FIRST DIVISION

untimely death, to the damage and prejudice of the heirs of

the said Sanily Billon y Trinidad.

[G.R. No. 153591. February 23, 2004]

CONTRARY TO LAW.
PEOPLE OF THE PHILIPPINES, appellee, vs. RENATO
GARCIA y ROMANO, appellant.

On arraignment, appellant pleaded not guilty. Thereafter,

trial on the merits followed.

DECISION
YNARES-SANTIAGO, J.:
Appellant Renato Garcia y Romano was charged with
Murder before the Regional Trial Court of Quezon City, Branch
87,
in
Criminal
Case
No.
Q-98-79961
in
an
[1]
Information which reads:
That on or about the 22nd day of May, 1998, in Quezon City,
Philippines, the said accused, being then the driver and/or
person in charge of an Isuzu Jitney bearing Plate No. NPJ-948
did then and there unlawfully and feloniously drive, manage
and operate the same along Zabarte Road in said City, in a
careless, reckless, negligent and impudent manner, by then
and there making the said vehicle run at a speed greater
than was reasonable and proper without taking the necessary
precaution to avoid accident to person/s of the traffic at said
place at the time, causing as consequence of his said
carelessness, negligence, impudence and lack of precaution,
the said vehicle so driven, managed and operated by him to
hit and bump, as in fact it hit and bumped Sanily Billon y
Trinidad, a pedestrian, thereafter, with intent to kill, qualified
by evident premeditation and use of motor vehicle, did then
and there willfully, unlawfully and feloniously ran said vehicle
over the victim thereby causing her serious and mortal
wounds which were the direct and immediate cause of her

The prosecution alleged that at around 12:00 noon of

May 22, 1998, Bentley Billon and his younger sister, Sanily,
boarded a passenger jeepney on their way to Sacred Heart
School in Barangay Kaligayahan, Novaliches, Quezon City to
attend remedial classes. They alighted on Zabarte Road in
front of the school. Bentley crossed the street and waited on
the center island for Sanily to cross. While Sanily was
crossing the street, a passenger jeepney driven by appellant,
coming from Camarin and heading towards Quirino Highway,
hit her on the left side of the body. Sanily fell and was thrown
to the ground a meter away from the vehicle. The jeepney
stopped. But as Bentley was running towards his sister, the
vehicle suddenly accelerated with its front tire running over
Sanilys stomach. Bentley and appellant pulled Sanily, who
was writhing in excruciating pain, from underneath the
vehicle and brought her to the Sta. Lucia Hospital but due to
lack of medical facilities, she was transferred to the Quezon
City
General
Hospital
(QCGH)
where
she
was
operated. However, she died four days later.
Dr. Emmanuel Reyes,[2] Medico-legal of the Southern
Police District, Fort Bonifacio, testified that the attending
physician, Dr. Santiago C. Sagad, noted lacerations in Sanilys
liver and spleen which was caused by a blunt/strong force on
the victims body, resulting to her death due to internal
bleeding. He opined that the blunt force may have also
caused lacerations in the victims intestine and the abrasions

Page 1 of 94

on the arm, from the elbow to the shoulder could be the

result of the skins contact with a rough surface.

The trial court held that appellant is guilty of murder

qualified by evident premeditation because he deliberately
ran over the slumped body of the victim.

Appellant admitted having ran over the victim, but

claimed that it was an accident. He narrated that at around
noon on May 22, 1998, while driving his passenger jeepney
along Zabarte Road, he saw a boy crossing the street
followed by the victim. While the vehicle was running, he
heard a thud. He immediately applied his breaks and alighted
to check what it was. He saw to his horror a girl sprawled
underneath his vehicle between the front and the rear tires.
He and the victims brother rushed the girl to the Sta. Lucia
Hospital, but they transferred her to the Quezon City General
Hospital which has better facilities. A week later, he learned
that the victim died.
On May 2, 2002, the trial court rendered judgment,
finding appellant guilty beyond reasonable doubt of Murder
and sentenced him to suffer the penalty of reclusion
perpetua, the dispositive portion of which reads: [4]

Hence this appeal, raising the following errors, to wit:

I
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING
AGAINST ACCUSED-APPELLANT THE QUALIFYING
CIRCUMSTANCE OF EVIDENT PREMEDITAION
II
THE TRIAL COURT GRAVELY ERRED IN FINDING
ACCUSED GUILTY BEYOND REASONABLE BEYOND
REASONABLE DOUBT OF THE CRIME OF MURDER AS
CHARGED.

[3]

WHEREFORE, judgment is hereby rendered finding accused

guilty beyond reasonable doubt of the crime of Murder, for
which, said RENATO GARCIA y ROMANO is hereby sentenced
to suffer the penalty of reclusion perpetua and to indemnify
the heirs of Sanily Billon the sum of One Hundred and Twenty
Three Thousand and Five Hundred Pesos (P123,500.00) as
actual damages including attorneys fees; Fifty Thousand
Pesos (P50,000.00) as civil indemnity for the death of Sanily
and Five Hundred Thousand Pesos (P500,000.00) as moral
damages.
Cost against the accused.
SO ORDERED.

The issue to be resolved is whether or not appellant is

guilty of murder or reckless imprudence resulting in
homicide.
Appellant argues that the trial court gravely erred in
finding that the qualifying circumstance of evident
premeditation attended the commission of the offense. He
contends that the mere allegation by the prosecution that he
bumped the victim and intentionally ran over her body is not
sufficient to establish evident premeditation. He claims that
he did not intentionally run over the victim when his vehicle
bumped her because he was rattled and was no longer aware
of what he was doing.
We find from a careful review of the facts on record that
the unfortunate incident was more the result of reckless
imprudence than of malicious intent. Therefore, the trial

Page 2 of 94

court erred in convicting appellant of the crime of murder

qualified by evident premeditation.
The elements of evident premeditation are: (1) a previous
decision by the appellant to commit the crime; (2) an overt
act/acts manifestly indicating that the appellant clung to his
determination; and (3) a lapse of time between the decision
to commit the crime and its actual execution sufficient to
allow appellant to reflect upon the consequences of his acts.
The victims brother, Bentley, testified that the vehicle
stopped after it bumped the victim, but it moved forward and
ran over the prostrate body of her sister. From his narration,
we find that no sufficient time elapsed for appellant to decide
to
commit
the
crime
and
reflect
on
its
consequences. Moreover, there was no showing that
appellant performed other overt acts to show that he was
determined to commit murder. The essence of evident
premeditation is that the execution of the criminal act must
be preceded by cool thought and reflection upon the
resolution to carry out the criminal intent, during the space of
time sufficient to arrive at a calm judgment. [5] These
circumstances do not obtain in the case at bar.

In view of the gravity of the offense involved, the trial

court should have been more circumspect in weighing the
evidence of both parties. Our own evaluation of the evidence
reveals that appellant had no intention to kill the victim. As
such, he cannot be held liable for an intentional felony. All
reasonable doubt intended to demonstrate negligence, and
not criminal intent, must be resolved in favor of appellant. [6]
Thus, appellant is guilty of reckless imprudence resulting
in homicide defined in Article 365 of the Revised Penal Code,
as amended. In U.S. v. Maleza,[7] we explained the rationale
behind this crime as follows:
A man must use common sense, and exercise due reflection
in all his acts; it is his duty to be cautious, careful, and
prudent, if not from instinct, then through fear of incurring
punishment. He is responsible for such results as anyone
might foresee and for acts which no one would have
performed except through culpable abandon. Otherwise his
own person, rights and property, all those of his fellowbeings, would ever be exposed to all manner of danger and
injury.
In intentional crimes, the act itself is punished; in
negligence or imprudence, what is principally penalized is the
mental attitude or condition behind the act, the dangerous
recklessness, lack of care or foresight, the imprudencia
punible.[8] Article 365 of the Revised Penal Code, as
amended, states that reckless imprudence consists in
voluntarily, but without malice, doing or failing to do an act
from which material damage results by reason of inexcusable
lack of precaution on the part of the person performing such
act. Compared to intentional felonies, such as homicide or
murder, what takes the place of the element of malice or
intention to commit a wrong or evil is the failure of the
offender to take precautions due to lack of skill taking into

Appellant could have reacted on instinct and relied on

sheer impulse to respond to the situation at hand. While it is
possible that appellant deliberately ran over the victim, it is
equally possible, if not more probable, that the vehicle
moved forward because appellant failed to control its
momentum. Indeed, this is more consistent with the
unrebutted evidence that the jeepney, which had no
handbrake, was moving fast and that appellant became
confused
when
the
accident
occurred. Furthermore,
appellants act of bringing the victim to the hospital despite
numerous opportunities to flee from the scene is more
compatible with a state of mind devoid of criminal intent.
Page 3 of 94

account his employment, or occupation, degree of

intelligence, physical condition, and other circumstances
regarding persons, time, and place.[9]
Appellant showed an inexcusable lack of precaution when
he disregarded a traffic sign cautioning motorists to slow
down[10] and drove his vehicle in full speed despite being
aware that he was traversing a school zone and pedestrians
were crossing the street. He should have observed due
diligence of a reasonably prudent man by slackening his
speed and proceeding cautiously while passing the area.
The imposable penalty, under Art. 365 (2)[11] of the
Revised Penal Code, homicide resulting from reckless
imprudence in the use of motor vehicle is prision
correccional in its medium and maximum periods, which
ranges from two (2) years, four (4) months and one (1) day to
six (6) years. Under Article 65 of the Revised Penal Code, the
penalty shall be divided into three equal portions of time,
each of which shall form one period. There being no
aggravating or mitigating circumstance, the proper penalty
shall be within the medium period, which is three (3) years,
six (6) months and twenty-one (21) days to four (4) years,
nine (9) months and ten (10) days. Applying the provisions of
the Indeterminate Sentence Law, appellant is entitled to a
minimum term to be taken from the penalty next lower in
degree, which is arresto mayor, maximum to prision
correccional, minimum. Accordingly, appellant should be
sentenced to an indeterminate penalty of four (4) months
and one (1) day of arresto mayor, as minimum, to four (4)
years and two (2) months of prision correccional, as
maximum.[12]

[13]

The award of P30,000.00 as actual damages must likewise

be modified. The mother of the victim presented receipts that
they, in fact, spent P58,257.90[14] for hospital bills and funeral
expenses. The fact that she received P40,000.00 from
insurance will not affect the award of actual damages. [15] The
award of exemplary damages is deleted for lack of factual
basis.
WHEREFORE, in view of the foregoing, the Decision of
the Regional Trial Court of Quezon City, Branch 87, in Civil
Case No. Q-98-79961, convicting appellant of the crime of
murder is REVERSED and SET ASIDE. Appellant Renato
Garcia y Romano is found guilty beyond reasonable doubt of
the crime reckless imprudence resulting in homicide, and he
is sentenced to suffer an indeterminate prison term of four
(4) months and one (1) day of arresto mayor, as minimum, to
four (4) years and two (2) months of prision correccional, as
maximum. Appellant is ordered to pay the heirs of the victim,
P50,000.00 as civil indemnity, P58,257.90 as actual damages
and P50,000.00 as moral damages.
Costs de oficio.
SO ORDERED.

SECOND DIVISION
EDUARDO P. MANUEL, G.R. No. 165842
Petitioner,
Present:

The trial court correctly awarded P50,000.00 as civil

indemnity. However, the award of moral damages in the
amount of P500,000.00 should be reduced to P50,000.00.
Page 4 of 94

PUNO, J.,
Chairman,

AUSTRIA-MARTINEZ, - versus - CALLEJO, SR.,

TINGA, and
CHICONAZARIO,* JJ.
Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. November 29, 2005

does not know the existence of the first

marriage of said EDUARDO P. MANUEL to
Rubylus [Gaa].
CONTRARY TO LAW.

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

[3]

The prosecution adduced evidence that on July 28, 1975,

Eduardo was married to Rubylus Gaa before Msgr. Feliciano
Santos in Makati, which was then still a municipality of the

DECISION

Province of Rizal.[4] He met the private complainant Tina B.

CALLEJO, SR., J.:

Gandalera in Dagupan City sometime in January 1996. She

stayed in Bonuan, Dagupan City for two days looking for a

Before us is a petition for review on certiorari of the

Decision

[1]

of the Court of Appeals (CA) in CA-G.R. CR No.

26877, affirming the Decision

[2]

of the Regional Trial Court

friend. Tina was then 21 years old, a Computer Secretarial

student, while Eduardo was 39. Afterwards, Eduardo went to
Baguio City to visit her. Eventually, as one thing led to

(RTC) of Baguio City, Branch 3, convicting Eduardo P. Manuel

another,

of bigamy in Criminal Case No. 19562-R.

resistance, Eduardo succeeded in having his way with her.

Eduardo was charged with bigamy in an Information filed on

November 7, 2001, the accusatory portion of which reads:

they went to a motel

where,

despite

Tinas

Eduardo proposed marriage on several occasions, assuring

her that he was single. Eduardo even brought his parents to
Baguio City to meet Tinas parents, and was assured by them
that their son was still single.

That on or about the 22nd day of April,

1996, in the City of Baguio, Philippines, and
within the jurisdiction of this Honorable Court,
the
above-named
accused
EDUARDO
P.
MANUEL, being then previously and legally
married to RUBYLUS [GAA] and without the said
marriage having been legally dissolved, did then
and there willfully, unlawfully and feloniously
contract a second marriage with TINA
GANDALERA-MANUEL, herein complainant, who

Tina finally agreed to marry Eduardo sometime in the

first week of March 1996. They were married on April 22,
1996 before Judge Antonio C. Reyes, the Presiding Judge of
the RTC of Baguio City, Branch 61.[5] It appeared in their
marriage contract that Eduardo was single.
Page 5 of 94

further testified that he declared he was single in his

marriage contract with Tina because he believed in good
The couple was happy during the first three years of

faith that his first marriage was invalid. He did not know that

their married life. Through their joint efforts, they were able

he had to go to court to seek for the nullification of his first

to build their home in Cypress Point, Irisan, Baguio City.

marriage before marrying Tina.

However, starting 1999, Manuel started making himself

Eduardo further claimed that he was only forced to

scarce and went to their house only twice or thrice a year.

Tina was jobless, and whenever she asked money from
Eduardo, he would slap her. [6] Sometime in January 2001,
Eduardo took all his clothes, left, and did not return. Worse,

marry his first wife because she threatened to commit suicide

unless he did so. Rubylus was charged with estafa in 1975
and thereafter imprisoned. He visited her in jail after three
months and never saw her again. He insisted that he married

he stopped giving financial support.

Tina believing that his first marriage was no longer valid

Sometime in August 2001, Tina became curious and
made inquiries from the National Statistics Office (NSO) in

because he had not heard from Rubylus for more than 20

years.

Manila where she learned that Eduardo had been previously

married. She secured an NSO-certified copy of the marriage
contract.[7] She was so embarrassed and humiliated when she
learned that Eduardo was in fact already married when they

After trial, the court rendered judgment on July 2, 2002

finding Eduardo guilty beyond reasonable doubt of bigamy.
He was sentenced to an indeterminate penalty of from six (6)
years and ten (10) months, as minimum, to ten (10) years, as

exchanged their own vows.[8]

maximum, and directed to indemnify the private complainant

For his part, Eduardo testified that he met Tina sometime in

Tina Gandalera the amount of P200,000.00 by way of moral

1995 in a bar where she worked as a Guest Relations Officer

damages, plus costs of suit.[9]

(GRO). He fell in love with her and married her. He informed

Tina of his previous marriage to Rubylus Gaa, but she
nevertheless agreed to marry him. Their marital relationship
was in order until this one time when he noticed that she had
a love-bite on her neck. He then abandoned her. Eduardo

The trial court ruled that the prosecution was able to prove
beyond reasonable doubt all the elements of bigamy under
Article 349 of the Revised Penal Code. It declared that
Eduardos belief, that his first marriage had been dissolved

Page 6 of 94

because of his first wifes 20-year absence, even if true, did

Article 390 of the Civil Code. Citing the ruling of this Court

not exculpate him from liability for bigamy. Citing the ruling

in Republic v. Nolasco,[14] the OSG further posited that as

of this Court in People v. Bitdu,[10] the trial court further ruled

provided in Article 41 of the Family Code, there is a need for

that even if the private complainant had known that Eduardo

a judicial declaration of presumptive death of the absent

had been previously married, the latter would still be

spouse to enable the present spouse to marry. Even

criminally liable for bigamy.

assuming that the first marriage was void, the parties thereto

Eduardo appealed the decision to the CA. He alleged

should not be permitted to judge for themselves the nullity of

that he was not criminally liable for bigamy because when he

the

marriage;

married the private complainant, he did so in good faith and

the matter should be submitted to the proper court for

without any malicious intent. He maintained that at the time

resolution.

that he married the private complainant, he was of the

complainants knowledge of the first marriage would not

honest belief that his first marriage no longer subsisted. He

afford any relief since bigamy is an offense against the State

insisted that conformably to Article 3 of the Revised Penal

and not just against the private complainant.

Moreover,

the OSG maintained,

the

private

Code, there must be malice for one to be criminally liable for

However, the OSG agreed with the appellant that the

a felony. He was not motivated by malice in marrying the

private complainant because he did so only out of his
overwhelming desire to have a fruitful marriage. He posited
that the trial court should have taken into account Article 390
of the New Civil Code. To support his view, the appellant cited
the

rulings

Pealosa

[11]

of

this

Court

in United

and Manahan, Jr. v. Court of Appeals.

States

v.

[12]

penalty imposed by the trial court was erroneous and sought

the

affirmance

of

the

decision

appealed

from

with

modification.
On June 18, 2004, the CA rendered judgment affirming the
decision of the RTC with modification as to the penalty of the
accused. It ruled that the prosecution was able to prove all

The Office of the Solicitor General (OSG) averred that

Eduardos defense of good faith and reliance on the Courts
ruling in United States v. Enriquez[13] were misplaced; what is
applicable is Article 41 of the Family Code, which amended

the elements of bigamy. Contrary to the contention of the

appellant, Article 41 of the Family Code should apply. Before
Manuel could lawfully marry the private complainant, there
should have been a judicial declaration of Gaas presumptive
death as the absent spouse. The appellate court cited the

Page 7 of 94

rulings of this Court in Mercado v. Tan[15] andDomingo v.

Court of Appeals[16] to support its ruling. The dispositive

The petitioner maintains that the prosecution failed to prove

portion of the decision reads:

the second element of the felony, i.e., that the marriage has
not been legally dissolved or, in case his/her spouse is

WHEREFORE, in the light of the foregoing,

the Decision promulgated on July 31, 2002 is
hereby MODIFIED to reflect, as it hereby
reflects, that accused-appellant is sentenced to
an indeterminate penalty of two (2) years, four
(4) months and one (1) day of prision
correccional, as minimum, to ten (10) years
of prision mayor as maximum. Said Decision
is AFFIRMED in all other respects.

absent, the absent spouse could not yet be presumed dead

under the Civil Code. He avers that when he married
Gandalera in 1996, Gaa had been absent for 21 years since
1975; under Article 390 of the Civil Code, she was presumed
dead as a matter of law. He points out that, under the first
paragraph of Article 390 of the Civil Code, one who has been

SO ORDERED.[17]

absent for seven years, whether or not he/she is still alive,

shall

Eduardo, now the petitioner, filed the instant petition

for review on certiorari, insisting that:
I
THE
COURT
OF
APPEALS
COMMITTED
REVERSIBLE ERROR OF LAW WHEN IT RULED
THAT PETITIONERS FIRST WIFE CANNOT BE
LEGALLY PRESUMED DEAD UNDER ARTICLE 390
OF THE CIVIL CODE AS THERE WAS NO JUDICIAL
DECLARATION OF PRESUMPTIVE DEATH AS
PROVIDED FOR UNDER ARTICLE 41 OF THE
FAMILY CODE.

be

presumed

dead for

all

purposes except

for

succession, while the second paragraph refers to the rule on

legal presumption of death with respect to succession.
The petitioner asserts that the presumptive death of
the absent spouse arises by operation of law upon the
satisfaction

of

two

requirements:

the

specified period and the present spouses reasonable belief

that the absentee is dead. He insists that he was able to
prove that he had not heard from his first wife since 1975
and that he had no knowledge of her whereabouts or

II
THE
COURT
OF
APPEALS
COMMITTED
REVERSIBLE ERROR OF LAW WHEN IT AFFIRMED
THE AWARD OF PHP200,000.00 AS MORAL
DAMAGES AS IT HAS NO BASIS IN FACT AND IN
LAW.[18]

whether she was still alive; hence, under Article 41 of the

Family Code, the presumptive death of Gaa had arisen by
operation of law, as the two requirements of Article 390 of

Page 8 of 94

the Civil Code are present. The petitioner concludes that he

record. To bolster its claim, the OSG cited the ruling of this

should thus be acquitted of the crime of bigamy.

Court in Republic v. Nolasco.[19]

The petitioner insists that except for the period of

The petition is denied for lack of merit.

absences provided for in Article 390 of the Civil Code, the

rule therein on legal presumptions remains valid and
effective. Nowhere under Article 390 of the Civil Code does it

Article 349 of the Revised Penal Code, which defines and

penalizes bigamy, reads:
Art.
349. Bigamy. The
penalty
of prision
mayor shall be imposed upon any person who
shall contract a second or subsequent marriage
before the former marriage has been legally
dissolved, or before the absent spouse has been
declared presumptively dead by means of a
judgment rendered in the proper proceedings.

require that there must first be a judicial declaration of death

before the rule on presumptive death would apply. He further
asserts that contrary to the rulings of the trial and appellate
courts,

the

requirement

of

judicial

declaration

of

presumptive death under Article 41 of the Family Code is only

a requirement for the validity of the subsequent or second
marriage.

The provision was taken from Article 486 of the Spanish Penal
Code, to wit:

The petitioner, likewise, avers that the trial court and the CA

El que contrajere Segundo o ulterior matrimonio

sin hallarse legtimamente disuelto el anterior,
ser castigado con la pena de prision mayor. xxx

erred in awarding moral damages in favor of the private

complainant. The private complainant was a GRO before he
married her, and even knew that he was already married. He
genuinely loved and took care of her and gave her financial
support. He also pointed out that she had an illicit
relationship with a lover whom she brought to their house.

The reason why bigamy is considered a felony is to preserve

and ensure the juridical tie of marriage established by law.
[20]

The phrase or before the absent spouse had been

declared presumptively dead by means of a judgment

In its comment on the petition, the OSG maintains that the

decision of the CA affirming the petitioners conviction is in
accord with the law, jurisprudence and the evidence on

rendered in the proper proceedings was incorporated in the

Revised Penal Code because the drafters of the law were of
the impression that in consonance with the civil law which
provides for the presumption of death after an absence of a

Page 9 of 94

number of years, the judicial declaration of presumed

death

like

annulment

justification for bigamy.

of

marriage should

be

[21]

of the same view as Viada and declared that there are three

For the accused to be held guilty of bigamy, the prosecution

is burdened to prove the felony: (a) he/she has been legally
married; and (b) he/she contracts a subsequent marriage
without the former marriage having been lawfully dissolved.
The felony is consummated on the celebration of the second
marriage or subsequent marriage.[22] It is essential in the
prosecution for bigamy that the alleged second marriage,
having all the essential requirements, would be valid were it
not for the subsistence of the first marriage. [23] Viada avers
that a third element of the crime is that the second marriage
must be entered into with fraudulent intent (intencion
fraudulente) which is an essential element of a felony bydolo.
[24]

In his commentary on the Revised Penal Code, Albert is

On the other hand, Cuello Calon is of the view that there

are only two elements of bigamy: (1) the existence of a

marriage that has not been lawfully dissolved; and (2) the
celebration of a second marriage. It does not matter whether

(3) elements of bigamy: (1) an undissolved marriage; (2) a

new marriage; and (3) fraudulent intention constituting the
felony of the act.[28] He explained that:
This last element is not stated in Article 349,
because it is undoubtedly incorporated in the
principle antedating all codes, and, constituting
one of the landmarks of our Penal Code, that,
where there is no willfulness there is no crime.
There is no willfulness if the subject
believes that the former marriage has been
dissolved; and this must be supported by very
strong evidence, and if this be produced, the act
shall be deemed not to constitute a crime. Thus,
a person who contracts a second marriage in
the reasonable and well-founded belief that his
first wife is dead, because of the many years
that have elapsed since he has had any news of
her whereabouts, in spite of his endeavors to
find her, cannot be deemed guilty of the crime
of bigamy, because there is no fraudulent intent
which is one of the essential elements of the
crime.[29]

the first marriage is void or voidable because such marriages

have juridical effects until lawfully dissolved by a court of
competent jurisdiction.[25] As the Court ruled in Domingo v.
Court of Appeals[26] and Mercado v. Tan,[27] under the Family
Code of the Philippines, the judicial declaration of nullity of a
previous marriage is a defense.

As gleaned from the Information in the RTC, the petitioner is

charged with bigamy, a felony by dolo (deceit). Article 3,
paragraph 2 of the Revised Penal Code provides that there is
deceit when the act is performed with deliberate intent.
Indeed, a felony cannot exist without intent. Since a felony

by dolo is classified as an intentional felony, it is deemed

Page 10 of 94

voluntary.[30] Although the words with malice do not appear in

The petitioner is presumed to have acted with malice

Article 3 of the Revised Penal Code, such phrase is included

or evil intent when he married the private complainant. As a

in the word voluntary.[31]

general rule, mistake of fact or good faith of the accused is a

valid defense in a prosecution for a felony by dolo; such

Malice is a mental state or condition prompting the

doing of an overt act without legal excuse or justification
from which another suffers injury. [32] When the act or
omission defined by law as a felony is proved to have been

defense

negates

malice

or

criminal

intent.

