G.R. No.

181409, February 11, 2010

INTESTATE ESTATE OF MANOLITA GONZALES VDA. DE CARUNGCONG,

REPRESENTED BY MEDIATRIX CARUNGCONG, AS ADMINISTRATRIX,
PETITIONER, VS. PEOPLE OF THE PHILIPPINES AND WILLIAM SATO,
RESPONDENTS.

DECISION

CORONA, J.:

Article 332 of the Revised Penal Code provides:

ART. 332. Persons exempt from criminal liability. - No criminal, but only civil liability
shall result from the commission of the crime of theft, swindling, or malicious mischief
committed or caused mutually by the following persons:

1. Spouses, ascendants and descendants, or relatives by affinity in the same line;

2. The widowed spouse with respect to the property which belonged to the deceased
spouse before the same shall have passed into the possession of another; and

3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together.

The exemption established by this article shall not be applicable to strangers participating
in the commission of the crime. (emphasis supplied)

For purposes of the aforementioned provision, is the relationship by affinity created

between the husband and the blood relatives of his wife (as well as between the wife and
the blood relatives of her husband) dissolved by the death of one spouse, thus ending the
marriage which created such relationship by affinity? Does the beneficial application of
Article 332 cover the complex crime of estafa thru falsification?

Mediatrix G. Carungcong, in her capacity as the duly appointed administratrix[1] of

petitioner intestate estate of her deceased mother Manolita Gonzales vda. de Carungcong,
filed a complaint-affidavit[2] for estafa against her brother-in-law, William Sato, a
Japanese national. Her complaint-affidavit read:

I, MEDIATRIX CARUNGCONG Y GONZALE[S], Filipino, of legal age, single, and

resident of Unit 1111, Prince Gregory Condominium, 105 12thAvenue, Cubao, Quezon
City, after being duly sworn, depose and state that:

1. I am the duly appointed Administratrix of the Intestate Estate of Manolita Carungcong

Y Gonzale[s], docketed as Spec. Procs. No. [Q]-95-23621[,] Regional Trial Court of
Quezon City, Branch 104, being one (1) of her surviving daughters. Copy of the Letters
of Administration dated June 22, 1995 is hereto attached as Annex "A" to form an
integral part hereof.

2. As such Administratrix, I am duty bound not only to preserve the properties of the
Intestate Estate of Manolita Carungcong Y Gonzale[s], but also to recover such funds
and/or properties as property belonging to the estate but are presently in the possession or
control of other parties.

3. After my appointment as Administratrix, I was able to confer with some of the children
of my sister Zenaida Carungcong Sato[,] who predeceased our mother Manolita
Carungcong Y Gonzales, having died in Japan in 1991.

4. In my conference with my nieces Karen Rose Sato and Wendy Mitsuko Sato, age[d]
27 and 24 respectively, I was able to learn that prior to the death of my mother Manolita
Carungcong Y Gonzale[s], [s]pecifically on o[r] about November 24, 1992, their father
William Sato, through fraudulent misrepresentations, was able to secure the signature and
thumbmark of my mother on a Special Power of Attorney whereby my niece Wendy
Mitsuko Sato, who was then only twenty (20) years old, was made her attorney-in-fact, to
sell and dispose four (4) valuable pieces of land in Tagaytay City. Said Special Power of
Attorney, copy of which is attached as ANNEX "A" of the Affidavit of Wendy Mitsuko
Sato, was signed and thumbmark[ed] by my mother because William Sato told her that
the documents she was being made to sign involved her taxes. At that time, my mother
was completely blind, having gone blind almost ten (10) years prior to November, 1992.

5. The aforesaid Special Power of Attorney was signed by my mother in the presence of
Wendy, my other niece Belinda Kiku Sato, our maid Mana Tingzon, and Governor
Josephine Ramirez who later became the second wife of my sister's widower William
Sato.

6. Wendy Mitsuko Sato attests to the fact that my mother signed the document in the
belief that they were in connection with her taxes, not knowing, since she was blind, that
the same was in fact a Special Power of Attorney to sell her Tagaytay properties.

7. On the basis of the aforesaid Special Power of Attorney, William Sato found buyers
for the property and made my niece Wendy Mitsuko Sato sign three (3) deeds of absolute
sale in favor of (a) Anita Ng (Doc. 2194, Page No. 41, Book No. V, Series of 1992 of
Notary Public Vicente B. Custodio), (b) Anita Ng (Doc. No. 2331, Page No. 68, Book
No. V, Series of 1992 of Notary Public Vicente B. Custodio) and (c) Ruby Lee Tsai
(Doc. No. II, Page No. 65, Book No. II, Series of 1993 of Notary Public Toribio D.
Labid). x x x

8. Per the statement of Wendy Mitsuko C. Sato, the considerations appearing on the
deeds of absolute sale were not the true and actual considerations received by her father
William Sato from the buyers of her grandmother's properties. She attests that Anita Ng
actually paid P7,000,000.00 for the property covered by TCT No. 3148 and
P7,034,000.00 for the property covered by TCT No. 3149. All the aforesaid proceeds
were turned over to William Sato who undertook to make the proper accounting thereof
to my mother, Manolita Carungcong Gonzale[s].

9. Again, per the statement of Wendy Mitsuko C. Sato, Ruby Lee Tsai paid
P8,000,000.00 for the property covered by Tax Declaration No. GR-016-0735, and the
proceeds thereof were likewise turned over to William Sato.

10. The considerations appearing on the deeds of sale were falsified as Wendy Mitsuko
C. Sato has actual knowledge of the true amounts paid by the buyers, as stated in her
Affidavit, since she was the signatory thereto as the attorney-in-fact of Manolita
Carungcong Y Gonzale[s].

11. Wendy was only 20 years old at the time and was not in any position to oppose or to
refuse her father's orders.

12. After receiving the total considerations for the properties sold under the power of
attorney fraudulently secured from my mother, which total P22,034,000.00, William Sato
failed to account for the same and never delivered the proceeds to Manolita Carungcong
Y Gonzale[s] until the latter died on June 8, 1994.

13. Demands have been made for William Sato to make an accounting and to deliver the
proceeds of the sales to me as Administratrix of my mother's estate, but he refused and
failed, and continues to refuse and to fail to do so, to the damage and prejudice of the
estate of the deceased Manolita Carungcong Y Gonzale[s] and of the heirs which include
his six (6) children with my sister Zenaida Carungcong Sato. x x x[3]

Wendy Mitsuko Sato's supporting affidavit and the special power of attorney allegedly
issued by the deceased Manolita Gonzales vda. de Carungcong in favor of Wendy were
attached to the complaint-affidavit of Mediatrix.

In a resolution dated March 25, 1997, the City Prosecutor of Quezon City dismissed the
complaint.[4] On appeal, however, the Secretary of Justice reversed and set aside the
resolution dated March 25, 1997 and directed the City Prosecutor of Quezon City to file
an Information against Sato for violation of Article 315, paragraph 3(a) of the Revised
Penal Code.[5] Thus, the following Information was filed against Sato in the Regional
Trial Court of Quezon City, Branch 87:[6]

INFORMATION

The undersigned accuses WILLIAM SATO of the crime of ESTAFA under Article 315[,]
par. 3(a) of the Revised Penal Code, committed as follows:

That on or about the 24th day of November, 1992, in Quezon City, Philippines, the above-
named accused, by means of deceit, did, then and there, wil[l]fully, unlawfully and
feloniously defraud MANOLITA GONZALES VDA. DE CARUNGCONG in the
following manner, to wit: the said accused induced said Manolita Gonzales Vda. De
Carungcong[,] who was already then blind and 79 years old[,] to sign and thumbmark a
special power of attorney dated November 24, 1992 in favor of Wendy Mitsuko C. Sato,
daughter of said accused, making her believe that said document involved only her taxes,
accused knowing fully well that said document authorizes Wendy Mitsuko C. Sato, then
a minor, to sell, assign, transfer or otherwise dispose of to any person or entity of her
properties all located at Tagaytay City, as follows:

1. One Thousand Eight Hundred Seven(ty) One (1,871) square meters more or less
and covered by T.C.T. No. 3147;

2. Five Hundred Forty (540) square meters more or less and covered by T.C.T. No.
3148 with Tax Declaration No. GR-016-0722, Cadastral Lot No. 7106;

3. Five Hundred Forty (540) square meters more or less and covered by T.C.T. No.
3149 with Tax Declaration No. GR-016-0721, Cadastral Lot No. 7104;

4. Eight Hundred Eighty Eight (888) square meters more or less with Tax
Declaration No. GR-016-1735, Cadastral Lot No. 7062;

registered in the name of Manolita Gonzales Vda. De Carungcong, and once in the
possession of the said special power of attorney and other pertinent documents, said
accused made Wendy Mitsuko Sato sign the three (3) Deeds of Absolute Sale covering
Transfer Certificate of Title [TCT] No. 3148 for P250,000.00, [TCT] No. 3149 for
P250,000.00 and [Tax Declaration] GR-016-0735 for P650,000.00 and once in
possession of the proceeds of the sale of the above properties, said accused, misapplied,
misappropriated and converted the same to his own personal use and benefit, to the
damage and prejudice of the heirs of Manolita Gonzales Vda. De Carungcong who died
in 1994.

Contrary to law.[7]

Subsequently, the prosecution moved for the amendment of the Information so as to

increase the amount of damages from P1,150,000, the total amount stated in the deeds of
sale, to P22,034,000, the actual amount received by Sato.

Sato moved for the quashal of the Information, claiming that under Article 332 of the
Revised Penal Code, his relationship to the person allegedly defrauded, the deceased
Manolita who was his mother-in-law, was an exempting circumstance.

The prosecution disputed Sato's motion in an opposition dated March 29, 2006.

In an order dated April 17, 2006,[8] the trial court granted Sato's motion and ordered the
dismissal of the criminal case:
The Trial Prosecutor's contention is that the death of the wife of the accused severed the
relationship of affinity between accused and his mother-in-law. Therefore, the mantle of
protection provided to the accused by the relationship is no longer obtaining.

A judicious and thorough examination of Article 332 of the Revised Penal Code
convinces this Court of the correctness of the contention of the [d]efense. While it is true
that the death of Zenaida Carungcong-Sato has extinguished the marriage of accused with
her, it does not erase the fact that accused and Zenaida's mother, herein complainant, are
still son[-in-law] and mother-in-law and they remained son[-in-law] and mother-in-law
even beyond the death of Zenaida.

Article 332(1) of the Revised Penal Code, is very explicit and states no proviso. "No
criminal, but only civil liability[,] shall result from the commission of the crime of theft,
swindling or malicious mischief committed or caused mutually by xxx 1) spouses,
ascendants and descendants, or relatives by affinity in the same line."

Article 332, according to Aquino, in his Commentaries [to] Revised Penal Code,
preserves family harmony and obviates scandal, hence even in cases of theft and
malicious mischief, where the crime is committed by a stepfather against his stepson, by
a grandson against his grandfather, by a son against his mother, no criminal liability is
incurred by the accused only civil (Vicente Alavare, 52 Phil. 65; Adame, CA 40 OG
12th Supp. 63; Cristobal, 84 Phil. 473).

Such exempting circumstance is applicable herein.

WHEREFORE, finding the Motion to Quash Original Information meritorious, the same
is GRANTED and, as prayed for, case is hereby DISMISSED.

SO ORDERED.[9] (underlining supplied in the original)

The prosecution's motion for reconsideration[10] was denied in an order dated June 2,
2006.[11]

Dissatisfied with the trial court's rulings, the intestate estate of Manolita, represented by
Mediatrix, filed a petition for certiorari in the Court of Appeals[12] which, however, in a
decision[13] dated August 9, 2007, dismissed it. It ruled:

[W]e sustain the finding of [the trial court] that the death of Zenaida did not extinguish
the relationship by affinity between her husband, private respondent Sato, and her mother
Manolita, and does not bar the application of the exempting circumstance under Article
332(1) of the Revised Penal Code in favor of private respondent Sato.

We further agree with the submission of the [Office of the Solicitor General (OSG)] that
nothing in the law and/or existing jurisprudence supports the argument of petitioner that
the fact of death of Zenaida dissolved the relationship by affinity between Manolita and
private respondent Sato, and thus removed the protective mantle of Article 332 of the
Revised Penal Code from said private respondent; and that notwithstanding the death of
Zenaida, private respondent Sato remains to be the son-in-law of Manolita, and a brother-
in-law of petitioner administratrix. As further pointed out by the OSG, the filing of the
criminal case for estafa against private respondent Sato already created havoc among
members of the Carungcong and Sato families as private respondent's daughter Wendy
Mitsuko Sato joined cause with her aunt [Mediatrix] Carungcong y Gonzales, while two
(2) other children of private respondent, William Francis and Belinda Sato, took the side
of their father.

There is a dearth of jurisprudence and/or commentaries elaborating on the provision of

Article 332 of the Revised Penal Code. However, from the plain language of the law, it is
clear that the exemption from criminal liability for the crime of swindling (estafa) under
Article 315 of the Revised Penal Code applies to private respondent Sato, as son-in-law
of Manolita, they being "relatives by affinity in the same line" under Article 332(1) of the
same Code. We cannot draw the distinction that following the death of Zenaida in 1991,
private respondent Sato is no longer the son-in-law of Manolita, so as to exclude the
former from the exempting circumstance provided for in Article 332 (1) of the Revised
Penal Code.

Ubi lex non distinguit nec nos distinguere debemos. Basic is the rule in statutory
construction that where the law does not distinguish, the courts should not distinguish.
There should be no distinction in the application of law where none is indicated. The
courts could only distinguish where there are facts or circumstances showing that the
lawgiver intended a distinction or qualification. In such a case, the courts would merely
give effect to the lawgiver's intent. The solemn power and duty of the Court to interpret
and apply the law does not include the power to correct by reading into the law what is
not written therein.

Further, it is an established principle of statutory construction that penal laws are strictly
construed against the State and liberally in favor of the accused. Any reasonable doubt
must be resolved in favor of the accused. In this case, the plain meaning of Article 332
(1) of the Revised Penal Code's simple language is most favorable to Sato.[14]

The appellate court denied reconsideration.[15] Hence, this petition.

Petitioner contends that the Court of Appeals erred in not reversing the orders of the trial
court. It cites the commentary of Justice Luis B. Reyes in his book on criminal law that
the rationale of Article 332 of the Revised Penal Code exempting the persons mentioned
therein from criminal liability is that the law recognizes the presumed co-ownership of
the property between the offender and the offended party. Here, the properties
subject of the estafa case were owned by Manolita whose daughter, Zenaida Carungcong-
Sato (Sato's wife), died on January 28, 1991. Hence, Zenaida never became a co-owner
because, under the law, her right to the three parcels of land could have arisen only
after her mother's death. Since Zenaida predeceased her mother, Manolita, no such
right came about and the mantle of protection provided to Sato by the relationship
no longer existed.
Sato counters that Article 332 makes no distinction that the relationship may not be
invoked in case of death of the spouse at the time the crime was allegedly committed.
Thus, while the death of Zenaida extinguished her marriage with Sato, it did not dissolve
the son-in-law and mother-in-law relationship between Sato and Zenaida's mother,
Manolita.

For his part, the Solicitor General maintains that Sato is covered by the exemption from
criminal liability provided under Article 332. Nothing in the law and jurisprudence
supports petitioner's claim that Zenaida's death dissolved the relationship by affinity
between Sato and Manolita. As it is, the criminal case against Sato created havoc among
the members of the Carungcong and Sato families, a situation sought to be particularly
avoided by Article 332's provision exempting a family member committing theft, estafa
or malicious mischief from criminal liability and reducing his/her liability to the civil
aspect only.

The petition has merit.

The resolution of this case rests on the interpretation of Article 332 of the Revised Penal
Code. In particular, it calls for the determination of the following: (1) the effect of death
on the relationship by affinity created between a surviving spouse and the blood relatives
of the deceased spouse and (2) the extent of the coverage of Article 332.

Effect of Death on Relationship

By Affinity as Absolutory Cause

Article 332 provides for an absolutory cause[16] in the crimes of theft, estafa (or
swindling) and malicious mischief. It limits the responsibility of the offender to civil
liability and frees him from criminal liability by virtue of his relationship to the offended
party.

In connection with the relatives mentioned in the first paragraph, it has been held that
included in the exemptions are parents-in-law, stepparents and adopted children.[17] By
virtue thereof, no criminal liability is incurred by the stepfather who commits malicious
mischief against his stepson;[18] by the stepmother who commits theft against her
stepson;[19] by the stepfather who steals something from his stepson;[20] by the grandson
who steals from his grandfather;[21] by the accused who swindles his sister-in-law living
with him;[22] and by the son who steals a ring from his mother.[23]

Affinity is the relation that one spouse has to the blood relatives of the other spouse. It is
a relationship by marriage or a familial relation resulting from marriage.[24] It is a fictive
kinship, a fiction created by law in connection with the institution of marriage and family
relations.

If marriage gives rise to one's relationship by affinity to the blood relatives of one's
spouse, does the extinguishment of marriage by the death of the spouse dissolve the
relationship by affinity?

Philippine jurisprudence has no previous encounter with the issue that confronts us in this
case. That is why the trial and appellate courts acknowledged the "dearth of jurisprudence
and/or commentaries" on the matter. In contrast, in the American legal system, there are
two views on the subject. As one Filipino author observed:

In case a marriage is terminated by the death of one of the spouses, there are conflicting
views. There are some who believe that relationship by affinity is not terminated whether
there are children or not in the marriage (Carman vs. Newell, N.Y. 1 [Denio] 25, 26).
However, the better view supported by most judicial authorities in other jurisdictions is
that, if the spouses have no living issues or children and one of the spouses dies, the
relationship by affinity is dissolved. It follows the rule that relationship by affinity ceases
with the dissolution of the marriage which produces it (Kelly v. Neely, 12 Ark. 657, 659,
56 Am Dec. 288). On the other hand, the relationship by affinity is continued despite the
death of one of the spouses where there are living issues or children of the marriage "in
whose veins the blood of the parties are commingled, since the relationship of affinity
was continued through the medium of the issue of the marriage" (Paddock vs. Wells, 2
Barb. Ch. 331, 333).[25]

The first view (the terminated affinity view) holds that relationship by affinity terminates
with the dissolution of the marriage either by death or divorce which gave rise to the
relationship of affinity between the parties.[26] Under this view, the relationship by
affinity is simply coextensive and coexistent with the marriage that produced it. Its
duration is indispensably and necessarily determined by the marriage that created it.
Thus, it exists only for so long as the marriage subsists, such that the death of a
spouse ipso facto ends the relationship by affinity of the surviving spouse to the deceased
spouse's blood relatives.

The first view admits of an exception. The relationship by affinity continues even after
the death of one spouse when there is a surviving issue.[27] The rationale is that the
relationship is preserved because of the living issue of the marriage in whose veins the
blood of both parties is commingled.[28]

The second view (the continuing affinity view) maintains that relationship by affinity
between the surviving spouse and the kindred of the deceased spouse continues even after
the death of the deceased spouse, regardless of whether the marriage produced children or
not.[29] Under this view, the relationship by affinity endures even after the dissolution of
the marriage that produced it as a result of the death of one of the parties to the said
marriage. This view considers that, where statutes have indicated an intent to benefit
step-relatives or in-laws, the "tie of affinity" between these people and their relatives-by-
marriage is not to be regarded as terminated upon the death of one of the married
parties.[30]

After due consideration and evaluation of the relative merits of the two views, we hold
that the second view is more consistent with the language and spirit of Article 332(1) of
the Revised Penal Code.

First, the terminated affinity view is generally applied in cases of jury disqualification
and incest.[31] On the other hand, the continuing affinity view has been applied in the
interpretation of laws that intend to benefit step-relatives or in-laws. Since the purpose of
the absolutory cause in Article 332(1) is meant to be beneficial to relatives by affinity
within the degree covered under the said provision, the continuing affinity view is more
appropriate.

Second, the language of Article 332(1) which speaks of "relatives by affinity in the same
line" is couched in general language. The legislative intent to make no distinction
between the spouse of one's living child and the surviving spouse of one's deceased child
(in case of a son-in-law or daughter-in-law with respect to his or her parents-in-
law)[32] can be drawn from Article 332(1) of the Revised Penal Code without doing
violence to its language.

Third, the Constitution declares that the protection and strengthening of the family as a
basic autonomous social institution are policies of the State and that it is the duty of the
State to strengthen the solidarity of the family.[33] Congress has also affirmed as a State
and national policy that courts shall preserve the solidarity of the family.[34] In this
connection, the spirit of Article 332 is to preserve family harmony and obviate
scandal.[35] The view that relationship by affinity is not affected by the death of one of the
parties to the marriage that created it is more in accord with family solidarity and
harmony.

Fourth, the fundamental principle in applying and in interpreting criminal laws is to

resolve all doubts in favor of the accused. In dubio pro reo. When in doubt, rule for the
accused.[36] This is in consonance with the constitutional guarantee that the accused shall
be presumed innocent unless and until his guilt is established beyond reasonable
doubt.[37]

Intimately related to the in dubio pro reo principle is the rule of lenity.[38] The rule
applies when the court is faced with two possible interpretations of a penal statute, one
that is prejudicial to the accused and another that is favorable to him. The rule calls for
the adoption of an interpretation which is more lenient to the accused.

Lenity becomes all the more appropriate when this case is viewed through the lens of the
basic purpose of Article 332 of the Revised Penal Code to preserve family harmony by
providing an absolutory cause. Since the goal of Article 332(1) is to benefit the accused,
the Court should adopt an application or interpretation that is more favorable to the
accused. In this case, that interpretation is the continuing affinity view.

Thus, for purposes of Article 332(1) of the Revised Penal Code, we hold that the
relationship by affinity created between the surviving spouse and the blood relatives of
the deceased spouse survives the death of either party to the marriage which created the
affinity. (The same principle applies to the justifying circumstance of defense of one's
relatives under Article 11[2] of the Revised Penal Code, the mitigating circumstance of
immediate vindication of grave offense committed against one's relatives under Article
13[5] of the same Code and the absolutory cause of relationship in favor of accessories
under Article 20 also of the same Code.)

SCOPE OF ARTICLE 332 OF

THE REVISED PENAL CODE

The absolutory cause under Article 332 of the Revised Penal Code only applies to the
felonies of theft, swindling and malicious mischief. Under the said provision, the State
condones the criminal responsibility of the offender in cases of theft, swindling and
malicious mischief. As an act of grace, the State waives its right to prosecute the offender
for the said crimes but leaves the private offended party with the option to hold the
offender civilly liable.

However, the coverage of Article 332 is strictly limited to the felonies mentioned therein.
The plain, categorical and unmistakable language of the provision shows that it applies
exclusively to the simple crimes of theft, swindling and malicious mischief. It does not
apply where any of the crimes mentioned under Article 332 is complexed with another
crime, such as theft through falsification or estafa through falsification.[39]

The Information against Sato charges him with estafa. However, the real nature of the
offense is determined by the facts alleged in the Information, not by the designation of
the offense.[40] What controls is not the title of the Information or the designation of the
offense but the actual facts recited in the Information.[41]In other words, it is the recital of
facts of the commission of the offense, not the nomenclature of the offense, that
determines the crime being charged in the Information.[42] It is the exclusive province of
the court to say what the crime is or what it is named.[43] The determination by the
prosecutor who signs the Information of the crime committed is merely an opinion which
is not binding on the court.[44]

A reading of the facts alleged in the Information reveals that Sato is being charged not
with simple estafa but with the complex crime of estafa through falsification of public
documents. In particular, the Information states that Sato, by means of deceit,
intentionally defrauded Manolita committed as follows:

(a) Sato presented a document to Manolita (who was already blind at that time) and
induced her to sign and thumbmark the same;
(b) he made Manolita believe that the said document was in connection with her taxes
when it was in fact a special power of attorney (SPA) authorizing his minor daughter
Wendy to sell, assign, transfer or otherwise dispose of Manolita's properties in
Tagaytay City;
(c) relying on Sato's inducement and representation, Manolita signed and thumbmarked
the SPA in favor of Wendy Mitsuko Sato, daughter of Sato;
(d) using the document, he sold the properties to third parties but he neither delivered the
proceeds to Manolita nor accounted for the same and despite repeated demands, he
 failed and refused to deliver the proceeds, to the damage and prejudice of the estate
of Manolita.

The above averments in the Information show that the estafa was committed by
attributing to Manolita (who participated in the execution of the document) statements
other than those in fact made by her. Manolita's acts of signing the SPA and affixing her
thumbmark to that document were the very expression of her specific intention that
something be done about her taxes. Her signature and thumbmark were the affirmation of
her statement on such intention as she only signed and thumbmarked the SPA (a
document which she could not have read) because of Sato's representation that the
document pertained to her taxes. In signing and thumbmarking the document, Manolita
showed that she believed and adopted the representations of Sato as to what the document
was all about, i.e., that it involved her taxes. Her signature and thumbmark, therefore,
served as her conformity to Sato's proposal that she execute a document to settle her
taxes.

Thus, by inducing Manolita to sign the SPA, Sato made it appear that Manolita granted
his daughter Wendy a special power of attorney for the purpose of selling, assigning,
transferring or otherwise disposing of Manolita's Tagaytay properties when the fact was
that Manolita signed and thumbmarked the document presented by Sato in the belief that
it pertained to her taxes. Indeed, the document itself, the SPA, and everything that it
contained were falsely attributed to Manolita when she was made to sign the SPA.

Moreover, the allegations in the Information that

(1) "once in the possession of the said special power of attorney and other pertinent
documents, [Sato] made Wendy Mitsuko Sato sign the three (3) Deeds of Absolute
Sale" and
(2) "once in possession of the proceeds of the sale of the above properties, said accused,
misapplied, misappropriated and converted the same to his own personal use and
benefit"

raise the presumption that Sato, as the possessor of the falsified document and the one
who benefited therefrom, was the author thereof.

Furthermore, it should be noted that the prosecution moved for the amendment of the
Information so as to increase the amount of damages from P1,150,000 to P22,034,000.
This was granted by the trial court and was affirmed by the Court of Appeals on
certiorari. This meant that the amended Information would now state that, while the total
amount of consideration stated in the deeds of absolute sale was only P1,150,000, Sato
actually received the total amount of P22,034,000 as proceeds of the sale of Manolita's
properties.[45] This also meant that the deeds of sale (which were public documents) were
also falsified by making untruthful statements as to the amounts of consideration stated in
the deeds.
Therefore, the allegations in the Information essentially charged a crime that was not
simple estafa. Sato resorted to falsification of public documents (particularly, the special
power of attorney and the deeds of sale) as a necessary means to commit the estafa.

Since the crime with which respondent was charged was not simple estafa but the
complex crime of estafa through falsification of public documents, Sato cannot avail
himself of the absolutory cause provided under Article 332 of the Revised Penal Code in
his favor.

EFFECT OF ABSOLUTORY CAUSE UNDER

ARTICLE 332 ON CRIMINAL LIABILITY
FOR THE COMPLEX CRIME OF ESTAFA
THROUGH FALSIFICATION OF PUBLIC
DOCUMENTS

The question may be asked: if the accused may not be held criminally liable for simple
estafa by virtue of the absolutory cause under Article 332 of the Revised Penal Code,
should he not be absolved also from criminal liability for the complex crime of estafa
through falsification of public documents? No.

True, the concurrence of all the elements of the two crimes of estafa and falsification of
public document is required for a proper conviction for the complex crime of estafa
through falsification of public document. That is the ruling in Gonzaludo v. People.[46] It
means that the prosecution must establish that the accused resorted to the falsification of
a public document as a necessary means to commit the crime of estafa.

However, a proper appreciation of the scope and application of Article 332 of the
Revised Penal Code and of the nature of a complex crime would negate exemption from
criminal liability for the complex crime of estafa through falsification of public
documents, simply because the accused may not be held criminally liable for simple
estafa by virtue of the absolutory cause under Article 332.

The absolutory cause under Article 332 is meant to address specific crimes against
property, namely, the simple crimes of theft, swindling and malicious mischief. Thus, all
other crimes, whether simple or complex, are not affected by the absolutory cause
provided by the said provision. To apply the absolutory cause under Article 332 of the
Revised Penal Code to one of the component crimes of a complex crime for the purpose
of negating the existence of that complex crime is to unduly expand the scope of Article
332. In other words, to apply Article 332 to the complex crime of estafa through
falsification of public document would be to mistakenly treat the crime of estafa as a
separate simple crime, not as the component crime that it is in that situation. It would
wrongly consider the indictment as separate charges of estafa and falsification of public
document, not as a single charge for the single (complex) crime of estafa through
falsification of public document.

Under Article 332 of the Revised Penal Code, the State waives its right to hold the
offender criminally liable for the simple crimes of theft, swindling and malicious
mischief and considers the violation of the juridical right to property committed by the
offender against certain family members as a private matter and therefore subject only to
civil liability. The waiver does not apply when the violation of the right to property is
achieved through (and therefore inseparably intertwined with) a breach of the public
interest in the integrity and presumed authenticity of public documents. For, in the latter
instance, what is involved is no longer simply the property right of a family relation
but a paramount public interest.

