From June to August, 1991, petitioner, a Marikina-based manufacturer and seller of shoes, purchased materials from respondent Agustin

Alarilla, a seller of leather products from Meycauayan, Bulacan, for which the former issued a total of 26 postdated checks against his account with the Associated Bank and Far East Bank & Trust Company (Marikina Branches). When private respondent presented these checks for encashment, they were dishonored because the accounts against which they were drawn were closed. Private respondent informed petitioner of the dishonor and demanded payment of their value. After some negotiations, petitioner drew and delivered a new set of postdated checks in replacement of the dishonored ones. Private respondent, in turn, returned to petitioner the originals of the dishonored postdated checks but retained photocopies thereof. When private respondent deposited the replacement checks in his account with the Westmont Bank, these were also dishonored by the drawee bank. As a result, the private respondent filed criminal complaints against petitioner for violation of BP 22 with the Office of the Provincial Prosecutor of Bulacan. After preliminary investigation, the Provincial Prosecutor filed 26 Informations against petitioner with the RTC of Bulacan for violation of BP 22, entitled People v. Josef, Criminal Case Nos. 2113-M-93 to 2138-M-93, for the original 26 postdated 6 checks. The trial court convicted petitioner on all counts and imposed the penalty of six months for each conviction. The Court of Appeals, in the assailed decision, affirmed the trial court. Petitioner admits having issued the 26 dishonored checks. However, he claims the following defenses: 1) he has already paid private respondent the amount of the checks in cash; 2) the trial court was incorrect to accept as evidence photocopies of the original checks and 3) he acted in good faith. He likewise adopts the dissenting opinion of CA Justice 7 Martin Villarama, Jr., which states that the penalty of imprisonment was incorrectly imposed on petitioner in the light of 8 Administrative Circular No. 12-2000. The petition is without merit. The elements of violation of BP 22 are: 1) making, drawing and issuing any check to apply on account or for value; 2) knowledge of the maker, drawer or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and 3) subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit, or dishonor of the check for 9 the same reason had not the drawer, without any valid cause, ordered the bank to stop payment. All three elements are present here. Petitioner categorically admits the fact of issuance of the checks and their dishonor, the first and third elements. He has 11 likewise failed to rebut the statutory presumption of knowledge of insufficient funds, the second element, which attaches 12 if the check is presented and dishonored within 90 days from its issuance. While petitioner alleges to have paid private respondent the amount of the checks, he failed to specify if he had done so within five banking days from receiving notice of the checks dishonor and to present any evidence of such payment. In addition, his unsubstantiated claim of cash payment contradicts his earlier defense that he had replaced the checks. Moving onto the procedural aspects of the case, petitioner claims that, under the Best Evidence Rule, the trial court should not have admitted in evidence the photocopies of the checks until after he had been given reasonable notice to 13 produce the originals. The Court of Appeals, in disposing of this contention, said: However, in the light of the factual milieu in the present recourse, (we) find and so declare that the Court a quo did not commit any reversible error in admitting in evidence the photostatic copies of the subject checks in lieu of the originals thereof in the possession of the [Petitioner]. It bears stressing that the raison detre of the proscription against the admission of secondary evidence in lieu or in substitution of the original thereof is to prevent the commission of fraud on the part of the offeror who is in possession of the best evidence but, in lieu thereof, adduced secondary evidence: xxx xxx xxx When he testified in the Court a quo, the [Petitioner] brought out the originals of the checks and even marked the same in evidence as Exhibits "1" to "21", except five (5) of the subject checks, which he claimed as missing and the Prosecution even adopted the original checks as its evidence:
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xxx xxx xxx The [Petitioner] admitted, before the Court a quo, that the originals of the subject checks were in his possession.The [Petitioner] never alleged that the photostatic copies of the checks marked and offered in evidence by the Prosecution were not faithful copies of the originals of the checks. In point of fact, when he testified in the Court a quo, he was shown, by his counsel, the photostatic copies of the subject checks and admitted that the originals of said checks were in his possession on his claim that he had paid the Private Complainant the amount of P600,000.00 in cash and the balance in the form of checks which he drew and issued to the Private Complainant by way of replacement of the aforesaid other checks: xxx xxx xxx By his testimony, the [Petitioner] thereby admitted that the photostatic copies of the checks marked and offered in evidence by the Prosecution were the faithful reproductions of the originals of the checks in his possession. Hence, the Prosecution may mark and offer in evidence the photostatic copies of the checks. xxx xxx xxx Having admitted, albeit impliedly, that the photostatic copies of the checks admitted in evidence by the Court a quo were the faithful reproduction of the original copies in his possession, the Petitioner was thus estopped from invoking Section 3, Rule 130 of the Revised Rules of Evidence. We agree with the Court of Appeals. By admitting that the originals were in his possession and even producing them in open court, petitioner cured whatever flaw might have existed in the prosecutions evidence. The fact that these originals were all stamped "account closed" merely confirmed the allegations of the respondent that the checks were dishonored by reason of the account being closed. Because they were entirely consistent with its main theory, the prosecution correctly adopted these originals as its own evidence. In addition, by petitioners own admission, five of the original checks were 14 lost, thus rendering the photocopies thereof admissible as exceptions to the Best Evidence Rule. Regarding petitioners allegation of good faith, suffice it to say that such a claim is immaterial, the offense in question 15 being malum prohibitum. The gravamen of the offense is the issuance of a bad check and therefore, whether or not 16 malice and intent attended such issuance is unimportant. In invoking of A.C. No. 12-2000, petitioner adopts the interpretation of Justice Villarama to the effect that the circular mandates judges to impose fines rather than imprisonment on violators of BP 22. In affirming the sentence imposed by the trial court, the majority pointed out that it is only under certain conditions that trial court judges may impose fines rather than imprisonment. The Circular provides, in part: In its decision in Eduardo Vaca, v. Court of Appeals the Supreme Court (Second Division) per Mr. Justice V. Mendoza, modified the sentence imposed for violation of B.P. Blg. 22 by deleting the penalty of imprisonment and imposing only the penalty of fine in an amount double the amount of the check. In justification thereof, the Court said: Petitioners are first-time offenders. They are Filipino entrepreneurs who presumably contribute to the national economy. Apparently, they brought this appeal, believing in all good faith, although mistakenly that they had not committed a violation of B.P. Blg. 22. Otherwise they could simply have accepted the judgment of the trial court and applied for probation to evade a prison term. It would best serve the ends of criminal justice if in fixing the penalty within the range of discretion allowed by 1, par. 1, the same philosophy underlying the Indeterminate Sentence Law is observed, namely, that of redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness with due regard to the protection of the social order. In this case we believe that a fine in an amount equal to double the amount of the check involved is an appropriate penalty to impose on each of the petitioners. In the recent case of Rosa Lim v. People of the Philippines, the Supreme Court en banc, applying Vaca also deleted the penalty of imprisonment and sentenced the drawer of the bounced check to the maximum of the fine allowed by B.P. Blg. 22, i.e., P200,000, and concluded that "such would best serve the ends of criminal justice." All courts and judges concerned should henceforth take note of the foregoing policy of the Supreme Court on the matter of the imposition of penalties for violations of B.P. Blg. 22.

Considerable confusion arose as a result of this circular. Like Justice Villarama, many came to believe that the policy enunciated in this circular was to altogether remove imprisonment as an alternative penalty for violation of BP 22. The circular created so much confusion, in fact, that less than three months later, we had to issue yet another circular, 17 Administrative Circular No. 13-2001, for the specific purpose of clarifying exactly what the implications of A.C. No. 122000 were. In order to put all doubts to rest, the second circular provides: The clear tenor and intention of Administrative Order No. 12-2000 is not to remove imprisonment as an alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in B.P. Blg. 22. The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for violators of B.P. Blg. 22. Neither does it defeat the legislative intent behind the law. Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the application of the penal provisions of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. Needless to say, the determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the Judge. Should the Judge decide that imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought not to be deemed a hindrance (emphasis ours). Clearly, the imposition of either a fine or imprisonment remains entirely within the sound discretion of the judge trying the case, based on his assessment of the offender and the facts. Justice Villarama premised his dissent on the absence of a distinction in A.C. No. 12-2000 between which offenders deserve the relatively lenient penalty of a fine and which deserve imprisonment. As A.C. No. 13-2001 states, the application of the circular is selective and it is entirely up to the trial court judge to make that distinction, given the circumstances obtaining. This brings us to the factual issue of petitioners worthiness of the lighter penalty. On this, we see no reason to disturb the findings of the trial court. WHEREFORE, the petition is hereby DENIED. The decision of the Court of Appeals in CA-G.R. CR No. 23234 is hereby AFFIRMED. Costs against petitioner. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 145498 January 17, 2005

BENJAMIN LEE, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. DECISION AUSTRIA-MARTINEZ, J.: Petitioner is now before us on a petition for review under Rule 45 of the Rules of Court seeking the reversal of the 1 Decision of the Court of Appeals dated July 30, 1999, which affirmed the judgment of the Regional Trial Court, Branch 79, Quezon City (RTC) convicting him of violating Batas Pambansa Blg. 22 in Criminal Case No. Q-93-50094; and the 2 Resolution dated October 11, 2000, denying his motion for reconsideration. The facts are as follows: On October 4, 1993, an Information was filed against petitioner Dr. Benjamin F. Lee and a certain Cesar Al. Bautista, for violation of B.P. Blg. 22, which reads:

That on or about the 24th day of July 1993, in Quezon City, Philippines, the said accused, conspiring together, confederating with, and mutually helping each other, did then and there willfully, unlawfully and feloniously make or draw and issue to Rogelio G. Bergado to apply on account or for value United Coconut Planters Bank Check No. 168341 dated July 24, 1993 payable to the order of Rogelio G. Bergado in the amount of P980,000.00, Philippine Currency, said accused well knowing that at the time of issue they did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check when presented for payment was subsequently dishonored by the drawee bank for Account Closed and despite receipt of notice of such dishonor, said accused failed to pay said Rogelio G. Bergado the amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. CONTRARY TO LAW.
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Petitioner pleaded not guilty in his arraignment on February 1, 1995. Presiding Judge Godofredo L. Legaspi noted in the assailed judgment that trial proceeded insofar only as petitioner is concerned, "since accused Cesar Bautista is presently detained at Municipal Jail at Calapan, Mindoro where he has a pending case before the Metropolitan Trial Court (MTC), Calapan, Mindoro and despite several notices to the jail warden of Calapan, Mindoro, the latter failed to bring the person 5 of said accused to this Court for arraignment." For the prosecution, private complainant Rogelio Bergado testified that: on July 19, 1992, he loaned Unlad Commercial Enterprises (Unlad for brevity), through its agent Norma Ilagan, the amount of P500,000.00 with an interest of 4% a month; on September 10, 1992, he loaned another P400,000.00 through Ilagan for the same interest rate; in exchange, he received a total of twenty-six checks, four of which were dishonored for the reason "drawn against insufficient funds"; he went to Calapan, Mindoro and talked to Bautista and the latter replaced the dishonored checks with United Coconut Planters Bank (UCPB) Check No. ARA 168341, signed by Bautista and herein petitioner dated July 24, 1993, in the amount of P980,000.00 representing the total amount loaned plus interests; when Bergado deposited the check at UCPB, the same was dishonored due to "account closed"; through his lawyer, he sent demand letters to Bautista and petitioner, who, despite having received the same still failed and refused to make any payment. Upon cross-examination, Bergado admitted that he did not see or meet petitioner prior to July 24, 1993 nor did he go to Calapan, Mindoro to check the 6 existence of Unlad prior to lending it the amount of P900,000.00. The prosecution also presented Zenaida Katigbak, Branch Operations Officer of UCPB Araneta Avenue, Quezon City, who testified that Bautista and petitioner are the authorized signatories of Current Account No. 130-000406-2, against which the check subject of the present criminal case was issued; and that the account was opened on August 22, 1988 and closed on January 31, 1992 due to mishandling of the account, i.e., a check was previously issued against it without 8 sufficient funds. The prosecution presented UCPB Check No. ARA 168341, UCPB Check Return Slip dated August 5, 1993 stating that 10 Check No. ARA 168341 was returned unpaid due to "account closed"; a demand letter addressed to petitioner dated 11 12 13 August 9, 1993; registry return slip; a copy of the complaint affidavit of private complainant; signature card of the 14 current account of petitioner and Bautista at UCPB; and the bank statement of the current account of petitioner and 15 Bautista dated January 31, 1992 reflecting that said account has been closed on said date. For the defense, petitioner testified that: it is Bautista who is the sole owner of Unlad; he knew Bautista and became his "compadre" because of Bautistas wife who was his employee; he does not know anything about the check issued by Bautista in favor of Bergado nor did he receive any amount from Bergado or any other person; he agreed to open an account with Bautista in 1988 because Bautista promised to give him 5% interest from the proceeds of loans that will be made in favor of other people from said account; before July of 1989, Bautista also asked him to sign several checks in exchange for 2.5% interest a month from the proceeds of loan to be made in favor of other people; after July 1989, he terminated his accommodation arrangement with Bautista after learning that Bautista was also giving 5% interest to other investors without any accommodation agreement; he asked for the checks he previously signed but Bautista refused to return them saying that he did not have them anymore; and inspite of these, he continued investing in Bautistas business 16 in the amount of more than P500,000.00. On cross-examination, petitioner admitted that he signed several checks in blank on different occasions; that he was the one who asked and insisted that Bautista execute Exhs. "1" and "2", affidavits of Bautista stating that Unlad shall be Bautistas sole responsibility; and that despite having severed his relationship with Bautista in July of 1989, he did not inform UCPB Araneta, Quezon City branch of such fact and he continued investing in Unlad, from July 1989 to April 17 1994.
9 7

To bolster his claim, petitioner presented: an affidavit executed by Bautista dated May 31, 1993 stating that Bautista is the sole proprietor of Unlad and that any business transaction entered into by Unlad shall be Bautistas personal 18 responsibility; an affidavit executed by Bautista on June 4, 1990, stating that petitioner is no longer connected with Unlad and that petitioner should not be held liable regarding any transaction entered into by Unlad after July 1989 since 19 petitioner is no longer a signatory; a business permit issued by the Municipality of Calapan certifying that Bautista has 20 been granted a permit to operate a "general merchandise"; a certification from the Department of Trade and Industry, Oriental Mindoro Provincial Office stating that Unlad is registered in the name of Cesar Bautista and/or Placer 21 Bautista; orders of attachment issued by the Regional Trial Court of Oriental Mindoro on the properties of Bautista and 22 23 petitioner; and checks issued by Bautista in favor of petitioner and his wife Amelia Lee. On July 22, 1997, the RTC promulgated its decision, the dispositive portion of which reads as follows: WHEREFORE, judgment is hereby rendered in this case finding accused Benjamin Lee guilty beyond reasonable doubt of Violation of Batas Pambansa Blg. 22 and accordingly sentences him to suffer an imprisonment of one (1) year of prision correccional, and to pay the offended party P980,000.00 and to pay a fine of P200,000.00 with subsidiary imprisonment in case of insolvency and non-payment of the fine by the accused. SO ORDERED.
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Petitioner went to the Court of Appeals which modified the trial courts judgment, thus: WHEREFORE, the Decision is hereby MODIFIED by imposing a penalty of one (1) year and for the accused to pay the private party the sum of Nine Hundred Eighty Thousand Pesos (P980,000.00) as civil indemnity. With cost against the accused. SO ORDERED.
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Petitioners motion for reconsideration was denied on October 11, 2000. Hence, the present petition with the following assignment of errors: 1. THE COURT A QUO COMMITTED A REVERSIBLE ERROR OF LAW IN DISREGARDING PETITIONERS DEFENSE THAT HE HAD ALREADY SEVERED, SINCE JULY 1989, HIS ACCOMODATION ARRANGEMENT WITH HIS COACCUSED BAUTISTA WHO WAS SOLELY RESPONSIBLE FOR ALL THE TRANSACTIONS ENTERED INTO BY UNLAD COMMERCIAL ENTERPRISES AND THEREFORE PETITIONER HAD NO KNOWLEDGE OF THE SUFFICIENCY OR INSUFFICIENCY OF FUNDS OF UNLADS BANK ACCOUNT. 2. THE COURT A QUO HAS DECIDED IN (A) WAY NOT IN ACCORD WITH LAW IN FAILING TO RULE THAT THE SUBJECT CHECK, UCPB CHECK NO. ARA 168341, WAS NOT ISSUED BY PETITIONER TO PRIVATE COMPLAINANT ON ACCOUNT OR FOR VALUE. 3. THE COURT A QUO COMMITTED AN ERROR OF LAW WHEN IT FAILED TO CONSIDER THAT AT THE TIME THE SUBJECT CHECK WAS ISSUED BY BAUTISTA IN FAVOR OF PRIVATE COMPLAINANT, THE LATTER WAS ALREADY AWARE THAT THE RESPECTIVE ESTATES OF THE ACCUSED WERE ALREADY ATTACHED BY THE REGIONAL TRIAL COURT OF CALAPAN, ORIENTAL MINDORO. 4. THE COURT A QUO COMMITTED A REVERSIBLE ERROR OF FACT AND LAW IN NOT ACQUITTING PETITIONER ON GROUND OF REASONABLE DOUBT. 5. THE COURT A QUO AND THE TRIAL COURT COMMITTED REVERSIBLE ERROR OF LAW WHEN THEY FAILED TO DISMISS THE INFORMATION FOR VIOLATION OF B.P. 22 AGAINST THE ACCUSED FOR LACK OF 26 JURISDICTION. In support of his first assigned error, petitioner claims that: he had no actual knowledge of the sufficiency or insufficiency of the funds handled by his co-accused Bautista; while it is true that he opened a joint account with Bautista at UCPB Araneta Avenue, Quezon City and that he signed several UCPB checks in blank to accommodate Bautista, he already severed his accommodation arrangement with Bautista as early as July of 1989; this is evidenced by the affidavits executed by Bautista dated June 4, 1990 and May 31, 1993 which the court a quo ignored; the Court of Appeals

erroneously held that the affidavits of Bautista are "self-serving" since there was no showing that Bautista was lying when he made the statements therein; also, the declarant in this case is Bautista and not petitioner, thus the principle of selfserving statements cannot apply; the affidavits of Bautista are declarations against the interest of the person making it, which are admissible notwithstanding their hearsay character, since such declarations are relevant to the case and the declarant is not available as a witness despite efforts of petitioner to present Bautista in court; the true test of the reliability of the declaration is not whether it was made ante litem motam as in this case but whether the declaration was uttered under circumstances justifying the conclusion that there was no probable motive to falsify; also, the affidavits of Bautista, 27 having been acknowledged before a notary public, should be given evidentiary weight. Petitioner also points out that in Lao vs. Court of Appeals the Court held that if knowledge of the insufficiency of funds is proven to be actually absent or non-existent, the accused should not be held liable for the offense defined under Sec. 1 of B.P. Blg. 22; in said case, petitioner was acquitted, even though she was still connected with the corporation at the time of the issuance of the check, since she was not expected or obliged to possess under the organizational structure of the corporation, knowledge of the insufficiency of funds; and that in the case at bar, the court a quo affirmed the conviction of petitioner even though it was established that he had ceased to be connected with co-accused Bautistas business for more than three years prior to the issuance of the subject check and even though it was clear from the testimony of 29 private complainant himself that he had dealt with Bautista and Ilagan only. Anent the second and third assigned errors, petitioner argues that: in the case at bar, there was neither a pre-existing obligation nor an obligation incurred on the part of petitioner when the subject check was given by Bautista to private complainant on July 24, 1993 since petitioner was no longer connected with Unlad or Bautista starting July of 1989; when Bautista issued the subject check to Bergado on July 24, 1993, Bautista had no more authority to use petitioners presigned checks thus there was no consideration to speak of; petitioner was deceived by Bautista into believing that all the pre-signed checks were already used or issued as of 1989; the court a quo should not have presumed that when petitioner signed the checks and handed the same to Bautista, petitioner had knowledge that their account had no funds; in all criminal cases, suspicion, no matter how strong cannot sway judgment; even assuming that petitioner had issued the subject check when he signed the same sometime before July 1989 and that he had an undertaking to whoever would be the payee, still petitioner should be exempted from criminal liability since petitioner could not comply with the said undertaking due to an insuperable cause, i.e., as early as June 18, 1993, all the properties of petitioner had already been 30 attached/garnished by the Regional Trial Court of Oriental Mindoro. Petitioner further argues that: private complainant is not a holder in due course because he knew that the account of Bautista and petitioner with UCPB Araneta branch had been closed at the time that he deposited UCPB Check No. ARA 168341 on August 5, 1993; Check No. ARA 374058 in the amount of P500,000.00, which bounced earlier, was drawn from the same UCPB account of Bautista and petitioner which had already been closed by the UCPB on January 31, 31 1992; private complainant also had knowledge that the respective estates of both accused were already attached by the RTC at the time the subject check was given to him by Bautista since the first order of attachment was issued on June 18, 1993 and was recorded with the Registry of Deeds of Oriental Mindoro on the same date; applying the principle that registration of instrument is notice to the world, Bergado is presumed to know the various orders of 32 attachment/garnishment issued by the court. As to his fourth assigned error, petitioner argues that: the prosecution failed to prove his guilt beyond reasonable doubt; the prosecution failed to rebut the allegation of petitioner that he was not anymore connected with the business of Bautista and therefore he had no knowledge of the insufficiency of the funds handled by Bautista; and the prosecution and the trial court relied solely on the authenticity of petitioners signature on the subject check which fact is not enough to convict 33 petitioner of the offense charged. Finally, anent his fifth assigned error, petitioner claims that the Regional Trial Court which tried and convicted petitioner had no jurisdiction over violations of B.P. Blg. 22 considering that the penalty therefor is imprisonment of thirty days to one year and/or a fine not less than, and not more than double, the amount, but not to exceedP200,000.00; and that at the time the Information was filed on October 4, 1993, violations of B.P. Blg. 22 fell under the jurisdiction of the MTC in view of Sec. 32 (2) of B.P. Blg. 129 which provides that the MTC has exclusive original jurisdiction over all offenses punishable with imprisonment of not more than four years and two months or a fine of not more than P4,000.00 or both such fine and imprisonment, regardless of other imposable accessory or other penalties including the civil liability arising from such 34 offenses or predicated thereon, irrespective of kin, nature, value or amount thereof. In his Comment, the Solicitor General contends that: the mere fact that petitioner was a signatory to the check makes him solidarily liable with his co-signatory; if it is true that petitioner severed his accommodation arrangement with Bautista as early as July of 1989, he should have informed the UCPB Araneta Avenue, Quezon City branch that any check that would be issued bearing his signature and that of Bautista and drawn against their joint account after July of 1989 should no longer be honored; the affidavit of Bautista to the effect that petitioner should not be held answerable for any liability of
28

Unlad after July 1989 is not admissible as Bautista was not presented in court nor the prosecution afforded any opportunity to test the veracity of his allegations; having failed to convincingly establish that petitioner has severed his accommodation arrangement with his co-accused Bautista, the presumption stands that he was aware that they no longer had sufficient funds at the time the check was issued; the presumption also stands that the check was issued on account or for value; petitioner also cannot claim that private complainant was aware that petitioner and Bautistas joint account was already closed at the time the subject check was issued and delivered to complainant since there is nothing on record to show that the reason for the non-payment of the checks earlier issued to complainant was due to "account closed"; Bergado claims that the earlier checks were dishonored due to lack of sufficient funds; there is also no merit to the argument of petitioner that private complainant was already aware that petitioner together with Bautista could no longer make good the subject check in view of the various writs of attachment issued by the court against their properties, which writs of attachment were duly recorded with the Register of Deeds; the registration of the various writs of attachment affected only the real properties of petitioner and such registration served as warning to those who may have or intend to have dealings affecting such lands covered by the attachments; with regard to the attachment of their bank accounts, there was no showing that private complainant was aware of the same; there is also no merit to the claim of petitioner that his guilt was not proven beyond reasonable doubt; the prosecution was able to establish that petitioner, together with Bautista, issued the subject check to the complainant in payment of the money loaned by the latter to Unlad; the check bounced for the reason "account closed" and despite demand to make good the check, petitioner and his co-accused failed and refused to pay the complainant; and there is no merit to the claim of petitioner that the RTC had no jurisdiction over the present case following Sec. 32 (2) of B.P. Blg. 129 where it is provided that in order that the offense under the jurisdiction of Municipal Trial Courts, Metropolitan Trial Courts and Municipal Circuit Trial Courts, the imposable penalty must not exceed four years and two months or a fine of not more than P4,000.00 or both such fine and imprisonment; in the case at bar, the imposable fine is way beyond the limit of P4,000.00 as the amount of the check is P980,000.00 thus 35 the RTC had jurisdiction over the case. Simply stated, the issues that need to be resolved are as follows: (1) whether the RTC, which tried and convicted petitioner, has jurisdiction over the case; (2) whether petitioner had actual knowledge of the sufficiency or insufficiency of funds handled by his co-accused; (3) whether the check was issued on account or for value; (4) whether the private complainant, at the time of issuance, had knowledge that the check had no sufficient funds; and (5) whether the guilt of the accused was proven beyond reasonable doubt. First issue. Whether the RTC, which tried and convicted petitioner, had jurisdiction over the case. Petitioner claims that the RTC which tried and convicted him had no jurisdiction over violations of B.P. Blg. 22since such jurisdiction is vested on the MTC in view of Sec. 32 (2) of B.P. Blg. 129. We do not agree. As clearly provided by Sec. 32 (2) of B.P. Blg. 129, to wit: Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Criminal Cases.---Except in cases falling within the exclusive original jurisdiction of Regional Trial Courts and the Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: ..... (2) Exclusive original jurisdiction over all offenses punishable with imprisonment of not exceeding four years and two months, or a fine of not more than four thousand pesos, or both such fine and imprisonment, regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof: Provided, however, That in offenses involving damage to property through criminal negligence they shall have exclusive original jurisdiction where the imposable fine does not exceed twenty thousand pesos. (Emphasis supplied) the MTC has exclusive jurisdiction over offenses punishable with imprisonment of not exceeding four years and two months, OR, a fine of not more than four thousand pesos or both such fine and imprisonment. The Information in this case was filed on October 4, 1993. On March 25, 1994, Republic Act No. 7691 took effect and amended Sec. 32 (2) of B.P. Blg. 129 to read as follows:

Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Criminal Cases. --- Except in cases falling within the exclusive original jurisdiction of Regional Trial Courts and of the Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts shall exercise: ..... (2) Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof: Provided, however, that in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction thereof. (Emphasis supplied) Since the Information in the present case was filed prior to the amendment of R.A. No. 7691, the old rule governs and therefore, considering that the imposable penalty for violation of B.P. Blg. 22 per Section 1, thereof is imprisonment of not less than thirty days but not more than one year OR by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed P200,000.00, or both fine and imprisonment; and inasmuch as the fine imposable in the present case is more than P4,000.00 as the subject amount of the check is P980,000.00, it is the 36 Regional Trial Court that has jurisdiction over the present case. As we held in People vs. Velasco : as a general rulethe jurisdiction of a court to try a criminal action is to be determined by the law in force at the time of the institution of the action. Where a court has already obtained and is exercising jurisdiction over a controversy, its jurisdiction to proceed to the final determination of the cause is not affected by new legislation placing jurisdiction over such proceedings in another tribunal. The exception to the rule is where the statute expressly provides, or is construed to the effect that it is intended to operate as to actions pending before its enactment. Where a statute changing the jurisdiction of a court has no retroactive effect, it cannot be applied to a case that was pending prior to the enactment of a statute. A perusal of R.A. No. 7691 will show that its retroactive provisions apply only to civil cases that have not yet reached the pre-trial stage. Neither from an express proviso nor by implication can it be understood as having retroactive application to criminal cases pending or decided by the Regional Trial Courts prior to its effectivityAt the time the case against the appellant was commenced by the filing of the information on July 3, 1991, the Regional Trial Court had jurisdiction over the offense charged. ..... In fine, the jurisdiction of the trial court (RTC) over the case of the appellant was conferred by the aforecited law then in force (R.A. No. 6425 before amendment) when the information was filed. Jurisdiction attached upon the commencement of the action and could not be ousted by the passage of R.A. No. 7691 reapportioning the jurisdiction of inferior courts, the 37 application of which to criminal cases is, to stress, prospective in nature. Second issue. Whether petitioner had actual knowledge of the insufficiency of funds. We have held that knowledge involves a state of mind difficult to establish, thus the statute itself creates a prima facie presumption that the drawer had knowledge of the insufficiency of his funds in or credit with the bank at the time of the issuance and on the checks presentment for payment if he fails to pay the amount of the check within five banking 38 days from notice of dishonor. Sec. 2 of B.P. Blg. 22, provides: Section 2. Evidence of knowledge of insufficient funds. - The making, drawing and issuance of a check payment of which is refused by the drawee bank because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. As a rule, the prosecution has a duty to prove all the elements of the crime, including the acts that give rise to theprima facie presumption. Petitioner, on the other hand, has a right to rebut such presumption. Thus, if such knowledge of insufficiency of funds is proven to be actually absent or inexistent, the accused should not be held liable for the offense 39 defined under the first paragraph of Sec. 1 of B.P. Blg. 22, thus:

SECTION 1. Checks without sufficient funds. Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two hundred thousand pesos, or both such fine and imprisonment at the discretion of the court. The same penalty shall be imposed upon any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit or to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank. .... In the present case, the prosecution has established the prima facie presumption of knowledge of petitioner of insufficient 40 funds through the demand letter sent to petitioner, Exhibit "C" which was duly received by petitioner as shown by the 41 registry return receipt, Exhibit "D". Petitioner tried to rebut the prima facie presumption by insisting that he is not an owner of Unlad and he has already severed his accommodation arrangement with Bautista as early as 1989. He argues that the affidavits of Bautista exonerating him from any responsibility as well as the private complainants own testimony that he never dealt with petitioner, should be given weight. We are not persuaded. It is a hornbook doctrine that unless the affiant himself takes the witness stand to affirm the averments in his affidavits, the 42 affidavits must be excluded from the judicial proceeding, being inadmissible hearsay. The trial court and the Court of Appeals were correct in considering the same as hearsay evidence and in not giving probative weight to such affidavits. Moreover, petitioner had admitted that he continued investing in Unlad until April 1994. Hence, he now cannot claim that he has completely severed his ties with Bautista as of 1989. With nothing but his bare assertions, which are ambiguous at best, petitioner has failed to rebut the prima facie presumption laid down by the statute and established by the prosecution. Petitioners insistence that since he is not an owner of Unlad, he could not have had any knowledge as to the insufficiency 43 of funds is devoid of merit. As clarified in Lao vs. Court of Appeals, the very case petitioner is invoking, the doctrine that a mere employee tasked to sign checks in blanks may not be deemed to have knowledge of the insufficiency of funds 44 applies only to corporate checks and not to personal checks. In this case, what is involved is a personal and not a corporate check. Worth mentioning also is the fact that in the Lao case, the notice of dishonor was never personally received by petitioner, thus the prima facie presumption of knowledge of insufficiency of funds never arose. Here, as correctly found by the RTC, 45 petitioner was duly notified of the dishonor of the subject check as shown by Exh. "C," a letter, specifically mentioning that the subject check was dishonored for reason "Account Closed," with the corresponding registry return receipt 46 showing that petitioner received the notice on August 16, 1993 which petitioner did not impugn. Third issue. Whether or not the check was issued on account or for value. Petitioners claim is not feasible. We have held that upon issuance of a check, in the absence of evidence to the contrary, 47 it is presumed that the same was issued for valuable consideration. Valuable consideration, in turn, may consist either in some right, interest, profit or benefit accruing to the party who makes the contract, or some forbearance, detriment, loss or some responsibility, to act, or labor, or service given, suffered or undertaken by the other side. It is an obligation to do, or 48 not to do in favor of the party who makes the contract, such as the maker or indorser. In this case, petitioner himself testified that he signed several checks in blank, the subject check included, in exchange for 2.5% interest from the proceeds of loans that will be made from said account. This is a valuable consideration for which the check was issued. That there was neither a pre-existing obligation nor an obligation incurred on the part of petitioner when the subject check was given by Bautista to private complainant on July 24, 1993 because petitioner was no longer

connected with Unlad or Bautista starting July 1989, cannot be given merit since, as earlier discussed, petitioner failed to adequately prove that he has severed his relationship with Bautista or Unlad. At any rate, we have held that what the law punishes is the mere act of issuing a bouncing check, not the purpose for which it was issued nor the terms and conditions relating to its issuance. This is because the thrust of the law is to prohibit 49 the making of worthless checks and putting them into circulation. Fourth issue. Whether the private complainant, at the time of issuance, had knowledge that the checks had no sufficient funds. We have held that knowledge of the payee that the drawer did not have sufficient funds with the drawee bank at the time 50 the check was issued is immaterial as deceit is not an essential element of the offense under B.P. Blg. 22. This is because the gravamen of the offense is the issuance of a bad check, hence, malice and intent in the issuance thereof are 51 inconsequential. In Yu Oh vs. Court of Appeals the Court held that there is no violation of B.P. Blg. 22, if complainant was actually told by 53 the drawer that he has no sufficient funds in the bank. In the present case, since there is no evidence that a categorical statement was given to private complainant when the subject check was issued to him, the above ruling cannot apply. Fifth issue. Whether the guilt of the accused was proved beyond reasonable doubt. Petitioner maintains that the prosecution has failed to prove his guilt beyond reasonable doubt since the prosecution failed to rebut his allegation that he was not anymore connected with the business of Bautista and the trial court relied solely on the authenticity of petitioners signature on the subject check to convict him of the offense charged. We are not convinced. Proof beyond reasonable doubt does not mean absolute certainty. Suffice it to say the law requires only moral certainty or 54 that degree of proof which produces conviction in a prejudiced mind. After reviewing the entire records of this case, we find that there is no reason to depart from the trial courts judgment of conviction. The weight and quantum of evidence needed to prove the guilt of petitioner beyond reasonable doubt were met and established by the prosecution and correctly affirmed by the Court of Appeals. However, in view of Supreme Court Administrative Circular No. 12-2000, as clarified by Administrative Circular No. 132001, establishing a rule of preference in the application of the penalties provided for in B.P. Blg. 22; and the 55 recommendation of the Solicitor General in its Comment that the policy laid down in Vaca vs. Court of Appeals , and Lim 56 vs. People, of redeeming valuable human material and preventing unnecessary deprivation of personal liberty and 57 economic usefulness, be considered in favor of petitioner who is not shown to be a habitual delinquent or a recidivist, we find that the penalty imposed by the Court of Appeals should be modified by deleting the penalty of imprisonment and imposing only a fine of P200,000.00. An appeal in a criminal case throws the entire case for review and it becomes our duty to correct any error, as may be 58 found in the appealed judgment, whether assigned as an error or not. Considering that the civil aspect of the case is deemed instituted with the criminal case and considering that the trial court and the Court of Appeals failed to award, in their respective judgments, the interest on the amount due to private complainant, it is incumbent upon us to correct the patent error of the lower courts. Private complainant is entitled to a 12% legal interest per annum from the date of finality 59 of judgment. WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the following MODIFICATIONS: The sentence of imprisonment is deleted. Instead, petitioner is ordered to pay a fine of P200,000.00, subject to subsidiary imprisonment in case of insolvency pursuant to Article 39 of the Revised Penal Code; and petitioner is ordered to pay the private complainant the amount of P980,000.00 with 12% legal interest per annum from the date of finality of herein judgment. SO ORDERED. Puno, (Chairman), Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur. Republic of the Philippines SUPREME COURT Manila
52

SECOND DIVISION G.R. No. 151978 July 14, 2004

ARTURO ROMERA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

QUISUMBING, J.: For review on certiorari is the Decision dated January 11, 2002 of the Court of Appeals, in CA-G.R. CR. No. 23753, 2 affirming the August 16, 1999 Order of the Regional Trial Court of Cagayan de Oro City, Branch 24, in Criminal Case No. 98-1089. The RTC convicted petitioner Arturo Romera of frustrated homicide and sentenced him to imprisonment ranging from one (1) year, eight (8) months and twenty (20) days of prision correccional as minimum to six (6) years and one (1) day of prision mayor as maximum. He was also ordered to pay private offended party P19,361.15 as actual damages and P10,000 as attorneys fee. The Information against petitioner reads: On October 4, 1998, at about 7:00 oclock in the evening, at Sitio Puntod, Barangay Balagnan, Balingasag, Misamis Oriental, within the jurisdiction of the Honorable Court, the above-named accused, with intent to kill, did, then and there, willfully, unlawfully, and feloniously attack, assault, and stab one Roy Mangaya-ay with the use of a bolo, thus, inflicting a mortal wound on the abdomen of the latter; accused thereby performed all the acts of execution which would have produced the felony of Homicide which was not produced because of the timely and effective medical attendance administered on the said victim. CONTRARY TO and in violation of Article 249, in relation with Article 6 of the Revised Penal Code. When arraigned, petitioner pleaded not guilty and trial thereafter ensued. The facts, as summarized by the Court of Appeals and borne by the records, are as follows: In the afternoon of October 4, 1998, petitioner Arturo Romera was with the victim, Roy Mangaya-ay, and five other men namely, Eligario "Beboy" Acenas, Dennis "Bobong" Mangaya-ay, Ric Mangaya-ay, Bebing Zulueta and Franklin Generol. They were all headed for Biasong to play volleyball. When they reached Biasong, it was raining, so they decided to while away time at the house of Ciriaca Capil. Franklin Generol hung a string made of cigarette foil on Bebing Zuluetas pants and said, "Theres a monkey among us." Everybody laughed except Roy Mangaya-ay, who got angry and chided Franklin Generol to stop lest he make enemies. Bebing Zulueta also got angry and pointed a finger at Franklin Generol and said, "Even if you are stronger and older, if you will be hit by my fist, you will crawl." Petitioner then stood up and warned everyone, "You all watch out in Balaguan." He pulled Franklin Generol to join him and said, "Lets go, there are many boastful people here." Thereafter, petitioner and Franklin left the group. At six oclock in the evening, Roy and his companions arrived in Balaguan. On their way home, they passed by the house of one Antonio Mangaya-ay. In said house, which is about one kilometer away from petitioners own, they saw petitioner already carrying a bolo waiting for them. Suddenly, raising the bolo with his right hand, petitioner uttered, "Here are the brave ones." Roy and his companions ran away but Roy slipped on the muddy ground. Petitioner approached Roy and said, "Come here, brave one." He held Roy up by the collar and stabbed him in the stomach. Roy fell unconscious. When he woke up, he found himself at the provincial hospital where he underwent surgery and stayed for more than three weeks. After the stabbing incident, petitioner voluntarily surrendered to a certain Tibo Ramoso of the Citizens Armed Force Geographical Unit (CAFGU). Ramoso accompanied petitioner to the Balingasay police station.
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For his part, petitioner testified on what happened as follows: Petitioner and his family were having dinner in their house at around seven oclock in the evening. Thereafter, they went to bed. While lying in bed, they heard Roy call petitioner and his wife, asking if they had beer and a fighter for sale. He did not answer Roy because he knew that Roy was already drunk. Roy asked for petitioner but when the latters wife told him that petitioner was already asleep, he told her to wake her husband up. Petitioner went down the house and asked who was at the door. Just as he opened the door for Roy, Roy thrust his bolo at him. He successfully parried the bolo and asked Roy what it was all about. Roy answered he would kill petitioner. Petitioner tried to prevent Roy from entering, so he pushed the door shut. As Roy was hacking at the wall, petitioners wife held the door to allow petitioner to exit in another door to face Roy. He hurled a stone at Roy, who dodged it. Roy rushed to him and hacked him, but he parried the blow. Petitioner grappled for the bolo and stabbed Roy in the stomach. Wounded, Roy begged petitioner for forgiveness. According to petitioner, he ceased harming Roy for fear he might kill him. The trial court discounted petitioners story of self-defense. It found that when petitioner got hold of the bolo, there was no more danger to his life. Petitioner was convicted of frustrated homicide. The dispositive part of its decision reads: WHEREFORE, premises considered, judgment is hereby rendered, finding accused ARTURO ROMERA guilty beyond reasonable doubt as principal of the offense charged. Consequently, taking into consideration the mitigating circumstance of voluntary surrender and the provisions of the [I]ndeterminate Sentence Law, he is hereby sentenced to a penalty ranging from One (1) year Eight (8) months and Twenty (20) days of Prision Correccional as minimum to Six (6) years and one (1) day of Prision Mayor as maximum and to pay the private offended party as actual damages, P19,361.15 and another sum of P10,000.00 as attorneys fee without, however, subsidiary imprisonment in case of insolvency. SO ORDERED.
4

Petitioner appealed to the Court of Appeals assigning to the trial court the following assignments of error: 1. FAILURE TO APPRECIATE THE THEORY OF SELF DEFENSE. 2. IN THE ALTERNATIVE, FAILURE TO APPRECIATE SPECIAL PRIVILEGED MITIGATING CIRCUMSTANCE OF INCOMPLETE SELF DEFENSE, ARTICLE 69, REVISED PENAL CODE WHICH LOWER THE PENALTY BY TWO DEGREES. 3. FURTHER ALTERNATIVE, FAILURE TO APPLY ARTICLE 62 (5) REVISED PENAL CODE, WHICH LOWER THE PENALTY BY ONE DEGREE LOWER WITH THE PRESENCE OF TWO OR MORE MITIGATING 5 CIRCUMSTANCES. The Court of Appeals affirmed the trial courts judgment. It pointed out that assuming arguendo that it was the victim who was the aggressor at the start, the unlawful aggression ceased to exist when petitioner took possession of the bolo from the victim. Absent unlawful aggression, the justifying circumstance of self-defense becomes unavailing. The appellate court also ruled that Article 69 of the Revised Penal Code finds no application in this case. It explained that there can be no self-defense, complete or incomplete, unless the victim has committed unlawful aggression against the person defending himself. It held, however, that petitioner is entitled to the mitigating circumstance of voluntary surrender as it was established during trial that after the incident he surrendered himself to the CAFGU and later on to the police authorities. Undeterred, petitioner filed the instant petition for review on the sole ground that both the RTC and the Court of Appeals erroneously failed to apply Article 64 (5) of the Revised Penal Code, which lowers the imposable penalty by one degree when two or more mitigating circumstances are present. Petitioner contends that the victim provoked him to a fit of anger when the latter woke him up and thrust a bolo at him without warning as petitioner opened the door. Moreover, by hacking and destroying the bamboo wall of his house, and endangering the lives of his children, the victim also obfuscated his thinking and reasoning processes, says the petitioner. For public respondent, the Office of the Solicitor General (OSG) counters that the mitigating circumstances of provocation and passion or obfuscation are unavailing to petitioner since it was he who initiated the attack. The OSG insists that it was not the victim who went to petitioners house, but petitioner who went to where the victim was resting.
6

We note that while both the RTC and the Court of Appeals did not categorically state who started the attack, it can be reasonably gleaned from their decisions that it was the victim who initiated the aggressive encounter. This finding of fact is amply supported by the evidence on record. Are the mitigating circumstances of provocation and passion or obfuscation present in this case? Thrusting his bolo at petitioner, threatening to kill him, and hacking the bamboo walls of his house are, in our view, sufficient provocation to enrage any man, or stir his rage and obfuscate his thinking, more so when the lives of his wife and children are in danger. Petitioner stabbed the victim as a result of those provocations, and while petitioner was still in a fit of rage. In our view, there was sufficient provocation and the circumstance of passion or obfuscation attended the commission of the offense. But, we must stress that provocation and passion or obfuscation are not two separate mitigating circumstances. Wellsettled is the rule that if these two circumstances are based on the same facts, they should be treated together as one 7 mitigating circumstance. From the facts established in this case, it is clear that both circumstances arose from the same set of facts aforementioned. Hence, they should not be treated as two separate mitigating circumstances. Nonetheless, we hold that since the mitigating circumstance of voluntary surrender is also present, Article 64 (5) of the Revised Penal Code should be applied, to wit: ART. 64. Rules for the application of penalties which contain three periods. ... 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. ... The penalty for frustrated homicide, pursuant to Article 50 of the Revised Penal Code, is the penalty next lower in degree than that prescribed by law for consummated homicide. The penalty for consummated homicide isreclusion temporal, hence the penalty next lower in degree is prision mayor. There being two mitigating circumstances and no aggravating circumstance, pursuant to Article 64 (5) of the Revised Penal Code, the next lower penalty, prision correccional, is the next statutory penalty. But following the Indeterminate Sentence Law herein applicable, the minimum term of the penalty that should be imposed on petitioner for frustrated homicide should be within the range of arresto mayor in any of its periods or from one (1) month and one (1) day to six (6) months, while the maximum term should be within the range of prision correccional in its medium period or two (2) years, four (4) months and one (1) day to four (4) years and two (2) months. WHEREFORE, the Decision dated January 11, 2002 of the Court of Appeals affirming the Order of the Regional Trial Court of Cagayan de Oro City, Branch 24, is MODIFIED as far as the penalty imposed is concerned. Petitioner ARTURO ROMERA is hereby sentenced to suffer the indeterminate penalty of six (6) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. He is also ORDERED to pay the private offended party P19,361.15 as actual damages, and P10,000.00 as attorneys fees. Costs de oficio. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION
8

G.R. Nos. 113513-14 August 23, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JIMMY CONTE, accused-appellant.

DAVIDE, JR., J.: A snake! That is how people call a person who bites the hand that feeds him or who commits a grievous wrong against another to whom he owes a debt of gratitude. That is probably how Bernardo Crisostomo would call his farm helper, accused-appellant Jimmy Conte, who allegedly raped the wife and kidnapped and illegally detained the two children of the former. Jimmy Conte was charged with serious illegal detention with rape in an information in Criminal Case No. 9006 and with 2 kidnapping with serious illegal detention in an information in Criminal Case No. 9007 which were filed on 3 October 1990 3 with the Regional Trial Court (RTC) of Palawan in Puerto Princesa City. However, upon prior leave of court, the 4 information in Criminal Case No. 9006 was replaced by a complaint only for rape, which was signed by the offended party, Gloria Crisostomo, and was filed on 15 February 1991. The accusatory portion of the complaint reads as follows: That on or about the 17th day of September, 1990, in the evening, at Barangay Jolo, Municipality of Roxas, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused by means of force, threat and intimidation and with lewd design, did then and there wilfully, unlawfully and feloniously have carnal knowledge for several times with one GLORIA CRISOSTOMO, against her will and consent, to her damage and prejudice. CONTRARY TO LAW. On the other hand, the following is the accusatory portion of the information in Criminal Case No. 9007: That on or about the 17th day of September 1990, in the evening, at Barangay Jolo, Municipality of Roxas, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, by means of force, threat and intimidation, did then and there wilfully, unlawfully and feloniously kidnap and detain MACRIS CRISOSTOMO and SARAH CRISOSTOMO, both minor children, by bringing them to Barangay San Pedro, Puerto Princesa City and later transferred to a house at Baltan Street, Puerto Princesa City for more than five (5) days thereby depriving them of their liberty until they were retrieved by police authorities last September 24, 1990 at Baltan Street, Puerto Princesa. The cases were assigned to Branch 52 of the court below. The evidence for the prosecution consisting mainly of the testimonies of Bernardo, Gloria, and Macris Crisostomo discloses that appellant Jimmy Conte was a prisoner committed to the Muntinglupa and later transferred to the Iwahig Prison and Penal Farms in Palawan. Sometime after he was set free, or in July 1990, he went to see Bernardo Crisostomo in New Buncag, Puerto Princesa City, and pleaded that he be given some employment. Then and there, Bernardo hired him as a helper in the former's coconut plantation in Barangay Jolo, Roxas, Palawan. He started working in the plantation the following day, gathering coconuts and processing them into copra. He was made to stay together with the other workers in a structure serving as a copra drier located about twenty meters away from the house of the 5 Crisostomos. Most of the time, Bernardo was in New Buncag, as he was constructing a house there. Only his wife, Gloria, and two of 6 their seven children 7-year old Macris and 5-year old Sarah were left in their residence in Jolo. On 17 September 1990 at around 11:00 p.m., Jimmy went to the house of the Crisostomos, sneaked into the room where Gloria and her children were sleeping, and poked a home-made gun close to Gloria's mouth. He then forcibly stripped off Gloria's dress and panty causing them to be torn. He pushed Gloria to the floor, threatened to shoot her if she would make any outcry, and laid on top of her. Enveloped with fear, Gloria could do nothing but cry. Jimmy then removed his brief and forcibly inserted his penis into her genitalia. After consummating his lustful desires, he got up, sat down beside Gloria, and kept watch over her and the two children. Macris was then awake, while Sarah was still asleep. Upon seeing and hearing 7 Macris cry loudly, Jimmy slapped him and threatened to kill him should he make any noise.
1

Jimmy repeated his savage act against Gloria at about 1:00 a.m. and at 4:00 a.m. the next day, 18 September 1990.