However,

ignorance of the law is not an excuse because everyone is

presumed

to

know

the

law. Ignorantia

legis

neminem

excusat.

done or committed by the accused, the law presumes it to

have been intentional.[33] Indeed, it is a legal presumption of

It was the burden of the petitioner to prove his defense

law that every man intends the natural or probable

that when he married the private complainant in 1996, he

consequence of his voluntary act in the absence of proof to

was

the contrary, and such presumption must prevail unless a

that his first wife was already dead, as he had not heard from

reasonable doubt exists from a consideration of the whole

her for more than 20 years since 1975. He should have

evidence.[34]

adduced in evidence a decision of a competent court

of

the

well-grounded

belief

declaring the presumptive death of his first wife as required

For one to be criminally liable for a felony by dolo, there must
be a confluence of both an evil act and an evil intent. Actus
non facit reum, nisi mens sit rea.[35]

41 of the Family Code. Such judicial declaration also

constitutes proof that the petitioner acted in good faith, and

In the present case, the prosecution proved that the

petitioner was married to Gaa in 1975, and such marriage
was not judicially declared a nullity; hence, the marriage is
presumed to subsist.[36] The prosecution also proved that the
petitioner married the private complainant in 1996, long after
the effectivity of the Family Code.

by Article 349 of the Revised Penal Code, in relation to Article

would negate criminal intent on his part when he married the

private complainant and, as a consequence, he could not be
held guilty of bigamy in such case. The petitioner, however,
failed to discharge his burden.
The phrase or before the absent spouse has been
declared presumptively dead by means of a judgment

rendered on the proceedings in Article 349 of the Revised

Page 11 of 94

Penal Code was not an aggroupment of empty or useless

the State touching nearly on every aspect of life and death.

words. The requirement for a judgment of the presumptive

The consequences of an invalid marriage to the parties, to

death of the absent spouse is for the benefit of the spouse

innocent parties and to society, are so serious that the law

present, as protection from the pains and the consequences

may well take means calculated to ensure the procurement

of a second marriage, precisely because he/she could be

of the most positive evidence of death of the first spouse or

charged and convicted of bigamy if the defense of good faith

of the presumptive death of the absent spouse [38] after the

based on mere testimony is found incredible.

lapse of the period provided for under the law. One such
means is the requirement of the declaration by a competent

The requirement of judicial declaration is also for the

benefit of the State. Under Article II, Section 12 of the
Constitution, the State shall protect and strengthen the
family as a basic autonomous social institution. Marriage is a
social institution of the highest importance. Public policy,
good morals and the interest of society require that the
marital relation should be surrounded with every safeguard
and its severance only in the manner prescribed and the
causes specified by law.[37] The laws regulating civil marriages
are necessary to serve the interest, safety, good order,
comfort or general welfare of the community and the parties
can

waive

nothing

essential

to

the

validity

of

the

proceedings. A civil marriage anchors an ordered society by

encouraging stable relationships over transient ones; it
enhances the welfare of the community.
In a real sense, there are three parties to every civil

court of the presumptive death of an absent spouse as proof

that the present spouse contracts a subsequent marriage on
a well-grounded belief of the death of the first spouse.
Indeed, men readily believe what they wish to be true, is a
maxim of the old jurists. To sustain a second marriage and to
vacate a first because one of the parties believed the other
to be dead would make the existence of the marital relation
determinable, not by certain extrinsic facts, easily capable of
forensic ascertainment and proof, but by the subjective
condition of individuals.[39] Only with such proof can marriage
be treated as so dissolved as to permit second marriages.
[40]

Thus, Article 349 of the Revised Penal Code has made the

dissolution of marriage dependent not only upon the personal

belief of parties, but upon certain objective facts easily
capable

of

accurate

judicial

cognizance,[41] namely,

judgment of the presumptive death of the absent spouse.

marriage; two willing spouses and an approving State. On

marriage, the parties assume new relations to each other and
Page 12 of 94

The petitioners sole reliance on Article 390 of the Civil

Code as basis for his acquittal for bigamy is misplaced.

necessity of judicial declaration. [42] However, Article 41 of the

Family

Code,

which

amended

the

foregoing

rules

on

presumptive death, reads:

Articles 390 and 391 of the Civil Code provide
Art. 41. A marriage contracted by any person
during the subsistence of a previous marriage
shall be null and void, unless before the
celebration of the subsequent marriage, the
prior spouse had been absent for four
consecutive years and the spouse present had a
well-founded belief that the absent spouse was
already dead. In case of disappearance where
there
is
danger
of
death
under
the
circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only
two years shall be sufficient.

Art. 390. After an absence of seven years, it

being unknown whether or not, the absentee
still lives, he shall be presumed dead for all
purposes, except for those of succession.
The absentee shall not be presumed dead for
the purpose of opening his succession till after
an absence of ten years. If he disappeared after
the age of seventy-five years, an absence of five
years shall be sufficient in order that his
succession may be opened.
Art. 391. The following shall be presumed dead
for all purposes, including the division of the
estate among the heirs:

For the purpose of contracting the subsequent

marriage under the preceding paragraph, the
spouse present must institute a summary
proceeding as provided in this Court for the
declaration of presumptive death of the
absentee, without prejudice to the effect of
reappearance of the absent spouse.[43]

(1)

A person on board a vessel lost

during a sea voyage, or an aeroplane
which is missing, who has not been
heard of for four years since the loss
of the vessel or aeroplane;
(2)
A person in the armed forces who
has taken part in war, and has been
missing for four years;
(3)
A person who has been in danger
of death under other circumstances
and his existence has not been
known for four years.

With the effectivity of the Family Code, [44] the period of

seven years under the first paragraph of Article 390 of the
Civil Code was reduced to four consecutive years. Thus,
before the spouse present may contract a subsequent
marriage, he or she must institute summary proceedings for
the declaration of the presumptive death of the absentee

The presumption of death of the spouse who had been

spouse,[45] without prejudice to the effect of the reappearance

absent for seven years, it being unknown whether or not the

absentee still lives, is created by law and arises without any
Page 13 of 94

of the absentee spouse. As explained by this Court in Armas

this Court and comments of eminent authorities on Criminal

v. Calisterio:[46]

Law.

In contrast, under the 1988 Family Code,

in order that a subsequent bigamous marriage
may exceptionally be considered valid, the
following conditions must concur, viz.: (a) The
prior spouse of the contracting party must have
been absent for four consecutive years, or two
years where there is danger of death under the
circumstances stated in Article 391 of the Civil
Code at the time of disappearance; (b) the
spouse present has a well-founded belief that
the absent spouse is already dead; and (c) there
is, unlike the old rule, a judicial declaration of
presumptive death of the absentee for which
purpose the spouse present can institute a
summary proceeding in court to ask for that
declaration. The last condition is consistent and
in consonance with the requirement of judicial
intervention in subsequent marriages as so
provided in Article 41, in relation to Article 40, of
the Family Code.

As early as March 6, 1937, this Court ruled in Jones v.

Hortiguela[47] that, for purposes of the marriage law, it is not
necessary to have the former spouse judicially declared an
absentee

before

the

spouse

present

may

contract

subsequent marriage. It held that the declaration of absence

made in accordance with the provisions of the Civil Code has
for its sole purpose the taking of the necessary precautions
for the administration of the estate of the absentee. For the
celebration of civil marriage, however, the law only requires
that

the

former

spouse

had

been

absent

for

seven

consecutive years at the time of the second marriage, that

the spouse present does not know his or her former spouse
to be living, that such former spouse is generally reputed to
be dead and the spouse present so believes at the time of

The Court rejects petitioners contention that the

the celebration of the marriage.[48] In In Re Szatraw,[49] the

requirement of instituting a petition for declaration of

Court declared that a judicial declaration that a person is

presumptive death under Article 41 of the Family Code is

presumptively dead, because he or she had been unheard

designed merely to enable the spouse present to contract a

from in seven years, being a presumption juris tantumonly,

valid second marriage and not for the acquittal of one

subject to contrary proof, cannot reach the stage of finality or

charged with bigamy. Such provision was designed to

become final; and that proof of actual death of the person

harmonize civil law and Article 349 of the Revised Penal

presumed dead being unheard from in seven years, would

Code, and put to rest the confusion spawned by the rulings of

have to be made in another proceeding to have such

particular fact finally determined. The Court ruled that if a

Page 14 of 94

judicial decree declaring a person presumptively dead

Former Chief Justice Ramon C. Aquino was of the view

because he or she had not been heard from in seven years

that the provision of Article 349 or before the absent spouse

cannot become final and executory even after the lapse of

has been declared presumptively dead by means of a

the reglementary period within which an appeal may be

judgment reached in the proper proceedings is erroneous and

taken, for such presumption is still disputable and remains

should be considered as not written. He opined that such

subject to contrary proof, then a petition for such a

provision presupposes that, if the prior marriage has not

declaration is useless, unnecessary, superfluous and of no

been legally dissolved and the absent first spouse has not

benefit to the petitioner. The Court stated that it should not

been

waste its valuable time and be made to perform a

proceedings, the subsequent marriage is bigamous. He

superfluous and meaningless act.[50] The Court also took note

maintains that the supposition is not true. [53] A second

that a petition for a declaration of the presumptive death of

marriage is bigamous only when the circumstances in

an absent spouse may even be made in collusion with the

paragraphs 1 and 2 of Article 83 of the Civil Code are not

other spouse.

present.[54] Former Senator Ambrosio Padilla was, likewise, of

In Lukban v. Republic of the Philippines,[51] the Court

declared that the words proper proceedings in Article 349 of
the Revised Penal Code can only refer to those authorized by
law such as Articles 390 and 391 of the Civil Code which refer
to the administration or settlement of the estate of a
deceased person. In Gue v. Republic of the Philippines,

[52]

the

Court rejected the contention of the petitioner therein that,

under Article 390 of the Civil Code, the courts are authorized
to declare the presumptive death of a person after an

declared

presumptively

dead

in

proper

court

the view that Article 349 seems to require judicial decree of

dissolution or judicial declaration of absence but even with
such decree, a second marriage in good faith will not
constitute bigamy. He posits that a second marriage, if not
illegal, even if it be annullable, should not give rise to
bigamy.[55] Former Justice Luis B. Reyes, on the other hand,
was of the view that in the case of an absent spouse who
could not yet be presumed dead according to the Civil Code,
the spouse present cannot be charged and convicted of
bigamy in case he/she contracts a second marriage. [56]

absence of seven years. The Court reiterated its rulings

in Szatraw, Lukban and Jones.

The Committee tasked to prepare the Family Code

proposed the amendments of Articles 390 and 391 of the
Page 15 of 94

faith of the present spouse in contracting a

second marriage is already established.[58]

Civil Code to conform to Article 349 of the Revised Penal

Code, in that, in a case where a spouse is absent for the
requisite

period,

subsequent

the

marriage

present
only

spouse

after

may

securing

contract
a

judgment

declaring the presumptive death of the absent spouse to

avoid being charged and convicted of bigamy; the present
spouse will have to adduce evidence that he had a wellfounded belief that the absent spouse was already dead.
[57]

Such judgment is proof of the good faith of the present

spouse who contracted a subsequent marriage; thus, even if

the present spouse is later charged with bigamy if the
absentee spouse reappears, he cannot be convicted of the
crime. As explained by former Justice Alicia Sempio-Diy:
Such rulings, however, conflict with Art. 349 of
the Revised Penal Code providing that the
present spouse must first ask for a declaration
of presumptive death of the absent spouse in
order not to be guilty of bigamy in case he or
she marries again.
The above Article of the Family Code now
clearly provides that for the purpose of the
present spouse contracting a second marriage,
he or she must file a summary proceeding as
provided in the Code for the declaration of the
presumptive death of the absentee, without
prejudice to the latters reappearance. This
provision is intended to protect the present
spouse from a criminal prosecution for bigamy
under Art. 349 of the Revised Penal Code
because with the judicial declaration that the
missing spouses presumptively dead, the good

Of the same view is former Dean Ernesto L. Pineda

(now Undersecretary of Justice) who wrote that things are
now clarified. He says judicial declaration of presumptive
death

is

now

authorized

for

purposes

of

remarriage. The present spouse must institute a summary

proceeding for declaration of presumptive death of the
absentee, where the ordinary rules of procedure in trial will
not

be

followed.

Affidavits

will

suffice,

with

possible

clarificatory examinations of affiants if the Judge finds it

necessary for a full grasp of the facts. The judgment
declaring an absentee as presumptively dead is without
prejudice to the effect of reappearance of the said absentee.
Dean Pineda further states that before, the weight of
authority is that the clause before the absent spouse has
been

declared

presumptively

dead

should

be

disregarded because of Article 83, paragraph 3 of the Civil

Code. With the new law, there is a need to institute a
summary proceeding for the declaration of the presumptive
death of the absentee, otherwise, there is bigamy. [59]
According to Retired Supreme Court Justice Florenz D.
Regalado, an eminent authority on Criminal Law, in some
cases where an absentee spouse is believed to be dead,
Page 16 of 94

there must be a judicial declaration of presumptive death,

The appellate court awarded moral damages to the

which could then be made only in the proceedings for the

settlement of his estate.[60] Before such declaration, it was
held that the remarriage of the other spouse is bigamous
even if done in good faith.[61] Justice Regalado opined that
there were contrary views because of the ruling in Jones and
the provisions of Article 83(2) of the Civil Code, which,
however, appears to have been set to rest by Article 41 of
the Family Code, which requires a summary hearing for the

private complainant on its finding that she adduced evidence

to prove the same. The appellate court ruled that while
bigamy is not included in those cases enumerated in Article
2219 of the Civil Code, it is not proscribed from awarding
moral damages against the petitioner. The appellate court
ruled that it is not bound by the following ruling in People v.
Bondoc:
... Pero si en dichos asuntos se adjudicaron
daos, ello se debi indedublamente porque el
articulo 2219 del Cdigo Civil de Filipinas
autoriza la adjudicacin de daos morales en los
delitos de estupro, rapto, violacin, adulterio o
concubinato, y otros actos lascivos, sin incluir
en esta enumeracin el delito de bigamia. No
existe, por consiguiente, base legal para
adjudicar aqu los daos de P5,000.00 arriba
mencionados.[64]

declaration of presumptive death of the absent spouse before

the other spouse can remarry.
Under Article 238 of the Family Code, a petition for a
declaration of the presumptive death of an absent spouse
under Article 41 of the Family Code may be filed under
Articles 239 to 247 of the same Code.[62]
On the second issue, the petitioner, likewise, faults the trial
court and the CA for awarding moral damages in favor of the
private complainant. The petitioner maintains that moral
damages may be awarded only in any of the cases provided
in Article 2219 of the Civil Code, and bigamy is not one of

The OSG posits that the findings and ruling of the CA

are based on the evidence and the law. The OSG, likewise,
avers that the CA was not bound by its ruling in People v.
Rodeo.

them. The petitioner asserts that the appellate court failed to

The Court rules against the petitioner.

apply its ruling in People v. Bondoc,[63] where an award of

Moral damages include physical suffering, mental

moral damages for bigamy was disallowed. In any case, the

petitioner maintains, the private complainant failed to
adduce evidence to prove moral damages.

anguish, fright, serious anxiety, besmirched reputation,

wounded feelings, moral shock, social humiliation, and

Page 17 of 94

(8) Malicious prosecution;

(9) Acts mentioned in article 309;
(10) Acts and actions referred to in
articles 21, 26, 27, 28, 29, 30, 32, 34
and 35.

similar injury. Though incapable of pecuniary computation,

moral damages may be recovered if they are the proximate
result of the defendants wrongful act or omission. [65] An
award for moral damages requires the confluence of the

The parents of the female seduced,

abducted, raped, or abused, referred to in No. 3
of this article, may also recover moral damages.

following conditions: first, there must be an injury, whether

physical, mental or psychological, clearly sustained by the
claimant;second, there must be culpable act or omission

The spouse, descendants, ascendants,

and brothers and sisters may bring the action
mentioned in No. 9 of this article in the order
named.

factually established; third, the wrongful act or omission of

the defendant is the proximate cause of the injury sustained
by the claimant; and fourth, the award of damages is
predicated on any of the cases stated in Article 2219 or
Article 2220 of the Civil Code.

[66]

awarded in all cases where the aggrieved party has suffered

Moral damages may be awarded in favor of the

offended party only in criminal cases enumerated in Article
2219, paragraphs 1, 3, 4, 5 and 7 of the Civil Code and
analogous cases, viz.:
Art. 2219. Moral damages may be recovered in
the following and analogous cases.
(1) A criminal offense resulting in
physical injuries;
(2) Quasi-delicts
causing
physical
injuries;
(3) Seduction, abduction, rape, or other
lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or
arrest;
(6) Illegal search;
(7) Libel, slander or any other form of
defamation;

Thus, the law does not intend that moral damages should be
mental

anguish,

fright,

moral

anxieties,

besmirched

reputation, wounded feelings, moral shock, social humiliation

and similar injury arising out of an act or omission of another,
otherwise, there would not have been any reason for the
inclusion of specific acts in Article 2219[67] and analogous
cases (which refer to those cases bearing analogy or
resemblance, corresponds to some others or resembling, in
other respects, as in form, proportion, relation, etc.) [68]
Indeed, bigamy is not one of those specifically
mentioned in Article 2219 of the Civil Code in which the
offender may be ordered to pay moral damages to the
private

complainant/offended

party.

Nevertheless,

the

petitioner is liable to the private complainant for moral

Page 18 of 94

damages under Article 2219 in relation to Articles 19, 20 and

On the other hand, Article 21 provides that any person who

21 of the Civil Code.

willfully causes loss or injury to another in a manner that is

contrary to morals, good customs or public policy shall

According to Article 19, every person must, in the

exercise of his rights and in the performance of his act with
justice, give everyone his due, and observe honesty and
good faith. This provision contains what is commonly referred
to as the principle of abuse of rights, and sets certain
standards which must be observed not only in the exercise of
ones rights but also in the performance of ones duties. The
standards are the following: act with justice; give everyone
his due; and observe honesty and good faith. The elements
for abuse of rights are: (a) there is a legal right or duty; (b)
exercised in bad faith; and (c) for the sole intent of
prejudicing or injuring another.

[69]

compensate the latter for damages. The latter provision

is adopted to remedy the countless gaps in the statutes
which leave so many victims of moral wrongs helpless, even
though they have actually suffered material and moral injury
should vouchsafe adequate legal remedy for that untold
number of moral wrongs which it is impossible for human
foresight to prove for specifically in the statutes. Whether or
not the principle of abuse of rights has been violated
resulting in damages under Article 20 or Article 21 of the Civil
Code or other applicable provisions of law depends upon the
circumstances of each case.[71]
In the present case, the petitioner courted the private

Article 20 speaks of the general sanctions of all other

provisions of law which do not especially provide for its own
sanction. When a right is exercised in a manner which does
not conform to the standards set forth in the said provision
and results in damage to another, a legal wrong is thereby
committed for which the wrongdoer must be responsible. [70] If
the provision does not provide a remedy for its violation, an
action for damages under either Article 20 or Article 21 of the
Civil Code would be proper. Article 20 provides that every

complainant and proposed to marry her. He assured her that

he was single. He even brought his parents to the house of
the private complainant where he and his parents made the
same assurance that he was single. Thus, the private
complainant agreed to marry the petitioner, who even stated
in the certificate of marriage that he was single. She lived
with the petitioner and dutifully performed her duties as his
wife, believing all the while that he was her lawful husband.
For two years or so until the petitioner heartlessly abandoned

person who, contrary to law, willfully or negligently causes

damage to another shall indemnify the latter for the same.
Page 19 of 94

had for the ordinary, natural, and proximate

consequences though they consist of shame,
humiliation, and mental anguish. See Spiegel v.
Evergreen Cemetery Co., 117 NJL 90, 94, 186 A
585 (Sup. Ct. 1936); Kuzma v. Millinery Workers,
etc., Local 24, 27 N.J. Super, 579, 591, 99 A.2d
833 (App. Div. 1953); Prosser, supra, at p. 38.
Here the defendants conduct was not merely
negligent, but was willfully and maliciously
wrongful. It was bound to result in shame,
humiliation, and mental anguish for the plaintiff,
and when such result did ensue the plaintiff
became entitled not only to compensatory but
also to punitive damages. See Spiegel v.
Evergreen Cemetery Co., supra; Kuzma v
Millinery Workers, etc., Local 24, supra. CF. Note,
Exemplary Damages in the Law of Torts, 70
Harv. L. Rev. 517 (1957). The plaintiff testified
that because of the defendants bigamous
marriage to her and the attendant publicity she
not only was embarrassed and ashamed to go
out but couldnt sleep but couldnt eat, had
terrific headaches and lost quite a lot of weight.
No just basis appears for judicial interference
with the jurys reasonable allowance of $1,000
punitive damages on the first count. See
Cabakov v. Thatcher, 37 N.J. Super 249, 117
A.2d 298 (App. Div.[74] 1955).

her, the private complainant had no inkling that he was

already married to another before they were married.
Thus, the private complainant was an innocent victim
of the petitioners chicanery and heartless deception, the
fraud consisting not of a single act alone, but a continuous
series of acts. Day by day, he maintained the appearance of
being a lawful husband to the private complainant, who
changed her status from a single woman to a married
woman, lost the consortium, attributes and support of a
single man she could have married lawfully and endured
mental pain and humiliation, being bound to a man who it
turned out was not her lawful husband. [72]
The Court rules that the petitioners collective acts of
fraud and deceit before, during and after his marriage with
the private complainant were willful, deliberate and with
malice and caused injury to the latter. That she did not
sustain any physical injuries is not a bar to an award for
moral damages. Indeed, in Morris v. Macnab,[73] the New
Jersey Supreme Court ruled:

The Court thus declares that the petitioners acts are against
public policy as they undermine and subvert the family as a

xxx The defendant cites authorities which

indicate that, absent physical injuries, damages
for shame, humiliation, and mental anguish are
not recoverable where the actor is simply
negligent. See Prosser, supra, at p. 180; 2
Harper & James, Torts, 1031 (1956). But the
authorities all recognize that where the wrong is
willful rather than negligent, recovery may be

social institution, good morals and the interest and general

welfare of society.
Because the private complainant was an innocent
victim of the petitioners perfidy, she is not barred from
Page 20 of 94

defendants fraud for which damages may be

assessed.

claiming moral damages. Besides, even considerations of

public policy would not prevent her from recovery. As held

[7] Actions for deceit for fraudulently

inducing a woman to enter into the marriage
relation have been maintained in other
jurisdictions. Sears v. Wegner, 150 Mich. 388,
114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v.
McMillan, 99 Wash. 626, 170 P. 324; Blossom v.
Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril v.
Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411.
Considerations of public policy would not
prevent recovery where the circumstances are
such that the plaintiff was conscious of no moral
turpitude, that her illegal action was induced
solely by the defendants misrepresentation, and
that she does not base her cause of action upon
any transgression of the law by herself. Such
considerations
distinguish this case from cases in which the
court has refused to lend its aid to the
enforcement of a contract illegal on its face or
to one who has consciously and voluntarily
become a party to an illegal act upon which the
cause of action is founded. Szadiwicz v. Cantor,
257 Mass. 518, 520, 154 N.E. 251, 49 A. L. R.
958.[76]

in Jekshewitz v. Groswald:[75]
Where a person is induced by the fraudulent
representation of another to do an act which, in
consequence of such misrepresentation, he
believes to be neither illegal nor immoral, but
which is in fact a criminal offense, he has a right
of action against the person so inducing him for
damages sustained by him in consequence of
his having done such act. Burrows v. Rhodes,
[1899] 1 Q.B. 816. In Cooper v. Cooper, 147
Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the
court said that a false representation by the
defendant that he was divorced from his former
wife, whereby the plaintiff was induced to marry
him, gave her a remedy in tort for deceit. It
seems to have been assumed that the fact that
she had unintentionally violated the law or
innocently committed a crime by cohabiting
with him would be no bar to the action, but
rather that it might be a ground for enhancing
her damages. The injury to the plaintiff was said
to be in her being led by the promise to give the
fellowship and assistance of a wife to one who
was not her husband and to assume and act in a
relation and condition that proved to be false
and ignominious. Damages for such an injury
were held to be recoverable in Sherman v.
Rawson, 102 Mass. 395 and Kelley v. Riley, 106
Mass. 339, 343, 8 Am. Rep. 336.
Furthermore, in the case at bar the plaintiff does
not base her cause of action upon any
transgression of the law by herself but upon the
defendants misrepresentation. The criminal
relations which followed, innocently on her part,
were but one of the incidental results of the

Considering the attendant circumstances of the case, the

Court finds the award of P200,000.00 for moral damages to
be just and reasonable.
IN LIGHT OF ALL THE FOREGOING, the petition
is DENIED. The assailed decision of the Court of Appeals
is AFFIRMED. Costs against the petitioner.
Page 21 of 94

SO ORDERED.

Page 22 of 94

ANTONIO TAN, DANILO

DOMINGO and ROBERT
LIM,
Petitioners,

G.R. No. 168111

Present:
- versus -

THIRD DIVISION

AMELITO BALLENA,
ZENAIDA BORLONGAN,
ANNALYN VILLAFUERTE,
ROGELIO VELASQUEZ,
EDMONDO VILLAMOR,
MERCY SANTOMIN,
REYNALDO RAMOS,
THESS GONZALES,
FORTUNATO GATACILO,
RONALDO NICOL,
MARIVIC NICOL, RUEL
DISTOR, MARYJEAN
GRANADA, ARNOLD
AGUSTIN, JR., MALOU
SALAPONG, THERESA
JALMASCO (SIC),
ANTIOCO MARAGANAS,
ROLAND LAROCO,
WILFREDO DICHOSO,
JOSEPH FERRER,
GUILLERMO PACSON,
JR., ROMEO
JALAMASCO, LINO
CAGAS, DIANA DE LA
CRUZ, JERRY ARCA,
JAIME SANTOS, MANUEL
REGALA, JUANITO
GALONIA, RUSSEL
BORADO, RODY
VILLAGFUERTE (SIC),
MA. CRISTINA
MADRIDEO, VON
MADRIDEO, AMELIA
CUEVILLAS,
Page 23 of 94

YNARESSANTIAGO, J.,
Chairperson,
CARPIO,*
AUSTRIAMARTINEZ,
CHICO-NAZARIO,
and
NACHURA, JJ.