The purpose of Article 332 is to preserve family harmony and obviate scandal.[47] Thus,
the action provided under the said provision simply concerns the private relations of the
parties as family members and is limited to the civil aspect between the offender and the
offended party. When estafa is committed through falsification of a public document,
however, the matter acquires a very serious public dimension and goes beyond the
respective rights and liabilities of family members among themselves. Effectively, when
the offender resorts to an act that breaches public interest in the integrity of public
documents as a means to violate the property rights of a family member, he is removed
from the protective mantle of the absolutory cause under Article 332.

In considering whether the accused is liable for the complex crime of estafa through
falsification of public documents, it would be wrong to consider the component crimes
separately from each other. While there may be two component crimes (estafa and
falsification of documents), both felonies are animated by and result from one and the
same criminal intent for which there is only one criminal liability.[48] That is the
concept of a complex crime. In other words, while there are two crimes, they are treated
only as one, subject to a single criminal liability.

As opposed to a simple crime where only one juridical right or interest is violated (e.g.,
homicide which violates the right to life, theft which violates the right to property),[49] a
complex crime constitutes a violation of diverse juridical rights or interests by means of
diverse acts, each of which is a simple crime in itself.[50]Since only a single criminal
intent underlies the diverse acts, however, the component crimes are considered as
elements of a single crime, the complex crime. This is the correct interpretation of a
complex crime as treated under Article 48 of the Revised Penal Code.

In the case of a complex crime, therefore, there is a formal (or ideal) plurality of crimes
where the same criminal intent results in two or more component crimes constituting a
complex crime for which there is only one criminal liability.[51] (The complex crime of
estafa through falsification of public document falls under this category.) This is different
from a material (or real) plurality of crimes where different criminal intents result in two
or more crimes, for each of which the accused incurs criminal liability.[52] The latter
category is covered neither by the concept of complex crimes nor by Article 48.

Under Article 48 of the Revised Penal Code, the formal plurality of crimes (concursus
delictuorum or concurso de delitos) gives rise to a single criminal liability and requires
the imposition of a single penalty:
Although [a] complex crime quantitatively consists of two or more crimes, it is only one
crime in law on which a single penalty is imposed and the two or more crimes
constituting the same are more conveniently termed as component crimes.[53] (emphasis
supplied)

-- ∞ -- -- ∞ -- -- ∞ --

In [a] complex crime, although two or more crimes are actually committed, they
constitute only one crime in the eyes of the law as well as in the conscience of the
offender. The offender has only one criminal intent. Even in the case where an offense is
a necessary means for committing the other, the evil intent of the offender is only one.[54]

For this reason, while a conviction for estafa through falsification of public document
requires that the elements of both estafa and falsification exist, it does not mean that the
criminal liability for estafa may be determined and considered independently of that for
falsification. The two crimes of estafa and falsification of public documents are not
separate crimes but component crimes of the single complex crime of estafa and
falsification of public documents.

Therefore, it would be incorrect to claim that, to be criminally liable for the complex
crime of estafa through falsification of public document, the liability for estafa should be
considered separately from the liability for falsification of public document. Such
approach would disregard the nature of a complex crime and contradict the letter and
spirit of Article 48 of the Revised Penal Code. It would wrongly disregard the distinction
between formal plurality and material plurality, as it improperly treats the plurality of
crimes in the complex crime of estafa through falsification of public document as a mere
material plurality where the felonies are considered as separate crimes to be punished
individually.

FALSIFICATION OF PUBLIC DOCUMENTS MAY BE

A NECESSARY MEANS FOR COMMITTING
ESTAFA EVEN UNDER ARTICLE 315 (3[A])

The elements of the offense of estafa punished under Article 315 (3[a]) of the Revised
Penal Code are as follows:

(1) the offender induced the offended party to sign a document;

(2) deceit was employed to make the offended party sign the document;

(3) the offended party personally signed the document and

(4) prejudice is caused to the offended party.

While in estafa under Article 315(a) of the Revised Penal Code, the law does not require
that the document be falsified for the consummation thereof, it does not mean that the
falsification of the document cannot be considered as a necessary means to commit the
estafa under that provision.

The phrase "necessary means" does not connote indispensable means for if it did, then
the offense as a "necessary means" to commit another would be an indispensable element
of the latter and would be an ingredient thereof.[55] In People v. Salvilla,[56] the phrase
"necessary means" merely signifies that one crime is committed to facilitate and insure
the commission of the other.[57] In this case, the crime of falsification of public document,
the SPA, was such a "necessary means" as it was resorted to by Sato to facilitate and
carry out more effectively his evil design to swindle his mother-in-law. In particular, he
used the SPA to sell the Tagaytay properties of Manolita to unsuspecting third persons.

When the offender commits in a public document any of the acts of falsification
enumerated in Article 171 of the Revised Penal Code as a necessary means to commit
another crime, like estafa, theft or malversation, the two crimes form a complex crime
under Article 48 of the same Code.[58] The falsification of a public, official or commercial
document may be a means of committing estafa because, before the falsified document
is actually utilized to defraud another, the crime of falsification has already been
consummated, damage or intent to cause damage not being an element of the crime of
falsification of a public, official or commercial document.[59] In other words, the crime of
falsification was committed prior to the consummation of the crime of
estafa.[60] Actually utilizing the falsified public, official or commercial document to
defraud another is estafa.[61] The damage to another is caused by the commission of
estafa, not by the falsification of the document.[62]

Applying the above principles to this case, the allegations in the Information show that
the falsification of public document was consummated when Sato presented a ready-
made SPA to Manolita who signed the same as a statement of her intention in connection
with her taxes. While the falsification was consummated upon the execution of the SPA,
the consummation of the estafa occurred only when Sato later utilized the SPA. He did so
particularly when he had the properties sold and thereafter pocketed the proceeds of the
sale. Damage or prejudice to Manolita was caused not by the falsification of the SPA (as
no damage was yet caused to the property rights of Manolita at the time she was made to
sign the document) but by the subsequent use of the said document. That is why the
falsification of the public document was used to facilitate and ensure (that is, as a
necessary means for) the commission of the estafa.

The situation would have been different if Sato, using the same inducement, had made
Manolita sign a deed of sale of the properties either in his favor or in favor of third
parties. In that case, the damage would have been caused by, and at exactly the same time
as, the execution of the document, not prior thereto. Therefore, the crime committed
would only have been the simple crime of estafa.[63] On the other hand, absent any
inducement (such as if Manolita herself had been the one who asked that a document
pertaining to her taxes be prepared for her signature, but what was presented to her for
her signature was an SPA), the crime would have only been the simple crime of
falsification.[64]
WHEREFORE, the petition is hereby GRANTED. The decision dated August 9, 2007
and the resolution dated January 23, 2008 of the Court of Appeals in CA-G.R. S.P. No.
95260 are REVERSED and SET ASIDE. The case is remanded to the trial court which
is directed to try the accused with dispatch for the complex crime of estafa through
falsification of public documents.

SO ORDERED.

G.R. No. 186080, August 14, 2009

JULIUS AMANQUITON, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,

RESPONDENT.

DECISION

CORONA, J.:

Petitioner Julius Amanquiton was a purok leader of Barangay Western Bicutan, Taguig,
Metro Manila. As a purok leader and barangay tanod, he was responsible for the
maintenance of cleanliness, peace and order of the community.

At 10:45 p.m. on October 30, 2001, petitioner heard an explosion. He, together with two
auxiliary tanod, Dominador Amante[1] and a certain Cabisudo, proceeded to Sambong
Street where the explosion took place. Thereafter, they saw complainant Leoselie John
Bañaga being chased by a certain Gil Gepulane. Upon learning that Bañaga was the one
who threw the pillbox[2] that caused the explosion, petitioner and his companions also
went after him.

On reaching Bañaga's house, petitioner, Cabisudo and Amante knocked on the door.
When no one answered, they decided to hide some distance away. After five minutes,
Bañaga came out of the house. At this juncture, petitioner and his companions
immediately apprehended him. Bañaga's aunt, Marilyn Alimpuyo, followed them to the
barangay hall.

Bañaga was later brought to the police station. On the way to the police station, Gepulane
suddenly appeared from nowhere and boxed Bañaga in the face. This caused petitioner to
order Gepulane's apprehension along with Bañaga. An incident report was made.[3]

During the investigation, petitioner learned Bañaga had been previously mauled by a
group made up of a certain Raul, Boyet and Cris but failed to identify two others. The
mauling was the result of gang trouble in a certain residental compound in Taguig City.
Bañaga's mauling was recorded in a barangay blotter which read:
10-30-201
Time: 10-15 p.m.
RECORD purposes

Dumating dito sa Barangay Head Quarters si Dossen[4] Bañaga is Alimpuyo 16 years old
student nakatira sa 10 B Kalachuchi St. M.B.T. M.M.

Upang ireklamo yong sumapak sa akin sina Raul[,] Boyet [at] Cris at yong dalawang
sumapak ay hindi ko kilala. Nang yari ito kaninang 10:p.m. araw ng [M]artes taong
kasalukuyan at yong labi ko pumutok at yong kabilang mata ko ay namaga sa bandang
kanan. Ang iyong kaliwang mukha at pati yong likod ko ay may tama sa sapak.

Patunay dito ang aking lagda.

Dossen Banaga (sgd.)

Thereafter, an Information for violation of Section 10 (a), Article VI, RA[5] 7160[6] in
relation to Section 5 (j) of R.A. 8369 was filed against petitioner, Amante and Gepulane.
The Information read:

The undersigned 2nd Assistant Provincial Prosecutor accuses Julius Amanquiton,

Dominador Amante and Gil Gepulane of the crime of Violations of Section 10 (a) Article
VI, Republic Act No. 7610 in relation to Section 5 (j) of R.A. No. 8369 committed as
follows:

That on the 30th day of October, 2001, in the Municipality of Taguig, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused
in conspiracy with one another, armed with nightstick, did then and there willfully,
unlawfully and feloniously attack, assault and use personal violence, a form of physical
abuse, upon the person of Leoselie John A. [Bañaga], seventeen (17) years old, a minor,
by then and there manhandling him and hitting him with their nightsticks, thus,
constituting other acts of child abuse, which is inimical or prejudicial to child's
development, in violation of the above-mentioned law.

CONTRARY TO LAW.

On arraignment, petitioner and Amante both pleaded not guilty. Gepulane remains at-
large.

During the trial, the prosecution presented the following witnesses: Dr. Paulito Cruz,
medico-legal officer of the Taguig-Pateros District Hospital who attended to Bañaga on
October 30, 2001, Bañaga himself, Alimpuyo and Rachelle Bañaga (complainant's
mother).

The defense presented the testimonies of petitioner, Amante and Briccio Cuyos, then
deputy chief barangay tanod of the same barangay. Cuyos testified that the blotter
notation entered by Gepulane and Bañaga was signed in his presence and that they read
the contents thereof before affixing their signatures.

On May 10, 2005, the RTC found petitioner and Amante guilty beyond reasonable doubt
of the crime charged.[7] The dispositive portion of the RTC decision read:

WHEREFORE, in view of the foregoing, this Court finds the accused JULIUS
AMANQUITON and DOMINADOR AMANTE "GUILTY" beyond reasonable doubt
for violation of Article VI Sec. 10 (a) of Republic Act 7610 in relation to Section 3 (j) of
Republic Act 8369, hereby sentences accused JULIUS AMANQUITON and
DOMINADOR AMANTE a straight penalty of thirty (30) days of Arresto Menor.

Both accused Julius Amanquiton and Dominador Amante are hereby directed to pay
Leoselie John A. Banaga the following:

1. Actual damages in the amount of P5,000.00;

2. Moral Damages in the amount of P 30,000.00; and
3. Exemplary damages in the amount of P 20,000.00.

The case against the accused Gil Gepulane is hereby sent to the ARCHIVES to be
revived upon the arrest of the accused. Let [a] warrant of arrest be issued against him.

SO ORDERED.

Amanquiton's motion for reconsideration was denied.[8]

Petitioner filed a notice of appeal which was given due course. On August 28, 2008, the
CA rendered a decision[9] which affirmed the conviction but increased the penalty. The
dispositive portion of the assailed CA decision read:

WHEREFORE, in view of the foregoing the Decision appealed from

is AFFIRMED with MODIFICATION. The accused-appellant is sentenced to suffer
the penalty of four (4) years, two (2) months and one (1) day of prision
correccional maximum up to eight (8) years of prision mayor minimum as maximum. In
addition to the damages already awarded, a fine of thirty thousand pesos (P30,000.00) is
hereby solidarily imposed the proceeds of which shall be administered as a cash fund by
the DSWD.

IT IS SO ORDERED.

Petitioner's motion for reconsideration was denied.[10]

Hence, this petition. Petitioner principally argues that the facts of the case as established
did not constitute a violation of Section 10 (a), Article VI of RA 7160 and definitely did
not prove the guilt of petitioner beyond reasonable doubt.
The Constitution itself provides that in all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved.[11] An accused is entitled to an acquittal
unless his guilt is shown beyond reasonable doubt.[12] It is the primordial duty of the
prosecution to present its side with clarity and persuasion, so that conviction becomes the
only logical and inevitable conclusion, with moral certainty.[13]

The necessity for proof beyond reasonable doubt was discussed in People v. Berroya:[14]

[Proof beyond reasonable doubt] lies in the fact that in a criminal prosecution, the State is
arrayed against the subject; it enters the contest with a prior inculpatory finding in its
hands; with unlimited means of command; with counsel usually of authority and
capacity, who are regarded as public officers, as therefore as speaking semi-judicially,
and with an attitude of tranquil majesty often in striking contrast to that of defendant
engaged in a perturbed and distracting struggle for liberty if not for life. These
inequalities of position, the law strives to meet by the rule that there is to be no
conviction where there is reasonable doubt of guilt. However, proof beyond reasonable
doubt requires only moral certainty or that degree of proof which produces conviction in
an unprejudiced mind.

The RTC and CA hinged their finding of petitioner's guilt beyond reasonable doubt (of
the crime of child abuse) solely on the supposed positive identification by the
complainant and his witness (Alimpuyo) of petitioner and his co-accused as the
perpetrators of the crime.

We note Bañaga's statement that, when he was apprehended by petitioner and Amante,
there were many people around.[15] Yet, the prosecution presented only Bañaga and his
aunt, Alimpuyo, as witnesses to the mauling incident itself. Where were the other people
who could have testified, in an unbiased manner, on the alleged mauling of Bañaga by
petitioner and Amante, as supposedly witnessed by Alimpuyo?[16] The testimonies of the
two other prosecution witnesses, Dr. Paulito Cruz and Rachelle Bañaga, did not fortify
Bañaga's claim that petitioner mauled him, for the following reasons: Dr. Cruz merely
attended to Bañaga's injuries, while Rachelle testified that she saw Bañaga only after the
injuries have been inflicted on him.

We note furthermore that, Bañaga failed to controvert the validity of the barangay blotter
he signed regarding the mauling incident which happened prior to his apprehension by
petitioner. Neither did he ever deny the allegation that he figured in a prior battery by
gang members.

All this raises serious doubt on whether Bañaga's injuries were really inflicted by
petitioner, et al., to the exclusion of other people. In fact, petitioner testified clearly that
Gepulane, who had been harboring a grudge against Bañaga, came out of nowhere and
punched Bañaga while the latter was being brought to the police station. Gepulane, not
petitioner, could very well have caused Bañaga's injuries.
Alimpuyo admitted that she did not see who actually caused the bloodied condition of
Bañaga's face because she had to first put down the baby she was then carrying when the
melee started.[17] More importantly, Alimpuyo stated that she was told by Bañaga that,
while he was allegedly being held by the neck by petitioner, others were hitting him.
Alimpuyo was obviously testifying not on what she personally saw but on what Bañaga
told her.

While we ordinarily do not interfere with the findings of the lower courts on the
trustworthiness of witnesses, when there appear in the records facts and circumstances of
real weight which might have been overlooked or misapprehended, this Court cannot
shirk from its duty to sift fact from fiction.

We apply the pro reo principle and the equipoise rule in this case. Where the evidence on
an issue of fact is in question or there is doubt on which side the evidence weighs, the
doubt should be resolved in favor of the accused.[18] If inculpatory facts and
circumstances are capable of two or more explanations, one consistent with the innocence
of the accused and the other consistent with his guilt, then the evidence does not fulfill
the test of moral certainty and will not justify a conviction.[19]

Time and again, we have held that:

Republic Act No. 7610 is a measure geared towards the implementation of a national
comprehensive program for the survival of the most vulnerable members of the
population, the Filipino children, in keeping with the Constitutional mandate under
Article XV, Section 3, paragraph 2, that "The State shall defend the right of the
children to assistance, including proper care and nutrition, and special protection
from all forms of neglect, abuse, cruelty, exploitation, and other conditions
prejudicial to their development." This piece of legislation supplies the inadequacies of
existing laws treating crimes committed against children, namely, the Revised Penal
Code and Presidential Decree No. 603 or the Child and Youth Welfare Code. As a statute
that provides for a mechanism for strong deterrence against the commission of child
abuse and exploitation, the law has stiffer penalties for their commission, and a means by
which child traffickers could easily be prosecuted and penalized. Also, the definition of
child abuse is expanded to encompass not only those specific acts of child abuse under
existing laws but includes also "other acts of neglect, abuse, cruelty or exploitation and
other conditions prejudicial to the child's development."[20]

However, this noble statute should not be used as a sharp sword, ready to be brandished
against an accused even if there is a patent lack of proof to convict him of the crime. The
right of an accused to liberty is as important as a minor's right not to be subjected to any
form of abuse. Both are enshrined in the Constitution. One need not be sacrificed for the
other.

There is no dearth of law, rules and regulations protecting a child from any and all forms
of abuse. While unfortunately, incidents of maltreatment of children abound amidst social
ills, care has to be likewise taken that wayward youths should not be cuddled by a
misapplication of the law. Society, through its laws, should correct the deviant conduct of
the youth rather than take the cudgels for them. Lest we regress to a culture of juvenile
delinquency and errant behavior, laws for the protection of children against abuse should
be applied only and strictly to actual abusers.

The objective of this seemingly catch-all provision on abuses against children will be best
achieved if parameters are set in the law itself, if only to prevent baseless accusations
against innocent individuals. Perhaps the time has come for Congress to review this
matter and institute the safeguards necessary for the attainment of its laudable ends.

We reiterate our ruling in People v. Mamalias:[21]

We emphasize that the great goal of our criminal law and procedure is not to send people
to the gaol but to do justice. The prosecution's job is to prove that the accused is guilty
beyond reasonable doubt. Conviction must be based on the strength of the prosecution
and not on the weakness of the defense. Thus, when the evidence of the prosecution is not
enough to sustain a conviction, it must be rejected and the accused absolved and released
at once.

WHEREFORE, the petition is hereby GRANTED. The August 28, 2008 decision and
January 15, 2009 resolution of Court of Appeals are reversed and SET ASIDE.
Petitioner Julius Amanquiton is hereby ACQUITTED of violation of Section 10 (a),
Article VI of RA 7160.

SO ORDERED.

G.R. NO. 152644, February 10, 2006

JOHN ERIC LONEY, STEVEN PAUL REID AND PEDRO B. HERNANDEZ,

PETITIONERS, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

DECISION

CARPIO, J.:

The Case

This is a petition for review[1] of the Decision[2] dated 5 November 2001 and the
Resolution dated 14 March 2002 of the Court of Appeals. The 5 November 2001
Decision affirmed the ruling of the Regional Trial Court, Boac, Marinduque, Branch 94,
in a suit to quash Informations filed against petitioners John Eric Loney, Steven Paul
Reid, and Pedro B. Hernandez ("petitioners"). The 14 March 2002 Resolution denied
petitioners' motion for reconsideration.
 The Facts

Petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez are the President
and Chief Executive Officer, Senior Manager, and Resident Manager for Mining
Operations, respectively, of Marcopper Mining Corporation ("Marcopper"), a corporation
engaged in mining in the province of Marinduque

Marcopper had been storing tailings[3] from its operations in a pit in Mt. Tapian,
Marinduque. At the base of the pit ran a drainage tunnel leading to the Boac and
Makalupnit rivers. It appears that Marcopper had placed a concrete plug at the tunnel's
end. On 24 March 1994, tailings gushed out of or near the tunnel's end. In a few days,
the Mt. Tapian pit had discharged millions of tons of tailings into the Boac and
Makalupnit rivers.

In August 1996, the Department of Justice separately charged petitioners in the

Municipal Trial Court of Boac, Marinduque ("MTC") with violation of Article
91(B),[4] sub-paragraphs 5 and 6 of Presidential Decree No. 1067 or the Water Code of
the Philippines ("PD 1067"),[5] Section 8[6] of Presidential Decree No. 984 or the National
Pollution Control Decree of 1976 ("PD 984"),[7] Section 108[8] of Republic Act No. 7942
or the Philippine Mining Act of 1995 ("RA 7942"),[9] and Article 365[10] of the Revised
Penal Code ("RPC") for Reckless Imprudence Resulting in Damage to Property.[11]

Petitioners moved to quash the Informations on the following grounds: (1) the
Informations were "duplicitous" as the Department of Justice charged more than one
offense for a single act; (2) petitioners John Eric Loney and Steven Paul Reid were not
yet officers of Marcopper when the incident subject of the Informations took place; and
(3) the Informations contain allegations which constitute legal excuse or justification.

The Ruling of the MTC

In its Joint Order of 16 January 1997 ("Joint Order"), the MTC[12] initially deferred ruling
on petitioners' motion for lack of "indubitable ground for the quashing of the
[I]nformations x x x." The MTC scheduled petitioners' arraignment in February 1997.
However, on petitioners' motion, the MTC issued a Consolidated Order on 28 April 1997
("Consolidated Order"), granting partial reconsideration to its Joint Order and quashing
the Informations for violation of PD 1067 and PD 984. The MTC maintained the
Informations for violation of RA 7942 and Article 365 of the RPC. The MTC held:
[T]he 12 Informations have common allegations of pollutants pointing to "mine tailings"
which were precipitately discharged into the Makulapnit and Boac Rivers due to breach
caused on the Tapian drainage/tunnel due to negligence or failure to institute adequate
measures to prevent pollution and siltation of the Makulapnit and Boac River systems,
the very term and condition required to be undertaken under the Environmental
Compliance Certificate issued on April 1, 1990.

The allegations in the informations point to same set [sic] of evidence required to prove
the single fact of pollution constituting violation of the Water Code and the Pollution
Law which are the same set of evidence necessary to prove the same single fact of
pollution, in proving the elements constituting violation of the conditions of ECC, issued
pursuant to the Philippine Mining Act. In both instances, the terms and conditions of the
Environmental Compliance Certificate were allegedly violated. In other words, the same
set of evidence is required in proving violations of the three (3) special laws.

After carefully analyzing and weighing the contending arguments of the parties and after
taking into consideration the applicable laws and jurisprudence, the Court is convinced
that as far as the three (3) aforesaid laws are concerned, only the Information for
[v]iolation of Philippine Mining Act should be maintained. In other words, the
Informations for [v]iolation of Anti-Pollution Law (PD 984) and the Water Code (PD
1067) should be dismissed/quashed because the elements constituting the aforesaid
violations are absorbed by the same elements which constitute violation of the Philippine
Mining Act (RA 7942).

Therefore, x x x Criminal Case[] Nos. 96-44, 96-45 and 96-46 for [v]iolation of the
Water Code; and Criminal Case[] Nos. 96-47, 96-48 and 96-49 for [v]iolation of the
Anti-Pollution Law x x x are hereby DISMISSED or QUASHED and Criminal Case[]
Nos. 96-50, 96-51 and 96-52 for [v]iolation of the Philippine Mining Act are hereby
retained to be tried on the merits.

The Information for [v]iolation of Article 365 of the Revised Penal Code should also be
maintained and heard in a full blown trial because the common accusation therein is
reckless imprudence resulting to [sic] damage to property. It is the damage to property
which the law punishes not the negligent act of polluting the water system. The
prosecution for the [v]iolation of Philippine Mining Act is not a bar to the prosecution for
reckless imprudence resulting to [sic] damage to property.[13]
The MTC re-scheduled petitioners' arraignment on the remaining charges on 28 and 29
May 1997. In the hearing of 28 May 1997, petitioners manifested that they were willing
to be arraigned on the charge for violation of Article 365 of the RPC but not on the
charge for violation of RA 7942 as they intended to appeal the Consolidated Order in so
far as it maintained the Informations for that offense. After making of record petitioners'
manifestation, the MTC proceeded with the arraignment and ordered the entry of "not
guilty" pleas on the charges for violation of RA 7942 and Article 365 of the RPC.

Petitioners subsequently filed a petition for certiorari with the Regional Trial Court,
Boac, Marinduque, assailing that portion of the Consolidated Order maintaining the
Informations for violation of RA 7942. Petitioners' petition was raffled to Branch 94. For
its part, public respondent filed an ordinary appeal with the same court assailing that
portion of the Consolidated Order quashing the Informations for violation of PD 1067
and PD 984. Public respondent's appeal was raffled to Branch 38. On public respondent's
motion, Branch 38 ordered public respondent's appeal consolidated with petitioners'
petition in Branch 94.

The Ruling of Branch 94

In its Resolution[14] of 20 March 1998, Branch 94 granted public respondent's appeal but
denied petitioners' petition. Branch 94 set aside the Consolidated Order in so far as it
quashed the Informations for violation of PD 1067 and PD 984 and ordered those charges
reinstated. Branch 94 affirmed the Consolidated Order in all other respects. Branch 94
held:
After a careful perusal of the laws concerned, this court is of the opinion that there can be
no absorption by one offense of the three other offenses, as [the] acts penalized by these
laws are separate and distinct from each other. The elements of proving each violation
are not the same with each other. Concededly, the single act of dumping mine tailings
which resulted in the pollution of the Makulapnit and Boac rivers was the basis for the
information[s] filed against the accused each charging a distinct offense. But it is also a
well-established rule in this jurisdiction that –
"A single act may offend against two or more entirely distinct and unrelated provisions of
law, and if one provision requires proof of an additional fact or element which the other
does not, an acquittal or conviction or a dismissal of the information under one does not
bar prosecution under the other. x x x."

xxxx

[T]he different laws involve cannot absorb one another as the elements of each crime are
different from one another. Each of these laws require [sic] proof of an additional fact or
element which the other does not although they stemmed from a single act.[15]
Petitioners filed a petition for certiorari with the Court of Appeals alleging that Branch 94
acted with grave abuse of discretion because (1) the Informations for violation of PD
1067, PD 984, RA 7942 and the Article 365 of the RPC "proceed from and are based on a
single act or incident of polluting the Boac and Makalupnit rivers thru dumping of mine
tailings" and (2) the duplicitous nature of the Informations contravenes the ruling
in People v. Relova.[16] Petitioners further contended that since the acts complained of in
the charges for violation of PD 1067, PD 984, and RA 7942 are "the very same acts
complained of" in the charge for violation of Article 365 of the RPC, the latter absorbs
the former. Hence, petitioners should only be prosecuted for violation of Article 365 of
the RPC.[17]

The Ruling of the Court of Appeals

In its Decision of 5 November 2001, the Court of Appeals affirmed Branch 94's ruling.
The appellate court held:
The records of the case disclose that petitioners filed a motion to quash the
aforementioned Informations for being duplicitous in nature. Section 3 of Rule 117 of
the Revised Rules of Court specifically provides the grounds upon which an information
may be quashed. x x x

xxxx

[D]uplicity of Informations is not among those included in x x x [Section 3, Rule 117].

xxxx

We now go to petitioners' claim that the resolution of the public respondent contravened
the doctrine laid down in People vs. Relova for being violative of their right against
multiple prosecutions.

In the said case, the Supreme Court found the People's argument with respect to the
variances in the mens rea of the two offenses being charged to be correct. The Court,
however, decided the case in the context of the second sentence of Article IV (22) of the
1973 Constitution (now under Section 21 of Article III of the 1987 Constitution), rather
than the first sentence of the same section. x x x

xxxx

[T]he doctrine laid down in the Relova case does not squarely apply to the case at Bench
since the Informations filed against the petitioners are for violation of four separate and
distinct laws which are national in character.

xxxx

This Court firmly agrees in the public respondent's understanding that the laws by which
the petitioners have been [charged] could not possibly absorb one another as the elements
of each crime are different. Each of these laws require [sic] proof of an additional fact or
element which the other does not, although they stemmed from a single act. x x x

xxxx

[T]his Court finds that there is not even the slightest indicia of evidence that would give
rise to any suspicion that public respondent acted with grave abuse of discretion
amounting to excess or lack of jurisdiction in reversing the Municipal Trial Court's
quashal of the Informations against the petitioners for violation of P.D. 1067 and P.D.
984. This Court equally finds no error in the trial court's denial of the petitioner's motion
to quash R.A. 7942 and Article 365 of the Revised Penal Code.[18]
Petitioners sought reconsideration but the Court of Appeals denied their motion in its
Resolution of 14 March 2002.

Petitioners raise the following alleged errors of the Court of Appeals:

I. THE COURT OF APPEALS COMMITTED A R[E]VERSIBLE ERROR IN

MAINTAINING THE CHARGES FOR VIOLATION OF THE PHILIPPINE
MINING ACT (R.A. 7942) AND REINSTATING THE CHARGES FOR
VIOLATION OF THE WATER CODE (P.D. 1067) AND POLLUTION
CONTROL LAW (P.D. 984), CONSIDERING THAT:
 A. THE INFORMATIONS FOR VIOLATION OF THE WATER CODE
(P.D. 1067), THE POLLUTION CONTROL LAW (P.D. 984), THE
PHILIPPINE MINING ACT (R.A. 7942) AND ARTICLE 365 OF THE
REVISED PENAL CODE PROCEED FROM AND ARE BASED ON A
SINGLE ACT OR INCIDENT OF POLLUTING THE BOAC AND
MAKULAPNIT RIVERS THRU DUMPING OF MINE
TAILINGS.

