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[G.R. No. 124736.

September 29, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO GALLO y IGLOSO, accusedappellant.
The penalty imposed upon accused-appellant Romeo Gallo y Igloso by the Regional Trial
Court, Branch 68, of Binangonan, Rizal, after finding him guilty beyond reasonable doubt of the
crime of qualified rape, was affirmed by this Court in its decision promulgated on 22 January
On 24 August 1999, accused-appellant filed a Motion to Re-open Case (with Leave of
Court) seeking a modification of the death sentence to reclusion perpetua. Accused-appellant
proffers that the reduction sought by him would be in line with the new Court rulings which
annunciate that the seven attendant circumstances introduced in Section 11 of Republic Act No.
7659 partake of the nature of qualifying circumstances that must be pleaded in the indictment in
order to warrant the imposition of the penalty.
The Court in the case of People vs. Garcia,[1] speaking through then, Justice Florenz D.
Regalado, ratiocinated that the additional attendant circumstances introduced by R.A. 7659
should be considered as special qualifying circumstances distinctly applicable to the crime of rape
and, if not pleaded as such, could only be appreciated as generic aggravating circumstances. [2]
The Information filed against accused-appellant reads:
That on or sometime in the period of May, 1994 in the Municipality of Cardona, Province of Rizal,
Philippines and within the jurisdiction of this Honorable Court, the above named accused, with
lewd designs and by means of force or intimidation, did then and there willfully, unlawfully and
feloniously have sexual intercourse with a 13 year old girl, Marites Gallo y Segovia. [3]
The above indictment has not specifically alleged that accused-appellant is the victims
father; accordingly, accused-appellants relationship to the victim, although proven during the trial,
cannot be considered to be a qualifying circumstance.[4]
The next crucial point is whether the Court must now apply retroactively the Garcia
doctrine to the conviction of accused-appellant.
The Court has had the opportunity to declare in a long line of cases that the tribunal retains
control over a case until the full satisfaction of the final judgment conformably with established
legal processes. It has the authority to suspend the execution of a final judgment or to cause a
modification thereof as and when it becomes imperative in the higher interest of justice or when
supervening events warrant it.[5]
The doctrine declared in People vs. Garcia, and its reiteration in People vs. Ramos,
People vs. Ilao,[7] and People vs. Medina,[8] came only after almost a year from the
promulgation of the instant case.

The Office of the Solicitor General, when requested to comment on the aforesaid 24 th August
1999 motion of accused-appellant, had this to state:

Judicial decisions applying or interpreting the law or the Constitution shall form part of the legal
system of the land (Article 8, Civil Code of the Philippines). Medina, which has the force and
effect of law, forms part of our penal statutes and assumes retroactive effect, being as it is,
favorable to an accused who is not a habitual criminal, and notwithstanding that final sentence
has already been pronounced against him (Article 22, Revised Penal Code).
Indeed, by operation of law, appellant is rightfully entitled to the beneficial application
of Medina. Accordingly, the Office of the Solicitor General hereby joins appellants prayer for
reduction of his sentence from death to reclusion perpetua.
The Court agrees with the Office of the Solicitor General in its above observations and sees
merit in its stand to join accused-appellant in praying for a modification of the sentence from
death to reclusion perpetua.
WHEREFORE, the motion to re-open the case is GRANTED and the decision sought to be
reconsidered is MODIFIED by imposing on accused-appellant the penalty of reclusion perpetua in
lieu of the death penalty and ordering him to indemnify the victim the amount of P50,000.00.
Considering that the records of all cases where the death penalty is imposed are forwarded
to the Office of the President in accordance with Section 25 of R.A. 7659, the Court directs the
Clerk of Court to furnish the Office of the President with a copy of this resolution for appropriate

[G.R. No. 114265. July 8, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GREGORIO MAGALLANES, accusedappellant.
On September 29, 1991, at around three oclock in the afternoon, the appellant, GREGORIO
MAGALLANES, who was a mananari or gaffer of fighting cocks, trekked the road to the cockpit of
Poblacion Sagbayan, Bohol. The appellant was in the company of several other cockfighting
afficionados, among whom were Romualdo Cempron and Danilo Salpucial. While on their way,
they passed by Virgilio Tapales who was drinking in the store of Umping Amores which was
located on the elevated side of the road. Tapales hailed Cempron and invited him for a drink but
the latter courteously refused as he was going to the cockpit. Tapales approached Cempron and
conversed with him briefly. For some unknown reason, Tapales then directed his attention to the
appellant who was walking a few steps behind Cempron. Tapales held the appellant by his shirt,
slapped him and strangled his neck. But seeing a knife tucked in Tapales waist, the appellant
pulled out the knife and slashed at Tapales to loosen his grip. The appellant succeeded in
wounding the face and neck of Tapales who let go of the appellant and fled for his life. Insatiated,
the appellant pursued Tapales and when the latter fell, the appellant stabbed him several more
times before uttering the following words: you are already dead in that case. [1] With that, the
appellant stood up and rode on the motorcycle being driven by Danilo Salpucial. Later, the
appellant surrendered to the police authorities of the town of Inabanga, Bohol.

For the death of Tapales, the appellant and Salpucial were charged as principal and
accessory, respectively, of the crime of murder allegedly committed as follows:
That on or about the 29th day of September, 1991, in the municipality of Sagbayan, province of
Bohol, Philippines and within the jurisdiction of this Honorable Court, the first above-named
accused as Principal, with intent to kill and without justifiable cause, with treachery and abuse of
superior strength, did then and there willfully, unlawfully and feloniously attack, assault and stab
with the use of a sharp-pointed, sharp-edges (sic) weapon (knife) one Virgilio Tapales y
Melendres hitting and injuring the vital parts of the body of the victim which resulted in the victims
instantaneous death; that the second above-named accused, as Accessory, having knowledge of
the commission of the crime of Murder, but without having participated therein either as Principal
or as an Accomplice, did then and there willfully, unlawfully, feloniously and knowing (sic) take
part in said crime after the commission thereof, to wit: by allowing accused Gregorio Magallanes
to, and taking him on a, (sic) backride on the motorcycle which accused Danilo Salpucial was
driving and operating, in order to flee from the scene of the crime; x x x [2]
During arraignment, the appellant expressed his willingness to enter a plea of guilty to the
lesser offense of homicide with the mitigating circumstances of plea of guilty and voluntary
surrender; Salpucial, on the other hand, pleaded not guilty to the charges against him. The
prosecution refused to lower the charge from murder to homicide, hence, trial ensued after which,
a decision was rendered finding the appellant guilty of the crime of murder and acquitting
Salpucial on the ground that the prosecution had failed to prove his guilt beyond reasonable
doubt. The dispositive portion of said decision is quoted hereunder:
PREMISES CONSIDERED, the Court finds the accused Gregorio Magallanes GUILTY of the
crime of Murder punished under Article 243 of the Revised Penal Code and hereby sentences
him to suffer an imprisonment of RECLUSION PERPETUA with the accessories of the law and to
pay the cost.
The accused Gregorio Magallanes is further ordered to indemnify the surviving spouse Nathaline
Tapales in the amount of P50,000.00 representing indemnity, P50,000.00 representing moral and
exemplary damages, P31,300.00-- burial and incidental expenses relative to the death of Virgilio
Tapales and P3,000.00 representing attorneys fees, in all instances, without subsidiary
imprisonment in case of insolvency.
x x x x x x x x x.
Relative to the accused Danilo Salpucial judgment is hereby rendered ACQUITTING the
aforementioned Danilo Salpucial of the crime as charged, with cost de officio.
x x x x x x x x x.[3]
Before us now is the appeal interposed by Gregorio Magallanes where he invokes the
justifying circumstance of self-defense in his favor, and contends, in the alternative, that he
should be convicted of the crime of homicide only and not murder.
Anent the claim of self-defense, we reiterate herein the time honored doctrine that although it
is a cardinal principle in criminal law that the prosecution has the burden of proving the guilt of the
accused, the rule is reversed where the accused admits committing the crime but only in defense
of oneself. In the latter case, the burden is shifted to the accused who must prove clearly and
convincingly the following elements of self-defense: (1) unlawful aggression on the part of the
victim; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of
sufficient provocation on the part of the person defending himself.[4]

The appellant asseverates that he was justified in stabbing Tapales as he was merely
defending himself from the formers unlawful and unprovoked aggression. But the prosecution
witnesses are one in testifying that it was the appellant who mercilessly pursued the already
wounded Tapales, and when the latter fell to the ground, inflicted several more stab wounds on
his person including a fatal blow to his neck.
Clearly, whatever act of aggression that was initiated by Tapales against the appellant had
already ceased as demonstrated by the fact that Tapales was running away from the
appellant.The tables were turned when the appellant chased Tapales with the obvious intent of
stabbing him. At this juncture, the appellant had assumed the role of aggressor, thus, his claim of
self-defense cannot obviously prosper. In People vs. Tampon[7] we ruled that:
Even granting arguendo that the initial act of aggression came from Entellano (the victim) as
claimed by the appellant, we still cannot sustain his plea of self-defense. As testified by the
appellant, he grappled with Entellano for the knife and was able to take possession of the
same. At this point, it was no longer necessary for appellant to stab Entellano in order to protect
himself. His subsequent act of stabbing the now unarmed Entellano belies his claim that he acted
in self-preservation and indicates nothing more than a perverse desire to kill. Thus, this Court
held in the case of People v. So, that [a]fter appellant successfully wrested the knife from
Tuquero, the unlawful aggression has ceased, the one making the defense has no more right to
kill or even wound the former aggressor.[8]
Another factor which militates against the appellants claim of self-defense is the nature and
number of wounds suffered by Tapales. Dr. Pancracio Garay, the Rural Health Physician who
examined Tapales dead body, testified that the same sustained seven (7) stab wounds in all
caused by a sharp bladed weapon.[9] And it is an oft-repeated rule that the presence of a large
number of wounds on the part of the victim negates self-defense and instead, indicates a
determined effort to kill the victim.[10] The appellant, however, seeks exception to this rule by
pointing out the superficial nature of majority of the wounds inflicted on Tapales, and the fact that
of the seven (7) wounds, only one (1) was fatal enough to cause his death. We disagree.
Of the seven (7) wounds, five (5) were located in the neck area suggesting that the appellant
struck at Tapales with resolve to cause serious if not mortal damage to Tapales person.There
certainly was no necessity to inflict such wounds upon Tapales especially in view of the fact that
the latter was not even armed. The appellants theory of self-defense is therefore overthrown by
the hard reality that the alleged aggressor-the deceased in this case- sustained seven (7) stab
wounds in the hands of the appellant while failing to inflict upon the appellant even a minor injury
as token of his alleged belligerence and aggression.[12]
As an alternative defense, the appellant asseverates that the killing of Tapales was not
attended by treachery which would qualify it to murder, hence, he should have been convicted of
the crime of homicide only. The appellant bewails the finding of treachery by the RTC despite the
fact that the initial unlawful aggression was started by the deceased victim, Virgilio Tapales, at the
middle of the road in broad daylight. [13] On the other hand, the prosecution insists that the killing
was treacherous because it was perpetrated while the defenseless Tapales was running away
from the appellant, thereby giving the latter opportunity to stab Tapales at the back without
warning.[14] On this issue we find for the appellant.
There is treachery when the offender commits any of the crimes against the person,
employing means, methods, or forms in the execution thereof which tend directly and specially to
insure its execution, without risk to himself arising from the defense which the offended party
might make.[15] Thus, for treachery or alevosia to be appreciated as a qualifying circumstance, the
prosecution must establish the concurrence of two (2) conditions: (a) that at the time of the attack,
the victim was not in a position to defend himself; and (b) that the offender consciously adopted
the particular means, method or form of attack employed by him. [16] The latter condition is

immediately negated by the fact that the meeting between the appellant and Tapales was by
chance. We have held that:
x x x where the meeting between the accused and the victim was casual and the attack was done
impulsively, there is no treachery even if the attack was sudden and unexpected and while the
victim was running away with his back towards the accused. As has been aptly observed the
accused could not have made preparations for the attack, x x x; and the means, method and form
thereof could not therefore have been thought of by the accused, because the attack was
impulsively done.[17]
Treachery cannot also be presumed from the mere suddenness of the attack or from the fact
that the victim was stabbed with his back towards the appellant. In point is the following
pronouncement we made in People v. Escoto:
We can not presume that treachery was present merely from the fact that the attack was
sudden. The suddenness of an attack, does not of itself, suffice to support a finding of alevosia,
even if the purpose was to kill, so long as the decision was made all of a sudden and the victims
helpless position was accidental. In fact from the reaction of Robert in running away from the
Escoto brothers the moment he saw them, we can reasonably conclude that he was not
completely unaware that herein appellant and Willie posed a danger to him and this necessarily
put him on guard, with the opportunity to prevent or repel a possible assault. [18]
This is particularly true in the instant case where Tapales initiated the unlawful aggression against
the appellant and should therefore have been forewarned of the possibility of retaliation from him.
Furthermore, although Tapales sustained seven (7) stab wounds, some of them located at
his back, we can not infer from this physical evidence alone that treachery was initially present in
the case at bar.[19] And it is a fundamental rule of long standing that for treachery to be
appreciated, that circumstance must be present at the inception of the attack, and if absent and
the attack is continuous, treachery if present at a subsequent stage is not to be considered. [20]
Absent the qualifying circumstance of treachery, we therefore find the appellant guilty only of
the crime of homicide. Moreover, a careful scrutiny of the records of this case reveals that the trial
court had erroneously failed to appreciate in mitigation of the appellants penalty the
circumstances of voluntary surrender and plea of guilty.
Felix Estillore, a member of the Philippine National Police (PNP), and a witness for the
prosecution had in fact testified that the appellant surrendered to the Police of Inabanga, Bohol
after the stabbing incident.[21] The fact that the appellant chose to surrender to the police
authorities of Inabanga and not Sagbayan where the crime happened is not to be taken against
him.He fled Sagbayan not to hide from the police authorities but to evade retaliation from the
relatives of the deceased. Besides, the law does not require that the perpetrator of an offense to
be entitled to the mitigating circumstance of voluntary surrender, must give himself up to the
authorities in the municipality where the offense was committed. All that the law requires is for the
offender to surrender to the authorities to save the government the trouble and the expense of
looking for him in order to arrest him.[22]
Finally, on record is the appellants willingness to enter a plea of guilty but to the lesser crime
of homicide. It only remains to consider briefly whether the appellants plea of guilty in the form it
was entered constitutes a voluntary confession of guilt before the court as defined in paragraph 7
of Article 13 of the Revised Penal Code. [23] In People v. Yturriaga[24] where the accused who was
charged with murder entered a qualified plea of guilty by claiming that the alleged qualifying
circumstance of evident premeditation did not exist, we said that:

