[G. R. Nos. 137542-43. January 20, 2004]
1 grams, knowing the same to be a
PEOPLE OF THE PHILIPPINES, appellee, vs. REYNAN SANTIAGO y
CASTILLO, appellant.
DECISION
SANDOVAL-GUTIERREZ, J.:
This is an appeal from the Joint Decision1 of the Regional Trial Court,
Branch 127, Caloocan City, in Criminal Cases Nos. C-53125 and C-53126,
entitled People of the Philippines vs. Reynan Santiago y Castillo for violation
of Section 8, Article II and Section 15, Article III of Republic Act No. 6425, as
amended, otherwise known as The Dangerous Drugs Acts of 1991.
The Informations filed against appellant Reynan Santiago are quoted as
follows:
1. Criminal Case No. C-53125
That on or about the 21st day of November, 1997 in Caloocan City, Metro
Manila, and within the jurisdiction of this Honorable Court, the above-named
accused, without authority of law, did then and there willfully, unlawfully and
feloniously sell and deliver to PO1 JOSEPH DELOS SANTOS, who posed as
buyer of methylamphetamine hydrochloride weighing 0.07 gram, a regulated
drug, without the corresponding license or prescription therefore knowing the
same to be such.
CONTRARY TO LAW.2
2. Criminal Case No. C-53126
That on or about the 21st day of November, 1997 in Caloocan City, Metro
Manila, and within the jurisdiction of this Honorable Court, the above-named
accused, without being authorized by law, did then and there willfully,
feloniously have in his possession, custody and control one (1) transparent
plastic bag with markings EX-C ETA containing four (4) bricks of dried
marijuana fruiting tops weighing 911.
prohibited drug under the provisions of the above-cited law.
CONTRARY TO LAW.3
Upon arraignment, appellant assisted by counsel, pleaded not guilty.4 Trial
on the merits ensued.
The evidence for the prosecution established the following facts:
At about 10:00 oclock in the evening of November 21, 1997, an informant
arrived at the Northern Metro Narcotics District Office in Bagong Barrio East,
Caloocan City. He reported to Major Jose Valencia, Officer-in-Charge, and
P/Insp. Daniel Oamin the rampant trafficking of shabu by appellant at
Sawata, Maypajo, Caloocan City.
Based on such information, the police formed a team led by P/Insp. Oamin,
with PO1 Joseph delos Santos, PO2 Rommel Someros, PO1 Efferson Arceo
and PO1 Emerson Adavilles, as members. PO1 delos Santos was assigned
as the poseur buyer, PO2 Someros and PO1 Arceo as the back-up team,
and PO1 Adavilles and P/Insp. Oamin as perimeter security. P/Insp. Oamin
handed PO1 delos Santos a P500.00 bill bearing serial number DH 464448
as poseur money.
It was understood that when the transaction was completed, PO1 delos
Santos would place his left hand on his nape. Then, the back-up team would
apprehend appellant.
Then the team and the informant, riding in a red Toyota car and a
motorcycle, proceeded to Sawata, Maypajo, Caloocan City.
Upon seeing the appellant in the area waiting for customers, the informant
briefed PO1 delos Santos then left. PO1 delos Santos approached appellant
and asked, Pare, may dala ka? He showed appellant the P500.00 poseur
money. After scrutinizing PO1 delos Santos, appellant took the money and
handed him a small sachet containing white granules or shabu, saying, Pare,
lisa na lang. He then asked PO1 delos Santos if he wanted marijuana and
pointed to a plastic bag hanging on the left handle of his hopper. Upon
hearing this, PO1 delos Santos made the pre-arranged signal. Immediately,
the back-up team apprehended appellant, at the same time informing him of
his constitutional rights. They recovered from him the poseur money and four
bricks of marijuana fruiting tops.
The team brought him to the Northern Metro Narcotics District Office at
Bagong Barrio East, Caloocan City for investigation. Then the confiscated
drugs were submitted for laboratory examination. They were positive for
shabu and marijuana.
The defense presented as its witnesses appellant, Roberto de Leon, Marissa
Jorda and Jaime Magtalas. Appellant and de Leon testified that at around
10:00 o'clock in the evening of November 21, 1997, they were traveling along
Sawata St., Maypajo, Caloocan City going to the house of appellant's
girlfriend on board a hopper or scooter, when two motorcycle riders chased
and overtook them. They identified themselves as policemen, then
handcuffed and frisked them. They found chocolates in their possession. The
policemen brought them to the Caloocan City General Hospital and
introduced them as drug addicts.
Both Marissa Jorda and Jaime Magtalas testified that on the night of
November 21, 1997, they saw appellant and his companion being frisked by
two policemen.
After hearing, the trial court issued a Joint Decision finding appellant guilty of
the crimes charged, the dispositive portion of which reads:
WHEREFORE, premises considered and the prosecution having established
beyond an iota of doubt the guilt of the Accused of the offenses charged, this
Court hereby renders judgment re above captioned cases as follows:
1. In Grim. Case No. 53125 for Violation of Sec. 15, Art. Ill of RA 6425, as
amended by RA 7659, this Court, in the absence of any modifying
circumstance, hereby sentences Accused REYNAN SANTIAGO y
CASTILLO to an indeterminate prison term of six (6) months of Arresto
Mayor as minimum, to four (4) years and two (2) months of Prision
Correccional, as maximum;
2. In Crim. Case No. 53126 for Violation of Sec. 8, Art. II of the above-
mentioned Act, this court, in the absence of any aggravating or mitigating
circumstance, hereby sentences said Accused to suffer the penalty of
Reclusion Perpetua; to pay a fine of P10,000,000.00; and to pay the costs in
both cases.
Subject drugs are hereby declared confiscated and forfeited in favor of the
government to be dealt with in accordance with law. No similar
pronouncement was made re the seized Hopper motorcycle it appearing that
the said property is owned by a third person, i.e., one Mrs. RODELIA
MALICLIC, not liable for the offenses charged.
Incidentally the Urgent Motion to Order the Release of the Illegally Seized
Hopper filed by the Accused, to which the special prosecutor handling this
case was to submit his comment/recommendation thereon will be treated in a
separate order/resolution of this Court.
The preventive imprisonment suffered by the Accused shall be credited in full
in the service of his sentence in accordance with Art. 29 of the Revised Penal
Code.
SO ORDERED.5
In this appeal, appellant ascribes to the trial court the following assignments
of error:
I. THE TRIAL COURT ERRED IN REQUIRING APPELLANT TO PROVE
HIS INNOCENCE WITH STRONG AND CONVINCING EVIDENCE
INSTEAD OF APPLYING THE RULE THAT CRIMINAL CASES RISE AND
FALL ON THE STRENGTH OF THE EVIDENCE PRESENTED BY THE
PROSECUTION AND NOT ON THE WEAKNESS OF THE DEFENSE.
II. THE TRIAL COURT ERRED IN ACTIVELY INTERFERING IN THE
PROCEEDINGS OF THE CASE BY CONDUCTING ITS OWN DIRECT
EXAMINATION AND CROSS-EXAMINATION OF WITNESSES INSTEAD
OF LEAVING THIS MATTER TO THE PROSECUTION.
III. THE TRIAL COURT ERRED IN FINDING THAT THE PROSECUTION
EVIDENCE HAS PROVEN THE GUILT OF APPELLANT BEYOND
REASONABLE DOUBLT."6
On the first assigned error, records show that after the prosecution had
adduced its evidence, appellant filed a motion to dismiss by way of a
demurrer to evidence.7 The trial court denied the demurrer, holding that the
prosecution has sufficiently established a prima facie case to warrant the
conviction of appellant.8 In its Decision, the trial court mentioned the issue of
whether the defense by its evidence was able to overcome the prima facie
case established by the prosecution which tends to establish the guilt of
appellant. Appellant bewails the fact that the trial court shifted the burden of
proof from the prosecution to the defense. Our ruling in Bautista vs.
Sarmiento,9 is squarely in point, thus:
There is no denying that in a criminal case, unless the guilt of the accused is
established beyond reasonable doubt, he is entitled to acquittal. But when
the trial court denies petitioners' motion to dismiss by way of demurrer to
evidence on the ground that the prosecution had established a prima facie
case against them, they assume a definite burden. It becomes incumbent
upon petitioners to adduce evidence to meet and nullify, if not overthrow, the
prima facie case against them. This is due to the shift in the burden of
evidence, and not of the burden of proof as petitioners would seem to
believe.
When a prima facie case is established by the prosecution in a criminal case,
as in the case at bar, the burden of proof does not shift to the defense. It
remains throughout the trial with the party upon whom it is imposed-the
prosecution. It is the burden of evidence which shifts from party to party
depending upon the exigencies of the case in the course of the trial. This
burden of going forward with the evidence is met by evidence which
balances that introduced by the prosecution. Then the burden shifts back.
A prima facie case need not be countered by a preponderance of evidence
nor by evidence of greater weight. Defendant's evidence which equalizes the
weight of plaintiff's evidence or puts the case in equipoise is sufficient. As a
result, plaintiff will have to go forward with the proof. Should it happen that at
the trial the weight of evidence is equally balanced or at equilibrium and
presumptions operate against plaintiff who has burden of proof, he cannot
prevail.
Relative to the second assigned error, appellant laments the trial judge's
active participation in the proceedings by conducting cross-examination, in
violation of his constitutional right to due process as enunciated in Tabuena
vs. Sandiganbayan.10
We carefully perused the stenographic notes of this case and found the
questions propounded by the trial judge to be merely clarificatory, intended to
satisfy his mind upon material points arising during the witnesses'
examination. The judge, being the arbiter, may properly intervene in the
presentation of evidence to expedite the trial and prevent unnecessary waste
of time.11 In Barbers vs. Laguio, Jr.12 citing United States vs. Hudieres,13
we held:
The right of a trial judge to question the witnesses with a view to satisfying
his mind upon any material point which presents itself during the trial of a
case over which he presides is too well established to need discussion. The
trial judges in this jurisdiction are judges of both the law and the facts, and
they would be negligent in the performance of their duties if they permitted a
miscarriage of justice as a result of a failure to propound a proper question to
a witness which might develop some material facts upon which the judgment
in the case should turn. So in a case where a trial judge sees that the degree
of credit which he is to give the testimony of a given witness may have an
important bearing upon the outcome, there can be no question that in the
exercise of a sound discretion he may put such questions to the witness as
will enable him to formulate a sound opinion as to the ability or the
willingness of the witness to tell the truth, x x x
As to the third assigned error, appellant insists that the trial court overlooked
inconsistencies in the testimonies of the prosecution witnesses. He pointed
out that they have different versions on: (1) the initial stages of the formation
of the buy-bust team; (2) how the buy-bust team reached the target area; and
(3) the initial encounter with appellant. Moreover, he assails the version of
the prosecution that there were no preliminary discussions between the
poseur-buyer and the appellant prior to the transaction, contrary to ordinary
human experience.