B. THE PROSECUTION OF PETITIONERS FOR DUPLICITOUS AND

MULTIPLE CHARGES CONTRAVENES THE DOCTRINE LAID
DOWN IN PEOPLE VS. RELOVA, 148 SCRA 292 [1986] THAT "AN
ACCUSED SHOULD NOT BE HARASSED BY MULTIPLE
PROSECUTIONS FOR OFFENSES WHICH THOUGH DIFFERENT
FROM ONE ANOTHER ARE NONETHELESS EACH CONSTITUTED
BY A COMMON SET OR OVERLAPPING SETS OF TECHNICAL
ELEMENTS."

II. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN

RULING THAT THE ELEMENT OF LACK OF NECESSARY OR
ADEQUATE PRECAUTION, NEGLIGENCE, RECKLESSNESS AND
IMPRUDENCE UNDER ARTICLE 356 [sic] OF THE REVISED PENAL
CODE DOES NOT FALL WITHIN THE AMBIT OF ANY OF THE
ELEMENTS OF THE PERTINENT PROVISIONS OF THE WATER CODE,
POLLUTION CONTROL LAW AND PHILIPPINE MINING ACT CHARGED
AGAINST PETITIONERS[.][19]

The Issues

The petition raises these issues:

(1) Whether all the charges filed against petitioners except one should be quashed
for duplicity of charges and only the charge for Reckless Imprudence Resulting
in Damage to Property should stand; and

(2) Whether Branch 94's ruling, as affirmed by the Court of Appeals,

contravenes People v. Relova.

The Ruling of the Court

The petition has no merit.

No Duplicity of Charges in the Present Case

Duplicity of charges simply means a single complaint or information charges more than
one offense, as Section 13 of Rule 110[20] of the 1985 Rules of Criminal Procedure clearly
states:
Duplicity of offense. – A complaint or information must charge but one offense, except
only in those cases in which existing laws prescribe a single punishment for various
offenses.
In short, there is duplicity (or multiplicity) of charges when a single Information
charges more than one offense.[21]

Under Section 3(e), Rule 117[22] of the 1985 Rules of Criminal Procedure, duplicity of
offenses in a single information is a ground to quash the Information. The Rules prohibit
the filing of such Information to avoid confusing the accused in preparing his
defense.[23] Here, however, the prosecution charged each petitioner with four offenses,
with each Information charging only one offense. Thus, petitioners erroneously invoke
duplicity of charges as a ground to quash the Informations. On this score alone, the
petition deserves outright denial.

The Filing of Several Charges is Proper

Petitioners contend that they should be charged with one offense only — Reckless
Imprudence Resulting in Damage to Property — because (1) all the charges filed against
them "proceed from and are based on a single act or incident of polluting the Boac and
Makalupnit rivers thru dumping of mine tailings" and (2) the charge for violation of
Article 365 of the RPC "absorbs" the other charges since the element of "ack of necessary
or adequate protection, negligence, recklessness and imprudence" is common among
them.

The contention has no merit.

As early as the start of the last century, this Court had ruled that a single act or incident
might offend against two or more entirely distinct and unrelated provisions of law thus
justifying the prosecution of the accused for more than one offense.[24] The only limit to
this rule is the Constitutional prohibition that no person shall be twice put in jeopardy of
punishment for "the same offense."[25] In People v. Doriquez,[26] we held that two (or
more) offenses arising from the same act are not "the same" —
x x x if one provision [of law] requires proof of an additional fact or element which the
other does not, x x x. Phrased elsewise, where two different laws (or articles of the same
code) define two crimes, prior jeopardy as to one of them is no obstacle to a prosecution
of the other, although both offenses arise from the same facts, if each crime involves
some important act which is not an essential element of the other.[27] (Emphasis
supplied)
Here, double jeopardy is not at issue because not all of its elements are
present.[28] However, for the limited purpose of controverting petitioners' claim that they
should be charged with one offense only, we quote with approval Branch 94's
comparative analysis of PD 1067, PD 984, RA 7942, and Article 365 of the RPC showing
that in each of these laws on which petitioners were charged, there is one essential
element not required of the others, thus:
In P.D. 1067 (Philippines Water Code), the additional element to be established is the
dumping of mine tailings into the Makulapnit River and the entire Boac River System
without prior permit from the authorities concerned. The gravamen of the offense here is
the absence of the proper permit to dump said mine tailings. This element is not
indispensable in the prosecution for violation of PD 984 (Anti-Pollution Law), [RA] 7942
(Philippine Mining Act) and Art. 365 of the Revised Penal Code. One can be validly
prosecuted for violating the Water Code even in the absence of actual pollution, or even
[if] it has complied with the terms of its Environmental Compliance Certificate, or
further, even [if] it did take the necessary precautions to prevent damage to property.

In P.D. 984 (Anti-Pollution Law), the additional fact that must be proved is the existence
of actual pollution. The gravamen is the pollution itself. In the absence of any pollution,
the accused must be exonerated under this law although there was unauthorized dumping
of mine tailings or lack of precaution on its part to prevent damage to property.

In R.A. 7942 (Philippine Mining Act), the additional fact that must be established is the
willful violation and gross neglect on the part of the accused to abide by the terms and
conditions of the Environmental Compliance Certificate, particularly that the Marcopper
should ensure the containment of run-off and silt materials from reaching the Mogpog
and Boac Rivers. If there was no violation or neglect, and that the accused
satisfactorily proved [sic] that Marcopper had done everything to ensure containment of
the run-off and silt materials, they will not be liable. It does not follow, however, that
they cannot be prosecuted under the Water Code, Anti-Pollution Law and the Revised
Penal Code because violation of the Environmental Compliance Certificate is not an
essential element of these laws.

On the other hand, the additional element that must be established in Art. 365 of the
Revised Penal Code is the lack of necessary or adequate precaution, negligence,
recklessness and imprudence on the part of the accused to prevent damage to
property. This element is not required under the previous laws. Unquestionably, it is
different from dumping of mine tailings without permit, or causing pollution to the Boac
river system, much more from violation or neglect to abide by the terms of the
Environmental Compliance Certificate. Moreover, the offenses punished by special law
are mal[a] prohibita in contrast with those punished by the Revised Penal Code which
are mala in se.[29]
Consequently, the filing of the multiple charges against petitioners, although based on the
same incident, is consistent with settled doctrine.

On petitioners' claim that the charge for violation of Article 365 of the RPC "absorbs" the
charges for violation of PD 1067, PD 984, and RA 7942, suffice it to say that a mala in
se felony (such as Reckless Imprudence Resulting in Damage to Property) cannot
absorb mala prohibita crimes (such as those violating PD 1067, PD 984, and RA 7942).
What makes the former a felony is criminal intent (dolo) or negligence (culpa); what
makes the latter crimes are the special laws enacting them.

People v. Relova not in Point

Petitioners reiterate their contention in the Court of Appeals that their prosecution
contravenes this Court's ruling in People v. Relova. In particular, petitioners cite the
Court's statement in Relova that the law seeks to prevent harassment of the accused by
"multiple prosecutions for offenses which though different from one another are
nonetheless each constituted by a common set or overlapping sets of technical elements."

This contention is also without merit.

The issue in Relova is whether the act of the Batangas Acting City Fiscal in charging one
Manuel Opulencia ("Opulencia") with theft of electric power under the RPC, after the
latter had been acquitted of violating a City Ordinance penalizing the unauthorized
installation of electrical wiring, violated Opulencia's right against double jeopardy. We
held that it did, not because the offenses punished by those two laws were the same but
because the act giving rise to the charges was punished by an ordinance and a national
statute, thus falling within the proscription against multiple prosecutions for the same act
under the second sentence in Section 22, Article IV of the 1973 Constitution, now
Section 21, Article III of the 1987 Constitution. We held:

The petitioner concludes that:

"The unauthorized installation punished by the ordinance [of Batangas City] is not
the same as theft of electricity [under the Revised Penal Code]; that the second
offense is not an attempt to commit the first or a frustration thereof and that the second
offense is not necessarily included in the offense charged in the first information."

The above argument[ ] made by the petitioner [is] of course correct. This is clear
both from the express terms of the constitutional provision involved – which reads as
follows:

"No person shall be twice put in jeopardy of punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or acquittal under either shall constitute a
bar to another prosecution for the same act." x x x

and from our case law on this point. The basic difficulty with the petitioner's position
is that it must be examined, not under the terms of the first sentence of Article IV
(22) of the 1973 Constitution, but rather under the second sentence of the same
section. The first sentence of Article IV (22) sets forth the general rule: the constitutional
protection against double jeopardy is not available where the second prosecution is for an
offense that is different from the offense charged in the first or prior prosecution,
although both the first and second offenses may be based upon the same act or set of acts.
The second sentence of Article IV (22) embodies an exception to the general
proposition: the constitutional protection, against double jeopardy is available
although the prior offense charged under an ordinance be different from the offense
charged subsequently under a national statute such as the Revised Penal Code,
provided that both offenses spring from the same act or set of acts. x x
x[30] (Italicization in the original; boldfacing supplied)
Thus, Relova is no authority for petitioners' claim against multiple prosecutions based on
a single act not only because the question of double jeopardy is not at issue here, but also
because, as the Court of Appeals held, petitioners are being prosecuted for an act or
incident punished by four national statutes and not by an ordinance and a national statute.
In short, petitioners, if ever, fall under the first sentence of Section 21, Article III which
prohibits multiple prosecution for the same offense, and not, as in Relova, for offenses
arising from the same incident.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 5 November

2001 and the Resolution dated 14 March 2002 of the Court of Appeals.

SO ORDERED.

G.R. No. 178512, November 26, 2014

ALFREDO DE GUZMAN, JR., PETITIONER, VS. PEOPLE OF THE

PHILIPPINES, RESPONDENT.

DECISION

BERSAMIN, J.:

Frustrated homicide requires intent to kill on the part of the offender. Without proof of
such intent, the felony may only be serious physical injuries. Intent to kill may be
established through the overt and external acts and conduct of the offender before, during
and after the assault, or by the nature, location and number of the wounds inflicted on the
victim.

The Case

Under review at the instance of the petitioner is the decision promulgated on September
27, 2006,[1] whereby the Court of Appeals (CA) affirmed his conviction for frustrated
homicide committed against Alexander Flojo under the judgment rendered on September
10, 2003 by the Regional Trial Court (RTC), Branch 213, in Mandaluyong City in
Criminal Case No. 191-MD.[2]

Antecedents

The CA summarized the versions of the parties as follows:

x x x [O]n December 24, 1997, at about ten o’clock in the evening, Alexander Flojo
(hereafter “Alexander”) was fetching water below his rented house at 443 Aglipay Street,
Old Zaniga St., Mandaluyong City when suddenly Alfredo De Guzman (hereafter
“Alfredo”), the brother of his land lady, Lucila Bautista (hereafter “Lucila”), hit him on
the nape. Alexander informed Lucila about what Alfredo did to him. Lucila apologized to
Alexander by saying, “Pasensya ka na Mang Alex” and told the latter to just go up.
Alexander obliged and went upstairs. He took a rest for about two hours. Thereafter, at
around 12:00 to 12:15 A.M., Alexander went down and continued to fetch water. While
pouring water into a container, Alfredo suddenly appeared in front of Alexander and
stabbed him on his left face and chest.

Cirilino Bantaya, a son-in-law of Alexander, saw the latter bleeding on the left portion of
his body and begging for help. Alexander then told Cirilino that Alfredo stabbed him.
Cirilino immediately loaded Alexander into his motorcycle (backride) and brought him to
the Mandaluyong City Medical Center. Upon arrival at the hospital, the doctors
immediately rendered medical assistance to Alexander. Alexander stayed in the
emergency room of said hospital for about 30 to 40 minutes. Then, he was brought to the
second floor of the said hospital where he was confined for two days. Thereafter,
Alexander was transferred to the Polymedic General Hospital where he was subjected for
(sic) further medical examination.

Alexander sustained two stabbed (sic) wounds. (sic) One of which was on the zygoma,
left side, and about one (1) cm. long. The other is on his upper left chest which penetrated
the fourth intercostal space at the proximal clavicular line measuring about two (2) cm.
The second stabbed (sic) wound penetrated the thoracic wall and left lung of the victim
which resulted to blood air (sic) in the thoracic cavity thus necessitating the insertion of a
thoracostomy tube to remove the blood. According to Dr. Francisco Obmerga, the
physician who treated the victim at the Mandaluyong City Medical Center, the second
wound was fatal and could have caused Alexander’s death without timely medical
intervention. (Tsn, July 8, 1998, p.8).

On the other hand, Alfredo denied having stabbed Alexander. According to him, on
December 25, 1997 at around midnight, he passed by Alexander who was, then, fixing a
motorcycle. At that point, he accidentally hit Alexander’s back, causing the latter to
throw invective words against him. He felt insulted, thus, a fistfight ensued between
them. They even rolled on the ground. Alfredo hit Alexander on the cheek causing blood
to ooze from the latter’s face.[3]
The RTC convicted the petitioner, decreeing thusly:
PRESCINDING (sic) FROM THE FOREGOING CONSIDERATIONS, the court finds
accused Alfredo De Guzman y Agkis a.k.a., “JUNIOR,” guilty beyond reasonable doubt
for (sic) the crime of FRUSTRATED HOMICIDE defined and penalized in Article 250
of the Revised Penal Code and in the absence of any modifying circumstance, he is
hereby sentenced to suffer the indeterminate penalty of Six (6) Months and One (1) day
of PRISION CORR[R]ECCIONAL as MINIMUM to Six (6) Years and One (1) day of
PRISION MAYOR as MAXIMUM.

The accused is further ordered to pay the private complainant compensatory damages in
the amount of P14,170.35 representing the actual pecuniary loss suffered by him as he
has duly proven.
SO ORDERED.[4]
On appeal, the petitioner contended that his guilt had not been proved beyond reasonable
doubt; that intent to kill, the critical element of the crime charged, was not established;
that the injuries sustained by Alexander were mere scuffmarks inflicted in the heat of
anger during the fistfight between them; that he did not inflict the stab wounds, insisting
that another person could have inflicted such wounds; and that he had caused only slight
physical injuries on Alexander, for which he should be accordingly found guilty.

Nonetheless, the CA affirmed the petitioner’s conviction, viz:

WHEREFORE, premises considered, the instant appeal is DISMISSED. The September
10, 2003 Decision of the Regional Trial Court of Mandaluyong City, Branch 213, is
hereby AFFIRMED in toto.

SO ORDERED.[5]
The CA denied the petitioner’s motion for reconsideration on May 2, 2007.[6]

Issue

Was the petitioner properly found guilty beyond reasonable doubt of frustrated homicide?

Ruling

The appeal lacks merit.

The elements of frustrated homicide are: (1) the accused intended to kill his victim, as
manifested by his use of a deadly weapon in his assault; (2) the victim sustained fatal or
mortal wound but did not die because of timely medical assistance; and (3) none of the
qualifying circumstances for murder under Article 248 of the Revised Penal Code, as
amended, is present.[7] Inasmuch as the trial and appellate courts found none of the
qualifying circumstances in murder under Article 248 to be present, we immediately
proceed to ascertain the presence of the two other elements.

The petitioner adamantly denies that intent to kill was present during the fistfight
between him and Alexander. He claims that the heightened emotions during the fistfight
naturally emboldened both of them, but he maintains that he only inflicted minor
abrasions on Alexander, not the stab wounds that he appeared to have sustained. Hence,
he should be held liable only for serious physical injuries because the intent to kill, the
necessary element to characterize the crime as homicide, was not sufficiently established.
He avers that such intent to kill is the main element that distinguishes the crime of
physical injuries from the crime of homicide; and that the crime is homicide only if the
intent to kill is competently shown.

The essential element in frustrated or attempted homicide is the intent of the offender to
kill the victim immediately before or simultaneously with the infliction of injuries. Intent
to kill is a specific intent that the State must allege in the information, and then prove by
either direct or circumstantial evidence, as differentiated from a general criminal intent,
which is presumed from the commission of a felony by dolo.[8] Intent to kill, being a state
of mind, is discerned by the courts only through external manifestations, i.e., the acts and
conduct of the accused at the time of the assault and immediately thereafter. In Rivera v.
People,[9] we considered the following factors to determine the presence of intent to kill,
namely: (1) the means used by the malefactors; (2) the nature, location, and number of
wounds sustained by the victim; (3) the conduct of the malefactors before, during, or
immediately after the killing of the victim; and (4) the circumstances under which the
crime was committed and the motives of the accused. We have also considered as
determinative factors the motive of the offender and the words he uttered at the time of
inflicting the injuries on the victim.[10]

Here, both the trial and the appellate court agreed that intent to kill was present. We
concur with them. Contrary to the petitioner’s submission, the wounds sustained by
Alexander were not mere scuffmarks inflicted in the heat of anger or as the result of a
fistfight between them. The petitioner wielded and used a knife in his assault on
Alexander. The medical records indicate, indeed, that Alexander sustained two stab
wounds, specifically, one on his upper left chest and the other on the left side of his face.
The petitioner’s attack was unprovoked with the knife used therein causing such wounds,
thereby belying his submission, and firmly proving the presence of intent to kill. There is
also to be no doubt about the wound on Alexander’s chest being sufficient to result into
his death were it not for the timely medical intervention.

With the State having thereby shown that the petitioner already performed all the acts of
execution that should produce the felony of homicide as a consequence, but did not
produce it by reason of causes independent of his will, i.e., the timely medical attention
accorded to Alexander, he was properly found guilty of frustrated homicide.

We have no cogent reason to deviate from or to disregard the findings of the trial and
appellate courts on the credibility of Alexander’s testimony. It is not disputed that the
testimony of a single but credible and trustworthy witness sufficed to support the
conviction of the petitioner. This guideline finds more compelling application when the
lone witness is the victim himself whose direct and positive identification of his assailant
is almost always regarded with indubitable credibility, owing to the natural tendency of
the victim to seek justice for himself, and thus strive to remember the face of his assailant
and to recall the manner in which the latter committed the crime.[11] Moreover, it is
significant that the petitioner’s mere denial of the deadly manner of his attack was
contradicted by the credible physical evidence corroborating Alexander’s statements.
Under the circumstances, we can only affirm the petitioner’s conviction for frustrated
homicide.

The affirmance of the conviction notwithstanding, we find the indeterminate penalty of

“Six (6) Months and One (1) day of PRISION CORR[R]ECCIONAL as MINIMUM to
Six (6) Years and One (1) day of PRISION MAYOR as MAXIMUM”[12] fixed by the
RTC erroneous despite the CA concurring with the trial court thereon. Under Section 1 of
the Indeterminate Sentence Law, an indeterminate sentence is imposed on the offender
consisting of a maximum term and a minimum term.[13] The maximum term is the penalty
properly imposed under the Revised Penal Code after considering any attending
modifying circumstances; while the minimum term is within the range of the penalty next
lower than that prescribed by the Revised Penal Code for the offense committed.
Conformably with Article 50 of the Revised Penal Code,[14] frustrated homicide is
punished by prision mayor, which is next lower to reclusion temporal, the penalty for
homicide under Article 249 of the Revised Penal Code. There being no aggravating or
mitigating circumstances present, however, prision mayor in its medium period – from
eight years and one day to 10 years – is proper. As can be seen, the maximum of six years
and one day of prision mayor as fixed by the RTC and affirmed by the CA was not within
the medium period of prision mayor. Accordingly, the correct indeterminate sentence is
four years of prision correccional, as the minimum, to eight years and one day of prision
mayor, as the maximum.

The RTC and the CA also agreed on limiting the civil liability to the sum of P14,170.35
as compensatory damages “representing the actual pecuniary loss suffered by
[Alexander] as he has duly proven.”[15] We need to revise such civil liability in order to
conform to the law, the Rules of Court and relevant jurisprudence. In Bacolod v.
People,[16] we emphatically declared to be “imperative that the courts prescribe the proper
penalties when convicting the accused, and determine the civil liability to be imposed on
the accused, unless there has been a reservation of the action to recover civil liability or a
waiver of its recovery.” We explained why in the following manner:
It is not amiss to stress that both the RTC and the CA disregarded their express mandate
under Section 2, Rule 120 of the Rules of Court to have the judgment, if it was of
conviction, state: “(1) the legal qualification of the offense constituted by the acts
committed by the accused and the aggravating or mitigating circumstances which
attended its commission; (2) the participation of the accused in the offense, whether as
principal, accomplice, or accessory after the fact; (3) the penalty imposed upon the
accused; and (4) the civil liability or damages caused by his wrongful act or
omission to be recovered from the accused by the offended party, if there is any,
unless the enforcement of the civil liability by a separate civil action has been
reserved or waived.” Their disregard compels us to act as we now do lest the Court be
unreasonably seen as tolerant of their omission. That the Spouses Cogtas did not
themselves seek the correction of the omission by an appeal is no hindrance to this action
because the Court, as the final reviewing tribunal, has not only the authority but also the
duty to correct at any time a matter of law and justice.

We also pointedly remind all trial and appellate courts to avoid omitting reliefs that the
parties are properly entitled to by law or in equity under the established facts. Their
judgments will not be worthy of the name unless they thereby fully determine the rights
and obligations of the litigants. It cannot be otherwise, for only by a full determination of
such rights and obligations would they be true to the judicial office of administering
justice and equity for all. Courts should then be alert and cautious in their rendition of
judgments of conviction in criminal cases. They should prescribe the legal penalties,
which is what the Constitution and the law require and expect them to do. Their
prescription of the wrong penalties will be invalid and ineffectual for being done without
jurisdiction or in manifest grave abuse of discretion amounting to lack of jurisdiction.
They should also determine and set the civil liability ex delicto of the accused, in order to
do justice to the complaining victims who are always entitled to them. The Rules of
Court mandates them to do so unless the enforcement of the civil liability by separate
actions has been reserved or waived.[17]
Alexander as the victim in frustrated homicide suffered moral injuries because the
offender committed violence that nearly took away the victim’s life. “Moral damages
include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and similar injury. Though incapable
of pecuniary computation, moral damages may be recovered if they are the proximate
result of the defendant's wrongful act for omission.”[18] Indeed, Article 2219, (1), of
the Civil Code expressly recognizes the right of the victim in crimes resulting in physical
injuries.[19] Towards that end, the Court, upon its appreciation of the records, decrees that
P30,000.00 is a reasonable award of moral damages.[20] In addition, AAA was entitled to
recover civil indemnity of P30,000.00.[21] Both of these awards did not require allegation
and proof.

In addition, the amounts awarded as civil liability of the petitioner shall earn interest of
6% per annum reckoned from the finality of this decision until full payment by the
accused.

WHEREFORE, the Court AFFIRMS the decision promulgated on September 27, 2006
finding petitioner Alfredo De Guzman, Jr. GUILTY beyond reasonable doubt
of FRUSTRATED HOMICIDE, and SENTENCES him to suffer the indeterminate
penalty of four years of prision correccional, as the minimum, to eight years and one day
of prision mayor, as the maximum; ORDERS the petitioner to pay to Alexander Flojo
civil indemnity of P30,000.00; moral damages of P30,000.00; and compensatory
damages of P14,170.35, plus interest of 6% per annum on all such awards from the
finality of this decision until full payment; and DIRECTS the petitioner to pay the costs
of suit.

SO ORDERED.

G.R. No. 171951, August 28, 2009

AMADO ALVARADO GARCIA, PETITIONER, VS. PEOPLE OF THE

PHILIPPINES, RESPONDENT.

DECISION

QUISUMBING, J.:
For review on certiorari is the Decision[1] dated December 20, 2005 of the Court of
Appeals in CA-G.R.-CR No. 27544 affirming the Decision[2] dated July 2, 2003 of the
Regional Trial Court (RTC), Branch 9, Aparri, Cagayan, which found petitioner Amado
Garcia guilty beyond reasonable doubt of homicide. Contested as well is the appellate
court's Resolution[3] dated March 13, 2006 denying petitioner's Motion for
Reconsideration.[4]

On February 10, 2000, petitioner was charged with murder in an Information that alleges
as follows:

The undersigned, Provincial Prosecutor accuses AMADO GARCIA @ Manding of the

crime of Murder, defined and penalized under Article [248] of the Revised Penal Code,
as amended by Republic Act No. 7659, committed as follows:

That on or about September 29, 1999, in the municipality of Aparri, province of Cagayan,
and within the jurisdiction of this Honorable Court, the above-named accused, armed
with a bottle, with intent to kill, with evident premeditation and with treachery, did then
and there wilfully, unlawfully and feloniously assault, attack, box, club and maul one
Manuel K. Chy, inflicting upon the latter fatal injuries which caused his death.

CONTRARY TO LAW.[5]

Upon arraignment, petitioner entered a not guilty plea. Thereafter, trial on the merits
ensued.

The factual antecedents are as follows:

At approximately 11:00 a.m. on September 26, 1999, petitioner, Fidel Foz, Jr. and
Armando Foz had a drinking spree at the apartment unit of Bogie Tacuboy, which was
adjacent to the house of Manuel K. Chy. At around 7:00 p.m., Chy appealed for the group
to quiet down as the noise from the videoke machine was blaring. It was not until Chy
requested a second time that the group acceded. Unknown to Chy, this left petitioner irate
and petitioner was heard to have said in the Ilocano vernacular, "Dayta a Manny
napangas makaala caniac dayta." (This Manny is arrogant, I will lay a hand on him.)[6]

On September 28, 1999, the group met again to celebrate the marriage of Ador Tacuboy
not far from Chy's apartment. Maya Mabbun advised the group to stop singing lest they
be told off again. This further infuriated petitioner who remarked, "Talaga a napangas ni
Manny saan ko a pagbayagen daytoy," meaning, "This Manny is really arrogant, I will
not let him live long."[7]

Yet again, at around 12:00 p.m. on September 29, 1999, the group convened at the house
of Foz and Garcia. There, petitioner, Foz, Jr. and Fred Rillon mused over the drinking
session on the 26th and 28th of September and the confrontation with Chy. Enraged at the
memory, petitioner blurted out "Talaga a napangas dayta a day[t]oy a Manny ikabbut ko
ita." (This Manny is really arrogant, I will finish him off today.)[8] Later that afternoon,
the group headed to the store of Adela dela Cruz where they drank until petitioner
proposed that they move to Punta. On their way to Punta, the group passed by the store of
Aurelia Esquibel, Chy's sister, and there, decided to have some drinks.

At this juncture, petitioner ordered Esquibel to call on Chy who, incidentally, was coming
out of his house at the time. Upon being summoned, the latter approached petitioner who
suddenly punched him in the face. Chy cried out, "Bakit mo ako sinuntok hindi ka naman
[inaano]?" (Why did you box me[?] I'm not doing anything to you.)[9] But petitioner kept
on assaulting him. Foz attempted to pacify petitioner but was himself hit on the nose
while Chy continued to parry the blows. Petitioner reached for a bottle of beer, and with
it, struck the lower back portion of Chy's head. Then, Foz shoved Chy causing the latter
to fall.

When Chy found an opportunity to escape, he ran towards his house and phoned his wife
Josefina to call the police. Chy told Josefina about the mauling and complained of
difficulty in breathing. Upon reaching Chy's house, the policemen knocked five times but
nobody answered. Josefina arrived minutes later, unlocked the door and found Chy lying
unconscious on the kitchen floor, salivating. He was pronounced dead on arrival at the
hospital. The autopsy confirmed that Chy died of myocardial infarction.

After trial in due course, the RTC of Aparri, Cagayan (Branch 9) found petitioner guilty
beyond reasonable doubt of homicide. The dispositive portion of the RTC decision reads:

WHEREFORE, the Court renders judgment:

1) Finding AMADO GARCIA guilty beyond reasonable doubt for the crime of
HOMICIDE defined and penalized by Article 249 of the Revised Penal Code and after
applying in his favor the provisions of the Indeterminate Sentence Law, hereby sentences
him to suffer an indeterminate prison term of TEN (10) YEARS OF PRISION MAYOR,
as minimum, to FOURTEEN (14) YEARS and EIGHT (8) MONTHS of RECLUSION
TEMPORAL as maximum;

2) Ordering him to pay the heirs of Manuel Chy the amount of FIFTY THOUSAND
(P50,000.00) PESOS, as death indemnity; TWO HUNDRED THOUSAND
(P200,000.00) PESOS, representing expenses for the wake and burial; THREE
HUNDRED THOUSAND (P300,000.00) PESOS, as moral damages; and THREE
HUNDRED THIRTY[-]TWO THOUSAND (P332,000.00] PESOS, as loss of earning,
plus the cost of this suit.

SO ORDERED.[10]

On appeal, the Court of Appeals affirmed the conviction in a Decision dated December
20, 2005, thus:

WHEREFORE, premises considered, appeal is hereby [DENIED] and the July 2, 2003
Decision of the Regional Trial Court of Aparri, Cagayan, Branch [9], in Criminal Case
No. 08-1185, is hereby AFFIRMED IN TOTO.