Although the confession was qualified and introduction of evidence became necessary, the
qualification did not deny the defendants guilt and, what is more, was subsequently fully
justified. It was not the defendants fault that aggravating circumstances were erroneously alleged
in the information and mitigating circumstances omitted therefrom. If such qualification could
deprive the accused of the benefit of plea of guilty, then the prosecution could nullify
this mitigating circumstance by counteracting it with unfounded allegations of aggravating
WHEREFORE, the judgment appealed from is hereby MODIFIED by convicting the
appellant Gregorio Magallanes of the crime of homicide only with the mitigating circumstances of
voluntary surrender and plea of guilty in his favor, and imposing upon him an indeterminate
sentence 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. In all other respects, the judgment of the court a
quo is AFFIRMED.

G. R. No. 160188

June 21, 2007


This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner
effectively concedes having performed the felonious acts imputed against him, but instead insists
that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The proposition rests on a common theory
expounded in two well-known decisions1 rendered decades ago by the Court of Appeals,
upholding the existence of frustrated theft of which the accused in both cases were found guilty.
However, the rationale behind the rulings has never been affirmed by this Court.
As far as can be told,2 the last time this Court extensively considered whether an accused was
guilty of frustrated or consummated theft was in 1918, in People v. Adiao. 3 A more cursory
treatment of the question was followed in 1929, in People v. Sobrevilla, 4 and in 1984, in Empelis
v. IAC.5 This petition now gives occasion for us to finally and fully measure if or how frustrated
theft is susceptible to commission under the Revised Penal Code.
The basic facts are no longer disputed before us. The case stems from an Information 6 charging
petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft.
On 19 May 1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the Super
Sale Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo
Lago (Lago), a security guard who was then manning his post at the open parking area of the

supermarket. Lago saw petitioner, who was wearing an identification card with the mark
"Receiving Dispatching Unit (RDU)," hauling a push cart with cases of detergent of the wellknown "Tide" brand. Petitioner unloaded these cases in an open parking space, where Calderon
was waiting. Petitioner then returned inside the supermarket, and after five (5) minutes, emerged
with more cartons of Tide Ultramatic and again unloaded these boxes to the same area in the
open parking space.7
Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it
towards the parking space where Calderon was waiting. Calderon loaded the cartons of Tide
Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago, who
proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner
for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired
a warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered. 8 The filched items seized from
the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3)
additional cases of detergent, the goods with an aggregate value of P12,090.00.9
Petitioner and Calderon were first brought to the SM security office before they were transferred
on the same day to the Baler Station II of the Philippine National Police, Quezon City, for
investigation. It appears from the police investigation records that apart from petitioner and
Calderon, four (4) other persons were apprehended by the security guards at the scene and
delivered to police custody at the Baler PNP Station in connection with the incident. However,
after the matter was referred to the Office of the Quezon City Prosecutor, only petitioner and
Calderon were charged with theft by the Assistant City Prosecutor, in Informations prepared on 20
May 1994, the day after the incident.10
After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having
been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May
1994 when they were haled by Lago and his fellow security guards after a commotion and
brought to the Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was
at the Super Sale Club to withdraw from his ATM account, accompanied by his neighbor, Leoncio
Rosulada.11 As the queue for the ATM was long, Calderon and Rosulada decided to buy snacks
inside the supermarket. It was while they were eating that they heard the gunshot fired by Lago,
leading them to head out of the building to check what was
transpiring. As they were outside, they were suddenly "grabbed" by a security guard, thus
commencing their detention.12 Meanwhile, petitioner testified during trial that he and his cousin, a
Gregorio Valenzuela,13 had been at the parking lot, walking beside the nearby BLISS complex
and headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a
shot. The gunshot caused him and the other people at the scene to start running, at which point
he was apprehended by Lago and brought to the security office. Petitioner claimed he was
detained at the security office until around 9:00 p.m., at which time he and the others were
brought to the Baler Police Station. At the station, petitioner denied having stolen the cartons of
detergent, but he was detained overnight, and eventually brought to the prosecutors office where
he was charged with theft.14 During petitioners cross-examination, he admitted that he had been
employed as a "bundler" of GMS Marketing, "assigned at the supermarket" though not at SM. 15
In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City,
Branch 90, convicted both petitioner and Calderon of the crime of consummated theft. They were
sentenced to an indeterminate prison term of two (2) years of prision correccional as minimum to
seven (7) years of prision mayor as maximum.17 The RTC found credible the testimonies of the
prosecution witnesses and established the convictions on the positive identification of the
accused as perpetrators of the crime.

Both accused filed their respective Notices of Appeal,18 but only petitioner filed a brief 19 with the
Court of Appeals, causing the appellate court to deem Calderons appeal as abandoned and
consequently dismissed. Before the Court of Appeals, petitioner argued that he should only be
convicted of frustrated theft since at the time he was apprehended, he was never placed in a
position to freely dispose of the articles stolen.20 However, in its Decision dated 19 June
2003,21 the Court of Appeals rejected this contention and affirmed petitioners conviction. 22 Hence
the present Petition for Review,23 which expressly seeks that petitioners conviction "be modified
to only of Frustrated Theft."24
Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious
intent and his actual participation in the theft of several cases of detergent with a total value
of P12,090.00 of which he was charged.25 As such, there is no cause for the Court to consider a
factual scenario other than that presented by the prosecution, as affirmed by the RTC and the
Court of Appeals. The only question to consider is whether under the given facts, the theft should
be deemed as consummated or merely frustrated.
In arguing that he should only be convicted of frustrated theft, petitioner cites 26 two decisions
rendered many years ago by the Court of Appeals: People v. Dio 27 and People v. Flores.28 Both
decisions elicit the interest of this Court, as they modified trial court convictions from
consummated to frustrated theft and involve a factual milieu that bears similarity to the present
case. Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet the appellate
court did not expressly consider the import of the rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to the Dio and Flores
rulings since they have not yet been expressly adopted as precedents by this Court. For whatever
the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet
despite the silence on our part, Dio and Flores have attained a level of renown reached by very
few other appellate court rulings. They are comprehensively discussed in the most popular of our
criminal law annotations,29 and studied in criminal law classes as textbook examples of frustrated
crimes or even as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that
populate criminal law exams more than they actually occur in real life. Indeed, if we finally say
that Dio and Flores are doctrinal, such conclusion could profoundly influence a multitude of
routine theft prosecutions, including commonplace shoplifting. Any scenario that involves the thief
having to exit with the stolen property through a supervised egress, such as a supermarket
checkout counter or a parking area pay booth, may easily call for the application of Dio and
Flores. The fact that lower courts have not hesitated to lay down convictions for frustrated theft
further validates that Dio and Flores and the theories offered therein on frustrated theft have
borne some weight in our jurisprudential system. The time is thus ripe for us to examine whether
those theories are correct and should continue to influence prosecutors and judges in the future.
To delve into any extended analysis of Dio and Flores, as well as the specific issues relative to
"frustrated theft," it is necessary to first refer to the basic rules on the three stages of crimes
under our Revised Penal Code.30
Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies.
A felony is consummated "when all the elements necessary for its execution and accomplishment

are present." 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." Finally, it is attempted "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."
Each felony under the Revised Penal Code has a "subjective phase," or 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 prior acts, should result in the consummated
crime.31 After that point has been breached, the subjective phase ends and the objective phase
begins.32 It has been held that if the offender never passes the subjective phase of the offense,
the crime is merely attempted.33 On the other hand, the subjective phase is completely passed in
case of frustrated crimes, for in such instances, "[s]ubjectively the crime is complete." 34
Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and
attempted felonies on the other. So long as the offender fails to complete all the acts of execution
despite commencing the commission of a felony, the crime is undoubtedly in the attempted stage.
Since the specific acts of execution that define each crime under the Revised Penal Code are
generally enumerated in the code itself, the task of ascertaining whether a crime is attempted
only would need to compare the acts actually performed by the accused as against the acts that
constitute the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or consummated necessitates an
initial concession that all of the acts of execution have been performed by the offender. The
critical distinction instead is whether the felony itself was actually produced by the acts of
execution. The determination of whether the felony was "produced" after all the acts of execution
had been performed hinges on the particular statutory definition of the felony. It is the statutory
definition that generally furnishes the elements of each crime under the Revised Penal Code,
while the elements in turn unravel the particular requisite acts of execution and accompanying
criminal intent.
The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an important
characteristic of a crime, that "ordinarily, evil intent must unite with an unlawful act for there to be
a crime," and accordingly, there can be no crime when the criminal mind is wanting. 35 Accepted in
this jurisdiction as material in crimes mala in se, 36mens rea has been defined before as "a guilty
mind, a guilty or wrongful purpose or criminal intent," 37 and "essential for criminal liability."38 It
follows that the statutory definition of our mala in se crimes must be able to supply what the mens
rea of the crime is, and indeed the U.S. Supreme Court has comfortably held that "a criminal law
that contains no mens rea requirement infringes on constitutionally protected rights." 39 The
criminal statute must also provide for the overt acts that constitute the crime. For a crime to exist
in our legal law, it is not enough that mens rea be shown; there must also be an actus reus. 40
It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the
felony is produced. As a postulate in the craftsmanship of constitutionally sound laws, it is
extremely preferable that the language of the law expressly provide when the felony is produced.
Without such provision, disputes would inevitably ensue on the elemental question whether or not
a crime was committed, thereby presaging the undesirable and legally dubious set-up under
which the judiciary is assigned the legislative role of defining crimes. Fortunately, our Revised
Penal Code does not suffer from such infirmity. From the statutory definition of any felony, a
decisive passage or term is embedded which attests when the felony is produced by the acts of
execution. For example, the statutory definition of murder or homicide expressly uses the phrase
"shall kill another," thus making it clear that the felony is produced by the death of the victim, and
conversely, it is not produced if the victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its
elements are spelled out as follows:
Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but
without violence against or intimidation of persons nor force upon things, shall take personal
property of another without the latters consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the local authorities
or to its owner;
2. Any person who, after having maliciously damaged the property of another, shall remove or
make use of the fruits or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which
belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall
gather cereals, or other forest or farm products.
Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic
means by which theft may be committed.41 In the present discussion, we need to concern
ourselves only with the general definition since it was under it that the prosecution of the accused
was undertaken and sustained. On the face of the definition, there is only one operative act of
execution by the actor involved in theft the taking of personal property of another. It is also clear
from the provision that in order that such taking may be qualified as theft, there must further be
present the descriptive circumstances that the taking was with intent to gain; without force upon
things or violence against or intimidation of persons; and it was without the consent of the owner
of the property.
Indeed, we have long recognized the following elements of theft as provided for in Article 308 of
the Revised Penal Code, namely: (1) that there be taking of personal property; (2) that said
property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be
done without the consent of the owner; and (5) that the taking be accomplished without the use of
violence against or intimidation of persons or force upon things. 42
In his commentaries, Judge Guevarra traces the history of the definition of theft, which under
early Roman law as defined by Gaius, was so broad enough as to encompass "any kind of
physical handling of property belonging to another against the will of the owner," 43 a definition
similar to that by Paulus that a thief "handles (touches, moves) the property of
another."44 However, with the Institutes of Justinian, the idea had taken hold that more than mere
physical handling, there must further be an intent of acquiring gain from the object, thus: "[f]urtum
est contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus
possessinisve."45 This requirement of animo lucrandi, or intent to gain, was maintained in both the
Spanish and Filipino penal laws, even as it has since been abandoned in Great Britain. 46
In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to
characterize theft. Justice Regalado notes that the concept of apoderamiento once had a
controversial interpretation and application. Spanish law had already discounted the belief that
mere physical taking was constitutive of apoderamiento, finding that it had to be coupled with "the
intent to appropriate the object in order to constitute apoderamiento; and to appropriate means to
deprive the lawful owner of the thing."47 However, a conflicting line of cases decided by the Court
of Appeals ruled, alternatively, that there must be permanency in the taking 48 or an intent to
permanently deprive the owner of the stolen property; 49 or that there was no need for permanency
in the taking or in its intent, as the mere temporary possession by the offender or disturbance of