Appellant's contentions must fail. The inconsistencies adverted to by the
appellant are trivial and insignificant and refer only to minor details. Time and
again, we have steadfastly ruled that inconsistencies on minor and trivial
matters only serve to strengthen rather than weaken the credibility of
witnesses for they erase the suspicion of rehearsed testimony.14
Furthermore, we cannot expect the testimonies of different witnesses to be
completely identical and to coincide with each other since they have different
impressions and recollections of the incident.
Hence, it is only natural that their testimonies are at variance on some minor
details.
Appellant likewise calls our attention to the discrepancy between the
testimony and the affidavit of PO1 delos Santos. He testified on cross-
examination that when the team arrived at the target area, appellant was
already there. However, in his affidavit, he stated that he and the informant
waited for several minutes at the place before they saw appellant and his
companion. We are not swayed. Discrepancies and/or inconsistencies
between a witness' affidavit and testimony do not necessarily impair his
credibility as affidavits are taken ex parte and are often incomplete or
inaccurate for lack of or absence of searching inquiries by the investigating
officer.15 Besides, it appears that the affidavit was executed by PO1 delos
Santos jointly with the other members of the buy-bust team.
At this point it is apt to stress that the findings of the trial court, having had
the opportunity to personally observe the demeanor of the witnesses, are
entitled to great weight and respect, absent any showing that the trial court
overlooked facts or circumstances which would substantially affect the result
of the case.16 In the present case, the trial court found the evidence for the
prosecution worthy of credence and we see no cogent reason to deviate from
such finding. The witnesses for the prosecution are law enforcement officers
who, unless shown that they were inspired by an improper motive or were
not properly performing their duty, have in their favor the legal presumption
that official duty has been regularly performed.17
Thus, pitted against the categorical and positive testimonies of the
prosecution witnesses, appellant's defense of denial and frame-up miserably
fails. We have consistently held that courts invariably view with disfavor
denials and allegations of frame-up for these are easily concocted. They are
the usual and standard defenses in prosecutions involving violation of the
dangerous drugs law.18
We therefore uphold the trial court's judgment finding appellant guilty beyond
reasonable doubt of the crimes charged.
Pursuant to R.A. 6425, as amended, and in line with People vs. Simon,19 the
penalty for the sale of 0.07 gram of shabu is prision correctional. Applying the
Indeterminate Sentence Law and there being no qualifying circumstance that
attended the commission of the crime, the trial court properly imposed the
penalty of six (6) months of arresto mayor, as minimum, to four (4) years and
two (2) months of prision correctional, as maximum, in Criminal Case No. C-
53125. Under the same law (R.A. 6425, as amended), possession of 911.1
grams of marijuana is punishable by reclusion perpetua to death. There
being no mitigating or aggravating circumstance, and applying Sec. 63(2) of
the Revised Penal Code,20 the trial court's imposition of reclusion perpetua
in Criminal Case No. C-53126 is in order.
As to the fine imposed, it is settled that courts may fix any amount within the
limits established by law.21 Under Section 8, Article II of the same law (R.A.
6425, as amended), in relation to Section 20, Article IV of R.A. 7659, as
amended,22 if the marijuana involved is 750 grams or more, the imposable
fine is P500,000.00 to P10,000,000.00. Thus, in Criminal Case No. C-53126
where 911.11 grams of marijuana were confiscated from appellant, the fine
often million pesos fixed by the trial court may be equitably reduced to five
hundred thousand pesos.
WHEREFORE, the petition is DENIED. The assailed Joint Decision of the
Regional Trial Court, Branch 127, Caloocan City in Criminal Cases Nos. C-
53125 and C-53126, finding appellant Reynan Santiago guilty beyond
reasonable doubt of violation of Sec. 8, Art. II and Sec. 15, Art. Ill of R.A.
6425, as amended, is AFFIRMED with the MODIFICATION in the sense that
in Criminal Case No. C-53126, he is fined P500.000.00.
SO ORDERED
Vitug, (Chairman), Corona and Carpio-Morales, JJ., concur.
G.R. No. L-11676 October 17, 1916
THE UNITED STATES, plaintiff-appellee,
vs.
ANDRES PABLO, defendant-appellant.
Alfonso E. Mendoza for appellant.
Attorney-General Avanceña for appellee.
TORRES, J.:
At about noon of the 21st of October, 1915, Andres Pablo, a policeman of the
municipality of Balanga, went by order of his chief to the barrio of Tuyo to
raid a jueteng game which, according to the information lodged, was being
conducted in that place; but before the said officer arrived there the players,
perhaps advised of his approach by a spy, left and ran away; however, on his
arrival at a vacant lot the defendant there found Francisco Dato and, at a
short distance away, a low table. After a search of the premises he also
found thereon a tambiolo (receptacle) and 37 bolas (balls). Notwithstanding
that the officer had seen the men Maximo Malicsi and Antonio Rodrigo leave
the said lot, yet, as at first he had seen no material proof that the game was
being played, he refrained from arresting them, and on leaving the place only
arrested Francisco Daro, who had remained there.
In reporting to his chief what had occurred, the policeman presented a
memorandum containing the following statement: "In the barrio of Tuyo I
raided a jueteng na bilat game, seized a tambiolo and bolas, and saw the
cabecillas Maximo MAlicsi and Antonio Rodrigo and the gambler Francisco
Dato. I saw the two cabecillas escape."
In consequence, chief of police Jose D. Reyes, on October 22, 1915, filed a
complaint in the court of justice of the peace charging the said Rodrigo,
Malicsi, and Dato with having gambled at jueteng, in violation of municipal
ordinance No. 5. As a result of this complaint the accused were arrested, but
were afterwards admitted to bail.
At the hearing of the case Francisco Dato pleaded guilty. The other two
accused, Maximo Malicsi and Antonio Rodrigo, pleaded not guilty; therefore,
during the trial the chief of police presented the memorandum exhibited by
the policeman Andres Pablo, who testified under oath that on the date
mentioned he and Tomas de Leon went to the said barrio to raid a jueteng
game, but that before they arrived there they saw from afar that some
persons started to run toward the hills; that when witness and his companion
arrived at a vacant lot they saw Francisco Dato and a low table there, and
the table caused them to suspect that a jueteng game was being carried on;
that in fact they did find on one side of the lot a tambiolo and 37 bolas, but
that they did not see the accused Rodrigo and Malicsi on the said lot, nor did
they see them run; and that only afterwards did the witness learn that these
latter were the cabecillas or ringleaders in the jueteng game, from
information given him by an unknown person. In view of this testimony by the
police officer who made the arrest and of the other evidence adduced at the
trial the court acquitted the defendants Antonio Rodrigo and Maximo Malicsi
and sentenced only Francisco Dato, as a gambler.
Before the case came to trial in the justice of the peace court the policeman
Andres Pablo had an interview and conference with the accused Malicsi and
ROdrigo in the house of Valentin Sioson. On this occasion he was instructed
not to testify against Malicsi and Rodrigo, and in fact received through
Gregorio Ganzon the sum of P5.
By reason of the foregoing and after making a preliminary investigation the
provincial fiscal, on December 1, 1915, filed an information in the Court of
First Instance of Bataan charging Andres Pablo with the crime of perjury,
under the provisions of section 3 of Act No. 1697. The following is an extract
from the complaint:
That on or about November 6, 1915, in the municipality of Balanga, Bataan,
P.I., and within the jurisdiction of this court, the said accused, Andres Pablo,
during the hearing in the justice of the peace court of Balanga of the criminal
cause No. 787, entitled the United States vs. Antonio Rodrigo and Maximo
Malicsi, for violation of Municipal Ordinance No. 5 of the municipality of
Balanga, did, willfully, unlawfully and feloniously affirm and swear in legal
form before the justice of the peace court as follow: `We did not there
overtake the accused Antonio Rodrigo and Maximo Malicsi, nor did we even
see them run,' the said statement being utterly false, as the accused well
knew that it was, and material to the decision of the said criminal cause No.
787, United States vs. Antonio Rodrigo and Maximo Malicsi. An act
committed with violation of law.
The case came to trial and on December 28, 1915, the court rendered
judgment therein sentencing the defendant to the penalty of two years'
imprisonment, to pay a fine of P100 and, in case of insolvency, to the
corresponding subsidiary imprisonment, and to pay the costs. The defendant
was also disqualified from thereafter holding any public office and from
testifying in the courts of the Philippine Islands until the said disqualification
should be removed. From this judgment he appealed.
Francisco Dato, on testifying as a witness, said that when the policemen
Andres Pablo and Tomas de Leon arrived at the place where the jueteng
was being played, they found the defendant gamblers, Malicsi and Rodrigo;
that, prior to the hearing of the case in the justice of the peace court, Malicsi
and Rodrigo ordered him to call Andres Pablo, who, together with witness,
went to the house of Valentin Sioson, where they held a conference; that
witness pleaded guilty in the justice of the peace court, in fulfillment of his
part of an agreement made between himself and his two coaccused, Malicsi
and Rodrigo, who promised him that they would support his family during the
time he might be a prisoner in jail; that Andres Pablo did not know that they
were gamblers, because he did not find them in the place where the game
was in progress, but that when witness was being taken to the municipal
building by the policemen he told them who the gamblers were who had run
away and whom Andres Pablo could have seen.
Maximo Malicsi corroborated the foregoing testimony and further stated that,
on the arrival of the policemen who made the arrest and while they were
looking for the tambiolo, he succeeded in escaping; that Andres Pablo had
known him for a long time and could have arrested him had he wished to do
so; that prior to the hearing he and his codefendants, ROdrigo and Dato, did
in fact meet in the house of Valentin Sioson, on which occasion they agreed
that they would give the policemen Andres Pablo P20, provided witness and
Rodrigo were excluded from the charge; and that only P15 was delivered to
the said Pablo, through Gregorio Ganzon. This statement was corroborated
by the latter, though he said nothing about what amount of money he
delivered to the policeman Pablo.
The defendant Andres Pablo testified under oath that, on his being asked by
the justice of the peace how he could have seen Maximo Malicsi and Antonio
Rodrigo, he replied that he did not see them at the place where the game
was being conducted nor did he see them run away from there, for he only
found the table, the tambiolo, the bolas, and Francisco Dato; that he did not
surprise the game because the players ran away before he arrived on the lot
where, after fifteen minutes' search, he found only the tambiolo and the
bolas; that on arriving at the place where the game was played, they found
only Francisco Dato and some women in the Street, and as Dato had already
gone away, witness' companion, the policeman Tomas de Leon, got on his
bicycle and went after him; and that he found the tambiolo at a distance of
about 6 meters from a low table standing on the lot.
From the facts above related, it is concluded that the defendant Andres
Pablo, who pleaded not guilty, falsely testified under oath in the justice of the
peace court of Balanga, Bataan, in saying he had not seen the alleged
gamblers Maximo Malicsi and Antonio Rodrigo in the place where, according
to the complaint filed, the game of jueteng was being played and where the
defendant and his companion, the policeman Tomas de Leon, had found a
table, tambiolo and bolas, used in the game of jueteng, while it was proved at
the trial that he did not them and did overtake them while they were still in the
place where the game was being played. But notwithstanding his having
seen them there, upon testifying in the cause prosecuted against these men
and another for gambling, he stated that he had not seen them there,
knowing that he was not telling the truth and was false to the oath he had
taken, and he did so willfully and deliberately on account of his agreement
with the men, Malicsi and Rodrigo, and in consideration of a bribe of P15
which he had received in payment for his false testimony he afterwards gave.
Francisco Dato and Gregorio Ganzon corroborated the assertion that the
policeman Andres Pablo undertook to exclude the gamblers, Malicsi and
Rodrigo, from the charge and from his testimony in consideration for P15
which he received through Gregorio Ganzon.
Andres Pablo was charged with the crime of perjury and was afterwards
convicted under Act No. 1697, which (according to the principle laid down by
this court in various decisions that are already well-settled rules of law)
repealed the provisions contained in articles 318 to 324 of the Penal Code
relative to false testimony.
By the second paragraph of the final section of the last article of the
Administrative Code, or Act No. 2657, there was repealed, among the other
statutes therein mentioned, the said Act No. 1697 relating to perjury, and the
repealing clause of the said Administrative Code does not say under what
other penal law in force the crime of false testimony, at least, if not that of
perjury, shall be punished.
Under these circumstances, may the crime of perjury or of false testimony go
unpunished, and is there no penal sanction whatever in this country for this
crime? May the truth be freely perverted in testimony given under oath and
which, for the very reason that it may save a guilty person from punishment,
may also result in the conviction and punishment of an innocent person? If all
this is not possible and is not right before the law and good morals in a
society of even mediocre culture, it must be acknowledged that it is
imperatively necessary to punish the crime of perjury or of false testimony —
a crime which can produce incalculable and far-reaching harm to society and
cause infinite disturbance of social order.
The right of prosecution and punishment for a crime is one of the attributes
that by a natural law belongs to the sovereign power instinctively charged by
the common will of the members of society to look after, guard and defend
the interests of the community, the individual and social rights and the
liberties of every citizen and the guaranty of the exercise of his rights.
The power to punish evildoers has never been attacked or challenged, as the
necessity for its existence has been recognized even by the most backward
peoples. At times the criticism has been made that certain penalties are
cruel, barbarous, and atrocious; at other, that they are light and inadequate
to the nature and gravity of the offense, but the imposition of punishment is
admitted to be just by the whole human race, and even barbarians and
savages themselves, who are ignorant of all civilization, are no
exception.lawphil.net
Notwithstanding that the said Act No. 1697 (which, as interpreted by this
court in its decisions, was deemed to have repealed the aforementioned
article of the Penal Code relating to false testimony, comprised within the
term of perjury) did not expressly repeal the said articles of the Penal Code;
and as the said final article of the Administrative Code, in totally repealing Act
No. 1697, does not explicitly provide that the mentioned articles of the Penal
Code are also repealed, the will of the legislation not being expressly and
clearly stated with respect to the complete or partial repeal of the said articles
of the Penal Code, in the manner that it has totally repealed the said Act No.
1697 relating its perjury; and, furthermore, as it is imperative that society
punish those of its members who are guilty of perjury or false testimony, and
it cannot be conceived that these crimes should go unpunished or be freely
committed without punishment of any kind, it must be conceded that there
must be in this country some prior, preexistent law that punishes perjury or
false testimony.
There certainly are laws which deal with perjury or false testimony, like Law 7
et seq. of Title 2, third Partida.
However, since the Penal Code went into force, the crime of false testimony
has been punished under the said articles of the said Code, which as we
have already said, have not been specifically repealed by the said Act No.
1697, but since its enactment, have not been applied, by the mere
interpretation given to them by this court in its decisions; yet, from the
moment that Act was repealed by the Administrative Code, the needs of
society have made it necessary that the said articles 318 to 324 should be
deemed to be in force, inasmuch as the Administrative Code, in repealing the
said Act relating to perjury, has not explicitly provided that the said articles of
the Penal Code have likewise been repealed.
This manner of understanding and construing the statutes applicable to the
crime of false testimony or perjury is in harmony with the provision of Law 11,
Title 2, Book 3, of the Novisima Recopilacion which says::
All the laws of the kingdom, not expressly repealed by other subsequent
laws, must be literally obeyed and the excuse that they are not in use cannot
avail; for the Catholic kings and their successors so ordered in numerous
laws, and so also have I ordered on different occasions, and even though
they were repealed, it is seen that they have been revived by the decree
which I issued in conformity with them although they were not expressly
designated. The council will be informed thereof and will take account of the
importance of the matter.
It is, then, assumed that the said articles of the Penal Code are in force and
are properly applicable to crimes of false testimony. Therefore, in
consideration of the fact that in the case at bar the evidence shows it to have
been duly proven that the defendant, Andres Pablo, in testifying in the cause
prosecuted for gambling at jueteng, perverted the truth, for the purpose of
favoring the alleged gamblers, Maximo Malicsi and Antonio Rodrigo, with the
aggravating circumstance of the crime being committed through bribery, for it
was also proved that the defendant Pablo received P15 in order that he
should make no mention of the said two gamblers in his sworn testimony,
whereby he knowingly perverted the truth, we hold that, in the commission of
the crime of false testimony, there concurred the aggravating circumstance of
price or reward, No. 3 of article 10 of the Code, with no mitigating
circumstance to offset the effects of the said aggravating one; wherefore the
defendant has incurred the maximum period of the penalty of arresto mayor
in its maximum degree to prision correccional in its medium degree, and a
fine.
For the foregoing reasons, we hereby reverse the judgment appealed from
and sentence Andres Pablo to the penalty of two years four months and one
day of prision correccional, to pay a fine of 1,000 pesetas, and, in case of
insolvency, to suffer the corresponding subsidiary imprisonment, which shall
not exceed one-third of the principal penalty. He shall also pay the costs of
both instances. So ordered.
Johnson, Carson, Trent and Araullo, JJ., concur.
Moreland, J., concurs in the result .
G.R. No. L-46228 January 17, 1978
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. ROLANDO R. VILLARAZA (as City Judge of Cagayan de Oro City),
and CAESAR PUERTO, respondents.
Francisco P. Rabanes, Edgardo Y. Raagas, Casiano A. Gamotin, Jr., Office
of the City Fiscal of Cagayan de Oro City for petitioner.
Eric Menchavez for respondent Caesar Puerto.
AQUINO, J.:
This case is about the jurisdiction of a city court in estafa cases.
On December 3, 1975 an assistant city fiscal charged Caesar Puerto with
estafa in the city court of Cagayan de Oro City for having issued on October
16, 1974 two bouncing checks for the total sum of P4, 966. 63 (Criminal
Case No. 32140).
City Judge Rolando R. Villaraza in his order March 31, 1976 noted that the
accused had waived the second stage of the preliminary investigation. He
directed that the case be elevated, for trial, to the court of First Instance or
the Circuit Criminal Court.
Upon petition of the prosecution, the Court of first Instance of Misamis
Oriental, Cagayan de Oro Branch VIII, in its order of February 3, 1977
returned the case to the city court because in its opinion the case falls within
the concurrent jurisdiction of the two courts and, the city court, as the first
court which took cognizance of the case, should try it.
Disagreeing with the Court of First Instance, respondent city judge in his
order of April 21, 1977 directed the re-elevation of the case. His view is that
the case falls within the exclusive original jurisdiction of the Court of First
Instance because estafa committed by the accused is punishable by prision
mayor medium under Presidential Decree No. 818 which took effect on
October 22, 1975 and which amended article 315 of the Revised Penal
Code.
That order of respondent judge is assailed in the petition for certiorari filed in
this Court on May 27, 1977 by the office of the city fiscal of Cagayan de Oro
City.
We hold that the case was properly filed with the city court which has original
jurisdiction over it. The estafa imputed to Caesar Puerto is punishable under
article 315 of the Revised Penal Code by arresto mayor maximum to prision
correccional minimum or four months and one day to two years and four
months.
The penalty of prision mayor medium, or eight years and one day to ten
years, imposed by Presidential Decree No. 818, applies only to swindling by
means of issuing bouncing checks which was committed or after October 22,
1975.
That increased penalty does not apply to the estafa committed by Puerto on
October 16, 1974. To apply it to Puerto would make the decree an ex post
facto law. Its retroactive application is prohibited by articles 21 and 22 of the
Revised Penal Code and section 12, Article IV of the Constitution.
The city court has original jurisdiction over the case because the penultimate
paragraph or section 87 of the Judiciary Law, as amended by Republic Acts
Nos. 2613 and 3828, provides that "judges of city courts shall have like
jurisdiction as the Court of First Instance to try parties charged with an
offense committed within their respective jurisdictions, in which the penalty
provided by law does not exceed prision correccional or imprisonment for not
more than six years or fine not exceeding six thousand pesos or both."
As section 87 itself shows, that jurisdiction is concurrent with the court of
First Instance which is empowered to try "all criminal cases in which the
penalty provided by law is imprisonment for more than six months, or a fine
of more than two hundred pesos" (Sec. 44[f], Judiciary Law. See People vs.
Nazareno, L-40037, April 30, 1976, 70 SCRA 531).
It was not necessary for the city court to have conducted the preliminary
investigation of the case. The filing of the information by the fiscal
presupposes that he had conducted the requisite preliminary investigation
pursuant to Rule 112 of the Rules of Court and Republic Act No. 5180, as
amended by Presidential Decree No. 77.
WHEREFORE, the order of the Court of First Instance, returning the case to
the city court, is affirmed and the two orders of the respondent city judge,
elevating the case to the Court of First Instance, are set aside. The city court
is directed to try the case. No costs.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio and Concepcion Jr., JJ., concur.
Santos, J., is on leave.
G.R. No. L-64279 April 30, 1984
ANSELMO L. PESIGAN and MARCELINO L. PESIGAN, petitioners,
vs.
JUDGE DOMINGO MEDINA ANGELES, Regional Trial Court, Caloocan City
Branch 129, acting for REGIONAL TRIAL COURT of Camarines Norte, now
presided over by JUDGE NICANOR ORIÑO, Daet Branch 40; DRA. BELLA
S. MIRANDA, ARNULFO V. ZENAROSA, ET AL., respondents.
Quiazon, De Guzman Makalintal and Barot for petitioners.
The Solicitor General for respondents.
AQUINO, J.:ñé+.£ªwph!1
At issue in this case is the enforceability, before publication in the Official
Gazette of June 14, 1982, of Presidential Executive Order No. 626-A dated
October 25, 1980, providing for the confiscation and forfeiture by the
government of carabaos transported from one province to another.
Anselmo L. Pesigan and Marcelo L. Pesigan, carabao dealers, transported in
an Isuzu ten-wheeler truck in the evening of April 2, 1982 twenty-six
carabaos and a calf from Sipocot, Camarines Sur with Padre Garcia,
Batangas, as the destination.
They were provided with (1) a health certificate from the provincial
veterinarian of Camarines Sur, issued under the Revised Administrative
Code and Presidential Decree No. 533, the Anti-Cattle Rustling Law of 1974;
(2) a permit to transport large cattle issued under the authority of the
provincial commander; and (3) three certificates of inspection, one from the
Constabulary command attesting that the carabaos were not included in the
list of lost, stolen and questionable animals; one from the LIvestock
inspector, Bureau of Animal Industry of Libmanan, Camarines Sur and one
from the mayor of Sipocot.
In spite of the permit to transport and the said four certificates, the carabaos,
while passing at Basud, Camarines Norte, were confiscated by Lieutenant
Arnulfo V. Zenarosa, the town's police station commander, and by Doctor
Bella S. Miranda, provincial veterinarian. The confiscation was basis on the
aforementioned Executive Order No. 626-A which provides "that henceforth,
no carabao, regardless of age, sex, physical condition or purpose and no
carabeef shall be transported from one province to another. The carabaos or
carabeef transported in violation of this Executive Order as amended shall be
subject to confiscation and forfeiture by the government to be distributed ... to
deserving farmers through dispersal as the Director of Animal Industry may
see fit, in the case of carabaos" (78 OG 3144).
Doctor Miranda distributed the carabaos among twenty-five farmers of
Basud, and to a farmer from the Vinzons municipal nursery (Annex 1).
The Pesigans filed against Zenarosa and Doctor Miranda an action for
replevin for the recovery of the carabaos allegedly valued at P70,000 and
damages of P92,000. The replevin order could not be executed by the
sheriff. In his order of April 25, 1983 Judge Domingo Medina Angeles, who
heard the case at Daet and who was later transferred to Caloocan City,
dismissed the case for lack of cause of action.
The Pesigans appealed to this Court under Rule 45 of the Rules of Court and
section 25 of the Interim Rules and pursuant to Republic Act No. 5440, a
1968 law which superseded Rule 42 of the Rules of Court.
We hold that the said executive order should not be enforced against the
Pesigans on April 2, 1982 because, as already noted, it is a penal regulation
published more than two months later in the Official Gazette dated June 14,
1982. It became effective only fifteen days thereafter as provided in article 2
of the Civil Code and section 11 of the Revised Administrative Code.
The word "laws" in article 2 (article 1 of the old Civil Code) includes circulars
and regulations which prescribe penalties. Publication is necessary to
apprise the public of the contents of the regulations and make the said
penalties binding on the persons affected thereby. (People vs. Que Po Lay,
94 Phil. 640; Lim Hoa Ting vs. Central Bank of the Phils., 104 Phil. 573;
Balbuna vs. Secretary of Education, 110 Phil. 150.)
The Spanish Supreme Court ruled that "bajo la denominacion generica de
leyes, se comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordenes dictadas de conformidad con las
mismas por el Gobierno en uso de su potestad (1 Manresa, Codigo Civil, 7th
Ed., p. 146.)
Thus, in the Que Po Lay case, a person, convicted by the trial court of having
violated Central Bank Circular No. 20 and sentenced to six months'
imprisonment and to pay a fine of P1,000, was acquitted by this Court
because the circular was published in the Official Gazette three months after
his conviction. He was not bound by the circular.
That ruling applies to a violation of Executive Order No. 626-A because its
confiscation and forfeiture provision or sanction makes it a penal statute.
Justice and fairness dictate that the public must be informed of that provision
by means of publication in the Gazette before violators of the executive order
can be bound thereby.
The cases of Police Commission vs. Bello, L-29960, January 30, 1971, 37
SCRA 230 and Philippine Blooming Mills vs. Social Security System, 124
Phil. 499, cited by the respondents, do not involve the enforcement of any
penal regulation.
Commonwealth Act No. 638 requires that all Presidential executive orders
having general applicability should be published in the Official Gazette. It
provides that "every order or document which shag prescribe a penalty shall
be deemed to have general applicability and legal effect."
Indeed, the practice has always been to publish executive orders in the
Gazette. Section 551 of the Revised Administrative Code provides that even
bureau "regulations and orders shall become effective only when approved
by the Department Head and published in the Official Gazette or otherwise
publicly promulgated". (See Commissioner of Civil Service vs. Cruz, 122 Phil.
1015.)
In the instant case, the livestock inspector and the provincial veterinarian of
Camarines Norte and the head of the Public Affairs Office of the Ministry of
Agriculture were unaware of Executive Order No. 626-A. The Pesigans could
not have been expected to be cognizant of such an executive order.
It results that they have a cause of action for the recovery of the carabaos.
The summary confiscation was not in order. The recipients of the carabaos
should return them to the Pesigans. However, they cannot transport the
carabaos to Batangas because they are now bound by the said executive
order. Neither can they recover damages. Doctor Miranda and Zenarosa
acted in good faith in ordering the forfeiture and dispersal of the carabaos.
WHEREFORE, the trial court's order of dismissal and the confiscation and
dispersal of the carabaos are reversed and set aside. Respondents Miranda
and Zenarosa are ordered to restore the carabaos, with the requisite
documents, to the petitioners, who as owners are entitled to possess the
same, with the right to dispose of them in Basud or Sipocot, Camarines Sur.
No costs.
SO ORDERED.1äwphï1.ñët
Makasiar, (Chairman), Concepcion, Jr., Guerrero, and Escolin, JJ., concur.
De Castro, J., took no part.
Separate Opinions
ABAD SANTOS, J., concurring:
The Pesigans are entitled to the return of their carabaos or the value of each
carabao which is not returned for any reason. The Pesigans are also entitled
to a reasonable rental for each carabao from the twenty six farmers who
used them. The farmers should not enrich themselves at the expense of the
Pesigans.
Separate Opinions
ABAD SANTOS, J., concurring:
The Pesigans are entitled to the return of their carabaos or the value of each
carabao which is not returned for any reason. The Pesigans are also entitled
to a reasonable rental for each carabao from the twenty six farmers who
used them. The farmers should not enrich themselves at the expense of the
Pesigans.
G.R. No. L-63915 April 24, 1985
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF
ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM,
INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the
President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive
Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity
as Director, Malacañang Records Office, and FLORENDO S. PABLO, in his
capacity as Director, Bureau of Printing, respondents.
ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a
right recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1
as well as the principle that laws to be valid and enforceable must be
published in the Official Gazette or otherwise effectively promulgated,
petitioners seek a writ of mandamus to compel respondent public officials to
publish, and/or cause the publication in the Official Gazette of various
presidential decrees, letters of instructions, general orders, proclamations,
executive orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184,
197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359,
360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504,
521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793,
800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085,
1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808,
1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136,
141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205,
209, 211-213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-
269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315,
325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397,
405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587,
594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713,
726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281,
1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588,
1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695,
1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752,
1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807,
1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840,
1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-
1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984,
1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-
492, 494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549,
551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647,
649-677, 679-703, 705-707, 712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51,
59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433,
436-439.
The respondents, through the Solicitor General, would have this case
dismissed outright on the ground that petitioners have no legal personality or
standing to bring the instant petition. The view is submitted that in the
absence of any showing that petitioners are personally and directly affected
or prejudiced by the alleged non-publication of the presidential issuances in
question 2 said petitioners are without the requisite legal personality to
institute this mandamus proceeding, they are not being "aggrieved parties"
within the meaning of Section 3, Rule 65 of the Rules of Court, which we
quote:
SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or
person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use a rd enjoyment of a right or office to
which such other is entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person aggrieved thereby
may file a verified petition in the proper court alleging the facts with certainty
and praying that judgment be rendered commanding the defendant,
immediately or at some other specified time, to do the act required to be
done to Protect the rights of the petitioner, and to pay the damages sustained
by the petitioner by reason of the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the
petition concerns a public right and its object is to compel the performance of
a public duty, they need not show any specific interest for their petition to be
given due course.
The issue posed is not one of first impression. As early as the 1910 case of
Severino vs. Governor General, 3 this Court held that while the general rule
is that "a writ of mandamus would be granted to a private individual only in
those cases where he has some private or particular interest to be
subserved, or some particular right to be protected, independent of that
which he holds with the public at large," and "it is for the public officers
exclusively to apply for the writ when public rights are to be subserved
[Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is
one of public right and the object of the mandamus is to procure the
enforcement of a public duty, the people are regarded as the real party in
interest and the relator at whose instigation the proceedings are instituted
need not show that he has any legal or special interest in the result, it being
sufficient to show that he is a citizen and as such interested in the execution
of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private
individual, as a proper party to the mandamus proceedings brought to
compel the Governor General to call a special election for the position of
municipal president in the town of Silay, Negros Occidental. Speaking for this
Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the
proposition that the relator is a proper party to proceedings of this character
when a public right is sought to be enforced. If the general rule in America
were otherwise, we think that it would not be applicable to the case at bar for
the reason 'that it is always dangerous to apply a general rule to a particular
case without keeping in mind the reason for the rule, because, if under the
particular circumstances the reason for the rule does not exist, the rule itself
is not applicable and reliance upon the rule may well lead to error'
No reason exists in the case at bar for applying the general rule insisted
upon by counsel for the respondent. The circumstances which surround this
case are different from those in the United States, inasmuch as if the relator
is not a proper party to these proceedings no other person could be, as we
have seen that it is not the duty of the law officer of the Government to
appear and represent the people in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal
personality in the aforementioned case apply squarely to the present petition.
Clearly, the right sought to be enforced by petitioners herein is a public right
recognized by no less than the fundamental law of the land. If petitioners
were not allowed to institute this proceeding, it would indeed be difficult to
conceive of any other person to initiate the same, considering that the
Solicitor General, the government officer generally empowered to represent
the people, has entered his appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is not a
sine qua non requirement for the effectivity of laws where the laws
themselves provide for their own effectivity dates. It is thus submitted that
since the presidential issuances in question contain special provisions as to
the date they are to take effect, publication in the Official Gazette is not
indispensable for their effectivity. The point stressed is anchored on Article 2
of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's
construction of said article. In a long line of decisions,4 this Court has ruled
that publication in the Official Gazette is necessary in those cases where the
legislation itself does not provide for its effectivity date-for then the date of
publication is material for determining its date of effectivity, which is the
fifteenth day following its publication-but not when the law itself provides for
the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it
equates the effectivity of laws with the fact of publication. Considered in the
light of other statutes applicable to the issue at hand, the conclusion is easily
reached that said Article 2 does not preclude the requirement of publication
in the Official Gazette, even if the law itself provides for the date of its
effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all
important legisiative acts and resolutions of a public nature of the, Congress
of the Philippines; [2] all executive and administrative orders and
proclamations, except such as have no general applicability; [3] decisions or
abstracts of decisions of the Supreme Court and the Court of Appeals as
may be deemed by said courts of sufficient importance to be so published;
[4] such documents or classes of documents as may be required so to be
published by law; and [5] such documents or classes of documents as the
President of the Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to be published.
...
The clear object of the above-quoted provision is to give the general public
adequate notice of the various laws which are to regulate their actions and
conduct as citizens. Without such notice and publication, there would be no
basis for the application of the maxim "ignorantia legis non excusat." It would
be the height of injustice to punish or otherwise burden a citizen for the
transgression of a law of which he had no notice whatsoever, not even a
constructive one.
Perhaps at no time since the establishment of the Philippine Republic has
the publication of laws taken so vital significance that at this time when the
people have bestowed upon the President a power heretofore enjoyed solely
by the legislature. While the people are kept abreast by the mass media of
the debates and deliberations in the Batasan Pambansa—and for the diligent
ones, ready access to the legislative records—no such publicity
accompanies the law-making process of the President. Thus, without
publication, the people have no means of knowing what presidential decrees
have actually been promulgated, much less a definite way of informing
themselves of the specific contents and texts of such decrees. As the
Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se
comprenden tambien los reglamentos, Reales decretos, Instrucciones,
Circulares y Reales ordines dictadas de conformidad con las mismas por el
Gobierno en uso de su potestad.5
The very first clause of Section I of Commonwealth Act 638 reads: "There
shall be published in the Official Gazette ... ." The word "shall" used therein
imposes upon respondent officials an imperative duty. That duty must be
enforced if the Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself makes a
list of what should be published in the Official Gazette. Such listing, to our
mind, leaves respondents with no discretion whatsoever as to what must be
included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general
applicability" is mandated by law. Obviously, presidential decrees that
provide for fines, forfeitures or penalties for their violation or otherwise
impose a burden or. the people, such as tax and revenue measures, fall
within this category. Other presidential issuances which apply only to
particular persons or class of persons such as administrative and executive
orders need not be published on the assumption that they have been
circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a public
nature" or "of general applicability" is a requirement of due process. It is a
rule of law that before a person may be bound by law, he must first be
officially and specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions which all
form part of the law of the land, the requirement of due process and the Rule
of Law demand that the Official Gazette as the official government repository
promulgate and publish the texts of all such decrees, orders and instructions
so that the people may know where to obtain their official and specific
contents.
The Court therefore declares that presidential issuances of general
application, which have not been published, shall have no force and effect.
Some members of the Court, quite apprehensive about the possible
unsettling effect this decision might have on acts done in reliance of the
validity of those presidential decrees which were published only during the
pendency of this petition, have put the question as to whether the Court's
declaration of invalidity apply to P.D.s which had been enforced or
implemented prior to their publication. The answer is all too familiar. In similar
situations in the past this Court had taken the pragmatic and realistic course
set forth in Chicot County Drainage District vs. Baxter Bank 8 to wit:
The courts below have proceeded on the theory that the Act of Congress,
having been found to be unconstitutional, was not a law; that it was
inoperative, conferring no rights and imposing no duties, and hence affording
no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425,
442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear,
however, that such broad statements as to the effect of a determination of
unconstitutionality must be taken with qualifications. The actual existence of
a statute, prior to such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be
erased by a new judicial declaration. The effect of the subsequent ruling as
to invalidity may have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of rights claimed to have
become vested, of status, of prior determinations deemed to have finality and
acted upon accordingly, of public policy in the light of the nature both of the
statute and of its previous application, demand examination. These questions
are among the most difficult of those which have engaged the attention of
courts, state and federal and it is manifest from numerous decisions that an
all-inclusive statement of a principle of absolute retroactive invalidity cannot
be justified.
Consistently with the above principle, this Court in Rutter vs. Esteban 9
sustained the right of a party under the Moratorium Law, albeit said right had
accrued in his favor before said law was declared unconstitutional by this
Court.
Similarly, the implementation/enforcement of presidential decrees prior to
their publication in the Official Gazette is "an operative fact which may have
consequences which cannot be justly ignored. The past cannot always be
erased by a new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that
of the presidential decrees sought by petitioners to be published in the
Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive,
1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither
the subject matters nor the texts of these PDs can be ascertained since no
copies thereof are available. But whatever their subject matter may be, it is
undisputed that none of these unpublished PDs has ever been implemented
or enforced by the government. In Pesigan vs. Angeles, 11 the Court,
through Justice Ramon Aquino, ruled that "publication is necessary to
apprise the public of the contents of [penal] regulations and make the said
penalties binding on the persons affected thereby. " The cogency of this
holding is apparently recognized by respondent officials considering the
manifestation in their comment that "the government, as a matter of policy,
refrains from prosecuting violations of criminal laws until the same shall have
been published in the Official Gazette or in some other publication, even
though some criminal laws provide that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official
Gazette all unpublished presidential issuances which are of general
application, and unless so published, they shall have no binding force and
effect.
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.
Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the
ably written opinion of Justice Escolin. I am unable, however, to concur
insofar as it would unqualifiedly impose the requirement of publication in the
Official Gazette for unpublished "presidential issuances" to have binding
force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due
process question would arise if made to apply adversely to a party who is not
even aware of the existence of any legislative or executive act having the
force and effect of law. My point is that such publication required need not be
confined to the Official Gazette. From the pragmatic standpoint, there is an
advantage to be gained. It conduces to certainty. That is too be admitted. It
does not follow, however, that failure to do so would in all cases and under
all circumstances result in a statute, presidential decree or any other
executive act of the same category being bereft of any binding force and
effect. To so hold would, for me, raise a constitutional question. Such a
pronouncement would lend itself to the interpretation that such a legislative
or presidential act is bereft of the attribute of effectivity unless published in
the Official Gazette. There is no such requirement in the Constitution as
Justice Plana so aptly pointed out. It is true that what is decided now applies
only to past "presidential issuances". Nonetheless, this clarification is, to my
mind, needed to avoid any possible misconception as to what is required for
any statute or presidential act to be impressed with binding force or
effectivity.
2. It is quite understandable then why I concur in the separate opinion
of Justice Plana. Its first paragraph sets forth what to me is the constitutional
doctrine applicable to this case. Thus: "The Philippine Constitution does not
require the publication of laws as a prerequisite for their effectivity, unlike
some Constitutions elsewhere. It may be said though that the guarantee of
due process requires notice of laws to affected Parties before they can be
bound thereby; but such notice is not necessarily by publication in the Official
Gazette. The due process clause is not that precise. 1 I am likewise in
agreement with its closing paragraph: "In fine, I concur in the majority
decision to the extent that it requires notice before laws become effective, for
no person should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such notice shall
be by publication in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the
command of the government "must be ascertainable in some form if it is to
be enforced at all. 3 It would indeed be to reduce it to the level of mere
futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable.
4 Publication, to repeat, is thus essential. What I am not prepared to
subscribe to is the doctrine that it must be in the Official Gazette. To be sure
once published therein there is the ascertainable mode of determining the
exact date of its effectivity. Still for me that does not dispose of the question
of what is the jural effect of past presidential decrees or executive acts not so
published. For prior thereto, it could be that parties aware of their existence
could have conducted themselves in accordance with their provisions. If no
legal consequences could attach due to lack of publication in the Official
Gazette, then serious problems could arise. Previous transactions based on
such "Presidential Issuances" could be open to question. Matters deemed
settled could still be inquired into. I am not prepared to hold that such an
effect is contemplated by our decision. Where such presidential decree or
executive act is made the basis of a criminal prosecution, then, of course, its
ex post facto character becomes evident. 5 In civil cases though, retroactivity
as such is not conclusive on the due process aspect. There must still be a
showing of arbitrariness. Moreover, where the challenged presidential decree
or executive act was issued under the police power, the non-impairment
clause of the Constitution may not always be successfully invoked. There
must still be that process of balancing to determine whether or not it could in
such a case be tainted by infirmity. 6 In traditional terminology, there could
arise then a question of unconstitutional application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further
than to affirm that publication is essential to the effectivity of a legislative or
executive act of a general application. I am not in agreement with the view
that such publication must be in the Official Gazette. The Civil Code itself in
its Article 2 expressly recognizes that the rule as to laws taking effect after
fifteen days following the completion of their publication in the Official
Gazette is subject to this exception, "unless it is otherwise provided."
Moreover, the Civil Code is itself only a legislative enactment, Republic Act
No. 386. It does not and cannot have the juridical force of a constitutional
command. A later legislative or executive act which has the force and effect
of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of
Justice Escolin that presidential decrees and executive acts not thus
previously published in the Official Gazette would be devoid of any legal
character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable
to yield assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and
Alampay concur in this separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
TEEHANKEE, J., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring
opinion of Mme. Justice Herrera. The Rule of Law connotes a body of norms
and laws published and ascertainable and of equal application to all similarly
circumstances and not subject to arbitrary change but only under certain set
procedures. The Court has consistently stressed that "it is an elementary rule
of fair play and justice that a reasonable opportunity to be informed must be
afforded to the people who are commanded to obey before they can be
punished for its violation,1 citing the settled principle based on due process
enunciated in earlier cases that "before the public is bound by its contents,
especially its penal provisions, a law, regulation or circular must first be
published and the people officially and specially informed of said contents
and its penalties.
Without official publication in the Official Gazette as required by Article 2 of
the Civil Code and the Revised Administrative Code, there would be no basis
nor justification for the corollary rule of Article 3 of the Civil Code (based on
constructive notice that the provisions of the law are ascertainable from the
public and official repository where they are duly published) that "Ignorance
of the law excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code
that "only laws which are silent as to their effectivity [date] need be published
in the Official Gazette for their effectivity" is manifestly untenable. The plain
text and meaning of the Civil Code is that "laws shall take effect after fifteen
days following the completion of their publication in the Official Gazette,
unless it is otherwise provided, " i.e. a different effectivity date is provided by
the law itself. This proviso perforce refers to a law that has been duly
published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides
otherwise that it "shall take effect [only] one year [not 15 days] after such
publication. 2 To sustain respondents' misreading that "most laws or decrees
specify the date of their effectivity and for this reason, publication in the
Official Gazette is not necessary for their effectivity 3 would be to nullify and
render nugatory the Civil Code's indispensable and essential requirement of
prior publication in the Official Gazette by the simple expedient of providing
for immediate effectivity or an earlier effectivity date in the law itself before
the completion of 15 days following its publication which is the period
generally fixed by the Civil Code for its proper dissemination.
MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for
a date of effectivity, it has to be published. What I would like to state in
connection with that proposition is that when a date of effectivity is mentioned
in the decree but the decree becomes effective only fifteen (15) days after its
publication in the Official Gazette, it will not mean that the decree can have
retroactive effect to the date of effectivity mentioned in the decree itself.
There should be no retroactivity if the retroactivity will run counter to
constitutional rights or shall destroy vested rights.
PLANA, J., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a
prerequisite for their effectivity, unlike some Constitutions elsewhere. * It may
be said though that the guarantee of due process requires notice of laws to
affected parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is
not that precise. Neither is the publication of laws in the Official Gazette
required by any statute as a prerequisite for their effectivity, if said laws
already provide for their effectivity date.
In fine, I concur in the majority decision to the extent that it requires notice
before laws become effective, for no person should be bound by a law
without notice. This is elementary fairness. However, I beg to disagree
insofar as it holds that such notice shall be by publication in the Official
Gazette.
Cuevas and Alampay, JJ., concur.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen
days following the completion of their publication in the Official Gazette, GUTIERREZ, Jr., J., concurring:
unless it is otherwise provided " Two things may be said of this provision:
Firstly, it obviously does not apply to a law with a built-in provision as to when I concur insofar as publication is necessary but reserve my vote as to the
it will take effect. Secondly, it clearly recognizes that each law may provide necessity of such publication being in the Official Gazette.
not only a different period for reckoning its effectivity date but also a different
mode of notice. Thus, a law may prescribe that it shall be published
elsewhere than in the Official Gazette.
DE LA FUENTE, J., concurring:
Commonwealth Act No. 638, in my opinion, does not support the proposition
that for their effectivity, laws must be published in the Official Gazette. The I concur insofar as the opinion declares the unpublished decrees and
said law is simply "An Act to Provide for the Uniform Publication and issuances of a public nature or general applicability ineffective, until due
Distribution of the Official Gazette." Conformably therewith, it authorizes the publication thereof.
publication of the Official Gazette, determines its frequency, provides for its
sale and distribution, and defines the authority of the Director of Printing in
relation thereto. It also enumerates what shall be published in the Official
Gazette, among them, "important legislative acts and resolutions of a public
nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general
applicability." It is noteworthy that not all legislative acts are required to be
published in the Official Gazette but only "important" ones "of a public Separate Opinions
nature." Moreover, the said law does not provide that publication in the
Official Gazette is essential for the effectivity of laws. This is as it should be, FERNANDO, C.J., concurring (with qualification):
for all statutes are equal and stand on the same footing. A law, especially an
earlier one of general application such as Commonwealth Act No. 638, There is on the whole acceptance on my part of the views expressed in the
cannot nullify or restrict the operation of a subsequent statute that has a ably written opinion of Justice Escolin. I am unable, however, to concur
provision of its own as to when and how it will take effect. Only a higher law, insofar as it would unqualifiedly impose the requirement of publication in the
which is the Constitution, can assume that role. Official Gazette for unpublished "presidential issuances" to have binding
force and effect.

I shall explain why.
1. It is of course true that without the requisite publication, a due
process question would arise if made to apply adversely to a party who is not
even aware of the existence of any legislative or executive act having the
force and effect of law. My point is that such publication required need not be
confined to the Official Gazette. From the pragmatic standpoint, there is an
advantage to be gained. It conduces to certainty. That is too be admitted. It
does not follow, however, that failure to do so would in all cases and under
all circumstances result in a statute, presidential decree or any other
executive act of the same category being bereft of any binding force and
effect. To so hold would, for me, raise a constitutional question. Such a
pronouncement would lend itself to the interpretation that such a legislative
or presidential act is bereft of the attribute of effectivity unless published in
the Official Gazette. There is no such requirement in the Constitution as
Justice Plana so aptly pointed out. It is true that what is decided now applies
only to past "presidential issuances". Nonetheless, this clarification is, to my
mind, needed to avoid any possible misconception as to what is required for
any statute or presidential act to be impressed with binding force or
effectivity.
2. It is quite understandable then why I concur in the separate opinion
of Justice Plana. Its first paragraph sets forth what to me is the constitutional
doctrine applicable to this case. Thus: "The Philippine Constitution does not
require the publication of laws as a prerequisite for their effectivity, unlike
some Constitutions elsewhere. It may be said though that the guarantee of
due process requires notice of laws to affected Parties before they can be
bound thereby; but such notice is not necessarily by publication in the Official
Gazette. The due process clause is not that precise. 1 I am likewise in
agreement with its closing paragraph: "In fine, I concur in the majority
decision to the extent that it requires notice before laws become effective, for
no person should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such notice shall
be by publication in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the
command of the government "must be ascertainable in some form if it is to
be enforced at all. 3 It would indeed be to reduce it to the level of mere
futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable.
4 Publication, to repeat, is thus essential. What I am not prepared to
subscribe to is the doctrine that it must be in the Official Gazette. To be sure
once published therein there is the ascertainable mode of determining the
exact date of its effectivity. Still for me that does not dispose of the question
of what is the jural effect of past presidential decrees or executive acts not so
published. For prior thereto, it could be that parties aware of their existence
could have conducted themselves in accordance with their provisions. If no
legal consequences could attach due to lack of publication in the Official
Gazette, then serious problems could arise. Previous transactions based on
such "Presidential Issuances" could be open to question. Matters deemed
settled could still be inquired into. I am not prepared to hold that such an
effect is contemplated by our decision. Where such presidential decree or
executive act is made the basis of a criminal prosecution, then, of course, its
ex post facto character becomes evident. 5 In civil cases though, retroactivity
as such is not conclusive on the due process aspect. There must still be a
showing of arbitrariness. Moreover, where the challenged presidential decree
or executive act was issued under the police power, the non-impairment
clause of the Constitution may not always be successfully invoked. There
must still be that process of balancing to determine whether or not it could in
such a case be tainted by infirmity. 6 In traditional terminology, there could
arise then a question of unconstitutional application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further
than to affirm that publication is essential to the effectivity of a legislative or
executive act of a general application. I am not in agreement with the view
that such publication must be in the Official Gazette. The Civil Code itself in
its Article 2 expressly recognizes that the rule as to laws taking effect after
fifteen days following the completion of their publication in the Official
Gazette is subject to this exception, "unless it is otherwise provided."
Moreover, the Civil Code is itself only a legislative enactment, Republic Act
No. 386. It does not and cannot have the juridical force of a constitutional
command. A later legislative or executive act which has the force and effect
of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of
Justice Escolin that presidential decrees and executive acts not thus
previously published in the Official Gazette would be devoid of any legal
character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable
to yield assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and
Alampay concur in this separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
TEEHANKEE, J., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring
opinion of Mme. Justice Herrera. The Rule of Law connotes a body of norms
and laws published and ascertainable and of equal application to all similarly
circumstances and not subject to arbitrary change but only under certain set
procedures. The Court has consistently stressed that "it is an elementary rule
of fair play and justice that a reasonable opportunity to be informed must be
afforded to the people who are commanded to obey before they can be
punished for its violation,1 citing the settled principle based on due process
enunciated in earlier cases that "before the public is bound by its contents,
especially its penal provisions, a law, regulation or circular must first be
published and the people officially and specially informed of said contents
and its penalties.
Without official publication in the Official Gazette as required by Article 2 of
the Civil Code and the Revised Administrative Code, there would be no basis
nor justification for the corollary rule of Article 3 of the Civil Code (based on
constructive notice that the provisions of the law are ascertainable from the
public and official repository where they are duly published) that "Ignorance
of the law excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code
that "only laws which are silent as to their effectivity [date] need be published
in the Official Gazette for their effectivity" is manifestly untenable. The plain
text and meaning of the Civil Code is that "laws shall take effect after fifteen
days following the completion of their publication in the Official Gazette,
unless it is otherwise provided, " i.e. a different effectivity date is provided by
the law itself. This proviso perforce refers to a law that has been duly
published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides
otherwise that it "shall take effect [only] one year [not 15 days] after such
publication. 2 To sustain respondents' misreading that "most laws or decrees
specify the date of their effectivity and for this reason, publication in the
Official Gazette is not necessary for their effectivity 3 would be to nullify and
render nugatory the Civil Code's indispensable and essential requirement of
prior publication in the Official Gazette by the simple expedient of providing
for immediate effectivity or an earlier effectivity date in the law itself before
the completion of 15 days following its publication which is the period
generally fixed by the Civil Code for its proper dissemination.
MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for
a date of effectivity, it has to be published. What I would like to state in
connection with that proposition is that when a date of effectivity is mentioned
in the decree but the decree becomes effective only fifteen (15) days after its
publication in the Official Gazette, it will not mean that the decree can have
retroactive effect to the date of effectivity mentioned in the decree itself.
There should be no retroactivity if the retroactivity will run counter to
constitutional rights or shall destroy vested rights.
PLANA, J., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a
prerequisite for their effectivity, unlike some Constitutions elsewhere. * It may
be said though that the guarantee of due process requires notice of laws to
affected parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is
not that precise. Neither is the publication of laws in the Official Gazette
required by any statute as a prerequisite for their effectivity, if said laws
already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen
days following the completion of their publication in the Official Gazette,
unless it is otherwise provided " Two things may be said of this provision:
Firstly, it obviously does not apply to a law with a built-in provision as to when
it will take effect. Secondly, it clearly recognizes that each law may provide
not only a different period for reckoning its effectivity date but also a different
mode of notice. Thus, a law may prescribe that it shall be published
elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition
that for their effectivity, laws must be published in the Official Gazette. The
said law is simply "An Act to Provide for the Uniform Publication and
Distribution of the Official Gazette." Conformably therewith, it authorizes the
publication of the Official Gazette, determines its frequency, provides for its
sale and distribution, and defines the authority of the Director of Printing in
relation thereto. It also enumerates what shall be published in the Official
Gazette, among them, "important legislative acts and resolutions of a public
nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general
applicability." It is noteworthy that not all legislative acts are required to be
published in the Official Gazette but only "important" ones "of a public
nature." Moreover, the said law does not provide that publication in the
Official Gazette is essential for the effectivity of laws. This is as it should be,
for all statutes are equal and stand on the same footing. A law, especially an
earlier one of general application such as Commonwealth Act No. 638,
cannot nullify or restrict the operation of a subsequent statute that has a
provision of its own as to when and how it will take effect. Only a higher law,
which is the Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice
before laws become effective, for no person should be bound by a law
without notice. This is elementary fairness. However, I beg to disagree
insofar as it holds that such notice shall be by publication in the Official
Gazette.
Cuevas and Alampay, JJ., concur.
GUTIERREZ, Jr., J., concurring:
I concur insofar as publication is necessary but reserve my vote as to the
necessity of such publication being in the Official Gazette.
DE LA FUENTE, J., concurring:
I concur insofar as the opinion declares the unpublished decrees and
issuances of a public nature or general applicability ineffective, until due
publication thereof.
Footnotes
1 Section 6. The right of the people to information on matters of public
concern shag be recognized, access to official records, and to documents
and papers pertaining to official acts, transactions, or decisions, shag be
afforded the citizens subject to such limitation as may be provided by law.
2 Anti-Chinese League vs. Felix, 77 Phil. 1012; Costas vs. Aidanese,
45 Phil. 345; Almario vs. City Mayor, 16 SCRA 151;Parting vs. San Jose
Petroleum, 18 SCRA 924; Dumlao vs. Comelec, 95 SCRA 392.
3 16 Phil. 366, 378.
4 Camacho vs. Court of Industrial Relations, 80 Phil 848; Mejia vs.
Balolong, 81 Phil. 486; Republic of the Philippines vs. Encamacion, 87 Phil.
843; Philippine Blooming Mills, Inc. vs. Social Security System, 17 SCRA
1077; Askay vs. Cosalan, 46 Phil. 179.
5 1 Manresa, Codigo Civil 7th Ed., p. 146.
6 People vs. Que Po Lay, 94 Phil. 640; Balbuena et al. vs. Secretary of
Education, et al., 110 Phil. 150.
7 82 SCRA 30, dissenting opinion.
8 308 U.S. 371, 374.