SO ORDERED.[11]

Petitioner moved for reconsideration but his motion was denied in a Resolution dated
March 13, 2006.

Hence, the instant appeal of petitioner on the following grounds:

I.

THE APPELLATE COURT ERRED IN AFFIRMING THE RULING OF THE TRIAL

COURT THAT PETITIONER IS THE ONE RESPONSIBLE FOR INFLICTING THE
SLIGHT PHYSICAL INJURIES SUSTAINED BY THE DECEASED MANUEL CHY.

II.

THE APPELLATE COURT ERRED IN AFFIRMING THE RULING OF THE TRIAL

COURT FINDING PETITIONER LIABLE FOR THE DEATH OF MANUEL CHY
DESPITE THE FACT THAT THE CAUSE OF DEATH IS MYOCARDIAL
INFARCTION, A NON-VIOLENT RELATED CAUSE OF DEATH.

III.

THE APPELLATE COURT ERRED IN AFFIRMING THE RULING OF THE TRIAL

COURT WHICH CONCLUDED THAT THE HEART FAILURE OF MANUEL CHY
WAS DUE TO "FRIGHT OR SHOCK CAUSED BY THE MALTREATMENT."

IV.

BOTH THE APPELLATE TRIBUNAL AND THE TRIAL COURT ERRED IN NOT
ACQUITTING THE PETITIONER ON THE GROUND OF REASONABLE
DOUBT.[12]

In essence, the issue is whether or not petitioner is liable for the death of Manuel Chy.

In his undated Memorandum,[13] petitioner insists on a review of the factual findings of

the trial court because the judge who penned the decision was not the same judge who
heard the prosecution evidence. He adds that the Court of Appeals had wrongly inferred
from, misread and overlooked certain relevant and undisputed facts, which, if properly
considered, would justify a different conclusion.[14]

At the onset, petitioner denies laying a hand on Manuel Chy. Instead, he implicates
Armando Foz as the author of the victim's injuries. Corollarily, he challenges the
credibility of Armando's brother, Fidel, who testified concerning his sole culpability.
Basically, petitioner disowns responsibility for Chy's demise since the latter was found to
have died of myocardial infarction. In support, he amplifies the testimony of Dr. Cleofas
C. Antonio[15] that Chy's medical condition could have resulted in his death anytime.
Petitioner asserts that, at most, he could be held liable for slight physical injuries because
none of the blows he inflicted on Chy was fatal.

The Office of the Solicitor General reiterates the trial court's assessment of the witnesses
and its conclusion that the beating of Chy was the proximate cause of his death.

Upon careful consideration of the evidence presented by the prosecution as well as the
defense in this case, we are unable to consider the petitioner's appeal with favor.

The present petition was brought under Rule 45 of the Rules of Court, yet, petitioner
raises questions of fact. Indeed, it is opportune to reiterate that this Court is not the proper
forum from which to secure a re-evaluation of factual issues, save where the factual
findings of the trial court do not find support in the evidence on record or where the
judgment appealed from was based on a misapprehension of facts.[16] Neither exception
applies in the instant case as would justify a departure from the established rule.

Further, petitioner invokes a recognized exception to the rule on non-interference with

the determination of the credibility of witnesses. He points out that the judge who penned
the decision is not the judge who received the evidence and heard the witnesses. But
while the situation obtains in this case, the exception does not. The records reveal that
Judge Conrado F. Manauis inhibited from the proceedings upon motion of no less than
the petitioner himself. Consequently, petitioner cannot seek protection from the alleged
adverse consequence his own doing might have caused. For us to allow petitioner relief
based on this argument would be to sanction a travesty of the Rules which was designed
to further, rather than subdue, the ends of justice.

We reiterate, the efficacy of a decision is not necessarily impaired by the fact that
the ponente only took over from a colleague who had earlier presided over the trial. It
does not follow that the judge who was not present during the trial, or a fraction thereof,
cannot render a valid and just decision.[17] Here, Judge Andres Q. Cipriano took over the
case after Judge Manauis recused himself from the proceedings. Even so, Judge Cipriano
not only heard the evidence for the defense, he also had an opportunity to observe Dr.
Cleofas Antonio who was recalled to clarify certain points in his testimony. Worth
mentioning, too, is the fact that Judge Cipriano presided during the taking of the
testimonies of Fidel Foz, Jr. and Alvin Pascua on rebuttal.

In any case, it is not unusual for a judge who did not try a case in its entirety to decide it
on the basis of the records on hand.[18] He can rely on the transcripts of stenographic
notes and calibrate the testimonies of witnesses in accordance with their conformity to
common experience, knowledge and observation of ordinary men. Such reliance does not
violate substantive and procedural due process of law.[19]
The Autopsy Report on the body of Manuel Chy disclosed the following injuries:

POSTMORTEM FINDINGS

Body embalmed, well preserved.

Cyanotic lips and nailbeds.

Contusions, dark bluish red: 4.5 x 3.0 cms., lower portion of the left ear; 4.0 x 2.8
cms., left inferior mastoid region; 2.5 x 1.1 cms., upper lip; 2.7 x 1.0 cms., lower lip; 5.8
x 5.5 cms., dorsum of left hand.

Lacerated wound, 0.8 cm., involving mucosal surface of the upper lip on the right
side.

No fractures noted.

Brain with tortuous vessels. Cut sections show congestion. No hemorrhage noted.

Heart, with abundant fat adherent on its epicardial surface. Cut sections show a reddish
brown myocardium with an area of hyperemia on the whole posterior wall, the lower
portion of the anterior wall and the inferior portion of the septum. Coronary arteries,
gritty, with the caliber of the lumen reduced by approximately thirty (30%) percent.
Histopathological findings show mild fibrosis of the myocardium.

Lungs, pleural surfaces, shiny; with color ranging from dark red to dark purple. Cut
sections show a gray periphery with reddish brown central portion with fluid oozing on
pressure with some reddish frothy materials noted. Histopathological examinations show
pulmonary edema and hemorrhages.

Kidneys, purplish with glistening capsule. Cut sections show congestion.

Histopathological examinations show mild lymphocytic infiltration.

Stomach, one-half (1/2) full with brownish and whitish materials and other partially
digested food particles.

CAUSE OF DEATH: - Myocardial Infarction. (Emphasis supplied.)[20]

At first, petitioner denied employing violence against Chy. In his undated Memorandum,
however, he admitted inflicting injuries on the deceased, albeit, limited his liability to
slight physical injuries. He argues that the superficial wounds sustained by Chy did not
cause his death.[21] Quite the opposite, however, a conscientious analysis of the records
would acquaint us with the causal connection between the death of the victim and the
mauling that preceded it. In open court, Dr. Antonio identified the immediate cause of
Chy's myocardial infarction:
ATTY. TUMARU:
Q: You diagnose[d] the cause of death to be myocardial infarction that is because
there was an occlusion in the artery that prevented the flowing of blood into the
heart?
A: That was not exactly seen at the autopsy table but it changes, the hyperemic
changes [in] the heart muscle were the one[s] that made us [think] or gave strong
conclusion that it was myocardial infarction, and most likely the cause
is occlusion of the blood vessels itself. (Emphasis supplied.)[22]

By definition, coronary occlusion[23] is the complete obstruction of an artery of the heart,

usually from progressive arteriosclerosis[24] or the thickening and loss of elasticity of the
arterial walls. This can result from sudden emotion in a person with an existing
arteriosclerosis; otherwise, a heart attack will not occur.[25] Dr. Jessica Romero testified
on direct examination relative to this point:

ATTY. CALASAN:
Q: Could an excitement trigger a myocardial infarction?
A: Excitement, I cannot say that if the patient is normal[;] that is[,] considering that
the patient [does] not have any previous [illness] of hypertension, no previous
history of myocardial [ischemia], no previous [arteriosis] or hardening of the
arteries, then excitement [cannot] cause myocardial infarction. (Emphasis
supplied.)[26]

The Autopsy Report bears out that Chy has a mild fibrosis of the myocardium[27] caused
by a previous heart attack. Said fibrosis[28] or formation of fibrous tissue or scar tissue
rendered the middle and thickest layer of the victim's heart less elastic and vulnerable to
coronary occlusion from sudden emotion. This causation is elucidated by the testimony
of Dr. Antonio:

ATTY. CALASAN:
Q: You said that the physical injuries will cause no crisis on the part of the victim,
Doctor?
A: Yes, sir.
Q: And [these] physical injuries [were] caused by the [boxing] on the mouth
and[/]or hitting on the nape by a bottle?
A: Yes, sir.
Q: On the part of the deceased, that [was] caused definitely by emotional crisis,
Doctor?
A: Yes, sir.
Q: And because of this emotional crisis the heart palpitated so fast, so much so, that
there was less oxygen being pumped by the heart?
A: Yes, sir.
Q: And definitely that caused his death, Doctor?
A: Yes, sir, it could be.[29]

In concurrence, Dr. Antonio A. Paguirigan also testified as follows:

ATTY. CALASAN:
I will repeat the question... Dr. Antonio testified that the deceased died because
Q: of the blow that was inflicted, it triggered the death of the deceased, do you
agree with his findings, Doctor?
A: Not probably the blow but the reaction sir.
Q: So you agree with him, Doctor?
A: It could be, sir.
Q: You agree with him on that point, Doctor?
A: Yes, sir.[30]

It can be reasonably inferred from the foregoing statements that the emotional strain from
the beating aggravated Chy's delicate constitution and led to his death. The inevitable
conclusion then surfaces that the myocardial infarction suffered by the victim was the
direct, natural and logical consequence of the felony that petitioner had intended to
commit.

Article 4(1) of the Revised Penal Code states that criminal liability shall be incurred "by
any person committing a felony (delito) although the wrongful act done be different from
that which he intended." The essential requisites for the application of this provision are:
(a) the intended act is felonious; (b) the resulting act is likewise a felony; and (c) the
unintended albeit graver wrong was primarily caused by the actor's wrongful acts.[31]

In this case, petitioner was committing a felony when he boxed the victim and hit him
with a bottle. Hence, the fact that Chy was previously afflicted with a heart ailment does
not alter petitioner's liability for his death. Ingrained in our jurisprudence is the doctrine
laid down in the case of United States v. Brobst[32] that:

x x x where death results as a direct consequence of the use of illegal violence, the mere
fact that the diseased or weakened condition of the injured person contributed to his
death, does not relieve the illegal aggressor of criminal responsibility.[33]

In the same vein, United States v. Rodriguez[34] enunciates that:

x x x although the assaulted party was previously affected by some internal malady, if,
because of a blow given with the hand or the foot, his death was hastened, beyond
peradventure he is responsible therefor who produced the cause for such acceleration as
the result of a voluntary and unlawfully inflicted injury. (Emphasis supplied.)[35]

In this jurisdiction, a person committing a felony is responsible for all the natural and
logical consequences resulting from it although the unlawful act performed is different
from the one he intended;[36] "el que es causa de la causa es causa del mal causado" (he
who is the cause of the cause is the cause of the evil caused).[37] Thus, the circumstance
that petitioner did not intend so grave an evil as the death of the victim does not exempt
him from criminal liability. Since he deliberately committed an act prohibited by law,
said condition simply mitigates his guilt in accordance with Article 13(3)[38] of the
Revised Penal Code.[39] Nevertheless, we must appreciate as mitigating circumstance in
favor of petitioner the fact that the physical injuries he inflicted on the victim, could not
have resulted naturally and logically, in the actual death of the victim, if the latter's heart
was in good condition.

Considering that the petitioner has in his favor the mitigating circumstance of lack of
intention to commit so grave a wrong as that committed without any aggravating
circumstance to offset it, the imposable penalty should be in the minimum period, that
is, reclusion temporal in its minimum period,[40]or anywhere from twelve (12) years and
one (1) day to fourteen years (14) years and eight (8) months. Applying the Indeterminate
Sentence Law,[41] the trial court properly imposed upon petitioner an indeterminate
penalty of ten (10) years of prisión mayor, as minimum, to fourteen (14) years and eight
(8) months of reclusion temporal as maximum.

We shall, however, modify the award of damages to the heirs of Manuel Chy for his loss
of earning capacity in the amount of P332,000. In fixing the indemnity, the victim's
actual income at the time of death and probable life expectancy are taken into account.
For this purpose, the Court adopts the formula used in People v. Malinao:[42]

Net earning capacity2/3 x (80-age of the x a reasonable portion of theannual net

= victim at the time of income which would have been
this death) received by the heirs for support.[43]

Branch 9 of the Aparri, Cagayan RTC took judicial notice of the salary which Manuel
Chy was receiving as a sheriff of the court. At the time of his death, Chy was 51 years old
and was earning a gross monthly income of P10,600 or a gross annual income of
P127,200. But, in view of the victim's delicate condition, the trial court reduced his life
expectancy to 10 years. It also deducted P7,000 from Chy's salary as reasonable living
expense. However, the records are bereft of showing that the heirs of Chy submitted
evidence to substantiate actual living expenses. And in the absence of proof of living
expenses, jurisprudence[44] approximates net income to be 50% of the gross income.
Accordingly, by reason of his death, the heirs of Manuel Chy should be awarded
P1,229,600 as loss of earning capacity, computed as follows:

Net earning capacity = 2/3 x (80-51) x [P127,200 - ½ (P127,200)]

= 2/3 x (29) x P63,600
= 19 1/3 x P63,600
= P1,229,600

We sustain the trial court's grant of funerary expense of P200,000 as stipulated by the
parties[45] and civil indemnity of P50,000.[46] Anent moral damages, the same is
mandatory in cases of murder and homicide, without need of allegation and proof other
than the death of the victim.[47] However, in obedience to the controlling case law, the
amount of moral damages should be reduced to P50,000.

WHEREFORE, the Decision dated December 20, 2005 and the Resolution dated March
13, 2006 of the Court of Appeals in CA-G.R.-CR No. 27544 are AFFIRMED with
MODIFICATION in that the award of moral damages is reduced to P50,000. Petitioner
is further ordered to indemnify the heirs of Manuel K. Chy P50,000 as civil indemnity;
P200,000, representing expenses for the wake and burial; and P1,229,600 as loss of
earning capacity.

No pronouncement as to costs.

SO ORDERED.

G.R. No. 162540, July 13, 2009

GEMMA T. JACINTO, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,

RESPONDENT.

DECISION

PERALTA, J.:

Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto

seeking the reversal of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No.
23761 dated December 16, 2003, affirming petitioner's conviction of the crime of
Qualified Theft, and its Resolution[2] dated March 5, 2004 denying petitioner's motion for
reconsideration.

Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera and
Jacqueline Capitle, was charged before the Regional Trial Court (RTC) of Caloocan City,
Branch 131, with the crime of Qualified Theft, allegedly committed as follows:

That on or about and sometime in the month of July 1997, in Kalookan City, Metro
Manila, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring together and mutually helping one another, being then all employees of
MEGA FOAM INTERNATIONAL INC., herein represented by JOSEPH DYHENGCO
Y CO, and as such had free access inside the aforesaid establishment, with grave abuse of
trust and confidence reposed upon them with intent to gain and without the knowledge
and consent of the owner thereof, did then and there willfully, unlawfully and feloniously
take, steal and deposited in their own account, Banco De Oro Check No. 0132649 dated
July 14, 1997 in the sum of P10,000.00, representing payment made by customer Baby
Aquino to the Mega Foam Int'l. Inc. to the damage and prejudice of the latter in the
aforesaid stated amount of P10,000.00.

CONTRARY TO LAW.[3]

The prosecution's evidence, which both the RTC and the CA found to be more credible,
reveals the events that transpired to be as follows.

In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed
petitioner Banco De Oro (BDO) Check Number 0132649 postdated July 14, 1997 in the
amount of P10,000.00. The check was payment for Baby Aquino's purchases from Mega
Foam Int'l., Inc., and petitioner was then the collector of Mega Foam. Somehow, the
check was deposited in the Land Bank account of Generoso Capitle, the husband of
Jacqueline Capitle; the latter is the sister of petitioner and the former pricing,
merchandising and inventory clerk of Mega Foam.

Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call
sometime in the middle of July from one of their customers, Jennifer Sanalila. The
customer wanted to know if she could issue checks payable to the account of Mega
Foam, instead of issuing the checks payable to CASH. Said customer had apparently been
instructed by Jacqueline Capitle to make check payments to Mega Foam payable
to CASH. Around that time, Ricablanca also received a phone call from an employee of
Land Bank, Valenzuela Branch, who was looking for Generoso Capitle. The reason for
the call was to inform Capitle that the subject BDO check deposited in his account had
been dishonored.

Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega

Foam, asking the latter to inform Jacqueline Capitle about the phone call from Land Bank
regarding the bounced check. Ricablanca explained that she had to call and relay the
message through Valencia, because the Capitles did not have a phone; but they could be
reached through Valencia, a neighbor and former co-employee of Jacqueline Capitle at
Mega Foam.

Valencia then told Ricablanca that the check came from Baby Aquino, and instructed
Ricablanca to ask Baby Aquino to replace the check with cash. Valencia also told
Ricablanca of a plan to take the cash and divide it equally into four: for herself,
Ricablanca, petitioner Jacinto and Jacqueline Capitle. Ricablanca, upon the advise of
Mega Foam's accountant, reported the matter to the owner of Mega Foam, Joseph
Dyhengco.

Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the
latter indeed handed petitioner a BDO check for P10,000.00 sometime in June 1997 as
payment for her purchases from Mega Foam.[4] Baby Aquino further testified that,
sometime in July 1997, petitioner also called her on the phone to tell her that the BDO
check bounced.[5] Verification from company records showed that petitioner never
remitted the subject check to Mega Foam. However, Baby Aquino said that she had
already paid Mega Foam P10,000.00 cash in August 1997 as replacement for the
dishonored check.[6]

Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO
check in his bank account, but explained that the check came into his possession when
some unknown woman arrived at his house around the first week of July 1997 to have the
check rediscounted. He parted with his cash in exchange for the check without even
bothering to inquire into the identity of the woman or her address. When he was informed
by the bank that the check bounced, he merely disregarded it as he didn't know where to
find the woman who rediscounted the check.

Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation (NBI)
and worked out an entrapment operation with its agents. Ten pieces of P1,000.00 bills
provided by Dyhengco were marked and dusted with fluorescent powder by the NBI.
Thereafter, the bills were given to Ricablanca, who was tasked to pretend that she was
going along with Valencia's plan.

On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who
was then holding the bounced BDO check, handed over said check to Ricablanca. They
originally intended to proceed to Baby Aquino's place to have the check replaced with
cash, but the plan did not push through. However, they agreed to meet again on August
21, 2007.

On the agreed date, Ricablanca again went to petitioner's house, where she met petitioner
and Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to the house of
Anita Valencia; Jacqueline Capitle decided not to go with the group because she decided
to go shopping. It was only petitioner, her husband, Ricablanca and Valencia who then
boarded petitioner's jeep and went on to Baby Aquino's factory. Only Ricablanca alighted
from the jeep and entered the premises of Baby Aquino, pretending that she was getting
cash from Baby Aquino. However, the cash she actually brought out from the premises
was the P10,000.00 marked money previously given to her by Dyhengco. Ricablanca
divided the money and upon returning to the jeep, gave P5,000.00 each to Valencia and
petitioner. Thereafter, petitioner and Valencia were arrested by NBI agents, who had
been watching the whole time.

Petitioner and Valencia were brought to the NBI office where the Forensic Chemist
found fluorescent powder on the palmar and dorsal aspects of both of their hands. This
showed that petitioner and Valencia handled the marked money. The NBI filed a criminal
case for qualified theft against the two and one Jane Doe who was later identified as
Jacqueline Capitle, the wife of Generoso Capitle.

The defense, on the other hand, denied having taken the subject check and presented the
following scenario.

Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30,
1997, but claimed that she had stopped collecting payments from Baby Aquino for quite
some time before her resignation from the company. She further testified that, on the day
of the arrest, Ricablanca came to her mother's house, where she was staying at that time,
and asked that she accompany her (Ricablanca) to Baby Aquino's house. Since petitioner
was going for a pre-natal check-up at the Chinese General Hospital, Ricablanca decided
to hitch a ride with the former and her husband in their jeep going to Baby Aquino's place
in Caloocan City. She allegedly had no idea why Ricablanca asked them to wait in their
jeep, which they parked outside the house of Baby Aquino, and was very surprised when
Ricablanca placed the money on her lap and the NBI agents arrested them.

Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned
on June 30, 1997. It was never part of her job to collect payments from customers.
According to her, on the morning of August 21, 1997, Ricablanca called her up on the
phone, asking if she (Valencia) could accompany her (Ricablanca) to the house of Baby
Aquino. Valencia claims that she agreed to do so, despite her admission during cross-
examination that she did not know where Baby Aquino resided, as she had never been to
said house. They then met at the house of petitioner's mother, rode the jeep of petitioner
and her husband, and proceeded to Baby Aquino's place. When they arrived at said place,
Ricablanca alighted, but requested them to wait for her in the jeep. After ten minutes,
Ricablanca came out and, to her surprise, Ricablanca gave her money and so she even
asked, "What is this?" Then, the NBI agents arrested them.

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

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

SO ORDERED.[7]

The three appealed to the CA and, on December 16, 2003, a Decision was promulgated,
the dispositive portion of which reads, thus:

IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in

that:

(a) the sentence against accused Gemma Jacinto stands;

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

SO ORDERED.

A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for
petitioner Gemma Tubale Jacinto, but the same was denied per Resolution dated March
5, 2004.

Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing
the Decision and Resolution of the CA. The issues raised in the petition are as follows:
 1. Whether or not petitioner can be convicted of a crime not charged in the
information;

2. Whether or not a worthless check can be the object of theft; and

3. Whether or not the prosecution has proved petitioner's guilt beyond reasonable
doubt.[8]

The petition deserves considerable thought.

The prosecution tried to establish the following pieces of evidence to constitute the
elements of the crime of qualified theft defined under Article 308, in relation to Article
310, both of the Revised Penal Code: (1) the taking of personal property - as shown by
the fact that petitioner, as collector for Mega Foam, did not remit the customer's check
payment to her employer and, instead, appropriated it for herself; (2) said property
belonged to another − the check belonged to Baby Aquino, as it was her payment for
purchases she made; (3) the taking was done with intent to gain - this is presumed from
the act of unlawful taking and further shown by the fact that the check was deposited to
the bank account of petitioner's brother-in-law; (4) it was done without the owner's
consent - petitioner hid the fact that she had received the check payment from her
employer's customer by not remitting the check to the company; (5) it was accomplished
without the use of violence or intimidation against persons, nor of force upon things - the
check was voluntarily handed to petitioner by the customer, as she was known to be a
collector for the company; and (6) it was done with grave abuse of confidence - petitioner
is admittedly entrusted with the collection of payments from customers.

However, as may be gleaned from the aforementioned Articles of the Revised Penal
Code, the personal property subject of the theft must have some value, as the
intention of the accused is to gain from the thing stolen. This is further bolstered by
Article 309, where the law provides that the penalty to be imposed on the accused is
dependent on the value of the thing stolen.

In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but
the same was apparently without value, as it was subsequently dishonored. Thus, the
question arises on whether the crime of qualified theft was actually produced.

The Court must resolve the issue in the negative.

Intod v. Court of Appeals[9] is highly instructive and applicable to the present case.
In Intod, the accused, intending to kill a person, peppered the latter's bedroom with
bullets, but since the intended victim was not home at the time, no harm came to him.
The trial court and the CA held Intod guilty of attempted murder. But upon review by this
Court, he was adjudged guilty only of an impossible crime as defined and penalized in
paragraph 2, Article 4, in relation to Article 59, both of the Revised Penal Code, because
of the factual impossibility of producing the crime. Pertinent portions of said provisions
read as follows:

Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:

xxxx

2. By any person performing an act which would be an offense against persons or

property, were it not for the inherent impossibility of its accomplishment or on account
of the employment of inadequate to ineffectual means. (emphasis supplied)

Article 59. Penalty to be imposed in case of failure to commit the crime because the
means employed or the aims sought are impossible. - When the person intending to
commit an offense has already performed the acts for the execution of the same but
nevertheless the crime was not produced by reason of the fact that the act intended was
by its nature one of impossible accomplishment or because the means employed by such
person are essentially inadequate to produce the result desired by him, the court, having
in mind the social danger and the degree of criminality shown by the offender, shall
impose upon him the penalty of arresto mayor or a fine ranging from 200 to 500 pesos.

Thus, the requisites of an impossible crime are: (1) that the act performed would be an
offense against persons or property; (2) that the act was done with evil intent; and (3) that
its accomplishment was inherently impossible, or the means employed was either
inadequate or ineffectual. The aspect of the inherent impossibility of accomplishing the
intended crime under Article 4(2) of the Revised Penal Code was further explained by the
Court in Intod[10] in this wise:

Under this article, the act performed by the offender cannot produce an offense against
persons or property because: (1) the commission of the offense is inherently impossible
of accomplishment; or (2) the means employed is either (a) inadequate or (b) ineffectual.

That the offense cannot be produced because the commission of the offense is inherently
impossible of accomplishment is the focus of this petition. To be impossible under this
clause, the act intended by the offender must be by its nature one impossible of
accomplishment. There must be either (1) legal impossibility, or (2) physical
impossibility of accomplishing the intended act in order to qualify the act as an
impossible crime.

Legal impossibility occurs where the intended acts, even if completed, would not amount
to a crime.

xxxx

The impossibility of killing a person already dead falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances unknown
to the actor or beyond his control prevent the consummation of the intended crime. x x
x [11]

In Intod, the Court went on to give an example of an offense that involved factual
impossibility, i.e., a man puts his hand in the coat pocket of another with the intention to
steal the latter's wallet, but gets nothing since the pocket is empty.

Herein petitioner's case is closely akin to the above example of factual impossibility
given in Intod. In this case, petitioner performed all the acts to consummate the crime of
qualified theft, which is a crime against property. Petitioner's evil intent cannot be denied,
as the mere act of unlawfully taking the check meant for Mega Foam showed her intent to
gain or be unjustly enriched. Were it not for the fact that the check bounced, she would
have received the face value thereof, which was not rightfully hers. Therefore, it was only
due to the extraneous circumstance of the check being unfunded, a fact unknown to
petitioner at the time, that prevented the crime from being produced. The thing
unlawfully taken by petitioner turned out to be absolutely worthless, because the check
was eventually dishonored, and Mega Foam had received the cash to replace the value of
said dishonored check.

The fact that petitioner was later entrapped receiving the P5,000.00 marked money,
which she thought was the cash replacement for the dishonored check, is of no moment.
The Court held in Valenzuela v. People[12] that under the definition of theft in Article 308
of the Revised Penal Code, "there is only one operative act of execution by the actor
involved in theft ─ the taking of personal property of another." Elucidating further, the
Court held, thus:

x x x Parsing through the statutory definition of theft under Article 308, there is one
apparent answer provided in the language of the law -- that theft is already "produced"
upon the "tak[ing of] personal property of another without the latter's consent."

xxxx

x x x when is the crime of theft produced? There would be all but certain unanimity in the
position that theft is produced when there is deprivation of personal property due to its
taking by one with intent to gain. Viewed from that perspective, it is immaterial to the
product of the felony that the offender, once having committed all the acts of execution
for theft, is able or unable to freely dispose of the property stolen since the deprivation
from the owner alone has already ensued from such acts of execution. x x x

xxxx

x x x we have, after all, held that unlawful taking, or apoderamiento, is deemed complete
from the moment the offender gains possession of the thing, even if he has no opportunity
to dispose of the same. x x x
x x x Unlawful taking, which is the deprivation of one's personal property, is the element
which produces the felony in its consummated stage. x x x [13]

From the above discussion, there can be no question that as of the time that petitioner
took possession of the check meant for Mega Foam, she had performed all the acts
to consummate the crime of theft, had it not been impossible of accomplishment in
this case. The circumstance of petitioner receiving the P5,000.00 cash as supposed
replacement for the dishonored check was no longer necessary for the consummation of
the crime of qualified theft. Obviously, the plan to convince Baby Aquino to give cash as
replacement for the check was hatched only after the check had been dishonored by the
drawee bank. Since the crime of theft is not a continuing offense, petitioner's act of
receiving the cash replacement should not be considered as a continuation of the theft. At
most, the fact that petitioner was caught receiving the marked money was merely
corroborating evidence to strengthen proof of her intent to gain.

Moreover, the fact that petitioner further planned to have the dishonored check replaced
with cash by its issuer is a different and separate fraudulent scheme. Unfortunately, since
said scheme was not included or covered by the allegations in the Information, the Court
cannot pronounce judgment on the accused; otherwise, it would violate the due process
clause of the Constitution. If at all, that fraudulent scheme could have been another
possible source of criminal liability.

IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court
of Appeals, dated December 16, 2003, and its Resolution dated March 5, 2004,
are MODIFIED. Petitioner Gemma T. Jacinto is found GUILTY of an IMPOSSIBLE
CRIME as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal
Code, respectively. Petitioner is sentenced to suffer the penalty of six (6) months
of arrresto mayor, and to pay the costs.

SO ORDERED.

G.R. No. 180016, April 29, 2014

LITO CORPUZ, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,

RESPONDENT.

