 4157-799, 4158-800, 4159-801,
4160-802, 4161-803, 4162-804, 4163-805, 4164-806,
4165-807, and 4166-808.
The antecedent facts are as follows:
Accused-appellant Benito Molejon was charged in
five separate informations, with five counts of rape;
three of which was committed against his own 13-
year old stepdaughter AAA5 and, two against his 11-
year old stepdaughter BBB. Except for the dates of
the commission of the crime and the age of the
victims, the first information6 set forth allegations
similar to the other four informations, viz:
That in or about the 1st week of January, 2003, and
within the jurisdiction of this Honorable Court, viz.,
at Barangay Busay, Isabela City, Zamboanga
Peninsula, Philippines, the above[-] named accused,
by means of force, threat and intimidation, did then
and there willfully, unlawfully and feloniously
succeeded in having carnal knowledge of said AAA,
against her will.
That the commission of the crime of rape was
attended by the following aggravating/qualifying
circumstances, to wit:
1. That the victim was only thirteen (13) years old
during the commission of said crime;
2. That the offender is the step-father of the
offended party; and
3. That there was force, threat and intimidation.
Contrary to law.7
Accused-appellant was likewise charged in 11
separate informations with the crime of acts of
lasciviousness under Art. 335 of the RPC, eight of
which were committed against AAA and three
against BBB. Except for the dates of the commission
of the crime and the ages of the victims, the first
information8 set forth allegations similar to the other
ten informations, viz:
That on or about the 28th day of June, 2003, and
within the jurisdiction of this Honorable Court, viz.,
at Barangay Busay, Isabela City, Zamboanga
Peninsula, Philippines, the above[-]named accused,
actuated by lust, did then and there willfully,
unlawfully and feloniously, commit an act of
lasciviousness on the undersigned complainant, who
was only 11 years old, by then and there touching
and fingering her vagina, against her will and by
means of force.
Contrary to law.9
During his arraignment, accused-appellant pleaded
not guilty to all the charges against him. Thereafter,
the charges were consolidated and jointly heard. The
prosecution presented five witnesses, namely:
Complainants AAA; BBB; the victims' mother CCC; Dr.
Nilo R. Barandino; and PO2 Jane Jacinto Martin.
AAA, who was born on July 9, 1989,10 averred that
on different occasions, i.e., from July and August
2001, to September-December 2001, and January-
November 2002, up to January 2003, she was either
raped or sexually abused and molested by her own
step-father. She testified that on separate dates, the
accused-appellant would kiss her lips and neck, while
caressing her breasts and fingering her vagina
repeatedly. She recalled the time when accused-
appellant suddenly entered her room and once
inside, he kissed her lips, licked her vagina, mounted
her, inserted his penis into her vagina and made a
push-and-pull movement, causing her to cry in pain.
These beastly acts would be committed several
times, until January 2003. 11
For her part, BBB, who was born on February 5,
1992,12 gave an identical testimony of her step-
father's licentious acts, which she experienced from
October 2002 to May 2003, up to June 22, 2003 and
June 28, 2003. She narrated that accused-appellant
would insert his finger in her vagina, remove her
panties and eventually thrust his penis. She even felt
585 | P a g e
that accused-appellant excreted a sticky substance
while his penis was inside her vagina.13
AAA and BBB both testified that accused-appellant
threatened to kill them, including their mother and
siblings, if they ever divulge to anyone their awful
experience.14
The siblings' appalling ordeal would finally come to
an end in the afternoon of June 28, 2003, when their
mother CCC, witnessed accused-appellant standing
behind BBB, with his left hand inserted inside BBB's
shorts. Angered, CCC kicked and punched accused-
appellant. Thereafter, AAA and BBB started crying.
They revealed to CCC every act that accused
appellant committed against them.15
The rape incident and sexual abuse were
subsequently reported to the police, resulting to the
accused-appellant's arrest.
On June 29, 2003, CCC brought AAA and BBB to the
Provincial General Hospital, where they were
attended to by Dr. Barandino. According to the
doctor, the healed lacerations on the victims'
hymens was consistent with AAA's and BBB's
testimonies that they were raped by the accused
appellant long before the date of their medical
examinations.16
For his part, the accused-appellant denied the
charges. He claimed that no rape was committed
because the victims never testified that he uttered
threatening words, or that he was armed with a
weapon when the crimes were committed. Accused-
appellant likewise questioned the credibility of the
AAA's and BBB's testimonies. He argued that it is
contrary to human experience for AAA to continue
acting normally despite having been sexually abused.
As to BBB, accused-appellant maintained that he
could not have raped her since the room where the
incident happened was then occupied by her sister
and her mother.17
On August 5, 2010, the RTC rendered its
Decision,18 convicting the accused-appellant of five
counts of Qualified Rape under Art. 266-A of the
RPC, as amended by R.A. No. 8353; and 11 counts of
acts of lasciviousness under Art. 336 of the RPC.
On appeal, the CA rendered its April 24, 2013
Decision,19 affirming with modification the RTC's
Decision, only insofar as the award of damages is
concerned.
On June 6, 2013, accused-appellant appealed the
CA's Decision before this Court.
In his appeal, aside from invoking the defense of
denial and alibi, accused-appellant insists that the
testimonies of AAA and BBB failed to establish that
he committed rape and acts of lasciviousness against
them. He claims that since neither of the victims saw
what he supposedly inserted in their genitalia and
since they only narrated that the insertion caused
them pain, the prosecution failed to prove his guilt
beyond reasonable doubt. In short, accused-
appellant challenges the credibility of AAA and BBB,
including that of their testimonies.
The OSG, on the other hand, maintains that the
prosecution proved all the elements of the crime of
rape and acts of lasciviousness beyond reasonable
doubt, on the basis of the victims' positive and
candid narration of what transpired during the
harrowing incidents.
The appeal is bereft of merit.
The factual findings of the trial court, especially
when affirmed by the CA, are entitled to great
weight and respect. The trial court, as the original
trier of the facts, was in the best position to keenly
observe the witnesses rendering their respective
versions of the events that made up the occurrences
constituting the ingredients of the offense charged.20
After a careful review of the evidence and testimony
proffered by the prosecution, the Court opines that
the trial court and the CA were not mistaken in their
assessment of the testimonies of AAA and BBB. The
accused-appellant failed to show that both tribunals
overlooked a material fact that otherwise would
change the outcome of the case or misunderstood a
circumstance of consequence in their evaluation of
the credibility of the witnesses.21 Thus, this Court will
not disturb the RTC's findings of fact as affirmed by
the CA, but must fully accept the same.
Contrary to the accused-appellant's claim, the
alleged inconsistencies are understandable
considering that AAA and BBB were only minors at
the time they testified before the trial court. We
held in People v. Lagbo,22 that:
x x x Courts expect minor inconsistencies when a
child-victim narrates the details of a harrowing
experience like rape. Such inconsistencies on minor
details are in fact badges of truth, candidness and
the fact that the witness is unrehearsed. These
discrepancies as to minor matters, irrelevant to the
elements of the crime, cannot, thus, be considered a
ground for acquittal. x x x (Citations omitted)23
As correctly observed by the trial court:
The testimony of AAA and BBB are consistent on
material points. Slightly conflicting statements will
not undermine the witness's credibility or the
veracity of their testimony. They in fact tend to
buttress rather than impair their credibility as they
erase any suspicion of rehearsed testimony. The
586 | P a g e
defense was not able to elicit significant
contradictions in the testimonies of the child victims
to render them as purely imagined motivated only
by their desire to get even with the accused. The
claim of the accused that AAA and BBB never
disrespected him as they even kiss his hand and call
him tito is not indication enough [sic] that he never
committed the acts imputed on him and even when
taken together with the testimony of his brother
that there appeared to be no ill feelings pervading in
the family.
xxxx
Carnal knowledge had also been proven. The
respective testimonies of AAA and BBB vividly
describe their harrowing experience in the hands of
the accused. It bears emphasis that the accused
resorted to force, threat and intimidation to
consummate his lust. The Supreme Court has
consistently held that rape is committed when
intimidation is used on the victim, which includes
moral intimidation or coercion. The accused also
committed acts of lasciviousness using intimidation
on AAA and BBB. The essence of acts of
lasciviousness is lewd design, that is, deriving
vicarious pleasure from acts performed on the
person of the victim. The acts complained of have
been sufficiently proved by the testimonies of the
complainants.24
The CA echoed this assertion, when it pointed out
that:
The testimonies of AAA and BBB were direct, candid,
and replete with details of the acts of rape and
lasciviousness. They were consistent and
straightforward in their answers during the direct
and cross examination. They did not waiver in their
personal accounts of how the accused kissed them,
mashed their breasts and later 'fingering' their
genitalia, and in other instances inserted his penis
into their vaginas to consummate his lustful designs.
The presence of their mother in the house during the
incident did not discourage the appellant from
committing beastly acts on AAA and BBB. While
neither AAA nor BBB really put up a struggle more
palpable than merely trying to resist, it should be
noted nonetheless that appellant was unmistakably
threatening to kill them and all their loved ones.
Moreover, the fact that AAA and BBB had been living
with appellant who is their stepfather who had
considerable moral ascendancy over them
sufficiently explains why they did not offer a more
physical resistance.
xxxx
It would be foolish fallacy to say that the victims'
mere failure to shout or physically express their
tenacious resistance were equivalent to voluntary
submission to the lecherous conduct of the offender.
It was certainly enough that they had repeatedly
tried, though unsuccessfully, to resist his advances
and pleaded him to stop.25
We give short shrift to accused-appellant's
contention that he could not have sexually abused
AAA and BBB since they lived in a cramped house
with several occupants. Suffice it to say that lust is
no respecter of time or place, and rape defies
constraints of time and space.26 In People v.
Nuyok,27 We ruled that the presence of other
occupants in the same house where the accused and
the victim lived does not necessarily restrain the
accused from committing the crime of rape. Thus:
The presence of others as occupants in the same
house where the accused and AAA lived did not
necessarily deter him from committing the rapes.
The crowded situation in any small house would
sometimes be held to minimize the opportunity for
committing rape, but it has been shown repeatedly
by experience that many instances of rape were
committed not in seclusion but in very public
circumstances. Cramped spaces of habitation have
not halted the criminal from imposing himself on the
weaker victim, for privacy is not a hallmark of the
crime of rape. x x x28
Then, too, accused-appellant's defenses, consisting
of mere denial and alibi, fail to persuade Us.
Denial, if unsubstantiated by clear and convincing
evidence, is a self-serving assertion that deserves no
weight in law,29 as in this case. Likewise, alibi is one
of the weakest defenses not only because it is
inherently frail and unreliable, but also because it is
easy to fabricate and difficult to check or
rebut.30 Here, accused-appellant's alibi cannot
prevail over the positive identification of his own
step-daughters who had no improper motive to
testify falsely.
However, the CA Decision is modified as to the
penalty imposed and the damages awarded in
Criminal Case Nos. 3895-604, 3896-605, 3897-606,
3901-608, and 3902-609. For qualified rape by sexual
intercourse, accused-appellant is sentenced to suffer
the penalty of five counts of reclusion
perpetua without eligibility for parole,31 and is
ordered to pay AAA the amounts of P100,000 as civil
indemnity, P100,000 as moral damages and
P100,000 as exemplary damages for each count, in
line with current jurisprudence.32
The crime of qualified rape under paragraph 1,
Article 266-A of the RPC, is penalized under Article
266-B(1), which provides that the death penalty shall
be imposed if the victim is under 18 years of age and
the offender, among others, is the step-parent.
Applying R.A. No. 9346,33 the CA correctly imposed
the penalty of reclusion perpetua, and specified that
587 | P a g e
it is without eligibility for parole. When
circumstances are present warranting the imposition
of the death penalty, but this penalty is not imposed
because of R.A. No. 9346, the qualification "without
eligibility for parole" shall be used to
qualify reclusion perpetua in order to emphasize that
the accused should have been sentenced to suffer
the death penalty had it not been for R.A. No.
9346.34
Meanwhile, the damages awarded by the RTC, as
affirmed by the CA, should be modified in view
of People v. Jugueta35 where it was held that in cases
of qualified rape where the imposable penalty is
death but the same is reduced to reclusion
perpetua because of R.A. No. 9346, the amounts of
civil indemnity, moral damages and exemplary
damages shall be in the amount of P100,000 each.36
As regards the 11 counts of acts of lasciviousness
under Art. 336 of the RPC, in Criminal Case Nos.
4156-798, 4157-799, 4158-800, 4159-801, 4160-802,
4161-803, 4162-804, 4163-805, 4164-806, 4165-807,
and 4166- 808, the CA Decision is likewise modified
as to the nomenclature of the offense, the penalty
imposed and the damages awarded.
As We have held in People v. Caoili:37
Based on the language of Section 5(b) of R.A. No.
7610, however, the offense designated as Acts of
Lasciviousness under Article 336 of the RPC in
relation to Section 5 of R.A. No. 7610 should be used
when the victim is under 12 years of age at the time
the offense was committed. This finds support in the
first proviso in Section 5(b) of R.A. No. 7610 which
requires that "when the victim is under twelve (12)
years of age, the perpetrators shall be prosecuted
under Article 335, paragraph 3, for rape and Article
336 of Act No. 3815, as amended, the Revised Penal
Code, for rape or lascivious conduct, as the case may
be." x x x
Conversely, when the victim, at the time the offense
was committed is aged twelve (12) years or over but
under eighteen (18), or is eighteen (18) or older but
unable to fully take care of herself/himself or protect
himself/herself from abuse, neglect, cruelty,
exploitation or discrimination because of a physical
or mental disability or condition, the nomenclature
of the offense should be Lascivious Conduct under
Section 5(b) of R.A. No. 7610, since the law no longer
refers to Article 336 of the RPC, and the perpetrator
is prosecuted solely under R.A. No. 7610.
xxxx
2. If the victim is under twelve (12) years of age, the
nomenclature of the crime should be "Acts of
Lasciviousness under Article 336 of the Revised Penal
Code in relation to Section 5(b) of .R.A. No. 7610."
Pursuant to the second proviso in Section 5(b) of R.A.
No. 7610, the imposable penalty is reclusion
temporal in its medium period.
3. If the victim is exactly twelve (12) years of age, or
more than twelve (12) but below eighteen (18) years
of age, or is eighteen (18) years old or older but is
unable to fully take care of herself/himself or protect
herself/himself from abuse, neglect, cruelty,
exploitation or discrimination because of a physical
or mental disability or condition, the crime should be
designated as "Lascivious Conduct under Section 5(b)
of R.A. No. 7610," and the imposable penalty
is reclusion temporal in its medium period
to reclusion perpetua.38
Taking cue from the aforequoted statement, the
accused-appellant in Crim. Case Nos. 4156-798,
4157-799 and 4158-800, should be convicted of acts
of lasciviousness under Article 336 of the RPC in
relation to Section 5(b), Article III of R.A. No.
7610.39 This is so because the victim BBB was under
12 years old at the time of the commission of the
offense.
With respect, however, to Crim. Case Nos. 4159-801,
4160-802, 4161-803, 4162-804, 4163-805, 4164-806,
4165-807, and 4166-808, the proper nomenclature
of the offense should be lascivious conduct under
Section 5(b), Article III of R.A. No. 7610, for the
reason that the victim AAA was already 12 years of
age when the offense was committed.
Elements of the crime of Acts of Lasciviousness
under Article 336 of the RPC in relation to Section
5(b)
Jurisprudentially, before an accused can be held
criminally liable for lascivious conduct under Section
5(b) of R.A. No. 761 0, the requisites of the crime of
acts of lasciviousness as penalized under Article 336
of the RPC must be met in addition to the requisites
for sexual abuse under Section 5(b) of R.A. No.
7610.40
On the one hand, conviction under Article 336 of the
RPC requires that the prosecution establish the
following elements: (a) the offender commits any act
of lasciviousness or lewdness upon another person
of either sex; and (b) the act of lasciviousness or
lewdness is committed either (i) by using force or
intimidation; or (ii) when the offended party is
deprived of reason or is otherwise unconscious; or
(iii) when the offended party is under 12 years of
age.41
On the other hand, sexual abuse under Section 5(b),
Article III of R.A. No. 7610 has three elements: (1)
the accused commits an act of sexual intercourse or
lascivious conduct; (2) the said act is performed with
588 | P a g e
a child exploited in prostitution or subjected to other
sexual abuse; and (3) the child is below 18 years
old.42
First, it has been established that accused-appellant
committed lewd designs with his step-daughter. The
records show that accused-appellant on different
occasions, fingered, fondled and inserted his finger
into BBB's vagina. These acts undoubtedly constitute
lascivious conduct under Section 2(h) of the
Implementing Rules and Regulations (IRR) of R.A. No.
7610, to wit:
(h) "Lascivious conduct" means the intentional
touching, either directly or through clothing, of the
genitalia, anus, groin, breast, inner thigh, or
buttocks, or the introduction of any object into the
genitalia, anus or mouth, of any person, whether of
the same or opposite sex, with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the
sexual desire of .any person, bestiality,
masturbation, lascivious exhibition of the genitals or
public area of a person.
Second, accused-appellant, as a step-father having
moral ascendancy over his step-daughter, coerced
BBB to engage in lascivious conduct, which is within
the purview of sexual abuse. In Quimvel v.
People,43 We held:
As regards the second additional element, it is
settled that the child is deemed subjected to other
sexual abuse when the child engages in lascivious
conduct under the coercion or influence of any
adult. Intimidation need not necessarily be
irresistible. It is sufficient that some compulsion
equivalent to intimidation annuls or subdues the
free exercise of the will of the offended party. The
law does not require physical violence on the person
of the victim; moral coercion or ascendancy is
sufficient .
The petitioner's proposition-that there is not even an
iota of proof of force or intimidation as AAA was
asleep when the offense was committed and, hence,
he cannot be prosecuted under RA 7610-is bereft of
merit. When the victim of the crime is a child under
twelve (12) years old, mere moral ascendancy will
suffice. (Emphasis ours and citations omitted.) 44
Third, BBB, who was then 11 years old, was clearly
below 18 years old at the time of the commission of
the offense, based on her testimony which was
corroborated by her Birth Certificate presented
during the trial. Section 3(a), Article I of R.A. No.
7610 provides:
Section 3. Definition of Terms.-
(a) "Children" refers [to] persons below eighteen (18)
years of age or those over but are unable to fully
take care of themselves or protect themselves from
abuse, neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or
condition;
Elements of the crime of Lascivious Conduct under
Section 5(b) of R.A. No. 7610
As mentioned earlier, the elements of sexual abuse
under Section 5(b), Article III of Republic Act No.
7610 are as follows: (1) the accused commit the act
of sexual intercourse or lascivious conduct; (2) the
said act is performed with a child exploited in
prostitution or subjected to sexual abuse; and (3) the
child, whether male or female, is below 18 years of
age.
First, based on the records, accused-appellant
repeatedly committed the following acts against
AAA: kissing her neck and lips; inserting his finger
into her vagina; and licking and sucking her breasts.
These acts clearly falls within the scope of lascivious
conduct under Section 2(h) of the IRR of R.A. No.
7610.45
Second, the accused-appellant, having moral
ascendancy over his step-daughter, forced AAA to
engage in lascivious conduct, which is within the
contemplation of sexual abuse. Indeed, intimidation
need not necessarily be irresistible. It is sufficient
that some compulsion equivalent to intimidation
annuls or subdues the free exercise of the will of the
offended party. Moral coercion or ascendancy is,
thus, sufficient.46
Third, AAA testified that she was over 12 and below
18 years old at the time of the commission of the
offense. This was corroborated by her Birth
Certificate presented during trial.
We stress that although there was no mention of
Sec. 5(b), Article III of R.A. No. 7610 in the
information, this omission is not fatal so as to violate
his right to be informed of the nature and cause of
accusation against him. Indeed, what controls is not
the title of the information or the designation of the
offense, but the actual facts recited in the
information constituting the crime
charged.47 In Olivarez v. CA,48 this Court found the
information sufficient to convict the accused of
sexual abuse despite the absence of the specific
sections of R.A. No. 7610 alleged to have been
violated by the accused. Thus:
The information merely states that petitioner was
being charged for the crime of 'violation of R.A.
7610' without citing the specific sections alleged to
have been violated by petitioner. Nonetheless, we
do not find this omission sufficient to invalidate the
information. The character of the crime is not
determined by the caption or preamble of the
information nor from the specification of the
provision of law alleged to have been violated, they
589 | P a g e
may be conclusions of law, but by the recital of the
ultimate facts and circumstances in the complaint or
information. The sufficiency of an information is not
negated by an incomplete or defective designation
of the crime in the caption or other parts of the
information but by the narration of facts and
circumstances which adequately depicts a crime and
sufficiently apprise the accused of the nature and
cause of the accusation against him.
True, the information herein may not refer to
specific section/s of R.A. 7610 alleged to have been
violated by the petitioner, but it is all to evident that
the body of the information contains an averment of
the acts alleged to have been performed by
petitioner which unmistakably refers to acts
punishable under Section 5 of R.A. 7610. As to which
section of R.A. 7610 is being violated by petitioner is
inconsequential. What is determinative of the
offense is the recital of the ultimate facts and
circumstances in the complaint or
information.49 (Citations omitted.)
Here, the facts stated in the Information against the
accused-appellant correctly made out a charge for
violation of Article 336 of the RPC in relation to
Section 5(b) of R.A. No. 7610, with respect to BBB,
and Lascivious Conduct under Section 5(b) of R.A.
No. 7610, with respect to AAA. As discussed earlier,
the records show that accused-appellant, who
exercised moral ascendancy over his minor step-
daughters who were then under 11 and 12 years of
age, repeatedly coerced and forced them to engage
in lascivious conduct which is within the purview of
sexual abuse contemplated in Section 5(b). Thus,
even if the trial and appellate courts followed the
improper designation of the offense, accused-
appellant could be convicted of the offense on the
basis of the facts recited in the information and duly
proven during trial.50
Penalty of the crime of Acts of Lasciviousness
under Article 336 of the RPC in relation to Section
5(b)
Section 5(b) of R.A. No. 761051 provides that the
penalty for lascivious conduct, when the victim is
under 12 years of age, shall be reclusion temporal in
its medium period, which ranges from 14 years, 8
months and 1 day to 17 years and 4 months.52
Meanwhile, Section 1 of Act No. 4103,53 otherwise
known as the Indeterminate Sentence Law (ISL),
provides that if the offense is ostensibly punished
under a special law, the minimum and maximum
prison term of the indeterminate sentence shall not
be beyond what the special law prescribed.54 But as
We have clarified in People v. Simon,55 the situation
is different where although the offense is defined in
a special law, the penalty therefor is taken from the
technical nomenclature in the RPC. Under such
circumstance, the legal effects under the system of
penalties native to the Code would also necessarily
apply to the special law.
Here, since the crime was committed by the
stepfather of the offended parties, the alternative
circumstance of relationship should be
appreciated.56 In crimes against chastity, such as acts
of lasciviousness, relationship is always
aggravating.57 With the presence of this aggravating
circumstance and no mitigating circumstance, the
penalty shall be applied in its maximum period, i.e.,
sixteen (16) years, five (5) months and ten (10) days
to seventeen (17) years and four (4)
months,58 without eligibility of parole.59 This is in
consonance with Section 31(c)60 of R.A. No. 7610
which expressly provides that the penalty shall be
imposed in its maximum period when the
perpetrator is, inter alia, the stepparent of the
victim.
Accordingly, the prison term meted to accused-
appellant shall be 17 years and 4 months as
maximum. On the other hand, the minimum term
shall be taken from the penalty next lower
to reclusion temporal medium, that is reclusion
temporal minimum, which ranges from 12 years and
1 day to 14 years and 8 months.
In keeping with jurisprudence,61 accused-appellant is
liable to pay the victims P15,000 as fine pursuant to
Section 31(f)62 of R.A. No. 7610, as well as to pay
AAA and BBB the amounts of P20,000 as civil
indemnity, P15,000 as moral damages, and P15,000
as exemplary damages.
Penalty of the crime of Lascivious Conduct under
Section 5(b) of R.A. No. 7610
Considering that AAA was over 12 but under 18
years of age at the time of the commission of the
lascivious act, the imposable penalty is reclusion
temporal in its medium period to reclusion perpetua,
based on Section 5 (b) of RA 7610.63
Corrolarily, the alternative circumstance of
relationship should be appreciated since the crime
was committed by the step-father of the offended
party.64 With the presence of this aggravating
circumstance and no mitigating circumstance, the
penalty shall be applied in its maximum period, i.e.,
reclusion perpetua, without eligibility of
parole.65 This is in consonance with Section 31(c)66 of
R.A. No. 7610 which expressly provides that the
penalty shall be imposed in its maximum period
when the perpetrator is, inter alia, the stepparent of
the victim.
Likewise, Section 31(f)67 of R.A. No. 7610 imposes a
fine upon the perpetrator, which jurisprudence pegs
in the amount of P15,000.68 In light of recent
590 | P a g e
jurisprudence, when the circumstances surrounding
the crime ca11 for the imposition of reclusion
perpetua, the victim is entitled to civil indemnity,
moral damages and exemplary damages each in the
amount of P75,000, regardless of the number of
qualifying aggravating circumstances present.69
Further, the amount of damages awarded for each
and every count of qualified rape; acts of
lasciviousness under Article 336 of the RPC in
relation to Section 5(b) of R.A. No. 7610; and
lascivious conduct under Sec. 5(b) of R.A. No. 7610,
should earn interest at the rate of 6% per
annum from the finality of this judgment until said
amounts are fully paid.70
WHEREFORE, premises considered, the April 24,
2013 Decision of the Court of Appeals in CA-G.R. CR-
HC No. 00919-MIN is AFFIRMED with
MODIFICATION. Accused-appellant Benito Molejon is
hereby found GUILTY beyond reasonable doubt of
the following:
(1) Five counts of qualified rape in Criminal Case Nos.