9 93 Phil.. 68,.
10 The report was prepared by the Clerk of Court after Acting Director
Florendo S. Pablo Jr. of the Government Printing Office, failed to respond to
her letter-request regarding the respective dates of publication in the Official
Gazette of the presidential issuances listed therein. No report has been
submitted by the Clerk of Court as to the publication or non-publication of
other presidential issuances.
11 129 SCRA 174.
Fernando, CJ.:
1 Separate Opinion of Justice Plana, first paragraph. He mentioned in
tills connection Article 7, Sec. 21 of the Wisconsin Constitution and State ex
rel. White v. Grand Superior Ct., 71 ALR 1354, citing the Constitution of
Indiana, U.S.A
2 Ibid, closing paragraph.
3 Learned Hand, The Spirit of Liberty 104 (1960).
4 Cardozo, The Growth of the Law, 3 (1924).
5 Cf. Nunez v. Sandiganbayan, G.R. No. 50581-50617, January 30,
1982, 111 SCRA 433.
6 Cf. Alalayan v. National Power Corporation, L-24396, July 29, 1968,
24 SCRA 172.
Teehankee, J.:
1 People vs. de Dios, G.R. No. 11003, Aug. 3l, 1959, per the late Chief
Justice Paras.
2 Notes in brackets supplied.
3 Respondents: comment, pp. 14-15.
Plana, J.:
* See e.g., Wisconsin Constitution, Art. 7, Sec. 21: "The legislature
shall provide publication of all statute laws ... and no general law shall be in
force until published." See also S ate ex rel. White vs. Grand Superior Ct., 71
ALR 1354, citing Constitution of Indiana, U.S.A.
G.R. No. 448 September 20, 1901
THE UNITED STATES, complainant-appellee,
vs.
PHILIP K. SWEET, defendant-appellant.
Theofilus B. Steele, for appellant.
Office of the Solicitor-General Araneta, for appellee.
LADD, J.:
The offense charged in the complaint is punishable under the Penal Code
now in force by arresto mayor and a fine of from 325 to 3,250 pesetas. (Art.
418.) By Act No. 136 of the United States Philippine Commission, section 56
(6), Courts of First Instance are given original jurisdiction "in all criminal
cases in which a penalty of more than six months' imprisonment or a fine
exceeding one hundred dollars may be imposed." The offense was therefore
cognizable by the court below unless the fact that the appellant was at the
time of its alleged commission an employee of the United States military
authorities in the Philippine Islands, and the further fact that the person upon
whom it is alleged to have been committed was a prisoner of war in the
custody of such authorities, are sufficient to deprive it of jurisdiction. We must
assume that both these facts are true, as found, either upon sufficient
evidence or upon the admissions of the prosecuting attorney, by the court
below.
Setting aside the claim that the appellant was "acting in the line of duty" at
the time the alleged offense was committed, which is not supported by the
findings or by any evidence which appears in the record, the contention that
the court was without jurisdiction, as we understand it, is reducible to two
propositions: First, that an assault committed by a soldier or military
employee upon a prisoner of war is not an offense under the Penal Code;
and second, that if it is an offense under the Code, nevertheless the military
character sustained by the person charged with the offense at the time of its
commission exempts him from the ordinary jurisdiction of the civil tribunals.
As to the first proposition, it is true, as pointed out by counsel, that an assault
of the character charged in the complaint committed in time of war by a
military person upon a prisoner of war is punishable as an offense under the
Spanish Code of Military Justice (art. 232), and it is also true that under the
provisions of the same Code (arts. 4, 5) the military tribunals have, with
certain exceptions which it is not material to state, exclusive cognizance of all
offenses, whether of a purely military nature or otherwise, committed by
military persons. But the fact that the acts charged in the complaint would be
punishable as an offense under the Spanish military legislation does not
render them any less an offense under the article of the Penal Code above
cited. There is nothing in the language of that article to indicate that it does
not apply to all persons within the territorial jurisdiction of the law. Under
articles 4 and 5 of the Code of Military Justice above cited a military person
could not be brought to trial before a civil tribunal for an assault upon a
prisoner of war, but by the commission of that offense he incurred a criminal
responsibility for which he was amenable only to the military jurisdiction. That
criminal responsibility, however, arose from an infraction of the general penal
laws, although the same acts, viewed in another aspect, might also, if
committed in time of war, constitute an infraction of the military code. We are
unable to see how these provisions of the Spanish Military Code, no longer in
force here and which indeed never had any application to the Army of the
United States, can in any possible view have the effect claimed for them by
counsel for the appellant.
The second question is, Does the fact that the alleged offense was
committed by an employee of the United States military authorities deprive
the court of jurisdiction? We have been cited to no provision in the legislation
of Congress, and to none in the local legislation, which has the effect of
limiting, as respects employees of the United States military establishment,
the general jurisdiction conferred upon the Courts of First Instance by Act No.
136 of the United States Philippine Commission above cited, and we are not
aware of the existence of any such provision. The case is therefore open to
the application of the general principle that the jurisdiction of the civil
tribunals is unaffected by the military or other special character of the person
brought before them for trial, a principle firmly established in the law of
England and America and which must, we think, prevail under any system of
jurisprudence unless controlled by express legislation to the contrary. (United
States vs. Clark, 31 Fed. Rep., 710.) The appellant's claim that the acts
alleged to constitute the offense were performed by him in the execution of
the orders of his military superiors may, if true, be available by way of
defense upon the merits in the trial in the court below, but can not under this
principle affect the right of that court to take jurisdiction of the case.
Whether under a similar state of facts to that which appears in this case a
court of one of the United States would have jurisdiction to try the offender
against the State laws (see In re Fair, 100 Fed. Rep., 149), it is not
necessary to consider. The present is not a case where the courts of one
government are attempting to exercise jurisdiction over the military agents or
employees of another and distinct government, because the court asserting
jurisdiction here derives its existence and powers from the same Government
under the authority of which the acts alleged to constitute the offense are
claimed to have been performed.
It may be proper to add that there is no actual conflict between the two
jurisdictions in the present case nor any claim of jurisdiction on the part of the
military tribunals. On the contrary it appears from the findings of the court
below that the complaint was entered by order of the commanding general of
the Division of the Philippines, a fact not important, perhaps, as regards the
technical question of jurisdiction, but which relieves the case from any
practical embarrassment which might result from a claim on the part of the
military tribunals to exclusive cognizance of the offense.
The order of the court below is affirmed with costs to the appellant.
Arellano, C.J., Torres, Willard, and Mapa, JJ., concur.
Separate Opinions
COOPER, J., concurring:
I concur in the result of the decision of the court, but am not prepared to
assent to all that is said in the opinion. An offense charged against a military
officer, acting under the order of his superior, unless the illegality of the order
is so clearly shown on its face that a man of ordinary sense and
understanding would know when he heard it read or given that the order was
illegal, and when the alleged criminal act was done within the scope of his
authority as such officer, in good faith and without malice, and where the
offense is against the military law — that is, such law as relates to the
discipline and efficiency of the Army, or rules and orders promulgated by the
Secretary of War to aid military officers in the proper enforcement of the
custody of prisoners — is not within the jurisdiction of the courts of the Civil
Government. (In re Fair, 100 Fed. Rep., 149.) The civil courts, however, may
examine the evidence for the purpose of determining whether the act alleged
to be criminal was done in the performance of duty under the circumstances
above indicated, but should cease to exercise jurisdiction upon such facts
appearing.
[G.R. No. 125865. January 28, 2000]
JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
YNARES-SANTIAGO, J.:
Petitioner is an economist working with the Asian Development Bank (ADB).
Sometime in 1994, for allegedly uttering defamatory words against fellow
ADB worker Joyce Cabal, he was charged before the Metropolitan Trial
Court (MeTC) of Mandaluyong City with two counts of grave oral defamation
docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was arrested
by virtue of a warrant issued by the MeTC. After fixing petitioners bail at
P2,400.00 per criminal charge, the MeTC released him to the custody of the
Security Officer of ADB. The next day, the MeTC judge received an "office of
protocol" from the Department of Foreign Affairs (DFA) stating that petitioner
is covered by immunity from legal process under Section 45 of the
Agreement between the ADB and the Philippine Government regarding the
Headquarters of the ADB (hereinafter Agreement) in the country. Based on
the said protocol communication that petitioner is immune from suit, the
MeTC judge without notice to the prosecution dismissed the two criminal
cases. The latter filed a motion for reconsideration which was opposed by the
DFA. When its motion was denied, the prosecution filed a petition for
certiorari and mandamus with the Regional Trial Court (RTC) of Pasig City
which set aside the MeTC rulings and ordered the latter court to enforce the
warrant of arrest it earlier issued. After the motion for reconsideration was
denied, petitioner elevated the case to this Court via a petition for review
arguing that he is covered by immunity under the Agreement and that no
preliminary investigation was held before the criminal cases were filed in
court.
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the communication
from the DFA that petitioner is covered by any immunity. The DFAs
determination that a certain person is covered by immunity is only preliminary
which has no binding effect in courts. In receiving ex-parte the DFAs advice
and in motu proprio dismissing the two criminal cases without notice to the
prosecution, the latters right to due process was violated. It should be noted
that due process is a right of the accused as much as it is of the prosecution.
The needed inquiry in what capacity petitioner was acting at the time of the
alleged utterances requires for its resolution evidentiary basis that has yet to
be presented at the proper time.[1] At any rate, it has been ruled that the
mere invocation of the immunity clause does not ipso facto result in the
dropping of the charges.[2]
Second, under Section 45 of the Agreement which provides: Jksm
"Officers and staff of the Bank including for the purpose of this Article experts
and consultants performing missions for the Bank shall enjoy the following
privileges and immunities:
a.).......immunity from legal process with respect to acts performed by them in
their official capacity except when the Bank waives the immunity."
the immunity mentioned therein is not absolute, but subject to the exception
that the act was done in "official capacity." It is therefore necessary to
determine if petitioners case falls within the ambit of Section 45(a). Thus, the
prosecution should have been given the chance to rebut the DFA protocol
and it must be accorded the opportunity to present its controverting evidence,
should it so desire.
Third, slandering a person could not possibly be covered by the immunity
agreement because our laws do not allow the commission of a crime, such
as defamation, in the name of official duty.[3] The imputation of theft is ultra
vires and cannot be part of official functions. It is well-settled principle of law
that a public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with malice or in bad
faith or beyond the scope of his authority or jurisdiction.[4] It appears that
even the governments chief legal counsel, the Solicitor General, does not
support the stand taken by petitioner and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic
agent, assuming petitioner is such, enjoys immunity from criminal jurisdiction
of the receiving state except in the case of an action relating to any
professional or commercial activity exercised by the diplomatic agent in the
receiving state outside his official functions.[5] As already mentioned above,
the commission of a crime is not part of official duty.
Finally, on the contention that there was no preliminary investigation
conducted, suffice it to say that preliminary investigation is not a matter of
right in cases cognizable by the MeTC such as the one at bar.[6] Being
purely a statutory right, preliminary investigation may be invoked only when
specifically granted by law.[7] The rule on criminal procedure is clear that no
preliminary investigation is required in cases falling within the jurisdiction of
the MeTC.[8] Besides, the absence of preliminary investigation does not
affect the courts jurisdiction nor does it impair the validity of the information
or otherwise render it defective.[9]
WHEREFORE, the petition is DENIED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ.,
concur.2/22/00 9:47 AM
G.R. No. L-13005 October 10, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
AH SING, defendant-appellant.
Antonio Sanz for appellant.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
This is an appeal from a judgment of the Court of First Instance of Cebu
finding the defendant guilty of a violation of section 4 of Act No. 2381 (the
Opium Law), and sentencing him to two years imprisonment, to pay a fine of
P300 or to suffer subsidiary imprisonment in case of insolvency, and to pay
the costs.
The following facts are fully proven: The defendant is a subject of China
employed as a fireman on the steamship Shun Chang. The Shun Chang is a
foreign steamer which arrived at the port of Cebu on April 25, 1917, after a
voyage direct from the port of Saigon. The defendant bought eight cans of
opium in Saigon, brought them on board the steamship Shun Chang, and
had them in his possession during the trip from Saigon to Cebu. When the
steamer anchored in the port of Cebu on April 25, 1917, the authorities on
making a search found the eight cans of opium above mentioned hidden in
the ashes below the boiler of the steamer's engine. The defendant confessed
that he was the owner of this opium, and that he had purchased it in Saigon.
He did not confess, however, as to his purpose in buying the opium. He did
not say that it was his intention to import the prohibited drug into the
Philippine Islands. No other evidence direct or indirect, to show that the
intention of the accused was to import illegally this opium into the Philippine
Islands, was introduced.
Has the crime of illegal importation of opium into the Philippine Islands been
proven?
Two decisions of this Court are cited in the judgment of the trial court, but
with the intimation that there exists inconsistently between the doctrines laid
down in the two cases. However, neither decision is directly a precedent on
the facts before us.
In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in the
opinion handed down by the Chief Justice, it is found —
That, although the mere possession of a thing of prohibited use in these
Islands, aboard a foreign vessel in transit, in any of their ports, does not, as a
general rule, constitute a crime triable by the courts of this country, on
account of such vessel being considered as an extension of its own
nationality, the same rule does no apply when the article, whose use is
prohibited within the Philippine Islands, in the present case a can of opium, is
landed from the vessel upon Philippine soil, thus committing an open
violation of the laws of the land, with respect to which, as it is a violation of
the penal law in force at the place of the commission of the crime, only the
court established in the said place itself has competent jurisdiction, in the
absence of an agreement under an international treaty.1awphil.net
A marked difference between the facts in the Look Chaw case and the facts
in the present instance is readily observable. In the Look Chaw case, the
charge case the illegal possession and sale of opium — in the present case
the charge as illegal importation of opium; in the Look Chaw case the foreign
vessel was in transit — in the present case the foreign vessel was not in
transit; in the Look Chaw case the opium was landed from the vessel upon
Philippine soil — in the present case of United States vs. Jose ([1916], 34
Phil., 840), the main point, and the one on which resolution turned, was that
in a prosecution based on the illegal importation of opium or other prohibited
drug, the Government must prove, or offer evidence sufficient to raise a
presumption, that the vessel from which the drug is discharged came into
Philippine waters from a foreign country with the drug on board. In the Jose
case, the defendants were acquitted because it was not proved that the
opium was imported from a foreign country; in the present case there is no
question but what the opium came from Saigon to Cebu. However, in the
opinion in the Jose case, we find the following which may be obiter dicta, but
which at least is interesting as showing the view of the writer of the opinion:
The importation was complete, to say the least, when the ship carrying it
anchored in Subic Bay. It was not necessary that the opium discharged or
that it be taken from the ship. It was sufficient that the opium was brought
into the waters of the Philippine Islands on a boat destined for a Philippine
port and which subsequently anchored in a port of the Philippine Islands with
intent to discharge its cargo.
Resolving whatever doubt was exist as to the authority of the views just
quoted, we return to an examination of the applicable provisions of the law. It
is to be noted that section 4 of Act No. 2381 begins, "Any person who shall
unlawfully import or bring any prohibited drug into the Philippine Islands."
"Import" and "bring" are synonymous terms. The Federal Courts of the
United States have held that the mere act of going into a port, without
breaking bulk, is prima facie evidence of importation. (The Mary [U. S.], 16
Fed. Cas., 932, 933.) And again, the importation is not the making entry of
goods at the custom house, but merely the bringing them into port; and the
importation is complete before entry of the Custom House. (U. S. vs. Lyman
[U. S.], 26, Fed. Cas., 1024, 1028; Perots vs. U. S., 19 Fed. Cas., 258.) As
applied to the Opium Law, we expressly hold that any person unlawfully
imports or brings any prohibited drug into the Philippine Islands, when the
prohibited drug is found under this person's control on a vessel which has
come direct from a foreign country and is within the jurisdictional limits of the
Philippine Islands. In such case, a person is guilty of illegal importation of the
drug unless contrary circumstances exist or the defense proves otherwise.
Applied to the facts herein, it would be absurb to think that the accused was
merely carrying opium back and forth between Saigon and Cebu for the mere
pleasure of so doing. It would likewise be impossible to conceive that the
accused needed so large an amount of opium for his personal use. No better
explanation being possible, the logical deduction is that the defendant
intended this opium to be brought into the Philippine Islands. We accordingly
find that there was illegal importation of opium from a foreign country into the
Philippine Islands. To anticipate any possible misunderstanding, let it be said
that these statements do not relate to foreign vessels in transit, a situation
not present.
The defendant and appellant, having been proved guilty beyond a
reasonable doubt as charged and the sentence of the trial court being within
the limits provided by law, it results that the judgment must be affirmed with
the costs of this instance against the appellant. So ordered.
Arellano, C.J., Johnson, Carson, Araullo and Street, JJ., concur.
G.R. No. L-1988 February 24, 1948
JESUS MIQUIABAS, petitioner,
vs.
COMMANDING GENERAL, PHILIPPINE-RYUKYUS COMMAND, UNITED
STATES ARMY, respondents.
Lorenzo Sumulong and Esteban P. Garcia for petitioner.
J. A. Wolfson for respondent.
MORAN, C.J.:
This is a petition for a writ of habeas corpus filed by Jesus Miquiabas against
the Commanding General Philippine-Ryukyus Command, United States
Army, who is alleged to have petitioner under custody and to have appointed
a General Court-Martial to try petitioner in connection with an offense over
which the said court has no jurisdiction.
Petitioner is a Filipino citizen and a civilian employee of the United States
Army in the Philippines, who has been charged with disposing in the Port of
Manila Area of things belonging to the United States Army, in violation of the
94th Article of War of the United States. He has been arrested for that reason
and a General Court-Martial appointed by respondent tried and found him
guilty and sentenced him to 15 years imprisonment. This sentence, however,
is not yet final for it is still subject to review.
It may be stated as a rule that the Philippines, being a sovereign nation, has
jurisdiction over all offenses committed within its territory, but it may, by
treaty or by agreement, consent that the United States or any other foreign
nation, shall exercise jurisdiction over certain offenses committed within
certain portions of said territory. On March 11, 1947, the Republic of the
Philippines and the Government of the United States of America, entered into
an agreement concerning military bases, and Article XIII thereof is as follows:
JURISDICTION
1. The Philippines consents that the United States shall have the right to
exercise jurisdiction over the following offenses:
(a) Any offense committed by any person within any base except where the
offender and offended parties are both Philippine citizens (not members of
the armed forces of the United States on active duty) or the offense is
against the security of the Philippines;
(b) Any offense committed outside the bases by any member of the armed
forces of the United States in which the offended party is also a member of
the armed forces of the United States; and
(c) Any offense committed outside the bases by any member of the armed
forces of the United States against the security of the United States.
2. The Philippines shall have the right to exercise jurisdiction over all other
offenses committed outside the bases by any member of the armed forces of
the United States.
3. Whenever for special reasons the United States may desire not to
exercise the jurisdiction reserved to it in paragraphs 1 and 6 of this Article,
the officer holding the offender in custody shall so notify the fiscal
(prosecuting attorney) of the city or province in which the offense has been
committed within ten days after his arrest, and in such case the Philippines
shall exercise jurisdiction.
4. Whenever for special reasons the Philippines may desire not to exercise
the jurisdiction reserved to it in paragraph 2 of this Article, the fiscal
(prosecuting attorney) of the city or province where the offense has been
committed shall so notify the officer holding the offender in custody within ten
days after his arrest, and in such a case the United States shall be free to
exercise jurisdiction. If any offense falling under paragraph 2 of this article is
committed by any member of the armed forces of the United States.