Later on that same day, Jimmy declared that somebody whom he had earlier contacted would come to buy the carabao of the Crisostomos. He remained in the house from morning till afternoon waiting for the purported buyer. The latter arrived at 4:00 p.m., paid the former the sum of P5,000.00, and took the carabao. All the while, Gloria just kept on crying. At around 9:00 p.m., a cargo truck arrived. Jimmy took Sarah and threatened to kill her should Gloria refuse to go with him. He then forced her and Macris to board the vehicle. With Sarah in his arms, he seated himself beside the driver and made 9 Gloria and Macris sit also in the front seat of the truck. It was about 1:00 a.m. of 19 September 1990 when the truck reached Barangay San Pedro, Puerto Princesa City. Upon Jimmy's order, Gloria and Macris alighted from the truck. Jimmy, who was carrying Sarah, brought the Crisostomos to a place called Garcellano Picnic Ground. After negotiating with the person on duty therein, he took the three to a cottage inside the compound. There, he sexually ravished Gloria once in the early morning, and again, in the evening of that 10 day. At dusk of 20 September 1990, Jimmy brought the Crisostomos to a house in Baltan Street, Puerto Princesa City. During 11 their three-day stay there, he had carnal knowledge with Gloria once in the evening and once at dawn of each day. For the whole period that they were in the hands of Jimmy, the Crisostomos were served with meals ordered by him. 21 September 1990, Gloria managed to have the boy who had delivered the food bring to a certain Sgt. Pilapil a 13 letter informing him of their situation and pleading for their rescue. She instructed the boy to send it to the CAFGU 14 Detachment in Roxas, Palawan, through a passenger jeepney going to that place.
12

On

In the early morning of 23 September 1990, Sgt. Pilapil went to see Bernardo in his house in New Buncag, Puerto Princesa City, and gave to the latter the aforesaid letter. After reading the same, Bernardo proceeded to the City Police Station. A certain Sgt. Crisanto Pantallano volunteered to help him look for his wife and children. Together, the two went to Baltan Street, which was the address written in the letter. At about 12:00 noon, Bernardo caught sight of Jimmy sitting at the stairs of a house at No. 40 Baltan Street. Sgt. Pantallano forthwith arrested Jimmy and asked him where the Crisostomos were. Upon being told that the three were in a room at the upper story of the house, he went to the room and 15 found the Crisostomos there. Appellant Jimmy Conte presented an entirely different version. He declared that he and Gloria were lovers and that the latter planned their elopement. According to him, sometime after he was released from the Iwahig Prison and Penal Farm, he worked as a helper in the coconut plantation of Bernardo Crisostomo at Roxas, Palawan. He and the other workers stayed in the copra drier near the Crisostomo's house. Gloria visited him many times in the copra drier. At first, he did not give any malicious meaning to those visits. One day, she sent away the three other helpers from the copra drier. In the next instant, she approached him, undressed herself before him, and embraced him. This culminated in carnal congress. They had since been doing it thrice each night for eight months. In the later part of that period, they did it in the residence of the Crisostomos in the same bed where Gloria's two children were sleeping, for then Gloria had already been abandoned by her husband. Sometime thereafter, Gloria told him that she was pregnant and invited him to elope, as she was afraid of her husband. They then eloped bringing along with them her two children. While waiting for a boat bound for Luzon, they stayed in the meantime at the Garcellano Picnic Ground at San Pedro, Puerto Princesa, and later transferred to Baltan Street. They continued having sexual intercourse in those places. Later, however, he was arrested by a certain 16 Bong Amorao and his companions, and he was then brought to the police station of Puerto Princesa. While he was 17 detained in jail, Gloria visited him. She even wrote him a letter, which was handed to him in jail by the daughter of the owner of the house in Baltan Street where they had stayed. Since he did not know how to read, he let the jail warden read 18 the letter for him, the full text of which is as follows: Dear Jimmy Conte, Iniibig kita Jimmy kahit kailan man hindi kita hihiwalayan. Ikaw lang ang aking mahal pinabayaan kasi ako ng asawa ko kaya nakagawa ako ng hindi maganda talagang gusto kong sumama sa iyo. Sana mahalin mo rin ako tulad ng pagmamahal ko sa iyo, hindi ka kaya magsisisi sa katandaan kong ito? Mahal na mahal kita Jimmy balikan mo ako dito sa Jolo Roxas talagang disidido na akong sumama sa iyo Jimmy dahil lang sa asawa kong walanghiya pinabayaan kami. Hanggang dito na lang Jimmy, I love you!

Jimmy hindi ko sukat akalain na mahuhuli tayo sa ganong araw ngunit huwag kang mag-alala wala kang kasalanan sa mga pangyayaring ito na naganap, dahil ito ay kagustuhan kong lahat ang nangyari sa ating dalawa. Hindi naman kagustuhan mo ang pangyayari na ito kong di ako ang may kasalanan. Nagawa ko ito dahil pinabayaan na kami ng aking asawa. Ano man ang mangyari ako ang bahalang managot sa batas at sa mata ng maykapal. same P.S. Kong tungkol naman sa kalabaw na binibintang sa iyo na ikaw ang nagpabili ay hindi totoo yon, hindi naman ikaw ang nagbinta eh. Ako naman ang nagbinta ng kalabaw namin hindi naman ikaw. Ako ang bahalang managot ng kalabaw na bininta ko tutal amin naman yon. At sa tutoo lang hindi mo alam iyon. same To boost his theory, Jimmy presented Ruben Ladines, the owner of the house at Baltan Street where he and Gloria and her two children had stayed; Rolly Nicanor, a detainee at the provincial jail of Palawan and a former resident of Jolo, Roxas, Palawan; and Cipriano Sumagaysay, the jail warden. Ruben Ladines testified that sometime in September 1990, a woman, who had introduced herself as Mrs. Gloria Conte, came to his house and asked for a room to rent. With her then were her two children and a man by the name of Jimmy Conte. Upon being told that there was a vacant room at the upper story of his house, she offered to rent it and paid a halfmonth advance rental. The family stayed there for about ten days. During that period, he observed Jimmy and Gloria to be 19 affectionate to each other. Rolly Nicanor declared that prior to his arrest in Puerto Princesa on 18 March 1991, he was residing at a house about ten to twenty meters away from that of the Crisostomos in Jolo, Roxas, Palawan. Sometime in 1986, he accidentally killed a barriomate. After that incident, he went into hiding. But, for several times, he returned to Jolo, and during those times he was there he could see Jimmy and Gloria going together to the coconut plantation, embracing and kissing each other. 20 This they did from 1987 to 1989. He also saw them elope at about 4:00 p.m. of 17 September 1990. Cipriano Sumagaysay testified that on 27 September 1990, when he arrived at the Puerto Princesa Jail, he saw an old woman who was just about to leave the jail. He then asked Jimmy who that woman was, and the latter replied that she was his visitor, Gloria Crisostomo. About thirty minutes thereafter, a young lady came and gave Jimmy a letter. Upon the 21 latter's request, the jail warden read the letter and kept it so that it could be used as evidence. After the conclusion of the joint trial of the two cases, the trial court rendered a joint decision convicting the appellant in Criminal Case No. 9006 of the crime of rape on eleven counts and sentencing him to reclusion perpetua for each crime

and to pay the complainant an indemnity in the amount of P50,000.00, but acquitting him of the charge of kidnapping with serious illegal detention in Criminal Case No. 9007 on the ground that "the acts of taking and holding the children hostage only form part of the threat and intimidation which the accused employed to insure realization of his carnal designs against 22 their mother." In this appeal, the appellant faults the trial court for (1) giving weight and credence to the testimony of the private complainant that she was forcibly raped several times by him and (2) finding him guilty beyond reasonable doubt of the crime of rape. It is doctrinally entrenched that the trial court's evaluation of the testimony of witnesses is generally viewed as correct and is accorded great weight on appeal, for that court had the advantage of observing the demeanor and behavior of the 23 witnesses while testifying. In the present case, we find no compelling reason to depart from this rule, for our own assessment of the testimony of the complainant, Gloria Crisostomo, discloses no fact of substance and value which the trial court overlooked, misunderstood, or misapplied which, if considered, might affect the result of this case. The appellant contends that the guilty verdict cannot be sustained because there is no clear and convincing proof that he forced the complainant to have sexual intercourse with him for several times He further claims that the threat or intimidation that he would kill the complainant and her two children was not sufficient to prevent the complainant from putting up some resistance or struggle against his acts or from shouting in order to get the attention of her neighbors. We are not persuaded. Under Article 335(1) of the Revised Penal Code, rape is committed by having carnal knowledge of a woman by using force or intimidation. The appellant's acts of poking a gun at the complainant, ripping off her dress and underwear, and pushing her to the floor constitute force. These acts were followed by an intimidation that he would shoot the complainant should she make any noise. Thus: Q And when you saw that Jimmy Conte was inside your room, what did you do? A He poke a homemade gun on me, sir. Q In what particular portion of your body was [sic] he poke the gun? A Near my mouth; sir. Q When he poke that gun on your mouth, what did he do next? A He pulled my dress and it was torn, sir. Q What were you wearing, by the way, that evening? A A duster, sir. Q When he pulled your duster and the same was torn, what did you do next? A He pulled also my panty and it was torn, sir. Q How about you, what did you do when he destroyed your gown and panty? A I just cried and cried, sir. xxx xxx xxx Q You said that this Jimmy Conte pulled your gown and pulled down your panty and it was also destroyed, what did you do next, after that? A He pushed me and I fell down, sir. Q You fell down where?

A On the floor, sir. Q And when you were down on the floor, what did you do next? A He took off his brief and then he lay on top of me, sir. Q And when he went on top of you, what did you do? A He held his penis and placed inside my vagina, sir. Q What did you do when he did that? Q I just cried because the gun was beside him and he said if I make noise, he will shoot me, 24 sir. From the aforequoted testimony, there is no shred of doubt that the appellant did rape the private complainant in the evening of 17 September 1990. But was the trial court correct in convicting the appellant of eleven counts of rape? Notably, the single complaint filed by Gloria Crisostomo charges the appellant with several crimes of rape, in violation of Section 13, Rule 110 of the Rules of Court, which provides that a complaint or information must charge but one offense. Under Sections 1 and 3(e) of Rule 117, the appellant, before entering his plea, should have moved to quash the complaint 26 for being duplicitous. For his failure to do so, he is deemed to have waived the defect. Hence, pursuant to Section 3 of Rule 120, the court could convict him of as many offenses as are charged and proved, and impose on him the penalty for each and every one of them. After examining the complainant's testimony in its entirety, our minds are at rest on the culpability of the appellant for eleven counts of rape. On all the ten other occasions that he had carnal knowledge of the complainant, there was admittedly neither physical force employed by the former nor resistance or struggle on the part of the latter. But, the 27 absence of resistance did not make voluntary the complaint's submission to the criminal acts of the appellant. It must be recalled that at the outset, or in the first sexual assault, the appellant intimidated or threatened with death the complainant, which necessary produced reasonable fear in her and deprived her of will and freedom. The intimidation was a continuing one as shown by his possession of a gun and the threat to kill the children. Thus, the complainant could not bring herself to scream or resist his sexual assaults. During the succeeding days, he kept her and her children like virtual prisoners and effectively implanted fear in the complainant's mind by continually carrying her youngest child, Sarah, thereby sending the message that if the complainant would escape or make any outcry he would kill the complainant and Macris. This message was made louder and clearer when he told the complainant that he had killed a whole family in his place in Pangasinan, which led to his conviction and service of his sentence at the Iwahig Prison and Penal Farm. These circumstances were enough to engender a well-founded belief that the appellant was capable of making good his threats. Her fear was not imagined. In People vs. Pamor,
28 25

this Court made this disquisition:

Intimidation in rape cases is not calibrated or governed by hard and fast rules. Since it is addressed to the mind of the victim and is therefore subjective, it must be viewed in the light of the victim's perception and judgment at the time of the commission of the crime. It is enough that it produces fear fear that if the victim does not yield to the bestial demands of the accused, something would happen to her at that moment. It includes the moral kind such as the fear caused by threatening the victim with a knife or pistol. Where such intimidation exists and the victims cowed into submission as a result thereof, thereby rendering resistance futile, it would be extremely unreasonable, to say the least, to expect the victim to resist with all her might and strength. If resistance would nevertheless be futile because of a continuing intimidation, then offering none at all would not mean consent to the assault as to make the victim's participation in the sexual act voluntary. The appellant also capitalizes on the admission of the private complainant during her cross-examination that she could have escaped had she wanted to but she dared not. He then quotes the following testimony:

Q You mean to say that the truck only pass by your house and Jimmy Conte ask you to board the truck? A Yes, sir. Q And without any protest again you went with Jimmy Conte to board the truck? A I did not complain anymore because he was carrying my younger child, sir. Q But while Jimmy Conte was holding your child, you have all the chances to run away if you like? A Yes. I have a chance to ask for help but what I was thinking was that my child that he was holding, sir. Q So, what you mean, you have all the chances to leave only you were afraid that Jimmy Conte might kill your child? A Yes, sir.
29

It is clear from the complainant's testimony that while she had the chance of running away, she did not grab it because had she done so her daughter, who was then being carried by the appellant in his arms, could be killed. She must have been caught in the twin horns of a wild dilemma. For, equally strong with, or even stronger than her desire to escape and to protect herself and her honor was her love for or her inflexible sense of duty to protect her child. She, like most mothers, was liable to put her child before everything else in the end. Hence, she chose not to escape. The theory of the appellant that the numerous occasions he had carnal knowledge of the complainant were impelled by the electricity of mutual love and desire does not inspire belief. As the trial court observed: The accused is an unlettered former inmate of the Iwahig Prison and Penal Farms. He is a helper in the processing of copra in the coconut plantation of Bernardo Crisostomo and the complainant in the latter's coconut plantation in barangay Jolo, Roxas, Palawan. He has not appeared to the court to be possessed of the physical attributes and charms which could make women swoon and attracted to him in expectation of ecstasy in romance. It would therefore seem rather farfetched that the complainant would be drawn to him in the manner he had vainly sought to show by evidence for the defense. The complainant, on the other hand, is a 43-year old mother of seven (7), and the lawfully-wedded wife of Bernardo Crisostomo. For 30 years of her married life she had been living with her family in their coconut plantation in barangay Jolo, Roxas, Palawan. On the basis of her age, the number of children she had brought up and is still bringing up; the rural environment which, for all those years, must have shaped her norm of conduct in life, all but make the court skeptical about the trustworthiness of the characterizations by the accused of the morality of complainant. Such characterization run counter to the generally accepted trait of the common Filipino wife and mother. It was because of a letter surreptitiously sent by the complainant to the CAGFU Detachment Commander that the police and her husband subsequently rescued her and her two children from the accused. If it were true that the complainant had indeed chosen to forsake her marriage, her children and the man she had been married to and lived for 30 years, she would not have thwarted the realization of her fantasies by writing that letter thru which, he sought the assistance of the CAGFU in rescuing her and her children from the accused. Furthermore, the testimonies of the accused himself and that of Ruben Ladines with respect to the other incidents of the case could hardly contribute to the probative worth of the evidence for the defense. The accused declared that before they eloped to Puerto Princesa City he had been having sexual conversation with the complainant three times nightly, for eight (8) months. Aside from the improbability of his capacity for sexual performance with such frequency he could not have done so for that length of time as he had been in Jolo, Roxas, Palawan, as helper of the Crisostomos, for only about two months before they supposedly eloped to Puerto Princesa City.

For his part Ruben Ladines declared, among others, that the accused and Gloria Crisostomo and her children stayed in the former's house in Baltan Street for almost two weeks. During that period the couple were said to have comported themselves as husband and wife, and were observed to have been affectionate to one another. The truth of what this witness asserted, though, is belied by the impressive and convincing evidence that the complainant and her children were held hostage in that boarding house 30 for only three (3) days. If it were true that the complainant loved the appellant and had illicit sexual relations with him while her husband was away, then she would not have exerted any effort to contact Sgt. Pilapil in order to be rescued. Neither would she execute an affidavit pointing to the appellant as her rapist nor would she file a complaint for rape and thereafter undergo the expense, trouble, inconvenience, and scandal of a public trial for rape. On the contrary, she would have preserved the illicit union by whatever means to ensure endless gratification of her biological needs. In exposing the evil deeds of the appellant and in facing the ordeal of a public trial, the complainant showed an honest desire to seek justice. The alleged letter of the complainant purportedly sent to the appellant while he was detained in jail does not 32 save the day for him. The trial court "was not impressed by the integrity and trustworthiness" thereof. Neither are we. Our own examination of the signature "GLORIA" appearing therein readily discloses that it is conspicuously different from the signature of complainant Gloria Crisostomo in her complaint and sworn 33 statement. That letter was not even properly identified. Then too, the circumstances under which it was purportedly delivered to the appellant do not at all inspire credence. According to witness Cipriano Sumagaysay, warden of the City Jail of Puerto Princesa City, the letter was delivered by a 14-year old girl some thirty minutes after an old lady, who was claimed by the appellant to be the complainant, had visited the appellant. If indeed the old lady was Gloria Crisostomo, we find neither reason nor rhyme why she would still send a letter to the appellant a few minutes after she left. Moreover, Gloria who was then only 43 years of age cannot be said to be an "old lady." Finally, if Sumagaysay actually saw the "old lady," he could have, while on the witness stand, pointed to the complainant as the "old lady" whom he had seen visiting the appellant. Sumagaysay's testimony was not even corroborated by the visitor's logbook of the city jail. All told, the trial court correctly found the appellant guilty beyond reasonable doubt of the crime of rape on eleven counts and correctly sentenced him to eleven times of reclusion perpetua. The service of the said penalties shall not, however, exceed forty years pursuant to Article 70 of the Revised Penal Code, as amended by C.A. No. 34 217. In view of such convictions, the appellant should, as well be ordered to pay civil indemnity in each case, and not just a single indemnity of P50,000.00 in all the cases. We hold that, consistent with the current policy of the Court, the appellant should be ordered to indemnify the complainant in the sum of P40,000.00 in each of the eleven counts of rape. Whether the trial court correctly acquitted the appellant in Criminal Case No. 9007 is an entirely different matter which is already beyond our reviewing authority, since a judgment of acquittal becomes final immediately after 35 promulgation. WHEREFORE, subject to the above modification on the award of civil indemnity, the appealed decision of Branch 52 of the Regional Trial Court of Palawan (Puerto Princesa City) in Criminal Case No. 9006 is hereby AFFIRMED with costs against appellant Jimmy Conte. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC
31

G.R. No. 93028 July 29, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARTIN SIMON y SUNGA, respondent. The Solicitor General for plaintiff-appellee. Ricardo M.Sampang for accused-appellant.

REGALADO, J.: Herein accused-appellant Martin Simon y Sunga was charged on November 10, 1988 with a violation of Section 4, Article II of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, under an indictment alleging that on or about October 22, 1988, at Barangay Sto. Cristo, Guagua, Pampanga, he sold four tea bags of marijuana to a Narcotics Command (NARCOM) poseur-buyer in consideration of the sum of P40.00, which tea bags, when subjected to laboratory 1 examination, were found positive for marijuana. Eventually arraigned with the assistance of counsel on March 2, 1989, after his rearrest following his escape from Camp 2 Olivas, San Fernando, Pampanga where he was temporarily detained, he pleaded not guilty. He voluntarily waived his 3 right to a pre-trial conference, after which trial on the merits ensued and was duly concluded. I The evidence on record shows that a confidential informant, later identified as a NARCOM operative, informed the police unit at Camp Olivas, San Fernando, Pampanga, of the illegal drug activities of a certain "Alyas Pusa" at Sto. Cristo, Guagua, Pampanga. Capt. Francisco Bustamante, Commanding Officer of the 3rd Narcotics Regional Unit in the camp, then formed a buy-bust team composed of Sgt. Buenaventura Lopez, Pfc. Virgilio Villaruz and Sgt. Domingo Pejoro, all members of the same unit. After securing marked money from Bustamante, the team, together with their informant, proceeded to Sto. Cristo after they had coordinated with the police authorities and barangay officers thereof. When they reached the place, the confidential informer pointed out appellant to Lopez who consequently approached appellant and asked him if he had marijuana. Appellant answered in the affirmative and Lopez offered to buy two tea bags. Appellant then left and, upon returning shortly thereafter, handed to Lopez two marijuana tea bags and Lopez gave him the marked money amounting to P40.00 as payment. Lopez then scratched his head as a pre-arranged signal to his companions who were stationed around ten to fifteen meters away, and the team closed in on them. Thereupon, Villaruz, who was the head of the back-up team, arrested appellant. The latter was then brought by the team to the 3rd Narcotics Regional Unit at Camp Olivas on board a jeep and he was placed under custodial investigation, 4 with Sgt. Pejoro as the investigator. Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal that transpired between Lopez and the appellant. He also averred that he was the one who confiscated the marijuana and took the marked money from 5 appellant. Sgt. Domingo Pejoro, for his part, declared that although he was part of the buy-bust team, he was stationed farthest from the rest of the other members, that is, around two hundred meters away from his companions. He did not actually see the sale that transpired between Lopez and appellant but he saw his teammates accosting appellant after the latter's arrest. He was likewise the one who conducted the custodial investigation of appellant wherein the latter was apprised of his 6 rights to remain silent, to information and to counsel. Appellant, however, orally waived his right to counsel. Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property Seized/Confiscated" which appellant signed, admitting therein the confiscation of four tea bags of marijuana dried leaves in his possession. Pejoro likewise informed the court below that, originally, what he placed on the receipt was that only one marijuana leaf was confiscated in exchange for P20.00. However, Lopez and Villaruz corrected his entry by telling him to put "two", instead of "one" and "40", instead of "20". He agreed to the correction since they were the ones who were personally and directly involved in 7 the purchase of the marijuana and the arrest of appellant. Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at 5:30 p.m. of the day after the latter's apprehension, and the results were practically normal except for his relatively high blood pressure. The doctor also did not find any trace of physical injury on the person of appellant. The next day, he again examined appellant due to the latter's

complaint of gastro-intestinal pain. In the course of the examination, Dr. Calara discovered that appellant has a history of peptic ulcer, which causes him to experience abdominal pain and consequently vomit blood. In the afternoon, appellant came back 8 with the same complaint but, except for the gastro-intestinal pain, his physical condition remained normal. As expected, appellant tendered an antipodal version of the attendant facts, claiming that on the day in question, at around 4:30 p.m., he was watching television with the members of his family in their house when three persons, whom he had never met before suddenly arrived. Relying on the assurance that they would just inquire about something from him at their detachment, appellant boarded a jeep with them. He was told that they were going to Camp Olivas, but he later noticed that they were taking a different route. While on board, he was told that he was a pusher so he attempted to alight from the jeep but he was handcuffed instead. When they finally reached the camp, he was ordered to sign some papers and, when he refused, he was boxed in the stomach eight or nine times by Sgt. Pejoro. He was then compelled to affix his signature and fingerprints on the documents presented to him. He denied knowledge of the P20.00 or the dried marijuana leaves, and insisted that the twenty-peso bill came from the pocket of Pejoro. Moreover, the reason why he vomited blood was because of the blows he suffered at the hands of Pejoro. He admitted having escaped from the NARCOM office but claimed that he did so since he could no longer endure the maltreatment to which he was being subjected. After escaping, he proceeded to the house of his uncle, Bienvenido Sunga, at San Matias, Guagua, reaching the place at around 6:30 or 7:30 p.m. There, he consulted a quack doctor and, later, he was accompanied by his sister to the Romana Pangan District 9 Hospital at Floridablanca, Pampanga where he was confined for three days. Appellant's brother, Norberto Simon, testified to the fact that appellant was hospitalized at Floridablanca, Pampanga after undergoing abdominal pain and vomiting of blood. He likewise confirmed that appellant had been suffering from peptic 10 ulcer even before the latter's arrest. Also, Dr. Evelyn Gomez-Aguas, a resident physician of Romana Pangan District Hospital, declared that she treated appellant for three days due to abdominal pain, but her examination revealed that the cause for this ailment was appellant's peptic ulcer. She did not see any sign of slight or serious external injury, abrasion or 11 contusion on his body. On December 4, 1989, after weighing the evidence presented, the trial court rendered judgment convicting appellant for a violation of Section 4, Article II of Republic Act No. 6425, as amended, and sentencing him to suffer the penalty of life imprisonment, to pay a fine of twenty thousand pesos and to pay the costs. The four tea bags of marijuana dried leaves 12 were likewise ordered confiscated in favor of the Government. Appellant now prays the Court to reverse the aforementioned judgment of the lower court, contending in his assignment of errors that the latter erred in (1) not upholding his defense of "frame-up", (2) not declaring Exhibit "G" (Receipt of Property 13 Seized/Confiscated) inadmissible in evidence, and (3) convicting him of a violation of the Dangerous Drugs Act. At the outset, it should be noted that while the People's real theory and evidence is to the effect the appellant actually sold only two tea bags of marijuana dried leaves, while the other two tea bags were merely confiscated subsequently from his 14 possession, the latter not being in any way connected with the sale, the information alleges that he sold and delivered 15 four tea bags of marijuana dried leaves. In view thereof, the issue presented for resolution in this appeal is merely the act of selling the two tea bags allegedly committed by appellant, and does not include the disparate and distinct issue 16 of illegal possession of the other two tea bags which separate offense is not charged herein. To sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably established. To sell 18 means to give, whether for money or any other material consideration. It must, therefore, be established beyond doubt that appellant actually sold and delivered two tea bags of marijuana dried leaves to Sgt. Lopez, who acted as the poseurbuyer, in exchange for two twenty-peso bills. After an assiduous review and calibration of the evidence adduced by both parties, we are morally certain that appellant was caught in flagrante delicto engaging in the illegal sale of prohibited drugs. The prosecution was able to prove beyond a scintilla of doubt that appellant, on October 22, 1988, did sell two tea bags of marijuana dried leaves to Sgt. Lopez. The latter himself creditably testified as to how the sale took place and his testimony was amply corroborated by his teammates. As between the straightforward, positive and corroborated testimony of Lopez and the bare denials and negative testimony of appellant, the former undeniably deserves greater weight and is more entitled to credence. We are aware that the practice of entrapping drug traffickers through the utilization of poseur-buyers is susceptible to 19 mistake, harassment, extortion and abuse. Nonetheless, such causes for judicial apprehension and doubt do not obtain in the case at bar. Appellant's entrapment and arrest were not effected in a haphazard way, for a surveillance was conducted by the team before the 20 buy-bust operation was effected. No ill motive was or could be attributed to them, aside from the fact that they are
17

presumed to have regularly performed their official duty. Such lack of dubious motive coupled with the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, should 22 prevail over the self-serving and uncorroborated claim of appellant of having been framed, erected as it is upon the mere shifting sands of an alibi. To top it all, appellant was caught red-handed delivering prohibited drugs, and while there was a delimited chance for him to controvert the charge, he does not appear to have plausibly done so. When the drug seized was submitted to the Crime Laboratory Service of the then Philippine Constabulary-Integrated National Police (PC-INP) at Camp Olivas for examination, P/Cpl. Marlyn Salangad, a forensic chemist 23 therein, confirmed in her Technical Report No. NB-448-88 that the contents of the four tea bags confiscated from 24 appellant were positive for and had a total weight of 3.8 grams of marijuana. Thus, the corpus delicti of the crime had 25 been fully proved with certainty and conclusiveness. Appellant would want to make capital of the alleged inconsistencies and improbabilities in the testimonies of the prosecution witnesses. Foremost, according to him, is the matter of who really confiscated the marijuana tea bags from him since, in open court, Pejoro asserted that he had nothing to do with the confiscation of the marijuana, but in the 26 aforementioned "Receipt of Property Seized/Confiscated," he signed it as the one who seized the same. Suffice it to say that whether it was Villaruz or Pejoro who confiscated the marijuana will not really matter since such is not an element of the offense with which appellant is charged. What is unmistakably clear is that the marijuana was confiscated from the possession of appellant. Even, assuming arguendo that the prosecution committed an error on who actually seized the marijuana from appellant, such an error or discrepancy refers only to a minor matter and, as such, neither impairs the essential integrity of the prosecution evidence as a whole nor reflects on the witnesses' 27 honesty. Besides, there was clearly a mere imprecision of language since Pejoro obviously meant that he did not take part in the physical taking of the drug from the person of appellant, but he participated in the legal seizure or confiscation thereof as the investigator of their unit. Next, appellant adduces the argument that the twenty-peso bills allegedly confiscated from him were not powdered for 28 finger-printing purposes contrary to the normal procedure in buy-bust operations. This omission has been satisfactorily explained by Pfc. Virgilio Villaruz in his testimony, as follows: Q: Is it the standard operating procedure of your unit that in conducting such operation you do not anymore provide a powder (sic) on the object so as to determine the thumbmark or identity of the persons taking hold of the object? A: We were not able to put powder on these denominations because we are lacking that kind of material in our office since that item can be purchased only in Manila and only few are producing that, sir. xxx xxx xxx Q: Is it not a fact that your office is within (the) P.C. Crime Laboratory, CIS, as well as the office of NICA? A: Our office is only adjacent to those offices but we cannot make a request for that 29 powder because they, themselves, are using that in their own work, sir. The foregoing explanation aside, we agree that the failure to mark the money bills used for entrapment purposes can under no mode of rationalization be fatal to the case of the prosecution because the Dangerous Drugs Act punishes "any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or 30 transport any prohibited drug, or shall act as a broker in any of such transactions." The dusting of said bills with phosphorescent powder is only an evidentiary technique for identification purposes, which identification can be supplied by other species of evidence. Again, appellant contends that there was neither a relative of his nor any barangay official or civilian to witness the seizure. He decries the lack of pictures taken before, during and after his arrest. Moreover, he was not reported to or 31 booked in the custody of anybarangay official or police authorities. These are absurd disputations. No law or jurisprudence requires that an arrest or seizure, to be valid, be witnessed by a relative, a barangay official or any other civilian, or be accompanied by the taking of pictures. On the contrary, the police enforcers having caught appellant

21

in flagrante delicto, they were not only authorized but were also under the obligation to effect a warrantless arrest and seizure. Likewise, contrary to appellant's contention, there was an arrest report prepared by the police in connection with his 32 apprehension. Said Booking Sheet and Arrest Report states, inter alia, that "suspect was arrested for selling two tea bags of suspected marijuana dried leaves and the confiscation of another two tea bags of suspected marijuana dried leaves." Below these remarks was affixed appellant's signature. In the same manner, the receipt for the seized property, hereinbefore mentioned, was signed by appellant wherein he acknowledged the confiscation of the marked bills from 33 him. However, we find and hereby declare the aforementioned exhibits inadmissible in evidence. Appellant's conformance to these documents are declarations against interest and tacit admissions of the crime charged. They were obtained in violation of his right as a person under custodial investigation for the commission of an offense, there being nothing in the 34 records to show that he was assisted by counsel. Although appellant manifested during the custodial investigation that 35 he waived his right to counsel, the waiver was not made in writing and in the presence of counsel, hence whatever incriminatory admission or confession may be extracted from him, either verbally or in writing, is not allowable in 36 evidence. Besides, the arrest report is self-serving and hearsay and can easily be concocted to implicate a suspect. Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be extricated from his predicament since his criminal participation in the illegal sale of marijuana has been sufficiently proven. The commission of the offense 37 of illegal sale of prohibited drugs requires merely the consummation of the selling transaction which happens the 38 moment the buyer receives the drug from the seller. In the present case, and in light of the preceding discussion, this sale has been ascertained beyond any peradventure of doubt. Appellant then asseverates that it is improbable that he would sell marijuana to a total stranger. We take this opportunity to once again reiterate the doctrinal rule that drug-pushing, when done on a small scale as in this case, belongs to that 40 class of crimes that may be committed at any time and in any place. It is not contrary to human experience for a drug 41 pusher to sell to a total stranger, for what matters is not an existing familiarity between the buyer and seller but their 42 agreement and the acts constituting the sale and delivery of the marijuana leaves. While there may be instances where such sale could be improbable, taking into consideration the diverse circumstances of person, time and place, as well as the incredibility of how the accused supposedly acted on that occasion, we can safely say that those exceptional particulars are not present in this case. Finally, appellant contends that he was subjected to physical and mental torture by the arresting officers which caused 43 him to escape from Camp Olivas the night he was placed under custody. This he asserts to support his explanation as to how his signatures on the documents earlier discussed were supposedly obtained by force and coercion. The doctrine is now too well embedded in our jurisprudence that for evidence to be believed, it must not only proceed from the mouth of a credible witness but must be credible in itself such as the common experience and observation of 44 mankind can approve as probable under the circumstances. The evidence on record is bereft of any support for 45 46 appellant's allegation of maltreatment. Two doctors, one for the prosecution and the other for the defense, testified on the absence of any tell-tale sign or indication of bodily injury, abrasions or contusions on the person of appellant. What is evident is that the cause of his abdominal pain was his peptic ulcer from which he had been suffering even before his 47 48 arrest. His own brother even corroborated that fact, saying that appellant has had a history of bleeding peptic ulcer. Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no reason whatsoever for not divulging the 49 same to his brother who went to see him at the camp after his arrest and during his detention there. Significantly, he also did not even report the matter to the authorities nor file appropriate charges against the alleged malefactors despite 50 the opportunity to do so and with the legal services of counsel being available to him. Such omissions funnel down to the conclusion that appellant's story is a pure fabrication. These, and the events earlier discussed, soundly refute his allegations that his arrest was baseless and premeditated for 51 the NARCOM agents were determined to arrest him at all costs. Premeditated or not, appellant's arrest was only the culmination, the final act needed for his isolation from society and it was providential that it came about after he was caught in the very act of illicit trade of prohibited drugs. Accordingly, this opinion could have concluded on a note of affirmance of the judgment of the trial court. However, Republic Act No. 6425, as amended, was further amended by 52 Republic Act No. 7659 effective December 31, 1993, which supervenience necessarily affects the original disposition of this case and entails additional questions of law which we shall now resolve. II
39

The provisions of the aforesaid amendatory law, pertinent to the adjudication of the case at bar, are to this effect: Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, are hereby amended to read as follows: xxx xxx xxx Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. xxx xxx xxx Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, is hereby amended to read as follows: Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instrument of the Crime. The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities: xxx xxx xxx 5. 750 grams or more of indian hemp or marijuana xxx xxx xxx Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. 1. Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana with a total weight of only 3.8 grams and, in fact, stands to be convicted for the sale of only two of those tea bags, the initial inquiry would be whether the patently favorable provisions of Republic Act No. 7659 should be given retroactive effect to entitle him to the lesser penalty provided thereunder, pursuant to Article 22 of the Revised Penal Code. Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory and in substitution of the 53 previous Articles 190 to 194 of the Revised Penal Code, it has long been settled that by force of Article 10 of said Code the beneficient provisions of Article 22 thereof applies to and shall be given retrospective effect to crimes punished by 54 special laws. The execution in said article would not apply to those convicted of drug offenses since habitual delinquency refers to convictions for the third time or more of the crimes of serious or less serious physical injuries, robo, 55 hurto, estafa or falsification. Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then been involved nor invoked in the present case, a corollary question would be whether this court, at the present stage, can sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on appellant. That issue has likewise been resolved in the cited case of People vs. Moran, et al., ante., thus: . . . . The plain precept contained in article 22 of the Penal Code, declaring the retroactivity of penal laws in so far as they are favorable to persons accused of a felony, would be useless and nugatory if the courts of justice were not under obligation to fulfill such duty, irrespective of whether or not the accused has applied for it, just as would also all provisions relating to the prescription of the crime and the penalty. If the judgment which could be affected and modified by the reduced penalties provided in Republic Act No. 7659 has already become final and executory or the accused is serving sentence thereunder, then practice, procedure and

pragmatic considerations would warrant and necessitate the matter being brought to the judicial authorities for relief under 56 a writ of habeas corpus. 2. Probably through oversight, an error on the matter of imposable penalties appears to have been committed in the drafting of the aforesaid law; thereby calling for and necessitating judicial reconciliation and craftsmanship. As applied to the present case, Section 4 of Republic Act No. 6425, as now further amended, imposes the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00 upon any person who shall unlawfully sell, administer, deliver, give away, distribute, dispatch in transit or transport any prohibited drug. That penalty, according to the amendment to Section 20 of the law, shall be applied if what is involved is 750 grams or more of indian hemp or marijuana; otherwise, if the quantity involved is less, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. In other words, there is here an overlapping error in the provisions on the penalty of reclusion perpetua by reason of its dual imposition, that is, as the maximum of the penalty where the marijuana is less than 750 grams, and also as the minimum of the penalty where the marijuana involved is 750 grams or more. The same error has been committed with respect to the other prohibited and regulated drugs provided in said Section 20. To harmonize such conflicting provisions 57 in order to give effect to the whole law, we hereby hold that the penalty to be imposed where the quantity of the drugs involved is less than the quantities stated in the first paragraph shall range from prision correccional to reclusion temporal, and not reclusion perpetua. This is also concordant with the fundamental rule in criminal law that all doubts should be construed in a manner favorable to the accused. 3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence covered by the imposable range of penalties under the second paragraph of Section 20, as now modified, the law provides that the penalty shall be taken from said range "depending upon the quantity" of the drug involved in the case. The penalty in said second paragraph constitutes a complex one composed of three distinct penalties, that is, prision correccional, prision mayor, and reclusion temporal. In such a situation, the Code provides that each one shall form a period, with the lightest of them being the 58 minimum, the next as the medium, and the most severe as the maximum period. Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating circumstances determine which period of such complex penalty shall be imposed on the accused. The peculiarity of the second paragraph of Section 20, however, is its specific mandate, above quoted, that the penalty shall instead depend upon the quantity of the drug subject of the criminal 59 transaction. Accordingly, by way of exception to Article 77 of the Code and to subserve the purpose of Section 20 of Republic Act No. 7659, each of the aforesaid component penalties shall be considered as a principal imposable penalty depending on the quantity of the drug involved. Thereby, the modifying circumstances will not altogether be disregarded. Since each component penalty of the total complex penalty will have to be imposed separately as determined by the quantity of the drug involved, then the modifying circumstances can be used to fix the proper period of that component penalty, as shall hereafter be explained. It would, therefore, be in line with the provisions of Section 20 in the context of our aforesaid disposition thereon that, unless there are compelling reasons for a deviation, the quantities of the drugs enumerated in its second paragraph be divided into three, with the resulting quotient, and double or treble the same, to be respectively the bases for allocating the penalty proportionately among the three aforesaid periods according to the severity thereof. Thus, if the marijuana involved is below 250 grams, the penalty to be imposed shall be prision correccional; from 250 to 499 grams, prision mayor; and 500 to 749 grams, reclusion temporal. Parenthetically, fine is imposed as a conjunctive penalty only if the penalty is reclusion 60 perpetua to death. Now, considering the minimal quantity of the marijuana subject of the case at bar, the penalty of prision correccional is consequently indicated but, again, another preliminary and cognate issue has first to be resolved. 4. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a divisible penalty, it consists of three periods as provided in the text of and illustrated in the table provided by Article 76 of the Code. The question is whether or not in determining the penalty to be imposed, which is here to be taken from the penalty of prision correccional, the presence or absence of mitigating, aggravating or other circumstances modifying criminal liability should be taken into account. We are not unaware of cases in the past wherein it was held that, in imposing the penalty for offenses under special laws, the rules on mitigating or aggravating circumstances under the Revised Penal Code cannot and should not be applied. A

review of such doctrines as applied in said cases, however, reveals that the reason therefor was because the special laws involved provided their own specific penalties for the offenses punished thereunder, and which penalties were not taken from or with reference to those in the Revised Penal Code. Since the penalties then provided by the special laws concerned did not provide for the minimum, medium or maximum periods, it would consequently be impossible to consider the aforestated modifying circumstances whose main function is to determine the period of the penalty in accordance with the rules in Article 64 of the Code. This is also the rationale for the holding in previous cases that the provisions of the Code on the graduation of penalties by degrees could not be given supplementary application to special laws, since the penalties in the latter were not components of or contemplated in the scale of penalties provided by Article 71 of the former. The suppletory effect of the Revised Penal Code to special laws, as provided in Article 10 of the former, cannot be invoked where there is a legal or physical impossibility of, or a prohibition in the special law against, such supplementary application. The situation, however, is different where although the offense is defined in and ostensibly punished under a special law, the penalty therefor is actually taken from the Revised Penal Code in its technical nomenclature and, necessarily, with its duration, correlation and legal effects under the system of penalties native to said Code. When, as in this case, the law involved speaks ofprision correccional, in its technical sense under the Code, it would consequently be both illogical and absurd to posit otherwise. More on this later. For the nonce, we hold that in the instant case the imposable penalty under Republic Act No. 6425, as amended by Republic Act No. 7659, is prision correccional, to be taken from the medium period thereof pursuant to Article 64 of the Revised Penal Code, there being no attendant mitigating or aggravating circumstance. 5. At this juncture, a clarificatory discussion of the developmental changes in the penalties imposed for offenses under special laws would be necessary. Originally, those special laws, just as was the conventional practice in the United States but differently from the penalties provided in our Revised Penal Code and its Spanish origins, provided for one specific penalty or a range of penalties with definitive durations, such as imprisonment for one year or for one to five years but without division into periods or any technical statutory cognomen. This is the special law contemplated in and referred to at the time laws like the 61 Indeterminate Sentence Law were passed during the American regime. Subsequently, a different pattern emerged whereby a special law would direct that an offense thereunder shall be punished under the Revised Penal Code and in the same manner provided therein. Inceptively, for instance, 62 Commonwealth Act No. 303 penalizing non-payment of salaries and wages with the periodicity prescribed therein, provided: Sec. 4. Failure of the employer to pay his employee or laborer as required by section one of this Act, shall prima facie be considered a fraud committed by such employer against his employee or laborer by means of false pretenses similar to those mentioned in article three hundred and fifteen, paragraph four, sub-paragraph two (a) of the Revised Penal Code and shall be punished in the same manner as therein 63 provided. Thereafter, special laws were enacted where the offenses defined therein were specifically punished by the penalties as technically named and understood in the Revised Penal Code. These are exemplified by Republic Act No. 1700 (AntiSubversion Act) where the penalties ranged from arresto mayor to 64 death; Presidential Decree No. 1612 (Anti-Fencing Decree) where the penalties run from arresto mayor to prision mayor; and Presidential Decree No. 1866 (illegal possession and other prohibited acts involving firearms), the penalties wherefor may involve prision mayor, reclusion temporal, reclusion perpetua or death. Another variant worth mentioning is Republic Act No. 6539 (Anti-Carnapping Act of 1972) where the penalty is imprisonment for not less than 14 years and 8 months and not more than 17 years and 4 months, when committed without violence or intimidation of persons or force upon things; not less than 17 years and 4 months and not more than 30 years, when committed with violence against or intimidation of any person, or force upon things; and life imprisonment to death, when the owner, driver or occupant of the carnapped vehicle is killed. With respect to the first example, where the penalties under the special law are different from and are without reference or relation to those under the Revised Penal Code, there can be no suppletory effect of the rules for the application of

penalties under said Code or by other relevant statutory provisions based on or applicable only to said rules for felonies under the Code. In this type of special law, the legislative intendment is clear. The same exclusionary rule would apply to the last given example, Republic Act No. 6539. While it is true that the penalty of 14 years and 8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period of reclusion temporal, such technical term under the Revised Penal Code is not given to that penalty for carnapping. Besides, the other penalties for carnapping attended by the qualifying circumstances stated in the law do not correspond to those in the Code. The rules on penalties in the Code, therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of the same formulation. On the other hand, the rules for the application of penalties and the correlative effects thereof under the Revised Penal Code, as well as other statutory enactments founded upon and applicable to such provisions of the Code, have suppletory effect to the penalties under the former Republic Act No. 1700 and those now provided under Presidential Decrees Nos. 1612 and 1866. While these are special laws, the fact that the penalties for offenses thereunder are those provided for in the Revised Penal code lucidly reveals the statutory intent to give the related provisions on penalties for felonies under the Code the corresponding application to said special laws, in the absence of any express or implicit proscription in these special laws. To hold otherwise would be to sanction an indefensible judicial truncation of an integrated system of penalties under the Code and its allied legislation, which could never have been the intendment of Congress. In People vs. Macatanda, a prosecution under a special law (Presidential Decree No. 533, otherwise known as the AntiCattle Rustling Law of 1974), it was contended by the prosecution that Article 64, paragraph 5, of the Revised Penal Code should not apply to said special law. We said therein that We do not agree with the Solicitor General that P.D. 533 is a special law entirely distinct from and unrelated to the Revised Penal Code. From the nature of the penalty imposed which is in terms of the classification and duration of penalties as prescribed in the Revised Penal Code, which is not for penalties as are ordinarily imposed in special laws, the intent seems clear that P.D. 533 shall be deemed as an amendment of the Revised Penal Code, with respect to the offense of theft of large cattle (Art. 310) or otherwise to be subject to applicable provisions thereof such as Article 104 of the Revised Penal Code . . . . Article 64 of the same Code should, likewise, be applicable, . . . . (Emphasis supplied.) More particularly with regard to the suppletory effect of the rules on penalties in the Revised Penal Code to Republic Act No. 6425, in this case involving Article 63(2) of the Code, we have this more recent pronouncement: . . . Pointing out that as provided in Article 10 the provisions of the Revised Penal Code shall be "supplementary" to special laws, this Court held that where the special law expressly grants to the court discretion in applying the penalty prescribed for the offense, there is no room for the application of the provisions of the Code . . . . The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no explicit grant of discretion to the Court in the application of the penalty prescribed by the law. In such case, the court must be guided by the rules prescribed by the Revised Penal Code concerning the application of penalties which distill the "deep legal thought and centuries of experience in the administration of criminal laws." (Emphasis 66 ours.) Under the aforestated considerations, in the case of the Dangerous Drugs Act as now amended by Republic Act No. 7659 by the incorporation and prescription therein of the technical penalties defined in and constituting integral parts of the three scales of penalties in the Code, 67 with much more reason should the provisions of said Code on the appreciation and effects of all attendant modifying circumstances apply in fixing the penalty. Likewise, the different kinds or classifications of penalties and the rules for graduating such penalties by degrees should have supplementary effect on Republic Act No. 6425, except if they would result in absurdities as will now be explained. While not squarely in issue in this case, but because this aspect is involved in the discussion on the role of modifying circumstances, we have perforce to lay down the caveat that mitigating circumstances should be considered and applied only if they affect the periods and the degrees of the penalties within rational limits.
65

Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree of the penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of penalties in Article 71, are the stage of execution of the crime and the nature of the participation of the accused. However, under paragraph 5 of Article 64, when there are two or more ordinary mitigating circumstances and no aggravating circumstance, the penalty shall be reduced by one degree. Also, the presence of privileged mitigating circumstances, as provided in Articles 67 and 68, can reduce the penalty by one or two degrees, or even more. These provisions of Articles 64(5), 67 and 68 should not apply in toto in the determination of the proper penalty under the aforestated second paragraph of section 20 of Republic Act No. 6425, to avoid anomalous results which could not have been contemplated by the legislature. Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not specially provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy therewith. Hence, when the penalty prescribed for the crime consists of one or two penalties to be imposed in their full extent, the penalty next lower in degree shall likewise consist of as many penalties which follow the former in the scale in Article 71. If this rule were to be applied, and since the complex penalty in this case consists of three discrete penalties in their full extent, that is, prision correccional, prision mayor and reclusion temporal, then one degree lower would be arresto menor, destierro and arresto mayor. There could, however, be no further reduction by still one or two degrees, which must each likewise consist of three penalties, since only the penalties of fine and public censure remain in the scale. The Court rules, therefore, that while modifying circumstances may be appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the three component penalties in the second paragraph of Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty should in any event be prision correccional in order not to depreciate the seriousness of drug offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to be adopted so that the law may continue to have efficacy rather than fail. A perfect judicial solution cannot be forged from an imperfect law, which impasse should now be the concern of and is accordingly addressed to Congress. 6. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now before us. Apparently it does, since drug offenses are not included in nor has appellant committed any act which would put him within the exceptions to said law and the penalty to be imposed does not involve reclusion perpetua or death, provided, of course, 68 that the penalty as ultimately resolved will exceed one year of imprisonment. The more important aspect, however, is how the indeterminate sentence shall be ascertained. It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the Revised Penal Code, states that "if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." We hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty imposed was not taken from and is without reference to the Revised Penal Code, as discussed in the preceding illustrations, such that it may be said that the "offense is punished" under that law. There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses under special laws was necessary because of the nature of the former type of penalties under said laws which were not included or contemplated in the scale of penalties in Article 71 of the Code, hence there could be no minimum "within the range of the penalty next lower to that prescribed by the Code for the offense," as is the rule for felonies therein. In the illustrative examples of penalties in special laws hereinbefore provided, this rule applied, and would still apply, only to the first and last examples. Furthermore, considering the vintage of Act No. 4103 as earlier noted, this holding is but an application and is justified 69 under the rule of contemporanea expositio. We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms, hence with their technical signification and effects. In fact, for purposes of determining the maximum of said sentence, we have applied the provisions of the amended Section 20 of said law to arrive at prision correccional and Article 64 of the Code to impose the same in the medium period. Such offense, although provided for in a special law, is now in effect punished by and under the Revised Penal Code. Correlatively, to determine the minimum, we must apply the first part of the aforesaid Section 1 which directs that "in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of said Code, and the minimum which shall be within the range of thepenalty next lower to that prescribed by the Code for the offense." (Emphasis ours.)