3895-604, 3896-605, 3897-606, 3901-608, and 3902-
609. He is sentenced to suffer the penalty
of reclusion perpetua, in each count, without
eligibility for parole. For each and every count of the
crime of qualified rape, he is ordered to pay private
offended parties P100,000 as civil indemnity;
P100,000 as moral damages; and P100,000 as
exemplary damages; and
(2) Three counts of acts of lasciviousness under
Article 336 of the RPC in relation to Section 5(b),
Article III, of R.A. No. 7610, in Criminal Case Nos.
4156-798, 4157-799, and 4158-800. He is sentenced
to suffer the indeterminate imprisonment of 12
years and 1 day of reclusion temporal minimum, as
minimum to 17 years and 4 months of reclusion
temporal medium, as maximum. For each and every
count of acts of lasciviousness under Article 336 of
the RPC in relation to Section 5(b), Article III, of R.A.
No. 7610, he is ordered to pay the victim BBB
P15,000 as fine, as well as P20,000 as civil indemnity;
and moral damages and exemplary damages each in
the amount of P15,000.
(3) Eight counts of Lascivious Conduct under Section
5(b), Article III, of R.A. No. 7610 in Criminal Case Nos.
4159-801, 4160-802, 4161-803, 4162-804, 4163-805,
4164-806, 4165-807, and 4166-808. He is sentenced
to suffer the penalty of reclusion perpetua, without
eligibility of parole, and to pay a fine of P15,000. He
is further ordered to pay the victim, AAA, civil
indemnity, moral damages and exemplary damages
each in the amount of P75,000.
All monetary awards for damages shall earn an
interest rate of 6% per annum to be computed from
the finality of the judgment until fully paid.
SO ORDERED.
THIRD DIVISION
G.R. No. 215720, February 21, 2018
PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee, v. OSCAR MAT-AN Y ESCAD, Accussed-
Appellant.
DECISION
MARTIRES, J.:
On appeal is the 25 April 2014 Decision1 of the Court
of Appeals (CA) in CA-G.R. CR-H.C. No. 05858, which
affirmed with modifications the 4 September 2012
Joint Judgment2 of the Regional Trial Court of Baguio
City, Branch 59, in Criminal Case Nos. 29335-R and
29336-R, finding herein accused-appellant Oscar
Mat-An y Escad (Oscar) guilty beyond reasonable
doubt of the crimes of Slight Physical Injury and
Murder, defined and penalized under Article 266 and
Article 248 of the Revised Penal Code (RPC).
THE FACTS
On 13 April 2009, Oscar was charged with the crimes
of Attempted Homicide and Murder in two
Informations, the inculpatory allegations of which
respectively read, thus:
Criminal Case No. 29335-R (Attempted Homicide)
That on or about the 8th day of April 2009, in the
City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above
named accused, with intent to kill, did then and
there willfully, unlawfully and feloniously attempt to
kill ANTHONETTE EWANGAN, a 1 1/2 year old child,
by stabbing her with a knife at the nape, thus
commencing the commission of the crime of
homicide directly by overt acts, but was not able to
perform all the acts of execution which would
produce the crime of homicide as a consequence by
reason of some causes other than his own
spontaneous desistance, that is, due to some other
causes which prevented the accused from
consummating his unlawful purpose.
CONTRARY TO LAW.3
Criminal Case No. 29336-R (Murder)
That on or about the 8th day of April 2009, in the
City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above
named accused, with intent to kill and taking
advantage of superior strength and with evident
premeditation, did then and there willfully,
unlawfully and feloniously stab MINDA BABSA-AY, a
591 | P a g e
61-year old woman, twice on her chest with a knife,
thereby inflicting upon the latter: Multiple stab
wounds on the chest, and as a result thereof, said
MINDA BABSA-AY died.
That the killing was attended by the aggravating
circumstance of evident premeditation considering
that the killing was planned, deliberated upon and
the criminal design carried out by the accused, and
abuse of superior strength considering that the
accused being then armed with a knife took
advantage of his superiority in strength disregarding
the sex and age of the victim.
CONTRARY TO LAW.4
On 13 May 2009, the RTC granted Oscar's motion to
consolidate the two cases.5
On 2 June 2009, Oscar, duly assisted by counsel, was
arraigned and pleaded not guilty to the charges
against him.6
On 10 November 2009, pre-trial was conducted
wherein the parties entered into stipulations as to
the identity of the accused, among others; the
minority of Anthonette Ewangan (Anthonette)7; that
Oscar is the husband of Ruby Babsa-ay Mat-an
(Ruby), the daughter of the deceased Minda Babsaay
(Minda); and that Ruby works overseas and sends
money remittances through her mother and not to
Oscar.8
Thereafter, trial on the merits ensued.
Evidence for the Prosecution
The prosecution presented ten (10) witnesses,
namely: Norma C. Gulayan (Norma), Dr. John L.
Tinoyan (Dr. Tinoyan), Dr. Samuel P. Daw-as, Jr. (Dr.
Daw-as), Clyde Bunhian (Clyde), Police Senior
Inspector Angeline B. Amangan (PSI Amangan),
Rosemarie B. Ewangan (Rosemarie), Police Officer 3
Leo Mojica (PO3 Mojica), Police Officer 1 Jose Mana-
ar, Jr. (PO1 Mana-ar), Robinson B. Babsa-ay
(Robinson), and Sheyanne Mat-an (Sheyanne). Their
combined testimonies tended to establish the
following:
On 8 April 2009, at around 11:00 a.m., Norma was
selling halo-halo beside Minda's store at Sunnyside
Fairview, Tacay Road, Baguio City; Clyde was in front
of the same store. At that time, Minda was inside her
store cradling her 18-month-old granddaughter
Anthonette in a blanket,9 its ends tied behind her
back.
Moments later, Oscar entered the store and an
argument ensued between him and Minda.
Apparently, Oscar was asking Minda why Ruby had
not answered his calls. Minda responded by telling
Oscar not to create trouble and to return once he
was sober. There was silence for a few
seconds;10 after which, Norma and Clyde heard
Minda moaning as if her mouth was being
covered.11 Norma immediately ran inside the store
where she saw Oscar stab Minda twice. Norma
pulled him out of the store and away from
Minda.12 Norma then asked Clyde, who followed her
inside the store, to look for Sheyanne, Oscar and
Ruby's daughter.13 Norma also called out to
neighbors for help.14 Before calling Sheyanne, Clyde
saw Oscar leaving the vicinity.15
Sheyanne testified that on 8 April 2009, while she
and her sister Desiree Mat-an were doing laundry,
Norma suddenly appeared, crying and without her
slippers and told them that Minda was stabbed by
their father. Upon hearing this, they immediately ran
towards Minda's store. Upon reaching the store,
they saw Minda in a prone position with blood
splattered on the floor. Underneath Minda's body
was Anthonette who appeared to be injured as
well.16 Sheyanne then ran to the roadside where her
father was being held by some of their neighbors
including PO1 Mana-ar, a police officer on vacation
in Baguio at that time.17 Thereafter, PO1 Mana-ar,
Sheyanne, and some of the neighbors brought Oscar
to the police station and they also turned over the
knife used by Oscar to stab Minda.18 Meanwhile,
Minda and Anthonette were rushed to the Baguio
General Hospital and Medical Center (BGHMC)
where Anthonette was admitted for further
observation.19 Minda died on the same day at the
age of 61.20
The postmortem examination conducted by Dr.
Tinoyan revealed that Minda sustained four (4) stab
wounds in her chest three (3) of which were fatal,
while one (1) was superficial.21 As regards
Anthonette, the medicolegal certificate prepared by
Dr. Daw-as of the BGHMC revealed that she
sustained a superficial stab wound in the nape
area.22
Rosemarie, Anthonette's mother, testified that her
daughter was confined in the hospital for a night;
and for that they incurred P929.00 for her
medication and hospitalization,23 as shown by the
receipts she presented.24 The heirs of Minda
incurred the amount of P83,763.00 as expenses for
her wake and burial.25 This amount was admitted by
the defense.26
Evidence for the Defense
The defense presented Oscar as its sole witness. In
his testimony, he invoked denial as his defense and
narrated his version of the incident as follows:
On 8 April 2009, at about 9:00 to 10:00 o'clock in the
morning, Oscar was invited by Donato Bunhian for a
drink at Donato's house. Later, he went to Minda's
store to buy bread, but he was not able to do so
592 | P a g e
because Minda said to him: "Why are you still
coming here? You are even drunk." He answered
back but could no longer recall what his exact retort
was.27 After that brief exchange, he could no longer
recall what transpired next. When he came to his
senses, he was already by the roadside, allegedly
waiting for a taxi to go to his workplace at Camp
7.28 While waiting for a taxi, however, some persons
approached him and brought him to the police
station where
he was informed that he had inflicted injuries on his
mother-in-law. He maintained, however, that he did
not kill his mother-in-law and injure Anthonette; and
that he was actually surprised by the charges against
him.29
The RTC Ruling
In its joint judgment, the RTC found Oscar guilty of
attempted homicide and murder.
With respect to the killing of Minda, the trial court
was convinced that the prosecution was able to
prove beyond reasonable doubt that Oscar had
committed the crime. It also appreciated the
aggravating circumstance of evident premeditation
to qualify the killing to murder. It observed that
Oscar decided to commit the crime because of his
grudge against Minda as it was to her, and not to
him, that his wife remitted money from abroad.
The trial court also appreciated the aggravating
circumstance of abuse of superior strength. It noted
that Oscar was about 5'10" tall, heavily built, and
armed with a deadly weapon; whereas Minda was
only 4'11" in height, was already 61 years old, and
was carrying a child.
As to the injury inflicted on Anthonette, the trial
court ruled that the same constituted attempted
homicide. It also opined that abuse of superior
strength was present considering her tender age.
However, the same could not be appreciated to
qualify the crime to attempted murder because the
information charged only the crime of attempted
homicide.
The dispositive portion of the joint judgment states:
WHEREFORE, in view of the foregoing disquisitions,
the Court, finding the guilt of the accused beyond
reasonable doubt of the crimes of MURDER and
ATTEMPTED HOMICIDE, imposes upon the accused
the following penalties:
1. Criminal Case No. 29335-R for
Attempted Homicide the
Indeterminate Sentence of six (6)
months of arresto mayor as the
minimum penalty to six (6) years
and one (1) day of prision
correccional as the maximum
penalty, to indemnify the private
complainant the amount of
P929.00 as actual and
compensatory damages,
P25,000.00 as moral damages, and
P10,000.00 as exemplary damages.
2. Criminal Case No. 29336-R for
Murder - reclusion perpetua and to
indemnify the heirs of Minda
Babsa-ay the amounts of
P83,763.00 as actual and
compensatory damages,
P50,000.00 as civil indemnity,
P25,000.00 as moral damages, and
P25,000.00 as exemplary damages.
In the service of his sentence, accused shall serve
them successively. He shall be credited with 4/5 of
his preventive imprisonment.

Accused is ordered transferred to the National Bilibid
Prisons, Muntinlupa, Metro Manila in view of the
nature of the penalties imposed upon him pending
any appeal he may undertake.
SO ORDERED.30
Aggrieved, Oscar appealed before the CA.31
The CA Ruling
In its appealed decision, the CA affirmed with
modification the RTC joint judgment. The appellate
court concurred with the trial court in its assessment
that the prosecution was able to establish by proof
beyond reasonable doubt that Oscar killed Minda
and injured Anthonette.
The appellate court, however, ruled that evident
premeditation could not be appreciated to qualify
the killing of Minda to murder. It explained that the
prosecution failed to establish with certainty the
time when Oscar decided to commit the felony.
Consequently, that he clung to his determination to
kill Minda could not also be inferred. Nevertheless,
the appellate court ruled that abuse of superior
strength attended the killing due to the evident
disparity in strength between Oscar and Minda.
Thus, Oscar is still guilty of murder for the killing of
Minda.
The appellate court also ruled that Oscar could not
be held criminally liable for attempted homicide
because there was no evidence that he had the
intent to kill Anthonette. Thus, Oscar could only be
convicted of physical injuries; and considering that
the physician who treated Anthonette testified that
her injury was only superficial, Oscar is liable only for
slight physical injuries therefor.
The fallo of the appealed decision provides:
593 | P a g e
FOR THESE REASONS, the September 4, 2012
Decision of the Regional Trial Court of Baguio City,
Branch 59, is AFFIRMED with the following
MODIFICATIONS:
1. In Criminal Case No. 29335-R,
accused-appellant OSCAR MAT-AN
Y ESCAD is found GUILTY of SLIGHT
PHYSICAL INJURY and is meted a
straight penalty of twenty (20)
days of arresto menor, and further
ORDERED to pay the victim the
amounts of P929.00 as actual
damages and P5,000.00 as moral
damages which shall earn interest
at the rate of 6% per annum from
date of finality of judgment until
fully paid.
2. In Criminal Case No. 29336-R,
accused-appellant OSCAR MAT-AN
Y ESCAD is found GUILTY of
MURDER and is sentenced to serve
the penalty of reclusion perpetua,
and further ORDERED to pay the
heirs of the victim the amounts of
P83,763.00 as actual damages,
P75,000.00 as civil indemnity,
P50,000.00 as moral damages, and
P30,000.00 as exemplary damages
which shall earn interest at the
rate of 6% per annum from date of
finality of the judgment until fully
paid.
SO ORDERED.32
Hence, this appeal.
ISSUE
WHETHER THE TRIAL AND APPELLATE COURTS
ERRED IN ADJUDGING ACCUSED-APPELLANT OSCAR
MAT-AN Y ESCAD GUILTY BEYOND REASONABLE
DOUBT FOR THE DEATH OF MINDA BABSA-AY AND
INJURIES SUSTAINED BY ANTHONETTE EWANGAN.
THE COURT'S RULING
The appeal lacks merit.
Factual findings of the trial court; minor
inconsistencies between the testimonies of the
witnesses
Oscar assails the credibility of the prosecution
witnesses, particularly Norma's. He claims that
Norma's testimony that she had instructed Clyde to
look for Sheyanne is inconsistent with Sheyanne's
version that Norma herself appeared before her
while doing laundry and related the incident to her.
For Oscar, this discrepancy generated perplexity on
who between Norma and Sheyanne was telling the
truth, thereby putting in question what they actually
witnessed on the morning of 8 April 2009.
This argument deserves scant consideration.
The established rule in our criminal jurisprudence is
that when the issue is one of credibility of witnesses,
the appellate courts will not disturb the findings of
the trial court considering that the latter is in a
better position to decide the question, having heard
the witnesses themselves and observed their
deportment and manner of testifying during the
trial. Unless it can be shown that the trial court
plainly overlooked certain facts of substance and
value which, if considered, may affect the result of
the case; or in instances where the evidence fails to
support or substantiate the trial court's findings of
fact and conclusions; or where the disputed decision
is based on a misapprehension of facts; the trial
court's assessment of the credibility of witnesses will
be upheld.33
In this case, no cogent reason exists which would
justify the reversal of the trial court's assessment on
the credibility of the witnesses. It is well-settled that
immaterial and insignificant details do not discredit a
testimony on the very material and significant point
bearing on the very act of accused-appellants. As
long as the testimonies of the witnesses corroborate
one another on material points, minor
inconsistencies therein cannot destroy their
credibility. Inconsistencies on minor details do not
undermine the integrity of a prosecution witness.34
While there are inconsistencies between Norma and
Sheyanne's testimonies, these refer only to minor
details which do not diminish the probative value of
the testimonies at issue. Thus, the fact remains that
Norma's categorical and positive identification of
Oscar as the person who stabbed Minda prevails
over his defense of denial. Denial is inherently a
weak defense which cannot outweigh positive
testimony. As between a categorical statement that
has the earmarks of truth on the one hand and bare
denial on the other, the former is generally held to
prevail.35
Furthermore, Oscar himself could not firmly deny
the accusations against him. Oscar himself could not
categorically deny the possibility that he stabbed
Minda and Anthonette after he "blacked-out." He
merely stated that he was "shocked" by the
aforesaid charges and that he "cannot recall"
stabbing Minda and Anthonette, thus:
ATTY. CAMUYOT:
Q. So from the residence of your neighbour
Donato Bunhian, where did you proceed, if
you can remember?
A. I went to buy bread at the store, Ma'am.
594 | P a g e
Q. What store are you referring to Mr. Witness?
A. From the store of my mother-in-law, Ma'am.
Q. And what is the name of your mother-in-law?
A. Minda Babsa-ay, Ma'am.
Q. So were you able to buy bread from the store
of your mother-in-law?
A. I was not able to buy, Ma'am.
Q. Why?
A. I was about to buy bread, Ma'am, but then my
mother-in-law, Minda Babsa-ay, uttered some
words on me, Ma'am.
Q. What did she utter to you particularly? What
word did your mother-in-law uttered against
you, if you can still remember?
A. "Why are you still coming here? You are even
drunk."
Q. So how did you answer your mother-in-law, if
you did answer?
A. I answered her back, Ma'am, but I cannot
recall anymore what I have answered.
Q. So what transpired after that exchange of
words with your mother-in-law, if you can still
remember?
A. I cannot recall anymore, Ma'am, I was
shocked and I had a black out.
Q. So when did you come next to your senses
during that day if you did, Mr. Witness?
A. I was already at the road located at the upper
level, Ma'am.
Q. On the same day, Mr. Witness?
A. Yes, Ma'm.36 (emphasis supplied)
xxxx
ATTY. CAMUYOT:
Q. Now, Mr. Witness, you are being charged of
murdering your mother-in-law, Minda Babsa-
ay. What can you say about this allegation?
A. I am shocked, Ma'am.
Q. You are also being charged, Mr. Witness of
attempting to kill Ant[h]onette Ewangan.
What can you say about this charge?
A. I don't know anything about that,
Ma'am.37 (emphases supplied)
 xxxx
PROS. BERNABE:
Q. You do not recall, Mr. Witness, that you
stabbed your mother-in-law?
A. No, ma'am.
Q. You do not also recall that you stabbed
Ant[h]onette Ewangan whom she was carrying
at that time?
A. No, ma'am.38
From the foregoing, it is clear that the trial and
appellate courts did not err in convicting Oscar. The
prosecution was able to establish his guilt for
Minda's death and Anthonette's injury. He cannot
escape liability therefor just because he "blacked
out" and "could not recall" that he committed said
crimes.
Oscar is guilty of murder qual(fied by abuse of
superior strength, and also of slight physical injury.
The Court concurs that the crime committed against
Minda is Murder qualified by abuse of superior
strength.
The circumstance of abuse of superior strength is
present whenever there is inequality of forces
between the victim and the aggressor, assuming a
situation of superiority of strength notoriously
advantageous for the aggressor, and the latter takes
advantage of it in the commission of the crime.39 The
appreciation of the aggravating circumstance of
abuse of superior strength depends on the age, size,
and strength of the parties.40
595 | P a g e
In a plethora of cases, the Court has consistently
held that the circumstance of abuse of superior
strength is present when a man, armed with a
deadly weapon, attacks an unarmed and defenseless
woman. In such case, the assailant clearly took
advantage of the superiority which his sex and the
weapon used in the act afforded him, and from
which the woman was unable to defend herself. 41
In this case, the prosecution was able to establish
that Oscar abused his superiority when he killed
Minda. Indeed, it was sufficiently shown that Oscar
was armed with a knife, a deadly weapon, while
Minda was then burdened by a child and had no
means to defend and repel the attacks of her
assailant. Furthermore, the trial court noted that
Oscar was of heavy build and stood at 5'10" in
contrast to Minda's 4'11" frame. Clearly, Oscar
abused his superiority afforded him by his sex,
height, and build and a weapon when he attacked
Minda who was then carrying a child. Thus, the trial
and appellate courts correctly convicted him of
murder.
The Court also concurs that Oscar can be held guilty
only of slight physical injuries with respect. to
Anthonette. The prosecution failed to present any
evidence which would show that Oscar also intended
to kill Anthonette. Without the element of intent to
kill, Oscar could only be convicted for physical injury;
and considering that Anthonette's wound was only
superficial, the appellate court correctly convicted
Oscar of slight physical injury.
Alternative circumstance of intoxication
Oscar disputes that, on the assumption of his guilt,
the trial and appellate courts erred in not
appreciating the alternative circumstance of
intoxication to mitigate his liability. He argues that
records would show that he blacked out and could
not remember what transpired; thus, his mental
faculties were dulled by the alcohol he imbibed.
The Court is not persuaded.
Drunkenness or intoxication is a modifying
circumstance which may either aggravate or mitigate
the crime. It is aggravating if habitual or intentional;
and it is mitigating if not habitual nor intentional,
that is, not subsequent to the plan to commit the
crime.42 Once intoxication is established by
satisfactory evidence, then, in the absence of truth
to the contrary, it is presumed to be unintentional or
not habitual.43 From the foregoing, however, it is
clear that the accused must first establish his state of
intoxication at the time of the commission of the
felony before he may benefit from the presumption
that the intoxication was unintentional and not
habitual. He must prove that he took such quantity
of alcoholic beverage, prior to the commission of the
crime, as would blur his reason.44
In this case, other than his bare allegation that he
blacked out, Oscar failed to present sufficient
evidence that would show that he was in a state of
intoxication as would blur his reason. This
uncorroborated and self-serving statement as to his
state of intoxication is devoid of any probative
value.45 On the contrary, there is sufficient reason to
believe that Oscar recognized the injustice of his
acts. After stabbing her mother-in-law to death,
Oscar proceeded to the roadside and waited for a
taxi in an apparent attempt to escape. His excuse
that he was there because he was going to work is
not worthy of any belief. Thus, the trial and appellate
courts did not err in not appreciating the alternative
circumstance of intoxication in favor of Oscar.
Penalties and monetary awards
In Criminal Case No. 29335-R, there being no
aggravating or mitigating circumstance present in
the commission of the crime, the penalty shall be
imposed in its medium period or twenty (20) days
of arresto menor, following Article 266 of the RPC.
The Court further finds the monetary awards
consisting of P929.00 as actual damages and
P5,000.00 as moral damages proper in this case.
In Criminal Case No. 29336-R, other than the
circumstance of abuse of superior strength which
already qualified the crimes to murder, no other
modifying circumstance is present, whether
aggravating or mitigating. Thus, the penalty
of reclusion perpetua is imposed in accordance with
Article 248 of the RPC, as amended by Section 6 of
Republic Act (R.A.) No. 7659, in relation to Article
63(2) of the RPC.
The Court, however, modifies the CA decision with
respect to the monetary awards. In People v.
Jugueta,46 the Court summarized the amounts of
damages which may be awarded for different
crimes. In said case, the Court held that when the
penalty imposed is reclusion perpetua, the following
amounts may be awarded: (1) P75,000.00, as civil
indemnity; (2) P75,000.00, as moral damages; and
(3) P75,000.00 as exemplary damages. The aforesaid
amounts are proper in this case. The Court further
retains the award of actual damages in the amount
of P83,763.00.
WHEREFORE, the present appeal is DISMISSED for
lack of merit. The 25 April 2014 Decision of the Court
of Appeals in CA-G.R. CR-H.C. No. 05858 is AFFIRMED
with MODIFICATIONS as follows:
1. In Criminal Case No. 29335-R, accused-appellant
OSCAR MAT-AN Y ESCAD is found GUILTY of SLIGHT
PHYSICAL INJURY and is meted a straight penalty of
twenty (20) days of arresto menor, and
596 | P a g e
further ORDERED to pay the victim the amounts
of;p929.00 as actual damages and P5,000.00 as
moral damages which shall earn interest at the rate
of six percent (6%) per annum from date of finality of
judgment until fully paid.
2. In Criminal Case No. 29336-R, accused-appellant
OSCAR MAT-AN Y ESCAD is found GUILTY of
MURDER and is sentenced to serve the penalty
of reclusion perpetua, and further ORDERED to pay
the heirs of the deceased Minda Babsa-ay the
following amounts: (1) P83,763.00 as actual
damages; (2) P75,000.00 as civil indemnity; (3)
P75,000.00 as moral damages; and (4) P75,000.00 as
exemplary damages. All monetary awards shall earn
interest at the rate of six percent (6%) per annum
reckoned from the finality of this decision until their
full payment.47
SO ORDERED.
FIRST DIVISION
[G.R. No. L-51368. November 6, 1981.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
v. SAGLALA MACATANDA, Defendant-Appellant.
Solicitor General Estelito P. Mendoza, Assistant
Solicitor General Vicente V. Mendoza, and Trial
Attorney Napoleon E. Inoturan for Plaintiff-Appellee.
Reynaldo C. Chavez, for Defendant-Appellant.
SYNOPSIS
Appellant was convicted in the court of First Instance
of Lanao del Norte for the crime of cattle rustling
under Presidential Decree No. 533 with the
mitigating circumstances of plea of guilty and
extreme poverty without any aggravating
circumstances and was sentenced to an
indeterminate penalty of imprisonment of six (6)
years and one (1) day of prision mayor as minimum
to eight (8) years of prision mayor as maximum.
Appellant appealed directly to the Supreme Court
raising purely legal questions that his lack of
instruction and education and his being a Moslem
belonging to a cultural minority should mitigate his
liability in line with the ruling in U.S. v. Maqui (27
Phil. 97) and that in the computation of penalty, the
rules of Art. 64 of the Revised Penal Code should be
applied.
The Supreme Court held that the Maqui case cannot
be invoked as a precedent as there is no evidence on
record that appellant is an uncivilized Igorot which
amounted to more than lack of instruction; neither
does it appear in said case nor under the Revised
Penal Code that mere membership in a cultural
minority is mitigating. The Court ruled however, that
appellant is entitled to the lowering of one degree of
the penalty for the offense under PD NO. 533 which
is deemed to be an amendment of Art. 310 of the
Revised Penal Code, to which the rules of Art. 64 of
the same Code on the computation of penalties
should apply. The penalty imposed by the trial court
in its minimum period which is beyond the range is
reduced to 4 years of prision correccional.
Judgment appealed from, modified.