(a) While engaged in the actual performance of a specific military duty, or
(b) during a period of national emergency declared by either Government
and the fiscal (prosecuting attorney) so finds from the evidence, he shall
immediately notify the officer holding the offender in custody that the United
States is free to exercise jurisdiction. In the event the fiscal (prosecuting
attorney) finds that the offense was not committed in the actual performance
of a specific military duty, the offender's commanding officer shall have the
right to appeal from such finding to the Secretary of Justice within ten days
from the receipt of the decision of the fiscal and the decision of the Secretary
of Justice shall be final.
5. In all cases over which the Philippines exercises jurisdiction the custody of
the accused, pending trial and final judgment, shall be entrusted without
delay to the commanding officer of the nearest base, who shall acknowledge
in writing that such accused has been delivered to him for custody pending
trial in a competent court of the Philippines and that he will be held ready to
appear and will be produced before said court when required by it. The
commanding officer shall be furnished by the fiscal (prosecuting attorney)
with a copy of the information against the accused upon the filing of the
original in the competent court.
6. Notwithstanding the foregoing provisions, it is naturally agreed that in time
of war the United States shall have the right to exercise exclusive jurisdiction
over any offenses which may be committed by members of the armed forces
of the United States in the Philippines.
7. The United States agrees that it will not grant asylum in any of the bases
to any person fleeing from the lawful jurisdiction of the Philippines. Should
such person be found in any base, he will be surrendered on demand to the
competent authorities of the Philippines.
8. In every case in which jurisdiction over an offense is exercised by the
United States, the offended party may institute a separate civil action against
the offender in the proper court of the Philippines to enforce the civil liability
which under the laws of the Philippines may arise from the offense.
Under paragraph 1 (a), the General Court-Martial would have jurisdiction
over the criminal case against petitioner if the offense had been committed
within a base. Under paragraph 1 (b), if the offense had been committed
outside a base, still the General Court-Martial would have jurisdiction if the
offense had been committed by a "member of the armed forces of the United
States" there being no question that the offended party in this case is the
United States. It is not necessary therefore, to consider whether the offense
is against "the security of the United States" under paragraph 1 (c), or
whether petitioner committed it in "the actual performance of a specific
military duty" or in time of a declared "national emergency" under paragraph
4, or whether we are still in a state of war under paragraph 6, for in all these
instances the military jurisdiction depends also upon whether the offender is
a member of the armed forces of the United States. We shall then determine
in this case (1) whether the offense has been committed within or without a
base, and, in the second instance, (2) whether the offender is or is not a
member of the armed forces of the United States.
As to the first question, Article XXVI of the Agreement provides that "bases
are those area named in Annex A and Annex B and such additional areas as
may be acquired for military purposes pursuant to the terms of this
Agreement." Among the areas specified in Annexes A and B, there is none
that has reference to the Port Area of Manila where the offense has allegedly
been committed. On the contrary, it appears in Annex A that "army
communications system" is included, but with "the deletion of all stations in
the Port of Manila Area."
Paragraph 2 of Article XXI is invoked by respondent. The whole article is as
follows:
TEMPORARY INSTALLATIONS
1. It is mutually agreed that the United States shall retain the right to occupy
temporary quarters and installations now existing outside the bases
mentioned in Annex A and Annex B, for such reasonable time, not exceeding
two years, as may be necessary to develop adequate facilities within the
bases for the United States armed forces. If circumstances require an
extension of time, such a period will be fixed by mutual agreement of the two
Governments; but such extension shall not apply to the existing temporary
quarters and installations within the limits of the City of Manila and shall in no
case exceed a period of three years.
2. Notwithstanding the provisions of the preceding paragraph, the Port of
Manila reservation with boundaries as of 1941 will be available for use to the
United States armed forces until such time as other arrangements can be
made for the supply of the bases by mutual agreement of the two
Governments.
3. The terms of this agreement pertaining to bases shall be applicable to
temporary quarters and installations referred to in paragraph 1 of this article
while they are so occupied by the armed forces of the United States;
provided, that offenses committed within the temporary quarters and
installations located within the present limits of the City of Manila shall not be
considered as offenses within the bases but shall be governed by the
provisions of Article XIII, paragraphs 2 and 4, except that the election not to
exercise the jurisdiction reserved to the Philippines shall be made by the
Secretary of Justice. It is agreed that the United States shall have full use
and full control of all these quarters and installations while they are occupied
by the armed forces of the United States, including the exercise of such
measures as may be necessary to police said quarters for the security of the
personnel and property therein.
The subject matter of this article, as indicated by its heading, is "Temporary
Installations." Paragraph 1 refers to temporary quarters and installations
existing outside the bases specified in Annex A and Annex B, which may be
retained by the United States armed forces for such reasonable time as may
be necessary not exceeding two years in duration, extendible fro not more
than three years, the extension not being applicable to existing temporary
quarters and installations within the limits of the City of Manila.
Paragraph 2, of Article XXI, refers to the Port of Manila Reservation, which
will be available for use to the United States armed forces, also as a
temporary quarters and installations, its temporariness not being for a
definite period of time, but "until such time as other arrangements can be
made for supply of the bases by mutual agreement of the two Governments."
There is in paragraph 2 absolutely nothing that may be construed as placing
the Port of Manila Reservation in the category of a permanent base.
Paragraph 3, of Article XXI, provides "that offenses committed within the
temporary quarters and installations located within the present limits of the
City of Manila shall not be considered as offenses within the bases but shall
be governed by the provisions of Article XIII, paragraphs 2 and 4." Therefore,
the offense at bar cannot be considered as committed within, but without, a
base, since it has been committed in the Port of Manila Area, which is not
one of the bases mentioned in Annexes A and B to the Agreement, and is
merely temporary quarters located within the present limits of the City of
Manila.
The next inquiry is whether or not the offender may be considered as a
member of the armed forces of the United States under Article XIII,
paragraph 1 (b). As above stated, petitioner is a Filipino citizen and a civilian
employee of the United States Army in the Philippines. Under the terms of
the Agreement, a civilian employee cannot be considered as a member of
the armed forces of the United States. Articles XI, XVI and XVIII of the
Agreement make mention of civilian employees separately from members of
the armed forces of the United States, which is a conclusive indication that
under said Agreement armed forces do not include civilian employees.
Respondent invokes Articles II of the Articles of War of the United States,
which enumerates, among the persons subject to military law, persons
accompanying or serving with the armies of the United States. But this case
should be decided not under the Articles of War, but under the terms of the
Base Agreement between the United States and the Philippines. And not
because a person is subject to military law under the Articles of War does he
become, for that reason alone, a member of the armed forces under the
Base Agreement. And even under the Articles of War, the mere fact that a
civilian employee is in the service of the United States Army does not make
him a member of the armed forces of the United States. Otherwise, it would
have been necessary for said Article to enumerate civilian employees
separately from members of the armed forces of the United States.
Respondent maintains that petitioner has no cause of action because the
Secretary of Justice had not notified the officer holding the petitioner in
custody whether or not the Philippines desired to retain jurisdiction under
Article XXI, paragraph 3, of the Military Base Agreement. It is sufficient to
state in this connection that in cases like the present where the offender is a
civilian employee and not a member of the Unites States armed forces, no
waiver can be made either by the prosecuting attorney of by the Secretary of
Justice, under paragraphs 2 and 4 of Article XIII in connection with paragraph
3 of Article XXI, of the Agreement.
We are, therefore, of the opinion and so hold, that the General Court-Martial
appointed by respondent has no jurisdiction to try petitioner for the offense
allegedly committed by him and, consequently, the judgment rendered by
said court sentencing the petitioner to 15 years' imprisonment is null and void
for lack of jurisdiction.
It is ordered that petitioner be released immediately by respondent without
prejudice to any criminal action which may be instituted in the proper court of
the Philippines.
Let a copy of this decision be sent immediately to the Honorable, Secretary
of Justice.
Paras, Feria, Pablo, Hilado, Bengzon, Briones, Padilla, and Tuason, JJ,
concur.
Separate Opinions
PERFECTO, J., concurring:
One of the attributes of national sovereignty is the power to try and punish
offenses, criminal and otherwise. The exercise of that power is, by virtue of
express provision of our Constitution, vested in the Supreme Court and in
inferior courts established by law. (Sec. 1, Art. VIII) The fundamental law
refers to inferior courts created by an enactment of a national legislature,
Assembly or Congress, not to foreign courts martial, created by foreign
countries.
All this is in accordance with elemental principles of political law.
If petitioner is liable for a criminal offense, according to our laws, the
jurisdiction to try him belongs to a justice of the peace or municipal court or to
a court of first instance.
The jurisdiction can be transferred to other courts by virtue of a law that may
be enacted to said effect. The law, to be effective, must not violate the
constitutional Bill of Rights, among them the guarantee of fair trial in favor of
an accused, the equal protection of the law, the due process of law, the
guarantees against illegal detentions and searches, and others.
Petitioner is a Filipino citizen and a civilian employee of the U. S. Army,
rendering services in the Philippines. He attacks the power of the
Commanding General, Philippine Ryukus Command, U.S. Army, to have him
under military custody and tried by a general court-martial of said army.
Respondent invokes, in opposing the petition, the provisions of the
agreement on military Bases entered into by the Republic of the Philippines
and the government of the United States of America on March 14, 1947.
The agreement appears to be a concession to two weaknesses: the
American distrust in Philippine tribunals and Filipino yielding to much distrust;
on one hand, undisguised prejudice, — national, racial, or otherwise, — on
the other, meek submission to the natural consequences of an unreasonable
prejudice; on one side, the haughtiness of a powerful nation, proud in the
consciousness of its power, on the other, the moral surrender of a new
nation, not yet so sure in the exercise to their fullness of sovereign
prerogatives. Extra-territoriality is wrong per se.
It is, therefore, assailable on two opposing fronts. On constitutional ground, it
is hardly defensible.
The Bill of Rights has been embodied in the Constitution for the protection of
all human beings within the territorial jurisdiction of the Philippines. All
persons covered by the waivers made in the agreement, whether Americans
or Filipinos, whether citizens or aliens, are denied the constitutional
guarantee of the equal protection of the law. Their fundamental rights are
safeguarded by the Constitution, and the agreement places them outside the
Constitution.
Our conclusion is, therefore, that the agreement in question, so far as it
stipulates waiver of the jurisdiction of our courts of justice on the class of
persons mentioned therein, is null and void, being in open conflict with clear
provisions of our fundamental law.
Upon this ground, petitioner is entitled to be released by respondent and by
the court martial which tried him.
Even in the erroneous hypothesis that the waiver clauses of the agreement
are valid, we concur in the reasoning of the Chief Justice in support of the
position that petitioner is not comprehended in said waiver clauses. With
more reason, respondent has no power nor jurisdiction to hold petitioner in
confinement, nor to have him tried by a U.S. army court-martial.
Notice must be served to the whole world that, in rendering the decision in
this case, the Supreme Court, in the fullness of judicial maturity, acted not as
a mere agency of national sovereignty, but in the consciousness that the
administration of justice, more than national, is a human function, untethered
by the narrow provincialism of the points of view of a country, but founded on
the universal and permanent interests of mankind, as expressed in principles
with equal value regardless of the hemisphere of the latitude where a person
may be placed.
There is a suggestion that, because it has not found articulate expression in
this case, it should be ignored, when it is boiling in many minds, and it is that
respondent, shielded by his military power and the overwhelming national
power of his country, may ignore our decision, and we will be powerless to
enforce it. The fact that respondent appeared before us, through counsel,
without any reservation, answers the suggestion, and gives full justice to the
sense of moral values of the respondent.
Besides, in the present state of international affairs, when America is
engaged in the noble task of making a reality the ideal of one world, it can
not compromise its moral leadership by any showing of reckless disregard to
the decision of a court of justice. The cry that there must be one world or
none can receive but one satisfactory answer; the reality of world justice.
Only in justice hinges the salvation of humanity. Only justice can give real
peace and provide the basis for contentment and happiness.
We concur in the decision, ordering the immediate release of the petitioner.
G.R. Nos. L-32921-40 June 10, 1971
ANDRES M. SENERES in his capacity as Collector of Customs for the Port
of Iloilo, GIL B. ARMADA, in his capacity as Acting Deputy Collector of
Customs for the Port of Iloilo, and IRENEO HORTILLOSA, in his capacity as
Wharfinger for the Port of Iloilo, petitioners,
vs.
HON. VICENTE O. FRIAS, in his capacity as Judge of the Court of First
Instance of Iloilo, Branch 11, VICTOR JAVIER and EDUARDO ROQUE,
represented by their Attorney-in-Fact ALBERTO BELARDO, ALFREDO
LOCSIN and MARTHA YUMUL, represented by their Attorney-in-Fact
ELPIDIO APUAN, EFREN MANULAT and FORTUNATO QUITSON,
represented by their Attorney-in-Fact JOSE ARCHANGEL, NORMA LOPEZ
and ANTONIO HIDALGO represented by their Attorney-in-Fact VICENTE
CARO, DANIEL, DOMINGO and GILDA DULALIA, represented by their
Attorney-in-Fact ROBERTO SALAPANTAN, EDGAR LAZO and GREGORIO
LANTIN, represented by their Attorney-in-Fact RICARDO CORDERO,
IRENE WAGAN and OSCAR VITO, represented by their Attorney-in-Fact,
RENATO NABLE, SIMEON MONTELINO and WILLIAM TAN, represented
by their Attorney-in-Fact RUSTICO AGUSTIN, YOLANDO SINGSON and
QUINTIN JAVELLANO, represented by their Attorney-in-Fact MANUEL
PALACIO, JOAQUIN RODRIGUEZ and JUAN REYES, represented by their
Attorney-in-Fact ROMEO BAUTISTA, GREGORIA SANTIAGO and
FRANCISCA SINGSON, represented by their Attorney-in-Fact EDMUNDU
GUMARU, ROBERTO ROMELDAN and LUIS ORTIGA, represented by their
Attorney-in-Fact VICTOR AVISO, MANUEL INFANTE and PEDRO
BUENVIAJE, represented by their Attorney-in-Fact RUBEN SEQUITIN,
TONY VELILIA and HERNANI GARCIA, represented by their Attorney-in-
Fact MANUEL LINSANGAN, JUANA SANTOS and PABLO CASTILLO,
represented by their Attorney-in-Fact AUSBERTO ROSALES, LUISA
PERALOSA and QUINTIN JAVELLANO, represented by their Attorney-in-
Fact JOSE JACINTO, ROMEO SOMERA and PAUL FERMIN, represented
by their Attorney-in-Fact TOMAS CANTOS, BENJAMIN ISIDRO and
CARLOTA VELOSO represented by their Attorney-in-Fact EDUARDO
RAMILA, NORBERTO USON and Jose CLEMENTE, represented by their
Attorney-in-Fact CAYETANO DIMACALE, and TEODORO ENRIQUE and
ZOSIMO QUIAMRAO, represented by their Attorney-in-Fact AGUSTIN
REVILLA, respondents.
Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General
Crispin V. Bautista and Solicitor Pedro A. Ramirez for petitioners.
Romeo F. Zamora for private respondents.
TEEHANKEE, J.:
Original action of certiorari and prohibition challenging the jurisdiction of
respondent judge of the Court of First Instance of Iloilo to take cognizance of
twenty separate petitions for mandamus with preliminary mandatory
injunction filed by private respondents and to issue orders for the release
from customs custody of forty crates of imported articles described to be
used sheet containers and used sample wood panels and other similar
articles but reported upon customs examination to be parts of slot and
jackpot machines.
The twenty pairs of respondents, totalling forty of them all with given
addresses at Manila, Quezon City and Rizal, are concededly the consignees
of the forty crates which arrived at the port of Manila on board the M/S
"Tagaytay" and were trans-shipped to the port of Iloilo arriving there on
November 5, 1970 on board the M/B "Don Camilo".
Claiming that petitioners customs authorities of Iloilo had refused to act on
the informal entries filed for the release of the forty crates, without requiring
them either to submit additional documents but refusing to accept payment of
the taxes, duties and other charges allegedly due on the shipments and
without instituting seizure proceedings against the shipments, the forty
respondents, through their respective designed attorney-in-fact (twenty of
them representing the twenty pairs of consignees, at one crate per
consignee)filed on December 10, 1970, through common counsel, Atty.
Romeo F. Zamora,1 the twenty separate petitions for mandamus with
respondent court.2 Respondents allegedly uniformly in their petitions that
they had been opened, examined and inventoried by the customs authorities
without due notice to them and were found to contain parts of slot machines,
which are of prohibited importation under section 102 submitting to
respondent court for "judicial interpretation" the proposition that the cited
provision "does not prohibit parts only thereof, but only those complete and
assembled units so that the same can be utilized for gambling purposes,
which the law prohibits."
Respondents prayed respondent judge for the immediate issuance of a
preliminary mandatory injunction for the release under bond of the shipments
alleging that otherwise "upon notice to respondent [collector] of instant
petition, the respondent [collector] will immediately institute seizure
proceedings over subject shipments thereby divesting and/or abeitting (sic)
this Court from acquiring jurisdiction over the subject matter and making the
petition at bar academic and moot to the irreparable and great damage of
your petitioners." Respondents, without any appraisal of the collector or his
examiners, unilaterally computed by themselves the specific amounts
allegedly due by way of "total lawful taxes, duties and other charges due on
the shipments" and prayed respondent judge to issue a writ of mandamus
"commanding the respondent (collector] to accept (their) payment" therefor.
Late in the afternoon of December 11, 1970, without summons having been
issued by respondent court, respondents' counsel served upon petitioner
deputy collector Armada a notice addressed to petitioner collector Seneres
that he would submit his petitions for preliminary mandatory injunction for the
respondent court's resolution at 8:30 a.m., the next day, December 12, 1970.
Armada refused to receive the notice since it was address to the collector
who was in Manila on official business and since no court summons had
been issued in the said cases as to place him under the jurisdiction of
respondent court.3
On December 12, 1970, respondent judge nevertheless issued ex-parte his
order of the same date granting the writs of preliminary mandatory injunction
prayed for by the forty respondents in the twenty cases below, upon the filing
of bonds amounting to double the amounts unilaterally computed by
respondents as the amounts of taxes, duties and charges payable by them,4
and directing the release unto petitioners of the questioned articles.
Respondent judge premised his ex-parte mandatory injunction order inter alia
"that said provision (sec. 102 [e] of the Tariff and Customs Code) relied upon
by the respondent does not prohibit importation of parts thereof but only
those complete and assembled units, thereby requiring the interpretation of
the same which is a proper function of this Court; that it is the sense of this
Court that the instant importation does not fall as a prohibited importation
within the purview of the provisions of law aforequoted as they are merely
spare parts and not machines and not jackpot machines and pinball
machines or similar contrivances that the petitioners have established their
clear legal right to claim the subject shipment ...; that respondent's
unwarranted and unjust refusal to act on the corresponding entry without
instituting any seizure proceedings against subject shipments and in not
allowing the petitioners to pay the lawful taxes due thereon, thereby
hindering the ultimate release of said shipment to the petitioners has caused
great and irreparable damage and injury to the herein petitioners ...".
The required bonds were filed on the same day, December 12, 1970, and the
order and writ of preliminary mandatory injunction were served in the
afternoon of the same day on petitioner wharfinger Hortillosa. It was also on
the same day, December 12, 1970, only that respondent judge issued his
order of the same date finding "the instant petitions for mandamus ...
sufficient in form and substance" and requiring petitioner collector Senares
as therein respondent to answer the petition within ten days.5
Petitioner collector filed on December 14, 1970 at urgent motion to dissolve
the writ of preliminary mandatory injunction for the release of the slot
machine parts, on the ground, inter alia of respondent court's lack of
jurisdiction over the subject matter, respondents' lack of cause of action, the
grave and irreparable damage that would be caused to the Government and
grave abuse of discretion and violation of the Rules in the issuance of the
writ.6 Petitioner movant attached to the petition the very letter of December
4, 1970 of Eduardo Ramila as representative of the forty respondents-
consignees asking for a 10-day extension at least to file entries for the forty
shipments on the ground that the complete shipping documents are not, as
yet received for complete not presently known to the above consignees"7
and informed respondent judge that as of then, respondents had not yet filed
the necessary documents but had nevertheless filed their premature petitions
with the court for mandamus to order the release of the articles.
Respondent judge denied dissolution of his mandatory injunction per his
order of December 15, 1970, summarily disregarding the statutes and
jurisprudence cited by petitioner and peremptorily ruling that "(T)here can
hardly be any question that since the nature of the cause of action in this
proceedings is mandamus, this Court is vested with jurisdiction to entertain
the same more so because the cause involves a justiciable controversy
between the parties in the interpretation of a provision of the Tariff and
Customs Code of the Philippines (Sec. 102, par. 'e'), which calls for the
exercise of the interpretative power of the Court."8
On the next day, December 16, 1970, respondent filed an urgent motion to
cite petitioner Armada and Hortillosa for contempt and to authorize the sheriff
to break open the bodega under the custody of wharfinger Hortillosa to effect
release of the forty crates.
Respondent judge overruled petitioners' opposition per his order of
December 17, 1970, took the wharfinger's manifestation that he could not
release the articles pursuant to the mandatory writ except after proper
identification of respondent-consignees and completion of the documents
necessary and requirements of all importers for release from customs of
articles imported into the country as "a deliberate move to delay if not render
the writ ineffective" and ordered wharfinger Hortillosa "to open the customs
bodega, release and deliver the subject articles to the Provincial Sheriff of
Iloilo or his authorized deputy, and in the event of the failure and/or refusal of
the former, the Provincial Sheriff or his Deputy is hereby authorized, as
prayed for, to break open the padlock of the bodega where subject goods are
contained for him to effect delivery to the petitioners herein." 9 Respondent
judge further set the contempt hearing for December 23, 1970 at 8:30 a.m.
Hence, the present action. The Court per its resolution of December 28, 1970
required respondents to answer the petition and issued a writ of preliminary
injunction enjoining the enforcement of respondent judge's orders and writ of
mandatory injunction and restraining respondent judge from taking any
further cognizance of the twenty cases before him.
1. It is the settled law and jurisprudence in this jurisdiction that the
customs authorities acquire exclusive jurisdiction over goods sought to be
imported into the Philippines, for the purpose of enforcement of Philippine
customs laws, from the moment the goods are actually under their
possession and control, even if no warrant for seizure or detention thereof
has previously been issued by the port collector of customs. The port
collector is called upon to "cause all such articles to be appraised and
classified, and shall assess and collect the duties, taxes and other charges
thereon, and shall hold possession of all imported articles upon which duties,
taxes, and other charges have not been paid or secured to be, paid
disposing of the same accordingly to law." 10 When the goods are
challenged as being of prohibited importation and the collector questions the
legality of the importation, as in the case of the jackpot machine parts at bar,
the law expressly imposes upon the collector the obligation "to exercise such
jurisdiction in respect thereto us will prevent importation". 11
The collector's decision may be appealed to the commissioner of customs,
whose decision, inter alia, in cases involving seizure, detention or release of
property affected, may in turn be reviewed only by the Court of Tax Appeals
under the exclusive appellate jurisdiction conferred on said court under
section 7 of Republic Act 1125. 12
2. Respondent court manifestly had no jurisdiction to interfere with the
Iloilo port customs authorities' custody over the forty crates of alleged slot
machine and jackpot machine parts sought to be imported under
respondents' misdeclaration of their being merely used sheet and metal
containers and panels, much less to order their forcible release
notwithstanding their entry not yet having been covered by the required entry
documents nor the collector having directed their appraisal, since he was
preparing seizure and forfeiture proceedings against the forty crates for being
of prohibited importation and unmanifested in violation of section 2530 (f) and
(g) of the Tariff and Customs Code and Central Bank Circular No. 265. In
fact, the collector did issue the corresponding warrant of seizure and
detention under date of December 17, 1970 13 and notices dated January
27, 1971 were sent in Seizure, identification Case No. 13-70 14 advising
respondents of the hearings to be held on February 15 to 17, 1971 by the
collector's hearing officer for the forfeiture of the forty crates. 15
As held by the Court in the 1966 leading case of Pacis vs. Averia 16 —
where the Court emphasized the need of the cooperation of all branches of
the Government for the success of the law enforcement agencies in curbing
smuggling — by virtue of the enactment of the Tariff and Customs Code
(Rep. Act 1937) as well as the Court of Tax Appeals Law (Rep. Act 1125),
"on grounds of public policy, it is more reasonable to conclude that the
legislators intended to divest the Court of First Instance of the prerogative to
replevin a property which is a subject of a seizure and forfeiture proceedings
for violation of the Tariff and Customs Code. Otherwise, actions for forfeiture
of property violation of Customs laws could easily be undetermined by the
simple device of replevin.
Furthermore, Section 2303 of the Tariff and Customs Code requires the
Collector of Customs to give to the owner of the property sought to be
forfeited written notice of the seizure and to give him the opportunity to be
heard in his defense. This provision clearly indicates the intension of the law
to confine in the Bureau of Customs the determination of all questions
affecting the disposal of property proceeded against in a seizure and
forfeiture case. The judicial recourse of the property owner is not in the Court
of First Instance but in the Court of Tax Appeals, and only after exhausting
administrative remedies in the Bureau of Customs. 17
3. In the early 1967 case of Commissioner of Customs vs. Cloribel, 18
respondent judge's fallacious concepts that his court may assume and
exercise jurisdiction in mandamus cases involving the exercise of its
"interpretative power" over disputed provisions of the Tariff and Customs
Code were long laid to rest. The Court, in no uncertain terms, there pointed
out that in cases of illegal importation, as in the case at bar, the
Commissioner of Customs must first review the collector's ruling and "by a
formal decision" rule on the legality of the importation. It is only after a
decision adverse to the importer is rendered that the importer may then
"summon the aid of the corresponding court." But such disposition of the
customs commissioner, the Court stressed, will not come under the court of
first instance on appeal. Such appeal shall be addressed to the court of tax
appeals. Because, at bottom, the problem is: Was the importation authorized
by law?"
The Court then cited the early 1955 jurisprudence 19 that "... Section 7 of
Republic Act No. 1125 has taken away the power of courts of first instance to
review the actuations of the customs authorities in a case involving seizure,
detention or release of property, or other matters arising under the Customs
Law or other law administered by the Bureau of Customs. And this,
notwithstanding the fact that complaints may be styled 'mandamus',
'prohibition' and 'certiorari.' For, in reality these are but expression in varying
forms of a petition to review the actuations of the customs authorities.
Expressive of the rule is opinion in the Millarez case, viz:
"Republic Act No. 1125, section 7, effective June 16, 1954 gave the Court of
Tax Appeals decisions of the Commissioner of Customs, involving "seizure,
detention or release of property affected ... or other matters arising under the
Customs Law other law administered by the Bureau of Customs." In our
provision necessarily has taken away the power of the Manila court of first
instance to "review" decisions of the Customs authorities, "in any case of
seizure" — as in this case — under section 1383 et seq. of the Revised
Administrative Code."
It matters not that no seizure proceedings were had. Section 7 of the charter
of the Court of Tax Appeals does not limit the appellate jurisdiction of said
court of seizure proceedings. The law employs the term "seizure, detention
or release."
4. Papa vs. Mago 20 reiterated the doctrine of the lack of jurisdiction of
the regular courts of first instance over customs authorities in the
enforcement of customs laws, thus: "It is the settled rule, therefore, that the
Bureau of Customs acquires exclusive jurisdiction over imported goods, for
the purpose of enforcement of the customs laws, from the moment the goods
are actually in its possession or control even if no warrant of seizure or
detention had previously been issued by the Collector of Customs in
connection with seizure and forfeiture proceedings."
In the recent case of Ponce Enrile vs. Vinuya, 21 re affirming anew the
settled doctrine of Papa and Pacis vs. Averia, supra, the Court, per Mr.
Justice Fernando, emphasized a new that the regular courts of first instance
are "devoid of jurisdiction" to issue replevin or release orders for goods under
customs custody: "(R)espondents, however, notwithstanding the compelling
force of the above doctrines, would assert that respondent Judge could
entertain the replevin suit as the seizure is illegal, allegedly because the
warrant issued is invalid and the seizing officer likewise was devoid of
authority. This is to lose sight of the distinction, as earlier made mention of,
between the existence of the power and the regularity of the proceeding
taken under it. The governmental agency concerned, the Bureau of Customs,
is vested with exclusive authority. Even if it be assumed that in the exercise
of such exclusive competence a taint of illegality may be correctly imputed,
the most that can be said is than under certain circumstances the grave
abuse of discretion conferred may oust it of such jurisdiction. It does not
mean however that correspondingly a court of first instance is vested with
competence when clearly in the light of the above decisions the law has not
seen fit to do so. The proceeding before the Collector of Customs is not final.
An appeal lies to the Commissioner of Customs and thereafter to the Court of
Tax Appeals. It may even reach this Court through the appropriate petition
for review. The proper ventilation of the legal issues raised is thus indicated.
Certainly a court of first instance is not therein included. It is devoid of
jurisdiction.
5. The doctrine was last reaffirmed anew in Luna vs. Pacis, 22 where
the Court, per Mr. Justice Zaldivar, affirmed the court of first instance's 1964
order dismissing and disclaiming jurisdiction over a mandamus action
instituted by therein appellant to seek release of forfeited property from the
Manila customs authorities, in the settled doctrine of the 1955 case of
Millarez, maintaining the exclusive appellate jurisdiction of the Court of Tax
Appeals over decisions of the customs commissioner, as subsequently
reiterated by the Court in a long line of decisions 23 and from which the
Court has found no plausible reason to depart.
6. Indeed, prescinding from the patent lack of jurisdiction of respondent
court over the mandamus cases filed in the court below, the Court finds that
respondent judge proceeded in gross disregard of the Rules of Court in
hearing the petitions on December 12, 1970 and peremptorily issuing on the
same date his mandatory order and writ for the release upon bond of the
forty crates, even before he had found, as required by the Rules 24 the
petitions to be sufficient in form and substance, and caused the issuance of
summons to petitioner collector (as respondent therein). Petitioner deputy
collector Armada was wholly justified in refusing to receive on the preceding
afternoon respondents' counsel's notice the petitioner collector that he would
submit the next morning to respondent judge his "urgent" petitions for
preliminary mandatory injunction, since no summons had then as yet been
issued to said petitioner as to place him under the respondent court's
jurisdiction and respondents' counsel had no authority whatsoever under the
Rules to serve any binding notice with regard to his petitions, which had not
yet been given due course by respondent court, such as to respondent court.
7. Respondent judge likewise appears to have cast aside the basic
postulates governing the issuance of preliminary mandatory injunction
orders, as restated by Mr. Justice Sanchez for the Court in Cloribel, 25
supra: "(B)y Section 1, Rule 58, 1964 Rules of Court, it is now expressly
provided — though — already long generally recognized that a court, at any
stage of an action prior to final judgment, may 'require the performance of a
particular act, in which case it shall be known as a preliminary mandatory
injunction.' But, stock must be taken of the truism that, like preventive
injunctions, it is but a provisional remedy to which parties may resort 'for the
preservation or protection of their rights or interests, and for no other
purpose, during the pendency of the principal action.' More than this, as a
mandatory injunction usually tends to do more than to maintain the status
quo, it is generally improper to issue such an injunction prior to the final
hearing. Per contra it may issue 'in cases of extreme urgency; where the
right is clear; where considerations of relative inconvenience bear strongly in
complainant's favor; where there is a willful and unlawful invasion of plaintiff's
right against his protest and remonstrance, the injury being a continuing
relation where the effect of the mandatory injunction is rather to reestablish
and maintain a preexisting continuing relation between the parties, recently
and arbitrarily interrupted by the defendant, than to establish a new relation.'
Indeed 'the writ should not be denied the complainant when he makes out a
clear case, free from doubt and dispute.'"
In the case at bar, respondent judge's mandatory writ obviously was not
designed to maintain the status quo. Neither had respondents made out "a
clear case free from doubt and dispute." To paraphrase Cloribel, the most
convincing argument, of course, is that to enforce respondent judge's writ for
the release of the forty crates of slot and jackpot machine parts, would have
been practically to decide the in favor of respondents. In just one ex-parte
hearing and without any evidence of his having reflected on his court's lack
of jurisdiction over the subject-matter, respondent judge had indeed
prejudged the petitions before him and already expressed his itself in his
order of December 12, 1970 that the importation of the forty crates were not
of prohibited importation and could not be deemed covered by Section 102
(e) of the customs code, "as they are merely spare parts and not machines
and not jackpot machines and pinball machines or similar contrivances." As
in the case of Cloribel, "to proceed with the case below on the merits would
then be a useless ceremony" because respondents would have been already
what they wanted in their suits below, i.e. release of the forty crates, and the
government would have lost its lawful hold on he controverted shipments of
slot machine parts and "literally shall have been left `holding the bag'". The
questioned illegal articles would then have been release from customs,
despite the Tariff and Customs Code's prohibition, by virtue of respondent
judge's orders peremptorily and hastily issued without jurisdiction, and would
have been quickly disposed of by respondents-consignees, presumably at
great profit to service the various illegal jackpot machines in the country or to
be assembled as complete units — and no subsequent corrective order of
any court would have availed to recover the articles and bring them back to
the custody of the customs authorities, for forfeiture and eventual destruction,
if ultimately ruled by proper competent authorities to be of prohibited
importation.
8. The government attorneys thus appear to have valid ground for
complaining of respondent judge's orders of December 12, 15 and 17, 1970,
having been precipitously granted, to the extent of authorizing the destruction
of the customs warehouse padlock to enable respondents to forcibly realize
"their scheme to obtain possession of the imported articles" before this Court
could act on the petition filed on December 21, 1970, expecting that the
Court could not hold sessions until after the long Christmas holidays and thus
render moot and academic the petition with its prayer for a restraining order
against enforcement of the challenged orders, with grave and irreparable
damage to the public interest. 26
Respondent judge, notwithstanding his attention having been timely called,
by petitioners in their urgent motion to December 14, 1970 for dissolution of
the mandatory injunction, to the settled law and jurisprudence on his court's
lack of jurisdiction and this Court's admonition against the precipitous
issuance of injunctive writs, appears to have failed to pay due heed thereto.
Mr. Justice Reyes' injunction for the Court in Palanan Lumber & Plywood,
Inc. vs. Arranz 27 is apropos: "(I)t is not amiss to recall here that time and
again this Court has had occasion to deplore the read of some judges to
grant and issue injunctions ex parte against acts of public functionaries,
ignoring the presumption of regularity and validity of official actuations, in
disregard of the deference and courtesy due to a coordinate branch of the
government, and with no other guide than the far from impartial assertions in
pleadings of interested parties, which a summary hearing would have shown
to be either dubious or unfounded. The result has been that authority too
often, the public interest has been prejudiced through unnecessary delays. It
bears repeating here that preliminary injunctions remain extraordinary
remedies that should be dispensed with circumspection, and that both sides
should be first heard whenever possible."
9. Finally, per its resolution of March 18, 1971, the Court required
counsel for respondents, Atty. Zamora, "considering the fact of record that all
the shipments were consigned to the port of Iloilo while all the consignees
are residents of Manila, Quezon City and Rizal, to submit with his
memorandum the name(s) of the person or persons who employed him as
well as copies of any written contracts for his legal services executed by him
with the twenty pairs of respondents and/or with their respective attorneys-in-
fact." In his compliance dated April 12, 1971, Atty. Zamora manifested that
"his legal services (sic) for said cases was verbally engaged first by
respondents' attorneys-in fact Messrs. Alberto Belardo, Ricardo Cordero,
Renato Nable, Romeo Bautista and Agustin Revilla for the respective
shipments of consignees-respondents that they represent. Subsequently, the
other above-named attorneys-in-fact followed in verbally employing my
professional services, likewise, for respective consignees-respondents that
they represent. Hence, being the attorney of record of the above-named
respondents whose respective shipments are similarly situated, I deemed it
wise to file similar or identical petition with the court below (respondent
court)."
The Court is intrigued by the fact of record that 40 individuals — private
respondents — all with given addresses in Manila, Quezon City and Rizal
would be the consignee each of a crate of 40 shipments apparently
misdeclared as used metal containers and other articles of similar nature but
actually consisting of slot or jackpot machine parts; that the entire forty crates
would he shipped on the same vessel from Singapore for Manila with
instructions to trans-ship to the port of Iloilo; and that said forty respondents
"consignees" have apparently not acted on their own account but through
designated attorneys-in-fact duly authorized to clear their shipments as well
as to engage verbally the services of common counsel for the pure the Court
therefore directs the Solicitor-General to investigate the matter further with
the assistance of the appropriate governmental investigative agency and to
ascertain the true facts of the transaction, and the identity and participation of
private respondents and their attorneys-in-fact, as well as the full facts of how
they came to engage the services of their common counsel, Atty. Zamora,
and to inform the Court in due course of the results of such investigation and
the appropriate action taken thereon, if any.
ACCORDINGLY, the writs of prohibition and certiorari prayed for are granted,
respondent court being clearly without jurisdiction over the subject of Civil
Cases Nos. 8449 to 8468 filed before it, which cases respondent judge is
hereby ordered to dismiss. The order and writ of preliminary mandatory
injunction of December 12, 1970, as well as the other orders of December
15, 1970 and December 17, 1970 (Annexes C, C-1, G and J, petition) issued
by respondent judge are declared null and void, and the writ of preliminary
injunction herefore issued by this Court is made permanent. With costs
against private respondents.
The Clerk of Court is directed to furnish copy of this decision to the
Honorable, the Secretary of Justice, particularly with reference to the matters
dealt with in paragraphs 6 to 8 thereof. He is likewise directed to furnish copy
hereof to the Honorable, the Solicitor General, with particular reference to the
matters dealt with in paragraph 9 thereof.
So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando,
Barredo, Villamor and Makasiar, JJ., concur.
Castro, J., is on leave.
Footnotes
1 With address at 15-C Road 6, Project 6, Quezon City (his former
address as given to respondent court was Rm. 706, Katigbak Bldg., Manila)
2 Docketed as Civil Cases Nos. 8449 to 8468 of respondent court.
3 Annex E-3, Petition.
4 Annex C. Petition. The bonds fixed by respondent judge ranged from
P900.00 to P3,000.00 per case (each case covering two crates and totalled
P35,900.00 for all twenty cases.
"(2) Decisions of the Commissioner of Customs in cases involving liability for
customs duties, fees or other money charges; seizure, detention or release
of property affected fines forfeitures or other penalties imposed in thereto; or
other matters arising under the customs Law or part of law administered by
the Bureau of Customs.
13 Respondents memorandum, p. 9.
14 Entitled "Republic of the Philippines Forty (40) crates jackpot
machine parts which arrived at the port of Iloilo on November 5, 1970."

