G.R. No.

L-5272

March 19, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
AH CHONG, defendant-appellant.
Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence as to many of the essential and vital facts in this case
is limited to the testimony of the accused himself, because from the
very nature of these facts and from the circumstances surrounding
the incident upon which these proceedings rest, no other evidence
as to these facts was available either to the prosecution or to the
defense. We think, however, that, giving the accused the benefit of
the doubt as to the weight of the evidence touching those details of
the incident as to which there can be said to be any doubt, the
following statement of the material facts disclose by the record may
be taken to be substantially correct:
The defendant, Ah Chong, was employed as a cook at "Officers'
quarters, No. 27," Fort Mc Kinley, Rizal Province, and at the same
place Pascual Gualberto, deceased, was employed as a house boy
or muchacho. "Officers' quarters No. 27" as a detached house
situates some 40 meters from the nearest building, and in August,
19087, was occupied solely as an officers' mess or club. No one
slept in the house except the two servants, who jointly occupied a
small room toward the rear of the building, the door of which opened
upon a narrow porch running along the side of the building, by which
communication was had with the other part of the house. This porch
was covered by a heavy growth of vines for its entire length and
height. The door of the room was not furnished with a permanent bolt
or lock, and occupants, as a measure of security, had attached a
small hook or catch on the inside of the door, and were in the habit of
reinforcing this somewhat insecure means of fastening the door by

placing against it a chair. In the room there was but one small
window, which, like the door, opened on the porch. Aside from the
door and window, there were no other openings of any kind in the
room.
On the night of August 14, 1908, at about 10 o'clock, the defendant,
who had received for the night, was suddenly awakened by some
trying to force open the door of the room. He sat up in bed and called
out twice, "Who is there?" He heard no answer and was convinced
by the noise at the door that it was being pushed open by someone
bent upon forcing his way into the room. Due to the heavy growth of
vines along the front of the porch, the room was very dark, and the
defendant, fearing that the intruder was a robber or a thief, leaped to
his feet and called out. "If you enter the room, I will kill you." At that
moment he was struck just above the knee by the edge of the chair
which had been placed against the door. In the darkness and
confusion the defendant thought that the blow had been inflicted by
the person who had forced the door open, whom he supposed to be
a burglar, though in the light of after events, it is probable that the
chair was merely thrown back into the room by the sudden opening
of the door against which it rested. Seizing a common kitchen knife
which he kept under his pillow, the defendant struck out wildly at the
intruder who, it afterwards turned out, was his roommate, Pascual.
Pascual ran out upon the porch and fell down on the steps in a
desperately wounded condition, followed by the defendant, who
immediately recognized him in the moonlight. Seeing that Pascual
was wounded, he called to his employers who slept in the next
house, No. 28, and ran back to his room to secure bandages to bind
up Pascual's wounds.
There had been several robberies in Fort McKinley not long prior to
the date of the incident just described, one of which took place in a
house in which the defendant was employed as cook; and as
defendant alleges, it was because of these repeated robberies he
kept a knife under his pillow for his personal protection.

The deceased and the accused, who roomed together and who
appear to have on friendly and amicable terms prior to the fatal
incident, had an understanding that when either returned at night, he
should knock at the door and acquiant his companion with his
identity. Pascual had left the house early in the evening and gone for
a walk with his friends, Celestino Quiambao and Mariano Ibaez,
servants employed at officers' quarters No. 28, the nearest house to
the mess hall. The three returned from their walk at about 10 o'clock,
and Celestino and Mariano stopped at their room at No. 28, Pascual
going on to his room at No. 27. A few moments after the party
separated, Celestino and Mariano heard cries for assistance and
upon returning to No. 27 found Pascual sitting on the back steps
fatally wounded in the stomach, whereupon one of them ran back to
No. 28 and called Liuetenants Jacobs and Healy, who immediately
went to the aid of the wounded man.
The defendant then and there admitted that he had stabbed his
roommate, but said that he did it under the impression that Pascual
was "a ladron" because he forced open the door of their sleeping
room, despite defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of
Pascuals suggests itself, unless it be that the boy in a spirit of
mischief was playing a trick on his Chinese roommate, and sought to
frightened him by forcing his way into the room, refusing to give his
name or say who he was, in order to make Ah Chong believe that he
was being attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was
conveyed to the military hospital, where he died from the effects of
the wound on the following day.
The defendant was charged with the crime of assassination, tried,
and found guilty by the trial court of simple homicide, with
extenuating circumstances, and sentenced to six years and one
day presidio mayor, the minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his
roommate, Pascual Gualberto, but insisted that he struck the fatal
blow without any intent to do a wrongful act, in the exercise of his
lawful right of self-defense.
Article 8 of the Penal Code provides that
The following are not delinquent and are therefore exempt
from criminal liability:
xxx

xxx

xxx

4 He who acts in defense of his person or rights, provided

there are the following attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent
or repel it.
(3) Lack of sufficient provocation on the part of the person
defending himself.
Under these provisions we think that there can be no doubt that
defendant would be entitle to complete exception from criminal
liability for the death of the victim of his fatal blow, if the intruder who
forced open the door of his room had been in fact a dangerous thief
or "ladron," as the defendant believed him to be. No one, under such
circumstances, would doubt the right of the defendant to resist and
repel such an intrusion, and the thief having forced open the door
notwithstanding defendant's thrice-repeated warning to desist, and
his threat that he would kill the intruder if he persisted in his attempt,
it will not be questioned that in the darkness of the night, in a small
room, with no means of escape, with the thief advancing upon him
despite his warnings defendant would have been wholly justified in
using any available weapon to defend himself from such an assault,

and in striking promptly, without waiting for the thief to discover his
whereabouts and deliver the first blow.

596; Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213;
Commonwealth vs. Rogers, 7 Met., 500.)

But the evidence clearly discloses that the intruder was not a thief or
a "ladron." That neither the defendant nor his property nor any of the
property under his charge was in real danger at the time when he
struck the fatal blow. That there was no such "unlawful aggression"
on the part of a thief or "ladron" as defendant believed he was
repelling and resisting, and that there was no real "necessity" for the
use of the knife to defend his person or his property or the property
under his charge.

The general proposition thus stated hardly admits of discussion, and

the only question worthy of consideration is whether malice or
criminal intent is an essential element or ingredient of the crimes of
homicide and assassination as defined and penalized in the Penal
Code. It has been said that since the definitions there given of these
as well as most other crimes and offense therein defined, do not
specifically and expressly declare that the acts constituting the crime
or offense must be committed with malice or with criminal intent in
order that the actor may be held criminally liable, the commission of
the acts set out in the various definitions subjects the actor to the
penalties described therein, unless it appears that he is exempted
from liability under one or other of the express provisions of article 8
of the code, which treats of exemption. But while it is true that
contrary to the general rule of legislative enactment in the United
States, the definitions of crimes and offenses as set out in the Penal
Code rarely contain provisions expressly declaring that malice or
criminal intent is an essential ingredient of the crime, nevertheless,
the general provisions of article 1 of the code clearly indicate that
malice, or criminal intent in some form, is an essential requisite of all
crimes and offense therein defined, in the absence of express
provisions modifying the general rule, such as are those touching
liability resulting from acts negligently or imprudently committed, and
acts done by one voluntarily committing a crime or misdemeanor,
where the act committed is different from that which he intended to
commit. And it is to be observed that even these exceptions are
more apparent than real, for "There is little distinction, except in
degree, between a will to do a wrongful thing and indifference
whether it is done or not. Therefore carelessness is criminal, and
within limits supplies the place of the affirmative criminal intent"
(Bishop's New Criminal Law, vol. 1, s. 313); and, again, "There is so
little difference between a disposition to do a great harm and a
disposition to do harm that one of them may very well be looked
upon as the measure of the other. Since, therefore, the guilt of a
crime consists in the disposition to do harm, which the criminal

The question then squarely presents it self, whether in this

jurisdiction one can be held criminally responsible who, by reason of
a mistake as to the facts, does an act for which he would be exempt
from criminal liability if the facts were as he supposed them to be, but
which would constitute the crime of homicide or assassination if the
actor had known the true state of the facts at the time when he
committed the act. To this question we think there can be but one
answer, and we hold that under such circumstances there is no
criminal liability, provided always that the alleged ignorance or
mistake or fact was not due to negligence or bad faith.
In broader terms, ignorance or mistake of fact, if such ignorance or
mistake of fact is sufficient to negative a particular intent which under
the law is a necessary ingredient of the offense charged (e.g., in
larcerny, animus furendi; in murder, malice; in crimes intent) "cancels
the presumption of intent," and works an acquittal; except in those
cases where the circumstances demand a conviction under the
penal provisions touching criminal negligence; and in cases where,
under the provisions of article 1 of the Penal Code one voluntarily
committing a crime or misdeamor incurs criminal liability for any
wrongful act committed by him, even though it be different from that
which he intended to commit. (Wharton's Criminal Law, sec. 87 and
cases cited; McClain's Crim. Law, sec. 133 and cases cited;
Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met.,

shows by committing it, and since this disposition is greater or less in

proportion to the harm which is done by the crime, the consequence
is that the guilt of the crime follows the same proportion; it is greater
or less according as the crime in its own nature does greater or less
harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated,
the thing done, having proceeded from a corrupt mid, is to be viewed
the same whether the corruption was of one particular form or
another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions
punished by law.
Acts and omissions punished by law are always presumed to
be voluntarily unless the contrary shall appear.
An person voluntarily committing a crime or misdemeanor
shall incur criminal liability, even though the wrongful act
committed be different from that which he had intended to
commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of
the word "voluntary" as used in this article, say that a voluntary act is
a free, intelligent, and intentional act, and roundly asserts that
without intention (intention to do wrong or criminal intention) there
can be no crime; and that the word "voluntary" implies and includes
the words "con malicia," which were expressly set out in the
definition of the word "crime" in the code of 1822, but omitted from
the code of 1870, because, as Pacheco insists, their use in the
former code was redundant, being implied and included in the word
"voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the
crime can only be said to exempt from criminal responsibility when
the act which was actually intended to be done was in itself a lawful
one, and in the absence of negligence or imprudence, nevertheless

admits and recognizes in his discussion of the provisions of this

article of the code that in general without intention there can be no
crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the
exceptions insisted upon by Viada are more apparent than real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which
declared that where there is no intention there is no
crime . . . in order to affirm, without fear of mistake, that
under our code there can be no crime if there is no act, an
act which must fall within the sphere of ethics if there is no
moral injury. (Vol. 2, the Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme court of
Spain, as, for example in its sentence of May 31, 1882, in which it
made use of the following language:
It is necessary that this act, in order to constitute a crime,
involve all the malice which is supposed from the operation
of the will and an intent to cause the injury which may be the
object of the crime.
And again in its sentence of March 16, 1892, wherein it held that
"considering that, whatever may be the civil effects of the inscription
of his three sons, made by the appellant in the civil registry and in
the parochial church, there can be no crime because of the lack of
the necessary element or criminal intention, which characterizes
every action or ommission punished by law; nor is he guilty of
criminal negligence."
And to the same effect in its sentence of December 30, 1896, it
made use of the following language:
. . . Considering that the moral element of the crime, that is,
intent or malice or their absence in the commission of an act
defined and punished by law as criminal, is not a necessary

question of fact submitted to the exclusive judgment and

decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice
to be an essential element of the various crimes and misdemeanors
therein defined becomes clear also from an examination of the
provisions of article 568, which are as follows:
He who shall execute through reckless negligence an act
that, if done with malice, would constitute a grave crime,
shall be punished with the penalty of arresto mayor in its
maximum degree, to prision correccional in its minimum
degrees if it shall constitute a less grave crime.
He who in violation of the regulations shall commit a crime
through simple imprudence or negligence shall incur the
penalty of arresto mayor in its medium and maximum
degrees.
In the application of these penalties the courts shall proceed
according to their discretion, without being subject to the
rules prescribed in article 81.
The provisions of this article shall not be applicable if the
penalty prescribed for the crime is equal to or less than
those contained in the first paragraph thereof, in which case
the courts shall apply the next one thereto in the degree
which they may consider proper.
The word "malice" in this article is manifestly substantially equivalent
to the words "criminal intent," and the direct inference from its
provisions is that the commission of the acts contemplated therein, in
the absence of malice (criminal intent), negligence, and imprudence,
does not impose any criminal liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would
seem to approximate in meaning the word "willful" as used in English

and American statute to designate a form of criminal intent. It has

been said that while the word "willful" sometimes means little more
than intentionally or designedly, yet it is more frequently understood
to extent a little further and approximate the idea of the milder kind of
legal malice; that is, it signifies an evil intent without justifiable
excuse. In one case it was said to mean, as employed in a statute in
contemplation, "wantonly" or "causelessly;" in another, "without
reasonable grounds to believe the thing lawful." And Shaw, C. J.,
once said that ordinarily in a statute it means "not merely `voluntarily'
but with a bad purpose; in other words, corruptly." In English and the
American statutes defining crimes "malice," "malicious,"
"maliciously," and "malice aforethought" are words indicating intent,
more purely technical than "willful" or willfully," but "the difference
between them is not great;" the word "malice" not often being
understood to require general malevolence toward a particular
individual, and signifying rather the intent from our legal justification.
(Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases
cited.)
But even in the absence of express words in a statute, setting out a
condition in the definition of a crime that it be committed "voluntarily,"
willfully," "maliciously" "with malice aforethought," or in one of the
various modes generally construed to imply a criminal intent, we
think that reasoning from general principles it will always be found
that with the rare exceptions hereinafter mentioned, to constitute a
crime evil intent must combine with an act. Mr. Bishop, who supports
his position with numerous citations from the decided cases, thus
forcely present this doctrine:
In no one thing does criminal jurisprudence differ more from
civil than in the rule as to the intent. In controversies
between private parties the quo animo with which a thing
was done is sometimes important, not always; but crime
proceeds only from a criminal mind. So that
There can be no crime, large or small, without an evil mind.
In other words, punishment is the sentence of wickedness,

without which it can not be. And neither in philosophical

speculation nor in religious or mortal sentiment would any
people in any age allow that a man should be deemed guilty
unless his mind was so. It is therefore a principle of our legal
system, as probably it is of every other, that the essence of
an offense is the wrongful intent, without which it can not
exists. We find this doctrine confirmed by
Legal maxims. The ancient wisdom of the law, equally
with the modern, is distinct on this subject. It consequently
has supplied to us such maxims as Actus non facit reum nisi
mens sit rea, "the act itself does not make man guilty unless
his intention were so;" Actus me incito factus non est meus
actus, "an act done by me against my will is not my act;" and
others of the like sort. In this, as just said, criminal
jurisprudence differs from civil. So also
Moral science and moral sentiment teach the same thing.
"By reference to the intention, we inculpate or exculpate
others or ourselves without any respect to the happiness or
misery actually produced. Let the result of an action be what
it may, we hold a man guilty simply on the ground of
intention; or, on the dame ground, we hold him innocent."
The calm judgment of mankind keeps this doctrine among its
jewels. In times of excitement, when vengeance takes the
place of justice, every guard around the innocent is cast
down. But with the return of reason comes the public voice
that where the mind is pure, he who differs in act from his
neighbors does not offend. And
In the spontaneous judgment which springs from the nature
given by God to man, no one deems another to deserve
punishment for what he did from an upright mind, destitute of
every form of evil. And whenever a person is made to suffer
a punishment which the community deems not his due, so
far from its placing an evil mark upon him, it elevates him to
the seat of the martyr. Even infancy itself spontaneously

pleads the want of bad intent in justification of what has the

appearance of wrong, with the utmost confidence that the
plea, if its truth is credited, will be accepted as good. Now
these facts are only the voice of nature uttering one of her
immutable truths. It is, then, the doctrine of the law, superior
to all other doctrines, because first in nature from which the
law itself proceeds, that no man is to be punished as a
criminal unless his intent is wrong. (Bishop's New Criminal
Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent
departure from this doctrine of abstract justice result from the
adoption of the arbitrary rule that Ignorantia juris non
excusat ("Ignorance of the law excuses no man"), without which
justice could not be administered in our tribunals; and compelled also
by the same doctrine of necessity, the courts have recognized the
power of the legislature to forbid, in a limited class of cases, the
doing of certain acts, and to make their commission criminal without
regard to the intent of the doer. Without discussing these exceptional
cases at length, it is sufficient here to say that the courts have always
held that unless the intention of the lawmaker to make the
commission of certain acts criminal without regard to the intent of the
doer is clear and beyond question the statute will not be so
construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and
the rule that ignorance of the law excuses no man has been said not
to be a real departure from the law's fundamental principle that crime
exists only where the mind is at fault, because "the evil purpose need
not be to break the law, and if suffices if it is simply to do the thing
which the law in fact forbids." (Bishop's New Criminal Law, sec. 300,
and cases cited.)
But, however this may be, there is no technical rule, and no pressing
necessity therefore, requiring mistake in fact to be dealt with
otherwise that in strict accord with the principles of abstract justice.
On the contrary, the maxim here is Ignorantia facti
excusat ("Ignorance or mistake in point of fact is, in all cases of

supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed.,

190.)

extreme measures. (Bishop's New Criminal Law, sec. 305,

and large array of cases there cited.)