SYLLABUS
1. CRIMINAL LAW; MITIGATING CIRCUMSTANCES;
LACK OF INSTRUCTION; SHOULD BE PROVED
DIRECTLY AND POSITIVELY. — The mitigating
circumstance of lack of instruction like all
circumstances modifying criminal liability, should be
proved directly and positively.
 2. ID.; ID.; ID.; BEING AN UNCIVILIZED IGOROT
AMOUNTS TO MORE THAN LACK OF INSTRUCTION;
MAQUI CASE COMPARED WITH CASE AT BAR. —
Under the circumstances of the present case, the
case of U.S. v. Maqui, (27 Phil. 97) may not be
invoked as a precedent. In the first place in that case,
the Supreme Court found indication in the record
which tends to show that Maqui was an uncivilized
Igorot. In the present case, owing to appellant’s plea
of guilty, the records disclose no evidence presented
to prove the mitigating circumstances of lack of
instruction. What the Court considered mitigating
was Maqui’s being an uncivilized Igorot which
amounted to more than lack of instruction. Again
there is no proof on record that appellant herein
may be similarly described.
3. ID.; ID.; MERE MEMBERSHIP IN A CULTURAL
MINORITY; NOT SUFFICIENT TO MITIGATE LIABILITY.
— Mere membership in a cultural minority is not
expressly mentioned by the Revised Penal Code
among the mitigating circumstances nor would it
come under paragraph 10, Art. 13 of said Code,
which speaks of "any other circumstances of a
similar nature and analogous to those
abovementioned." Likewise, nowhere in the Maqui
case was it disclosed that his being a member of a
cultural minority being an Igorot, sufficed to mitigate
his liability in that circumstance alone.
4. ID.; ID.; LACK OF INSTRUCTION; NOT APPLICABLE
TO CRIMES OF THEFT OR ROBBERY; PLEA FOR
LENIENT TREATMENT OF IGNORANT AND SEMI-
CIVILIZED OFFENDER; REJECTED IN CASE AT BAR. —
The plea of appellant for a lenient approach in
consideration of his being an ignorant and
semicivilized offender belonging to a cultural
minority was rejected in view of later cases which
categorically held that the mitigating circumstance of
lack of instruction does not apply to crimes of theft
and robbery (People v. Melendrez, 59 Phil. 154;
597 | P a g e
People v. Condemena, 23 SCRA 910). Membership in
a cultural minority does not per se imply being an
uncivilized or semicivilized state of the offender,
which is the circumstance that induced the Supreme
Court in the Maqui case, to apply lack of instruction
to the appellant therein who was charged also with
theft of large cattle. Incidentally, the Maqui case is
the only case where lack of instruction was
considered to mitigate liability for theft, for even
long before it, in U.S. v. Pascual, (9 Phil. 491) a 1908
case, lack of instruction was already held not
applicable to crimes of theft or robbery. The Maqui
case was decided in 1914, when the state of
civilization of the Igorots has not advanced as it had
in reaching its present state since recent years, when
it certainly can no longer be said of any member of a
cultural minority in the country that he is uncivilized
or semi-civilized.
5. ID.; ID.; ID.; ID.; ID.; BARRED BY LEGAL
IMPEDIMENT; CASE AT BAR. — A legal impediment
which stands in the way to giving the lenient
treatment appellant invokes in his appeal for his
being an ignorant and semi-civilized offender
belonging to a cultural minority, is that the records
of the case does not afford any basis on which to
judge the degree of instruction of the appellant, no
evidence having been taken relative thereto because
he entered a plea of guilty. And the stricter
treatment provided by P.D. No. 533 for the crime of
cattle rustling, hardly justifies the courts to apply
said law with leniency.
6. STATUTORY CONSTRUCTION; P.D. NO. 533;
CONSTRUED AS AN AMENDMENT OF THE REVISED
PENAL CODE. — Where the nature of the penalty
imposed is in terms of the classification and duration
of penalties as prescribed in the Revised Penal Code,
which is not for penalties as are ordinarily imposed
in special laws, the intent seems clear that P.D. No.
533 shall be deemed as an amendment of the
Revised Penal Code, with respect to the offense of
theft of large cattle (Art. 310), or otherwise to be
subject to applicable provisions thereof such as
Article 104 of the Revised Penal Code on civil liability
of the offender, a provision which is not found in the
decree, but which could not have been intended to
be discarded or eliminated by the decree.
7. CRIMINAL LAW; MITIGATING CIRCUMSTANCES;
UNDER ARTICLE 64 OF THE REVISED PENAL CODE;
PRESENCE OF TWO MITIGATING CIRCUMSTANCES
WITHOUT AGGRAVATING CIRCUMSTANCES;
ENTITLES APPELLANT TO A LOWERING OF ONE
DEGREE OF THE PENALTY FOR THE OFFENSE; CASE
AT BAR. — Under Article 64 of the Revised Penal
Code, the presence of two mitigating circumstances,
as found by the trial court, that of plea of guilty and
extreme poverty, without any aggravating
circumstances to offset them, entitles appellant to a
lowering by one degree of the penalty for the
offense, which under P.D. No. 533 is prision mayor,
maximum, to reclusion temporal, medium. The
penalty imposed by the trial court which is the
indeterminate penalty of imprisonment of six (6)
years and one (1) day of prision mayor as minimum,
to eight (8) years of prision mayor, as maximum, is
within the range, as to its maximum period, but is
beyond the range, as to its minimum period, which
should be not more than 4 years and 2 months of
prision correccional.
DECISION
DE CASTRO, J.:
Charged with and convicted on a plea of guilty, in the
Court of First Instance of Lanao del Norte, Branch IV
in Iligan City, for the crime of cattle rustling, Saglala
Macatanda was sentenced as
follows:jgc:chanrobles.com.ph
"WHEREFORE, and in view of all the foregoing, this
Court finds the accused Saglala Macatanda guilty
beyond reasonable doubt of the crime of Cattle
Rustling penalized under PD No. 533 and as
described in the information filed against him.
Crediting in his favor the mitigating circumstances of
plea of guilty and extreme poverty without any
attendant aggravating circumstances, and after
applying the Indeterminate Sentence Law, the said
accused is hereby sentenced to suffer the
indeterminate penalty of imprisonment of six (6)
years and one (1) day of prision mayor as minimum,
to eight (8) years of prision mayor, as maximum.
"The period of his preventive imprisonment shall be
credited in his favor in accordance with the terms
and conditions provided by Article 29 of the Revised
Penal Code, as amended.chanrobles.com:cralaw:red
"The amount of One Hundred Fifty (P150.00) Pesos is
hereby ordered paid to Atty. Reynaldo Echavez for
his services as counsel de oficio in this case in
accordance with the provisions of the Rules of Court,
the amount to be taken from the funds appropriated
by the Government for the purpose.
"With costs against the accused." (Appellee’s Brief,
pp. 1-2)
From the judgment of conviction, Saglala Macatanda
(hereinafter referred to as appellant) appealed direct
to this Court, raising purely legal questions, to wit:
whether the mitigating circumstances of (1) lack of
instruction, and (2) being a member of a cultural
minority, being a Moslem, should be appreciated in
his favor, which the court a quo refused to consider
in the imposition of the penalty, and also disputing
the correctness of the trial court’s computation of
598 | P a g e
the proper penalty.
Before going into a discussion of the legal questions,
the facts may be recited, quoting from the People’s
Brief, the following:jgc:chanrobles.com.ph
"In the evening of December 25, 1976, complainant
left his two carabaos near his house in Salug, Sapad,
Lanao del Norte. The following morning, however,
he noticed they were missing. He immediately
reported the loss to Welfredo Bucol, who was the
team leader of the constabulary home defense unit.
Complainant joined the posse composed of the
members of the unit, and the barangay captain to
search for the missing carabaos. When they reached
Pawak, Salvador, Lanao del Norte, they saw
Macabaas, Mangigya, Makaonggos, and appellant in
possession of the two carabaos. These four,
surprised at being discovered engaged the posse in a
gun battle as a result of which, appellant was
wounded. Appellant’s companions fled, leaving him
and the carabaos behind. (Rec, pp. 3-7)
"Appellant was taken into custody and was charged
with cattle rustling. He pleaded guilty and was
sentenced accordingly." (People’s Brief, pp. 2-3)
Citing the case of U.S. v. Maqui, 1 appellant contends
that his lack of instruction and education and his
being a Moslem belonging to a cultural minority
should mitigate his liability, and the penalty imposed
by the trial court should be reduced accordingly. He
also cites the fact that the prosecution did not object
to his being credited with the aforesaid mitigating
circumstances.
Under the circumstances of the present case, the
Maqui case may not be invoked as a precedent. In
the first place, in that case, the Supreme Court found
indication in the record which tends to show that
Maqui was an uncivilized Igorot. In the present case,
owing to appellant’s plea of guilty, the records
disclose no evidence presented to prove the
mitigating circumstances of lack of instruction, which
needs to be proven, as all circumstances modifying
criminal liability should be proved directly and
positively. 2
Likewise, nowhere in the Maqui case was it disclosed
that his being a member of a cultural minority, being
an Igorot, sufficed to mitigate his liability on that
circumstance alone. What the Court considered
mitigating was his being an uncivilized Igorot which
amounted to more than just lack of instruction.
Again, there is no proof on record that appellant
herein may be similarly described. In any case, mere
membership in a cultural minority is not expressly
mentioned by the Revised Penal Code among the
mitigating circumstances, 3 nor would it come under
paragraph 10, Art. 13 of said Code, which speaks of
"any other circumstances of a similar nature and
analogous to those above mentioned." chanrobles
virtualawlibrary chanrobles.com:chanrobles.com.ph
Appellant, however, prays for a lenient approach in
consideration of his being an ignorant and semi-
uncivilized offender, belonging to a cultural minority,
the two separate circumstances to be joined
together to constitute the alternative circumstance
of lack of instruction to mitigate his liability, 4 relying
on the Maqui case from which he quotes the
following:jgc:chanrobles.com.ph
"We conclude, therefore, that under the provisions
of Article 11 as amended by Act No. 2142, (now
Article 15 of the Revised Penal Code) the courts may
and should, even in cases of theft and robbery, take
into consideration the lack of instruction and
education of the offender where it appears that
under all the circumstances attending, he should not
be held to the strict degree of responsibility
prescribed in the code for the ordinary offender."
(Appellant’s Brief, p. 5)
Some later cases which categorically held that the
mitigating circumstance of lack of instruction does
not apply to crimes of theft and robbery 5 leave us
with no choice but to reject the plea of appellant.
Membership in a cultural minority does not per se
imply being an uncivilized or semi-uncivilized state of
the offender, which is the circumstance that induced
the Supreme Court in the Maqui case, to apply lack
of instruction to the appellant therein who was
charged also with theft of large cattle. Incidentally,
the Maqui case is the only case where lack of
instruction was considered to mitigate liability for
theft, for even long before it, in U.S. v. Pascual, 6 a
1908 case, lack of instruction was already held not
applicable to crimes of theft or robbery. The Maqui
case was decided in 1914, when the state of
civilization of the Igorots has not advanced as it had
in reaching its present state since recent years, when
it certainly can no longer be said of any member of a
cultural minority in the country that he is uncivilized
or semi-uncivilized.chanrobles.com:cralaw:red
But more than what has just been observed, a legal
impediment stands in the way to giving the lenient
treatment appellant invokes in his appeal. It is that
the records of the case do not afford any basis on
which to judge the degree of instruction of the
appellant, no evidence having been taken relative
thereto because he entered a plea of guilty. 7 And
the stricter treatment provided by P.D. 533 for the
crime charged with a more severe penalty imposed
thereon, hardly justifies the courts to apply said law
with leniency.
Appellant, finally, contends that in the computation
of the penalty the rules prescribed under Article 64,
paragraph 5 should be applied. To this argument, the
Solicitor General comes up with a reply that Article
64 of the Revised Penal Code does not apply to
599 | P a g e
penalties prescribed by special laws. He considers
P.D. 533, otherwise known as "Anti-Cattle Rustling
Law of 1974" as a special law, and in accordance
with existing rulings, 8 the penalty should not be
governed by the Revised Penal Code. Accordingly, his
recommendation as to the proper penalty to be
imposed and pursuant to the Indeterminate
Sentence Law which provides:jgc:chanrobles.com.ph
". . . if the offense is punished by any other law, the
court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not
exceed the maximum fixed by said law and the
minimum shall not be less than the minimum term
prescribed by the same. (As amended by Act No.
4225.)" (Appellee’s Brief, p. 7)
is a minimum of not less than 10 years and 1 day and
the maximum, not more than 17 years and 4
months, the penalty imposed under P.D. 533.
We do not agree with the Solicitor General that P.D.
No. 533 is a special law, entirely distinct from and
unrelated to the Revised Penal Code. From the
nature of the penalty imposed which is in terms of
the classification and duration of penalties as
prescribed in the Revised Penal Code, which is not
for penalties as are ordinarily imposed in special
laws, the intent seems clear that P.D. 533 shall be
deemed as amendment of the Revised Penal Code,
with respect to the offense of theft of large cattle
(Art. 310), or otherwise to be subject to applicable
provisions thereof such as Article 104 of the Revised
Penal Code on civil liability of the offender, a
provision which is not found in the decree, but which
could not have been intended to be discarded or
eliminated by the decree. Article 64 of the same
Code should, likewise, be applicable, under which
the presence of two mitigating circumstances, as
found by the trial court, that of plea of guilty and
extreme poverty, without any aggravating
circumstances to offset them, entitles appellant to a
lowering by one degree of the penalty for the
offense, which under P.D. No. 533 is prision mayor,
maximum, to reclusion temporal, medium.cralawnad
Appellant’s computation would be to lower the
aforesaid penalty to prision correccional, maximum,
to prision mayor, medium period, in view of the
presence of the two mitigating circumstances as
appreciated by the court a quo, with no aggravating
circumstance attendant. For the purpose of the
Indeterminate Sentence Law, the minimum of the
penalty should be one degree lower still, or arresto
mayor in its maximum period, to prision correccional
in its medium period, or from 4 months and 1 day of
arresto mayor to 4 years and 2 months of prision
correccional, as minimum, and not less than 4 years,
2 months and 1 day of prision correccional nor more
than 10 years of prision mayor, as maximum.
The penalty imposed by the trial court is within the
range, as to its maximum period, but is beyond the
range, as to its minimum period, which should be
not more than 4 years and 2 months of prision
correccional.
WHEREFORE, the judgment appealed from is hereby
modified by reducing the minimum of the
indeterminate sentence to 4 years of prision
correccional, and maintaining the maximum at 8
years of prision mayor as imposed by the lower
court. With the modification as indicated, the
appealed decision is affirmed in all other respects.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19238 July 26, 1966
THE PEOPLE OF THE PHILIPPINES, plaintiff and
appellee,
vs.
MARINCHO CASTILLO, ET AL., defendants.
CARLOS CASTILLO, defendant and appellant.
Sycip, Salazar, Luna and Associates for defendant
and appellant.
Office of the Solicitor General for plaintiff and
appellee.
DIZON, J.:
In an information filed with the Court of First
Instance of Oriental Mindoro Carlos Castillo and his
son, Marincho, were charged with the crime of
murder. After trial upon their plea of not guilty, the
court found them guilty as charged and sentenced
them accordingly. Only Carlos Castillo appealed.
The prosecution evidence shows the following facts:
Sometime in the month of October 1959, Marincho
Castillo was slapped in the face by the now deceased
Juan Vargas as a result of an altercation which arose
between them because a cow belonging to the
former had gone astray and destroyed some plants
of the latter. Unable to retaliate at that time,
Marincho merely uttered these words: "You,
Manong Juan, will have your own day."
About 5:30 o'clock in the afternoon of December 28,
1959, in barrio Malibago, municipality of Pola,
Oriental Mindoro, while appellant, holding a gun in
his right hand, talking face to face with Juan Vargas,
Marincho came from behind and hacked the latter
on the head. As Marincho was about to strike the
victim a second time, appellant said: "You kill him."
600 | P a g e
In the evening of the same day, Marincho
accompanied by appellant, surrendered himself to
the authorities.1äwphï1.ñët
A post-mortem examination conducted by the
municipal health officer of Pola revealed that the
victim died instantaneously as a result of severe
hemorrhage due to multiple wounds.
With the testimony of Jose Ilagan the prosecution
attempted to prove conspiracy between appellant
and his son. According to said witness, on the
afternoon in question he saw both walking very fast
towards the poblacion, appellant with a revolver in
his hand, and his son carrying a bolo, both
presumably gunning for Juan Vargas.
Very little credibility can be given to this testimony,
firstly, because the incident between Vargas and
Marincho had taken place in the month of October
1959, while the fatal incident took place on
December 28 of the same year; secondly, because
the fatal incident took place hardly twenty meters
away from appellant's house a circumstance which
would seem to indicate that, instead of appellant
and his son going out in search of Vargas, it was the
latter who had gone or who had passed by the street
near appellant's house on the fatal day.
The last question to be resolved is whether appellant
can be found guilty of murder by inducement simply
because after his son had already fatally boloed
Vargas and was about to strike the latter a second
time, appellant shouted: "You kill him." The present
case is very similar, if not on all fours, with People vs.
Caimbre, et al., G.R. No. L-12087 decided on
December 29, 1960 where practically the same
words were uttered by one of the defendants but
only after the actual assailant had already boloed his
victim several times. It was there held that in
determining whether the utterances of an accused
are sufficient to make him guilty as co-principal by
inducement, it must appear that the inducement
was of such nature and was made in such a way as to
become the determining cause of the crime and that
such inducement was uttered with the intention of
producing the result. In this case appellant was, of
course, armed with a revolver while talking with the
deceased Vargas, but the firearm was not pointed at
the latter. Then he is alleged to have uttered the
words "You kill him" only after his son had already
fatally boloed Vargas on the head. It appears,
therefore, that the alleged inducement to commit
the crime was no longer necessary to induce the
assailant to commit the crime. Upon the principle
thus laid down in the Caimbre case — which was
merely a reiteration of the same ruling previously
laid down in People vs. Alvarez, et al., G.R. No. L-
10650, July 26, 1960; People vs. Canare, et al., G.R.
No. 10677, September 30, 1959; People vs. Omini, 61
Phil. 609; and United States vs. Indanan, 24 Phil. 203,
We are constrained to hold that appellant's guilt has
not been established beyond reasonable doubt.
Wherefore, the appealed judgment is reversed and
appellant is acquitted, with one-half of the costs de
oficio.
Concepcion, C.J., Reyes, J.B.L., Barrera, Regala,
Makalintal, Bengzon, J.P., Zaldivar, Sanchez and
Castro, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. Nos. 102361-62 May 14, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Allacapan,Cagayan, and there and principal by indispensable
vs. then, the accused, in pursuance of cooperation for the crime of
RUDY FRONDA, defendant-appellant. their conspiracy, did then and murder as charged in both Criminal
there wilfully, unlawfully, and Cases Nos. 10-304 and 10-308, and
The Solicitor General for plaintiff-appellee. feloniously assault, attack torture sentences him to suffer in each
and stabbed (sic) the said Edwin case, the penalty of RECLUSION
Juan T. Antonio for accused-appellant. Balaan/Esmenio Balaan inflicting PERPETUA, with all the accessory
upon him wounds on his body penalties provided for by law and
which cause his death. (Rollo, pp. to pay the costs. He is ordered to
122-123) each pay (sic) the heirs of the
deceased Edwin (Eduardo) Balaan
BIDIN, J.:
On May 29, 1989, Reynaldo Agcaoili was arrested and Esminio Balaan, the amount
but was subsequently released on bail two days of:
Appellant, Rudy Fronda, together with Reynaldo
after. On June 2, 1989, appellant Rudy Fronda was
Agcaoili were charged with murder before Branch 10
arrested and detained. Upon arraignment, both 1. P50,000.00 —
of the Regional Trial Court of Cagayan in two
appellant and accused Reynaldo Agcaoili pleaded not compensatory damages
separate information, Criminal Cases No. 10-304 and
guilty to the charge of murder. Thereafter, trial 2. P50,000.00 — death
10-308 alleged to have been committed in
ensued. indemnity
conspiracy with several John Does. Appellant and his
3. P20,000.00 — moral
co-accused were accused of killing the brothers
On August 7, 1991, the trial court promulgated its damages
Esminio and Edwin Balaan of Allacapan, Cagayan in
decision convicting appellant and acquitting 4. P30,000.00 —
the two identically worded informations alleging the
Reynaldo Agcaoili of the crime charged, the decretal exemplary damages
offense to have been committed as follows:
portion of which reads: 5. P15,000.00 — expenses
during the wake of
That on or about June 11, 1968, in Esmenio Balan
WHEREFORE, under cool reflection
the municipality of Allacapan, 6. P10,000.00 — expenses
and fortified by the balm of clear
province of Cagayan, and within during the wake of Edwin
judicial conscience, the Court
the jurisdiction of this Honorable Balaan.
enters a verdict of acquittal in
Court, the said accused, Reynaldo
favor of the accused Reynaldo
Agcaoili and Rudy Fronda, together
Agcaoili for the crime of murder as all for the grand total of Three
with several John Does who were
charged, in both Criminal Cases Hundred Twenty Five Thousand
not identified, armed with guns
Nos. 10-304 and 10-308, with (P325,000.00) Pesos, but without
and sharp-pointed instruments,
costs de oficio. His bail bond is subsidiary imprisonment in case of
conspiring together and helping
cancelled and the documents insolvency.
one another, with intent to kill,
submitted in support thereof may
with evident premeditation, with
now be withdrawn from the In the service hereof, the accused
treachery, inconsideration of a
records under proper receipt. Rudy Fronda shall be entitled to
price or reward and with the aid of
the full length of time, he
armed men, forcibly took one
As against the accused Rudy underwent preventive
Edwin Balaan from his residence
Fronda, the Court finds him guilty imprisonment, provided he
and brought him tothe mountains
beyond reasonable doubt as voluntarily agreed in writing to
of Barangay Tulong,
601 | P a g e
 abide by the same disciplinary
rules imposed upon convicted
prisoners, otherwise, he shall be
credited to only four fifth (4/5)
thereof. (Art. 29, NCC, as amended
by RA 617, June 17, 1979; US vs.
Ortencio; 38 Phil. 341; People vs.
Chavez, 126 SCRA 1).
MORE, there being two (2)
perpetual penalties imposed upon
the accused Rudy Fronda the
maximum simultaneous service of
his sentence shall in no case
exceed forty (40) years. (Art.70,
RPC, amended by Com. Act No.
217, threefold rule).
xxx xxx xxx
SO ORDERED. (Rollo, pp. 76-77).
The antecedent facts, as found by the trial court are
as follows:
At about 6:00 o'clock in the
morning of June 11, 1986, the
deceased Eduardo (Edwin) Balaan
And Esminio Balaan who are
brothers, were take by seven (7)
armed men in fatigue uniform with
long firearms, suspected to be NPA
members, accompanied by
accused Rudy Fronda and Roderick
Padua from the house of one
Ferminio Balaan, at Barangay
Cataratan, Allacapan, Cagayan. The
said Rudy Fronda and Roderick
Padua are residents of the same
place. The armed men tied the
hands of the deceased at their
602 | P a g e
back lying down face downward, in
front of the house of Ferminio
Balaan. The armed men together
with Roderick Padua and Rudy
Fronda proceeded towards sitio
Tulong, Cataratan, Allacapan,
Cagayan passing through the
ricefields (taking along with them
the Balaan brothers).
xxx xxx xxx
Accused Rudy Fronda testified that
on the night of June 10, 1986, he
was taken by the NPA's from his
house, accompanied by Robert
Peralta, alias Ka Jun and Roderick
Padua, to look for the Balaan
brothers. They were around nine
(9) NPA's with then. They found
Edwin Balaan and Esmineo Balaan,
at the house of Ferminio Balaan, a
brother. They tied their
wrists/hands and brought them to
the mountain at Sitio Tulong,
Cataratan, Allacapan, Cagayan.
After that, the NPA's instructed
them to go home, but in the
afternoon of the same day June 11,
1986, Robert Peralta, alias Ka Jun,
sent Elmer Martinez, Orlando
Gonzales, George Peralta and
Librado Duran to get him and
further he was ordered to get a
spade and a crowbar. They were
ordered to dig a hole in the
mountain, one (1) kilometer away
from his house.
On March 21, 1989, the bodies or
remains of the Balaan brothers
were examined by the 17th
Infantry Battalion, under Capt.
Benedicto. After which, the
remains, (bones) were brought to
the house of one Freddie Arevalo,
a relative of the deceased, at
Barangay Cataratan, where they
were laid in state for the wake.
(Rollo, pp. 27-29)
In its decision, the trial court made a lengthy
enumeration of established facts and circumstances
which was made the basis of the conviction of
appellant, to wit :
1) Appellant and Roderick Padua, and NPA member
were the ones who pointed the house where the
brothers Balaan were to be found, 2) appellant and
Roderick Padua accompanied the members of the
armed group to said house, and tied the victims'
hands, 3) appellant was handed a hunting knife by
one of the armed men when they left the house, 4)
appellant joined the members of the armed group in
bringing the victims to a forested area in the
mountains, 5) it was appellant who provided the
spade and crowbar used in digging the hole where
the Balaan brothers were buried, 6) appellant was
the one who pointed the location where the victms'
bodies buried, 7) appellant, for a period of more
than three (3) years, failed to report the incident to
the authorities, and 8) appellant did not in any way
object, when he was ordered to tie the hands of the
victims.
On the basis of the foregoing, the trial court
declared:
In fine, all of these circumstances
constitute a unbroken chain which
leads to a fair conclusion that
accused Rudy Fronda is guilty as a
 principal by indispensable
cooperation (People vs. Colinares,
163 SCRA 313), even as the same
circumstances are inconsistent
with each other, and at the same
time inconsistent with any other
hypothesis, except that of guilty
(People vs. Trinidad 162 SCRA 714),
all cited in the recent case of
People vs. Tiongson, G.R. No.