EVANGELINE DOMINGO,
FELIMAR VILLAFUERTE,
ANTONIO SALAPONG,
ELINO MALAQUE, JR.,
EMILIO TRINIDAD, MA.
ELENA HERNANDEZ,
JHONNY GRAJO, EDITHA
FLORESTA, ORLANDO
MENDOZA, SONIA
ALONZO, GREGORIO
MARIANO, LIPA ALDRIN,
FRANCO SEVILLA,
MYRISIA NARCISO,
JOSEPHINE GERONIMO,
MARILOU BORDADO,
ELISA FRANCISCO,
LOLITA NARCISO,
ANGELITA DOMINGO,
MA. THERESA TORRES,
IRERIA CRUZ,
APOLINARIO TRINIDAD,
ROMULO BULAONG,
FELEXBERTO (SIC)
SANTIAGO, MARICEL
MENDOZA, JUANITO
CRUZ, FIDEL PASCUAL,
ROWENA DE LA CRUZ,
DIVINA PAGTALUNAN,
PACENCIA DOMINGO,
MARILOU VICTORIA,
GUILLERMO
CRISOSTOMO, JR.,
ANITA CRISOSTOMO,
ELIZABETH CASTRO,
ENRIQUE BUGARIN,
AUGUST BULAONG,
ELMER VILLAMOR,
ROMEO UDIONG, NICK
OTARA, ERLANDO
RICOHERMOSO,
RIZALINA DE LA CRUZ,

ANTONIO JAO, JR.,

ROSALIE JINGCO,
ALFREDO SINGUELAS,
RONALD SANDIL, ALMA
ENRIQUEZ, MICHAEL
RITCHIE DE LA CRUZ,
JANE JAVIER, TERESITA
SACDALAN, MARCELINO
ESTRELLA, ARTUADOR
JUANITO (SIC), JR.,
LYDIA PAGTALUNAN,
ROSINDO MARAGAAS,
DANILO SEGUNDO,
ROMEO CRUZ,
ANNALIZA SELENCIO,
ELLEN LABAJO, MA.
ELENA SANTIAGO,
ARNULFO SANTIAGO,
MA. LUISA SANTOS,
SERGELIO
PAGDANGANAN, DANTE
VICTORIA, FELIPINAS
(SIC) EMPHACIS (SIC),
NOEL OLIVERA, JOEY
AUSTRIA, PHILIP
MONSUYAC, RONALD
PASCUAL, ZENAIDA
SAKAY, PAULO SOTTO,
MA. LEDY MANLAPIG,
RODOLFO JUNTO,
ALDWIN CALALANG,
CHARITO REYES,
PAULINA CASTOR,
VICTOR MARCELINO,
CARINA RAUZA, VICTOR
DELOS SANTOS,
EVANGELINE PAULINO,
RENAN LAYSON, RUDY
DONOR, REBECCA
PASOQUIN, EMETERIA
PAGTALUNAN,
Page 24 of 94

FERDINAND
MANANSALA, JOCELYN
BRINGAS, JESUS
GATACILO, IMELDA
VALENCIA, MACARIO
RICABO, ISID NICASIO,
CHRISTOPHER DELA
CRUZ, ERNESTO
FOMBO, ANGELO
GIANAN, CRISTINA STA.
ANA, DANTE SEMBILLO,
MARILOU AGCAOILI,
CRISTINA SANTOS,
CARMELITA GARSUTA,
LOURDES MATOTE,
SONNY DE LA CRUZ,
ANGELITA VILLAFUERTE,
MARIO SANTOS,
ALBERTO NAVARRO,
RITA DELA CRUZ,
ARMANDO CASTRO,
ERWIN CASTRO,
ALFREDO NATIVIDAD,
PURISIMA TRINIDAD,
ROBERTO PARAISO,
GREGORIO BUMA-AT,
MARIA TRINIDAD, EMMA
SEGUNDO, FREDDIE
SEGUNDO, NARCISO
HERERO (SIC),
EMILIANO
NUEZ,VIOLETA AVILA,
RIZA REAL, CHITO ANG,
MARIANO MANOLITA,
JOVENCIO UNDALOK,
NILDA NELIA DEL
ROSARIO, ERNESTO
MARCELINO, EMELITA
ALBERTO, YOLANDA
AGUSTIN, ARNOLD
ALVERO, NENITA DIGA,

Promulgated:
July 4, 2008

MICHELLE DIGA, MA.

ARA PALELEO, FLORA
MORALES, ROBERRO
(SIC) RAMOS, JR., JOJO
GADO, FLORA
PAGDANGANAN,
ESTRELITA MAPILISAN,
FLORENCIO BIHASA,
MILAGROS SAN PEDRO,
JONATHAN LOPEZ, LANI
MEDALLA, MARIVIC
ENRIQUEZ, CHONA
MANUMBAS, LEILANI
LOPEZ, FELIX
ENRIQUEZ, ANECITO
MEDALLA, FRANCIS
BULAONG, CARLOS
DELA CRUZ, CRISANTA
ASPIRAS, ARNOLD
ALMERO, ADELIA
SURIO, CRISANTO
CRUZ, and ANALYN
BERNABE,
Respondents.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
Page 25 of 94

CHICO-NAZARIO, J.:

for their SSS loans, which were already deducted from their
wages.

Assailed
in
this
Petition
for
Review
[1]
on Certiorari under Rule 45 of the Rules of Court are the
Decision[2] and Resolution[3] of the Court of Appeals dated 30
September 2004 and 9 May 2005, respectively, in CA-G.R. SP
No. 79101. The appellate courts Decision set aside the
Resolutions[4] of the Department of Justice (DOJ) dated 19
March 2002 and 9 August 2002, and reinstated the Final
Resolution[5] of the Provincial Prosecutor in I.S. Nos. 01-031007, 01-04-1129 and 01-04-1130, which ordered the filing
of two (2) informations against petitioners Antonio Tan,
Danilo Domingo and Robert Lim. The appellate courts
Resolution denied petitioners Motion for Reconsideration.

According to respondents, these acts violated Sections

9, 10, 22 and 24, paragraph (b) of Republic Act No. 1161, as
amended by Republic Act No. 8282; [9] as well as Section 28,
paragraphs (e), (f), and (h) thereof, in relation to Article 315
of the Revised Penal Code, the pertinent portions of which
read:

The factual and procedural antecedents of the case

are as follows:

SEC. 9. Coverage. - (a) Coverage in the

SSS shall be compulsory upon all employees
not over sixty (60) years of age and their
employers: x x x Provided, finally, That nothing
in this Act shall be construed as a limitation on
the right of employers and employees to agree
on and adopt benefits which are over and
above those provided under this Act.

Petitioners Antonio Tan, Danilo Domingo and Robert

Lim were officers of Footjoy Industrial Corporation (Footjoy), a
domestic corporation engaged in the business of
manufacturing shoes and other kinds of footwear, prior to the
cessation of its operations sometime in February 2001.

SEC. 10. Effective Date of Coverage. Compulsory coverage of the employer shall
take effect on the first day of his operation and
that of the employee on the day of his
employment: x x x.

On 19 March 2001, respondent Amelito Ballena, [6] and

one hundred thirty-nine (139) other employees of Footjoy,
filed a Joint Complaint-Affidavit[7] before the Office of the
Provincial Prosecutor of Bulacan against the company and
petitioners Tan and Domingo in their capacities as
owner/president and administrative officer, respectively.

SEC. 22. Remittance of Contributions.

-- (a) The contribution imposed in the preceding
section shall be remitted to the SSS within the
first ten (10) days of each calendar month
following the month for which they are
applicable or within such time as the
Commission may prescribe. Every employer
required to deduct and to remit such
contributions shall be liable for their payment
and if any contribution is not paid to the SSS as
herein prescribed, he shall pay besides the
contribution a penalty thereon of three percent

The Complaint-Affidavit alleged that the company did

not regularly report the respondent employees for
membership at the Social Security System (SSS) and that it
likewise failed to remit their SSS contributions and payment
Page 26 of 94

(3%) per month from the date the contribution

falls due until paid. If deemed expedient and
advisable by the Commission, the collection
and remittance of contributions shall be made
quarterly or semi-annually in advance, the
contributions payable by the employees to be
advanced
by
their
respective
employers: Provided, That upon separation of
an employee, any contribution so paid in
advance but not due shall be credited or
refunded to his employer.

1. By an action in court, which

shall hear and dispose of the case
in preference to any other civil
action; x x x.
SEC.
Reports.

24. Employment

Records

and

xxxx
(b) Should the employer misrepresent
the true date of employment of the employee
member or remit to the SSS contributions which
are less than those required in this Act or fail to
remit any contribution due prior to the date of
contingency, resulting in a reduction of
benefits, the employer shall pay to the SSS
damages equivalent to the difference between
the amount of benefit to which the employee
member or his beneficiary is entitled had the
proper contributions been remitted to the SSS
and the amount payable on the basis of the
contributions actually remitted: x x x.

(b) The contributions payable under this

Act in cases where an employer refuses or
neglects to pay the same shall be collected by
the SSS in the same manner as taxes are made
collectible under the National Internal Revenue
Code, as amended. Failure or refusal of the
employer to pay or remit the contributions
herein prescribed shall not prejudice the right
of the covered employee to the benefits of the
coverage.

SEC. 28. Penal Clause

The right to institute the necessary action

against the employer may be commenced
within twenty (20) years from the time the
delinquency is known or the assessment is
made by the SSS, or from the time the benefit
accrues, as the case may be.

xxxx
(e) Whoever fails or refuses to comply with the
provisions of this Act or with the rules and
regulations promulgated by the Commission,
shall be punished by a fine of not less than Five
thousand pesos (P5,000.00) nor more than
Twenty thousand pesos (P20,000.00), or
imprisonment for not less than six (6) years and
one (1) day nor more than twelve (12) years, or
both,
at
the
discretion
of
the

(c) Should any person, natural or

juridical,
defaults
in
any
payment
of
contributions, the Commission may also collect
the same in either of the following ways:
Page 27 of 94

court: Provided, That, where the violation

consists in failure or refusal to register
employees or himself, in case of the covered
self-employed, or to deduct contributions from
the employees compensation and remit the
same to the SSS, the penalty shall be a fine of
not less Five thousand pesos (P5,000.00) nor
more than Twenty thousand pesos (P20,000.00)
and imprisonment for not less than six (6) years
and one (1) day nor more than twelve (12)
years.

1.

xxxx
(b)
By
misappropriating
or
converting, to the prejudice of
another, money, goods, or any
other personal property received by
the offender in trust or on
commission, or for administration,
or under any other obligation
involving the duty to make delivery
of or to return the same, even
though such obligation be totally or
partially guaranteed by a bond; or
by denying having received such
money, goods, or other property.

(f) If the act or omission penalized by this

Act be
committed
by an
association,
partnership,
corporation
or
any
other
institution, its managing head, directors or
partners shall be liable to the penalties
provided in this Act for the offense.

Respondents also alleged their

entitlement
to
actual
and
exemplary damages and attorneys
fees.

xxxx
(h) Any employer who after deducting
the monthly contributions or loan amortizations
from his employees compensation, fails to
remit the said deductions to the SSS within
thirty (30) days from the date they became due
shall be presumed to have misappropriated
such contributions or loan amortizations and
shall suffer the penalties provided in Article
Three hundred fifteen of the Revised Penal
Code.
Art. 315. Swindling (estafa). Any person
who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:
xxxx

With unfaithfulness or abuse

of confidence, namely:

In

their

Joint

Counter-Affidavit,[10] petitioners

Tan

and

Domingo blamed the economic distress that beset their

company for their failure to timely pay and update the
monthly SSS contributions of the employees. They alleged
that the companys dire

situation became

even

more

aggravated when the buildings and equipment of Footjoy

were destroyed by fire on 4 February 2001.[11] This incident
eventually

led

to

operations. Because
Page 28 of 94

the
of

cessation
this,

some

of

the

companys

of

the

companys

employees tried to avail themselves of their SSS benefits but

failed to do so. It was then that the employees filed their
complaint.

xxxx
2. Upon payment, you are hereby directed to submit to us
within three days the official receipt as proof of payment of
the monthly installment; and,

their good faith and lack of criminal culpability when they

3. That in the event of default in the payment of at least two

(2) monthly installments or non-compliance with the
payment plan, the employers total outstanding obligations
shall become due and demandable without need of further
notice otherwise, we will pursue legal action against you.

acknowledged their fault and demonstrated their willingness

Please be guided accordingly.

Petitioners Tan and Domingo thereafter underlined

to pay their obligations by executing a memorandum of

agreement with the SSS on 10 April 2001, the pertinent

Very truly yours,

(Signed) Maylene M. Sanchez
Branch Head

portions of which read:

CONFORME:
April 10, 2001

(Signed) Antonio Tan[12]

FOOTJOY INDUSTRIAL CORPORATION

Antonio Tan
President
Mercado St., Guiguinto, Bulacan

Pursuant to Office Order No. 141-V dated February 2, 1995,

your application to pay on installment the amount
of P5,227,033.66 representing SS premium contribution and
penalties for the period August 2000 up to January 2001 is
hereby approved subject, however, to the following terms
and conditions:

On 17 May 2001, the Assistant Provincial Prosecutor issued a

Joint Resolution,[13] which found probable cause to charge
Footjoy, Antonio Tan, and Danilo Domingo with violations of
Sections 9, 10 and 24, paragraph (b) in relation to Section 28,
paragraphs (e), (f) and (h) of the Social Security Law. On the
other hand, the charge for the violation of Article 315,
paragraph 1(b) of the Revised Penal Code was dismissed, as
the same was deemed absorbed by the violations under the
SSS Law, but the penalty imposed by the former law would
be applied whenever appropriate. The Provincial Prosecutor
approved the above Resolution on 29 May 2001 and affirmed
the filing of informations against petitioners Tan and
Domingo.

1. That the amount of P5,227,033.66 be paid in twenty-four

(24) monthly installment (sic):

On 14 June 2001, respondents filed a Motion[14] to implead

five additional party respondents purportedly for being

Dear Mr. Antonio Tan,

Page 29 of 94

owners and/or responsible officers of Footjoy, in accordance

with the above-mentioned Section 28 paragraph (f) of the
SSS Law.
Meanwhile, on 29 June 2001, petitioners filed a Motion for
Reconsideration[15] of the above Joint Resolution.
The Assistant Provincial Prosecutor issued a Final
Resolution[16] on 20 August 2001, the dispositive portion of
which provides:
Accordingly, the original resolution is modified by impleading
therein as additional respondent Robert Lim. [17] On the other
hand, two informations (one count each) for violation of Sec.
9 in relation to Sec. 10 and, Sec. 24(b) should be prepared for
filing in court. All the rest found in the original resolution are
maintained.
On 20 September 2001, the Provincial Prosecutor issued a
Supplementary Resolution,[18] which clarified the last
statement in the Final Resolution, stating that:
Let it, therefore, be understood and for which this
supplementary resolution is being issued, that the last
recommendation of Pros. F. F. Malapit was approved as [to]
the filing of two informations as contained in his approved
original resolution, that is, violations of Sec. 9, 10 & 24(b) in
relation to Sec. 28, pars. (e) (f) and (h) of R.A. 1161, as
amended.
Thus, on 28 September 2001, the Provincial Prosecutor filed
two informations against petitioners Tan, Domingo and Lim in
Branch 18 of the Regional Trial Court (RTC) of
Bulacan. Criminal Case No. 2592-M-2001[19] charged
petitioners Tan, Domingo and Lim with violation of Section 9
in relation to Section 10 and Section 28, paragraph (e) of the
Social Security Law. On the other hand, Criminal Case No.
2593-M-2001 charged petitioners with violation of Section 24
paragraph (b) in relation to Section 28, paragraph (h) of said
law.

On 13 November 2001, petitioners filed a Petition for

Review[20] with the DOJ, alleging, inter alia, that the Assistant
Prosecutor committed grave and manifest error when he
found probable cause to charge them with the alleged
offenses.
Due to the pendency of the above petition, petitioners filed
with the RTC of Bulacan a motion for the suspension of their
scheduled arraignment[21] in the criminal cases, in
accordance with Section 11, paragraph (c) of Rule 116 [22] of
the Revised Rules of Criminal Procedure.[23]
On 19 March 2002, the DOJ resolved to grant the petition for
review,[24] stating:
WHEREFORE, the assailed resolution is REVERSED. The
Provincial Prosecutor of Bulacan is hereby directed to cause
the withdrawal of the informations for violation of the Social
Security Law earlier filed against respondents Antonio Tan,
Danilo Domingo, and Robert Lim and to report the action
thereon within ten (10) days from receipt thereof.

Respondents filed a Motion for Reconsideration [25] of the DOJ

resolution, but the same was denied in a
Resolution[26] dated 9 August 2002.
On 16 October 2002, respondents filed with the Court of
Appeals a Petition for Certiorari[27] under Rule 65 of the
Revised Rules of Court, which was docketed as CA-G.R. SP
No. 79101. Respondents claimed that the DOJ committed
grave abuse of discretion amounting to lack or excess of
jurisdiction in finding that no probable cause existed to
charge petitioners Tan, Domingo and Lim with violations of
the SSS Law; that the allegation of petitioners failure to
report respondents to the SSS for coverage is not supported
by evidence; and that charges [for the violation] of a special

Page 30 of 94

law such as the Social Security Act can be overcome by a

show of good faith and lack of intent to commit the same.
In a Resolution[28] issued on 29 November 2002, the Court of
Appeals dismissed outright the above petition because only
respondents Zenaida Borlongan and Francis Bulaong, who did
not possess a special power of attorney empowering them to
sign on behalf of the other respondents, signed the
certification of non-forum shopping. The petition was also
filed only on 16 October 2002 or one day beyond the
reglementary period, which ended on 15 October 2002.
Respondents then filed a Motion for Reconsideration [29] of the
appellate courts resolution, contending that the procedural
lapses committed by their counsel were honest and
excusable mistakes and that the same should give way to
their meritorious case. They, likewise, prayed for the
admission of a Special Power of Attorney[30] that authorized
Mercy Santomin, Zenaida Borlongan and Ronaldo Nicol to
sign court pleadings and documents on their behalf.
Before resolving the respondents motion, the Court of
Appeals directed the respondents to amend their petition by
impleading as party petitioners the two hundred thirty-eight
(238) other employees of Footjoy, whose names were not
included in the title of the original petition, but were merely
contained in an annexed document.[31] On 13 March 2003,
respondents filed their amended petition, which was signed
by only one hundred eighty employees. [32]

resolution of the Provincial Prosecutor of Bulacan

dated August 20, 2001 is REINSTATED.[34]
In reversing the DOJ resolutions, the Court of Appeals ruled
that the agency acted with grave abuse of discretion when it
committed a palpable mistake in dismissing the charges
against petitioners. The appellate court found that petitioners
were indeed remiss in their duty to remit the respondents
SSS contributions in violation of Section 28(h) of the Social
Security Law. The petitioners claim of good faith and the
absence of criminal intent should not have been considered,
as these were evidentiary in nature and should thus be more
properly proved in a trial. Furthermore, the appellate court
declared that said defenses are unavailing in crimes
punishable by a special law, which are characterized asmala
prohibita. In these crimes, it is enough that they were done
freely and consciously and that the intent to commit the
same need not be proved.
Petitioners moved for a reconsideration[35] of the above
decision, but the same was denied by the Court of Appeals in
a Resolution[36] dated 9 May 2005, the dispositive portion of
which reads:
WHEREFORE, for lack of merit, the motion for
reconsideration is DENIED.
Petitioners now come before us, pleading that we reverse the
assailed decision and resolution of the Court of Appeals as
we rule on the following issues:

On 2 June 2003, the Court of Appeals rendered a

Resolution[33] which granted the respondents Motion for
Reconsideration of the 29 November 2002 resolution and
admitted the amended petition.

I.

After requiring the parties to comment, the Court of Appeals

issued the assailed Decision dated 30 September 2004, the
dispositive portion of which reads:
WHEREFORE, premises considered, the resolutions of the
Department of Justice dated March 19, 2002 and August 9,
2002 are VACATED and SET ASIDE, while the final

WHETHER OR NOT THE COURT OF APPEALS COMMITTED

GRIEVOUS ERROR AND ACTED WITHOUT JURISDICTION WHEN
IT GAVE DUE COURSE TO THE RESPONDENTS PETITION
FOR CERTIORARI DESPITE THE FACT THAT IT WAS FILED OUT
[OF] TIME.
II.

Page 31 of 94

WHETHER OR NOT THE COURT OF APPEALS COMMITTED

GRIEVOUS ERROR WHEN IT GAVE DUE COURSE TO THE
RESPONDENTS PETITION FOR CERTIORARIDESPITE THE FACT
THAT THE TWO (2) SIGNATORIES THEREAT WERE NOT ABLE
TO SHOW THAT THEY WERE DULY AUTHORIZED BY THE
OTHER PETITIONERS TO FILE THE PETITION ON THEIR
BEHALF.
III.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED
SERIOUS ERROR WHEN IT REVERSED THE RESOLUTION OF
THE DOJ WHICH FOUND OUT THAT THE PETITIONERS COULD
NOT BE INDICTED FOR ANY VIOLATION OF THE SSS LAW FOR
WANT OF PROBABLE CAUSE.[37]
Petitioners case centers on the alleged error of the Court of
Appeals in giving due course to a formally defective
petition. Respondents, on the other hand, pray for a liberal
interpretation of the rules in pleading for their cause.
We find that the petition lacks merit.
Procedurally, petitioners argue that the Court of Appeals
gravely erred in taking cognizance of the respondents
Petition for Certiorari even if the original petition was filed
one day beyond the reglementary period allowed by the
rules, and the two signatories therein were not shown to
have been properly authorized by their co-petitioners to file
the petition.

and adequate remedy in the ordinary course of law, a person

aggrieved thereby may file averified petition in the proper
court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting
such incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of
the judgment, order or resolution subject thereof, copies of
all pleadings and documents relevant and pertinent thereto,
and a sworn certification of non-forum shopping as
provided in the third paragraph of Section 3, Rule
46. (Emphases ours.)
Specifically, the requirement of verification is contained in
Section 4, Rule 7 of the Rules of Court, to wit:
Sec. 4. Verification. Except when otherwise specifically
required by law or rule, pleadings need not be under oath,
verified or accompanied by affidavit.
A pleading is verified by an affidavit that the affiant has read
the pleading and that the allegations therein are true and
correct of his personal knowledge or based on authentic
records.
A pleading required to be verified which contains a
verification based on "information and belief" or upon
"knowledge, information and belief," or lacks a proper
verification, shall be treated as an unsigned pleading.

Section 1, Rule 65 of the Rules of Court provides for the

requirements for filing a Petition for Certiorari, namely:

On the other hand, the fourth paragraph of Section 3, Rule 46

of the Rules of Court provides:

Section 1. Petition for certiorari. When any tribunal, board or

officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor any plain, speedy,

The petitioner shall also submit together with the petition a

sworn certification that he has not theretofore commenced
any other action involving the same issues in the Supreme
Court, the Court of Appeals or different divisions thereof, or
any other tribunal or agency; if there is such other action or

Page 32 of 94

proceeding, he must state the status of the same; and if he

should thereafter learn that a similar action or proceeding
has been filed or is pending before the Supreme Court, the
Court of Appeals, or different divisions thereof, or any other
tribunal or agency, he undertakes to promptly inform the
aforesaid courts and other tribunal or agency thereof within
five (5) days therefrom.
Finally, the reglementary period within which a Petition
for Certiorari must be filed is provided for under the first
paragraph of Section 4, Rule 65,[38] to wit:
The petition shall be filed not later than sixty (60) days from
notice of the judgment, order or resolution. In case a motion
for reconsideration or new trial is timely filed, whether such
motion is required or not, the petition shall be filed not later
than sixty (60) days counted from the notice of the denial
of the motion. (Emphasis ours.)
In the present case, only two employees signed the original
Petitions verification and certification of non-forum shopping
and the same was filed one day beyond the period allowed
by the rules. The appellate court initially resolved to dismiss
the original petition precisely for these reasons in a
Resolution dated 29 November 2002. When asked to
reconsider, the appellate court ordered the filing of an
amended petition in order to include all the original
complainants. An amended petition was then filed in
compliance with the said order, but only one hundred eighty
(180) of the two hundred forty (240) original complainants
signed the verification and certification of non-forum
shopping. The Court of Appeals then granted the motion for
reconsideration and resolved to reinstate the
petition. Thereafter, on 30 September 2004, the assailed
decision that upheld the filing of the informations against the
petitioners was issued.
This Court finds no fault in the assailed actions of the Court
of Appeals.

It is a well-settled principle that rules of procedure are mere

tools designed to facilitate the attainment of justice. Their
strict and rigid application, which would result in
technicalities that tend to frustrate rather than promote
substantial justice, must always be eschewed. [39] In deciding
a case, the appellate court has the discretion whether or not
to dismiss the same, which discretion must be exercised
soundly and in accordance with the tenets of justice and fair
play, taking into account the circumstances of the case. [40] It
is a far better and more prudent cause of action for the court
to excuse a technical lapse and afford the parties a
review of the case to attain the ends of justice, rather than
dispose of the case on technicality and cause grave injustice
to the parties, giving a false impression of speedy disposal of
cases while actually resulting in more delay, if not a
miscarriage of justice.[41]
The Court of Appeals committed no reversible error when it
gave due course to the amended petition despite the signing
of the verification and certification of non-forum shopping of
only some, and not all, of the original complainants.
Under justifiable circumstances, we have already allowed the
relaxation of the requirements of verification and certification
so that the ends of justice may be better served.
[42]
Verification is simply intended to secure an assurance that
the allegations in the pleading are true and correct and not
the product of the imagination or a matter of speculation,
and that the pleading is filed in good faith; while the purpose
of the aforesaid certification is to prohibit and penalize the
evils of forum shopping.[43]
In Torres v. Specialized Packaging Development Corporation,
[44]
we ruled that the verification requirement had been
substantially complied with despite the fact that only two (2)
out of the twenty-five (25) petitioners have signed the
petition for review and the verification. In that case, we held
that the two signatories were unquestionably real parties-ininterest, who undoubtedly had sufficient knowledge and
belief to swear to the truth of the allegations in the Petition.