Since evil intent is in general an inseparable element in every crime,

any such mistake of fact as shows the act committed to have
proceeded from no sort of evil in the mind necessarily relieves the
actor from criminal liability provided always there is no fault or
negligence on his part; and as laid down by Baron Parke, "The guilt
of the accused must depend on the circumstances as they appear to
him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs.Anderson, 44 Cal..,
65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509;
Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41;
P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That
is to say, the question as to whether he honestly, in good faith, and
without fault or negligence fell into the mistake is to be determined by
the circumstances as they appeared to him at the time when the
mistake was made, and the effect which the surrounding
circumstances might reasonably be expected to have on his mind, in
forming the intent, criminal or other wise, upon which he acted.

The common illustration in the American and English textbooks of

the application of this rule is the case where a man, masked and
disguised as a footpad, at night and on a lonely road, "holds up" his
friends in a spirit of mischief, and with leveled pistol demands his
money or his life, but is killed by his friend under the mistaken belief
that the attack is a real one, that the pistol leveled at his head is
loaded, and that his life and property are in imminent danger at the
hands of the aggressor. No one will doubt that if the facts were such
as the slayer believed them to be he would be innocent of the
commission of any crime and wholly exempt from criminal liability,
although if he knew the real state of the facts when he took the life of
his friend he would undoubtedly be guilty of the crime of homicide or
assassination. Under such circumstances, proof of his innocent
mistake of the facts overcomes the presumption of malice or criminal
intent, and (since malice or criminal intent is a necessary ingredient
of the "act punished by law" in cases of homicide or assassination)
overcomes at the same time the presumption established in article 1
of the code, that the "act punished by law" was committed
"voluntarily."

If, in language not uncommon in the cases, one

has reasonable cause to believe the existence of facts which
will justify a killing or, in terms more nicely in accord with
the principles on which the rule is founded, if without fault or
carelessness he does believe them he is legally guiltless
of the homicide; though he mistook the facts, and so the life
of an innocent person is unfortunately extinguished. In other
words, and with reference to the right of self-defense and the
not quite harmonious authorities, it is the doctrine of reason
and
sufficiently
sustained
in
adjudication,
that
notwithstanding some decisions apparently adverse,
whenever a man undertakes self-defense, he is justified in
acting on the facts as they appear to him. If, without fault or
carelessness, he is misled concerning them, and defends
himself correctly according to what he thus supposes the
facts to be the law will not punish him though they are in
truth otherwise, and he was really no occassion for the

Parson, C.J., in the Massachusetts court, once said:

If the party killing had reasonable grounds for believing that
the person slain had a felonious design against him, and
under that supposition killed him, although it should
afterwards appear that there was no such design, it will not
be murder, but it will be either manslaughter or excusable
homicide, according to the degree of caution used and the
probable grounds of such belief. (Charge to the grand jury in
Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the
case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine
as follows:

A, in the peaceable pursuit of his affairs, sees B rushing

rapidly toward him, with an outstretched arms and a pistol in
his hand, and using violent menaces against his life as he
advances. Having approached near enough in the same
attitude, A, who has a club in his hand, strikes B over the
head before or at the instant the pistol is discharged; and of
the wound B dies. It turns out the pistol was loaded
with powder only, and that the real design of B was only
to terrify A. Will any reasonable man say that A is more
criminal that he would have been if there had been a bullet in
the pistol? Those who hold such doctrine must require that a
man so attacked must, before he strikes the assailant, stop
and ascertain how the pistol is loaded a doctrine which
would entirely take away the essential right of self-defense.
And when it is considered that the jury who try the cause,
and not the party killing, are to judge of the reasonable
grounds of his apprehension, no danger can be supposed to
flow from this principle. (Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court of
Spain, cited by Viada, a few of which are here set out in full because
the facts are somewhat analogous to those in the case at bar.
QUESTION III. When it is shown that the accused was sitting
at his hearth, at night, in company only of his wife, without
other light than reflected from the fire, and that the man with
his back to the door was attending to the fire, there suddenly
entered a person whom he did not see or know, who struck
him one or two blows, producing a contusion on the
shoulder, because of which he turned, seized the person and
took from his the stick with which he had undoubtedly been
struck, and gave the unknown person a blow, knocking him
to the floor, and afterwards striking him another blow on the
head, leaving the unknown lying on the floor, and left the
house. It turned out the unknown person was his father-inlaw, to whom he rendered assistance as soon as he learned
his identity, and who died in about six days in consequence

of cerebral congestion resulting from the blow. The accused,

who confessed the facts, had always sustained pleasant
relations with his father-in-law, whom he visited during his
sickness, demonstrating great grief over the occurrence.
Shall he be considered free from criminal responsibility, as
having acted in self-defense, with all the circumstances
related in paragraph 4, article 8, of the Penal Code? The
criminal branch of theAudiencia of Valladolid found that he
was an illegal aggressor, without sufficient provocation, and
that there did not exists rational necessity for the
employment of the force used, and in accordance with
articles 419 and 87 of the Penal Code condemned him to
twenty months of imprisonment, with accessory penalty and
costs. Upon appeal by the accused, he was acquitted by the
supreme court, under the following sentence: "Considering,
from the facts found by the sentence to have been proven,
that the accused was surprised from behind, at night, in his
house beside his wife who was nursing her child, was
attacked, struck, and beaten, without being able to
distinguish with which they might have executed their
criminal intent, because of the there was no other than fire
light in the room, and considering that in such a situation and
when the acts executed demonstrated that they might
endanger his existence, and possibly that of his wife and
child, more especially because his assailant was unknown,
he should have defended himself, and in doing so with the
same stick with which he was attacked, he did not exceed
the limits of self-defense, nor did he use means which were
not rationally necessary, particularly because the instrument
with which he killed was the one which he took from his
assailant, and was capable of producing death, and in the
darkness of the house and the consteration which naturally
resulted from such strong aggression, it was not given him to
known or distinguish whether there was one or more
assailants, nor the arms which they might bear, not that
which they might accomplish, and considering that the lower
court did not find from the accepted facts that there existed
rational necessity for the means employed, and that it did not

apply paragraph 4 of article 8 of the Penal Code, it erred,

etc." (Sentence of supreme court of Spain, February 28,
1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house,
which was situated in a retired part of the city, upon arriving
at a point where there was no light, heard the voice of a
man, at a distance of some 8 paces, saying: "Face down,
hand over you money!" because of which, and almost at the
same money, he fired two shots from his pistol,
distinguishing immediately the voice of one of his friends
(who had before simulated a different voice) saying, "Oh!
they have killed me," and hastening to his assistance, finding
the body lying upon the ground, he cried, "Miguel, Miguel,
speak, for God's sake, or I am ruined," realizing that he had
been the victim of a joke, and not receiving a reply, and
observing that his friend was a corpse, he retired from the
place. Shall he be declared exempt in toto from responsibility
as the author of this homicide, as having acted in just selfdefense under the circumstances defined in paragraph 4,
article 8, Penal Code? The criminal branch of
the Audiencia of Malaga did not so find, but only found in
favor of the accused two of the requisites of said article, but
not that of the reasonableness of the means employed to
repel the attack, and, therefore, condemned the accused to
eight years and one day of prison mayor, etc. The supreme
court acquitted the accused on his appeal from this
sentence, holding that the accused was acting under a
justifiable and excusable mistake of fact as to the identity of
the person calling to him, and that under the circumstances,
the darkness and remoteness, etc., the means employed
were rational and the shooting justifiable. (Sentence
supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.)
QUESTION VI. The owner of a mill, situated in a remote
spot, is awakened, at night, by a large stone thrown against
his window at this, he puts his head out of the window and

inquires what is wanted, and is answered "the delivery of all

of his money, otherwise his house would be burned"
because of which, and observing in an alley adjacent to the
mill four individuals, one of whom addressed him with
blasphemy, he fired his pistol at one the men, who, on the
next morning was found dead on the same spot. Shall this
man be declared exempt from criminal responsibility as
having acted in just self-defense with all of the requisites of
law? The criminal branch of the requisites of law? The
criminal branch of the Audiencia of Zaragoza finds that there
existed in favor of the accused a majority of the requisites to
exempt him from criminal responsibility, but not that of
reasonable necessity for the means, employed, and
condemned the accused to twelve months of prision
correctional for the homicide committed. Upon appeal, the
supreme court acquitted the condemned, finding that the
accused, in firing at the malefactors, who attack his mill at
night in a remote spot by threatening robbery and
incendiarism, was acting in just self-defense of his person,
property, and family. (Sentence of May 23, 1877). (I Viada, p.
128.)
A careful examination of the facts as disclosed in the case at bar
convinces us that the defendant Chinaman struck the fatal blow
alleged in the information in the firm belief that the intruder who
forced open the door of his sleeping room was a thief, from whose
assault he was in imminent peril, both of his life and of his property
and of the property committed to his charge; that in view of all the
circumstances, as they must have presented themselves to the
defendant at the time, he acted in good faith, without malice, or
criminal intent, in the belief that he was doing no more than
exercising his legitimate right of self-defense; that had the facts been
as he believed them to be he would have been wholly exempt from
criminal liability on account of his act; and that he can not be said to
have been guilty of negligence or recklessness or even carelessness
in falling into his mistake as to the facts, or in the means adopted by
him to defend himself from the imminent danger which he believe

threatened his person and his property and the property under his
charge.
The judgment of conviction and the sentence imposed by the trial
court should be reversed, and the defendant acquitted of the crime
with which he is charged and his bail bond exonerated, with the
costs of both instance de oficio. So ordered.
G.R. No. L-47722

July 27, 1943

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendantsappellants.
MORAN, J.:
Charged with the crime of murder of one Serapio Tecson, the
accused Antonio Z. Oanis and Alberto Galanta, chief of police of
Cabanatuan and corporal of the Philippine Constabulary,
respectively, were, after due trial, found guilty by the lower court of
homicide through reckless imprudence and were sentenced each to
an indeterminate penalty of from one year and six months to two
years and two months of prison correccional and to indemnify jointly
and severally the heirs of the deceased in the amount of P1,000.
Defendants appealed separately from this judgment.
In the afternoon of December 24, 1938. Captain Godofredo Monsod,
Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija,
received from Major Guido a telegram of the following tenor:
"Information received escaped convict Anselmo Balagtas
with bailarina and Irene in Cabanatuan get him dead or alive."
Captain Monsod accordingly called for his first sergeant and asked
that he be given four men. Defendant corporal Alberto Galanta, and
privates Nicomedes Oralo, Venancio Serna and D. Fernandez, upon
order of their sergeant, reported at the office of the Provincial
Inspector where they were shown a copy of the above-quoted

telegram and a newspaper clipping containing a picture of Balagtas.

They were instructed to arrest Balagtas and, if overpowered, to
follow the instruction contained in the telegram. The same instruction
was given to the chief of police Oanis who was likewise called by the
Provincial Inspector. When the chief of police was asked whether he
knew one Irene, a bailarina, he answered that he knew one of loose
morals of the same name. Upon request of the Provincial Inspector,
the chief of police tried to locate some of his men to guide the
constabulary soldiers in ascertaining Balagtas' whereabouts, and
failing to see anyone of them he volunteered to go with the party. The
Provincial Inspector divided the party into two groups with
defendants Oanis and Galanta, and private Fernandez taking the
route to Rizal street leading to the house where Irene was
supposedly living. When this group arrived at Irene's house, Oanis
approached one Brigida Mallare, who was then stripping banana
stalks, and asked her where Irene's room was. Brigida indicated the
place and upon further inquiry also said that Irene was sleeping with
her paramour. Brigida trembling, immediately returned to her own
room which was very near that occupied by Irene and her paramour.
Defendants Oanis and Galanta then went to the room of Irene, and
an seeing a man sleeping with his back towards the door where they
were, simultaneously or successively fired at him with their .32 and .
45 caliber revolvers. Awakened by the gunshots, Irene saw her
paramour already wounded, and looking at the door where the shots
came, she saw the defendants still firing at him. Shocked by the
entire scene. Irene fainted; it turned out later that the person shot
and killed was not the notorious criminal Anselmo Balagtas but a
peaceful and innocent citizen named Serapio Tecson, Irene's
paramour. The Provincial Inspector, informed of the killing, repaired
to the scene and when he asked as to who killed the deceased.
Galanta, referring to himself and to Oanis, answered: "We two, sir."
The corpse was thereafter brought to the provincial hospital and
upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds
inflicted by a .32 and a .45 caliber revolvers were found on Tecson's
body which caused his death.