89823, June 19, 1991).
It is crystal clear and conclusion is
inescapable that his cooperation
was indeed indispensable in the
consumation of the crime charged,
without which it would not have
been accomplished, (Art. 17, No. 3,
RPC).
Accused Rudy Fronda shared the
guilty purpose and encouraged and
abetted the crime by his actuations
as above illustrated, even though
he may have taken no part in the
execution. The chain of
circumstances as narrated above
will show that he has rendered the
required assistance intentionally
and knowingly, which led to the
execution of the felony. His
external acts more than explain his
participation as principal by
indispensable cooperation. Such
external overt acts, are more than
significant enough constittuting
convincing proof leading to the
ineluctable finding that accused
Rudy Fronda is guilty as such.
(Rollo, pp. 74-75)
603 | P a g e
Appellant assails the decision of the trial court,
setting forth the following assignment of errors:
I.
THE TRIAL COURT ERRED IN
FINDING THE ACCUSED-APPELLANT
GUILTY OF MURDER IN TWO
COUNTS AND SENTENCING HIM TO
SUFFER THE PENALTY
OF RECLUSION PERPETUA IN EACH
COUNT.
II.
THE TRIAL COURT ERRED IN
FINDING THE ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE
DOUBT BY CIRCUMSTANTIAL
EVIDENCE. (Appellant's Brief, p. 1)
Accused-appellant maintains that the prosecution
was not able to present evidence to prove his
participation in the killing of the brothers Balaan.
The defense submits that appellant was merely
taken by the armed men as a "pointer" and as such,
he could not be considered as a principal by
indispensable cooperation for the reason that the
armed men could have taken other persons to
perform the acts done by appellant. Furthermore,
appellant interposes the exempting circumstance of
uncontrollable fear (Art. 12 [6] RPC) claiming that all
his acts were performed under the impulse of
uncontrollable fear and to save his life.
This case hinges on the issue of whether or not
accused-appellant could be convicted as a principal
by indispensable cooperation through circumstantial
evidence.
Paragraph 3, Article 17, of the Revised Penal Code
considers as principals by indispensable cooperation
"those who cooperate in the commission of the
offense by another act without which it could not
have been accomplished". Its requisites are (1)
participation of the subject accused in the criminal
resolution and (2) performance by him of another
act indispensable to the accomplishment of the
crime.
Records show that appellant's participation in the
commission of the crime consisted of: (1) leading the
members of the armed group to the house where
the victims were found; (2) tying the victims' hands
and (3) digging the grave where the victims were
buried. However, it has been established through
the testimony of Alex Utrera, a former member of
the NPA, that appellant was only picked-up by the
armed men for the purpose of pointing the
residence of the victims. The armed men never
disclosed their purpose in looking for the brothers
Balaan who were former members of the Armed
Forces of the Philippines nor did the armed men
inform appellant of their plan to abduct and kill the
two brothers.
Save for the open admission of appellant that he was
an NPA "supporter", no incontrovertible proof was
adduced by the prosecution supporting the
conclusion that appellant agreed with the members
of the armed group to kill the brothers Balaan.
Furthermore, prosecution witnesses Freddie Arevalo
and Gilbert Viernes testified that the members of the
armed group were accompanied by, aside from
appellant, another barriomate, Roderick Padua,
known to be a member of the NPA (Tsn p. 8 & 76).
Undoubtedly, ever without appelant's participation,
the assailants could have easily located the Balaan
brothers thru the assistance of Roderick Padua.
Taking account of the number of the assailants
alone, it is apparen that the armed men could have
nevertheless committed the crime easily without the
appellant abetting the commission thereof.
The acts performed by appellant are not, by
themselves, indispensable to the killing of the
brothers Balaan. As aforesaid to be considered as a
principal by indispensable cooperation, there must
be direct participation in the criminal design by
another act without which the crime could not have
been committed. We note that the prosecution
failed to present any evidence tending to establish
appellant's conspiracy with the evil designs of the
members of the NPA armed group. Neither was it
established that appellant's acts were of such
importance that the crime would not have been
committed without him or that he participated in
the actual killing.
Under the circumstances, appellant cannot therefore
be considered as a principal by indispensable
cooperation. The trial court, therefore, erred when it
found appellant guilty as a principal by indispensable
cooperation.
However, appellant's act of joining the armed men in
going to the mountains, and his failure to object to
their unlawful orders, or show any reluctance in
obeying the same, may be considered as
circumstances evincing his concurrence with the
objectives of the malefactors and had effectively
supplied them with material and moral aid, thereby
making him as an accomplice. He cannot with
candor, claim that he was unaware of the evil
intentions of the armed men which may have been
the case had appellant merely guided the group to
locate the victims' abodes. On the contrary,
appellant himself tied the victims' hands and even
joined the armed men in taking the victims to the
hills. Appellant's complicity is made more manifest
by the fact that without any justifiable reason he
604 | P a g e
failed to report the incident to the authorities for a
period of more than three (3) years.
Article 18 of the Revised Penal Code provides that an
accomplice is one who, not being a principal,
"cooperates in the execution of the offense by
previous or simultaneous acts". Under this provision,
a person is considered as an accomplice if his role in
the perpetration of the crime is of a minor character.
To be convicted as such, it is necessary that he be
aware to the criminal intent of the principal and
thereby cooperates knowingly or intentionally by
supplying material or moral aid for the efficacious
execution of the crime.
It is well settled that if there is ample of criminal
participation but a doubt exist as to the nature of
liability, courts should resolve to favor the milder
form of responsibility, that of an accomplice. (People
vs. Doctolero, 193 SCRA 632, [1991] citing People vs.
Torejas, 43 SCRA 158, [1972])
Appellant cannot claim the exempting circumstance
of uncontrollable fear (Art. 12, par. 6, RPC). Fear in
order to be valid should be based on a real,
imminent or reasonable fear for one's life or limb
(People vs. Abanes, 73 SCRA 44, [1976]). In the case
at bar, records indicate that appellant was seen
being handed by and receiving from one of the
armed men a hunting knife. Also, as afoesaid,
appellant was not able to explain his failure to report
the incident to the explain his failure to report the
incident to the authorities for more than three (3)
years. These circumstances, among others, establish
the fact that appellant consciously concurred with
the acts of the assailants. In order that the
circumstance of uncontrollable fear may apply, it is
necessary that the compulsion be of such a character
as to leave no opportunity to escape or self-defense
in equal combat. (People vs. Loreno, 130 SCRA 311,
[1984]) Appellant had the opportunity to escape
when he was ordered by the armed men to go
hoome after bringing the victims the mountains. He
did not. Instead he joined the armed men when
required to bring a spade with which he was ordered
to dig the grave. Appellant also chose to remain
silent for more than three (3) years before reporting
the killing to the authorities. Based on these
circumstances, We hold that the contemporaneous
and subsequent acts of appellant can not be
regarded as having been done under the impulse of
uncontrollable fear.
Appellant also argues that the trial court erred when
it convicted him of the crime charged, alleging that
no evidence was presented to prove any
circumstance that would qualify the crime
committed to murder. Appellant's argument is
devoid of merit. Paragraph 1, Article 248 of the
Revised Penal Code provides that any person who
kills another, taking advantage of superior strength
shall be guilty of murder, and shall be punished
by reclusion temporal in the maximum period to
death. It is manifest that the group of assailants
composed of seven (7) armed men, and two (2)
civilians including appellant Fronda. It had been
repeatedly held that the number of assailants, if
armed, may be considered as a qualifying
circumstance of abuse of superior strength. It is
indubitable that assailants deliberately used superior
force of such nature as to be clearly out of
proportion to the means or defense available to the
victims People vs. Tandoc (40 Phil. 954 [1920]) and
People vs. Verzo (21 SCRA 1403 [1967]). The
assailants took advantage of their numbers in order
to ensure that the brothers Balaan who are said to
be former members of the Armed Forces of the
Philippines would not be able to put up any defense.
The crime thus committed is murder.
Be that as it may, and after considering the
attendant circumstances, We hold that appellant is
guilty beyond reasonable doubt as accomplice to the
crime charged i.e. murder. As such, the proper
imposable penalty is one degree lower than that
prescribed for murder (Art. 52, Revised Penal Code).
The penalty for murder is reclusion temporal in its
maximum period to death (Art. 248, RPC). One
degree lower is prision mayor in its maximum period
to reclusion temporal medium (Art. 61 (3), RPC).
There being no mitigating nor agravating
circumstances which attended the commission of
the crime, the penalty impossable under the law
should be applied in its medium period (Art. 64 [1],
RPC) and applying the Indeterminate Sentence Law,
appellant is hereby sentenced in each case to suffer
imprisonment ranging from eight (8) years and one
(1) day of prision mayor as minimum to fourteen (14)
years eight (8) months and one (1) day of reclusion
temporal as maximum.
WHEREFORE, the appealed decision of the trial court
is hereby MODIFIED to the extent above indicated
and AFFIRMED in all other aspects. Costs against
appellant.
SO ORDERED.
Feliciano, Davide, Jr., Romero and Melo, JJ., concur.
THIRD DIVISION
G.R. No. 210920, December 10, 2018
MARTINIANO "MARTIN" B. SALDUA A.K.A. MARLON
SALDUA, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
J. REYES, JR., J.:
605 | P a g e
The Case
This resolves the Petition for Review
on Certiorari1 questioning the Decision2 dated April
30, 2013 and the Resolution3 dated December 10,
2013 of the Court of Appeals (CA)-Cebu City, in CA-
G.R. CEB-C.R. No. 01675 which affirmed with
modification the Decision dated December 17, 2010
of the Regional Trial Court (RTC) of Dumaguete City
in Criminal Case No. 2006-17956 finding Martiniano
"Martin" B. Saldua a.k.a. Marlon Saldua (petitioner),
guilty as an accomplice for the crime of murder.
The Facts
Petitioner and Gerry Lalamunan (Lalamunan) were
charged with murder in an Information, which reads:
That on or about 7:30 o'clock in the evening of
November 12, 2005, at Barangay Poblacion,
Municipality of Zamboanguita, Province of Negros
Oriental, Philippines and within the jurisdiction of
this court, the above-named accused, conspiring and
confederating with each other, with intent to kill,
and with evident premeditation, did then and there
willfully, unlawfully and feloniously, attack, assault
and shoot Jill Abella with the use of a handgun which
accused was then armed and provided thereby
inflicting upon said victim the following injuries:
1. Gunshot wound, point of entry (R) arm
penetrating (R) chest and (L) chest;
2. R/I Injury major vessels of the heart; and
3. Hypovolemic shock secondary to massive
blood loss
that caused his death, to the damage and prejudice
of the heirs of said victim.
Contrary to Article 248 of the Revised Penal Code.4
Lalamunan fled and remained at-large up to present.
Petitioner surrendered and faced his accusers. He
was arraigned on February 29, 2008 and pleaded not
guilty.
Evidence for the prosecution
From the combined testimonies of its witnesses, the
prosecution tends to establish that on November 11,
2005, at 10:00 a.m., Lalamunan, Wilson Vertudez
(Vertudez) and petitioner Saldua arrived at the kiosk
owned by Victor Palalon (Palalon) on board a red
XRM Honda motorcycle. Palalon's son-in-law witness
Demetrio Flores (Flores), was also at the kiosk.
Lalamunan introduced himself to Palalon and Flores
as a nephew of Palalon. He also introduced Vertudez
and petitioner Saldua to them. Petitioner Saldua was
in maong pants, while Lalamunan was wearing a
black long-sleeved shirt and camouflage shorts. At
around noontime, they left the kiosk on board the
same motorcycle.
On the following day of November 12, 2005 at 10:00
a.m., Vertudez and petitioner Saldua returned to the
kiosk wearing the same clothes. At 6:30p.m.,
Lalamunan arrived and the three of them left on foot
towards the national highway. Lalamunan walked
ahead to where the motorcycle was parked at a
banana grove beside Magallanes Street, while
petitioner Saldua and Vertudez went to the house of
the victim, Jill Abella (Abella). Vertudez was next
seen to be firing at the garage of the house of Abella,
with an armed Saldua behind him. Abella was able to
shoot back and hit Vertudez. Saldua and Vertudez
left the area on foot towards where the motorcycle
was parked. Vertudez collapsed due to his gunshot
wound. Meanwhile, Saldua and Lalamunan left the
area on board the motorcycle, leaving Vertudez
behind. Abella was found dead that day from
gunshot wounds. Vertudez was also found dead the
next day at the banana grove from gunshot wound.
Evidence for the defense
Only petitioner Saldua was apprehended. The other
accused, Lalamunan, remains at-large, while
Vertudez died as a result of gunshot wound that he
sustained.
Saldua denied killing Abella. He insisted that he was
in another place on November 12, 2005. He narrated
that he was with his family in their home in Barangay
San Jose, Sta. Catalina, Negros Oriental from
November 10 to 15, 2005. He accounted for his
whereabouts on the entire day of November 12,
2005 as follows: At 6:00 a.m., he went to his farm to
weed out his peanut shrubs. At 10:00 a.m., he went
home to eat lunch. At 2:00 p.m., he went back to his
farm. And at 7:00p.m., he tried to buy medicine for
his ailing 5-year-old daughter by borrowing the XRM
Honda motorcycle of Rommel Awing, but the river
was flooded making him unable to cross it, hence, he
went back home. In the afternoon of November 15,
2005, he left for Bacolod City to render duty in time
for the South East Asian Games.
Ruling of the RTC
On December 17, 2010, the RTC rendered a Decision
convicting petitioner as an accomplice to the crime
of murder. The RTC ruled that the prosecution was
able to establish by circumstantial evidence that
Vertudez killed the victim while Saldua was proven
to be armed and behind Vertudez. The RTC also
considered the qualifying circumstance of evident
premeditation as the attack appeared to be planned.
The dispositive portion of the RTC Decision reads:
WHEREFORE, premises considered, accused
Martiniano "Martin" B. Saldua is GUILTY beyond
reasonable doubt as an accomplice of the crime of
Murder. There being neither mitigating or
aggravating circumstances and applying the
606 | P a g e
indeterminate sentence law, Martiniano Saldua is
sentenced to serve the penalty of eight (8) years and
one (1) day, as minimum, to fourteen (14) years, four
(4) months and one (1) day of reclusion temporal, as
maximum.
The accused is ordered to indemnify the heirs of Jill
Abella in the amount of Fifty Thousand (P50,000.00)
pesos.
SO ORDERED.5
Dissatisfied, petitioner Saldua appealed before the
CA.
Ruling of the CA
In its assailed Decision, the CA affirmed the RTC
Decision, with modifications.
The CA gave weight to the testimony of the
prosecution's witnesses. It was established that it
was Vertudez who shot Abella, while petitioner
Saldua, who was armed, was behind Vertudez during
the incident. The CA, likewise, sustained the RTC as
to the existence of evident premeditation to qualify
the killing of the victim to murder. The CA, however,
reduced the civil liability of petitioner and
apportioned the same pursuant to the rule that a
principal should have greater accountability than an
accomplice, citing the case of People v. Tampus.6 The
dispositive portion of the CA Decision reads:
WHEREFORE, premises considered, this appeal is
DENIED. The Decision dated December 17, 2010
rendered by the Regional Trial Court (RTC), Branch
41, Dumaguete City in Criminal Case No. 2006-
17956 finding appellant Martiniano "Martin" Saldua
a.k.a. Marlon Saldua guilty as an accomplice for the
crime of Murder is AFFIRMED with the
MODIFICATION that he is ordered to pay to [sic] the
heirs of the victim the amount of Php25,000.00 as
civil indemnity and Php16,667.00 as moral damages.
Costs against accused-appellant.7
Petitioner Saldua filed a Motion for Reconsideration.
The CA issued a Resolution dated December 10,
2013 denying the said motion. Aggrieved, petitioner
filed the instant petition.
The Issues
The issues which petitioner interposed before this
Court may be summarized as follows:
1) Whether or not the CA is correct in convicting
petitioner as an accomplice to the crime of
murder.
2) Whether or not the CA is correct in affirming
the RTC when it disregarded petitioner's
defense of alibi.
Findings of the RTC on the
credibility of the witnesses
are binding on this Court.
In his appeal, petitioner Saldua questions the
credibility of the witnesses by whose testimonies
were relied upon by the trial court for his conviction.
Credibility of witnesses is essentially a question of
fact and is a matter peculiarly within the province of
the trial judge. As such, the findings of the RTC that
was affirmed by the CA in this case, that the
witnesses of the prosecution were credible, is
binding on this Court8 given the clear advantage of a
trial judge over an appellate magistrate in the
appreciation of testimonial evidence. Absent any
showing that the trial court's calibration of the
credibility was flawed, we are bound by its
assessment.9 Thus:
It is a fundamental legal aphorism that the
conclusions of the trial judge on the credibility of
witnesses command great respect and consideration
especially when the conclusions are supported by
the evidence on record, and will not ordinarily be
disturbed or interfered with. The only exception to
the rule is when the trial court plainly overlooked
certain facts and circumstances of weight and
influence which, if considered, will materially alter
the result. Such exception does not exist in the case
at bench.10
No cogent reason exists which would justify the
reversal of the RTC's assessment on the credibility of
the witnesses. It bears to stress that the conviction
of petitioner Saldua does not rest solely upon the
uncorroborated testimony of witness Lemecito
Pecore (Pecore) who testified that he saw Vertudez
shooting into the garage of Abella, hitting the
latter11 with the armed petitioner Saldua behind
him.12 Pecore, however, did not see petitioner
Saldua fire into the garage.13 He also narrated how
he had taken a closer look at their faces, when after
the shooting incident, Vertudez and petitioner
Saldua fled towards his direction.14 This testimony
was further bolstered by witnesses Flores and
Palalon who recounted that at the date of the
incident, the three accused were within the vicinity
of the incident. All in all, the prosecution's witnesses
positively identified petitioner Saldua, together with
Vertudez and Lalamunan, to be present at the crime
scene.
Prosecution's positive identification prevails over
petitioner's defense of alibi.
607 | P a g e
Petitioner maintained that he was at their house in
Barangay San Jose, Sta. Catalina, Negros Oriental
from November 10-15 and he left on November 16,
2005 to Bacolod City. While the defense presented a
certification mentioning persons who could attest
that petitioner was at his house, not one of them
was presented in court. As correctly ruled by the CA,
said certification cannot be given probative value.
Neither could we rely on the affidavits executed by a
certain Rommel Awing and Henry Lalamunan which
purportedly corroborate petitioner's defense. Apart
from the fact that they did not appear before the
court to be cross-examined, affidavits are usually not
a complete reproduction of what the declarant had
in mind.15 Often times, affidavits are prepared by the
administering officer and cast in the latter's language
or according to the latter's understanding of what
the affiant has said, while the affiant would simply
sign the affidavit after it has been read to
him.16 Being ex parte, they are almost always
incomplete and often inaccurate and as such,
affidavits are generally considered to be inferior to a
testimony given in court although these factors do
not denigrate the credibility of witnesses. 17 As in this
case, the said affidavits executed by the defense's
witnesses cannot prevail over the positive
testimonies given in open court by the prosecution’s
witnesses.18
As the identity of petitioner is now a settled issue,
we now proceed to determine his criminal liability
for the crime charged.
Evident premeditation was not proven, hence, the
crime committed was only Homicide.
For the charge of murder to prosper, the prosecution
must prove that (1) a person is killed; (2) the accused
killed him; (3) the killing was attended by any of the
qualifying circumstances mentioned in Article 248 of
the Revised Penal Code (RPC); and (4) the killing is
not parricide or infanticide.19
In this case, the fact of death of Abella is undisputed
and the killing was not parricide or infanticide. It
was, likewise, established that Vertudez killed the
victim. In qualifying the crime to murder, the RTC, as
sustained by the CA, appreciated the qualifying
circumstance of evident premeditation. To prove
evident premeditation, three requisites are needed
to be proven: (a) the time when the offender
determined to commit the crime; (b) an act
manifestly indicating that the offender had clung to
his determination; and (c) a sufficient interval of
time between the determination and the execution
of the crime to allow him to reflect upon the
consequences of his act.20
Premeditation presupposes a deliberate planning of
the crime before executing it.21 The execution of the
criminal act, in other words, must be preceded by
cool thought and reflection.22 As here, there must be
showing of a plan or preparation to kill, or proof that
the accused meditated and reflected upon his
decision to execute the crime.23 The record is bereft
of any evidence to show when Vertudez reflected on
his decision to kill the victim. There was no direct
evidence whatsoever of any plan or preparations to
kill the victim nor of the time when the plot to kill
was conceived. Settled is the rule that when it is not
shown how and when the plan to kill was hatched or
what time had elapsed before it was carried out,
evident premeditation cannot be considered. 24 Then
again, the premeditation to kill must be plain and
notorious; it must be sufficiently proven by evidence
of outward acts showing the intent to kill.25
What was clearly shown was the presence of the
three accused at the kiosk the day before and the
very day of the fatal incident. The CA held that their
presence at the kiosk was to study the neighborhood
and the surroundings and make the kiosk a staging
area for their plan to kill the victim. However, these
were all inferences devoid of any basis. No clear and
convincing evidence was adduced to establish that
these were the purpose why the accused were at the
kiosk before and on the day of the incident. As a
matter of fact, the prosecution even narrated that
one of the accused, Lalamunan, even introduced
himself as nephew of Palalon, and also introduced
Vertudez and petitioner Saldua. On that day, the
three accused stayed at the kiosk from 10:00 a.m. to
12:00 noon then came back again at 2:00 p.m. They
went back the day after. Verily, it leaves us in doubt
why the accused would volunteer their true identity
and flaunt their faces in the neighborhood if they
were indeed hatching a plan to kill someone in the
vicinity. In the absence of clear and positive
evidence, mere presumptions and inferences of
evident premeditation, no matter how logical and
probable, are insufficient.26
It bears reiterating that a qualifying circumstance
such as evident premeditation must be proven as
clearly as the crime itself.27 Corollarily, every
element thereof must be shown to exist beyond
reasonable doubt and cannot be the mere product
of speculation.28 Based on the foregoing disquisition,
it is clear that the court below erred in concluding
that the crime of murder was committed. Absent the
qualifying circumstances of evident premeditation,
an accused could only be held liable for homicide.
Petitioner was guilty as an accomplice to
homicide.
In order that a person may be considered an
accomplice, the following requisites must concur: (1)
that there be community of design; that is, knowing
the criminal design of the principal by direct
participation, he concurs with the latter in his
608 | P a g e
purpose; (2) that he cooperates in the execution by
previous or simultaneous act, with the intention of
supplying material or moral aid in the execution of
the crime in an efficacious way; and (3) that there be
a relation between the acts done by the principal
and those attributed to the person charged as
accomplice.29
At the time the crime of homicide was committed, it
was established that petitioner Saldua, who was
armed, was present, as he was behind Vertudez
when the latter fired his gun. However, mere
presence does not make one a co-conspirator in the
crime. The rule is that the existence of conspiracy
cannot be presumed.30 Just like the crime itself, the
elements of conspiracy must be proven beyond
reasonable doubt.31 Because witnesses are rarely
present when several accused come to an
agreement to commit a crime, such agreement is
usually inferred from their "concerted actions" while
committing it.32 Indeed, the line that separates a
conspirator by concerted action from an accomplice
by previous or simultaneous acts is
slight.33 Accomplices do not decide whether the
crime should be committed; but they assent to the
plan and cooperate in its accomplishment.34
Other than being present, it was not established
what petitioner's purpose was when he stood
behind Vertudez bearing a firearm. By merely
standing behind Vertudez, it cannot be ascertained
whether petitioner had prior knowledge of the
criminal design of the principal perpetrator or that
he was there to give moral support. What was clear
is that he was armed and he did not stop Vertudez
from shooting the victim. The mere fact that a
person is present when a crime is committed, when
such presence does not have the purpose of
encouraging the criminal and when there is no
previous agreement between them as to the
commission of the crime, will make the former
responsible only as accomplice in the crime
committed.35 This conclusion is in keeping with the
principle that when there is doubt, such doubt
should be resolved in favor of the accused. Thus:
It was held that when there is doubt as to whether a
guilty participant in a homicide performed the role
of principal or accomplice, the Court should favor
the "milder form of responsibility." He should be
given the benefit of the doubt and can be regarded
only as an accomplice. x x x Hence, in the case at bar,
the accused x x x should be granted the benefit of
doubt and should be considered merely as
accomplices and should be meted a penalty one
degree lower than that to be imposed on accused x x
x who is unequivocally the principal.36
Hence, in this case, lacking sufficient evidence of
conspiracy, and there being doubt as to whether
petitioner acted as principal or just a mere
accomplice, the doubt should be resolved in his favor
and, thus, he should be held liable only as an
accomplice.
Variance in the participation in the offense
between what was alleged in the Information and
what was proven is not a ground for acquittal.
The defense insists that there was variance between
the allegations of the Amended Information and the
proof adduced by the prosecution during trial which
is prejudicial to petitioner and fatal to his conviction.
The defense explains that the allegation in the
Amended Information states that petitioner shot and
killed Abella with a handgun and he is charged with
murder. The same is substantially at variance with
the proof adduced which was that petitioner never
fired a shot but was merely behind the perpetrator.
Under Sections 437 and 538 Rule 120 of the 1997
Rules of Court, when there is variance between the
offense charged in the Information and that proved
or established by the evidence, and the offense as
charged necessarily includes the offense proved, the
accused shall be convicted of the offense proved
included in that which is charged.39 Here, accused
was charged as principal to murder because of the
qualifying circumstance of evident premeditation.
Since the prosecution was not able to prove the said
qualifying circumstance, it is correct that the accused
should only be sentenced to the lesser crime of
homicide which is necessarily included in
murder.40 At any rate, this variance between the
offense alleged and the offense proven did not
violate petitioner's substantial rights. Petitioner's
right to be informed of the charges against him has
not been violated because where an accused is
charged with a specific crime, he is duly informed
not only of such specific crime but also of lesser
crimes or offenses included therein.41
The variance in the participation or complicity of the
petitioner is likewise not sufficient to exonerate him.