A divergent pedantic application would not only be out of context but also an admission of the hornbook maxim that qui haeret inlitera haeret in cortice. Fortunately, this Court has never gone only skin-deep in its construction of Act. No. 4103 by a mere literal appreciation of its provisions. Thus, with regard to the phrase in Section 2 thereof excepting from its coverage "persons convicted of offenses punished with death penalty or life imprisonment," we have held that what is 70 considered is the penalty actually imposedand not the penalty imposable under the law, and that reclusion perpetua is likewise embraced therein although what the law states is "life imprisonment". What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence of the principles of literal interpretation, which have been rationalized by comparative decisions of this Court; of historical interpretation, as explicated by the antecedents of the law and related contemporaneous legislation; and of structural interpretation, considering the interrelation of the penalties in the Code as supplemented by Act No. 4103 in an integrated scheme of penalties, it follows that the minimum of the indeterminate sentence in this case shall be the penalty next lower to that prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity in Section 1 of Act No. 4103 in such 71 a way as to harmonize laws with laws, which is the best mode of interpretation. The indeterminate Sentence Law is a legal and social measure of compassion, and should be liberally interpreted in favor 72 of the accused. The "minimum" sentence is merely a period at which, and not before, as a matter of grace and not of 73 right, the prisoner may merely be allowed to serve the balance of his sentence outside of his confinement. It does not constitute the totality of the penalty since thereafter he still has to continue serving the rest of his sentence under set conditions. That minimum is only the period when the convict's eligibility for parole may be considered. In fact, his release on parole may readily be denied if he is found unworthy thereof, or his reincarceration may be ordered on legal grounds, even if he has served the minimum sentence. It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the benefit of a minimum sentence within the range of arresto mayor, the penalty next lower to prision correccional which is the maximum range we have fixed through the application of Articles 61 and 71 of the Revised Penal Code. For, with fealty to the law, the court may set the minimum sentence at 6 months of arresto mayor, instead of 6 months and 1 day of prision correccional. The difference, which could thereby even involve only one day, is hardly worth the creation of an overrated tempest in the judicial teapot. ACCORDINGLY, under all the foregoing premises, the judgment of conviction rendered by the court a quo against accused-appellant Martin Simon y Sunga is AFFIRMED, but with the MODIFICATION that he should be, as he hereby is, sentenced to serve an indeterminate penalty of six (6) months of arresto mayor, as the minimum, to six (6) years of prision correccional, as the maximum thereof. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 175319 January 15, 2010

PEOPLE OF THE PHILIPPINES, Appellee vs. JOSELITO NOQUE y GOMEZ, Appellant. DECISION DEL CASTILLO, J.: The illicit trade and use of dangerous drugs destroys the moral fiber of society. It has eroded and disrupted family life, increased the transmission of sexually related diseases, resulted in permanent and fatal damage to the physical and mental health, and wasted dreams, opportunities and hopes for a better future. As an ardent sentinel of the peoples rights 1 and welfare, this Court shall not hesitate to dispense justice on people who engage in such an activity. The commitment to this end is exemplified in this appeal.

The Charges The appeal stems from two Informations filed before the Regional Trial Court (RTC) of Manila, which were subsequently docketed as Criminal Case Nos. 01-189458 and 01-189459, and raffled to Branch 35 of said court. The Information in Criminal Case No. 01-189458 charging appellant Joselito Noque y Gomez with violation of Section 15, Article III in relation to Section 21 (e), (f), (m), (o), Article 1 of Republic Act (RA) No. 6425, as amended by Presidential Decree (PD) No. 1683 and as further amended by RA 7659 reads: That on or about January 30, 2001, in the City of Manila, Philippines, the said accused, not having been authorized by law to sell, dispense, deliver, transport or distribute any regulated drug, did then and there willfully, unlawfully and knowingly sell or offer for sale, dispense, deliver, transport or distribute 2.779 (two point seven seven nine grams) and 2.729 (two point seven two nine grams) of white crystalline substance known as shabu containing methamphetamine hydrochloride, which is a regulated drug. Contrary to law.
2

On the other hand, the Information in Criminal Case No. 01-189459 contains the following accusatory allegations for violation of Section 16, Article III in relation to Section 2 (e-2) Article I of RA 6425 as amended by Batas Pambansa (BP) Bilang 179 and as further amended by RA 7659: That on or about January 30, 2001, in the City of Manila, Philippines, the said accused without being authorized by law to possess or use any regulated drug, did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control (six seven nine point two one five grams) 679.215 grams of white crystalline substance known as shabu containing methamphetamine hydrochloride, a regulated drug, without the corresponding license or prescription thereof. Contrary to law.
3

During his arraignment on July 23, 2001, appellant pleaded not guilty to both charges. Pre-trial conference was conducted and upon its termination a joint trial ensued. Version of the Prosecution At 9 oclock in the evening of January 30, 2001, a confidential informant of Senior Police Officer 4 (SPO4) Norberto Murillo, went to Police Station No. 4 of the Western Police District (WPD) to tip off on the drug trafficking activities of the appellant in Malate, Manila. SP04 Murillo immediately directed Police Officers (POs) Christian Balais (Balais) and Dionisio Borca (Borca) to conduct surveillance in the area mentioned by the informant. The surveillance confirmed appellants illegal operations being conducted at No. 630 San Andres Street, Malate, Manila. Thereafter, SP04 Murillo formed and led a buy-bust team with POs Balais, Borca, Ramon Pablo, Roberto Godoy, Edgardo Book, Bernard Mino, Rodante Bollotano, and Melchor Barolo as members. PO1 Balais was designated as poseur-buyer and was provided with 10 pieces of 100 peso bills as buy-bust money. The buy-bust team, together with the informant, proceeded to the aforementioned address and upon arrival thereat, positioned themselves outside the appellants house. PO1 Balais and the informant thereafter called out the appellant, who welcomed the two and brought them to his bedroom. The informant asked the appellant if he had P1,000.00 worth of methamphetamine hydrochloride or "shabu" then pointed to PO1 Balais as the actual buyer. When PO1 Balais handed the marked money to the appellant, the latter brought out from under a table a "pranela" bag from which he took two plastic sachets containing white crystalline granules suspected to be shabu. The informant slipped out of the house as the pre-arranged signal to the buy-bust team that the sale had been consummated. After seeing the informant leave, the team entered appellants house. SPO4 Murillo frisked the appellant and recovered the buy-bust money. He also confiscated the "pranela" bag that contained a large quantity of crystalline granules suspected to be shabu. The two persons who were in a "pot session" with the appellant at the time of the raid were likewise arrested and brought to the WPD Station No. 9 for investigation. The seized articles were taken to the police station and submitted to the crime laboratory for examination to determine the chemical composition of the crystalline substance. Police Inspector (P/Insp.) and Forensic Chemical Officer Miladenia Tapan examined one self-sealing transparent plastic bag with markings "JNG" containing 679.215 grams of white

crystalline granules; and two heat-sealed transparent plastic sachets each containing white crystalline substance, premarked "JNG-1" weighing 2.779 grams and "JNG-2"weighing 2.729 grams. The qualitative examinations yielded positive results for ephedrine, a regulated drug. Version of the Defense The appellant gave a different version of the events that transpired. He testified that he was in his house in the evening of January 23, 2001 when six policemen led by SPO4 Murillo entered and arrested an unidentified occupant of the room next to his. The arresting team returned after 30 minutes and apprehended another person. When they came back the third time, they took him with them to WPD Station No. 9 where his wallet, belt and shoes were taken. While under detention, SPO4 Murillo ordered him to admit selling illegal substances but he refused. He was released on January 26, 2001 only to be rearrested at around 9 oclock in the evening on January 30, 2001 when SPO4 Murillo and his team returned to his house and took him at gunpoint to the police station where he was detained for 24 hours. Police officers presented him later to Mayor Lito Atienza and General Avelino Razon for a press conference. Ruling of the Regional Trial Court In its Decision dated February 28, 2003, the trial court convicted the appellant of both charges. It declared that the evidence adduced by the prosecution established with moral certainty his guilt for committing the crimes in the manner narrated in the Informations. The testimonies of police officers that they caught appellant in flagrante delicto of selling and possessing a dangerous drug are clear and positive evidence that deserve more evidentiary weight than appellants defenses of denial and frame-up, which are mere negative and self-serving assertions unsubstantiated by clear and convincing evidence. The trial court also ruled that it cannot deviate from the presumption of regularity in the performance of duty on the part of the police officers since no ill motives were ascribed to them that would entice them to testify falsely against the appellant. The trial court also held that while the Informations alleged methamphetamine hydrochloride as the drug seized from the appellant, the drug actually confiscated which was ephedrine, is a precursor of methamphetamine, i.e.,methamphetamine is an element of, and is present in ephedrine. Ephedrine is the raw material while methamphetamine is its refined product. Both drugs have the same chemical formula except for the presence of a single atom of oxygen which when removed by means of chemical reaction changes ephedrine to methamphetamine. Thus, the trial court ruled that the appellant can be convicted of the offenses charged, which are included in the crimes proved. The trial court further held that under Section 4, Rule 120 of the Rules of Court, a variance in the offense charged in the complaint or information and that proved shall result in the conviction for the offense charged which is included in the offense proved. In determining the quantity of methamphetamine hydrochloride upon which the proper imposable penalty on the appellant must be based, the trial court gave credence to the testimony of prosecution witness, P/Insp. Tapan that a gram of 5 ephedrine would produce gram of methamphetamine when refined. Conformably, the methamphetamine contents of 5.508 grams of ephedrine in Criminal Case No. 01-189458 would be 2.754 grams. Moreover, the methamphetamine contents of 679.215 grams of ephedrine in Criminal Case No. 01-189459 would be 339.6075 grams. The dispositive portion of the Decision of the trial court reads: WHEREFORE, judgment is rendered: In Criminal Case No. 01-189458, pronouncing accused JOSELITO NOQUE y GOMEZ guilty beyond reasonable doubt of selling a net quantity of 2.754 grams of methamphetamine hydrochloride without authority of law, penalized under Section 15 in relation to Section 20 of Republic Act No. 6425, as amended, and sentencing the said accused to the indeterminate penalty ranging from four (4) years and two (2) months of prision correccional, as minimum, to six (6) years and one (1) day of prision mayor, as maximum, and to pay the costs. In Criminal Case No. 01-189459, pronouncing the same accused JOSELITO NOQUE y GOMEZ guilty beyond reasonable doubt of possession of a net quantity of 339.6075 grams of methamphetamine hydrochloride without license or prescription, penalized under Section 16 in relation to Section 20 of Republic Act No. 6425, as amended, and sentencing the said accused to the penalty of reclusion perpetua and to pay a fine of P5,000,000.00, plus the costs. In the service of his sentences, the full time during which the accused had been under preventive imprisonment should be credited in his favor provided that he had agreed voluntarily in writing to abide with the same disciplinary rules imposed on
6 4

convicted prisoner. Otherwise, he should be credited with four-fifths (4/5) only of the time he had been under preventive imprisonment. Exhibits "B" and "C" are ordered confiscated and forfeited in favor of the government. Within ten (10) days following the promulgation of this judgment, the Branch Clerk of this Court, is ordered to turn over, under proper receipt, the regulated drug involved in these cases to the Philippine Drug Enforcement Agency (PDEA) for proper disposal. SO ORDERED.
7

Ruling of the Court of Appeals The CA affirmed the trial courts judgment. It held that the designations in the Informations are for violations of Sections 15 and 16 of RA 6425 that define and penalize the crimes of illegal sale and illegal possession of regulated drugs. While the allegations in the Informations refer to unauthorized sale and possession of "shabu" or methamphetamine hydrochloride, and not of ephedrine, the allegations are however immediately followed by the qualifying phrase "which is a regulated drug." Stated differently, the CA held that the designations and allegations in the informations are for the crimes of illegal sale and illegal possession of regulated drugs. There being no dispute that ephedrine is a regulated drug, pursuant to Board Resolution No. 2, Series of 1988, issued by the Dangerous Drugs Board on March 17, 1988, the CA ruled that the appellant is deemed to have been sufficiently informed of the nature of the crime with which he is accused. The fact that the chemical structures of ephedrine and methamphetamine are the same except for the presence of an atom of oxygen 8 in the former strengthens this ruling. However, the CA modified the penalty imposed by the trial court in Criminal Case No. 01-189458. It held that in the absence of any mitigating or aggravating circumstances in this case, the penalty should be imposed in its medium period, ranging from six months of arresto mayor, as minimum, to two years, four months and one day of prision correccional, as maximum. Thus, the dispositive portion of the Decision of the CA reads: WHEREFORE, premises considered, the February 28, 2003 Decision of the Regional Trial Court of Manila, Branch 35, is hereby AFFIRMED with the MODIFICATION that in Criminal Case No. 01-189458, accused-appellant is hereby sentenced to suffer the indeterminate penalty of six (6) months of arresto mayor, as minimum, to two (2) years, four (4) months and one (1) day of prision correccional, as maximum. SO ORDERED.
9

Our Ruling The appeal is bereft of merit. The prosecutions evidence satisfactorily proved that appellant is guilty of illegal sale of a dangerous drug. The prosecution successfully proved that appellant violated Section 15, Article III of RA 6425. The prosecutions evidence established the concurrence of the elements of an illegal sale of a dangerous drug, to wit: (1) the identity of the buyer and 10 seller, object, and consideration; and (2) the delivery of the thing sold and the payment therefor. In the instant case, the police officers conducted a buy-bust operation after receiving confirmed surveillance reports that the appellant was engaged in the illicit sale of dangerous drugs at No. 630 San Andres Street, Malate, Manila. PO1 Balais, the designated poseur-buyer of the buy-bust team, personally identified the appellant as the person who volunteered to sell to him P1,000.00 worth of white crystalline substance alleged to be shabu. The police officer received this illegal merchandise after giving the appellant the marked money as payment. Undoubtedly, the appellant is guilty of selling a dangerous drug. The prosecutions evidence satisfactorily proved that appellant illegally possessed a dangerous drug. The prosecution was also successful in proving that appellant violated Section 16, Article III of RA 6425. It adduced evidence that established the presence of the elements of illegal possession of a dangerous drug. It showed that (1) the appellant was in possession of an item or an object identified to be a prohibited or regulated drug, (2) such possession is 11 not authorized by law, and (3) the appellant was freely and consciously aware of being in possession of the drug.

The police buy-bust team apprehended the appellant for the sale of a white crystalline substance then proceeded to search the premises. They found a large quantity of the same substance inside the bag that contained the two sachets of the regulated drug sold to PO1 Balais. Appellant did not offer any explanation why he is in custody of the said substance. Neither did the appellant present any authorization to possess the same. "Mere possession of a regulated drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused absent a satisfactory explanation of such possession the onus probandi is shifted to the accused, to explain the absence of 12 knowledge or animus possidendi." With the burden of evidence shifted to the appellant, it was his duty to explain his innocence on the regulated drug seized from his person. However, as already mentioned, he did not offer any excuse or explanation regarding his possession thereof. There is no evidence showing that the police officers are actuated by ill motives. Likewise to be considered against the appellant is his failure to present evidence imputing evil motive on the part of the police officers who participated in the entrapment operation to testify falsely against him. "Where there is no evidence that the principal witness of the prosecution was actuated by ill or devious motive, the testimony is entitled to full faith and 13 credit." Appellants right to be informed of the nature and cause of the accusations was not violated. The only issue raised by the appellant in this petition is that his conviction for the sale and possession of shabu, despite the fact that what was established and proven was the sale and possession of ephedrine, violated his constitutional right to be informed of the nature and cause of the accusations against him since the charges in the Informations are for selling and possessing methamphetamine hydrochloride. We agree with the findings of the CA and the trial court, as well as the testimony of the forensic chemical officer, that the drug known as ephedrine has a central nervous stimulating effect similar to that of methamphetamine. In fact, ephedrine is an important precursor used in the clandestine synthesis of methamphetamine, which in crystallized form is methamphetamine hydrochloride. Thus, on March 17, 1988, pursuant to Section 20(8) of RA 6425, as amended, the Dangerous Drugs Board in its Board Regulation No. 2, S. 1988, classified as regulated drug all raw materials of ephedrine, as well as preparations containing the said drug. The chemical formula of ephedrine is C10 H15 NO, whereas that of methamphetamine is C10 H15 N. The only difference between ephedrine and methamphetamine is the presence of a single atom of oxygen in the former. The removal of the oxygen in ephedrine will produce methamphetamine. With ephedrine containing fifty percent (50%) of methamphetamine hydrochloride if the oxygen content in the former is removed, the nearly 680 grams of ephedrine seized from the appellant contains about 340 grams of methamphetamine hydrochloride. Moreover, as correctly observed by CA, the offenses designated in the Informations are for violations of Sections 15 and 16 of RA 6425, which define and penalize the crimes of illegal sale and possession of regulated drugs. The allegations in the Informations for the unauthorized sale and possession of "shabu" or methamphetamine hydrochloride are immediately followed by the qualifying phrase "which is a regulated drug". Thus, it is clear that the designations and allegations in the Informations are for the crimes of illegal sale and illegal possession of regulated drugs. Ephedrine has been classified as a regulated drug by the Dangerous Drugs Board in Board Resolution No. 2, Series of 1988. The CA correctly ruled that Sections 4 and 5, Rule 120 of the Rules of Court, can be applied by analogy in convicting the appellant of the offenses charged, which are included in the crimes proved. Under these provisions, 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. At any rate, a minor variance between the information and the evidence does not alter the nature of the offense, nor does it determine or qualify the crime or penalty, so that even if a discrepancy exists, this cannot be 15 pleaded as a ground for acquittal. In other words, his 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 16 but also of lesser crimes or offenses included therein. The Penalties In Criminal Case No. 01-189458, appellant is found guilty of violation of Section 15, Article III of RA 6425, as amended. 17 We explained in People v. Isnani that: Under Section 15, Article III in relation to the second paragraph of Sections 20 and 21 of Article IV of Republic Act No. 6425, as amended by Section 17 of R.A. No. 7659, the imposable penalty of illegal sale of a regulated drug (shabu), less
14

than 200 grams, as in this case, is prision correccional to reclusion perpetua. Based on the quantity of the regulated drug subject of the offense, the imposable penalty shall be as follows: QUANTITY Less than one (1) gram to 49.25 grams 49.26 grams to 98.50 grams IMPOSABLE PENALTY prision correccional prision mayor

98.51 grams to 147.75 grams reclusion temporal 147.76 grams to 199 grams reclusion perpetua

The quantity of shabu involved is 0.060 grams. Pursuant to the second paragraph of Sections 20 and 21 of Article IV of R.A. No. 6425, as amended by Section 17 of R.A. No. 7659 (for unauthorized sale of less than 200 grams of shabu) and considering our ruling in the above case, the imposable penalty is prision correccional.1avvphi1 Applying the Indeterminate Sentence Law, and there being no aggravating or mitigating circumstance that attended the commission of the crime, the maximum period is prision correccional in its medium period which has a duration of 2 years, 4 months and 1 day to 4 years and 2 months. The minimum period is within the range of the penalty next lower in degree which is arresto mayor, the duration of which is 1 month and 1 day to 6 months. Hence, appellant should be sentenced to 6 months of arresto mayor, as minimum, to 2 years, 4 months and 1 days of prision correctional in its medium period, as maximum. In Criminal Case No. 01-189458, the quantity of the prohibited drug seized from appellant is 2.754 grams. Accordingly, the Court of Appeals correctly modified the penalty imposed by the trial court to six months of arresto mayor, as minimum, to two years, four months and one day of prision correccional, as maximum. As regards Criminal Case No. 01-189459, Section 16, Article III of RA 6425, as amended, provides for the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10 million upon any person who shall possess or use any regulated drug without the corresponding license or prescription. Section 20 of RA 6425, as amended, further provides that the penalty imposed for the offense under Section 16, Article III shall be applied if the dangerous drug involved is 200 grams or more of shabu. In this case, the appellant was found in illegal possession of 339.6075 grams of prohibited drug. Therefore, both the trial court and the Court of Appeals correctly imposed the penalty of reclusion perpetua and a fine of P500,000.00 to appellant. WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00684 is AFFIRMED. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 140385 April 14, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. MARIO MARCELO y DELA CRUZ, appellant.

DECISION

CALLEJO, SR., J.: Before us is an appeal from the Decision of the Regional Trial Court of Macabebe, Pampanga, Branch 55, in Criminal Case No. 98-2107-M, finding appellant Mario Marcelo guilty beyond reasonable doubt of murder under Article 248 of the Revised Penal Code, sentencing him to suffer the penalty of reclusion perpetua and ordering him to indemnify the heirs of 2 the victim Rodelio Manalang, the amount of P50,000 and to pay P80,000 as actual damages and the costs of suit. On August 11, 1998, an Information charging Mario Marcelo with murder was filed with the Regional Trial Court. The accusatory portion of the Information reads: That on or about the 11th day of June 1998, in Barangay Sua, Municipality of Masantol, Province of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, MARIO MARCELO Y DELA CRUZ, with intent to kill, armed with a bladed weapon, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously assault, attack and stab Rodel (sic) Manalang, thereby inflicting upon the latter stab wounds on the different parts of his body which were the direct and immediate cause of his death shortly thereafter. Contrary to law.
3 1

On his arraignment, Mario Marcelo, assisted by counsel, entered a plea of not guilty. The Case for the Prosecution
4

At about 6:00 p.m. on June 11, 1998, Christopher Sunga and his friends Rodel Bautista, Rodelio Manalang, Arsenio Madrigo, and Ednor Cabrera were in the house of Dominador Sunga, Christophers father, located at Barrio Sua, Masantol, Pampanga. They were having a drinking spree in celebration of Christophers birthday. At about 8:00 to 9:00 p.m., Dominador arrived with the appellant. The latter joined Christopher and his friends in their drinking and merrymaking. After sometime, a commotion ensued when the appellant created trouble and challenged Ednor Cabrera to a duel. Christophers mother tried to calm the protagonists. When she failed, Dominador intervened and succeeded in bringing the appellant home. At about 11:00 p.m., Christopher and his friends agreed to call it a night. Christopher told his parents that he, along with Madrigo and Bautista would accompany Manalang to their house. As they were passing by the house of the appellant, the latter sneaked from behind Manalang and stabbed him at the back. Bautista tried to restrain the appellant, but the latter stabbed him on the right arm. Afraid for his life, Bautista ran to their house and passed out. When he regained consciousness, Bautista was already at the Jose B. Lingad Hospital in San Fernando, Pampanga, being treated for his wounds. Meanwhile, the appellant continued stabbing Manalang. Christopher and Madrigo ran to the Bantay Bayan Office for help. When they met Dominador on the way, they informed him of the stabbing incident. Dominador, together with some barangay tanods, proceeded to the place of the incident to conduct an investigation. On their way, Dominador saw Bautista who was then fleeing to their house and noticed the wound on the latters right arm. Bautista told Dominador that he and Manalang were stabbed by the appellant. Dominador then rushed to the house of the appellant, and saw the 5 bloodied body of Manalang lying by the roadside. The appellant was nearby, armed with a .22 air rifle. Dominador ordered the barangay tanods to bring Manalang to the hospital. He then talked to the appellant, but the latter threatened to shoot him if he came closer. Dominador managed to calm the appellant and bring him to his house. While he was on his way home, Dominador saw SPO2 Nicolas Yabut and SPO3 Francisco V. Cortez, police officers of Masantol, Pampanga, who were on their way to arrest the appellant. Dominador accompanied them to the appellants 6 7 house. SPO1 Renato Layug and SPO2 Nicolas Yabut brought the appellant to the police station. Dr. Eduardo T. Vargas, Medico-Legal Officer of the National Bureau of Investigation, performed an autopsy on the 8 cadaver of Manalang and signed his Autopsy Report No. CNO-98-5-11 which contained the following findings: POSTMORTEM FINDINGS Pallor, integument and conjunctivae.

Abrasions, 6.0 x 1.5 cms., anterior chest wall, left side; 4.0 x 1.5 cms. dorsal aspect, right hand. Incised stab wound, 2.0 cms., posterior chest wall, left side. Stab wounds, all edges clean cut, with one sharp and the other blunt extremities. (1) 2.0 cms., located on the chest wall along mid-axillary line, left side, 24.5 cms. from the anterior median line, directed forward, upward, medially, involving the skin and underlying soft tissues into the left thoracic cavity, penetrating lower lobe of the left lung with an approximate depth of 7.0 cms. (2) 3.0 cms., located on the chest wall along posterior axillary line, left side, 24.5 cms. from the posterior median line, directed forward, the left thoracic cavity, penetrating upper lobe of left lung with an approximate depth of 8.0 cms. (3) 3.0 cms., located on the posterior abdominal wall, left side 18.0 cms. from the posterior medial line, directed backward, upward, upward medially, involving the skin and underlying soft tissues, communicating with another wound, 2.5 cms. in length, located on the posterior abdominal wall, left side, 7.5 cms. from the posterior median line. (4) 3.0 cms. located on the anterior aspect, left leg, 29.0 cms. above the left heel, directed backward, upward, laterally, involving the skin and underlying soft tissues, communicating with another wound 2.0 cms. in length, 9 located on the posterolateral aspect, left 32.0 cms. above the left heel. Bautista and Christopher executed their Sinumpaang Salaysay on June 16, 1998 and June 13, 1998, respectively, in which they identified the appellant as the assailant of Manalang. During the trial, the prosecution adduced receipts evidencing the expenses of the heirs during the wake and the funeral 11 services for the victim. The Case for the Appellant
12 10

The appellant invoked self-defense. He testified that he was engaged in the sale of puto kutsinta which he himself 13 prepared. He was also a barangay tanod. At about 8:00 p.m. on June 11, 1998, he was fetched from his house by chief barangay tanod Dominador Sunga and barangay tanod Romeo Usi. He was told that they were to settle a dispute in the barrio. After settling the dispute, Usi went home. Dominador invited the appellant to his house where his son, Christopher, was celebrating his birthday. When they reached Dominadors house, the appellant saw that Christopher and his friends were having a drinking spree. Christopher offered him a drink which he took. After finishing it, he bid Christopher and his 14 friends good bye and went home. At about 11:00 p.m., he and his wife were cooking puto kutsinta in their house. Their four children were already asleep. Manalang, Christopher and two others whose identity he did not know but whom he later learned were Bautista and 15 Madrigo, suddenly barged inside his house and took turns in mauling him. Bautista held back his hands while Madrigo and Christopher punched and kicked him. Manalang hit him with a bamboo club. He fought back and struggled to free himself from Bautistas hold. As he was struggling to extricate himself, Christopher and his cohorts continued to maul him. The appellant managed to get out of his house, and Christopher and his cohorts followed him. They continued mauling him, causing him to fall to the ground. Manalang continued to beat him using a bamboo club and even threatened to kill 16 him and the members of his family. Because of fist blows from Christopher and his cohorts, the appellants eyes were swollen and he could hardly see. Although weakened from the beatings, he managed to stand up, pulled out his knife, and 17 stabbed Manalang. He also stabbed Bautista on the right arm. He was so dizzy that he lost consciousness. When he came to his senses, Christopher and his cohorts were nowhere to be found. His wife, Teresita, was wiping his 18 bloodied and bruised face with a cloth. He asked his wife to fetch the parents of Manalang and when they arrived, he 19 told them what happened. Manalangs parents apologized to him and even inquired where Manalang was. He replied that he did not know. Because of the incident, the appellants house was in disarray. The puto kutsinta he and his wife prepared were scattered. 20 Momentarily, barangay tanod Romeo Usi arrived with some police officers. The tanods and the policemen told him that 21 Manalang was already dead. He explained to the police officers that Manalang and three others forcibly entered his house, mauled him and threatened to kill him and his family. Thereafter, he voluntarily surrendered to the police officers,

and went with them to the police station. He executed a Sinumpaang Kontra Salaysay. His wife, Teresita Marcelo also 23 executed a Salaysay. Both alleged that at 11:00 a.m. on June 11, 1998, while they were cooking puto kutsinta, Manalang, Bautista, Christopher and Madrigo arrived at their house and mauled the appellant without any provocation on his part. To defend himself and his family, the appellant fought back and stabbed Bautista and Manalang. He adduced in evidence a Medico-Legal Certificate showing that he sustained the following injuries, to wit: -Lacerated wound mucosa cheek appr. 0.5 cm. (L) -Subconjunctival hemorrhage cu -Contusion hematoma lower lip -Contusion frontal area (R) -Abrasion confluent deltoid area (R) -Linear abrasion appr. 5 cms. (R)
24

22

The appellant was also subjected to a chest x-ray. His injuries required medical attention for a period of less than nine 25 days. The appellant filed a complaint for frustrated murder against Bautista, Madrigo and Christopher Sunga with the Office of the Public Prosecutor, docketed as I.S. No. 98-F-1569. The complaint was dismissed by the Provincial Prosecutor on 27 September 15, 1998. Bautista also filed a criminal complaint against the appellant for attempted homicide. On July 27, 1999, the appellant filed a Motion to Re-Open the defenses case on account of Ednor Cabreras willingness 28 to testify for him. The court denied his motion. On August 2, 1999, of which reads:
29 26

the trial court rendered judgment convicting the appellant of the crime charged, the decretal portion

WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of murder defined under Art. 248 of the Revised Penal Code and as a consequence of which Mario Marcelo y Dela Cruz is hereby sentenced to suffer the penalty of Reclusion Perpetua. He is likewise ordered to indemnify the family of the victim 30 the amount of P50,000.00 plus P80,000.00 actual damages and to pay the cost of the proceedings. On August 16, 1999, the appellant filed a Motion for New Trial alleging that Ednor Cabrera, the witness sought to be presented, was discovered sometime in July 1999, after the trial. He alleged that Cabrera had been in hiding for fear of his life, and nearly died at the hands of Dominador Sunga because of his refusal to testify against the appellant before the 32 Municipal Circuit Trial Court of Macabebe, Pampanga for attempted homicide, filed by Rodel Bautista. On August 30, 1999, the court issued an Order denying the motion of the appellant. He filed a motion for 34 35 reconsideration but the same was also denied in an Order dated September 10, 1999. The appellant now assails the decision of the trial court, contending that: I THE COURT A-QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT. II THE COURT A-QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO ACCUSEDAPPELLANTS PLEA OF SELF-DEFENSE. III
33 31

THE COURT A-QUO GRAVELY ERRED IN FINDING THAT TREACHERY AND EVIDENT PREMEDITATION 36 ATTENDED THE COMMISSION OF THE CRIME CHARGED. The appellant asserts that the trial court erred in not giving credence and probative weight to his testimony which was corroborated by the physical evidence, i.e., that he acted in complete self-defense when he stabbed Manalang. He posits that Manalang, Christopher Sunga, Madrigo and Bautista, suddenly barged in his house and mauled him while he was cooking puto kutsinta. Manalang threatened to kill him and his family. Because his life and those of his family were in real peril, he stabbed Bautista and Manalang. The latter died because of his stab wounds. The appellant contends that assuming without admitting that he was guilty, he could only be held liable for simple homicide and not for murder as the prosecution failed to establish the qualifying circumstance of treachery or evident premeditation. For its part, the Office of the Solicitor General asserts that the appellants self-defense theory is unbelievable and unsubstantiated. The appellant is guilty of murder, the prosecution having proved the qualifying circumstance of treachery. The Courts Ruling The appellants plea of self-defense is without merit. The question of whether or not the appellant acted in self-defense is one of fact. The trial court ruled, after calibrating the evidence on record, that the appellants plea of self-defense had no factual basis, and that, in fact, he was the unlawful aggressor. The settled rule is that the trial courts findings are accorded finality, unless there appears on the record some fact or circumstance of weight which the lower court may have overlooked, misunderstood or misappreciated, and which if 38 properly considered, would alter the result of the case. This is because of the unique advantage of the trial court of observing at close range the conduct, demeanor, and deportment of the witnesses as they regale the trial court with their testimonies. The trial court gave credence and probative weight to the collective testimonies of the prosecution witnesses. We have carefully reviewed the records and find no justification to deviate from the findings of the trial court. This Court consistently held that like alibi, self-defense is inherently weak. When the accused invokes self-defense as an affirmative defense, the burden of evidence is shifted on him to prove his defense with clear and convincing evidence. By interposing self-defense, the accused thereby admits having deliberately killed or inflicted injuries on the victim. The 40 accused must rely on the strength of his own evidence and not on the weakness of the evidence of the prosecution. If he fails to prove his defense, the evidence of the prosecution can no longer be disbelieved and the accused can no longer be 41 exonerated of the crime charged. To sustain his affirmative defense of self-defense, the appellant was burdened to prove the confluence of the following essential elements, viz: (1) there must be unlawful aggression by the victim; (2) that the means employed to prevent or repel such aggression were reasonable; and (3) that there was lack of sufficient provocation on the part of the person defending himself.
42 39 37

There can be no self-defense, complete or incomplete, unless the accused proves unlawful aggression on the part of the 43 victim. Unlawful aggression is a sudden and unexpected attack or an imminent danger thereof, and not merely a 44 threatening or an intimidating attitude. The appellant failed to discharge his burden. First. The appellant failed to surrender himself to the police officers who arrived at his house to arrest him, as well as the knife he used in stabbing Manalang and Bautista and the piece of bamboo Manalang allegedly used to hit him. Although Teresita Marcelo testified that she gave the bamboo pole to SPO3 Francisco V. Cortez, the latter denied having seen the bamboo pole. Teresita did not identify the name of the policeman with whom she left the knife at the police station. The 45 appellant did not allege in his counter-affidavit that his wife surrendered the knife and the bamboo pole to the policemen 46 at the police station. Neither did Teresita allege the matter in her affidavit. One who acted in self-defense is expected to surrender, not only himself, but also the weapon he used to kill or inflict physical injuries on the victim, as well as the 47 weapon used by the victim.

Second. The appellants claim that because of the fist blows from his attackers, namely, Manalang, Madrigo, Bautista and Sunga, his eyes became swollen and closed, such that he could hardly see. He felt so dizzy and so weak that he could 48 barely stand up. However, the medical certificate he adduced in evidence belies this claim. There is no showing therein that the appellant suffered any injury on his eyes despite the fist blows from his said attackers. The appellant sustained only two contusions, one on the lip and the other on the frontal area, a lacerated wound on the cheek and two abrasions, which injuries would heal in nine days. Third. Incredibly, despite his weak physical condition having been completely overpowered by his attackers, and with his eyes almost completely closed, the appellant was still able to stab the victim no less than four (4) times: twice on the chest; once on the abdomen and on the left leg, aside from stabbing Bautista on the right arm. The location, number and 49 nature of the injuries sustained by the victim belie the appellants claim of self-defense. Fourth. The criminal complaint of the appellant against Bautista, Manalang and Sunga for frustrated murder in I.S. No. 987-1569 was dismissed by the Office of the Provincial Prosecutor of Pampanga on September 15, 1998 for lack of factual 50 basis. The appellant, likewise, failed to appeal the resolution to the Department of Justice. The Crime Committed by the Appellant The trial court correctly convicted the appellant of murder, qualified by treachery under Article 248 of the Revised Penal Code. There is treachery in the commission of the crime when (a) at the time of the attack, the victim was not in a position to defend himself; (b) the offender consciously and deliberately adopted the particular means, method and form of attack 51 employed by him. In the present case, after a drinking spree, the victim and his friends were walking towards home when suddenly, the appellant came out from nowhere, armed with a knife. Without any warning, the appellant stabbed the victim on the vital parts of his body, ensuring the latters immediate death. Thus, the appellant killed the victim in a treacherous manner. We note that the offense was committed at nighttime. However, in order for the aggravating circumstance of nighttime to be appreciated, it must be shown that it facilitated the commission of the crime, or was especially sought or taken 52 advantage of by the accused for the purpose of impunity. However, it was not shown that the same was specifically employed to facilitate the commission of the crime. The appellant, likewise, alleged that he voluntarily surrendered to the police authorities. For voluntary surrender to be appreciated, the following requisites should be present: (1) the offender has not been actually arrested; (2) the offender surrendered himself to a person in authority or the latters agent; and (3) the surrender was voluntary. The surrender must be spontaneous, made in such a manner that it shows the interest of the accused to surrender unconditionally to the authorities, either because he acknowledged his guilt or he wishes to save them the trouble and expenses that would 53 necessarily be incurred in the search and capture. In the case at bar, SPO4 Cortez testified that the appellant did not voluntarily surrender but was brought by the police officers to the police station. Under Article 248 of the Revised Penal Code, as amended by Republic Act 7659, murder is punishable by reclusion perpetua to death. Without any generic or special aggravating circumstances, the penalty imposable on the appellant, should be the lower penalty, which is reclusion perpetua. Civil Liabilities of the Appellant Conformably to recent jurisprudence, the award of indemnity to the heirs of the victim in the amount of P50,000 is sustained, it being awarded without need of proof other than the fact that a crime was committed resulting in the death of 54 the victim and that the accused was responsible therefor. In view of the attendance of treachery, qualifying the killing to 55 murder, an award of exemplary damages in the amount of P25,000 is in order. We reduce the award of actual damages in the amount of P80,000 to P18,500 receipts.
56

which is the amount duly supported by

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Macabebe, Pampanga, Branch 55, in Criminal Case No. 98-2107-M, finding appellant Mario Marcelo y dela Cruz guilty beyond reasonable doubt of murder and sentencing him to suffer the penalty of reclusion perpetua is AFFIRMED WITH MODIFICATIONS. Considering that the prosecution was able to prove actual damages only in the amount of P18,500, the heirs are awarded P25,000 as 57 temperate damages in lieu of actual damages conformably to current jurisprudence. In addition, the said appellant is 58 ORDERED to pay to said heirs P25,000 as exemplary damages.

SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 152259 July 29, 2004

ALFREDO T. ROMUALDEZ, petitioner, vs. THE HONORABLE SANDIGANBAYAN (Fifth Division) and the PEOPLE of the PHILIPPINES, respondents.

DECISION

PANGANIBAN, J.: Repetitive motions to invalidate or summarily terminate a criminal indictment prior to plea and trial, however they may be named or identified -- whether as a motion to quash or motion to dismiss or by any other nomenclature -- delay the administration of justice and unduly burden the court system. Grounds not included in the first of such repetitive motions are generally deemed waived and can no longer be used as bases of similar motions subsequently filed. Section 5 of the Anti-Graft Law is constitutional. It penalizes certain presidential relatives who "intervene, directly or indirectly, in any business, transaction, contract or application with the Government." This provision is not vague or "impermissibly broad," because it can easily be understood with the use of simple statutory construction. Neither may the constitutionality of a criminal statute such as this be challenged on the basis of the "overbreadth" and the "void-for-vagueness" doctrines, which apply only to freespeech cases. The Case Before us is a Petition for Certiorari1 under Rule 65 of the Rules of Court, seeking to set aside the November 20, 2001 2 and the March 1, 20023Resolutions of the Sandiganbayan in Criminal Case No. 13736. The first Resolution disposed thus: "WHEREFORE, for lack of merit, the Motion to Dismiss is hereby DENIED. The arraignment of the accused and the pretrial of the case shall proceed as scheduled." 4 The second Resolution denied reconsideration. The Facts The facts of the case are narrated by the Sandiganbayan as follows: "[The People of the Philippines], through the Presidential Commission on Good Government (PCGG), filed on July 12, 1989 an information before [the anti-graft court] charging the accused [with] violation of Section 5, Republic Act No. 3019, 5 as amended. The Information reads: 'That on or about and during the period from July 16, 1975 to July 29, 1975, in Metro Manila, Philippines, and within the jurisdiction of [the Sandiganbayan], said [petitioner], brother-in-law of Ferdinand E. Marcos, former President of the Philippines, and therefore, related to the latter by affinity within the third civil degree, did then and there wil[l]fully and unlawfully, and with evident bad faith, for the purpose of promoting his self-interested [sic] and/or that of others, intervene directly or indirectly, in a contract between the National Shipyard and Steel Corporation (NASSCO), a government-owned and controlled corporation and the Bataan Shipyard and Engineering Company (BASECO), a private corporation, the majority stocks of which is owned by former President Ferdinand

E. Marcos, whereby the NASSCO sold, transferred and conveyed to the BASECO its ownership and all its titles and interests over all equipment and facilities including structures, buildings, shops, quarters, houses, plants and expendable and semi-expendable assets, located at the Engineer Island known as the Engineer Island Shops including some of its equipment and machineries from Jose Panganiban, Camarines Norte needed by BASECO in its shipbuilding and ship repair program for the amount of P5,000,000.00. 'Contrary to law.' "On December 27, 1996, the accused filed his first 'MOTION TO DISMISS AND TO DEFER ARRAIGNMENT' claiming that no valid preliminary investigation was conducted in the instant case. He asserts that if a preliminary investigation could be said to have been conducted, the same was null and void having been undertaken by a biased and partial investigative body. "On January 9, 1997, [the Sandiganbayan], through the First Division, issued an order giving the accused fifteen days to file a Motion for Reinvestigation with the Office of the Special Prosecutor. "[Petitioner] questioned said order before the Supreme Court via a petition for Certiorari and Prohibition with prayer for temporary restraining order. On January 21, 1998, the Supreme Court dismissed the petition for failure to show that [the Sandiganbayan] committed grave abuse of discretion in issuing the assailed order. "On November 9, 1998, the [petitioner] filed with the Office of the Special Prosecutor a Motion to Quash. "On September 22, 1999, x x x Special Prosecution Officer (SPO) III Victorio U. Tabanguil, manifested that the prosecution had already concluded the reinvestigation of the case. He recommended the dismissal of the instant case. Both the Deputy Special Prosecutor and the Special Prosecutor approved the recommendation. However, Ombudsman Aniano A. Desierto disagreed and directed the prosecutors to let the [petitioner] present his evidence in Court. "Subsequently, [petitioner] filed on October 8, 1999 his second 'MOTION TO QUASH AND TO DEFER ARRAIGNMENT'. "On February 9, 2000, the [Sandiganbayan] denied the motion for lack of merit. "On June 19, 2001, [the] accused filed a 'MOTION FOR LEAVE TO FILE MOTION TO DISMISS'. On June 29, 2001, the [Sandiganbayan] admitted the motion and admitted the attached (third) Motion to Dismiss. "The [Motion to Dismiss] raise[d] the following grounds: 'I. THE CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW OF [PETITIONER] WAS VIOLATED DURING THE PRELIMINARY INVESTIGATION STAGE IN THE FOLLOWING WAYS: 'A. NO VALID PRELIMINARY INVESTIGATION WAS CONDUCTED IN THE INSTANT CASE; AND 'B. THE PRELIMINARY INVESTIGATION WAS CONDUCTED BY A BIASED AND PARTIAL INVESTIGATOR 'II. THE CONSTITUTIONAL RIGHT OF [PETITIONER] TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM WAS VIOLATED 'III. PURSUANT TO ARTICLE VII, SECTION 17 OF THE 1973 CONSTITUTION, [PETITIONER] IS IMMUNE FROM CRIMINAL PROSECUTION 'IV. THE CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED BY PRESCRIPTION'" 6 Ruling of the Sandiganbayan The Sandiganbayan explained that all the grounds invoked by petitioner, except the third one, had already been raised by him and passed upon in its previous Resolutions.7 In resolving the third ground, the anti-graft court pointed out that Section 17 of the 1973

Constitution became effective only in 1981 when the basic law was amended. Since his alleged illegal intervention had been committed on or about 1975, the amended provision was inapplicable to him.8 In denying the Motion for Reconsideration filed by petitioner, the Sandiganbayan passed upon the other grounds he had raised. It ruled that his right to a preliminary investigation was not violated, because he had been granted a reinvestigation. 9 It further held that his right to be informed of the nature and cause of the accusation was not trampled upon, either, inasmuch as the Information had set forth the essential elements of the offense charged.10 Hence, this Petition.11 The Issues In his Memorandum, petitioner assigns the following errors for our consideration: "Whether or not the Honorable Sandiganbayan erred and gravely abused its discretion amounting to lack of, or in excess of jurisdiction I. In not dismissing and/or quashing Criminal Case No. 13736 despite clear and incontrovertible evidence that: A. Section 5 of Republic Act No. 3019 is unconstitutional because its vagueness violates the due process right of an individual to be informed of the nature and the cause of the accusation against him; B. Section 5 of Republic Act No. 3019 is unconstitutional because it violates the due process right of an individual to be presumed innocent until the contrary is proved; C. The constitutional right of petitioner x x x to be informed of the nature and the cause of the accusation against him was violated; D. The constitutional right to due process of law of petitioner x x x was violated during the preliminary investigation stage in the following ways: [i] No valid preliminary investigation was con-ducted for Criminal Case No. 13736; and [ii] The preliminary investigation was conducted by a biased and partial investigator. E. The criminal action or liability has been extinguished by prescription; and F. Pursuant to Article VII, Section 17 of the 1973 Constitution, petitioner x x x is immune from criminal prosecution. And II. In light of the foregoing, in denying petitioner['s] x x x right to equal protection of the laws." 12 Simply stated, the issues are as follows: (1) whether Section 5 of Republic Act 3019 is unconstitutional; (2) whether the Information is vague; (3) whether there was a valid preliminary investigation; (4) whether the criminal action or liability has been extinguished by prescription; and (5) whether petitioner is immune from criminal prosecution under then Section 17 of Article VII of the 1973 Constitution. The Court's Ruling The Petition has no merit. First Issue: Constitutionality of Section 5, Republic Act 3019

Petitioner challenged the constitutionality of Section 5 of RA 3019 for the first time in the Sandiganbayan through a Supplemental Motion to Dismiss. Attached to his December 7, 2001 Motion for Reconsideration of the Order denying his Motion to Dismiss was this Supplemental Motion which was, in effect, his third motion to quash.13 We note that the Petition for Certiorari before us challenges the denial of his original, not his Supplemental, Motion to Dismiss. Upon the denial of his original Motion to Quash on February 9, 2000, petitioner could have filed a motion for reconsideration of the denial. Had reconsideration been turned down, the next proper remedy would have been either (1) a petition for certiorari 14 -- if there was grave abuse of discretion -- which should be filed within 60 days from notice of the assailed order; 15 or (2) to proceed to trial without prejudice to his right, if final judgment is rendered against him, to raise the same questions before the proper appellate court.16 But instead of availing himself of these remedies, he filed a "Motion to Dismiss" on June 19, 2001. Impropriety of Repetitive Motions There is no substantial distinction between a "motion to quash" and a "motion to dismiss." Both pray for an identical relief, which is the dismissal of the case. Such motions are employed to raise preliminary objections, so as to avoid the necessity of proceeding to trial. A motion to quash is generally used in criminal proceedings to annul a defective indictment. A motion to dismiss, the nomenclature ordinarily used in civil proceedings, is aimed at summarily defeating a complaint. Thus, our Rules of Court use the term "motion to quash" in criminal, 17 and "motion to dismiss" in civil, proceedings.18 In the present case, however, both the "Motion to Quash" and the "Motion to Dismiss" are anchored on basically the same grounds and pray for the same relief. The hairsplitting distinction posited by petitioner does not really make a difference. By filing a Motion to Dismiss, petitioner submitted in effect a prohibited second motion to quash. A party is not permitted to raise issues, whether similar or different, by installment. The Rules abhor repetitive motions. Otherwise, there would be no end to preliminary objections, and trial would never commence. A second motion to quash delays the administration of justice and unduly burdens the courts. Moreover, Rule 117 provides that grounds not raised in the first motion to quash are generally deemed waived.19 Petitioner's "Motion to Dismiss" violates this rule. Constitutionality of the Challenged Provision If only for the foregoing procedural lapses, the Petition deserves to be dismissed outright. However, given the importance of this case in curtailing graft and corruption, the Court will nevertheless address the other issues on their merit. Petitioner challenges the validity of Section 5 of Republic Act 3019, a penal statute, on the ground that the act constituting the offense is allegedly vague and "impermissibly broad." It is best to stress at the outset that the overbreadth20 and the vagueness21 doctrines have special application only to free-speech cases. They are not appropriate for testing the validity of penal statutes. Mr. Justice Vicente V. Mendoza explained the reason as follows: "A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible 'chilling effect' upon protected speech. The theory is that '[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity.' The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. xxxxxxxxx In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that 'one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.' As has been pointed

out, 'vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant.'"22 (underscoring supplied) "To this date, the Court has not declared any penal law unconstitutional on the ground of ambiguity." 23 While mentioned in passing in some cases, the void-for-vagueness concept has yet to find direct application in our jurisdiction. In Yu Cong Eng v. Trinidad,24 the Bookkeeping Act was found unconstitutional because it violated the equal protection clause, not because it was vague. Adiong v. Comelec25 decreed as void a mere Comelec Resolution, not a statute. Finally, Santiago v. Comelec26 held that a portion of RA 6735 was unconstitutional because of undue delegation of legislative powers, not because of vagueness. Indeed, an "on-its-face" invalidation of criminal statutes would result in a mass acquittal of parties whose cases may not have even reached the courts. Such invalidation would constitute a departure from the usual requirement of "actual case and controversy" and permit decisions to be made in a sterile abstract context having no factual concreteness. In Younger v. Harris, this evil was aptly pointed out by the U.S. Supreme Court in these words:27 "[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, x x x ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided." For this reason, generally disfavored is an on-its-face invalidation of statutes, described as a "manifestly strong medicine" to be employed "sparingly and only as a last resort." In determining the constitutionality of a statute, therefore, its provisions that have allegedly been violated must be examined in the light of the conduct with which the defendant has been charged. 28 As conduct -- not speech -- is its object, the challenged provision must be examined only "as applied" to the defendant, herein petitioner, and should not be declared unconstitutional for overbreadth or vagueness. The questioned provision reads as follows: "Section 5. Prohibition on certain relatives. It shall be unlawful for the spouse or for any relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives, to intervene, directly or indirectly, in any business, transaction, contract or application with the Government: Provided, That this section shall not apply to any person who, prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the Government along the same line of business, nor to any transaction, contract or application already existing or pending at the time of such assumption of public office, nor to any application filed by him the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law, nor to any act lawfully performed in an official capacity or in the exercise of a profession." Petitioner also claims that the phrase "to intervene directly or indirectly, in any business, transaction, contract or application with the Government" is vague and violates his right to be informed of the cause and nature of the accusation against him. 29 He further complains that the provision does not specify what acts are punishable under the term intervene, and thus transgresses his right to be presumed innocent.30 We disagree. Every statute is presumed valid.31 On the party challenging its validity weighs heavily the onerous task of rebutting this presumption.32 Any reasonable doubt about the validity of the law should be resolved in favor of its constitutionality. 33 To doubt is to sustain, as tersely put by Justice George Malcolm. In Garcia v. Executive Secretary,34 the rationale for the presumption of constitutionality was explained by this Court thus: "The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation of powers which enjoins upon each department a becoming respect for the acts of the other departments. The theory is that as the joint act of Congress and the President of the Philippines, a law has been carefully studied and determined to be in accordance with the fundamental law before it was finally enacted." 35 In the instant case, petitioner has miserably failed to overcome such presumption. This Court has previously laid down the test for determining whether a statute is vague, as follows:

"x x x [A] statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that species of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction. "A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects - it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.36 But the doctrine does not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be 'saved' by proper construction, while no challenge may be mounted as against the second whenever directed against such activities.37 With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case. "The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. 38 It must be stressed, however, that the 'vagueness' doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes." 39 A simpler test was decreed in Dans v. People,40 in which the Court said that there was nothing vague about a penal law that adequately answered the basic query "What is the violation?"41 Anything beyond -- the hows and the whys -- are evidentiary matters that the law itself cannot possibly disclose, in view of the uniqueness of every case.42 The question "What is the violation?" is sufficiently answered by Section 5 of RA 3019, as follows: 1. The offender is a spouse or any relative by consanguinity or affinity within the third civil degree of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives; and 2. The offender intervened directly or indirectly in any business, transaction, contract or application with the government. Applicability of Statutory Construction As to petitioner's claim that the term intervene is vague, this Court agrees with the Office of the Solicitor General that the word can easily be understood through simple statutory construction. The absence of a statutory definition of a term used in a statute will not render the law "void for vagueness," if the meaning can be determined through the judicial function of construction.43 Elementary is the principle that words should be construed in their ordinary and usual meaning. "x x x. A statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them;44 much less do we have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act x x x. "x x x [I]t is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification,45 unless it is evident that the legislature intended a technical or special legal meaning to those words.46 The intention of the lawmakers - who are, ordinarily, untrained philologists and lexicographers - to use statutory phraseology in such a manner is always presumed." 47 The term intervene should therefore be understood in its ordinary acceptation, which is to "to come between." 48 Criminally liable is anyone covered in the enumeration of Section 5 of RA 3019 -- any person who intervenes in any manner in any business, transaction, contract or application with the government. As we have explained, it is impossible for the law to provide in advance details of how such acts of intervention could be performed. But the courts may pass upon those details once trial is concluded. Thus, the alleged vagueness of intervene is not a ground to quash the information prior to the commencement of the trial.