These are the facts as found by the trial court and fully supported by
the evidence, particularly by the testimony of Irene Requinea.
Appellants gave, however, a different version of the tragedy.
According to Appellant Galanta, when he and chief of police Oanis
arrived at the house, the latter asked Brigida where Irene's room
was. Brigida indicated the place, and upon further inquiry as to the
whereabouts of Anselmo Balagtas, she said that he too was sleeping
in the same room. Oanis went to the room thus indicated and upon
opening the curtain covering the door, he said: "If you are Balagtas,
stand up." Tecson, the supposed Balagtas, and Irene woke up and
as the former was about to sit up in bed. Oanis fired at him.
Wounded, Tecson leaned towards the door, and Oanis receded and
shouted: "That is Balagtas." Galanta then fired at Tecson.
On the other hand, Oanis testified that after he had opened the
curtain covering the door and after having said, "if you are Balagtas
stand up." Galanta at once fired at Tecson, the supposed Balagtas,
while the latter was still lying on bed, and continued firing until he
had exhausted his bullets: that it was only thereafter that he, Oanis,
entered the door and upon seeing the supposed Balagtas, who was
then apparently watching and picking up something from the floor, he
fired at him.
The trial court refused to believe the appellants. Their testimonies
are certainly incredible not only because they are vitiated by a
natural urge to exculpate themselves of the crime, but also because
they are materially contradictory. Oasis averred that be fired at
Tecson when the latter was apparently watching somebody in an
attitudes of picking up something from the floor; on the other hand,
Galanta testified that Oasis shot Tecson while the latter was about to
sit up in bed immediately after he was awakened by a noise. Galanta
testified that he fired at Tecson, the supposed Balagtas, when the
latter was rushing at him. But Oanis assured that when Galanta shot
Tecson, the latter was still lying on bed. It is apparent from these
contradictions that when each of the appellants tries to exculpate
himself of the crime charged, he is at once belied by the other; but
their mutual incriminating averments dovetail with and corroborate

substantially, the testimony of Irene Requinea. It should be recalled

that, according to Requinea, Tecson was still sleeping in bed when
he was shot to death by appellants. And this, to a certain extent, is
confirmed by both appellants themselves in their mutual
recriminations. According, to Galanta, Oanis shot Tecson when the
latter was still in bed about to sit up just after he was awakened by a
noise. And Oanis assured that when Galanta shot Tecson, the latter
was still lying in bed. Thus corroborated, and considering that the
trial court had the opportunity to observe her demeanor on the stand,
we believe and so hold that no error was committed in accepting her
testimony and in rejecting the exculpatory pretensions of the two
appellants. Furthermore, a careful examination of Irene's testimony
will show not only that her version of the tragedy is not concocted but
that it contains all indicia of veracity. In her cross-examination, even
misleading questions had been put which were unsuccessful, the
witness having stuck to the truth in every detail of the occurrence.
Under these circumstances, we do not feel ourselves justified in
disturbing the findings of fact made by the trial court.
The true fact, therefore, of the case is that, while Tecson was
sleeping in his room with his back towards the door, Oanis and
Galanta, on sight, fired at him simultaneously or successively,
believing him to be Anselmo Balagtas but without having made
previously any reasonable inquiry as to his identity. And the question
is whether or not they may, upon such fact, be held responsible for
the death thus caused to Tecson. It is contended that, as appellants
acted in innocent mistake of fact in the honest performance of their
official duties, both of them believing that Tecson was Balagtas, they
incur no criminal liability. Sustaining this theory in part, the lower
court held and so declared them guilty of the crime of homicide
through reckless imprudence. We are of the opinion, however, that,
under the circumstances of the case, the crime committed by
appellants is murder through specially mitigated by circumstances to
be mentioned below.
In support of the theory of non-liability by reasons of honest mistake
of fact, appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488.

The maxim is ignorantia facti excusat, but this applies only when the
mistake is committed without fault or carelessness. In the Ah Chong
case, defendant therein after having gone to bed was awakened by
someone trying to open the door. He called out twice, "who is there,"
but received no answer. Fearing that the intruder was a robber, he
leaped from his bed and called out again., "If you enter the room I
will kill you." But at that precise moment, he was struck by a chair
which had been placed against the door and believing that he was
then being attacked, he seized a kitchen knife and struck and fatally
wounded the intruder who turned out to be his room-mate. A
common illustration of innocent mistake of fact is the case of a man
who was marked as a footpad at night and in a lonely road held up a
friend in a spirit of mischief, and with leveled, pistol demanded his
money or life. He was killed by his friend under the mistaken belief
that the attack was real, that the pistol leveled at his head was
loaded and that his life and property were in imminent danger at the
hands of the aggressor. In these instances, there is an innocent
mistake of fact committed without any fault or carelessness because
the accused, having no time or opportunity to make a further inquiry,
and being pressed by circumstances to act immediately, had no
alternative but to take the facts as they then appeared to him, and
such facts justified his act of killing. In the instant case, appellants,
unlike the accused in the instances cited, found no circumstances
whatsoever which would press them to immediate action. The person
in the room being then asleep, appellants had ample time and
opportunity to ascertain his identity without hazard to themselves,
and could even effect a bloodless arrest if any reasonable effort to
that end had been made, as the victim was unarmed, according to
Irene Requinea. This, indeed, is the only legitimate course of action
for appellants to follow even if the victim was really Balagtas, as they
were instructed not to kill Balagtas at sight but to arrest him, and to
get him dead or alive only if resistance or aggression is offered by
him.

escapes, and protect himself from bodily harm (People vs. Delima,
46 Phil, 738), yet he is never justified in using unnecessary force or
in treating him with wanton violence, or in resorting to dangerous
means when the arrest could be effected otherwise (6 C.J.S., par.
13, p. 612). The doctrine is restated in the new Rules of Court thus:
"No unnecessary or unreasonable force shall be used in making an
arrest, and the person arrested shall not be subject to any greater
restraint than is necessary for his detention." (Rule 109, sec. 2, par.
2). And a peace officer cannot claim exemption from criminal liability
if he uses unnecessary force or violence in making an arrest (5 C.J.,
p. 753; U.S.vs. Mendoza, 2 Phil., 109). It may be true that Anselmo
Balagtas was a notorious criminal, a life-termer, a fugitive from
justice and a menace to the peace of the community, but these facts
alone constitute no justification for killing him when in effecting his
arrest, he offers no resistance or in fact no resistance can be offered,
as when he is asleep. This, in effect, is the principle laid down,
although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242).

Although an officer in making a lawful arrest is justified in using such

force as is reasonably necessary to secure and detain the offender,
overcome his resistance, prevent his escape, recapture him if he

The crime committed by appellants is not merely criminal negligence,

the killing being intentional and not accidental. In criminal
negligence, the injury caused to another should be unintentional, it

It is, however, suggested that a notorious criminal "must be taken by

storm" without regard to his right to life which he has by such
notoriety already forfeited. We may approve of this standard of
official conduct where the criminal offers resistance or does
something which places his captors in danger of imminent attack.
Otherwise we cannot see how, as in the present case, the mere fact
of notoriety can make the life of a criminal a mere trifle in the hands
of the officers of the law. Notoriety rightly supplies a basis for
redoubled official alertness and vigilance; it never can justify
precipitate action at the cost of human life. Where, as here, the
precipitate action of the appellants has cost an innocent life and
there exist no circumstances whatsoever to warrant action of such
character in the mind of a reasonably prudent man, condemnation
not condonation should be the rule; otherwise we should offer a
premium to crime in the shelter of official actuation.

being simply the incident of another act performed without malice.

(People vs. Sara, 55 Phil., 939). In the words of Viada, "para que se
celifique un hecho de imprudencia es preciso que no haya mediado
en el malicia ni intencion alguna de daar; existiendo esa intencion,
debera calificarse el hecho del delito que ha producido, por mas que
no haya sido la intencion del agente el causar un mal de tanta
gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal
Comentado, 5.a ed. pag. 7). And, as once held by this Court, a
deliberate intent to do an unlawful act is essentially inconsistent with
the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232;
People vs. Bindor, 56 Phil., 16), and where such unlawful act is
wilfully done, a mistake in the identity of the intended victim cannot
be considered as reckless imprudence (People vs. Gona, 54 Phil.,
605) to support a plea of mitigated liability.
As the deceased was killed while asleep, the crime committed is
murder with the qualifying circumstance ofalevosia. There is,
however, a mitigating circumstance of weight consisting in the
incomplete justifying circumstance defined in article 11, No. 5, of the
Revised Penal Code. According to such legal provision, a person
incurs no criminal liability when he acts in the fulfillment of a duty or
in the lawful exercise of a right or office. There are two requisites in
order that the circumstance may be taken as a justifying one: (a) that
the offender acted in the performance of a duty or in the lawful
exercise of a right; and (b) that the injury or offense committed be the
necessary consequence of the due performance of such duty or the
lawful exercise of such right or office. In the instance case, only the
first requisite is present appellants have acted in the performance
of a duty. The second requisite is wanting for the crime by them
committed is not the necessary consequence of a due performance
of their duty. Their duty was to arrest Balagtas or to get him dead or
alive if resistance is offered by him and they are overpowered. But
through impatience or over-anxiety or in their desire to take no
chances, they have exceeded in the fulfillment of such duty by killing
the person whom they believed to be Balagtas without any
resistance from him and without making any previous inquiry as to
his identity. According to article 69 of the Revised Penal Code, the

penalty lower by one or two degrees than that prescribed by law

shall, in such case, be imposed.
For all the foregoing, the judgment is modified and appellants are
hereby declared guilty of murder with the mitigating circumstance
above mentioned, and accordingly sentenced to an indeterminate
penalty of from five (5) years of prision correctional to fifteen (15)
years of reclusion temporal, with the accessories of the law, and to
pay the heirs of the deceased Serapio Tecson jointly and severally
an indemnity of P2,000, with costs.
G.R. No. L-1896

February 16, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RAFAEL BALMORES Y CAYA, defendant-appellant.
OZAETA, J.:
Appellant, waiving the right to be assisted by counsel, pleaded guilty
to the following information filed against him in the Court of First
Instance of Manila:
The undersigned accuses Rafael Balmores y Caya of
attempted estafa through falsification of a security,
committed as follows:
That on or about the 22nd day of September, 1947, in the
City of Manila, Philippines, the said accused did then and
there wilfully, unlawfully and feloniously commence the
commission of the crime of estafa through falsification of a
security directly by overt acts, to wit; by then and there
tearing off at the bottom in a cross-wise direction a portion of
a genuine 1/8 unit Philippine Charity Sweepstakes ticket
thereby removing the true and real unidentified number of
same and substituting and writing in ink at the bottom on the
left side of said ticket the figure or number 074000 thus
making the said ticket bear the said number 074000, which

is a prize-winning number in the Philippine Charity

Sweepstakes draw last June 29, 1947, and presenting the
said ticket so falsified on said date, September 22, 1947, in
the Philippine Charity Sweepstakes Office for the purpose of
exchanging the same for the corresponding cash that said
number has won, fraudulently pretending in said office that
the said 1/8 unit of a Philippine Charity Sweepstakes ticket is
genuine and that he is entitled to the corresponding amount
of P359.55 so won by said ticket in the Philippine Charity
Sweepstakes draw on said date, June 29, 1947, but the said
accused failed to perform all the acts of execution which
would have produce the crime of estafa through falsification
of a security as a consequence by reason of some causes
other than this spontaneous desistance, to wit: one Bayani
Miller, an employee to whom the said accused presented
said ticket in the Philippine Charity Sweepstakes Office
discovered that the said ticket as presented by the said
accused was falsified and immediately thereafter he called
for a policeman who apprehended and arrested the said
accused right then and there.
Contrary to law.

(Sgd.)
LORENZO
Assistant City Fiscal

RELOVA

and was sentenced by Judge Emilio Pena to suffer not less than 10
years and 1 day of prision mayor and not more than 12 years and 1
day of reclusion temporal, and to pay a fine of P100 and the costs.
From that sentence he appealed to this court, contending (1) that the
facts and (2) that the trial court lacked jurisdiction to convict him on a
plea of guilty because, being illiterate, he was not assisted by
counsel.

In support of the first contention, counsel for the appellant argues

that there could be so could be no genuine 1/8 unit Philippine Charity
Sweepstakes ticket for the June 29, 1947, draw; that this court has
judicial notice that the Philippine Charity Sweepstakes Office issued
only four 1/4 units for each ticket for the said draw of June 29, 1947;
that the information does not show that the true and real unidentified
number of the ticket alleged to have been torn was not and could not
be 074000; that the substitution and writing in ink of the said number
074000 was not falsification where the true and real number of the
ticket so torn was 074000.
This contention is based on assumption not borne out by the record.
The ticket alleged to have been falsified is before us and it appears
to be a 1/8 unit. We cannot take judicial notice of what is not of
common knowledge. If relevant, should have been proved. But if it is
true that the Philippine Charity Sweepstakes Office did not issue 1/8
but only 1/4 units of tickets for the June 29, 1947, draw, that would
only strengthen the theory of the prosecution that the 1/8 unit of a
ticket which appellant presented to the Philippine Charity
Sweepstakes Office was spurious. The assumption that the true and
real unidentified number of the ticket alleged to have been torn was
the winning number 074000, is likewise not supported by the record.
The information to which appellant pleaded guilty alleged that the
appellant removed the true and real unidentified number of the ticket
and substituted and wrote in ink at the bottom on the left side of said
ticket the figure or number 074000. It is obvious that there would
have been no need of removal and substitution if the original number
on the ticket was the same as that which appellant wrote in ink in lieu
thereof.
The second contention appears to be based on a correct premises
but wrong conclusion. The fact that appellant was illiterate did not
deprive the trial court of jurisdiction assisted by counsel. The
decision expressly states that appellant waived the right to be
assisted by counsel, and we know of no law against such waiver.
It may be that appellant was either reckless or foolish in believing
that a falsification as patent as that which he admitted to have
perpetrated would succeed; but the recklessness and clumsiness of
the falsification did not make the crime impossible within the purview

of paragraph 2, article 4, in relation to article 59, of the Revised

Penal Code. Examples of an impossible crime, which formerly was
not punishable but is now under article 59 of the Revised Penal
Code, are the following: (1) When one tries to kill another by putting
in his soup a substance which he believes to be arsenic when in fact
it is common salt; and (2) when one tries to murder a corpse.
(Guevara, Commentaries on the Revised Penal Code, 4th ed., page
15; decision, Supreme Court of Spain, November 26, 1879; 12 Jur.
Crim., 343.) Judging from the appearance of the falsified ticket in
question, we are not prepared to say that it would have been
impossible for the appellant to consummate the crime of estafa thru
falsification of said ticket if the clerk to whom it was presented for the
payment had not exercised due care.
The penalty imposed by article 166 for the forging or falsification of
"treasury or bank notes or certificates or other obligations and
securities" is reclusion temporal in its minimum period and a fine not
to exceed P10,000, if the document which has been falsified,
counterfeited, or altered is an obligation or security of the United
States or of the Philippine Islands. This being a complex crime of
attempted estafa through falsification of an obligation or security of
the Philippines, the penalty should be imposed in its maximum
period in accordance with article 48. Taking into consideration the
mitigating circumstance of lack of instruction, and applying the
Indeterminate Sentence Law, the minimum cannot be lower
than prision mayor in its maximum period, which is 10 years and 1
day to 12 years. It results, therefore, that the penalty imposed by the
trial court is correct.
The alteration, or even destruction, of a losing sweepstakes ticket
could cause no harm to anyone and would not constitute a crime
were it not for the attempt to cash the ticket so altered as a prizewinning number. So in the ultimate analysis appellant's real offense
was the attempt to commit estafa (punishable with eleven days
ofarresto menor); but technically and legally he has to suffer for the
serious crime of falsification of a government obligation. We realize
that the penalty is too severe, considering all the circumstances of
the case, but we have no discretion to impose a lower penalty than
authorized by law. The exercise of clemency and not in this court.