Page 33 of 94

In Ateneo de Naga University v. Manalo,[45] we also ruled that

there was substantial compliance with the requirement of
verification when only one of the petitioners, the President of
the University, signed for and on behalf of the institution and
its officers.
Similarly, in Bases Conversion and Development Authority v.
Uy,[46] we allowed the signature of only one of the principal
parties in the case despite the absence of a Board Resolution
which conferred upon him the authority to represent the
petitioner BCDA.
In the present case, the circumstances squarely involve a
verification that was not signed by all the petitioners
therein. Thus, we see no reason why we should not uphold
the ruling of the Court of Appeals in reinstating the petition
despite the said formal defect.
On the requirement of a certification of non-forum shopping,
the well-settled rule is that all the petitioners must sign the
certification of non-forum shopping. The reason for this is
that the persons who have signed the certification cannot be
presumed to have the personal knowledge of the other nonsigning petitioners with respect to the filing or non-filing of
any action or claim the same as or similar to the current
petition.[47] The rule, however, admits of an exception and
that is when the petitioners show reasonable cause for failure
to personally sign the certification. The petitioners must be
able to convince the court that the outright dismissal of the
petition would defeat the administration of justice. [48]
In the case at bar, counsel for the respondents disclosed that
most of the respondents who were the original complainants
have since sought employment in the neighboring towns of
Bulacan, Pampanga and Angeles City. Only the one hundred
eighty (180) signatories were then available to sign the
amended Petition for Certiorari and the accompanying
verification and certification of non-forum shopping.
[49]
Considering the total number of respondents in this case
and the elapsed period of almost two years since the filing of

the Joint Complaint Affidavit on 19 March 2001 and the filing

of the amended petition on 13 March 2003, we hold that the
instant case sufficiently falls under the exception to the
aforesaid rule. Thus, the Court of Appeals cannot be said to
have erred in overlooking the above procedural error.
We also cannot fault the act of the Court of Appeals in
ordering submission of an amended petition and the
reinstatement of the same despite the original petitions late
filing, considering the obvious merits of the case.
In Vallejo v. Court of Appeals,[50] the Court of Appeals initially
dismissed the Petition for Certiorari for having been filed
beyond the reglementary period, but on appeal, we reversed
the appellate courts ruling, as petitioner had presented a
good cause for the proper determination of his case.
Petitioners claim that the Court of Appeals committed serious
error when it reversed the DOJ resolution, which found that
there was no probable cause to indict petitioners for any
violation of the SSS Law. They argue that the DOJ is the
highest agency and the ultimate authority to decide the
existence or non-existence of probable cause, and that the
Court of Appeals does not have the authority to reverse such
findings.
This argument is utterly misguided.
Probable cause is defined as the existence of such facts and
circumstances as would excite the belief in a reasonable
mind, acting on the facts within the knowledge of the
prosecutor, that the person charged was guilty of the crime
for which he was prosecuted.[51] It is a reasonable ground of
presumption that a matter is, or may be, well-founded, such
a state of facts in the mind of the prosecutor as would lead a
person of ordinary caution and prudence to believe, or
entertain an honest or strong suspicion, that a thing is so.The
term does not mean actual and positive cause nor does it
import absolute certainty. It is merely based on opinion and
reasonable belief.[52]

Page 34 of 94

The determination of probable cause is a function that

belongs to the public prosecutor, one that, as far as crimes
cognizable by the RTC are concerned, and notwithstanding
that it involves an adjudicative process of a sort, exclusively
pertains, by law, to said executive officer, the public
prosecutor.[53] This broad prosecutorial power is, however, not
unfettered, because just as public prosecutors are obliged to
bring forth before the law those who have transgressed it,
they are also constrained to be circumspect in filing criminal
charges against the innocent. Thus, for crimes cognizable by
the regional trial courts, preliminary investigations are
usually conducted.[54] As defined under the law, a preliminary
investigation is an inquiry or a proceeding to determine
whether there is sufficient ground to engender a wellfounded belief that a crime has been committed, and the
respondent is probably guilty thereof and should be held for
trial.[55]
The findings of the prosecutor with respect to the existence
or non-existence of probable cause is subject to the power of
review by the DOJ. Indeed, the Secretary of Justice may
reverse or modify the resolution of the prosecutor, after
which he shall direct the prosecutor concerned either to file
the corresponding information without conducting another
preliminary investigation, or to dismiss or move for dismissal
of the complaint or information with notice to the parties. [56]
This power of review, however, does not preclude this Court
and the Court of Appeals from intervening and exercising our
own powers of review with respect to the DOJs findings. In
the exceptional case in which grave abuse of discretion is
committed, as when a clear sufficiency or insufficiency of
evidence to support a finding of probable cause is ignored,
the Court of Appeals may take cognizance of the case via a
petition under Rule 65 of the Rules of Court. [57]
This is precisely the situation in the case at bar. In deciding
the respondents Petition for Certiorari, the Court of Appeals
ruled that the DOJ committed palpable mistake in reversing
the Final Resolution of the Provincial Prosecutor and, in so
doing, acted with grave abuse of discretion.

In the assailed decision, the Court of Appeals declared that

the DOJs dismissal of the charges against petitioners, on the
ground that the evidence on record did not support the same,
was incorrect. Furthermore, the appellate court held that the
defenses of petitioners of good faith and lack of criminal
intent should not have been considered, inasmuch as the
offenses charged were for violations of a special law and are
therefore characterized as mala prohibita, in which the intent
to commit is immaterial.
After carefully reviewing the records of this case, we agree
with the Court of Appeals findings that there was indeed
probable cause to indict petitioners for the offenses charged.
In a preliminary investigation, a full and
exhaustive presentation of the parties' evidence is not
required, but only such as may engender a well-grounded
belief that an offense has been committed and that the
accused is probably guilty thereof.[58] Certainly, it does not
involve the determination of whether or not there is evidence
beyond reasonable doubt pointing to the guilt of the
person. Only prima facie evidence is required; or that which
is, on its face, good and sufficient to establish a given fact, or
the group or chain of facts constituting the party's claim or
defense; and which, if not rebutted or contradicted, will
remain sufficient.[59] Therefore, matters of evidence are more
appropriately presented and heard during the trial. [60]
In the present case, petitioners were charged with violations
of the SSS Law for their failure to either promptly report
some of the respondents for compulsory
coverage/membership with the SSS or remit their SSS
contributions and loan amortizations. In support of their
claims, respondents have attached unto their Joint
Complaint-Affidavit a summary of their unreported and
unremitted SSS contributions, [61] as gathered from the SSS
Online Inquiry System, and a computation of their unreported
and unremitted SSS contributions. [62]

Page 35 of 94

On the part of the petitioners, they have not denied their

fault in not remitting the SSS contributions and loan
payments of the respondents in violation of Section 28,
paragraphs (e), (f) and (h) of the SSS Law. Instead,
petitioners interposed the defenses of lack of criminal intent
and good faith, as their failure to remit was brought about by
alleged economic difficulties, and they have already agreed
to settle their obligations with the SSS through a
memorandum of agreement to pay in installments.
As held by the Court of Appeals, the claims of good faith and
absence of criminal intent for the petitioners acknowledged
non-remittance of the respondents contributions deserve
scant consideration. The violations charged in this case
pertain to the SSS Law, which is a special law. As such, it
belongs to a class of offenses known as mala prohibita.
The law has long divided crimes into acts wrong in
themselves called acts mala in se; and acts which would not
be wrong but for the fact that positive law forbids them,
called acts mala prohibita. This distinction is important with
reference to the intent with which a wrongful act is done. The
rule on the subject is that in acts mala in se, the intent
governs; but in acts mala prohibita, the only inquiry is, has
the law been violated?[63] When an act is illegal, the intent of
the offender is immaterial.[64]
Thus, the petitioners admission in the instant case of their
violations of the provisions of the SSS Law is more than
enough to establish the existence of probable cause to
prosecute them for the same.
WHEREFORE, in light of the foregoing, the Petition for
Review under Rule 45 of the Rules of Court is
hereby DENIED. The assailed Decision dated 30 September
2004of the Court of Appeals in CA-G.R. SP No. 79101 and the
Resolution dated 9 May 2005 are hereby AFFIRMED. Costs
against petitioners.
SO ORDERED.

Page 36 of 94

rights and liberties is imbued with a civic obligation, which

society is justified in enforcing at all cost, against those who
would endeavor to withhold fulfillment. Thus he says The sole end for which mankind is warranted, individually or
collectively, in interfering with the liberty of action of any of
their number, is self-protection. The only purpose for which
power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to
others.
Parallel to individual liberty is the natural and illimitable
right of the State to self-preservation. With the end of
maintaining the integrity and cohesiveness of the body
politic, it behooves the State to formulate a system of laws
that would compel obeisance to its collective wisdom and
inflict punishment for non-observance.
EN BANC

[G.R. No. 148560. November 19, 2001]

JOSEPH
EJERCITO
ESTRADA, petitioner,
vs. SANDIGANBAYAN (Third Division) and PEOPLE
OF THE PHILIPPINES, respondents.
DECISION
BELLOSILLO, J.:
JOHN STUART MILL, in his essay On Liberty, unleashes the
full fury of his pen in defense of the rights of the individual
from the vast powers of the State and the inroads of societal
pressure. But even as he draws a sacrosanct line
demarcating the limits on individuality beyond which the
State cannot tread - asserting that "individual spontaneity"
must be allowed to flourish with very little regard to social
interference - he veritably acknowledges that the exercise of

The movement from Mill's individual liberalism to

unsystematic collectivism wrought changes in the social
order, carrying with it a new formulation of fundamental
rights and duties more attuned to the imperatives of
contemporary socio-political ideologies. In the process, the
web of rights and State impositions became tangled and
obscured, enmeshed in threads of multiple shades and
colors, the skein irregular and broken. Antagonism, often
outright collision, between the law as the expression of the
will of the State, and the zealous attempts by its members to
preserve their individuality and dignity, inevitably followed. It
is when individual rights are pitted against State authority
that judicial conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking
official to be prosecuted under RA 7080 (An Act Defining and
Penalizing the Crime of Plunder),[1] as amended by RA 7659,
[2]
wishes to impress upon us that the assailed law is so
defectively fashioned that it crosses that thin but distinct line
which divides the valid from the constitutionally infirm. He
therefore makes a stringent call for this Court to subject the
Plunder Law to the crucible of constitutionality mainly
because, according to him, (a) it suffers from the vice of

Page 37 of 94

vagueness; (b) it dispenses with the "reasonable doubt"

standard in criminal prosecutions; and, (c) it abolishes the
element of mens rea in crimes already punishable under The
Revised Penal Code, all of which are purportedly clear
violations of the fundamental rights of the accused to due
process and to be informed of the nature and cause of the
accusation against him.
Specifically, the provisions of the Plunder Law claimed by
petitioner to have transgressed constitutional boundaries are
Secs. 1, par. (d), 2 and 4 which are reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any asset,
property, business, enterprise or material possession of any
person within the purview of Section Two (2) hereof, acquired
by him directly or indirectly through dummies, nominees,
agents, subordinates and/or business associates by any
combination or series of the following means or similar
schemes:
(1) Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury;
(2) By receiving, directly or indirectly, any commission, gift,
share, percentage, kickbacks or any other form of pecuniary
benefit from any person and/or entity in connection with any
government contract or project or by reason of the office or
position of the public office concerned;
(3) By the illegal or fraudulent conveyance or disposition of
assets belonging to the National Government or any of its
subdivisions, agencies or instrumentalities, or government
owned or controlled corporations and their subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly
any shares of stock, equity or any other form of interest or
participation including the promise of future employment in
any business enterprise or undertaking;

decrees and orders intended to benefit particular persons or

special interests; or
(6) By taking advantage of official position, authority,
relationship, connection or influence to unjustly enrich
himself or themselves at the expense and to the damage and
prejudice of the Filipino people and the Republic of the
Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any
public officer who, by himself or in connivance with members
of his family, relatives by affinity or consanguinity, business
associates, subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth through
a combination or series of overt or criminal acts as
described in Section 1 (d) hereof, in the aggregate amount or
total value of at least fifty million pesos (P50,000,000.00)
shall be guilty of the crime of plunder and shall be punished
by reclusion perpetua to death. Any person who participated
with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be
punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and
extenuating circumstances as provided by the Revised Penal
Code shall be considered by the court. The court shall
declare any and all ill-gotten wealth and their interests and
other incomes and assets including the properties and shares
of stocks derived from the deposit or investment thereof
forfeited in favor of the State (underscoring supplied).
Section 4. Rule of Evidence. - For purposes of establishing
the crime of plunder, it shall not be necessary to prove each
and every criminal act done by the accused in
furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being
sufficient to establish beyond reasonable doubt a
pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy (underscoring
supplied).

(5) By establishing agricultural, industrial or commercial

monopolies or other combinations and/or implementation of
Page 38 of 94

On 4 April 2001 the Office of the Ombudsman filed before

the Sandiganbayan eight (8) separate Informations, docketed
as: (a) Crim. Case No. 26558, for violation of RA 7080, as
amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562,
inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par.
(e) and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt
Practices Act), respectively; (c) Crim. Case No. 26563, for
violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct
and Ethical Standards for Public Officials and Employees); (d)
Crim. Case No. 26564, for Perjury (Art. 183 of The Revised
Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of
An Alias (CA No. 142, as amended by RA 6085).
On 11 April 2001 petitioner filed an Omnibus Motion for
the remand of the case to the Ombudsman for preliminary
investigation with respect to specification "d" of the charges
in the Information in Crim. Case No. 26558; and, for
reconsideration/reinvestigation of the offenses under
specifications "a," "b," and "c" to give the accused an
opportunity to file counter-affidavits and other documents
necessary to prove lack of probable cause. Noticeably, the
grounds raised were only lack of preliminary investigation,
reconsideration/reinvestigation of offenses, and opportunity
to prove lack of probable cause. The purported ambiguity of
the charges and the vagueness of the law under which they
are charged were never raised in that Omnibus Motion thus
indicating the explicitness and comprehensibility of the
Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division,
issued a Resolution in Crim. Case No. 26558 finding that "a
probable cause for the offense of PLUNDER exists to justify
the issuance of warrants for the arrest of the accused." On 25
June 2001 petitioner's motion for reconsideration was denied
by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the
Information in Crim. Case No. 26558 on the ground that the
facts alleged therein did not constitute an indictable offense
since the law on which it was based was unconstitutional for
vagueness, and that the Amended Information for Plunder
charged more than one (1) offense. On 21 June 2001 the

Government filed its Opposition to the Motion to Quash, and

five (5) days later or on 26 June 2001 petitioner submitted
his Reply to the Opposition. On 9 July 2001 the
Sandiganbayan denied petitioner's Motion to Quash.
As concisely delineated by this Court during the oral
arguments on 18 September 2001, the issues for resolution
in the instant petition for certiorari are: (a) The Plunder Law
is unconstitutional for being vague; (b) The Plunder Law
requires less evidence for proving the predicate crimes of
plunder and therefore violates the rights of the accused to
due process; and, (c) Whether Plunder as defined in RA 7080
is a malum prohibitum, and if so, whether it is within the
power of Congress to so classify it.
Preliminarily, the whole gamut of legal concepts
pertaining to the validity of legislation is predicated on the
basic principle that a legislative measure is presumed to be
in harmony with the Constitution. [3] Courts invariably train
their sights on this fundamental rule whenever a legislative
act is under a constitutional attack, for it is the postulate of
constitutional adjudication. This strong predilection for
constitutionality takes its bearings on the idea that it is
forbidden for one branch of the government to encroach
upon the duties and powers of another. Thus it has been said
that the presumption is based on the deference the judicial
branch accords to its coordinate branch - the legislature.
If there is any reasonable basis upon which the legislation
may firmly rest, the courts must assume that the legislature
is ever conscious of the borders and edges of its plenary
powers, and has passed the law with full knowledge of the
facts and for the purpose of promoting what is right and
advancing the welfare of the majority. Hence in determining
whether the acts of the legislature are in tune with the
fundamental law, courts should proceed with judicial restraint
and act with caution and forbearance. Every intendment of
the law must be adjudged by the courts in favor of its
constitutionality, invalidity being a measure of last resort. In
construing therefore the provisions of a statute, courts must
first ascertain whether an interpretation is fairly possible to
sidestep the question of constitutionality.

Page 39 of 94

In La Union Credit Cooperative, Inc. v. Yaranon [4] we held

that
as
long as there is some basis for the decision of the court, the
constitutionality of the challenged law will not be touched
and the case will be decided on other available grounds. Yet
the force of the presumption is not sufficient to catapult a
fundamentally deficient law into the safe environs of
constitutionality. Of course, where the law clearly and
palpably transgresses the hallowed domain of the organic
law, it must be struck down on sight lest the positive
commands of the fundamental law be unduly eroded.
Verily, the onerous task of rebutting the presumption
weighs heavily on the party challenging the validity of the
statute. He must demonstrate beyond any tinge of doubt that
there
is
indeed
an
infringement
of
the
constitution, for absent such a showing, there can be no
finding of unconstitutionality. A doubt, even if well-founded,
will hardly suffice. As tersely put by Justice Malcolm, "To
doubt is to sustain."[5] And petitioner has miserably failed
in the instant case to discharge his burden and overcome the
presumption of constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable
standards and well-defined parameters which would enable
the accused to determine the nature of his violation. Section
2
is
sufficiently explicit inits description of the acts, conduct and
conditions required or forbidden, and prescribes the elements
of the crime with reasonable certainty and particularity. Thus
1. That the offender is a public officer who acts by himself or
in connivance with members of his family, relatives by
affinity or consanguinity, business associates, subordinates
or other persons;
2. That he amassed, accumulated or acquired ill-gotten
wealth through a combination or series of the following overt
or criminal acts: (a) through misappropriation,
conversion, misuse, or malversation of public funds or raids

on the public treasury; (b) by receiving, directly or indirectly,

any commission, gift, share, percentage, kickback or any
other form of pecuniary benefits from any person and/or
entity in connection with any government contract or project
or by reason of the office or position of the public officer; (c)
by the illegal or fraudulent conveyance or disposition of
assets belonging to the NationalGovernment or any of its
subdivisions, agencies or instrumentalities of Government
owned or controlled corporations or their subsidiaries; (d) by
obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or
participation including the promise of future employment in
any business enterprise or undertaking; (e) by establishing
agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders
intended to benefit particular persons or special interests; or
(f) by taking advantage of official position, authority,
relationship, connection or influence to unjustly enrich
himself or themselves at the expense and to the damage and
prejudice of the Filipino people and the Republic of the
Philippines; and,
3. That the aggregate amount or total value of the ill-gotten
wealth amassed, accumulated or acquired is at
least P50,000,000.00.
As long as the law affords some comprehensible guide or
rule that would inform those who are subject to it what
conduct would render them liable to its penalties, its validity
will be sustained. It must sufficiently guide the judge in its
application; the counsel, in defending one charged with its
violation; and more importantly, the accused, in identifying
the realm of the proscribed conduct. Indeed, it can be
understood with little difficulty that what the assailed statute
punishes is the act of a public officer in amassing or
accumulating ill-gotten wealth of at least P50,000,000.00
through a series or combination of acts enumerated in Sec. 1,
par. (d), of the Plunder Law.
In fact, the amended Information itself closely tracks the
language of the law, indicating with reasonable certainty the

Page 40 of 94

various elements of the offense which petitioner is alleged to

have committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director,
EPIB, Office of the Ombudsman, hereby accuses
former PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG
SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose
'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio,
Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio
Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia
Rajas, and John DOES & Jane Does, of the crime of Plunder,
defined and penalized under R.A. No. 7080, as amended by
Sec. 12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January 2001, in
the Philippines, and within the jurisdiction of this Honorable
Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT
OF THE REPUBLIC OF THE PHILIPPINES, by
himself AND/OR in CONNIVANCE/CONSPIRACY with his coaccused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES
BY AFFINITY OR CONSANGUINITY, BUSINESS
ASSOCIATES, SUBORDINATES AND/OR OTHER
PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS
OFFICIAL POSITION, AUTHORITY, RELATIONSHIP,
CONNECTION, OR INFLUENCE, did then and there willfully,
unlawfully and criminally amass, accumulate and acquire BY
HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in
the aggregate amount or TOTAL VALUE of FOUR BILLION
NINETY SEVEN MILLION EIGHT HUNDRED FOUR
THOUSAND ONE HUNDRED SEVENTY THREE PESOS
AND SEVENTEEN CENTAVOS (P4,097,804,173.17), more or
less, THEREBY UNJUSTLY ENRICHING HIMSELF OR
THEMSELVES AT THE EXPENSE AND TO THE DAMAGE
OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE
PHILIPPINES, through ANY OR A combination OR A series
of overt OR criminal acts, OR SIMILAR SCHEMES OR
MEANS, described as follows:

(a) by receiving OR collecting, directly or indirectly,

on SEVERAL INSTANCES, MONEY IN THE AGGREGATE
AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION
PESOS (P545,000,000.00), MORE OR LESS, FROM
ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE,
PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY
BENEFIT, BY HIMSELF AND/OR in connection with coaccused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada,
Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND
JANE DOES, in considerationOF TOLERATION OR
PROTECTION OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating,
converting OR misusing DIRECTLY OR INDIRECTLY, for HIS
OR THEIR PERSONAL gain and benefit, public funds in the
amount of ONE HUNDRED THIRTY MILLION PESOS
(P130,000,000.00), more or less, representing a portion of
the TWO HUNDRED MILLION PESOS
(P200,000,000.00) tobacco excise tax share allocated for
the province of Ilocos Sur under R.A. No. 7171, by himself
and/or in connivance with co-accused Charlie 'Atong' Ang,
Alma Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or Mr.
Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES &
JANE DOES; (italic supplied).

(c) by directing, ordering and compelling, FOR HIS

PERSONAL GAIN AND BENEFIT, the Government Service
Insurance System (GSIS) TO PURCHASE 351,878,000
SHARES OF STOCKS, MORE OR LESS, and the Social
Security System (SSS), 329,855,000 SHARES OF STOCK,
MORE OR LESS, OF THE BELLE CORPORATION IN THE
AMOUNT OF MORE OR LESS ONE BILLION ONE
HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE
THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY
CENTAVOS (P1,102,965,607.50) AND MORE OR LESS
SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED
TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS
(P744,612,450.00), RESPECTIVELY, OR A TOTAL OF
MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY
SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT
THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS
Page 41 of 94

(P1,847,578,057.50); AND BY COLLECTING OR

RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF
AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE
DOES, COMMISSIONS OR PERCENTAGES BY REASON OF
SAID PURCHASES OF SHARES OF STOCK IN THE
AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION
SEVEN HUNDRED THOUSAND PESOS
(P189,700,000.00) MORE OR LESS, FROM THE BELLE
CORPORATION WHICH BECAME PART OF THE DEPOSIT
IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT
NAME 'JOSE VELARDE;'
(d) by unjustly enriching himself FROM COMMISSIONS,
GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY
FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH
JOHN DOES AND JANE DOES, in the amount of MORE OR
LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION
ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY
THREE PESOS AND SEVENTEEN CENTAVOS
(P3,233,104,173.17) AND DEPOSITING THE SAME UNDER
HIS ACCOUNT NAME 'JOSE VELARDE' AT THE
EQUITABLE-PCI BANK."
We discern nothing in the foregoing that is vague or
ambiguous - as there is obviously none - that will confuse
petitioner in his defense. Although subject to proof, these
factual assertions clearly show that the elements of the
crime are easily understood and provide adequate contrast
between the innocent and the prohibited acts. Upon such
unequivocal assertions, petitioner is completely informed of
the accusations against him as to enable him to prepare for
an intelligent defense.
Petitioner, however, bewails the failure of the law to
provide
for
the
statutory
definition
of
the
terms "combination" and "series" in the key phrase "a
combination or series of overt or criminal acts" found in Sec.
1, par. (d), and Sec. 2, and the word "pattern" in Sec.
4. These omissions, according to petitioner, render the
Plunder Law unconstitutional for being impermissibly vague
and overbroad and deny him the right to be informed of the

nature and cause of the accusation against him, hence,

violative of his fundamental right to due process.
The rationalization seems to us to be pure sophistry. A
statute is not rendered uncertain and void merely because
general terms are used therein, or because of the
employment of terms without defining them;[6] much less do
we have to define every word we use. Besides, there is no
positive constitutional or statutory command requiring the
legislature to define each and every word in an
enactment. Congress is not restricted in the form of
expression of its will, and its inability to so define the words
employed in a statute will not necessarily result in the
vagueness or ambiguity of the law so long as the legislative
will is clear, or at least, can be gathered from the whole act,
which is distinctly expressed in the Plunder Law.
Moreover, it is a well-settled principle of legal
hermeneutics that words of a statute will be interpreted in
their natural, plain and ordinary acceptation and signification,
[7]
unless it is evident that the legislature intended a technical
or special legal meaning to those words. [8] The intention of
the lawmakers - who are, ordinarily, untrained philologists
and lexicographers - to use statutory phraseology in such a
manner is always presumed. Thus, Webster's New Collegiate
Dictionary contains the following commonly accepted
definition of the words "combination" and "series:"
Combination - the result or product of combining; the act or
process of combining. To combine is to bring into such close
relationship as to obscure individual characters.
Series - a number of things or events of the same class
coming one after another in spatial and temporal succession.
That
Congress
intended
the
words "combination" and "series" to be understood in their
popular meanings is pristinely evident from the legislative
deliberations on the bill which eventually became RA 7080 or
the Plunder Law:

Page 42 of 94

DELIBERATIONS OF THE BICAMERAL COMMITTEE ON

JUSTICE, 7 May 1991
REP. ISIDRO: I am just intrigued again by our definition of
plunder. We say THROUGH A COMBINATION OR SERIES OF
OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE
HEREOF.Now when we say combination, we actually mean to
say, if there are two or more means, we mean to say that
number one and two or number one and something else are
included, how about a series of the same act? For example,
through misappropriation, conversion, misuse, will these be
included also?