In sum, the Court holds that the challenged provision is not vague, and that in any event, the "overbreath" and "void for vagueness" doctrines are not applicable to this case. Second Issue: Allegedly Vague Information Other than arguing on the alleged intrinsic vagueness of intervene, petitioner further contends that the Information itself is also unconstitutionally vague, because it does not specify the acts of intervention that he supposedly performed. 49 Again, we disagree. When allegations in the information are vague or indefinite, the remedy of the accused is not a motion to quash, but a motion for a bill of particulars.50The pertinent provision in the Rules of Court is Section 9 of Rule 116, which we quote: "Section 9. Bill of particulars. -- The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and prepare for trial. The motion shall specify the alleged defects of the complaint or information and the details desired." The rule merely requires the information to describe the offense with sufficient particularity as to apprise the accused of what they are being charged with and to enable the court to pronounce judgment. 51 The particularity must be such that persons of ordinary intelligence may immediately know what is meant by the information. 52 While it is fundamental that every element of the offense must be alleged in the information, 53 matters of evidence -- as distinguished from the facts essential to the nature of the offense -- need not be averred.54 Whatever facts and circumstances must necessarily be alleged are to be determined by reference to the definition and the essential elements of the specific crimes. 55 In the instant case, a cursory reading of the Information shows that the elements of a violation of Section 5 of RA 3019 have been stated sufficiently. Likewise, the allegations describe the offense committed by petitioner with such particularity as to enable him to prepare an intelligent defense. Details of the acts he committed are evidentiary matters that need not be alleged in the Information. Third Issue: Preliminary Investigation Clearly, petitioner already brought the issue of lack of preliminary investigation when he questioned before this Court in GR No. 128317 the Sandiganbayan's Order giving him 15 days to file a Motion for Reinvestigation with the Office of the Special Prosecutor.56 Citing Cojuangco v. Presidential Commission on Good Government,57 he undauntedly averred that he was deprived of his right to a preliminary investigation, because the PCGG acted both as complainant and as investigator.58 In the case cited above, this Court declared that while PCGG had the power to conduct a preliminary investigation, the latter could not do so with the "cold neutrality of an impartial judge" in cases in which it was the agency that had gathered evidence and subsequently filed the complaint.59 On that basis, this Court nullified the preliminary investigation conducted by PCGG and directed the transmittal of the records to the Ombudsman for appropriate action. It is readily apparent that Cojuangco does not support the quashal of the Information against herein petitioner. True, the PCGG initiated the present Complaint against him; hence, it could not properly conduct the preliminary investigation. However, he was accorded his rights -- the Sandiganbayan suspended the trial and afforded him a reinvestigation by the Ombudsman. The procedure outlined in Cojuangco was thus followed. The Sandiganbayan's actions are in accord also with Raro v. Sandiganbayan,60 which held that the failure to conduct a valid preliminary investigation would not warrant the quashal of an information. If the information has already been filed, the proper procedure is for the Sandiganbayan to hold the trial in abeyance while the preliminary investigation is being conducted or completed.61 Fourth Issue: Prescription The issue of prescription was the principal basis of the Motion to Quash filed by petitioner with the Sandiganbayan on October 8, 1999.62 Such issue should be disregarded at this stage, since he failed to challenge its ruling debunking his Motion within the 60-day period for the filing of a petition for certiorari. A party may not circumvent this rule by filing a subsequent motion that raises the same issue and the same arguments.

Furthermore, it is easy to see why this argument being raised by petitioner is utterly unmeritorious. He points out that according to the Information, the offense was committed "during the period from July 16, 1975 to July 29, 1975." He argues that when the Information was filed on July 12, 1989,63 prescription had already set in, because the prescriptive period for a violation of Republic Act No. 3019 is only ten (10) years from the time the offense was allegedly committed. The increase of this prescriptive period to fifteen (15) years took effect only on March 16, 1982, upon the enactment of Batas Pambansa Blg. 195. 64 Act No. 3326, as amended,65 governs the prescription of offenses penalized by special laws. Its pertinent provision reads: "Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same not be known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment. "The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy." Consistent with the provision quoted above, this Court has previously reckoned the prescriptive period of cases involving RA 3019 (committed prior to the February 1986 EDSA Revolution) from the discovery of the violation.66 In Republic v. Desierto, the Court explained: "This issue confronted this Court anew, albeit in a larger scale, in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto.In the said recent case, the Board of Directors of the Philippine Seeds, Inc. and Development Bank of the Philippines were charged with violation of paragraphs (e) and (g) of Section 3 of RA No. 3019, by the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, created by then President Fidel V. Ramos to investigate and to recover the socalled 'Behest Loans', where the Philippine Government guaranteed several foreign loans to corporations and entities connected with the former President Marcos. x x x In holding that the case had not yet prescribed, this Court ruled that: 'In the present case, it was well-nigh impossible for the State, the aggrieved party, to have known the violations of RA No. 3019 at the time the questioned transactions were made because, as alleged, the public officials concerned connived or conspired with the 'beneficiaries of the loans.' Thus, we agree with the COMMITTEE that the prescriptive period for the offenses with which the respondents in OMB-0-96-0968 were charged should be computed from the discovery of the commission thereof and not from the day of such commission. xxx xxx xxx

'People v. Duque is more in point, and what was stated there stands reiteration: In the nature of things, acts made criminal by special laws are frequently not immoral or obviously criminal in themselves; for this reason, the applicable statute requires that if the violation of the special law is not known at the time, the prescription begins to run only from the discovery thereof, i.e., discovery of the unlawful nature of the constitutive act or acts.' (Italics supplied) "There are striking parallelisms between the said Behest Loans Case and the present one which lead us to apply the ruling of the former to the latter. First, both cases arose out of seemingly innocent business transactions; second, both were 'discovered' only after the government created bodies to investigate these anomalous transactions; third, both involve prosecutions for violations of RA No. 3019; and, fourth, in both cases, it was sufficiently raised in the pleadings that the respondents conspired and connived with one another in order to keep the alleged violations hidden from public scrutiny. "This Court's pronouncement in the case of Domingo v. Sandiganbayan is quite relevant and instructive as to the date when the discovery of the offense should be reckoned, thus: 'In the present case, it was well-nigh impossible for the government, the aggrieved party, to have known the violations committed at the time the questioned transactions were made because both parties to the transactions were allegedly in conspiracy to perpetuate fraud against the government. The alleged anomalous transactions could only have been discovered after the February 1986 Revolution when one of the original respondents, then President Ferdinand Marcos, was ousted from office. Prior to said date, no person would have dared to question the legality or propriety of those transactions. Hence, the counting of the prescriptive period would commence from the date of discovery of the offense, which could have been between February 1986 after the EDSA Revolution and 26 May 1987 when the initiatory complaint was filed.'" 67 The above pronouncement is squarely applicable to the present case. The general rule that prescription shall begin to run from the day of the commission of the crime cannot apply to the present case. It is not legally prudent to charge the State, the aggrieved party, with knowledge of the violation of RA 3019 at the time the alleged intervention was made. The accused is the late President Ferdinand E.

Marcos' brother-in-law. He was charged with intervening in a sale involving a private corporation, the majority stocks of which was allegedly owned by President Marcos. Prior to February 1986, no person was expected to have seriously dared question the legality of the sale or would even have thought of investigating petitioner's alleged involvement in the transaction. It was only after the creation 68 of PCGG69 and its exhaustive investigations that the alleged crime was discovered. This led to the initiation on November 29, 1988 of a Complaint against former President Marcos and petitioner for violation of the Anti-Graft and Corrupt Practices Act. Consequently, the filing of the Information on July 12, 1989 was well within the prescriptive period of ten years from the discovery of the offense. Fifth Issue Immunity from Prosecution Petitioner argues that he enjoys derivative immunity, because he allegedly served as a high-ranking naval officer -- specifically, as naval aide-de-camp -- of former President Marcos.70 He relies on Section 17 of Article VII of the 1973 Constitution, as amended, which we quote: "The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure. "x x x xxx x x x"

As the Sandiganbayan aptly pointed out, the above provision is not applicable to petitioner because the immunity amendment became effective only in 1981 while the alleged crime happened in 1975. In Estrada v. Desierto,71 this Court exhaustively traced the origin of executive immunity in order to determine the extent of its applicability. We explained therein that executive immunity applied only during the incumbency of a President. It could not be used to shield a non-sitting President from prosecution for alleged criminal acts done while sitting in office. The reasoning of petitioner must therefore fail, since he derives his immunity from one who is no longer sitting as President. Verily, the felonious acts of public officials and their close relatives "are not acts of the State, and the officer who acts illegally is not acting as such but stands on the same footing as any other trespasser." In sum, petitioner utterly fails to show that the Sandiganbayan gravely abused its discretion in issuing the assailed Resolutions.72 On the contrary, it acted prudently, in accordance with law and jurisprudence. WHEREFORE, the Petition is DISMISSED, and the questioned Resolutions of the Sandiganbayan AFFIRMED. Costs against petitioner. SO ORDERED. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 150443 January 20, 2006

SYLVIA PEREZ, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION CARPIO, J.: The Case

Before the Court is a petition for review assailing the Decision promulgated on 16 October 2001 in CA-G.R. CR No. 20845. The Court of Appeals dismissed the appeal from the Decision of the Regional Trial Court of Pasig City, Branch 267 ("trial court") in Criminal Case No. 107070 finding Sylvia Perez ("Perez") guilty of the crime of estafa under paragraph 1(b), Article 315 of the Revised Penal Code. The Charge Perez was the Accounts Receivable and Recording Clerk of Storck Products, Inc. ("Storck") from 1984 to 1993. On 17 3 October 1994, Assistant Provincial Prosecutor Christopher C. Garvida filed an Information against Perez for violation of paragraph 1(b), Article 315 of the Revised Penal Code. On 26 October 1995, State Prosecutor Raymunda A. Cruz-Apolo amended the Information, as follows: The undersigned State Prosecutor, accuses Sylvia Perez of the crime of estafa, penalized under article 315, par. 1(b) of the Revised Penal Code, committed as follows: Sometime and during the period in October 1990 to September 1993, Pasig City, and within the jurisdiction of this Honorable Court, the accused, being then employed as accounts receivable and recording clerk of Storck Products, Inc., and as such having received in cash the amount of P148,160.35 a[s] collection from the companys salesmen, with the express obligation on the part of the said accused to immediately turn over and remit saidP148,160.35, and the accused, once in possession of the said amount, with intent to defraud said Storck Products, Inc., with unfaithfulness and abuse of confidence, did then and there willfully, unlawfully and feloniously misappropriate, misapply and convert the same to her own personal use and benefit, and despite demands to turn over and remit the said amount of P148,160.35, she failed and refused, to the damage and prejudice of Storck Products, Inc. in the total amount of P148,160.35, Philippine currency. Contrary to Law.
4

Upon arraignment, Perez entered a plea of not guilty and waived the pre-trial proceedings. The Evidence for the Prosecution The prosecutions evidence consists of the testimonies of Storcks National Sales Manager Ricardo Barreto ("Barreto"), Storcks Head of the Auditing Department Julita Ventonilla ("Ventonilla"), Storcks Cashier and Assistant Treasurer 5 Estrella Santiago ("Santiago"), and Storcks salesman Jessie Sincero ("Sincero"). Sometime in September 1993, Barreto learned that Perez failed to turn over to Storcks treasurer cash collections amounting to P148,160.35. He confronted Perez who admitted that she used the money "for her intention." Later, Barreto 6 received a promissory note from Perezs husband requesting that Storck allow Perez to return the money on installment. Barreto advised Perez and her husband to execute an affidavit of undertaking that she would return the money to Storck. Perez and her husband executed an affidavit of undertaking in December 1993. However, the affidavit was not notarized when Perez gave the affidavit to Barreto. Barreto returned the affidavit to Perez for notarization. After a month, Perez 7 submitted the notarized affidavit of undertaking to Barreto. Perez also paid P20,000.00 as initial payment. However, Perez did not make any further payment prompting Storck to file the criminal complaint for estafa against Perez. Ventonilla was responsible for auditing the employees accountabilities. Under Storcks company procedure, a salesman who collects a check from a customer gives the check to the treasurer for deposit. If the check bounces, the treasurer returns it to the salesman for replacement with another check or with cash. A salesman turns over the cash replacement to the accounts receivable clerk who notes on the customers ledger the date of receipt of the cash replacement. The accounts receivable clerk then turns over the cash replacement to the treasurer. Santiago was responsible for receiving remittances. The salesmen would directly remit to Santiago initial cash payments from customers. Santiago did not record these remittances on the accounting ledger. However, the salesmen did not remit to Santiago cash replacements of bounced checks. The salesmen remitted cash replacements to Perez who would then turn over the cash replacements to Santiago. Every time Perez remitted cash replacements to Santiago, Santiago would sign on the accounting ledger. Sincero was one of Storcks salesmen. If a customers check bounces, the check is returned for replacement either with cash or with another check. Cash replacements were remitted to Perez. When a salesman remitted a cash replacement to Perez, she was supposed to record the cash replacement on the remittance slip and turn over the cash to Santiago.

The Evidence for the Defense Perez testified as her own lone witness. Perez was responsible for the account receivables of the accounting department. It was her duty to record on the accounting ledger the sales reports forwarded by the salesmen. Every time Perez received a sales report, she would post the report on the accounting ledger of the customer. Perez would then submit the accounting ledger to the sales manager. Perez would also return a bounced check to the salesman who in turn would return it to the customer for replacement with another check or its cash value. Perez testified that once the customer issued a cash replacement, the salesman would get the accounting ledger from her. She would record the cash replacement and give the accounting ledger to the salesman. The salesman then would turn over the cash replacement to the cashier or the treasurer. The cashier would sign the accounting ledger as proof of receipt of the cash replacement. The salesman would then return the accounting ledger to Perez. However, sometimes, it would take days before the salesman would return the accounting ledger to Perez. Upon receipt of the accounting ledger, Perez would verify if the cashier had initialed the accounting ledger. Sometimes, the cashiers signature does not appear on the accounting ledger. Perez testified that she saw for the first time during the trial the affidavit of undertaking she and her husband supposedly signed. However, Perez claimed she signed another document handed to her by Barreto, not the affidavit of undertaking. Perez could not remember the contents of the original document she signed. Perez denied appearing before the notary public who notarized the affidavit of undertaking. Perez admitted that the community tax certificates indicated in the affidavit belonged to her and her husband. Perez further stated that her husband was forced to execute the promissory note so Storck would not terminate her employment. For the same reason, she paid the initial P20,000. However, Storck still terminated her employment. The Ruling of the Trial Court In its Decision dated 14 April 1997, the trial court found Perez guilty beyond reasonable doubt of the crime of estafa. However, the trial court ruled that the amount misappropriated was only P83,755.50. The trial court ordered Perez to pay Storck P63,755.50, the balance of the amount misappropriated after deducting the P20,000 that Perez had already paid to Storck. The dispositive portion of the decision reads: IN VIEW OF THE FOREGOING CONSIDERATIONS, judgment is hereby rendered finding accused SYLVIA PEREZ guilty beyond reasonable doubt of the crime of estafa penalized under Article 315, par. 1 (b) of the Revised Penal Code, without any aggravating or mitigating circumstance, and is accordingly sentenced to suffer the indeterminate penalty of imprisonment ranging from 4 years and 2 months of prission (sic) correccional to 12 years, 8 months and 21 days of reclusion temporal and to indemnify complainant company Storck Products, Inc. in the amount of Php63,755.50 as well as to pay the costs. SO ORDERED.
9 8

Perez appealed to the Court of Appeals. The Decision of the Court of Appeals In its 16 October 2001 Decision, the Court of Appeals dismissed the appeal. The Court of Appeals ruled that the prosecution proved beyond reasonable doubt that Perez received the cash replacements from Storck salesmen and that she failed to turn over the money to Storcks treasurer. Perezs failure to turn over the money she received constituted misappropriation of the money for her own benefit to Storcks damage and prejudice. Hence, this petition. The Issues Petitioner raises the following issues:

1. Whether the Court of Appeals erred in affirming the judgment of conviction despite the lack of evidence, direct or circumstantial, that petitioner committed estafa under paragraph 1(b), Article 315 of the Revised Penal Code; 2. Whether the Court of Appeals erred in affirming the judgment of conviction despite the failure of the prosecution 10 to prove the first element of estafa under paragraph 1(b), Article 315 of the Revised Penal Code. In her petition, Perez asserts that the prosecution failed to prove that she received the money she supposedly misappropriated. Perez further asserts that the trial court convicted her based on circumstantial evidence consisting of the affidavit of undertaking she allegedly executed. Perez disputes the genuineness of the affidavit of undertaking. She insists that the affidavit of undertaking presented by the prosecution was not the same document she signed. She also insists that the promissory note executed by her husband should not be interpreted as an admission of guilt. The Ruling of this Court The petition has no merit. Elements of the Crime Perez is accused of committing the crime of estafa under paragraph 1(b), Article 315 of the Revised Penal Code, which provides: Art. 315. Swindling (estafa).- Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by: 1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 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 to reclusion temporal, as the case may be; 2nd. The penalty of prision correccional in its minimum and medium periods, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos; 3rd. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, if such amount is over 200 pesos but does not exceed 6,000 pesos; and 4th. By arresto mayor in its medium and maximum periods, if such amount does not exceed 200 pesos, provided that in the four cases mentioned, the fraud be committed by any of the following means: 1. With unfaithfulness or abuse of confidence, namely: (a) By altering the substance, quantity, or quality of anything of value which the offender shall deliver by virtue of an obligation to do so, even though such obligation be based on an immoral or illegal consideration; (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; xxx The elements of estafa under paragraph 1(b), Article 315 of the Revised Penal Code are: (1) the offender receives the 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) the offender misappropriates or converts such money or property or denies receiving such money or property;

(3) the misappropriation or conversion or denial is to the prejudice of another; and (4) the offended party demands that the offender return the money or property.
11

In this case, Perez asserts that the prosecution failed to prove the first element of estafa under paragraph 1(b) of Article 315. Perez insists that the prosecution has no proof that she received money from the salesmen. Perezs claim contradicts the testimonial evidence of Ventonilla, Santiago and Sincero. Ventonilla, Santiago and Sincero outlined the procedure for the remittance of cash replacements from customers. They all confirmed that the salesmen would turn over cash replacements of bounced checks to Perez. Perezs responsibility was to turn over the cash replacements to the treasurer. However, Perez failed to turn over the cash replacements to the treasurer. Findings of the Trial and Appellate Courts Are Supported by Evidence The Court finds no reason to deviate from the factual findings of the trial court and the Court of Appeals. It is a settled rule that factual findings of the trial courts, including their assessment of the witnesses credibility, are entitled to great weight 12 and respect by this Court, particularly when the Court of Appeals affirm the findings. Trial courts are in the best position 13 to assess the witnesses credibility and to appreciate their truthfulness, honesty and candor. The Court finds the testimonial evidence of Ventonilla, Santiago and Sincero more credible than the uncorroborated and self-serving testimony of Perez that she did not receive any money from the salesmen. From the testimonies of Ventonilla, Santiago and Sincero, it is clear that the salesmen deposit with the treasurer the initial cash and check payments they collect from Storcks customers. However, if a check bounces, the customer may replace it either with another check or with cash corresponding to the value of the check. The salesmen deposit check replacements with the treasurer but give the cash replacements to the accounts receivable clerk, who records the cash replacement on the customers ledger and turns over the money to the treasurer. The testimonial evidence of Ventonilla, Santiago and Sincero coupled with Perez and her husbands affidavit of undertaking and the promissory note of Perezs husband prove beyond reasonable doubt the commission of the crime of estafa. Perezs testimony that she had no knowledge of the affidavit of undertaking deserves scant consideration. Perez 14 confirmed that the signature on the affidavit of undertaking was her signature. At the same time, Perez claims that the affidavit of undertaking presented by the prosecution was not the same document she signed. Perez, however, could not produce a copy of the alleged original document. Perez could not even state the contents of the document she allegedly 15 signed. Perez also alleges that her husband executed the promissory note so Storck would not terminate her 16 17 employment. However, the promissory note was dated 7 December 1993, three months after Storck had terminated 18 her employment in September 1993. Perez belatedly filed an illegal dismissal case against Storck two years after she 19 was terminated. Finally, the Court finds incredible Perezs allegation that she paid the initial P20,000 only because Barreto insisted that 20 she was responsible for the amount and because she feared being terminated from employment. Again, Perez made the payment after her termination from employment. Further, it is unlikely that Perez would payP20,000 and undertake to pay the remaining balance if she did not really receive the money from the salesmen. Perezs flimsy excuse for not inquiring 21 how Storck computed the missing P148,160.35 was that she wanted to avoid any misunderstanding with Storck. In short, Perez agreed to pay a large amount of money, although she claims she never received such money from the salesmen, just to avoid a misunderstanding with her employer. Perezs incredible claims only strengthen the case against her. The Penalty for the Crime Under Article 315 of the Revised Penal Code, if the amount exceeds P22,000, the penalty shall be as follows: 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. x x x

In this case, the amount misappropriated is P83,755.50. In People v. Gabres, the Court explained the imposition of the minimum penalty, as follows: Under the Indeterminate Sentence Law, the maximum term of the penalty shall be "that which, in view of the attending circumstances, could be properly imposed" under the Revised Penal Code, and the minimum shall be "within the range of the penalty next lower to that prescribed" for the offense. The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence. The fact that the amounts involved in the instant case exceed P22,000.00 should not be considered in the initial determination of the indeterminate penalty; instead, the matter should be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence. This interpretation of the law accords with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law for the estafa charge against accused-appellant is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional minimum to medium. Thus, the minimum term of the indeterminate sentence should be anywhere within six (6) months and one (1) day to four (4) years and two (2) months while the maximum term of the indeterminate sentence should at least be six (6) years and one (1) day because the amounts involved exceeded P22,000.00, plus an additional one (1) year for each additionalP10,000.00 Hence, the minimum term of the indeterminate penalty should be anywhere within 6 months and 1 day to 4 years and 2 23 months. The Court explained further the imposition of the maximum penalty in People v. Saley. Thus: x x x [I]n fixing the maximum term, the prescribed penalty of prision correccional maximum period to prision mayorminimum period should be divided into "three equal portions of time," each of which portion shall be deemed to form one period; hence Minimum Period From 4 years, 2 months and 1 day to 5 years, 5 months and 10 days Medium Period From 5 years, 5 months and 11 days to 6 years, 8 months and 20 days Maximum Period From 6 years, 8 months and 21 days to 8 years
24 22

in consonance with Article 65, in relation to Article 64, of the Revised Penal Code. When the amount involved in the offense exceeds P22,000.00, the penalty prescribed in Article 315 of the Code "shall be imposed in its maximum period," adding one year for each additional P10,000.00 although the total penalty which may be imposed shall not exceed 20 years. The maximum penalty should then be termed as prision mayor or reclusion temporal as the case may be. In fine, the one year period, whenever applicable, shall be added to the maximum period of the principal penalty of anywhere from 6 years, 8 months and 21 days to 8 years. Accordingly, the maximum penalty should be within 6 years, 8 months and 21 days to 8 years, plus 1 year for each 25 additional P10,000. Thus, the trial court correctly imposed on Perez the penalty of imprisonment ranging from 4 years and 2 months ofprision correccional to 12 years, 8 months and 21 days of reclusion temporal. WHEREFORE, we DENY the petition. We AFFIRM the Decision of the Court of Appeals in CA-G.R. CR No. 20845. We impose on Sylvia Perez an indeterminate penalty of 4 years and 2 months of prision correccional to 12 years, 8 months and 21 days of reclusion temporal. We order Perez to pay Storck Products, Inc. P63,755.50 as actual damages, and to pay the costs. SO ORDERED.

ANTONIO T. CARPIO Associate Justice WE CONCUR: Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 125297 June 6, 2003

ELVIRA YU OH, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. AUSTRIA-MARTINEZ, J.: Before this Court is a petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. No. CR No. 16390, promulgated on January 30, 1996, affirming the conviction of petitioner Elvira Yu Oh by the Regional Trial Court (RTC), Branch 99, Quezon City and the resolution dated May 30, 1996 which denied her motion for reconsideration. The facts as borne by the records are as follows: Petitioner purchased pieces of jewelry from Solid Gold International Traders, Inc., a company engaged in jewelry trading. 2 Due to her failure to pay the purchase price, Solid Gold filed civil cases against her for specific performance before the Regional Trial Court of Pasig. On September 17, 1990, petitioner and Solid Gold, through its general manager Joaquin 3 Novales III, entered into a compromise agreement to settle said civil cases. The compromise agreement, as approved by the trial court, provided that petitioner shall issue a total of ninety-nine post-dated checks in the amount of P50,000.00 th th each, dated every 15 and 30 of the month starting October 1, 1990 and the balance of over P1 million to be paid in th lump sum on November 16, 1994 which is also the due date of the 99 and last postdated check. Petitioner issued ten checks at P50,000.00 each, for a total of P500,000.00, drawn against her account at the Equitable Banking Corporation (EBC), Grace Park, Caloocan City Branch. Novales then deposited each of the ten checks on their respective due dates with the Far East Bank and Trust Company (FEBTC). However, said checks were dishonored by EBC for the reason 4 "Account Closed." Dishonor slips were issued for each check that was returned to Novales. On October 5, 1992, Novales filed ten separate Informations, docketed as Criminal Cases Nos. 92-26243 to 92-36252 before the RTC of Quezon City charging petitioner with violation of Batas Pambansa Bilang 22, otherwise known as the 5 Bouncing Checks Law. Except for the dates and the check numbers, the Informations uniformly allege: That on or about the in Quezon City, Philippines, the said accused did then and there willfully, unlawfully and feloniously make or draw and issue to JOAQUIN P. LOVALES III to apply on account or for value Equitable Banking Corp. Grace Park Caloocan Branch Check No. dated payable to SOLID GOLD INTERNATIONAL TRADERS, INC. in the amount of P50,000.00, Philippine Currency, said accused well knowing that at the time of issue she/he/they did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check when presented for payment was subsequently dishonored by the drawee bank for insufficiency of funds/Account Closed and despite receipt of notice of such dishonor, said accused failed to pay said SOLID GOLD INTERNATIONAL TRADERS, INC. the amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. CONTRARY TO LAW.
6 1

The cases were consolidated and subsequently raffled to Branch 99 of the said RTC. Upon arraignment, accused pleaded 7 not guilty. Trial then ensued. On December 22, 1993, the RTC rendered its decision, the dispositive portion of which reads: WHEREFORE, this Court finds the accused GUILTY of ten counts of violation of BP 22 and hereby sentences her to a penalty of one year imprisonment for each count, or a total of ten years, to be served in accordance with the

limitation prescribed in par. 4, Article 70 of the Revised Penal Code and to indemnify complainant the amount of the checks in their totality, or in the amount of P500,000.00. SO ORDERED.
8

Petitioner appealed to the Court of Appeals alleging that: the RTC has no jurisdiction over the offense charged in the ten informations; it overlooked the fact that no notice of dishonor had been given to the appellant as drawer of the dishonored checks; it failed to consider that the reason of "closed account" for the dishonor of the ten checks in these cases is not the statutory cause to warrant prosecution, much more a conviction, under B.P. Blg. 22; it failed to consider that there is only one act which caused the offense, if any, and not ten separate cases; and it disregarded the definition of what a 'check' is 9 under Sec. 185 of the Negotiable Instruments Law. Finding the appeal to be without merit, the Court of Appeals affirmed the decision of the trial court with costs against appellant. Hence, herein petition raising the following errors: I THAT THE COURT OF APPEALS ERRED IN NOT RESOLVING THE JURISDICTIONAL ISSUE IN FAVOR OF THE ACCUSED-APPELLANT BY UNJUSTLY DEPRIVING HER OF THE LEGAL BENEFITS OF GIVING RETROACTIVE EFFECT TO THE PROVISIONS OF R.A. NO. 7691 EXPANDING THE JURISDICTION OF THE INFERIOR COURTS TO COVER THE OFFENSES INVOLVED IN THESE CASES PURSUANT TO ART. 22 OF THE REVISED PENAL CODE, THUS IN EFFECT RENDERING THE JUDGMENT OF CONVICTION PROMULGATED BY THE TRIAL COURT BELOW AND AFFIRMED BY THE COURT OF APPEALS PATENTLY NULL AND VOID FOR HAVING BEEN RENDERED WITHOUT OR IN EXCESS OF JURISDICTION. II THAT THE COURT OF APPEALS ERRED IN NOT RESOLVING IN FAVOR OF ACCUSED-APPELLANT THE FACT THAT NO NOTICE OF DISHONOR HAD BEEN GIVEN HER AS DRAWER OF THE DISHONORED "CHECKS" PURSUANT TO THE REQUIREMENT EXPRESSLY PROVIDED UNDER BATAS PAMBANSA BILANG 22. III THAT THE COURT OF APPEALS ERRED IN CONSTRUING THE PROVISIONS OF BATAS PAMBANSA BILANG 22 CONTRARY TO THE WELL-ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT "PENAL STATUTES, SUBSTANTIVE AND REMEDIAL OR PROCEDURAL, ARE, BY THE CONSECRATED RULE, CONSTRUED STRICTLY AGAINST THE STATE, OR LIBERALLY IN FAVOR OF THE ACCUSED" AND THAT "IT IS ALWAYS THE DUTY OF THE COURT TO RESOLVE THE CIRCUMSTANCES OF EVIDENCE UPON A THEORY OF INNOCENCE RATHER THAN UPON A THEORY OF GUILT WHERE IT IS POSSIBLE TO DO SO", AND IN SO DOING THE DECISION APPEALED FROM INDULGED ITSELF IN "JUDICIAL LEGISLATION" TO FAVOR THE PROSECUTION AND TO WORK GRAVE INJUSTICE TO THE ACCUSED. Simply worded, the issues of this case may be stated as follows: (1) whether or not the appellate court erred in not 10 granting retroactive effect to Republic Act No. 7691 in view of Art. 22 of the Revised Penal Code (RPC); (2) whether or not notice of dishonor is dispensable in this case; and (3) whether or not the appellate court erred in construing B.P. Blg. 22. We will resolve the first and third issues before considering the second issue. First issue Whether or not the Court of Appeals erred in not giving retroactive effect to R.A. 7690 in view of Article 22 of the RPC. Petitioner argues that: the failure of the appellate court to give retroactive application to R.A. 7691 is a violation of Art. 22 of the Revised Penal Code which provides that penal laws shall have retroactive effect insofar as they favor the person guilty of the felony; R.A. 7691 is a penal law in the sense that it affects the jurisdiction of the court to take cognizance of criminal cases; taken separately, the offense covered by each of the ten Informations in this case falls within the exclusive

original jurisdiction of the Municipal Trial Court under Sec. 2 of R.A. 7691; and the Court of Appeals is guilty of judicial legislation in stating that after the arraignment of petitioner, said cases could no longer be transferred to the MTC without 11 violating the rules on double jeopardy, because that is not so provided in R.A. 7691. The Solicitor General, in its Comment, counters that the arguments of petitioner are baseless contending that: penal laws are those which define crimes and provides for their punishment; laws defining the jurisdiction of courts are substantive in nature and not procedural for they do not refer to the manner of trying cases but to the authority of the courts to hear and decide certain and definite cases in the various instances of which they are susceptible; R.A. No. 7691 is a substantive law and not a penal law as nowhere in its provisions does it define a crime neither does it provide a penalty of any kind; the purpose of enacting R.A. No. 7691 is laid down in the opening sentence thereof as "An Act Expanding the Jurisdiction of the Municipal Trial Courts, Municipal Circuit Trial Courts and the Metropolitan Trial Court" whereby it reapportions the jurisdiction of said courts to cover certain civil and criminal case, erstwhile tried exclusively by the Regional Trial Courts; consequently, Art. 22 of the RPC finds no application to the case at bar; jurisdiction is determined by the law in force at the time of the filing of the complaint, and once acquired, jurisdiction is not affected by subsequent legislative enactments placing jurisdiction in another tribunal; in this case, the RTC was vested with jurisdiction to try petitioner's cases when the 12 same were filed in October 1992; at that time, R.A. No. 7691 was not yet effective; in so far as the retroactive effect of R.A. No. 7691 is concerned, that same is limited only to pending civil cases that have not reached pre-trial stage as 13 provided for in Section 7 thereof and as clarified by this Court in People vs. Yolanda Velasco , where it was held: "[a] perusal of R.A. No. 7691 will show that its retroactive provisions apply only to civil cases that have not yet reached the pre-trial stage. Neither from an express proviso nor by implication can it be understood as having retroactive application to 14 criminal cases pending or decided by the RTC prior to its effectivity." On this point, the Court fully agrees with the Solicitor General and holds that Article 22 of the Revised Penal Code finds no application to the case at bar. Said provision reads: ART. 22. Retroactive effect of penal laws. Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving sentence. A penal law, as defined by this Court, is an act of the legislature that prohibits certain acts and establishes penalties for its 15 violations. It also defines crime, treats of its nature and provides for its punishment. R.A. No. 7691 does not prohibit certain acts or provides penalties for its violation; neither does it treat of the nature of crimes and its punishment. Consequently, R.A. No. 7691 is not a penal law, and therefore, Art. 22 of the RPC does not apply in the present case. B. P. Blg. 22, which took effect on April 24, 1979, provides the penalty of imprisonment of not less than thirty days but not more than one year or by a fine of not less than but not more then double the amount of the check which fine shall in no case exceed P200,000.00, or both such fine and imprisonment at the discretion of the court. R.A. No. 7691 which took effect on June 15, 1994, amended B.P. Blg. 129, and vested on the Metropolitan, Municipal and 16 Municipal Circuit Trial Courts jurisdiction to try cases punishable by imprisonment of not more than six (6) years. Since 17 R.A. No. 7691 vests jurisdiction on courts, it is apparent that said law is substantive. In the case of Cang vs. Court of Appeals, this Court held that "jurisdiction being a matter of substantive law, the established rule is that the statute in force at the time of the commencement of the action determines the jurisdiction of the 19 court." R.A. No. 7691 was not yet in force at the time of the commencement of the cases in the trial court. It took effect 20 only during the pendency of the appeal before the Court of Appeals. There is therefore no merit in the claim of petitioner that R.A. No. 7691 should be retroactively applied to this case and the same be remanded to the MTC. The Court has held that a "law vesting additional jurisdiction in the court cannot be given retroactive effect."21 Third issue Whether or not the Court of Appeals erroneously construed B.P. Blg. 22. Petitioner insists that: penal statutes must be strictly construed and where there is any reasonable doubt, it must always 22 be resolved in favor of the accused; the Court of Appeals, in construing that B.P. Blg. 22 embraces cases of "no funds" or "closed accounts" when the express language of B.P. Blg. 22 penalizes only the issuance of checks that are subsequently dishonored by the drawee bank for "insufficiency" of funds or credit, has enlarged by implication the 23 meaning of the statute which amounts to judicial legislation; a postdated check, not being drawn payable on demand, is technically not a special kind of a bill of exchange, called check, but an ordinary bill of exchange payable at a fixed date,
18

which is the date indicated on the face of the postdated check, hence, the instrument is still valid and the obligation 24 covered thereby, but only civilly and not criminally; the trial court also erroneously cited a portion in the case of Lozano 25 vs. Martinez that the "language of B.P. Blg. 22 is broad enough to cover all kinds of checks, whether present dated or postdated, or whether issued in payment of pre-existing obligations or given in mutual or simultaneous exchange for 26 something of value," since the same is mereobiter dictum; in the interpretation of the meaning of a "check", where the 27 law is clear and unambiguous, the law must be taken as it is, devoid of judicial addition or subtraction. The Solicitor General counters that a postdated check is still a check and its being a postdated instrument does not necessarily make it a bill of exchange "payable at a fixed or determinable future time" since it is still paid on demand on 28 the date indicated therein or thereafter just like an ordinary check. It also points out that the doctrine laid down in Lozano 29 vs. Martinez was reiterated in People vs. Nitafan, hence, it can no longer be argued that the statement in the case of Lozano regarding the scope of "checks" is mere obiter dictum. Again, we agree with the Solicitor General and find petitioner's claim to be without merit. The rationale behind B.P. Blg. 22 was initially explained by the Court in the landmark case of Lozano vs. Martinez we held that:
30

where

The gravamen of the offense punished by B.P. Blg. 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment The thrust of the law is to prohibit, under pain of penal sanctions, the making or worthless checks and putting them in circulation. Because of its deleterious effects on the public interest, the practice is proscribed by law. The law punished the act not as an offense against 31 property, but an offense against public order. ... The effects of the issuance of a worthless check transcend the private interests of the parties directly involved in the transaction and touches the interests of the community at large. The mischief it creates is not only a wrong to the payee or holder but also an injury to the public. The harmful practice of putting valueless commercial papers in circulation, multiplied a thousandfold, can very well pollute the channels of trade and commerce, injure the 32 banking system and eventually hurt the welfare of society and the public interest. The same is reiterated in Cueme vs. People
33

where we pronounced that:

. . . B.P. Blg. 22 was purposely enacted to prevent the proliferation of worthless checks in the mainstream of daily business and to avert not only the undermining of the banking system of the country but also the infliction of damage and injury upon trade and commerce occasioned by the indiscriminate issuances of such checks. By its 34 very nature, the offenses defined under B.P. Blg. 22 are against public interest. In Recuerdo vs. People, this Court also held that the terms and conditions surrounding the issuance of the checks are irrelevant since its primordial intention is to ensure the stability and commercial value of checks as being virtual 35 substitutes for currency. Petitioner's claim that cases of "closed accounts" are not included in the coverage of B.P. Blg. 22 has no merit considering the clear intent of the law, which is to discourage the issuance of worthless checks due to its harmful effect to the public. This Court, in Lozano vs. Martinez, was explicit in ruling that the language of B.P. Blg. 22 is broad enough to cover all kinds of checks, whether present dated or postdated, or whether issued in payment of pre-existing obligations or given in 36 mutual or simultaneous exchange for something of value. In People vs. Nitafan,
37

the Supreme Court reiterated this point and held that:

B.P. Blg. 22 does not distinguish but merely provides that "[any person who makes or draws and issues any check knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank which check is subsequently dishonored shall be punished by imprisonment Ubi lex non distinguit nec nos distinguere debemus. But even if We retrace the enactment of the "Bouncing Check Law" to determine the parameters of the concept of "check", we can easily glean that the members of the then Batasang Pambansa intended it to be comprehensive 38 as to include all checks drawn against banks.

In this light, it is easy to see that the claim of petitioner that B.P. Blg. 22 does not include 'postdated checks' and cases of 'closed accounts' has no leg to stand on. The term "closed accounts" is within the meaning of the phrase "does not have sufficient funds in or credit with the drawee bank". Anent the second issue: whether or not notice of dishonor is dispensable in the case at bar. Petitioner failed to show any cogent reason for us to disturb the findings of the RTC and the Court of Appeals. B.P. Blg. 22 or the Bouncing Check's Law seeks to prevent the act of making and issuing checks with the knowledge that at the time of issue, the drawer does not have sufficient funds in or credit with the bank for payment and the checks were 39 subsequently dishonored upon presentment. To be convicted thereunder, the following elements must be proved: 1. The accused makes, draws or issues any check to apply to account or for value; 2. The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with, the drawee bank for the payment of the check in full upon its presentment; and 3. The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or it would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop 40 payment. For liability to attach under B.P. Blg. 22, it is not enough that the prosecution establishes that checks were issued and that the same were subsequently dishonored. The prosecution must also prove that the issuer, at the time of the check's issuance, had knowledge that he did not have enough funds or credit in the bank of payment thereof upon its 41 presentment. Since the second element involves a state of mind which is difficult to establish, Section 2 of B.P. Blg. 22 created aprima facie presumption of such knowledge, as follows: SEC. 2. Evidence of knowledge of insufficient funds. The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. Based on this section, the presumption that the issuer had knowledge of the insufficiency of funds is brought into existence only after it is proved that the issuer had received a notice of dishonor and that within five days from receipt 42 thereof, he failed to pay the amount of the check or to make arrangement for its payment. The presumption or prima facie evidence as provided in this section cannot arise, if such notice of non-payment by the drawee bank is not sent to the maker or drawer, or if there is no proof as to when such notice was received by the drawer, since there would simply 43 be no way of reckoning the crucial 5-day period. In this case, it is not disputed that checks were issued by petitioner and said checks were subsequently dishonored. The question however is, was petitioner furnished a notice of dishonor? If not, is it sufficient justification to exonerate petitioner from her criminal and civil liabilities for issuing the bouncing checks? The trial court ruled that the second element is present because: the accused knew at the time of issuance of the checks that she did not have sufficient funds in or credit with her drawee bank for the payment of the checks in full upon their presentment [as admitted by her in the CounterAffidavit she executed during the preliminary investigation of these criminal cases (itals. ours), to wit: 4. That the time of the issuance of the said checks, due notice and information had been so given to Solid Gold anent the actual status of the checks that the same might not be able to cover the amount of the said checks so stated therein (Exhibit "N", "1", underscoring supplied). This fact became evident again during the cross-examination by the accused's counsel of the prosecution's witness, Joaquin Novales III:

ATTY. TAGANAS: Q: And the reason you agreed to the terms and conditions for the issuance of post-dated checks because you are also aware the particular time the accused Mrs. Elvira Yu Oh did not also have enough funds or money in the bank within which to cover the amount of the checks? A: I am not aware, sir. ... Q: To your knowledge when the accused had already admitted to you that she had not enough money to pay you? A: That is the terms and promise and agreed upon, sir. Q: But inspite of the fact that she already told you about that, that you never suspected that she did not have enough money to cover the checks agreed upon and issued to you? A: Yes, sir. Q: And inspite of the fact she told you you never suspected that she did not have enough money to cover you . . . Q: You still believe that although she does not have enough money she still issued checks to you? A: Yes, sir. (TSN, April 6, 1993, pp. 24-26) At any rate, there is already prima facie evidence of knowledge of insufficiency of funds on the part of the accused from her failure to pay the amount due on the checks or to make arrangements for payment in full by the drawee bank within five banking days after she received notice of their dishonor, each of the checks having been presented within ninety days from their respective dated (B.P. Blg. 22, Sec. 2). The defense did not controvert this 44 evidence. (itals. ours) Although the trial court in its decision, mentioned that herein petitioner received notices of dishonor, nowhere in the records is there proof that the prosecution ever presented evidence that petitioner received or was furnished a notice of dishonor. The notices of dishonor that were presented in court and marked as Exhibits "D-2", "E-2", "F-2", "G-2", "H-2", "I45 2", "J-2", "K-2", "L-2", "C-2" were all sent to the private complainant, Solid Gold, and not to petitioner. In convicting petitioner, the trial court, gave probative weight on the admission of petitioner in her Counter-Affidavit which she submitted during the preliminary investigation that at the time of issuance of the subject checks, she was aware and even told private complainant that the checks might not be able to cover the amount stated therein. The Court of Appeals sustained the RTC, to wit: . . . Neither can We agree that accused-appellant was still entitled to notice of dishonor of the bouncing checks as she had no more checking account with the drawee bank at the time of the dishonor of the ten checks in question. Accused-appellant must have realized that by closing her checking account after issuing the ten postdated checks, all of said checks would bounce. Knowing that she had already closed her checking account with the drawee bank, certainly accused-appellant would not have expected, even in her wildest imagination, that her postdated checks would be honored by the drawee bank. Thus, accused-appellant need not be notified anymore 46 of the obvious dishonor of her rubber checks. (itals. ours) Based on the law and existing jurisprudence, we find that the appellate court erred in convicting petitioner. In cases for violation of B.P. Blg. 22, it is necessary that the prosecution prove that the issuer had received a notice of dishonor. Since service of notice is an issue, the person alleging that the notice was served must prove the fact of service. Basic also is the doctrine that in criminal cases, the quantum of proof required is proof beyond reasonable doubt. Hence, 47 for cases of B.P. Blg. 22 there should be clear proof of notice.