DECISION

PERALTA, J.:

This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of
Court, dated November 5, 2007, of petitioner Lito Corpuz (petitioner), seeking to reverse
and set aside the Decision[1] dated March 22, 2007 and Resolution[2] dated September 5,
2007 of the Court of Appeals (CA), which affirmed with modification the
Decision[3] dated July 30, 2004 of the Regional Trial Court (RTC), Branch 46, San
Fernando City, finding the petitioner guilty beyond reasonable doubt of the crime of
Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal Code.

The antecedent facts follow.

Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino in
Olongapo City sometime in 1990. Private complainant was then engaged in the business
of lending money to casino players and, upon hearing that the former had some pieces of
jewelry for sale, petitioner approached him on May 2, 1991 at the same casino and
offered to sell the said pieces of jewelry on commission basis. Private complainant
agreed, and as a consequence, he turned over to petitioner the following items: an 18k
diamond ring for men; a woman's bracelet; one (1) men's necklace and another men's
bracelet, with an aggregate value of P98,000.00, as evidenced by a receipt of even
date. They both agreed that petitioner shall remit the proceeds of the sale, and/or, if
unsold, to return the same items, within a period of 60 days. The period expired without
petitioner remitting the proceeds of the sale or returning the pieces of jewelry. When
private complainant was able to meet petitioner, the latter promised the former that he
will pay the value of the said items entrusted to him, but to no avail.

Thus, an Information was filed against petitioner for the crime of estafa, which reads as
follows:

That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, after
having received from one Danilo Tangcoy, one (1) men's diamond ring, 18k, worth
P45,000.00; one (1) three-baht men's bracelet, 22k, worth P25,000.00; one (1) two-baht
ladies' bracelet, 22k, worth P12,000.00, or in the total amount of Ninety-Eight Thousand
Pesos (P98,000.00), Philippine currency, under expressed obligation on the part of said
accused to remit the proceeds of the sale of the said items or to return the same, if not
sold, said accused, once in possession of the said items, with intent to defraud, and with
unfaithfulness and abuse of confidence, and far from complying with his aforestated
obligation, did then and there wilfully, unlawfully and feloniously misappropriate,
misapply and convert to his own personal use and benefit the aforesaid jewelries (sic) or
the proceeds of the sale thereof, and despite repeated demands, the accused failed and
refused to return the said items or to remit the amount of Ninety-
Eight Thousand Pesos (P98,000.00), Philippine currency, to the damage and prejudice
of said Danilo Tangcoy in the aforementioned amount.

CONTRARY TO LAW.

On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of not
guilty. Thereafter, trial on the merits ensued.

The prosecution, to prove the above-stated facts, presented the lone testimony of Danilo
Tangcoy. On the other hand, the defense presented the lone testimony of petitioner,
which can be summarized, as follows:

Petitioner and private complainant were collecting agents of Antonio Balajadia, who is
engaged in the financing business of extending loans to Base employees. For every
collection made, they earn a commission. Petitioner denied having transacted any
business with private complainant. However, he admitted obtaining a loan from
Balajadia sometime in 1989 for which he was made to sign a blank receipt. He claimed
that the same receipt was then dated May 2, 1991 and used as evidence against him for
the supposed agreement to sell the subject pieces of jewelry, which he did not even see.

After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged
in the Information. The dispositive portion of the decision states:

WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of

the felony of Estafa under Article 315, paragraph one (1), subparagraph (b) of the
Revised Penal Code;

there being no offsetting generic aggravating nor ordinary mitigating circumstance/s to

vary the penalty imposable;

accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of

liberty consisting of an imprisonment under the Indeterminate Sentence Law of FOUR
(4) YEARS AND TWO (2) MONTHS of Prision Correccional in its medium period AS
MINIMUM, to FOURTEEN (14) YEARS AND EIGHT (8) MONTHS of Reclusion
Temporal in its minimum period AS MAXIMUM; to indemnify private complainant
Danilo Tangcoy the amount of P98,000.00 as actual damages, and to pay the costs of suit.

SO ORDERED.

The case was elevated to the CA, however, the latter denied the appeal of petitioner and
affirmed the decision of the RTC, thus:

WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30,
2004 of the RTC of San Fernando City (P), Branch 46, is hereby AFFIRMED with
MODIFICATION on the imposable prison term, such that accused-appellant shall suffer
the indeterminate penalty of 4 years and 2 months of prision correccional, as minimum,
to 8 years of prision mayor, as maximum, plus 1 year for each additional P10,000.00, or a
total of 7 years. The rest of the decision stands.

SO ORDERED.

Petitioner, after the CA denied his motion for reconsideration, filed with this Court the
present petition stating the following grounds:
A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE
ADMISSION AND APPRECIATION BY THE LOWER COURT OF PROSECUTION
EVIDENCE, INCLUDING ITS EXHIBITS, WHICH ARE MERE MACHINE COPIES,
AS THIS VIOLATES THE BEST EVIDENCE RULE;

B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE

LOWER COURT'S FINDING THAT THE CRIMINAL INFORMATION FOR
ESTAFA WAS NOT FATALLY DEFECTIVE ALTHOUGH THE SAME DID NOT
CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE REVISED PENAL
CODE IN THAT -

1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE SUBJECT
[PIECES OF] JEWELRY SHOULD BE RETURNED, IF UNSOLD, OR THE MONEY
TO BE REMITTED, IF SOLD;

2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE

INFORMATION AS OF 05 JULY 1991 WAS MATERIALLY DIFFERENT FROM
THE ONE TESTIFIED TO BY THE PRIVATE COMPLAINANT WHICH WAS 02
MAY 1991;

C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE

LOWER COURT'S FINDING THAT DEMAND TO RETURN THE SUBJECT
[PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE PROCEEDS, IF SOLD – AN
ELEMENT OF THE OFFENSE – WAS PROVED;

D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE

LOWER COURT'S FINDING THAT THE PROSECUTION'S CASE WAS PROVEN
BEYOND REASONABLE DOUBT ALTHOUGH -

1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE

INCIDENT;

2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE

STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH HUMAN
EXPERIENCE;

3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO THIS

CASE;

4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE.

In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated the
following counter-arguments:

The exhibits were properly admitted inasmuch as petitioner failed to object to their
admissibility.
The information was not defective inasmuch as it sufficiently established the designation
of the offense and the acts complained of.

The prosecution sufficiently established all the elements of the crime charged.

This Court finds the present petition devoid of any merit.

The factual findings of the appellate court generally are conclusive, and carry even more
weight when said court affirms the findings of the trial court, absent any showing that the
findings are totally devoid of support in the records, or that they are so glaringly
erroneous as to constitute grave abuse of discretion.[4] Petitioner is of the opinion that the
CA erred in affirming the factual findings of the trial court. He now comes to this Court
raising both procedural and substantive issues.

According to petitioner, the CA erred in affirming the ruling of the trial court, admitting
in evidence a receipt dated May 2, 1991 marked as Exhibit “A” and its submarkings,
although the same was merely a photocopy, thus, violating the best evidence
rule. However, the records show that petitioner never objected to the admissibility of the
said evidence at the time it was identified, marked and testified upon in court by private
complainant. The CA also correctly pointed out that petitioner also failed to raise an
objection in his Comment to the prosecution's formal offer of evidence and even admitted
having signed the said receipt. The established doctrine is that when a party failed to
interpose a timely objection to evidence at the time they were offered in evidence, such
objection shall be considered as waived.[5]

Another procedural issue raised is, as claimed by petitioner, the formally defective
Information filed against him. He contends that the Information does not contain the
period when the pieces of jewelry were supposed to be returned and that the date when
the crime occurred was different from the one testified to by private complainant. This
argument is untenable. The CA did not err in finding that the Information was
substantially complete and in reiterating that objections as to the matters of form and
substance in the Information cannot be made for the first time on appeal. It is true that
the gravamen of the crime of estafa under Article 315, paragraph 1, subparagraph (b) of
the RPC is the appropriation or conversion of money or property received to the prejudice
of the owner[6] and that the time of occurrence is not a material ingredient of the crime,
hence, the exclusion of the period and the wrong date of the occurrence of the crime, as
reflected in the Information, do not make the latter fatally defective. The CA ruled:

x x x An information is legally viable as long as it distinctly states the statutory

designation of the offense and the acts or omissions constitutive thereof. Then Section 6,
Rule 110 of the Rules of Court provides that a complaint or information is sufficient if it
states the name of the accused; the designation of the offense by the statute; the acts or
omissions complained of as constituting the offense; the name of the offended party; the
approximate time of the commission of the offense, and the place wherein the offense
was committed. In the case at bar, a reading of the subject Information shows
compliance with the foregoing rule. That the time of the commission of the offense was
stated as “ on or about the fifth (5th) day of July, 1991” is not likewise fatal to the
prosecution's cause considering that Section 11 of the same Rule requires a statement of
the precise time only when the same is a material ingredient of the offense. The
gravamen of the crime of estafa under Article 315, paragraph 1 (b) of the Revised Penal
Code (RPC) is the appropriation or conversion of money or property received to the
prejudice of the offender. Thus, aside from the fact that the date of the commission
thereof is not an essential element of the crime herein charged, the failure of the
prosecution to specify the exact date does not render the Information ipso
facto defective. Moreover, the said date is also near the due date within which accused-
appellant should have delivered the proceeds or returned the said [pieces of jewelry] as
testified upon by Tangkoy, hence, there was sufficient compliance with the
rules. Accused-appellant, therefore, cannot now be allowed to claim that he was not
properly apprised of the charges proferred against him.[7]

It must be remembered that petitioner was convicted of the crime of Estafa under Article
315, paragraph 1 (b) of the RPC, which reads:

ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the
means mentioned hereinbelow.

1. With unfaithfulness or abuse of confidence, namely:

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; x x x

The elements of estafa with abuse of confidence are as follows: (a) that money, goods or
other personal property is 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; (b) that there be misappropriation or conversion of such money or
property by the offender or denial on his part of such receipt; (c) that such
misappropriation or conversion or denial is to the prejudice of another; and (d) that there
is a demand made by the offended party on the offender.[8]

Petitioner argues that the last element, which is, that there is a demand by the offended
party on the offender, was not proved. This Court disagrees. In his testimony, private
complainant narrated how he was able to locate petitioner after almost two (2) months
from the time he gave the pieces of jewelry and asked petitioner about the same items
with the latter promising to pay them. Thus:
PROS. MARTINEZ

q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could have
been finished on 5 July 1991, the question is what happens (sic) when the deadline came?
a I went looking for him, sir.

q For whom?
a Lito Corpuz, sir.

q Were you able to look (sic) for him?

a I looked for him for a week, sir.

q Did you know his residence?

a Yes, sir.

q Did you go there?

a Yes, sir.

q Did you find him?

a No, sir.

q Were you able to talk to him since 5 July 1991?

a I talked to him, sir.

q How many times?

a Two times, sir.

q What did you talk (sic) to him?

a About the items I gave to (sic) him, sir.

q Referring to Exhibit A-2?

a Yes, sir, and according to him he will take his obligation and I asked him where
the items are and he promised me that he will pay these amount, sir.

q Up to this time that you were here, were you able to collect from him partially or full?
a No, sir. [9]

No specific type of proof is required to show that there was demand.[10] Demand need not
even be formal; it may be verbal.[11] The specific word “demand” need not even be used
to show that it has indeed been made upon the person charged, since even a mere query
as to the whereabouts of the money [in this case, property], would be tantamount to a
demand.[12] As expounded in Asejo v. People:[13]

With regard to the necessity of demand, we agree with the CA that demand under this
kind of estafa need not be formal or written. The appellate court observed that the law is
silent with regard to the form of demand in estafa under Art. 315 1(b), thus:
When the law does not qualify, We should not qualify. Should a written demand be
necessary, the law would have stated so. Otherwise, the word "demand" should be
interpreted in its general meaning as to include both written and oral demand. Thus, the
failure of the prosecution to present a written demand as evidence is not fatal.
In Tubb v. People, where the complainant merely verbally inquired about the money
entrusted to the accused, we held that the query was tantamount to a demand, thus:
x x x [T]he law does not require a demand as a condition precedent to the existence of
the crime of embezzlement. It so happens only that failure to account, upon demand for
funds or property held in trust, is circumstantial evidence of misappropriation. The same
way, however, be established by other proof, such as that introduced in the case at bar.[14]

In view of the foregoing and based on the records, the prosecution was able to prove the
existence of all the elements of the crime. Private complainant gave petitioner the pieces
of jewelry in trust, or on commission basis, as shown in the receipt dated May 2, 1991
with an obligation to sell or return the same within sixty (60) days, if unsold. There was
misappropriation when petitioner failed to remit the proceeds of those pieces of jewelry
sold, or if no sale took place, failed to return the same pieces of jewelry within or after
the agreed period despite demand from the private complainant, to the prejudice of the
latter.

Anent the credibility of the prosecution's sole witness, which is questioned by petitioner,
the same is unmeritorious. Settled is the rule that in assessing the credibility of
witnesses, this Court gives great respect to the evaluation of the trial court for it had the
unique opportunity to observe the demeanor of witnesses and their deportment on the
witness stand, an opportunity denied the appellate courts, which merely rely on the
records of the case.[15] The assessment by the trial court is even conclusive and binding if
not tainted with arbitrariness or oversight of some fact or circumstance of weight and
influence, especially when such finding is affirmed by the CA.[16] Truth is established
not by the number of witnesses, but by the quality of their testimonies, for in determining
the value and credibility of evidence, the witnesses are to be weighed not numbered.[17]

As regards the penalty, while this Court's Third Division was deliberating on this case,
the question of the continued validity of imposing on persons convicted of crimes
involving property came up. The legislature apparently pegged these penalties to the
value of the money and property in 1930 when it enacted the Revised Penal Code. Since
the members of the division reached no unanimity on this question and since the issues
are of first impression, they decided to refer the case to the Court en banc for
consideration and resolution. Thus, several amici curiae were invited at the behest of the
Court to give their academic opinions on the matter. Among those that graciously
complied were Dean Jose Manuel Diokno, Dean Sedfrey M. Candelaria, Professor
Alfredo F. Tadiar, the Senate President, and the Speaker of the House of
Representatives. The parties were later heard on oral arguments before the Court en
banc, with Atty. Mario L. Bautista appearing as counsel of the petitioner.

After a thorough consideration of the arguments presented on the matter, this Court finds
the following:
There seems to be a perceived injustice brought about by the range of penalties that the
courts continue to impose on crimes against property committed today, based on the
amount of damage measured by the value of money eighty years ago in 1932. However,
this Court cannot modify the said range of penalties because that would constitute
judicial legislation. What the legislature's perceived failure in amending the penalties
provided for in the said crimes cannot be remedied through this Court's decisions, as that
would be encroaching upon the power of another branch of the government. This,
however, does not render the whole situation without any remedy. It can be appropriately
presumed that the framers of the Revised Penal Code (RPC) had anticipated this matter
by including Article 5, which reads:

ART. 5. Duty of the court in connection with acts which should be repressed but which
are not covered by the law, and in cases of excessive penalties. - Whenever a court has
knowledge of any act which it may deem proper to repress and which is not
punishable by law, it shall render the proper decision, and shall report to the Chief
Executive, through the Department of Justice, the reasons which induce the court to
believe that said act should be made the subject of penal legislation.

In the same way, the court shall submit to the Chief Executive, through the
Department of Justice, such statement as may be deemed proper, without
suspending the execution of the sentence, when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive penalty,
taking into consideration the degree of malice and the injury caused by the
offense.[18]

The first paragraph of the above provision clearly states that for acts bourne out of a case
which is not punishable by law and the court finds it proper to repress, the remedy is to
render the proper decision and thereafter, report to the Chief Executive, through the
Department of Justice, the reasons why the same act should be the subject of penal
legislation. The premise here is that a deplorable act is present but is not the subject of
any penal legislation, thus, the court is tasked to inform the Chief Executive of the need
to make that act punishable by law through legislation. The second paragraph is similar to
the first except for the situation wherein the act is already punishable by law but the
corresponding penalty is deemed by the court as excessive. The remedy therefore, as in
the first paragraph is not to suspend the execution of the sentence but to submit to the
Chief Executive the reasons why the court considers the said penalty to be non-
commensurate with the act committed. Again, the court is tasked to inform the Chief
Executive, this time, of the need for a legislation to provide the proper penalty.

In his book, Commentaries on the Revised Penal Code,[19] Guillermo B. Guevara opined
that in Article 5, the duty of the court is merely to report to the Chief Executive, with a
recommendation for an amendment or modification of the legal provisions which it
believes to be harsh. Thus:
This provision is based under the legal maxim “nullum crimen, nulla poena sige lege,”
that is, that there can exist no punishable act except those previously and specifically
provided for by penal statute.

No matter how reprehensible an act is, if the law-making body does not deem it necessary
to prohibit its perpetration with penal sanction, the Court of justice will be entirely
powerless to punish such act.

Under the provisions of this article the Court cannot suspend the execution of a
sentence on the ground that the strict enforcement of the provisions of this Code
would cause excessive or harsh penalty. All that the Court could do in such
eventuality is to report the matter to the Chief Executive with a recommendation for
an amendment or modification of the legal provisions which it believes to be
harsh.[20]

Anent the non-suspension of the execution of the sentence, retired Chief Justice Ramon
C. Aquino and retired Associate Justice Carolina C. Griño-Aquino, in their book, The
Revised Penal Code,[21] echoed the above-cited commentary, thus:

The second paragraph of Art. 5 is an application of the humanitarian principle that justice
must be tempered with mercy. Generally, the courts have nothing to do with the
wisdom or justness of the penalties fixed by law. “Whether or not the penalties
prescribed by law upon conviction of violations of particular statutes are too severe or are
not severe enough, are questions as to which commentators on the law may fairly differ;
but it is the duty of the courts to enforce the will of the legislator in all cases unless it
clearly appears that a given penalty falls within the prohibited class of excessive
fines or cruel and unusual punishment.” A petition for clemency should be addressed
to the Chief Executive.[22]

There is an opinion that the penalties provided for in crimes against property be based on
the current inflation rate or at the ratio of P1.00 is equal to P100.00 . However, it would
be dangerous as this would result in uncertainties, as opposed to the definite imposition
of the penalties. It must be remembered that the economy fluctuates and if the proposed
imposition of the penalties in crimes against property be adopted, the penalties will not
cease to change, thus, making the RPC, a self-amending law. Had the framers of the RPC
intended that to be so, it should have provided the same, instead, it included the earlier
cited Article 5 as a remedy. It is also improper to presume why the present legislature has
not made any moves to amend the subject penalties in order to conform with the present
times. For all we know, the legislature intends to retain the same penalties in order to
deter the further commission of those punishable acts which have increased tremendously
through the years. In fact, in recent moves of the legislature, it is apparent that it aims to
broaden the coverage of those who violate penal laws. In the crime of Plunder, from its
original minimum amount of P100,000,000.00 plundered, the legislature lowered it to
P50,000,000.00. In the same way, the legislature lowered the threshold amount upon
which the Anti-Money Laundering Act may apply, from P1,000,000.00 to P500,000.00.
It is also worth noting that in the crimes of Theft and Estafa, the present penalties do not
seem to be excessive compared to the proposed imposition of their corresponding
penalties. In Theft, the provisions state that:

Art. 309. Penalties. — Any person guilty of theft shall be punished by:
1. The penalty of prision mayor in its minimum and medium periods, if the value of the
thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos, but if the value
of the thing stolen exceeds the latter amount the penalty shall be the maximum period of
the one prescribed in this paragraph, and one year for each additional ten thousand pesos,
but the total of the penalty which may be imposed shall not exceed twenty years. In such
cases, and in connection with the accessory penalties which may be imposed and for the
purpose of the other provisions of this Code, the penalty shall be termed prision
mayor or reclusion temporal, as the case may be.

2. The penalty of prision correccional in its medium and maximum periods, if the value
of the thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos.

3. The penalty of prision correccional in its minimum and medium periods, if the value
of the property stolen is more than 200 pesos but does not exceed 6,000 pesos.

4. Arresto mayor in its medium period to prision correccional in its minimum period, if
the value of the property stolen is over 50 pesos but does not exceed 200 pesos.

5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50
pesos.

6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5
pesos.

7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the
circumstances enumerated in paragraph 3 of the next preceding article and the value of
the thing stolen does not exceed 5 pesos. If such value exceeds said amount, the provision
of any of the five preceding subdivisions shall be made applicable.

8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value
of the thing stolen is not over 5 pesos, and the offender shall have acted under the
impulse of hunger, poverty, or the difficulty of earning a livelihood for the support of
himself or his family.

In a case wherein the value of the thing stolen is P6,000.00, the above-provision states
that the penalty is prision correccional in its minimum and medium periods (6 months
and 1 day to 4 years and 2 months). Applying the proposal, if the value of the thing
stolen is P6,000.00, the penalty is imprisonment of arresto mayor in its medium period
to prision correccional minimum period (2 months and 1 day to 2 years and
4 months). It would seem that under the present law, the penalty imposed is almost the
same as the penalty proposed. In fact, after the application of the Indeterminate Sentence
Law under the existing law, the minimum penalty is still lowered by one degree; hence,
the minimum penalty is arresto mayor in its medium period to maximum period (2
months and 1 day to 6 months), making the offender qualified for pardon or parole after
serving the said minimum period and may even apply for probation. Moreover, under the
proposal, the minimum penalty after applying the Indeterminate Sentence Law is arresto
menor in its maximum period to arresto mayor in its minimum period (21 days to 2
months) is not too far from the minimum period under the existing law. Thus, it would
seem that the present penalty imposed under the law is not at all excessive. The same is
also true in the crime of Estafa.[23]

Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen in
the crime of Theft and the damage caused in the crime of Estafa, the gap between the
minimum and the maximum amounts, which is the basis of determining the proper
penalty to be imposed, would be too wide and the penalty imposable would no longer be
commensurate to the act committed and the value of the thing stolen or the damage
caused:

I. Article 309, or the penalties for the crime of Theft, the value would be modified but
the penalties are not changed:

1. P12,000.00 to P22,000.00 will become P1,200,000.00 to P2,200,000.00, punished

by prision mayor minimum to prision mayor medium (6 years and 1 day to 10 years).

2. P6,000.00 to P12,000.00 will become P600,000.00 to P1,200,000.00, punished

by prision correccional medium and to prision correccional maximum (2 years, 4
months and 1 day to 6 years).[24]

3. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00, punishable by prision

correccional minimum to prision correccional medium (6 months and 1 day to 4 years
and 2 months).

4. P50.00 to P200.00 will become P5,000.00 to P20,000.00, punishable by arresto

mayor medium to prision correccional minimum (2 months and 1 day to 2 years and 4
months).

5. P5.00 to P50.00 will become P500.00 to P5,000.00, punishable by arresto mayor (1

month and 1 day to 6 months).

6. P5.00 will become P500.00, punishable by arresto mayor minimum to arresto

mayor medium.

x x x x.

II. Article 315, or the penalties for the crime of Estafa, the value would also be modified
but the penalties are not changed, as follows:
1st. P12,000.00 to P22,000.00, will become P1,200,000.00 to P2,200,000.00, punishable
by prision correccional maximum to prision mayor minimum (4 years, 2 months and 1
day to 8 years).[25]

2nd. P6,000.00 to P12,000.00 will become P600,000.00 to P1,200,000.00, punishable

by prision correccional minimum to prision correccional medium (6 months and 1 day
to 4 years and 2 months).[26]

3rd. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00, punishable

by arresto mayor maximum to prision correccional minimum (4 months and 1 day to 2
years and 4 months).

4th. P200.00 will become P20,000.00, punishable by arresto mayor maximum (4 months
and 1 day to 6 months)

An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici curiae, is
that the incremental penalty provided under Article 315 of the RPC violates the Equal
Protection Clause.

The equal protection clause requires equality among equals, which is determined
according to a valid classification. The test developed by jurisprudence here and yonder
is that of reasonableness,[27] which has four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.[28]

According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on
substantial distinctions as P10,000.00 may have been substantial in the past, but it is not
so today, which violates the first requisite; the IPR was devised so that those who
commit estafa involving higher amounts would receive heavier penalties; however, this is
no longer achieved, because a person who steals P142,000.00 would receive the same
penalty as someone who steals hundreds of millions, which violates the second requisite;
and, the IPR violates requisite no. 3, considering that the IPR is limited to existing
conditions at the time the law was promulgated, conditions that no longer exist today.

Assuming that the Court submits to the argument of Dean Diokno and declares the
incremental penalty in Article 315 unconstitutional for violating the equal protection
clause, what then is the penalty that should be applied in case the amount of the thing
subject matter of the crime exceeds P22,000.00? It seems that the proposition poses more
questions than answers, which leads us even more to conclude that the appropriate
remedy is to refer these matters to Congress for them to exercise their inherent power to
legislate laws.
Even Dean Diokno was of the opinion that if the Court declares the IPR unconstitutional,
the remedy is to go to Congress. Thus:

xxxx

JUSTICE PERALTA:
Now, your position is to declare that the incremental penalty should be struck down as
unconstitutional because it is absurd.

DEAN DIOKNO:
Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment.

JUSTICE PERALTA:
Then what will be the penalty that we are going to impose if the amount is more than
Twenty-Two Thousand (P22,000.00) Pesos.

DEAN DIOKNO:
Well, that would be for Congress to ... if this Court will declare the incremental penalty
rule unconstitutional, then that would ... the void should be filled by Congress.

JUSTICE PERALTA:
But in your presentation, you were fixing the amount at One Hundred Thousand
(P100,000.00) Pesos ...

DEAN DIOKNO:
Well, my presen ... (interrupted)

JUSTICE PERALTA:
For every One Hundred Thousand (P100,000.00) Pesos in excess of Twenty-Two
Thousand (P22,000.00) Pesos you were suggesting an additional penalty of one (1) year,
did I get you right?

DEAN DIOKNO:
Yes, Your Honor, that is, if the court will take the route of statutory interpretation.

JUSTICE PERALTA:
Ah ...

DEAN DIOKNO:
If the Court will say that they can go beyond the literal wording of the law...

JUSTICE PERALTA:
But if we de ... (interrupted)

DEAN DIOKNO:
....then....
JUSTICE PERALTA:
Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court cannot
fix the amount ...

DEAN DIOKNO:
No, Your Honor.

JUSTICE PERALTA:
... as the equivalent of one, as an incremental penalty in excess of Twenty-Two Thousand
(P22,000.00) Pesos.

DEAN DIOKNO:
No, Your Honor.

JUSTICE PERALTA:
The Court cannot do that.

DEAN DIOKNO:
Could not be.

JUSTICE PERALTA:
The only remedy is to go to Congress...

DEAN DIOKNO:
Yes, Your Honor.

JUSTICE PERALTA:
... and determine the value or the amount.

DEAN DIOKNO:
Yes, Your Honor.

JUSTICE PERALTA:
That will be equivalent to the incremental penalty of one (1) year in excess of Twenty-
Two Thousand (P22,000.00) Pesos.

DEAN DIOKNO:
Yes, Your Honor.

JUSTICE PERALTA:
The amount in excess of Twenty-Two Thousand (P22,000.00) Pesos.
Thank you, Dean.

DEAN DIOKNO:
Thank you.
x x x x[29]

Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes cruel
and unusual punishment. Citing Solem v. Helm,[30] Dean Diokno avers that the United
States Federal Supreme Court has expanded the application of a similar Constitutional
provision prohibiting cruel and unusual punishment, to the duration of the penalty, and
not just its form. The court therein ruled that three things must be done to decide whether
a sentence is proportional to a specific crime, viz.; (1) Compare the nature and gravity of
the offense, and the harshness of the penalty; (2) Compare the sentences imposed on
other criminals in the same jurisdiction, i.e., whether more serious crimes are subject to
the same penalty or to less serious penalties; and (3) Compare the sentences imposed for
commission of the same crime in other jurisdictions.

However, the case of Solem v. Helm cannot be applied in the present case, because
in Solem what respondent therein deemed cruel was the penalty imposed by the state
court of South Dakota after it took into account the latter’s recidivist statute and not the
original penalty for uttering a “no account” check. Normally, the maximum punishment
for the crime would have been five years imprisonment and a $5,000.00
fine. Nonetheless, respondent was sentenced to life imprisonment without the possibility
of parole under South Dakota’s recidivist statute because of his six prior felony
convictions. Surely, the factual antecedents of Solem are different from the present
controversy.

With respect to the crime of Qualified Theft, however, it is true that the imposable
penalty for the offense is high. Nevertheless, the rationale for the imposition of a higher
penalty against a domestic servant is the fact that in the commission of the crime, the
helper will essentially gravely abuse the trust and confidence reposed upon her by her
employer. After accepting and allowing the helper to be a member of the household, thus
entrusting upon such person the protection and safekeeping of the employer’s loved ones
and properties, a subsequent betrayal of that trust is so repulsive as to warrant the
necessity of imposing a higher penalty to deter the commission of such wrongful acts.

There are other crimes where the penalty of fine and/or imprisonment are dependent on
the subject matter of the crime and which, by adopting the proposal, may create serious
implications. For example, in the crime of Malversation, the penalty imposed depends on
the amount of the money malversed by the public official, thus:

Art. 217. Malversation of public funds or property; Presumption of malversation. — Any

public officer who, by reason of the duties of his office, is accountable for public funds or
property, shall appropriate the same or shall take or misappropriate or shall consent,
through abandonment or negligence, shall permit any other person to take such public
funds, or property, wholly or partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or property, shall suffer:
1. The penalty of prision correccional in its medium and maximum periods, if the
amount involved in the misappropriation or malversation does not exceed two hundred
pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount
involved is more than two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its
minimum period, if the amount involved is more than six thousand pesos but is less
than twelve thousand pesos.