REP. GARCIA: Series. One after the other eh di....

SEN. TANADA: So that would fall under the term series?
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two
misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be
combination. Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that
sometimes one or maybe even two acts may already result in
such a big amount, on line 25, would the Sponsor consider
deleting the words a series of overt or, to read, therefore: or
conspiracy COMMITTED by criminal acts such as. Remove the
idea of necessitating a series. Anyway, the criminal acts are
in the plural.
SENATOR TANADA: That would mean a combination of two or
more of the acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because a series implies several or
many; two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be
prosecuted under the particular crime. But when we say acts
of plunder there should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by
existing laws, Mr. President.

REP. GARCIA: Yeah, because we say a series.

REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that two of
the enumerated means not twice of one enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but combination,
two acts.
REP. ISIDRO: So in other words, thats it. When we say
combination, we mean, two different acts. It cannot be a
repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there
are two.
REP. GARCIA: A series.
REP. ISIDRO: Thats not series. Its a combination. Because
when we say combination or series, we seem to say that two
Thus when the Plunder Law speaks of "combination," it is
or more, di ba?
referring to at least two (2) acts falling under different
REP. GARCIA: Yes, this distinguishes it really from ordinary
categories of enumeration provided in Sec. 1, par. (d), e.g.,
crimes. That is why, I said, that is a very good suggestion
raids on the public treasury in Sec. 1, par. (d), subpar. (1),
because if it is only one act, it may fall under ordinary crime
and fraudulent conveyance of assets belonging to the
but we have here a combination or series of overt or criminal
National Government under Sec. 1, par. (d), subpar. (3).
acts. So x x x x
Page 43 of 94

On the other hand, to constitute a series" there must be

two (2) or more overt or criminal acts falling under the same
category of enumeration found in Sec. 1, par. (d), say,
misappropriation,
malversation
and raids on the public treasury, all of which fall under Sec.
1, par. (d), subpar. (1). Verily, had the legislature intended a
technical or distinctive meaning for "combination" and
"series," it would have taken greater pains in specifically
providing for it in the law.
As for "pattern," we agree with the observations of the
Sandiganbayan[9] that this term is sufficiently defined in Sec.
4, in relation to Sec. 1, par. (d), and Sec. 2 x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at
least a combination or series of overt or criminal acts
enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly,
pursuant to Sec. 2 of the law, the pattern of overt or criminal
acts is directed towards a common purpose or goal which is
to enable the public officer to amass, accumulate or acquire
ill-gotten wealth. And thirdly, there must either be an 'overall
unlawful scheme' or 'conspiracy' to achieve said common
goal. As commonly understood, the term 'overall unlawful
scheme' indicates a 'general plan of action or method' which
the principal accused and public officer and others conniving
with him follow to achieve the aforesaid common goal. In the
alternative, if there is no such overall scheme or where the
schemes or methods used by multiple accused vary, the
overt or criminal acts must form part of a conspiracy to
attain a common goal.
Hence, it cannot plausibly be contended that the law
does not give a fair warning and sufficient notice of what it
seeks to penalize. Under the circumstances, petitioner's
reliance on the "void-for-vagueness" doctrine is manifestly
misplaced. The doctrine has been formulated in various
ways, but is most commonly stated to the effect that a
statute establishing a criminal offense must define the
offense with sufficient definiteness that persons of ordinary
intelligence can understand what conduct is prohibited by
the statute. It can only be invoked against that specie of

legislation that is utterly vague on its face, i.e., that which

cannot be clarified either by a saving clause or by
construction.
A statute or act may be said to be vague when it lacks
comprehensible standards that men of common intelligence
must necessarily guess at its meaning and differ in its
application. In such instance, the statute is repugnant to the
Constitution in two (2) respects - it violates due process for
failure to accord persons, especially the parties targeted by
it, fair notice of what conduct to avoid; and, it leaves law
enforcers unbridled discretion in carrying out its provisions
and becomes an arbitrary flexing of the Government muscle.
[10]
But the doctrine does not apply as against legislations
that are merely couched in imprecise language but which
nonetheless specify a standard though defectively phrased;
or to those that are apparently ambiguous yet fairly
applicable to certain types of activities. The first may be
"saved" by proper construction, while no challenge may be
mounted as against the second whenever directed against
such activities.[11] With more reason, the doctrine cannot be
invoked where the assailed statute is clear and free from
ambiguity, as in this case.
The test in determining whether a criminal statute is void
for uncertainty is whether the language conveys a sufficiently
definite warning as to the proscribed conduct when
measured by common understanding and practice. [12] It must
be stressed, however, that the "vagueness" doctrine merely
requires a reasonable degree of certainty for the statute to
be upheld - not absolute precision or mathematical
exactitude, as petitioner seems to suggest. Flexibility, rather
than meticulous specificity, is permissible as long as the
metes and bounds of the statute are clearly delineated. An
act will not be held invalid merely because it might have
been more explicit in its wordings or detailed in its provisions,
especially where, because of the nature of the act, it would
be impossible to provide all the details in advance as in all
other statutes.
Moreover, we agree with, hence we adopt, the
observations of Mr. Justice Vicente V. Mendoza during the

Page 44 of 94

deliberations of the Court that the allegations that the

Plunder Law is vague and overbroad do not justify a facial
review of its validity The void-for-vagueness doctrine states that "a statute which
either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application, violates
the first essential of due process of law." [13] The overbreadth
doctrine, on the other hand, decrees that "a governmental
purpose may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of
protected freedoms."[14]
A facial challenge is allowed to be made to a vague statute
and to one which is overbroad because of possible "chilling
effect" upon protected speech. The theory is that "[w]hen
statutes regulate or proscribe speech and no readily
apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly
broad statutes with no requirement that the person making
the attack demonstrate that his own conduct could not be
regulated by a statute drawn with narrow specificity." [15] The
possible harm to society in permitting some unprotected
speech to go unpunished is outweighed by the possibility
that the protected speech of others may be deterred and
perceived grievances left to fester because of possible
inhibitory effects of overly broad statutes.

The overbreadth and vagueness doctrines then have special

application only to free speech cases. They are inapt for
testing the validity of penal statutes. As the U.S. Supreme
Court put it, in an opinion by Chief Justice Rehnquist, "we
have not recognized an 'overbreadth' doctrine outside the
limited context of the First Amendment."[16] In Broadrick v.
Oklahoma,[17] the Court ruled that "claims of facial
overbreadth have been entertained in cases involving
statutes which, by their terms, seek to regulate only spoken
words" and, again, that "overbreadth claims, if entertained at
all, have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected
conduct." For this reason, it has been held that "a facial
challenge to a legislative act is the most difficult challenge to
mount successfully, since the challenger must establish that
no set of circumstances exists under which the Act would be
valid."[18] As for the vagueness doctrine, it is said that a
litigant may challenge a statute on its face only if it is vague
in all its possible applications. "A plaintiff who engages in
some conduct that is clearly proscribed cannot complain of
the vagueness of the law as applied to the conduct of
others."[19]

In sum, the doctrines of strict scrutiny, overbreadth, and

vagueness are analytical tools developed for testing "on their
faces" statutes in free speech cases or, as they are called in
American law, First Amendment cases. They cannot be made
to do service when what is involved is a criminal
statute. With respect to such statute, the established rule is
that "one to whom application of a statute is constitutional
will not be heard to attack the statute on the ground that
impliedly it might also be taken as applying to other persons
This rationale does not apply to penal statutes. Criminal
or other situations in which its application might be
statutes have general in terrorem effect resulting from their
unconstitutional."[20] As has been pointed out, "vagueness
very existence, and, if facial challenge is allowed for this
challenges in the First Amendment context, like overbreadth
reason alone, the State may well be prevented from enacting
challenges typically produce facial invalidation, while
laws against socially harmful conduct. In the area of criminal
statutes found vague as a matter of due process typically are
law, the law cannot take chances as in the area of free
invalidated [only] 'as applied' to a particular
speech.
defendant."[21] Consequently, there is no basis for petitioner's
claim that this Court review the Anti-Plunder Law on its face
and in its entirety.
Page 45 of 94

Indeed, "on its face" invalidation of statutes results in striking

them down entirely on the ground that they might be applied
to parties not before the Court whose activities are
constitutionally protected.[22] It constitutes a departure from
the case and controversy requirement of the Constitution and
permits decisions to be made without concrete factual
settings and in sterile abstract contexts. [23] But, as the U.S.
Supreme Court pointed out in Younger v. Harris[24]
[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies
before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary.The combination of the
relative remoteness of the controversy, the impact on the
legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-byline analysis of detailed statutes, . . . ordinarily results in a
kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be
decided.
For these reasons, "on its face" invalidation of statutes has
been described as "manifestly strong medicine," to be
employed "sparingly and only as a last resort,"[25] and is
generally disfavored.[26] In determining the constitutionality of
a statute, therefore, its provisions which are alleged to have
been violated in a case must be examined in the light of the
conduct with which the defendant is charged. [27]
In light of the foregoing disquisition, it is evident that the
purported ambiguity of the Plunder Law, so tenaciously
claimed and argued at length by petitioner, is more imagined
than real. Ambiguity, where none exists, cannot be created
by dissecting parts and words in the statute to furnish
support to critics who cavil at the want of scientific precision
in the law. Every provision of the law should be construed in
relation and with reference to every other part. To be sure, it
will take more than nitpicking to overturn the wellentrenched presumption of constitutionality and validity of
the Plunder Law. A fortiori, petitioner cannot feign ignorance

of what the Plunder Law is all about. Being one of the

Senators who voted for its passage, petitioner must be aware
that the law was extensively deliberated upon by the Senate
and its appropriate committees by reason of which he even
registered his affirmative vote with full knowledge of its legal
implications and sound constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan[28] must be
mentioned if only to illustrate and emphasize the point that
courts are loathed to declare a statute void for uncertainty
unless the law itself is so imperfect and deficient in its
details, and is susceptible of no reasonable construction that
will
support
and
give
it
effect. In
that
case,
petitioners Gallego and Agoncillo challenged
the
constitutionality of Sec. 3, par. (e), of The Anti-Graft and
Corrupt Practices Act for being vague. Petitioners posited,
among others, that the term "unwarranted" is highly
imprecise and elastic with no common law meaning or
settled definition by prior judicial or administrative
precedents; that, for its vagueness, Sec. 3, par. (e), violates
due process in that it does not give fair warning or sufficient
notice of what it seeks to penalize.Petitioners further argued
that the Information charged them with three (3) distinct
offenses, to wit: (a) giving of "unwarranted" benefits through
manifest partiality; (b) giving of "unwarranted" benefits
through
evident
bad
faith;
and,
(c)
giving
of
"unwarranted" benefits through gross inexcusable negligence
while in the discharge of their official function and that their
right to be informed of the nature and cause of the
accusation against them was violated because they were left
to guess which of the three (3) offenses, if not all, they were
being charged and prosecuted.

In dismissing the petition, this Court held that Sec. 3, par.

(e), of The Anti-Graft and Corrupt Practices Act does not
suffer from the constitutional defect of vagueness. The
phrases "manifest partiality," "evident bad faith," and "gross
and inexcusable negligence" merely describe the different
modes by which the offense penalized in Sec. 3, par. (e), of
the statute may be committed, and the use of all these
phrases in the same Information does not mean that the
indictment charges three (3) distinct offenses.
Page 46 of 94

The word 'unwarranted' is not uncertain. It seems lacking

adequate or official support; unjustified; unauthorized
(Webster, Third International Dictionary, p. 2514); or without
justification or adequate reason (Philadelphia Newspapers,
Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in
Words and Phrases, Permanent Edition, Vol. 43-A 1978,
Cumulative Annual Pocket Part, p. 19).

SEC. 4. Rule of Evidence. - For purposes of establishing the

crime of plunder, it shall not be necessary to prove each and
every criminal act done by the accused in furtherance of the
scheme or conspiracy to amass, accumulate or acquire illgotten wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy.

The assailed provisions of the Anti-Graft and Corrupt

Practices Act consider a corrupt practice and make unlawful
the act of the public officer in:

The running fault in this reasoning is obvious even to the

simplistic mind. In a criminal prosecution for plunder, as in all
other crimes, the accused always has in his favor the
presumption of innocence which is guaranteed by the Bill of
Rights, and unless the State succeeds in demonstrating by
proof beyond reasonable doubt that culpability lies, the
accused is entitled to an acquittal. [29] The use of
the"reasonable doubt" standard is indispensable to command
the respect and confidence of the community in the
application of criminal law. It is critical that the moral force of
criminal law be not diluted by a standard of proof that leaves
people in doubt whether innocent men are being
condemned. It is also important in our free society that every
individual going about his ordinary affairs has confidence that
his government cannot adjudge him guilty of a criminal
offense without convincing a proper factfinder of his guilt
with utmost certainty. This "reasonable doubt" standard has
acquired such exalted stature in the realm of constitutional
law as it gives life to the Due Process Clause which protects
the accused against conviction except upon proof beyond
reasonable doubt of every fact necessary to constitute the
crime with which he is charged. [30] The following exchanges
between Rep. Rodolfo Albano and Rep. Pablo Garcia on this
score during the deliberations in the floor of the House of
Representatives are elucidating -

x x x or giving any private party any unwarranted benefits,

advantage or preference in the discharge of his official,
administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence,
x x x (Section 3 [e], Rep. Act 3019, as amended).
It is not at all difficult to comprehend that what the
aforequoted penal provisions penalize is the act of a public
officer, in the discharge of his official, administrative or
judicial functions, in giving any private party benefits,
advantage or preference which is unjustified, unauthorized or
without justification or adequate reason, through manifest
partiality, evident bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing
vague or ambiguous in the use of the term "unwarranted" in
Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act,
which was understood in its primary and general
acceptation. Consequently,
in
that
case,
petitioners'
objection thereto was held inadequate to declare the section
unconstitutional.
On the second issue, petitioner advances the highly
stretched theory that Sec. 4 of the Plunder Law circumvents
the immutable obligation of the prosecution to prove beyond
reasonable doubt the predicate acts constituting the crime of
plunder when it requires only proof of a pattern of overt or
criminal acts showing unlawful scheme or conspiracy -

DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA

7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our
criminal law that what is alleged in the information
must be proven beyond reasonable doubt. If we will

Page 47 of 94

prove only one act and find him guilty of the other
acts enumerated in the information, does that not
work against the right of the accused especially so if
the amount committed, say, by falsification is less
than P100 million, but the totality of the crime
committed is P100 million since there is malversation,
bribery, falsification of public document, coercion,
theft?

in the enumeration the total amount would be P110

or P120 million, but there are certain acts that could
not be proved, so, we will sum up the amounts
involved in those transactions which were
proved. Now, if the amount involved in these
transactions, proved beyond reasonable doubt, is P100
million, then there is a crime of plunder (underscoring
supplied).

MR. GARCIA: Mr. Speaker, not everything alleged in the

information needs to be proved beyond reasonable
doubt. What is required to be proved beyond
reasonable doubt is every element of the crime
charged. For example, Mr. Speaker, there is
an enumeration of the things taken by the robber in
the information three pairs of pants, pieces of
jewelry. These need not be proved beyond reasonable
doubt, but these will not prevent the conviction of a
crime for which he was charged just because, say,
instead of 3 pairs of diamond earrings the prosecution
proved two. Now, what is required to be proved
beyond reasonable doubt is the element of the
offense.

It is thus plain from the foregoing that the legislature did

not in any manner refashion the standard quantum of proof
in the crime of plunder. The burden still remains with the
prosecution to prove beyond any iota of doubt every fact or
element necessary to constitute the crime.

MR. ALBANO: I am aware of that, Mr. Speaker, but

considering that in the crime of plunder the totality of
the amount is very important, I feel that such a series
of overt criminal acts has to be taken singly. For
instance, in the act of bribery, he was able to
accumulate only P50,000 and in the crime of extortion,
he was only able to accumulate P1 million. Now, when
we add the totality of the other acts as required under
this bill through the interpretation on the rule of
evidence, it is just one single act, so how can we now
convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes
of proving an essential element of the crime, there is a
need to prove that element beyond reasonable
doubt. For example, one essential element of the
crime is that the amount involved is P100 million. Now,
in a series of defalcations and other acts of corruption

The thesis that Sec. 4 does away with proof of each and
every component of the crime suffers from a dismal
misconception of the import of that provision. What the
prosecution needs to prove beyond reasonable doubt is only
a number of acts sufficient to form a combination or series
which would constitute a pattern and involving an amount of
at least P50,000,000.00. There is no need to prove each and
every other act alleged in the Information to have been
committed by the accused in furtherance of the overall
unlawful scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth. To illustrate, supposing that the
accused is charged in an Information for plunder with having
committed
fifty
(50)
raids
on
the
public
treasury. The prosecution need not prove all these fifty (50)
raids, it being sufficient to prove by pattern at least two (2) of
the raids beyond reasonable doubt provided only that they
amounted to at least P50,000,000.00.[31]
A reading of Sec. 2 in conjunction with Sec. 4, brings us
to the logical conclusion that "pattern of overt or criminal
acts indicative of the overall unlawful scheme or conspiracy"
inheres in the very acts of accumulating, acquiring or
amassing hidden wealth. Stated otherwise, such pattern
arises where the prosecution is able to prove beyond
reasonable doubt the predicate acts as defined in Sec. 1, par.
(d). Pattern is merely a by-product of the proof of the
predicate acts. This conclusion is consistent with reason and

Page 48 of 94

common sense. There would be no other explanation for a

combination or series of
overt or criminal acts to stash P50,000,000.00 or more, than
"a scheme or conspiracy to amass, accumulate or acquire ill
gotten wealth." The prosecution is therefore not required to
make a deliberate and conscious effort to prove pattern as it
necessarily follows with the establishment of a series or
combination of the predicate acts.
Relative to petitioner's contentions on the purported
defect of Sec. 4 is his submission that "pattern" is "a very
important element of the crime of plunder;" and that Sec. 4 is
"two pronged, (as) it contains a rule of evidence and a
substantive element of the crime," such that without it the
accused cannot be convicted of plunder JUSTICE BELLOSILLO: In other words, cannot an accused
be convicted under the Plunder Law without applying
Section 4 on the Rule of Evidence if there is proof
beyond reasonable doubt of the commission of the
acts complained of?
ATTY. AGABIN: In that case he can be convicted of
individual crimes enumerated in the Revised Penal
Code, but not plunder.
JUSTICE BELLOSILLO: In other words, if all the elements of
the crime are proved beyond reasonable doubt
without applying Section 4, can you not have a
conviction under the Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the
application of Sec. 4 in convicting an accused charged
for violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4
lays down a substantive element of the law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of
Section 4 when there is proof beyond reasonable
doubt on the acts charged constituting plunder?

ATTY. AGABIN: Yes, your Honor, because Section 4 is two

pronged, it contains a rule of evidence and it contains
a substantive element of the crime of plunder. So,
there is no way by which we can avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable
doubt insofar as the predicate crimes charged are
concerned that you do not have to go that far by
applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4
contains a very important element of the crime of
plunder and that cannot be avoided by the
prosecution.[32]
We do not subscribe to petitioner's stand. Primarily, all
the essential elements of plunder can be culled and
understood from its definition in Sec. 2, in relation to Sec. 1,
par. (d), and "pattern" is not one of them. Moreover, the
epigraph and opening clause of Sec. 4 is clear and
unequivocal:
SEC. 4. Rule of Evidence. - For purposes of
establishing the crime of plunder x x x x
It purports to do no more than prescribe a rule of
procedure for the prosecution of a criminal case for
plunder. Being a purely procedural measure, Sec. 4 does not
define or establish any substantive right in favor of the
accused but only operates in furtherance of a remedy. It is
only a means to an end, an aid to substantive
law. Indubitably, even without invoking Sec. 4, a conviction
for plunder may be had, for what is crucial for the
prosecution is to present sufficient evidence to engender that
moral certitude exacted by the fundamental law to prove the
guilt of the accused beyond reasonable doubt. Thus, even
granting for the sake of argument that Sec. 4 is flawed
and vitiated for the reasons advanced by petitioner, it may
simply be severed from the rest of the provisions without
necessarily resulting in the demise of the law; after all, the
existing rules on evidence can supplant Sec. 4 more than
enough. Besides, Sec. 7 of RA 7080 provides for a
separability clause -

Page 49 of 94

Sec. 7. Separability of Provisions. - If any provisions of this

Act or the application thereof to any person or circumstance
is held invalid, the remaining provisions of this Act and the
application of such provisions to other persons or
circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole
act from being declared invalid as a result of the nullity of
some of its provisions, assuming that to be the case although
it is not really so, all the provisions thereof should accordingly
be treated independently of each other, especially if by doing
so, the objectives of the statute can best be achieved.
As regards the third issue, again we agree with Justice
Mendoza that plunder is a malum in se which requires proof
of criminal intent. Thus, he says, in his Concurring Opinion x x x Precisely because the constitutive crimes are mala in
se the element of mens rea must be proven in a prosecution
for plunder. It is noteworthy that the amended information
alleges that the crime of plunder was committed "willfully,
unlawfully and criminally." It thus alleges guilty knowledge on
the part of petitioner.
In support of his contention that the statute eliminates the
requirement of mens rea and that is the reason he claims the
statute is void, petitioner cites the following remarks of
Senator Taada made during the deliberation on S.B. No. 733:
SENATOR TAADA . . . And the evidence that will be required
to convict him would not be evidence for each and every
individual criminal act but only evidence sufficient to
establish the conspiracy or scheme to commit this crime of
plunder.[33]
However, Senator Taada was discussing 4 as shown by the
succeeding portion of the transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels
that it is contained in Section 4, Rule of Evidence, which, in

the Gentleman's view, would provide for a speedier and

faster process of attending to this kind of cases?
SENATOR TAADA: Yes, Mr. President . . .[34]
Senator Taada was only saying that where the charge is
conspiracy to commit plunder, the prosecution need not
prove each and every criminal act done to further the
scheme or conspiracy, it being enough if it proves beyond
reasonable doubt a pattern of overt or ciminal acts indicative
of the overall unlawful scheme or conspiracy. As far as the
acts constituting the pattern are concerned, however, the
elements of the crime must be proved and the
requisite mens rea must be shown.
Indeed, 2 provides that Any person who participated with the said public officer in
the commission of an offense contributing to the crime of
plunder shall likewise be punished for such offense. In the
imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances, as
provided by the Revised Penal Code, shall be considered by
the court.
The application of mitigating and extenuating circumstances
in the Revised Penal Code to prosecutions under the AntiPlunder Law indicates quite clearly that mens rea is an
element of plunder since the degree of responsibility of the
offender is determined by his criminal intent. It is true that 2
refers to "any person who participates with the said public
officer in the commission of an offense contributing to the
crime of plunder." There is no reason to believe, however,
that it does not apply as well to the public officer as principal
in the crime. As Justice Holmes said: "We agree to all the
generalities about not supplying criminal laws with what they
omit, but there is no canon against using common sense in
construing laws as saying what they obviously mean." [35]

Page 50 of 94

Finally, any doubt as to whether the crime of plunder is

a malum in se must be deemed to have been resolved in the
affirmative by the decision of Congress in 1993 to include it
among the heinous crimes punishable by reclusion
perpetua to death. Other heinous crimes are punished with
death as a straight penalty in R.A. No. 7659. Referring to
these groups of heinous crimes, this Court held in People v.
Echegaray:[36]
The evil of a crime may take various forms. There are crimes
that are, by their very nature, despicable, either because life
was callously taken or the victim is treated like an animal and
utterly dehumanized as to completely disrupt the normal
course of his or her growth as a human being . . . . Seen in
this light, the capital crimes of kidnapping and serious illegal
detention for ransom resulting in the death of the victim or
the victim is raped, tortured, or subjected to dehumanizing
acts; destructive arson resulting in death; and drug offenses
involving minors or resulting in the death of the victim in the
case of other crimes; as well as murder, rape,
parricide, infanticide, kidnapping and serious illegal
detention, where the victim is detained for more than three
days or serious physical injuries were inflicted on the victim
or threats to kill him were made or the victim is a minor,
robbery with homicide, rape or intentional mutilation,
destructive arson, and carnapping where the owner, driver or
occupant of the carnapped vehicle is killed or raped, which
are penalized by reclusion perpetua to death, are clearly
heinous by their very nature.

of the populace. [With the government] terribly lacking the

money to provide even the most basic services to its people,
any form of misappropriation or misapplication of
government funds translates to an actual threat to the very
existence of government, and in turn, the very survival of the
people it governs over. Viewed in this context, no less
heinous are the effects and repercussions of crimes like
qualified bribery, destructive arson resulting in death, and
drug offenses involving government officials, employees or
officers, that their perpetrators must not be allowed to cause
further destruction and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a
heinous offense implies that it is a malum in se. For when the
acts punished are inherently immoral or inherently wrong,
they are mala in se[37]and it does not matter that such acts
are punished in a special law, especially since in the case of
plunder the predicate crimes are mainly mala in se. Indeed, it
would be absurd to treat prosecutions for plunder as though
they are mere prosecutions for violations of the Bouncing
Check Law (B.P. Blg. 22) or of an ordinance against
jaywalking, without regard to the inherent wrongness of the
acts.
To clinch, petitioner likewise assails the validity of RA
7659, the amendatory law of RA 7080, on constitutional
grounds. Suffice it to say however that it is now too late in
the day for him to resurrect thislong dead issue, the same
having been eternally consigned by People v. Echegaray[38] to
the archives of jurisprudential history. The declaration of this
Court therein that RA 7659 is constitutionally valid stands as
a declaration of the State, and becomes, by necessary effect,
assimilated in the Constitution now as an integral part of it.