Indeed, this requirement cannot be taken lightly because Section 2 provides for an opportunity for the drawer to effect full payment of the amount appearing on the check, within five banking days from notice of dishonor. The absence of said notice therefore deprives an accused of an opportunity to preclude criminal prosecution. In other words, procedural due process demands that a notice of dishonor be actually served on petitioner. In the case at bar, appellant has a right to demand and the basic postulate of fairness requires that the notice of dishonor be actually sent to and received by her 48 to afford her to opportunity to aver prosecution under B.P. Blg. 22. The Solicitor General contends that notice of dishonor is dispensable in this case considering that the cause of the dishonor of the checks was "Account Closed" and therefore, petitioner already knew that the checks will bounce anyway. This argument has no merit. The Court has decided numerous cases where checks were dishonored for the reason, 49 "Account Closed" and we have explicitly held in said cases that "it is essential for the maker or drawer to be notified of the dishonor of her check, so she could pay the value thereof or make arrangements for its payment within the period 50 prescribed by law" and omission or neglect on the part of the prosecution to prove that the accused received such notice 51 of dishonor is fatal to its cause. A perusal of the testimony of the prosecution witness Joaquin Novales III, General Manager of complainant Solid Gold, 52 discloses that no personal demands were made on appellant before the filing of the complaints against her. Thus, absent a clear showing that petitioner actually knew of the dishonor of her checks and was given the opportunity to make arrangements for payment as provided for under the law, we cannot with moral certainty convict her of violation of B.P. Blg. 22. The failure of the prosecution to prove that petitioner was given the requisite notice of dishonor is a clear ground 53 for her acquittal. Moreover, as understood by the trial court itself in the herein aforequoted portion of its decision, General Manager Novales knew of the non-availability of sufficient funds when appellant issued the subject checks to him. This Court has 54 held that there is no violation of B.P. 22 if complainant was told by the drawer that he has no sufficient funds in the bank. For these reasons, we reverse the ruling of the Court of Appeals affirming the trial court's conviction of petitioner for violation of B.P. Blg. 22. This is without prejudice, however, to her civil liability towards private complainant Solid Gold in 55 the amount of P500,000.00 plus interest thereon at the rate of 12% per annum from date of finality of herein judgment. WHEREFORE, the assailed Decision and Resolution of the Court of Appeals are hereby REVERSED and SET ASIDE. Petitioner Elvira Yu Oh is ACQUITTED of the offense of violation of B.P. Blg. 22 on ten counts for insufficiency of evidence. However, she is ordered to pay complainant Solid Gold International Traders, Inc. the total amount of Five Hundred Thousand Pesos (P500,000.00) with 12% interest per annum from date of finality of herein judgment. SO ORDERED. HIRD DIVISION

ISIDRO PABLITO M. PALANA, Petitioner,

G.R. No. 149995 Present: Ynares-Santiago, J. (Chairperson), Austria-Martinez, Chico-Nazario, Nachura, and Reyes, JJ. Promulgated: September 28, 2007

- versus -

PEOPLE OF THE PHILIPPINES, Respondent.

x ---------------------------------------------------------------------------------------- x DECISION

YNARES-SANTIAGO, J.:

For review is the Decision of the Court of Appeals in CA-G.R. CR No. 21879 dated September 17, 2001, [1] affirming the September 23, 1997 Decision of the Regional Trial Court of Makati City, Branch 63, in Criminal Case No. 91-5617 convicting petitioner Isidro Pablito Palana with violation of Batas Pambansa (B.P.) Blg. 22 otherwise known as the Bouncing Checks Law. On August 19, 1991, petitioner was charged with violation of B.P. Blg. 22 in an Information which reads as follows:

That on or about September 1987, in the Municipality of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused did, then and there, willfully, unlawfully and knowingly make or draw and issue to Alex B. Carlos to apply on account or for the value the check described below: Check No. Drawn Against In the amount of Postdated Payable to : : 326317PR Asian Savings Bank Paseo de Roxas Branch : P590,000.00 : February 15, 1988 : Dr. Alex B. Carlos

said accused well knowing that at the time of issue, he did not have sufficient funds in or credit with the drawee bank for the payment in full of the face amount of such check when presented for payment within (90) days from the date thereof, was subsequently dishonored by the drawee bank for the reason Drawn Against Insufficient Funds and despite receipt of notice of such dishonor, the accused failed to pay said payee the face amount of said check or make arrangement for full payment within five (5) banking days after receiving notice. [2] On January 30, 1992, the case was archived due to petitioners non-apprehension despite the issuance of a warrant for his arrest. On June 27, 1995, the warrant of arrest was recalled and set aside [4] after petitioner posted the required bail. He was arraigned on July 25, 1995 when he pleaded not guilty to the offense charged.[5]
[3]

Private complainant Alex B. Carlos testified that sometime in September 1987, petitioner and his wife borrowed money from him in the amount of P590,000.00. To secure the payment of the loan, petitioner issued a postdated check for the same amount in favor of the complainant.[6] However, when the check was presented for payment, it was dishonored by the bank for insufficiency of funds. Subsequent demand notwithstanding, petitioner failed to make good the said dishonored check.[7]

Petitioner alleged that the amounts given to him by private complainant was an investment by the latter who was his business partner. He argued that the subject check was not issued in September 1987 to guarantee the payment of a loan since his checking account was opened only on December 1, 1987.[8] He claimed that private complainant cajoled him to issue a check in his favor allegedly to be shown to a textile supplier who would provide the partnership with the necessary raw materials. Petitioner alleged that when the check was issued sometime in February 1988, [9] complainant knew that the same was not funded.[10] After trial on the merits, the Regional Trial Court rendered on September 23, 1997 a Decision[11] finding petitioner guilty as charged, the dispositive portion of which reads: Wherefore, this court finds the accused Isidro Pablito M. Palana guilty as charged and sentences him to a prison term of Six (6) months and to indemnify the private complainant the sum ofP590,000.00 plus legal interest from filing of this case until full payment. SO ORDERED. Petitioner appealed but it was dismissed by the Court of Appeals which affirmed the trial courts decision in toto.[12] Both the trial court and the Court of Appeals found that the check was issued as a guaranty for the loan, thereby rejecting petitioners investment theory. In ruling against the existence of a partnership between them, the trial court noted that the so-called partnership venture, Palanas General Merchandising, was registered on December 1, 1987 only in the name of petitioner.[13] The Court of Appeals also held that the act of lending money does not necessarily amount to an investment of capital. Hence, the instant petition raising the following issues: I. THE COURT OF APPEALS ERRED IN AFFIRMING THE FINDING OF THE LOWER COURT DISREGARDING THE DEFENSE OF THE ACCUSED THAT THE ISSUANCE OF THE SUBJECT ASIAN BANK CHECK, WAS NOT FOR A CONSIDERATION OR FOR VALUE, AS THE ACCUSED WAS ONLY TRICKED BY THE PRIVATE COMPLAINANT TO ISSUE THE SAID CHECK AS A MEANS OF BINDING THE ACCUSED TO RETURN HIS INVESTMENT IN THE PARTNERSHIP WHICH WAS THEN SUFFERING FROM BUSINESS REVERSALS. II. THE COURT OF APPEALS ERRED IN AFFIRMING THE FINDINGS OF THE LOWER COURT THAT THE REGIONAL TRIAL COURT HAS JURISDICTION OVER THE CASE, DESPITE THE FACT THAT AT THE TIME THE ACCUSED WAS ARRAIGNED ON JULY 25, 1995 R.A. 7691 EXPANDING THE JURISDICTION OF THE METROPOLITAN TRIAL COURT WAS ALREADY IN EFFECT.[14] The issues to be resolved are: 1) whether petitioner was guilty of violation of B.P. Blg. 22; and 2) whether the Regional Trial Court has jurisdiction over the case. Petitioners argument that it is the Metropolitan Trial Court and not the Regional Trial Court which has jurisdiction over the case pursuant to R.A. 7691 is without merit. It is hornbook doctrine that jurisdiction to try a criminal action is determined by the law in force at the time of the institution of the action[15] and not during the arraignment of the accused. The Information charging petitioner with violation of B.P. Blg. 22 was filed on August 19, 1991. At that time, the governing law determinative of jurisdiction is B.P. Blg. 129 [16] which provides: Sec. 20. Jurisdiction in criminal cases. Regional Trial Courts shall exercise exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court, tribunal or body, except those now falling

under the exclusive and concurrent jurisdiction of the Sandiganbayan which shall hereafter be exclusively taken cognizance by the latter. xxxx Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Criminal Cases. Except in cases falling within the exclusive original jurisdiction of Regional Trial Courts and the Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: xxxx (2) Exclusive original jurisdiction over all offenses punishable with imprisonment of not exceeding four years and two months, or a fine of not more than four thousand pesos, or both such fine and imprisonment, regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof: Provided, however, That in offenses involving damage to property through criminal negligence they shall have exclusive original jurisdiction where the imposable fine does not exceed twenty thousand pesos. Violation of B.P. Blg. 22 is punishable with imprisonment of not less than 30 days but not more than one year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed P200,000.00, or both fine and imprisonment[17] at the discretion of the court. In the present case, the fine imposable isP200,000.00 hence, the Regional Trial Court properly acquired jurisdiction over the case. [18] The Metropolitan Trial Court could not acquire jurisdiction over the criminal action because its jurisdiction is only for offenses punishable with a fine of not more than P4,000.00. The subsequent amendment of B.P. 129 by R.A. No. 7691, An Act Expanding the Jurisdiction of the Municipal Trial Courts, Municipal Circuit Trial Courts and the Metropolitan Trial Court [19] on June 15, 1994 cannot divest the Regional Trial Court of jurisdiction over petitioners case. Where a court has already obtained and is exercising jurisdiction over a controversy, its jurisdiction to proceed to the final determination of the cause is not affected by new legislation placing jurisdiction over such proceedings in another tribunal unless the statute expressly provides, or is construed to the effect that it is intended to operate on actions pending before its enactment. Indeed, R.A. No. 7691 contains retroactive provisions. However, these only apply to civil cases that have not yet reached the pre-trial stage. Neither from an express proviso nor by implication can it be construed that R.A. No. 7691 has retroactive application to criminal cases pending or decided by the Regional Trial Courts prior to its effectivity. [20] The jurisdiction of the RTCover the case attached upon the commencement of the action by the filing of the Information and could not be ousted by the passage of R.A. No. 7691 reapportioning the jurisdiction of inferior courts, the application of which to criminal cases is prospective in nature.[21] After a careful review of the records, this Court sustains petitioners conviction for violation of B.P. Blg. 22. The elements of the offense penalized under B.P. Blg. 22 are as follows: (1) the accused makes, draws, or issues any check to apply on account or for value; (2) the accused knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and (3) the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment. Each element of the offense was duly proven by the prosecution. Petitioner admitted that at the time he issued the subject check, he knew that he does not have sufficient funds in or credit with the drawee bank for payment of such check. Consequently, when the check was presented for payment, it was dishonored by the drawee bank for insufficiency of funds. Thereafter, he received demand letters to pay the amount of the check from private complainant but he did not comply with it. [22] In ruling that the amount of the check was for consideration or value, both the trial court and the Court of Appeals upheld private complainants claim that the check was issued as a guaranty for the loan and rejected petitioners investment theory. The issue as to whether the amount of the subject check represents the amount of the money loaned by private complainant to petitioner or as an investment in the alleged partnership is a factual question involving the credibility of witnesses. Where the issue is one of credibility, the appellate court will not generally disturb the findings of the lower court considering that it is in a better position to

settle that issue since it had the advantage of hearing the witnesses and observing their conduct during the trial, which circumstances carry great weight in assessing their credibility. In the present case, we see no reason to reverse the finding of the trial court as affirmed by the Court of Appeals that the amount of the subject check was a loan and not an investment. [23] Upon issuance of a check, in the absence of evidence to the contrary, it is presumed that the same was issued for valuable consideration, which may consist either in some right, interest, profit or benefit accruing to the party who makes the contract, or some forbearance, detriment, loss or some responsibility, to act, or labor, or service given, suffered or undertaken by the other side. Since it was established that petitioner received money from private complainant in various amounts,[24] petitioner cannot now claim that the checks were not issued for value.[25] The allegation that the check was intended to be shown to potential suppliers is not a valid defense. In Cueme v. People, the Court held thus:
[26]

The allegation of petitioner that the checks were merely intended to be shown to prospective investors of her corporation is, to say the least, not a defense. The gravamen of the offense punished under B.P. Blg. 22 is the act of making or issuing a worthless check or a check that is dishonored upon its presentment for payment. The law has made the mere act of issuing a bad check malum prohibitum, an act proscribed by the legislature for being deemed pernicious and inimical to public welfare. Considering the rule in mala prohibita cases, the only inquiry is whether the law has been breached. Criminal intent becomes unnecessary where the acts are prohibited for reasons of public policy, and the defenses of good faith and absence of criminal intent are unavailing. The checks issued, even assuming they were not intended to be encashed or deposited in a bank, produce the same effect as ordinary checks. What the law punishes is the issuance of a rubber check itself and not the purpose for which the check was issued nor the terms and conditions relating to its issuance. This is not without good reasons. To determine the purpose as well as the terms and conditions for which checks are issued will greatly erode the faith the public reposes in the stability and commercial value of checks as currency substitutes, and bring about havoc in the trading and banking communities. Besides, the law does not make any distinction as to the kind of checks which are the subject of its provisions, hence, no such distinction can be made by means of interpretation or application. What is important is the fact that petitioner deliberately issued the checks in question and those checks were dishonored upon presentment for payment. Hence, the agreement surrounding the issuance of a check is irrelevant to the prosecution and conviction of the petitioner. [27] The alleged inconsistency in the date of issuance of the subject check is likewise immaterial. Issuance, as defined under the Negotiable Instruments Law, is the first delivery of the check.[28] In the case at bar, the Information alleged that the check was postdated February 15, 1988 although issued in or about September 1987. During trial, petitioner testified that the Checking Account was opened only on December 1, 1987 and that the check was issued sometime in February 1988. The rule is that a variance between the allegation in the information and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his substantial rights. [29] In a prosecution for violation of B.P. 22, the time of the issuance of the subject check is material since it forms part of the second element of the offense that at the time of its issuance, petitioner knew of the insufficiency of funds. However, it cannot be said that petitioner was prejudiced by such variance nor was surprised by it. Records show that petitioner knew at the time he issued the check that he does not have sufficient funds in the bank to cover the amount of the check. Yet, he proceeded to issue the same claiming that the same would only be shown to prospective suppliers, a defense which is not valid. Moreover, there is no merit in petitioners allegation that private complainant knew that the check is not funded. Both the trial court and the Court of Appeals found that the subject check was issued as guaranty for payment of the loan hence, was intended to apply for account or for value. As such, it was incumbent upon petitioner to see to it that the check is duly covered when presented for payment.

Pursuant to Supreme Court Administrative Circular No. 12-2000, as clarified by Administrative Circular No. 13-2001, the alternative penalty of fine may be imposed in lieu of imprisonment considering that the prosecution failed to prove or allege that petitioner is not a first-time offender.[30] Hence, in lieu of imprisonment, a fine of P200,000.00 shall be imposed upon petitioner.[31] WHEREFORE, the assailed decision of the Court of Appeals in CA-G.R. CR No. 21879 dated September 17, 2001, finding petitioner ISIDRO PABLITO M. PALANA guilty of violating Batas Pambansa Blg. 22, is AFFIRMED with MODIFICATION. Petitioner is ordered to pay private complainant the amount of P590,000.00, representing the value of the check, with six (6%) percent interest from date of filing of the Information until the finality of the decision, the amount of which, inclusive of the interest, is subject to twelve percent (12%) interest, from finality of the decision until fully paid. In lieu of imprisonment, petitioner is ordered to pay a fine of P200,000.00. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 125834 December 6, 1999 VIOLETA SANTIAGO VILLA, petitioner, vs. HONORABLE COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, respondents.

KAPUNAN, J.: Petitioner seeks the modification of the Decision, dated August 19, 1994 of the respondent Court of Appeals in CA-G.R. CR No. 13611 imposing on her an indeterminate penalty of imprisonment ranging from six (6) years and one (1) day as minimum to ten (10) years as maximum for illegal possession of prohibited drugs. Petitioner was charged before the Regional Trial Court of Bulacan, Branch 11, Malolos, in an Information which reads: That on or about the 4th day of May, 1991, in the municipality of Guiguinto, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Violeta Santiago y Villa alias Violy, without authority of law, did then and there wilfully, unlawfully and feloniously possess two (2) sticks of marijuana cigarettes, which is a prohibited drug and fourteen (14) decks of metamphetamine hydrochloride (shabu); a regulated drug, without authority of law. Contrary to law.
1

After trial, the trial court rendered its Decision on May 22, 1992, the pertinent part of the dispositive portion states: xxx xxx xxx However, in Criminal Case No. 748-M-91, this Court finds accused Violeta Santiago GUILTY beyond reasonable doubt of violation of Section 8, Art. II of RA 6425 (Possession of Prohibited Drugs) and hereby sentences her to suffer the penalty of RECLUSION TEMPORALin its maximum period (17 years, 8 2 months and 1 day to 20 years) and to pay a fine of Twenty Thousand (P20,000.00) Pesos.

Petitioner interposed an appeal before the respondent Court of Appeals. In the meantime, on May 16, 1994, petitioner was also convicted of the crime of illegal possession of firearms and sentenced to suffer a prison term ranging from 17 years, 4 months and 1 day to 20 years of reclusion temporal as maximum. On August 19, 1994, the respondent Court of Appeals rendered its Decision on the appeal, the dispositive portion of which reads: WHEREFORE, the appealed decision dated May 22, 1992 is AFFIRMED with the modification that the accused-appellant is sentenced to an indeterminate penalty of imprisonment ranging from six (6) years and one (1) day as minimum to ten (10) years as maximum and to pay a fine of ten thousand pesos (P10,000.00). SO ORDERED.
3

Petitioner started serving her sentence at the Correctional Institution for Women (CIW) in Mandaluyong City on August 14, 4 1993. On January 12, 1996, she filed a Motion for Reconsideration and Modification of Sentence with the respondent court 5 seeking for the retroactive application to her of our decision in People vs. Simon. She prayed that her sentence be reduced from six (6) years and one (1) day to ten (10) years to six (6) months to two (2) years and four (4) months and that her sentence for the violation of Section 8, Article II of R.A. No. 6425 be declared fully served. On March 22, 1996, the respondent court issued a Resolution denying petitioner's motion for reconsideration and modification of sentence. A motion for reconsideration of the resolution was, likewise, denied. Hence, this petition wherein petitioner raises the following issues, to wit: I. WHETHER OR NOT THE HONORABLE COURT OF APPEALS IS COMPETENT TO REOPEN THE CASE AT BAR OR TO CONSIDER THE; MOTION FOR RECONSIDERATION AND MODIFICATION OF SENTENCE FILED FOR THE PURPOSE OF REDUCING THE PENALTY. II. WHETHER OR NOT FINAL CONVICTION AND SERVING OF SENTENCE IN ANOTHER CASE IS A BAR TO THE REDUCTION OF SENTENCE IN THE OFFENSE OF VIOLATION OF REP. ACT NO. 6 6425, AS AMENDED BY FAVORABLE AND RETROACTIVE PROVISIONS OF REP. ACT NO. 7659. We shall deal with the issues together as they are interrelated. In the present case, the respondent court refused to apply the ruling in Simon on the ground that aside from serving sentence for possession of prohibited drugs, she has, likewise, been convicted and is serving sentence for illegal possession of firearms. It is the respondent court's opinion that the retroactive application of the provision of R.A. No. 7659 would only be relevant if the convict has already served more than the maximum imposable penalty under the law and not where the convict is also serving sentence for another crime as in this case. We disagree. In Simon, it is clear that the favorable provision of R.A. No. 7659 (The Death Penalty Law) must be given retroactive effect 7 except in the case of a habitual criminal as provided for in Article 22 of the Revised Penal Code. Thus, we ruled: Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana with a total weight of only 3.8 grams and, in fact, stands to be convicted for the sale of only two of those tea bags, the initial inquiry would be whether the patently favorable provisions of Republic Act No. 7659 should be given retroactive effect to entitle him to the lesser penalty provided thereunder, pursuant to Article 22 of the Revised Penal Code.

Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory and in substitution of the previous Articles 190 to 194 of the Revised Penal Code, it has long been settled that by force of Article 10 of the said Code the beneficent provisions of Article 22 thereof applies to and shall be given retrospective effect to crimes punished by special laws. The exception in the said article would not apply to those convicted of drug offenses since habitual delinquency refers to convictions for the third time or more of the crime of serious or lee serious physical injuries, robo, hurto, estafa or falsification. Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then been involved nor invoked in the present case, a corollary question would be whether this court, at the present stage, can sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on appellant. That issue has likewise been resolved in the cited case of People vs. Moran, et al.,ante., thus: . . . . The plain precept contained in article 22 of the Penal Code, declaring the retroactivity of penal laws in so far as they are favorable to persons accused of a felony, would be useless and nugatory if the courts of justice were not under obligation to fulfill such duty, irrespective of whether or not the accused has applied for it, just as would also all provisions relating to the prescription of the crime and the penalty. (Emphasis ours). In the present case, petitioner does not fall within the exception provided for by law. She was never convicted of any of the crimes stated under Article 62, paragraph 5, of the Revised Penal Code which would make her a habitual delinquent. Habitual delinquency is considered only with respect to the crimes specified in said Article. Hence, a conviction for illegal possession of drugs and for that matter, conviction for illegal possession of firearms, is not reckoned in habitual 8 delinquency. To deny petitioner's light to avail of the beneficial ruling in Simon would be a violation of a right clearly granted by law. We now come to the question as to whether the respondent Court has the jurisdiction to entertain the motion for reconsideration and modification of sentence filed by petitioner. In Simon, we categorically said that: [I]f the judgment which could be affected and modified by the reduced penalties provided in Republic Act No. 7659 has already become final and executory or the accused is serving sentence thereunder, then practice, procedure and pragmatic considerations would warrant and necessitate the matter being 9 brought to the judicial authorities for relief under a writ of habeas corpus. In the interest of justice, this Court has relaxed this rule and treated motions for reconsideration and modification of 10 sentence as substantial compliance of the rules on habeas corpus. In People vs. George Agustin y Pocno, this Court ruled that: . . . . In line with this Court's Resolution in Rolando Angeles y Bombita v. Director of New Bilibid Prison, dated 04 January 1995, allowing a liberal application in cases of this nature of the rules on habeas corpus, the usual proper remedy for invoking the retroactive effect of R.A. No. 7659, we now hereby so treat the instant motion as a substantial compliance therewith. . . . Likewise, in People vs. Rita Labriaga and Joel Labriaga,
11

we stated that:

The appropriate remedy of accused-appellant is to file a petition for habeas corpus considering that the decision in this case is now final. However, in accordance with our resolution Angeles v. Bilibid Prison, G.R. No. 117568, January 4, 1995 and People v. Agustin, G.R. No. 98362, September 5, 1995, in which we held that the rules on habeas corpus should be liberally applied in cases which are sufficient in substance, we have decided to treat the motion in this case as a substantial compliance with the rules on habeas corpus. . . . Following our pronouncement in the said cases, the respondent court should have treated the motion for reconsideration and modification of sentence filed by petitioner as a petition for the issuance of a writ of habeas corpus and modified the penalty imposed on petitioner. In this case, petitioner was charged and convicted of possessing only two (2) sticks of marijuana and fourteen (14) decks of shabu the total weight of which were not even indicated. Following Simon, the penalty that should be imposed in this case is prision correccional. Applying the Indeterminate Sentence Law, the minimum penalty that can be imposed on her

should be within the range of arresto mayor. Thus, the penalty that should be imposed is six (6) months of arresto mayor to two (2) years and four (4) months of prision correccional. Considering that petitioner has been serving sentence since August 14, 1993 up to the present for possession of prohibited drugs, which is more than the imposable penalty under the law, petitioner should be considered as having served the full term of her sentence. However, since she was, likewise, convicted and sentenced for illegal possession of firearms, her continued detention is necessary until the full term of her sentence for said crime has been served. WHEREFORE, premises considered, the petition is hereby GRANTED and the decision of the respondent Court of Appeals is accordingly MODIFIED in that the penalty of six (6) years and one (1) day to ten (10) years imposed upon petitioner is reduced to six (6) months of arresto mayor to two (2) years and four (4) months of prision correccional. Considering that petitioner has been serving sentence since August 14, 1993 up to the present for possession of prohibited drugs, which is more than the imposable penalty under the law, petitioner should be considered as having served the full term of her sentence. The penalty imposed on the petitioner for possession of prohibited drugs is hereby DECLARED FULLY SERVED. However, since petitioner is still serving her sentence for illegal possession of firearms, she cannot be released yet. SO ORDERED. THIRD DIVISION

[G.R. Nos. 136149-51. September 19, 2000]

PEOPLE OF THE PHILIPPINES, appellee, vs. WALPAN LADJAALAM y MIHAJIL alias WARPAN, appellant. DECISION PANGANIBAN, J.: Republic Act No. 8294 penalizes simple illegal possession of firearms, provided that the person arrested committed no other crime. Furthermore, if the person is held liable for murder or homicide, illegal possession of firearms is an aggravating circumstance, but not a separate offense. Hence, where an accused was convicted of direct assault with multiple attempted homicide for firing an unlicensed M-14 rifle at several policemen who were about to serve a search warrant, he cannot be held guilty of the separate offense of illegal possession of firearms. Neither can such unlawful act be considered to have aggravated the direct assault.

The Case

Walpan Ladjaalam y Mihajil, also known as Warpan, appeals before us the September 17, 1998 Decision of the Regional Trial Court (RTC) of Zamboanga City (Branch 16), which found him guilty of three out of the four charges lodged against him. Filed against appellant were four Informations, all signed by Assistant Regional State Prosecutor Ricardo G. [3] Cabaron and dated September 25, 1997. The first Information was for maintaining a den for the use of regulated drugs. It reads as follows: That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Walpan Ladjaalam being then the owner of a residential house located at Rio Hondo, [4] this City, conspiring and confederating together, mutually aiding and assisting x x x his co-accused wife Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini, did then and there wilfully, unlawfully and feloniously, maintain said house as a den, where regulated drug [was] used in any form.[5] The second Information
[6] [2]

[1]

charged appellant with illegal possession of firearms and ammunition. We quote it below:

That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together, mutually aiding and assisting with one another, without any justifiable reason or purpose other than to use it in the commission of crime, did then and there, wilfully, unlawfully, and feloniously have in their possession and under their custody and control, the following weapons, to wit: one (1) M14 rifle with SN 1555225 with magazines and seven (7) rounds of live ammunition; two (2) magazines with twenty (20) and twenty[-one] (21) rounds of live [ammunition]; one (1) homemade caliber .38 revolver with five (5) live ammunition; one (1) M-79 (single) rifle with pouch and with five (5) empty shell[s]; one (1) home made caliber .38 with SN-311092 with five live ammunition and one empty shell of [a] cal. 38 x x x Smith and Wesson; two (2) .38 Caliber paltik revolver with Serial Number 311092 and one defaced M79 grenade launcher paltik, without first having obtained the necessary license and or permit therefor from authorities concerned, in flagrant violation of the aforementioned law.[7] The third Information,
[8]

for multiple attempted murder with direct assault, was worded thus:

That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused being then armed with M-14 Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and explosives, conspiring and confederating together, mutually aiding and assisting x x x one another and with intent to kill, did then and there wilfully, unlawfully and feloniously try and attempt to kill SPO1 WILLIAM B. JONES, JR., PO3 ENRIQUE C. RIVERA[,] SPO1 AMADO A. MIRASOL, JR., and SPO1 RICARDO J. LACASTESANTOS, in the following manner, to wit: by then and there firing their M-14 x x x Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and explosives, aimed and directed at the fatal parts of the bodies of the above-named police officers, well known to the accused as members of the Philippine National Police, Zamboanga City Police Office, and as such, agents of a person in authority, who at the time of the attack were engaged in the performance of their duties, that is, on the occasion when said officers were about to serve the Search Warrant legally issued by the Regional Trial Court, this City, to the person of the accused thus commencing the commission of crime of multiple murder directly by overt acts, and if the accused did not accomplish their unlawful purpose, that is, to kill the above-named Police Officers, it was not by reason of their own voluntary desistance but rather because of the fact that all the above-named police officers were able to seek cover during the firing and were not hit by the bullets and explosives fired by the accused and also by the fact said police officers were able to wrestle with two (2) of the accused namely: Walpan Ladjaalam y Mihajil a.k.a. Warpan and Ahmad Sailabbi y Hajairani, who were subdued and subsequently placed under arrest; whereas accused PO2 Nurhakim T. Hadjula was able to make good his escape and has remained at-large.[9] In the fourth Information, appellant was charged with illegal possession of drugs.
[10]

On December 21, 1997, the cases against Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini were dismissed upon motion of the Office of the City Prosecutor, which had conducted a reinvestigation of the cases as ordered by the lower court. The accused were consequently released from jail. The arraignment of appellant on all four (4) charges took place on January 6, 1998, during which he entered a plea of [11] not guilty. After pretrial, the assailed Decision was rendered, the dispositive part of which reads: WHEREFORE, the Court finds accused WALPAN LADJAALAM y MIHAJIL a.k.a. WARPAN 1. in Criminal Case No. 14636, GUILTY BEYOND REASONABLE DOUBT of Violation of Section 15-A, Article III, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and SENTENCES said accused to the penalty ofRECLUSION PERPETUA and to pay a fine of FIVE HUNDRED THOUSAND (P500,000.00) and to pay the costs; 2. In Criminal Case No. 14637, NOT GUILTY of Violation of Section 16, Article III, in relation to Section 21, Article IV, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and ACQUITS him of said crime with costs de oficio; 3. in Criminal Case No. 14638, GUILTY BEYOND REASONABLE DOUBT of the crime of Illegal Possession of Firearm and Ammunition penalized under Presidential Decree No. 1866, as amended by Republic Act. No. 8294, and SENTENCES said accused to suffer an indeterminate penalty of SIX (6) YEARS of prision correccional as minimum to EIGHT (8) YEARS of prision mayor as maximum and to pay a fine [of] THIRTY THOUSAND (P30,000.00) and pay the costs; 4. in Criminal Case No. 14639, GUILTY BEYOND REASONABLE DOUBT of the crime of Direct Assault with Multiple Attempted Homicide and SENTENCES said accused to an indeterminate penalty of TWO (2) YEARS and FOUR (4) MONTHS of prision correccional as minimum to SIX (6) YEARS of prision correccional as maximum and to pay a fine of ONE THOUSAND (P1,000.00) and to pay the costs. (emphasis in the original) Hence, this appeal.
[12]

The Facts Prosecutions Version

In its Brief,

[13]

the Office of the Solicitor General presents the facts in this wise:

At 1:45 p.m. of September 24, 1997, PO3 Allan Marcos Obut filed an application for the issuance of a search warrant against appellant, his wife and some John Does (Exh. C). After the search warrant was issued about 2:30 p.m. of the same day, a briefing was conducted inside the office of the Anti-Vice/Narcotics Unit of the Zamboanga City Police Office in connection with the service of the search warrant. The briefing was conducted by SPO2 Felipe Gaganting, Chief of the Anti-Vice/Narcotics Unit. During the briefing, PO3 Renato Dela Pea was assigned as presentor of the warrant. SPO1 Ricardo Lacastesantos and PO3 Enrique Rivera were designated to conduct the search. Other policemen were assigned as perimeter guards (TSN, March 3, 1998, pp. 33-36). After the briefing, more than thirty (30) policemen headed by Police Superintendent Edwin Soledad proceeded to the house of appellant and his wife at Rio Hondo on board several police vehicles (TSN, March 4, 1998, p. 32; April 22, 1998, p. 54). Before they could reach appellants house, three (3) persons sitting at a nearby store ran towards the house shouting, [P]olice, raid, raid (Ibid., March 3, 1998, pp. 41, 43-44; April 23, 1998, p. 4). When the policemen were about ten (10) meters from the main gate of the house, they were met by a rapid burst of gunfire coming from the second floor of the house. There was also gunfire at the back of the house (Ibid., March 5, 1998, pp. 14-16). SPO1 Mirasol, SPO2 Lacastesantos, PO3 Rivera, and PO3 Dela Pea who were with the first group of policemen saw appellant fire an M14 rifle towards them. They all knew appellant. When they were fired upon, the group, together with SPO2 Gaganting, PO3 Obut and Superintendent Soledad, sought cover at the concrete fence to observe the movements at the second floor of the house while other policemen surrounded the house (Ibid., March 4, 1998, pp. 50-51). In front of the house was an extension building connected to the concrete fence (Ibid., pp. 45-46, 57-59, 73-76). Gaganting, Mirasol, Lacastesantos, Gregorio, and Obut entered the door of the extension building. Gaganting opened the main (steel) gate of the house. The other members of the team then entered. Lacastesantos and Mirasol entered the house through the main door and went inside the sala of the ground floor while other policemen surrounded the house. Two (2) old women were in the sala together with a young girl and three (3) children.One of the old women took the children to the second floor while the young girl remained seated at the corner (Ibid., pp. 19-21). Lacastesantos and Mirasol proceeded to the second floor where they earlier saw appellant firing an M14 rifle at them through the window. While they were going upstairs, appellant noticed their presence. He went inside the bedroom and, after breaking and removing the jalousies, jumped from the window to the roof of a neighboring house. Seeing this, Mirasol rushed downstairs and asked help from the other members of the raiding team to arrest appellant. Lacastesantos went to the second floor and shouted to the policemen outside not to fire in the direction of the second floor because there were children. Mirasol and SPO1 Cesar Rabuya arrested appellant at the back of his house after a brief chase (Ibid., pp. 21-23). At the second floor, Lacastesantos saw an M14 rifle (Exh. B-3) with magazine on top of the sofa at the sala on the second floor (Ibid., P. 27). The rifle bore Serial No. 1555225. He removed the magazine from the rifle and the bullet inside the chamber of the rifle. He counted seventeen (17) live ammunition inside the magazine. He saw two (2) more M14 rifle magazines on the sofa, one with twenty (20) live ammunition (Exh. G-3) and another with twenty-one (21) live ammunition (Exh. G-4). He likewise saw three (3) M16 rifle magazines (Exh. G-2) in a corner at the second floor (TSN, March 5, 1998, pp. 23-32, 53-57). After Lacastesantos and Mirasol entered appellants house, Rivera, Dela Pea, Gregorio and Obut followed and entered the house. After identifying themselves as members of the PNP Anti-Vice/Narcotics Unit, Obut presented to the old women a copy of the search warrant.Dela Pea and Rivera then searched appellants room on the ground floor in the presence of Punong Barangay Elhano (TSN, March 3, 1998, pp. 41-43). On top of a table was a pencil case (Exh. J) with fifty (50) folded aluminum foils inside (Exhs. J-1 to J-50), each containing methamphetamine hydrochloride or shabu. Other items were found during the search, namely, assorted coins in different denominations (Exh. W; TSN, April 28, 1998, pp. 2325), one (1) homemade .38 caliber revolver (Exh. B-2) with five (5) live [ammunition], one (1) M79 single rifle with [a] pouch containing five (5) empty shells of an M79 rifle (Exh. B-4), and one (1) empty shell of an M14 rifle (TSN, April 23, 1998, pp. 30-32). Rino Bartolome Locson was an informer of the Anti-Vice/Narcotics Unit of the Zamboanga Police. [O]n the morning of September 24, 1997, he was instructed by SPO2 Gaganting to go to appellants house to buy shabu. Locson knew appellant as a seller of shabu (TSN, April 22, 1998, p. 5) and had been to appellants house about fifteen (15) times before. He went to Rio Hondo and arrived at appellants house at 3:20 p.m. He bought P300.00 worth of shabu from appellant. The latter got three (3) decks of shabu from his waist bag.Appellant instructed Locson to go behind the curtain where there was a table. There were six (6) persons already

smoking. There was a lighted kerosene lamp made of a medicine bottle placed on the table. They asked Locson to smoke shabu and Locson obliged. He placed the three (3) decks of shabu he bought on the table (Ibid., pp. 8-15). While they were smoking shabu, Locson heard gunfire coming from appellants house. They all stood and entered appellants compound but were instructed to pass [through] the other side. They met appellant at the back of his house. Appellant told them to escape because the police are already here. They scampered and ran away because there were already shots. Locson jumped over the fence and ran towards the seashore. Upon reaching a place near the Fisheries School, he took a tricycle and went home (Ibid., pp. 17-19). The following day, September 25, 1997, he went to the police station and executed an affidavit (Exh. M) narrating what transpired at appellants house [o]n the afternoon of September 24, 1997. After the search and before returning to the police station, P03 Dela Pea prepared a Receipt for Property Seized (Exh. P & 3) listing the properties seized during the search. The receipt was signed by Dela Pea as the seizure officer, and by Punong Barangay Hadji Hussin Elhano and radio reporter Jun Cayona as witnesses. A copy of the receipt was given to appellant but he refused to acknowledge the properties seized (TSN, April 23, 1998, pp. 11-12). An examination conducted by Police Inspector Mercedes D. Diestro, Forensic Chemist of the PNP Crime Laboratory Service Office 9, on the paraffin casts taken from both hands of appellant yielded positive for gunpowder nitrates (Exh. A-3), giving rise to the possibility that appellant had fired a gun before the examination (TSN, March 3, 1998, p. 11). Gunpowder residue examinations conducted on September 26, 1997 showed that the following firearms were fired (Exh. B-5): a .38 caliber revolver (homemade) with Serial No. 311092 (Exh. B-1), another .38 caliber revolver (homemade) without a serial number (Exh. B-2), a Cal. 7.62 mm M14 U.S. rifle with Serial No. 1555225 (Exh. B-3), and an M79 rifle without a serial number (Exh. B-4). They were fired within five (5) days prior to the examination (TSN, March 3, 1998, pp. 16-21). With respect to the crystalline substances, an examination conducted by Police Inspector Susan M. Cayabyab, likewise a Forensic Chemist of the PNP Crime Laboratory Service Office 9, on the fifty (50) pieces of folded aluminum foils each containing white crystalline granules with a total weight of 1.7426 grams (Exh. J-1 to J-50) yielded positive results for the presence of methamphetamine hydrochloride (shabu) (Exh. L). However, the examination of one (1) crystalline stone weighing 83.2674 grams (Exh. K) yielded negative results for the presence of methamphetamine hydrochloride (Exh. L). The records of the Regional Operation and Plans Division of the PNP Firearm and Explosive Section show that appellant had not applied/filed any application for license to possess firearm and ammunition or x x x been given authority to carry [a] firearm outside of his residence (Exh. X)[14]

Defenses Version

Appellant Ladjaalam agrees with the narration of facts given by the lower court. parts of the assailed Decision:

[15]

Hence, we quote the pertinent

Accused Walpan Ladjaalam y Mihajil a.k.a. Warpan, 30 years old, married, gave his occupation as smuggling (tsn, p. 2, May 4, 1998). He used to go to Labuan in Malaysia and bring cigarettes to the Philippines without paying taxes (tsn, pp. 40-41, id). He said that his true name [was] Abdul Nasser Abdurakman and that Warpan or Walpan Ladjaalam [was] only his alias. However, he admitted that more people kn[e]w him as Walpan Ladjaalam rather than Abdul Nasser Abdurakman (tsn. pp. 39-40; 46-47, id). He testified that [o]n the afternoon of September 24, 1997, when he was arrested by the police, he was sleeping in the house of Dandao, a relative of his wife. He was alone. He slept in Dandaos house and not in his house because they ha[d] a sort of a conference as Dandaos daughter was leaving for Saudi Arabia. He noticed the presence of policemen in his neighborhood at Aplaya, Rio Hondo when he heard shots. He woke up and went out of the house and that was the time that he was arrested. He said he was arrested xxx [at] the other side of my house; at the other side of the fence where I was sleeping. xxx. At the back of my house (tsn, p. 7, id.). He does not know who arrested him considering that the one who arrested me does not have nameplate. He was arrested by four (4) persons. Not one of those who arrested him testified in Court. He was handcuffed and placed inside a jeep parked at Rio Hondo Elementary School. According to him, he did not fire a gun at the policemen from [t]he second floor of his house. He said the policemen [were] the one[s] who fire[d] at us (tsn, p. 5, id.). If he fired a gun at the policemen for sure they [would] die [b]ecause the door is very near x x x the vicinity of my house. He does not own the M14 rifle (Exh. B-3) which according to policemen, he used in firing at them. The gun does not belong to him. He does not have a gun like that (tsn, p. 15, id.). A policeman also owns an M14 rifle but he does not know the policeman (tsn, pp. 16-17, id). He said that the M79 rifle (Exh. B-4), the three (3) empty M16 rifle magazines (Exh. G; G-1 to G-2), the two (2) M14 magazines with live ammunition (Exh. G-3; G-4); the two (2) caliber .38 revolvers (Exhs. B-1; B-2), the fifty (50) aluminum foils each containing shabu (Exhs. J-1 to J-50) placed inside a pencil

case (Exh. J, the assorted coins placed inside a blue bag (Exh. W) and the white crystalline stone (Exh. K) all do not belong to him. He said that the policemen just produced those things as their evidence. The firearms do not belong to him. They were brought by the policemen (tsn, p. 43, May 4, 1998). Regarding the blue bag containing assorted coins, he said: that is not ours, I think this (is) theirs, xxx they just brought that as their evidence (tsn, pp. 15-24, id.) Walpan Ladjaalam declared there were occupants who were renting his extension house. He affirmed that he owns that house. Four (4) persons were staying in the extension house. He could only recognize the husband whose name is Momoy. They are from Jolo. They left the place already because they were afraid when the police raided the place. (tsn, pp. 8-10, May 4, 1998). He does not know prosecution witness Rino Locson y Bartolome. Although Locson recognized him, in his case he does not know Locson and he does not recognize him (tsn, p.11, id). He did not sell anything to Locson and did not entertain him. He is not selling shabu but he knows for a fact that there are plenty of person who are engaged in selling shabu in that place, in that area known as Aplaya, Rio Hondo. One of them is Hadji Agbi (tsn, pp.11-14, id). After his arrest Walpan Ladjaalam was brought to the police station where he stayed for one day and one night before he was transferred to the City jail. While at the police station, he was not able to take a bath. He smokes two packs of cigarette a day. While he was at the police station, he smoked [a] cigarette given to him by his younger sister. He lighted the cigarettes with [a] match. From the police station, he was brought to the PNP Regional Office at R.T. Lim Boulevard where he was subject to paraffin examination (tsn, pp. 24-26, May 4, 1998). During the raid conducted on his house, his cousin Boy Ladjaalam, Ating Sapadi, and Jecar (Sikkal) Usman, the younger brother of his wife were killed. Walpan Ladjaalam said that he saw that it was the policeman who shot them[,] only I do not know his name. They were killed at the back of his house. He said that no charges were filed against the one responsible for their death (tsn, pp. 30-33- May 4, 1998). Anilhawa Ahamad, more or less 80 years old, a widow was in the house of Walpan Ladjaalam whom he calls Hadji Id at the time the police raided the house. She is the mother of Ahma Sailabbi. She was together with Babo Dandan, two small children and a helper when soldiers entered the house. (W)hen they arrived, they kept on firing (their guns) even inside the house (tsn, p.5, May 5, 1998). They were armed with short and long firearms. They searched the house and scattered things and got what they wanted. They entered the room of Walpan Ladjaalam. They tried to open a bag containing jewelry. When Anilhawa tried to bring the bag outside the room, they grabbed the bag from her and poked a gun at her. At that time Walpan Ladjaalam was not in the house. Ahamad Sailabbi was also not in the house. A Search Warrant was shown to Anilhawa after the search was conducted and just before the policemen left the place. Anilhawa Ahamad said that it was already late in the afternoon[;] before they left that was the time the Search Warrant (was) given to us by xxx Barangay Captain Hussin Elhano (tsn, pp.6-8, May 5, 1998). Barangay Chairman Elhano arrived already late in the afternoon, almost sundown (tsn, p. 9, id). Anilhaw declared that aside from a bag containing jewelry and a bag full of money, she had not seen anything else that was taken from Walpan Ladjaalams house (tsn, pp. 9-12, id). Akmad (Ahmad) Sailabbi, 37 years old, married testified that about 4:00 oclock [o]n the afternoon of September 24, 1997, ha was standing in front of his house when policemen arrived and immediately arrested him. He was about to go to the City Proper to buy articles he was intending to bring to Sabah. He had around P50,000.00 placed inside a waist bag tied around his waist. The policemen told him to lie down in prone position and a policeman searched his back. They pulled his waist bag and took his DiaStar wrist watch. He was shot three times and was hit on the forehead leaving a scar. His injury was not treated. He was taken to the police station where he was detained for one day and one night. He was detained at the City Jail for three months and five days after which he was released (tsn, pp. 25-29, May 5, 1998). Melba Usma, 20 years old, a widow, testified that [o]n the afternoon of September 24, 1997, she was in the house of her parents lying together with her husband Sikkal Usma. There is only one house between her parents house and the house of Walpan Ladjaalam. Her husband Sikkal Usman is the brother of Nur-in Ladjaalam, Walpans wife. When Melba heard shots, she went downstairs. A policeman was looking for her husband. The policeman called her husband. When her husband went down, he was instructed by the policeman to lie down in prone position. Then the policeman shot her husband. The policeman had two other companions who also shot her husband while he was lying down in prone position (tsn, pp.2-7, May 5, 1998). Murkisa Usman, 30 years old, married, declared that [o]n the afternoon of September 24, 1997, she was sitting at the door of her house watching her children playing when a motorcyle, driven by a person, stopped near her house. The driver was Gaganting whom she called a soldier. He went down from his motorcycle, pulled a gun and poked it at Murkisa. Murkisa stood up and raised her hands. She got her children and when she was about to enter the room of her house, Gaganting again poked a gun at her and there was a shot. As a result of firing, three persons died, namely, Sikkal Usman, Boy Ladjaalam and Atip Sapali Sali (tsn, pp. 8-10, May 5, 1998). Barangay Captain Hadji Hussin Elhano, 51 years old, testified that about 4:00 o clock [o]n the afternoon of September 24, 1997, he was fetched by two policemen at Catabangan where he was attending a seminar. Because of traffic along the way, they arrived at the

Rio Hondo already late in the afternoon. He saw policemen were already inside the house. Upon entering the gate, he saw Walpan at the gate already handcuffed. Walpan called him but the police advised him not to approach Walpan. The search was already over and things were already taken inside the house. When he went inside the house, he saw the things that they (policemen) searched, the firearms and the shabu (tsn, p. 17. May 8, 1998). He did not see the Search Warrant. What was shown to him were the things recovered during the search which were being listed. They were being counted and placed on a table. Upon seeing the things that were recovered during the search, I just signed the receipt (Exh. P; P-1) of the things x x x taken during the search (tsn, pp. 1718. May 8, 1998). He saw three dead bodies at the side of the fence when he went to the other side of the house. The three persons were killed outside the fence of Walpan Ladjaalam (tsn, p. 18, id). [16]

The Trial Courts Ruling

The trial court observed that the house of appellant was raided on September 24, 1997 by virtue of Search Warrant No. 20 issued on the same day. However, the lower court nullified the said Warrant because it had been issued for more [17] [18] than one specific offense, in violation of Section 3, Rule 126 of the Rules of Court. The court a quo ruled: It should be stated at the outset that Search Warrant No. 20 is totally null and void because it was issued for more than one specific offense x x x contrary to Section 3, Rule 1[2]6 of the Rules of Court which provides that A search warrant shall not issue but upon probable cause in connection with one specific offense xxx. In Tambasan vs. People, 246 SCRA 184 (1995), the Supreme Court ruled that a search warrant for more than one offense - a scatter shot warrant - violates Section 3, Rule 126 of the [R]evised Rules of Court and is totally null and void.[19] (emphasis in the original) Nevertheless, the trial court deemed appellants arrest as valid. It emphasized that he had shot at the officers who [20] were trying to serve the void search warrant. This fact was established by the testimonies of several police officers, who were participants in the raid, and confirmed by the laboratory report on the paraffin tests conducted on the firearms and [21] appellant. Additionally, the judge noted that Appellant Ladjaalam, based on his statements in his Counter Affidavit, [22] impliedly contradicted his assertions in open court that there had been no exchange of gunfire during the raid. The trial court concluded that the testimonies of these officers must prevail over appellants narration that he was not in his house when the raid was conducted. Prescinding from this point, the court a quo validated the arrest of appellant, reasoning thus: Under the circumstances, the policemen had authority to pursue and arrest Walpan Ladjaalam and confiscate the firearm he used in shooting at the policemen and to enter his house to effect said arrest and confiscation of the firearm. Under Rule 113, Section 5 (a), of the Rules of Court, A peace officer or a private person may, without a warrant, arrest a person xxx (w)hen in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene thereof. At the time the policemen entered the house of accused Walpan Ladjaalam after he had fired shots at the policemen who intended to serve the Search Warrant to him, the accused was engaged in the commission of a crime, and was pursued and arrested after he committed the crime of shooting at the policemen who were about to serve the Search Warrant. [23] As a consequence of the legal arrest, the seizure of the following was also deemed valid: the M14 rifle (with a [24] magazine containing seventeen live ammunition) used by appellant against the police elements, two M14 magazines, [25] and three other M16 rifle magazines. The trial court observed that these items were in plain view of the pursuing police officers. Moreover, it added that these same items were evidence [of] the commission of a crime and/or [26] contraband and therefore, subject to seizure since appellant had not applied for a license to possess firearm and had [27] not been given authority to carry firearm outside his residence. For being incredible and unsupported by evidence, appellants claim that the items that were seized by the police officers had been planted was disbelieved by the trial court. It ruled that if the police officers wanted to plant evidence to incriminate him, they could have done so during the previous raids or those conducted after his arrest. To its mind, it was unbelievable that they would choose to plant evidence, when they were accompanied by the barangay chairman and a radio reporter who might testify against them. It then dismissed these allegations, saying that frame-up, like alibi, was an [28] inherently weak defense. The trial court also convicted the accused of the crime of maintaining a drug den. It reasoned as follows: The testimony of Rino Bartolome Locson, corroborated by SPO1 Ricardo Lacastesantos and SPO1 Amado Mirasol, Jr. clearly established that Walpan Ladjaalam operated and maintained a drug den in his extension house where shabu or methamphetamine hydrochloride, a regulated drug, was sold, and where persons or customers bought and used shabu or methamphetamine hydrochloride

by burning the said regulated drug and sniffing its smoke with the use of an aluminum foil tooter. A drug den is a lair or hideaway where prohibited or regulated drugs are used in any form or are found. Its existence [may be] proved not only by direct evidence but may also be established by proof of facts and circumstances, including evidence of the general reputation of the house, or its general reputation among police officers. The uncorroborated testimony of accused Walpan Ladjaalam a.k.a. Warpan that he did not maintain an extension house or a room where drug users who allegedly buy shabu from him inhales or smokes shabu cannot prevail over the testimonies of Locson, SPO1 Lacastesantos, and SPO1 Mirasol. He admitted that he is the owner of the extension house but he alleged that there were four (4) occupants who rented that extension house. He knew the name of only one of the four occupants who are allegedly from Jolo, a certain Momoy, the husband. Aside from being uncorroborated, Walpans testimony was not elaborated by evidence as to when or for how long was the extension house rented, the amount of rental paid, or by any other document showing that the extension house was in fact rented. The defense of denial put up by accused Walpan Ladjaalam a.k.a. 'Warpan is a weak defense. Denial is the weakest defense and cannot prevail over the positive and categorical testimonies of the prosecution witnesses. Denials, if unsubstantiated by clear and convincing evidence, are negative and self-serving evidence which deserve no weight in law and cannot be given evidentiary weight over the testimony of credible witnesses who testify on affirmative matters. As between the positive declaration of the prosecution witnesses and the negative statements of the accused, the former deserve more credence.[29] In conclusion, the trial court explained appellants liability in this manner: x x x. The act of the accused in firing an M14 rifle to the policemen who were about to enter his house to serve a search warrant constitutes the crime of direct assault with multiple attempted homicide[,] not multiple attempted murder with direct assault[,] considering that no policeman was hit and injured by the accused and no circumstance was proved to qualify the attempted killing to attempted murder. The accused Walpan Ladjaalam a.k.a. Warpan cannot be held liable [for] the crime of Violation of Section 16, Article III, in relation to Section 21, Article IV, of Republic Act 6425 otherwise known as the Dangerous Drugs Act of 1992, as amended, because the fifty (50) pieces of folded aluminum foils having a total weight of 1.7426 grams all containing methamphetamine hydrochloride or shabu allegedly found in his house are inadmissible as evidence against him considering that they were seized after [a] search conducted by virtue of Search Warrant No. 20 which is totally null and void as it was issued for more than one offense, and were not found in plain view of the police officers who seized them. Neither could the accused be held liable for illegal possession of firearms and ammunition except for the (1) M14 rifle with Serial Number 1555225 and with magazine containing fifteen (15) live ammunition and two more M14 rifle magazines with twenty (20) and twenty-one (21) live ammunition respectively considering that the policemen who recovered or seized the other firearms and ammunition did not testify in court. The blue bag containing assorted coins cannot be returned to the accused Walpan Ladjaalam a.k.a. Warpan because according to the accused the blue bag and assorted coins do not belong to him[;] instead the said assorted coins should be turned over to the National Treasury. [30]

The Issues

In his Brief, appellant submits the following Assignment of Errors: I The trial court erred when it concluded that appellant Walpan Ladjaalam y Mihajil [had] fired first at the police officers who went to his house to serve a search warrant upon him which led to an exchange of fire between Ladjaalam and the police officer. II The trial court erred when it denied the appellant the right and opportunity for an ocular inspection of the scene of the firefight and where the house of the appellant [was] located. III The trial court erred when it ruled that the presumption of regularity in the performance of their duties [excluded] the claim of the appellant that the firearms and methamphetamine hydrochloride (i.e. shabu) were planted by the police. [31] In the interest of simplicity, we shall take up these issues seriatim: (a) denial of the request for ocular inspection, (b) credibility of the prosecution witnesses, and (c) the defense of frame-up. In addition, we shall also discuss the proper crimes and penalties to be imposed on appellant.