While the petitioner was being held responsible as a
principal in the information, the evidence adduced,
however, showed that his participation is merely
that of an accomplice. Jurisprudence has taught that
an accused can be validly convicted as an accomplice
or accessory under an information charging him as a
principal.42 The greater responsibility necessarily
includes the lesser.43
Proper Penalty
Under Article 249 of the Revised Penal Code, the
penalty for homicide is reclusion temporal. Since
petitioner is only an accomplice, the imposable
penalty is one degree lower than that imposable for
the principal, i.e., prision mayor. There being neither
aggravating nor mitigating circumstances, the said
609 | P a g e
penalty shall be imposed in its medium period.
Applying the Indeterminate Sentence Law, petitioner
Saldua is, accordingly, sentenced to suffer the prison
term of four (4) years, two (2) months and one (1)
day of prision correccional, as minimum, to eight (8)
years and one (1) day of prision correccional, as
minimum, to eight (8) years and one (1) day
of prision mayor, as maximum.44
As to petitioner's civil liability, the ruling in the case
of People v. Tampus45 is instructive. In the said case,
the Court ruled that the penalty and liability,
including civil liability, imposed upon an accused
must be commensurate with the degree of his
participation in the commission of the crime. Thus,
the Court held that the principal must be adjudged
liable to pay two-thirds of the civil indemnity and
moral damages, while the accomplice should pay
one-third portion thereof.46
In People v. Jugueta,47 the amount of damages to be
paid by the principal for consummated homicide are
as follows: (1) P50,000.00, as civil indemnity; (2)
P50,000.00, as moral damages without exemplary
damages being awarded; and (3) P50,000.00 as
temperate damages when no documentary evidence
of burial or funeral expenses is presented in court.
Pursuant to the ruling in the above-mentioned case
of People v. Tampus, in relation to People v. Jugueta,
petitioner, as accomplice in the crime of homicide is
liable to pay P16,667.67 as civil indemnity,
P16,667.67 as moral damages and P16,667.67 as
temperate damages. The Court also clarified that the
accomplice would not be subsidiarily liable for the
amount allotted to the principal if the latter dies
before the finality of the Decision. The reason for
this is that there would be nothing that could be
passed to the accomplice as the principal's criminal
liability, including the civil liability arising thereon,
had been extinguished by his death.48
WHEREFORE, in view of the foregoing, the Decision
dated April 30, 2013 and the Resolution dated
December 10, 2013 of the Court of Appeals-Cebu
City are AFFIRMED with MODIFICATION such that
petitioner Martiniano "Martin" B. Saldua, a.k.a.
Marlon Saldua is held guilty as accomplice to
homicide and is accordingly sentenced to a prison
term of four (4) years, two (2) months and one (1)
day of prision correccional, as minimum, to eight (8)
years and one (1) day of prision mayor, as maximum,
and to indemnify the heirs of Jill Abella the amount
of P16,667.67 as civil liability, P16,667.67 as moral
damages and P16,667.67 as temperate damages.
SO ORDERED.
Peralta (Chairperson), Leonen, A. Reyes,
Jr.,* and Gesmundo, JJ., concur.
[G.R. No. 155046. June 26, 2006]
GERALDO BENJAMIN AVENGOZA v. THE PEOPLE OF
THE PHILIPPINES
Third Division
Sirs/Mesdames:
Quoted hereunder, for your information, is a
resolution of this Court dated JUNE 26, 2006.
G.R. No. 155046 (Geraldo Benjamin Avengoza v. The
People of the Philippines)
Before the Court is a petition for
review[1]cralaw assailing the 27 October 2000
Decision[2]cralaw and the 14 August 2002
Resolution[3]cralaw of the Sandiganbayan, Third
Division, in Criminal Case No. 20655. The
Sandiganbayan convicted Police Inspector Geraldo
Benjamin Avengoza ("petitioner") as accessory in the
crime of Murder.
In the evening of 5 June 1992, petitioner, SPO1 Isagani
Torrefranca ("Torrefranca") and PO2 Diosdado
Catacutan ("Catacutan") took into their custody
Mamerto Victosa ("Victosa"), a detainee at Leon B.
Postigo Police Station in Zamboanga Del Norte.
Victosa was under investigation for the alleged theft
of a .38 caliber revolver issued to Torrefranca.
Petitioner, Torrefranca and Catacutan were supposed
to bring Victosa to the PNP[4]cralaw Police Station
in Camp Hamac, Sicayab, Dipolog City where they
were assigned. However, the following morning,
Victosa was found dead with his hands tied behind his
back and with three bullet wounds on his chest.
Petitioner, Torrefranca and Catacutan were charged
with Murder. After trial, the Sandiganbayan rendered
its 27 October 2000 Decision. The dispositive portion
of the Decision reads:
WHEREFORE, Judgment is hereby rendered as
follows:
1. Accused ISAGANI TORREFRANCA y BAYANG is
hereby found GUILTY beyond reasonable doubt as
principal in the crime of Murder and is hereby
sentenced to suffer the penalty of reclusion perpetua,
with the accessory penalties imposed by law, and to
indemnify the heirs of the deceased MAMERTO
VICTOSA in the amount of FIFTY THOUSAND
(P50,000.00) PESOS, with costs.
2. Accused GERARDO [sic] BENJAMIN AVENGOZA is
hereby found GUILTY beyond reasonable doubt as an
accessory in the crime of Murder and is hereby
sentenced to suffer an indeterminate penalty ranging
from two (2) years ten (10) months and twenty (20)
days of pricion [sic] correccional as minimum to four
(4) years two (2) months and one (1) day
610 | P a g e
of prision correccional, as maximum, with costs. Full
credit for the period of his preventive imprisonment
is hereby ordered pursuant to Article 29 of the
Revised Penal Code.
3. For lack of sufficient evidence, accused DIOSDADO
CATACUTAN y ESPARAGOSA is hereby ACQUITTED
and the bond posted for his provisional liberty is
ordered lifted.
SO ORDERED.[5]cralaw
Petitioner filed a motion for reconsideration on the
ground that Torrefranca never escaped. Hence, he
could not have harbored, concealed or assisted in
Torrefranca's escape that would make him liable as an
accessory to the crime of Murder. In its 14 August
2002 Resolution, the Sandiganbayan denied
petitioner's motion for lack of merit.
Hence, the petition before this Court.
The sole issue is whether petitioner is liable as an
accessory to the crime of Murder committed by
Torrefranca.
The petition has no merit.
Article 19 of the Revised Penal Code provides:
ART. 19. Accessories. - Accessories are those who,
having knowledge of the commission of the crime,
and without having participated therein, either as
principals or accomplices, take part subsequent to its
commission in any of the following manners:
1. By profiting themselves or assisting the offender to
profit by the effects of the crime;
2. By concealing or destroying the body of the crime,
or the effects or instruments thereof, in order to
prevent its discovery;
3. By harboring, concealing, or assisting in the escape
of the principal of the crime, provided the accessory
acts with abuse of his public functions or whenever
the author of the crime is guilty of treason, parricide,
murder, or an attempt to take the life of the Chief
Executive, or is known to be habitually guilty of some
other crime.
In this case, it cannot be denied that petitioner knew
that Torrefranca shot Victosa. Catacutan testified that
when he returned to the vehicle, he heard petitioner
shouting at Torrefranca and asking him why he shot
Victosa.[6]cralaw Petitioner was Torrefranca's
superior officer. The Court agrees with the
Sandiganbayan that petitioner has the duty to disarm
and arrest Torrefranca right at the scene of the crime.
Yet, when Torrefranca said "Takbo na tayo" ("Let's
run"), petitioner agreed with him. After Torrefranca
said "Takbo na tayo," Catacutan asked petitioner
what his order was. Petitioner just said "let's
go."[7]cralaw
Even if petitioner believed Torrefranca's allegation
that Victosa tried to escape, it is still petitioner's duty
to report the incident upon their arrival at their
headquarters. Instead, petitioner instructed
Catacutan not to tell anyone what happened.[8]cralaw
In People v. Antonio, the Court convicted SPO4 Nieto
as an accessory for failing to arrest the accused after
the crime was committed in his presence. The Court
ruled:
Appellant Nieto's actuations immediately after the
commission of the crime demonstrate his liability as
an accessory. Being a police officer in the active
service, he had the duty to arrest appellant Antonio
after the latter committed a crime in his presence,
and which he himself witnessed. Unfortunately, he
failed to do what was incumbent upon him to do.
Instead, he rode with the offender to the latter's
house where they stayed for more than five (5)
hours.[9]cralaw
Petitioner alleges that Torrefranca himself testified
that when they reached the headquarters after the
incident, they were about to report the incident but
the superintendent was asleep. Hence, they just
reported the incident the following day. However,
there was nothing in the records that would show
that petitioner and Torrefranca reported the incident.
Instead, as held by the Sandiganbayan, the incident
was discovered when Victosa's body was found and
when Catacutan admitted what happened after he
was asked by petitioner's superior officer.
Petitioner, citing US v. Callapag[10]cralaw and US v.
Caballeros, et al.[11]cralaw argues that mere silence of
the commission of a crime is not an offense under the
Revised Penal Code. In this case, petitioner was not
merely silent. He failed to disarm and arrest
Torrefranca. He did not report the incident to the
authorities. He instructed Catacutan not to tell
anyone about the incident. The Sandiganbayan
correctly ruled that petitioner's acts had the effect
and purpose of concealing the principal of the crime.
Petitioner is liable as an accessory to the crime of
murder under Article 19(3) of the Revised Penal Code.
WHEREFORE, we AFFIRM the 27 October 2000
Decision and 14 August 2002 Resolution of the
Sandiganbayan in Criminal Case No. 20655.
SO ORDERED.
Very truly yours,
611 | P a g e
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 84163 October 19, 1989
LITO VINO, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES and THE COURT OF
APPEALS, respondents.
Frisco T. Lilagan for petitioner.
RESOLUTION
GANCAYCO, J.:
The issue posed in the motion for reconsideration
filed by petitioner of the resolution of this Court
dated January 18, 1989 denying the herein petition is
whether or not a finding of guilt as an accessory to
murder can stand in the light of the acquittal of the
alleged principal in a separate proceeding.
At about 7:00 o'clock in the evening of March 21,
1985, Roberto Tejada left their house at Burgos
Street, Poblacion, Balungao, Pangasinan to go to the
house of Isidro Salazar to watch television. At around
11:00 P.M., while Ernesto, the father of Roberto, was
resting, he heard two gunshots. Thereafter, he heard
Roberto cry out in a loud voice saying that he had
been shot. He saw Roberto ten (10) meters away so
he switched on the lights of their house. Aside from
Ernesto and his wife, his children Ermalyn and Julius
were also in the house. They went down to meet
Roberto who was crying and they called for help
from the neighbors. The neighbor responded by
turning on their lights and the street lights and
coming down from their houses. After meeting
Roberto, Ernesto and Julius saw Lito Vino and Jessie
Salazar riding a bicycle coming from the south. Vino
was the one driving the bicycle while Salazar was
carrying an armalite. Upon reaching Ernesto's house,
they stopped to watch Roberto. Salazar pointed his
armalite at Ernesto and his companions. Thereafter,
the two left.
Roberto was brought to the Sacred Heart Hospital of
Urdaneta. PC/Col. Bernardo Cacananta took his ante-
mortem statement. In the said statement which the
victim signed with his own blood, Jessie Salazar was
Identified as his assailant.
The autopsy report of his body shows the following-
Gunshot wound
POE Sub Scapular-5-6-ICA. Pal
1 & 2 cm. diameter left
Slug found sub cutaneously,
2nd ICS Mid Clavicular line left.
CAUSE OF DEATH
Tension
Hemathorax 1
Lito Vino and Sgt. Jesus Salazar were charged with
murder in a complaint filed by PC Sgt. Ernesto N.
Ordono in the Municipal Trial Court of Balungao,
Pangasinan. However, on March 22, 1985, the
municipal court indorsed the case of Salazar to the
Judge Advocate General's Office (JAGO) inasmuch as
he was a member of the military, while the case
against Vino was given due course by the issuance of
a warrant for his arrest. Ultimately, the case was
indorsed to the fiscal's office who then filed an
information charging Vino of the crime of murder in
the Regional Trial Court of Rosales, Pangasinan.
Upon arraignment, the accused Vino entered a plea
of not guilty. Trial then commenced with the
presentation of evidence for the prosecution.
Instead of presenting evidence in his own behalf, the
accused filed a motion to dismiss for insufficiency of
evidence to which the prosecutor filed an answer.
On January 21, 1986, 2 a decision was rendered by
the trial court finding Vino guilty as an accessory to
the crime of murder and imposing on him the
indeterminate penalty of imprisonment of 4 Years
and 2 months of prision correccional as minimum to
8 years of prision mayor as maximum. He was also
ordered to indemnify the heirs of the victim in the
sum of P10,000.00 being a mere accessory to the
crime and to pay the costs.
The motion for reconsideration filed by the accused
having been denied, he interposed an appeal to the
Court of Appeals. In due course, a Decision was
rendered affirming the judgment of the lower
court. 3
Hence, the herein petition for review wherein the
following grounds are invoked:
1. THAT AN ACCUSED CAN NOT BE
CONVICTED AS AN ACCESSORY OF
THE CRIME OF MURDER FOR
HAVING AIDED IN THE ESCAPE OF
THE PRINCIPAL IF SAID ACCUSED IS
BEING CHARGED SOLELY IN THE
INFORMATION AS PRINCIPAL FOR
THE SIMPLE REASON THAT THE
612 | P a g e
CRIME PROVED IS NOT INCLUDED
IN THE CRIME CHARGED.
2. THAT "AIDING THE ESCAPE OF
THE PRINCIPAL" TO BE
CONSIDERED SUFFICIENT IN LAW
TO CONVICT AN ACCUSED UNDER
ARTICLE 19, PARAGRAPH 3 OF THE
REVISED PENAL CODE MUST BE
DONE IN SUCH A WAY AS TO
DECEIVE THE VIGILANCE OF THE
LAW ENFORCEMENT AGENCIES OF
THE STATE AND THAT THE
"ESCAPE" MUST BE ACTUAL;
3. THE CONVICTION OF AN
ACCESSORY PENDING THE TRIAL
OF THE PRINCIPAL VIOLATES
PROCEDURAL ORDERLINESS. 4
During the pendency of the appeal in the Court of
Appeals, the case against Salazar in the JAGO was
remanded to the civil court as he was discharged
from the military service. He was later charged with
murder in the same Regional Trial Court of Rosales,
Pangasinan in Criminal Case No. 2027-A. In a
supplemental pleading dated November 14, 1988,
petitioner informed this Court that Jessie Salazar was
acquitted by the trial court in a decision that was
rendered on August 29, 1988.
The respondents were required to comment on the
petition. The comment was submitted by the
Solicitor General in behalf of respondents. On
January 18, 1989, the Court resolved to deny the
petition for failure of petitioner to sufficiently show
that respondent court had committed any reversible
error in its questioned judgment. Hence, the present
motion for reconsideration to which the respondents
were again required to comment. The required
comment having been submitted, the motion is now
due for resolution.
The first issue that arises is that inasmuch as the
petitioner was charged in the information as a
principal for the crime of murder, can he thereafter
be convicted as an accessory? The answer is in the
affirmative.
Petitioner was charged as a principal in the
commission of the crime of murder. Under Article 16
of the Revised Penal Code, the two other categories
of the persons responsible for the commission of the
same offense are the accomplice and the accessory.
There is no doubt that the crime of murder had been
committed and that the evidence tended to show
that Jessie Salazar was the assailant. That the
petitioner was present during its commission or
must have known its commission is the only logical
conclusion considering that immediately thereafter,
he was seen driving a bicycle with Salazar holding an
armalite, and they were together when they left
shortly thereafter. At least two witnesses, Ernesto
and Julius Tejada, attested to these facts. It is thus
clear that petitioner actively assisted Salazar in his
escape. Petitioner's liability is that of an accessory.
This is not a case of a variance between the offense
charged and the offense proved or established by
the evidence, and the offense as charged is included
in or necessarily includes the offense proved, in
which case the defendant shall be convicted of the
offense proved included in that which is charged, or
of the offense charged included in that which is
proved. 5
In the same light, this is not an instance where after
trial has begun, it appears that there was a mistake
in charging the proper offense, and the defendant
cannot be convicted of the offense charged, or of
any other offense necessarily included therein, in
which case the defendant must not be discharged if
there appears to be a good cause to detain him in
custody, so that he can be charged and made to
answer for the proper offense. 6
In this case, the correct offense of murder was
charged in the information. The commission of the
said crime was established by the evidence. There is
no variance as to the offense committed. The
variance is in the participation or complicity of the
petitioner. While the petitioner was being held
responsible as a principal in the information, the
evidence adduced, however, showed that his
participation is merely that of an accessory. The
greater responsibility necessarily includes the lesser.
An accused can be validly convicted as an accomplice
or accessory under an information charging him as a
principal.
At the onset, the prosecution should have charged
the petitioner as an accessory right then and there.
The degree of responsibility of petitioner was
apparent from the evidence. At any rate, this lapse
did not violate the substantial rights of petitioner.
The next issue that must be resolved is whether or
not the trial of an accessory can proceed without
awaiting the result of the separate charge against
the principal. The answer is also in the affirmative.
The corresponding responsibilities of the principal,
accomplice and accessory are distinct from each
other. As long as the commission of the offense can
be duly established in evidence the determination of
the liability of the accomplice or accessory can
proceed independently of that of the principal.
The third question is this-considering that the
alleged principal in this case was acquitted can the
conviction of the petitioner as an accessory be
maintained?
613 | P a g e
In United States vs. Villaluz and Palermo, 7 a case
involving the crime of theft, this Court ruled that
notwithstanding the acquittal of the principal due to
the exempting circumstance of minority or insanity
(Article 12, Revised Penal Code), the accessory may
nevertheless be convicted if the crime was in fact
established.
Corollary to this is United States vs.
Mendoza, 8 where this Court held in an arson case
that the acquittal of the principal must likewise
result in the acquittal of the accessory where it was
shown that no crime was committed inasmuch as
the fire was the result of an accident. Hence, there
was no basis for the conviction of the accessory.
In the present case, the commission of the crime of
murder and the responsibility of the petitioner as an
accessory was established. By the same token there
is no doubt that the commission of the same offense
had been proven in the separate case against Salazar
who was charged as principal. However, he was
acquitted on the ground of reasonable doubt by the
same judge who convicted Vino as an accessory. The
trial court held that the identity of the assailant was
not clearly established. It observed that only Julius
Tejada identified Salazar carrying a rifle while riding
on the bicycle driven by Vino, which testimony is
uncorroborated, and that two other witnesses,
Ernesto Tejada and Renato Parvian who were listed
in the information, who can corroborate the
testimony of Julius Tejada, were not presented by
the prosecution.
The trial court also did not give due credit to the
dying declaration of the victim pinpointing Salazar as
his assailant on the ground that it was not shown the
victim revealed the identity of Salazar to his father
and brother who came to his aid immediately after
the shooting. The court a quo also deplored the
failure of the prosecution and law enforcement
agencies to subject to ballistic examinations the
bullet slug recovered from the body of the victim
and the two empty armalite bullet empty shells
recovered at the crime scene and to compare it with
samples taken from the service rifle of Salazar. Thus,
the trial court made the following observation:
There appears to be a miscarriage
of justice in this case due to the
ineptitude of the law enforcement
agencies to gather material and
important evidence and the
seeming lack of concern of the
public prosecutor to direct the
production of such evidence for
the successful prosecution of the
case. 9
Hence, in said case, the acquittal of the accused
Salazar is predicated on the failure of the
prosecution to adduce the quantum of evidence
required to generate a conviction as he was not
positively identified as the person who was seen
holding a rifle escaping aboard the bicycle of Vino.
A similar situation may be cited. The accessory was
seen driving a bicycle with an unidentified person as
passenger holding a carbine fleeing from the scene
of the crime immediately after the commission of
the crime of murder. The commission of the crime
and the participation of the principal or assailant,
although not identified, was established. In such
case, the Court holds that the accessory can be
prosecuted and held liable independently of the
assailant.
We may visualize another situation as when the
principal died or escaped before he could be tried
and sentenced. Should the accessory be acquitted
thereby even if the commission of the offense and
the responsibility of the accused as an accessory was
duly proven? The answer is no, he should be held
criminally liable as an accessory.
Although in this case involving Vino the evidence
tended to show that the assailant was Salazar, as
two witnesses saw him with a rifle aboard the
bicycle driven by Vino, in the separate trial of the
case of Salazar, as above discussed, he was acquitted
as the trial court was not persuaded that he was
positively identified to be the man with the gun
riding on the bicycle driven by Vino. In the trial of the
case against Vino, wherein he did not even adduce
evidence in his defense, his liability as such an
accessory was established beyond reasonable doubt
in that he assisted in the escape of the assailant from
the scene of the crime. The identity of the assailant
is of no material significance for the purpose of the
prosecution of the accessory. Even if the assailant
can not be identified the responsibility of Vino as an
accessory is indubitable.
WHEREFORE, the motion for reconsideration is
denied and this denial is FINAL.
SO ORDERED.
Narvasa and Medialdea, JJ., concur.
Separate Opinions
CRUZ, J., dissenting:
614 | P a g e
I agree with the proposition in the ponencia that a
person may be held liable as an accessory for helping
in the escape of the principal even if the latter is
himself found not guilty. The examples given are
quite convincing. However, I do not think they apply
in the case at bar, which is sui generis and not
covered by the general principle.
As Justice Aquino points out, Vino was convicted of
having aided Jessie Salazar, who was named as the
principal at Vino's trial. At his own trial, the same
Salazar was acquitted for lack of sufficient
Identification. Vino was convicted of helping in the
escape not of an unnamed principal but, specifically,
of Jessie Salazar. As Salazar himself has been
exonerated, the effect is that Vino is now being held
liable for helping an innocent man, which is not a
crime. Vino's conviction should therefore be
reversed.
GRIÑO-AQUINO, J., dissenting:
I regret to have to disagree with the ponente's
opinion.
There are three (3) kinds of accessories under Article
19 of the Revised Penal Code:
ART. 19. Accessories. —
Accessories are those who, having
knowledge of the commission of
the crime, and without having
participated therein, either as
principals or accomplices, take part
subsequent to its commission in
any of the following manner:
1. By profiting themselves or
assisting the offenders to profit by
the effects of the crime.
2. By concealing or destroying the
body of the crime, or the effects or
instruments thereof, in order to
prevent its discovery.
3. By harboring, concealing, or
assisting in the escape of the
principal of the crime, provided the
accessory acts with abuse of his
public functions or whenever the
author of the crime is guilty of
treason, parricide, murder, or an
attempt to take the life of the Chief
Executive, or is known to be
habitually guilty of some other
crime.
An accessory who falls under paragraph 1 may be
convicted even if the principal is acquitted, as where
the principal was found to be a minor (U.S. vs.
Villaluz and Palermo 32 Phil. 377) or the son of the
offended party (Cristobal vs. People, 84 Phil. 473).
An accessory under paragraph 2 who allegedly
concealed or destroyed the body of the crime or the
effects or instruments may be convicted if the
commission of the crime has been proven, even if
the principal has not been apprehended and
convicted.
But an accessory under paragraph 3 who allegedly
harbored, concealed the principal or assisted in his
escape, may not be convicted unless the principal,
whom he allegedly harbored, concealed, or assisted
in escaping, has been identified and convicted.
I cannot see how the conviction of Vino as an
accessory under paragraph 3 of Article 19 of the Rev.
Penal Code, for allegedly having assisted in the
escape of Sgt. Jessie Salazar, the alleged killer of
Roberto Tejada, can stand since Salazar (who faced
trial separately and subsequently) was acquitted,
ironically by the same court that convicted Vino
earlier. The basis for Vino's conviction as accessory in
the crime of murder was his having driven the
alleged killer Salazar in his tricycle after Tejada was
killed. Since the trial court acquitted Salazar, holding
that the prosecution failed to prove that he was the
killer of Tejada, then Vino's having driven him in his
tricycle did not constitute the act of assisting in the
escape of a killer.
The cases of U.S. vs. Villaluz and Palermo, 32 Phil.
377 and U.S. vs. Mendoza, 23 Phil. 194 cited in
the ponencia are not in point. In the Villaluz case the
charge against accused as an accessory to theft was
brought under paragraph 2 of Article 19 of the
Revised Penal Code, for having concealed the effects
of the crime by receiving and concealing a stolen
watch. Although the principal, a young housegirl,
was acquitted on account of her tender age and lack
of discernment, the accessory was nevertheless
convicted.
In the Mendoza case, the accused barrio captain who
was charged as an accessory under paragraph 2 for
not reporting the fire to the authorities, was
acquitted because the crime of arson was not
proven, the fire being accidental.
The criminal liability of an accessory under
paragraph 3 of Article 19 is directly linked to and
inseparable from that of the principal. Even if as in
this case, the crime (murder) was proven but the
identity of the murderer was not (for the principal
accused was acquitted by the trial court), the
petitioner tricycle-driver who allegedly drove him in
his tricycle to escape from the scene of the crime,
may not be convicted as an accessory to the murder,
for, as it turned out, the said passenger was not
proven to be the murderer. The accessory may not
be convicted under paragraph 3 of Article 19 of the
615 | P a g e
Revised Penal Code if the alleged principal is
acquitted for, in this instance, the principle that "the
accessory follows the principal" appropriately
applies.
I therefore vote to acquit the petitioner.
Separate Opinions
CRUZ, J., dissenting:
I agree with the proposition in the ponencia that a
person may be held liable as an accessory for helping
in the escape of the principal even if the latter is
himself found not guilty. The examples given are
quite convincing. However, I do not think they apply
in the case at bar, which is sui generis and not
covered by the general principle.