There are crimes, however, in which the abomination lies in

the significance and implications of the subject criminal acts
in the scheme of the larger socio-political and economic
context in which the state finds itself to be struggling to
Our nation has been racked by scandals of corruption and
develop and provide for its poor and underprivileged
obscene profligacy of officials in high places which
masses. Reeling from decades of corrupt tyrannical rule that
have shaken its very foundation. The anatomy of graft and
bankrupted the government and impoverished the
corruption
has
become
more
elaborate in
population, the Philippine Government must muster the
the corridors of time
as
unscrupulous
people
political will to dismantle the culture of corruption,
relentlessly contrive more and more ingenious ways to bilk
dishonesty, greed and syndicated criminality that so deeply
the coffers of the government. Drastic and radical measures
entrenched itself in the structures of society and the psyche
Page 51 of 94

are imperative to fight the increasingly sophisticated,

extraordinarily
methodical
and
economically catastrophic looting of the national
treasury. Such is the Plunder Law, especially designed to
disentangle those ghastly tissues of grand-scale corruption
which, if left unchecked, will spread like a malignant tumor
and ultimately consume the moral and institutional fiber of
our nation. The Plunder Law, indeed, is a living testament to
the will of the legislature to ultimately eradicate this scourge
and thus secure society against the avarice and other
venalities in public office.
These are times that try men's souls. In the checkered
history of this nation, few issues of national importance can
equal the amount of interest and passion generated by
petitioner's ignominious fall from the highest office, and his
eventual prosecution and trial under a virginal statute. This
continuing
saga has driven a wedge of dissension among our people
that may linger for a long time. Only by responding to the
clarion call for patriotism, to rise above factionalism and
prejudices, shall we emerge triumphant in the midst
of ferment.
PREMISES CONSIDERED, this Court holds that RA 7080
otherwise known as the Plunder Law, as amended by RA
7659, is CONSTITUTIONAL. Consequently, the petition to
declare the law unconstitutional is DISMISSED for lack of
merit.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 103119 October 21, 1992

SULPICIO INTOD, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.

CAMPOS, JR., J.:

Petitioner, Sulpicio Intod, filed this petition for review of the
decision of the Court of Appeals 1 affirming in toto the
judgment of the Regional Trial Court, Branch XIV, Oroquieta
City, finding him guilty of the crime of attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge
Pangasian, Santos Tubio and Avelino Daligdig went to
Salvador Mandaya's house in Katugasan, Lopez Jaena,
Misamis Occidental and asked him to go with them to the
house of Bernardina Palangpangan. Thereafter, Mandaya and
Intod, Pangasian, Tubio and Daligdig had a meeting with
Aniceto Dumalagan. He told Mandaya that he wanted
Palangpangan to be killed because of a land dispute between
them and that Mandaya should accompany the four (4) men,
otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day,
Petitioner, Mandaya, Pangasian, Tubio and Daligdig, all armed
with firearms, arrived at Palangpangan's house in Katugasan,
Lopez Jaena, Misamis Occidental. At the instance of his
companions, Mandaya pointed the location of
Palangpangan's bedroom. Thereafter, Petitioner, Pangasian,
Tubio and Daligdig fired at said room. It turned out, however,

Page 52 of 94

that Palangpangan was in another City and her home was

then occupied by her son-in-law and his family. No one was in
the room when the accused fired the shots. No one was hit
by the gun fire.

were sufficient to constitute an attempt and to convict Intod

for attempted murder. Respondent alleged that there was
intent. Further, in its Comment to the Petition, respondent
pointed out that:

Petitioner and his companions were positively identified by

witnesses. One witness testified that before the five men left
the premises, they shouted: "We will kill you (the witness)
and especially Bernardina Palangpangan and we will come
back if (sic) you were not injured". 2
After trial, the Regional Trial Court convicted Intod of
attempted murder. The court (RTC), as affirmed by the Court
of Appeals, holding that Petitioner was guilty of attempted
murder. Petitioner seeks from this Court a modification of the
judgment by holding him liable only for an impossible
crime, citing Article 4(2) of the Revised Penal Code which
provides:

. . . The crime of murder was not consummated,

not because of the inherent impossibility of its
accomplishment (Art. 4(2), Revised Penal Code),
but due to a cause or accident other than
petitioner's and his accused's own spontaneous
desistance (Art. 3., Ibid.) Palangpangan did not
sleep at her house at that time. Had it not been
for this fact, the crime is possible, not
impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal
Code. This seeks to remedy the void in the Old Penal Code
where:

Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal

Responsibility shall be incurred:

. . . it was necessary that the execution of the

act has been commenced, that the person
conceiving the idea should have set about doing
the deed, employing appropriate means in order
that his intent might become a reality, and
finally, that the result or end contemplated shall
have been physically possible. So long as these
conditions were not present, the law and the
courts did not hold him criminally liable. 5

xxx xxx xxx

2. By any person performing an act which would
be an offense against persons or property, were
it not for the inherent impossibility of its
accomplishment or on account of the
employment of inadequate or ineffectual means.
Petitioner contends that, Palangpangan's absence from
her room on the night he and his companions riddled it
with bullets made the crime inherently impossible.
On the other hand, Respondent People of the Philippines
argues that the crime was not impossible. Instead, the facts

This legal doctrine left social interests entirely

unprotected. 6 The Revised Penal Code, inspired by the
Positivist School, recognizes in the offender his
formidability, 7 and now penalizes an act which were it not
aimed at something quite impossible or carried out with
means which prove inadequate, would constitute a felony

Page 53 of 94

against person or against property. 8 The rationale of Article

4(2) is to punish such criminal tendencies. 9

coat pocket of another with the intention to steal the latter's

wallet and finds the pocket empty. 17

Under this article, the act performed by the offender cannot

produce an offense against person or property because: (1)
the commission of the offense is inherently impossible of
accomplishment: or (2) the means employed is either (a)
inadequate or (b) ineffectual. 10

The case at bar belongs to this category. Petitioner shoots

the place where he thought his victim would be, although in
reality, the victim was not present in said place and thus, the
petitioner failed to accomplish his end.

That the offense cannot be produced because the

commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be impossible
under this clause, the act intended by the offender must be
by its nature one impossible of accomplishment. 11 There
must be either impossibility of accomplishing the intended
act 12 in order to qualify the act an impossible crime.

One American case had facts almost exactly the same as this
one. In People vs. Lee Kong, 18 the accused, with intent to kill,
aimed and fired at the spot where he thought the police
officer would be. It turned out, however, that the latter was in
a different place. The accused failed to hit him and to
achieve his intent. The Court convicted the accused of an
attempt to kill. It held that:
The fact that the officer was not at the spot
where the attacking party imagined where he
was, and where the bullet pierced the roof,
renders it no less an attempt to kill. It is well
settled principle of criminal law in this country
that where the criminal result of an attempt is
not accomplished simply because of an
obstruction in the way of the thing to be
operated upon, and these facts are unknown to
the aggressor at the time, the criminal attempt
is committed.

Legal impossibility occurs where the intended acts, even if

completed, would not amount to a crime. 13 Thus:
Legal impossibility would apply to those
circumstances where (1) the motive, desire and
expectation is to perform an act in violation of
the law; (2) there is intention to perform the
physical act; (3) there is a performance of the
intended physical act; and (4) the consequence
resulting from the intended act does not amount
to a crime. 14
The impossibility of killing a person already dead
this category.

15

falls in

On the other hand, factual impossibility occurs when

extraneous circumstances unknown to the actor or beyond
his control prevent the consummation of the intended
crime. 16 One example is the man who puts his hand in the

In the case of Strokes vs. State, 19 where the accused failed

to accomplish his intent to kill the victim because the latter
did not pass by the place where he was lying-in wait, the
court held him liable for attempted murder. The court
explained that:

Page 54 of 94

It was no fault of Strokes that the crime was not

committed. . . . It only became impossible by

reason of the extraneous circumstance that

Lane did not go that way; and further, that he
was arrested and prevented from committing
the murder. This rule of the law has application
only where it is inherently impossible to commit
the crime. It has no application to a case where
it becomes impossible for the crime to be
committed, either by outside interference or
because of miscalculation as to a supposed
opportunity to commit the crime which fails to
materialize; in short it has no application to the
case when the impossibility grows out of
extraneous acts not within the control of the
party.
20

In the case of Clark vs. State, the court held defendant

liable for attempted robbery even if there was nothing to rob.
In disposing of the case, the court quoted Mr. Justice Bishop,
to wit:
It being an accepted truth that defendant
deserves punishment by reason of his criminal
intent, no one can seriously doubt that the
protection of the public requires the punishment
to be administered, equally whether in the
unseen depths of the pocket, etc., what was
supposed to exist was really present or not. The
community suffers from the mere alarm of
crime. Again: Where the thing intended
(attempted) as a crime and what is done is a
sort to create alarm, in other words, excite
apprehension that the evil; intention will be
carried out, the incipient act which the law of
attempt takes cognizance of is in reason
committed.

In State vs. Mitchell, 21 defendant, with intent to kill, fired at

the window of victim's room thinking that the latter was
inside. However, at that moment, the victim was in another
part of the house. The court convicted the accused of
attempted murder.
The aforecited cases are the same cases which have been
relied upon by Respondent to make this Court sustain the
judgment of attempted murder against Petitioner. However,
we cannot rely upon these decisions to resolve the issue at
hand. There is a difference between the Philippine and the
American laws regarding the concept and appreciation of
impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2),
expressly provided for impossible crimes and made the
punishable. Whereas, in the United States, the Code of
Crimes and Criminal Procedure is silent regarding this matter.
What it provided for were attempts of the crimes enumerated
in the said Code. Furthermore, in said jurisdiction, the
impossibility of committing the offense is merely a defense to
an attempt charge. In this regard, commentators and the
cases generally divide the impossibility defense into two
categories: legal versus factual impossibility. 22 In U.S.
vs. Wilson 23 the Court held that:
. . . factual impossibility of the commission of
the crime is not a defense. If the crime could
have been committed had the circumstances
been as the defendant believed them to be, it is
no defense that in reality the crime was
impossible of commission.
Legal impossibility, on the other hand, is a defense which can
be invoked to avoid criminal liability for an attempt. In U.S.
vs. Berrigan, 24 the accused was indicated for attempting to

Page 55 of 94

smuggle letters into and out of prison. The law governing the
matter made the act criminal if done without knowledge and
consent of the warden. In this case, the offender intended to
send a letter without the latter's knowledge and consent and
the act was performed. However, unknown to him, the
transmittal was achieved with the warden's knowledge and
consent. The lower court held the accused liable for attempt
but the appellate court reversed. It held unacceptable the
contention of the state that "elimination of impossibility as a
defense to a charge of criminal attempt, as suggested by the
Model Penal Code and the proposed federal legislation, is
consistent with the overwhelming modern view". In disposing
of this contention, the Court held that the federal statutes did
not contain such provision, and thus, following the principle
of legality, no person could be criminally liable for an act
which was not made criminal by law. Further, it said:
Congress has not yet enacted a law that
provides that intent plus act plus conduct
constitutes the offense of attempt irrespective
of legal impossibility until such time as such
legislative changes in the law take place, this
court will not fashion a new non-statutory law of
criminal attempt.

Instead, it only recognizes impossibility as a defense to a

crime charge that is, attempt.
This is not true in the Philippines. In our jurisdiction,
impossible crimes are recognized. The impossibility of
accomplishing the criminal intent is not merely a defense,
but an act penalized by itself. Furthermore, the phrase
"inherent impossibility" that is found in Article 4(2) of the
Revised Penal Code makes no distinction between factual or
physical impossibility and legal impossibility. Ubi lex non
distinguit nec nos distinguere debemos.
The factual situation in the case at bar present a physical
impossibility which rendered the intended crime impossible
of accomplishment. And under Article 4, paragraph 2 of the
Revised Penal Code, such is sufficient to make the act an
impossible crime.
To uphold the contention of respondent that the offense was
Attempted Murder because the absence of Palangpangan
was a supervening cause independent of the actor's will, will
render useless the provision in Article 4, which makes a
person criminally liable for an act "which would be an offense
against persons or property, were it not for the inherent
impossibility of its accomplishment . . ." In that case all
circumstances which prevented the consummation of the
offense will be treated as an accident independent of the
actor's will which is an element of attempted and frustrated
felonies.

To restate, in the United States, where the offense sought to

be committed is factually impossible or accomplishment, the
offender cannot escape criminal liability. He can be convicted
of an attempt to commit the substantive crime where the
elements of attempt are satisfied. It appears, therefore, that
WHEREFORE, PREMISES CONSIDERED. the petition is hereby
the act is penalized, not as an impossible crime, but as an
GRANTED, the decision of respondent Court of Appeals
attempt to commit a crime. On the other hand, where the
holding Petitioner guilty of Attempted Murder is hereby
offense is legally impossible of accomplishment, the actor
MODIFIED. We hereby hold Petitioner guilty of an impossible
cannot be held liable for any crime neither for an attempt
crime as defined and penalized in Articles 4, paragraph 2,
not for an impossible crime. The only reason for this is that in
and 59 of the Revised Penal Code, respectively. Having in
American law, there is no such thing as an impossible crime.
Page 56 of 94

mind the social danger and degree of criminality shown by

Petitioner, this Court sentences him to suffer the penalty of
six (6) months of arresto mayor, together with the accessory
penalties provided by the law, and to pay the costs.
SO ORDERED.

NATIVIDAD,
Petitioner, Present:
PUNO, C.J.,
QUISUMBING,
SANTIAGO,
versus - GUTIERREZ,
CARPIO,
MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, and
PEOPLE OF THE PHILIPPINES NACHURA, JJ.
and HON. COURT OF APPEALS,
Respondents.
Promulgated:
June 21, 2007
x----------------------------------------------------------------------------x
DECISION
TINGA, J.:

EN BANC
ARISTOTEL VALENZUELA y G. R. No. 160188

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 wellknown decisions[1] 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
Page 57 of 94

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.
I.
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
well-known 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 Ultramaticand
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 ofTide
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 ofthe building to check what
was

Page 58 of 94

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 Decision[16] 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.
II.
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 reasons,

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

Page 59 of 94

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.

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.

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.

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]

III.
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

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

Page 60 of 94

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,[36] mens reahas
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 ourmala 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
rearequirement 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 embeddedwhich 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

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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 apoderamientoonce 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 Code [52] 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

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already produced upon the tak[ing of] personal property of

another without the latters consent.
U.S. v. Adiao[53] 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

Page 63 of 94

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 shirt-front, at the same time shouting
for a policeman; after a struggle, he recovered his pocketbook 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 pocket-book, 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]

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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 inFlores,
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
ofmuch 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

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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.
Batoon[73] 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 ofU.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.
IV.
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 theft.
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 owner. [80]
No legal reference or citation was offered for this averment,
whether Dio, Flores or the Spanish authorities who may have

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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 ot
herthan spontaneous
desistance. Empelis concludes that the crime was

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.
V.

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 offenders.
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

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

Page 67 of 94

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 jurisprudence.
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

Page 68 of 94

es necesario para la consumacin delhurto 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 andFlores. 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.
V.
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
theDio/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

Page 69 of 94

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

importance.[94]
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?

Page 70 of 94

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.

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 Dioand 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.
SO ORDERED.

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
Page 71 of 94

In Criminal Case No. 97-159184 That on or about January 14, 1996, in the City of Manila,
Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and
intimidation, that is, by threatening to kill said Jessica Castro,
had carnal knowledge of the latter against her will.
CONTRARY TO LAW.
THIRD DIVISION

In Criminal Case No. 97-159185-

[G.R. Nos. 141724-27. November 12, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. ARNULFO
ORANDE y CHAVEZ, appellant.
DECISION
CORONA, J.:
This is an appeal from the decision [1] of the Regional Trial
Court of Manila, Branch 18, in Criminal Case Nos. 97-159184,
97-159185, 97-159186 and 97-159187, convicting appellant
for two counts of simple rape, one count of statutory rape
and one count of frustrated rape, and sentencing him to
suffer three counts of reclusion perpetua for the simple and
statutory rapes, and an indeterminate penalty of 8 years to
14 years and 8 months of imprisonment for the frustrated
rape.
Complainant Jessica Castro charged appellant with raping
her four times between January 1994 and November 1996.
The informations filed against appellant by the City
Prosecutor read:

That on or about April 15, 1994, in the City of Manila,

Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and
intimidation, that is, by threatening JESSICA CASTRO Y DE LA
CRUZ of death should she resist or report the matter to
anybody, had carnal knowledge of said Jessica C. Castro, a
minor, under 12 years of age, against her will.
CONTRARY TO LAW.
In Criminal Case No. 97-159186 That on or about March 12, 1995, in the City of Manila,
Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and
intimidation, that is, by threatening Jessica Castro y de la
Cruz of death should she resist or report the matter to
anybody, had carnal knowledge of said Jessica C. Castro, a
minor, under 12 years of age, against her will.
CONTRARY TO LAW.
In Criminal Case No. 97-159187-

Page 72 of 94

That on or about November 17, 1996, in the City of Manila,

Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and
intimidation, that is, by threatening to kill said Jessica Castro,
had carnal knowledge of the latter against her will.
CONTRARY TO LAW.[2]
Arraigned on September 5, 1997, appellant pleaded not
guilty.[3] Thereafter, trial on the merits ensued. However, the
trial was subsequently postponed for eight months as Jessica
was suffering from psychological and emotional trauma from
her horrifying ordeal.[4] The lower court ordered the
suspension of the trial to enable her to undergo psychological
therapy at the Child Protection Unit of the Philippine General
Hospital. Trial resumed in November 1998 with the
prosecution presenting Jessica as its first witness.
Incidentally, prior to the filing of the aforementioned
cases, Jessica also filed a criminal case against her mother,
Girlie de la Cruz Castro, and the appellant for child abuse.
The evidence of the prosecution showed that appellant
was the common law husband of Jessicas mother
Girlie. Appellant, a pedicab driver, started living with Girlie
and her three children sometime in 1993 in a two-storey
house in Paco, Manila owned by Girlies mother. They
occupied a room on the ground floor which served as their
bedroom, kitchen and living room. The adjacent room was
occupied by Girlies brother and his family while the room on
the second floor was occupied by Girlies sister and her family.
Girlie gave birth to two more children by appellant. To
earn a living, Girlie sold fish at the Paco Market, buying her
stock from the Navotas fish market late at night and
sometimes in the early hours of the morning.

The first incident of rape, subject of Criminal Case No. 97159185, happened sometime in April 1994 when Girlie was at
the fish market. Appellant was left in the house with Jessica,
her siblings and appellants two children with Girlie. Jessica
was then watching television while her brothers and sisters
were sleeping beside her. Appellant grabbed Jessicas right
hand and lasciviously jabbed her palm with his finger. He
ordered her to undress which she obeyed out of fear as
appellant was armed with a knife. Appellant then removed
his pants, placed himself on top of complainant and
succeeded in partially penetrating her. Jessica felt pain in her
vagina and saw it smeared with blood and semen. She tried
to leave the room but appellant locked the door and
threatened to kill her if she told her mother what happened.
Jessica was then only nine years and four months old, having
been born on December 19, 1983.[5]
The second rape, subject of Criminal Case No. 97159186, occurred on March 14, 1995 at around 11:00
a.m. when Jessica was 11 years and 3 months old. Girlie was
in the market while Jessica and her siblings were left in the
house watching television. Soon after, appellant arrived and
sent the children, except Jessica, to play outside. Left alone
with Jessica, appellant removed his clothes, pulled out
a balisong and ordered Jessica to undress. He then held her
by the shoulder and made her lie down. Then he mounted
her. Appellant reached his orgasm shortly after penetrating
her slightly. He stood up with semen still dripping from his
penis. Apparently still not satisfied, he knelt down, kissed and
fingered Jessicas vagina, then mashed her breasts. He only
stopped what he was doing when someone knocked at the
door. Appellant and Jessica hurriedly put on their clothes and,
as appellant opened the door, Jessica went to the bathroom
to wash herself.

Page 73 of 94

The third rape, subject of Criminal Case No. 97-159184,

occurred on January 14, 1996, when Jessica was 12 years and
6 months old. She arrived from school at around 11:00
a.m.While she was changing her clothes, appellant ordered
Jessicas brother and sister to visit their mother at
the Paco Market and sent his children to play outside the
house. When appellant and Jessica were alone, he removed
his pants, got his knife and ordered her to undress. Since she
was
afraid,
Jessica
was
forced
to
remove
her
clothes. Appellant then told her they would do what they did
before, pulled her towards him and made her lie down on the
floor. While holding the knife, he kissed and fingered her
vagina, then mashed her breasts. Thereafter, he placed
himself on top of her, partially penetrated her until he
ejaculated. When Jessicas brother and sister arrived,
appellant hurriedly put on his clothes. Jessica did the same.
She then went to the bathroom to wash herself and change
her bloodstained underwear.
The last rape, subject of Criminal Case No. 97-159187,
occurred sometime in November 1996, at around 11:00
p.m. Girlie was again in the public market while Jessica was
at home with her siblings who were all asleep. Appellant told
Jessica that they would again do what they did before but she
refused, saying that she might get pregnant. Appellant
brandished hisbalisong and threatened to kill her. He then
covered himself and Jessica with a blanket, removed his
pants and her shorts, and placed himself on top of her. His
penis slightly penetrated her vagina. He mashed her breasts,
inserted his finger into her vagina and kissed it. Jessica
pushed him away and told him she wanted to sleep. Then
she put on her shorts. Appellant also put on his pants and
told Jessica not to tell her mother what he did to her. He
assured her that she would not get pregnant because she
was not yet menstruating.

Sometime in March 1997, a teacher of Jessica,

Mrs. Adoracion Mojica, noticed the unusual treatment of
Jessica by appellant. When confronted by Mrs. Mojica, Jessica
admitted that appellant had raped her several times.
Mrs. Mojica called up Jessicas aunt, Mrs. Antonina de la Cruz,
and narrated to her what Jessica had confessed. Mrs. De la
Cruz then accompanied Jessica to the police station to file a
complaint and to the Philippine General Hospital (PGH), Child
Protection Unit, to be examined. Dr. Bernadette J. Madrid,
Director of the Child Protection Unit, examined Jessica and
the findings revealed the following:
Genital Examination:
Hymen: Estrogenized,
Attenuated from 1 oclock position to 4 o
clock position
and from 6 o clock to 12 o clock position
Notch at 5 oclock
Healed hymenal tear at the 6 o clock
position
Anus: Normal rectal tone, no pigmentation, no scars,
normal rugae[6]
For his defense, appellant advanced denial and alibi. He
denied ever raping Jessica and testified that, during the
alleged second rape incident, he was driving his pedicab. His
live-in partner Girlie testified that, during the purported first
and second incidents of rape, appellant was with her to buy
fish in Navotas and sell them in Paco market. Appellant
argued that since Jessica disapproved of his relationship with

Page 74 of 94

her mother, she had the motive to falsely accuse him of

raping her. Further, he pointed out the improbability of the
alleged first and fourth incidents of rape inasmuch as the
make-up of the room made it impossible for Jessicas siblings
not to wake up during the commission of the crime. Appellant
further contended that Jessicas failure to cry out for help,
knowing that her mothers relatives were in the same house,
made her story of rape unbelievable.

On the civil liability of the accused in the four cases, he is

ordered to pay the victim, Jessica Castro, moral, nominal and
exemplary damages in the respective sums of P400,000.00,
P200,000.00 and P100,000.00.

The trial court gave credence to the testimony of Jessica

and convicted the appellant:

I. THE COURT A QUO GRAVELY ERRED IN FINDING THE

ACCUSED-APPELLANT
GUILTY
BEYOND
REASONABLE DOUBT OF ONE COUNT OF
STATUTORY RAPE, ONE COUNT OF FRUSTRATED
RAPE AND TWO COUNTS OF SIMPLE RAPE.

WHEREFORE, in Criminal Case No. 97-159184,

Accused Arnulfo Orande y Chavez is convicted of simple rape
under Article 335 of the Revised Penal Code and sentenced
to suffer the penalty of reclusionperpetua with all the
accessory penalties provided by law.

SO ORDERED.[7]
In this appeal, appellant assigns the following errors:

II. THE COURT A QUO GRAVELY ERRED IN CONVICTING

THE ACCUSED-APPELLANT OF FRUSTRATED RAPE
DESPITE THE FACT THAT UNDER PREVAILING
JURISPRUDENCE THERE IS NO SUCH CRIME.[8]

In Criminal Case No. 97-159185, the accused is also

convicted of simple rape under Article 335 of the Revised
Penal Code and sentenced to suffer the penalty of
reclusion perpetua with all the accessory penalties provided
by law.

The Office of the Solicitor General argues that appellants

convictions should be upheld as the prosecution was able to
prove his guilt beyond reasonable doubt.

In Criminal Case No. 97-159186, the accused is likewise

convicted of statutory rape under Article 335 of the Revised
Penal Code and sentenced to suffer the penalty of
reclusion perpetua with all the accessory penalties provided
by law.

The appeal is partly meritorious. This Court finds that the

prosecution was able to prove beyond reasonable doubt
appellants guilt for two counts of statutory rape and two
counts of simple rape, there being no such crime as
frustrated rape in this jurisdiction.