The Courts Ruling

The appeal has no merit.

First Issue: Denial of Request for Ocular Inspection

Appellant insists that the trial court erred in denying his request for an ocular inspection of the Ladjaalam residence. He argues that an ocular inspection would have afforded the lower court a better perspective and an idea with [32] respect to the scene of the crime. We do not agree. We fail to see the need for an ocular inspection in this case, especially in the light of the clear testimonies of the [33] prosecution witnesses. We note in particular that the defense had even requested SPO1 Amado Mirasol Jr. to sketch [34] the subject premises to give the lower court a fairly good idea of appellants house. Viewing the site of the raid would [35] have only delayed the proceedings. Moreover, the question whether to view the setting of a relevant event has long [36] been recognized to be within the discretion of the trial judge. Here, there is no reason to disturb the exercise of that [37] discretion.

Second Issue: Credibility of Prosecution Witnesses

Appellant, in essence, questions the credibility of the prosecution witnesses. Suffice it to state that the trial courts [39] assessment of their credibility is generally accorded respect, even finality. After carefully examining the records and finding no material inconsistencies to support appellants claim, we cannot exempt this case from the general [40] rule. Quite the contrary, the testimonies of these witnesses positively showed that appellant had fired upon the [41] approaching police elements, and that he had subsequently attempted to escape. SPO1 Amado Mirasol Jr. testified thus: PROSECUTOR NUVAL: Q: And, this trail is towards the front of the house of the accused? A: Yes. Q: And its there where you were met by a volley of fire? A: Yes, Your Honor. COURT: Q: How far were you from the concrete fen[c]e when you were met by a volley of fire? ... You said you were fired upon? A: More or less, five (5) meters. xxxxxxxxx PROSECUTOR NUVAL: Q: Now, you said you were able to enter the house after the gate was opened by your colleague Felipe Gaganting ... I will reform that question. Q: Who opened the gate Mr. Witness? A: SPO2 Felipe Gaganting, Efren Gregorio and Allan Marcos Obut. Q: And, at that time you were hiding at the concrete fence? A: Yes. Q: Now, when this gate was opened, you said you went inside the house, right? A: Yes. Q: What did you see inside the house?

[38]

A: I, together with SPO1 Ricardo Lacastesantos, entered the main door of the house of Walfran [sic] Ladjaalam at the ground floor. We went inside the sala on the ground floor of his house[;] I saw two old woman. xxxxxxxxx PROSECUTOR NUVAL: Q: Now, what did you do with these two old women? A: I did not mind those two old women because those two women were sitting on the ground floor. I was concentrating on the second floor because Ladjaalam was firing towards our group so, I, together with Ricardo Lacastesantos, went upstairs to the second floor of the house. Q: Were you able to go to the second floor of the house? A: Yes. Q: What happened when you were already on the second floor? A: While we were proceeding to the second floor, Walfan [sic] Ladjaalam, noticed our presence and immediately went inside the bedroom [o]n the second floor and he went immediately and jumped from the window of his house x x x leading to the roof of the neighbors house. xxxxxxxxx COURT: Reform. That is leading Q: What happened when you entered and he jumped to the roofing of the neighbors house? A: Immediately, I myself, we immediately went downstairs and asked the assistance of the members of the raiding team to arrest Walfan Ladjaalam. xxxxxxxxx PROSECUTOR NUVAL: Q: Were you able to go down? A: Yes. Q: What happened when you were there? A: We immediately went out and I asked the assistance of the members of the raiding team and the investigator of the [42] unit especially SPO1 Cesar Rabuya. I was able to manage to arrest Walfan Ladjaalam. What happened thereafter was narrated by Senior Police Officer Ricardo Lacastesantos, Q: What did you notice [o]n the second floor? A: I went where the firing came from, so, I saw [an] M14 rifle and I shouted from the outside, do not fire at the second floor because there [are] a lot of children here. Q: Now, that rifle you said [was an] M14, where did you find this? A: At the sala set. Q: This sala set where is this located? A: Located [on] the second floor of the house. Q: Is there a sala [o]n the second floor? A: Yes. Q: Can you still identify that M14 rifle which you said you recovered from the sale set? A: Yes. Q: Why can you identify that? A: The Serial No. of M14 is 1555225 and I marked it with my initial.
[43]

as follows:

Q: Now, I have here M14 rifle[;] will you please tell us where is the Serial No. of this? A: 1555225 and I put my initial, RJL. FISCAL NUVAL: This is already marked as our Exhibit B-3 with magazine, one magazine and seven round [ammunition]. Q: After recovering this, what did you do with this firearm? A: When I recovered it I removed the bullets inside the chamber[.] I removed the magazine and I turned it over to the investigator. Q: Where did you turn it over? A: At the crime scene. Q: Now, that magazine, can you still identify this? A: Yes. Q: Why? A: I put x x x markings. xxxxxxxxx COURT: So, a[si]de from the magazine attached to the M14 rifle you found six more magazines? A: Yes, so, all in all six magazines, three empty M16 rifle magazines and three M14. Q: The M16 magazines [were] empty? A: Empty. Q: How about the M14? A: Found with [ammunition]. xxxxxxxxx Q: So, where are the three M16 magazines? A: In the corner. Q: What did you do with [these] three magazines of M16? A: I turned [them] over to the investigator. Q: Can you identify them? A: Yes, because of my initials[.] Q: Where are your initials? A: On the magazines. Q: RJL? A: RJL.
[44]

These were confirmed by the results of the paraffin tests conducted on appellant and on the weapons seized during the raid. Both of his hands as well as the weapons, particularly the M-14 which he had used, were positive for gunpowder nitrate. Police Inspector Mercedes Delfin-Diestro explained in open court: Q: Okay. Now, what was the result of your examination, Madam Witness? A: The result of the examination [was] that both hands of the subject person, ha[d] presence of gun powder nitrates. Q: What do you mean Madam Witness, what does that indicate? A: It indicates there is presence of powder nitrates. Q: Can we conclude that he fired a gun?

A: I cannot conclude that he fired a gun because there are so many circumstances [why] a person [would be] positive on his hands for gun powder nitrates. Q: But, most likely, he fired a gun? A: Yes. xxxxxxxxx PROSECUTOR NUVAL: Q: What about, Madam Witness this Exhibit B-3, which is the M14 rifle. What did you do with this? A: SPO3 Abu did the swabbing both in the chamber and the barrel wherein I observed there [were] black and traces of brown residue on the bolt, chamber and in the barrel. Q: And, that indicates Madam Witness...? A: It indicates that the gun was fired. Q: Recently? A: Because of the traces of brown residue, it could be possible that the gun was fired before the incident x x x. COURT: Q: There is also black residue? A: Yes. Q: What does it indicate? A: It indicates that the firearm was recently fired. Q: And, where is this swab used at the time of the swabbing of this Exhibit? A: This one. PROSECUTOR NUVAL: May we ask that this be marked as Exhibit B-3-A. COURT: Q: The firing there indicates that the gun was recently fired, during the incident? A: Yes. Q: And also before the incident it was fired because of the brown residue? A: Yes, Your Honor.
[45]

(emphasis supplied)
[46]

Duly proven from the foregoing were the two elements of the crime of illegal possession of firearms. Undoubtedly, the established fact that appellant had fired an M-14 rifle upon the approaching police officers clearly showed the existence of the firearm or weapon and his possession thereof. Sufficing to satisfy the second element was the [47] prosecutions Certification stating that he had not filed any application for license to possess a firearm, and that he had [48] not been given authority to carry any outside his residence. Further, it should be pointed out that his possession and use of an M-14 rifle were obviously unauthorized because this weapon could not be licensed in favor of, or carried by, a [49] private individual.

Third Issue: Defense of Frame-up

From the convoluted arguments strewn before us by appellant, we gather that the main defense he raises is frameup. He claims that the items seized from his house were planted, and that the entire Zamboanga police force was out to get him at all cost. This Court has invariably held that the defense of frame-up is inherently weak, since it is easy to fabricate, but terribly [50] [51] difficult to disprove. Absent any showing of an improper motive on the part of the police officers, coupled with the [52] presumption of regularity in the performance of their duty, such defense cannot be given much credence. Indeed, after

examining the records of this case, we conclude that appellant has failed to substantiate his claim. On the contrary, his [53] statements in his Counter Affidavit are inconsistent with his testimony during the trial. He testified thus: Q Now, Mr. Witness, do you remember having executed an Affidavit/ a Counter-Affidavit? A I could not remember. Q I have here a Counter-Affidavit and it was signed before this representation on the 8th day of December 1997[;] tell us whose signature is this appearing above the typewritten name FISCAL NUVAL: Q . . . . Walpan Ladjaalam, whose signature is this? (Showing) A Yes, Sir. This is mine. Q Now, in paragraph[s] 1,2,3,4,5,6,7 and 8; you stated in this Counter-Affidavit which I quote: that I was resting and sleeping when I heard the gunshots and I noticed that the shots were directed towards our house.. and I inspected and x x x we were attacked by armed persons.. and I was apprehended by the persons who attacked x x x our house; [the] house you are referring to [in] this paragraph, whose house [are you] referring to, is this [what] you are referring to [as] your house or the house of your neighbors [from] which you said you heard gunshots? A Our house. Q Now, in paragraph 6 of your Counter-Affidavit you stated and I quote: that [o]n that afternoon of September 24, 1997, I was at home in my house Aplaya, Riohondo, Bo. Campo Muslim, my companions in my house [were] the two old women and my children, is this correct? A They were not there. Q Now, in that statement Mr. Witness, you said that you were at home in [your] house at Aplaya, Riohondo, Bo. Campo Muslim[;] which is which now, you were in your house or you were in your neighbors[] house at that time when you heard gunshots? A I was in the house near my house. Q So, your statement particularly paragraph 6 of your Counter-Affidavit that you were at home in [your] house at Aplaya Riohondo Bo. Campo Muslim, is x x x not correct? A Yes, Sir. This is not correct.
[54]

Crime and Punishment

The trial court convicted appellant of three crimes: (1) maintenance of a drug den, (2) direct assault with attempted homicide, and (3) illegal possession of firearms. We will discuss each of these.

Maintenance of a Drug Den

We agree with the trial court that appellant was guilty of maintenance of a drug den, an offense for which he was correctly sentenced to reclusion perpetua. His guilt was clearly established by the testimony of Prosecution Witness Rino Bartolome Locson, who himself had used the extension house of appellant as a drug den on several occasions, including the time of the raid. The formers testimony was corroborated by all the raiding police officers who testified before the court. That appellant did not deny ownership of the house and its extension lent credence to the prosecutions story.

Direct Assault with Multiple Attempted Homicide

The trial court was also correct in convicting appellant of direct assault with multiple counts of attempted homicide. It found that [t]he act of the accused [of] firing an M14 rifle [at] the policemen[,] who were about to enter his [56] house to serve a search warrant x x x constituted such complex crime. We note that direct assault with the use of a weapon carries the penalty of prision correccional in its medium and [57] maximum periods, while attempted homicide carries the penalty of prision correccional. Hence, for the present complex crime, the penalty for direct assault, which constitutes the most serious crime, should be imposed and applied in its [58] maximum period.

[55]

Illegal Possession of Firearms

Aside from finding appellant guilty of direct assault with multiple attempted homicide, the trial court convicted him also of the separate offense of illegal possession of firearms under PD 1866, as amended by RA 8294, and sentenced him to 6 years of prision correccional to 8 years of prision mayor. The Office of the Solicitor General (OSG) disagrees, on the ground that the trial court should not have applied the new law. It contends that under the facts of the case, the applicable law should have been PD 1866, as worded prior to its amendment by RA 8294. The trial courts ruling and the OSGs submission exemplify the legal communitys difficulty in grappling with the changes brought about by RA 8294. Hence, before us now are opposing views on how to interpret Section 1 of the new law, which provides as follows: SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows: Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. -- The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .30 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 centerfire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup detat, such violation shall be absorbed as an element of the crime of rebellion or insurrection, sedition, or attempted coup detat. The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment. The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor. Citing People v. Jayson, the OSG argues that the foregoing provision does not cover the specific facts of this case. Since another crime -- direct assault with multiple unlawful homicide -- was committed, appellant cannot be convicted of simple illegal possession of firearms under the second paragraph of the aforecited provision. Furthermore, since there was no killing in this case,illegal possession cannot be deemed as an aggravating circumstance under the third paragraph of the provision. Based on these premises, the OSG concludes that the applicable law is not RA 8294, but
[59]

PD 1866 which, as worded prior the new law, penalizes simple illegal possession of firearms even if another crime is [60] committed at the same time. Applying a different interpretation, the trial court posits that appellant should be convicted of illegal possession of firearms, in addition to direct assault with multiple attempted homicide. It did not explain its ruling, however. Considering [61] that it could not have been ignorant of the proviso in the second paragraph, it seemed to have construed no other crime as referring only to homicide and murder, in both of which illegal possession of firearms is an aggravating circumstance. In other words, if a crime other than murder or homicide is committed, a person may still be convicted of illegal possession of firearms. In this case, the other crime committed was direct assault with multiple attempted homicide; hence, the trial court found appellant guilty of illegal possession of firearms. We cannot accept either of these interpretations because they ignore the plain language of the statute. A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the other crime is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms. Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 8294s simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the [63] new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. Moreover, since the crime committed was direct assault and not homicide or murder, illegal possession of firearms cannot be deemed an aggravating circumstance. We reject the OSGs contention that PD 1866, as worded prior to its amendment by RA 8294, should be applied in this case. When the crime was committed on September 24, 1997, the original language of PD 1866 had already been [64] expressly superseded by RA 8294 which took effect on July 6, 1997. In other words, no longer in existence was the earlier provision of PD 1866, which justified a conviction for illegal possession of firearms separate from any other crime. It was replaced by RA 8294 which, among other amendments to PD 1866, contained the specific proviso that no other crime was committed. Furthermore, the OSGs reliance on People v. Jayson is misplaced. True, this Court sustained the conviction of appellant for illegal possession of firearms, although he had also committed homicide. We explained, however, that the criminal case for homicide [was] not before us for consideration. Just as unacceptable is the interpretation of the trial court. We find no justification for limiting the proviso in the second paragraph to murder and homicide. The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that no other crime was committed by the person arrested. If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we. The Court is aware that this ruling effectively exonerates appellant of illegal possession of an M-14 rifle, an offense which normally carries a penalty heavier than that for direct assault. While the penalty for the first is prision mayor, for the second it is only prision correccional. Indeed, the accused may evade conviction for illegal possession of firearms by [66] [67] [68] using such weapons in committing an even lighter offense, like alarm and scandal or slight physical injuries, both [69] of which are punishable by arresto menor. This consequence, however, necessarily arises from the language of RA 8294, whose wisdom is not subject to the Courts review. Any perception that the result reached here appears unwise should be addressed to Congress. Indeed, the Court has no discretion to give statutes a new meaning detached from the manifest intendment and language of the legislature. Our task is constitutionally confined only to applying the law and [70] jurisprudence to the proven facts, and we have done so in this case. WHEREFORE, the appealed Decision is hereby AFFIRMED with the MODIFICATION that appellant is found guilty only of two offenses: (1) direct assault and multiple attempted homicide with the use of a weapon, for which he is sentenced to 2 years and 4 months to 6 years of prision correccional; and (2) maintaining a drug den, for which he was correctly sentenced by the trial court to reclusion perpetua. Costs against appellant. Let a copy of this Decision be furnished the Congress of the Philippines for a possible review, at its sound discretion, of RA 8294. SO ORDERED. Republic of the Philippines SUPREME COURT Manila
[65] [62]

SECOND DIVISION G.R. No. 133442 March 23, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. RODRIGO ALMAZAN, appellant. DECISION CALLEJO, SR., J.: This is an appeal from the Decision of the Regional Trial Court of Bangued, Abra, Branch 2, convicting the appellant Rodrigo Almazan of murder and sentencing him to suffer an indeterminate penalty of fourteen (14) years, ten (10) months and twenty (20) days of reclusion temporal, as minimum, to eighteen (18) years of reclusion temporal, as maximum. On 2 appeal, the Court of Appeals (CA) rendered its Decision on February 27, 1998 affirming the decision of the trial court but 3 increasing the penalty to reclusion perpetua. The CA certified the case to this Court pursuant to Section 13, Rule 124 of the Revised Rules on Criminal Procedure. The Court accepted the case. The appellant was charged with murder in an Information, the accusatory portion of which reads as follows: That on or about the 14 day of May 1989, at around 9:00 oclock in the morning, at Barangay Calaba, in the municipality of Bangued, province of Abra, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, and while armed with a firearm (unrecovered), did then and there, willfully, unlawfully and feloniously shoot one LORETO APOLINAR several times, hitting him on the head and other 4 parts of his body, which caused his death shortly thereafter, to the damage and prejudice of the heirs of the victim. The appellant was duly arraigned, assisted by counsel, and entered a plea of not guilty. The Case for the Prosecution The first witness of the prosecution was Felimar Apolinar who testified that her husband Loreto Apolinar worked as a 6 weaver. In the morning of May 14, 1989, she and Loreto were taking a bath at the Abra River, Barangay Calaba, about 45 meters away from their house. She also washed clothes. By 9:00 a.m., they decided to go home. From the river, they trekked by a narrow trail. She carried a basin by her side full of washed clothes. Loreto, who was naked from waist up, 7 8 was ahead of her by 9 meters. Suddenly, Rodrigo (Odit) Almazan, who was armed with a foot-long firearm, jumped from the hill at Loretos right side and landed slightly at a distance of about a meter from him. Almazan then aimed his gun at Loreto and shot him. The muzzle of the gun was about 2 feet from Loreto. Although already mortally wounded and bloodied, Loreto instinctively fled towards the house of spouses Eriberto and Francisca Sequerra, which was 45 meters 9 10 away from the place where the appellant first shot Loreto. Almazan, still armed with his gun, pursued Loreto. Felimar followed the two, shouting and pleading in the Ilocano dialect to Almazan, "Odit, Odit, Odit, dont shoot my 11 12 husband!" Almazan ignored her. Loreto managed to enter the house of the Sequerras. Almazan barged inside the house and saw Loreto crawling toward the sawali wall. Felimar managed to reach the first step of the stairs to the said house but was shocked when Almazan shot Loreto for the second time. Almazan then went out of the house and, upon 13 seeing Felimar at the foot of the stairs, told her, "You are also one (sic), you want that I will kill you!" Before Felimar could reply, Almazan fled from the scene. Felimar ran to the house of their neighbor, Patrolman Juanito Blanes of the 14 Bangued Police Station. She reported the shooting to him and sought help. She then lost consciousness and came to 15 her senses only after about 30 minutes. The next day, May 15, 1989, she gave her sworn statement to Pat. Antonio 16 Carpio. Patrolman Juanito Blanes testified that on May 14, 1989, between 8:00 a.m. and 9:00 a.m., he was on board a tricycle on 17 his way to his house at Barangay Calaba when he met Almazan. When he arrived home, he heard two gunshots. After a couple of minutes, Francisca Sequerra arrived in his house, pleading, "Brother, help us because Loreto Apolinar entered 18 our house and he was shot by Rodrigo Almazan." Blanes took his pistol and left his house to go to the house of the 19 Sequerras. On his way, he met Felimar who also pleaded to him saying, "Please brother, help us because Rodrigo 20 21 Almazan killed my husband." When he arrived at the Sequerras house, Loreto was already dead. He sent someone to report the matter to the Bangued Police Station. Momentarily, Corporal Catalino Buenafe and Lt. Esteban Pangda arrived 22 23 and conducted an on-the-spot investigation. They also took pictures of the crime scene. One of the pictures showed 24 Loretos head protruding through the sawali wall of the house.
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Francisca Sequerra testified that on May 14, 1989 at 9:00 a.m., she was washing clothes in the Abra River. She was 26 27 with Monching Bayle, Rening Sequerra and some children. She also saw Loreto and even joked with him. However, 28 she did not see Felimar in the river on that occasion. As she was climbing up to the trail on her way home, Loreto, who was then behind her, pleaded for her help. She saw Loreto bloodied all over. Afraid for her life, she did not help 29 Loreto. The latter passed by her and ran towards their (Sequerras) house. Instead of going home, Francisca opted to 30 proceed to the place where there were several people. Thereafter, she no longer knew what happened to Loreto. On July 11, 1989, or almost two weeks from the killing, Francisca gave a statement to Staff Sergeant (S/Sgt.) Edgardo C. rd Dacquel of the 123 PC Company/Police District I, Camp Juan Villamor, Bangued, Abra. In her statement, she stated that when she was about to reach her house from the river, he heard gunfire and heard Loreto pleading to her, "I am shot, please help me, sister!" Loreto repeated his plea to her as he passed by her and fled to her house. She noticed that Loreto was bloodied all over. When she arrived home, her mother-in-law, Maxima Sequerra, instructed her to report the matter and seek help from the police. She left the house to report the matter to Patrolman Juanito Blanes. Aside from her mother-in-law, Franciscas daughter, Maria Sequerra, and her children were also in the house. She did not know who shot 31 Loreto. She testified, on cross examination, that when she reported the matter to Blanes, she did not tell the policeman 32 that it was Almazan who shot Loreto. The prosecution presented S/Sgt. Dacquel who identified his Report dated August 31, 1989 on the killing of Loreto by Almazan which S/Sgt. Dacquel submitted to the Provincial Commander/Police Superintendent, Abra PC/INP Command. S/Sgt. Dacquel recommended that: 10. Criminal Complaint for MURDER be filed against C2C Rodrigo Almazan PC before the competent military court. 11. C2C Rodrigo Almazan PC be summarily discharged from the military service, effective upon approval so that his 33 case will be tried in the merits of the civil court. The Provincial Commander concurred with the foregoing recommendation. The order discharging Almazan from the 34 service was approved by the appropriate officer of the military on November 23, 1989. Dr. Herminio B. Venus, Medical Specialist I of the Abra Provincial Hospital, testified that he conducted an autopsy on Loretos cadaver. He, thereafter, prepared an Autopsy Report containing the following findings: DIAGNOSIS: MULTIPLE GUNSHOT WOUND HEAD AND CHEST THRU AND THRU CADAVER - Lividity and Rigidity Length 160 centimeter Weight 60 kilos EXTERNAL FINDINGS: 1. Gunshot wound. Chest lateral thru and thru POE 8 holes measuring in centimeters in diameter 5 centimeters apart 8 centimeters from the right axilla, oval in shape, inverted edges with contusion collar around the wounds directed obliquely penetrating the thoracic cavity existing POEX at the right chest anterior 4 holes measuring 1.5 centimeters in diameter everted edges 3 centimeters apart below the right nipple. 2. Presence of powder burn at the right shoulder, right thumb and index finger. 3. Gunshot wound head 5 centimeters above the right ear POE measuring 4 centimeters in diameter, oval in shape, inverted edges with contusion collar around the wound, directed slight downward penetrating cranial cavity exiting POEX at left neck with 4 holes 3 centimeters apart everted edges. INTERNAL FINDINGS:

25

1. Presence of 1000 cc. of soft clotted blood inside the thoracic cavity. 2. Presence of cylindrical tunnel at the right lung middle, upper and lower lobe with blood contents and echymotic border. 3. Laceration of the liver 4. Laceration of the arch of aorta 5. Laceration of the brain substance soft clotted blood inside the brain. 6. Pillars and core were extracted. CAUSE OF DEATH: CARDIAC TAMPONADE BRAIN INJURY, INTRA CRANIAL, INTERNAL AND EXTERNAL HEMORRHAGE MASSIVE, SECONDARY TO MULTIPLE GUNSHOT WOUND HEAD AND CHEST THRU AND THRU
35

He testified that Wound No. 1 was "thru and thru" and fatal. Powder burns were present on the victims right shoulder. He managed to hold the gun as indicated by the presence of powder burns on his right thumb and index finger. Wounds Nos. 1 and 2 could have been caused by a shotgun or a buckshot. The Case for the Appellant In his Brief submitted to the CA, the appellant summarized his testimony and those of his witnesses, thus: 1. CAPTAIN RODOLFO RIVERA Commanding Officer of the 135 PC Co, stationed in the Municipality of La Paz, Abra, he testified that he personally supervised and check[ed] the physical attendance and disposition of all members of his command; that accused herein, Rodrigo Almazan was a member of his command with the rank of Constable 2d Class; his physical presence and performance of duty had been duly accounted for like any other individual member of his unit; and based on official documents, duly and daily prepared, and thereafter, officially submitted to higher headquarters, i.e., Morning Reports (Exhibit "3;" Daily Disposition and location of Troops (Exhibit "4," "5," "6," and "7"); and Guard Detail (Exhibit "9"), accused Almazan was physically present inside camp, and actually performed his duty as guard from 13 May 1989 to 14 May 1989. He executed an affidavit (Exhibit "8"), confirming the fact that accused performed his normal garrison duties, e.g., attending daily formation, camp guarding, and had participated in combat operations against dissidents in the Cordillera mountain towns of Daguioman and Malibcong from May 14, 1989, up to the time he was placed under arrest on November 07, 1989. 2. T/SGT WILFREDO CACHO The Company First Sergeant of the 135 PC Co, he testified that he conducted daily physical check-up of the men personally, supervised the performance of duty of each and every member thereof; that their
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physical presence were reflected in official documents submitted to higher headquarters which he, himself, or his clerk, prepares such as the Morning Reports, Daily Disposition and Location of Troops, Guard Details, etc; that based on these documents, accused Almazan, as a bona fidemember of the command, was duly accounted for as physically present inside the camp at La Paz, Abra for the period: May 11, 12, 13, 14, 1989 (Exhibits "4," "5," "6," and "7," respectively). 3. T/SGT EDMUNDO LORENZO Designated as Sergeant of the Guard for the period May 13-14, 1989, he personally prepared the Guard Detail (Exhibit "9"), as follows: 1 Shift (2-hour guarding or a total of 6 hours-May 13) 5:00 P.M. 7:00 P.M. 1st relief Carmelo Trinidad 7:00 P.M. 9:00 P.M. 2d relief Rodrigo Almazan 9:00 P.M. 11:00 P.M. 3d relief Carlos Layug 2d Shift (2-hour guarding or a total of 6 hours-May 13/14) 11:00 P.M. 01:00 A.M. 1 relief Carmelo Trinidad; 01:00 A.M. 03:00 A.M. 2d relief Rodrigo Almazan; 03:00 A.M. 05:00 A.M. 3d relief Carlos Layug 3d Shift (4-hour guarding daytime total-12 hours May 14) 05:00 A.M. 9:00 A.M. 1 relief Carmelo Trinidad; 09:00 A.M. 01:00 P.M. 2d relief Rodrigo Almazan; 01:00 P.M. - 05:00 P.M. 3d relief Carlos Layug. That as Sergeant of the Guard, he personally checked the performance of duty of each guard, and in particular, accused was always physically present in his post, never asked permission to be relieved nor abandoned his post during his tour of duty as guard. 4. CONSTABLES CARMELO TRINIDAD AND CARLOS LAYUG The testimonies of above defense witnesses being corroborative in nature, prosecution initiated the stipulation of their testimonies as follows: That during their tour of duty as guards, their assumption of and relief from their duties as guards were performed accordingly; That during their individual tour of duty as guards, none of them ever leave their posts physically or go outside of camp, with or without permission. 5. RODRIGO ALMAZAN Accused-appellant herein, testified as follows: As a member of the 135 PC Co, then stationed at the poblacion, Municipality of La Paz, Abra, he performed normal garrison duties, e.g., guarding, patrolling, etc;
th st st st

That he was designated as a member of the daily company guard detail for the whole period, from 5:00 oclock P.M. May 13, 1989 to 5:00 oclock P.M. May 14, 1989, as the 2d-relief guard; That the members of the guard detail for said period were: T/Sgt Edmundo Lorenzo, Sergeant of the st Guard, Constable Carmelo Trinidad, 1 Relief; Constable Rodrigo Almazan (accused), 2d relief, and rd Constable Carlos Layug as 3 relief; As 2d relief he performed personally guard duty designated as follows: First Shift [Two (2)-hour guarding] 7:00 oclock P.M. to 9"00 oclock P.M. May 13, 1989; Second Shift [Two (2)-hour guarding] 1:00 oclock A.M. to 3:00 oclock A.M. May 14, 1989; Third Shift [Four (4)-hour guarding] 9:00 oclock A.M. to 1:00 oclock P.M. May 14, 1989 That during his entire tour of duty, he never went outside of camp physically; neither did he ever ask permission to leave his post, or, without permission (abandonment of post), left camp. That in the early morning of May 15, 1989, his unit, 135 PC Co (to include himself), moved out from its station at La Paz to the mountainous towns of Malibcong and Daguioman where it launched combat operations against dissidents; That he personally participated in the operations from that time (May 15, 1989) up to November 07, 1989, when he was placed under arrest as an accused for the death of Loreto Apolinar; he was escorted to the Provl. Headquarters at the capital town of Bangued and thereby detained for twenty-five (25) days until he was released on bail on December 02, 36 1989; The trial court convicted the appellant as charged but sentenced him to an indeterminate penalty. The decretal portion of trial courts decision reads: WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of murder without any mitigating or aggravating circumstances and sentences him an indeterminate penalty of Fourteen (14) Years, Ten (10) Months and Twenty (20) Days as minimum to Eighteen (18) Years of reclusion temporal as maximum; to indemnify the heirs of the 37 late Loreto Apolinar in the amount of Fifty Thousand Pesos (P50,000.00) and to pay the cost of this suit. The Court of Appeals affirmed the appealed decision but increased the penalty to reclusion perpetua. The appellant filed a Supplemental Brief with this Court, contending that: THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT IN LIGHT OF EVIDENCE ON RECORD WHICH 39 RAISES REASONABLE DOUBT AS TO HIS GUILT. The appellant harps on the fact that prosecution witness Francisca testified that she did not see Felimar taking a bath nor washing clothes in the Abra River with her husband Loreto. Besides, Felimars testimony is incredible and barren of 40 probative weight because it is frontally contradicted by the testimony and sworn statement of Francisca. Felimar could not have run after Loreto and the appellant and reach the house of the Sequerras in time for her to hear the second gunfire from the appellants firearm because she was then around eight months pregnant. The house of the Sequerras was about 247 meters from the Abra River. Felimar could not have negotiated the distance of 200 meters from the Sequerras house to the house of Blanes in her physical condition. If she saw the appellant shoot and kill Loreto, certainly, the appellant would have also killed her to eliminate any witness against him. Hence, Felimars testimony that the appellant even threatened to shoot her is implausible. The testimony of Felimar is even contradicted by the physical evidence. For, if as claimed by her, Loreto was first shot at around a distance of 2 feet between the gun muzzle and skin, a shotgun blast would have produced a single entry wound although there may be isolated shots causing independent
38 th

entry. In this case, the first gunshot wound on the chest of the victim produced eight separate and independent entry wounds on the victims chest. Such number of entry wounds could only have been caused or produced by a buckshot fired at a muzzle to skin distance of at least ten feet. When police investigators arrived at the scene, they did not even investigate Felimar and did not take her statement thereat. They merely asked her the assailants name. The appellant could not have killed Loreto because he was a guard on duty at the PC Camp La Paz, Abra, on May 14, 1989 from 9:00 a.m. to 1:00 p.m. It was only in November 1989 when he learned, for the first time, that he was a suspect in the killing of Loreto. The appeal is dismissed. First. Felimar positively identified the appellant as her husbands assailant. When she testified, Felimar declared that the appellant mercilessly shot her husband twice and narrated in great detail how the appellant committed the crime with impunity: Q Do you know also a person by the name Loreto Apolinar? A He is my husband. Q Where is your husband now? A He died already, sir. Q And when did he die? A May 14, 1989, sir. COURT Q What did he die of? A He was shot by Rodrigo Almazan (witness pointing to the accused). FISCAL FLORES Q On May 14, 1989 at around 9:00 in the morning do you know where were you (sic)? A It was when we went to take a bath at the river. Q You said we, who was your companion? A My late husband Loreto Apolinar. Q How long did it take you to take [a] bath in the river? A Maybe thirty (30) minutes, sir. Q And after taking your bath, what did you do next, if any? A We went home. Q Do you recall if there was anything that transpired while you were on your way home? A There was, sir. Q Will you relate what was that? Start from the beginning.

A After having taken a bath, we were going home and when we were ascending the river bank, it was then when somebody jumped from the bushes. Q Do you know that person who jumped from the bushes? A Yes, sir. Q Who? A (Witness pointing to Rodrigo Almazan). Q You stated that since your husband walked faster than you, you were somewhat left behind, how far were you from your husband who was walking ahead of you? A Ten (10) meters, more or less. Q You said that the person who jumped was the accused, my question is, how did he appear to you when he jumped in front of you? ATTY. ASTUDILLO No basis, he did not jump in front of her. COURT Q Did you see that person whom you identified as Rodrigo Almazan? A Yes, sir. COURT Now answer the Fiscal. WITNESS A He jumped and he was holding a gun. FISCAL FLORES Q More or less, will you describe that gun he was holding according to you? A (Witness indicating a length of one foot.) Q And after he jumped in front of you, what transpired next? A He shot my husband and my husband ran away but then he followed him. COURT Q Who ran away, your husband? A My husband ran away it (sic) was followed by Rodrigo Almazan. FISCAL FLORES Q How many times did the accused shot your husband, if you know?

A Once, sir. Q Do you know if your husband was hit at that time? A I know that he was hit because blood was oozing from his body. Q Alright, when you saw your husband hit already because according to you blood was already oozing from his body, what did you see or do if any? A I ran after them shouting: "Odit, Odit, dont shoot my husband." Q Who was that Odit you are addressing your pleas? A Rodrigo Almazan (witness pointing to the acused). COURT Q So this Odit is the nickname of Rodrigo Almazan? A Yes, sir. FISCAL FLORES Q Your husband when he was shot ran away and he was followed by the accused, where did they go, if you know? A My husband went to the nearest house. Q And what about you, what did you do when you followed them? A I followed them, sir, because Rodrigo Almazan was also following my husband. Q Where did Rodrigo Almazan follow your husband will you tell the court? A Inside the house. Q And what happened next inside the house if you know? A The[n] he shot my husband. Q How many times did Rodrigo Almazan shot your husband inside the house where your husband sought refuge? A Once, sir. COURT Q Your husband was shot twice, once on the way going up the riverbank and the other one is in the house? A Yes, sir. Once when he was ascending and once in the house where he sought refuge. FISCAL FLORES Q You said that your husband was shot for the second time inside the hut where he sought refuge, how far from you when Rodrigo Almazan shot your husband for the second time, if you know? A Maybe less than ten (10) meters.

Q And the first time that your husband was shot when you were ascending that river bank, how far were you, if you still remember? ATTY. ASTUDILLO Already answered, ten meters more or less. COURT Ten (10) meters. ATTY. ASTUDILLO Q A while ago, when we were asking you how far was your husband to (sic) the accused at the time he jumped, you first said less than three meters and then you corrected it, is it not? A Yes, sir. Q So at that distance of less than one meter while the accused was on the right side of your husband, that was the time he shot your husband? A Yes, sir. Q Madam Witness, you saw actually how your husband was shot according to you on that first burst? Would you please personify yourself as your husband and place the Interpreter as the assailant in the way you saw him when he allegedly shot your husband? With the permission of the Court. A (The witness demonstrating a firing position towards the left side of the Interpreter with a long firearm.) ATTY. ASTUDILLO Q Could you please be more accurate, Madam Witness. Could you please rise again. You are the accused. Now, you said that the accused jumped on the right side of your husband. Please place the Interpreter as your husband, so you must be on his right side. A (Witness raising her two hands in a firing position, aimed towards the right side of the Interpreter; and the victim and the assailant as placed by the witness, they are directly opposite each other.) Q So that is now the correct position of your husband and the assailant at the time the assailant first show (sic) the victim? A Yes, sir. Q Now, you raised your two hands and protruded it about a meter away from the body, is it not? A No, sir. The left hand is slightly bent at the elbow. Q And you said that your husband and the assailant were less than a meter apart on the right side of your husband, is it not? A Yes, sir. Q So with your protruding left hand, although slightly bent left elbow, you have consumed about half a meter from your body, is it not?
41

A Yes, sir. Q Considering likewise that your husband is only about less than a meter away from the assailant, the muzzle of the gun, therefore, was already very close to the side of your husband, is it not? A It is not so near, sir. COURT Q How far was the muzzle of the gun from your husband? A (Witness demonstrating about one and one-half to two feet.) ... ATTY. ASTUDILLO Q So, Madam Witness, how long after the first burst of gunfire at the trail up to the second burst of gunfire inside the house? How long after? A I cannot estimate, sir. COURT Q Before the first shot was fired, did you hear any conversation between your husband and the assailant? A None, sir. Q You did not hear any? A I did not hear any, sir. Q Is it not a fact, Madam Witness, that immediately after the accused and the assailant reached the house of Francing Sequerra, there was an immediate burst of gunfire? A After they had gone inside the house, that was the second shot, sir. Q Yes, immediately after they had gone inside the house, there was a burst of gunfire? A Yes, sir. ATTY. ASTUDILLO Q Who was ahead in running, Madam Witness, towards the house of Francing Sequerra, your husband, is it not? A Yes, sir. Q And according to your testimony, the accused followed suit? A Yes, sir. Q And they were very close [to] each other running towards the house of Francing Sequerra? A Maybe less than ten meters distance, sir.
42

Q How about you, you said you followed suit. How far were you? How close were you from the back of the accused, also going to the house of Francing Sequerra? A Maybe less than ten meters also, sir. Q That house of Francing Sequerra is a one-bedroom house, is it not? A Two, sir. Q One living room and two bedrooms? A That is what they said because I have not gone on (sic) that house. Q You were still on the ground, according to you, when the second shot was fired inside the house? A I was holding the upper portion of the stairs. I was about to step on the first step when I heard the second shot. Q How many steps up to the second floor of the house of Francing Sequerra where the second burst of gunfire occurred? A Three steps only, sir. Q But in the place where you were at the time the second shot was fired, you cannot see your husband, nor the accused, correct? A Yes, sir. COURT Q But did you hear the gunfire? A Yes, sir.
43

It must be emphasized that on May 15, 1989, or barely a day after the killing of her husband, Felimar gave her 44 sworn statement to Pfc. Antonio Carpio of the Bangued Police Station and gave a detailed narration of how the appellant shot Loreto with a long firearm. The gory killing of her husband was still fresh in her mind. She subscribed and swore to the truth of her statement before Notary Public Ricarte B. Valera. Felimar was a 31-yearold housewife. She finished only Grade VI in the elementary grade. Her testimony and sworn statements are clear, positive and full of details, including the identity of the appellant. Felimar could not have contrived the details of the killing. Indeed, it is most unlikely that Felimar could have narrated all the details of the crime with 45 clarity and lucidity unless she herself was present at the situs criminis before and during the killing. The testimony of a witness, giving details of a startling incident that cannot easily be fabricated, deserves credence 46 and full probative weight for it indicates sincerity and truthfulness in the narration of events. Second. Felimar testified that she was with her husband at the Abra River and described how the appellant first shot her husband when the latter was on his way home and again, when he was inside the Sequerras house. On the other hand, Francisca, a prosecution witness, testified that she did not see Felimar at the river when she 47 washed clothes, and that she did not reach her house and did not seek help from Pat. Juanito Blanes. Significantly, Blanes corroborated Felimars testimony when he testified that Francisca arrived at his house asking for his help because the appellant had shot Loreto in her house: FISCAL FLORES Q What happened while you were on your way home? A I rode on a tricycle and the driver was Marlon Barroga and we met Rodrigo Almazan.

Q This Rodrigo Almazan whom you claim to have met while you were on your way to your barangay on that particular day, is he the same accused who is now seated there? A The same, sir. Q Alright, what happened next after you met the accused? A When I reached home at around thirty (30) minutes after, I heard a gunshot. Q How many gunshots or reports did you hear? A Two (2) times (sic), sir. Q After you heard the two gun reports, what did you do if any? A I tried to determine where the shot came from and in two minutes after, a person by the name of Francing Sequerra came to me and asked for help by saying: "Manong, arayatenna kami ta simrek diay balaymi ni Loreto Apolinar ta pinaltoogan ni Rodrigo Almazan." (Translated as follows: "Brother, help us because Loreto Apolinar entered our house and he was shot by Rodrigo Almazan"). Q Do you know this person Loreto Apolinar whom Francing Sequerra was referring to you when she came to seek your help? A Yes, sir. COURT Q Why do you know Loreto Apolinar? A We are neighbors because he is also from Calaba, Your Honor. Q How about this Francing Sequerra, why do you know her? A Because we are neighbors at Calaba, sir. Q Is this Francing Sequerra a boy or girl? A A woman, Your Honor. COURT Proceed. FISCAL FLORES Q What is the relation of this Loreto Apolinar to the victim in this case, if you know? A The same person, sir. Q Alright, upon receipt of the information from Francing Sequerra, what did you do next, Mr. Witness, if any? A I went to get my service pistol then I went out then I met outside Felimar Apolinar, the wife of the victim who sought my help by saying: "Manong arayatenna kami ta pinaltoogan ni Rodrigo Almazan ni lakayko" translated into English as follows: "Please Brother, help us because Rodrigo Almazan killed my husband." ATTY. PURUGGANAN

We object to the presentation of that statement because it is hearsay, Your Honor. COURT Let it stay on record. We will rule on that but see to it that the objection is put on record. Go ahead. FISCAL FLORES Q Upon being informed by the wife of the victim Felimar Apolinar, what did you do next, if any? A I went to the crime scene. Q And what did you find out to (sic) the place where the incident transpired? A I found out that Loreto Apolinar.I saw Loreto Apolinar with his head hanging (nabalintungog) down from the house of Francing Sequerra. COURT Q Is this Francisca Sequerra the same as Francing Sequerra? A Yes, sir.
48

Francisca herself stated in her sworn statement to S/Sgt. Dacquel on July 11, 1989 that from the river she was able to reach her house and, upon the instructions of her mother-in-law, she sped to the house of Blanes and sought his 49 help. The second statement of Francisca belies her testimony that instead of proceeding to her house, she went to another house where there were several people. The trial court disbelieved parts and believed the other portions of Franciscas testimony. The trial court cannot be faulted for so doing. It was its duty to determine which portions of the 50 testimony are credible and which portions are not. In People v. Quilang, this Court held that courts may believe one part of the testimony of a witness and disbelieve other parts depending on its inherent credibility or the corroborative evidence in the record. In contrast, Felimar had not committed any material inconsistency in her sworn statement and her testimony before the trial court. The appellant failed to present any witness to corroborate Franciscas testimony that Felimar was not in the river when Loreto was taking a bath and she (Francisca) was washing clothes in the river. Likewise, the trial court cannot be faulted for giving full probative weight to the testimony of Felimar. Parenthetically, S/Sgt. Dacquel, who conducted the investigation on the appellants involvement in the killing of Loreto, on orders of the Acting Commanding Officer/District Commander and to whom Francisca gave her sworn statement on July 11, 1989, in his report, noted that: Francing Sequerra, on the other hand, might have also seen or witnessed the tragedy but for fear of being involved or be implicated by the Almazans, (sic) she have (sic) turned blind and deaf, so as to save her life and limb. (Autopsy Report 51 of the late Loreto Apolinar hereto attached and marked as Tab-"D") Third. Admittedly, when the appellant shot the victim on May 14, 1989, Felimar was eight months on the family way. The distance from the place where the appellant first shot Loreto to the house of the Sequerras was only 45 meters. Completely unmindful of her physical condition and determined to help her husband at all costs, she followed the appellant and Loreto to the house of the Sequerras. There is no evidence that right after the appellant caught up with Loreto at the Sequerras house, the appellant shot Loreto immediately. It is possible that a struggle ensued between Loreto and the appellant even as the former crawled to the sawali wall of the house and managed to insert his head through the said wall. By the time Felimar reached the first step of the stairs of the house, the appellant gave Loreto the coup de grace and shot him for the second time, this time on the head. Fourth. That the appellant ensured the death of Loreto by shooting him twice with a long firearm but did not shoot Felimar is not difficult to believe. The evidence on record shows that the appellant intended and was bent on killing Loreto only. The appellant had no motive to kill Felimar, Francisca, or any of the other people present, for that matter. Indeed, there was no reason for him to kill Felimar. Besides, she was eight months on the family way. The appellant must have thought that although Felimar witnessed the killing of her husband, she would be too petrified to divulge the assailants identity, just like Francisca. However, Felimar proved to be of sterner stuff. She was determined to put the appellant behind bars for his dastardly crime.

Despite her condition, it was not physically impossible for Felimar to have trekked the 250-meter distance between the house of the Sequerras and that of Blanes and sought the latters help. There is no evidence on how Felimar was able to cover said distance. She could have reached the house of Blanes via a tricycle or other mode of transportation. It is not quite far-fetched that despite her pregnancy, Felimar was able to run from the place where the appellant first shot her husband to the house of the Sequerras, which was only 45 meters, and from there, still managed to go to Blanes house, which was only 250 meters away. The Court observes that the spouses Loreto and Felimar worked in the farm. It is established in the medical field that some pregnant women, even late in pregnancy, have run marathons of considerable distance without apparent harm to themselves or their fetuses: In general, it is not necessary for the pregnant woman to limit exercise, provided she does not become excessively fatigued or risk injury to herself or her fetus. The current enthusiasm for jogging has also attracted a number of pregnant women to the endeavor. In fact, several women, even late in pregnancy, have run in marathons of considerable distance 52 without apparent harm to themselves or their fetuses. Fifth. The appellant claims that Felimars testimony that when he first shot Loreto, the muzzle of the gun was only 1-1/2 to 2 feet from the victim, is belied by physical evidence. He insists that if her testimony were true, then there should have been only a single entry wound. However, the autopsy report showed that Loreto had eight entry wounds on his chest. We do not agree with the appellant. The fact that the victim had been shot by a shotgun at 2 to 3 feet muzzle to skin distance does not preclude the possibility of independent entry. Dr. Pedro Solis notes that: 2. Long Range Shot (more than 6 inches skin-muzzle distance): a. At 2 to 3 feet muzzle-skin distance, there is still a single wound of entry although there may be isolated shots causing 53 independent entry. Sixth. As found by the trial court and the CA, which we find supported by the evidence, the prosecution proved that the appellant had an ill-motive to kill Loreto: Lastly, the theory of the police that the motive for the killing of the victim is revenge because earlier, the victim, Loreto Apolinar was accused for killing P.C. S/Sgt. Rogelio Almazan, brother of the accused on January 18, 1988, and a criminal complaint for homicide was filed against Loreto Apolinar, the victim in the instant case or I.S. No. 178 of the Office of the Provincial Fiscal of Abra, but the resolution of the fiscal exonerated the then respondent Apolinar, (Exhibit "1"), and the 54 accused in killing the victim was out to revenge his brothers death is not farfetched. S/Sgt. Dacquel, based on his report, concluded that the appellant killed Loreto to avenge the death of his brother Rogelio Almazan: This is the true fact, but all these facts cannot be admitted by the Almazans (sic), who have conceived hatred and taken revenge and killing the brother of Loreto Apolinar, who was hacked and stabbed to death by the Almanzans (sic). But not yet satisfied with what they have done to the brother of Loreto Apolinar, the Almazans (sic) have not stopped, not until C2C Rodrigo Almazan succeeded in killing his prime target. With all these facts and circumstances, clearly manifest th that C2C Rodrigo Almazan PC of the 135 PC Company, is the killer of the late Loreto Apolinar, as being properly identified/pinpointed by the widow of Loreto Apolinar and who was likewise threatened to be killed by C2C Rodrigo 55 Almazan. The Provincial Commander of Abra and the Acting Commanding Officer/District Commander of the Philippine Constabulary agreed with the findings of S/Sgt. Dacquel. In rejecting the appellants defense of alibi, we agree with the encompassing disquisitions of the trial court: To fortify his defense of alibi, the accused submitted the following documentary evidence, to wit: Exhibits 3, Morning Report, 4, 5, 6 and 7, disposition and location of troops from May 12 to 14, 1989; Exhibit 9, guard detail and the testimony of witnesses. The time honored albeit weather beaten but still is the prevailing doctrine in this jurisdiction is that alibi is the weakest defense for the reason that it can easily be concocted and fabricated and for this defense to hold water the physical impossibility for the accused to be at the scene of the crime at the particular hour and day of its commission must be established. The place where the accused claim he was at the time of the commission of the crime is only a scant 10 kilometers away which can be negotiated by land transportation means in 30 minutes. The estimation of witnesses of the approximate time of commission of the crime is around 9:00 oclock in the morning, the end of the guard duty of the

accused in the morning of May 14, 1989. He is to go on guard again at 1:00 oclock in the afternoon of that day, his last duty. So that between 9:00 oclock A.M. to 1:00 oclock P.M. May 14, 1989, he is off duty and the crime was committed at around 9:00 oclock in the morning of May 14, 1989. It is not really impossible for the accused to be in the vicinity of the scene of the crime at around 9:00 oclock in the morning of May 14, 1989. But the most damaging evidence against the accused viz-a-viz his defense of alibi, is his positive identification by the wife of the victim, Mrs. Felimar Apolinar, a neighbor in Calaba, Bangued, Abra, who has known the accused since childhood as the assailant of her husband Loreto Apolinar and the identification by another resident of Calaba, Police Officer Juanito Blanes of the Bangued Police Station, Bangued, Abra, who testified that on his way home to Calaba, Bangued, Abra, he saw between the hours of 8:00 oclock and 9:00 oclock in the morning of May 14, 1989, the accused riding on a tricycle driven by one Marlon Barroga. After some 30 minutes from the time he arrived home, Blanes heard the 2 gunshots. He took his service firearm proceeded to the place where he heard the shots to investigate and on the way he met Felimar, wife of the victim who immediately sought his help about the shooting of her husband. This alibi defense and the documents presented in this trial, as official records of the 135 P.C. Company were the subject of investigation by authorities at the Constabulary Headquarters in Camp Crame, Quezon City, Exhibit "14", but apparently the constabulary authorities did not give any credence to his defense because he was discharged from the military service effective November 30, 1989, not even giving him the chance to present his evidence. In other words, it was a summary dismissal a procedure resorted to by the military when there is no more need to investigate the case further because of the notoriety of the occurrence giving rise to the controversy and that whatever defense may be proffered by the respondent cannot overcome the preponderance of evidence on record against him. This is what happened in this case and the regularity of the performance of duty and functions by government officials is presumed. No 56 evidence was ever offered by the accused to overcome it. The Crime Committed by the Appellant We agree with the trial court and the CA that under Article 248 of the Revised Penal Code, the appellant is guilty of murder qualified by treachery. The crime was committed before the effectivity of Republic Act No. 7659; hence, the crime was punishable by reclusion temporal in its maximum period to death under Article 248 of the Revised Penal Code. Further, under Republic Act No. 8294 amending Presidential Decree No. 1866, the use of an unlicensed firearm to commit homicide or murder is a special aggravating circumstance in the commission of the crime. The Information merely alleged that the appellant used a firearm to kill the victim. It did not allege that the same was unlicensed. Neither was it proved by the prosecution that the appellant had no license to possess the firearm. The appellants lack of license to possess the 57 firearm is an essential element of the circumstance. Unless it is alleged in the Information and proved by the prosecution, the use by the appellant of an unlicensed firearm to commit murder is not aggravating. Besides, the crime was committed before the effectivity of the Revised Rules of Court and Rep. Act No. 8294. Hence, the aggravating circumstance should 58 not be appreciated against the appellant. There being no mitigating or aggravating circumstance attendant to the crime, the medium period of the penalty imposed 59 by the law for the crime, namely, reclusion perpetua, shall be imposed on the appellant. In this case, the CA correctly imposed the penalty of reclusion perpetua. On the civil liability of the appellant, he should be ordered to pay exemplary damages to the heirs of the victim 60 conformably to current jurisprudence. IN LIGHT OF ALL THE FOREGOING, the appeal is DISMISSED. The Decision of the Court of Appeals, dated February 27, 1998, is AFFIRMED with MODIFICATION. The appellant is hereby ordered to pay P25,000.00 to the heirs of the victim Loreto Apolinar, as exemplary damages. SO ORDERED. Republic of the Philippines SUPREME COURT Manila

THIRD DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 178202

Present:

CORONA, J., Chairperson, - versus VELASCO, JR., PERALTA, BERSAMIN, and MENDOZA, JJ. NORMAN SITCO and RAYMUNDO BAGTAS (deceased), Accused-Appellants. Promulgated:
*

May 14, 2010 x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

This is an appeal from the October 19, 2006 Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00038 entitled People of the Philippines v. Norman Sitco y De Jesus and Raymundo Bagtas y Caparas, which affirmed the Decision of the Regional Trial Court (RTC), Branch 72 in Malabon, in Criminal Case Nos. 19456-MN to 19459-MN for violation of Sections 15 and 16 of Republic Act No. (RA) 6425 or The Dangerous Drugs Act of 1972. The affirmed RTC decision adjudged accused-appellants Raymundo Bagtas and Norman Sitco guilty in Crim. Case No. 19456-MN for drug pushing and sentenced them to reclusion perpetua. For illegal possession of drugs, Bagtas was sentenced to two months and one day of arresto mayor, as minimum, to one year and one day of prision correccional, as maximum, in Crim. Case No. 19458-MN, and reclusion perpetua in Crim. Case No. 19459-MN. While the RTC convicted Sitco in Crim. Case No. 19457-MN, the CA would later overturn his conviction in this case.