5 Annex D, Petition. 15 Respondents' memorandum, 7 and Annex "1".

6 Annexes E, E-1 to E-3, Petition. 16 18 SCRA 907 (Nov. 29, 1966).

7 Annex E-1. Petition. 17 Emphasis supplied.

8 Annex G, Petition. 18 19 SCRA 234 (Jan. 31, 1967).

9 Annex J. Petition. 20 Millarez etc. vs. Amparo, 97 Phil. 282 June 30, 1955), emphasis
furnished.
10 Sec. 1206, Tariff and Customs Code (Rep. Act 1937).
20 22 SCRA 857 (Feb. 28, 1968).
11 Sec. 1207, idem. provides: "Jurisdiction of Collector over articles of
prohibited importation. — Where articles are of prohibited importation or 21 37 SCRA 381 (Jan. 30, 1971), cited in Lopez vs. Comm. of Customs,
subject to importation only upon conditions prescribed by law it shall be the 37 SCRA 327 (Jan. 30, 1971).
duty of the Collector to exercise such jurisdiction in respect thereto as will
prevent importation or otherwise secure compliance with all legal 22 L-24237, Mar. 31, 1971.
requirements.
23 Citing "Southwest Agricultural Marketing Corp. vs. Secretary of
12 Its pertinent provision: Finance, G.R. No. L-24797, October 8, 1968, citing: NAMARCO v.
Macadaeg, 98 Phil. 185, 190; Sampaguita Shoe & Slipper Factory v. Comm.
"Jurisdiction. — The Court of Tax Appeals shall exist appellate jurisdiction to of Customs, 102 Phil. 850; Pepsi Cola Bottling Co. v. Manahan, L-12096,
review by appeal as herein provided — April 30, 1959, 105 Phil. 1299, 1300; Acting Collector of Customs v. De la
Rama Steamship,
xxx xxx xxx L-20676, Feb. 26, 1965, (13 SCRA 298); Auyong Hian v. Court of Tax
Appeals, L-25181, Jan. 11, 1967, (19 SCRA 10); De Joya v. Lantin, L-24037,
April 27, 1967, (19 SCRA 893); Acting Collector of Customs v. Caluag, L-
23925, May 24, 1967, (20 SCRA 204), Romualdez v. Arca, L-20516, Nov. information in Criminal Case No. 6398 for violation of P.D. No. 772
15, 1967, (21 SCRA 856)." (penalizing squatting and similar acts), as well as the Order dated May 31,
1976, denying petitioner's motion for reconsideration.
24 Rule 65, sec. 6; see 3 Moran's Rules 1970 Ed. 203.
Private respondents were charged in the court a quo, then presided over by
25 See also Namareo vs. Cloribel, 22 SCRA 1033 (Mar. 13, 1968). respondent Judge with violation of P.D. No. 772 which penalizes squatting in
an information which reads:
26 Petitioner's Ex-parte Motion to Resolve Motion for Issuance of Writ of
Preliminary Injunction or for Issuance of Restraining Order, dated Dec. 28, That on or about the 2nd week of October, 1975 and for sometime
1970, Rollo, p. 136. subsequent thereto at Bo. Bagongbayan, Puerto Princess City, Philippines,
and within the jurisdiction of this Honorable Court, the said accused,
27 22 SCRA 1186 (Mar. 20, 1968). conspiring and confederating together and mutually helping one another and
taking advantage of the absence and/or tolerance of the landowner, did then
28 Citing "Suarez" vs. Hon. Andres Reyes, et al., L-19828, Feb. 28, and there wilfully, unlawfully and feloniously occupy and build a house on the
1963; Commissioner of Immigration vs. Hon. Gaudencio Cloribel, et al., L- land owned by Felix Yara for residential and/or commercial purpose and
23838, Dec. 28, 1964; The Chief of the Philippine Constabulary vs. The refuses (sic) to vacate said land despite repeated demands to vacate made
Judge of the Court of First Instance of Rizal, L-22308, L-22343, March 31, by Felix Yara, which act is a violation of Presidential Decree No. 772. (Annex
1964; Hon. Martiniano P. Vivo v. Hon. Gaudencio Cloribel, G.R. No. L-23239, 'A' to the Petition for Review, p. 11, Rollo).
Nov. 23, 1966; Vda. de Villanueva vs. Ortiz, No. L-11412, May 28, 1958; and
Coloso vs. Board of Accountancy, L-5750, April 20, 1953 and the cases cited The case was docketed as Criminal Case No. 6398 of the court a quo.
therein."
Upon a motion to quash filed by private respondents, alleging that the facts
G.R. No. L-44095 April 24, 1989 charged do not constitute an offense, respondent Judge dismissed the case
in an Order dated May 17, 1976. In dismissing the information, respondent
PEOPLE OF THE PHILIPPINES, petitioner, Judge opined:
vs.
HON. OSCAR P. SIAT AGUSTIN VIGONTE and EDGARDO MAGBANUA, From the purpose clause of Presidential Decree No. 772 it is very evident
respondents. that what is penalized are acts of squatting only in urban communities and
not just any community. In the absence therefore of a recital in the
The Solicitor General for petitioner. information that Barrio Bagongbayan, Puerto Princess City where the
squatting was allegedly committed is an urban community, the court is of the
Teotimo P. Timones for private respondents. opinion and so holds that the facts charged do not constitute an offense.
(Annex 'F' to Petition for Review, p. 25, Rollo).

BIDIN, J.: The prosecution moved for reconsideration of the said Order, but was denied
in the Order dated May 31, 1976.
This is a petition for review on certiorari seeking to set aside the Order dated
May 17, 1976 of the then City Court of Puerto Princess City, dismissing the Hence, this petition.

The petition is premised on the sole assignment of error, to wit:
THE LOWER COURT ERRED IN NOT HOLDING THAT PRESIDENTIAL
DECREE NO. 772 PENALIZES SQUATTING IN BOTH URBAN AND
RURAL COMMUNITIES.
Section 1 P.D. 772 provides, as follows:
SECTION 1. Any person who, with the use of force, intimidation or threat,
or taking advantage of the absence or tolerance of the landowner, succeeds
in occupying or possessing the property of the latter against his will for
residential, commercial or any other purposes, shall be punished by an
imprisonment ranging from six months to one year or a fine of not less than
that one thousand nor more than five thousand pesos at the discretion of the
court, with subsidiary imprisonment in case of insolvency. (2nd paragraph is
omitted).
The question as to which community or communities P.D. 772 applies has
long been resolved by this Court in People vs. Echaves, 95 SCRA 663
(1980) where it was held:
We hold that the lower court correctly ruled that the decree does not apply to
pasture lands because its preamble shows that it was intended to apply to
squatting in urban communities or more particularly to illegal constructions in
squatter areas made by well - to - do individuals. The squatting complained
of involves pasture lands in rural areas.
The aforesaid ruling was restated in Bernardo vs. People, 123 SCRA 365
(1983) as follows:
The intent of the decree (referring to P.D. No. 772) is unmistakable. It is
intended to apply only to urban communities, particularly to illegal
constructions.
The unmistakable intent of P.D. No. 772 may be gleaned from its preamble,
thus:
WHEREAS, it came to my knowledge that despite the issuance of Letter of
Instruction No. 19 dated October 2, 1972, directing the Secretaries of
National Defense, Public Works and Communications, Social Welfare and
the Director of Public Works, the PHHC General Manager, the Presidential
Assistant on Housing and Rehabilitation Agency, Governors, City and
Municipal Mayors, and City and District Engineers, to remove all illegal
constructions including buildings on and along esteros and river banks, those
along railroad tracks and those built without permits on public and private
property,' squatting is still a major problem in urban communities all over the
country;
WHEREAS, many persons or entities found to have been unlawfully
occupying public and private lands belong to the affluent class;
WHEREAS, there is a need to further intensify the government's drive
against this illegal and nefarious practice. (Emphasis supplied).
Considering that PD 772 applies only to urban communities and the
information filed in the case at bar does not allege that barrio Bagongbayan,
Puerto Princesa City where the squatting was allegedly committed is an
urban community, the respondent Judge did not commit any reversible error
in holding that the facts charged do not constitute an offense.
ACCORDINGLY, the petition is Dismissed and the orders of the court a quo
dated May 17 and 31, 1976 are Affirmed. No costs.
SO ORDERED,
Fernan, C.J., Gutierrez, Jr., Feliciano and Cortes, JJ., concur.
[G.R. No. 100210. April 1, 1998]
THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. OSCAR B.
PIMENTEL, as Judge, RTC of Makati, Metro Manila, Branch 148 and
ANTONIO A. TUJAN, respondents.
DECISION
MARTINEZ, J.:
Is the Court of Appeals, in affirming the order of the Regional Trial Court,
correct in ruling that Subversion is the main offense in a charge of Illegal
Possession of Firearm and Ammunition in Furtherance of Subversion under
P.D. No. 1866, as amended, and that, therefore, the said charge should be
quashed in view of a previous charge of Subversion under R.A. No. 1700, as
amended by P.D. No. 885, against the same accused pending in another
court?
Stated differently, is the accused charged with the same offense in both
cases, which would justify the dismissal of the second charge on the ground
of double jeopardy?
This is the pith issue presented before us in this appeal by certiorari
interposed by the People under Rule 45 of the Revised Rules of Court,
seeking a review of the decision[1] of the Court of Appeals (Sixteenth
Division) dated May 27, 1991, in CA-G.R. SP No. 24273, entitled THE
PEOPLE OF THE PHILIPPINES, Petitioner, versus HON. OSCAR B.
PIMENTEL, as Judge, RTC of Makati, Metro Manila, Branch 148 and
ANTONIO A. TUJAN, Respondents.
The record discloses the following antecedent facts:
As early as 1983, private respondent Antonio Tujan was charged with
Subversion under Republic Act No. 1700 (the Anti-Subversion Law), as
amended, before the Regional Trial Court of Manila (Branch 45), National
Capital Region, docketed as Criminal Case No. 64079.[2] As a consequence
thereof, a warrant for his arrest was issued on July 29, 1983,[3] but it
remained unserved as he could not be found.
Almost seven (7) years thereafter, or on June 5, 1990, Antonio Tujan was
arrested on the basis of the warrant of arrest in the subversion case.[4] When
arrested, an unlicensed .38 caliber special revolver and six (6) rounds of live
ammunition were found in his possession.[5]
Consequently, on June 14, 1990, Antonio Tujan was charged with Illegal
Possession of Firearm and Ammunition in Furtherance of Subversion under
Presidential Decree No. 1866, as amended, before the Regional Trial Court
of Makati (Branch 148), docketed as Criminal Case No. 1789. The
Information reads:
That on or about the 5th day of June, 1990, in the Municipality of Paraaque,
Metro Manila, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, being a member of a communist party of the
Philippines, and its front organization, did then and there willfully, unlawfully
and feloniously have in his possession, control and custody, in furtherance of
or incident to, or in connection with the crime of subversion, a special edition
ARMSCOR PHILS. caliber .38 special revolver with Serial No. 1026387 and
with six (6) live ammunitions, without first securing the necessary license or
permit thereof from competent government authority.[6]
The above Information recommended no bail for Antonio Tujan, which
recommendation was approved by the trial court in an Order dated June 19,
1990.[7] The same order also directed the continued detention of Antonio
Tujan at MIG 15 of the Intelligence Service of the Armed Forces of the
Philippines (ISAFP), Bago Bantay, Quezon City, while his case is pending.
On June 26, 1990, Antonio Tujan, through counsel, filed a motion[8] invoking
his right to a preliminary investigation pursuant to Section 7, Rule 112 of the
Revised Rules of Court and praying that his arraignment be held in abeyance
until the preliminary investigation is terminated.
However, on June 27, 1990, during the hearing of Antonio Tujans motion for
preliminary investigation, his counsel withdrew the motion since he would file
a motion to quash the Information, for which reason counsel requested a
period of twenty (20) days to do so. This was granted by the trial court on
that same day.[9]
On July 16, 1990, Antonio Tujan did file the motion to quash[10] the
Information in Criminal Case No. 1789 on the ground that he has been
previously in jeopardy of being convicted of the offense charged in Criminal
Case No. 64079 (for subversion) of the Regional Trial Court of Manila
(Branch 45). The said ground is based on Sections 3 (h) and 7, Rule 117 of
the 1985 Rules on Criminal Procedure. In support of the motion, Antonio
Tujan contends that common crimes such as illegal possession of firearms
and ammunition should actually be deemed absorbed in subversion,[11]
citing the cases of Misolas vs. Panga, et al. (G. R. No. 83341, January 30,
1990, 181 SCRA 648) and Enrile vs. Salazar, et al. (G. R. No. 92163, June 5,
1990, 186 SCRA 217). Antonio Tujan then avers that the present case is the
twin prosecution of the earlier subversion case and, therefore, he is entitled
to invoke the constitutional protection against double jeopardy.[12]
The petitioner opposed[13] the motion to quash, arguing that Antonio Tujan
does not stand in jeopardy of being convicted a second time because: (a) he
has not even been arraigned in the subversion case, and (b) the offense
charged against him in Criminal Case No. 64079 is for Subversion,
punishable under Republic Act No. 1700; while the present case is for Illegal
Possession of Firearm and Ammunition in Furtherance of Subversion,
punishable under a different law (Presidential Decree No. 1866). Moreover,
petitioner contends that Antonio Tujans reliance on the Misolas and Enrile
cases is misplaced.[14] Tujan merely relies on the dissenting opinions in the
Misolas case. Also, the Enrile case which involved a complex crime of
rebellion with murder is inapplicable to the instant case which is not a
complex offense. Thus, the absorption rule as held applicable in the Enrile
ruling has no room for application in the present case because (illegal)
possession of firearm and ammunition is not a necessary means of
committing the offense of subversion, nor is subversion a necessary means
of committing the crime of illegal possession of firearm and ammunition.[15]
The trial court, in an order dated October 12, 1990, granted the motion to
quash the Information in Criminal Case No. 1789, the dispositive portion of
the order reading:
WHEREFORE, the motion to quash the information is hereby GRANTED, but
only in so far as the accused may be placed in jeopardy or in danger of being
convicted or acquitted of the crime of Subversion and as a consequence the
Information is hereby quashed and the case dismissed without prejudice to
the filing of Illegal Possession of Firearm.
SO ORDERED.[16]
It is best to quote the disquisition of the respondent court in quashing the
information and dismissing the case:
xxxxxxxxx
In other words, the main offense the accused is being charged in this case is
also Subversion considering that the alleged Illegal Possession of the
Firearm and Ammunition is only in furtherance thereof.
Now, subversion being a continuing offense as has been previously held by
the Supreme Court, the fact that the accused has been previously charged of
Subversion before another court before the institution of this instant case is
just a continuing offense of his former charge or that his acts constituting
subversion is a continuation of the acts he committed before.
The court therefore cannot subscribe to the position taken by the prosecution
that this case is very different from the other case and that double jeopardy
will attach in this particular case.
This court agrees with the position taken by the defense that double jeopardy
will attach to the accusation of subversion, punishable now under Republic
Act 1700, as Rule 117 of the Rules of Court particularly Section 1 thereof,
provides:
Time to move to quash- At any time before entering his plea, the accused
may move to quash the complaint or information.(1a)
In other words, there is no necessity that the accused should be arraigned
first before he can move to quash the information. It is before he pleads
which the accused did in this case.
On the other submissions by the prosecution, that the possession of firearms
and ammunitions is not a necessary means of committing the offense of
subversion or vice versa, then if the court follows such argument, there could
be no offense of Illegal Possession of Firearm and Ammunition in furtherance
of Subversion, for even the prosecution admits also that in subversion which
is an offense involving propaganda, counter propaganda, a battle of the
hearts and mind of the people does not need the possession or use of
firearms and ammunitions.
The prosecution even admits and to quote:
The defense of double jeopardy, while unquestionably available to the
accused, had not been clearly shown to be invokable(sic) at this point in
time.
But the rule says otherwise as previously stated as provided for under
Section 1 of Rule 117 of the Rules of Court.
Thus, if ever the accused is caught in possession of a firearm and
ammunition which is separate and distinct from the crime of subversion and
is not a necessary ingredient thereof and the court believed so, the
prosecution will have to file another information as they may wish. The court
therefore has to grant the motion to quash on the aforestated grounds,
subject to Section 5 of Rule 117, considering that the only offense to which
the accused in this case may be placed in jeopardy is Subversion and not
Illegal Possession of Firearms and Ammunitions.
The prosecution may file any information as warranted within ten (10) days
from receipt of this order otherwise the court will order the release of the
accused, unless he is in custody for some other offense.[17] (Emphasis ours)
Petitioners motion for reconsideration[18] was also denied in an order dated
December 28, 1990.[19]
The petitioner elevated the case to the Court of Appeals through a petition for
certiorari, docketed as CA-G.R. SP No. 24273. However, the appellate court
found that the trial court did not commit any grave abuse of discretion
amounting to lack or excess of jurisdiction in quashing the questioned
Information. In dismissing the petition, the appellate court, in its decision
dated May 27, 1991, basically reiterated the aforequoted ruling of the trial
court.
Petitioner now comes to this Court, claiming that: (1) the decision of the
Court of Appeals is not in accord with the law and applicable jurisprudence;
and (2) it was deprived of due process to prosecute and prove its case
against private respondent Antonio Tujan in Criminal Case No. 1789.
We agree with the petitioner.
The Court of Appeals considered as duplicitous the Information for violation
of P.D. No. 1866 filed against private respondent Antonio Tujan. It ruled:
The foregoing information (for Illegal Possession of Firearm and Ammunition
in Furtherance of Subversion) filed before the Makati court shows that the
main case is subversion considering that there is an allegation that the
alleged illegal possession of firearms was made in furtherance of or incident
to, or in connection with the crime of subversion. Also, the information
alleged likewise that the accused is a member of a communist party of the
Philippines and its front organization. Basically, the information refers to the
crime of Subversion qualified by Illegal Possession of Firearms. x x x.[20]
The ruling of the Court of Appeals is erroneous.
Section 1 of Presidential Decree No. 1866, under which Antonio Tujan is
charged in Criminal Case No. 1789 before the Regional Trial Court of Makati
(Branch 148), provides as follows:
Section 1. Unlawful Manufacture, Sales, Acquisition, Disposition or
Possession of Firearms or Ammunition or Instruments Used or Intended to
be Used in the Manufacture of Firearms or Ammunition. The penalty of
reclusion temporal in its maximum period to reclusion perpetua shall be
imposed upon any person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any firearms, part of firearm, ammunition, or machinery,
tool or instrument used or intended to be used in the manufacture of any
firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearms,
the penalty of death shall be imposed.
If the violation of this Section is in furtherance of, or incident to, or in
connection with the crimes of rebellion, insurrection or subversion, the
penalty of death shall be imposed.
The penalty of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed upon the owner, president, manager, director or
other responsible officer of any public or private firm, company, corporation
or entity, who shall willfully or knowingly allow any of the firearms owned by
such firm, company, corporation or entity to be used by any person or
persons found guilty of violating the provisions of the preceding paragraphs.
The penalty of prision mayor shall be imposed upon any person who shall
carry any licensed firearm outside his residence without legal authority
therefor. (Emphasis ours)
The above-quoted provisions of P.D. No. 1866 are plain and simple. Under
the first paragraph of Section 1, the mere possession of an unlicensed
firearm or ammunition is the crime itself which carries the penalty of reclusion
temporal in its maximum period to reclusion perpetua. The third paragraph of
the same Section makes the use of said firearm and ammunition in
furtherance of, or incident to, or in connection with the crimes of rebellion,
insurrection or subversion a circumstance to increase the penalty to death.
Thus, the allegation in the Information in Criminal Case No. 1789 that the
unlicensed firearm found in the possession of Antonio Tujan, a member of
the communist party of the Philippines and its front organization, was used in
furtherance of or incident to, or in connection with the crime of subversion
does not charge him with the separate and distinct crime of Subversion in the
same Information, but simply describes the mode or manner by which the
violation of Section 1 of P.D. No. 1866 was committed[21] so as to qualify the
penalty to death.
There is, therefore, only one offense charged in the questioned information,
that is, the illegal possession of firearm and ammunition, qualified by its
being used in furtherance of subversion.[22] There is nothing in P.D. No.
1866, specifically Section 1 thereof, which decrees categorically or by
implication that the crimes of rebellion, insurrection or subversion are the
very acts that are being penalized. This is clear from the title of the law itself
which boldly indicates the specific acts penalized under it:
CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION,
MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION, OF
FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED IN
THE MANUFACTURE OF FIREARMS, AMMUNITION OR EXPLOSIVES,
AND IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS
THEREOF AND FOR RELEVANT PURPOSES. (Emphasis ours)
On the other hand, the previous subversion charge against Antonio Tujan in
Criminal Case No. 64079, before the Regional Trial Court of Manila (Branch
45), is based on a different law, that is, Republic Act No. 1700, as amended.
Section 3 thereof penalizes any person who knowingly, wilfully and by overt
act affiliates with, becomes or remains a member of a subversive association
or organization x x x. Section 4 of said law further penalizes such member [of
the Communist Party of the Philippines and/or its successor or of any
subversive association] (who) takes up arms against the Government. Thus,
in the present case, private respondent Antonio Tujan could be charged
either under P.D. No. 1866 or R.A. No. 1700,[23] or both.
This leads us to the issue of whether or not private respondent Antonio Tujan
was placed in double jeopardy with the filing of the second Information for
Illegal Possession of Firearm and Ammunition in Furtherance of Subversion.
We rule in the negative.
Article III of the Constitution provides:
Sec. 21. 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. (Emphasis ours)
Complementing the above constitutional provision, Rule 117 of the Revised
Rules of Court states:
SEC. 7. Former conviction or acquittal; double jeopardy. When an accused
has been convicted or acquitted, or the case against him dismissed or
otherwise terminated without his express consent by a court of competent
jurisdiction, upon a valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction and after the accused
had pleaded to the charge, the conviction or acquittal of the accused or the
dismissal of the case shall be a bar to another prosecution for the offense
charged, or for any attempt to commit the same or frustration thereof, or for
any offense which necessarily includes or is necessarily included in the
offense charged in the former complaint or information.
x x x x x x x x x.
The right of an accused against double jeopardy is a matter which he may
raise in a motion to quash to defeat a subsequent prosecution for the same
offense. The pertinent provision of Rule 117 of the Revised Rules of Court
provides:
SEC. 3. Grounds. The accused may move to quash the complaint or
information on any of the following grounds:
xxxxxxxxx
(h) That the accused has been previously convicted or in jeopardy of being
convicted, or acquitted of the offense charged. (2a) (Emphasis ours)
In order that the protection against double jeopardy may inure to the benefit
of an accused, the following requisites must have obtained in the first
criminal action: (a) a valid complaint or information; (b) a competent court; (c)
the defendant had pleaded to the charge;[24] and (d) the defendant was
acquitted, or convicted, or the case against him was dismissed or otherwise
terminated without his express consent.[25]
Suffice it to say that in the present case, private respondents motion to quash
filed in the trial court did not actually raise the issue of double jeopardy
simply because it had not arisen yet. It is noteworthy that the private
respondent has not even been arraigned in the first criminal action for
subversion. Besides, as earlier discussed, the two criminal charges against
private respondent are not of the same offense as required by Section 21,
Article III of the Constitution.
It is clear from the foregoing, that the assailed decision of the Court of
Appeals is not in accordance with the law and jurisprudence and thus should
be reversed.
While we hold that both the subversion charge under R.A. No. 1700, as
amended, and the one for illegal possession of firearm and ammunition in
furtherance of subversion under P.D. No. 1866, as amended, can co-exist,
the subsequent enactment of Republic Act No. 7636 on September 22, 1992,
totally repealing R.A. No. 1700, as amended, has substantially changed the
complexion of the present case, inasmuch as the said repealing law being
favorable to the accused-private respondent, who is not a habitual
delinquent, should be given retroactive effect.[26]
Although this legal effect of R.A. No. 7636 on private-respondents case has
never been raised as an issue by the parties obviously because the said law
came out only several months after the questioned decision of the Court of
Appeals was promulgated and while the present petition is pending with this
Court we should nonetheless fulfill our duty as a court of justice by applying
the law to whomsoever is benefited by it regardless of whether or not the
accused or any party has sought the application of the beneficent provisions
of the repealing law.[27]
That R.A. No. 7636 should apply retroactively to accused-private respondent
is beyond question. The repeal by said law of R.A. No. 1700, as amended,
was categorical, definite and absolute. There was no saving clause in the
repeal. The legislative intent of totally abrogating the old anti-subversion law
is clear. Thus, it would be illogical for the trial courts to try and sentence the
accused-private respondent for an offense that no longer exists.[28]
As early as 1935, we ruled in People vs. Tamayo:[29]
There is no question that at common law and in America a much more
favorable attitude towards the accused exists relative to statutes that have
been repealed than has been adopted here. Our rule is more in conformity
with the Spanish doctrine, but even in Spain, where the offense ceases to be
criminal, prosecution cannot be had. (1 Pacheco Commentaries, 296)
(Emphasis ours)
Where, as here, the repeal of a penal law is total and absolute and the act
which was penalized by a prior law ceases to be criminal under the new law,
the previous offense is obliterated.[30] It is a recognized rule in this
jurisdiction that a total repeal deprives the courts of jurisdiction to try, convict
and sentence persons charged with violation of the old law prior to the
repeal.[31]
With the enactment of R.A. No. 7636, the charge of subversion against the
accused-private respondent has no more legal basis and should be
dismissed.
As regards the other charge of illegal possession of firearm and ammunition,
qualified by subversion, this charge should be amended to simple illegal
possession of firearm and ammunition since, as earlier discussed,
subversion is no longer a crime.
Moreover, the offense of simple illegal possession of firearm and ammunition
is now bailable under Republic Act No. 8294 which was enacted on June 6,
1997. R.A. No. 8294 has amended Presidential Decree No. 1866, as
amended, by eliminating the provision in said P.D. that if the unlicensed
firearm is used in furtherance of subversion, the penalty of death shall be
imposed.[32] Under the new law (R.A. No. 8294), the penalty prescribed for
simple illegal possession of firearm (.38 caliber) is now reduced to prision
correccional in its maximum period and a fine of not less than Fifteen
thousand pesos (P15,000.00).[33] The reduced penalty of imprisonment -
which is four (4) years, two (2) months and one (1) day to six (6) years -
entitles the accused-private respondent to bail. Considering, however, that
the accused-private respondent has been detained since his arrest on June
5, 1990 up to the present (as far as our record has shown), or more than
seven (7) years now, his immediate release is in order. This is so because
even if he were convicted for illegal possession of firearm and ammunition,
the length of his detention while his case is pending has already exceeded
the penalty prescribed by the new law.
WHEREFORE, the assailed decision of the Court of Appeals dated May 27,
1991, in CA-G.R. SP No. 24273, including the orders dated October 12, 1990
and December 28, 1990 of the Regional Trial Court of Makati (Branch 148),
National Capital Region, in Criminal Case No. 1789, are hereby REVERSED
and SET ASIDE.
The subversion charge against accused-private respondent Antonio A. Tujan
in Criminal Case No. 64079 of the Regional Trial Court of Manila, Branch 45,
is hereby DISMISSED.
The other Information for illegal possession of firearm and ammunition in
furtherance of subversion against the same accused in Criminal Case No.
1789 of the Regional Trial Court of Makati, Branch 148, is DEEMED
AMENDED to Simple Illegal Possession of Firearm and Ammunition. The
accused-appellant is hereby ordered RELEASED IMMEDIATELY from
detention for the reason stated above, unless he is being detained for any
other offense.
This decision is IMMEDIATELY EXECUTORY.
No pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza, Panganiban, Quisumbing. and Purisima, JJ., concur.
EN BANC
PROF. RANDOLF S. DAVID, LORENZO TA�ADA III, RONALD LLAMAS,
H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL,
GARY S. MALLARI, ROMEL REGALADO BAGARES,
CHRISTOPHER F.C. BOLASTIG,
Petitioners,
- versus -

GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND
COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO ERMITA,
HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE,
GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF
THE PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF,
PHILIPPINE NATIONAL POLICE,
Respondents.
x-------------------------------------------------x
NI�EZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC.,
Petitioners,
- versus -
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE
DIRECTOR GENERAL ARTURO C. LOMIBAO,
Respondents.
x-------------------------------------------------x
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A.
CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO,
MUJIV S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL.
GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE
R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO,
ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA ANN P.
ROSALES, JOSEL G. VIRADOR, RAFAEL V. MARIANO, GILBERT C.
REMULLA, FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-
BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI
JAVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR
CIVIL LIBERTIES REPRESENTED BY AMADO GAT INCIONG,
Petitioners,
- versus -
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ,
JR., SECRETARY, DND RONALDO V. PUNO, SECRETARY, DILG,
GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF
PNP,
Respondents.
x-------------------------------------------------x
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER
C. LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL
FEDERATION OF LABOR UNIONS � KILUSANG MAYO UNO (NAFLU-
KMU), REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V.
USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P.
DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN,
Petitioners,
 Respondents.

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

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R.

RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL, FELIMON
- versus - C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE, BERNARD
L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR OF THE
PHILIPPINES (IBP),

Petitioners,

- versus -

HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE

HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF
OF STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO
SENGA, AND THE PNP DIRECTOR GENERAL, ARTURO LOMIBAO,
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL
Respondents. GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND
DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP
x-------------------------------------------------x CHIEF,

ALTERNATIVE LAW GROUPS, INC. (ALG), Respondents.