As Justice Aquino points out, Vino was convicted of
having aided Jessie Salazar, who was named as the
principal at Vino's trial. At his own trial, the same
Salazar was acquitted for lack of sufficient
Identification. Vino was convicted of helping in the
escape not of an unnamed principal but, specifically,
of Jessie Salazar. As Salazar himself has been
exonerated, the effect is that Vino is now being held
liable for helping an innocent man, which is not a
crime. Vino's conviction should therefore be
reversed.
GRIÑO-AQUINO, J., dissenting:
I regret to have to disagree with the ponente's
opinion.
There are three (3) kinds of accessories under Article
19 of the Revised Penal Code:
ART. 19. Accessories. —
Accessories are those who, having
knowledge of the commission of
the crime, and without having
participated therein, either as
principals or accomplices, take part
subsequent to its commission in
any of the following manner:
1. By profiting themselves or
assisting the offenders to profit by
the effects of the crime.
2. By concealing or destroying the
body of the crime, or the effects or
instruments thereof, in order to
prevent its discovery.
3. By harboring, concealing, or
assisting in the escape of the
principal of the crime, provided the
accessory acts with abuse of his
public functions or whenever the
author of the crime is guilty of
treason, parricide, murder, or an
attempt to take the life of the Chief
Executive, or is known to be
habitually guilty of some other
crime.
An accessory who falls under paragraph 1 may be
convicted even if the principal is acquitted, as where
the principal was found to be a minor (U.S. vs.
Villaluz and Palermo 32 Phil. 377) or the son of the
offended party (Cristobal vs. People, 84 Phil. 473).
An accessory under paragraph 2 who allegedly
concealed or destroyed the body of the crime or the
effects or instruments may be convicted if the
commission of the crime has been proven, even if
the principal has not been apprehended and
convicted.
But an accessory under paragraph 3 who allegedly
harbored, concealed the principal or assisted in his
escape, may not be convicted unless the principal,
whom he allegedly harbored, concealed, or assisted
in escaping, has been identified and convicted.
I cannot see how the conviction of Vino as an
accessory under paragraph 3 of Article 19 of the Rev.
Penal Code, for allegedly having assisted in the
escape of Sgt. Jessie Salazar, the alleged killer of
Roberto Tejada, can stand since Salazar (who faced
trial separately and subsequently) was acquitted,
ironically by the same court that convicted Vino
earlier. The basis for Vino's conviction as accessory in
the crime of murder was his having driven the
alleged killer Salazar in his tricycle after Tejada was
killed. Since the trial court acquitted Salazar, holding
that the prosecution failed to prove that he was the
killer of Tejada, then Vino's having driven him in his
tricycle did not constitute the act of assisting in the
escape of a killer.
The cases of U.S. vs. Villaluz and Palermo, 32 Phil.
377 and U.S. vs. Mendoza, 23 Phil. 194 cited in
the ponencia are not in point. In the Villaluz case the
charge against accused as an accessory to theft was
brought under paragraph 2 of Article 19 of the
Revised Penal Code, for having concealed the effects
of the crime by receiving and concealing a stolen
watch. Although the principal, a young housegirl,
was acquitted on account of her tender age and lack
of discernment, the accessory was nevertheless
convicted.
In the Mendoza case, the accused barrio captain who
was charged as an accessory under paragraph 2 for
616 | P a g e
not reporting the fire to the authorities, was
acquitted because the crime of arson was not
proven, the fire being accidental.
The criminal liability of an accessory under
paragraph 3 of Article 19 is directly linked to and
inseparable from that of the principal. Even if as in
this case, the crime (murder) was proven but the
Identity of the murderer was not (for the principal
accused was acquitted by the trial court), the
petitioner tricycle-driver who allegedly drove him in
his tricycle to escape from the scene of the crime,
may not be convicted as an accessory to the murder,
for, as it turned out, the said passenger was not
proven to be the murderer. The accessory may not
be convicted under paragraph 3 of Article 19 of the
Revised Penal Code if the alleged principal is
acquitted for, in this instance, the principle that "the
accessory follows the principal" appropriately
applies.
I therefore vote to acquit the petitioner.
Footnotes
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-1536 July 31, 1947
RICARDO PARULAN, petitioner,
vs.
SOTERO RODAS, Judge of First Instance of Manila,
and LUIS B. REYES, Assistant City Fiscal of
Manila, respondents.
Reyes and Cruz for petitioner.
RESOLUTION
FERIA, J.:
This is a motion for reconsideration of our resolution
dated July 11, 1947, which reads as follows:
Passing upon the petition for certiorari in
G.R. No. L-1536, Ricardo Parulan vs. Sotero
Rodas, etc. et al., praying for relief from the
order of the respondent Judge of the Court
of First Instance of Manila, dated July 8,
1947, denying petitioner's motion to quash
the information filed in criminal case No.
3649 of said respondent Court as well as
petitioner's motion for reconsideration and
praying, further, for the issuance of a writ of
preliminary injunction restraining the
respondent Judge from arraigning the
petitioner of July 12, 1947: the Court
resolved to dismiss said petition on the
ground that the Court of First Instance of
Manila has jurisdiction over the complex
offense of kidnapping with murder, the one
charged in the information. . . .
Section 48 of the Penal Code, providing for penalties
for complex crime, says that "when an offense is a
necessary means to commit the other, the penalty
for the most serious crime shall be imposed, the
same to be applied in its maximum period."
Therefore, the question for determination in the
present case is whether the offense charged in the
information is a complex crime of kidnapping and
murder, the former as a necessary means for
committing the latter.
In order to determine whether two offenses
constitute a complex crime, we should not find out
whether, in accordance with their definition by law,
one of them is an essential element of the other,
such as physical injuries which cause the death of
the victim, or stealing of personal property without
the consent of the owner through force or violence,
for in such cases there would be only one single
offense of homicide in the first and robbery in the
second case. But we should take into consideration
the facts alleged in a complaint or information and
determine whether one of the two separate and
different offenses charged therein was committed as
a necessary means to commit the other offense; if it
were the two offenses constitute one complex
crime; otherwise the complaint or information
charges two crimes or offenses independent from
one another.
For example, the crime of falsification of a private
document is not in general, an essential element of
the crime of estafa, because this offense may be
committed through many and varied means; but if a
defendant is charged in a complaint or information
with having committed falsification of a private
document as a means for committing estafa, the
offense charged would be a complex offense
of estafa through falsification. Also, abduction is, in
general, not an essential element of rape because
rape may be committed anywhere without necessity
of forcibly abducting or taking the victim to another
place for that purpose; but if the offense charged is
that the defendant abducted or carried by force the
victim from one place to another wherein the latter
was raped by the former, the crime charged would
be a complex crime of rape through abduction, the
abduction being in such a case a necessary means to
commit the rape. And although homicide or murder
may be committed wherever the victim may be
found, yet if the charge in a complaint or information
is that the victim was kidnapped and taken to
another distant place in order to demand ransom for
his release and kill him if ransom is not paid, the
offense charged would evidently be a complex crime
617 | P a g e
of murder through kidnapping, the latter being a
necessary means to commit the former.
The pertinent part of the information reads as
follows:
That on or about the 10th day of June,
1947, in the City of Manila, Philippines, the
said accused, being then private individuals,
conspiring and confederating together and
all helping one another, did then and there
wilfully, unlawfully, feloniously, and for
purpose of extorting ransom from one
Arthur Lee or of killing him if the desired
amount of money could not be given,
kidnap, carry away in an automobile,
detain, and later, after having taken him to
an uninhabited place by means of a motor
boat, with treachery, to wit: while the said
Arthur Lee was deprived of his liberty and
was very weak as a result of the physical
injuries which had been previously inflicted
upon him by the said accused, fire upon him
with a .45 caliber pistol several shots thru
the chest and head, fracturing the right 5th
and 6th ribs and the skull and lacerating the
brain, thereby inflicting upon him physical
injuries which directly caused the death of
the said Arthur Lee almost instantaneously.
From a cursory examination of the foregoing it
clearly appears that the crime charged is kidnapping
and murder and the former was committed by the
defendants as a necessary means "for the purpose of
extorting ransom from the victim or killing him if the
desired amount of money could not be given," that
is, that the defendants had to kidnap or carry the
victim to a faraway and secluded place in order to
better secure the consent of the victim through fear
to pay the ransom, and kill him with certain sense of
impunity and certainty that no other person may
witness the commission of the offense by the
defendants if the victim refused to accede to their
demand, and that in fact he was killed by the
defendants because of his refusal to pay the ransom.
The crime charged being a complex crime of
kidnapping and murder, the court of first instance of
any province in which any one of the essential
elements of said complex offense has been
committed, has jurisdiction to take cognizance of the
offense; and, therefore, the Court of First Instance of
Manila from where the victim was kidnapped has
jurisdiction over the offense committed in Manila
and continued all the way to the place where the
victim was taken and murdered.
The motion for reconsideration is therefore denied.
Moran, C.J., Paras, Pablo, Hilado, Bengzon,
Hontiveros, and Padilla, JJ., concur.
Separate Opinions
PERFECTO, J., dissenting:
We vote to grant the motion for reconsideration and
to give due course to the petition.
Upon further analysis of the allegations of the
information, Annex A of the petition, we arrived at
the conclusion that, as a matter of fact, two
independents crimes are imputed to the
accused, i.e.: kidnapping for the purpose of extorting
ransom, which is the fifth case of article 267 of the
Revised Penal Code, as amended by Republic Act No.
18, and murder as punished by article 248 of the
Revised Penal Code.
There is no such a complex crime as kidnapping with
murder, if the allegations of the information is to be
considered.
There are two classes of complex crimes, those
which are specifically described and punished as
such, and those committed as is provided in the
following provision of the Revised Penal Code:
Penalty for complex crimes. — When a
single act constitutes two or more grave or
less grave felonies, or when an offense is a
necessary means for committing the other,
the penalty for the most serious crime shall
be imposed, the same to be applied in its
maximum period. . . .
There is no specific provision of law describing the
alleged complex crime of kidnapping with murder, so
we have to analyze the facts alleged in the
information in the light of the provision of article 48
of the Revised Penal Code, which specify two cases:
First, when a single acts constitutes two or more
grave or less grave felonies, and second, when an
offense "is a necessary means for committing the
other."
The facts alleged in the information do not belong to
neither of the two cases. The information alleges
several acts, so the first case does not exist. There is
nothing in the information to show that kidnapping
was "a necessary means for committing" murder, or
vice versa. In the first place, it is absurd to suppose
that murder was committed as a necessary means to
commit kidnapping, as a dead body cannot be the
victim of kidnapping. And kidnapping was not "a
necessary means for committing" murder, because,
as alleged in the information, it was committed "for
the purpose of extorting ransom." That purpose is
incompatible with murder.
618 | P a g e
Kidnapping for extorting ransom is in itself already a
complex crime, where the kidnapping is the
necessary means for extorting ransom. It cannot be,
as the information stands, the necessary means for
committing murder, just to create a super-complex
crime. Failure to get ransom might be a motive for
committing murder, but no one in his right senses
will identify motive with means. Each one belongs to
a different category of ideas than to what the other
pertains.
In all other respects, we are in agreement with the
reasonings in the dissenting opinion of Mr. Justice
Tuason.
TUASON, J., dissenting:
We are for denying the petition on the ground that
appeal or certiorari does not lie against an
interlocutory order such as one disallowing a motion
to dismiss or to quash; there is no appeal before final
judgment is rendered. We beg to differ with the
majority of the court on the merits of the petition. In
our humble opinion distinct offenses are charged in
the information with the aggravating circumstance
that one of the crimes was committed entirely
outside the territorial jurisdiction of the Manila
courts.
The right to join offenses in the same information is
determined by law. Under our criminal law and
practice, two or more allied offenses for which a
single penalty as provided may be joined. Such allied
offenses are called complex crimes. Complex crime is
a denomination peculiar to the Spanish Penal Code.
The complex crimes are thus described in article 48
of the Revised Penal Code:
When a single act constitutes two or more
grave or less grave felonies, or when an
offense is a necessary means for
committing the other, the penalty for the
most serious crime shall be imposed, the
same to be applied in its maximum period
(as amended by Act No. 4000).
Besides this general description there are specific
combinations of offenses which are specifically
punished as one. Robbery with homicide is an
example.
But there is no such creature in Philippine penal
legislations as kidnapping with murder, unless one is
necessary to commit the other. Kidnapping and
murder are separate and distinct crimes, different
from each other in their nature and in the elements
that make up the crimes. If kidnapping is a
continuing offense, as the prosecution rightly
contends, murder does not acquire this
characteristic by the mere fact of its association with
the killing. As we have said, kidnapping is not a part
of murder material and essential to the latter or
requisite to its consummation. Physical injuries
inflicted in connection with or on the occasion of
kidnapping are an integral part of the latter offense,
yes, and, for this reason, may be alleged with it. This
is so because the definition of kidnapping in one of
its forms makes physical injuries inflicted under such
circumstances a material ingredient of it for the
purpose of punishment. But it does not follow that
murder even if committed on the occasion of
kidnapping becomes identified, for purposes of
prosecution, with the last-named offense. The fact
that physical injuries form part of kidnapping does
not by extension make murder also a part of
kidnapping. True, some, not all, decisions refuse to
make any distinction between homicide and murder
in cases of robbery but there is cogent reason for it;
the reason is that homicide and murder are in a
generic sense the same differing only in the
circumstances in which the slaying is committed.
Murder and homicide are grouped in the same
Chapter of the Revised Penal Code, Chapter I, Title
Eight. Physical injuries belong to another genus or
species of crimes and are dealt with under Chapter
II.
On the plain of legislative intent we find further and
stronger support for the observation that murder
may not be confused with physical injuries when
committed in association with kidnapping. Bent on
curving rampant lawlessness and especially
kidnapping which was prevalent, the Legislature
purposely, not through inadvertence, omitted
mention of destruction of human life as a factor in
the imposition of punishment for kidnapping. May
we not logically draw from this omission the
inference that the law-makers intended to let
murder, when murder results from kidnapping,
remain as a separate crime to be prosecuted where
the killing took place? There is reason behind this
theory; it is that murder was already punishable with
death.
Quite apart from all this, the well-known rule that
penal laws should receive strict construction should
not be lost sight of. At this juncture I quote Justice
Albert's comment in his book on another and
analogous topic which we think is in point:
And as homicide is a crime different from
murder and no mention is made of the
latter in the Chapter devoted to the former
and since, furthermore, the penal laws do
not admit of a liberal construction and what
is said of one crime cannot be applied by
inference to another, and the more so if
from a liberal construction a greater evil
would fall upon the convict, they logically
deduce that it would be an error to apply to
619 | P a g e
murder the provision of subsection 1 of
article 294 which refers only to homicide.
(Revised Penal Code, New Edition, p. 647.)
Let it be not said that we are indulging in
technicalities. Our objection goes to the jurisdiction
of the court, to its very authority to try an accused
for a capital offense which was begun and
completed in another province. It is the express
mandate of section 14, Rule 106, that
In all criminal prosecutions the actions shall
be instituted and tried in the court of the
municipality or province wherein the
offense was committed or any one of the
essential ingredients thereof took place.
The laying of venue in the municipality and province
where the crime was committed has not been
conceived as a fanciful decoration in the penal
system. It is grounded on the necessity and justice of
placing the accused on trial in the municipality or
province where witnesses and other facilities for his
defense are more readily available. The fact that the
jury system does not exist here affects the degree
but does not do away with the rationale of having
criminal cases prosecuted at their situs.
We now come to this court's resolution. The majority
pin their opinion on the assumption that kidnapping
of the murdered man in this case was a necessary
means to kill him. And, they say, in the
determination of the relation between the two
offenses, we have to look to the allegations in the
information for our guidance.
The information does not say that kidnapping was
used as a means to kill Lee. Even if it did, the
allegations would not bear it out; and it is the facts
stated in the information and not the prosecutor's
conclusion by which we have judge the correctness
or defects of a pleading.
Now then, what is stated in the information is that
Lee was killed for ransom or to be killed. Under this
allegation, and in the very nature of things,
kidnapping was necessary to extort money. No one
denies that. But we can not agree that kidnapping
was necessary to kill the victim, which is a different
thing. There was no need of carrying him to Bocaue,
several dozen kilometers away from where he had
been seized, in order to slay him. The defendants
could have taken his life without resorting to
kidnapping. This we know from common experience
which no studied wording of the information can
efface or inutilize. But, even as the information is
framed, the allegations enable us to visualize clearly
that Lee could have been slain in Manila before the
start of the drive to Bulacan. We cannot
overemphasize the fact that the law uses the word
"necessary" to describe "means." It is not enough
that a crime was used as a means; it must have been
essential to perpetrate another crime.
The following case reported in I Codigo, Penal, Viada,
482, may be of interest:
Cuestion X. ¿ El que ALLANA la morada
ajena, haciendo ceder a fuerza de golpes la
puerta y cerradura de la misma, y en ella,
MATA a la mujer que alli reside, y con la que
habia tenido antesrelaciones ilicitas, debera
ser castigado por cada uno de
estos DOS delitos de ALLANAMIENTO DE
MORADA Y HOMICIDIO a las penas
correspondiantes a los mismos, con arreglo
al articulo 88 del Codigo, o debera serlo tan
solo por el DELLITO MAS GRAVE en el grado
maximo, con sujecion al 90? — Esto ultimo
entendido la Audiencia de Granada, la que
condeno al procesado a la pena de veinte
 años de reclusion, como grado maximo del
delito mas grave de homicidio. Mas
interpuesto recurso de casacion por la
defensa del reo contra dicha sentencia por
infracion, entre otros, del articulo 88 del
Codigo penal, que debio aplicarse, y del 90
por no ser de applicacion al caso, declaro el
Tribunal Supremo haber lugar a el:
Considerando que tambien es procedente el
segundo motivo alegado, porque los delitos
de allanamiento y homicidio no fueron el
resultado de un solo hecho ni medio
necesario el uno para cometer el otro, y por
consecuencia, no ha debido aplicarseel
articulo 90 del Codigo penal y si el 88,
imponiendo por cada uno de los delitos la
pena correspondiente, en cuyo concepto ha
incurrido en error dicha Sala aplicando el
primero y dejando de hacerlo del segundo,
etc. (Sentencia de 24 enero de 1881,
publicada en la Graceta de 22 de marzo.)
The only ground we can think of for this ruling of the
Spanish Supreme court was that allanamiento was
not a necessary means to commit the homicide.
It seems clear from a consideration of the facts
alleged that the kidnapping was resorted to as a
means to conceal the killing or for other reasons best
known to the accused but not as a means of killing
the kidnapped man. Unwittingly, perhaps, the city
fiscal confirms us in this statement. In his
"opposition to motion to quash," by the language of
which the fiscal is bound, he says:
In the case at bar we respectfully submit
that the taking and carrying away of the
victim from Manila at the point of a gun and
for the purpose of killing him at Bocaue,
Bulacan, is an essential ingredient of the
offense charged in the information and as
620 | P a g e
the same took place within the territorial
jurisdiction of this Court, The crime
becomes a continuing or transitory offense.
We submit that the kidnapping as alleged in
the information is a necessary means for
the commission of the crime of murder as
described in the same information. The
accused conceived and contrived to commit
the crime of murder at the time they began
to take and carry away the victim from Calle
Antipolo of this City. When the accused
kidnapped the victim from Manila and killed
him in Bocaue, Bulacan, all their acts were
the result of a single criminal impulse — to
kill the victim. In this connection we
respectfully inform this Court that on page 6
of the transcript of the stenographic notes
of the statement of Mr. Ricardo Parulan,
one of the accused in this case, made
before this representation on June 28, 1947
at about 9 o'clock in the morning, the
following question and answer appear:
"Q. When did it come to your mind
to kill Lee? — A. At the time that I
saw Lee and Gloria arrived with a
car at Antipolo." It is clear then
that from the admission of one of
the accused himself the intention
to kill was already in his mind when
they began to kidnap the victim in
this case.
No statement can bring home more clearly the fact
that the purpose of the kidnapping was murder. Not
even ransom had anything to do with it. Without this
admission by the prosecution we should reach the
conclusion that ransom did not enter into the
heinous crime from the fact, revealed by the
complaint, that the killing was perpetrated on the
same date, indeed on the same night, the victim was
whisked away, and also from the manner in which he
was slain.
This dissent does not conflict with the illustrations
given in the resolution of the court, except in some
respects regarding which, in all modesty, we do not
think the illustrations can pass unchallenged.
On the whole, the illustrations are correct instances
of complex crimes contemplated in article 48 of the
Revised Penal Code. Estafa may be and frequently is
committed through falsification of a public
document. When this happens, (when the
falsification is a necessary means, as in often in the
case, to commit estafa and not to conceal the latter
crime), then both offenses may and should be
embodied in one complaint or information. But our
contention is that kidnapping in the instant case was
not a material ingredient nor a necessary means to
carry out the killing but was used as a vehicle to hide
the murder.
The example of abduction with rape is far from
clinching the argument for the prosecution.
Abduction with rape is a complex crime, not because
one is a necessary means to commit the other but
because, in our opinion, rape is a part of abduction.
One of the essential elements of abduction is lewd
designs, and rape is nothing but lewd designs in its
extreme manifestation. Rape is lewd designs
successfully consummated. Rape is embraced in
lewd designs. There is no juristic relation between
kidnapping and murder such as exists between
abduction and rape. Physical injuries and murder are
not synonymous.
When the resolution compares abduction with
kidnapping as a means to commit rape and murder
respectively, it goes further off the mark. There are
few points of similarity between them. Rape cannot
be successfully accomplished in the presence of
other people or with people nearby unless they are
accomplices to the crime. To take the woman to a
secluded place is in many cases imperative to effect
the criminal's objective. We do not have to elucidate
on this truth. But as to murder, some of the most
celebrated assassinations have been committed in a
crowd, yes, in the mid of body guards and police
cordons.
There might be cases (we can not think of any at this
moment) where it might be necessary to kidnap a
victim before taking his life in order the better to
attain the murderer's purpose. In that event, we
don't deny the two crimes might be combined in one
complaint. But we are not speaking of abstract
propositions; we are dealing not with hypothetical
cases but with a concrete case governed by its own
particular, concrete facts.
In conclusion, and at the risk of repetition, we
maintain that murder as distinguished from physical
injuries is not an essential part of any of the various
forms of kidnapping or illegal detention. If no more
than physical injuries were alleged, there would be
only one crime, kidnapping. In that case, the deed
would be a continuous offense triable either in
Manila or Bulacan. We doubt if physical injuries, in
that case would, constitute a separate crime.
Physical injuries are absorbed in kidnapping and are
alleged merely by way of describing the principal
offense. However that may be, when murder is
charged a new independent crime is brought in, and
only the court of the province where the killing was
committed has jurisdiction.
The distinction we make is not an academic one. It
has important implications and lead to serious
consequences unauthorized by law. A prosecution
for a single offense of kidnapping, even if
accompanied with physical injuries, leaves the gate
open to the imposition of a penalty less than death,
621 | P a g e
depending upon the presence or absence of
modifying circumstances. The joining of kidnapping
and murder as a complex crime would, in case of
conviction, allow the court no choice in the meeting
out of punishment. Death would have to be imposed
necessarily.
For another thing, we want to point up a matter
which though not appearing in the information will
inevitably come out. It is the fact that three or four
of the defendants participated only in the killing of
Lee in Bocaue. They were not with their co-
defendants in the alleged kidnapping in Manila. We
confess to a sense of guilt for touching on a question
that is off the record. Our excuse is that it is a truth
which if now hidden is bound to face the court when
the evidence shall have been introduced .When that
time comes, the rule will be reversed; the proofs and
not the allegations will shape the decision. This is a
situation which all concerned, defense and
prosecution, cannot afford to cover up for the sake
of temporary triumph. In the not improbable event
that the thin thread of conspiracy with which some
of the accused are connected with the others in the
kidnapping should snap off, it might result in
dismissals for lack of jurisdiction and other
complications, entailing delays and other
inconveniences which could be avoided by
confronting the realities from the inception of the
prosecution.
EN BANC
G.R. No. L-25623 May 8, 1969
THE PEOPLE OF THE PHILIPPINES, plaintiff,
vs. RICARDO BERNAL, defendant.
Office of the Solicitor General Antonio P. Barredo,
Assistant Solicitor General Isidro C. Borromeo and
Solicitor Hector C. Fule for plaintiff.
Yabut and Eusebio for the defendant.
SANCHEZ, J.:chanrobles virtual law library
The legal issue raised in this automatic review
is whether or not defendant Ricardo Bernal may be
held guilty of the complex crime of murder with
double frustrate murders and sentenced to death
upon the plea of guilty to the amended
information, 1 which reads:
AMENDED INFORMATIONchanrobles virtual law
library
The undersigned accuses RICARDO BERNAL and
EDUARDO BERNAL of the crime of MURDER WITH
DOUBLE FRUSTRATED MURDER, defined and
penalized under the provisions of Art. 248 of the
Revised Penal Code of the Philippines in relation to
Art. 48 of the same Code, committed as follows:
That on or about the 18th day of February,
1965, in the Municipality of Tayum, Province of Abra,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused with
deliberate intent to kill and without justifiable
motive, with treachery and evident premeditation,
by conspiring, confederating and mutually helping
one another in that the accused Eduardo Bernal
handed a firearm namely, a carbine caliber .30, to
accused Ricardo Bernal, while in the dwelling of the
offended parties and taking advantage of nighttime
and the slumber of the intended victims; and
disregarding any respect due to one of the victims
who is an old man and being his father-in-law, did
then and there willfully, unlawfully and feloniously
shoot one, Guillermo Barro, inflicting upon him
multiple gunshot wounds on the different parts of
his body which caused his instantaneous death; and
on the same commission of Murder, the accused
conspiring, confederating and mutually helping one
another, did then and there willfully, unlawfully and
feloniously assault and shot Anastacio Barro,
inflicting upon him gunshot wound, perforating,
medical aspect of the distal end of the humerus; chip
fracture medial condyl, humeral end of the
mumerus; repair of wounds; and Mrs. Dominga
Carnate Barro, inflicting upon her gunshot wound,
penetrating, ankle, left; bullet slug extracted, chip
fracture, medial condyl of distal end of tibia, repair
of wound; thus performing all the acts of execution
which should have produced the crime of Multiple
Murder as a consequence but which nevertheless
did not produce it by reason of causes independent
of their own free will, that is, the timely and able
medical assistance rendered to the offended parties,
Mr. Anastacio Barro and Mrs. Dominga Carnate
Barro.