We are constrained to affirm the sentence appealed from, with costs

against the appellant.
Moran, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes
and Torres, JJ., concur.
GEMMA T. JACINTO,
Petitioner,

G.R. No. 162540

Present:

- versus -

PEOPLE OF THE PHILIPPINES,

YNARES-SANTIAGO, J.,
Chairperson,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.
Promulgated:

Respondent.
July 13, 2009
x----------------------------------------------------------------------------------------x
DECISION

PERALTA, J.:
Before us is a petition for review on certiorari filed by
petitioner Gemma T. Jacinto seeking the reversal of the Decision [1] of
the Court of Appeals (CA) in CA-G.R. CR No. 23761
dated December 16, 2003, affirming petitioner's conviction of the
crime of Qualified Theft, and its Resolution [2] dated March 5,
2004 denying petitioner's motion for reconsideration.

Petitioner, along with two other women, namely, Anita Busog

de Valencia y Rivera and Jacqueline Capitle, was charged before the
Regional Trial Court (RTC) ofCaloocan City, Branch 131, with the
crime of Qualified Theft, allegedly committed as follows:
That on or about and sometime in the month
of July 1997, in Kalookan City, Metro Manila, and
within the jurisdiction of this Honorable Court, the
above-named accused, conspiring together and
mutually helping one another, being then all
employees of MEGA FOAM INTERNATIONAL INC.,
herein represented by JOSEPH DYHENGCO Y CO,
and as such had free access inside the aforesaid
establishment, with grave abuse of trust and
confidence reposed upon them with intent to gain
and without the knowledge and consent of the owner
thereof, did then and there willfully, unlawfully and
feloniously take, steal and deposited in their own
account, Banco De Oro Check No. 0132649 dated
July 14, 1997 in the sum of P10,000.00, representing
payment made by customer Baby Aquino to the
Mega Foam Int'l. Inc. to the damage and prejudice of
the latter in the aforesaid stated amount
of P10,000.00.
CONTRARY TO LAW.[3]

The prosecution's evidence, which both the RTC and the CA found to
be more credible, reveals the events that transpired to be as follows.
In the month of June 1997, Isabelita Aquino Milabo, also known as
Baby Aquino, handed petitioner Banco De Oro (BDO) Check Number
0132649 postdated July 14, 1997 in the amount of P10,000.00. The

check was payment for Baby Aquino's purchases from Mega Foam
Int'l., Inc., and petitioner was then the collector of Mega
Foam. Somehow, the check was deposited in the Land Bank account
of Generoso Capitle, the husband of Jacqueline Capitle; the latter is
the sister of petitioner and the former pricing, merchandising and
inventory clerk of Mega Foam.
Meanwhile, Rowena Ricablanca, another employee of Mega Foam,
received a phone call sometime in the middle of July from one of
their customers, Jennifer Sanalila. The customer wanted to know if
she could issue checks payable to the account of Mega Foam,
instead of issuing the checks payable to CASH. Said customer had
apparently been instructed by Jacqueline Capitle to make check
payments to Mega Foam payable to CASH. Around that time,
Ricablanca also received a phone call from an employee of Land
Bank, Valenzuela Branch, who was looking for Generoso
Capitle. The reason for the call was to inform Capitle that the subject
BDO check deposited in his account had been dishonored.
Ricablanca then phoned accused Anita Valencia, a former
employee/collector of Mega Foam, asking the latter to inform
Jacqueline Capitle about the phone call from Land Bank regarding
the bounced check. Ricablanca explained that she had to call and
relay the message through Valencia, because the Capitles did not
have a phone; but they could be reached through Valencia, a
neighbor and former co-employee of Jacqueline Capitle at Mega
Foam.
Valencia then told Ricablanca that the check came from Baby
Aquino, and instructed Ricablanca to ask Baby Aquino to replace the
check with cash. Valencia also told Ricablanca of a plan to take the
cash and divide it equally into four: for herself, Ricablanca, petitioner
Jacinto and Jacqueline Capitle. Ricablanca, upon the advise of Mega
Foam's accountant, reported the matter to the owner of Mega Foam,
Joseph Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to
confirm that the latter indeed handed petitioner a BDO check

for P10,000.00 sometime in June 1997 as payment for her

purchases from Mega Foam.[4] Baby Aquino further testified that,
sometime in July 1997, petitioner also called her on the phone to tell
her that the BDO check bounced.[5] Verification from company
records showed that petitioner never remitted the subject check to
Mega Foam. However, Baby Aquino said that she had already paid
Mega Foam P10,000.00 cash in August 1997 as replacement for the
dishonored check.[6]
Generoso Capitle, presented as a hostile witness, admitted
depositing the subject BDO check in his bank account, but explained
that the check came into his possession when some unknown
woman arrived at his house around the first week of July 1997 to
have the check rediscounted. He parted with his cash in exchange
for the check without even bothering to inquire into the identity of the
woman or her address. When he was informed by the bank that the
check bounced, he merely disregarded it as he didnt know where to
find the woman who rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of
Investigation (NBI) and worked out an entrapment operation with its
agents. Ten pieces of P1,000.00 bills provided by Dyhengco were
marked and dusted with fluorescent powder by the NBI. Thereafter,
the bills were given to Ricablanca, who was tasked to pretend that
she was going along with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the latter's
house. Petitioner, who was then holding the bounced BDO check,
handed over said check to Ricablanca. They originally intended to
proceed to Baby Aquino's place to have the check replaced with
cash, but the plan did not push through. However, they agreed to
meet again on August 21, 2007.
On the agreed date, Ricablanca again went to petitioners
house, where she met petitioner and Jacqueline Capitle. Petitioner,
her husband, and Ricablanca went to the house of Anita Valencia;
Jacqueline Capitle decided not to go with the group because she
decided to go shopping. It was only petitioner, her husband,
Ricablanca and Valencia who then boarded petitioner's jeep and

went on to Baby Aquino's factory. Only Ricablanca alighted from the

jeep and entered the premises of Baby Aquino, pretending that she
was getting cash from Baby Aquino. However, the cash she actually
brought out from the premises was the P10,000.00 marked money
previously given to her by Dyhengco. Ricablanca divided the money
and upon returning to the jeep, gave P5,000.00 each to Valencia and
petitioner. Thereafter, petitioner and Valencia were arrested by NBI
agents, who had been watching the whole time.
Petitioner and Valencia were brought to the NBI office where the
Forensic Chemist found fluorescent powder on the palmar and
dorsal aspects of both of their hands. This showed that petitioner
and Valencia handled the marked money. The NBI filed a criminal
case for qualified theft against the two and one Jane Doe who was
later identified as Jacqueline Capitle, the wife of Generoso Capitle.
The defense, on the other hand, denied having taken the subject
check and presented the following scenario.
Petitioner admitted that she was a collector for Mega Foam until she
resigned on June 30, 1997, but claimed that she had stopped
collecting payments from Baby Aquino for quite some time before her
resignation from the company. She further testified that, on the day of
the arrest, Ricablanca came to her mothers house, where she was
staying at that time, and asked that she accompany her (Ricablanca)
to Baby Aquino's house. Since petitioner was going for a pre-natal
check-up at the Chinese General Hospital, Ricablanca decided to
hitch a ride with the former and her husband in their jeep going to
Baby Aquino's place in Caloocan City. She allegedly had no idea why
Ricablanca asked them to wait in their jeep, which they parked
outside the house of Baby Aquino, and was very surprised when
Ricablanca placed the money on her lap and the NBI agents
arrested them.
Anita Valencia also admitted that she was the cashier of Mega Foam
until she resigned on June 30, 1997. It was never part of her job to
collect payments from customers.According to her, on the morning

of August 21, 1997, Ricablanca called her up on the phone, asking if

she (Valencia) could accompany her (Ricablanca) to the house of
Baby Aquino. Valencia claims that she agreed to do so, despite her
admission during cross-examination that she did not know where
Baby Aquino resided, as she had never been to said house. They
then met at the house of petitioner's mother, rode the jeep of
petitioner and her husband, and proceeded to Baby Aquino's
place. When they arrived at said place, Ricablanca alighted, but
requested them to wait for her in the jeep. After ten minutes,
Ricablanca came out and, to her surprise, Ricablanca gave her
money and so she even asked, What is this? Then, the NBI agents
arrested them.

IN VIEW OF THE FOREGOING, the decision of the

trial court is MODIFIED, in that:

The trial of the three accused went its usual course and, on October
4, 1999, the RTC rendered its Decision, the dispositive portion of
which reads:

A Partial Motion for Reconsideration of the foregoing CA

Decision was filed only for petitioner Gemma Tubale Jacinto, but the
same was denied per Resolution datedMarch 5, 2004.

WHEREFORE, in view of the foregoing, the Court

finds accused Gemma Tubale De Jacinto y
Latosa, Anita Busog De Valencia y Rivera and
Jacqueline Capitle GUILTY beyond reasonable
doubt of the crime of QUALIFIED THEFT and each
of them is hereby sentenced to suffer imprisonment
of FIVE (5) YEARS, FIVE (5) MONTHS AND
ELEVEN (11) DAYS,as minimum, to SIX (6)
YEARS, EIGHT (8) MONTHS AND TWENTY (20)
DAYS, as maximum.

Hence, the present Petition for Review on Certiorari filed by petitioner

alone, assailing the Decision and Resolution of the CA. The issues
raised in the petition are as follows:

SO ORDERED.[7]
The three appealed to the CA and, on December 16, 2003, a
Decision was promulgated, the dispositive portion of which reads,
thus:

(a) the sentence against accused Gemma

Jacinto stands;
(b) the sentence against accused
Anita Valencia is reduced to 4
months arresto mayor medium.
(c) The accused Jacqueline Capitle is
acquitted.
SO ORDERED.

1.

Whether or not petitioner can be convicted

of a crime not charged in the information;

2.

Whether or not a worthless check can be

the object of theft; and

3. Whether or not the prosecution has proved

petitioner's guilt beyond
reasonable doubt.[8]
The petition deserves considerable thought.
The prosecution tried to establish the following pieces of evidence to
constitute the elements of the crime of qualified theft defined under
Article 308, in relation to Article 310, both of the Revised Penal Code:

(1) the taking of personal property - as shown by the fact that

petitioner, as collector for Mega Foam, did not remit the customer's
check payment to her employer and, instead, appropriated it for
herself; (2) said property belonged to another the check belonged
to Baby Aquino, as it was her payment for purchases she made; (3)
the taking was done with intent to gain this is presumed from the act
of unlawful taking and further shown by the fact that the check was
deposited to the bank account of petitioner's brother-in-law; (4) it was
done without the owners consent petitioner hid the fact that she had
received the check payment from her employer's customer by not
remitting the check to the company; (5) it was accomplished without
the use of violence or intimidation against persons, nor of force upon
things the check was voluntarily handed to petitioner by the
customer, as she was known to be a collector for the company; and
(6) it was done with grave abuse of confidence petitioner is
admittedly entrusted with the collection of payments from customers.
However, as may be gleaned from the aforementioned Articles of the
Revised Penal Code, the personal property subject of the theft
must have some value, as the intention of the accused is
to gain from the thing stolen. This is further bolstered by Article
309, where the law provides that the penalty to be imposed on the
accused is dependent on the value of the thing stolen.
In this case, petitioner unlawfully took the postdated check belonging
to Mega Foam, but the same was apparently without value, as it was
subsequently dishonored. Thus, the question arises on whether the
crime of qualified theft was actually produced.
The Court must resolve the issue in the negative.
Intod v. Court of Appeals[9] is highly instructive and applicable to the
present case. In Intod, the accused, intending to kill a person,
peppered the latters bedroom with bullets, but since the intended
victim was not home at the time, no harm came to him. The trial court
and the CA held Intod guilty of attempted murder. But upon review by
this Court, he was adjudged guilty only of an impossible crime as

defined and penalized in paragraph 2, Article 4, in relation to Article

59, both of the Revised Penal Code, because of the factual
impossibility of producing the crime. Pertinent portions of said
provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal
responsibility shall be incurred:
xxxx
2.

By
any
person
performing an act which
would be an offense against
persons or property, were it
not
for
the inherent
impossibility
of
its
accomplishment or
on
account of the employment
of inadequate to ineffectual
means. (emphasis supplied)
Article 59. Penalty to be imposed in case of failure to
commit the crime because the means employed or
the aims sought are impossible. - When the person
intending to commit an offense has already
performed the acts for the execution of the same but
nevertheless the crime was not produced by reason
of the fact that the act intended was by its nature one
of impossible accomplishment or because the means
employed by such person are essentially inadequate
to produce the result desired by him, the court,
having in mind the social danger and the degree of
criminality shown by the offender, shall impose upon
him the penalty of arresto mayor or a fine ranging
from 200 to 500 pesos.
Thus, the requisites of an impossible crime are: (1) that the act
performed would be an offense against persons or property; (2) that

the act was done with evil intent; and (3) that its accomplishment was
inherently impossible, or the means employed was either inadequate
or ineffectual. The aspect of the inherent impossibility of
accomplishing the intended crime under Article 4(2) of the Revised
Penal Code was further explained by the Court in Intod[10] in this
wise:
Under this article, the act performed by the offender
cannot produce an offense against persons or
property because: (1) the commission of the offense
is inherently impossible of accomplishment; or (2)
the means employed is either (a) inadequate or (b)
ineffectual.
That the offense cannot be produced because the
commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the
offender must be by its nature one impossible of
accomplishment. There must be either (1) legal
impossibility, or (2) physical impossibility of
accomplishing the intended act in order to qualify the
act as an impossible crime.
Legal impossibility occurs where the intended acts,
even if completed, would not amount to a crime.
xxxx
The impossibility of killing a person already dead
falls in this category.
On the other hand, factual impossibility occurs when
extraneous circumstances unknown to the actor or
beyond his control prevent the consummation of the
intended crime. x x x [11]