The Facts

In Crim. Case No. 19456-MN, Sitco and Bagtas were charged with drug pushing in an information reading:

That on or about the 11 day of May 1998, in Navotas, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, being private persons and without authority of law, conspiring[,] confederating and mutually helping with one another, did then and there willfully, unlawfully and feloniously sell and deliver, in consideration of the sum of P2,000.00+, most of which were boodle or fake money to a poseur buyer[,] two (2) heat-sealed transparent plastic bags containing white crystalline substance with net weight of 108.40 grams and 105.84 grams respectively, which substance when subjected to chemistry examination gave [1] positive result for Methamphetamine Hydrochloride, otherwise known as Shabu, a regulated *drug+.

th

The other informations for illegal possession of drugs that were separately filed against either Sitco or Bagtas read as follows:

Crim. Case No. 19457-MN against Sitco (illegal possession)

That on or about the 11 day of May 1998, in Navotas, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, being [a] private person and without authority of law, did then and there willfully, unlawfully and feloniously have in [his] possession, custody and control One (1) heat-sealed transparent plastic bag, containing white crystalline substance with net weight of 20.29 grams, which substance when subjected to chemistry examination gave positive result for Methamphetamine Hydrochloride otherwise [2] known as Shabu, a regulated drug.

th

Crim. Case No. 19458-MN against Bagtas (illegal possession)

That on or about the 11 day of May 1998, in Navotas, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, being [a] private person and without authority of law, did then and there willfully, unlawfully and feloniously have in his possession, custody and control One (1) heat-sealed transparent plastic bag, containing white crystalline substance with net weight of 1.31 grams, which substance when subjected to chemistry examination gave positive result for Methamphetamine Hydrochloride otherwise known as Shabu, a regulated drug. Crim. Case No. 19459-MN against Bagtas (illegal possession)

th

That on or about the 11 day of May 1998, in Navotas, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, being [a] private person and without authority of law, did then and there willfully, unlawfully and feloniously have in his possession, custody and control One (1) brick of suspected [3] marijuana with net weight of 887.01 grams, which is a regulated drug.

th

During the arraignment, both accused-appellants entered a not guilty plea to all the charges. A joint trial then ensued.

Version of the Prosecution

From the testimony of the prosecution witness, Police Officer 3 (PO3) Alex Buan, the following version is gathered:

Acting on a tip from an informant, Senior Inspector Gatlet of the Navotas Police Station ordered the conduct of a buy-bust operation against accused-appellants, who were allegedly selling illegal drugs on Espina St. in Navotas, Metro Manila. The team consisted of Buan, as poseur-buyer, a confidential informant, and several police operatives as back-up. Marked money, consisting of four (4) PhP 500 bills for a total of PhP 2,000 and boodles or fake money amounting to PhP 196,000, was prepared.

On May 11, 1998 at 11:15 in the evening, the team proceeded to a house in the target place where Bagtas answered the knocking of the door. Thereupon, the confidential informant introduced him to Buan who, then and there, expressed his desire to buy shabu. Bagtas replied that he did not have enough supply of shabu, but manifested thatmarijuana was available. Buan, however, insisted on buying only shabu.
[4]

Bagtas informed Buan that someone would be delivering more shabu. After waiting for a few minutes, a man, who turned out to be Sitco, arrived. After the usual introductions, Sitco told Buan to follow him to his motorcycle. He asked for the payment and took out a bag with two plastic bags of shabu inside. Buan examined the contents, then identified himself as a police officer, and arrested Sitco. The back-up officers joined the scene and frisked Sitco and Bagtas. Sitco was found to have in his possession a loaded caliber .38 paltik revolver, the buy-bust money, and more shabu. Bagtas had in his possession marijuana and shabu.
[5]

The seized items were sent to Forensic Chemist Grace N. Eustaquio for laboratory examination and were found positive for shabu and marijuana per Physical Science No. D-411-98.

During trial, Buan identified accused-appellants, the four (4) PhP 500-bill marked money used, the shabu confiscated from both accused-appellants, and the marijuanaseized from Bagtas. Buan explained during his testimony that the boodle money placed inbetween the genuine marked money the buy-bust team used was unavailable as it had been confiscated by a policeman named Barlin when he himself (Buan) was arrested for violating Sec. 27 of the Dangerous Drugs Act.
[6]

Version of the Defense

The evidence for the defense consists of the testimonies of Sitco and Bagtas.

Bagtas branded as fabricated the accusations against him and Sitco. According to him, on the day of the alleged buy-bust operation, he was busy cleaning his motorcycle when, all of a sudden, policemen, led by Buan, entered his house. Buan came armed with an armalite rifle and a .45 caliber pistol, but did not show any document to justifying the police officers entry into his (Bagtas) home. The intruders pointed guns at Bagtas, his common-law wife, his nephew, a certain Boy Macapagal, a certain Malou, a helper in his store, a girl applying for work as a househelper, and Sitco, who was visiting Buan at the time. They were ordered to lie face down as Bagtas house was being searched. He was told that he was a suspect in the killing of a Navotas policeman named Ira. After the search was done, no illegal drugs were found. Yet the police officers took his camera, tape recorder, and the cash from his stores sales. The pieces of jewelry they were wearing, including his ring and necklace, were also confiscated. Afterwards, all of them were handcuffed and asked to board the police officers vehicles. Two motorcycles belonging to Sitco and Bagtas were also seized.
[7]

At the police headquarters, Buan and the other police officers demanded payment for the release of Bagtas group. After some haggling, the group relented and paid some amount for their freedom. Sitco and Bagtas, however, were detained. Instead, they were handcuffed to a steel post after being blindfolded by the police. Bagtas overheard the police officers dividing the jewelry among them. He was then beaten along with Sitco to extort money for their release. The police officers eventually told them to pay a reduced amount, which they still could not afford to give. Complaints were thus filed against them, with the police officers manufacturing the evidence used by the prosecution. Bagtas ended his testimony with a declaration that he was filing complaints against the police officers once he was released from detention.
[9] [8]

Sitco corroborated Bagtas testimony, adding that Buan had already been dismissed from the service.

[10]

He testified that the

police officers frisked him and confiscated his wallet, watch, ring, and motorbike. He was told that they were suspects in the killing of a Navotas policeman. At the headquarters, he claimed being tortured. Eventually, he fell asleep. When he woke up, he saw Buan with two others sniffing shabu. He declined Buans invitation to join the session. The police officer likewise instructed him to produce PhP 100,000 for his release. Sitco informed Buan that he could not afford the amount. The next day, May 12, Buan took some shabu from the cabinet and told Sitco that the charge against him would push through if he did not pay. Sitco was also warned about the difficulty of posting bail once charged. Since he could not raise the money, the police officers brought him to the prosecutors office for inquest where manufactured evidence allegedly taken from him and Bagtas were shown to the fiscal.
[12] [11]

On

cross-examination, he admitted to having been previously arrested for possession of shabu and violation of Presidential Decree No. 1866.

Ruling of the Trial Court

The RTC gave full credence to the testimony of Buan and, mainly on that basis, convicted Bagtas and Sitco of the crimes charged.

The dispositive portion of the RTC Decision

[13]

reads:

WHEREFORE, premises considered, judgment is hereby rendered finding the two accused, namely Norman Sitco y de Jesus and Raymundo Bagtas y Caparas guilty beyond reasonable doubt of the offenses charged against them in these cases. In the absence of any mitigating or aggravating circumstances and applying the provisions of the Indeterminate Sentence Law (where applicable), the two accused are hereby sentenced as follows:

1) In Crim. Case No. 19456-MN: for drug pushing under Section 15, Article III, RA 6425, as amended by RA 7659, involving more than 200 grams of shabu, for each of them to suffer imprisonment ofreclusion perpetua and for each of them to pay a fine in the amount of Php500,000.00;

2) In Crim. Case No. 19457-MN against Sitco only for illegal possession of 20.29 grams of shabu under Section 16, Article III, RA 6425, as amended by RA 7659, to a prison term ranging from SIX (6) MONTHS of arresto mayor as minimum, to SIX (6) years of prision correccional, as maximum;

3) In Crim. Case No. 19458-MN against Bagtas only for illegal possession of 1.31 grams of shabu under Section 16, Article III, RA 6425, as amended by RA 7659, to a prison term ranging from TWO (2) MONTHS and ONE (1) DAY of arresto mayor, as minimum, to ONE (1) YEAR and ONE (1) DAY of prision correccional, as maximum;

4) In Crim. Case No. 19459-MN against Bagtas only for illegal possession of 887.01 grams of marijuana under Section 8, Article II, RA 6425, as amended by RA 7659, said accused is sentenced to suffer the prison term of reclusion perpetua and to pay a fine of P500,000.00.

Since the death penalty was imposed, the case came to this Court on automatic review. In accordance with People v. Mateo,
[14]

however, we ordered the transfer of the case to the CA for intermediate review.

Pending CA review of the case, or on May 5, 2006, Bagtas died at the National Bilibid Prison Hospital.

Ruling of the Appellate Court

Before the CA, Sitco argued against the credibility of Buan as witness, the latter having been involved in drug-related activities and was in fact dismissed from the service in March 1999. He also claimed that the alleged drug sale involving him was improbable as no one would sell drugs to a stranger.

On October 19, 2006, the CA acquitted Sitco of illegal possession of drugs but affirmed his conviction of the other offenses charged. It reasoned that Buans testimony was focused only on the two (2) plastic bags of shabu which were the object of the buybust; no attempt was made to make a distinction between the said bags and the additional bag of shabu supposedly recovered from Sitco when he was frisked. The quantum of proof necessary to sustain a conviction for illegal possession of shabu was, thus, not met. However, as to the other charges, the CA ruled that the factual findings of the trial court on Buans credibility must be respected and upheld.

The fallo of the CAs Decision

[15]

reads:

WHEREFORE, premises considered, the assailed Joint Decision dated August 26, 1999 of the RTC of Malabon, Metro Manila, Branch 72 in Criminal Case Nos. 19456-MN to 19459 is herebyAFFIRMED with modification ACQUITTING accused-appellant Norman Sitco y De Jesus in Criminal Case No. 19457-MN for violation of Sec. 16, Art. II of RA 6425, as amended by RA 7659, on the basis of reasonable doubt. The rest of the Joint Decision stand[s].

SO ORDERED.

On November 14, 2006, Sitco filed his Notice of Appeal of the appellate courts Decision.

On September 24, 2007, this Court required the parties to submit supplemental briefs if they so desired. The People, represented by the Office of the Solicitor General, manifested that it was submitting the case for decision based on the records previously submitted. In his Supplemental Brief, Sitco submits that PO3 Buan is not a credible witness given his arrest on drug charges and dismissal from the service.

The Issue

WHETHER THE COURT OF APPEALS ERRED IN AFFIRMING ACCUSED-APPELLANTS CONVICTION ON THE BASIS OF AN UNRELIABLE WITNESS.

The Ruling of the Court

We find sufficient compelling reasons to acquit the surviving accused-appellant Sitco.

Credibility of Buan as Witness

We start with the credibility of the lone prosecution witness, Buan, whose testimony Sitco has assailed at every turn. Sitco insists and with reason that Buan cannot competently make a plausible account of something of which he himself was equally culpable. Sitcos assault on the credibility of Buan is well-taken. As it were, Buans involvement as a police officer in illegal drug activities makes him a polluted source and renders his testimony against Sitco and Bagtas suspect, at best. It is like a pot calling a kettle black.

To be believed, testimonial evidence should come only from the mouth of a credible witness.

[16]

Given his service record,

Buan can hardly qualify as a witness worthy, under the limited confines of this case, of full faith and credit. And lest it be overlooked, Buan is a rogue cop, having, per his own admission, been arrested for indulging in a pot session, eventually charged and dismissed from the police service. undesirable habit.
[17]

It would appear, thus, that Buans had been a user. His arrest for joining a pot session only confirms this

The Court, to be sure, has taken stock of the well-settled rule that prosecutions involving illegal drugs depend largely on the credibility of police buy-bust operators, and that the trial courts finding on the police-witness credibility deserves respect. Juxtaposed with this rule, however, is the postulate that when confronted with circumstances that would support a reasonable doubt in favor of the accused, then acquittal or the least liability is in order. Buans involvement in drugs and his alleged attempt to extort money from appellant Sitco in exchange for his freedom has put his credibility under a heavy cloud.

The imperative of proof beyond reasonable doubt has a vital role in our criminal justice system, the accused, during a criminal prosecution, having a stake interest of immense importance, both because of the possibility that he may lose his freedom if convicted and because of the certainty that his conviction will leave a permanent stain on his reputation and name. in Rabanal v. People:
[18]

As articulated

Law and jurisprudence demand proof beyond reasonable doubt before any person may be deprived of his life, liberty, or even property. Enshrined in the Bill of Rights is the right of the petitioner to be presumed innocent until the contrary is proved, and to overcome the presumption, nothing but proof beyond reasonable doubt must be established by the prosecution. The constitutional presumption of innocence requires courts to take a more [19] than casual consideration of every circumstances or doubt proving the innocence of petitioner. (Emphasis added.)

Chain of Custody

But over and above the credibility of the prosecutions lone witness as ground for acquittal looms the matter of the custodial chain, a term which has gained traction in the prosecution of drug-related cases.

In prosecutions involving narcotics and other illegal substances, the substance itself constitutes part of the corpus delicti of the offense and the fact of its existence is vital to sustain a judgment of conviction beyond reasonable doubt.
[20]

Of chief concern in drug cases then is the

requirement that the prosecution prove that what was seized by police officers is the same item presented in court. This identification, as we have held in the past, must be established with moral certainty
[21]

and is a function of the rule on chain of

custody. The chain of custody requirement is essential to ensure that doubts regarding the identity of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the forensic chemist, and finally to the court.
[22]

The procedure to be followed in adhering to the chain of custody requirements is found in Sec. 21 of RA 9165:

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; (2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination.

The trial court summarized the chain of custody over the evidence as follows:

x x x [Sitco] asked for the money and then took from a covered part of the motorcycle a plastic bag inside [of] which were two plastic bags with shabu which Sitco gave to Buan. Buan examined the same and upon being satisfied that it was really shabu, identified himself as a policeman and arrested Sitco. Buans companions then approached and Sitco and Bagtas were frisked. Found from Sitco was a caliber .38 paltik revolver with six bullets, the buy-bust money and additional shabu. The marijuana earlier shown to Buan by Bagtas was also recovered along with the additional shabu found in the motorcycle of Bagtas which was parked nearby.

The buy-bust shabu, the marijuana and the confiscated additional shabu from Sitco and Bagtas were sent to a Forensic Chemist for laboratory examination (Exhibit A) and were found to be positive for being shabu and marijuana, respectively, by examining PNP Forensic Chemist Grace N. Eustaquio under an initial laboratory report [23] (Exhibit B) and a final report (Physical Science No. D-411-98) marked as Exhibit C.

From this narration and an examination of the records, a number of disturbing questions arise as to the identification and handling of the prohibited drugs seized. It is unclear at the outset whether Buan himself made the inventory of the seized items. There is no detail as to who brought the specimens to the forensic laboratory and who received it prior to the examination by the forensic chemist. It is also uncertain who took custody of the specimens before they were presented as evidence in court. There are, thus, glaring gaps or missing links in the chain of custody of evidence, raising doubt as to the identity of the seized items and necessarily their evidentiary value. This broken chain of custody is especially significant given that what are involved are fungible items that may be easily altered or tampered with.
[24]

It cannot be over-emphasized that pertinent provisions of RA 9165 require that the seized illegal items shall, after their inventory, be photographed in the presence of the drug dealer, representatives of media, the Department of Justice, or any elected public official who participated in the operation. The records do not yield an indication that this particular requirement has been complied with.

The Court reiterates that, on account of the built-in danger of abuse that it carries, a buy-bust operation is governed by specific procedures on the seizure and custody of drugs, separately from the general law procedures geared to ensure that the rights o f persons under criminal investigation and of the accused facing a criminal charge are safeguarded.
[25]

To reiterate, the chain of

custody requirement is necessary in order to remove doubts as to the identity of the evidence, by monitoring and tracking custody of the seized drugs from the accused, until they reach the court. We find that the procedure and statutory safeguards prescribed for compliance by drug enforcement agencies have not been followed in this case. A failure to comply with the aforequoted Sec. 21(1) of RA 9165 implies a concomitant failure on the part of the prosecution to establish the identity of the seized illegal items as part of the corpus delicti.
[26]

Although the non-presentation of some of the witnesses who can attest to an unbroken chain of custody of evidence may, in some instances, be excused, there should be a justifying factor for the prosecution to dispense with their testimonies. Denoman,
[28] [29] [27]

In People v.

the Court discussed the saving mechanism provided by Sec. 21(a), Article II of the Implementing Rules and Regulations Denoman explains that the aforementioned provision contains a saving mechanism to ensure that not every case of
[30]

of RA 9165.

non-compliance will permanently prejudice the prosecutions case. The saving mechanism applies when the prosecution recognizes and explains the lapse or lapses in the prescribed procedures. the reasons for the missing links in the chain. In this case, the prosecution did not even acknowledge and discuss

To reiterate, in prosecutions involving dangerous drugs, the substance itself constitutes the key part of the corpus delicti of the offense and the fact of its existence is vital to sustain a judgment of conviction beyond reasonable doubt.
[31]

Taken with the

uncorroborated testimony of Buan, the broken chain of custody over the marijuana and shabu in the instant case creates reasonable doubt on accused-appellants guilt.

In a string of cases,

[32]

we declared that the failure of the prosecution to offer the testimony of key witnesses to establish a

sufficiently complete chain of custody of a specimen of shabu, and the irregularity which characterized the handling of the evidence before it was finally offered in court, fatally conflicts with every proposition relative to the culpability of the accused.

As in People v. Partoza,

[33]

this case suffers from the failure of the prosecution witness to provide the details establishing an

unbroken chain of custody. In Partoza, the police officer testifying did not relate to whom the custody of the drugs was turned over. The evidence of the prosecution likewise did not disclose the identity of the person who had the custody and safekeeping of the drugs after its examination and pending presentation in court.

Given the prosecutions failure to abide by the rules on the chain of custody, the evidentiary presumption that official duties have been regularly performed cannot apply to this case. This presumption, it must be emphasized, is not conclusive. Not only is it rebutted by contrary proof, as here, but it is also inferior to the constitutional presumption of innocence.
[34]

On this score, we have

held that while an accuseds defense engenders suspicion that he probably perpetrated the crime charged, it is not sufficient for a conviction that the evidence establishes 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. instant case.
[35]

This quantum of evidence has not been met in the

WHEREFORE, the assailed CA Decision in CA-G.R. CR-H.C. No. 00038 is REVERSED and SET ASIDE. Accused-appellant Norman Sitco y De Jesus isACQUITTED on reasonable doubt and is ordered immediately RELEASED from detention, unless he is confined for

any other lawful cause. The Director of the Bureau of Corrections is DIRECTED to IMPLEMENT this Decision and to report to this Court the action taken hereon within five (5) days from receipt.

SO ORDERED. THIRD DIVISION

[G.R. No. 123896. June 25, 2003]

ROSALINDA SERRANO, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. DECISION CARPIO-MORALES, J.: Assailed in this Petition for Review on Certiorari under Rule 45 of the Rules of Court are the Decision of December [2] 18, 1992 and Resolution of February 13, 1996 of the Court of Appeals in CA-G. R. No. 10802, People of the Philippines [3] v. Rosalinda Serrano, which affirmed the decision of the Regional Trial Court of Pasay City, Branch 117, finding Rosalinda Serrano guilty beyond reasonable doubt of estafa through falsification of commercial documents. Three informations were filed on June 18, 1985, charging petitioner, along with Nelia Giron (Nelia) and Edna Sibal (Edna), with estafa through falsification of commercial documents as follows:
[1]

Criminal Case No. 85-8239 That on or about the 21st day of September, 1984 in Pasay, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, with intent to deceive and defraud one Ramon C. Mojica thru Centerre Bank, New York, USA, did then and there willfully, unlawfully and feloniously falsify a Centerre Bank draft No. 00362562 dated September 7, 1984 payable to cash for the amount of $12,000.00 United States currency, by making it appear that the said draft was drawn and issued by said bank in St. Louis, Misouri (sic), USA and signed by its authorized officers, when in truth and in fact as said accused well knew, the said draft was fraudulent/fictitious in that the same was not issued by the bank and that the signature appearing thereon was not of an officer of the bank but fictitious, and once in possession of, and armed with said draft falsified in the manner aforesaid, the above-named accused, through fraudulent manifestations and false representation gave and delivered the same to Ramon C. Mojica in exchange of (sic) the sum of P246,000.00 which amount the herein accused willfully, unlawfully and feloniously converted to their personal use and benefit; that when the said draft was presented to the drawee bank for payment, the same was dishonored for being fraudulent and despite repeated demands made upon the accused to pay the amount of $12,000.00 or its equivalent in peso, said accused failed and refused and still fails and refuses to do so, to the damage and prejudice of the complainant Ramon C. Mojica in the aforesaid amount. Contrary to law.[4]

Criminal Case No. 85-8238-P That on or about the 24th day of September, 1984 in Pasay, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, with intent to deceive and defraud one Ramon C. Mojica thru Centerre Bank, New York, USA, did then and there willfully, unlawfully and feloniously falsify a Centerre Bank draft No. 00362563 dated September 7, 1984 payable to cash for the amount of $10,000.00 United States currency, by making it appear that the said draft was drawn and issued by said bank, in St. Louis, Missouri, USA, and signed by its authorized officers, when in truth and in fact as said accused well knew, the said draft was fraudulent/fictitious in that the same was not issued by

the bank and that the signature appearing thereon was not of an officer of the bank but fictitious, and once in possession of, and armed with said draft falsified in the manner aforesaid, the above-named accused, through fraudulent manifestations and false representation, gave and delivered the same to Ramon C. Mojica in exchange of (sic) the sum of P160,000.00 which amount the herein accused willfully, unlawfully and feloniously converted to their personal use and benefit; that when the said draft was presented to the drawee bank for payment, the same was dishonored for being fraudulent and despite repeated demands made upon the accused to pay the amount of $10,000.00 or its equivalent in peso, said accused failed and refused and still fails and refuses to do so, to the damage and prejudice of the complainant Ramon C. Mojica in the aforesaid amount. Contrary to law.[5]

Criminal Case No. 85-8237-P That on or about the 25th day of September, 1984 in Pasay, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, with intent to deceive and defraud one Ramon C. Mojica thru Citizens National Bank, San Francisco, California, did then and there willfully, unlawfully and feloniously falsify a Citizens National Bank draft No. 68534807 dated August 24, 1984 payable to cash for the amount of $5,000.00 United States currency, by making it appear that the said draft was drawn and issued by said bank in San Francisco, California, USA, and signed by its authorized officers when in truth and in fact as said accused well knew, the said draft was fraudulent/fictitious in that the same was not issued by the bank and that the signature appearing thereon was not of an officer of the bank but fictitious, and once in possession of, and armed with said draft falsified in the manner, aforesaid, the above-named accused, through fraudulent manifestations and false representation gave and delivered the same to Ramon C. Mojica in exchange of (sic) the sum of P102,000.00 which amount the herein accused willfully, unlawfully and feloniously converted to their personal use and benefit; that when the said draft was presented to the drawee bank for payment, the same was dishonored and refused payment for being fraudulent and despite repeated demands made upon the accused to pay the amount of P102,000.00 or its equivalent in peso, said accused failed and refused and still fails and refuses to do so, to the damage and prejudice of the complainant Ramon C. Mojica in the aforesaid amount. Contrary to law.[6] Of the three accused, only petitioner was brought to the jurisdiction of the trial court, Nelia and Edna having remained [7] at large. When duly arraigned on February 18, 1987, petitioner entered a plea of not guilty. The facts of the case are as follows: On September 21, 1984, businessman Ramon C. Mojica (Mojica) contacted his friend Nelia Oliva (Oliva), who worked at Banco Filipino (the bank) in Makati, for the purpose of buying U.S. dollars for the importation of machinery spare parts for his blanket factory in Cainta, Rizal. As Oliva told Mojica that her co-employee Mel Lazo (Mel) knew people who were in the business of selling dollars, Mojica, by telephone, talked to Mel who informed him that she was acquainted with people who had cashiers checks drawn from US banks. After the two agreed on the exchange rate at P20.50 to a US dollar and to meet at the bank, Mojica repaired that same day, September 21, 1984, to the bank where he was introduced by Oliva to Mel, petitioner and Nelia. Petitioner then instructed Mojica to go with her and Nelia to the lobby of the then Regent of Manila Hotel (the Regent), now the Heritage Hotel, in Roxas Boulevard, Pasay City, telling him that the check to be sold to him was with a [8] certain Edna Sibal (Sibal) who would meet them there. At the lobby of the Regent, petitioner, Nelia and Edna presented Check No. 00362562 dated September 7, 1984 drawn by and against Centerre Bank, St. Louis, Missouri, U.S.A. for $12,000.00. Assured that it was fully [10] funded, Mojica accepted the check in exchange for which he handed them Metrobank Cashiers Check No. CC[11] 002880 dated September 21, 1984 in the amount of P246,000.00. Nelia and petitioner later returned the cashiers [12] check and, upon petitioners request, Mojica replaced it with Metrobank Cashiers Check Nos. CC-002882 and CC[13] 002883, both dated September 21, 1984, for P168,000.00 and P78,000.00, respectively. The Metrobank checks were encashed on September 24, 1984 by petitioner whose signature, address and voters [14] affidavit number appear at the checks dorsal portions. On September 24, 1984, petitioner phoned Mojica and inquired whether he was still willing to purchase some dollars, informing him that she, Nelia and Edna had another dollar check in the amount of $10,000.00 and that they were willing to [15] sell the same to him at the same rate of exchange. Mojica, who accepted the offer, met with them that afternoon at the [16] hotel, bringing with him, on their request, two cashiers checks, one for P150,000.00 and the other for P45,000.00.
[9]

At the Regent, Nelia, Edna and petitioner handed Mojica Check No. 00362563 dated September 7, 1984 drawn by and against Centerre Bank, St. Louis, Missouri, U.S.A. for $10,000.00 in exchange for Metrobank Cashiers Check Nos. [18] [19] 002891 and 002890, both dated September 24, 1984, for P160,000.00 and P45,000.00, respectively. Nelia, Edna, [20] and petitioner once again assured Mojica that the dollar check was sufficiently funded. On that same day, petitioner [21] encashed the Metrobank cashiers checks. The following day, September 25, 1984, petitioner phoned Mojica again and offered to sell a $5,000.00 check to him [22] at the same exchange rate of P20.50 to a U.S. dollar. Mojica agreed and as usual, as instructed, he brought a cashiers [23] check for P102,500.00 when they met that same afternoon at the Regent. As was their agreement, Mojica was handed by petitioner Check No. 68534807 dated August 24, 1984 drawn by and against the Citizens National Bank of San Francisco, California for $5,000.00 in exchange for Metrobank Check No. [25] 002894 dated September 25, 1982 for P102,500.00. Nelia, Edna and petitioner again assured Mojica that the dollar [26] check was genuine and sufficiently funded. They later returned the Metrobank checks to Mojica and requested him to replace it with two checks, one for P80,000.00, and the other for P22,500.00. Obliging, Mojica delivered to them [27] [28] replacement Metrobank Cashiers Check Nos. CC-002897 and CC-002898, both dated September 25, 1984 for P80,000.00 and P22,500.00, respectively, which checks were encashed by petitioner on the same day, September 25, [29] 1984. Mojica deposited the dollar checks to his Foreign Currency Deposit Unit (FCDU) Savings Account at the Cubao [30] branch of Metrobank several weeks after which he was notified that all the dollar checks were fraudulent, drawing him to demand the return of his money from Nelia, Edna and petitioner who, however, failed to comply. Hence, the filing of the three criminal cases against them. By Decision of May 29, 1990, the trial court found petitioner guilty beyond reasonable doubt of three (3) counts of estafa through falsification of commercial documents. The dispositive portion of the decision reads: WHEREFORE, the Court finds the accused Rosalinda Serrano GUILTY beyond reasonable doubt for estafa thru falsification of [commercial] documents defined and penalized under paragraph 2(a) of Article 315 and paragraph 1 of Article 172 of the Revised Penal Code on three (3) counts and sentences her as follows: 1. In Criminal Case No. 85-8237-P, to an indeterminate penalty ranging from SIX (6) YEARS and ONE (1) DAY of prision mayor as minimum to EIGHT (8) YEARS of prision mayor as maximum; to indemnify Ramon C. Mojica the amount of P102,000.00, without subsidiary imprisonment in case of insolvency and to pay 1/3 of the proportionate costs. 2. In Criminal Case No. 85-8238-P, to an indeterminate penalty ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor as minimum to FOURTEEN (14) YEARS and EIGHT (8) MONTHS of reclusion temporal as maximum; to indemnify Ramon C. Mojica the amount of P160,000.00, without subsidiary imprisonment in case of insolvency and to pay 1/3 of the proportionate costs. 3. In Criminal Case No. 85-8239-P, to an indeterminate penalty ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor as minimum to FOURTEEN (14) and EIGHT (8) MONTHS of reclusion temporal as maximum; to indemnify Ramon C. Mojica the amount of P246,000.00, without subsidiary imprisonment in case of insolvency and to pay 1/3 of the proportionate costs. SO ORDERED.[31] Petitioner interposed an appeal with the Court of Appeals which, by Decision of December 18, 1992, affirmed the judgment of conviction but modified the penalties as follows: 1.) In Criminal Case No. 85-8237-P, 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; to indemnify private complainant Ramon C. Mojica the amount of P102,000.00 without subsidiary imprisonment in case of insolvency; and to pay 1/3 of the proportionate costs. 2.) In Criminal Case No. 85-8238-P, 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; to indemnify the private complainant Ramon C. Mojica the amount of P160,000.00 without subsidiary imprisonment in case of insolvency; and to pay 1/3 proportionate costs. 3.) In Criminal Case No. 85-8239-P, 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; to indemnify the private complainant Ramon C. Mojica the amount of P246,000.00 without subsidiary imprisonment in case of insolvency; and to pay 1/3 of the proportionate costs. SO ORDERED.[32]
[24]

[17]

Petitioners motion for reconsideration having been denied by the Court of Appeals by Resolution of February 13, 1996, the present petition was filed. Petitioner posits that from the handwritten memorandum dated June 8, 1988 reading: Witnesses hereat confirms (sic) that Edna Sibal signed a promissory note for P553,500.- dated October 9, 1984 in favor of Mr. Ramon C. Mojica. This supersedes the promissory note of Edna Sibal signed in favor of Rosalina (sic) Serrano. [33] below which Mojica affixed his signature along with two others, she is exculpated from criminal liability. By petitioners claim, under the promissory note dated October 9, 1984 mentioned in the above-quoted handwritten memorandum which note was, by the way, never presented in evidence, Edna undertook to return the proceeds of the subject dollar transactions, which undertaking was allegedly unconditionally accepted by Mojica. To petitioner, the acceptance by Mojica of Ednas promise to pay effectively converted or novated the transactions of the parties into [34] ordinary creditor-debtor relationship, hence, Mojica is in estoppel to insist on their original relationship. Petitioners position is bereft of merit. Novation is not one of the grounds prescribed by the Revised Penal Code for [35] the extinction of criminal liability. x x x, [I]t is well-settled that criminal liability for estafa is not affected by compromise or novation of contract, for it is a public offense which must be prosecuted and punished by the Government on its own motion though complete reparation should have been made of the damage suffered by the offended party. As was said in the case of People vs. Gervacio, a criminal offense is committed against the People and the offended party may not waive or extinguish the criminal liability that the law imposes for the commission of the offense. The fact, therefore, that the accused herein had, with the consent of the offended party, assumed the obligation of paying the rentals, which he collected, out of his own salary after he had committed the misappropriation, does not obliterate the criminal liability incurred.[36](Underscoring supplied) The handwritten memorandum, even assuming that the alleged promissory note of Edna mentioned therein actually exists, cannot exculpate petitioner from criminal liability, especially in the absence of a showing that there was an unmistakable intent to extinguish the original relationship between Mojica on the one hand, and petitioner, Nelia and Edna on the other. Petitioner then avers that her participation in the questioned dollar transactions was limited to her act of introducing Nelia and Edna to Mel who in turn introduced them to Oliva and eventually to Mojica. Such role, she submits, cannot in [37] any way be considered criminal and cannot be construed as part of a conspiracy, her interest in the success of the dollar transactions having been solely motivated by her desire to enforce and collect outstanding obligations of Nelia and [38] Edna to her. This Court is not persuaded. Direct proof of previous agreement to commit a crime is not necessary to prove conspiracy as it may be deduced from the acts of the perpetrators before, during and after the commission of the crime [39] which are indicative of a common design, concerted action and concurrence of sentiments. As the trial court found: Serrano claims that she had no participation in the transactions and was merely present to collect the alleged indebtedness of her coaccused Giron and Sibal to her. However, in her direct and cross examination on April 11, 1989, it clearly showed that Serrano knew every single detail of the three (3) transactions. She was not only a participant, but was also an instrument in the commencement and consequently in the consumation (sic) of the three (3) transactions. She arranged their meeting with Mojica and in all these transactions aside from being present she personally called and advised him to buy additional bank drafts in the September 24 & 25, 1984 transactions. It was also shown that Serrano personally received all the proceeds of the Metrobank Cashiers Checks issued and/or exchanged by Mojica with the subject bank drafts. As a matter of fact, she admitted that she was the one who encashed and received the proceeds of the three (3) fraudulent checks; that she likewise caused and formally applied for the issuance of Metrobank Cashiers Check No. 002897 dated September 25, 1984 in the amount of P80,000.00 (t.s.n., August 23, 1988, pp. 34-35). It has also been established that Serrano, Giron, and Sibal guaranteed the genuineness of the three (3) subject bank drafts and that they were sufficiently funded (t.s.n., October 14, 1987, pp. 11-12). So that because of this (sic) false pretenses and fraudulent representations of the three accused, Mojica was induced to part with his money in the amount of P550,000.00 All these facts belied the claim of Serrano that she has no participation. As a matter of fact, she admitted that she kept part of the proceeds, but claim (sic) that it was in payment of the alleged indebtedness of Giron and Sibal to her. In each transactions (sic) she received P25,000.00, so that she received a total of P75,000.00 which shows that this was her share in the subject fraudulent transactions. [40] Factual findings of the trial court, when adopted and confirmed by the Court of Appeals, are final and conclusive and may not be reviewed on appeal except: (1) when the inference made is manifestly mistaken, absurd or impossible; (2) when there is a grave abuse of discretion; (3) when the finding is grounded entirely on speculations, surmises or

conjectures; (4) when the judgment of the Court of Appeals is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) when the findings of the Court of Appeals are contrary to those of the trial court; (8) when the findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion; and (10) when the findings of fact of the [41] Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record. From a review of the evidence on record, there is no cogent reason to disturb the factual findings of the trial court and the Court of Appeals which both found that there was proof beyond reasonable doubt that the acts committed by petitioner constitute the complex crime of estafa through falsification of commercial documents. Article 172 of the Revised Penal Code punishes any private individual who shall commit any of the acts of falsification enumerated in Article 171 in any public or official document or letter of exchange or any other kind of commercial document. Article 171 provides: Art. 171. Falsification by public officer, employee or notary or ecclesiastic minister.- The penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts: 1. Counterfeiting or imitating any handwriting, signature or rubric; 2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; 3. Attributing to persons who have participated in any act or proceeding statements other than those in fact made by them; 4. Making untruthful statements in a narration of facts; 5. Altering true dates; 6. Making any alteration or intercalation in a genuine document which changes its meaning; 7. Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such a copy a statement contrary to, or different from, that of the genuine original; or 8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book. The same penalty shall be imposed upon any ecclesiastical minister who shall commit any of the offenses enumerated in the preceding paragraphs of this article, with respect to any record or document of such character that its falsification may affect the civil status of persons. (Emphasis supplied) Under the three above-quoted informations, the mode of falsification attributed to petitioner and her co-conspirators is that of making it appear that the dollar checks were drawn and issued by Centerre Bank, St. Louis, Missouri, U.S.A. and Citizens National Bank, San Francisco, California, U.S.A., when petitioner knew very well that they were fraudulent in that they were not issued by the aforementioned banks and the signatures appearing thereon were not the signatures of officers of the bank. The dollar checks were undeniably spurious. While there is no direct proof that petitioner and her co-conspirators were the authors of the falsification, since petitioner was the possessor and utterer of the dollar checks and benefited from the proceeds of the cashiers checks which were exchanged therefor, the inevitable conclusion is that she falsified them. It is an established rule that when it is proved that a person has in his possession a falsified document and makes [42] use of the same, the presumption or inference is justified that such person is the forger. The rule is that if a person had in his possession a falsified document and he made use of it (uttered it), taking advantage of it and profiting thereby, the presumption is that he is the material author of the falsification. This is especially true if the use or uttering of the forged documents was so closely connected in time with the forgery that the user or possessor may be proven to have the capacity of committing the forgery, or to have close connection with the forgers, and, therefore, had complicity in the forgery.

In the absence of a satisfactory explanation, one who is found in possession of a forged document and who used or uttered it is presumed to be the forger.[43] The falsification of the dollar checks was the necessary means for the commission of estafa. The informations allege, and the evidence established by the prosecution shows, the essential elements of estafa or swindling under [44] paragraph 2(a) of Article 315 of the Revised Penal Code: 1. That there must be a false pretense, fraudulent act or fraudulent means. 2. That such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud. 3. That the offended party must have relied on the false pretense, fraudulent act, or fraudulent means, that is, he was induced to part with his money or property because of the false pretense, fraudulent act, or fraudulent means. 4. That as a result thereof, the offended party suffered damage. [45] The acts of petitioner in falsifying the dollar checks and misrepresenting to Mojica that they were genuine and sufficiently funded on account of which he parted with, in exchange therefor, the Metrobank cashiers checks constitute the fraud contemplated under the provision of Article 315, paragraph 2(a) of the Penal Code. That petitioner encashed the Metrobank checks and appropriated the proceeds thereof to the damage and prejudice of Mojica seals her liability. Accordingly, petitioner is liable for 3 counts of estafa through falsification of commercial documents under paragraph 2(a) of Article 315 and Article 172 in relation to Article 171(2) of the Revised Penal Code. The indeterminate penalty imposed by the appellate court on petitioner needs modification, however. Estafa is punished as follows: ART. 315. Swindling (estafa) Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by: 1st The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 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 case, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be; xxx In complex crimes, under Article 48 applied in its maximum period.
[46]

of the Revised Penal Code, the penalty for the more serious crime shall be

In imposing a prison sentence under the Revised Penal Code, or its amendments, the Indeterminate Sentence Law provides that the maximum term of the penalty shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum shall be within the range of the penalty next lower to [47] that prescribed by the Code for the offense. The penalty next lower should be based on the penalty prescribed by the Revised Penal Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The minimum of the indeterminate penalty is left to the sound discretion of the court, to be fixed from within the range of the penalty next lower without reference to the periods into which it may be subdivided. The modifying circumstances are considered only in the [48] imposition of the maximum term of the indeterminate sentence. That the amount involved in each of the cases at bar exceeds P22,000.00 should not be considered in the initial determination of the indeterminate penalty; instead, the matter should be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence. This interpretation of the law accords with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law for the estafa committed by petitioner is prision correccional maximum to prision mayor minimum, the penalty next lower would be prision correccional minimum to medium. Thus, the minimum term of the indeterminate sentence for each case should be anywhere within Six (6) Months and One (1) Day to Four (4) Years and Two (2) Months while the maximum term should at least be Six (6) Years and One (1) Day because the amount involved in each case exceeds P22,000.00, [49] plus an additional one (1) year for each additional P10,000.00.

In Criminal Case No. 85-8239-P, the amount involved is P246,000.00. Hence, the minimum penalty should be reduced to Four (4) Years and Two (2) Months of prision correccional which is the maximum of the allowable minimum penalty of the indeterminate sentence. The maximum penalty should at least be Six (6) Years and One (1) Day of prision mayor plus a period of twenty-two (22) years (one [1] year for each additional P10,000.00). However, since the law states that the total penalty shall not exceed twenty years, the maximum penalty is fixed at twenty (20) years ofreclusion temporal. In Criminal Case No. 85-8238-P, the amount involved is P160,000.00. The minimum penalty should then be reduced to Four (4) Years and Two (2) Months of prision correccional. The maximum penalty should at least be Six (6) Years and One (1) Day of prision mayor plus a period of thirteen (13) years, hence, the maximum imposable penalty should be Nineteen (19) Years and One (1) Day of reclusion temporal. In Criminal Case No. 85-8237-P, the amount involved is P102,000.00. Hence, the minimum penalty should be reduced to Four (4) Years and Two (2) Months of prision correccional. The maximum penalty should at least be Six (6) Years and One (1) Day of prision mayor plus a period of eight (8) years for a total maximum period of Fourteen (14) Years and One (1) Day ofreclusion temporal. WHEREFORE, the challenged Decision is hereby AFFIRMED with the following MODIFICATIONS: 1. In Criminal Case No. 85-8239-P, petitioner is sentenced 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. 2. In Criminal Case No. 85-8238-P, petitioner is sentenced to suffer the indeterminate penalty of Four (4) Years and Two (2) Months of prision correccional, as minimum, to Nineteen (19) Years and One (1) Day of reclusion temporal, as maximum. 3. In Criminal Case No. 85-8237-P, petitioner is sentenced to suffer the indeterminate penalty of Four (4) Years and Two (2) Months of prision correccional, as minimum, to Fourteen (14) Years and One (1) Day of reclusion temporal, as maximum. SO ORDERED. THIRD DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 176065

Present:

YNARESSANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and - versus REYES, JJ.

Promulgated:

April 22, 2008 RAMON ARIVAN y FORNILLO, Accused-Appellant.

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

DECISION

CHICO-NAZARIO, J.:

For review is the Decision dated 20 October 2005 of the Court of Appeals in CA-G.R. CR-H.C. No. 01163 which affirmed the Decision dated 9 August 2002 of the Regional Trial Court (RTC) of Quezon City, Branch 107, in Criminal Case No. Q-99-80302, finding herein appellant Ramon Arivan y Fornillo guilty beyond reasonable doubt of the crime of rape committed against AAA.
[3] [2]

[1]

Appellant Ramon Arivan y Fornillo was charged with raping AAA in a criminal complaint which reads:

[4]

The undersigned accuses RAMON ARIVAN Y FORNILLO, of the crime of RAPE, committed as follows:

That [on] or about 31 day of December 1998, in Quezon City, Philippines, while [AAA] was looking for her brother, the said [appellant] offered to help her but however brought her to a shanty and while there, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with her, [5] against her will and without her consent.

st

Upon arraignment, the appellant, assisted by counsel de oficio, pleaded NOT GUILTY to the crime charged. The pre-trial conference yielded no positive results, thus, the same was declared closed and terminated. Thereafter, trial on the merits ensued.

The prosecution presented the following witnesses: AAA, the victim; SPO1 Reynaldo Pangilinan (SPO1 Pangilinan), the police officer who apprehended the appellant; Dr. Emmanuel Reyes (Dr. Reyes), Medico-Legal Officer of the Philippine National Police (PNP) Crime Laboratory, Camp Crame, Quezon City, who conducted a physical examination on AAA; and SPO4 Mila Billones (SPO4 Billones), the investigating officer assigned at Police Station 6, Batasan Hills, Quezon City.

AAA testified that in 1996, she was taken by her mother from their house in xxx City to stay in the house of her uncle, CCC and aunt, DDD located at xxx, Barangay xxx, xxx City.
[7] [8] [6]

Her 17-year old brother, BBB, likewise stayed in said house. AAA admitted that

she already stopped schooling and while she was living with her uncle and aunt, she worked as a scavenger and was able to gain friends.

On 31 December 1998, about 11:30 in the evening, AAA went outside the house of her uncle and aunt to look for her brother because it was New Years Eve and she, her brother, uncle and aunt were supposed to eat together. While she was looking for her brother, the appellant approached and asked her where she was going. When she told him that she was looking for her brother, the appellant offered to help her look for her brother and he even told her that he knew where her brother was.
[10] [9]

AAA remembered

that she had seen the appellant earlier that day talking to her brother. Thinking that the appellant was her brothers friend, she readily agreed to go with him. Payatas, Quezon City.
[11] [12]

They walked together and the appellant took her to a place with a hut or shanty located in
[13]

Upon arrival thereat, both AAA and the appellant crossed the fence. AAA called for her brother three times She got irritated with the appellant for misleading her. She decided to leave the place but appellant
[14]

but no one answered.

held her right hand preventing her from leaving. AAA tried to remove appellants grip on her hand and she succeeded. But then again, when she was about to go out, the appellant was able to hold her hand and force her to enter the shanty or hut. AAA was

not able to shout for help as she was threatened by the appellant that if she would do so, he would kill her brother. The appellant tried to cover her mouth to prevent her from shouting but he did not succeed because she kept on struggling. Despite the appellants failure to cover her mouth, she was not able to shout as the appellant threatened her again that if she will shout, he will kill her brother. Afraid, she did not shout.
[15]

Once inside the hut or shanty, the appellant dragged her to a room where there was a mosquito net. The place was dark. When she turned her head, her forehead hit a hard object, which made her a little bit dizzy. forced her to lie down and forcibly removed her garterized
[17] [16]

Thereafter, the appellant

shorts and panty. She pushed the appellant to prevent him from

pulling down her shorts and panty, but her efforts remained futile. The appellant was able to get on top of her, held her two hands outwards and spread her legs. AAA kept on struggling by pushing the appellant away. She struggled to free herself by moving her body from side to side and by crossing her legs, but to no avail. She likewise tried to shout but the appellant covered her mouth. Despite her tenacious resistance, the appellant kept on forcing himself on her and also threatened her that if she would not accede to his lustful desire, he would kill her and her brother. Out of fear, she finally gave in. The appellant then kissed her on the lips and also succeeded in inserting his penis into her vagina and made push and pull movements for several times. She felt pain.
[18]

After satisfying his lust, the appellant stood up, got dressed and threatened her not to tell anyone what had happened;
[19]

otherwise, he would kill her, her brother and her aunt. Then, the appellant left. When the appellant left, she also stood up, put on her clothes and went home running and crying.