the proprietary rights of the owner already constituted apoderamiento. 50 Ultimately, as Justice
Regalado notes, the Court adopted the latter thought that there was no need of an intent to
permanently deprive the owner of his property to constitute an unlawful taking. 51
So long as the "descriptive" circumstances that qualify the taking are present, including animo
lucrandi and apoderamiento, the completion of the operative act that is the taking of personal
property of another establishes, at least, that the transgression went beyond the attempted stage.
As applied to the present case, the moment petitioner obtained physical possession of the cases
of detergent and loaded them in the pushcart, such seizure motivated by intent to gain, completed
without need to inflict violence or intimidation against persons nor force upon things, and
accomplished without the consent of the SM Super Sales Club, petitioner forfeited the
extenuating benefit a conviction for only attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated theft, we are obliged to
apply Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the
theft would have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient
to produce theft as a consequence, "do not produce [such theft] by reason of causes independent
of the will of the perpetrator." There are clearly two determinative factors to consider: that the
felony is not "produced," and that such failure is due to causes independent of the will of the
perpetrator. The second factor ultimately depends on the evidence at hand in each particular
case. The first, however, relies primarily on a doctrinal definition attaching to the individual
felonies in the Revised Penal Code52 as to when a particular felony is "not produced," despite the
commission of all the acts of execution.
So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire
as to how exactly is the felony of theft "produced." 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
U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was charged with
theft after he abstracted a leather belt from the baggage of a foreign national and secreted the
item in his desk at the Custom House. At no time was the accused able to "get the merchandise
out of the Custom House," and it appears that he "was under observation during the entire
transaction."54 Based apparently on those two circumstances, the trial court had found him guilty,
instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive,
and holding instead that the accused was guilty of consummated theft, finding that "all the
elements of the completed crime of theft are present." 55 In support of its conclusion that the theft
was consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the
discussion of which we replicate below:
The defendant was charged with the theft of some fruit from the land of another. As he was in the
act of taking the fruit[,] he was seen by a policeman, yet it did not appear that he was at that
moment caught by the policeman but sometime later. The court said: "[x x x] The trial court did
not err [x x x ] in considering the crime as that of consummated theft instead of frustrated theft
inasmuch as nothing appears in the record showing that the policemen who saw the accused
take the fruit from the adjoining land arrested him in the act and thus prevented him from taking
full possession of the thing stolen and even its utilization by him for an interval of time." (Decision
of the Supreme Court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter was hearing mass in a church.
The latter on account of the solemnity of the act, although noticing the theft, did not do anything to
prevent it. Subsequently, however, while the defendant was still inside the church, the offended
party got back the money from the defendant. The court said that the defendant had performed all

the acts of execution and considered the theft as consummated. (Decision of the Supreme Court
of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of a key opened up a
case, and from the case took a small box, which was also opened with a key, from which in turn
he took a purse containing 461 reales and 20 centimos, and then he placed the money over the
cover of the case; just at this moment he was caught by two guards who were stationed in
another room near-by. The court considered this as consummated robbery, and said: "[x x x] The
accused [x x x] having materially taken possession of the money from the moment he took it from
the place where it had been, and having taken it with his hands with intent to appropriate the
same, he executed all the acts necessary to constitute the crime which was thereby produced;
only the act of making use of the thing having been frustrated, which, however, does not go to
make the elements of the consummated crime." (Decision of the Supreme Court of Spain, June
13, 1882.)56
It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the
criminal actors in all these cases had been able to obtain full possession of the personal property
prior to their apprehension. The interval between the commission of the acts of theft and the
apprehension of the thieves did vary, from "sometime later" in the 1898 decision; to the very
moment the thief had just extracted the money in a purse which had been stored as it was in the
1882 decision; and before the thief had been able to spirit the item stolen from the building where
the theft took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved
of no consequence in those cases, as it was ruled that the thefts in each of those cases was
consummated by the actual possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated
rather than consummated theft. The case is People v. Sobrevilla, 57 where the accused, while in
the midst of a crowd in a public market, was already able to abstract a pocketbook from the
trousers of the victim when the latter, perceiving the theft, "caught hold of the [accused]s shirtfront, at the same time shouting for a policeman; after a struggle, he recovered his pocket-book
and let go of the defendant, who was afterwards caught by a policeman." 58 In rejecting the
contention that only frustrated theft was established, the Court simply said, without further
comment or elaboration:
We believe that such a contention is groundless. The [accused] succeeded in taking the pocketbook, and that determines the crime of theft. If the pocket-book was afterwards recovered, such
recovery does not affect the [accuseds] criminal liability, which arose from the [accused] having
succeeded in taking the pocket-book.59
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the
latter, in that the fact that the offender was able to succeed in obtaining physical possession of
the stolen item, no matter how momentary, was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position
of petitioner in this case. Yet to simply affirm without further comment would be disingenuous, as
there is another school of thought on when theft is consummated, as reflected in the Dio and
Flores decisions.
Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years
before Flores. The accused therein, a driver employed by the United States Army, had driven his
truck into the port area of the South Harbor, to unload a truckload of materials to waiting U.S.
Army personnel. After he had finished unloading, accused drove away his truck from the Port, but
as he was approaching a checkpoint of the Military Police, he was stopped by an M.P. who
inspected the truck and found therein three boxes of army rifles. The accused later contended

that he had been stopped by four men who had loaded the boxes with the agreement that they
were to meet him and retrieve the rifles after he had passed the checkpoint. The trial court
convicted accused of consummated theft, but the Court of Appeals modified the conviction,
holding instead that only frustrated theft had been committed.
In doing so, the appellate court pointed out that the evident intent of the accused was to let the
boxes of rifles "pass through the checkpoint, perhaps in the belief that as the truck had already
unloaded its cargo inside the depot, it would be allowed to pass through the check point without
further investigation or checking."60 This point was deemed material and indicative that the theft
had not been fully produced, for the Court of Appeals pronounced that "the fact determinative of
consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more
or less momentary."61 Support for this proposition was drawn from a decision of the Supreme
Court of Spain dated 24 January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la
consumacion del delito de hurto es preciso que so haga en circunstancias tales que permitan al
sustractor la libre disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de
otra suerte, dado el concepto del delito de hurto, no puede decirse en realidad que se haya
producido en toda su extension, sin materializar demasiado el acto de tomar la cosa ajena. 62
Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make the booty subject to the control
and disposal of the culprits, the articles stolen must first be passed through the M.P. check point,
but since the offense was opportunely discovered and the articles seized after all the acts of
execution had been performed, but before the loot came under the final control and disposal of
the looters, the offense can not be said to have been fully consummated, as it was frustrated by
the timely intervention of the guard. The offense committed, therefore, is that of frustrated theft. 63
Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at
the time of apprehension is determinative as to whether the theft is consummated or frustrated.
This theory was applied again by the Court of Appeals some 15 years later, in Flores, a case
which according to the division of the court that decided it, bore "no substantial variance between
the circumstances [herein] and in [Dio]."64 Such conclusion is borne out by the facts in Flores.
The accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery
receipt for one empty sea van to the truck driver who had loaded the purportedly empty sea van
onto his truck at the terminal of the stevedoring company. The truck driver proceeded to show the
delivery receipt to the guard on duty at the gate of the terminal. However, the guards insisted on
inspecting the van, and discovered that the "empty" sea van had actually contained other
merchandise as well.65 The accused was prosecuted for theft qualified by abuse of confidence,
and found himself convicted of the consummated crime. Before the Court of Appeals, accused
argued in the alternative that he was guilty only of attempted theft, but the appellate court pointed
out that there was no intervening act of spontaneous desistance on the part of the accused that
"literally frustrated the theft." However, the Court of Appeals, explicitly relying on Dio, did find
that the accused was guilty only of frustrated, and not consummated, theft.
As noted earlier, the appellate court admitted it found "no substantial variance"
between Dio and Flores then before it. The prosecution in Flores had sought to distinguish that
case from Dio, citing a "traditional ruling" which unfortunately was not identified in the decision
itself. However, the Court of Appeals pointed out that the said "traditional ruling" was qualified by
the words "is placed in a situation where [the actor] could dispose of its contents at
once."66 Pouncing on this qualification, the appellate court noted that "[o]bviously, while the truck
and the van were still within the compound, the petitioner could not have disposed of the goods
at once." At the same time, the Court of Appeals conceded that "[t]his is entirely different from
the case where a much less bulk and more common thing as money was the object of the crime,

where freedom to dispose of or make use of it is palpably less restricted," 67 though no further
qualification was offered what the effect would have been had that alternative circumstance been
present instead.
Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to
whether the crime of theft was produced is the ability of the actor "to freely dispose of the articles
stolen, even if it were only momentary." Such conclusion was drawn from an 1888 decision of the
Supreme Court of Spain which had pronounced that in determining whether theft had been
consummated, "es preciso que so haga en circunstancias tales que permitan al sustractor de
aquella, siquiera sea mas o menos momentaneamente." The qualifier "siquiera sea mas o menos
momentaneamente" proves another important consideration, as it implies that if the actor was in a
capacity to freely dispose of the stolen items before apprehension, then the theft could be
deemed consummated. Such circumstance was not present in either Dio or Flores, as the stolen
items in both cases were retrieved from the actor before they could be physically extracted from
the guarded compounds from which the items were filched. However, as implied in Flores, the
character of the item stolen could lead to a different conclusion as to whether there could have
been "free disposition," as in the case where the chattel involved was of "much less bulk and
more common x x x, [such] as money x x x."68
In his commentaries, Chief Justice Aquino makes the following pointed observation on the import
of the Dio ruling:
There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely
dispose of the stolen articles even if it were more or less momentary. Or as stated in another
case[69 ], theft is consummated upon the voluntary and malicious taking of property belonging to
another which is realized by the material occupation of the thing whereby the thief places it under
his control and in such a situation that he could dispose of it at once. This ruling seems to have
been based on Viadas opinion that in order the theft may be consummated, "es preciso que se
haga en circumstancias x x x [70 ]"71
In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also
states that "[i]n theft or robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same, although his act of making use of the
thing was frustrated."72
There are at least two other Court of Appeals rulings that are at seeming variance with the Dio
and Flores rulings. People v. Batoon73 involved an accused who filled a container with gasoline
from a petrol pump within view of a police detective, who followed the accused onto a passenger
truck where the arrest was made. While the trial court found the accused guilty of frustrated
qualified theft, the Court of Appeals held that the accused was guilty of consummated qualified
theft, finding that "[t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x
indicate that actual taking with intent to gain is enough to consummate the crime of theft." 74
In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a supply depot
and loaded them onto a truck. However, as the truck passed through the checkpoint, the stolen
items were discovered by the Military Police running the checkpoint. Even though those facts
clearly admit to similarity with those in Dio, the Court of Appeals held that the accused were
guilty of consummated theft, as the accused "were able to take or get hold of the hospital linen
and that the only thing that was frustrated, which does not constitute any element of theft, is the
use or benefit that the thieves expected from the commission of the offense." 76
In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that "[w]hen the
meaning of an element of a felony is controversial, there is bound to arise different rulings as to
the stage of execution of that felony."77 Indeed, we can discern from this survey of jurisprudence

that the state of the law insofar as frustrated theft is concerned is muddled. It fact, given the
disputed foundational basis of the concept of frustrated theft itself, the question can even be
asked whether there is really such a crime in the first place.
The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not
consummated, theft. As we undertake this inquiry, we have to reckon with the import of this
Courts 1984 decision in Empelis v. IAC.78
As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the
premises of his plantation, in the act of gathering and tying some coconuts. The accused were
surprised by the owner within the plantation as they were carrying with them the coconuts they
had gathered. The accused fled the scene, dropping the coconuts they had seized, and were
subsequently arrested after the owner reported the incident to the police. After trial, the accused
were convicted of qualified theft, and the issue they raised on appeal was that they were guilty
only of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the
Revised Penal Code,79 but further held that the accused were guilty only of frustrated qualified
It does not appear from the Empelis decision that the issue of whether the theft was
consummated or frustrated was raised by any of the parties. What does appear, though, is that
the disposition of that issue was contained in only two sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft because petitioners were not able
to perform all the acts of execution which should have produced the felony as a consequence.
They were not able to carry the coconuts away from the plantation due to the timely arrival of the
No legal reference or citation was offered for this averment, whether Dio, Flores or the Spanish
authorities who may have bolstered the conclusion. There are indeed evident problems with this
formulation in Empelis.
Empelis held that the crime was only frustrated because the actors "were not able to perform all
the acts of execution which should have produced the felon as a consequence." 81 However, per
Article 6 of the Revised Penal Code, the crime is frustrated "when the offender performs all the
acts of execution," though not producing the felony as a result. If the offender was not able to
perform all the acts of execution, the crime is attempted, provided that the non-performance was
by reason of some cause or accident other than spontaneous desistance. Empelis concludes that
the crime was
frustrated because not all of the acts of execution were performed due to the timely arrival of the
owner. However, following Article 6 of the Revised Penal Code, these facts should elicit the
conclusion that the crime was only attempted, especially given that the acts were not performed
because of the timely arrival of the owner, and not because of spontaneous desistance by the
For these reasons, we cannot attribute weight to Empelis as we consider the present petition.
Even if the two sentences we had cited actually aligned with the definitions provided in Article 6 of
the Revised Penal Code, such passage bears no reflection that it is the product of the considered
evaluation of the relevant legal or jurisprudential thought. Instead, the passage is offered as if it
were sourced from an indubitable legal premise so settled it required no further explication.