In Intod, the Court went on to give an example of an offense that

involved factual impossibility, i.e., a man puts his hand in the coat
pocket of another with the intention to steal the latter's wallet, but
gets nothing since the pocket is empty.
Herein petitioner's case is closely akin to the above example of
factual impossibility given in Intod. In this case, petitioner performed
all the acts to consummate the crime ofqualified theft, which is a
crime against property. Petitioner's evil intent cannot be denied, as
the mere act of unlawfully taking the check meant for Mega Foam
showed her intent to gain or be unjustly enriched. Were it not for the
fact that the check bounced, she would have received the face value
thereof, which was not rightfully hers. Therefore, it was only due to
the extraneous circumstance of the check being unfunded, a fact
unknown to petitioner at the time, that prevented the crime from
being produced. The thing unlawfully taken by petitioner turned out to
be absolutely worthless, because the check was eventually
dishonored, and Mega Foam had received the cash to replace the
value of said dishonored check.
The fact that petitioner was later entrapped receiving the P5,000.00
marked money, which she thought was the cash replacement for the
dishonored check, is of no moment. The Court held in Valenzuela v.
People[12] that under the definition of theft in Article 308 of the
Revised Penal Code, there is only one operative act of execution by
the actor involved in theft the taking of personal property of
another. Elucidating further, the Court held, thus:
x x x Parsing through the statutory definition of theft
under Article 308, there is one apparent answer
provided in the language of the law that theft is
already produced upon the tak[ing of] personal
property of another without the latters consent.
xxxx

x x x when is the crime of theft produced? There

would be all but certain unanimity in the position that
theft is produced when there is deprivation of
personal property due to its taking by one with intent
to gain. Viewed from that perspective, it is immaterial
to the product of the felony that the offender, once
having committed all the acts of execution for theft, is
able or unable to freely dispose of the property
stolen since the deprivation from the owner alone
has already ensued from such acts of execution. x
xx
xxxx
x x x we have, after all, held that unlawful taking,
or apoderamiento, is deemed complete from the
moment the offender gains possession of the thing,
even if he has no opportunity to dispose of the same.
xxx
x x x Unlawful taking, which is the deprivation of
ones personal property, is the element which
produces the felony in its consummated stage. x x
x [13]
From the above discussion, there can be no question that as of the
time that petitioner took possession of the check meant for
Mega Foam, she had performed all the acts to consummate the
crime of theft, had it not been impossible of accomplishment in
this case. The circumstance of petitioner receiving the P5,000.00
cash as supposed replacement for the dishonored check was no
longer necessary for the consummation of the crime of qualified theft.
Obviously, the plan to convince Baby Aquino to give cash as
replacement for the check was hatched only after the check had
been dishonored by the drawee bank. Since the crime of theft is not

a continuing offense, petitioner's act of receiving the cash

replacement should not be considered as a continuation of the
theft. At most, the fact that petitioner was caught receiving the
marked money was merely corroborating evidence to strengthen
proof of her intent to gain.
Moreover, the fact that petitioner further planned to have the
dishonored check replaced with cash by its issuer is a different and
separate fraudulent scheme. Unfortunately, since said scheme was
not included or covered by the allegations in the Information, the
Court cannot pronounce judgment on the accused; otherwise, it
would violate the due process clause of the Constitution. If at all, that
fraudulent scheme could have been another possible source of
criminal liability.
IN VIEW OF THE FOREGOING, the petition is GRANTED. The
Decision of the Court of Appeals, dated December 16, 2003, and its
Resolution dated March 5, 2004, areMODIFIED. Petitioner Gemma
T. Jacinto is found GUILTY of an IMPOSSIBLE CRIME as defined
and penalized in Articles 4, paragraph 2, and 59 of the Revised
Penal Code, respectively. Petitioner is sentenced to suffer the
penalty of six (6) months of arrresto mayor, and to pay the costs.
SO ORDERED.
G.R. Nos. 119987-88 October 12, 1995
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. LORENZO B. VENERACION, Presiding Judge of the
Regional Trial Court, National Capital Judicial Region, Branch
47, Manila, HENRY LAGARTO y PETILLA and ERNESTO
CORDERO, respondents.
KAPUNAN, J.:

The sole issue in the case at bench involves a question of law. After
finding that an accused individual in a criminal case has, on the
occasion of Rape, committed Homicide, is the judge allowed any
discretion in imposingeither the penalty of Reclusion Perpetua or
Death?
The facts antecedent to the case before this Court, as narrated by
petitioner, 1 involve the perpetration of acts so bizarre and devoid of
humanity as to horrify and numb the senses of all civilized men:
On August 2, 1994, the cadaver of a young girl, later
identified as Angel Alquiza wrapped in a sack and
yellow table cloth tied with a nylon cord with both
feet and left hand protruding from it was seen
floating along Del Pan St. near the corner of
Lavesares St., Binondo, Manila.
When untied and removed from its cover, the lifeless
body of the victim was seen clad only in a light
colored duster without her panties, with gaping
wounds on the left side of the face, the left chin, left
ear, lacerations on her genitalia, and with her head
bashed in.
On the basis of sworn statements of witnesses, booking sheets,
arrest reports and the necropsy report of the victim, Abundio
Lagunday, a.k.a. Jr. Jeofrey of no fixed address, and Henry Lagarto y
Petilla, of 288 Area H. Parola Compound, Tondo, Manila were later
charged with the crime of Rape with Homicide in an Information
dated August 8, 1994 filed with the Regional Trial Court of Manila,
National Capital Judicial Region. Said Information, docketed as
Criminal Case No. 94-138071, reads:
That on or about August 2, 1994, in the City of
Manila, Philippines, the said accused, conspiring
and confederating together with one alias "LANDO"
and other persons whose true names, identifies and

present whereabouts are still unknown and helping

one another, with treachery, taking advantage of
their superior strength and nocturnity, and ignominy,
and with the use of force and violence, that is, by
taking ANGEL ALQUIZA y LAGMAN into a
warehouse, covering her mouth, slashing her
vagina, hitting her head with a thick piece of wood
and stabbing her neck did then and there wilfully,
unlawfully and feloniously have carnal knowledge of
the person of said ANGEL ALQUIZA y LAGMAN, a
minor, seven (7) years of age, against the latter's will
and consent and on said occasion the said
ABUNDIO LAGUNDAY, a.k.a. "LANDO" and others,
caused her fatal injuries which were the direct cause
of her death immediately thereafter.
CONTRARY TO LAW.
Subsequently thereafter, Ernesto Cordero y
Maristela, a.k.a. "Booster," of 1198 Sunflower St.,
Tondo, Manila, Rolando Manlangit y Mamerta, a.k.a.
"Lando," of 1274 Kagitingan St., Tondo, Manila,
Richard Baltazar y Alino, a.k.a. "Curimao," also of
1274 Kagitingan St., Tondo, Manila, and Catalino
Yaon y Aberin, a.k.a. "Joel," of 1282 Lualhati St.,
Tondo, Manila were accused of the same crime of
Rape with Homicide in an Information dated August
11, 1994, docketed as Criminal Case No. 94138138, allegedly committed as follows:
That on or about the 2nd day of
August, 1994, in the City of Manila,
Philippines, the said accused
conspiring and confederating with
ABUNDIO LAGUNDAY Alias "JR,"
JEOFREY and HENRY LAGARTO y
PETILLA who have already been

charged in the Regional Trial Court

of Manila of the same offense under
Criminal Case No. 94-138071, and
helping one another, with treachery,
taking advantage of their superior
strength
and
nocturnity
and
ignominy, and with the use of force
and violence, that is, by taking
ANGEL ALQUIZA y LAGMAN into a
pedicab, and once helpless, forcibly
bringing her to a nearby warehouse,
covering her mouth, slashing her
vagina, hitting her head with a thick
piece of wood and stabbing her
neck, did then and there wilfully,
unlawfully and feloniously have
carnal knowledge of the person of
said ANGEL ALQUIZA y LAGMAN,
a minor, seven (7) years of age,
against the latter's will and consent
and on said occasion the said
accused
together
with
their
confederates ABUNDIO LAGARTO
y PETILLA caused her fatal injuries
which were the direct cause of her
death immediately thereafter.
CONTRARY TO LAW.
The two criminal cases were consolidated to Branch
47 of the Regional Trial Court of Manila, presided
over by respondent Judge.
Duly arraigned, all the accused, except Abundio
Lagunday who was already dead, (allegedly shot by
police escorts after attempting to fire a gun he was
able to grab from SPO1 D. Vidad on August 12,

1994), pleaded "Not Guilty." Abundio Lagunday was

dropped from the Information.
After trial and presentation of the evidence of the prosecution and
the defense, the trial court rendered a decision 2 on January 31, 1995
finding the defendants Henry Lagarto y Petilla and Ernesto Cordero y
Maristela guilty beyond reasonable doubt of the crime of Rape with
Homicide and sentenced both accused with the "penalty of reclusion
perpetuawith all the accessories provided for by law." 3 Disagreeing
with the sentence imposed, the City Prosecutor of Manila on
February 8, 1995, filed a Motion for Reconsideration, praying that the
Decision be "modified in that the penalty of death be imposed"
against respondents Lagarto and Cordero, in place of the original
penalty (reclusion perpetua). Refusing to act on the merits of the said
Motion for Reconsideration, respondent Judge, on February 10,
1995, issued an Order denying the same for lack of jurisdiction. The
pertinent portion reads:
The Court believes that in the above-entitled cases,
the accused Lagarto and Cordero have complied
with the legal requirements for the perfection of an
appeal. Consequently, for lack of jurisdiction, this
Court cannot take cognizance of the Motion for
Reconsideration of the Public Prosecutor of Manila.
WHEREFORE, the order earlier issued by this Court
regarding the Notices of Appeal filed by both herein
accused is hereby reiterated.
The Clerk of this Court is hereby directed to transmit
the complete records of these cases, together with
the notices of appeal, to the Honorable Supreme
Court, in accordance with Sec. 8, Rule 122 of the
Revised Rules of Criminal Procedure.
SO ORDERED.

Hence, the instant petition.

The trial court's finding of guilt is not at issue in the case at bench.
The basis of the trial court's determination of guilt and its conclusions
will only be subject to our scrutiny at an appropriate time on appeal.
We have thus clinically limited our narration of events to those cold
facts antecedent to the instant case relevant to the determination of
the legal question at hand, i.e., whether or not the respondent judge
acted with grave abuse of discretion and in excess of jurisdiction
when he failed and/or refused to impose the mandatory penalty of
death under Republic Act No. 7659, after finding the accused guilty
of the crime of Rape with Homicide.
We find for petitioner.
Obedience to the rule of law forms the bedrock of our system of
justice. If judges, under the guise of religious or political beliefs were
allowed to roam unrestricted beyond boundaries within which they
are required by law to exercise the duties of their office, then law
becomes meaningless. A government of laws, not of men excludes
the exercise of broad discretionary powers by those acting under its
authority. Under this system, judges are guided by the Rule of Law,
and ought "to protect and enforce it without fear or favor," 4 resist
encroachments by governments, political parties, 5 or even the
interference of their own personal beliefs.
In the case at bench, respondent judge, after weighing the evidence
of the prosecution and the defendant at trial found the accused guilty
beyond reasonable doubt of the crime of Rape with Homicide. Since
the law in force at the time of the commission of the crime for which
respondent judge found the accused guilty was Republic Act No.
7659, he was bound by its provisions.
Section 11 of R.A. No. 7659 provides:
Sec. 11. Article 335 of the same Code is hereby
amended to read as follows:

Art. 335. When and how rape is committed. Rape

is committed by having carnal knowledge of a
woman under any of the following circumstances:
1. By using force or intimidation.
2. When the woman is deprived of reason or
otherwise unconscious; and
3. When the woman is under twelve years of age or
is demented.
The crime of rape shall be punished by reclusion
perpetua.
Whenever the crime of rape is committed with the
use of a deadly weapon or by two or more persons,
the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the
victim has become insane, the penalty shall be
death.
When the rape is attempted or frustrated and a
homicide is committed by reason or on the occasion
thereof, the penalty shall be reclusion perpetua to
death.
When by reason or on the occasion of the rape, a
homicide is committed, the penalty shall be death. . .
.6
Clearly, under the law, the penalty imposable for the crime of Rape
with Homicide is not Reclusion Perpetua but Death. While Republic
Act 7659 punishes cases of ordinary rape with the penalty
of Reclusion Perpetua, it allows judges the discretion depending

on the existence of circumstances modifying the offense committed

to impose the penalty of either Reclusion Perpetua only in the
three instances mentioned therein. Rape with homicide is not one of
these three instances. The law plainly and unequivocably provides
that "[w]hen by reason or on the occasion of rape, a homicide is
committed, the penalty shall be death." The provision leaves no room
for the exercise of discretion on the part of the trial judge to impose a
penalty under the circumstances described, other than a sentence of
death.
We are aware of the trial judge's misgivings in imposing the death
sentence because of his religious convictions. While this Court
sympathizes with his predicament, it is its bounden duty to
emphasize that a court of law is no place for a protracted debate on
the morality or propriety of the sentence, where the law itself
provides for the sentence of death as a penalty in specific and welldefined instances. The discomfort faced by those forced by law to
impose the death penalty is an ancient one, but it is a matter upon
which judges have no choice. Courts are not concerned with the
wisdom, efficacy or morality of laws. In People vs. Limaco 7 we held
that:
[W]hen . . . private opinions not only form part of
their decision but constitute a decisive factor in
arriving at a conclusion and determination of a case
or the penalty imposed, resulting in an illegality and
reversible error, then we are constrained to state our
opinion, not only to correct the error but for the
guidance of the courts. We have no quarrel with the
trial judge or with anyone else, layman or jurist as to
the wisdom or folly of the death penalty. Today there
are quite a number of people who honestly believe
that the supreme penalty is either morally wrong or
unwise or ineffective. However,as long as that
penalty remains in the statute books, and as long as
our criminal law provides for its imposition in certain
cases, it is the duty of judicial officers to respect and

apply the law regardless of their private opinions. It

is a well settled rule that the courts are not
concerned with the wisdom, efficacy or morality of
laws. That question falls exclusively within the
province of the Legislature which enacts them and
the Chief Executive who approves or vetoes them.
The only function of the judiciary is to interpret the
laws and, if not in disharmony with the Constitution,
to apply them. And for the guidance of the members
of the judiciary we feel it incumbent upon us to state
that while they as citizens or as judges may regard a
certain law as harsh, unwise or morally wrong, and
may recommend to the authority or department
concerned, its amendment, modification, or repeal,
still, as long as said law is in force, they must apply it
and give it effect as decreed by the law-making
body. 8
Finally, the Rules of Court mandates that after an adjudication of
guilt, the judge should impose "the proper penalty and civil liability
provided for by the law on the accused." 9 This is not a case of a
magistrate ignorant of the law. This is a case in which a judge, fully
aware of the appropriate provisions of the law, refuses to impose a
penalty to which he disagrees. In so doing, respondent judge acted
without or in excess of his jurisdiction or with grave abuse of
discretion amounting to a lack of jurisdiction in imposing the penalty
of Reclusion Perpetua where the law clearly imposes the penalty of
Death.
WHEREFORE, PREMISES CONSIDERED, the instant petition is
GRANTED. The case is hereby REMANDED to the Regional Trial
Court for the imposition of the penalty of death upon private
respondents in consonance with respondent judge's finding that the
private respondents in the instant case had committed the crime of
Rape with Homicide under Article 335 of the Revised Penal Code, as
amended by Section 11 of Republic Act No. 7659, subject to

automatic review by this Court of the decision imposing the death

penalty.
SO ORDERED.
G.R. No. L-12155

February 2, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
PROTASIO EDUAVE, defendant-appellant.
Manuel Roxas for appellant.
Attorney-General Avancea for appellee.
MORELAND, J.:
We believe that the accused is guilty of frustrated murder.
We are satisfied that there was an intent to kill in this case. A deadly
weapon was used. The blow was directed toward a vital part of the
body. The aggressor stated his purpose to kill, thought he had killed,
and threw the body into the bushes. When he gave himself up he
declared that he had killed the complainant.
There was alevosia to qualify the crime as murder if death had
resulted. The accused rushed upon the girl suddenly and struck her
from behind, in part at least, with a sharp bolo, producing a frightful
gash in the lumbar region and slightly to the side eight and one-half
inches long and two inches deep, severing all of the muscles and
tissues of that part.
The motive of the crime was that the accused was incensed at the
girl for the reason that she had theretofore charged him criminally
before the local officials with having raped her and with being the
cause of her pregnancy. He was her mother's querido and was living
with her as such at the time the crime here charged was committed.