Petitioner, x-------------------------------------------------x

- versus - LOREN B. LEGARDA,

Petitioner,

EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO

SENGA, AND DIRECTOR GENERAL ARTURO LOMIBAO,
- versus -
CORONA,

CARPIO MORALES,

CALLEJO, SR.,
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND
COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS AZCUNA,
DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP);
GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE TINGA,
ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA,
IN HIS CAPACITY AS EXECUTIVE SECRETARY, CHICO-NAZARIO,

Respondents. GARCIA, and

VELASCO, JJ.

G.R. No. 171396

Promulgated:

Present:

May 3, 2006

PANGANIBAN, C.J.,

*PUNO,

QUISUMBING, G.R. No. 171409

YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,

CARPIO,

AUSTRIA-MARTINEZ,
G.R. No. 171485
G.R. No. 171483

G.R. No. 171400

G.R. No. 171489

G.R. No. 171424
x---------------------------------------------------------------------------------------------x
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid
formula are necessary.[1] Superior strength � the use of force � cannot
make wrongs into rights. In this regard, the courts should be vigilant in
safeguarding the constitutional rights of the citizens, specifically their liberty.
Chief Justice Artemio V. Panganiban�s philosophy of liberty is thus most
relevant. He said: �In cases involving liberty, the scales of justice should
weigh heavily against government and in favor of the poor, the oppressed,
the marginalized, the dispossessed and the weak.� Laws and actions that
restrict fundamental rights come to the courts �with a heavy presumption
against their constitutional validity.�[2]
These seven (7) consolidated petitions for certiorari and prohibition
allege that in issuing Presidential Proclamation No. 1017 (PP 1017) and
General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo
committed grave abuse of discretion. Petitioners contend that respondent
officials of the Government, in their professed efforts to defend and preserve
democratic institutions, are actually trampling upon the very freedom
guaranteed and protected by the Constitution. Hence, such issuances are
void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree of
liberty, without which, law becomes tyranny, with the degree of law, without
which, liberty becomes license?[3]
On February 24, 2006, as the nation celebrated the 20th Anniversary of
the Edsa People Power I, President Arroyo issued PP 1017 declaring a state
of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic
of the Philippines and Commander-in-Chief of the Armed Forces of the
Philippines, by virtue of the powers vested upon me by Section 18, Article 7
of the Philippine Constitution which states that: �The President. . . whenever
it becomes necessary, . . . may call out (the) armed forces to prevent or
suppress. . .rebellion. . .,� and in my capacity as their Commander-in-Chief,
do hereby command the Armed Forces of the Philippines, to maintain law
and order throughout the Philippines, prevent or suppress all forms of
lawless violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction; and as provided in
Section 17, Article 12 of the Constitution do hereby declare a State of
National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition
have conspired with authoritarians of the extreme Left represented by the
NDF-CPP-NPA and the extreme Right, represented by military adventurists
� the historical enemies of the democratic Philippine State � who are now
in a tactical alliance and engaged in a concerted and systematic conspiracy,
over a broad front, to bring down the duly constituted Government elected in
May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the
President;
WHEREAS, the claims of these elements have been recklessly magnified by
certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State � by
obstructing governance including hindering the growth of the economy and
sabotaging the people�s confidence in government and their faith in the
future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left
and extreme Right the opening to intensify their avowed aims to bring down
the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense
and preservation of the democratic institutions and the State the primary duty
of Government;
WHEREAS, the activities above-described, their consequences, ramifications
and collateral effects constitute a clear and present danger to the safety and
the integrity of the Philippine State and of the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017,
thus:
WHEREAS, over these past months, elements in the political
opposition have conspired with authoritarians of the extreme Left,
represented by the NDF-CPP-NPA and the extreme Right, represented by
military adventurists - the historical enemies of the democratic Philippine
State � and who are now in a tactical alliance and engaged in a concerted
and systematic conspiracy, over a broad front, to bring down the duly-
constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down
our republican government;
WHEREAS, the claims of these elements have been recklessly magnified by
certain segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by
obstructing governance, including hindering the growth of the economy and
sabotaging the people�s confidence in the government and their faith in the
future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left
and extreme Right the opening to intensify their avowed aims to bring down
the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences, ramifications
and collateral effects constitute a clear and present danger to the safety and
the integrity of the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued
declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the
powers vested in me under the Constitution as President of the Republic of
the Philippines, and Commander-in-Chief of the Republic of the Philippines,
and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby
call upon the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), to prevent and suppress acts of terrorism and lawless
violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP,
as well as the officers and men of the AFP and PNP, to immediately carry out
the necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of
national emergency and after all these petitions had been filed, the President
lifted PP 1017. She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of
the Constitution, Proclamation No. 1017 dated February 24, 2006, was
issued declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated
February 24, 2006, which were issued on the basis of Proclamation No.
1017, the Armed Forces of the Philippines (AFP) and the Philippine National
Police (PNP), were directed to maintain law and order throughout the
Philippines, prevent and suppress all form of lawless violence as well as any
act of rebellion and to undertake such action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented,
suppressed and quelled the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President
of the Republic of the Philippines, by virtue of the powers vested in me by
law, hereby declare that the state of national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5,
respondents stated that the proximate cause behind the executive issuances
was the conspiracy among some military officers, leftist insurgents of the
New People�s Army (NPA), and some members of the political opposition in
a plot to unseat or assassinate President Arroyo.[4] They considered the aim
to oust or assassinate the President and take-over the reigns of government
as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General
specified the facts leading to the issuance of PP 1017 and G.O. No. 5.
Significantly, there was no refutation from petitioners� counsels.
The Solicitor General argued that the intent of the Constitution is to give full
discretionary powers to the President in determining the necessity of calling
out the armed forces. He emphasized that none of the petitioners has
shown that PP 1017 was without factual bases. While he explained that it is
not respondents� task to state the facts behind the questioned
Proclamation, however, they are presenting the same, narrated hereunder,
for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First
Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang,
members of the Magdalo Group indicted in the Oakwood mutiny, escaped
their detention cell in Fort Bonifacio, Taguig City. In a public statement, they
vowed to remain defiant and to elude arrest at all costs. They called upon
the people to �show and proclaim our displeasure at the sham regime. Let
us demonstrate our disgust, not only by going to the streets in protest, but
also by wearing red bands on our left arms.� [5]
On February 17, 2006, the authorities got hold of a document entitled
�Oplan Hackle I � which detailed plans for bombings and attacks during
the Philippine Military Academy Alumni Homecoming in Baguio City. The
plot was to assassinate selected targets including some cabinet members
and President Arroyo herself.[6] Upon the advice of her security, President
Arroyo decided not to attend the Alumni Homecoming. The next day, at the
height of the celebration, a bomb was found and detonated at the PMA
parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist
safehouse in Batangas province. Found in his possession were two (2)
flash disks containing minutes of the meetings between members of the
Magdalo Group and the National People�s Army (NPA), a tape recorder,
audio cassette cartridges, diskettes, and copies of subversive documents.[7]
Prior to his arrest, Lt. San Juan announced through DZRH that the
�Magdalo�s D-Day would be on February 24, 2006, the 20th Anniversary
of Edsa I.�
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information
that members of the PNP- Special Action Force were planning to defect.
Thus, he immediately ordered SAF Commanding General Marcelino Franco,
Jr. to �disavow� any defection. The latter promptly obeyed and issued a
public statement: �All SAF units are under the effective control of
responsible and trustworthy officers with proven integrity and unquestionable
loyalty.�
On the same day, at the house of former Congressman Peping Cojuangco,
President Cory Aquino�s brother, businessmen and mid-level government
officials plotted moves to bring down the Arroyo administration. Nelly
Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo
critic, called a U.S. government official about his group�s plans if President
Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon
identified him as B/Gen. Danilo Lim, Commander of the Army�s elite Scout
Ranger. Lim said �it was all systems go for the planned movement against
Arroyo.�[8]
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to
Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines
(AFP), that a huge number of soldiers would join the rallies to provide a
critical mass and armed component to the Anti-Arroyo protests to be held on
February 24, 2005. According to these two (2) officers, there was no way
they could possibly stop the soldiers because they too, were breaking the
chain of command to join the forces foist to unseat the President. However,
Gen. Senga has remained faithful to his Commander-in-Chief and to the
chain of command. He immediately took custody of B/Gen. Lim and directed
Col. Querubin to return to the Philippine Marines Headquarters in Fort
Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary
work within the military and the police establishments in order to forge
alliances with its members and key officials. NPA spokesman Gregorio
�Ka Roger� Rosal declared: �The Communist Party and revolutionary
movement and the entire people look forward to the possibility in the coming
year of accomplishing its immediate task of bringing down the Arroyo regime;
of rendering it to weaken and unable to rule that it will not take much longer
to end it.�[9]
On the other hand, Cesar Renerio, spokesman for the National Democratic
Front (NDF) at North Central Mindanao, publicly announced: �Anti-Arroyo
groups within the military and police are growing rapidly, hastened by the
economic difficulties suffered by the families of AFP officers and enlisted
personnel who undertake counter-insurgency operations in the field.� He
claimed that with the forces of the national democratic movement, the anti-
Arroyo conservative political parties, coalitions, plus the groups that have
been reinforcing since June 2005, it is probable that the President�s ouster
is nearing its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers
and cell sites in Bulacan and Bataan was also considered as additional
factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of
an army outpost in Benguet resulting in the death of three (3) soldiers. And
also the directive of the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila radicals and 25,000 more from the
provinces in mass protests.[10]
By midnight of February 23, 2006, the President convened her security
advisers and several cabinet members to assess the gravity of the
fermenting peace and order situation. She directed both the AFP and the
PNP to account for all their men and ensure that the chain of command
remains solid and undivided. To protect the young students from any
possible trouble that might break loose on the streets, the President
suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of
PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all
programs and activities related to the 20th anniversary celebration of Edsa
People Power I; and revoked the permits to hold rallies issued earlier by the
local governments. Justice Secretary Raul Gonzales stated that political
rallies, which to the President�s mind were organized for purposes of
destabilization, are cancelled. Presidential Chief of Staff Michael Defensor
announced that �warrantless arrests and take-over of facilities, including
media, can already be implemented.�[11]
Undeterred by the announcements that rallies and public assemblies would
not be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU]
and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-
KMU]), marched from various parts of Metro Manila with the intention of
converging at the EDSA shrine. Those who were already near the EDSA
site were violently dispersed by huge clusters of anti-riot police. The well-
trained policemen used truncheons, big fiber glass shields, water cannons,
and tear gas to stop and break up the marching groups, and scatter the
massed participants. The same police action was used against the protesters
marching forward to Cubao, Quezon City and to the corner of Santolan
Street and EDSA. That same evening, hundreds of riot policemen broke up
an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas
Street in Makati City.[12]
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the
ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without
warrant) petitioner Randolf S. David, a professor at the University of the
Philippines and newspaper columnist. Also arrested was his companion,
Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the
Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis
of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The
raiding team confiscated news stories by reporters, documents, pictures, and
mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon
City were stationed inside the editorial and business offices of the
newspaper; while policemen from the Manila Police District were stationed
outside the building.[13]
A few minutes after the search and seizure at the Daily Tribune offices, the
police surrounded the premises of another pro-opposition paper, Malaya, and
its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is
�meant to show a �strong presence,� to tell media outlets not to connive
or do anything that would help the rebels in bringing down this
government.� The PNP warned that it would take over any media
organization that would not follow �standards set by the government during
the state of national emergency.� Director General Lomibao stated that �if
they do not follow the standards � and the standards are - if they would
contribute to instability in the government, or if they do not subscribe to what
is in General Order No. 5 and Proc. No. 1017 � we will recommend a
�takeover.�� National Telecommunications� Commissioner Ronald
Solis urged television and radio networks to �cooperate� with the
government for the duration of the state of national emergency. He asked
for �balanced reporting� from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned that his
agency will not hesitate to recommend the closure of any broadcast outfit
that violates rules set out for media coverage when the national security is
threatened.[14]
Also, on February 25, 2006, the police arrested Congressman Crispin
Beltran, representing the Anakpawis Party and Chairman of Kilusang Mayo
Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a
warrant for his arrest dated 1985. Beltran�s lawyer explained that the
warrant, which stemmed from a case of inciting to rebellion filed during the
Marcos regime, had long been quashed. Beltran, however, is not a party in
any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they
were told they could not be admitted because of PP 1017 and G.O. No. 5.
Two members were arrested and detained, while the rest were dispersed by
the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police
went after him during a public forum at the Sulo Hotel in Quezon City. But
his two drivers, identified as Roel and Art, were taken into custody.
Retired Major General Ramon Monta�o, former head of the Philippine
Constabulary, was arrested while with his wife and golfmates at the Orchard
Golf and Country Club in Dasmari�as, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro
Casi�o and Gabriela Representative Liza Maza. Bayan Muna
Representative Josel Virador was arrested at the PAL Ticket Office in Davao
City. Later, he was turned over to the custody of the House of
Representatives where the �Batasan 5� decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of
Representatives Beltran, Satur Ocampo, et al., are not being raised in these
petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state
of national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP
1017 and G.O. No. 5 were filed with this Court against the above-named
respondents. Three (3) of these petitions impleaded President Arroyo as
respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP
1017 on the grounds that (1) it encroaches on the emergency powers of
Congress; (2) it is a subterfuge to avoid the constitutional requirements for
the imposition of martial law; and (3) it violates the constitutional guarantees
of freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune
Publishing Co., Inc. challenged the CIDG�s act of raiding the Daily Tribune
offices as a clear case of �censorship� or �prior restraint.� They also
claimed that the term �emergency� refers only to tsunami, typhoon,
hurricane and similar occurrences, hence, there is �absolutely no
emergency� that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph
G. Escudero, and twenty one (21) other members of the House of
Representatives, including Representatives Satur Ocampo, Rafael Mariano,
Teodoro Casi�o, Liza Maza, and Josel Virador. They asserted that PP
1017 and G.O. No. 5 constitute �usurpation of legislative powers�;
�violation of freedom of expression� and �a declaration of martial law.�
They alleged that President Arroyo �gravely abused her discretion in calling
out the armed forces without clear and verifiable factual basis of the
possibility of lawless violence and a showing that there is necessity to do
so.�
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members
averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they
arrogate unto President Arroyo the power to enact laws and decrees; (2)
their issuance was without factual basis; and (3) they violate freedom of
expression and the right of the people to peaceably assemble to redress their
grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged
that PP 1017 and G.O. No. 5 are unconstitutional because they violate (a)
Section 4[15] of Article II, (b) Sections 1,[16] 2,[17] and 4[18] of Article III, (c)
Section 23[19] of Article VI, and (d) Section 17[20] of Article XII of the
Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP
1017 is an �arbitrary and unlawful exercise by the President of her Martial
Law powers.� And assuming that PP 1017 is not really a declaration of
Martial Law, petitioners argued that �it amounts to an exercise by the
President of emergency powers without congressional approval.� In
addition, petitioners asserted that PP 1017 �goes beyond the nature and
function of a proclamation as defined under the Revised Administrative
Code.�
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that
PP 1017 and G.O. No. 5 are �unconstitutional for being violative of the
freedom of expression, including its cognate rights such as freedom of the
press and the right to access to information on matters of public concern, all
guaranteed under Article III, Section 4 of the 1987 Constitution.� In this
regard, she stated that these issuances prevented her from fully prosecuting
her election protest pending before the Presidential Electoral Tribunal.
In respondents� Consolidated Comment, the Solicitor General
countered that: first, the petitions should be dismissed for being moot;
second, petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483
(KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no
legal standing; third, it is not necessary for petitioners to implead President
Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis;
and fifth, PP 1017 does not violate the people�s right to free expression and
redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the
parties on the above interlocking issues which may be summarized as
follows:
A. PROCEDURAL:

1) Whether the issuance of PP 1021 renders the petitions moot and
academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400
(ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda)
have legal standing.
B. SUBSTANTIVE:
1) Whether the Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this
country is the concept of judicial review enunciated in Marbury v.
Madison.[21] This concept rests on the extraordinary simple foundation --
The Constitution is the supreme law. It was ordained by the people, the
ultimate source of all political authority. It confers limited powers on the
national government. x x x If the government consciously or unconsciously
oversteps these limitations there must be some authority competent to hold it
in control, to thwart its unconstitutional attempt, and thus to vindicate and
preserve inviolate the will of the people as expressed in the Constitution. This
power the courts exercise. This is the beginning and the end of the theory of
judicial review.[22]
But the power of judicial review does not repose upon the courts a
�self-starting capacity.�[23] Courts may exercise such power only when
the following requisites are present: first, there must be an actual case or
controversy; second, petitioners have to raise a question of constitutionality;
third, the constitutional question must be raised at the earliest opportunity;
and fourth, the decision of the constitutional question must be necessary to
the determination of the case itself.[24]
Respondents maintain that the first and second requisites are absent, hence,
we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite
legal claims susceptible of judicial resolution. It is �definite and concrete,
touching the legal relations of parties having adverse legal interest;� a real
and substantial controversy admitting of specific relief.[25] The Solicitor
General refutes the existence of such actual case or controversy, contending
that the present petitions were rendered �moot and academic� by
President Arroyo�s issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events,[26] so that a declaration thereon
would be of no practical use or value.[27] Generally, courts decline
jurisdiction over such case[28] or dismiss it on ground of mootness.[29]
The Court holds that President Arroyo�s issuance of PP 1021 did not render
the present petitions moot and academic. During the eight (8) days that PP
1017 was operative, the police officers, according to petitioners, committed
illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or
valid? Do they justify these alleged illegal acts? These are the vital issues
that must be resolved in the present petitions. It must be stressed that �an
unconstitutional act is not a law, it confers no rights, it imposes no duties, it
affords no protection; it is in legal contemplation, inoperative.�[30]
The �moot and academic� principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide
cases, otherwise moot and academic, if: first, there is a grave violation of the
Constitution;[31] second, the exceptional character of the situation and the
paramount public interest is involved;[32] third, when constitutional issue
raised requires formulation of controlling principles to guide the bench, the
bar, and the public;[33] and fourth, the case is capable of repetition yet
evading review.[34]
All the foregoing exceptions are present here and justify this Court�s
assumption of jurisdiction over the instant petitions. Petitioners alleged that
the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is
no question that the issues being raised affect the public�s interest,
involving as they do the people�s basic rights to freedom of expression, of
assembly and of the press. Moreover, the Court has the duty to formulate
guiding and controlling constitutional precepts, doctrines or rules. It has the
symbolic function of educating the bench and the bar, and in the present
petitions, the military and the police, on the extent of the protection given by
constitutional guarantees.[35] And lastly, respondents� contested actions
are capable of repetition. Certainly, the petitions are subject to judicial
review.
In their attempt to prove the alleged mootness of this case, respondents cited
Chief Justice Artemio V. Panganiban�s Separate Opinion in Sanlakas v.
Executive Secretary.[36] However, they failed to take into account the Chief
Justice�s very statement that an otherwise �moot� case may still be
decided �provided the party raising it in a proper case has been and/or
continues to be prejudiced or damaged as a direct result of its issuance.�
The present case falls right within this exception to the mootness rule pointed
out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court
deems it imperative to have a more than passing discussion on legal
standing or locus standi.
Locus standi is defined as �a right of appearance in a court of justice
on a given question.�[37] In private suits, standing is governed by the
�real-parties-in interest� rule as contained in Section 2, Rule 3 of the 1997
Rules of Civil Procedure, as amended. It provides that �every action must
be prosecuted or defended in the name of the real party in interest.�
Accordingly, the �real-party-in interest� is �the party who stands to be
benefited or injured by the judgment in the suit or the party entitled to the
avails of the suit.�[38] Succinctly put, the plaintiff�s standing is based on
his own right to the relief sought.
The difficulty of determining locus standi arises in public suits.
Here, the plaintiff who asserts a �public right� in assailing an allegedly
illegal official action, does so as a representative of the general public. He
may be a person who is affected no differently from any other person. He
could be suing as a �stranger,� or in the category of a �citizen,� or
�taxpayer.� In either case, he has to adequately show that he is entitled to
seek judicial protection. In other words, he has to make out a sufficient
interest in the vindication of the public order and the securing of relief as a
�citizen� or �taxpayer.
Case law in most jurisdictions now allows both �citizen� and
�taxpayer� standing in public actions. The distinction was first laid down
in Beauchamp v. Silk,[39] where it was held that the plaintiff in a taxpayer�s
suit is in a different category from the plaintiff in a citizen�s suit. In the
former, the plaintiff is affected by the expenditure of public funds, while in the
latter, he is but the mere instrument of the public concern. As held by the
New York Supreme Court in People ex rel Case v. Collins:[40] �In matter
of mere public right, however�the people are the real parties�It is at least
the right, if not the duty, of every citizen to interfere and see that a public
offence be properly pursued and punished, and that a public grievance be
remedied.� With respect to taxpayer�s suits, Terr v. Jordan[41] held that
�the right of a citizen and a taxpayer to maintain an action in courts to
restrain the unlawful use of public funds to his injury cannot be denied.�
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed with, and
thus hinders the activities of governmental agencies engaged in public
service, the United State Supreme Court laid down the more stringent
�direct injury� test in Ex Parte Levitt,[42] later reaffirmed in Tileston v.
Ullman.[43] The same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or legislative action,
he must show that he has sustained a direct injury as a result of that action,
and it is not sufficient that he has a general interest common to all members
of the public.
This Court adopted the �direct injury� test in our jurisdiction. In People v.
Vera,[44] it held that the person who impugns the validity of a statute must
have �a personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result.� The Vera doctrine was
upheld in a litany of cases, such as, Custodio v. President of the Senate,[45]
Manila Race Horse Trainers� Association v. De la Fuente,[46] Pascual v.
Secretary of Public Works[47] and Anti-Chinese League of the Philippines v.
Felix.[48]
However, being a mere procedural technicality, the requirement of locus
standi may be waived by the Court in the exercise of its discretion. This was
done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,[49]
where the �transcendental importance� of the cases prompted the Court to
act liberally. Such liberality was neither a rarity nor accidental. In Aquino v.
Comelec,[50] this Court resolved to pass upon the issues raised due to the
�far-reaching implications� of the petition notwithstanding its categorical
statement that petitioner therein had no personality to file the suit. Indeed,
there is a chain of cases where this liberal policy has been observed,
allowing ordinary citizens, members of Congress, and civic organizations to
prosecute actions involving the constitutionality or validity of laws, regulations
and rulings.[51]
Thus, the Court has adopted a rule that even where the petitioners
have failed to show direct injury, they have been allowed to sue under the
principle of �transcendental importance.� Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,[52] where the Court ruled that the
enforcement of the constitutional right to information and the equitable
diffusion of natural resources are matters of transcendental importance which
clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the Court held
that �given the transcendental importance of the issues involved, the Court
may relax the standing requirements and allow the suit to prosper despite the
lack of direct injury to the parties seeking judicial review� of the Visiting
Forces Agreement;
(3) Lim v. Executive Secretary,[54] while the Court noted that the petitioners
may not file suit in their capacity as taxpayers absent a showing that
�Balikatan 02-01� involves the exercise of Congress� taxing or spending
powers, it reiterated its ruling in Bagong Alyansang Makabayan v.
Zamora,[55] that in cases of transcendental importance, the cases must be
settled promptly and definitely and standing requirements may be relaxed.
By way of summary, the following rules may be culled from the cases
decided by this Court. Taxpayers, voters, concerned citizens, and
legislators may be accorded standing to sue, provided that the following
requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of
public funds or that the tax measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the
validity of the election law in question;
(4) for concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must be settled early;
and
(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Court�s
attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of
Kilosbayan as a people�s organization does not give it the requisite
personality to question the validity of the on-line lottery contract, more so
where it does not raise any issue of constitutionality. Moreover, it cannot sue
as a taxpayer absent any allegation that public funds are being misused. Nor
can it sue as a concerned citizen as it does not allege any specific injury it
has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc.
v. Comelec,[57] the Court reiterated the �direct injury� test with respect to
concerned citizens� cases involving constitutional issues. It held that
�there must be a showing that the citizen personally suffered some actual or
threatened injury arising from the alleged illegal official act.�
In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not
demonstrated any injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,[59] the Court ruled that only the
petitioners who are members of Congress have standing to sue, as they
claim that the President�s declaration of a state of rebellion is a usurpation
of the emergency powers of Congress, thus impairing their legislative
powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice
Society, the Court declared them to be devoid of standing, equating them
with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and
Llamas, is beyond doubt. The same holds true with petitioners in G.R. No.
171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged
�direct injury� resulting from �illegal arrest� and �unlawful search�
committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor
General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was
usurpation of legislative powers. They also raised the issue of whether or
not the concurrence of Congress is necessary whenever the alarming
powers incident to Martial Law are used. Moreover, it is in the interest of
justice that those affected by PP 1017 can be represented by their
Congressmen in bringing to the attention of the Court the alleged violations
of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in
Philconsa v. Enriquez,[60] Kapatiran Ng Mga Naglilingkod sa Pamahalaan
ng Pilipinas, Inc. v. Tan,[61] Association of Small Landowners in the
Philippines, Inc. v. Secretary of Agrarian Reform,[62] Basco v. Philippine
Amusement and Gaming Corporation,[63] and Ta�ada v. Tuvera,[64] that
when the issue concerns a public right, it is sufficient that the petitioner is a
citizen and has an interest in the execution of the laws.
In G.R. No. 171483, KMU�s assertion that PP 1017 and G.O. No. 5
violated its right to peaceful assembly may be deemed sufficient to give it
legal standing. Organizations may be granted standing to assert the rights of
their members.[65] We take judicial notice of the announcement by the
Office of the President banning all rallies and canceling all permits for public
assemblies following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the
Integrated Bar of the Philippines (IBP) have no legal standing, having failed
to allege any direct or potential injury which the IBP as an institution or its
members may suffer as a consequence of the issuance of PP No. 1017 and
G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,[66] the Court
held that the mere invocation by the IBP of its duty to preserve the rule of law
and nothing more, while undoubtedly true, is not sufficient to clothe it with
standing in this case. This is too general an interest which is shared by
other groups and the whole citizenry. However, in view of the transcendental
importance of the issue, this Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file
the instant petition as there are no allegations of illegal disbursement of
public funds. The fact that she is a former Senator is of no consequence.
She can no longer sue as a legislator on the allegation that her prerogatives
as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim
that she is a media personality will not likewise aid her because there was no
showing that the enforcement of these issuances prevented her from
pursuing her occupation. Her submission that she has pending electoral
protest before the Presidential Electoral Tribunal is likewise of no relevance.
She has not sufficiently shown that PP 1017 will affect the proceedings or
result of her case. But considering once more the transcendental importance
of the issue involved, this Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but
corollary to the bigger question of proper exercise of judicial power. This is
the underlying legal tenet of the �liberality doctrine� on legal standing. It
cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a
judicial question which is of paramount importance to the Filipino people. To
paraphrase Justice Laurel, the whole of Philippine society now waits with
bated breath the ruling of this Court on this very critical matter. The petitions
thus call for the application of the �transcendental importance� doctrine, a
relaxation of the standing requirements for the petitioners in the �PP 1017
cases.�
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent.
Settled is the doctrine that the President, during his tenure of office or actual
incumbency,[67] may not be sued in any civil or criminal case, and there is
no need to provide for it in the Constitution or law. It will degrade the dignity
of the high office of the President, the Head of State, if he can be dragged
into court litigations while serving as such. Furthermore, it is important that
he be freed from any form of harassment, hindrance or distraction to enable
him to fully attend to the performance of his official duties and functions.
Unlike the legislative and judicial branch, only one constitutes the executive
branch and anything which impairs his usefulness in the discharge of the
many great and important duties imposed upon him by the Constitution
necessarily impairs the operation of the Government. However, this does not
mean that the President is not accountable to anyone. Like any other official,
he remains accountable to the people[68] but he may be removed from office
only in the mode provided by law and that is by impeachment.[69]
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
�necessary� for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the
President�s exercise of his Commander-in-Chief power has reached its
distilled point - from the indulgent days of Barcelon v. Baker[70]
and Montenegro v. Castaneda[71] to the volatile era of Lansang v.
Garcia,[72] Aquino, Jr. v. Enrile,[73] and Garcia-Padilla v. Enrile.[74] The
tug-of-war always cuts across the line defining �political questions,�
particularly those questions �in regard to which full discretionary authority
has been delegated to the legislative or executive branch of the
government.�[75] Barcelon and Montenegro were in unison in declaring
that the authority to decide whether an exigency has arisen belongs to the
President and his decision is final and conclusive on the courts. Lansang
took the opposite view. There, the members of the Court were unanimous in
the conviction that the Court has the authority to inquire into the existence of
factual bases in order to determine their constitutional sufficiency. From the
principle of separation of powers, it shifted the focus to the system of checks
and balances, �under which the President is supreme, x x x only if and
when he acts within the sphere allotted to him by the Basic Law, and
the authority to determine whether or not he has so acted is vested in
the Judicial Department, which in this respect, is, in turn,
constitutionally supreme.�[76] In 1973, the unanimous Court of Lansang
was divided in Aquino v. Enrile.[77] There, the Court was
almost evenly divided on the issue of whether the validity of the
imposition of Martial Law is a political or justiciable question.[78] Then came
Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there
is a need to re-examine the latter case, ratiocinating that �in times of war or
national emergency, the President must be given absolute control for the
very life of the nation and the government is in great peril. The President, it
intoned, is answerable only to his conscience, the People, and God.�[79]
The Integrated Bar of the Philippines v. Zamora[80] -- a recent case most
pertinent to these cases at bar -- echoed a principle similar to Lansang.
While the Court considered the President�s �calling-out� power as a
discretionary power solely vested in his wisdom, it stressed that �this does
not prevent an examination of whether such power was exercised within
permissible constitutional limits or whether it was exercised in a manner
constituting grave abuse of discretion.� This ruling is mainly a result of the
Court�s reliance on Section 1, Article VIII of 1987 Constitution which fortifies
the authority of the courts to determine in an appropriate action the validity of
the acts of the political departments. Under the new definition of judicial
power, the courts are authorized not only �to settle actual controversies
involving rights which are legally demandable and enforceable,� but also
�to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government.� The latter part of the authority
represents a broadening of judicial power to enable the courts of justice to
review what was before a forbidden territory, to wit, the discretion of the
political departments of the government.[81] It speaks of judicial prerogative
not only in terms of power but also of duty.[82]
As to how the Court may inquire into the President�s exercise of power,
Lansang adopted the test that �judicial inquiry can go no further than to
satisfy the Court not that the President�s decision is correct,� but that
�the President did not act arbitrarily.� Thus, the standard laid down is not
correctness, but arbitrariness.[83] In Integrated Bar of the Philippines, this
Court further ruled that �it is incumbent upon the petitioner to show that the
President�s decision is totally bereft of factual basis� and that if he fails, by
way of proof, to support his assertion, then �this Court cannot undertake an
independent investigation beyond the pleadings.�
Petitioners failed to show that President Arroyo�s exercise of the calling-out
power, by issuing PP 1017, is totally bereft of factual basis. A reading of the
Solicitor General�s Consolidated Comment and Memorandum shows a
detailed narration of the events leading to the issuance of PP 1017, with
supporting reports forming part of the records. Mentioned are the escape of
the Magdalo Group, their audacious threat of the Magdalo D-Day, the
defections in the military, particularly in the Philippine Marines, and the
reproving statements from the communist leaders. There was also the
Minutes of the Intelligence Report and Security Group of the Philippine Army
showing the growing alliance between the NPA and the military. Petitioners
presented nothing to refute such events. Thus, absent any contrary
allegations, the Court is convinced that the President was justified in issuing
PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not
expected to simply fold her arms and do nothing to prevent or suppress what
she believed was lawless violence, invasion or rebellion. However, the
exercise of such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5

Jean-Jacques Rousseau also assumed the need for temporary suspension

of democratic processes of government in time of emergency. According to
Doctrines of Several Political Theorists him:

on the Power of the President The inflexibility of the laws, which prevents them from adopting themselves to
circumstances, may, in certain cases, render them disastrous and make
in Times of Emergency them bring about, at a time of crisis, the ruin of the State�

It is wrong therefore to wish to make political institutions as strong as to

render it impossible to suspend their operation. Even Sparta allowed its law
This case brings to fore a contentious subject -- the power of the President in to lapse...
times of emergency. A glimpse at the various political theories relating to
this subject provides an adequate backdrop for our ensuing discussion.