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft.
Indeed, we cannot see how Empelis can contribute to our present debate, except for the bare fact
that it proves that the Court had once deliberately found an accused guilty of frustrated theft.
Even if Empelis were considered as a precedent for frustrated theft, its doctrinal value is
extremely compromised by the erroneous legal premises that inform it, and also by the fact that it
has not been entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable
in this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it
cannot present any efficacious argument to persuade us in this case. Insofar as Empelis may
imply that convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is
subject to reassessment.
At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de Espaa was
then in place. The definition of the crime of theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni fuerza en las
cosas, toman las cosas muebles ajenas sin la voluntad de su dueo.
2. Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la apropriaren co
intencin de lucro.
3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado, salvo los
casos previstos en los artculos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613;
Segundo prrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court
decisions were handed down. However, the said code would be revised again in 1932, and
several times thereafter. In fact, under the Codigo Penal Espaol de 1995, the crime of theft is
now simply defined as "[e]l que, con nimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado" 82
Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre
disposicion" of the property is not an element or a statutory characteristic of the crime. It does
appear that the principle originated and perhaps was fostered in the realm of Spanish
The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the
1870 Codigo Penal de Espaa. Therein, he raised at least three questions for the reader whether
the crime of frustrated or consummated theft had occurred. The passage cited in Dio was
actually utilized by Viada to answer the question whether frustrated or consummated theft was
committed "[e]l que en el momento mismo de apoderarse de la cosa ajena, vindose
sorprendido, la arroja al suelo."83 Even as the answer was as stated in Dio, and was indeed
derived from the 1888 decision of the Supreme Court of Spain, that decisions factual predicate
occasioning the statement was apparently very different from Dio, for it appears that the 1888
decision involved an accused who was surprised by the employees of a haberdashery as he was
abstracting a layer of clothing off a mannequin, and who then proceeded to throw away the
garment as he fled.84

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions
of the Supreme Court of Spain that have held to that effect. 85 A few decades later, the esteemed
Eugenio Cuello Caln pointed out the inconsistent application by the Spanish Supreme Court with
respect to frustrated theft.
Hay frustracin cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos
de harino del carro que los conducia a otro que tenan preparado, 22 febrero 1913; cuando el
resultado no tuvo efecto por la intervencin de la policia situada en el local donde se realiz la
sustraccin que impidi pudieran los reos disponer de lo sustrado, 30 de octubre 1950. Hay "por
lo menos" frustracin, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12
abril 1930; hay frustracin "muy prxima" cuando el culpable es detenido por el perjudicado acto
seguido de cometer la sustraccin, 28 febrero 1931. Algunos fallos han considerado la existencia
de frustracin cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos
hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es
admissible, stos, conforme a lo antes expuesto, son hurtos consumados. 86
Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually possible:
La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa
queda de hecho a la disposicin del agente. Con este criterio coincide la doctrina sentada
ltimamente porla jurisprudencia espaola que generalmente considera consumado el hurto
cuando el culpable coge o aprehende la cosa y sta quede por tiempo ms o menos duradero
bajo su poder. El hecho de que ste pueda aprovecharse o no de lo hurtado es indiferente. El
delito no pierde su carcter de consumado aunque la cosa hurtada sea devuelta por el culpable o
fuere recuperada. No se concibe la frustracin, pues es muy dificil que el que hace cuanto es
necesario para la consumacin del hurto no lo consume efectivamente, los raros casos que
nuestra jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos delitos
consumados.87 (Emphasis supplied)
Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was content with
replicating the Spanish Supreme Court decisions on the matter, Cuello Caln actually set forth his
own thought that questioned whether theft could truly be frustrated, since "pues es muy dificil que
el que hace cuanto es necesario para la consumacin del hurto no lo consume efectivamente."
Otherwise put, it would be difficult to foresee how the execution of all the acts necessary for the
completion of the crime would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no weighted force in scholarly
thought that obliges us to accept frustrated theft, as proposed in Dio and Flores. A final ruling by
the Court that there is no crime of frustrated theft in this jurisdiction will not lead to scholastic
pariah, for such a submission is hardly heretical in light of Cuello Calns position.
Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a
fresh perspective, as we are not bound by the opinions of the respected Spanish commentators,
conflicting as they are, to accept that theft is capable of commission in its frustrated stage.
Further, if we ask the question whether there is a mandate of statute or precedent that must
compel us to adopt the Dio and Flores doctrines, the answer has to be in the negative. If we did
so, it would arise not out of obeisance to an inexorably higher command, but from the exercise of
the function of statutory interpretation that comes as part and parcel of judicial review, and a
function that allows breathing room for a variety of theorems in competition until one is ultimately
adopted by this Court.

The foremost predicate that guides us as we explore the matter is that it lies in the province of the
legislature, through statute, to define what constitutes a particular crime in this jurisdiction. It is
the legislature, as representatives of the sovereign people, which determines which acts or
combination of acts are criminal in nature. Judicial interpretation of penal laws should be aligned
with what was the evident legislative intent, as expressed primarily in the language of the law as it
defines the crime. It is Congress, not the courts, which is to define a crime, and ordain its
punishment.88 The courts cannot arrogate the power to introduce a new element of a crime which
was unintended by the legislature, or redefine a crime in a manner that does not hew to the
statutory language. Due respect for the prerogative of Congress in defining crimes/felonies
constrains the Court to refrain from a broad interpretation of penal laws where a "narrow
interpretation" is appropriate. "The Court must take heed of language, legislative history and
purpose, in order to strictly determine the wrath and breath of the conduct the law forbids." 89
With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability of the
offender to freely dispose of the property stolen is not a constitutive element of the crime of theft.
It finds no support or extension in Article 308, whether as a descriptive or operative element of
theft or as the mens rea or actus reus of the felony. To restate what this Court has repeatedly
held: the elements of the crime of theft as provided for in Article 308 of the Revised Penal Code
are: (1) that there be taking of personal property; (2) that said property belongs to another; (3)
that the taking be done with intent to gain; (4) that the taking be done without the consent of the
owner; and (5) that the taking be accomplished without the use of violence against or intimidation
of persons or force upon things.90
Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to
gain, of personal property of another without the latters consent. While the Dio/Flores dictum is
considerate to the mindset of the offender, the statutory definition of theft considers only the
perspective of intent to gain on the part of the offender, compounded by the deprivation of
property on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage,
the question is again, 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. This conclusion is reflected in Chief Justice Aquinos
commentaries, as earlier cited, that "[i]n theft or robbery the crime is consummated after the
accused had material possession of the thing with intent to appropriate the same, although his act
of making use of the thing was frustrated."91
It might be argued, that the ability of the offender to freely dispose of the property stolen delves
into the concept of "taking" itself, in that there could be no true taking until the actor obtains such
degree of control over the stolen item. But even if this were correct, the effect would be to
downgrade the crime to its attempted, and not frustrated stage, for it would mean that not all the
acts of execution have not been completed, the "taking not having been accomplished." Perhaps
this point could serve as fertile ground for future discussion, but our concern now is whether there
is indeed a crime of frustrated theft, and such consideration proves ultimately immaterial to that
question. Moreover, such issue will not apply to the facts of this particular case. We are satisfied
beyond reasonable doubt that the taking by the petitioner was completed in this case. With intent
to gain, he acquired physical possession of the stolen cases of detergent for a considerable
period of time that he was able to drop these off at a spot in the parking lot, and long enough to
load these onto a taxicab.

Indeed, 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.92 And long ago, we asserted in People v. Avila:93
x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be
appropriated into the physical power of the thief, which idea is qualified by other conditions, such
as that the taking must be effected animo lucrandi and without the consent of the owner; and it
will be here noted that the definition does not require that the taking should be effected against
the will of the owner but merely that it should be without his consent, a distinction of no slight
Insofar as we consider the present question, "unlawful taking" is most material in this respect.
Unlawful taking, which is the deprivation of ones personal property, is the element which
produces the felony in its consummated stage. At the same time, without unlawful taking as an
act of execution, the offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under Article 308 of the Revised Penal
Code, theft cannot have a frustrated stage. Theft can only be attempted or consummated.
Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders
therein obtained possession over the stolen items, the effect of the felony has been produced as
there has been deprivation of property. The presumed inability of the offenders to freely dispose
of the stolen property does not negate the fact that the owners have already been deprived of
their right to possession upon the completion of the taking.
Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to
freely dispose of the stolen property frustrates the theft would introduce a convenient defense
for the accused which does not reflect any legislated intent, 95 since the Court would have carved
a viable means for offenders to seek a mitigated penalty under applied circumstances that do not
admit of easy classification. It is difficult to formulate definite standards as to when a stolen item is
susceptible to free disposal by the thief. Would this depend on the psychological belief of the
offender at the time of the commission of the crime, as implied in Dio?
Or, more likely, the appreciation of several classes of factual circumstances such as the size and
weight of the property, the location of the property, the number and identity of people present at
the scene of the crime, the number and identity of people whom the offender is expected to
encounter upon fleeing with the stolen property, the manner in which the stolen item had been
housed or stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen
item would come into account, relevant as that would be on whether such property is capable of
free disposal at any stage, even after the taking has been consummated.
All these complications will make us lose sight of the fact that beneath all the colorful detail, the
owner was indeed deprived of property by one who intended to produce such deprivation for
reasons of gain. For such will remain the presumed fact if frustrated theft were recognized, for
therein, all of the acts of execution, including the taking, have been completed. If the facts
establish the non-completion of the taking due to these peculiar circumstances, the effect could
be to downgrade the crime to the attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking has been completed, causing
the unlawful deprivation of property, and ultimately the consummation of the theft.
Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not
align with the legislated framework of the crime of theft. The Revised Penal Code provisions on
theft have not been designed in such fashion as to accommodate said rulings. Again, there is no
language in Article 308 that expressly or impliedly allows that the "free disposition of the items

stolen" is in any way determinative of whether the crime of theft has been produced. Dio itself
did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Dio alone for legal support. These cases do not enjoy the weight
of stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them
susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not
since found favor from this Court.
We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As
petitioner has latched the success of his appeal on our acceptance of the Dio and Flores rulings,
his petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has
taken all these years for us to recognize that there can be no frustrated theft under the Revised
Penal Code does not detract from the correctness of this conclusion. It will take considerable
amendments to our Revised Penal Code in order that frustrated theft may be recognized. Our
deference to Viada yields to the higher reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.

G.R. No. L-46297 June 19, 1980

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
VICTORIO LAGUISMA Y SORIANO, defendant-appellant.