That the accused is guilty of some crime is not denied. The only
question is the precise crime of which he should be convicted. It is
contended, in the first place, that, if death has resulted, the crime
would not have been murder but homicide, and in the second place,
that it is attempted and not frustrated homicide.
As to the first contention, we are of the opinion that the crime
committed would have been murder if the girl had been killed. It is
qualified by the circumstance of alevosia, the accused making a
sudden attack upon his victim from the rear, or partly from the rear,
and dealing her a terrible blow in the back and side with his bolo.
Such an attack necessitates the finding that it was made
treacherously; and that being so the crime would have been qualified
as murder if death had resulted.
As to the second contention, we are of the opinion that the crime was
frustrated and not attempted murder. Article 3 of the Penal Code
defines a frustrated felony as follows:
A felony is frustrated when the offender performs all the acts
of execution which should produce the felony as a
consequence, but which, nevertheless, do not produce it by
reason of causes independent of the will of the perpetrator.
An attempted felony is defined thus:
There is an attempt when the offender commences the
commission of the felony directly by overt acts, and does not
perform all the acts of execution which constitute the felony
by reason of some cause or accident other than his own
voluntarily desistance.
The crime cannot be attempted murder. This is clear from the fact
that the defendant performed all of the acts which should have
resulted in the consummated crime and voluntarily desisted from
further acts. A crime cannot be held to be attempted unless the
offender, after beginning the commission of the crime by overt acts,

is prevented, against his will, by some outside cause from

performing all of the acts which should produce the crime. In other
words, to be an attempted crime the purpose of the offender must be
thwarted by a foreign force or agency which intervenes and compels
him to stop prior to the moment when he has performed all of the
acts which should produce the crime as a consequence, which acts it
is his intention to perform. If he has performed all of the acts which
should
result
in
the
consummation
of
the
crime
and voluntarily desists from proceeding further, it can not be an
attempt. The essential element which distinguishes attempted from
frustrated felony is that, in the latter, there is no intervention of a
foreign or extraneous cause or agency between the beginning of the
commission of the crime and the moment when all of the acts have
been performed which should result in the consummated crime;
while in the former there is such intervention and the offender does
not arrive at the point of performing all of the acts which should
produce the crime. He is stopped short of that point by some cause
apart from his voluntary desistance.
To put it in another way, in case of an attempt the offender never
passes the subjective phase of the offense. He is interrupted and
compelled to desist by the intervention of outside causes before the
subjective phase is passed.
On the other hand, in case of frustrated crimes the subjective phase
is completely passed. Subjectively the crime is complete. Nothing
interrupted the offender while he was passing through the subjective
phase. The crime, however, is not consummated by reason of the
intervention of causes independent of the will of the offender. He did
all that was necessary to commit the crime. If the crime did not result
as a consequence it was due to something beyond his control.
The subjective phase is that portion of the acts constituting the crime
included between the act which begins the commission of the crime
and the last act performed by the offender which, with the prior acts,
should result in the consummated crime. From that time forward the
phase is objective. It may also be said to be that period occupied by

the acts of the offender over which he has control that period
between the point where he begins and the points where
he voluntarily desists. If between these two points the offender is
stopped by reason of any cause outside of his own voluntary
desistance, the subjective phase has not been passed and it is an
attempt. If he is not so stopped but continues until he performs the
last act, it is frustrated.
That the case before us is frustrated is clear.
The penalty should have been thirteen years of cadena
temporal there
being
neither
aggravating
nor
mitigating
circumstance. As so modified, the judgment is affirmed with costs. So
ordered.

GIOVANI SERRANO y CERVANTES,

G.R. No. 175023

Petitioner,
Present:

CARPIO MORALES, J., Chairpers

-

versus -

BRION,
BERSAMIN,
*

ABAD, and

VILLARAMA, JR., JJ.

PEOPLE OF THE PHILIPPINES,
Promulgated:
Respondent.

July 5, 2010
x-----------------------------------------------------------------------------------------x

DECISION

BRION, J.:

We review in this petition for review on certiorari[1] the

decision[2] dated July 20, 2006 of the Court of Appeals (CA) in CAG.R. CR No. 29090, entitled People of the Philippines v. Giovani
Serrano y Cervantes. The CA modified the decision dated October
25, 2004[3] of the Regional Trial Court[4] (RTC), Branch 83, Quezon
City, and found petitioner Giovani Serrano y Cervantes (petitioner)
guilty beyond reasonable doubt of attempted homicide, instead of
frustrated homicide.

THE FACTS

The case stemmed from a brawl involving 15 to 18 members of two

(2) rival groups that occurred at the University of the Philippines,
Diliman, Quezon City (UP) on the evening of March 8, 1999. The
incident resulted in the stabbing of Anthony Galang
(victim). Pinpointed as the victims assailant, the petitioner was
charged on March 11, 1999,[5] with frustrated homicide in an
Information that reads:

That on or about the 8th day of March 1999,

in Quezon City, Philippines, the said accused, with
intent to kill, did then and there willfully, unlawfully
and feloniously attack, assault and employ personal
violence upon the person of one ANTHONY
GALANG Y LAGUNSAD, by then and there stabbing
him on the stomach with a bladed weapon, thus
performing all the acts of execution which should
have produced the crime of homicide, as a
consequence but which nevertheless did not
produce it, by reason of some causes independent
of the will of the accused; that is the timely and able
medical assistance rendered to said ANTHONY
GALANG Y LAGUNSAD which prevented his death,
to the damage and prejudice of the said offended
party.

CONTRARY TO LAW.[6]

On March 20, 2000, the petitioner pleaded not guilty. During

the pre-trial, the prosecution and the defense agreed to dispense
with the testimonies of SPO2 Isagani dela Paz and the records
custodian of East Avenue Medical Center on the basis of the
following stipulations: (1) SPO2 dela Paz was the one who
conducted the investigation; (2) SPO2 dela Paz took the statement
of the victim at the East Avenue Medical Center; (3) the victim was
able to narrate the story of the incident to SPO2 dela Paz before he
underwent surgery; (4) SPO2 dela Paz prepared a referral-letter to
the city prosecutor; (5) SPO2 dela Paz had no personal knowledge
of the incident; and (6) the victim was confined for treatment at the
East Avenue Medical Center from March 8, 1999, and the documents

referring to his confinement and treatment were duly executed and

authenticated.[7] After these stipulations, trial on the merits
immediately followed.

the light emanating from two Meralco posts, the victim and Arceo
saw that the petitioner had a knife and used it to chase away the
members of their group. The petitioner also chased Arceo away,
leaving the victim alone; the petitioners group ganged up on him.

The Prosecutions Evidence

The prosecution presented the victim, Arlo Angelo Arceo, Sgt.

Rolando Zoleto, and SPO2 Roderick Dalit.

These witnesses testified that, at around 9:30 p.m. of March 8, 1999,

the victim and his two friends, Arceo and Richard Tan, were on their
way to Fatima II in Pook Dagohoy, UP Campus when they came
across Gener Serrano, the petitioners brother, who was with his
group of friends. The victim, Arceo and Tan approached Gener and
his friends to settle a previous quarrel between Gener and Roberto
Comia. While the victim and Gener were talking, Comia suddenly
appeared and hurled invectives at Gener. Irked, Gener challenged
Comia to a fistfight to settle their quarrel once and for all; Comia rose
to the challenge.

It was at this point that the petitioner appeared with other

members of his group. He was a guest at a party nearby, and was
informed that a fight was about to take place between his brother
and Comia. Members of the victims group also started to show up.

The petitioner watched Gener fight Comia. When Gener lost

the fight, the petitioner sought to get back at the victim and his
friends. Thus, the one-on-one escalated into a rumble between the
members of the two groups. During the rumble, and with the aid of

The petitioner went to where the victim was being beaten by

Gener and one Obet Orieta. It was then that the victim was
stabbed. The petitioner stabbed the left side of his stomach while he
was standing, with Gener and Orieta holding his arms. The
petitioner, Gener and Orieta thereafter continued to beat and stone
the victim until he fell into a nearby creek. The petitioner and his
group left him there.

From his fallen position, the victim inspected his stab wound
and saw that a portion of his intestines showed. On foot, he went to
find help. The victim was initially taken to the UP Infirmary, but was
referred to the East Avenue Medical Center where he underwent
surgery. The victim stayed at the hospital for a week, and thereafter
stayed home for one month to recuperate.

In the investigation that immediately followed, the victim

identified the petitioner as the person who stabbed him. In court, the
victim likewise positively identified the petitioner as his assailant.
The Defenses Evidence

The defense presented the testimonies of the petitioner,

Gener, and George Hipolito.

The petitioner denied that he stabbed the victim. While he

admitted that he was present during the fistfight between Gener and
Comia, he claimed that he and Gener left as soon as the rumble
started. The petitioner testified that as he and Gener were running
away from the scene (to get back to the party), bottles and stones
were being thrown at them.

Hipolito, a participant in the rumble and a member of the

petitioners group, narrated that the rumble happened fast and he
was too busy defending himself to take note of everything that
happened. He testified that he did not see the petitioner and Gener
during the fight. He also testified that the place where the rumble
took place was near a steel manufacturing shop which provided
some light to the area. He further testified that the victim was left
alone at the scene and he alone faced the rival group.

THE RTC RULING

After considering the evidence, the trial court found the petitioner
guilty beyond reasonable doubt of frustrated homicide. It held, thus:

The bare statement of Giovani Serrano that he did

not stab Anthony and he really does not know who
might have stabbed Anthony is outweighed by the
positive identification by Anthony that Giovani
stabbed him frontally while they faced each other
and also the circumstantial evidence pointing to him
as the wielder of the knife. Naturally, Giovani
Serrano would feign ignorance as to who stabbed
Anthony but there is no way that he can avoid said
direct and circumstantial evidences.[8]
Accordingly, the RTC decision disposed:

WHEREFORE, the prosecution having

established the guilt of accused GIOVANI
SERRANO Y CERVANTES of the offense of
FRUSTRATED HOMICIDE beyond reasonable
doubt, this Court finds him GUILTY thereof and
hereby sentences him to undergo imprisonment of
FOUR (4) YEARS, TWO (2) MONTHS and ONE (1)
DAY of prision correccional as minimum to TEN (10)
YEARS of prision mayor as maximum.

Accused Giovani Serrano is hereby ordered

to reimburse to complainant Anthony Galang the
medical expenses incurred by the latter in his
hospitalization and treatment of his injuries in the
amount
of
FIFTEEN THOUSAND
PESOS
(P15,000.00) and loss of income for one (1) month in
the amount of FOUR THOUSAND PESOS
(P4,000.00) or the total amount of NINETEEN
THOUSAND PESOS (P19,000.00).

Costs against the accused.

SO ORDERED.[9]

The petitioner appealed to the CA. He claimed that the

inconsistencies in the victims testimony rendered it incredible, but
the RTC disregarded the claim. The RTC also disregarded the
evidence that the dimness of the light in the crime scene made it
impossible for the victim to identify his assailant.

THE CA RULING

In its decision, the CA agreed with the RTC that the

petitioner had been positively identified as the victims assailant. The
CA, however, ruled that the crime committed was attempted
homicide, not frustrated homicide. The CA ruled that the prosecution
evidence failed to conclusively show that the victims single stab
wound was sufficient to cause death without timely medical
intervention. In support of its conclusion, the CA said that:
Thus, in Paddayuman v. People (G.R. No. 120344,
23 January 2002), appellants conviction for
attempted homicide was upheld because there
was no evidence that the wounds suffered by the
victim were fatal enough as to cause her
demise. Thus:

x x x petitioner stabbed the victim

twice on the chest, which is
indicative
of
an
intent
to
kill. x x x This can be gleaned from
the testimony of Dr. Pintucan who
did not categorically state whether
or
not
the
wounds
were
fatal. x x x (I)n People v. Pilones,
this Court held that even if the victim
was wounded but the injury was not
fatal and could not cause his death,
the crime would only be attempted.

Similarly, in the case of People v. Costales (G.R.

No. 141154, 15 January 2002), where the offense
charged was frustrated murder, the trial court
rendered a verdict of guilty for attemptedmurder
because the prosecution failed to present a medical
certificate or competent testimonial evidence which
will prove that the victim would have died from her
wound without medical intervention. Citing People v.
De La Cruz, the Supreme Court sustained the trial
court and stressed that:

x x x the crime committed for the

shooting
of
the
victim
was attempted murder
and not
frustrated murder for the reason
that his injuries, though no doubt
serious, were
not
proved
fatal such that without timely
medical intervention, they would
have caused his death.[10]

Undaunted, the petitioner filed this present petition.

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

WHEREFORE,
the MODIFICATIONS that:

1)

with

Appellant is found GUILTY beyond

reasonable doubt of the crime
of ATTEMPTED
HOMICIDE and
sentenced to suffer the indeterminate
penalty
of
imprisonment
of SIX (6)MONTHS of arresto mayor as
minimum
to FOUR (4) YEARS and TWO (2) MON
THS of prision
correccional,
as
maximum;

THE ISSUES

The petitioner
consideration:

raises

the

following

issues

for

the

THE COURT OF APPEALS ERRED IN GIVING

FULL FAITH AND CREDENCE TO THE
INCREDIBLE AND INCONSISTENT TESTIMONY
OF THE PRIVATE COMPLAINANT.

B
2)
The
actual
is REDUCED to P3,858.50; and

damages

3) The award of loss earnings is DELETED,

The appealed decision is AFFIRMED in all

other respects.

SO ORDERED.[11]

THE COURT OF APPEALS ERRED IN GIVING

CREDENCE TO THE TESTIMONIES OF THE
WITNESSES FOR THE PROSECUTION, WHICH
WERE BASED ON MERE SPECULATION AND
CONJECTURE.

Courts

THE COURT OF APPEALS GRAVELY ERRED IN

OVERLOOKING THE FACT THAT THE STABBING
INCIDENT OCCURRED IN THE MIDDLE OF A
STREET BRAWL, WHERE ANYBODY OF THE
NUMEROUS PARTICIPANTS COULD HAVE BEEN
THE ASSAILANT.

identification of the petitioner as his assailant. This is a question of

fact that we cannot entertain in a Rule 45 review, save for
exceptional reasons[13] that must be clearly and convincingly
shown. As a rule, we accord the greatest respect for the findings of
the lower courts, especially the evaluation by the trial judge who had
the distinct opportunity to directly hear and observe the witnesses
and their testimonies. As we explained in People v. Lucena[14]

THE COURT OF APPEALS GRAVELY ERRED IN

HOLDING THAT THE GUILT OF THE ACCUSEDAPPELLANT
WAS
PROVEN
BEYOND
REASONABLE DOUBT.[12]

The petitioner claims that the lower courts decisions were erroneous
based on two-pronged arguments first, he cannot be convicted
because he was not positively identified by a credible testimony;
and second, if he is criminally culpable, he can only be convicted of
serious physical injuries as the intent to kill the victim was not
sufficiently proven.

THE COURT RULING

We do not find merit in the petitioners arguments, and

accordingly hold that the petition is devoid of merit.