In Criminal Case No. 97-159187, the accused is convicted of

frustrated rape under Article 335 of the Revised Penal Code
and sentenced to suffer the indeterminate penalty of 8 years
of prision mayor as minimum to 14 years and 8 months of
reclusion temporal as maximum, and to pay the costs.
Page 75 of 94

After a thorough review of the records, we find no reason

to deviate from the well-established rule that the credibility
of witnesses is a matter best assessed by the trial court
because of its unique opportunity to observe them firsthand
and to note their demeanor, conduct and attitude. [9] In the
present case, the trial court found Jessicas testimony
convincing, logical and credible. Moreover, the court a quo:
xxx discerned from her demeanor the intense mental torture,
embarrassment, emotional pain and bitterness she suffered
whenever she was asked to recall and narrate the humiliating
sexual ordeals she had gone through, and her ... desire for
justice and the punishment of her defiler. She was continually
in tears while testifying and the proceeding was interrupted
several times to calm her down.[10]
No young woman would allow an examination of her
private part and subject herself to the humiliation and rigor
of a public trial if the accusations were not true, or if her
motive were other than a fervent desire to seek justice. [11]
We do not subscribe to appellants theory that the filing of
the rape charges was motivated by Jessicas dislike for him. To
charge appellant with rape for the sole purpose of exacting
revenge, as appellant implies in his brief, takes a certain kind
of psychiatric depravity which this Court does not see in
Jessica. The fact that Jessica had to undergo psychological
treatment[12] after her first testimony in February 1998 belies
appellants defense. The need for such counseling came
about after the defilement she suffered in the hands of
appellant. In fact, it was the incidents of rape that caused her
psychological and emotional imbalance which required
therapy at the Child Protection Unit of the Philippine General
Hospital.

The alleged inconsistencies and improbabilities in

Jessicas testimony did not discredit her nor reveal any
fabrication. Inconsistencies regarding minor details were
attributable to the fact that she was recalling details of
incidents that happened three years before, not to mention
the fact that these details pertained to something she had
very little knowledge of, being then only nine years and three
months old when the first rape was committed. We have
consistently ruled that errorless recollection of a harrowing
experience cannot be expected of a witness (a very young
one at that) specially when she is recounting details of an
occurrence so humiliating, so painful and, in this case, so
alien as rape.[13]
Appellant makes much of the fact that two incidents of
rape happened inside the room where the other children
were sleeping. This Court has repeatedly held that rape can
be committed in the same room where other members of the
family are also sleeping, in a house where there are other
occupants or even in places which to many might appear
unlikely and high-risk venues for its commission. [14]
Also, the failure of Jessica to cry out for help during the
incidents in question, inspite of the physical proximity of her
relatives, or to report to them what happened, did not at all
make her testimony improbable inasmuch as it is not
uncommon for a young girl of tender age to be easily
intimidated into silence and conceal for sometime the
violation of her honor, even by the mildest threat to her life.
[15]
Besides, Girlie, Jessicas mother, had a rift with her siblings
who lived in the same house and forbade Jessica to socialize
with them. It was likewise highly probable that the strained
relations between Jessicas mother, uncle and aunt prevented
Jessica from confiding in them.

Page 76 of 94

In a number of cases, this Court has likewise ruled that

delay, even of three years, in reporting the crime does not
necessarily detract from the witness credibility as long as it is
satisfactorily explained.[16] Jessica was threatened by
appellant that he would kill her mother and relatives if she
reported the rape. A young girl like Jessica can easily be
mesmerized by fear of bodily harm and, unlike a mature
woman, cannot be expected to have the courage or
confidence to immediately report a sexual assault on
her, specially when a death threat hangs over her head. [17]
In view of the credible testimony of Jessica, appellants
defenses of denial and alibi deserve no consideration. These
weak defenses cannot stand against the positive
identification and categorical testimony of a rape victim. [18]
The court a quo convicted appellant of one count of
frustrated rape in Criminal Case No. 97-151987,
the dispositive portion of which read:
xxx xxx xxx.
In Criminal Case No. 97-159187, the accused is convicted of
frustrated rape under Article 335 of the Revised Penal Code
and sentenced to suffer the indeterminate penalty of 8 years
of prision mayor as minimum, and to pay the costs.
xxx xxx xxx.
SO ORDERED.[19]
However, we agree with the observation of the Solicitor
General that the court a quo was referring to Criminal Case
No. 97-159185, and not Criminal Case No. 97-159187, in
convicting appellant of frustrated rape:

The trial court convicted appellant of simple rape in Criminal

Case No. 97-159185. However, the factual basis thereof in
the body of the decision reads:
With regard to Criminal Case No. 97-159185, the Court has
gathered that sometime in April, 1994, at around 11:00 p.m.,
Jessica and her two siblings together with the accused were
in their house, while their mother,
Girlie, was in Navotas buying fish. Jessica was watching TV in
a lying position beside her two sleeping siblings, when the
accused held Jessicas right hand and jabbed her palm with
his finger. Then he told her to remove her short pants, panty
and T-shirt, after which the accused removed his pants and
with a balisong in his hand, he began kissing the sensitive
parts of her body. Then he placed himself on top of her and
tried to have sexual intercourse with her. He succeeded in
nudging her sex organ with the tip of his penis, but was
unable to accomplish penetration, due to the resistance
offered by her by struggling and kicking him. Nonetheless,
the accused had orgasm and Jessicas sex organ was smeared
with his semen. (emphasis supplied, p. 2, Decision)
Such was the only rape incident where the trial court
concluded there was no penetration.
On the other hand, the factual basis for the conviction in
Criminal Case No. 97-159187 in the body of the trial courts
decision reads:
Anent Criminal Case No. 97-159187, the records further show
that in November, 1996, at around 11:00 p.m., Jessica was
watching TV while the other siblings were asleep and her
mother was away, when accused again made sexual
advances to her. She resisted and told accused she might
become pregnant, but the accused persisted and threatened
to kill her at that very moment if she would not submit to his

Page 77 of 94

lust. As in the previous occasions, he again succeeded in

having carnal knowledge of the helpless and scared victim.
After her defilement, the victim continually cried and the
accused tried to calm her down by assuring her that she
would not be impregnated, because she has not yet began to
have menstruation (p. 3, Decision)
Consequently the conviction for frustrated rape should
pertain to the incident in April 1994 described in Criminal
Case No. 97-159185 and not Criminal Case No. 97-159187
since this case refers to the November 1996 rape incident
where the findings of the trial court was that there was carnal
knowledge.[20]
Moreover, the oversight of the court a quo in interchanging
Criminal Case Nos. 97-159185 and 97-159187 is further
evidenced by the following paragraph found in page four of
the trial court decision:
In Criminal Case 97-159185 and 97-159184, the acts of the
accused in having carnal knowledge of the victim by
intimidation on two separate occasions in [the] early or
middle part [of] 1996, and in November of the same year,
constitute two separate crimes of qualified rape under R.A.
7659 and the penalty prescribed therefore is death by lethal
injection.[21] (Emphasis Ours)
The rape incidents which occurred in 1996 were
designated as Criminal Case Nos. 97-159184 and 97-159187,
as borne out by the informations filed by the City Prosecutor.
[22]
Thus, the conviction for frustrated rape should pertain to
Criminal Case No. 97-159185 and not Criminal Case No. 97159187.
Regarding Criminal Case No. 97-159185 (the April 1994
rape incident), the Court sustains appellants contention that

there is no such crime as frustrated rape, as we have ruled in

a long line of cases.[23] Recently, in People vs. Quinanola,
[24]
we again reiterated the rule:
Let it be said once again that, as the Revised Penal Code
presently so stands, there is no such crime as frustrated
rape. In People vs. Orita, the Court has explicitly pronounced:
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 vs.
Oscar, 48 Phil. 527; People vs. Hernandez, 49 Phil. 980;
People vs. Royeras, G.R. No. L-31886, April 29, 1974, 56
SCRA 666; People vs. 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 vs. Tayaba, 62 Phil. 559; People vs. Rabadan, et al.,
53 Phil. 694; United States vs. 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 vs. Eriia, 50 Phil. 998 [1927] where We found
Page 78 of 94

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 Eriia case, supra,
might have prompted the law-making body to include the
crime of frustrated rape in the amendments introduced by
said laws.
The Court is not unaware that Republic Act No. 7659,
amending Article 335 of the Revised Penal Code, has retained
the provision penalizing with reclusion perpetua to death an
accused who commits homicide by reason or on the occasion
of an attempted or frustrated rape. Until Congress sees it fit
to define the term frustrated rape and thereby penalize it,
the Court will see its continued usage in the statute book as
being merely a persistent lapse in language. (emphasis ours)

that, to be convicted of rape, there must be convincing and

sufficient proof that the penis indeed touched the labia or slid
into the female organ, and not merely stroked the external
surface thereof.[27] Nevertheless, we have also ruled in cases
where penetration is not established that the rape is deemed
consummated if the victim felt pain, or the medico-legal
examination finds discoloration in the inner lips of the vagina,
or the labia minora is already gaping with redness, or
the hymenal tags are no longer visible. [28] In the present case,
the victim testified that she felt pain and her vagina bled,
indisputable indications of slight penetration or, at the very
least, that the penis indeed touched the labia and not merely
stroked the external surface thereof. Thus, the appellant
should be found guilty of (consummated) rape and not
merely frustrated or attempted rape.
Pursuant to Section 11 of RA 7659 or the Heinous Crimes
Law, the penalty of death is imposed if rape is committed
when the victim is under 18 years of age and the offender is
the common-law spouse of the parent of the victim. However,
the trial court was correct in not imposing the death penalty
in Criminal Case Nos. 97-159184 and 97-159187 because the
qualifying circumstances of age and relationship of the victim
to the appellant were not alleged in the information. [29] Thus,
appellant can only be convicted of simple rape punishable
byreclusion perpetua under Article 335 of the Revised Penal
Code. However, in Criminal Case Nos. 97-159185 and 97159186, the appellant can be convicted of statutory rape also
punishable by reclusion perpetua under Article 335 of the
Revised Penal Code inasmuch as the age of Jessica was
alleged in the information[30] and duly proven during the trial
by the presentation of her birth certificate. [31]

Thus, it was error for the trial court to convict appellant of

frustrated rape. Besides, after a careful review of the records,
we find that the rape was in fact consummated. Jessica
initially testified that, although appellant did not succeed in
inserting his penis in her vagina, she felt his sex organ touch
hers and she saw and felt semen come out of his penis and
smear
her
vagina.[25] In
response
to
the clarificatory questions asked by the prosecutor, Jessica
We award moral damages of P50,000 for each count of
testified that the appellant was able to slightly penetrate her
rape as moral damages are automatically awarded to rape
because she felt pain and her vagina bled. [26] It has been held
victims without need of pleading or proof. [32] We also award
Page 79 of 94

civil indemnity ex delicto of P50,000 for each count of rape in

the light of the ruling that civil indemnity, which is distinct
from moral damages, is mandatory upon the finding of the
fact of rape.[33]We likewise award exemplary damages of
P25,000 for each count of rape consistent with the prevailing
jurisprudence on the matter.[34]

SO ORDERED.

WHEREFORE, the decision of the Regional Trial Court of

Manila, Branch 18, in Criminal Case Nos. 97-159 184 to 87 is
AFFIRMED with the following MODIFICATIONS:
1. In Criminal Case No. 97-159 184, appellant is
convicted of simple rape under Article 335 of the
Revised Penal Code and sentenced to suffer the
penalty of reclusion perpetua.
2. In Criminal Case No. 97-159 185, appellant is
convicted of statutory rape under Article 335 of
the Revised Penal Code and sentenced to suffer
the penalty of reclusion perpetua.
3. In Criminal Case No. 97-159186, appellant is
convicted of statutory rape under Article 335 of
the Revised Penal Code and sentenced to suffer
the penalty of reclusion perpetua.
4. In Criminal Case No. 97-159187, appellant is
convicted of simple rape under Article 335 of the
Revised Penal Code and sentenced to suffer the
penalty of reclusion perpetua.
For each count of rape, appellant is ordered to pay
complainant Jessica Castro P50,000 as moral damages,
P50,000 as civil indemnity and P25,000 as exemplary
damages, or a total of P500,000. Costs against appellant.
Page 80 of 94

Sorsogon, Sorsogon, Branch 52, which was docketed as

Criminal Case No. 2540. The Information filed against them
reads as follows:
That on or about the 17th day of July 1988, at Barangay
Putiao, municipality of Pilar, province of Sorsogon,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating
and mutually helping one another, with intent to kill, armed
with stones, and with treachery and evident premeditation,
and taking advantage of superior strength, did then and
there, willfully, unlawfully and feloniously attack, assault and
throw stones at one Zaldy Marifosque, thereby hitting the
latter on the different parts of his body which directly caused
his death, to the damage and prejudice of the legal heirs of
said Zaldy Marifosque.
CONTRARY TO LAW.[1]

FIRST DIVISION
[G.R. No. 137042. June 17, 2003]

[2]

PEOPLE OF THE PHILIPPINES, appellee, vs. FELIPE

MUSA,
JR.,
SILVERIO
MANJARES,
JR.
(deceased), ALLAN REOLO, RANDY LLENO and
ANGELO MABINI, accused.
FELIPE MUSA, JR., ALLAN REOLO, RANDY LLENO and
ANGELO MABINI, appellants.
DECISION
YNARES-SANTIAGO, J.:
Felipe Musa Jr., Allan Reolo, Randy Lleno and Angelo (Gil)
Mabini, together with Silverio Manjares Jr. (now deceased)
were charged with Murder before the Regional Trial Court of

All the accused pleaded not guilty upon arraignment.

Thereafter, the case was tried on the merits.

At 9:00 p.m. of July 17, 1998, brothers Javier Bebot

Marifosque and Zaldy Marifosque were inside their house at
Putiao, Pilar, Sorsogon. They were getting ready for bed when
suddenly stones fell on their roof. They looked out the
window and saw Felipe Musa Jr., Allan Reolo, Angelo Mabini,
Randy Lleno and Silverio Manjares, Jr. standing in the middle
of the road and pelting stones at their house. [3] Bebot and
Zaldy ran towards the house of Musas father, Felipe Sr.,
seventeen meters away, to report the stoning incident to
him. The five accused followed them and stood in front of the
Musa house. Felipe Jr. attacked Bebot and hit him with a
piece of wood above the left ear. [4] Felipe Sr. grabbed his son
and beat him up. He ordered his other son, Ricardo, to get a
rope because they will tie up Felipe Jr. Upon hearing this, the

Page 81 of 94

latter scampered away. Felipe Sr. re-assured Bebot and Zaldy

that he will take full responsibility for his sons acts. [5]
On their way home, Bebot walked five meters ahead of
Zaldy because of fear that they might be waylaid. After they
passed a jeepney parked on the other side of the road, the
five accused suddenly appeared. Musa, Lleno and Manjares
hurled stones at Zaldy, who was hit on the face and fell to
the ground. Mabini and Reolo stood behind the other three
accused holding stones.[6] Bebot ran to their house to get a
weapon to use against the assailants. [7]
In the meantime, Barangay Tanod Ireneo Mendez was
asleep in his house nearby when he was awakened by the
sound of stones hitting the road and shouts for help
saying, Dont kill me.[8] He went out of his house and saw
Zaldy sprawled on the road and five individuals standing
around him. When he shouted, Hey, what is that,[9] the five
men ran away.[10] He was able to get a good look at their
faces since the area was lit with a fluorescent lamp. He
approached Zaldy and recognized him to be the brother of
Bebot. Bebot arrived carrying a lead pipe, but the five
assailants were gone. Together, Mendez and Bebot brought
Zaldy to the Albay Provincial Hospital.
Dr. Cesar Ong Chua, the resident physician of
Department of Surgery at the Albay Provincial Hospital,
performed a craniectomy or burr holing on the skull of Zaldy
to evacuate hematoma or the blood clot surrounding the
brain.[11] Dr. Chua found that Zaldy suffered massive internal
bleeding caused by strong force applied directly to his head.
[12]
However, Zaldy died the next day after the operation.
The defense claims that in the evening of July 17, 1998,
the five accused were drinking in front of Alcazars Store in
Putiao, Pilar, Sorsogon. Later, they transferred to Realubits

Store.Musa left the group to relieve himself. Zaldy and Bebot

suddenly attacked him with lead pipe for allegedly throwing
stones at their house.[13] Musa tried to parry the blows and hit
Zaldy with a stone. He then ran toward his house.[14] The
other accused allegedly were unable to help Musa because of
shock.[15]
While the case was pending trial, accused Silverio
Manjares, Jr. died.
On April 17, 1998, the trial court rendered a judgment of
conviction as follows:
WHEREFORE, in view of the foregoing consideration, the
prosecution having proved the guilt of the accused by
evidence beyond reasonable doubt of the crime of Murder
defined and penalized under Article 248 of the Revised Penal
Code, qualified by the circumstance of treachery, the court
hereby sentences Felipe Musa Jr., Allan Reolo, and Randy
Lleno to suffer an imprisonment of Reclusion Perpetuaand to
pay jointly and severally the heirs of the deceased the
amount of P50,000.00 as civil indemnity; P100,000.00 as
indemnity for the loss of earning capacity of the victim;
P20,000.00 for moral damages without subsidiary
imprisonment in case of insolvency and to pay the
costs. Accordingly, the bond posted by accused Felipe Musa
Jr., Allan Reolo and Randy Lleno are hereby cancelled.
Accused Angelo Mabini at the time of the commission of the
crime is only 17 years and 3 months old, applying the law on
youthful offender, he shall be credited a privileged mitigating
circumstance of minority and by applying the Indeterminate
Sentence Law, the accused is hereby sentenced to suffer an
indeterminate penalty of 4 years, 2 months and 1 day as
minimum, to 8 years, and 1 day of Prision Mayor as
maximum.

Page 82 of 94

It appearing that accused Silverio Manjares Jr. is already

dead, as evidenced by a death certificate filed before this
court, the case against him is hereby dismissed.

the swift and unexpected attack by an aggressor or an

unarmed and unsuspecting victim who does not give any
slightest provocation, depriving the latter of any real chance
to defend himself.[18]

SO ORDERED.[16]
Hence this appeal, based on the following assignment of
errors:
I
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON
THE BASIS OF CONSPIRACY.
II
THE COURT ERRED IN FINDING THAT THERE WAS TREACHERY
IN THE KILLING OF THE VICTIM.
III
THE COURT ERRED IN CONVICTING THE ACCUSED BEYOND
REASONABLE DOUBT.
The appeal lacks merit.
Appellants contend that the killing was not attended by
the qualifying circumstance of treachery because the victim
was forewarned of an attack against him as the assault was
preceded by the stoning of his house and the challenge made
by Musa to the Marifosque brothers. We disagree.
Treachery may still be appreciated even when the victim
was warned of the danger to his person as long as the
execution of the attack made it impossible for the victim to
defend himself or to retaliate. [17] The essence of treachery is
Page

The records show that appellants hid themselves and lay

in wait for Bebot to pass by before pelting Zaldy with
stones. Thus, there was a deliberate and unexpected attack
on the unarmed victim who was in a helpless position to
defend himself or retaliate from the five assailants, who
continuously hurled stones at him. To reiterate, what is
decisive is that the execution of the attack made it
impossible for the victim to defend himself.
We likewise disagree with the appellants argument that
there was no conspiracy because there was no prior
agreement to commit the crime, that the prosecutions
evidence only proved their presence at the scene which is
insufficient, and that only three of the assailants stoned the
victim while the two others ran away.
It is well-settled that conspiracy exists when two or more
persons come to an agreement concerning the commission of
a crime and decide to commit it. [19] Proof of the agreement
need not rest on direct evidence, as the same may be
inferred from the conduct of the parties indicating a common
understanding among them with respect to the commission
of the offense.[20] It is not necessary to show that two or more
persons met together and entered into an explicit agreement
setting out the details of an unlawful scheme or the details
by which an illegal objective is to be carried out. The rule is
that conviction is proper upon proof that the accused acted in
concert, each of them doing his part to fulfill the common
design to kill the victim. In such case, the act of one becomes
the act of all, and each of the accused will thereby be
deemed equally guilty of the crime committed.[21]
83 of 94

In the case at bar, Bebot and the Tanod, Mendez, both

saw the five appellants at the scene of the crime. Although
Bebot testified that he only saw Musa, Manjares and Lleno
actually hurl stones at the victim, he declared that Mabini
and Reolo were standing behind them and they were holding
stones. On the other hand, Mendez averred that when he
shouted, all of them immediately fled. Their physical
presence at the scene of the crime, their being armed with
stones and their simultaneous flight all manifest a common
design and a unity of purpose and action leading to the
indubitable conclusion that they acted in conspiracy.
Likewise, the trial court correctly rejected appellant
Musas theory of self-defense. The medical certificate shows
that Musa suffered only abrasions which could not have been
caused by the lead pipes allegedly used by the Marifosque
brothers in assaulting him. Where an accused invokes selfdefense to escape criminal liability, it becomes incumbent
upon him to prove by clear and convincing evidence the
attendance of such justifying circumstance; otherwise,
having admitted the killing, conviction is inescapable. [22]

Clearly, we find no compelling reason to depart from the

factual findings of the trial court that appellants, in
conspiracy with one another, committed the crime of Murder
qualified by treachery.
At the time of the commission of the crime in 1988, the
penalty prescribed for Murder under Article 248 of the
Revised Penal Code was reclusion temporal in its maximum
period to death.[25] There being no aggravating or mitigating
circumstance attending the commission of the crime, the
penalty shall be imposed in its medium period reclusion
perpetua.
In view of the privileged mitigating circumstance of
minority of appellant Angelo Mabini, the penalty next lower in
degree shall be imposed in its proper period, pursuant to
Article 68, paragraph (2) of the Revised Penal Code, which
is prision
mayor maximum
to reclusion
temporal medium. Since no modifying circumstance was
appreciated,
the
medium
period
shall
be
imposed, i.e., reclusion temporal minimum, or twelve (12)
years and one (1) day to fourteen (14) years and eight (8)
months.

It must be noted that appellants conviction was based on

the positive identification made by the prosecution
Applying the Indeterminate Sentence Law, appellant
witnesses. Bebot
clearly
and
categorically
identified
Mabini
shall be entitled to a minimum term to be taken from
appellants, whom he recognized as residents of the same
the penalty next lower in degree, which is prision
locality. His testimony was corroborated by Mendez, who saw
correccionalmaximum to prision mayor medium, ranging
the faces of the five appellants near the victim after the
from four (4) years, two (2) months and one (1) day to ten
assault. As there was no indication that the prosecution
(10) years. Hence, the trial court erred in imposing the
witnesses were moved by any improper motive, the
maximum term of the indeterminate penalty. Consistent with
presumption is that they were not so moved and their
our ruling in People v. Paredes,[26] appellant Angelo Mabini is
testimonies must be given full faith and credence.
[23]
hereby sentenced to suffer the indeterminate prison term of
Moreover, it is basic that this Court will not interfere with
four (4) years, ten (10) months and twenty (20) days
the trial courts assessment of the credibility of witnesses,
of prision correccional, as minimum, to twelve (12) years,
absent any indication that some material fact was overlooked
[24]
or neglected.
Page 84 of 94

four (4) months and ten (10) days of reclusion temporal, as

maximum.

= 2/3 [(80-30)] x P20,955.60 - 50%

= 33.33 x P20,955.60 - 50%

The trial courts award of civil indemnity in the amount of

P50,000.00 is affirmed. Considering the attendance of the
qualifying circumstance of treachery, the amount of
P25,000.00 is further awarded to the heirs of the victim as
exemplary damages. In People v Catubig,[27] we ruled that
insofar as the civil aspect of the crime is concerned,
exemplary damages in the amount of P25,000.00 is
recoverable if there is present an aggravating circumstance,
whether qualifying or ordinary, in the commission of the
crime.[28] As regards the award of moral damages, the
amount of P20,000.00 should be increased to P50,000.00, in
line with prevailing jurisprudence.[29]
Under Article 2206 of the Civil Code, appellants shall be
liable for the loss of the earning capacity of the
deceased. Indemnification for loss of earning capacity
partakes of the nature of actual damages which must be duly
proven.[30] As shown by the victims service record,[31] he was
holding the position of Supervising Civil Engineering
Draftsman at the Department of Public Works and Highway
(Region V, Legazpi City) when he died at the age of 30 on July
18, 1988.[32] His salary then was P58.21 per day, hence, his
gross annual income would be P20,955.60. Using the
American Expectancy Table of Mortality, the award of
damages representing loss of earning capacity should be
P349,225.07, computed as follows:

= 33.33 x [P20, 955.60 - 10,477.80]

= 33.33 x P10,477.80
= P349,225.07
WHEREFORE, in view of all the foregoing, the decision of
the Regional Trial Court of Sorsogon, Sorsogon, Branch 52, in
Criminal Case No. 2540, convicting appellants Felipe Musa Jr.,
Allan Reolo, Randy Lleno and Angelo Mabini of the crime of
Murder is AFFIRMED with MODIFICATIONS. Appellants Felipe
Musa Jr., Allan Reolo, Randy Lleno are sentenced to suffer the
penalty of reclusion perpetua, while appellant Angelo Mabini
is sentenced to suffer the indeterminate penalty of four (4)
years, ten (10) months and twenty (20) days of prision
correccional,as minimum, to twelve (12) years, four (4)
months and ten (10) days of reclusion temporal, as
maximum. All the appellants are ordered to pay, jointly and
severally, the heirs of the deceased, Zaldy Marifosque, the
sums of P50,000.00 as civil indemnity, P50,000.00 as moral
damages,
P25,000.00
as
exemplary
damages
and
P349,225.07 as actual damages for loss of earning capacity.
SO ORDERED.