It is readily admitted in the exhaustive and learned brief submitted by counsel Pablito V. Sanidad
of appellant Victorio Laguisma, who was convicted for the crime of rape and sentenced
to reclusion perpetua, that the offense in question is almost detestable crime. 1 Such a
characterization becomes more apt, considering that the complainant was. at the time of its
alleged commission, a young girl, eleven years old. 2 Counsel seeks the reversal of the
conviction, relying on this dictum of Sir Matthew Hale: "Charges of rape are very easy to make
and hard to dispute. 3 While the impassioned plea of counsel on behalf of his client is backed up
by a painstaking analysis of the evidence, it cannot be said that his effort suffices for an acquittal
Nor did his submission gain strength by the stress laid on the appraisal by the lower court, which
in his opinion could have been more favorable to his client's cause. it is undoubted that on
questions of credibility, the finding of facts of the judge a quo, while not conclusive, is entitled to
great respect. Moreover, a careful and detailed study of the records of the case justifies the
conclusion that the constitutional presumption of innocence had been overcome. 4 Guilt had been
demonstrated beyond reasonable doubt. We affirm.
At the time of the alleged commission of the offense, September 27, 1974, complainant
Veneranda Fernandez was only 11 years, 10 months and 13 days. 5 She was then enrolled in the
St. Louis Elementary School, being in the sixth grade. 6 At 4:30 in the afternoon of such day, while

she was on her way home, walking along General Luna Street, Baguio City, she saw appellant
Victorio Laguisma Soriano near the Corazon Drug Store in the vicinity of the parking place for
jeeps bound for New Lucban. 7 Pulling her by the hand and telling her that they would take some
refreshment, she was take notwithstanding her refusal, to a canteen near the Corazon Drug
Store, where they drank soft drinks and ate some bread. 8He left her for a while, but asked her to
wait. 9 Upon his return to the canteen, he told her that they would go somewhere. 10Again,
complainant refused, but appellant succeeded nonetheless to have her ride with him in a jeep
with only the two of them as passengers. 11 They were seated beside each t others, on the left
rear seat. 12 The jeep brought them outside the compound of the botanical garden, known as the
Imelda Park, in Baguio City. 13 This time, she was again prevailed upon to go with appellant inside
a small hut therein located, the success of appellant in obtaining her grudging consent being
caused by his getting her books and other school materials. 14 It was then about 5:00 o'clock in
the afternoon when they entered the said hut. 15 Once inside the hut, appellant spread his
raincoat on the floor, undressed himself, and told complainant to lie down on the raincoat, but at
first she would not. 16 It was only her fear that led her to comply. 17 She was forced to remove her
panties. 18 Appellant then placed himself on top of her, staying in that position for about five
minutes. 19 She was aware that appellant was able to put his organ into hers because she felt
pain, although bearable. 20 Still naked, appellant sat on the floor in a corner of the hut, with her
beside him. 21 Then he made her sit on his lap, again notwithstanding her refusal, by pulling her to
him and holding her waist tightly. 22 She narrated that thereby he was able to place his organ in
hers, as she felt pain. 23 Accused then put back his clothes on, at which time a policeman,
Patrolman Warlito J. Vallo, with two other men, arrived. 24 The policemen saw the complainant
and appellant rived. standing about a meter away from the hut and noticed that complainant
was crying. 25 When the accused was asked by Patrolman Vallo what the latter did to the
complainant, he replied that they were only embracing and kissing. 26 Both complainant and the
accused were then taken to the police station for further investigation. 27 While the act was being
perpetrated inside the hut, Aurelio Poyaoan, a gardener in the Botanical garden, was getting
ready to leave his work as it was already time to do so, and was able to see what happened as
there was direct the hut had no door shutter. 28 Testimony from him that he saw appellant forcibly
remove her panties while she was lying on the floor of the hut and that appellant then undressed
himself. 29 The accused then went on top of the complainant and had sexual intercourse with
her. 30 That led him to call for a policeman, but when they arrived, appellant and the complainant
were no longer in the hut. 31 They nevertheless went inside the hut, where they saw several drops
of wet sperm cells on the floor. 32 Complainant was investigated in the Baguio City Police
Department. 33 Her statement was reduced to writing. 34 Later, she went with her uncle and aunt to
the Baguio General Hospital, where she was examined by Dr. Arturo Luczon, a physician of said
hospital. 35 His finding was summarized thus: "Reddenning of the labia majora, without abrasions
or injury, reddenning of the labia minora, no laceration noted in the hymen, presence of white
milky discharge from the vaginal canal. 36
As set forth at the outset, the decision must be affirmed.
1. An appraisal of the six errors assigned yields the conclusion that the main reliance of appellant
is on the alleged failure to overcome the constitutional presumption of innocence. That is not
surprising. This Court has never been reluctant to give it force and effect whenever warranted. In
the language of People v. Dramayo: 37 Only if the judge below and the appellate tribunal could
arrive at a conclusion that the crime had been committed precisely by the person on trial under
such an exacting test should the sentence be one of conviction. It is thus required that every
circumstance favoring his innocence be duly taken into account. The proof against him must
survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The
conscience must be satisfied that on the defendant could be laid the responsibility for the offense
charged; that not only did he perpetrate the act but that it amounted to a crime. What is required
then is moral certainty. 38 If the lower court had been remiss in giving life to such a fundamental
principle, then it should be taken to task. Such is not, however, the case. The evidence of record
objectively viewed sustains the conclusion it reached.

2. Nor was the cause of appellant bolstered by the attack launched in the exhaustive brief of
counsel on the findings of fact by the lower court. Of the six errors assigned, four deal with such
alleged failing. The weakness of such an approach is apparent. There is a host of decisions to the
effect that as the trial judge had the opportunity to observe the witnesses testify concerning the
events that did take place, the conclusion arrived at is entitled to fun respect, unless, of course, it
could be demonstrated that he failed to appreciate the significance of a relevant fact or
circumstance or, what is worse, that it was ignored, So it has been since the opinion of Justice
Moreland in United States v. Pico, 39 a 1910 decision. Since then, this Court has been committed
to such a view.
3. To be more precise, the first assigned error complains against the lower court giving full
credence and weight to the testimony of the complainant as well as the alleged eyewitnesses; the
second assigned error, a corollary to the first, with the lower court refusing to hold that
complainant's credibility "was completely destroyed by her testimony" on the presence of force or
intimidation; the third, with the lower court giving "undue weight and importance to the testimony
of another prosecution witness, Patrolman Warlito Vallo, " and the fourth assigned error, with the
failure of the lower court to lend "credence to the clear, positive and convincing evidence of
appellant and his witnesses." It is apparent therefore why, in the light of the authoritative
precedents, the vigor with which counsel for defendant-appellant presented his side of the case
did not suffice. To be more precise, fully five pages of the brief for appellant 40 were devoted to the
alleged lack of credibility and probability of the testimony that there was intercourse, one of the
main points stressed being that such "incident allegedly [happened] in broad daylight. 41 A few
pages later, the testimony of the alleged eyewitness Aurelio Poyaoan was subjected to the
withering attack. Counsel stated the following. "The witness admits that ordinarily the inside of the
Benguet Hut is [dim] but asserts that on the day and hour of the incident the same was not true
because the rays of the shining sun strike the frontage of the Benguet Hut. Was the sun really
shining? Was Poyaoan telling the truth? Is he reliable? 42 Then he proceeded: "The final arbiter in
this controversy is of course the weather bureau or [Pagasa] (Philippine Atmospheric,
Geophysical and Astronomical Services Administration), as it is now called, which is the
government office that keeps and holds faithful records of the weather conditions all over the
country. ... What does the records of the [Pagasa], which is the final authority, have to say about
the sun shining on the afternoon of September 27, 1974?', 43 To the question asked by him as to
whether from the records of the Pagasa, there was any sunshine visible between the hours of
5:00 and 6:00, this was the reply of his witness: "Between the time 5 to 6 in the afternoon of that
day, September 27, 1974 as per our observation and our official record, [there was no sunshine
on that particular time,] 5 to 6 p.m. 44 Then he asked the rhetorical question: "Who should be
believed now? The alleged eyewitness who relies from memory, or [nature] itself as reflected in
official, accurate, recorded government files of the [Pagasa]? Who is telling a he now, Poyaon or
[nature] as contained in the official records of the government? 45 For him, the answer is obvious:
"The statement of Aurelio Poyaoan regarding the [sun shining] is vital because without it the rest
of his testimony becomes of no moment. This is because without the sun shining he would admit
that inside the Benguet Hut would be [dim] and of poor visibility. Without the sun shining too he
would also be caught categorically stating a [falsehood]. 46 Thus counsel impaled himself in the
horns of dilemma. Either the incident was improbable because it happened in broad daylight, as
set forth in an earlier portion of Ws brief, or the eyewitness could not have on the alleged act as
the sun was not shining at that particular time and it was already dark. He could not have it both
ways. His effort to make out a case for the appellant could not be rewarded with success as it did
suffer from the seeds of internal contradiction. It may be added that the reproach hurled on the
character of the complainant because of her alleged failure to stick to the truth could be more
aptly characterized as a manifestation of his skill at cross-examination. The rather dark picture of
the character of complainant painted by him suffers from rhetorical excess. It detracts from its
persuasiveness. All talk about force, even if in the guise of destroying complainant's credibility, is
lacking in relevance, considering that the offense was committed against a girl below the statutory
age. It is as simple as that. To repeat, the trial judge was convinced that such was the case,
believing as he did the evidence for the prosecution. The defense was unable to cast doubt
sufficient to call for an acquittal. Necessarily, conviction of appellant was indicated. So he

concluded. The compulsion exerted by the hst of decisions earlier referred to as to the respect
accorded his findings of fact precludes the grant of the plea for the reversal of the judgment.
4. The fifth alleged error imputed to the lower court is that it should have acquitted the defendantappellant. This particular assignment of error need not be discussed in the light of the foregoing.
The thrust of the argument advanced as to the sixth alleged error concerning the failure t6 use
the medical evidence as a basis for acquittal is that complainant is still physically a
virgin. 47 Appellant therefore would deny the truth of the allegation that on the two occasions in
the Benguet Hut, there was sexual intercourse. As far back as People v. Oscar, 48 a 1925
decision, it was held that a showing of full penetration is not necessary to convict an accused.
That same year, in People v. Hernandez, 49 the basis for conviction was "partial
penetration. 50 In People v. Erina, 51 promulgated the next year, the same approach was followed,
as shown by this, relevant excerpt: "It has been suggested that the child was of such tender age
that penetration was impossible; that the crime of rape consequently was impossible of
consummation; and that, therefore, the offense committed should be treated only as abusos
deshonestos. We do not think so. It is probably true that a complete penetration was impossible,
but such penetration is not essential to the commission of the crime; it is sufficient if there is a
penetration of the labia. 52
5. This opinion can fitly close with a reiteration of the settled law that where the victim is a young
girl of tender years, consent on her part is not a defense. 53 It is understandably why That is to
manifest the deep concern of the state for the welfare of a child. Such an approach vitalizes
further the concept of parens patria. 54
WHEREFORE, the lower court decision of January 29, 1977, convicting Victorio Laguisma y
Soriano of the crime of rape and sentencing him to reclusion perpetua, as well as the award of
P12,000.00 as damages to the offended party is affirmed. The award of moral damages to be
paid the mother of the offended party is set aside. No Costs.
Barredo, Aquino, Concepcion, Jr., Abad Santos and De Castro, JJ., concur.

G.R. No. 88724

April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
C. Manalo for defendant-appellant.

The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83031-B before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed
in the said case reads as follows (p. 47, Rollo):

The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by
the offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed
as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at
Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction
of this Honorable Court, above named accused with lewd designs and by the use of a
Batangas knife he conveniently provided himself for the purpose and with threats and
intimidation, did, then and there wilfully, unlawfully and feloniously lay with and
succeeded in having sexual intercourse with Cristina S. Abayan against her will and
without her consent.
Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the
witnesses for the People testified and the exhibits were formally offered and admitted, the
prosecution rested its case. Thereafter, the defense opted not to present any exculpatory
evidence and instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its
decision, the dispositive portion of which reads (pp. 59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @
LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the
aggravating circumstances of dwelling and nightime (sic) with no mitigating circumstance
to offset the same, and considering the provisions of the Indeterminate Sentence Law,
imposes on accused an imprisonment of TEN (10) YEARS and ONE (1) DAY,PRISION
MAYOR, as minimum to TWELVE (12) YEARS PRISION MAYOR, maximum; to
indemnify CRISTINA S. ABAYAN, the amount of Four Thousand (P4,000.00) Pesos,
without subsidiary imprisonment in case of insolvency, and to pay costs.
Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29,
1988, the Court of Appeals rendered its decision, the dispositive portion of which reads (p.
102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found
guilty of the crime of rape, and consequently, sentenced to suffer imprisonment
of reclusion perpetua and to indemnify the victim in the amount of P30,000.00.
On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29,
1988 decision and forwarded the case to this Court, considering the provision of Section 9,
paragraph 3 of Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3,
subparagraph 1 of the Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's
College at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC)

In the early morning of March 20, 1983, complainant arrived at her boarding house. Her
classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly
after her classmates had left, she knocked at the door of her boarding house (p. 5, ibid).
All of a sudden, somebody held her and poked a knife to her neck. She then recognized
appellant who was a frequent visitor of another boarder (pp. 8-9, ibid).
She pleaded with him to release her, but he ordered her to go upstairs with him. Since
the door which led to the first floor was locked from the inside, appellant forced
complainant to use the back door leading to the second floor (p. 77, ibid). With his left
arm wrapped around her neck and his right hand poking a "balisong" to her neck,
appellant dragged complainant up the stairs (p. 14, ibid). When they reached the second
floor, he commanded her to look for a room. With the Batangas knife still poked to her
neck, they entered complainant's room.
Upon entering the room, appellant pushed complainant who hit her head on the wall.
With one hand holding the knife, appellant undressed himself. He then ordered
complainant to take off her clothes. Scared, she took off her T-shirt. Then he pulled off
her bra, pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her. He made her hold his
penis and insert it in her vagina. She followed his order as he continued to poke the knife
to her. At said position, however, appellant could not fully penetrate her. Only a portion of
his penis entered her as she kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount him. In this position,
only a small part again of his penis was inserted into her vagina. At this stage, appellant
had both his hands flat on the floor. Complainant thought of escaping (p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant pursued her and
climbed the partition. When she saw him inside the room, she ran to another room.
Appellant again chased her. She fled to another room and jumped out through a window
(p. 27, ibid).
Still naked, she darted to the municipal building, which was about eighteen meters in
front of the boarding house, and knocked on the door. When there was no answer, she
ran around the building and knocked on the back door. When the policemen who were
inside the building opened the door, they found complainant naked sitting on the stairs
crying. Pat. Donceras, the first policeman to see her, took off his jacket and wrapped it
around her. When they discovered what happened, Pat. Donceras and two other
policemen rushed to the boarding house. They heard a sound at the second floor and
saw somebody running away. Due to darkness, they failed to apprehend appellant.
Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital
where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a
Medical Certificate (Exhibit "A") which states:
Physical Examination Patient is fairly built, came in with loose clothing with no
under-clothes; appears in state of shock, per unambulatory.
PE Findings Pertinent Findings only.