[It] has been consistently held by this Court that the

matter of assigning values to declarations on the
witness stand is best and most competently
performed by the trial judge, who had the unmatched
opportunity to observe the witnesses and to assess
their credibility by the various indicia available but
not reflected in the record. The demeanor of the
person on the stand can draw the line between fact
and fancy. The forthright answer or the hesitant
pause, the quivering voice or the angry tone, the
flustered look or the sincere gaze, the modest blush
or the guilty blanch these can reveal if the witness is
telling the truth or lying through his teeth.[15]

In this regard, the petitioner cites an exception the lower

courts misappreciation of
the testimonial evidence. Due
consideration of the records, however, does not support the
petitioners position. We find that the RTC and the CA did not err in
their appreciation of the evidence.

The petitioner was positively identified

At the outset, we clarify that we shall no longer deal with the
correctness of the RTC and the CAs appreciation of the victims

The RTCs and CAs conclusions on the petitioners positive

identification are supported by ample evidence. We consider in this
regard the following pieces of evidence of the prosecution: (1) the
manner of attack which was done frontally and at close range, thus
allowing the victim to see his assailant; (2) the lighting conditions at
the scene of the stabbing, provided by two Meralco posts; [16] the
scene was also illuminated by white, fluorescent type light coming
from a steel manufacturing shop; [17] and (3) that the victim and the
petitioner knew each other also allowed the victim to readily identify
the petitioner as his assailant.

The victims credibility is further strengthened by his lack of improper

motive to falsely accuse the petitioner of the crime. Human
experience tells us that it is unnatural for a victim to accuse someone
other than his actual attacker; in the normal course of things, the
victim would have the earnest desire to bring the guilty person to
justice, and no other.We consider, too, that the victim consistently
and positively, in and out of court, identified the petitioner as his
assailant. The victim testified that the petitioner was a neighbor who
lived just a few houses away from his house.

We also take into account the evidence that the petitioner was the
only one seen in possession of a knife during the rumble. The victim
testified that he saw the petitioner holding a knife which he used to
chase away others.[18] Prosecution witness Arceo testified that he
also saw the petitioner wielding a knife during the rumble.

Based on these considerations, we find the victims

identification of the petitioner as his assailant to be positive and
conclusive.

In contrast, we find the inconsistencies attributed to the victim to be

minor and insufficient to discredit his testimony. These
inconsistencies refer to extraneous matters that happened during the
rumble, not directly bearing on the stabbing. They do not likewise
relate to the material elements of the crime.

We also cannot give any credit to the petitioners position that

the victims failure to identify the weapon used to stab him discredited
his testimony. The victims failure to identify the weapon is irrelevant
under the circumstances, considering that the identity of the weapon
is not an element of the crime charged.

The intent to kill was sufficiently established

The petitioner posits that he can only be held liable for serious
physical injuries since the intent to kill, the necessary element to
characterize the crime as homicide, was not sufficiently proven. The
assailants intent to kill is the main element that distinguishes the
crime of physical injuries from the crime of homicide. The crime can
only be homicide if the intent to kill is proven.

Intent to kill is a state of mind that the courts can discern

only through external manifestations, i.e., acts and conduct of the
accused at the time of the assault and immediately
thereafter. In Rivera v. People,[19] we considered the following factors
to determine the presence of an intent to kill: (1) the means used by
the malefactors; (2) the nature, location, and number of wounds
sustained by the victim; (3) the conduct of the malefactors before, at
the time, or immediately after the killing of the victim; and (4) the
circumstances under which the crime was committed and the

motives of the accused. We also consider motive and the

words uttered by the offender at the time he inflicted injuries on the
victim as additional determinative factors.[20]
In this case, the records show that the petitioner used a knife in his
assault. The petitioner stabbed the victim in the abdomen while the
latter was held by Gener and Orieta. Immediately after the stabbing,
the petitioner, Gener and Orieta beat and stoned the victim until he
fell into a creek. It was only then that the petitioner, Gener and Orieta
left. We consider in this regard that the stabbing occurred at around
9:30 p.m. with only the petitioner, Gener, Orieta, and the victim as
the only persons left in the area. The CA aptly observed that a
reasonable inference can be made that the victim was left for dead
when he fell into the creek.

Under these circumstances, we are convinced that the

petitioner, in stabbing, beating and stoning the victim, intended to kill
him. Thus, the crime committed cannot be merely serious physical
injuries.

Frustrated homicide versus attempted homicide

Since the victim did not die, the issue posed to us is the stage of
execution of the crime. The lower courts differed in their legal
conclusions.

On one hand, the RTC held that the crime committed

reached the frustrated stage since the victim was stabbed on the left
side of his stomach and beaten until he fell into a creek. [21] The RTC

also took into account that the victim had to be referred by the UP
Infirmary to the East Avenue Medical Center for medical treatment.[22]

On the other hand, the CA ruled that the crime committed

only reached the attempted stage as there was lack of evidence that
the stab wound inflicted was fatal to cause the victims death. [23] The
CA observed that the attending physician did not testify in court.
[24]
The CA also considered that the Medical Certificate and the
Discharge Summary issued by the East Avenue Medical Center fell
short of specifying the nature or gravity of the wound. [25]

Article 6 of the Revised Penal Code, as amended defines the

stages of a felony in the following manner:

ART.
6. Consummated, frustrated,
and attempted felonies. Consummated felonies, as
well as those which are frustrated and attempted,
are punishable.

A felony is consummated when all the

elements necessary for its execution and
accomplishment
are
present;
and
it
is frustrated when the offender performs all the acts
of execution which would produce the felony as a
consequence but which, nevertheless, do not
produce it by reason of causes independent of the
will of the perpetrator.

There is an attempt when the offender

commences the commission of a felony directly by
overt acts, and does not perform all the acts of
execution which should produce the felony by
reason of some cause or accident other than his
own spontaneous desistance. [Emphasis and italics
supplied.]

In Palaganas v. People,[26] we made the following

distinctions between frustrated and attempted felony as follows:

1.) In frustrated felony, the offender has performed

all the acts of execution which should produce the
felony as a consequence; whereas in attempted
felony, the offender merely commences the
commission of a felony directly by overt acts and
does not perform all the acts of execution.

2.) In frustrated felony, the reason for the nonaccomplishment of the crime is some cause
independent of the will of the perpetrator; on the
other hand, in attempted felony, the reason for the
non-fulfillment of the crime is a cause or accident
other than the offenders own spontaneous
desistance.[27]

The crucial point to consider is the nature of the wound

inflicted which must be supported by independent proof
showing that the wound inflicted was sufficient to cause the
victims death without timely medical intervention.

In discussing the importance of ascertaining the degree of

injury sustained by a victim and its importance in determining
criminal liability, the Court in People v.Matyaong, said:[28]

In considering the extent of injury done, account

must be taken of the injury to the function of the
various organs, and also the danger to life. A division
into mortal and nonmortal wounds, if it could be
made, would be very desirable; but the unexpected
complications and the various extraneous causes
which give gravity to the simplest cases, and, on the
other hand, the favorable termination of some
injuries apparently the most dangerous, render any
such classification impracticable. The general
classification into slight, severe, dangerous, and
mortal wounds may be used, but the possibility of
the slight wound terminating with the loss of the
persons life, and the apparently mortal ending with
only a slight impairment of some function, must
always be kept in mind. x x x

The danger to life of any wound is dependent upon a

number of factors: the extent of the injury, the form
of the wound, the region of the body affected, the
blood vessels, nerves, or organs involved, the
entrance of disease-producing bacteria or other
organisms into the wound, the age and constitution
of the person injured, and the opportunities for
administering proper surgical treatment.

When nothing in the evidence shows that the wound would be fatal
without medical intervention, the character of the wound enters the
realm of doubt; under this situation, the doubt created by the lack of
evidence should be resolved in favor of the petitioner. Thus, the
crime committed should be attempted, not frustrated, homicide.[29]

Under these standards, we agree with the CAs

conclusion. From all accounts, although the stab wound could have
been fatal since the victim testified that he saw his intestines
showed, no exact evidence exists to prove the gravity of the wound;
hence, we cannot consider the stab wound as sufficient to cause
death. As correctly observed by the CA, the victims attending
physician did not testify on the gravity of the wound inflicted on the
victim. We consider, too, the CAs observation that the medical
certifications issued by the East Avenue Medical Center merely
stated the location of the wound.[30] There was also no proof that
without timely medical intervention, the victim would have died.
[31]
This paucity of proof must necessarily favor the petitioner.

The view from the frustrated stage of the crime gives the same
results. The elements of frustrated homicide are: (1) the accused
intended to kill his victim, as manifested by his use of a deadly
weapon in his assault; (2) the victim sustained fatal or mortal
wound/s but did not die because of timely medical assistance;
and (3) none of the qualifying circumstance for murder under Article
248 of the Revised Penal Code, as amended, is present. [32] Since the
prosecution failed to prove the second element, we cannot hold the
petitioner liable for frustrated homicide.

THE PENALTY

Article 51 of the Revised Penal Code, as amended, provides

that the imposable penalty for an attempted crime shall be lower by
two degrees than that prescribed by law for the consummated felony.

Under Article 249, the crime of homicide is punished

by reclusion temporal. Applying Article 61 (Rules of graduating
penalties) and Article 71 (Graduated scales), two (2) degrees lower
of reclusion temporal is prision correccional which has a duration of
six (6) months and one (1) day to six (6) years.

Under the Indeterminate Sentence Law, the maximum

term of the indeterminate sentence shall be taken, in view of the
attending circumstances that could be properly imposed under the
rules of the Revised Penal Code, and the minimum term shall be
within the range of the penalty next lower to that prescribed by the
Revised Penal Code.[33]Thus, the maximum term of the indeterminate
sentence shall be taken within the range of prision correccional,
depending on the modifying circumstances. In turn, the minimum
term of the indeterminate penalty to be imposed shall be taken from
the penalty one degree lower of prision correccional, that is arresto
mayor with a duration of one (1) month and one (1) day to six (6)
months.

In the absence of any modifying circumstance, the maximum

term of the indeterminate penalty shall be taken from the medium
period of prision correccional or two (2) years and four (4) months
and one (1) day to four (4) years and two (2) months. [34] The
minimum term shall be taken within the range of arresto
mayor. Hence, the penalty imposed by the CA against the
petitioner of six (6) months of arresto mayor, as minimum term of the

indeterminate penalty, to four (4) years and two (2) months of prision
correccional, as maximum term of the indeterminate penalty, is
correct.
THE CIVIL LIABILITY
We modify the CA decision with respect to the petitioners
civil liability. The CA ordered actual damages to be paid in the
amount of P3,858.50. This is erroneous and contrary to the
prevailing jurisprudence.

In People v. Andres,[35] we held that if the actual damages,

proven by receipts during the trial, amount to less than P25,000.00,
the victim shall be entitled to temperate damages in the amount
of P25,000.00, in lieu of actual damages. The award of temperate
damages is based on Article 2224 of the New Civil Code which
states that temperate or moderate damages may be recovered when
the court finds that some pecuniary loss was suffered but its amount
cannot be proven with certainty. In this case, the victim is entitled to
the award of P25,000.00 as temperate damages considering that the
amount of actual damages is only P3,858.50. The amount of actual
damages shall be deleted.

reasonable
doubt
of
Attempted
Homicide,
is AFFIRMED with MODIFICATION.
The
petitioner
is ORDERED to PAY the victim, Anthony Galang, the following
amounts:

(1) P25,000.00 as temperate damages; and

(2) P10,000.00 as moral damages.

Costs against the petitioner.

SO ORDERED.
G.R. No. 168539

March 25, 2014

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
HENRY T. GO, Respondent.
DECISION
PERALTA, J.:

Lastly, we find that the victim is also entitled to moral

damages in the amount of P10,000.00 in accordance with settled
jurisprudence.[36] Under Article 2219, paragraph 1 of the New Civil
Code, the victim is entitled to moral damages in a criminal offense
resulting in physical injuries.

WHEREFORE, we hereby DENY the petition. The decision,

dated July 20, 2006, of the Court of Appeals in CA-G.R. CR No.
29090, finding petitioner Giovani Serrano y Cervantes guilty beyond

Before the Court is a petition for review on certiorari assailing the

Resolution1 of the Third Division2 of the Sandiganbayan (SB) dated
June 2, 2005 which quashed the Information filed against herein
respondent for alleged violation of Section 3 (g) of Republic Act No.
3019 (R.A. 3019), otherwise known as the Anti-Graft and Corrupt
Practices Act.
The Information filed against respondent is an offshoot of this Court's
Decision3 in Agan, Jr. v. Philippine International Air Terminals Co.,
Inc. which nullified the various contracts awarded by the

Government, through the Department of Transportation and

Communications (DOTC), to Philippine Air Terminals, Co., Inc.
(PIATCO) for the construction, operation and maintenance of the
Ninoy Aquino International Airport International Passenger Terminal
III (NAIA IPT III). Subsequent to the above Decision, a certain Ma.
Cecilia L. Pesayco filed a complaint with the Office of the
Ombudsman against several individuals for alleged violation of R.A.
3019. Among those charged was herein respondent, who was then
the Chairman and President of PIATCO, for having supposedly
conspired with then DOTC Secretary Arturo Enrile (Secretary Enrile)
in entering into a contract which is grossly and manifestly
disadvantageous to the government.
On September 16, 2004, the Office of the Deputy Ombudsman for
Luzon found probable cause to indict, among others, herein
respondent for violation of Section 3(g) of R.A. 3019. While there
was likewise a finding of probable cause against Secretary Enrile, he
was no longer indicted because he died prior to the issuance of the
resolution finding probable cause.
Thus, in an Information dated January 13, 2005, respondent was
charged before the SB as follows:
On or about July 12, 1997, or sometime prior or subsequent thereto,
in Pasay City, Metro Manila, Philippines and within the jurisdiction of
this Honorable Court, the late ARTURO ENRILE, then Secretary of
the Department of Transportation and Communications (DOTC),
committing the offense in relation to his office and taking advantage
of the same, in conspiracy with accused, HENRY T. GO, Chairman
and President of the Philippine International Air Terminals, Co., Inc.
(PIATCO), did then and there, willfully, unlawfully and criminally enter
into a Concession Agreement, after the project for the construction of
the Ninoy Aquino International Airport International Passenger
Terminal III (NAIA IPT III) was awarded to Paircargo
Consortium/PIATCO, which Concession Agreement substantially
amended the draft Concession Agreement covering the construction
of the NAIA IPT III under Republic Act 6957, as amended by

Republic Act 7718 (BOT law), specifically the provision on Public

Utility Revenues, as well as the assumption by the government of the
liabilities of PIATCO in the event of the latter's default under Article
IV, Section 4.04 (b) and (c) in relation to Article 1.06 of the
Concession Agreement, which terms are more beneficial to PIATCO
while manifestly and grossly disadvantageous to the government of
the Republic of the Philippines.4
The case was docketed as Criminal Case No. 28090.
On March 10, 2005, the SB issued an Order, to wit:
The prosecution is given a period of ten (10) days from today within
which to show cause why this case should not be dismissed for lack
of jurisdiction over the person of the accused considering that the
accused is a private person and the public official Arturo Enrile, his
alleged co-conspirator, is already deceased, and not an accused in
this case.5
The prosecution complied with the above Order contending that the
SB has already acquired jurisdiction over the person of respondent
by reason of his voluntary appearance, when he filed a motion for
consolidation and when he posted bail. The prosecution also argued
that the SB has exclusive jurisdiction over respondent's case, even if
he is a private person, because he was alleged to have conspired
with a public officer.6
On April 28, 2005, respondent filed a Motion to Quash 7 the
Information filed against him on the ground that the operative facts
adduced therein do not constitute an offense under Section 3(g) of
R.A. 3019. Respondent, citing the show cause order of the SB, also
contended that, independently of the deceased Secretary Enrile, the
public officer with whom he was alleged to have conspired,
respondent, who is not a public officer nor was capacitated by any
official authority as a government agent, may not be prosecuted for
violation of Section 3(g) of R.A. 3019.