When AAA reached their house, her uncle saw her and asked her why she was running and crying. She immediately told him that she was raped but she did not know the name of her ravisher. Her uncle told her that they should report the incident to the police.
[20]

At dawn of 1 January 1999, AAA and her uncle left the house to go to the police station. While waiting for a ride, AAA saw

the appellant standing beside a barbeque stand. She immediately pointed to appellant as her malefactor. Her uncle got mad and was about to approach the appellant when a jeepney arrived, which they boarded.
[21]

They went to a police station in their area;

however, since there was no police investigator present thereat, they went to another police station. Not having been attended to as there was also no police investigator present because it was New Year, they then proceeded to Police Station 6, Batasan Hills, Quezon City. It was already 6:00 in the evening when they arrived thereat.
[22]

At Police Station 6, she narrated to the police officer what happened to her. After she made her complaint, she stayed at the police station while SPO1 Pangilinan and her uncle, CCC, immediately proceeded to Payatas, the place where the alleged rape incident happened. In Payatas, SPO1 Pangilinan and AAAs uncle saw the appellant walking along the street or near the dumpsite. AAAs uncle immediately pointed the appellant to SPO1 Pangilinan as the person who abused his niece. SPO1 Pangilinan approached the appellant and invited him to go with them to the police station. The appellant voluntarily submitted. The appellant was apprehended on the evening of 1 January 1999. Upon their arrival at Police Station 6, another uncle of AAA was also present. When AAA saw the appellant at the police station, she readily pointed to him as her abuser. And she came to know the name of the appellant when his statements were being taken by the police as she was present thereat. The following day, or on 2 January 1999, AAA, together with her uncle, CCC, went to Camp Crame for her medical examination.
[23]

SPO1 Pangilinan corroborated the testimony of AAA that the latter made a complaint at Police Station 6 as regards the alleged rape incident. He likewise affirmed that upon receiving the complaint of AAA, he, together with AAAs uncle, immediately proceeded to the place where the alleged rape incident happened. And when they arrived at the said place, they saw the appellant walking around. He was able to recognize the appellant as AAAs uncle pointed the appellant to him. He then invited the appellant to go with them at Police Station 6. Upon their arrival at Police Station 6, AAA positively identified the appellant as her malefactor. Thereafter, he turned over the case to SPO4 Billones, the investigator assigned at Police Station 6.
[24]

SPO4 Billones testified that on 1 January 1999, she met AAA at Police Station 6. AAA was then accompanied by her uncle, CCC. They reported to her the rape incident that happened to AAA on 31 December 1998 at around 11:30 p.m. After AAA informed her that she was raped, she made a referral for AAA to be examined at the PNP Crime Laboratory in Camp Crame. SPO4 Billones similarly affirmed that on 1 January 1999, when the appellant was brought to their station, AAA was there and she positively identified the appellant as the person who raped her. Thereafter, SPO4 Billones referred the case to the inquest fiscal.
[25]

Dr. Reyes declared in court that on 2 January 1999, he met AAA at Medico-Legal Office in Camp Crame. She was brought there by her uncle with a request from Police Station 6, Batasan Hills, for a medico-legal examination
[26]

as AAA was allegedly raped

on 31 December 1998. He conducted an extra-genital examination of AAAs body and found an abrasion on AAAs forehead on the frontal region measuring 0.5 by 3 centimeters. According to him, said abrasion could have been caused by the rubbing of the skin against a hard rough surface object, which was sufficient to cause a scrape. On the examination of AAAs genital organ, he found that there was an abundance of pubic hair; thelabia majora, which is the most external portion of the vagina, was full, convex and

coaptated. He also found the labia minora with abrasion. He explained that the same ordinarily appears in the vaginal canal even if sexual intercourse occurred in a brutal manner but the woman was stimulated or wet. He likewise found that the hymen of AAA was already remnant, which means that there was a possibility that AAA had previously engaged in sexual intercourse prior to the alleged rape incident. He did not find any laceration in the hymen of AAA and there was also an absence of spermatozoa in AAAs vagina. Dr. Reyes examined AAA about 36 hours after she was allegedly raped. He, however, admitted that his findings jibe with the allegations of AAA. He then concluded that AAA was in a non-virgin state physically. Dr. Reyes reduced into writing the medical examination he conducted on AAA.
[27]

For its part, the defense presented the testimonies of the appellant and his brother, Rizaldy Arivan (Rizaldy), to refute the allegations of AAA.

The appellant vehemently denied that he raped AAA. He even claimed that AAA was his girlfriend. He testified that he met AAA for the first time in November, 1998 at the dumpsite in Payatas, Quezon City. He started courting her also in November, 1998 and they became sweethearts beginning December, 1998.

Appellant claimed that on 31 December 1998, at around 9:00 to 10:00 oclock in the evening, when he was about to go to the church for it was New Years Eve, he met AAA in the street. Holding each others hand, they walked going to church. According to the appellant, the church was near his brothers house and it was also in Payatas. On their way to the church, they met some of his friends who were also scavengers, namely: Angelo, Exel, Aldrin and Noli, who was also called Handsome. He averred that AAA knew his friends because his friends also saw her at the dumpsite. After the mass, which according to the appellant lasted for two hours, or at about 12:00 midnight, he, AAA, and his friends went straight to his brothers house where they ate and lighted some firecrackers. He said that his brother knew that AAA was his girlfriend. Then, at about 1:00 a.m.of 1 January 1999, they left his brothers house and proceeded to Angelos house. At that time, AAA was still with him. When they arrived at Angelos house, they ate and talked with Angelos wife. He claimed that Angelo knew that AAA was his girlfriend. They stayed in Angelos house until 1:30 a.m. of 1 January 1999.

Thereafter, appellant went to his house, which was only eight houses away. In going to his house, he was with Noli and AAA. His other friends stayed at a party near Angelos house. In his house, he got his jacket and cap and had them worn by AAA. They stayed in his house for less than 30 minutes. Then, they proceeded to another friends house, Ver, who was also his neighbor. On the way to Vers house, they met AAAs brother who told AAA to go home as their grandfather was looking for her. AAA retorted that her brother should not bother with her. When they arrived at Vers house, Vers mother was there. Appellant told AAA to go home because he had to attend to something and that he will go somewhere else. AAA kept on following him and Noli. They left Vers house at around 3:00 a.m. They likewise went to Marlons house as there was a party near his house. AAA and Noli went to the said party while the appellant stayed at Marlons house where he and Marlon had a drinking session. After two hours, Noli returned. AAA was left at the said party because she met some acquaintances there. At about 5:30

a.m., appellant and Noli left Marlons house and instructed AAA to follow them at his house. When they arrived at his house, they likewise drank beer. Excel, also a friend, arrived. At around 6:30 a.m., AAA arrived and ate breakfast with them. After they had their breakfast, AAAs aunt arrived looking for her. AAA motioned to the appellant not to tell her aunt that she was there. The appellant then told AAAs aunt that AAA was not with them. AAAs aunt left. AAAs aunt came back at 8:00 a.m., still looking for her. AAAs aunt did not find her for she was able to run to a neighbors house through a broken wall. Again, AAAs aunt left angrily. When appellant went inside his house, he was surprised when he did not find AAA. Louie, his neighbor, went to his house and told him that AAA was in their house. He told Louie to tell AAA to just follow him at Aldrins house. At the latters house, they drank some beer and sang in the karaoke. AAA followed him there and they stayed there for three hours. Suddenly, AAAs uncle arrived. AAA tried to run but her uncle was able to get hold of her hand and succeeded in pulling her out of the house.

Subsequently, appellant and his companions went home. When he arrived at his house, where the alleged rape incident happened, he went to sleep. Noli, who also lived there, likewise slept. The appellant woke up at around 7:00 p.m. of 1 January 1999. Then, he and Noli had coffee. When he and Noli were about to go to the dumpsite, he was apprehended by the police and by some barangay officials. He asked them why he was being apprehended and was told that he was being accused of raping AAA. He was then brought to Police Station 6, where he was incarcerated for about seven days. He claimed that he and AAA did not have any sexual relation and he did not know any reason why AAA was accusing him of such a grave offense.
[28]

Rizaldy, appellants brother, testified that on 31 December 1998, at around 11:00 p.m. until 1:00 a.m. of 1 January 1999, he was at his house with his family. Suddenly, his brother and his girlfriend, AAA, arrived. After half an hour, appellants barkadas likewise arrived. While eating, he even noticed that his brother and AAA were so sweet to each other to the point of feeding each other. Afterwards, his brother lay down on AAAs lap. His brother, with AAA on his side, later on told him that AAA was the woman whom he will marry. The group stayed in his house for about an hour. Thereafter, they proceeded to one of the appellants friends.
[29]

Rizaldy disclosed that he knew AAA as he always saw her with the appellant at the dumpsite. On 29 October 1998, he asked his brother if he was courting AAA, to which the appellant replied yes. Only on 31 December 1998 did he learn that appellant and AAA were already sweethearts for he saw his brother lie down on the lap of AAA when they were at his house. He admitted that the first time he came to know that there was a complaint filed against his brother was on 2 January 1999. That was also the date when he found out that his brother was brought to the police station. Upon knowing that his brother was already at the police station, he did not do anything. He did not even volunteer to give a statement at the police station to shed light as to what really happened or to help his brother. It was only in the year 2000 that he learned that the case filed against his brother was for rape. He only knew that he was going to testify in court when a subpoena was sent to his house in May, 2001.
[30]

On 9 August 2002, the trial court rendered a Decision finding the appellant guilty beyond reasonable doubt of the crime of rape; the dispositive portion of the said Decision reads as follows:

WHEREFORE, IN VIEW OF THE FOREGOING, this Court finds the [appellant], RAMON ARIVAN Y FORNILLO guilty beyond reasonable doubt of the crime of rape. He is hereby sentenced:

1.

To suffer the penalty of reclusion perpetua. Considering that he has been detained since [2 January 1999], he must be credited in the service of his sentence with the length of time that he has been detained; To indemnify [AAA], in the amount of P50,000.00; To pay [AAA] moral damages in the amount of P50,000.00; and To pay the costs of the suit.
[31]

2. 3. 4.

The records of this case were originally transmitted before this Court on appeal. Pursuant to People v. Mateo, were transferred to the Court of Appeals for appropriate action and disposition.

[32]

the records

In his brief, the appellants lone assignment of error was: the trial court gravely erred in finding the appellant guilty of the crime charged despite the failure of the prosecution to prove his guilt beyond reasonable doubt.
[33]

The Court of Appeals rendered a Decision on 20 October 2005, affirming the Decision of the RTC.

The appellant filed a Notice of Appeal.

[34]

In view thereof, the appellate court forwarded to this Court the records of this case.

On 7 March 2007, this Court resolved

[35]

to accept the present case and notify the parties that they may file their respective

supplemental briefs, if they so desired. The Office of the Solicitor General manifested that it was adopting its brief dated 27 June 2005 filed before the appellate court, as its supplemental brief.

After a meticulous review of the records, this Court finds no reason to reverse the judgments of the trial court and the appellate court.

A rape charge is a serious matter with pernicious consequences both for the appellant and the complainant; hence, utmost care must be taken in the review of a decision involving conviction of rape.
[36]

Thus, in the disposition and review of rape cases, the

Court is guided by these principles: First, the prosecution has to show the guilt of the accused by proof beyond reasonable doubt or that degree of proof that, to an unprejudiced mind, produces conviction. Second, the evidence for the prosecution must stand or fall on its own merits and cannot draw strength from the weakness of the evidence of the defense. Third, unless there are special reasons, the findings of trial courts, especially regarding the credibility of witnesses, are entitled to great respect and will not be disturbed on appeal. Fourth, an accusation for rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove; and fifth, in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution.
[37]

In the case at bar, the appellant argues that the prosecution failed to prove his guilt beyond reasonable doubt. According to him, he could not have perpetrated the act complained of because at the time that the alleged rape incident happened, he and the private complainant were in the company of other persons. This Court finds this argument unmeritorious.

As this Court has repeatedly said, lust is no respecter of time and place and the crime of rape can be consummated even when the malefactor and victim are not alone. In fact, it can be committed in places where people congregate, in parks, along the roadside, within school premises, inside an occupied house, and even in the room where other members of the family are also sleeping. Its commission is not limited to isolated places.
[38]

Moreover, a candid narration by a rape victim deserves credence particularly where no ill motive is attributed to the rape victim that would make her testify falsely against the accused. For no woman in her right mind will admit to having been raped, allow an examination of her most private parts and subject herself as well as her family to the humiliation and shame concomitant with a rape prosecution, unless the charges are true. Where an alleged victim says she was sexually abused, she says almost all that is necessary to show that rape had been inflicted on her person, provided her testimony meets the test of credibility.
[39]

The issue of credibility has, time and again, been settled by this Court as a question best addressed to the province of the trial court because of its unique position of having observed that elusive and incommunicable evidence of the witnesses deportment on the stand while testifying which opportunity is denied to the appellate courts. Absent any substantial reason which would justify the reversal of the trial courts assessments and conclusions, the reviewing court is generally bound by the formers findings, particularly when no significant facts and circumstances were shown to have been overlooked or disregarded which when considered would have affected the outcome of the case. are sustained by the Court of Appeals.
[41] [40]

The rule finds an even more stringent application where said findings

In this case, no cogent reason can be appreciated to warrant a departure from the findings of the trial court with respect to the assessment of AAAs testimony.

As can be gleaned from the records of the present case, when AAA testified in court, her testimony described in details the hideous experience she suffered on 31 December 1998 in the hands of the appellant. In her narration on the manner of how the appellant took advantage of her, she never wavered in her testimony. The trial court characterized AAAs testimony as straightforward, categorical and candid. Further, during her testimony before the court a quo, she cried
[42]

whenever she had to

[43]

recall and narrate what happened to her. The crying of a victim during her testimony is evidence of the truth of the rape charges, for the display of such emotion indicates the pain that the victim feels when asked to recount her traumatic experience. And, as

the trial court mentioned in its Decision, AAA exhibited courage and conviction in prosecuting the case. She gladly cooperated with the court a quo during the ocular inspection of the place where the rape incident happened, knowing that she had to go back to see the place where she had been abused by the appellant. Moreso, during AAAs testimony before the trial court, she positively identified the appellant as her ravisher. The straightforward narration of AAA of what transpired, accompanied by her categorical identification of appellant as the malefactor, sealed the case for the prosecution.
[44]

Also, it was not shown that she had been

motivated by any ill desire that would make her testify falsely against the accused. Given the foregoing, it is beyond doubt that AAAs testimony is credible and the prosecution was able to prove the guilt of the appellant beyond reasonable doubt.

The contentions of the appellant that the trial court made a mistake in not believing that he and the private complainant were sweethearts and that they did not engage in any sexual intimacy are likewise unavailing.

This Court is in conformity with the findings of both the trial court and the appellate court that, indeed, the appellant and the private complainant were not sweethearts. The sweetheart defense is a much-abused defense that rashly derides the intelligence of the Court and sorely tests its patience. Being an affirmative defense, the allegation of a love affair must be supported by convincing proof. In the present case, other than the appellants self-serving assertions, there was no support of his claim that he and AAA were lovers. His sweetheart defense cannot be given credence in the absence of corroborative proof like love notes, mementos, pictures or tokens, that such romantic relationship really existed.
[45]

Moreso, as the appellate court stated in its

Decision, the following circumstances or actuations of the private complainant immediately after the alleged raped incident belies appellants claim of such a relationship, to wit: (1) AAA immediately disclosed to her uncle that she was raped; (2) AAA immediately sought the help of the police authorities in apprehending the appellant; (3) AAA subjected herself to physical examination; (4) AAA outrightly filed the criminal complaint against the appellant; and (5) AAA never knew the name of the appellant until after the appellants statement was taken at Police Station 6.
[46]

In addition, the corroborative testimony of Rizaldy that the private

complainant and the appellant were sweethearts cannot be given any credit because of his relationship with the appellant. This Court notes that Rizaldy is the brother of the appellant and it is well settled that the testimonies of close relatives and friends are necessarily suspect and cannot prevail over the unequivocal declaration of the complaining witness.
[47]

The appellant similarly avers that force and intimidation were not attendant in the case at bar and the requisites for the crime of rape were not proven beyond reasonable doubt.

The law does not impose upon a rape victim the burden of proving resistance, particularly when intimidation is exercised upon the victim and the latter submits herself to the appellants advances out of fear for her life or personal safety. The test remains to be whether the threat or intimidation produces a reasonable fear in the mind of the victim that if she resists or does not yield to the desires of her attacker, the threat would be carried out. It is thus not necessary for the victim to have resisted unto death or to have sustained physical injuries in the hands of the accused. So long as the intercourse takes place against the victims will and she submits because of genuine apprehension of harm to her and her family, rape is committed.
[48]

Based on the findings of both the trial court and the appellate court, which findings are affirmed by this Court, the testimony of the private complainant clearly proves that the appellant had carnal knowledge of her and the same was done through force and intimidation. It bears emphasis that when the private complainant learned that her brother, BBB, was not in the hut, she decided to leave. The appellant, however, grabbed her right hand and prevented her from leaving. Threatening that he would kill her brother, he dragged her inside the hut where he succeeded in ravishing her. Under the circumstances, she indeed could not do anything but cry in fear. She tried to scream but he prevented her by covering her mouth and threatening to kill her, her brother, aunt, and uncle. That she struggled and resisted is shown by the medical findings that she sustained an abrasion on her forehead measuring 0.5 by 3 centimeters
[49]

which could have been caused by the rubbing of the skin against a hard rough object. Indeed, force and

intimidation were applied by the appellant in order to perpetrate the commission of the crime of rape against AAA.

The medico-legal findings that AAA has a remnant hymen, meaning it was possible that she had engaged in sexual intercourse prior to 31 December 1998, and that no spermatozoa was found on her private organ, do not negate the fact of rape. The same cannot be used to the advantage of the appellant as to exonerate him from the crime charged.

It is well-settled that the rupture of the hymen or vaginal lacerations are not necessary for rape to be consummated. A medical examination is not indispensable in the prosecution of a rape victim. Insofar as the evidentiary weight of the medical examination is concerned, we have already ruled that a medical examination of the victim, as well as the medical certificate, is merely corroborative in character and is not an indispensable element for conviction in rape. What is important is that the testimony of private complainant about the incident is clear, unequivocal and credible, and this we find here to be the case.
[50]

Further, well-settled is the rule that prior sexual intercourse which could have resulted in hymenal laceration is not
[51]

necessary in rape cases for virginity is not an element of rape. hymen was remnant.

Hence, it is of no moment that there is a finding that AAAs

Similarly, it must be stressed that the absence of spermatozoa in the private complainants sex organ does not disprove rape. It could be that the victim washed or urinated prior to her examination, which may well explain the absence of spermatozoa.
[52]

In sum, the straightforward testimony of AAA, as well as her unwavering and positive identification of her defiler and tormentor, was sufficient to convict the appellant. Besides, appellants flimsy and self-serving sweetheart defense and denial were not able to destroy the truthfulness and the credibility of AAAs testimony. As the Court of Appeals stated in its Decision dated 20 October 2005, the defense of the appellant suffers from lack of credible corroboration. Other than his brother, none of those who were allegedly with them at one time or another came forward to support his story. Thus, this Court is convinced that the trial court and the appellate court correctly convicted the appellant of the crime of rape,
[53] [54]

which is punishable by reclusion perpetua.

As to damages. This Court affirms the award of P50,000.00 as civil indemnity given by the lower courts to the victim. Civil indemnity, which is actually in the nature of actual or compensatory damages, is mandatory upon the finding of the fact of rape.
[55]

Moral damages in rape cases should be awarded without need of showing that the victim suffered trauma of mental, physical, and psychological sufferings constituting the basis thereof. These are too obvious to still require their recital by the victim at the trial, since we even assume and acknowledge such agony as a gauge of her credibility. damages by both lower courts in the amount of P50,000.00 proper.
[56]

Thus, this Court finds the award of moral

WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01163 dated 20 October 2005 finding herein appellant guilty beyond reasonable doubt of the crime of rape is hereby AFFIRMED in toto. Costs against appellant.

SO ORDERED. THIRD DIVISION

PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 177746 Present: Ynares-Santiago, J. (Chairperson), Austria-Martinez, Chico-Nazario, Nachura, and Reyes, JJ.

- versus -

ARTURO BARLAAN y ABION, Appellant. Promulgated:

August 31, 2007 x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

On March 20, 2001, an Information was filed charging Alex Esquillon, George Domingo and Arturo Barlaan with the crime of murder committed as follows:

That on or about the 10 day of February 2001, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another, with intent to kill, and with treachery and taking advantage of superior strength, did then and there willfully, unlawfully and feloniously stab with a bladed weapon one MARVIN SUETOS, thereby inflicting upon the latter multiple stab wounds, and as a result thereof, the said Marvin Suetos died.

th

That the killing was attended by the qualifying circumstance of treachery in that the attack against the victim with a bladed weapon was sudden and the victim was unarmed and was not able to defend himself.

The killing was likewise attended by the qualifying circumstance of abuse of superior strength in that the accused were three and armed with bladed weapons while the victim was alone.

CONTRARY TO LAW.

[1]

Barlaan was arrested while Esquillon and Domingo remain at large.

[2]

During the arraignment, Barlaan pleaded not guilty. Trial on the merits then ensued.

The facts as found by the trial court are as follows:

It appears that in the evening of February 10, 2001, Jose Dasalla and Marvin Suetos were walking downtown Baguio when they came upon the group of accused Arturo Barlaan, Alex Esquillon and George Domingo who invited them for a round of drinks. At around 11:00 p.m., they all entered the Ledsay Eatery along Otek Street, Baguio City. During their drinking session, they conversed and sang on videoke until around 1:00 a.m. of the following day, February 11, 2001. When they were about to leave the place, there ensued an argument as to who will pay their bill of about P200.00. Initially, the group asked Marvin Suetos to pay the bill but the latter refused and was offering only to contribute a certain amount. After some exchanges, the group pointed to Esquillon to pay the bill for which reason the latter got mad and brought out his fan knife. At this juncture, Dasalla and Suetos scampered out of the establishment for their safety and proceeded towards the direction of the nearby Orchidarium. Forthwith, the three accused chased them. When Dasalla and Suetos were running infront of the gate of the Orchidarium, Suetos stumbled and fell on the pavement face down. While Suetos was lying down on the pavement face down, the three accused caught up with him. Esquillon stabbed him at the back several times in rapid succession while Barlaan was preventing him from getting up and escaping by holding his legs. Domingo also lifted the body of Suetos and stabbed him in front. All these were witnessed by Dasalla from a distance of 4 to 5 meters away. Dasalla attempted to help Suetos but Esquillon attacked him with the fan knife. However, Dasalla swiftly moved backwards and so only his cheek got caught by the blade of Esquillons weapon. Dasalla ran but was chased by the three accused. While chasing him, Esquillon again attempted to stab him but only his shirt got caught by the knife. Dasalla was chased up to Rizal Park at Burnham Park, Baguio City. He went directly to the Baguio City Police Office and reported the incident but was told that there is no available mobile car. He then went back to the crime scene but Suetos was no longer there. He learned from the security guard of the nearby Benguet Pine Hotel that the body of Suetos was rushed to the hospital.

At the Baguio General Hospital, Suetos expired.

An autopsy was conducted by Dr. John Tinoyan who made the following findings:

FINDINGS:

1. Stab wound no. 1, located at the left axillary, anterior, measuring 5 cm in width, with superior pole sharp and the inferior pole blunt. It was directed slightly upward, anteriorly to the midline, penetrating to the skin and part of the left pectoralis major muscle. Depth was 7 cm.

2. Stab wound no. 2 located at the right inguinal area, diagonally with superior pole sharp and inferior pole blunt, measuring 7.5 cm in width. It was directed slightly downward to the midline, cutting through the skin lacerating the femoral artery and femoral vein, then to the pelvic cavity. The depth was 10 cm. Massive hematoma and hemorrhage noted on the pelvic cavity.

3. Group stab wounds at the back numbering in three, with superior poles sharp and posterior poles blunt. Width measures 1.7 cm average, and depth average was 5 cm. All stabwounds were muscle deep.

4. Abrasions: Right knee, measuring 4 cm by 4 cm dimension. Left knee measuring 2 cm. by 3 cm. dimension.

5. Linear superficial cuts, right lower arm, anterior, 3 lines, parallel, diagonally with average length of 9 to 10 cm.

xxx

DEATH: HYPOVOLEMIC SHOCK MASSIVE HEMMORRHAGE. MULTIPLE STAB WOUNDS OF THE BODY.

x x x.

A certificate of Death was issued.

On February 15, 2001, Jose Dasalla gave his Sworn Statement to the Baguio Police, narrating the circumstances surrounding the death of Marvin Suetos and naming Alex Esquillon, George Domingo and Arturo Barlaan as the assailants who helped one another in stabbing Suetos which was the basis for the filing of the instant case. Dasalla likewise complained against the three accused for an attempt on his life when he tried to aid Suetos which resulted to the filing of an Information for Attempted Homicide against said accused in another court.

On the civil aspect, Florian Suetos, wife of the deceased, spent P22,500.00 for the services of the Baguio Memorial Chapel, P20,000.00 for food during the wake, P17,306.00 and P3,500.00 for the interment fees and P4,500.00 for her husbands hospitalization expenses or a total of P67,806.00. Her husband Marvin Suetos died at the age of 29 and, during his lifetime, was managing the business of his parents and was earning an income of P10,000.00 a month.

For his part, Arturo Barlaan denied the charges against him. He testified that when Alex Esquillon was stabbing the deceased, he tried to prevent him by shouting Alex, dont! He is our companion but, instead, Alex Esquillon turned to him and attempted to stab him so he ran away. Esquillon chased him but did not catch up with him. He proceeded directly home after the incident. At the time Esquillon was stabbing the deceased, he did not see George Domingo around. Few hours thereafter, George Domingo, who is his neighbor, went to his house and [3] informed him that Suetos died.

The trial court found the version of the prosecution more credible. It held that Barlaan conspired with Esquillon and Domingo in killing Suetos; that the testimony of Dasalla was corroborated by the autopsy report of Dr. Tinoyan; that treachery attended the killing; and that the aggravating circumstance of abuse of superior strength is deemed absorbed in treachery.

The dispositive portion of the decision of the Regional Trial Court of Baguio City, Branch 6, reads as follows:

[4]

WHEREFORE, the Court finds the accused Arturo Barlaan guilty beyond reasonable doubt of the crime of Murder, qualified by treachery, defined and penalized under Art. 248 of the Revised Penal Code as amended by Sec. 6 of R.A. 7659 and hereby sentences him to Reclusion Perpetua; to indemnify the heirs of the deceased Marvin Suetos the sum of P50,000.00 as indemnity for his death,P67,806.00 as actual damages, P2,040,000.00 as unearned income and P50,000.00 as moral damages for the pain and anguish suffered by his heirs by reason of his death, all indemnifications being without subsidiary imprisonment in case of insolvency; and to pay the costs.

The accused Arturo Barlaan being a detention prisoner, is entitled to be credited 4/5 of his preventive imprisonment in the service of his sentence in accordance with Article 29 of the Revised Penal Code.

In respect to his co-accused Alex Esquillon and George Domingo who remained at large, let an alias warrant of arrest be issued against them so that upon their arrest, they shall be entitled to a separate trial. And pending their arrest, the case as to them is archived to be revived upon their arrest.

SO ORDERED.

[5]

On appeal, the Court of Appeals affirmed the factual findings of the trial court. In particular, the appellate court found that the assailants conspired with each other as can be inferred from their conduct before, during and after the commission of the crime. Their actions showed a common purpose and design. Thus, when Dasalla and the victim fled, they were chased by Esquillon, Domingo and Barlaan. When the malefactors caught up with the victim, they ganged up on him. Thereafter, Esquillon and Domingo took turns in stabbing him, while Barlaan held the victims legs to prevent him from escaping.

The Court of Appeals, however, found that treachery was not present because a heated argument and a chase preceded the actual stabbing. Thus, the victim and Dasalla were aware that the accused would harm them when they fled from the restaurant. Moreover, the appellate court noted that the stabbing was spontaneous and there was no evidence showing that the assailants have planned and deliberately or consciously adopted their mode of attack upon the victim.

On the other hand, it appreciated the presence of abuse of superior strength because the aggressors took advantage of their combined strength in order to consummate the offense. The victim was lying prone on the ground and his feet were being held by Barlaan when the two other assailants, Esquillon and Domingo, simultaneously delivered the fatal stab wounds.

The Court of Appeals likewise sustained the awards of P50,000.00 each as civil indemnity and moral damages and P2,040,000.00 as lost earnings, but reduced the amount of actual damages awarded by the trial court to only P43,306.50 as the same was the amount duly supported by official receipts.

The dispositive portion of the Decision of the Court of Appeals, reads:

WHEREFORE, in view of the foregoing, the decision dated March 26, 2002 of the Regional Trial Court of Baguio City, Branch 6, in Criminal Case No. 18724-R is AFFIRMED with modification. Accused-appellant ARTURO BARLAAN y ABION is found GUILTY beyond reasonable doubt of the crime of murder, qualified by abuse of superior strength, under Article 248 of the Revised Penal Code, as amended, and hereby sentenced to suffer the penalty of reclusion perpetua, and ORDERED to pay the heirs of the victim Marvin Suetos y Velasco the following amounts: P43,306.50 in actual damages; P50,000.00 as indemnity; P50,000.00 as moral damages; and, the sum of P2,040,000.00 representing lost earnings.

SO ORDERED.

[6]

Hence, this appeal.

Barlaan alleges that the existence of conspiracy was not proven beyond reasonable doubt and that the trial court erred in convicting him of the crime of murder. He claims that the testimony of prosecution witness Dasalla that he (Barlaan) was holding the legs of the victim who was in a prone position should not have been given credence for being preposterous. He argues that since Esquillon was on top of the victim, then there is no necessity for him (Barlaan) to hold the legs of the victim to prevent his escape. He alleges that Dasalla could have misinterpreted the reason for his presence in the crime scene. At any rate, mere presence at the scene of the crime does not establish conspiracy.

The appeal lacks merit.

The issue raised in this appeal, i.e., whether or not the accused participated in the commission of the crime by holding the legs of the victim, is factual in nature. Settled is the rule that this Court is not a trier of facts. Factual findings of the lower courts are

accorded great weight and respect and are deemed final, moreso in this case where the appellate court affirmed the factual findings of the trial court. Admittedly, there are exceptions to this rule, such as when the trial court ignored, misconstrued or misinterpreted facts and circumstances of substance which, if considered, would alter the outcome of the case.
[7]

However, none is present in the

instant case. At any rate, we reviewed the findings of the trial court and the Court of Appeals and found the same to be duly supported by the records. Besides, as between categorical testimonies that ring of truth on one hand and a bare denial on the other, this Court has strongly ruled that the former must prevail. Indeed, positive identification of the appellants when categorical and consistent and without any ill-motive on the part of the eyewitnesses testifying on the matter, prevails over alibi and denial.
[8]

There is no merit in Barlaans contention that the trial court and the Court of Appeals erred in construing his presence in the crime scene as proof that he acted in conspiracy with Esquillon and Domingo. The defense misread the findings of the lower courts vis--vis the issue of conspiracy.

Conspiracy exists among perpetrators of a crime when there is unity of purpose and intention in the commission of the crime. To establish conspiracy, direct evidence of a previous plan or agreement to commit assault is not required, as it is sufficient that at the time of the aggression, all the accused manifested by their acts a common intent or desire to attack. Indeed, conspiracy may be inferred when by their acts, two or more persons proceed towards the accomplishment of the same felonious objective, with each doing his act, so that their acts though seemingly independent were in fact connected, showing a closeness of former association and concurrence of sentiment.
[9]

Records show that the findings that Barlaan conspired with Esquillon and Domingo in killing the victim was not based solely on the fact that he was seen at the crime scene. On the contrary, both the trial court and the Court of Appeals considered Barlaans actions before, during and after the commission of the crime in arriving at the conclusion that there was conspiracy among the malefactors.

As correctly noted by the trial court:

3. There is evidence that Arturo Barlaan and his co-accused conspired and confederated in killing the deceased making the act of one the act of all.

For collective responsibility among the accused to be established, it is not required that there be a previous agreement to commit the crime. It is enough that at the time of the assault, all the accused acted in concert and performed specific acts manifesting a common desire or purpose to attack and kill the victim therefore making the act of one as the act of all.

Here, when Suetos and Dasalla scampered out of the Ledsay Eatery after sensing danger, Barlaan, Esquillon and Domingo immediately ran after them. And when the three caught up with Suetos after he fell to the pavement face down, Esquillon and Domingo stabbed him while Barlaan made sure he does not escape by holding his feet. The act of Barlaan in restraining their victim while being stabbed by his confederates show that he was in unity with them in their purpose to kill Suetos. The intent to kill is manifest from the number, location and nature of the stab wounds inflicted. There is no showing at all that Barlaan attempted or endeavored to stop his confederates from inflicting further harm on their victim. Besides, when Dasalla attempted to aid Suetos, he was attacked by Esquillon with a knife prompting him to ran away but Esquillon, Domingo and Barlaan chased him. All [10] these show unity of purpose and design of the accused and that they were acting in concert.

Similarly, the Court of Appeals found that:

Concededly, there is no direct evidence that any of the stab wounds sustained by the victim was inflicted by accused-appellant. He is, however, still criminally liable because he and his co-accused, Esquillon and Domingo, conspired to kill the victim.

xxxx

In the present case, when the victim and Dasalla fled to escape the rage of accused Esquillon, accusedappellant along with accused Esquillon and Domingo, chased them. When the victim stumbled and fell on the pavement, Esquillon and Domingo took turns in stabbing him while accused-appellant held the victims feet to prevent him from getting up. When Dasalla came to the victims rescue, Esquillon tried to stab him. Dasalla ran and the trio, including accused-appellant, likewise chased him. Given these circumstances, it cannot be said that accused-appellant did not conspire with his co-accused in the common purpose to kill the victim.

Where the acts of the accused collectively and individually demonstrate the existence of a common design towards the accomplishment of the same unlawful purpose, conspiracy is evident and all the perpetrators are liable as principals. Thus, while accused-appellant was not the one who actually stabbed and killed the victim, he is still criminally liable since the existence of conspiracy makes the act of one the act of all. The precise extent [11] or modality of participation of each of them becomes secondary, since all the conspirators are principals.

We agree with the Court of Appeals that treachery did not attend the commission of the crime. 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 especially to ensure the execution of the crime without risk to himself from any defense which the victim might make. It must be clearly shown that the method of assault adopted by the aggressor was deliberately chosen to accomplish the crime without risk to the aggressor.
[12]

Thus, the Court ruled that:

The impulsive stabbing followed a brief argument x x x. While the attack may have been sudden, the circumstances show that the casual, brief, and tension-filled encounter did not afford the accused-appellant an opportunity to plan and deliberately adopt the method of assault as to accomplish the crime without risk to himself. He simply used whatever weapon he had on hand. To our mind, therefore, treachery cannot be [13] appreciated.

In the instant case, the attack was spontaneous and there is no evidence showing that the malefactors consciously adopted the method of the attack. Also, an altercation preceded the stabbing. Thus, when Dasalla and the victim fled from the restaurant, they were already aware that the accused would harm them.

The Court of Appeals correctly appreciated the aggravating circumstance of abuse of superior strength. The accused positioned themselves in such a way as to ensure that the victim cannot escape. Thus, Barlaan held the legs of the victim while his body was being pinned down by Esquillon. Domingo, on the other hand, positioned himself in front of the victim. With synchronicity, the trio attacked the victim who was unarmed. Their concerted actions showed that they cooperated in such a way as to secure advantage from their combined superiority in strength.
[14]

The Court of Appeals also correctly awarded the amounts of P50,000.00 as civil indemnity and another P50,000.00 as moral damages in line with recent jurisprudence. Civil indemnity is mandatory and is granted to the heirs of the victim without need of proof other than the commission of the crime. physical injuries, official receipts.
[16] [15]

Moral damages on the other hand are awarded in a criminal offense resulting in

including death. The award of P43,306.50 as actual damages is proper considering it is the amount supported by

Under Art. 2206 of the Civil Code, the heirs of the victim are also entitled to indemnity for loss of earning capacity. To be entitled to such an award, documentary evidence is necessary. By way of exception, testimonial evidence would suffice: (1) if the victim was self-employed, earning less than the minimum wage under current labor laws and judicial notice may be taken of the fact that in the victims line of work, no documentary evidence is available; or (2) if the victim was employed as a daily wage worker earning less than the minimum wage under current labor laws.
[17]

In this case, the victims widow testified that her husband manages the small business of his parents of supplying Baguios native products, for which he earns a monthly income of P10,000.00. is proper.
[18]

Thus, the award of P2,040,000.00 representing lost earnings

WHEREFORE, the Decision of the Court of Appeals finding Arturo Barlaan guilty of murder and sentencing him to suffer the penalty of reclusion perpetua and to pay the heirs of the victim the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P43,306.50 as actual damages and P2,040.000.00 as lost earnings, areAFFIRMED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 188106 November 25, 2009

PEOPLE OF THE PHILIPPINES, Appellee, vs. ANTONIO DALISAY y DESTRESA, Appellant. DECISION NACHURA, J.: For final review by the Court is the trial courts conviction of appellant Antonio Dalisay for rape. In the October 23, 2008 1 Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02836, the appellate court, on intermediate review, 2 affirmed with modification the April 11, 2007 Decision of the Regional Trial Court (RTC), Branch 88 of Quezon City in Criminal Case No. Q-03-119026.

The victim in this case was, at the time of the incident, a 16-year-old lass, who, together with her siblings, stayed with her mothers live-in partner, appellant Dalisay, in a rented second-floor room in Fairview, Quezon City. Their mother worked 3 as a baby-sitter and helper in Makati City and only came home at the end of every month. On that fateful evening of July 10, 2003, the victim was alone playing cards in the aforesaid rented room, while her siblings were watching television in the common area on the ground floor. Appellant entered the room to change his clothes. He then laid himself down on the floor near the young lady, pulled her shirt up, and touched her breasts and thighs. Bent on satisfying his lust, he forced the girl down on the floor, took off her shorts and underwear, and placed himself on top of her. The defenseless lass resisted by kicking his legs and by pleading for him to stop. He, however, remained deaf to the girls earnest entreaty, warned her that he would kill her entire family, and proceeded to bombard the 4 gate to her chastity with his bestial toughness. Prior to this assault, appellant had already been repeatedly molesting the girl since she was 13 years old by inserting his 5 finger into her genitalia. However, paralyzed by the terror that he would make real his threats of annihilating her family, she was compelled to suffer in silence. Her trepidation was further fueled by her knowledge that appellant always carried 6 a knife with him. In the morning of July 11, 2003, the day after the unfortunate incident, the victim and her sister had a quarrela blessing in disguise, so to speak, as it resulted in the latter running away from their home and disclosing to their aunt, who lived nearby, the sexual abuse. It appeared that the victims sister witnessed an incident when appellant thought that everyone 7 in the rented room was sleeping and pulled off his dastardly act. Alarmed by her nieces information, their aunt rushed to their home to verify from the victim the truth of the molestation. 8 They then reported the matter to the authorities, who lost no time in apprehending appellant. The ano-genital examination of the victim revealed the presence of abrasion and congestion in the perihymenal area/vestibule and in the posterior fourchette area. Revealed further were deep healed lacerations at 5 and 7 oclock positions in the hymen. The examining physician opined that the findings were definitive evidence of previous and recent blunt penetrating trauma to 9 the genitals of the victim. Consequently, an Information for rape in relation to Republic Act (R.A.) No. 7610 was filed, pertinently reading: That on or about the 10th day of July 2003 in Quezon City, Philippines, the above-named accused, with lewd design[,] with force and intimidation[,] did then and there willfully, unlawfully and feloniously have carnal knowledge with one [name withheld], his stepdaughter[,] 16 years old, a minor[,] against her will and without her consent, to the damage and prejudice of said offended party. CONTRARY TO LAW.
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Appellant, on arraignment, pleaded not guilty, and, for his defense, mainly denied the accusation. He further claimed that 11 the filing of the charge was only upon the instigation by the victims aunt who harbored a grudge against him. After trial on the merits, the RTC rendered the April 11, 2007 Decision convicting appellant of qualified rape but imposing 13 the penalty of reclusion perpetua in light of the passage of R.A. No. 9346. The RTC further ordered appellant to pay the 14 victim P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary damages. On intermediate review, the appellate court affirmed with modification the ruling of the trial court. The CA convicted the accused not of qualified rape but of simple rape, and disposed of the case in the following tenor: WHEREFORE, the foregoing considered, the assailed decision finding accused-appellant guilty of qualified rape is MODIFIED in that accused-appellant Dalisay is instead found guilty beyond reasonable doubt of SIMPLE RAPE and is sentenced to suffer the penalty of reclusion perpetua. The award of damages by the court a quo is affirmed. SO ORDERED.
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The case having been elevated to this Court, we now finally review the trial and the appellate courts uniform findings. We affirm the conviction of appellant Dalisay for simple rape.

Three principles guide the courts in resolving rape cases: (1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the accused, though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape in which only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw 16 strength from the weakness of the evidence for the defense. In a determination of guilt for the crime of rape, primordial is the credibility of the complainants testimony, because, in rape cases, the accused may be convicted solely on the testimony of the victim, provided it is credible, natural, convincing 17 and consistent with human nature and the normal course of things. Here, the victim, in the painstaking and well-nigh degrading public trial, related her painful ordeal that she was raped by appellant. Her testimony was found by the trial court, which had the undisputed vantage in the evaluation and appreciation of testimonial evidence, to have been made in 18 "a simple, straightforward and spontaneous manner." This eloquent testimony of the victim, coupled with the medical findings attesting to her non-virgin state, should be enough 19 to confirm the truth of her charges. Further, deeply entrenched in our jurisprudence is the rule that the findings of the trial court on the credibility of witnesses are entitled to the highest respect and are not to be disturbed on appeal in the absence of any clear showing that the trial court overlooked, misunderstood or misapplied facts or circumstances of 20 weight and substance which would have affected the result of the case. The Court discredits appellants defense of denial for it is a negative and self-serving evidence, which pales in comparison to the victims clear and convincing narration and positive identification of her assailant. The Court, likewise, does not find merit in appellants rather belated assertion that the prosecution failed to establish force or intimidation and the resistance of the victim to the intrusion. The presence of intimidation, which is purely subjective, cannot be tested by any hard and fast rule, but should be viewed in the light of the victims perception and judgment at the time of the 22 commission of the rape. Not all victims react in the same waysome people may cry out, some may faint, some may be 23 shocked into insensibility, while others may appear to yield to the intrusion. Here, the records show that the victim was coerced into submission by her fear that appellant would harm her family. In any event, established during the trial were that appellant was the live-in partner of the victims mother, and that he was the one taking care of the children while the 24 mother worked in Makati City. The moral ascendancy and influence of appellant, a father figure to the victim, can take 25 the place of threat or intimidation. The Court, therefore, finds appellant guilty beyond reasonable doubt of the crime of simple rape. While it has been proven that appellant was the common-law spouse of the parent of the victim and the child was a minor at the time of the 26 incident, the Court cannot convict appellant of qualified rape because the special qualifying circumstances of minority and relationship were not sufficiently alleged in the information. To recall, the information here erroneously alleged that appellant was the stepfather of the victim. Proven during the trial, however, was that appellant was not married to the 27 victims mother, but was only the common-law spouse of the latter. Following settled jurisprudence, appellant is liable only of simple rape punishable by reclusion perpetua. As to the amount of damages, the Court finds as correct the award of P50,000.00 as civil indemnity andP50,000.00 as 28 moral damages in line with prevailing jurisprudence. As to the award of exemplary damages, the Court deems it opportune to clarify the basis for and the amount of the same. Article 2229 of the Civil Code provides that Art. 2229. Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages. Article 2230 of the same Code further states that 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. Prior to the effectivity of the Revised Rules of Criminal Procedure, courts generally awarded exemplary damages in criminal cases when an aggravating circumstance, whether ordinary or qualifying, had been proven to have attended the commission of the crime, even if the same was not alleged in the information. This is in accordance with the aforesaid Article 2230. However, with the promulgation of the Revised Rules, courts no longer consider the aggravating circumstances not alleged and proven in the determination of the penalty and in the award of damages. Thus, even if an
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aggravating circumstance has been proven, but was not alleged, courts will not award exemplary damages. are the following sections of Rule 110:

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Pertinent

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. Sec. 9. Cause of accusation.The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment. Nevertheless, People v. Catubig laid down the principle that courts may still award exemplary damages based on the aforementioned Article 2230, even if the aggravating circumstance has not been alleged, so long as it has been proven, in criminal cases instituted before the effectivity of the Revised Rules which remained pending thereafter. Catubig reasoned that the retroactive application of the Revised Rules should not adversely affect the vested rights of the private offended 32 party. Thus, we find, in our body of jurisprudence, criminal cases, especially those involving rape, dichotomized: one awarding exemplary damages, even if an aggravating circumstance attending the commission of the crime had not been sufficiently alleged but was consequently proven in the light of Catubig; and another awarding exemplary damages only if an aggravating circumstance has both been alleged and proven following the Revised Rules. Among those in the first set are 33 34 35 36 37 People v. Laciste, People v. Victor, People v. Orilla, People v. Calongui, People v. Magbanua, People of the 38 39 Philippines v. Heracleo Abello y Fortada, People of the Philippines v. Jaime Cadag Jimenez, and People of the 40 41 Philippines v. Julio Manalili. And in the second set are People v. Llave, People of the Philippines v. Dante Gragasin y 42 43 Par, and People of the Philippines v. Edwin Mejia. Again, the difference between the two sets rests on when the criminal case was instituted, either before or after the effectivity of the Revised Rules.1avvphi1 In the instant case, the information for rape was filed in 2003 or after the effectivity of the Revised Rules. Following the doctrine in the second set of cases, the Court can very well deny the award of exemplary damages based on Article 2230 because the special qualifying circumstances of minority and relationship, as mentioned above, were not sufficiently alleged. Nevertheless, by focusing only on Article 2230 as the legal basis for the grant of exemplary damagestaking into account simply the attendance of an aggravating circumstance in the commission of a crime, courts have lost sight of the very reason why exemplary damages are awarded. Catubig is enlightening on this point, thus Also known as "punitive" or "vindictive" damages, exemplary or corrective damages are intended to serve as a deterrent to serious wrong doings, and as a vindication of undue sufferings and wanton invasion of the rights of an injured or a punishment for those guilty of outrageous conduct. These terms are generally, but not always, used interchangeably. In common law, there is preference in the use of exemplary damages when the award is to account for injury to feelings and for the sense of indignity and humiliation suffered by a person as a result of an injury that has been maliciously and wantonly inflicted, the theory being that there should be compensation for the hurt caused by the highly reprehensible conduct of the defendantassociated with such circumstances as willfulness, wantonness, malice, gross negligence or recklessness, oppression, insult or fraud or gross fraudthat intensifies the injury. The terms punitive or vindictive damages are often used to refer to those species of damages that may be awarded against a person to punish him for his outrageous conduct. In either case, these damages are intended in good measure to deter the wrongdoer and others like 44 him from similar conduct in the future. Being corrective in nature, exemplary damages, therefore, can be awarded, not only in the presence of an aggravating circumstance, but also where the circumstances of the case show the highly reprehensible or outrageous conduct of the offender. In much the same way as Article 2230 prescribes an instance when exemplary damages may be awarded, 45 Article 2229, the main provision, lays down the very basis of the award. Thus, in People v. Matrimonio, the Court imposed exemplary damages to deter other fathers with perverse tendencies or aberrant sexual behavior from sexually 46 abusing their own daughters. Also, in People v. Cristobal, the Court awarded exemplary damages on account of the moral corruption, perversity and wickedness of the accused in sexually assaulting a pregnant married woman. Recently, 47 48 in People of the Philippines v. Cristino Caada, People of the Philippines v. Pepito Neverio and The People of the 49 Philippines v. Lorenzo Layco, Sr., the Court awarded exemplary damages to set a public example, to serve as deterrent to elders who abuse and corrupt the youth, and to protect the latter from sexual abuse.
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It must be noted that, in the said cases, the Court used as basis Article 2229, rather than Article 2230, to justify the award of exemplary damages. Indeed, to borrow Justice Carpio Morales words in her separate opinion in People of the 50 Philippines v. Dante Gragasin y Par, "[t]he application of Article 2230 of the Civil Code strictissimi juris in such cases, as in the present one, defeats the underlying public policy behind the award of exemplary damagesto set a public example or correction for the public good." In this case, finding that appellant, the father figure of the victim, has shown such an outrageous conduct in sexually abusing his ward, a minor at that, the Court sustains the award of exemplary damages to discourage and deter such 51 aberrant behavior. However, the same is increased to P30,000.00 in line with prevailing jurisprudence. WHEREFORE, premises considered, the October 23, 2008 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02836 is AFFIRMED WITH THE MODIFICATION that the award of exemplary damages is increased toP30,000.00. SO ORDERED.