Neck- Circumscribed hematoma at Ant. neck.

Breast Well developed, conical in shape with prominent nipples; linear
abrasions below (L) breast.
Back Multiple pinpoint marks.
Extremities Abrasions at (R) and (L) knees.
Vulva No visible abrasions or marks at the perineal area or over the
vulva, errythematous (sic) areas noted surrounding vaginal orifice, tender, hymen
intact; no laceration fresh and old noted; examining finger can barely enter and
with difficulty; vaginal canal tight; no discharges noted.
As aforementioned, the trial court convicted the accused of frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the
witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was committed by the
The accused assails the testimonies of the victim and Pat. Donceras because they "show
remarkable and vital inconsistencies and its incredibility amounting to fabrication and therefore
casted doubt to its candor, truth and validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies
which are not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far
from being badges of fabrication, the inconsistencies in their testimonies may in fact be justifiably
considered as manifestations of truthfulness on material points. These little deviations also
confirm that the witnesses had not been rehearsed. The most candid witnesses may make
mistakes sometimes but such honest lapses do not necessarily impair their intrinsic credibility
(People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA 98). Rather than discredit the
testimonies of the prosecution witnesses, discrepancies on minor details must be viewed as
adding credence and veracity to such spontaneous testimonies (Aportadera et al. v. Court of
Appeals, et al., G.R. No. L-41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete
uniformity in details would be a strong indication of untruthfulness and lack of spontaneity (People
v. Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one of the alleged
inconsistencies deserves a little discussion which is, the testimony of the victim that the accused
asked her to hold and guide his penis in order to have carnal knowledge of her. According to the
accused, this is strange because "this is the only case where an aggressor's advances is being
helped-out by the victim in order that there will be a consumation of the act." (p. 34, Rollo). The
allegation would have been meritorious had the testimony of the victim ended there. The victim
testified further that the accused was holding a Batangas knife during the aggression. This is a
material part of the victim's testimony which the accused conveniently deleted.
We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial
court on the credibility of witnesses should be accorded the highest respect because it has the
advantage of observing the demeanor of witnesses and can discern if a witness is telling the truth
(People v. Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's
finding regarding the testimony of the victim (p 56, Rollo):

As correctly pointed out in the memorandum for the People, there is not much to be
desired as to the sincerity of the offended party in her testimony before the court. Her
answer to every question profounded (sic), under all circumstances, are plain and
straightforward. To the Court she was a picture of supplication hungry and thirsty for the
immediate vindication of the affront to her honor. It is inculcated into the mind of the Court
that the accused had wronged her; had traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all that is necessary to show
that rape was committed provided her testimony is clear and free from contradiction and her
sincerity and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987,
153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People
v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in this case did not
only state that she was raped but she testified convincingly on how the rape was committed. The
victim's testimony from the time she knocked on the door of the municipal building up to the time
she was brought to the hospital was corroborated by Pat. Donceras. Interpreting the findings as
indicated in the medical certificate, Dr. Reinerio Zamora (who was presented in view of the
unavailability of Dr. Abude) declared that the abrasions in the left and right knees, linear
abrasions below the left breast, multiple pinpoint marks, circumscribed hematoma at the anterior
neck, erythematous area surrounding the vaginal orifice and tender vulva, are conclusive proof of
struggle against force and violence exerted on the victim (pp. 52-53, Rollo). The trial court even
inspected the boarding house and was fully satisfied that the narration of the scene of the incident
and the conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe enough to carry the
weight of both accused and offended party without the slightest difficulty, even in the
manner as narrated. The partitions of every room were of strong materials, securedly
nailed, and would not give way even by hastily scaling the same.
A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et
al., G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p.
55, Rollo):
. . . And the jump executed by the offended party from that balcony (opening) to the
ground which was correctly estimated to be less than eight (8) meters, will perhaps
occasion no injury to a frightened individual being pursued. Common experience will tell
us that in occasion of conflagration especially occuring (sic) in high buildings, many have
been saved by jumping from some considerable heights without being injured. How much
more for a frightened barrio girl, like the offended party to whom honor appears to be
more valuable than her life or limbs? Besides, the exposure of her private parts when she
sought assistance from authorities, as corroborated, is enough indication that something
not ordinary happened to her unless she is mentally deranged. Sadly, nothing was
adduced to show that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We
ruled that:
What particularly imprints the badge of truth on her story is her having been rendered
entirely naked by appellant and that even in her nudity, she had to run away from the
latter and managed to gain sanctuary in a house owned by spouses hardly known to her.
All these acts she would not have done nor would these facts have occurred unless she
was sexually assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to present other witnesses to
corroborate the allegations in the complaint and the non-presentation of the medico-legal officer

who actually examined the victim. Suffice it to say that it is up to the prosecution to determine
who should be presented as witnesses on the basis of its own assessment of their necessity
(Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No.
65589, May 31, 1989). As for the non-presentation of the medico-legal officer who actually
examined the victim, the trial court stated that it was by agreement of the parties that another
physician testified inasmuch as the medico-legal officer was no longer available. The accused did
not bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the first assignment of error fall flat
on its face. Some were not even substantiated and do not, therefore, merit consideration. We are
convinced that the accused is guilty of rape. However, We believe the subject matter that really
calls for discussion, is whether or not the accused's conviction for frustrated rape is proper. The
trial court was of the belief that there is no conclusive evidence of penetration of the genital organ
of the victim and thus convicted the accused of frustrated rape only.
The accused contends that there is no crime of frustrated rape. The Solicitor General shares the
same view.
Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:
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, even though neither of the
circumstances mentioned in the two next preceding paragraphs shall be present.



Carnal knowledge is defined as the act of a man in having sexual bodily connections with a
woman (Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
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.
Correlating these two provisions, there is no debate that the attempted and consummated stages
apply to the crime of rape.1wphi1 Our concern now is whether or not the frustrated stage applies
to the crime of rape.

The requisites of a frustrated felony are: (1) that the offender has performed all the acts of
execution which would produce the felony and (2) that the felony is not produced due to causes
independent of the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209,
212, Justice Moreland set a distinction between attempted and frustrated felonies which is readily
understood even by law students:
. . . 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.
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he
actually attains his purpose and, from that moment also all the essential elements of the offense
have been accomplished. Nothing more is left to be done by the offender, because he has
performed the last act necessary to produce the crime.Thus, the felony is consummated. In a
long line of cases (People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v.
Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996,
August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape,
perfect penetration is not essential. Any penetration of the female organ by the male organ is
sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration
of the vagina is sufficient to warrant conviction.Necessarily, rape is attempted if there is no
penetration of the female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil.
694; United States v. Garcia: 9 Phil. 434) because not all acts of execution was performed. The
offender merely commenced the commission of a felony directly by overt acts. Taking into
account the nature, elements and manner of execution of the crime of rape and jurisprudence on
the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of People v. Eria 50 Phil. 998
[1927] where We found the offender guilty of frustrated rape there being no conclusive evidence
of penetration of the genital organ of the offended party. However, it appears that this is a "stray"
decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are
aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a
homicide is committed by reason or on the occasion thereof. We are of the opinion that this
particular provision on frustrated rape is a dead provision. The Eria case, supra, might have
prompted the law-making body to include the crime of frustrated rape in the amendments
introduced by said laws.
In concluding that there is no conclusive evidence of penetration of the genital organ of the victim,
the trial court relied on the testimony of Dr. Zamora when he "categorically declared that the
findings in the vulva does not give a concrete disclosure of penetration. As a matter of fact, he
tossed back to the offended party the answer as to whether or not there actually was
penetration." (p. 53, Rollo) Furthermore, the trial court stated (p. 57, Rollo):

. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as

interpreted by Dr. Reinerio Zamora and the equivocal declaration of the latter of
uncertainty whether there was penetration or not. It is true, and the Court is not oblivious,
that conviction for rape could proceed from the uncorroborated testimony of the offended
party and that a medical certificate is not necessary (People v. Royeras People v. Orteza,
6 SCRA 109, 113). But the citations the people relied upon cannot be applicable to the
instant case. The testimony of the offended party is at variance with the medical
certificate. As such, a very disturbing doubt has surfaced in the mind of the court. It
should be stressed that in cases of rape where there is a positive testimony and a
medical certificate, both should in all respect, compliment each other, for otherwise to rely
on the testimony alone in utter disregard of the manifest variance in the medical
certificate, would be productive of mischievous results.
The alleged variance between the testimony of the victim and the medical certificate does not
exist. On the contrary, it is stated in the medical certificate that the vulva was erythematous
(which means marked by abnormal redness of the skin due to capillary congestion, as in
inflammation) and tender. It bears emphasis that Dr. Zamora did not rule out penetration of the
genital organ of the victim. He merely testified that there was uncertainty whether or not there
was penetration. Anent this testimony, the victim positively testified that there was penetration,
even if only partially (pp. 302, 304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.



Q What do you mean when you said comply, or what act do you referred (sic) to, when
you said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of
the victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167
SCRA 65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v.
Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's
testimony is merely corroborative and is not an indispensable element in the prosecution of this
case (People v. Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the scale in favor of the
accused because after a thorough review of the records, We find the evidence sufficient to prove
his guilt beyond reasonable doubt of the crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is
committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The
trial court appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper
imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987
Constitution and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989,
that the cited Constitutional provision did not declare the abolition of the death penalty but merely

prohibits the imposition of the death penalty, the Court has since February 2, 1987 not imposed
the death penalty whenever it was called for under the Revised Penal Code but instead reduced
the same toreclusion perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14,
1990). Reclusion perpetua, being a single indivisible penalty under Article 335, paragraph 3, is
imposed regardless of any mitigating or aggravating circumstances (in relation to Article 63,
paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112
SCRA 615; People v. Manzano, G.R. No. L38449, November 25, 1982, 118 SCRA 705; People v.
Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused
Ceilito Orita is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced
to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00.

[G.R. No. 133888. March 1, 2001]

PHILIPPINES, plaintiff-appellee,
ROSALES, accused-appellant.



This case is before this Court on automatic review from the Regional Trial Court of Legazpi
City, Albay, Branch III, which imposed on accused-appellant the death penalty for rape in Criminal
Case No. 7170.
The victim, Lorielyn R. Nardo, is the eldest daughter of accused- appellant. She was born on
September 11, 1981 and, at the time of the incident, was fourteen ( 14) years old. [1]
On February 24, 1996, around noon, Lorielyn was in their house located in Barangay 3,
Camalig, Albay, together with her father, accused- appellant Alfredo Nardo, two younger brothers,
Leonel and Louie, and maternal grandfather, Vicente Remot. At 1 :30 o'clock in the afternoon,
after they had lunch, Vicente left for work. Alfredo told his sons, Leonel and Louie, to go out. He
then ordered Lorielyn to get his cigarettes in his bedroom. When Lorielyn went inside the
bedroom, her father followed her. He embraced Lorielyn from behind and began mashing her
breasts. Lorielyn pleaded, "Papa, please stop it. Have mercy. " Her father ignored her. Instead, he
undressed her and pushed her to the bed. Lorielyn started to cry , while Alfredo took off his
clothes. Then, he lay on top of her and had sexual intercourse with her. He kissed her from the
neck down. She tried to free herself but Alfredo took hold of a knife from a nearby cabinet and
pointed it at her right ear. He threatened to kill their whole family if Lorielyn told anyone what he
did. When he was finished, Alfredo left the house. During all this time, Lorielyn's mother, Elizabeth
Nardo, was washing clothes about five houses away.[2]
Elizabeth returned home at about 3:00 o'clock p.m. She saw Lorielyn crying while washing
the dishes. She asked Lorielyn why she was crying, but her daughter said nothing. [3]
On March 19, 1996, Lorielyn was washing clothes when her father approached her and
whispered, "We will play tonight near the river. " Lorielyn understood this to mean that her father
wanted to have sexual intercourse with her again. She finished the laundry and left the house.