The prosecution filed its Opposition.8

On June 2, 2005, the SB issued its assailed Resolution, pertinent
portions of which read thus:
Acting on the Motion to Quash filed by accused Henry T. Go dated
April 22, 2005, and it appearing that Henry T. Go, the lone accused in
this case is a private person and his alleged co-conspirator-public
official was already deceased long before this case was filed in court,
for lack of jurisdiction over the person of the accused, the Court
grants the Motion to Quash and the Information filed in this case is
hereby ordered quashed and dismissed.9

WHETHER OR NOT THE

WHEN, IN COMPLETE
PROTECTION CLAUSE OF
THE INFORMATION AND
2809010

COURT A QUO GRAVELY ERRED

DISREGARD OF THE EQUAL
THE CONSTITUTION, IT QUASHED
DISMISSED CRIMINAL CASE NO.

The Court finds the petition meritorious.

Section 3 (g) of R.A. 3019 provides:

Hence, the instant petition raising the following issues, to wit:

Sec. 3. Corrupt practices of public officers. In addition to acts or

omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and
are hereby declared to be unlawful:

xxxx

WHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND

DECIDED A QUESTION OF SUBSTANCE IN A MANNER NOT IN
ACCORD WITH LAW OR APPLICABLE JURISPRUDENCE IN
GRANTING THE DEMURRER TO EVIDENCE AND IN DISMISSING
CRIMINAL CASE NO. 28090 ON THE GROUND THAT IT HAS NO
JURISDICTION OVER THE PERSON OF RESPONDENT GO.

(g) Entering, on behalf of the Government, into any contract or

transaction manifestly and grossly disadvantageous to the same,
whether or not the public officer profited or will profit thereby.

II
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND
DECIDED A QUESTION OF SUBSTANCE IN A MANNER NOT IN
ACCORD WITH LAW OR APPLICABLE JURISPRUDENCE, IN
RULING THAT IT HAS NO JURISDICTION OVER THE PERSON
OF RESPONDENT GO DESPITE THE IRREFUTABLE FACT THAT
HE HAS ALREADY POSTED BAIL FOR HIS PROVISIONAL
LIBERTY
III

The elements of the above provision are:

(1) that the accused is a public officer;
(2) that he entered into a contract or transaction on behalf of
the government; and
(3) that such contract or transaction is grossly and manifestly
disadvantageous to the government.11
At the outset, it bears to reiterate the settled rule that private
persons, when acting in conspiracy with public officers, may be
indicted and, if found guilty, held liable for the pertinent offenses
under Section 3 of R.A. 3019, in consonance with the avowed policy
of the anti-graft law to repress certain acts of public officers and

private persons alike constituting graft or corrupt practices act or

which may lead thereto.12 This is the controlling doctrine as
enunciated by this Court in previous cases, among which is a case
involving herein private respondent.13
The only question that needs to be settled in the present petition is
whether herein respondent, a private person, may be indicted for
conspiracy in violating Section 3(g) of R.A. 3019 even if the public
officer, with whom he was alleged to have conspired, has died prior
to the filing of the Information.
Respondent contends that by reason of the death of Secretary
Enrile, there is no public officer who was charged in the Information
and, as such, prosecution against respondent may not prosper.
The Court is not persuaded.
It is true that by reason of Secretary Enrile's death, there is no longer
any public officer with whom respondent can be charged for violation
of R.A. 3019. It does not mean, however, that the allegation of
conspiracy between them can no longer be proved or that their
alleged conspiracy is already expunged. The only thing extinguished
by the death of Secretary Enrile is his criminal liability. His death did
not extinguish the crime nor did it remove the basis of the charge of
conspiracy between him and private respondent. Stated differently,
the death of Secretary Enrile does not mean that there was no public
officer who allegedly violated Section 3 (g) of R.A. 3019. In fact, the
Office of the Deputy Ombudsman for Luzon found probable cause to
indict Secretary Enrile for infringement of Sections 3 (e) and (g) of
R.A. 3019.14 Were it not for his death, he should have been charged.
The requirement before a private person may be indicted for violation
of Section 3(g) of R.A. 3019, among others, is that such private
person must be alleged to have acted in conspiracy with a public
officer. The law, however, does not require that such person must, in
all instances, be indicted together with the public officer. If
circumstances exist where the public officer may no longer be

charged in court, as in the present case where the public officer has
already died, the private person may be indicted alone.
Indeed, it is not necessary to join all alleged co-conspirators in an
indictment for conspiracy.15 If two or more persons enter into a
conspiracy, any act done by any of them pursuant to the agreement
is, in contemplation of law, the act of each of them and they are
jointly responsible therefor.16 This means that everything said, written
or done by any of the conspirators in execution or furtherance of the
common purpose is deemed to have been said, done, or written by
each of them and it makes no difference whether the actual actor is
alive or dead, sane or insane at the time of trial. 17 The death of one
of two or more conspirators does not prevent the conviction of the
survivor or survivors.18 Thus, this Court held that:
x x x [a] conspiracy is in its nature a joint offense. One person cannot
conspire alone. The crime depends upon the joint act or intent of two
or more persons. Yet, it does not follow that one person cannot be
convicted of conspiracy. So long as the acquittal or death of a coconspirator does not remove the bases of a charge for conspiracy,
one defendant may be found guilty of the offense.19
The Court agrees with petitioner's contention that, as alleged in the
Information filed against respondent, which is deemed hypothetically
admitted in the latter's Motion to Quash, he (respondent) conspired
with Secretary Enrile in violating Section 3 (g) of R.A. 3019 and that
in conspiracy, the act of one is the act of all. Hence, the criminal
liability incurred by a co-conspirator is also incurred by the other coconspirators.
Moreover, the Court agrees with petitioner that the avowed policy of
the State and the legislative intent to repress "acts of public officers
and private persons alike, which constitute graft or corrupt
practices,"20 would be frustrated if the death of a public officer would
bar the prosecution of a private person who conspired with such
public officer in violating the Anti-Graft Law.

In this regard, this Court's disquisition in the early case of People v.

Peralta21 as to the nature of and the principles governing conspiracy,
as construed under Philippine jurisdiction, is instructive, to wit:
x x x A conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to
commit it. Generally, conspiracy is not a crime except when the law
specifically provides a penalty therefor as in treason, rebellion and
sedition. The crime of conspiracy known to the common law is not an
indictable offense in the Philippines. An agreement to commit a crime
is a reprehensible act from the view-point of morality, but as long as
the conspirators do not perform overt acts in furtherance of their
malevolent design, the sovereignty of the State is not outraged and
the tranquility of the public remains undisturbed.
However, when in resolute execution of a common scheme, a felony
is committed by two or more malefactors, the existence of a
conspiracy assumes pivotal importance in the determination of the
liability of the perpetrators. In stressing the significance of conspiracy
in criminal law, this Court in U.S. vs. Infante and Barreto opined that
While it is true that the penalties cannot be imposed for the mere act
of conspiring to commit a crime unless the statute specifically
prescribes a penalty therefor, nevertheless the existence of a
conspiracy to commit a crime is in many cases a fact of vital
importance, when considered together with the other evidence of
record, in establishing the existence, of the consummated crime and
its commission by the conspirators.
Once an express or implied conspiracy is proved, all of the
conspirators are liable as co-principals regardless of the extent and
character of their respective active participation in the commission of
the crime or crimes perpetrated in furtherance of the conspiracy
because in contemplation of law the act of one is the act of all. The
foregoing rule is anchored on the sound principle that "when two or
more persons unite to accomplish a criminal object, whether through
the physical volition of one, or all, proceeding severally or

collectively, each individual whose evil will actively contributes to the

wrong-doing is in law responsible for the whole, the same as though
performed by himself alone." Although it is axiomatic that no one is
liable for acts other than his own, "when two or more persons agree
or conspire to commit a crime, each is responsible for all the acts of
the others, done in furtherance of the agreement or conspiracy." The
imposition of collective liability upon the conspirators is clearly
explained in one case where this Court held that x x x it is impossible
to graduate the separate liability of each (conspirator) without taking
into consideration the close and inseparable relation of each of them
with the criminal act, for the commission of which they all acted by
common agreement x x x. The crime must therefore in view of the
solidarity of the act and intent which existed between the x x x
accused, be regarded as the act of the band or party created by
them, and they are all equally responsible x x x
Verily, the moment it is established that the malefactors conspired
and confederated in the commission of the felony proved, collective
liability of the accused conspirators attaches by reason of the
conspiracy, and the court shall not speculate nor even investigate as
to the actual degree of participation of each of the perpetrators
present at the scene of the crime. Of course, as to any conspirator
who was remote from the situs of aggression, he could be drawn
within the enveloping ambit of the conspiracy if it be proved that
through his moral ascendancy over the rest of the conspirators the
latter were moved or impelled to carry out the conspiracy.
In fine, the convergence of the wills of the conspirators in the
scheming and execution of the crime amply justifies the imputation to
all of them the act of any one of them. It is in this light that conspiracy
is generally viewed not as a separate indictable offense, but a rule
for collectivizing criminal liability.
xxxx
x x x A time-honored rule in the corpus of our jurisprudence is that
once conspiracy is proved, all of the conspirators who acted in

furtherance of the common design are liable as co-principals. This

rule of collective criminal liability emanates from the ensnaring nature
of conspiracy. The concerted action of the conspirators in
consummating their common purpose is a patent display of their evil
partnership, and for the consequences of such criminal enterprise
they must be held solidarily liable.22

petitioner's contention that private respondent's act of posting bail

and filing his Motion for Consolidation vests the SB with jurisdiction
over his person. The rule is well settled that the act of an accused in
posting bail or in filing motions seeking affirmative relief is
tantamount to submission of his person to the jurisdiction of the
court.27

This is not to say, however, that private respondent should be found

guilty of conspiring with Secretary Enrile. It is settled that the
absence or presence of conspiracy is factual in nature and involves
evidentiary matters.23 Hence, the allegation of conspiracy against
respondent is better left ventilated before the trial court during trial,
where respondent can adduce evidence to prove or disprove its
presence.

Thus, it has been held that:

Respondent claims in his Manifestation and Motion 24 as well as in his

Urgent Motion to Resolve 25 that in a different case, he was likewise
indicted before the SB for conspiracy with the late Secretary Enrile in
violating the same Section 3 (g) of R.A. 3019 by allegedly entering
into another agreement (Side Agreement) which is separate from the
Concession Agreement subject of the present case. The case was
docketed as Criminal Case No. 28091. Here, the SB, through a
Resolution, granted respondent's motion to quash the Information on
the ground that the SB has no jurisdiction over the person of
respondent. The prosecution questioned the said SB Resolution
before this Court via a petition for review on certiorari. The petition
was docketed as G.R. No. 168919. In a minute resolution dated
August 31, 2005, this Court denied the petition finding no reversible
error on the part of the SB. This Resolution became final and
executory on January 11, 2006. Respondent now argues that this
Court's resolution in G.R. No. 168919 should be applied in the
instant case.
The Court does not agree. Respondent should be reminded that
prior to this Court's ruling in G.R. No. 168919, he already posted bail
for his provisional liberty. In fact, he even filed a Motion for
Consolidation26 in Criminal Case No. 28091. The Court agrees with

When a defendant in a criminal case is brought before a competent

court by virtue of a warrant of arrest or otherwise, in order to avoid
the submission of his body to the jurisdiction of the court he must
raise the question of the courts jurisdiction over his person at the
very earliest opportunity. If he gives bail, demurs to the complaint or
files any dilatory plea or pleads to the merits, he thereby gives the
court jurisdiction over his person. (State ex rel. John Brown vs.
Fitzgerald, 51 Minn., 534)
xxxx
As ruled in La Naval Drug vs. CA [236 SCRA 78, 86]:
"[L]ack of jurisdiction over the person of the defendant may be
waived either expressly or impliedly. When a defendant voluntarily
appears, he is deemed to have submitted himself to the jurisdiction
of the court. If he so wishes not to waive this defense, he must do so
seasonably by motion for the purpose of objecting to the jurisdiction
of the court; otherwise, he shall be deemed to have submitted
himself to that jurisdiction."
Moreover, "[w]here the appearance is by motion for the purpose of
objecting to the jurisdiction of the court over the person, it must be
for the sole and separate purpose of objecting to said jurisdiction. If
the appearance is for any other purpose, the defendant is deemed to
have submitted himself to the jurisdiction of the court. Such an
appearance gives the court jurisdiction over the person."

Verily, petitioners participation in the proceedings before the

Sandiganbayan was not confined to his opposition to the issuance of
a warrant of arrest but also covered other matters which called for
respondent courts exercise of its jurisdiction. Petitioner may not be
heard now to deny said courts jurisdiction over him. x x x. 28
In the instant case, respondent did not make any special appearance
to question the jurisdiction of the SB over his person prior to his
posting of bail and filing his Motion for Consolidation. In fact, his
Motion to Quash the Information in Criminal Case No. 28090 only
came after the SB issued an Order requiring the prosecution to show
cause why the case should not be dismissed for lack of jurisdiction
over his person.
As a recapitulation, it would not be amiss to point out that the instant
case involves a contract entered into by public officers representing
the government. More importantly, the SB is a special criminal court
which has exclusive original jurisdiction in all cases involving
violations of R.A. 3019 committed by certain public officers, as
enumerated in P.D. 1606 as amended by R.A. 8249. This includes
private individuals who are charged as co-principals, accomplices or
accessories with the said public officers. In the instant case,
respondent is being charged for violation of Section 3(g) of R.A.
3019, in conspiracy with then Secretary Enrile. Ideally, under the law,
both respondent and Secretary Enrile should have been charged

before and tried jointly by the Sandiganbayan. However, by reason of

the death of the latter, this can no longer be done. Nonetheless, for
reasons already discussed, it does not follow that the SB is already
divested of its jurisdiction over the person of and the case involving
herein respondent. To rule otherwise would mean that the power of a
court to decide a case would no longer be based on the law defining
its jurisdiction but on other factors, such as the death of one of the
alleged offenders.
Lastly, the issues raised in the present petition involve matters which
are mere incidents in the main case and the main case has already
been pending for over nine (9) years. Thus, a referral of the case to
the Regional Trial Court would further delay the resolution of the
main case and it would, by no means, promote respondent's right to
a speedy trial and a speedy disposition of his case.
WHEREFORE, the petition is GRANTED. The Resolution of the
Sandiganbayan dated June 2, 2005, granting respondent's Motion to
Quash, is hereby REVERSED and SET ASIDE. The Sandiganbayan
is forthwith DIRECTED to proceed with deliberate dispatch in the
disposition of Criminal Case No. 28090.
SO ORDERED.