4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount
involved is more than twelve thousand pesos but is less than twenty-two thousand pesos.
If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum
period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual
special disqualification and a fine equal to the amount of the funds malversed or equal to
the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with
which he is chargeable, upon demand by any duly authorized officer, shall be prima
facie evidence that he has put such missing funds or property to personal use.

The above-provisions contemplate a situation wherein the Government loses money due
to the unlawful acts of the offender. Thus, following the proposal, if the amount
malversed is P200.00 (under the existing law), the amount now becomes P20,000.00 and
the penalty is prision correccional in its medium and maximum periods (2 years 4
months and 1 day to 6 years). The penalty may not be commensurate to the act of
embezzlement of P20,000.00 compared to the acts committed by public officials
punishable by a special law, i.e., Republic Act No. 3019 or the Anti-Graft and Corrupt
Practices Act, specifically Section 3,[31] wherein the injury caused to the government is
not generally defined by any monetary amount, the penalty (6 years and 1 month to 15
years)[32] under the Anti-Graft Law will now become higher. This should not be the case,
because in the crime of malversation, the public official takes advantage of his public
position to embezzle the fund or property of the government entrusted to him.

The said inequity is also apparent in the crime of Robbery with force upon things
(inhabited or uninhabited) where the value of the thing unlawfully taken and the act of
unlawful entry are the bases of the penalty imposable, and also, in Malicious Mischief,
where the penalty of imprisonment or fine is dependent on the cost of the damage caused.

In Robbery with force upon things (inhabited or uninhabited), if we increase the value of
the thing unlawfully taken, as proposed in the ponencia, the sole basis of the penalty will
now be the value of the thing unlawfully taken and no longer the element of force
employed in entering the premises. It may likewise cause an inequity between the crime
of Qualified Trespass to Dwelling under Article 280, and this kind of robbery because the
former is punishable by prision correccional in its medium and maximum periods (2
years, 4 months and 1 day to 6 years) and a fine not exceeding P1,000.00 (P100,000.00
now if the ratio is 1:100) where entrance to the premises is with violence or
intimidation, which is the main justification of the penalty. Whereas in the crime of
Robbery with force upon things, it is punished with a penalty of prision mayor (6 years
and 1 day to 12 years) if the intruder is unarmed without the penalty of Fine despite the
fact that it is not merely the illegal entry that is the basis of the penalty but likewise the
unlawful taking.

Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty that
can be imposed is arresto mayor in its medium and maximum periods (2 months and 1
day to 6 months) if the value of the damage caused exceeds P1,000.00, but under the
proposal, the value of the damage will now become P100,000.00 (1:100), and still
punishable by arresto mayor (1 month and 1 day to 6 months). And, if the value of the
damaged property does not exceed P200.00, the penalty is arresto menor or a fine of not
less than the value of the damage caused and not more than P200.00, if the amount
involved does not exceed P200.00 or cannot be estimated. Under the
proposal, P200.00 will now become P20,000.00, which simply means that the fine
of P200.00 under the existing law will now become P20,000.00. The amount of Fine
under this situation will now become excessive and afflictive in nature despite the fact
that the offense is categorized as a light felony penalized with a light penalty under
Article 26 of the RPC.[33] Unless we also amend Article 26 of the RPC, there will be
grave implications on the penalty of Fine, but changing the same through Court decision,
either expressly or impliedly, may not be legally and constitutionally feasible.

There are other crimes against property and swindling in the RPC that may also be
affected by the proposal, such as those that impose imprisonment and/or Fine as a penalty
based on the value of the damage caused, to wit: Article 311 (Theft of the property of the
National Library and National Museum), Article 312 (Occupation of real property or
usurpation of real rights in property), Article 313 (Altering boundaries or
landmarks), Article 316 (Other forms of swindling), Article 317 (Swindling a
minor), Article 318 (Other deceits), Article 328 (Special cases of malicious mischief)
and Article 331 (Destroying or damaging statues, public monuments or
paintings). Other crimes that impose Fine as a penalty will also be affected, such
as: Article 213 (Frauds against the public treasury and similar offenses), Article
215 (Prohibited Transactions), Article 216 (Possession of prohibited interest by a public
officer), Article 218 (Failure of accountable officer to render accounts), Article
219 (Failure of a responsible public officer to render accounts before leaving the
country).

In addition, the proposal will not only affect crimes under the RPC. It will also affect
crimes which are punishable by special penal laws, such as Illegal Logging or Violation
of Section 68 of Presidential Decree No. 705, as amended.[34] The law treats cutting,
gathering, collecting and possessing timber or other forest products without license as an
offense as grave as and equivalent to the felony of qualified theft.[35] Under the law, the
offender shall be punished with the penalties imposed under Articles 309 and 310[36] of
the Revised Penal Code, which means that the penalty imposable for the offense is, again,
based on the value of the timber or forest products involved in the offense. Now, if we
accept the said proposal in the crime of Theft, will this particular crime of Illegal Logging
be amended also in so far as the penalty is concerned because the penalty is dependent on
Articles 309 and 310 of the RPC? The answer is in the negative because the soundness
of this particular law is not in question.

With the numerous crimes defined and penalized under the Revised Penal Code and
Special Laws, and other related provisions of these laws affected by the proposal, a
thorough study is needed to determine its effectivity and necessity. There may be some
provisions of the law that should be amended; nevertheless, this Court is in no position to
conclude as to the intentions of the framers of the Revised Penal Code by merely making
a study of the applicability of the penalties imposable in the present times. Such is not
within the competence of the Court but of the Legislature which is empowered to conduct
public hearings on the matter, consult legal luminaries and who, after due proceedings,
can decide whether or not to amend or to revise the questioned law or other laws, or even
create a new legislation which will adopt to the times.

Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal
Code. During the oral arguments, counsel for the Senate informed the Court that at
present, fifty-six (56) bills are now pending in the Senate seeking to amend the Revised
Penal Code,[37] each one proposing much needed change and updates to archaic laws that
were promulgated decades ago when the political, socio-economic, and cultural settings
were far different from today’s conditions.

Verily, the primordial duty of the Court is merely to apply the law in such a way that it
shall not usurp legislative powers by judicial legislation and that in the course of such
application or construction, it should not make or supervise legislation, or under the guise
of interpretation, modify, revise, amend, distort, remodel, or rewrite the law, or give the
law a construction which is repugnant to its terms.[38] The Court should apply the law in
a manner that would give effect to their letter and spirit, especially when the law is clear
as to its intent and purpose. Succinctly put, the Court should shy away from encroaching
upon the primary function of a co-equal branch of the Government; otherwise, this would
lead to an inexcusable breach of the doctrine of separation of powers by means of judicial
legislation.

Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine;
hence, it can be increased by the Court when appropriate. Article 2206 of the Civil Code
provides:

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at
least three thousand pesos, even though there may have been mitigating circumstances. In
addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and
the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be
assessed and awarded by the court, unless the deceased on account of permanent physical
disability not caused by the defendant, had no earning capacity at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of Article 291,
the recipient who is not an heir called to the decedent's inheritance by the law of testate or
intestate succession, may demand support from the person causing the death, for a period
not exceeding five years, the exact duration to be fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased
may demand moral damages for mental anguish by reason of the death of the deceased.

In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary
restitution or compensation to the victim for the damage or infraction that was done to the
latter by the accused, which in a sense only covers the civil aspect. Precisely, it is civil
indemnity. Thus, in a crime where a person dies, in addition to the penalty of
imprisonment imposed to the offender, the accused is also ordered to pay the victim a
sum of money as restitution. Clearly, this award of civil indemnity due to the death of
the victim could not be contemplated as akin to the value of a thing that is unlawfully
taken which is the basis in the imposition of the proper penalty in certain crimes. Thus,
the reasoning in increasing the value of civil indemnity awarded in some offense cannot
be the same reasoning that would sustain the adoption of the suggested ratio. Also, it is
apparent from Article 2206 that the law only imposes a minimum amount for awards of
civil indemnity, which is P3,000.00. The law did not provide for a ceiling. Thus,
although the minimum amount for the award cannot be changed, increasing the amount
awarded as civil indemnity can be validly modified and increased when the present
circumstance warrants it. Corollarily, moral damages under Article 2220[39] of the Civil
Code also does not fix the amount of damages that can be awarded. It is discretionary
upon the court, depending on the mental anguish or the suffering of the private offended
party. The amount of moral damages can, in relation to civil indemnity, be adjusted so
long as it does not exceed the award of civil indemnity.

In addition, some may view the penalty provided by law for the offense committed as
tantamount to cruel punishment. However, all penalties are generally harsh, being
punitive in nature. Whether or not they are excessive or amount to cruel punishment is a
matter that should be left to lawmakers. It is the prerogative of the courts to apply the
law, especially when they are clear and not subject to any other interpretation than that
which is plainly written.

Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s opinions is that
the incremental penalty provision should be declared unconstitutional and that the courts
should only impose the penalty corresponding to the amount of P22,000.00, regardless if
the actual amount involved exceeds P22,000.00. As suggested, however, from now until
the law is properly amended by Congress, all crimes of Estafa will no longer be punished
by the appropriate penalty. A conundrum in the regular course of criminal justice would
occur when every accused convicted of the crime of estafa will be meted penalties
different from the proper penalty that should be imposed. Such drastic twist in the
application of the law has no legal basis and directly runs counter to what the law
provides.

It should be noted that the death penalty was reintroduced in the dispensation of criminal
justice by the Ramos Administration by virtue of Republic Act No. 7659[40] in December
1993. The said law has been questioned before this Court. There is, arguably, no
punishment more cruel than that of death. Yet still, from the time the death penalty was
re-imposed until its lifting in June 2006 by Republic Act No. 9346,[41] the Court did not
impede the imposition of the death penalty on the ground that it is a “cruel punishment”
within the purview of Section 19 (1),[42] Article III of the Constitution. Ultimately, it was
through an act of Congress suspending the imposition of the death penalty that led to its
non-imposition and not via the intervention of the Court.

Even if the imposable penalty amounts to cruel punishment, the Court cannot declare the
provision of the law from which the proper penalty emanates unconstitutional in the
present action. Not only is it violative of due process, considering that the State and the
concerned parties were not given the opportunity to comment on the subject matter, it is
settled that the constitutionality of a statute cannot be attacked collaterally because
constitutionality issues must be pleaded directly and not collaterally,[43] more so in the
present controversy wherein the issues never touched upon the constitutionality of any of
the provisions of the Revised Penal Code.

Besides, it has long been held that the prohibition of cruel and unusual punishments is
generally aimed at the form or character of the punishment rather than its severity in
respect of duration or amount, and applies to punishments which public sentiment has
regarded as cruel or obsolete, for instance, those inflicted at the whipping post, or in the
pillory, burning at the stake, breaking on the wheel, disemboweling, and the like. Fine
and imprisonment would not thus be within the prohibition.[44]

It takes more than merely being harsh, excessive, out of proportion, or severe for a
penalty to be obnoxious to the Constitution. The fact that the punishment authorized by
the statute is severe does not make it cruel and unusual. Expressed in other terms, it has
been held that to come under the ban, the punishment must be "flagrantly and plainly
oppressive," "wholly disproportionate to the nature of the offense as to shock the moral
sense of the community."[45]

Cruel as it may be, as discussed above, it is for the Congress to amend the law and adapt
it to our modern time.

The solution to the present controversy could not be solved by merely adjusting the
questioned monetary values to the present value of money based only on the current
inflation rate. There are other factors and variables that need to be taken into
consideration, researched, and deliberated upon before the said values could be
accurately and properly adjusted. The effects on the society, the injured party, the
accused, its socio-economic impact, and the likes must be painstakingly evaluated and
weighed upon in order to arrive at a wholistic change that all of us believe should be
made to our existing law. Dejectedly, the Court is ill-equipped, has no resources, and
lacks sufficient personnel to conduct public hearings and sponsor studies and surveys to
validly effect these changes in our Revised Penal Code. This function clearly and
appropriately belongs to Congress. Even Professor Tadiar concedes to this conclusion, to
wit:

xxxx

JUSTICE PERALTA:
Yeah, Just one question. You are suggesting that in order to determine the value of Peso
you have to take into consideration several factors.

PROFESSOR TADIAR:
Yes.

JUSTICE PERALTA:
Per capita income.

PROFESSOR TADIAR:
Per capita income.

JUSTICE PERALTA:
Consumer price index.

PROFESSOR TADIAR:
Yeah.

JUSTICE PERALTA:
Inflation ...

PROFESSOR TADIAR:
Yes.

JUSTICE PERALTA:
... and so on. Is the Supreme Court equipped to determine those factors?

PROFESSOR TADIAR:
There are many ways by which the value of the Philippine Peso can be determined
utilizing all of those economic terms.

JUSTICE PERALTA:
Yeah, but ...

PROFESSOR TADIAR:
And I don’t think it is within the power of the Supreme Court to pass upon and peg the
value to One Hundred (P100.00) Pesos to ...

JUSTICE PERALTA:
Yeah.

PROFESSOR TADIAR:
... One (P1.00.00) Peso in 1930.

JUSTICE PERALTA:
That is legislative in nature.

PROFESSOR TADIAR:
That is my position that the Supreme Court ...

JUSTICE PERALTA:
Yeah, okay.

PROFESSOR TADIAR:
... has no power to utilize the power of judicial review to in order to adjust, to make the
adjustment that is a power that belongs to the legislature.

JUSTICE PERALTA:
Thank you, Professor.

PROFESSOR TADIAR:
Thank you.[46]

Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the
view that the role of the Court is not merely to dispense justice, but also the active duty to
prevent injustice. Thus, in order to prevent injustice in the present controversy, the Court
should not impose an obsolete penalty pegged eighty three years ago, but consider the
proposed ratio of 1:100 as simply compensating for inflation. Furthermore, the Court has
in the past taken into consideration “changed conditions” or “significant changes in
circumstances” in its decisions.

Similarly, the Chief Justice is of the view that the Court is not delving into the validity of
the substance of a statute. The issue is no different from the Court’s adjustment of
indemnity in crimes against persons, which the Court had previously adjusted in light of
current times, like in the case of People v. Pantoja.[47] Besides, Article 10 of the Civil
Code mandates a presumption that the lawmaking body intended right and justice to
prevail.

With due respect to the opinions and proposals advanced by the Chief Justice and my
Colleagues, all the proposals ultimately lead to prohibited judicial legislation. Short of
being repetitious and as extensively discussed above, it is truly beyond the powers of the
Court to legislate laws, such immense power belongs to Congress and the Court should
refrain from crossing this clear-cut divide. With regard to civil indemnity, as elucidated
before, this refers to civil liability which is awarded to the offended party as a kind of
monetary restitution. It is truly based on the value of money. The same cannot be said
on penalties because, as earlier stated, penalties are not only based on the value of money,
but on several other factors. Further, since the law is silent as to the maximum amount
that can be awarded and only pegged the minimum sum, increasing the amount granted
as civil indemnity is not proscribed. Thus, it can be adjusted in light of current
conditions.

Now, with regard to the penalty imposed in the present case, the CA modified the ruling
of the RTC. The RTC imposed the indeterminate penalty of four (4) years and two (2)
months of prision correccional in its medium period, as minimum, to fourteen (14) years
and eight (8) months of reclusion temporal in its minimum period, as
maximum. However, the CA imposed the indeterminate penalty of four (4) years and
two (2) months of prision correccional, as minimum, to eight (8) years of prision
mayor, as maximum, plus one (1) year for each additional P10,000.00, or a total of seven
(7) years.

In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v.
People[48] is highly instructive, thus:

With respect to the imposable penalty, Article 315 of the Revised Penal Code provides:
ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the
means mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its
minimum period, if the amount of the fraud is over 12,000 but does not exceed 22,000
pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph
shall be imposed in its maximum period, adding one year for each additional 10,000
pesos; but the total penalty which may be imposed shall not exceed twenty years. In such
case, and in connection with the accessory penalties which may be imposed and for the
purpose of the other provisions of this Code, the penalty shall be termed prision
mayor or reclusion temporal, as the case may be.
The penalty prescribed by Article 315 is composed of only two, not three, periods, in
which case, Article 65 of the same Code requires the division of the time included in the
penalty into three equal portions of time included in the penalty prescribed, forming one
period of each of the three portions. Applying the latter provisions, the maximum,
medium and minimum periods of the penalty prescribed are:
Maximum - 6 years, 8 months, 21 days to 8 years
Medium - 5 years, 5 months, 11 days to 6 years, 8 months,
20 days
Minimum - 4 years, 2 months, 1 day to 5 years, 5 months,
10 days[49]

To compute the maximum period of the prescribed penalty, prisión

correccional maximum to prisión mayor minimum should be divided into three equal
portions of time each of which portion shall be deemed to form one period in accordance
with Article 65[50] of the RPC.[51] In the present case, the amount involved is P98,000.00,
which exceeds P22,000.00, thus, the maximum penalty imposable should be within the
maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor. Article
315 also states that a period of one year shall be added to the penalty for every additional
P10,000.00 defrauded in excess of P22,000.00, but in no case shall the total penalty
which may be imposed exceed 20 years.

Considering that the amount of P98,000.00 is P76,000.00 more than the P22,000.00
ceiling set by law, then, adding one year for each additional P10,000.00, the maximum
period of 6 years, 8 months and 21 days to 8 years of prision mayor minimum would be
increased by 7 years. Taking the maximum of the prescribed penalty, which is 8 years,
plus an additional 7 years, the maximum of the indeterminate penalty is 15 years.

Applying the Indeterminate Sentence Law, since the penalty prescribed by law for the
estafa charge against petitioner is prision correccional maximum to prision
mayor minimum, the penalty next lower would then be prision correccional in its
minimum and medium periods. Thus, the minimum term of the indeterminate sentence
should be anywhere from 6 months and 1 day to 4 years and 2 months.

One final note, the Court should give Congress a chance to perform its primordial duty of
lawmaking. The Court should not pre-empt Congress and usurp its inherent powers of
making and enacting laws. While it may be the most expeditious approach, a short cut by
judicial fiat is a dangerous proposition, lest the Court dare trespass on prohibited judicial
legislation.

WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of

petitioner Lito Corpuz is hereby DENIED. Consequently, the Decision dated March 22,
2007 and Resolution dated September 5, 2007 of the Court of Appeals, which affirmed
with modification the Decision dated July 30, 2004 of the Regional Trial Court, Branch
46, San Fernando City, finding petitioner guilty beyond reasonable doubt of the crime of
Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal Code, are
hereby AFFIRMED with MODIFICATION that the penalty imposed is the
indeterminate penalty of imprisonment ranging from THREE (3) YEARS, TWO (2)
MONTHS and ELEVEN DAYS of prision correccional, as minimum, to FIFTEEN (15)
YEARS of reclusion temporal as maximum.

Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be furnished
the President of the Republic of the Philippines, through the Department of Justice.

Also, let a copy of this Decision be furnished the President of the Senate and the Speaker
of the House of Representatives.

SO ORDERED.
 G.R. No. 166441, October 08, 2014

NORBERTO CRUZ Y BARTOLOME, PETITIONER, VS. PEOPLE OF THE

PHILIPPINES, RESPONDENT.

DECISION

BERSAMIN, J.:

The intent of the offender to lie with the female defines the distinction between attempted
rape and acts of lasciviousness. The felony of attempted rape requires such intent; the
felony of acts of lasciviousness does not. Only the direct overt acts of the offender
establish the intent to lie with the female. However, merely climbing on top of a naked
female does not constitute attempted rape without proof of his erectile penis being in a
position to penetrate the female's vagina.

The Case

This appeal examines the decision promulgated on July 26, 2004,[1] whereby the Court of
Appeals (CA) affirmed the conviction for attempted rape of the petitioner by the
Regional Trial Court, Branch 34, in Balaoan, La Union (RTC), and imposing on him the
indeterminate penalty of imprisonment of four (4) years and two (2) months of prision
correccional, as minimum, to ten (10) years of prision mayor, as maximum, and ordering
him to pay moral damages of P20,000.00 to AAA,[2] the victim.

Antecedents

The petitioner was charged in the RTC with attempted rape and acts of lasciviousness
involving different victims. At arraignment, he pleaded not guilty to the respective
informations, to wit:

Criminal Case No. 2388

Attempted Rape

That on or about the 21st day of December 1993, at about 2:00 o'clock in the morning,
along the Bangar-Luna Road, Barangay Central West No. 2, Municipality of Bangar,
Province of La Union, Philippines and within the jurisdiction of this Honorable Court,
said accused, did then and there willfully, unlawfully and feloniously and by means of
force and intimidation commenced the commission of rape directly by overt acts, to wit:
While private complainant AAA, an unmarried woman, fifteen (15) years old, was
sleeping inside the tent along Bangar-Luna Road, the said accused remove her panty and
underwear and lay on top of said AAA embracing and touching her vagina and breast
with intent of having carnal knowledge of her by means of force, and if the accused did
not accomplish his purpose that is to have carnal knowledge of the said AAA it was not
because of his voluntary desistance but because the said offended party succeeded in
resisting the criminal attempt of said accused to the damage and prejudice of said
offended party.

CONTRARY TO LAW.[3]

Criminal Case No. 2389

Acts of Lasciviousness

That on or about the 21st day of December 1993, at about 3:00 o'clock in the morning,
along the Bangar-Luna Road, Barangay Central West No. 2, Municipality of Bangar,
Province of La Union, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused with lewd design, did then and there willfully, unlawfully and
feloniously touch the vagina of [BBB][4] against the latter's will and with no other
purpose but to satisfy his lascivious desire to the damage and prejudice of said offended
party.

CONTRARY TO LAW.[5]

Version of the Prosecution

The CA summarized the version of the Prosecution as follows:[6]

xxx [Petitioner] Norberto Bartolome and [his wife] Belinda Cruz were engaged in the
selling of plastic wares and glass wares in different municipalities around the country. On
December 20, 1993, Norberto and Belinda employed AAA and BBB to help them in
selling their wares in Bangar, La Union which was then celebrating its fiesta. From
Libsong East, Lingayen, Pangasinan to Bangar, La Union, AAA and BBB boarded a
passenger jeepney owned by Norberto. The young girls were accompanied by Norberto,
Belinda, Ruben Rodriguez (driver) and a sales boy by the name of "Jess".

Upon reaching Bangar, La Union, at around 8:00 in the evening of December 20, 1993,
they parked in front of Maroon enterprises. They brought out all the goods and wares for
display. Two tents were fixed in order that they will have a place to sleep. Belinda and
the driver proceeded to Manila in order to get more goods to be sold.

On December 21, 1993, at around 1:00 o'clock in the morning, AAA and BBB went to
sleep. Less than an hour later, AAA was awakened when she felt that somebody was on
top of her. Norberto was mashing her breast and touching her private part. AAA realized
that she was divested of her clothing and that she was totally naked. Norberto ordered her
not to scream or she'll be killed. AAA tried to push Norberto away and pleaded to have
pity on her but her pleas fell on deaf ears. She fought back and kicked Norberto twice.

Norberto was not able to pursue his lustful desires. Norberto offered her money and told
her not to tell the incident to her mother otherwise, she will be killed. AAA went out of
the tent to seek help from Jess (the house boy) but she failed to wake him up.
Thirty minutes later, when AAA returned to their tent, she saw Norberto touching the
private parts of BBB. AAA saw her companion awake but her hands were shaking. When
she finally entered the tent, Norberto left and went outside.

Later that day, AAA and BBB narrated to Jess the incident that took place that early
morning. Later still, while they were on their way to fetch water, AAA and BBB asked
the people around where they can find the municipal building. An old woman pointed to
them the place.

In the evening of December 21, 1993, AAA and BBB went straight to the municipal hall
where they met a policeman by the name of "Sabas".

They told Sabas the sexual advances made to them by Norberto. Norberto was summoned
to the police station where he personally confronted his accusers. When Norberto's wife,
Belinda, arrived at the police station, an argument ensued between them.

On December 22, 1993, at around 2:20 o'clock in the morning, the police investigator
ordered the complainants to return at 6:00 o'clock in the morning. Norberto and Belinda
were still able to bring AAA and BBB home with them and worked for them until
December 30, 1994, after which they were sent back to Lingayen, Pangasinan.

On January 10, 1994, AAA and BBB went back to La Union and executed their
respective sworn statements against Norberto.

Version of the Defense

The petitioner denied the criminal acts imputed to him. His version was presented in the
assailed decision of the CA,[7] as follows:

In a bid to exculpate himself, accused-appellant presents a totally different version of the

story. The accused maintains that it was not possible for him to commit the crimes hurled
against him. On the date of the alleged incident, there were many people around who
were preparing for the "simbang gabi". Considering the location of the tents, which were
near the road and the municipal hall, he could not possibly do the dastardly acts out in the
open, not to mention the fact that once AAA and BBB would scream, the policemen in
the municipal hall could hear them. He believes that the reason why the complainants
filed these cases against him was solely for the purpose of extorting money from him.

Judgment of the RTC

After the joint trial of the two criminal cases, the RTC rendered its judgment on April 6,
2000 finding the petitioner guilty beyond reasonable doubt of attempted rape in Criminal
Case No. 2388 and acts of lasciviousness in Criminal Case No. 2389,[8] to wit:
WHEREFORE, in the light of the foregoing, the Court hereby renders judgment
declaring the accused NORBERTO CRUZ Y BARTOLOME guilty beyond reasonable
doubt of the crimes of ATTEMPTED RAPE and ACTS OF LASCIVIOUSNESS as
defined and penalized in Article 335 in relation with (sic) Article 6, par. 3 and Article 336
of the Revised Penal Code respectively.

With respect to the crime of ATTEMPTED RAPE, the Court hereby sentences the
accused to suffer an indeterminate penalty of imprisonment from FOUR (4) YEARS and
TWO (2) MONTHS PRISION CORRECCIONAL as Minimum to TEN (10) YEARS
PRISION MAYOR as Maximum and the accessory penalties provided for by law and to
pay the victim AAA the amount of P20,000.00 as moral damages.

With regard to the crime of ACTS OF LASCIVIOUSNESS, the Court hereby sentences
the accused to suffer an indeterminate penalty of imprisonment from FOUR (4)
MONTHS ARRESTO MAYOR as Minimum to FOUR (4) YEARS and TWO (2)
MONTHS PRISION CORRECCIONAL as Maximum and the accessory penalties
provided for by law, and to pay the victim BBB the amount of P10,000.00 as moral
damages.

The preventive imprisonment suffered by the accused by reason of the two cases is
counted in his favor.

SO ORDERED.[9]

Decision of the CA

On appeal, the petitioner contended that the RTC gravely erred in convicting him of
attempted rape despite the dubious credibility of AAA, and of acts of lasciviousness
despite the fact that BBB did not testify.

On July 26, 2004, the CA promulgated its decision affirming the conviction of the
petitioner for attempted rape in Criminal Case No. 2388, but acquitting him of the acts of
lasciviousness charged in Criminal Case No. 2389 due to the insufficiency of the
evidence,[10] holding thusly:

In sum, the arguments of the accused-appellant are too puerile and inconsequential as to
dent, even slightly, the overall integrity and probative value of the prosecution's evidence
insofar as AAA is concerned.

Under Article 51 of the Revised Penal Code, the penalty for an attempted felony is the
"penalty lower by two (2) degrees" prescribed by law for the consummated felony. In this
case, the penalty for rape if it had been consummated would have been reclusion
perpetua pursuant to Article 335 of the Revised Penalty Code, as amended by Republic
Act No. 7659. The penalty two degrees lower than reclusion perpetua is prision mayor.

Applying the Indeterminate Sentence Law, the maximum term of the penalty shall be the
medium period of prision mayor in the absence of any mitigating or aggravating
circumstance and the minimum shall be within the range of the penalty next lower to that
prescribed for the offense which in this case is prision correctional in any of its periods.

We also find that the trial court correctly assessed the amount of P20,000.00 by way of
moral damages against the accused-appellant. In a rape case, moral damages may be
awarded without the need of proof or pleading since it is assumed that the private
complainant suffered moral injuries, more so, when the victim is aged 13 to 19.

Insofar as the crime of acts of lasciviousness committed against BBB, the accused argues
that there is not enough evidence to support such accusation. BBB did not testify and
neither her sworn statement was formally offered in evidence to support the charge for
acts of lasciviousness.

In this case, the evidence adduced by the prosecution is insufficient to substantiate the
charge of acts of lasciviousness against the accused-appellant. The basis of the complaint
for acts of lasciviousness is the sworn statement of BBB to the effect that the accused-
appellant likewise molested her by mashing her breast and touching her private part.
However, she was not presented to testify. While AAA claims that she personally saw the
accused touching the private parts of BBB, there was no testimony to the effect that such
lascivious acts were without the consent or against the will of BBB.[11]

Issues

In this appeal, the petitioner posits that the CA's decision was not in accord with law or
with jurisprudence, particularly:

I.

In giving credence to the incredulous and unbelievable testimony of the alleged victim;
and

II.

In convicting the accused notwithstanding the failure of the prosecution to prove the guilt
of the petitioner beyond reasonable doubt.