If the peril is of such a kind that the paraphernalia of the laws are an obstacle
to their preservation, the method is to nominate a supreme lawyer, who shall
silence all the laws and suspend for a moment the sovereign authority. In
such a case, there is no doubt about the general will, and it clear that the
John Locke, describing the architecture of civil government, called upon the people�s first intention is that the State shall not perish.[86]
English doctrine of prerogative to cope with the problem of emergency. In
times of danger to the nation, positive law enacted by the legislature might be
inadequate or even a fatal obstacle to the promptness of action necessary to
avert catastrophe. In these situations, the Crown retained a prerogative
�power to act according to discretion for the public good, without the
proscription of the law and sometimes even against it.�[84] But Locke Rosseau did not fear the abuse of the emergency dictatorship or �supreme
recognized that this moral restraint might not suffice to avoid abuse of magistracy� as he termed it. For him, it would more likely be cheapened by
prerogative powers. Who shall judge the need for resorting to the �indiscreet use.� He was unwilling to rely upon an �appeal to heaven.�
prerogative and how may its abuse be avoided? Here, Locke readily Instead, he relied upon a tenure of office of prescribed duration to avoid
admitted defeat, suggesting that �the people have no other remedy in this, perpetuation of the dictatorship.[87]
as in all other cases where they have no judge on earth, but to appeal to
Heaven.�[85]

John Stuart Mill concluded his ardent defense of representative government:
�I am far from condemning, in cases of extreme necessity, the assumption
of absolute power in the form of a temporary dictatorship.�[88]
Nicollo Machiavelli�s view of emergency powers, as one element in the
whole scheme of limited government, furnished an ironic contrast to the
Lockean theory of prerogative. He recognized and attempted to bridge this
chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort
to extra �constitutional measures; for although they may for a time be
beneficial, yet the precedent is pernicious, for if the practice is once
established for good objects, they will in a little while be disregarded under
that pretext but for evil purposes. Thus, no republic will ever be perfect if she
has not by law provided for everything, having a remedy for every emergency
and fixed rules for applying it.[89]
Machiavelli � in contrast to Locke, Rosseau and Mill � sought to
incorporate into the constitution a regularized system of standby emergency
powers to be invoked with suitable checks and controls in time of national
danger. He attempted forthrightly to meet the problem of combining a
capacious reserve of power and speed and vigor in its application in time of
emergency, with effective constitutional restraints.[90]
Contemporary political theorists, addressing themselves to the problem of
response to emergency by constitutional democracies, have employed the
doctrine of constitutional dictatorship.[91] Frederick M. Watkins saw �no
reason why absolutism should not be used as a means for the defense of
liberal institutions,� provided it �serves to protect established institutions
from the danger of permanent injury in a period of temporary emergency and
is followed by a prompt return to the previous forms of political life.�[92] He
recognized the two (2) key elements of the problem of emergency
governance, as well as all constitutional governance: increasing
administrative powers of the executive, while at the same time �imposing
limitation upon that power.�[93] Watkins placed his real faith in a scheme
of constitutional dictatorship. These are the conditions of success of such a
dictatorship: �The period of dictatorship must be relatively
short�Dictatorship should always be strictly legitimate in character�Final
authority to determine the need for dictatorship in any given case must never
rest with the dictator himself��[94] and the objective of such an emergency
dictatorship should be �strict political conservatism.�
Carl J. Friedrich cast his analysis in terms similar to those of Watkins.[95]
�It is a problem of concentrating power � in a government where power
has consciously been divided � to cope with� situations of unprecedented
magnitude and gravity. There must be a broad grant of powers, subject to
equally strong limitations as to who shall exercise such powers, when, for
how long, and to what end.�[96] Friedrich, too, offered criteria for judging
the adequacy of any of scheme of emergency powers, to wit: �The
emergency executive must be appointed by constitutional means � i.e., he
must be legitimate; he should not enjoy power to determine the existence of
an emergency; emergency powers should be exercised under a strict time
limitation; and last, the objective of emergency action must be the defense of
the constitutional order.�[97]
Clinton L. Rossiter, after surveying the history of the employment of
emergency powers in Great Britain, France, Weimar, Germany and the
United States, reverted to a description of a scheme of �constitutional
dictatorship� as solution to the vexing problems presented by
emergency.[98] Like Watkins and Friedrich, he stated a priori the conditions
of success of the �constitutional dictatorship,� thus:
1) No general regime or particular institution of constitutional dictatorship
should be initiated unless it is necessary or even indispensable to the
preservation of the State and its constitutional order�
2) �the decision to institute a constitutional dictatorship should never be in
the hands of the man or men who will constitute the dictator�
3) No government should initiate a constitutional dictatorship without
making specific provisions for its termination�
4) �all uses of emergency powers and all readjustments in the organization
of the government should be effected in pursuit of constitutional or legal
requirements�
5) � no dictatorial institution should be adopted, no right invaded, no
regular procedure altered any more than is absolutely necessary for the
conquest of the particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional
dictatorship should never be permanent in character or effect�
7) The dictatorship should be carried on by persons representative of every
part of the citizenry interested in the defense of the existing constitutional
order. . .
8) Ultimate responsibility should be maintained for every action taken under
a constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the decision to
institute one should never be in the hands of the man or men who constitute
the dictator. . .
10) No constitutional dictatorship should extend beyond the termination of
the crisis for which it was instituted�
11) �the termination of the crisis must be followed by a complete return as
possible to the political and governmental conditions existing prior to the
initiation of the constitutional dictatorship�[99]
Rossiter accorded to legislature a far greater role in the oversight exercise of
emergency powers than did Watkins. He would secure to Congress final
responsibility for declaring the existence or termination of an emergency, and
he places great faith in the effectiveness of congressional investigating
committees.[100]
Scott and Cotter, in analyzing the above contemporary theories in light
of recent experience, were one in saying that, �the suggestion that
democracies surrender the control of government to an authoritarian ruler in
time of grave danger to the nation is not based upon sound constitutional
theory.� To appraise emergency power in terms of constitutional
dictatorship serves merely to distort the problem and hinder realistic analysis.
It matters not whether the term �dictator� is used in its normal sense (as
applied to authoritarian rulers) or is employed to embrace all chief executives
administering emergency powers. However used, �constitutional
dictatorship� cannot be divorced from the implication of suspension of the
processes of constitutionalism. Thus, they favored instead the �concept of
constitutionalism� articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of
problems of emergency powers, and which is consistent with the findings of
this study, is that formulated by Charles H. McIlwain. While it does not by any
means necessarily exclude some indeterminate limitations upon the
substantive powers of government, full emphasis is placed upon procedural
limitations, and political responsibility. McIlwain clearly recognized the need
to repose adequate power in government. And in discussing the meaning of
constitutionalism, he insisted that the historical and proper test of
constitutionalism was the existence of adequate processes for keeping
government responsible. He refused to equate constitutionalism with the
enfeebling of government by an exaggerated emphasis upon separation of
powers and substantive limitations on governmental power. He found that the
really effective checks on despotism have consisted not in the weakening of
government but, but rather in the limiting of it; between which there is a great
and very significant difference. In associating constitutionalism with
�limited� as distinguished from �weak� government, McIlwain meant
government limited to the orderly procedure of law as opposed to the
processes of force. The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet fight are the legal
limits to arbitrary power and a complete political responsibility of government
to the governed.[101]
discretionary power to the Chief Executive, while insuring that such powers
will be exercised with a sense of political responsibility and under effective
limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of
a repressive regime, the 1986 Constitutional Commission, in drafting the
1987 Constitution, endeavored to create a government in the concept of
Justice Jackson�s �balanced power structure.�[102] Executive,
legislative, and judicial powers are dispersed to the President, the Congress,
and the Supreme Court, respectively. Each is supreme within its own
sphere. But none has the monopoly of power in times of emergency. Each
branch is given a role to serve as limitation or check upon the other. This
system does not weaken the President, it just limits his power, using
the language of McIlwain. In other words, in times of emergency, our
Constitution reasonably demands that we repose a certain amount of faith in
the basic integrity and wisdom of the Chief Executive but, at the same time, it
obliges him to operate within carefully prescribed procedural limitations.
a. �Facial Challenge�
Petitioners contend that PP 1017 is void on its face because of its
�overbreadth.� They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the
Constitution and sent a �chilling effect� to the citizens.

In the final analysis, the various approaches to emergency of the above

political theorists �- from Lock�s �theory of prerogative,� to Watkins�
doctrine of �constitutional dictatorship� and, eventually, to McIlwain�s A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
�principle of constitutionalism� --- ultimately aim to solve one real problem
in emergency governance, i.e., that of allotting increasing areas of

First and foremost, the overbreadth doctrine is an analytical tool developed
for testing �on their faces� statutes in free speech cases, also known
under the American Law as First Amendment cases.[103]
A plain reading of PP 1017 shows that it is not primarily directed to speech or
even speech-related conduct. It is actually a call upon the AFP to prevent or
suppress all forms of lawless violence. In United States v. Salerno,[104] the
US Supreme Court held that �we have not recognized an �overbreadth�
doctrine outside the limited context of the First Amendment� (freedom of
speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a
law that �reflects legitimate state interest in maintaining comprehensive
control over harmful, constitutionally unprotected conduct.� Undoubtedly,
lawless violence, insurrection and rebellion are considered �harmful� and
�constitutionally unprotected conduct.� In Broadrick v. Oklahoma,[105] it
was held:
It remains a �matter of no little difficulty� to determine when a law may
properly be held void on its face and when �such summary action� is
inappropriate. But the plain import of our cases is, at the very least, that
facial overbreadth adjudication is an exception to our traditional rules of
practice and that its function, a limited one at the outset, attenuates as the
otherwise unprotected behavior that it forbids the State to sanction moves
from �pure speech� toward conduct and that conduct �even if expressive
� falls within the scope of otherwise valid criminal laws that reflect legitimate
state interests in maintaining comprehensive controls over harmful,
constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving
statutes which, by their terms, seek to regulate only �spoken words� and
again, that �overbreadth claims, if entertained at all, have been curtailed
when invoked against ordinary criminal laws that are sought to be applied to
protected conduct.�[106] Here, the incontrovertible fact remains that PP
1017 pertains to a spectrum of conduct, not free speech, which is manifestly
subject to state regulation.
Second, facial invalidation of laws is considered as �manifestly strong
medicine,� to be used �sparingly and only as a last resort,� and is
�generally disfavored;�[107] The reason for this is obvious. Embedded in
the traditional rules governing constitutional adjudication is the principle that
a person to whom a law may be applied will not be heard to challenge a law
on the ground that it may conceivably be applied unconstitutionally to others,
i.e., in other situations not before the Court.[108] A writer and scholar in
Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an
exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him or
her; if the litigant prevails, the courts carve away the unconstitutional aspects
of the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third
parties and can only assert their own interests. In overbreadth analysis,
those rules give way; challenges are permitted to raise the rights of third
parties; and the court invalidates the entire statute �on its face,� not merely
�as applied for� so that the overbroad law becomes unenforceable until a
properly authorized court construes it more narrowly. The factor that
motivates courts to depart from the normal adjudicatory rules is the concern
with the �chilling;� deterrent effect of the overbroad statute on third parties
not courageous enough to bring suit. The Court assumes that an overbroad
law�s �very existence may cause others not before the court to refrain
from constitutionally protected speech or expression.� An overbreadth
ruling is designed to remove that deterrent effect on the speech of those third
parties.
In other words, a facial challenge using the overbreadth doctrine will require
the Court to examine PP 1017 and pinpoint its flaws and defects, not on the
basis of its actual operation to petitioners, but on the assumption or
prediction that its very existence may cause others not before the Court to
refrain from constitutionally protected speech or expression. In Younger v.
Harris,[109] it was held that:
there can be no instance when the assailed law may be valid. Here,
petitioners did not even attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of
vagueness. This, too, is unwarranted.
Related to the �overbreadth� doctrine is the �void for vagueness
doctrine� which holds that �a law is facially invalid if men of common
intelligence must necessarily guess at its meaning and differ as to its
application.�[110] It is subject to the same principles governing overbreadth
doctrine. For one, it is also an analytical tool for testing �on their faces�
statutes in free speech cases. And like overbreadth, it is said that a litigant
may challenge a statute on its face only if it is vague in all its possible
applications. Again, petitioners did not even attempt to show that PP 1017 is
vague in all its application. They also failed to establish that men of common
intelligence cannot understand the meaning and application of PP 1017.

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and b. Constitutional Basis of PP 1017
requiring correction of these deficiencies before the statute is put into effect,
is rarely if ever an appropriate task for the judiciary. The combination of the
relative remoteness of the controversy, the impact on the legislative process
of the relief sought, and above all the speculative and amorphous nature of
the required line-by-line analysis of detailed statutes,...ordinarily results in a
kind of case that is wholly unsatisfactory for deciding constitutional questions, Now on the constitutional foundation of PP 1017.
whichever way they might be decided.

The operative portion of PP 1017 may be divided into three important

And third, a facial challenge on the ground of overbreadth is the most difficult provisions, thus:
challenge to mount successfully, since the challenger must establish that
First provision:

�by virtue of the power vested upon me by Section 18, Artilce VII � do �as provided in Section 17, Article XII of the Constitution do hereby declare
hereby command the Armed Forces of the Philippines, to maintain law and a State of National Emergency.�
order throughout the Philippines, prevent or suppress all forms of lawless
violence as well any act of insurrection or rebellion�

Second provision:

First Provision: Calling-out Power

The first provision pertains to the President�s calling-out power. In

Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice Dante
�and to enforce obedience to all the laws and to all decrees, orders and O. Tinga, held that Section 18, Article VII of the Constitution reproduced as
regulations promulgated by me personally or upon my direction;� follows:

Sec. 18. The President shall be the Commander-in-Chief of all armed

forces of the Philippines and whenever it becomes necessary, he may call
out such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety requires it,
he may, for a period not exceeding sixty days, suspend the privilege of the
writ of habeas corpus or place the Philippines or any part thereof under
Third provision: martial law. Within forty-eight hours from the proclamation of martial law or
the suspension of the privilege of the writ of habeas corpus, the President
shall submit a report in person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if
the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-
four hours following such proclamation or suspension, convene in
accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual bases of the proclamation of martial
law or the suspension of the privilege of the writ or the extension thereof, and
must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply
only to persons judicially charged for rebellion or offenses inherent in or
directly connected with invasion.
During the suspension of the privilege of the writ, any
person thus arrested or detained shall be judicially charged within three days,
otherwise he shall be released.
grants the President, as Commander-in-Chief, a �sequence� of graduated
powers. From the most to the least benign, these are: the calling-out power,
the power to suspend the privilege of the writ of habeas corpus, and the
power to declare Martial Law. Citing Integrated Bar of the Philippines v.
Zamora,[112] the Court ruled that the only criterion for the exercise of the
calling-out power is that �whenever it becomes necessary,� the President
may call the armed forces �to prevent or suppress lawless violence,
invasion or rebellion.� Are these conditions present in the instant cases?
As stated earlier, considering the circumstances then prevailing, President
Arroyo found it necessary to issue PP 1017. Owing to her Office�s vast
intelligence network, she is in the best position to determine the actual
condition of the country.
Under the calling-out power, the President may summon the armed
forces to aid him in suppressing lawless violence, invasion and rebellion.
This involves ordinary police action. But every act that goes beyond the
President�s calling-out power is considered illegal or ultra vires. For this
reason, a President must be careful in the exercise of his powers. He
cannot invoke a greater power when he wishes to act under a lesser power.
There lies the wisdom of our Constitution, the greater the power, the greater
are the limitations.
It is pertinent to state, however, that there is a distinction between the
President�s authority to declare a �state of rebellion� (in Sanlakas) and
the authority to proclaim a state of national emergency. While President
Arroyo�s authority to declare a �state of rebellion� emanates from her
powers as Chief Executive, the statutory authority cited in Sanlakas was
Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987,
which provides:
SEC. 4. � Proclamations. � Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force of
an executive order.
President Arroyo�s declaration of a �state of rebellion� was merely
an act declaring a status or condition of public moment or interest, a
declaration allowed under Section 4 cited above. Such declaration, in the
words of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of
national emergency, President Arroyo did not only rely on Section 18, Article
VII of the Constitution, a provision calling on the AFP to prevent or suppress
lawless violence, invasion or rebellion. She also relied on Section 17, Article
XII, a provision on the State�s extraordinary power to take over privately-
owned public utility and business affected with public interest. Indeed, PP
1017 calls for the exercise of an awesome power. Obviously, such
Proclamation cannot be deemed harmless, without legal significance, or not
written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a
declaration of Martial Law. It is no so. What defines the character of PP
1017 are its wordings. It is plain therein that what the President invoked was
her calling-out power.
The declaration of Martial Law is a �warn[ing] to citizens that the
military power has been called upon by the executive to assist in the
maintenance of law and order, and that, while the emergency lasts, they
must, upon pain of arrest and punishment, not commit any acts which will in
any way render more difficult the restoration of order and the enforcement of
law.�[113]
In his �Statement before the Senate Committee on Justice� on March 13,
2006, Mr. Justice Vicente V. Mendoza,[114] an authority in constitutional law,
said that of the three powers of the President as Commander-in-Chief, the
power to declare Martial Law poses the most severe threat to civil liberties. It
is a strong medicine which should not be resorted to lightly. It cannot be
used to stifle or persecute critics of the government. It is placed in the
keeping of the President for the purpose of enabling him to secure the people
from harm and to restore order so that they can enjoy their individual
freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of
Martial Law. It is no more than a call by the President to the armed forces to
prevent or suppress lawless violence. As such, it cannot be used to justify
acts that only under a valid declaration of Martial Law can be done. Its use
for any other purpose is a perversion of its nature and scope, and any act
done contrary to its command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and
seizures without judicial warrants; (b) ban on public assemblies; (c) take-over
of news media and agencies and press censorship; and (d) issuance of
Presidential Decrees, are powers which can be exercised by the President
as Commander-in-Chief only where there is a valid declaration of Martial Law
or suspension of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration
of Martial Law. It is merely an exercise of President Arroyo�s calling-out
power for the armed forces to assist her in preventing or suppressing lawless
violence.
Second Provision: �Take Care� Power
The second provision pertains to the power of the President to ensure that
the laws be faithfully executed. This is based on Section 17, Article VII which
reads:
SEC. 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested,[115] the primary
function of the President is to enforce the laws as well as to formulate
policies to be embodied in existing laws. He sees to it that all laws are
enforced by the officials and employees of his department. Before assuming
office, he is required to take an oath or affirmation to the effect that as
President of the Philippines, he will, among others, �execute its laws.�[116]
In the exercise of such function, the President, if needed, may employ the
powers attached to his office as the Commander-in-Chief of all the armed
forces of the country,[117] including the Philippine National Police[118] under
the Department of Interior and Local Government.[119]
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur
Ocampo, Rafael Mariano, Teodoro Casi�o, Liza Maza, and Josel Virador
argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo
the power to enact laws and decrees in violation of Section 1, Article VI of the
Constitution, which vests the power to enact laws in Congress. They assail
the clause �to enforce obedience to all the laws and to all decrees, orders
and regulations promulgated by me personally or upon my direction.�
\
Petitioners� contention is understandable. A reading of PP 1017 operative
clause shows that it was lifted[120] from Former President Marcos�
Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines by virtue of the powers vested upon me by Article VII, Section 10,
Paragraph (2) of the Constitution, do hereby place the entire Philippines as
defined in Article 1, Section 1 of the Constitution under martial law and, in my
capacity as their Commander-in-Chief, do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence as well as any
act of insurrection or rebellion and to enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my
direction.
We all know that it was PP 1081 which granted President Marcos legislative
power. Its enabling clause states: �to enforce obedience to all the laws
and decrees, orders and regulations promulgated by me personally or upon
my direction.� Upon the other hand, the enabling clause of PP 1017 issued
by President Arroyo is: to enforce obedience to all the laws and to all
decrees, orders and regulations promulgated by me personally or upon my
direction.�
Is it within the domain of President Arroyo to promulgate �decrees�?
PP 1017 states in part: �to enforce obedience to all the laws and
decrees x x x promulgated by me personally or upon my direction.�
The President is granted an Ordinance Power under Chapter 2, Book III of
Executive Order No. 292 (Administrative Code of 1987). She may issue any
of the following:
Sec. 2. Executive Orders. � Acts of the President providing for rules of a
general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. � Acts of the President which relate to
particular aspect of governmental operations in pursuance of his duties as
administrative head shall be promulgated in administrative orders.
Sec. 4. Proclamations. � Acts of the President fixing a date or declaring a
status or condition of public moment or interest, upon the existence of which
the operation of a specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of an executive
order.
Sec. 5. Memorandum Orders. � Acts of the President on matters of
administrative detail or of subordinate or temporary interest which only
concern a particular officer or office of the Government shall be embodied in
memorandum orders.
Sec. 6. Memorandum Circulars. � Acts of the President on matters relating
to internal administration, which the President desires to bring to the attention
of all or some of the departments, agencies, bureaus or offices of the
Government, for information or compliance, shall be embodied in
memorandum circulars.

Sec. 7. General or Special Orders. � Acts and commands of the President
in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines shall be issued as general or special orders.
enforced. With respect to �laws,� she cannot call the military to enforce or
implement certain laws, such as customs laws, laws governing family and
property relations, laws on obligations and contracts and the like. She can
only order the military, under PP 1017, to enforce laws pertinent to its duty to
suppress lawless violence.

President Arroyo�s ordinance power is limited to the foregoing issuances.

She cannot issue decrees similar to those issued by Former President
Marcos under PP 1081. Presidential Decrees are laws which are of the
same category and binding force as statutes because they were issued by
the President in the exercise of his legislative power during the period of
Martial Law under the 1973 Constitution.[121] Third Provision: Power to Take Over

This Court rules that the assailed PP 1017 is unconstitutional insofar as it

grants President Arroyo the authority to promulgate �decrees.� Legislative
power is peculiarly within the province of the Legislature. Section 1, Article The pertinent provision of PP 1017 states:
VI categorically states that �[t]he legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a House of
Representatives.� To be sure, neither Martial Law nor a state of rebellion
nor a state of emergency can justify President Arroyo�s exercise of x x x and to enforce obedience to all the laws and to all decrees, orders, and
legislative power by issuing decrees. regulations promulgated by me personally or upon my direction; and as
provided in Section 17, Article XII of the Constitution do hereby declare a
state of national emergency.

Can President Arroyo enforce obedience to all decrees and laws

through the military?

As this Court stated earlier, President Arroyo has no authority to enact
decrees. It follows that these decrees are void and, therefore, cannot be
The import of this provision is that President Arroyo, during the state of
national emergency under PP 1017, can call the military not only to enforce
obedience �to all the laws and to all decrees x x x� but also to act pursuant
to the provision of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public interest so
requires, the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any privately-
owned public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision
when she issued PP 1017?
The answer is simple. During the existence of the state of national
emergency, PP 1017 purports to grant the President, without any authority or
delegation from Congress, to take over or direct the operation of any
privately-owned public utility or business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of
the �martial law� thinking of the 1971 Constitutional Convention.[122] In
effect at the time of its approval was President Marcos� Letter of Instruction
No. 2 dated September 22, 1972 instructing the Secretary of National
Defense to take over �the management, control and operation of the
Manila Electric Company, the Philippine Long Distance Telephone
Company, the National Waterworks and Sewerage Authority, the Philippine
National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient
Airways . . . for the successful prosecution by the Government of its effort to
contain, solve and end the present national emergency.�
Petitioners, particularly the members of the House of Representatives,
claim that President Arroyo�s inclusion of Section 17, Article XII in PP 1017
is an encroachment on the legislature�s emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the President�s authority to
declare �a state of national emergency� and to exercise emergency
powers. To the first, as elucidated by the Court, Section 18, Article VII grants
the President such power, hence, no legitimate constitutional objection can
be raised. But to the second, manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint
session assembled, voting separately, shall have the sole power to declare
the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law,
authorize the President, for a limited period and subject to such restrictions
as it may prescribe, to exercise powers necessary and proper to carry out a
declared national policy. Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision
refers not only to war but also to �other national emergency.� If the
intention of the Framers of our Constitution was to withhold from the
President the authority to declare a �state of national emergency� pursuant
to Section 18, Article VII (calling-out power) and grant it to Congress (like the
declaration of the existence of a state of war), then the Framers could have
provided so. Clearly, they did not intend that Congress should first authorize
the President before he can declare a �state of national emergency.� The
logical conclusion then is that President Arroyo could validly declare the
existence of a state of national emergency even in the absence of a
Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately
owned public utility or business affected with public interest, is a
different matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be
construed together. Otherwise stated, different clauses, sections, and
provisions of a constitution which relate to the same subject matter will be
construed together and considered in the light of each other.[123]
Considering that Section 17 of Article XII and Section 23 of Article VI,
previously quoted, relate to national emergencies, they must be read
together to determine the limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident
in the tenor of Section 23 (2), Article VI authorizing it to delegate such
powers to the President. Certainly, a body cannot delegate a power not
reposed upon it. However, knowing that during grave emergencies, it may
not be possible or practicable for Congress to meet and exercise its powers,
the Framers of our Constitution deemed it wise to allow Congress to grant
emergency powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may
prescribe.
(4) The emergency powers must be exercised to carry out a national policy
declared by Congress.[124]
Section 17, Article XII must be understood as an aspect of the
emergency powers clause. The taking over of private business affected with
public interest is just another facet of the emergency powers generally
reposed upon Congress. Thus, when Section 17 states that the �the State
may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately owned public
utility or business affected with public interest,� it refers to Congress, not
the President. Now, whether or not the President may exercise such power
is dependent on whether Congress may delegate it to him pursuant to a law
prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et
al. v. Sawyer,[125] held:
It is clear that if the President had authority to issue the order he did, it must
be found in some provision of the Constitution. And it is not claimed that
express constitutional language grants this power to the President. The
contention is that presidential power should be implied from the aggregate of
his powers under the Constitution. Particular reliance is placed on provisions
in Article II which say that �The executive Power shall be vested in a
President . . . .;� that �he shall take Care that the Laws be faithfully
executed;� and that he �shall be Commander-in-Chief of the Army and
Navy of the United States.
Petitioner Cacho-Olivares, et al. contends that the term �emergency�
under Section 17, Article XII refers to
�tsunami,��typhoon,��hurricane� and �similar occurrences.� This is
a limited view of �emergency.�

The order cannot properly be sustained as an exercise of the President�s

military power as Commander-in-Chief of the Armed Forces. The
Government attempts to do so by citing a number of cases upholding broad
powers in military commanders engaged in day-to-day fighting in a theater of
war. Such cases need not concern us here. Even though �theater of war�
be an expanding concept, we cannot with faithfulness to our constitutional
system hold that the Commander-in-Chief of the Armed Forces has the
ultimate power as such to take possession of private property in order to
keep labor disputes from stopping production. This is a job for the nation�s
lawmakers, not for its military authorities.
Emergency, as a generic term, connotes the existence of conditions
suddenly intensifying the degree of existing danger to life or well-being
beyond that which is accepted as normal. Implicit in this definitions are the
elements of intensity, variety, and perception.[127] Emergencies, as
perceived by legislature or executive in the United Sates since 1933, have
been occasioned by a wide range of situations, classifiable under three (3)
principal heads: a) economic,[128] b) natural disaster,[129] and c) national
security.[130]