She took a passenger jeepney to Barangay Libod, Camalig, Albay and proceeded to the house of
her aunt, Carol Navera. She stayed there until her aunt arrived at around 5:00 o'clock in the
afternoon. When it became late, Carol told Lorielyn to go home, but she decided to spend the
night at her aunt's house because she was afraid to undergo the ordeal from her father again. [4]
The next day, Lorielyn's brother, Leone, was sent by her father to fetch her, but she refused
to go with him. Her aunt asked her again why she did not want to go home. She merely said she
had a problem. She slept at her aunt's house again that night. The following day, her mother
came to fetch her. Lorielyn told her mother she did not want to go home. She said, "Mama, do
you want me to become pregnant in that house? " Her mother asked, "Who will impregnate you
there? " Lorielyn replied, "Your husband. " Her mother retorted that Alfredo could not do that to
her, then left.[5]
Lorielyn stayed at her aunt's house until March 22, 1996. On that date, Carol again asked
Lorielyn what her problem was. Finally, she told her aunt that her father raped her. Immediately,
Carol went to report the matter to the police. She later returned home with two policemen, and
together they brought Lorielyn to the Camalig Police Station. The rape was entered in the police
blotter.[6] The policemen then brought Lorielyn to the Municipal Health Office of Camalig, Albay,
where she was examined by Dr. Melvyn F . Orbe, the Municipal Health Officer. [7] From there
Lorielyn was brought to the Municipal Trial Court of Camalig-Albay to file a formal complaint for
rape against her father, Alfredo Nardo.[8]
On May 29, 1996, an Information for rape was filed against Alfredo Nardo, charging as
That on or about the 24th day of February 1996, at more or less 1:30 o'clock in the afternoon, at
Brgy. No.3, Municipality of Camalig, Province of Albay, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, being the father of the herein victim, with lewd
and unchaste design, by means of violence, force and intimidation, armed with a knife, did then
and there wilfully, unlawfully and feloniously have carnal knowledge with her (sic) own daughter,
LORIELYN R. NARDO, a 14 year old girl, against her will and consent, to her damage and
At the arraignment on August 8, 1996, accused-appellant pleaded not guilty.[10]
The prosecution presented Dr. Melvyn Orbe, who testified on the following findings as a
result of his examination of the victim, Lorielyn Nardo:
Pelvic Examination:
.:. whitish to yellowish discharge
.:. irritation lateral aspect of the posterior vulva at 3 o ' clock .
.:. healed laceration hymenal in origin posterior aspect of the fourchet [11]
Dr. Orbe stated that based on these findings, it is possible that Lorielyn had sexual
Carolina Navera, testifying for the prosecution, corroborated Lorielyn's statement that the
latter went to her house on March 20, 1996. Lorielyn cried and told her that she did not want to go

home because she had a problem. Elizabeth, Lorielyn's mother, came to fetch her but she
refused to go home, saying that she was raped by her father. Upon hearing this, Elizabeth left
and told Carolina not to let Lorielyn leave her house. After Elizabeth was gone, Carolina went to
the police station. She returned later .with two policemen, who then brought Lorielyn to the police
headquarters. [13]
Ma. Francia Aguilar, the social welfare officer of the Department of Social Welfare and
Development, also testified that in the evening of March 22, 1996, she responded to a report of a
rape incident. She met the victim, Lorielyn Nardo, at the house of Cely Bantog, a social worker, at
Camalig, Albay. She interviewed Lorielyn and her mother, Elizabeth, tor the purpose of preparing
a Social Case Study report. [14]Thereafter, she endorsed Lorielyn to the DSWD Center for Girls in
Sorsogon, Sorsogon to undergo therapeutics.[15]
SPO3 Jose Nuylan, a member of the Camalig police force, testified that he investigated the
rape incident and took the statement of Lorielyn Nardo. [16]
Elizabeth Nardo, the victim's mother, was called to the witness stand. She testified that she
and Alfredo are not married, but they have been living together. They have seven children, the
eldest of whom is Lorielyn. She stated that Lorielyn was born on September 11, 1981 at Anei,
Claveria, Misamis Oriental; that Lorielyn's birth certificate was burned in the Municipal Building of
Misamis Oriental.[17] However, Elizabeth presented and identified Lorielyn's baptismal certificate
showing that she was born on September 11,1981.[18]
The defense, on the other hand, presented lawyer Santer G. Gonzales, the employer of
accused-appellant. He testified that accused-appellant worked as a helper at his farm in
Quirangay, Camalig, Albay. On February 24, 1996, accused-appellant arrived at his farm before
8:00 o'clock in the morning. He was followed by his father-in-law, Vicente Remot, who lived with
him in the same house. It started to rain hard, so they decided not to work that day. Vicente
Remot went home at around 8:30 or 9:00 o'clock in the morning. Accused-appellant stayed
behind. After a while, Paterno Ramas, a neighbor of Atty. Gonzales, arrived. They started to drink.
None of them left the farmhouse since Atty. Gonzales kept bottles of gin and cigarettes in stock.
They were joined later in thc afternoon by. Didjo Mujar, another friend of Atty. Gonzales. They
drank about five bottles of gin and sang while Atty. Gonzales played the guitar. The rain subsided
at around 3:30 o'clock in the afternoon, so they stopped drinking. At 4:00 o'clock in the afternoon,
accused-appellant left.[19] The farm is located around 400 to 500 meters away from Barangay 3,
where accused-appellant and the victim reside, and can be reached in 15 minutes. [20]
When asked to comment on the victim, Lorielyn Nardo, Atty. Gonzales described her as one
capable of telling a lie. He narrated that once, she went to his farm to collect the amount of
P50.00 as daily wage of her grandfather, Vicente Remot, but she gave only P35.00 to her mother.
Elizabeth thus went to Atty. Gonzales' to ask about the deficiency. They later learned from
Lorielyn ' s younger sister that she spent the missing P15.00 on snacks. [21]
Vicente Remot, accused-appellant's father-in-law, corroborated Atty. Gonzales' testimony
that he reported for work at the latter's farm in the morning of February 24, 1996, but he was
unable to work because of the rain, so he went home instead, leaving accused-appellant in the
farm. At 1 :00 o ' clock in the afternoon of that day, he was at home watching television with
Elizabeth and his grandchildren, including Lorielyn. He refuted Lorielyn's claim that he left after
lunch to work, saying that he stayed in the house the whole afternoon since it was raining. [22]
Elizabeth also testified that on February 24, 1996, she was at home watching television with
her father and children, namely, Lorielyn, Lewcherd, Lailani, Leonel, Louie Boy and Leo Boy. All
her children were at home because it was a Saturday. She claimed that Lorielyn filed the
complaint for rape against her father because he was very strict with her. She learned from

Lorielyn's best friend that she had a problem with her boyfriend, a certain Erwin Loreno. At one
time, Lorielyn asked permission to attend a holy retreat, but Elizabeth found out from the school
that there was no such retreat. Lorielyn lied on another occasion, when she told Mrs. Bonifacia
"Paz" Nieva that her grandfather was sick so she can borrow money.[23]
Mrs. Bonifacia Nieva testified that her daughter was a classmate of Lorielyn. Once, Lorielyn
visited her saying that she was sent by Elizabeth to borrow money because her grandfather was
sick. Mrs. Nieva gave Lorielyn P200.00. Later, when she went to see Elizabeth to collect
payment, she found out that Lorielyn ' s grandfather did not get sick. Lorielyn admitted to her that
she lied about it to be able to borrow money.[24]
The prosecution recalled Lorielyn to the witness stand by way of rebuttal evidence. She
refuted Atty. Gonzales' statement that she did not turn over in full the salary of her grandfather in
the amount of P50.00. She denied that she lied to her mother about a holy retreat held by her
school. Anent the amount of P200.00 she borrowed from Mrs. Nieva, she asserted that it was her
father who ordered her to do that, and that she gave the whole sum of P200.00 to him. [25]
On clarificatory questioning by the presiding judge, Lorielyn maintained that her grandfather,
Vicente Remot, indeed came home in the morning of February 24, 1996, but he left again to go to
Atty. Gonzales' farm after lunch. That afternoon, her mother was at the public faucet located far
away from their house washing clothes. The judge wondered aloud why she was doing the
laundry in the afternoon when this is usually done in the morning. Lorielyn replied that her mother
had started doing the laundry in the morning but that she was not able to finish it, so she returned
in the afternoon to continue her chore. She denied having any male friends, saying all her friends
are girls. When asked once more by the judge, Lorielyn reiterated that her father had sexual
intercourse with her.[26]
Carolina Nieva and Elizabeth Nardo were presented as sur-rebuttal witnesses. They testified
in sum that Lorielyn had a boyfriend.[27]
Accused-appellant was presented as the last witness. He denied that he raped his daughter
on February 24, 1997, saying that he was at the farm of Atty. Gonzales. He scolded Lorielyn
when he learned from her sister and brother that she was always going around with a boy. He
also stated that
Lorielyn got mad at him because he did not permit her to leave the house whenever she
wanted to.[28]
On March 3, 1998, the trial court rendered judgment as follows:
of RAPE and sentences him to suffer the penalty of DEATH. The said accused in likewise ordered
to pay Lorielyn Nardo the amount of Fifty Thousand Pesos (P50,000.00) for moral damages.
For humanitarian reasons, however, it is recommended that the DEATH penalty be commuted to
Accused-appellant raises the following assignment of errors:

Accused-appellant assails the trial court's finding that Atty. Gonzales was his employer and
therefore was likely to testify in his favor; and that he could not have noticed accused-appellant
leave the farm in the afternoon of February 24, 1996 because he had one drink too
many. Accused-appellant contends that the court should not have been too quick to condemn him
when his witness was a lawyer. Furthermore, he argues that Lorielyn's conduct after the alleged
rape, specifically from February 25 to March 19, 1996, during which she stayed in the house with
her father and continued to do her daily chores, creates a doubt on the veracity of the charge.
In the Reply Brief for accused-appellant, [31] defense counsel reveals that Lorielyn wrote her
the following letter:
Dear Atty. De Guzman:
Ako nga po pala si Lorielyn Nardo na anak ni Alfredo Nardo na nakabinbin pa sa ngayon sa
Maximum Security Compound NBP I-D Muntinlupa City. Sumulat po ako sa inyo upang humingi
ng tulong na gawin po sana ang lahat, wala po talagang kasalanan ang aking ama ako na po
mismong nag-akusa ang nagsasabi na walang katotohanan ang lahat ng mga sinabi ko na
pinagsamantalahan niya ako. Nagawa ko lang po yon dahil masyado po kasi siyang mahigpit sa
aming magkakapatid. Atty. tulungan ninyo sana ako, nalaman ko nga po pala ang inyong address
dahil dumalaw po ang mama ko noon sa papa ko at hiningi ko naman po para masulatan ko po
Umaasa po akong lubos na ako'y inyong matutulungan.
Lubos na umaasa
On May 4, 2000, counsel for accused-appellant filed a Supplemental Reply Brief, [33] alleging
that she received another letter from Lorielyn Nardo which states:
Dear Atty. Teresita de Guzman,
Unang-una po sa lahat ay nagpapasalamat po ako sa pag-response mo sa letter, Ako nga po
pala si Lorielyn Nardo na anak ni Mr. Alfredo Nardo na nakapiit ngayon sa DORM I-D ng
Muntinlupa ako po yung nagpadala ng liham sa inyo. Attorney, lagi ko pong ipinagdarasal na
nawa y matapos na ang paghihirap at pagdurusa ng aking ama sa loob ng piitan, naway matapos
na ang lahat ng problema upang manumbalik muli ang sigla ng aming pamilya. Nagpapasalamat
nga rin po pala ako sa ginagawa mong pagtulong sa amin, attorney nawa po ay makamit nyo ang

Hanggang na lamang po ang aking liham, umaasa po ako sa inyong pang-unawa at tagumpay.
Nagpapasalamat at umaasa,
Lorielyn Nardo[34]
In compliance with the Court's Resolution dated November 14, 2000, [35] the Office of the
Solicitor General filed its comment on the letters of Lorielyn Nardo, [36] contending that there is no
mention of her father's innocence in her letter dated April 17, 2000. Rather, she merely expressed
therein her deep sympathy for her father's situation in prison. The Solicitor General argues that a
recantation is not sufficient to warrant the exoneration of accused-appellant after he has been
proven guilty beyond reasonable doubt based on Lorielyn's candid, categorical and
straightforwarrd testimony before the trial court.