Anent the first issue, the petitioner assails the behavior and credibility of AAA. He argues
that AAA still continued working for him and his wife until December 30, 1994 despite
the alleged attempted rape in the early morning of December 21, 1994, thereby belying
his commission of the crime against her; that he could not have undressed her without
rousing her if she had gone to sleep only an hour before, because her bra was locked at
her back; that her testimony about his having been on top of her for nearly an hour while
they struggled was also inconceivable unless she either consented to his act and yielded
to his lust, or the incident did not happen at all, being the product only of her fertile
imagination; that the record does not indicate if he himself was also naked, or that his
penis was poised to penetrate her; and that she and her mother demanded from him
P80,000.00 as settlement, under threat that she would file a case against him.[12]

On the second issue, the petitioner assails the glaring inconsistencies in the testimony of
AAA that cast doubt on her veracity.

Ruling of the Court

The appeal is partly meritorious.

In an appeal under Rule 45 of the Rules of Court,[13] the Court reviews only questions of
law. No review of the findings of fact by the CA is involved. As a consequence of this
rule, the Court accords the highest respect for the factual findings of the trial court, its
assessment of the credibility of witnesses and the probative weight of their testimonies
and the conclusions drawn from its factual findings, particularly when they are affirmed
by the CA. Judicial experience has shown, indeed, that the trial courts are in the best
position to decide issues of credibility of witnesses, having themselves heard and seen the
witnesses and observed firsthand their demeanor and deportment and the manner of
testifying under exacting examination. As such, the contentions of the petitioner on the
credibility of AAA as a witness for the State cannot be entertained. He thereby raises
questions of fact that are outside the scope of this appeal. Moreover, he thereby proposes
to have the Court, which is not a trier of facts, review the entire evidence adduced by the
Prosecution and the Defense.

Conformably with this limitation, our review focuses only on determining the question of
law of whether or not the petitioner's climbing on top of the undressed AAA such that
they faced each other, with him mashing her breasts and touching her genitalia with his
hands, constituted attempted rape, the crime for which the RTC and the CA convicted
and punished him. Based on the information, supra, he committed such acts "with intent
of having carnal knowledge of her by means of force, and if the accused did not
accomplish his purpose that is to have carnal knowledge of the said AAA it was not
because of his voluntary desistance but because the said offended party succeeded in
resisting the criminal attempt of said accused to the damage and prejudice of said
offended party."

There is an attempt, according to Article 6 of the Revised Penal Code, when the offender
commences the commission of a felony directly by overt acts, and does not perform all
the acts of execution which should produce the felony by reason of some cause or
accident other than this own spontaneous desistance. In People v. Lamahang,[14] the
Court, speaking through the eminent Justice Claro M. Recto, eruditely expounded on
what overt acts would constitute an attempted felony, to wit:

It is our opinion that the attempt to commit an offense which the Penal Code punishes is
that which has a logical relation to a particular, concrete offense; that, which is the
beginning of the execution of the offense by overt acts of the perpetrator, leading directly
to its realization and consummation. The attempt to commit an indeterminate offense,
inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from
the standpoint of the Penal Code, xxxx But it is not sufficient, for the purpose of
imposing penal sanction, that an act objectively performed constitute a mere beginning of
execution; it is necessary to establish its unavoidable connection, like the logical and
natural relation of the cause and its effect, with the deed which, upon its consummation,
will develop into one of the offenses defined and punished by the Code; it is necessary to
prove that said beginning of execution, if carried to its complete termination following its
natural course, without being frustrated by external obstacles nor by the voluntary
desistance of the perpetrator, will logically and necessarily ripen into a concrete offense,
x x x x.

"It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the
material damage is wanting, the nature of the action intended (action fin) cannot exactly
be ascertained, but the same must be inferred from the nature of the acts of execution
(action medio). Hence, the necessity that these acts be such that by their very nature, by
the facts to which they are related, by the circumstances of the persons performing the
same, and by the things connected therewith, they must show without any doubt, that
they are aimed at the consummation of a crime. Acts susceptible of double interpretation,
that is, in favor as well as against the culprit, and which show an innocent as well as a
punishable act, must not and cannot furnish grounds by themselves for attempted or
frustrated crimes. The relation existing between the facts submitted for appreciation and
the offense of which said facts are supposed to produce must be direct; the intention must
be ascertained from the facts and therefore it is necessary, in order to avoid regrettable
instance of injustice, that the mind be able to directly infer from them the intention of the
perpetrator to cause a particular injury. This must have been the intention of the legislator
in requiring that in order for an attempt to exist, the offender must commence the
commission of the felony directly by overt acts, that is to say, that the acts performed
must be such that, without the intent to commit an offense, they would be
meaningless."[15]

To ascertain whether the acts performed by the petitioner constituted attempted rape, we
have to determine the law on rape in effect on December 21, 1993, when the petitioner
committed the crime he was convicted of. That law was Article 335 of the Revised Penal
Code, which pertinently provided as follows:

Article 335. When and how rape is committed. — Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age, even though neither of the
circumstances mentioned in the two next preceding paragraphs shall be present.

xxxx
The basic element of rape then and now is carnal knowledge of a female. Carnal
knowledge is defined simply as "the act of a man having sexual bodily connections with a
woman,"[16] which explains why the slightest penetration of the female genitalia
consummates the rape. In other words, rape is consummated once the penis capable of
consummating the sexual act touches the external genitalia of the female.[17] In People v.
Campuhan,[18] the Court has defined the extent of "touching" by the penis in rape in the
following terms:

[T]ouching when applied to rape cases docs not simply mean mere epidermal
contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the
external layer of the victim's vagina, or the mons pubis, as in this case. There must
be sufficient and convincing proof that the penis indeed touched the labias or slid
into the female organ, and not merely stroked the external surface thereof, for an
accused to be convicted of consummated rape. As the labias, which are required to
be "touched" by the penis, are by their natural situs or location beneath the mons
pubis or the vaginal surface, to touch them with the penis is to attain some degree of
penetration beneath the surface, hence, the conclusion that touching the labia
majora or the labia minora of the pudendum constitutes consummated rape.

The pudendum or vulva is the collective term for the female genital organs that are visible
in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris,
the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after
puberty, and is instantly visible within the surface. The next layer is the labia majora or
the outer lips of the female organ composed of the outer convex surface and the inner
surface. The skin of the outer convex surface is covered with hair follicles and is
pigmented, while the inner surface is a thin skin which does not have any hair but has
many sebaceous glands. Directly beneath the labia majora is the labia minora.
Jurisprudence dictates that the labia majora must be entered for rape to be consummated,
and not merely for the penis to stroke the surface of the female organ, xxxx Thus, a
grazing of the surface of the female organ or touching the mons pubis of the
pudendum is not sufficient to constitute consummated rape. Absent any showing of
the slightest penetration of the female organ, i.e., touching of either labia of
the pudendum by the penis, there can be no consummated rape; at most, it can only
be attempted rape, if not acts of lasciviousness. [Bold emphasis supplied]

It is noteworthy that in People v. Orita,[19] the Court clarified that the ruling in People v.
Erihia[20] whereby the offender was declared guilty of frustrated rape because of lack of
conclusive evidence of penetration of the genital organ of the offended party, was a stray
decision for not having been reiterated in subsequent cases. As the evolving case law on
rape stands, therefore, rape in its frustrated stage is a physical impossibility, considering
that the requisites of a frustrated felony under Article 6 of the Revised Penal Code are
that: (1) the offender has performed all the acts of execution which would produce the
felony; and (2) that the felony is not produced due to causes independent of the
perpetrator's will. Obviously, the offender attains his purpose from the moment he has
carnal knowledge of his victim, because from that moment all the essential elements of
the offense have been accomplished, leaving nothing more to be done by him.[21]

Nonetheless, rape admits of an attempted stage. In this connection, the character of

the overt acts for purposes of the attempted stage has been explained in People v.
Lizada:[22]

An overt or external act is defined as some physical activity or deed, indicating the
intention to commit a particular crime, more than a mere planning or preparation, which
if carried out to its complete termination following its natural course, without being
frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will
logically and necessarily ripen into a concrete offense. The raison d'etre for the law
requiring a direct overt act is that, in a majority of cases, the conduct of the accused
consisting merely of acts of preparation has never ceased to be equivocal; and this is
necessarily so, irrespective of his declared intent. It is that quality of being equivocal
that must be lacking before the act becomes one which may be said to be a
commencement of the commission of the crime, or an overt act or before any
fragment of the crime itself has been committed, and this is so for the reason that so
long as the equivocal quality remains, no one can say with certainty what the intent
of the accused is. It is necessary that the overt act should have been the ultimate step
towards the consummation of the design. It is sufficient if it was the "first or some
subsequent step in a direct movement towards the commission of the offense after the
preparations are made." The act done need not constitute the last proximate one for
completion. It is necessary, however, that the attempt must have a causal relation to
the intended crime. In the words of Viada, the overt acts must have an immediate
and necessary relation to the offense. (Bold emphasis supplied)

In attempted rape, therefore, the concrete felony is rape, but the offender does not
perform all the acts of execution of having carnal knowledge. If the slightest penetration
of the female genitalia consummates rape, and rape in its attempted stage requires the
commencement of the commission of the felony directly by overt acts without the
offender performing all the acts of execution that should produce the felony, the only
means by which the overt acts performed by the accused can be shown to have a causal
relation to rape as the intended crime is to make a clear showing of his intent to lie with
the female. Accepting that intent, being a mental act, is beyond the sphere of criminal
law,[23] that showing must be through his overt acts directly connected with rape. He
cannot be held liable for attempted rape without such overt acts demonstrating the intent
to lie with the female. In short, the State, to establish attempted rape, must show that his
overt acts, should his criminal intent be carried to its complete termination without being
thwarted by extraneous matters, would ripen into rape,[24] for, as succinctly put in People
v. Dominguez, Jr.:[25] "The gauge in determining whether the crime of attempted rape had
been committed is the commencement of the act of sexual intercourse, i.e., penetration of
the penis into the vagina, before the interruption."

The petitioner climbed on top of the naked victim, and was already touching her genitalia
with his hands and mashing her breasts when she freed herself from his clutches and
effectively ended his designs on her. Yet, inferring from such circumstances that rape,
and no other, was his intended felony would be highly unwarranted. This was so, despite
his lust for and lewd designs towards her being fully manifest. Such circumstances
remained equivocal, or "susceptible of double interpretation," as Justice Recto put
in People v. Lamahang, supra, such that it was not permissible to directly infer from them
the intention to cause rape as the particular injury. Verily, his felony would not
exclusively be rape had he been allowed by her to continue, and to have sexual congress
with her, for some other felony like simple seduction (if he should employ deceit to have
her yield to him)[26] could also be ultimate felony.

We clarify that the direct overt acts of the petitioner that would have produced attempted
rape did not include equivocal preparatory acts. The former would have related to his acts
directly connected to rape as the intended crime, but the latter, whether external or
internal, had no connection with rape as the intended crime. Perforce, his perpetration of
the preparatory acts would not render him guilty of an attempt to commit such
felony.[27] His preparatory acts could include his putting up of the separate tents, with one
being for the use of AAA and BBB, and the other for himself and his assistant, and his
allowing his wife to leave for Manila earlier that evening to buy more wares. Such acts,
being equivocal, had no direct connection to rape. As a rule, preparatory acts are not
punishable under the Revised Penal Code for as long as they remained equivocal or of
uncertain significance, because by their equivocality no one could determine with
certainty what the perpetrator's intent really was.[28]

If the acts of the petitioner did not constitute attempted rape, did they constitute acts of
lasciviousness?

It is obvious that the fundamental difference between attempted rape and acts of
lasciviousness is the offender's intent to lie with the female. In rape, intent to lie with the
female is indispensable, but this element is not required in acts of
lasciviousness.[29] Attempted rape is committed, therefore, when the "touching" of the
vagina by the penis is coupled with the intent to penetrate. The intent to penetrate is
manifest only through the showing of the penis capable of consummating the sexual act
touching the external genitalia of the female.[30] Without such showing, only the felony of
acts of lasciviousness is committed.[31]

Based on Article 336 of the Revised Penal Code, the felony of acts of lasciviousness is
consummated when the following essential elements concur, namely: (a) the offender
commits any act of lasciviousness or lewdness upon another person of either sex; and (b)
the act of lasciviousness or lewdness is committed either (i) by using force or
intimidation; or (ii) when the offended party is deprived of reason or is otherwise
unconscious; or (iii) when the offended party is under 12 years of age.[32] In that
regard, lewd is defined as obscene, lustful, indecent, lecherous; it signifies that form of
immorality that has relation to moral impurity; or that which is carried on a wanton
manner.[33]

The information charged that the petitioner "remove[d] her panty and underwear and
la[id] on top of said AAA embracing and touching her vagina and breast." With such
allegation of the information being competently and satisfactorily proven beyond a
reasonable doubt, he was guilty only of acts of lasciviousness, not attempted rape. His
embracing her and touching her vagina and breasts did not directly manifest his intent to
lie with her. The lack of evidence showing his erectile penis being in the position to
penetrate her when he was on top of her deterred any inference about his intent to lie with
her. At most, his acts reflected lewdness and lust for her.

The intent to commit rape should not easily be inferred against the petitioner, even from
his own declaration of it, if any, unless he committed overt acts directly leading to rape.
A good illustration of this can be seen in People v. Bugarin,[34] where the accused was
charged with attempted rape through an information alleging that he, by means of force
and intimidation, "did then and there willfully, unlawfully and feloniously commence the
commission of the crime of Rape directly by overt acts, by then and there kissing the
nipples and the vagina of the undersigned [complainant], a minor, and about to lay on
top of her, all against her will, however, [he] did not perform all the acts of execution
which would have produced the crime of Rape by reason of some causes other than his
own spontaneous desistance, that is, undersigned complainant push[ed] him away." The
accused was held liable only for acts of lasciviousness because the intent to commit rape
"is not apparent from the act described," and the intent to have sexual intercourse with
her was not inferable from the act of licking her genitalia. The Court also pointed out that
the "act imputed to him cannot be considered a preparatory act to sexual intercourse."[35]

Pursuant to Article 336 of the Revised Penal Code, the petitioner, being guilty of acts of
lasciviousness, is punished with prision correccional. In the absence of modifying
circumstances, prision correccional is imposed in its medium period, which ranges from
two (2) years, four (4) months and one day to four (4) years and two (2) months.
Applying the Indeterminate Sentence Law, the minimum of the penalty should come
from arresto mayor, the penalty next lower than prision correccional which ranges from
one (1) month to six (6) months. Accordingly, the Court fixes the indeterminate sentence
of three (3) months of arresto mayor, as the minimum, to two (2) years, four (4) months
and one day of prision correccional, as the maximum.

In acts of lasciviousness, the victim suffers moral injuries because the offender violates
her chastity by his lewdness. "Moral damages include physical suffering, mental anguish,
fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar injury. Though incapable of pecuniary computation, moral
damages may be recovered if they are the proximate result of the defendant's wrongful
act for omission."[36] Indeed, Article 2219, (3), of the Civil Code expressly recognizes the
right of the victim in acts of lasciviousness to recover moral damages.[37] Towards that
end, the Court, upon its appreciation of the record, decrees that P30,000.00 is a
reasonable award of moral damages.[38] In addition, AAA was entitled to recover civil
indemnity of P20,000.00.[39]

Under Article 2211 of the Civil Code, the courts are vested with the discretion to impose
interest as a part of the damages in crimes and quasi-delicts. In that regard, the moral
damages of P20,000.00 shall earn interest of 6% per annum reckoned from the finality of
this decision until full payment.[40]

WHEREFORE, the Court FINDS and PRONOUNCES petitioner NORBERTO

CRUZ y BARTOLOME guilty of ACTS OF LASCIVIOUSNESS,
and, ACCORDINGLY, PENALIZES him with the indeterminate sentence of three (3)
months of arresto mayor, as the minimum, to two (2) years, four (4) months and one day
of prision correccional, as the maximum; ORDERS him to pay moral damages of
P30,000.00 and civil indemnity of P20,000.00 to the complainant, with interest of 6% per
annum on such awards reckoned from the finality of this decision until full payment;
and DIRECTS him to pay the costs of suit.

SO ORDERED.

G.R. No. 149988, August 14, 2009

RAMIE VALENZUELA, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,

RESPONDENT.

DECISION

BRION, J.:

Petitioner Ramie Valenzuela (petitioner) seeks, in this petition for review

on certiorari,[1] to reverse the Court of Appeals (CA) decision and resolution dated June
18, 2001 and September 10, 2001, respectively, in CA-G.R. CR No. 20533, that affirmed
with modification the decision of the Regional Trial Court (RTC), Branch 38, Lingayen,
Pangasinan, dated November 21, 1996, convicting the petitioner with the crime of
attempted murder.

Petitioner and his brother, Hermie Valenzuela (Hermie), were charged with the crime of
frustrated murder, allegedly committed as follows:

That on or about the 20th day of February 1996, in the evening, in Barangay Maniboc,
municipality of Lingayen, province of Pangasinan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, armed with a sharp
pointed, bladed instrument, with intent to kill, taking advantage of their superior strength,
conspiring, confederating and mutually helping one another, did then and there willfully,
unlawfully and feloniously attack, assault and stab Gregorio P. Cruz, inflicting upon him
the following:

- Stab wound 1 cm flank area left, 3 cm. depth

- Stap wound 1 cm flank area left, 3 cm. depth
the accused having thus performed all the acts of execution which would have produced
the crime of murder as a consequence but nevertheless did not produce it by reason of
causes independent of the will of the accused, that is, the timely medical assistance
afforded to Gregorio P. Cruz which prevented his death, to his damage and prejudice.[2]

We summarized below the facts based on the records before us.

Petitioner and the victim, Gregorio P. Cruz (Gregorio), both lived in Barangay Maniboc,
Lingayen, Pangasinan. In the early evening of February 20, 1996, Gregorio and his
companion, Rogelio Bernal (Rogelio), went to the house of Barangay Captain Aurora
dela Cruz to talk with Pepito, the latter's husband. While at the dela Cruz home, Gregorio,
Rogelio and Pepito drank liquor (Fundador).

Based on the prosecution's account of the events, at around 10:00 o'clock of that same
evening, Gregorio and Rogelio left the dela Cruz residence and headed for home after
their "drinking spree" with Pepito dela Cruz. While they were walking along
the barangay road and were near the Valenzuelas' residence/sari-sari store, the petitioner
and his brother Hermie suddenly appeared from behind them. The petitioner held the
shoulders of Gregorio while Hermie stabbed Gregorio twice at the left side of his back.
Immediately thereafter, Hermie ran to the direction of the Valenzuelas' house some 10
meters away.

After the stabbing, Gregorio was brought to the clinic of one Dr. Casipit who
administered emergency treatment on the stab wounds. He was transferred the following
day to the Pangasinan Provincial Hospital (now Gov. Teofilo Sison Memorial Hospital)
for further treatment. Per the medical findings of Dr. Antonio Rivera (Dr. Rivera),
attending physician and Medical Officer III of the said hospital, Gregorio suffered the
following wounds:

- Stab wound 1 cm flank area left, 3 cm depth;

- Stab wound 1 cm flank area left, 3 cm depth.

The wounds were found not to be fatal, as no vital organ was affected. Gregorio was
discharged after one week of confinement.

On March 13, 1996, SPO II Jimmy B. Melchor of the Lingayen Police Station filed
before the Municipal Trial Court of Lingayen, Pangasinan a criminal complaint
for frustrated murder against the petitioner and Hermie. Finding probable cause, the
court issued a warrant for their arrest and forwarded the records of the case to the Office
of the Provincial Prosecutor of Pangasinan for the filing of the appropriate
Information.[3] On May 16, 1996, an Information was filed before the RTC of Lingayen,
Pangasinan, charging the two accused with frustrated murder.

Trial of the case proceeded solely with respect to the petitioner as his brother and co-
accused, Hermie, was then, and still is, at large.
The prosecution presented Dr. Rivera of the Pangasinan Provincial Hospital who
explained his medical findings on the injuries Gregorio sustained. He said that the 2 one-
centimeter long wounds, both three-centimeter deep, were not fatal as no vital organ was
affected.

The prosecution likewise presented Rogelio who declared that on the night of February
20, 1996, he accompanied Gregorio to the house of their Barangay Captain to talk to the
latter's husband, Pepito dela Cruz; they drank as they talked with Pepito. As they headed
for home while passing by the Valenzuelas' house/sari-sari store, the petitioner suddenly
appeared from behind and held Gregorio, while Hermie stabbed the victim. Rogelio was
able to positively identify the petitioner and Hermie as Gregorio's assailants, as the scene
of the crime was well-lighted, illuminated by a streetlight from a nearby electric post.

After the stabbing, the two assailants ran towards their house, and Rogelio took Gregorio
initially to the house of Barangay Captain dela Cruz, and then to the clinic of a certain
Dr. Casipit for emergency treatment. Thereafter, he took Gregorio to the Pangasinan
Provincial Hospital in Dagupan City because the wounds appeared to be "serious."
Rogelio claimed that Hermie used an 8-inch long knife.

The victim, Gregorio, likewise testified for the prosecution. He declared that he was the
Chief Barangay Tanod of their place and that he knew the two accused because they
were residents of his barangay. The rest of his testimony was similar to Rogelio's.

The petitioner, after pleading not guilty to the charge, presented his defenses of denial
and alibi. He claimed that on the night of February 20, 1996, he was at home together
with his uncle, his sister, his sister's friend, and his parents. Earlier that night, he claimed
that he read the Bible, ate dinner with his family and guests, then watched television. At
around 10:00 o'clock that evening, they heard somebody shouting from the outside; his
parents, however, prevented him from going out of the house for fear that he might get
into trouble.

The petitioner claimed he was being implicated in the stabbing incident because he had a
previous altercation with the victim, Gregorio, when the latter apprehended his other
brother, Rommel Valenzuela. He further surmised that Gregorio could have mistaken him
for his brother, Willy, with whom he shares physical similarities and who, he claimed,
was one of the assailants in the stabbing incident. Witnesses Nestor Cerezo (Nestor) and
Rhodora Manzano (Rhodora) supported the petitioner's defense of alibi.

Nestor testified that he is a businessman and a resident of Dagupan City. He claimed that
the petitioner is his nephew, as the petitioner's maternal aunt, Josefina Campos, is his
common-law partner. He stated that on February 20, 1996, he went to the Valenzuelas'
house to collect payment on a debt owed him by the parents of the accused. Since he
arrived after dark, the parents of the accused prevailed on him to dine and spend the night
with them.
At about 10:00 o'clock that night, while he was talking with the petitioner and the latter's
father (Rosauro), they heard a commotion outside the house. He and Rosauro went out
and saw several persons talking. They learned from their inquiry that Hermie had stabbed
Gregorio. Nestor claimed that all this time, the petitioner was inside the house because
his father had prevented him from going out.

Rhodora also testified for the defense. She declared under oath that she is a friend of
Annie Valenzuela, the younger sister of the accused. On February 20, 1996, Annie
invited her to sleep in their house. They had dinner at about 6:30 pm, ahead of the other
members of the household who were then in conversation with another visitor, whom she
later learned to be Nestor. At about 9:45 pm, while she and Annie were manning the
Valenzuelas' store, Willy Valenzuela arrived and joined the group singing and playing the
guitar in front of the store; Hermie was among those in the group.

At around 10:00 pm, she noticed Gregorio and Rogelio walking past the store; both
appeared drunk as they were walking aimlessly. As they walked, the two momentarily
stopped and stared at the group in front of the Valenzuelas' store before proceeding to
another sari-sari store nearby. She then heard Gregorio shout "vulva of your mother,
Valenzuela" three times; Rogelio tried to pacify him. Thereafter, she saw Hermie
approach Gregorio to confront him. In a blur, she witnessed Gregorio hit Hermie on the
left side of the face. Hermie retreated to his house but came back and stabbed Gregorio at
the left side of his back. She noticed that Willy then held the arms of Gregorio in an
attempt to mollify the latter; Gregorio responded by hitting Willy on the head. At this
point, she heard Willy advise Gregorio to go away to avoid further trouble; instead of
heeding the advice, Gregorio threw a fist blow at Hermie, who dodged the blow and
stabbed Gregorio a second time.

Right after the stabbing, she saw Hermie run to the direction of the Valenzuelas' house,
while Gregorio and Rogelio proceeded to the house of Barangay CaptainDela Cruz. She
categorically declared that the petitioner had no participation in the incident, as only the
petitioner's brothers, Willy and Hermie, were at the scene of the crime.

After trial on the merits, the trial court rendered its decision[4] of November 21, 1996,
convicting the petitioner of frustrated murder. The trial court found that the petitioner's
defense of alibi had insufficient evidentiary support and must yield to the positive
identification by the prosecution witness, Rogelio. The dispositive portion of the lower
court's decision reads:

WHEREFORE, in the light of all the foregoing considerations, the court finds and holds
the accused, Ramie Valenzuela, guilty beyond reasonable doubt of the crime of
Frustrated Murder as charged in the information filed against him, pursuant to law, taking
into account the provision[s] of Article 250 of the Revised Penal Code and the
Indeterminate Sentence Law in his favor, hereby sentences said accused to suffer the
indeterminate penalty of four (4) years and two (2) months of prision correccional as
minimum to eight (8) years and one (1) day of prision mayor as maximum and to pay the
costs of the suit. x x x
In appreciating the qualifying circumstance of abuse of superior strength, the trial court
explained:

The information filed against the accused alleges that the two accused took advantage of
their superior strength in attacking and assaulting the offended party with sharp pointed,
bladed instrument twice on the left side of the back. Abuse of superior strength is
determined by the excess of the aggressors natural strength over that of the victim's,
considering the momentary positions of both parties and the employment of means
weakening the defense of the victim, although not annulling it. Thus, there is abuse of
superior strength in the case where four persons attacked an unarmed victim (People v.
Garcia, 94 SCRA 14) or where six persons inflicted injuries on the victim (People v.
Gonzales).

The petitioner appealed to the CA. In its decision of June 18, 2001, the appellate court
affirmed with modification the trial court's decision; it held that the crime committed was
attempted murder since the wounds inflicted were not fatal. The fallo of the CA decision
reads:

WHEREFORE, premises considered, the appealed decision is hereby AFFIRMED WITH

MODIFICATION. In lieu thereof, another one is entered CONVICTING the accused of
the crime of ATTEMPTED MURDER and sentencing him to suffer the penalty of
imprisonment of four (4) years and two (2) months of prision correccional, as minimum,
to eight (8) years and one (1) day of prision mayor, as maximum x x x. (Emphasis
supplied.)

The appellate court denied the petitioner's motion for reconsideration that followed, thus
paving the way for the present petition for review on certiorari on the sole issue of --

WHETHER THE COURT OF APPEALS ERRED IN CONVICTING THE

PETITIONER FOR ATTEMPTED MURDER.

Thus framed, the sole issue before us is whether the crime the petitioner committed
should properly be attempted murder based on the qualifying circumstance of abuse of
superior strength.

We find the petition meritorious.

The RTC and the CA commonly found an intent to kill. They differ in the appreciation of
the stage of execution of the crime as the RTC considered the crime frustrated, while the
CA decided that it was attempted because the victim's wounds were not fatal. In both
rulings, the RTC and the CA characterized the act to be qualified by abuse of superior
strength; thus, it was either attempted or frustrated murder.

The petitioner, in his Reply,[5] finds the appreciation of abuse of superior strength to be
erroneous, as the Information charging him with the crime of frustrated murder did not
allege this circumstance with particularity as a qualifying circumstance. The petitioner
therefore posits that this circumstance, even if proven, must be considered a generic
aggravating circumstance.

We see no merit in the petitioner's contention in light of our ruling in People v.

Aquino[6] which we intended to guide the bench and the bar on how to allege or specify
qualifying or aggravating circumstances in the Information. We held in this case that the
words "aggravating/qualifying," "qualifying," "qualified by," "aggravating," or
"aggravated by" need not be expressly stated, so long as the particular attendant
circumstances are specified in the Information.

This conclusion, notwithstanding, we hold that the conviction of the accused of the crime
of either attempted or frustrated murder is substantively flawed, as both the RTC and the
CA erroneously appreciated the presence of abuse of superior strength as a qualifying
circumstance. Our own examination of the evidence tells us that no conclusive proof
exists showing the presence of this circumstance in the commission of the felony.

Both the trial and appellate courts concluded that abuse of superior strength was present
because the petitioner "held the arms of the victim to facilitate the stabbing by his brother
(Hermie) and to limit the degree of resistance that the victim may put up."[7] The trial
court, in particular, held that "there is no doubt that accused took advantage of their
combined strength when one held the victim by the shoulder and armpit and the other
inflicted two stab wounds on the left side of his back." We find this reasoning erroneous.

Abuse of superior strength is present whenever there is a notorious inequality of forces

between the victim and the aggressor/s that is plainly and obviously advantageous to the
aggressor/s and purposely selected or taken advantage of to facilitate the commission of
the crime.[8] Evidence must show that the assailants consciously sought the
advantage,[9] or that they had the deliberate intent to use this advantage.[10] To take
advantage of superior strength means to purposely use force excessively out of proportion
to the means of defense available to the person attacked.[11] The appreciation of this
aggravating circumstance depends on the age, size and strength of the parties.[12]

In the present case, the prosecution failed to present evidence to show a relative disparity
in age, size, strength, or force, except for the showing that two assailants, one of them
armed with a knife, attacked the victim. The presence of two assailants, one of them
armed with a knife, is not per se indicative of abuse of superior strength.[13] Mere
superiority in numbers does not indicate the presence of this circumstance.[14] Nor can the
circumstance be inferred solely from the victim's possibly weaker physical constitution.
In fact, what the evidence shows in this case is a victim who is taller than the
assailants[15] and who was even able to deliver retaliatory fist blows[16] against the knife-
wielder.