Net = Life expectancy x Gross Annual Income - Living

expenses
Earning [2/3 (80 age at death)] (GAI) 50% of GAI)
Capacity
Page 85 of 94

LEONARDO-DE CASTRO,
BRION, and
PERALTA, JJ.
ALBERTO ROMULO, in his capacity as Secretary of Foreign Affairs;
RAUL GONZALEZ, in his capacity as Secretary of Justice; EDUARDO
ERMITA, in his capacity as Executive Secretary; RONALDO PUNO, in
his capacity as Secretary of the Interior and Local Government;
SERGIO APOSTOL, in his capacity as Presidential Legal Counsel; and
L/CPL. DANIEL SMITH,
Respondents.
X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

JOVITO R. SALONGA, WIGBERTO G.R. No. 176051

E. TAADA, JOSE DE LA RAMA,
EMILIO C. CAPULONG, H. HARRY
L. ROQUE, JR., FLORIN HILBAY,
and BENJAMIN POZON,
Petitioners,
EN BANC
SUZETTE NICOLAS y SOMBILON, G.R. No. 175888
Petitioner,
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
- versus - CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,

- versus DANIEL SMITH, SECRETARY RAUL GONZALEZ, PRESIDENTIAL LEGAL

COUNSEL SERGIO APOSTOL, SECRETARY RONALDO PUNO,
SECRETARY ALBERTO ROMULO, The Special 16th Division of the
COURT OF APPEALS, and all persons acting in their capacity,
Respondents.
X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X
BAGONG ALYANSANG MAKABAYAN G.R. No. 176222
(BAYAN), represented by Dr. Carol Araullo; GABRIELA, represented
by Emerenciana de Jesus; BAYAN MUNA, represented by Rep. Satur
Ocampo; GABRIELA WOMENS PARTY, represented by Rep. Liza
Maza; KILUSANG MAYO UNO (KMU), represented by Elmer Labog;
KILUSANG MAGBUBUKID NG PILIPINAS (KMP), represented by Willy
Marbella; LEAGUE OF FILIPINO STUDENTS (LFS), represented by
Vencer Crisostomo; and THE PUBLIC INTEREST LAW CENTER,
represented by Atty. Rachel Pastores,

Page 86 of 94

Petitioners,
- versus PRESIDENT GLORIA MACAPAGAL-ARROYO, in her capacity as
concurrent Defense Secretary, EXECUTIVE SECRETARY EDUARDO
ERMITA, FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, JUSTICE
SECRETARY RAUL GONZALEZ, AND INTERIOR AND LOCAL
GOVERNMENT SECRETARY RONALDO PUNO,
Respondents. Promulgated:
February 11, 2009
X ---------------------------------------------------------------------------------------- X
DECISION
AZCUNA, J.:
These are petitions for certiorari, etc. as special civil actions and/or
for review of the Decision of the Court of Appeals in Lance Corporal
Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in CA-G.R. SP No.
97212, dated January 2, 2007.

helping one another, with lewd design and by means of force,

threat and intimidation, with abuse of superior strength and taking
advantage of the intoxication of the victim, did then and there
willfully, unlawfully and feloniously sexually abuse and have sexual
intercourse with or carnal knowledge of one Suzette S. Nicolas, a
22-year old unmarried woman inside a Starex Van with Plate No.
WKF-162, owned by Starways Travel and Tours, with Office address
at 8900 P. Victor St., Guadalupe, Makati City, and driven by accused
Timoteo L. Soriano, Jr., against the will and consent of the said
Suzette S. Nicolas, to her damage and prejudice.
CONTRARY TO LAW.[1]
Pursuant to the Visiting Forces Agreement (VFA) between the
Republic of the Philippines and the United States, entered into
on February 10, 1998, the United States, at its request, was
granted custody of defendant Smith pending the proceedings.
During the trial, which was transferred from the Regional Trial Court
(RTC) of Zambales to the RTC of Makati for security reasons, the
United States Government faithfully complied with its undertaking
to bring defendant Smith to the trial court every time his presence
was required.
On December 4, 2006, the RTC of Makati, following the end of the
trial, rendered its Decision, finding defendant Smith guilty, thus:

The facts are not disputed.

Respondent Lance Corporal (L/CPL) Daniel Smith is a member of
the United States Armed Forces. He was charged with the crime of
rape committed against a Filipina, petitioner herein, sometime
on November 1, 2005, as follows:
The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian
Carpentier, Dominic Duplantis, Keith Silkwood and Timoteo L.
Soriano, Jr. of the crime of Rape under Article 266-A of the Revised
Penal Code, as amended by Republic Act 8353, upon a complaint
under oath filed by Suzette S. Nicolas, which is attached hereto and
made an integral part hereof as Annex A, committed as follows:
That on or about the First (1st) day of November 2005, inside the
Subic Bay Freeport Zone, Olongapo City and within the jurisdiction
of this Honorable Court, the above-named accuseds (sic), being
then members of the United States Marine Corps, except Timoteo L.
Soriano, Jr., conspiring, confederating together and mutually

WHEREFORE, premises considered, for failure of the prosecution to

adduce sufficient evidence against accused S/SGT. CHAD BRIAN
CARPENTER, L/CPL. KEITH SILKWOOD AND L/CPL. DOMINIC
DUPLANTIS, all of the US Marine Corps assigned at the USS Essex,
are hereby ACQUITTED to the crime charged.
The prosecution having presented sufficient evidence against
accused L/CPL. DANIEL J. SMITH, also of the US Marine Corps at the
USS Essex, this Court hereby finds him GUILTY BEYOND
REASONABLE DOUBT of the crime of RAPE defined under Article
266-A, paragraph 1 (a) of the Revised Penal Code, as amended by
R.A. 8353, and, in accordance with Article 266-B, first paragraph
thereof, hereby sentences him to suffer the penalty of reclusion
perpetua together with the accessory penalties provided for under
Article 41 of the same Code.

Page 87 of 94

Pursuant to Article V, paragraph No. 10, of the Visiting Forces

Agreement entered into by the Philippines and the United States,
accused L/CPL. DANIEL J. SMITH shall serve his sentence in the
facilities that shall, thereafter, be agreed upon by appropriate
Philippine and United States authorities. Pending agreement on
such facilities, accused L/CPL. DANIEL J. SMITH is hereby
temporarily committed to the Makati City Jail.
Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify
complainant SUZETTE S. NICOLAS in the amount of P50,000.00 as
compensatory damages plus P50,000.00 as moral damages.
SO ORDERED.[2]

The Department of Foreign Affairs of the Republic of

the Philippines and the Embassy of the United States of
America agree that, in accordance with the Visiting Forces
Agreement signed between the two nations, upon transfer of Lance
Corporal Daniel J. Smith, United States Marine Corps, from the
Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG)
Building, U.S. Embassy Compound in a room of approximately 10 x
12 square feet. He will be guarded round the clock by U.S. military
personnel. The Philippine police and jail authorities, under the
direct supervision of the Philippine Department of Interior and Local
Government (DILG) will have access to the place of detention to
ensure the United States is in compliance with the terms of the VFA.
The matter was brought before the Court of Appeals which decided
on January 2, 2007, as follows:

As a result, the Makati court ordered Smith detained at

the Makati jail until further orders.
On December 29, 2006, however, defendant Smith was taken out
of the Makati jail by a contingent of Philippine law enforcement
agents, purportedly acting under orders of the Department of the
Interior and Local Government, and brought to a facility for
detention under the control of the United States government,
provided for under new agreements between the Philippines and
the United States, referred to as the Romulo-Kenney Agreement of
December 19, 2006 which states:
The Government of the Republic of the Philippines and the
Government of the United States of America agree that, in
accordance with the Visiting Forces Agreement signed between our
two nations, Lance Corporal Daniel J. Smith, United States Marine
Corps, be returned to U.S. military custody at the U.S. Embassy in
Manila.
(Sgd.) KRISTIE A. KENNEY (Sgd.) ALBERTO G. ROMULO
Representative of the United States Representative of the Republic
of America of the Philippines
DATE: 12-19-06 DATE: December 19, 2006__

WHEREFORE, all the foregoing considered, we resolved to DISMISS

the petition for having become moot.[3]
Hence, the present actions.
The petitions were heard on oral arguments on September 19,
2008, after which the parties submitted their memoranda.
Petitioners contend that the Philippines should have custody of
defendant L/CPL Smith because, first of all, the VFA is void and
unconstitutional.
This issue had been raised before, and this Court resolved in favor
of the constitutionality of the VFA. This was in Bayan v. Zamora,
[4]
brought by Bayan, one of petitioners in the present cases.
Against the barriers of res judicata vis--vis Bayan, and stare
decisis vis--vis all the parties, the reversal of the previous ruling is
sought on the ground that the issue is of primordial importance,
involving the sovereignty of the Republic, as well as a specific
mandate of the Constitution.
The provision of the Constitution is Art. XVIII, Sec. 25 which states:

and the Romulo-Kenney Agreement of December 22, 2006 which

states:

Sec. 25. After the expiration in 1991 of the Agreement between the
Philippines and the United States of America concerning Military
Bases, foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in

Page 88 of 94

by the Senate and, when the Congress so requires, ratified by a

majority of the votes cast by the people in a national referendum
held for that purpose, and recognized as a treaty by the other
contracting State.
The reason for this provision lies in history and the Philippine
experience in regard to the United States military bases in the
country.
It will be recalled that under the Philippine Bill of 1902, which laid
the basis for the Philippine Commonwealth and, eventually, for the
recognition of independence, the United States agreed to cede to
the Philippines all the territory it acquired from Spain under the
Treaty of Paris, plus a few islands later added to its realm, except
certain naval ports and/or military bases and facilities, which the
United States retained for itself.
This is noteworthy, because what this means is
that Clark and Subic and the other places in the Philippines covered
by the RP-US Military Bases Agreement of 1947 were not Philippine
territory, as they were excluded from the cession and retained by
the US.
Accordingly, the Philippines had no jurisdiction over these bases
except to the extent allowed by the United States. Furthermore, the
RP-US Military Bases Agreement was never advised for ratification
by the United States Senate, a disparity in treatment, because
the Philippines regarded it as a treaty and had it concurred in by
our Senate.
Subsequently, the United States agreed to turn over these bases to
the Philippines; and with the expiration of the RP-US Military Bases
Agreement in 1991, the territory covered by these bases were
finally ceded to the Philippines.
To prevent a recurrence of this experience, the provision in question
was adopted in the 1987 Constitution.
The provision is thus designed to ensure that any agreement
allowing the presence of foreign military bases, troops or facilities
in Philippine territory shall be equally binding on the Philippines and
the foreign sovereign State involved. The idea is to prevent a
recurrence of the situation in which the terms and conditions

governing the presence of foreign armed forces in our territory

were binding upon us but not upon the foreign State.
Applying the provision to the situation involved in these cases, the
question is whether or not the presence of US Armed Forces in
Philippine territory pursuant to the VFA is allowed under a treaty
duly concurred in by the Senate xxx and recognized as a treaty by
the other contracting State.
This Court finds that it is, for two reasons.
First, as held in Bayan v. Zamora,[5] the VFA was duly concurred in
by the Philippine Senate and has been recognized as a treaty by
the United States as attested and certified by the duly authorized
representative of the United States government.
The fact that the VFA was not submitted for advice and consent of
the United States Senate does not detract from its status as a
binding international agreement or treaty recognized by the said
State. For this is a matter of internal United States law. Notice can
be taken of the internationally known practice by the United
States of submitting to its Senate for advice and consent
agreements that are policymaking in nature, whereas those that
carry out or further implement these policymaking agreements are
merely submitted to Congress, under the provisions of the so-called
CaseZablocki Act, within sixty days from ratification.[6]
The second reason has to do with the relation between the VFA and
the RP-US Mutual Defense Treaty of August 30, 1951. This earlier
agreement was signed and duly ratified with the concurrence of
both the Philippine Senate and the United States Senate.
The RP-US Mutual Defense Treaty states:[7]
MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF
THE PHILIPPINES AND THE UNITED STATES OF AMERICA. Signed
at Washington, August 30, 1951.
The Parties of this Treaty
Reaffirming their faith in the purposes and principles of the Charter
of the United Nations and their desire to live in peace with all
peoples and all governments, and desiring to strengthen the fabric
of peace in the Pacific area.

Page 89 of 94

Recalling with mutual pride the historic relationship which brought

their two peoples together in a common bond of sympathy and
mutual ideals to fight side-by-side against imperialist aggression
during the last war.
Desiring to declare publicly and formally their sense of unity and
their common determination to defend themselves against external
armed attack, so that no potential aggressor could be under the
illusion that either of them stands alone in the Pacific area.
Desiring further to strengthen their present efforts for collective
defense for the preservation of peace and security pending the
development of a more comprehensive system of regional security
in the Pacific area.
Agreeing that nothing in this present instrument shall be
considered or interpreted as in any way or sense altering or
diminishing any existing agreements or understandings between
the Republic of the Philippines and the United States of America.
Have agreed as follows:
ARTICLE I. The parties undertake, as set forth in the Charter of the
United Nations, to settle any international disputes in which they
may be involved by peaceful means in such a manner that
international peace and security and justice are not endangered
and to refrain in their international relation from the threat or use of
force in any manner inconsistent with the purposes of the United
Nations.
ARTICLE II. In order more effectively to achieve the objective of this
Treaty, the Parties separately and jointly by self-help and mutual
aid will maintain and develop their individual and collective
capacity to resist armed attack.
ARTICLE III. The Parties, through their Foreign Ministers or their
deputies, will consult together from time to time regarding the
implementation of this Treaty and whenever in the opinion of either
of them the territorial integrity, political independence or security
of either of the Parties is threatened by external armed attack in
the Pacific.
ARTICLE IV. Each Party recognizes that an armed attack in the
Pacific area on either of the parties would be dangerous to its own

peace and safety and declares that it would act to meet the
common dangers in accordance with its constitutional processes.
Any such armed attack and all measures taken as a result thereof
shall be immediately reported to the Security Council of the United
Nations. Such measures shall be terminated when the Security
Council has taken the measures necessary to restore and maintain
international peace and security.
ARTICLE V. For the purpose of Article IV, an armed attack on either
of the Parties is deemed to include an armed attack on the
metropolitan territory of either of the Parties, or on the island
territories under its jurisdiction in the Pacific Ocean, its armed
forces, public vessels or aircraft in the Pacific.
ARTICLE VI. This Treaty does not affect and shall not be interpreted
as affecting in any way the rights and obligations of the Parties
under the Charter of the United Nations or the responsibility of the
United Nations for the maintenance of international peace and
security.
ARTICLE VII. This Treaty shall be ratified by the Republic of
the Philippines and the United Nations of America in accordance
with their respective constitutional processes and will come into
force when instruments of ratification thereof have been exchanged
by them at Manila.
ARTICLE VIII. This Treaty shall remain in force indefinitely. Either
Party may terminate it one year after notice has been given to the
other party.
IN WITHNESS WHEREOF the undersigned Plenipotentiaries have
signed this Treaty.
DONE in duplicate at Washington this thirtieth day of August, 1951.
For the Republic of the Philippines:
(Sgd.) CARLOS P. ROMULO
(Sgd.) JOAQUIN M. ELIZALDE
(Sgd.) VICENTE J. FRANCISCO
(Sgd.) DIOSDADO MACAPAGAL
For the United States of America:
(Sgd.) DEAN ACHESON

Page 90 of 94

(Sgd.) JOHN FOSTER DULLES

(Sgd.) TOM CONNALLY
(Sgd.) ALEXANDER WILEY[8]

through the VFA is a presence allowed under the RP-US Mutual

Defense Treaty. Since the RP-US Mutual Defense Treaty itself has
been ratified and concurred in by both the Philippine Senate and
the US Senate, there is no violation of the Constitutional provision
resulting from such presence.

Clearly, therefore, joint RP-US military exercises for the purpose of

developing the capability to resist an armed attack fall squarely
under the provisions of the RP-US Mutual Defense Treaty. The VFA,
which is the instrument agreed upon to provide for the joint RP-US
military exercises, is simply an implementing agreement to the
main RP-US Military Defense Treaty. The Preamble of the VFA states:
The Government of the United States of America and the
Government of the Republic of the Philippines,
Reaffirming their faith in the purposes and principles of the Charter
of the United Nations and their desire to strengthen international
and regional security in the Pacific area;
Reaffirming their obligations under the Mutual Defense Treaty
of August 30, 1951;
Noting that from time to time elements of the United States armed
forces may visit the Republic of the Philippines;
Considering that cooperation between the United States and the
Republic of the Philippines promotes their common security
interests;
Recognizing the desirability of defining the treatment of United
States personnel visiting the Republic of the Philippines;
Have agreed as follows:[9]
Accordingly, as an implementing agreement of the RP-US Mutual
Defense Treaty, it was not necessary to submit the VFA to the US
Senate for advice and consent, but merely to the US Congress
under the CaseZablocki Act within 60 days of its ratification. It is for
this reason that the US has certified that it recognizes the VFA as a
binding international agreement, i.e., a treaty, and this
substantially complies with the requirements of Art. XVIII, Sec. 25 of
our Constitution.[10]
The provision of Art. XVIII, Sec. 25 of the Constitution, is complied
with by virtue of the fact that the presence of the US Armed Forces

The VFA being a valid and binding agreement, the parties are
required as a matter of international law to abide by its terms and
provisions.
The VFA provides that in cases of offenses committed by the
members of the US Armed Forces in the Philippines, the following
rules apply:
Article V
Criminal Jurisdiction
xxx
6. The custody of any United States personnel over whom the
Philippines is to exercise jurisdiction shall immediately reside with
United States military authorities, if they so request, from the
commission of the offense until completion of all judicial
proceedings. United States military authorities shall, upon formal
notification by the Philippine authorities and without delay, make
such personnel available to those authorities in time for any
investigative or judicial proceedings relating to the offense with
which the person has been charged. In extraordinary cases, the
Philippine Government shall present its position to the United
States Government regarding custody, which the United States
Government shall take into full account. In the event Philippine
judicial proceedings are not completed within one year, the United
States shall be relieved of any obligations under this
paragraph. The one year period will not include the time necessary
to appeal. Also, the one year period will not include any time during
which scheduled trial procedures are delayed because United
States authorities, after timely notification by Philippine authorities
to arrange for the presence of the accused, fail to do so.
Petitioners contend that these undertakings violate another
provision of the Constitution, namely, that providing for the
exclusive power of this Court to adopt rules of procedure for all
courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to
allow the transfer of custody of an accused to a foreign power is to
provide for a different rule of procedure for that accused, which

Page 91 of 94

also violates the equal protection clause of the Constitution (Art. III,
Sec. 1.).
Again, this Court finds no violation of the Constitution.
The equal protection clause is not violated, because there is a
substantial basis for a different treatment of a member of a foreign
military armed forces allowed to enter our territory and all other
accused.[11]
The rule in international law is that a foreign armed forces allowed
to enter ones territory is immune from local jurisdiction, except to
the extent agreed upon. The Status of Forces Agreements involving
foreign military units around the world vary in terms and
conditions, according to the situation of the parties involved, and
reflect their bargaining power. But the principle remains, i.e., the
receiving State can exercise jurisdiction over the forces of the
sending State only to the extent agreed upon by the parties.[12]
As a result, the situation involved is not one in which the power of
this Court to adopt rules of procedure is curtailed or violated, but
rather one in which, as is normally encountered around the world,
the laws (including rules of procedure) of one State do not extend
or apply except to the extent agreed upon to subjects of another
State due to the recognition of extraterritorial immunity given to
such bodies as visiting foreign armed forces.
Nothing in the Constitution prohibits such agreements recognizing
immunity from jurisdiction or some aspects of jurisdiction (such as
custody), in relation to long-recognized subjects of such immunity
like Heads of State, diplomats and members of the armed forces
contingents of a foreign State allowed to enter another States
territory. On the contrary, the Constitution states that
the Philippines adopts the generally accepted principles of
international law as part of the law of the land. (Art. II, Sec. 2).
Applying, however, the provisions of VFA, the Court finds that there
is a different treatment when it comes to detention as against
custody. The moment the accused has to be detained, e.g., after
conviction, the rule that governs is the following provision of the
VFA:
Article V
Criminal Jurisdiction

xxx
Sec. 10. The confinement or detention by Philippine authorities
of United States personnel shall be carried out in facilities agreed
on by appropriate Philippines and United Statesauthorities. United
States personnel serving sentences in the Philippines shall have the
right to visits and material assistance.
It is clear that the parties to the VFA recognized the difference
between custody during the trial and detention after conviction,
because they provided for a specific arrangement to cover
detention. And this specific arrangement clearly states not only
that the detention shall be carried out in facilities agreed on by
authorities of both parties, but also that the detention shall be by
Philippine authorities. Therefore, the Romulo-Kenney Agreements of
December 19 and 22, 2006, which are agreements on the detention
of the accused in the United States Embassy, are not in accord with
the VFA itself because such detention is not by Philippine
authorities.
Respondents should therefore comply with the VFA and negotiate
with representatives of the United States towards an agreement on
detention facilities under Philippine authorities as mandated by Art.
V, Sec. 10 of the VFA.
Next, the Court addresses the recent decision of the United States
Supreme Court in Medellin v. Texas ( 552 US ___ No. 06-984, March
25, 2008), which held that treaties entered into by the United
States are not automatically part of their domestic law unless these
treaties are self-executing or there is an implementing legislation to
make them enforceable.
On February 3, 2009, the Court issued a Resolution, thus:
G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et
al.); G.R. No. 176051 (Jovito R. Salonga, et al. v. Daniel Smith, et
al.); and G.R. No. 176222 (Bagong Alyansang Makabayan [BAYAN],
et al. v. President Gloria Macapagal-Arroyo, et al.).
The parties, including the Solicitor General, are required to submit
within three (3) days a Comment/Manifestation on the following
points:
1.
What is the implication on the RP-US Visiting Forces
Agreement of the recent US Supreme Court decision in Jose Ernesto

Page 92 of 94

Medellin v. Texas, dated March 25, 2008, to the effect that treaty
stipulations that are not self-executory can only be enforced
pursuant to legislation to carry them into effect; and that, while
treaties may comprise international commitments, they are not
domestic law unless Congress has enacted implementing statutes
or the treaty itself conveys an intention that it be self-executory
and is ratified on these terms?
2.
Whether the VFA is enforceable in the US as domestic
law, either because it is self-executory or because there exists
legislation to implement it.
3.
Whether the RP-US Mutual Defense Treaty of August
30, 1951 was concurred in by the US Senate and, if so, is there
proof of the US Senate advice and consent resolution? Peralta, J., no
part.
After deliberation, the Court holds, on these points, as follows:

the US Congressional Record, 82ndCongress, Second Session, Vol.

98 Part 2, pp. 2594-2595.
The framers of the Constitution were aware that the application of
international law in domestic courts varies from country to country.
As Ward N. Ferdinandusse states in his Treatise, DIRECT
APPLICATION OF INTERNATIONAL CRIMINAL LAW IN NATIONAL
COURTS, some countries require legislation whereas others do not.
It was not the intention of the framers of the 1987 Constitution, in
adopting Article XVIII, Sec. 25, to require the other contracting
State to convert their system to achieve alignment and parity with
ours. It was simply required that the treaty be recognized as a
treaty by the other contracting State. With that, it becomes for both
parties a binding international obligation and the enforcement of
that obligation is left to the normal recourse and processes under
international law.

First, the VFA is a self-executing Agreement, as that term is defined

in Medellin itself, because the parties intend its provisions to be
enforceable, precisely because the Agreement is intended to carry
out obligations and undertakings under the RP-US Mutual Defense
Treaty. As a matter of fact, the VFA has been implemented and
executed, with the US faithfully complying with its obligation to
produce L/CPL Smith before the court during the trial.

Furthermore, as held by the US Supreme Court in Weinberger v.

Rossi,[13] an executive agreement is a treaty within the meaning of
that word in international law and constitutes enforceable domestic
law vis--vis the United States. Thus, the US Supreme Court
in Weinberger enforced the provisions of the executive agreement
granting preferential employment to Filipinos in the US Bases here.

Secondly, the VFA is covered by implementing legislation, namely,

the Case-Zablocki Act, USC Sec. 112(b), inasmuch as it is the very
purpose and intent of the US Congress that executive agreements
registered under this Act within 60 days from their ratification be
immediately implemented. The parties to these present cases do
not question the fact that the VFA has been registered under the
Case-Zablocki Act.

Accordingly, there are three types of treaties in the American

system:

In sum, therefore, the VFA differs from the Vienna Convention on

Consular Relations and the Avena decision of the International
Court of Justice (ICJ), subject matter of theMedellin decision. The
Convention and the ICJ decision are not self-executing and are not
registrable under the Case-Zablocki Act, and thus lack legislative
implementing authority.
Finally, the RP-US Mutual Defense Treaty was advised and
consented to by the US Senate on March 20, 1952, as reflected in

1.
Art. II, Sec. 2 treaties These are advised and consented
to by the US Senate in accordance with Art. II, Sec. 2 of
the US Constitution.
2.
ExecutiveCongressional Agreements: These are joint
agreements of the President and Congress and need not be
submitted to the Senate.
3.
Sole Executive Agreements. These are agreements
entered into by the President. They are to be submitted to Congress
within sixty (60) days of ratification under the provisions of the
Case-Zablocki Act, after which they are recognized by the Congress
and may be implemented.

Page 93 of 94

As regards the implementation of the RP-US Mutual Defense Treaty,

military aid or assistance has been given under it and this can only
be done through implementing legislation. The VFA itself is another
form of implementation of its provisions.
WHEREFORE, the petitions are PARTLY GRANTED, and the Court of
Appeals Decision in CA-G.R. SP No. 97212 dated January 2,
2007 is MODIFIED. The Visiting Forces Agreement (VFA) between
the Republic of the Philippines and the United States, entered into
on February 10, 1998, is UPHELD as constitutional, but the RomuloKenney Agreements of December 19 and 22, 2006
are DECLARED not in accordance with the VFA, and respondent
Secretary of Foreign Affairs is hereby ordered to forthwith negotiate
with the United States representatives for the appropriate
agreement on detention facilities under Philippine authorities as

provided in Art. V, Sec. 10 of the VFA, pending which the status

quo shall be maintained until further orders by this Court.
The Court of Appeals is hereby directed to resolve without delay the
related matters pending therein, namely, the petition for contempt
and the appeal of L/CPL Daniel Smith from the judgment of
conviction.
No costs.
SO ORDERED.

Page 94 of 94