In the meantime, counsel for accused-appellant, by way of a Manifestation and Motion,

submitted two more letters from Lorielyn Nardo which are hereunder reproduced, viz:

August 10, 2000

Dear Attorney,
Unang-una po sa lahat ay ang taos-puso kong pasasalamat, sa dahilang pagpapaunlak niyo sa
kahilingan kong maipasa sa korte ang isang liham ng katotohanan, at kahit wala pa po ang isang
desisyon mula sa korte ay lubos po akong umaasa at nagtitiwala sa inyong kakayahan. Attorney,
kung alam niyo lang po ng matanggap at mabasa ang isang letter na nagmula sa yo ay punungpuno po ng kaligayahan ang aking puso dahil kahit papaano ay nabawasan na ang pagaalinlangan sa aking isipan. Sa ngayon po ay patuloy na lang akong umaasa na sana isang araw
ay makita kong muling masaya ang aking pamilya. Attorney, isang pabor po ang nais kong
hilingin, na sana bago magpasko ay muli ko ng makasama ang aking ama, at gusto ko pong
maging ninyo 'to sa akin sa darating na pasko.
Hanggang dito na lamang po ang aking liham, at lubos po akong nagtitiwala sa inyong
kakayahan na mapapawalang sala ang aking ama.
Truly yours,
Lorielyn Nardo[38]
January 17, 2001
Dear Atty. Teresita De Guzman,
Ako po muli si Lorielyn Nardo na anak ni Alfredo Nardo na nakabinbin sa NBP Dorm-I-D
Muntinlupa. Kahit hindi po natupad ang hinihiling kong sanay makalaya ang aking ama noong
nakaraang Disyembre ay patuloy ko pa rin pong inaasahan at hinihiling ang inyong tulong na
sana po ay makalaya na ang aking ama. Patuloy pong nangingibabaw ang aking konsensiya
dahil sa aking ginawa, umaasa po ako na sana ay lalo pang mapadali ang paglabas niya sa loob
ng kulungan, maniwala po kayo wala siyang kasalanan. Attorney, alam ko po na ginagawa niyo
(po) ang lahat kaya't ngayon pa lang po ay nagpapasalamat ako sa inyo at patuloy na umaasa ng
inyong tulong at sanay maunawaan niyo ako.
Patuloy na umaasa,

Lorielyn Nardo
Accused-appellant relies on these letters to obtain a reversal of the trial court's judgment of
his conviction. However, the said letters were not subscribed and sworn to by Lorielyn.
Be that as it may, recantations are frowned upon by the courts. A recantation of a testimony
is exceedingly unreliable, for there is always the probability that such recantation may later on be
itself repudiated. Courts look with disfavor upon retractions, because they can easily be obtained
from witnesses through intimidation or for monetary consideration. A retraction does not
necessarily negate an earlier declaration. [40] Especially, recantations made after the conviction of
the accused deserve only scant consideration.[41]
Moreover, any recantation or affidavit of desistance, by itself, even when construed as a
pardon in the so-called "private crimes," is not a ground for the dismissal of the criminal case
once the action has been instituted.[42] The pardon to justify the dismissal of the complaint should
be made prior to the institution of the criminal action. [43] Parenthetically, the crime in the case at
bar was committed in 1996, i.e.,prior to the passage of the R.A. 8353, The Anti-Rape Law of
1997, which reclassified rape as a crime against persons.
Even if it were sworn, Lorielyn's recantation could hardly suffice to overturn the finding of
guilt by the trial court which was based on her own clear and convincing testimony, given during a
full-blown trial. An affidavit of recantation, being usually taken ex parte, would be considered
inferior to the testimony given in open court. It would be a dangerous rule to reject the testimony
taken before a court of justice simply because the witness who gave it later on changed his/her
mind for one reason or another. Such a rule would make a solemn trial a mockery, and place the
proceedings at the mercy of unscrupulous witnesses.[44]
As stated, the trial court arrived at its finding of guilt after a careful assessment of the
evidence presented, foremost of which was the testimony of the victim in open court, where the
trial judge was able to personally evaluate her manner of testifying, and from there reach a
studied opinion as to her credibility. As a rule, we do not disturb the findings by the trial court on
the credibility of witnesses, for the trial court is in a better position to pass upon the same. [45]
"The trial judge is in a better position to decide the question of credibility, since he personally
heard the witnesses and observed their deportment and manner of testifying. He had before him
the essential aids to determine whether a witness was telling the truth or lying. Truth does not
always stalk boldly forth naked; she often hides in nooks and crannies visible only to the minds
eye of the judge who tried the case. To him appears the furtive glance, the blush of conscious
shame, the hesitation, the sincere or flippant or sneering tone, the heat, the calmness, the yawn,
the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the
carriage and mien."[46]
We find nothing in the records which would indicate that the findings of fact of the trial court
are not supported by the evidence or were arrived at in manifest or palpable error, such as to
warrant a departure from the foregoing rule. The trial court was correct in lending credibility to the
testimony of Lorielyn. The sole testimony of Lorielyn was sufficient to establish the guilt of
accused-appellant. It is settled that a person accused of rape can be convicted solely on the
testimony of the victim if the trial court finds said testimony to be credible, natural, convincing, and
consistent with human nature and the course of things. [47]
Indeed, a daughter, especially one in her minority, would not accuse her own father of such
an unspeakable crime as incestuous rape had she really not been aggrieved. [48] More importantly,

Lorielyn withstood all the rigors of the case, starting from the initial police interrogation, the
medical examination, the formal charge, the public trial, to the cross-examination. She went
through the court hearings, where she came face to face with her father. If it was true that she
merely made up the charge, she should have been bothered by her conscience at the sight of her
father in prison garb and upon the realization of his sorry state while in detention. The fact that
she maintained her story during her testimony-in-chief all the way up to her rebuttal testimony
only serves to substantiate the veracity of her claim.
Well settled is the rule that no woman would concoct a story of defloration, allow an
examination of her private parts and submit herself to public humiliation and scrutiny via an open
trial, if her sordid tale was not true and her sole motivation was not to have the culprit
apprehended and punished.[49] A young girls revelation that she has been raped, coupled with her
voluntary submission to medical examination and her willingness to undergo public trial where
she could be compelled to give out the details of an assault on her dignity by, as in this case, her
own father, cannot be so easily dismissed as a mere concoction. [50] Courts usually give credence
to the testimony of a girl who is a victim of sexual assault, particularly if it constitutes incestuous
rape because, normally, no person would be willing to undergo the humiliation of a public trial and
to testify on the details of her ordeal were it not to condemn an injustice. Needless to say, it is
settled jurisprudence that testimonies of child-victims are given full weight and credit, since when
a woman, more so if she is a minor, says that she has been raped, she says in effect all that is
necessary to show that rape was committed. Youth and immaturity are generally badges of truth
and sincerity.[51]
During the trial, the defense endeavored to portray Lorielyn as an incorrigible liar. Occasions
were cited wherein Lorielyn supposedly lied in order to obtain money or her parents' permission
to leave the house. However, Rule 130, Section 34, of the Rules of Court provides that: Evidence
that one did or did not do a certain thing at one time is not admissible to prove that he did nor did
not do the same or a similar thing at another time; but it may be received to prove a specific intent
or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like. While lying
may constitute a habit, we believe that the falsehoods committed by Lorielyn, assuming them for
the moment to be true, are petty and inconsequential. They are not as serious as charging one's
own father of the sordid crime of rape, with all of its serious repercussions.
Accused-appellant argues that the trial court should have given credence to his witness, Atty.
Santer G. Gonzales, because he is a member of the bar. Atty. Gonzales, however, took the
witness stand not as a lawyer but as an ordinary person. He testified in his capacity as accusedappellant's employer. As such, no special privilege should be accorded him by the trial court by
reason only of his being a member of the bar. He did not appear in that case as an officer of the
court but as a mere witness, and hence should be treated as one.
Likewise, accused-appellant insists that Lorielyn's conduct after the rape, during which she
continued to perform her tasks and lived with her father in their house, negates the commission of
rape. Accused-appellant's proposition is derived from Lorielyn's perfunctory yes-or-no answers to
the leading questions propounded to her on cross-examination. Rather than sustain this
argument, we rely instead on the observations of the Social Welfare Officer, whom we find to be
an impartial witness, in this wise:
Per observation, Lorielyn is a shy and silent type person. She talked in a very small voice and
during the interview she only talks when being asked. She also appears to be very sad and
have been staring blankly (sic).[52]
Accused-appellant assigns as error the trial court's failure to give the reasons for
recommending the commutation of his sentence from death to reclusion perpetua. As correctly
observed by the Solicitor General, the trial court was impelled by humanitarian reason.
Moreover, the commutation of sentence is a prerogative of the Chief Executive.

As against the positive and categorical testimony of Lorielyn, accused-appellant can only
proffer the defense of alibi. However, in order to overcome the evidence of the prosecution with
the defense of alibi, he must establish not only that he was somewhere else when the crime was
committed but also that it was physically impossible for him to have been at the scene of the
crime at the time it was committed. [54] In the instant case, the testimonies for the defense sought
to establish that accused-appellant was 400 to 500 meters, or 15 minutes, away from the scene
of the crime. This hardly qualifies as proof that it was physically impossible for him to be at the
scene of the crime when it was committed. Accused-appellant's defense of alibi
must, therefore, necessarily fail.
Carefully sifting through the entire body of evidence presented in this case, we find nothing
which would destroy the moral certainty of accused-appellant's guilt. While there may be some
inconsistencies in the testimony of Lorielyn, these to our mind are minor inconsistencies which
serve to strengthen her credibility as they are badges of truth rather than indicia of falsehood.
Minor inconsistencies do not affect the credibility of witnesses, as they may even tend to
strengthen rather than weaken their credibility. Inconsistencies in the testimony of prosecution
witnesses with respect to minor details and collateral matters do not affect either the substance of
their declaration, their veracity, or the weight of their testimony. Such minor flaws may even
enhance the worth of a testimony, for they guard against memorized falsities. [56]Besides, a rape
victim can not be expected to recall vividly all the sordid details of the violation committed against
her virtue.
Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, provides:
The death penalty shall also be imposed if the crime of rape is committed with any of the
following attendant circumstances:
1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the
common-law-spouse of the parent of the victim. xxx.[57]
The concurrence of the two special qualifying circumstances, namely the victim's minority
and the relationship between the victim and the culprit, increases the penalty of rape to one (1)
degree, thus resulting in the imposition of the death penalty. In order to be appreciated as
qualifying circumstances, however, these must be properly pleaded in the indictment. [58] In
addition, the qualifying circumstances should be duly proved during the trial. [59]
These requirements are met in this case. The Information sufficiently alleges that accusedappellant is the father of the victim, and that the latter was fourteen (14) years old at the time of
commission of the rape. These elements, furthermore, were categorically affirmed by Elizabeth
Nardo, the victim's mother and the most competent witness. She testified that accused-appellant
is Lorielyn's father, and that Lorielyn was born on September 11, 1981, [60] thus placing her age at
the time of the rape at fourteen (14) years. Moreover, the Lorielyn's birth date and her relationship
to accused-appellant are shown by her Certificate of Baptism. [61] This was presented by her
mother, Elizabeth, in lieu of her Certificate of Live Birth, which was destroyed by fire.[62] The
baptismal certificate, coupled by her mother's testimony, is sufficient to establish Lorielyn's age. [63]
We therefore affirm the trial court's imposition of the death penalty.
Four justices of the Court have continued to maintain the unconstitutionality of Republic Act
No. 7659 insofar as it prescribes the death penalty; nevertheless they submit to the ruling of the
majority to the effect that this law is constitutional and that the death penalty can be lawfully
imposed in the case at bar.

We likewise affirm the award of P50,000.00 for moral damages which is consistent with
prevailing jurisprudence.[64] No proof is required to substantiate the award of moral damages in
rape cases. InPeople vs. Prades,[65] we held:
xxx. The Court has also resolved that in crimes of rape, such as that under consideration, moral
damages may additionally be awarded to the victim in the criminal proceeding, in such amount as
the Court deems just, without the need for pleading or proof of the basis thereof as has heretofore
been the practice. Indeed, the conventional requirement of allegata et probata in civil procedure
and for essentially civil cases should be dispensed with in criminal prosecutions for rape with the
civil aspect included therein, since no appropriate pleadings are filed wherein such allegations
can be made.
Corollarily, the fact that complainant has suffered the trauma of mental, physical and
psychological sufferings which constitute the bases for moral damages are too obvious to still
require the recital thereof at the trial by the victim, since the Court itself even assumes and
acknowledges such agony on her part as a gauge of her credibility. What exists by necessary
implication as being ineludibly present in the case need not go through the superfluity of still
being proved through a testimonial charade.
In addition to moral damages, the amount of P75,000.00 is awarded to the victim as
xxx. Indictments for rape continue unabated and the legislative response has been in the form of
higher penalties. The Court believes that, on like considerations, the jurisprudential path on the
civil aspect should follow the same direction. Hence, starting with the case at bar, if the crime of
rape is committed or effectively qualified by any of the circumstances under which the death
penalty is authorized by the present amended law, the indemnity for the victim shall be in the
increased amount of not less than P75,000.00. This is not only a reaction to the apathetic societal
perception of the penal law and the financial fluctuations over time, but also an expression of the
displeasure of the Court over the incidence of heinous crimes against chastity.[66]
WHEREFORE, the judgment of the Regional Trial Court of Legaspi City, Albay, Branch III,
convicting accused-appellant Alfredo Nardo y Rosales of the crime of rape, sentencing him to
death, and ordering him to pay the victim, Lorielyn Nardo moral damages in the amount of
P50,000.00, is AFFIRMED with the MODIFICATION that accused-appellant is, further, ordered to
pay the victim civil indemnity in the amount of P75,000.00.
In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised
Penal Code, upon finality of this decision, let certified true copies thereof, as well as the records
of this case, be forwarded without delay to the office of the President for possible exercise of the
clemency or pardoning power.