CONTRARY TO LAW, with the aggravating
circumstance of disregard of the age of the
victim.chanroblesvirtualawlibrarychanrobles virtual
law library
Bangued, Abra, August 10, 1965.
SGD.) LORETO C. ROLDAN
Provincial Fiscal2
The controlling facts are these: On September
21, 1965, accused Ricardo Bernal, assisted by his
counsel de parte, Atty. Demetrio Pre, pleaded guilty
to the foregoing information. The trial court
withheld sentence upon said Ricardo Bernal. And
this because his co-accused Eduardo Bernal, likewise
assisted by counsel, pleaded not guilty. By reason of
which, the hearing of the case as against the last
named accused was
transferred.chanroblesvirtualawlibrarychanrobles
virtual law library
622 | P a g e
When the case against Eduardo Bernal came up
for hearing on January 13, 1966, the Provincial Fiscal
moved for the provisional dismissal of the case
against him upon the ground that the evidence he
had on hand was not sufficient to convict said
accused. Eduardo Bernal and his defense counsel
both gave their consent to the provisional dismissal.
Whereupon, the case against Eduardo Bernal was
provisionally dismissed with one-half of the costs de
officio, and the Provincial Warden was directed to
effect his release unless detained for another
case.chanroblesvirtualawlibrarychanrobles virtual
law library
On the same day, January 13, 1966, the trial
court promulgated its judgment upon the plea of
guilty of Ricardo Bernal. The lower court declared
that the circumstance of disregard of age of the
victim, Guillermo Barro, alleged in the information, is
offset by the accused's plea of guilty. The court
ruled, however, that the "penalty impossible under
Art. 248 of the Revised Penal Code is reclusion
temporal in its maximum period to death which,
pursuant to Article 48 of the same CODE, should be
imposed in its maximum period." Because, as the
court said, the crime committed by Ricardo Bernal is
"murder with double frustrated murder." The trial
court thereupon sentenced him to suffer the
supreme penalty of death, to indemnify the heirs of
the deceased Guillermo Barro in the amount of
P6,000.00 and to pay one half of the
costs.chanroblesvirtualawlibrarychanrobles virtual
law library
Two errors were assigned in the brief de
officio: First, the lower court erred in ruling that the
crime to which the accused Ricardo Bernal pleaded
guilty is a complex crime; and second, the lower
court erred in imposing the death
penalty.chanroblesvirtualawlibrarychanrobles virtual
law library
1. The first error assigned calls for a close
scrutiny of the averments of the amended
information. So examining, we find that the shots
fired by the accused - which caused the death of
Guillermo Barro and inflicted the almost fatal
wounds to Anastacio Barro and like wounds inflicted
on Dominga Carnate Barro - were distinct and
separate acts on the part of the accused. On this, we
are not alone. Both the brief of the accused and the
People's brief confirm this
view.chanroblesvirtualawlibrarychanrobles virtual
law library
Our inquiry then is narrowed down to the
application to the facts of the provisions of Article 48
of the Revised Penal Code, as amended, which reads:
ART. 48. Penalty for complex crimes. - When a
single act constitutes two or more grave or less grave
felonies, or when an offense is a necessary means
for committing the other, the penalty for the most
serious crime shall be imposed, the same to be
applied in its maximum period.
Not long ago, in People vs. Pineda (July 21,
1967), 20 SCRA 748, 751, we held that "Article 48
provides for two classes of crimes where a single
penalty is to be imposed: first, where a single act
constitutes two or more grave or less grave felonies
(delito compuesto); and, second, when an offense is
a necessary means for committing the other (delito
complejo)." 3 chanrobles virtual law library
Easily the grave offenses committed in the
instant case were not caused by one single act.
Neither was the murder committed by defendant
Ricardo Bernal a necessary means for committing
each of the frustrated murders charged in the
information or vice-versa. The conclusion then is that
defendant is guilty of three separate crimes: one for
the murder of Guillermo Barro; another, for the
frustrated murder of Anastacio Barro; and a third,
for the frustrated murder of Dominga Carnate
Barro.chanroblesvirtualawlibrarychanrobles virtual
law library
2. We now come to the problem of the penalty
imposable.chanroblesvirtualawlibrarychanrobles
virtual law library
No evidence was taken by the trial court prior
to the imposition of the penalty. We are to be
guided solely by the averments of the information.
We note that on page 2 of the information (page 39
of the record below), the aggravating circumstances
of nighttime and dwelling were stricken off in ink
and initialed.chanroblesvirtualawlibrarychanrobles
virtual law library
We first take up the crime of murder. We take
stock of the fact that in the body of the information
and in paragraph two thereof, averment is made
that the commission of the offense of murder in
which Guillermo Barro was the victim was attended
by the aggravating circumstance of disregard of said
victim's age. The lower court's decision considered
this circumstance offset by the plea of
guilty.chanroblesvirtualawlibrarychanrobles virtual
law library
But two other circumstances, treachery and
evident premeditation, are alleged in the main body
of the amended information. One of these two must
be the qualifying circumstance for the crime of
murder. And the other is to be considered as the
remaining aggravating circumstance. 4 chanrobles
virtual law library
The result is that there are two aggravating
circumstances to be taken against defendant, one of
which is offset by the plea of guilty. As the case for
the crime of murder committed stands, there exists
623 | P a g e
one qualifying circumstance and one aggravating
circumstance. For lack of necessary votes, however,
we may not impose the death penalty for the crime
of murder.chanroblesvirtualawlibrarychanrobles
virtual law library
In reference to each of the two frustrated
murders, two circumstances are attendant:
treachery and evident premiditation. One qualifies
the crime, the other in aggravation. There is, of
course, the plea of guilty in mitigation. Accordingly,
neither aggravating nor mitigating circumstance may
be considered. The Indeterminate Sentence Law is
applicable. The penalty imposable upon defendant
ranges from four (4) years, two (2) months and one
(1) day of prision correccional to ten (10) years
of prision mayor, as minimum, to a maximum of
from ten (10) years and one (1) day of prision
mayor to twenty (20) years of reclusion
temporal.chanroblesvirtualawlibrarychanrobles
virtual law library
For the reasons given -chanrobles virtual law
library
(1) Defendant Ricardo Bernal is hereby
declared guilty beyond reasonable doubt of the
crime of murder for the death of Guillermo Barro
and sentenced to reclusion perpetua, and to
indemnify the heirs of said Guillermo Barro in the
sum of P12,000.00;chanrobles virtual law library
(2) Said defendant Ricardo Bernal is declared
guilty of two frustrated murders for having shot at
and wounded Anastacio Barro and Dominga Carnate
Barro; and for each of these two crimes of frustrated
murder, said defendant Ricardo Bernal is hereby
sentenced to imprisonment to an indeterminate
period ranging from four (4) years, two (2) months
and one (1) day of prision correccional to ten (10)
years and one (1) day of prision mayor. 5 Costs
against defendant Ricardo Bernal. So ordered.
Reyes J.B.L., Dizon, Makalintal, Zaldivar, Fernando,
Capistrano and Teehankee, JJ., concur.
Barredo, J., took no part.
Concepcion, C.J., and Castro, J., are on leave.
THIRD DIVISION
G.R. No. 210434, December 05, 2016
PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee, v. CHRISTOPHER ELIZALDE Y SUMAGDON
AND ALLAN PLACENTE Y BUSIO, Accused-Appellants.
DECISION
PERALTA, J.:
Before the Court is an appeal from the
Decision1 dated May 31, 2013 of the Court Appeals
(CA) in CA-G.R. CR-HC No. 05100, which affirmed the
Decision2 dated March 4, 2011 of the Regional Trial
Court (RTC), Branch 195, Parañaque City, in Criminal
Case No. 05-0669 for kidnapping for ransom with
homicide.
The antecedent facts are as follows:
On June 3, 2005, an Information3 was filed against
accused-appellants Christopher Elizalde y Sumagdon
and Allan Placente y Busio, together with their co-
accused Arcel Lucban y Lindero, Allan Dela Peña,
Alden Diaz, and alias Erwin, charging them with the
special complex crime of kidnapping for ransom with
homicide as defined and penalized under Article 267
of the Revised Penal Code (RPC) for detaining and
depriving, with the use of firearms and threats, Letty
Tan y Co of her liberty and against her will, for the
purpose of extorting a P20,000,000.00 ransom as a
condition for her release, by shoving her inside a red
Toyota Lite Ace van, then later transferring her to a
jeepney where she was eventually found dead with
gunshot wounds after an armed encounter with
police operatives. The accusatory portion of said
Information reads:
That on or about 6:30 in the evening of June 17,
2003 on Dr. A. Santos St., Sucat Road, Paranaque
City and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring,
confederating, and mutually aiding and abetting one
another, with the use of firearms, employing force,
threat, and intimidation did then and there, wilfully,
unlawfully, and feloniously take, carry away, kidnap
and deprive Letty Tan y Co of her liberty against her
will by shoving her inside a red Toyota Lite Ace van
with plate number ULK 341 at gunpoint and
thereafter transferred her to a Mazda XLT jitney
bearing plate number CRV-299 where said victim
was later found with gunshot wounds which caused
her death engaging in armed encounter with police
operatives in Tarlac City. The abduction of Letty Tan
y Co was for the purpose of extorting ransom from
her family as in fact a demand for ransom was made
as a condition for her release amounting to Twenty
Million Pesos (P20,000,000.00) to the damage and
prejudice of the heirs of said Letty Tan y Co in
whatever amount may be awarded them under the
provisions of the New Civil Code.
Contrary to law.4
Only appellants Elizalde and Placente as well as Dela
Pena were arrested while the rest remain at-large.
Upon arraignment, they all pleaded not guilty to the
offense charged.5 Thereafter, during trial, the
prosecution presented the testimonies of the
victim's husband, Antonio Tan, an eyewitness, Mario
Ramos, and several police officers, namely, PO3
624 | P a g e
Nestor Acebuche, Police Inspector Joselito Nelmida,
Dr. Ronaldo B. Mendez, Kagawad Honorio Ramos
Lundang, and SPO2 Miguel Acosta.6
Antonio testified that at around 6:30 p.m. on June
17, 2003, while he was closing their concrete
products store, Nysan Concrete Products, along Dr.
A. Santos Avenue, Sucat, Parañaque City, Letty went
inside their vehicle that was parked at the right side
of the road facing their store. Suddenly, a red Toyota
Lite Ace van with plate number ULK 341 arrived. He
then saw about seven (7) armed men alight
therefrom, three (3) of which pointed their guns at
him and told him not to move, while two (2) of the
other four (4) dragged Letty into their van.
Thereafter, they sped away. Antonio immediately
called his children and his brother, Nick. In a series of
telephone calls to the store's phone, the kidnappers
told them not to report the matter to the authorities
and to be ready with P20M the following day.
Nevertheless, they called the Police Anti-Crime and
Emergency Response (PACER) unit of the PNP who
met them at the Mandarin Oriental Hotel at around
9:00 p.m. that same day. Through Antonio's cellular
phone, they would bargain with the kidnappers,
telling them that they did not have the amount, to
which the kidnappers replied that they will not see
Letty again without it. At noon of the next day, the
PACER team informed Antonio and his family about a
shootout in Tarlac where three (3) persons were
killed. They proceeded to the Tarlac Provincial Hall
where they saw Letty's lifeless body with a gunshot
below her chin. Antonio identified the other bodies
as those who kidnapped his wife and later learned
that the others, appellants included, were able to
escape.7
Sometime in April 2004, however, Antonio saw a
news report on TV which showed a picture of a
wounded person involved in a shooting incident in
Navotas. He instantly recognized said person as
appellant Elizalde and called a PACER agent to
inform him thereof. Consequently, together with the
PACER team, he went to V. Luna Hospital where
Elizalde was confined and identified him as one of
the men who dragged his wife into the red van.8
A few years after, when appellant Placente was
arrested in 2007, Antonio identified him as one of
the armed persons who poked a gun at him while
the others dragged his wife. This was through the
cartographic sketches that the PACER team drew at
the time of the incident. Antonio also identified
Placente, who was apparently also involved in the
April 2004 kidnapping, when he was shown several
photos of suspects from PACER's gallery. According
to Antonio, he easily recognized appellants for they
were all not wearing masks at the time of the
incident.9
Prosecution witness P/Insp. Nelmilda, who had been
stationed at the Intelligence Unit of the Police Non-
Commissioned Office (PNCO) Tarlac City for sixteen
(16) years, likewise testified that in the morning of
June 18, 2003, he received information that a stolen
red Toyota Light Ace van would be passing their
area. Two (2) police cars were dispatched. Aboard
one (1) of the two (2) cars, Nelmida and his team
tailed the red van after seeing it pass through their
control point. Upon seeing both police cars, the
passengers of the red van alighted and fired at
Nelmida and the other police officers. A shootout
ensued during which a colorless jeepney passed by
and likewise fired at the police. Nelmida recalled
being shot at the buttocks by appellant Elizalde, who
was riding the jeepney. He further recalled that after
the shootout, the jeepney passengers eventually
dumped said vehicle near a bridge along Sitio
Barbon, Tarlac, wherein he saw Letty's lifeless
body.10
P/Insp. Nelmida's testimony was corroborated by
Mario Ramos who narrated that at around noon on
June 18, 2003, while he was walking towards Sitio
Barbon with his friend to go fishing, he saw a
colorless jeepney crisscrossing along the road. After
passing through fifteen (15) meters from where they
were standing, the jeepney stopped. He then heard
three (3) gunshots from inside it. Thereafter, he saw
four (4) armed persons alight therefrom to head
towards the irrigation area. He recalled appellant
Elizalde being the last person to alight the jeepney.
When the door of the vehicle opened, he saw the
dead body of a fat, fair-skinned Chinese woman with
a bullet hole in her head, her clothes ripped apart.
When the police officers arrived at the scene, Ramos
and his friend left.11
The defense countered by presenting the
testimonies of appellants, Technical Sergeant
Ortillano, who prepared appellant Elizalde's clinical
records, and a certain Nilo Avelina.12
Appellant Elizalde denied the charges against him,
claiming that he did not know Antonio, Letty or any
of his co-accused.13 According to him, he went to
Manila for the first time on April 15, 2003 from
Samar, where he was working in a bakery, to look for
his mother. He lived with his cousin in Sta. Cruz,
Manila. On the day of the alleged kidnapping on June
17, 2003, Elizalde testified that he was in
Blumentritt, Manila, selling boiled peanuts in a
pushcart from 7:00a.m. to 3:00p.m. Afterwards, he
went straight home for fear of getting lost being in
Manila for the first time.14
Almost a year thereafter, on April 1, 2004, Elizalde
narrated that another one of his cousins visited him
at home and promised that he would help him find a
job. They then boarded a small red vehicle with
three (3) other persons he did not know. Elizalde
asked his cousin who said persons were and where
625 | P a g e
they were going but his cousin would not tell him.
After an hour, he was surprised to hear gunshots. He
was hit at the right portion of his chest below the
naval and thereafter lost consciousness. When he
woke up, he was already at the V. Luna Hospital and
learned that he was the only one who had survived.
He recounted that after a week thereat, several
police officers came with a man in handcuffs he later
came to know as Nilo Avelina. According to Elizalde,
the police officers forced Avelina to point at him as
one of the perpetrators in a kidnapping case in
Quezon City, even if Avelina did not know who he
was. A week after, a different set of police officers
came and forced him to admit to being involved in
said case, which he succumbed to even if he had no
knowledge thereon for fear of what said officers
might do to him. The Quezon City RTC eventually
convicted Elizalde and Avelina for kidnapping.
Meanwhile, several police officers came to inform
him that he was going to be brought to Tarlac to face
Frustrated Murder and Carnapping charges against
him. He was convicted by the Tarlac RTC of
Frustrated Murder, but was subsequently acquitted
on appeal. Thereafter, he was again informed of
another case, this time, on the instant Kidnapping
for Ransom with Homicide accusation.15
During trial, the defense also presented Avelina to
corroborate appellant Elizalde's testimony as to the
latter's claim that the former pointed to him as co-
kidnapper in the Q.C. case even if Avelina did not
know who he was and merely because he was told
that he would be freed if he did as he was told.16
In addition, appellant Placente next testified and also
denied knowing any of his co-accused as well as the
accusations against him. According to Placente, he
came to Manila in 1982 from Samar. On the alleged
day and time of the kidnapping, he was merely
working, driving a tricycle owned by his neighbor on
his way to the market in Pasig City. His job normally
ends at 8:00 p.m., and on that day, he claimed that
he did not go anywhere other than his daily route.
Thereafter, he parked the tricycle in front of his
neighbor's house and returned the key, as he
normally did. In August 2003, he began driving a taxi.
In 2005, however, he went back to Samar with his
pregnant wife and his son so that his wife can give
birth there. He worked as a laborer and a farmer
until he was arrested on May 9, 2007.17
On March 4, 2011, the RTC found appellants guilty
beyond reasonable doubt of the special complex
crime of kidnapping for ransom with homicide and
rendered its Decision, the dispositive portion of
which reads:
WHEREFORE, this Court finds both accused
CHRISTOPHER ELIZALDE Y SUMAGDON AND ALLAN
BUSIO PLACENTE, GUILTY BEYOND REASONABLE
DOUBT of the special complex crime of KIDNAPPING
FOR RANSOM WITH HOMICIDE and hereby
sentences them to suffer the penalty of Reclusion
Perpetua without eligibility for parole.
Accused Elizalde and Placente are likewise ordered
to pay the heirs of Letty Tan y Co the following:
P75,000.00 as civil indemnity; P500,000.00 as moral
damages; P25,000.00 as temperate damages; and
P100,000.00 as exemplary damages.
As regards accused ALLAN DELA PEÑA, for failure of
the prosecution to prove his guilt beyond reasonable
doubt, he is hereby ordered ACQUITTED. The City Jail
Warden of Parañaque City is hereby ordered to
release said accused from his custody unless he is
being held for some other legal cause/s.
With respect to accused Arcel Lucban y Lindero @
Nonoy, Alden Diaz and one Alias Erwin, the instant
case is hereby ordered ARCHIVED. Let Alias Warrants
of Arrest be issued against them.
SO ORDERED.18
The RTC gave credence not only to the fact that the
prosecution witnesses testified in a positive,
categorical, unequivocal and straightforward
manner, but also to the inherent weakness of
appellants' defenses of denial and alibi. According to
the trial court, the prosecution duly established all
the following elements of the crime of kidnapping
for ransom: (a) intent on the part of the accused to
deprive the victim of his liberty; (b) actual
deprivation of the victim of his liberty; and (c) motive
of the accused, which is extorting ransom for the
release of the victim.19 Antonio, in positively
identifying the appellants, convincingly testified on
the events that transpired on the day of the alleged
incident. Said testimony was even strengthened by
the testimonies of the other prosecution witnesses,
especially in light of the fact that there exists no
showing that said witnesses were impelled with
improper and ill motive.20
Aside from this, the trial court further noted that the
appellants' defense of denial was not even
corroborated by any credible witness. Elizalde's
testimony that he was just selling peanuts, as well as
Placente's testimony that he was merely driving his
neighbor's tricycle, are self-serving statements
unsupported by any substantiating evidence.
Elizalde's cousin or Placente's neighbor could have
been presented to corroborate their claims. The
defense, however, failed to do so. Moreover,
Avelina's testimony that he was forced by policemen
to point at appellant Elizalde as one of his cohorts in
the kidnapping case in Quezon City, even if true, has
no bearing in this case simply because it was an
entirely different case.21 Thus, in view of the clarity
of the prosecution's version of events, the trial court
found the presence of conspiracy shown by
Placente's act of poking a gun at Antonio, while
626 | P a g e
Elizalde and their cohorts dragged Letty into the
van.22
On appeal, the CA affirmed the RTC Decision, but
reduced the moral damages to P100,000.00. The CA
ruled that when the decision hinges on the
credibility of witnesses and their respective
testimonies, the trial court's observations and
conclusions deserve great weight and respect. On
the one hand, the prosecution witnesses unerringly
established the crime in a clear and candid manner,
positively identifying appellants as Letty's abductors.
The argument that Antonio's testimony contains
inconsistencies is inconsequential for they merely
refer to minor details which actually serves to
strengthen rather than weaken his credibility as they
erase suspicion of being rehearsed.23 On the other
hand, the appellate court ruled that appellants'
defense cannot prosper having failed to prove that
they were at some other place at the time when the
crime was committed and that it was physically
impossible for them to be at the locus criminis at the
time.24 Appellants merely alleged their bare alibis of
selling peanuts and driving a tricycle without even
attempting to present any credible witness that
could corroborate the same.25
In this regard, the CA agreed with the RTC as to the
existence of conspiracy among appellants and their
cohorts. Their community of criminal design could be
inferred from their arrival at Antonio's store already
armed with weapons, Placente and companions
pointing their guns at Antonio, while Elizalde and
companions dragged Letty into their van. Moreover,
they demanded P20M for Letty's freedom which
never materialized as she was killed during captivity
by the kidnappers before evading arrest. Thus,
having been proven that they each took part in the
accomplishment of their common criminal design,
appellants are equally liable for the complex crime of
kidnapping for ransom with homicide.26
Consequently, appellant filed a Notice of Appeal27 on
June 25, 2013. Thereafter, in a Resolution28 dated
February 26, 2014, the Court notified the parties that
they may file their respective supplemental briefs, if
they so desire, within thirty (30) days from notice.
Both parties, however, manifested that they are
adopting their respective briefs filed before the CA
as their supplemental briefs, their issues and
arguments having been thoroughly discussed
therein. Thus, the case was deemed submitted for
decision.
In their Brief, appellants essentially assigned the
following error:
I.
THE COURT OF APPEALS ERRED IN FINDING
ACCUSED-APPELLANTS GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME CHARGED BY
GIVING FULL WEIGHT AND CREDENCE TO THE
PROSECUTION'S EVIDENCE.29
Appellants argue that the positive identification
made by the prosecution witnesses should not be
given any weight and credence. This is because
Antonio only recognized appellant Elizalde on
television in April 2004, or ten (10) months after the
incident. In fact, a day after the incident, no
cartographic sketch was made of Elizalde. Thus, if
Antonio could not describe Elizalde's physical
appearance a day after the incident, it would be
highly incredible that he would be able to identify his
wife's abductors ten (10) months after. This lapse of
time would definitely affect his memory. In addition,
Antonio's identification of Elizalde at the hospital
was marked by suggestiveness for he was already
informed beforehand that Elizalde was involved in
the instant kidnapping. Thus, Antonio was inclined to
point to just anybody. Appellants also raise
inconsistencies in Antonio's testimonies as to the
time his family left Mandarin Hotel, the number of
PACER people who met them there, the exact
number of his wife's abductors, and such other
factual circumstances that cast doubt on his
credibility. Thus, while it is true that alibi is a weak
defense, the prosecution cannot profit therefrom,
but on the strength of its own evidence. Finally,
appellants assert that there is no showing that they
were informed of their constitutional rights at the
time of their arrest. Consequently, the entire
proceedings are a nullity.
We affirm appellants' conviction, with modification
as to the award of damages.
Time and again, the Court has held that the question
of credibility of witnesses is primarily for the trial
court to determine.30 Its assessment of the
credibility of a witness is conclusive, binding, and
entitled to great weight, unless shown to be tainted
with arbitrariness or unless, through oversight, some
fact or circumstance of weight and influence has not
been considered.31 Absent any showing that the trial
judge acted arbitrarily, or overlooked,
misunderstood, or misapplied some facts or
circumstances of weight which would affect the
result of the case, his assessment of the credibility of
witnesses deserves high respect by the appellate
court.32
After a careful review of the records, the Court finds
no cogent reason to overturn the trial court's ruling,
as affirmed by the appellate court, finding the
prosecution witnesses' testimonies credible.
According to the lower courts, the prosecution
witnesses testified in a categorical and
straightforward manner, positively identifying
appellants as part of the group who kidnapped the
victim. Particularly, Antonio unmistakably and
convincingly narrated, in detail, the series of events
that transpired on the day of the incident from the
627 | P a g e
moment he saw appellants alight from their red van, QUESTIONS FROM THE COURT:
who thereafter split up into two (2) groups, one,
pointing guns at him, and the other, dragging his
wife to their van, up until the time when they
Q: What is the relation of these pictures to those
successfully boarded said vehicle before speeding
persons who kidnapped your wife (EXHIBITS
away. In fact, he easily recognized appellants from
"D", "E", and "F")?
the photographs in the PACER gallery for all
throughout the incident, their faces remained visible, A: The people in these pictures, your Honor,
uncovered by any sort of mask. We quote the were the ones who pointed at me.
pertinent portions of his testimony, thus:
Q: Did you recognize any of the persons or the Q: Pointed what?
pictures in the photo gallery of PACER?
A: They were the ones who poked a gun on me.
A: Yes, sir.
Q: Those three persons?
Q: Do you know the names of these persons
A: Yes, your Honor.
whom you recognized there in the photo
gallery of PACER?
A: The face I can recall but the name I can no xxxx
longer remember, sir.
Q: Mr. Witness, after you were shown scanned
Q: And would you be able to tell if it's the same photographs of the other suspects and these
person just by looking on the cartographic are EXHIBITS "D" for the picture of Arcel
sketch? Lucban; EXHIBIT "E" for the picture of Allan
Dela Pena and EXHIBIT "E" for the picture of
A: Yes, sir.