The events leading to the stabbing further belie any finding of deliberate intent on the
part of the assailants to abuse their superior strength over that of the victim.[17] The
testimonies of the witnesses, on the whole, show that the encounter between the victim
and his assailants was unplanned and unpremeditated. The victim and his companions
were simply passing by after a night of conversation with drinks, while the assailants
were simply singing and engaged in merrymaking, and no conscious effort on the part of
the accused appeared to have been made to use or take advantage of any superior strength
that they then enjoyed.[18] Specifically, we do not find it certain nor clearly established
that the accused, taking advantage of their number, purposely resorted to holding the
victim by the arms so that the knife-wielder would be free to stab him at the back. In
terms of numbers, the victim was with a companion while only two of the Valenzuela
brothers participated in the attack; thus a parity in numbers existed. Nor is it certain that
the victim was simply overwhelmed by the act of the accused of holding the victim by the
shoulders while his brother stabbed him at the back. The evidence on this point is simply
too sketchy and too confused for a definitive conclusion. What, to us, is certain is the
intent to kill, as shown by the two stab wounds and their location; they were back wounds
that could have been fatal or near fatal had greater force been used or the dynamics of the
parties' movements at the time of the stabbing been different. Even if the accused did not
directly wield the knife, he is as guilty as the knife-wielder for the unity of purpose he has
shown in participating in the attack against the victim, Gregorio.

In light of all these, we are compelled to rule out the attendance of abuse of superior
strength as a qualifying circumstance. Considering further that the victim sustained
wounds that were not fatal and absent a showing that such wounds would have certainly
caused his death were it not for timely medical assistance, we declare the petitioner's guilt
to be limited to the crime of attempted homicide.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated
June 18, 2001 in CA-G.R. CR No. 20533 is AFFIRMED with MODIFICATION.
Petitioner Ramie Valenzuela is found guilty of attempted homicide under Article 249 in
relation with Article 6 of the Revised Penal Code. In the absence of any modifying
circumstance attendant to the commission of the crime, we hereby sentence him to suffer
an indeterminate penalty[19] of four (4) months of arresto mayor in its medium period, as
minimum, to three (3) years of prision correccional in its medium period, as maximum.

SO ORDERED.

G.R. NO. 138033, February 22, 2006

RENATO BALEROS, JR., PETITIONER VS. PEOPLE OF THE PHILIPPINES,

RESPONDENT.

DECISION

GARCIA, J.:
In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks
the reversal of the January 13, 1999 decision[1] of the Court of Appeals (CA) in CA-G.R.
CR No. 17271 as reiterated in its March 31, 1999 resolution[2] denying petitioner's motion
for reconsideration.

The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of
Manila, Branch 2, in Criminal Case No. 91-101642 finding petitioner Renato Baleros,
Jr. y David (CHITO) guilty of attempted rape.[3]

The accusatory portion of the information[4] dated December 17, 1991 charging petitioner
with attempted rape reads as follow:
That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila
and within the jurisdiction of this Honorable Court, the above-named accused, by
forcefully covering the face of Martina Lourdes T. Albano with a piece of cloth soaked in
chemical with dizzying effects, did then and there willfully, unlawfully and feloniously
commenced the commission of rape by lying on top of her with the intention to have
carnal knowledge with her but was unable to perform all the acts of execution by reason
of some cause or accident other than his own spontaneous desistance, said acts being
committed against her will and consent to her damage and prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not
Guilty."[5] Thereafter, trial on the merits ensued.

To prove its case, the prosecution presented thirteen (13) witnesses. Among them were
private complainant Martina Lourdes Albano (Malou), and her classmates, Joseph
Bernard Africa, Rommel Montes, Renato Alagadan and Christian Alcala. Their
testimonies, as narrated in some detail in the decision of the CA, established the
following facts:
Like most of the tenants of the Celestial Marie Building (hereafter "Building", ...) along
A.H. Lacson Street, Sampaloc, Manila, MALOU, occupying Room 307 with her maid,
Marvilou Bebania (Marvilou), was a medical student of the University of Sto. Tomas
[UST] in 1991.

In the evening of December 12, inside Unit 307, MALOU retired at around 10:30.
Outside, right in front of her bedroom door, her maid, Marvilou, slept on a folding bed.

Early morning of the following day, MALOU was awakened by the smell of chemical on
a piece of cloth pressed on her face. She struggled but could not move. Somebody was
pinning her down on the bed, holding her tightly. She wanted to scream for help but the
hands covering her mouth with cloth wet with chemicals were very tight (TSN, July 5,
1993, p. 33). Still, MALOU continued fighting off her attacker by kicking him until at
last her right hand got free. With this ...the opportunity presented itself when she was able
to grab hold of his sex organ which she then squeezed.

The man let her go and MALOU went straight to the bedroom door and roused Marvilou.
xxx. Over the intercom, MALOU told S/G Ferolin that: "may pumasok sa kuarto ko
pinagtangkaan ako" (Ibid., p. 8). Who it was she did not, however, know. The only thing
she had made out during their struggle was the feel of her attacker's clothes and weight.
His upper garment was of cotton material while that at the lower portion felt smooth and
satin-like (Ibid, p. 17). He ... was wearing a t-shirt and shorts ... Original Records, p.
355).

To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista,
Lutgardo Acosta and Rommel Montes were staying, MALOU then proceeded to seek
help. xxx.

It was then when MALOU saw her bed ... topsy-turvy. Her nightdress was stained with
blue ... (TSN, July 5, 1993, pp. 13-14). Aside from the window with grills which she had
originally left opened, another window inside her bedroom was now open. Her attacker
had fled from her room going through the left bedroom window (Ibid, Answers to
Question number 5; Id), the one without iron grills which leads to Room 306 of the
Building (TSN, July 5, 1993, p.6).

xxx xxx xxx

Further, MALOU testified that her relation with CHITO, who was her classmate ..., was
friendly until a week prior to the attack. CHITO confided his feelings for her, telling her:
"Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22) and she rejected him. .... (TSN, July
5, 1993, p. 22).

Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the
Building at 1:30 in the early morning of December 13, 1991, wearing a white t-shirt with
"'...a marking on the front of the T-shirt T M and a Greek letter (sic) ΣǾ' and below the
quoted letters the word '1946' 'UST Medicine and Surgery'" (TSN, October 9, 1992, p. 9)
and black shorts with the brand name "Adidas" (TSN, October 16, 1992, p.7) and
requested permission to go up to Room 306. This Unit was being leased by Ansbert Co
and at that time when CHITO was asking permission to enter, only Joseph Bernard
Africa was in the room.

He asked CHITO to produce the required written authorization and when CHITO could
not, S/G Ferolin initially refused [but later, relented] .... S/G Ferolin made the following
entry in the security guard's logbook ...:
"0130HBaleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request
letter from our tenant of Unit #-306 Ansbert, but still I let him inter (sic) for the
reason that he will be our tenant this coming summer break as he said so I let him
sign it here

(Sgd.) Baleros Renato Jr."

(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated
by Joseph Bernard Africa (Joseph), ....

xxx xxx xxx

Joseph was already inside Room 306 at 9 o'clock in the evening of December 12, 1991.
xxx by the time CHITO's knocking on the door woke him up, .... He was able to fix the
time of CHITO's arrival at 1:30 A.M. because he glanced at the alarm clock beside the
bed when he was awakened by the knock at the door....

Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p.
23) when he let the latter in. .... It was at around 3 o'clock in the morning of December
13, 1991 when he woke up again later to the sound of knocking at the door, this time, by
Bernard Baptista (Bernard), ....

xxx. With Bernard, Joseph then went to MALOU's room and thereat was shown by
Bernard the open window through which the intruder supposedly passed.

xxx xxx xxx

Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to
talk to CHITO .... He mentioned to the latter that something had happened and that they
were not being allowed to get out of the building. Joseph also told CHITO to follow him
to Room 310.

CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx.
None was in Room 310 so Joseph went to their yet another classmate, Renato Alagadan
at Room 401 to see if the others were there. xxx.

People from the CIS came by before 8 o'clock that same morning .... They likewise
invited CHITO and Joseph to go with them to Camp Crame where the two (2) were
questioned ....

An occupant of Room 310 ... Christian Alcala (Christian) recalled in Court that in the
afternoon of December 13, 1991, after their 3:30 class, he and his roommates, Bernard
Baptista and Lutgardo Acosta (Gary) were called to the Building and were asked by the
CIS people to look for anything not belonging to them in their Unit. While they were
outside Room 310 talking with the authorities, Rommel Montes (Loyloy), another
roommate of his, went inside to search the Unit. Loyloy found (TSN, January 12, 1993,
p. 6) a gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their unit which
they did not know was there and surrender the same to the investigators. When he saw
the gray bag, Christian knew right away that it belonged to CHITO (Ibid, p. 55) as he had
seen the latter usually bringing it to school inside the classroom (Ibid, p. 45).

In their presence, the CIS opened the bag and pulled out its contents, among others, a
white t-shirt with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black Adidas short pants, a
handkerchief , three (3) white T-shirts, an underwear, and socks (Ibid).

Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"),
and the handkerchief (Exhibit "D-3) to be CHITO's because CHITO had lent the very
same one to him .... The t-shirt with CHITO's fraternity symbol, CHITO used to wear on
weekends, and the handkerchief he saw CHITO used at least once in December.

That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was
what consisted mainly of Renato R. Alagadan's testimony.

xxx xxx xxx.

The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and
appeared to be full but was closed with a zipper when Renato saw it then (Ibid, pp. 19-
20). At that time Christian, Gary, Bernard, and Renato went back to Room 310 at around
3 to 4 o'clock that afternoon along with some CIS agents, they saw the bag at the same
place inside the bedroom where Renato had seen CHITO leave it. Not until later that
night at past 9 o'clock in Camp Crame, however, did Renato know what the contents of
the bag were.

xxx xxx xxx.

The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime
Laboratory in Camp Crame, having acted in response to the written request of PNP
Superintendent Lucas M. Managuelod dated December 13, 1991, (Exhibit "C"; Original
Records, p. 109.) conducted laboratory examination on the specimen collated and
submitted.... Her Chemistry Report No. C-487-91 (Exhibit "E"; Ibid., p. 112) reads in
part, thus:
"SPECIMEN SUBMITTED:

xxx xxx xxx:

1) One (1) small white plastic bag marked 'UNIMART' with the following:

xxx xxx xxx

2) One (1) small white plastic bag marked 'JONAS' with the following:

Exh. 'D' – One (1) printed handkerchief.

Exh. 'E' – One (1) white T-shirt marked 'TMZI'.

Exh. 'F' – One (1) black short (sic) marked 'ADIDAS'.

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of volatime (sic), non-volatile and/or metallic poison on

the above stated specimens.

FINDINGS:
 Toxicological examination conducted on the above stated specimens gave the
following results:

Exhs. 'C' and 'D' – POSITIVE to the test for chloroform, a volatile poison.

Exhs. 'A', 'B', 'E' and 'F' are insufficient for further analysis.

CONCLUSION:

Exhs. 'C' and 'D' contain chloroform, a volatile poison."[6] (Words in bracket added)

For its part, the defense presented, as its main witness, the petitioner himself. He denied
committing the crime imputed to him or making at any time amorous advances on Malou.
Unfolding a different version of the incident, the defense sought to establish the
following, as culled from the same decision of the appellate court:
In December of 1991, CHITO was a medical student of ... (UST). With Robert Chan and
Alberto Leonardo, he was likewise a member of the Tau Sigma Phi Fraternity
.... MALOU, ..., was known to him being also a medical student at the UST at the time.

From Room 306 of the Celestial Marie Building ..., CHITO, wearing the prescribed
barong tagalog over dark pants and leather shoes, arrived at their Fraternity house located
at ... Dos Castillas, Sampaloc, Manila at about 7 o'clock in the evening of December 12,
1991. He was included in the entourage of some fifty (50) fraternity members scheduled
for a Christmas gathering at the house of their senior fraternity brother, Dr. Jose Duran, at
No. 3 John Street, North Greenhills, San Juan. xxx.

The party was conducted at the garden beside [the] swimming pool .... Soon after, ... the
four (4) presidential nominees of the Fraternity, CHITO included, were being dunked
one by one into the pool. xxx.

xxx CHITO had anticipated his turn ... and was thus wearing his t-shirt and long pants
when he was dunked. Perla Duran, ..., offered each ... dry clothes to change into and
CHITO put on the white t-shirt with the Fraternity's symbol and a pair of black shorts
with stripes. xxx .

Again riding on Alberto's car and wearing "barong tagalog over a white t-shirt with the
symbol TAU Sigma Phi, black short pants with stripe, socks and shoes" (TSN, April 25,
1994, p. 15), CHITO left the party with Robert Chan and Alberto at more or less past 1
A.M. of December 13, 1991 and proceeded to the Building which they reached at about
1:30 A.M. (Ibid., p. 19). He had left his gray traveling bag containing "white t-shirt,
sando, underwear, socks, and toothbrush (Ibid., pp. 17-18) at room 306 in the afternoon
of the previous day ....

At the gate of the Building, CHITO knocked and ..., S/G Ferolin, looking at his watch,
approached. Because of this, CHITO also looked at his own watch and saw that the time
was 1:30 (Ibid., p. 26). S/G Ferolin initially refused CHITO entry .... xxx.

S/G Ferolin called Unit 306 .... xxx. When S/G Ferolin finally let him in, already about
ten (10) minutes had lapsed since CHITO first arrived (Ibid., p. 25).

CHITO went up the floor, found the key left for him by Joseph behind the opened
jalousie window and for five (5) minutes vainly tried to open the door until Rommel
Montes, ... approached him and even commented: "Okey ang suot mo ha, di mo
mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried to open the door of Unit 306 ... but
was likewise unsuccessful. CHITO then decided to just call out to Joseph while knocking
at the door.

It took another (5) minutes of calling out and knocking before Joseph, ..., at last answered
the door. Telling him, "Ikaw na ang bahala diyan" Joseph immediately turned his back on
CHITO and went inside the bedroom. CHITO , ...changed to a thinner shirt and went to
bed. He still had on the same short pants given by Perla Duran from the fraternity party
(TSN, June 16, 1994, p. 20).

At 6 o'clock in the morning of December 13, 1991, CHITO woke up .... He was already
in his school uniform when, around 6:30 A.M, Joseph came to the room not yet dressed
up. He asked the latter why this was so and, without elaborating on it, Joseph told him
that something had happened and to just go to Room 310 which CHITO did.

At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was
not able to identify, went to the room of MALOU and tried to rape her (TSN, April 25,
1994, p. 36). xxx.

Joseph told him that the security guard was not letting anybody out of the Building ....
When two (2) CIS men came to the unit asking for Renato Baleros, CHITO presented
himself. Congressman Rodolfo B. Albano, father of MALOU, then asked him for the key
to Room 306....

xxx xxx xxx

The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up
and the two (2) of them, CHITO and Joseph, were brought to Camp Crame.

When they arrived at Camp Crame ..., Col. Managuelod asked Joseph inside his room
and talked to him for 30 minutes. xxx. No one interviewed CHITO to ask his side.

xxx xxx xxx

Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to
undergo physical examination at the Camp Crame Hospital ..... At the hospital, ... CHITO
and Joseph were physically examined by a certain Dr. de Guzman who told them to strip
....
 xxx xxx xxx

CHITO had left his gray bag containing, among others, the black striped short pants lent
to him by Perla Duran (Exhibit "8-A", Original Records, p. 345), inside Room 310 at
more/less 6:30 to 7 o'clock in the morning of December 13, 1991. The next time that he
saw it was between 8 to 9 P.M. when he and Joseph were brought before Fiscal Abesamis
for inquest. One of the CIS agents had taken it there and it was not opened up in his
presence but the contents of the bag were already laid out on the table of Fiscal Abesamis
who, however, made no effort to ask CHITO if the items thereat were his.

The black Adidas short pants purportedly found in the bag, CHITO denied putting in his
gray bag which he had left at Room 306 in the early evening of December 12, 1991
before going to the fraternity house. He likewise disavowed placing said black Adidas
short pants in his gray bag when he returned to the apartment at past 1:00 o'clock in the
early morning of December 13, 1991 (TSN, June 16, 1994, p. 24), nor when he dressed
up at about 6 o'clock in the morning to go to school and brought his gray bag to Room
310 (Ibid. 25). In fact, at any time on December 13, 1991, he was not aware that his gray
bag ever contained any black short Adidas pants (Ibid). He only found out for the first
time that the black Adidas short pants was alluded to be among the items inside his gray
bag late in the afternoon, when he was in Camp Crame.
Also taking the witness stand for the defense were petitioner's fraternity brothers, Alberto
Leonardo and Robert Chan, who both testified being with CHITO in the December 12,
1991 party held in Dr. Duran's place at Greenhills, riding on the same car going to and
coming from the party and dropping the petitioner off the Celestial Marie building after
the party. Both were one in saying that CHITO was wearing a barong tagalog, with t-
shirt inside, with short pants and leather shoes at the time they parted after the
party.[7] Rommel Montes, a tenant of Room 310 of the said building, also testified seeing
CHITO between the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to open
the door of Room 306 while clad in dark short pants and white barong tagalog.

On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants
with stripes after the dunking party held in her father's house.[8] Presented as defense
expert witness was Carmelita Vargas, a forensic chemistry instructor whose actual
demonstration in open court showed that chloroform, being volatile, evaporates in thirty
(30) seconds without tearing nor staining the cloth on which it is applied.[9]

On December 14, 1994, the trial court rendered its decision[10] convicting petitioner of
attempted rape and accordingly sentencing him, thus:
WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds
the accused Renato D. Baleros, Jr., alias "Chito", guilty beyond reasonable doubt of the
crime of attempted rape as principal and as charged in the information and hereby
sentences him to suffer an imprisonment ranging from FOUR (4) YEARS, TWO (2)
MONTHS AND ONE (1) DAY of Prision Correctional, as Minimum to TEN (10)
YEARS of Prision Mayor as Maximum, with all the accessory penalties provided by law,
and for the accused to pay the offended party Martina Lourdes T. Albano, the sum of
P50,000.00 by way of Moral and exemplary damages, plus reasonable Attorney's fees of
P30,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs.

SO ORDERED.
Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-
G.R. CR No. 17271.

As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999,
affirmed the trial court's judgment of conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate from the findings of the
court a quo, the decision appealed from is hereby AFFIRMED in toto. Costs against
appellant.

SO ORDERED.[11]
Petitioner moved for reconsideration, but his motion was denied by the CA in its equally
assailed resolution of March 31, 1999.[12]

Petitioner is now with this Court, on the contention that the CA erred -

1. In not finding that it is improbable for petitioner to have committed the attempted
rape imputed to him, absent sufficient, competent and convincing evidence to
prove the offense charged.

2. In convicting petitioner of attempted rape on the basis merely of circumstantial

evidence since the prosecution failed to satisfy all the requisites for conviction
based thereon.

3. In not finding that the circumstances it relied on to convict the petitioner are
unreliable, inconclusive and contradictory.

4. In not finding that proof of motive is miserably wanting in his case.

5. In awarding damages in favor of the complainant despite the fact that the award
was improper and unjustified absent any evidence to prove the same.

6. In failing to appreciate in his favor the constitutional presumption of innocence

and that moral certainty has not been met, hence, he should be acquitted on the
ground that the offense charged against him has not been proved beyond
reasonable doubt.

Otherwise stated, the basic issue in this case turns on the question on whether or not the
CA erred in affirming the ruling of the RTC finding petitioner guilty beyond reasonable
doubt of the crime of attempted rape.

After a careful review of the facts and evidence on record in the light of applicable
jurisprudence, the Court is disposed to rule for petitioner's acquittal, but not necessarily
because there is no direct evidence pointing to him as the intruder holding a chemical-
soaked cloth who pinned Malou down on the bed in the early morning of December 13,
1991.

Positive identification pertains essentially to proof of identity and not per se to that of
being an eyewitness to the very act of commission of the crime. There are two types of
positive identification. A witness may identify a suspect or accused as the offender as an
eyewitness to the very act of the commission of the crime. This constitutes direct
evidence. There may, however, be instances where, although a witness may not have
actually witnessed the very act of commission of a crime, he may still be able to
positively identify a suspect or accused as the perpetrator of a crime as when, for
instance, the latter is the person or one of the persons last seen with the victim
immediately before and right after the commission of the crime. This is the second type
of positive identification, which forms part of circumstantial evidence.[13] In the absence
of direct evidence, the prosecution may resort to adducing circumstantial evidence to
discharge its burden. Crimes are usually committed in secret and under condition where
concealment is highly probable. If direct evidence is insisted under all circumstances, the
prosecution of vicious felons who committed heinous crimes in secret or secluded places
will be hard, if not well-nigh impossible, to prove.[14]

Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial
evidence may be sufficient for conviction. The provision reads:
Sec. 4. Circumstantial evidence, when sufficient – Circumstantial evidence is sufficient
for conviction if –

a) There is more than one circumstance;

b) The facts from which the inferences are derived are proven; and

c) The combination of all the circumstances is such as to produce a conviction beyond

reasonable doubt.
In the present case, the positive identification of the petitioner forms part of
circumstantial evidence, which, when taken together with the other pieces of evidence
constituting an unbroken chain, leads to only fair and reasonable conclusion, which
is that petitioner was the intruder in question.

We quote with approval the CA's finding of the circumstantial evidence that led to the
identity of the petitioner as such intruder:
Chito was in the Building when the attack on MALOU took place. He had access to the
room of MALOU as Room 307 where he slept the night over had a window which
allowed ingress and egress to Room 306 where MALOU stayed. Not only the Building
security guard, S/G Ferolin, but Joseph Bernard Africa as well confirmed that CHITO
was wearing a black "Adidas" shorts and fraternity T-shirt when he arrived at the
Building/Unit 307 at 1:30 in the morning of December 13, 1991. Though it was dark
during their struggle, MALOU had made out the feel of her intruder's apparel to be
something made of cotton material on top and shorts that felt satin-smooth on the
bottom.
From CHITO's bag which was found inside Room 310 at the very spot where witness
Renato Alagadan saw CHITO leave it, were discovered the most incriminating evidence:
the handkerchief stained with blue and wet with some kind of chemicals; a black
"Adidas" satin short pants; and a white fraternity T-shirt, also stained with blue. A
different witness, this time, Christian Alcala, identified these garments as belonging to
CHITO. As it turned out, laboratory examination on these items and on the beddings and
clothes worn by MALOU during the incident revealed that the handkerchief and
MALOU's night dress both contained chloroform, a volatile poison which causes first
degree burn exactly like what MALOU sustained on that part of her face where the
chemical-soaked cloth had been pressed.
This brings the Court to the issue on whether the evidence adduced by the prosecution
has established beyond reasonable doubt the guilt of the petitioner for the crime of
attempted rape.

The Solicitor General maintained that petitioner, by pressing on Malou's face the piece of
cloth soaked in chemical while holding her body tightly under the weight of his own, had
commenced the performance of an act indicative of an intent or attempt to rape the
victim. It is argued that petitioner's actuation thus described is an overt act contemplated
under the law, for there can not be any other logical conclusion other than that the
petitioner intended to ravish Malou after he attempted to put her to an induced sleep. The
Solicitor General, echoing what the CA said, adds that if petitioner's intention was
otherwise, he would not have lain on top of the victim.[15]

Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal
knowledge or intercourse with a woman under any of the following circumstances: (1)
By using force or intimidation; (2) When the woman is deprived of reason or otherwise
unconscious; and (3) When the woman is under twelve years of age or is demented.
Under Article 6, in relation to the aforementioned article of the same code, rape is
attempted when the offender commences the commission of rape directly by overt acts
and does not perform all the acts of execution which should produce the crime of rape by
reason of some cause or accident other than his own spontaneous desistance.[16]

Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro
M. Recto in People vs. Lamahang,[17] stated that "the attempt which the Penal Code
punishes is that which has a logical connection to a particular, concrete offense;
that which is the beginning of the execution of the offense by overt acts of the
perpetrator, leading directly to its realization and consummation." Absent the
unavoidable connection, like the logical and natural relation of the cause and its effect, as
where the purpose of the offender in performing an act is not certain, meaning the nature
of the act in relation to its objective is ambiguous, then what obtains is an attempt to
commit an indeterminate offense, which is not a juridical fact from the standpoint of the
Penal Code.[18]

There is absolutely no dispute about the absence of sexual intercourse or carnal

knowledge in the present case. The next question that thus comes to the fore is whether or
not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth while on top of
Malou, constitutes an overt act of rape.

Overt or external act has been defined as some physical activity or deed, indicating the
intention to commit a particular crime, more than a mere planning or preparation, which
if carried out to its complete termination following its natural course, without being
frustrated by external obstacles nor by the voluntary desistance of the perpetrator,
will logically and necessarily ripen into a concrete offense.[19]

Harmonizing the above definition to the facts of this case, it would be too strained to
construe petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou which
would induce her to sleep as an overt act that will logically and necessarily ripen into
rape. As it were, petitioner did not commence at all the performance of any act indicative
of an intent or attempt to rape Malou. It cannot be overemphasized that petitioner was
fully clothed and that there was no attempt on his part to undress Malou, let alone touch
her private part. For what reason petitioner wanted the complainant unconscious, if that
was really his immediate intention, is anybody's guess. The CA maintained that if the
petitioner had no intention to rape, he would not have lain on top of the
complainant. Plodding on, the appellate court even anticipated the next step that the
petitioner would have taken if the victim had been rendered unconscious. Wrote the CA:
The shedding of the clothes, both of the attacker and his victim, will have to come
later. His sexual organ is not yet exposed because his intended victim is still
struggling. Where the intended victim is an educated woman already mature in age, it is
very unlikely that a rapist would be in his naked glory before even starting his attack on
her. He has to make her lose her guard first, or as in this case, her unconsciousness.[20]
At bottom then, the appellate court indulges in plain speculation, a practice disfavored
under the rule on evidence in criminal cases. For, mere speculations and probabilities
cannot substitute for proof required to establish the guilt of an accused beyond reasonable
doubt.[21]

In Perez vs. Court of Appeals,[22] the Court acquitted therein petitioner of the crime of
attempted rape, pointing out that:
xxx. In the crime of rape, penetration is an essential act of execution to produce the
felony. Thus, for there to be an attempted rape, the accused must have commenced the
act of penetrating his sexual organ to the vagina of the victim but for some cause or
accident other than his own spontaneous desistance, the penetration, however, slight, is
not completed.

xxx xxx xxx

Petitioner's act of lying on top of the complainant, embracing and kissing her, mashing
her breasts, inserting his hand inside her panty and touching her sexual organ, while
admittedly obscene and detestable acts, do not constitute attempted rape absent any
showing that petitioner actually commenced to force his penis into the complainant's
sexual organ. xxx.
Likewise in People vs. Pancho,[23] the Court held:
xxx, appellant was merely holding complainant's feet when his Tito Onio arrived at the
alleged locus criminis. Thus, it would be stretching to the extreme our credulity if we
were to conclude that mere holding of the feet is attempted rape.
Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the
premises, of any wrongdoing whatsoever. The information filed against petitioner
contained an allegation that he forcefully covered the face of Malou with a piece of cloth
soaked in chemical. And during the trial, Malou testified about the pressing against her
face of the chemical-soaked cloth and having struggled after petitioner held her tightly
and pinned her down. Verily, while the series of acts committed by the petitioner do not
determine attempted rape, as earlier discussed, they constitute unjust vexation punishable
as light coercion under the second paragraph of Article 287 of the Revised Penal Code. In
the context of the constitutional provision assuring an accused of a crime the right to be
informed of the nature and cause of the accusation,[24] it cannot be said that petitioner was
kept in the dark of the inculpatory acts for which he was proceeded against. To be sure,
the information against petitioner contains sufficient details to enable him to make his
defense. As aptly observed by then Justice Ramon C. Aquino, there is no need to allege
malice, restraint or compulsion in an information for unjust vexation. As it were, unjust
vexation exists even without the element of restraint or compulsion for the reason that
this term is broad enough to include any human conduct which, although not productive
of some physical or material harm, would unjustly annoy or irritate an innocent
person.[25] The paramount question is whether the offender's act causes annoyance,
irritation, torment, distress or disturbance to the mind of the person to whom it is
directed.[26] That Malou, after the incident in question, cried while relating to her
classmates what she perceived to be a sexual attack and the fact that she filed a case for
attempted rape proved beyond cavil that she was disturbed, if not distressed by the acts
of petitioner.

The penalty for coercion falling under the second paragraph of Article 287 of the Revised
Penal Code is arresto menor or a fine ranging from P5.00 to P200.00 or both.

WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the
Regional Trial Court of Manila, is hereby REVERSED and SET ASIDE and a new one
entered ACQUITTING petitioner Renato D. Baleros, Jr. of the charge for attempted
rape. Petitioner, however, is adjudged GUILTY of light coercion and is accordingly
sentenced to 30 days of arresto menor and to pay a fine of P200.00, with the accessory
penalties thereof and to pay the costs.

SO ORDERED.