Allan Placente, you mentioned that they were
the ones who came up to you and pointed
their guns at you. Now, Mr. Witness, how
Q: I'm showing you the prosecution's EXHIBITS about accused Christopher Elizalde, what did
"D". "E" and "F", Mr. Witness, can you tell us if he do during the abduction of your wife?
the persons depicted therein are the same
ones you are referring to? A: He was one of the two persons who pulled
out my wife from the vehicle, sir.
A: Yes sir, these are the pictures of the persons I
identified when I was brought to the photo
gallery of PACER.
COURT:

Q: From which vehicle?
A: Our car, your Honor.33
In addition, such testimony was duly corroborated
and further strengthened by other prosecution
witnesses, such as P/Insp. Nelmida, who was
personally engaged in the shootout and whose
buttocks were even shot by appellant Elizalde, as
well as Mario Ramos, who personally saw appellants
alight from the jeepney where he eventually saw the
lifeless body of the victim. The Court cannot,
therefore, turn a blind eye to the probative value of
the testimonies of the prosecution witnesses,
consistent with each other, given in the absence of
any showing of ill motive.
This is especially so when, as noted by the trial court,
the appellants' defenses of alibi and denial were not
even corroborated by any credible witness. Well
settled is the rule 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. It is only
axiomatic that positive testimony prevails over
negative testimony.34 In the instant case, it seems as
if appellants urge Us to accept - hook, line, and
sinker - their self-serving statements that Elizalde
was merely selling peanuts while Placente was
simply driving his neighbor's tricycle without even
attempting to corroborate the same with any
supporting evidence. As aptly pointed out by the
RTC, Elizalde's cousin or Placente's neighbor could
have been presented to substantiate their stories.
Regrettably, appellants failed to convince.
Neither is the Court persuaded by appellants'
assertions in their appeal in view of the CA's
refutations thereof. Contrary to appellants'
628 | P a g e
argument that Antonio's positive identification of A: I immediately called up PACER, sir.
Elizalde should not be given credence due to the fact
that Antonio only recognized Elizalde on television in
April 2004 and that the day after the incident, no
Q: And what did the PACER do, if any?
cartographic sketch was made, the CA held that
Antonio actually identified Elizalde as his wife's
abductor twice prior to confirming his identity in the
hospital.35 The day after the incident, Antonio COURT: No. Why did you call the PACER?
recognized Elizalde from four (4) cartographic
sketches based on the descriptions given by Antonio.
Thus, appellants' claim that there was no A: I told the agent of the PACER that the person I
cartographic sketch of Elizalde made after the crime saw on TV was one of the persons who
has no basis. Thereafter, Antonio again recognized kidnapped my wife, your honor.
Elizalde on television prompting him to immediately
call the PACER agents. Verily, the Court cannot give
credence to appellants' assertion that Elizalde's Q: Was that person whom you saw on TV one of
identification at the hospital was marked by those who were shot during that encounter in
suggestiveness for as clearly narrated, it was Antonio Navotas?
who first recognized Elizalde on television and who
instantly contacted the PACER agents, not the other A: Yes, your honor.
way around. Antonio categorically testified, viz.:
COURT: Proceed.
Q: Mr. Witness, after this incident on June 17,
2003, what, if any, incident took place which
is related to the abduction of your wife?
PROS. MARAYA:
A: While I was watching TV sir in April 2004, I
saw a news item regarding a shooting incident
I saw in Navotas. Q: What, if any, did PACER do after you informed
them that you recognized one of the persons
who were shot in that encounter in Navotas?
Q: And what about that footage you saw?
A: We decided to go personally to the person I
A: When a picture of a wounded person from the identified on TV to personally identify, sir.
shooting incident in Navotas was flashed on
the screen, I recall that that person was one of
the persons who kidnapped my wife, sir. QUESTIONS FROM THE COURT:
Q: And what, if any, did you do about it, Mr. Q: So you went to Navotas?
Witness?
 A: No, your honor.
Q: Where did you go after calling the PACER?
A: We went to the hospital, your Honor.
Q: What hospital?
A: V. Mapa hospital, your Honor.
Q: Did you see the person whom you said you
have identified as one of the kidnappers of
your wife [in] that hospital?
A: Yes, your Honor. 36
With respect to the contention that Antonio's
testimony contains inconsistencies, the Court agrees
with the appellate court when it ruled that the so-
called inconsistencies are inconsequential for they
merely refer to minor details which actually serve to
strengthen rather than weaken his credibility as they
erase suspicion of being rehearsed. This is so
because what really prevails is the consistency of the
testimonies of the witnesses in relating the principal
occurrence and positive identification of the
appellants.37 As for the alleged nullity of the
proceedings due to the absence of any showing that
the police officers informed appellants of their
constitutional rights, the Court sustains the CA's
ruling that even assuming said failure to inform, the
same is immaterial considering that no admission or
confession was elicited from them.38 As previously
discussed, their guilt was established by the strength
of the prosecution witnesses' testimonies.
In view of the foregoing, the Court sustains the
findings of the trial court, as positively affirmed by
629 | P a g e
the appellate court, insofar as the existence of
conspiracy is concerned. Conspiracy exists when two
or more persons come to an agreement concerning
the commission of a felony and decide to commit
it.39 When conspiracy is established, the
responsibility of the conspirators is collective, not
individual, rendering all of them equally liable
regardless of the extent of their respective
participations.40 Accordingly, direct proof is not
essential to establish conspiracy, as it can be
presumed from and proven by the acts of the
accused pointing to a joint purpose, design,
concerted action, and community of interests.41 As
aptly held by the CA, the community of criminal
design by the appellants and their cohorts is evident
as they each played a role in the commission of the
crime. While appellant Placente and companions
pointed their guns at Antonio, Elizalde and
companions simultaneously dragged Letty into their
van. Thereafter, they demanded ransom money as a
condition for her release, which, however, never
materialized due to a shootout that sadly led to her
death. Consequently, therefore, appellants are
equally liable for the crime charged herein.
In this respect, Article 267 of the Revised Penal Code
as amended by Republic Act (RA) No. 7659, provides:
Kidnapping and serious illegal detention. - Any
private individual who shall kidnap or detain
another, or in any other manner deprive him of his
liberty, shall suffer the penalty of reclusion
perpetua to death:
1. If the kidnapping or detention shall have lasted
more than three days.
2. If it shall have been committed simulating public
authority.
3. If any serious physical injuries shall have been
inflicted upon the person kidnapped or detained; or
if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a
minor, except when the accused is any of the
parents, female or a public officer;
The penalty shall be death where the kidnapping or
detention was committed for the purpose of
extorting ransom from the victim or any other
person, even if none of the circumstances above-
mentioned were present in the commission of the
offense.
When the victim is killed or dies as a consequence of
the detention or is raped, or is subjected to torture
or dehumanizing acts, the maximum penalty shall be
imposed.42
Accordingly, in People v. Mercado,43 the Court
explained that when the person kidnapped is killed
in the course of the detention, the same shall be
punished as a special complex crime, to wit:
In People v. Ramos, the accused was found guilty of
two separate heinous crimes of kidnapping for
ransom and murder committed on July 13, 1994 and
sentenced to death. On appeal, this Court modified
the ruling and found the accused guilty of the
"special complex crime" of kidnapping for ransom
with murder under the last paragraph of Article 267,
as amended by Republic Act No. 7659. This Court
said:
x x x This amendment introduced in our criminal
statutes the concept of 'special complex crime' of
kidnapping with murder or homicide. It effectively
eliminated the distinction drawn by the courts
between those cases where the killing of the
kidnapped victim was purposely sought by the
accused, and those where the killing of the victim
was not deliberately resorted to but was merely an
afterthought. Consequently, the rule now is: Where
the person kidnapped is killed in the course of the
detention, regardless of whether the killing was
purposely sought or was merely an afterthought, the
kidnapping and murder or homicide can no longer be
complexed under Art. 48, nor be treated as separate
crimes, but shall be punished as a special complex
crime under the last paragraph of Art. 267, as
amended by RA No. 7659.44
On this score, the Court finds no reason to disturb
the rulings of the lower courts for they aptly
convicted appellants with the special complex crime
of kidnapping for ransom with homicide. As clearly
proved by the prosecution, appellants succeeded in
executing their common criminal design in abducting
the victim herein, demanding for the payment of
money for her release, and thereafter, killing her as a
result of the encounter with the police officers.
Accordingly, the Court affirms the lower court's
imposition of the penalty of reclusion perpetua,
without eligibility for parole, which should have been
death, had it not been for the passage of Republic
Act No. 9346, entitled "An Act Prohibiting the
Imposition of the Death Penalty in the Philippines"
prohibiting the imposition thereof.
There is, however, a need to modify the amounts of
damages awarded. Verily, pursuant to prevailing
jurisprudence,45 the amount of damages are
increased to P100,000.00 as civil indemnity, and
P50,000.00 as temperate damages, and that an
interest be imposed on all damages awarded at the
rate of six percent (6%) per annum from the date of
finality of this Decision until fully paid.46
WHEREFORE, premises considered, the
Court AFFIRMS the Decision dated May 31, 2013 of
the Court of Appeals in CA-G.R. CR-HC No. 05100
630 | P a g e
finding appellants Christopher Elizalde y Sumagdon
and Allan Placente y Busio guilty beyond reasonable
doubt of the crime of kidnapping for ransom with
homicide, as defined and penalized under Article 267
of the Revised Penal Code, sentencing them to suffer
the penalty of reclusion perpetua, without eligibility
for parole, in accordance with the mandate under
Republic Act No. 9346, prohibiting the imposition of
death penalty, and to pay Letty Tan y Co's heirs the
amounts of P100,000.00 as moral damages and
P100,000.00 as exemplary damages,
with MODIFICATIONS in view of prevailing
jurisprudence,47 that the amount of damages be
increased to P100,000.00 as civil indemnity and
P50,000.00 as temperate damages, and that an
interest be imposed on all damages awarded at the
legal rate of 6% per annum from the date of finality
of this Decision until fully paid.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. NO. 155409 June 8, 2007
VIRGILIO MAQUILAN, petitioner,
vs.
DITA MAQUILAN, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review
on Certiorari under Rule 45 of the Rules of Court
assailing the Decision1 dated August 30, 2002
promulgated by the Court of Appeals (CA) in CA-G.R.
SP No. 69689, which affirmed the Judgment on
Compromise Agreement dated January 2, 2002 of
the Regional Trial Court (RTC), Branch 3,
Nabunturan, Compostela Valley, and the RTC Orders
dated January 21, 2002 and February 7, 2002
(ORDERS) in Civil Case No. 656.
The facts of the case, as found by the CA, are as
follows:
Herein petitioner and herein private respondent are
spouses who once had a blissful married life and out
of which were blessed to have a son. However, their
once sugar coated romance turned bitter when
petitioner discovered that private respondent was
having illicit sexual affair with her paramour, which
thus, prompted the petitioner to file a case of
adultery against private respondent and the latter’s
paramour. Consequently, both the private
respondent and her paramour were convicted of the
crime charged and were sentenced to suffer an
imprisonment ranging from one (1) year, eight (8)
months, minimum of prision correccional as
minimum penalty, to three (3) years, six (6) months
and twenty one (21) days, medium of prision
correccional as maximum penalty.
Thereafter, private respondent, through counsel,
filed a Petition for Declaration of Nullity of Marriage,
Dissolution and Liquidation of Conjugal Partnership
of Gains and Damages on June 15, 2001 with the
Regional Trial Court, Branch 3 of Nabunturan,
Compostela Valley, docketed as Civil Case No. 656,
imputing psychological incapacity on the part of the
petitioner.
During the pre-trial of the said case, petitioner and
private respondent entered into a COMPROMISE
AGREEMENT in the following terms, to wit:
1. In partial settlement of the conjugal partnership of
gains, the parties agree to the following:
a. ₱500,000.00 of the money deposited in the bank
jointly in the name of the spouses shall be
withdrawn and deposited in favor and in trust of
their common child, Neil Maquilan, with the deposit
in the joint account of the parties.
The balance of such deposit, which presently stands
at ₱1,318,043.36, shall be withdrawn and divided
equally by the parties;
b. The store that is now being occupied by the
plaintiff shall be allotted to her while the bodega
shall be for the defendant. The defendant shall be
paid the sum of ₱50,000.00 as his share in the stocks
of the store in full settlement thereof.
The plaintiff shall be allowed to occupy the bodega
until the time the owner of the lot on which it stands
shall construct a building thereon;
c. The motorcycles shall be divided between them
such that the Kawasaki shall be owned by the
plaintiff while the Honda Dream shall be for the
defendant;
d. The passenger jeep shall be for the plaintiff who
shall pay the defendant the sum of ₱75,000.00 as his
share thereon and in full settlement thereof;
e. The house and lot shall be to the common child.
2. This settlement is only partial, i.e., without
prejudice to the litigation of other conjugal
properties that have not been mentioned;
xxxx
631 | P a g e
The said Compromise Agreement was given judicial
imprimatur by the respondent judge in the
assailed Judgment On Compromise Agreement,
which was erroneously dated January 2, 2002.2
However, petitioner filed an Omnibus Motion dated
January 15, 2002, praying for the repudiation of the
Compromise Agreement and the reconsideration of
the Judgment on Compromise Agreement by the
respondent judge on the grounds that his previous
lawyer did not intelligently and judiciously apprise
him of the consequential effects of the Compromise
Agreement.
The respondent Judge in the assailed Order dated
January 21, 2002, denied the aforementioned
Omnibus Motion.
Displeased, petitioner filed a Motion for
Reconsideration of the aforesaid Order, but the
same was denied in the assailed Order dated
February 7, 2002.3 (Emphasis supplied)
The petitioner filed a Petition for Certiorari and
Prohibition with the CA under Rule 65 of the Rules of
Court claiming that the RTC committed grave error
and abuse of discretion amounting to lack or excess
of jurisdiction (1) in upholding the validity of the
Compromise Agreement dated January 11, 2002; (2)
when it held in its Order dated February 7, 2002 that
the Compromise Agreement was made within the
cooling-off period; (3) when it denied petitioner’s
Motion to Repudiate Compromise Agreement and to
Reconsider Its Judgment on Compromise
Agreement; and (4) when it conducted the
proceedings without the appearance and
participation of the Office of the Solicitor General
and/or the Provincial Prosecutor.4
On August 30, 2002, the CA dismissed the Petition
for lack of merit. The CA held that the conviction of
the respondent of the crime of adultery does not
ipso facto disqualify her from sharing in the conjugal
property, especially considering that she had only
been sentenced with the penalty of prision
correccional, a penalty that does not carry the
accessory penalty of civil interdiction which deprives
the person of the rights to manage her property and
to dispose of such property inter vivos; that Articles
43 and 63 of the Family Code, which pertain to the
effects of a nullified marriage and the effects of legal
separation, respectively, do not apply, considering,
too, that the Petition for the Declaration of the
Nullity of Marriage filed by the respondent invoking
Article 36 of the Family Code has yet to be decided,
and, hence, it is premature to apply Articles 43 and
63 of the Family Code; that, although adultery is a
ground for legal separation, nonetheless, Article 63
finds no application in the instant case since no
petition to that effect was filed by the petitioner
against the respondent; that the spouses voluntarily
separated their property through their Compromise
Agreement with court approval under Article 134 of
the Family Code; that the Compromise Agreement,
which embodies the voluntary separation of
property, is valid and binding in all respects because
it had been voluntarily entered into by the parties;
that, furthermore, even if it were true that the
petitioner was not duly informed by his previous
counsel about the legal effects of the Compromise
Agreement, this point is untenable since the mistake
or negligence of the lawyer binds his client, unless
such mistake or negligence amounts to gross
negligence or deprivation of due process on the part
of his client; that these exceptions are not present in
the instant case; that the Compromise Agreement
was plainly worded and written in simple language,
which a person of ordinary intelligence can discern
the consequences thereof, hence, petitioner’s claim
that his consent was vitiated is highly incredible; that
the Compromise Agreement was made during the
existence of the marriage of the parties since it was
submitted during the pendency of the petition for
declaration of nullity of marriage; that the
application of Article 2035 of the Civil Code is
misplaced; that the cooling-off period under Article
58 of the Family Code has no bearing on the validity
of the Compromise Agreement; that the
Compromise Agreement is not contrary to law,
morals, good customs, public order, and public
policy; that this agreement may not be later
disowned simply because of a change of mind; that
the presence of the Solicitor General or his deputy is
not indispensable to the execution and validity of the
Compromise Agreement, since the purpose of his
presence is to curtail any collusion between the
parties and to see to it that evidence is not
fabricated, and, with this in mind, nothing in the
Compromise Agreement touches on the very merits
of the case of declaration of nullity of marriage for
the court to be wary of any possible collusion; and,
finally, that the Compromise Agreement is merely an
agreement between the parties to separate their
conjugal properties partially without prejudice to the
outcome of the pending case of declaration of nullity
of marriage.
Hence, herein Petition, purely on questions of law,
raising the following issues:
I.
WHETHER OF NOT A SPOUSE CONVICTED OF EITHER
CONCUBINAGE OR ADULTERY, CAN STILL SHARE IN
THE CONJUGAL PARTNERSHIP;
II
WHETHER OR NOT A COMPROMISE AGREEMENT
ENTERED INTO BY SPOUSES, ONE OF WHOM WAS
CONVICTED OF ADULTERY, GIVING THE CONVICTED
SPOUSE A SHARE IN THE CONJUGAL PROPERTY,
VALID AND LEGAL;
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III
WHETHER OR NOT A JUDGMENT FOR ANNULMENT
AND LEGAL SEPARATION IS A PRE-REQUISITE BEFORE
A SPOUSE CONVICTED OF EITHER CONCUBINAGE OR
ADULTERY, BE DISQUALIFIED AND PROHIBITED
FROM SHARING IN THE CONJUGAL PROPERTY;
IV
WHETHER OR NOT THE DISQUALIFICATION OF A
CONVICTED SPOUSE OF ADULTERY FROM SHARING
IN A CONJUGAL PROPERTY, CONSTITUTES CIVIL
INTERDICTION.5
The petitioner argues that the Compromise
Agreement should not have been given judicial
imprimatur since it is against law and public policy;
that the proceedings where it was approved is null
and void, there being no appearance and
participation of the Solicitor General or the
Provincial Prosecutor; that it was timely repudiated;
and that the respondent, having been convicted of
adultery, is therefore disqualified from sharing in the
conjugal property.
The Petition must fail.
The essential question is whether the partial
voluntary separation of property made by the
spouses pending the petition for declaration of
nullity of marriage is valid.
First. The petitioner contends that the Compromise
Agreement is void because it circumvents the law
that prohibits the guilty spouse, who was convicted
of either adultery or concubinage, from sharing in
the conjugal property. Since the respondent was
convicted of adultery, the petitioner argues that her
share should be forfeited in favor of the common
child under Articles 43(2)6 and 637 of the Family
Code.
To the petitioner, it is the clear intention of the law
to disqualify the spouse convicted of adultery from
sharing in the conjugal property; and because the
Compromise Agreement is void, it never became
final and executory.
Moreover, the petitioner cites Article 20358 of the
Civil Code and argues that since adultery is a ground
for legal separation, the Compromise Agreement is
therefore void.
These arguments are specious. The foregoing
provisions of the law are inapplicable to the instant
case.
Article 43 of the Family Code refers to Article 42, to
wit:
Article 42. The subsequent marriage referred to in
the preceding Article9 shall be automatically
terminated by the recording of the affidavit of
reappearance of the absent spouse, unless there is a
judgment annulling the previous marriage or
declaring it void ab initio.
A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registry of
the residence of the parties to the subsequent
marriage at the instance of any interested person,
with due notice to the spouses of the subsequent
marriage and without prejudice to the fact of
reappearance being judicially determined in case
such fact is disputed.
where a subsequent marriage is terminated because
of the reappearance of an absent spouse; while
Article 63 applies to the effects of a decree of legal
separation. The present case involves a proceeding
where the nullity of the marriage is sought to be
declared under the ground of psychological capacity.
Article 2035 of the Civil Code is also clearly
inapplicable. The Compromise Agreement partially
divided the properties of the conjugal partnership of
gains between the parties and does not deal with
the validity of a marriage or legal separation. It is not
among those that are expressly prohibited by Article
2035.
Moreover, the contention that the Compromise
Agreement is tantamount to a circumvention of the
law prohibiting the guilty spouse from sharing in the
conjugal properties is misplaced. Existing law and
jurisprudence do not impose such disqualification.
Under Article 143 of the Family Code, separation of
property may be effected voluntarily or for sufficient
cause, subject to judicial approval. The questioned
Compromise Agreement which was judicially
approved is exactly such a separation of property
allowed under the law. This conclusion holds true
even if the proceedings for the declaration of nullity
of marriage was still pending. However, the Court
must stress that this voluntary separation of
property is subject to the rights of all creditors of the
conjugal partnership of gains and other persons with
pecuniary interest pursuant to Article 136 of the
Family Code.
Second. Petitioner’s claim that since the proceedings
before the RTC were void in the absence of the
participation of the provincial prosecutor or solicitor,
the voluntary separation made during the pendency
of the case is also void. The proceedings pertaining
to the Compromise Agreement involved the conjugal
properties of the spouses. The settlement had no
relation to the questions surrounding the validity of
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their marriage. Nor did the settlement amount to a
collusion between the parties.
Article 48 of the Family Code states:
Art. 48. In all cases of annulment or declaration of
absolute nullity of marriage, the Court shall order
the prosecuting attorney or fiscal assigned to it to
appear on behalf of the State to take steps to
prevent collusion between the parties and to take
care that the evidence is not fabricated or
suppressed. (Emphasis supplied)
Section 3(e) of Rule 9 of the 1997 Rules of Court
provides:
SEC. 3. Default; declaration of.- x x x x
xxxx
(e) Where no defaults allowed.— If the defending
party in action for annulment or declaration of
nullity of marriage or for legal separation fails to
answer, the court shall order the prosecuting
attorney to investigate whether or not a collusion
between the parties exists if there is no collusion, to
intervene for the State in order to see to it that the
evidence submitted is not fabricated. (Emphasis
supplied
Truly, the purpose of the active participation of the
Public Prosecutor or the Solicitor General is to
ensure that the interest of the State is represented
and protected in proceedings for annulment and
declaration of nullity of marriages by preventing
collusion between the parties, or the fabrication or
suppression of evidence.10 While the appearances of
the Solicitor General and/or the Public Prosecutor
are mandatory, the failure of the RTC to require their
appearance does not per se nullify the Compromise
Agreement. This Court fully concurs with the findings
of the CA:
x x x. It bears emphasizing that the intendment of
the law in requiring the presence of the Solicitor
General and/or State prosecutor in all proceedings of
legal separation and annulment or declaration of
nullity of marriage is to curtail or prevent any
possibility of collusion between the parties and to
see to it that their evidence respecting the case is
not fabricated. In the instant case, there is no
exigency for the presence of the Solicitor General
and/or the State prosecutor because as already
stated, nothing in the subject compromise
agreement touched into the very merits of the case
of declaration of nullity of marriage for the court to
be wary of any possible collusion between the
parties. At the risk of being repetiti[ve], the
compromise agreement pertains merely to an
agreement between the petitioner and the private
respondent to separate their conjugal properties
partially without prejudice to the outcome of the
pending case of declaration of nullity of marriage.11
Third. The conviction of adultery does not carry the
accessory of civil interdiction. Article 34 of the
Revised Penal Code provides for the consequences
of civil interdiction:
Art. 34. Civil Interdiction. – Civil interdiction shall
deprive the offender during the time of his sentence
of the rights of parental authority, or guardianship,
either as to the person or property of any ward, of
marital authority, of the right to manage his property
and of the right to dispose of such property by any
act or any conveyance inter vivos.
Under Article 333 of the same Code, the penalty for
adultery is prision correccional in its medium and
maximum periods. Article 333 should be read with
Article 43 of the same Code. The latter provides:
Art. 43. Prision correccional – Its accessory penalties.
– The penalty of prision correccional shall carry with
it that of suspension from public office, from the
right to follow a profession or calling, and that of
perpetual special disqualification from the right of
suffrage, if the duration of said imprisonment shall
exceed eighteen months. The offender shall suffer
the disqualification provided in this article although
pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the
pardon.
It is clear, therefore, and as correctly held by the CA,
that the crime of adultery does not carry the
accessory penalty of civil interdiction which deprives
the person of the rights to manage her property and
to dispose of such property inter vivos.
of counsel deprives the client of due process of law,
or when its application "results in the outright
deprivation of one's property through a
technicality." x x x x13
None of these exceptions has been sufficiently
shown in the present case.
WHEREFORE, the Petition is DENIED. The Decision of
the Court of Appeals is AFFIRMED with
MODIFICATION that the subject Compromise
Agreement is VALID without prejudice to the rights
of all creditors and other persons with pecuniary
interest in the properties of the conjugal partnership
of gains.
SO ORDERED.

Fourth. Neither could it be said that the petitioner MA. ALICIA AUSTRIA-MARTINEZ
was not intelligently and judiciously informed of the Associate Justice
consequential effects of the compromise agreement,
and that, on this basis, he may repudiate the
Compromise Agreement. The argument of the
petitioner that he was not duly informed by his
previous counsel about the legal effects of the
voluntary settlement is not convincing. Mistake or
vitiation of consent, as now claimed by the
petitioner as his basis for repudiating the settlement,
could hardly be said to be evident. In Salonga v.
Court of Appeals,12 this Court held:

[I]t is well-settled that the negligence of counsel

binds the client. This is based on the rule that any act
performed by a lawyer within the scope of his
general or implied authority is regarded as an act of
his client. Consequently, the mistake or negligence
of petitioners' counsel may result in the rendition of
an unfavorable judgment against them.

Exceptions to the foregoing have been recognized by

the Court in cases where reckless or gross negligence
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