Nor can the seizure order be sustained because of the several constitutional
provisions that grant executive power to the President. In the framework of
our Constitution, the President�s power to see that the laws are faithfully
executed refutes the idea that he is to be a lawmaker. The Constitution limits
his functions in the lawmaking process to the recommending of laws he
thinks wise and the vetoing of laws he thinks bad. And the Constitution is
neither silent nor equivocal about who shall make laws which the President is
to execute. The first section of the first article says that �All legislative
Powers herein granted shall be vested in a Congress of the United States. .
.�[126] �Emergency,� as contemplated in our Constitution, is of the same breadth.
It may include rebellion, economic crisis, pestilence or epidemic, typhoon,
flood, or other similar catastrophe of nationwide proportions or effect.[131]
This is evident in the Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committee�s definition of �national
emergency� which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or
direct the operation of any privately owned public utility or business affected
with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What
about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term
�national emergency.�
MR. BENGZON. Unless they are of such proportions such that they would
paralyze government service.[132]
x x x x x x
MR. TINGSON. May I ask the committee if �national emergency� refers to
military national emergency or could this be economic emergency?�
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.[133]
It may be argued that when there is national emergency, Congress may
not be able to convene and, therefore, unable to delegate to the President
the power to take over privately-owned public utility or business affected with
public interest.
In Araneta v. Dinglasan,[134] this Court emphasized that legislative
power, through which extraordinary measures are exercised, remains in
Congress even in times of crisis.
�x x x
After all the criticisms that have been made against the efficiency of
the system of the separation of powers, the fact remains that the Constitution
has set up this form of government, with all its defects and shortcomings, in
preference to the commingling of powers in one man or group of men. The
Filipino people by adopting parliamentary government have given notice that
they share the faith of other democracy-loving peoples in this system, with all
its faults, as the ideal. The point is, under this framework of government,
legislation is preserved for Congress all the time, not excepting periods of
crisis no matter how serious. Never in the history of the United States, the
basic features of whose Constitution have been copied in ours, have specific
functions of the legislative branch of enacting laws been surrendered to
another department � unless we regard as legislating the carrying out of a
legislative policy according to prescribed standards; no, not even when that
Republic was fighting a total war, or when it was engaged in a life-and-death
struggle to preserve the Union. The truth is that under our concept of
constitutional government, in times of extreme perils more than in normal
circumstances �the various branches, executive, legislative, and judicial,�
given the ability to act, are called upon �to perform the duties and
discharge the responsibilities committed to them respectively.�
Following our interpretation of Section 17, Article XII, invoked by President
Arroyo in issuing PP 1017, this Court rules that such Proclamation does not
authorize her during the emergency to temporarily take over or direct the
operation of any privately owned public utility or business affected with public
interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of
national emergency, however, without legislation, he has no power to take
over privately-owned public utility or business affected with public interest.
The President cannot decide whether exceptional circumstances exist
warranting the take over of privately-owned public utility or business
affected with public interest. Nor can he determine when such exceptional
circumstances have ceased. Likewise, without legislation, the President has
no power to point out the types of businesses affected with public interest
that should be taken over. In short, the President has no absolute authority
to exercise all the powers of the State under Section 17, Article VII in the
absence of an emergency powers act passed by Congress.
c. �AS APPLIED CHALLENGE�
One of the misfortunes of an emergency, particularly, that which pertains to
security, is that military necessity and the guaranteed rights of the individual
are often not compatible. Our history reveals that in the crucible of conflict,
many rights are curtailed and trampled upon. Here, the right against
unreasonable search and seizure; the right against warrantless arrest; and
the freedom of speech, of expression, of the press, and of assembly under
the Bill of Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate �direct injury.�
In G.R. No. 171396, petitioners David and Llamas alleged that, on February
24, 2006, they were arrested without warrants on their way to EDSA to
celebrate the 20th Anniversary of People Power I. The arresting officers
cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co.,
Inc. claimed that on February 25, 2006, the CIDG operatives �raided and
ransacked without warrant� their office. Three policemen were assigned to
guard their office as a possible �source of destabilization.� Again, the
basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged
that their members were �turned away and dispersed� when they went to
EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary of
People Power I.
A perusal of the �direct injuries� allegedly suffered by the said
petitioners shows that they resulted from the implementation, pursuant to
G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the
basis of these illegal acts? In general, does the illegal implementation of a
law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid
although they may be abused and misabused[135] and may afford an
opportunity for abuse in the manner of application.[136] The validity of a
statute or ordinance is to be determined from its general purpose and its
efficiency to accomplish the end desired, not from its effects in a particular
case.[137] PP 1017 is merely an invocation of the President�s calling-out
power. Its general purpose is to command the AFP to suppress all forms of
lawless violence, invasion or rebellion. It had accomplished the end desired
which prompted President Arroyo to issue PP 1021. But there is nothing in
PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest,
search or violate the citizens� constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the
ground that its implementor committed illegal acts? The answer is no. The
criterion by which the validity of the statute or ordinance is to be measured is
the essential basis for the exercise of power, and not a mere incidental result
arising from its exertion.[138] This is logical. Just imagine the absurdity of
situations when laws maybe declared unconstitutional just because the
officers implementing them have acted arbitrarily. If this were so, judging
from the blunders committed by policemen in the cases passed upon by the
Court, majority of the provisions of the Revised Penal Code would have been
declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP
1017. General orders are �acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines.�
They are internal rules issued by the executive officer to his subordinates
precisely for the proper and efficient administration of law. Such rules and
regulations create no relation except between the official who issues them
and the official who receives them.[139] They are based on and are the
product of, a relationship in which power is their source, and obedience, their
object.[140] For these reasons, one requirement for these rules to be valid is
that they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the
�necessary and appropriate actions and measures to suppress and prevent
acts of terrorism and lawless violence.�
Unlike the term �lawless violence� which is unarguably extant in our
statutes and the Constitution, and which is invariably associated with
�invasion, insurrection or rebellion,� the phrase �acts of terrorism� is still
an amorphous and vague concept. Congress has yet to enact a law defining
and punishing acts of terrorism.
In fact, this �definitional predicament� or the �absence of an agreed
definition of terrorism� confronts not only our country, but the international
community as well. The following observations are quite apropos:
In the actual unipolar context of international relations, the �fight against
terrorism� has become one of the basic slogans when it comes to the
justification of the use of force against certain states and against groups
operating internationally. Lists of states �sponsoring terrorism� and of
terrorist organizations are set up and constantly being updated according to
criteria that are not always known to the public, but are clearly determined by
strategic interests.

The basic problem underlying all these military actions � or threats of the
use of force as the most recent by the United States against Iraq � consists
in the absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of
violence either by states, by armed groups such as liberation movements, or
by individuals.
The dilemma can by summarized in the saying �One country�s terrorist is
another country�s freedom fighter.� The apparent contradiction or lack of
consistency in the use of the term �terrorism� may further be demonstrated
by the historical fact that leaders of national liberation movements such as
Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben
Bella in Algeria, to mention only a few, were originally labeled as terrorists by
those who controlled the territory at the time, but later became internationally
respected statesmen.
What, then, is the defining criterion for terrorist acts � the differentia
specifica distinguishing those acts from eventually legitimate acts of national
resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been
trying in vain to reach a consensus on the basic issue of definition. The
organization has intensified its efforts recently, but has been unable to bridge
the gap between those who associate �terrorism� with any violent act by
non-state groups against civilians, state functionaries or infrastructure or
military installations, and those who believe in the concept of the legitimate
use of force when resistance against foreign occupation or against
systematic oppression of ethnic and/or religious groups within a state is
concerned.
The dilemma facing the international community can best be illustrated by
reference to the contradicting categorization of organizations and movements
such as Palestine Liberation Organization (PLO) � which is a terrorist group
for Israel and a liberation movement for Arabs and Muslims � the Kashmiri
resistance groups � who are terrorists in the perception of India, liberation
fighters in that of Pakistan � the earlier Contras in Nicaragua � freedom
fighters for the United States, terrorists for the Socialist camp � or, most
drastically, the Afghani Mujahedeen (later to become the Taliban movement):
during the Cold War period they were a group of freedom fighters for the
West, nurtured by the United States, and a terrorist gang for the Soviet
Union. One could go on and on in enumerating examples of conflicting
categorizations that cannot be reconciled in any way � because of opposing
political interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and
evaluations of one and the same group and its actions be explained? In our
analysis, the basic reason for these striking inconsistencies lies in the
divergent interest of states. Depending on whether a state is in the position
of an occupying power or in that of a rival, or adversary, of an occupying
power in a given territory, the definition of terrorism will �fluctuate�
accordingly. A state may eventually see itself as protector of the rights of a
certain ethnic group outside its territory and will therefore speak of a
�liberation struggle,� not of �terrorism� when acts of violence by this
group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on the
definition of terrorism exactly because of these conflicting interests of
sovereign states that determine in each and every instance how a particular
armed movement (i.e. a non-state actor) is labeled in regard to the terrorists-
freedom fighter dichotomy. A �policy of double standards� on this vital
issue of international affairs has been the unavoidable consequence.
This �definitional predicament� of an organization consisting of sovereign
states � and not of peoples, in spite of the emphasis in the Preamble to the
United Nations Charter! � has become even more serious in the present
global power constellation: one superpower exercises the decisive role in the
Security Council, former great powers of the Cold War era as well as medium
powers are increasingly being marginalized; and the problem has become
even more acute since the terrorist attacks of 11 September 2001 I the
United States.[141]
The absence of a law defining �acts of terrorism� may result in abuse and
oppression on the part of the police or military. An illustration is when a
group of persons are merely engaged in a drinking spree. Yet the military or
the police may consider the act as an act of terrorism and immediately arrest
them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on
their part. It must be remembered that an act can only be considered a crime
if there is a law defining the same as such and imposing the corresponding
penalty thereon.
So far, the word �terrorism� appears only once in our criminal laws, i.e., in
P.D. No. 1835 dated January 16, 1981 enacted by President Marcos during
the Martial Law regime. This decree is entitled �Codifying The Various
Laws on Anti-Subversion and Increasing The Penalties for Membership in
Subversive Organizations.� The word �terrorism� is mentioned in the
following provision: �That one who conspires with any other person for the
purpose of overthrowing the Government of the Philippines x x x by force,
violence, terrorism, x x x shall be punished by reclusion temporal x x x.�
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist
Party of the Philippines) enacted by President Corazon Aquino on May 5,
1985. These two (2) laws, however, do not define �acts of terrorism.�
Since there is no law defining �acts of terrorism,� it is President Arroyo
alone, under G.O. No. 5, who has the discretion to determine what acts
constitute terrorism. Her judgment on this aspect is absolute, without
restrictions. Consequently, there can be indiscriminate arrest without
warrants, breaking into offices and residences, taking over the media
enterprises, prohibition and dispersal of all assemblies and gatherings
unfriendly to the administration. All these can be effected in the name of
G.O. No. 5. These acts go far beyond the calling-out power of the President.
Certainly, they violate the due process clause of the Constitution. Thus, this
Court declares that the �acts of terrorism� portion of G.O. No. 5 is
unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police
to commit acts beyond what are necessary and appropriate to suppress and
prevent lawless violence, the limitation of their authority in pursuing the
Order. Otherwise, such acts are considered illegal.
 policemen who �held his head and tried to push him� inside an unmarked
car; fifth, he was charged with Violation of Batas Pambansa Bilang No.
880[145] and Inciting to Sedition; sixth, he was detained for seven (7)
hours; and seventh, he was eventually released for insufficiency of
evidence.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that �the right of the people to be secured in their
persons, houses, papers and effects against unreasonable search and Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
seizure of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private
particularly describing the place to be searched and the persons or things to person may, without a warrant, arrest a person:
be seized.�[142] The plain import of the language of the Constitution is
that searches, seizures and arrests are normally unreasonable unless
authorized by a validly issued search warrant or warrant of arrest. Thus, the
fundamental protection given by this provision is that between person and (a) When, in his presence, the person to be arrested has committed, is
police must stand the protective authority of a magistrate clothed with power actually committing, or is attempting to commit an offense.
to issue or refuse to issue search warrants or warrants of arrest.[143]

(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and
In the Brief Account[144] submitted by petitioner David, certain facts
are established: first, he was arrested without warrant; second, the PNP
operatives arrested him on the basis of PP 1017; third, he was brought at
Camp Karingal, Quezon City where he was fingerprinted, photographed and x x x.
booked like a criminal suspect; fourth, he was treated brusquely by

Neither of the two (2) exceptions mentioned above justifies petitioner
David�s warrantless arrest. During the inquest for the charges of inciting
to sedition and violation of BP 880, all that the arresting officers could
invoke was their observation that some rallyists were wearing t-shirts
with the invective �Oust Gloria Now� and their erroneous assumption
that petitioner David was the leader of the rally.[146] Consequently, the
Inquest Prosecutor ordered his immediate release on the ground of
insufficiency of evidence. He noted that petitioner David was not wearing the
subject t-shirt and even if he was wearing it, such fact is insufficient to charge
him with inciting to sedition. Further, he also stated that there is insufficient
evidence for the charge of violation of BP 880 as it was not even known
whether petitioner David was the leader of the rally.[147]
But what made it doubly worse for petitioners David et al. is that not only was
their right against warrantless arrest violated, but also their right to peaceably
assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
�Assembly� means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs. It is a necessary consequence of our
republican institution and complements the right of speech. As in the case of
freedom of expression, this right is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that
Congress has a right to prevent. In other words, like other rights embraced
in the freedom of expression, the right to assemble is not subject to previous
restraint or censorship. It may not be conditioned upon the prior issuance of
a permit or authorization from the government authorities except, of course, if
the assembly is intended to be held in a public place, a permit for the use of
such place, and not for the assembly itself, may be validly required.

The ringing truth here is that petitioner David, et al. were arrested while they
were exercising their right to peaceful assembly. They were not committing
any crime, neither was there a showing of a clear and present danger that
warranted the limitation of that right. As can be gleaned from
circumstances, the charges of inciting to sedition and violation of BP 880
were mere afterthought. Even the Solicitor General, during the oral
argument, failed to justify the arresting officers� conduct. In De Jonge v.
Oregon,[148] it was held that peaceable assembly cannot be made a crime,
thus:
Peaceable assembly for lawful discussion cannot be made a crime. The
holding of meetings for peaceable political action cannot be proscribed.
Those who assist in the conduct of such meetings cannot be branded as
criminals on that score. The question, if the rights of free speech and
peaceful assembly are not to be preserved, is not as to the auspices under
which the meeting was held but as to its purpose; not as to the relations of
the speakers, but whether their utterances transcend the bounds of the
freedom of speech which the Constitution protects. If the persons
assembling have committed crimes elsewhere, if they have formed or are
engaged in a conspiracy against the public peace and order, they may be
prosecuted for their conspiracy or other violations of valid laws. But it is a
different matter when the State, instead of prosecuting them for such
offenses, seizes upon mere participation in a peaceable assembly and a
lawful public discussion as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the
dispersal and arrest of the members of KMU et al. (G.R. No. 171483)
unwarranted. Apparently, their dispersal was done merely on the basis of
Malaca�ang�s directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale cancellation of all permits
to rally is a blatant disregard of the principle that �freedom of assembly is
not to be limited, much less denied, except on a showing of a clear and
present danger of a substantive evil that the State has a right to
prevent.�[149] Tolerance is the rule and limitation is the exception. Only
upon a showing that an assembly presents a clear and present danger that
the State may deny the citizens� right to exercise it. Indeed, respondents
failed to show or convince the Court that the rallyists committed acts
amounting to lawless violence, invasion or rebellion. With the blanket
revocation of permits, the distinction between protected and unprotected
assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is
lodged with the local government units. They have the power to issue
permits and to revoke such permits after due notice and hearing on the
determination of the presence of clear and present danger. Here, petitioners
were not even notified and heard on the revocation of their permits.[150] The
first time they learned of it was at the time of the dispersal. Such absence of
notice is a fatal defect. When a person�s right is restricted by government
action, it behooves a democratic government to see to it that the restriction is
fair, reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom
of speech i.e., the freedom of the press. Petitioners� narration of facts,
which the Solicitor General failed to refute, established the following: first, the
Daily Tribune�s offices were searched without warrant; second, the police
operatives seized several materials for publication; third, the search was
conducted at about 1:00 o� clock in the morning of February 25, 2006;
fourth, the search was conducted in the absence of any official of the Daily
Tribune except the security guard of the building; and fifth, policemen
stationed themselves at the vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials.
Presidential Chief of Staff Michael Defensor was quoted as saying that such
raid was �meant to show a �strong presence,� to tell media outlets not to
connive or do anything that would help the rebels in bringing down this
government.� Director General Lomibao further stated that �if they do not
follow the standards �and the standards are if they would contribute to
instability in the government, or if they do not subscribe to what is in General
Order No. 5 and Proc. No. 1017 � we will recommend a �takeover.��
National Telecommunications Commissioner Ronald Solis urged television
and radio networks to �cooperate� with the government for the duration of
the state of national emergency. He warned that his agency will not hesitate
to recommend the closure of any broadcast outfit that violates rules set out
for media coverage during times when the national security is
threatened.[151]
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure
lays down the steps in the conduct of search and seizure. Section 4 requires
that a search warrant be issued upon probable cause in connection with one
specific offence to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other
premise be made in the presence of the lawful occupant thereof or any
member of his family or in the absence of the latter, in the presence of two
(2) witnesses of sufficient age and discretion residing in the same locality.
And Section 9 states that the warrant must direct that it be served in the
daytime, unless the property is on the person or in the place ordered to be
searched, in which case a direction may be inserted that it be served at any
time of the day or night. All these rules were violated by the CIDG
operatives.
Not only that, the search violated petitioners� freedom of the press. The
best gauge of a free and democratic society rests in the degree of freedom
enjoyed by its media. In the Burgos v. Chief of Staff[152] this Court held that
--
As heretofore stated, the premises searched were the business and printing
offices of the "Metropolitan Mail" and the "We Forum� newspapers. As a
consequence of the search and seizure, these premises were padlocked and
sealed, with the further result that the printing and publication of said
newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to
the freedom of the press guaranteed under the fundamental law, and
constitutes a virtual denial of petitioners' freedom to express themselves in
print. This state of being is patently anathematic to a democratic framework
where a free, alert and even militant press is essential for the political
enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the
�Metropolitan Mail� and �We Forum� newspapers in the above case, yet
it cannot be denied that the CIDG operatives exceeded their enforcement
duties. The search and seizure of materials for publication, the stationing of
policemen in the vicinity of the The Daily Tribune offices, and the arrogant
warning of government officials to media, are plain censorship. It is that
officious functionary of the repressive government who tells the citizen that
he may speak only if allowed to do so, and no more and no less than what he Under the law they would seem to be, if they were illegally seized, I
is permitted to say on pain of punishment should he be so rash as to think and I know, Your Honor, and these are inadmissible for any
disobey.[153] Undoubtedly, the The Daily Tribune was subjected to these purpose.[155]
arbitrary intrusions because of its anti-government sentiments. This Court
cannot tolerate the blatant disregard of a constitutional right even if it involves
the most defiant of our citizens. Freedom to comment on public affairs is
essential to the vitality of a representative democracy. It is the duty of the xxx xxx xxx
courts to be watchful for the constitutional rights of the citizen, and against
any stealthy encroachments thereon. The motto should always be obsta
principiis.[154]
SR. ASSO. JUSTICE PUNO:

Incidentally, during the oral arguments, the Solicitor General admitted that
the search of the Tribune�s offices and the seizure of its materials for
publication and other papers are illegal; and that the same are inadmissible
�for any purpose,� thus:
These have been published in the past issues of the Daily Tribune; all
you have to do is to get those past issues. So why do you have to go there
at 1 o�clock in the morning and without any search warrant? Did they
become suddenly part of the evidence of rebellion or inciting to sedition or
what?

JUSTICE CALLEJO: SOLGEN BENIPAYO:

You made quite a mouthful of admission when you said that the Well, it was the police that did that, Your Honor. Not upon my
policemen, when inspected the Tribune for the purpose of gathering instructions.
evidence and you admitted that the policemen were able to get the clippings.
Is that not in admission of the admissibility of these clippings that were taken
from the Tribune?
SR. ASSO. JUSTICE PUNO:

SOLICITOR GENERAL BENIPAYO:

 Are you saying that the act of the policeman is illegal, it is not based
on any law, and it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is
nothing in 1017 which says that the police could go and inspect and gather
clippings from Daily Tribune or any other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don�t know if
it is premature to say this, we do not condone this. If the people who have
been injured by this would want to sue them, they can sue and there are
remedies for this.[156]
Likewise, the warrantless arrests and seizures executed by the police were,
according to the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I don�t know whether this will clarify. The acts, the supposed illegal
or unlawful acts committed on the occasion of 1017, as I said, it cannot be
condoned. You cannot blame the President for, as you said, a
misapplication of the law. These are acts of the police officers, that is their
responsibility.[157]

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are
constitutional in every aspect and �should result in no constitutional or
statutory breaches if applied according to their letter.�
The Court has passed upon the constitutionality of these issuances. Its
ratiocination has been exhaustively presented. At this point, suffice it to
reiterate that PP 1017 is limited to the calling out by the President of the
military to prevent or suppress lawless violence, invasion or rebellion. When
in implementing its provisions, pursuant to G.O. No. 5, the military and the
police committed acts which violate the citizens� rights under the
Constitution, this Court has to declare such acts unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganiban�s concurring
opinion, attached hereto, is considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 � a
supervening event � would have normally rendered this case moot and
academic. However, while PP 1017 was still operative, illegal acts were
committed allegedly in pursuance thereof. Besides, there is no guarantee
that PP 1017, or one similar to it, may not again be issued. Already, there
have been media reports on April 30, 2006 that allegedly PP 1017 would be
reimposed �if the May 1 rallies� become �unruly and violent.�
Consequently, the transcendental issues raised by the parties should not be
�evaded;� they must now be resolved to prevent future constitutional
aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it
constitutes a call by the President for the AFP to prevent or suppress lawless
violence. The proclamation is sustained by Section 18, Article VII of the
Constitution and the relevant jurisprudence discussed earlier. However, PP
1017�s extraneous provisions giving the President express or implied power
(1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws
even those not related to lawless violence as well as decrees promulgated by
the President; and (3) to impose standards on media or any form of prior
restraint on the press, are ultra vires and unconstitutional. The Court also
rules that under Section 17, Article XII of the Constitution, the President, in
the absence of a legislation, cannot take over privately-owned public utility
and private business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by
the President � acting as Commander-in-Chief � addressed to subalterns
in the AFP to carry out the provisions of PP 1017. Significantly, it also
provides a valid standard � that the military and the police should take only
the �necessary and appropriate actions and measures to suppress and
prevent acts of lawless violence.� But the words �acts of terrorism�
found in G.O. No. 5 have not been legally defined and made punishable by
Congress and should thus be deemed deleted from the said G.O. While
�terrorism� has been denounced generally in media, no law has been
enacted to guide the military, and eventually the courts, to determine the
limits of the AFP�s authority in carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also
pristine clear that (1) the warrantless arrest of petitioners Randolf S. David
and Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of
the KMU and NAFLU-KMU members; (3) the imposition of standards on
media or any prior restraint on the press; and (4) the warrantless search of
the Tribune offices and the whimsical seizures of some articles for
publication and other materials, are not authorized by the Constitution, the
law and jurisprudence. Not even by the valid provisions of PP 1017 and
G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil,
criminal or administrative sanctions on the individual police officers
concerned. They have not been individually identified and given their day in
court. The civil complaints or causes of action and/or relevant criminal
Informations have not been presented before this Court. Elementary due
process bars this Court from making any specific pronouncement of civil,
criminal or administrative liabilities.
It is well to remember that military power is a means to an end and
substantive civil rights are ends in themselves. How to give the military the
power it needs to protect the Republic without unnecessarily trampling
individual rights is one of the eternal balancing tasks of a democratic state.
During emergency, governmental action may vary in breadth and intensity
from normal times, yet they should not be arbitrary as to unduly restrain our
people�s liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied
the various competing political philosophies is that, it is possible to grant
government the authority to cope with crises without surrendering the two
vital principles of constitutionalism: the maintenance of legal limits to arbitrary
power, and political responsibility of the government to the governed.[158]
WHEREFORE, the Petitions are partly granted. The Court rules that PP
1017 is CONSTITUTIONAL insofar as it constitutes a call by President Gloria
Macapagal-Arroyo on the AFP to prevent or suppress lawless violence.
However, the provisions of PP 1017 commanding the AFP to enforce laws
not related to lawless violence, as well as decrees promulgated by the
President, are declared UNCONSTITUTIONAL. In addition, the provision in
PP 1017 declaring national emergency under Section 17, Article VII of the
Constitution is CONSTITUTIONAL, but such declaration does not authorize
the President to take over privately-owned public utility or business affected
with public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the
AFP and the PNP should implement PP 1017, i.e. whatever is �necessary
and appropriate actions and measures to suppress and prevent acts of
lawless violence.� Considering that �acts of terrorism� have not yet been
defined and made punishable by the Legislature, such portion of G.O. No. 5
is declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal
and warrantless arrest of the KMU and NAFLU-KMU members during their
rallies, in the absence of proof that these petitioners were committing acts
constituting lawless violence, invasion or rebellion and violating BP 880; the
imposition of standards on media or any form of prior restraint on the press,
as well as the warrantless search of the Tribune offices and whimsical
seizure of its articles for publication and other materials, are declared
UNCONSTITUTIONAL.
No costs.
SO ORDERED.
ARTEMIO V. PANGANIBAN
Chief Justice

G.R. No. L-25018 May 26, 1969
ARSENIO PASCUAL, JR., petitioner-appellee,
vs.
BOARD OF MEDICAL EXAMINERS, respondent-appellant, SALVADOR
GATBONTON and ENRIQUETA GATBONTON, intervenors-appellants.
Conrado B. Enriquez for petitioner-appellee.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General
Antonio A. Torres and Solicitor Pedro A. Ramirez for respondent-appellant.
Bausa, Ampil and Suarez for intervenors-appellants.
FERNANDO, J.:
The broad, all-embracing sweep of the self-incrimination clause,1 whenever
appropriately invoked, has been accorded due recognition by this Court ever
since the adoption of the Constitution.2 Bermudez v. Castillo,3 decided in
1937, was quite categorical. As we there stated: "This Court is of the opinion
that in order that the constitutional provision under consideration may prove
to be a real protection and not a dead letter, it must be given a liberal and
broad interpretation favorable to the person invoking it." As phrased by
Justice Laurel in his concurring opinion: "The provision, as doubtless it was
designed, would be construed with the utmost liberality in favor of the right of
the individual intended to be served." 4
Even more relevant, considering the precise point at issue, is the recent case
of Cabal v. Kapunan,5where it was held that a respondent in an
administrative proceeding under the Anti-Graft Law 6 cannot be required to
take the witness stand at the instance of the complainant. So it must be in
this case, where petitioner was sustained by the lower court in his plea that
he could not be compelled to be the first witness of the complainants, he
being the party proceeded against in an administrative charge for
malpractice. That was a correct decision; we affirm it on appeal.
Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the
Court of First Instance of Manila an action for prohibition with prayer for
preliminary injunction against the Board of Medical Examiners, now
respondent-appellant. It was alleged therein that at the initial hearing of an
administrative case7 for alleged immorality, counsel for complainants
announced that he would present as his first witness herein petitioner-
appellee, who was the respondent in such malpractice charge. Thereupon,
petitioner-appellee, through counsel, made of record his objection, relying on
the constitutional right to be exempt from being a witness against himself.
Respondent-appellant, the Board of Examiners, took note of such a plea, at
the same time stating that at the next scheduled hearing, on February 12,
1965, petitioner-appellee would be called upon to testify as such witness,
unless in the meantime he could secure a restraining order from a competent
authority.
Petitioner-appellee then alleged that in thus ruling to compel him to take the
witness stand, the Board of Examiners was guilty, at the very least, of grave
abuse of discretion for failure to respect the constitutional right against self-
incrimination, the administrative proceeding against him, which could result in
forfeiture or loss of a privilege, being quasi-criminal in character. With his
assertion that he was entitled to the relief demanded consisting of perpetually
restraining the respondent Board from compelling him to testify as witness for
his adversary and his readiness or his willingness to put a bond, he prayed
for a writ of preliminary injunction and after a hearing or trial, for a writ of
prohibition.
On February 9, 1965, the lower court ordered that a writ of preliminary
injunction issue against the respondent Board commanding it to refrain from
hearing or further proceeding with such an administrative case, to await the
judicial disposition of the matter upon petitioner-appellee posting a bond in
the amount of P500.00.
The answer of respondent Board, while admitting the facts stressed that it
could call petitioner-appellee to the witness stand and interrogate him, the
right against self-incrimination being available only when a question calling
for an incriminating answer is asked of a witness. It further elaborated the
matter in the affirmative defenses interposed, stating that petitioner-
appellee's remedy is to object once he is in the witness stand, for respondent
"a plain, speedy and adequate remedy in the ordinary course of law,"
precluding the issuance of the relief sought. Respondent Board, therefore,
denied that it acted with grave abuse of discretion.
There was a motion for intervention by Salvador Gatbonton and Enriqueta
Gatbonton, the complainants in the administrative case for malpractice
against petitioner-appellee, asking that they be allowed to file an answer as
intervenors. Such a motion was granted and an answer in intervention was
duly filed by them on March 23, 1965 sustaining the power of respondent
Board, which for them is limited to compelling the witness to take the stand,
to be distinguished, in their opinion, from the power to compel a witness to
incriminate himself. They likewise alleged that the right against self-
incrimination cannot be availed of in an administrative hearing.
A decision was rendered by the lower court on August 2, 1965, finding the
claim of petitioner-appellee to be well-founded and prohibiting respondent
Board "from compelling the petitioner to act and testify as a witness for the
complainant in said investigation without his consent and against himself."
Hence this appeal both by respondent Board and intervenors, the
Gatbontons. As noted at the outset, we find for the petitioner-appellee.
1. We affirm the lower court decision on appeal as it does manifest fealty to
the principle announced by us in Cabal v. Kapunan. 8 In that proceeding for
certiorari and prohibition to annul an order of Judge Kapunan, it appeared
that an administrative charge for unexplained wealth having been filed
against petitioner under the Anti-Graft Act,9the complainant requested the
investigating committee that petitioner be ordered to take the witness stand,
which request was granted. Upon petitioner's refusal to be sworn as such
witness, a charge for contempt was filed against him in the sala of
respondent Judge. He filed a motion to quash and upon its denial, he
initiated this proceeding. We found for the petitioner in accordance with the
well-settled principle that "the accused in a criminal case may refuse, not
only to answer incriminatory questions, but, also, to take the witness stand."
It was noted in the opinion penned by the present Chief Justice that while the
matter referred to an a administrative charge of unexplained wealth, with the
Anti-Graft Act authorizing the forfeiture of whatever property a public officer
or employee may acquire, manifestly out proportion to his salary and his
other lawful income, there is clearly the imposition of a penalty. The
proceeding for forfeiture while administrative in character thus possesses a
criminal or penal aspect. The case before us is not dissimilar; petitioner
would be similarly disadvantaged. He could suffer not the forfeiture of
property but the revocation of his license as a medical practitioner, for some
an even greater deprivation.
To the argument that Cabal v. Kapunan could thus distinguished, it suffices
to refer to an American Supreme Court opinion highly persuasive in
character. 10 In the language of Justice Douglas: "We conclude ... that the
Self-Incrimination Clause of the Fifth Amendment has been absorbed in the
Fourteenth, that it extends its protection to lawyers as well as to other
individuals, and that it should not be watered down by imposing the dishonor
of disbarment and the deprivation of a livelihood as a price for asserting it."
We reiterate that such a principle is equally applicable to a proceeding that
could possibly result in the loss of the privilege to practice the medical
profession.
2. The appeal apparently proceeds on the mistaken assumption by
respondent Board and intervenors-appellants that the constitutional
guarantee against self-incrimination should be limited to allowing a witness to
object to questions the answers to which could lead to a penal liability being
subsequently incurred. It is true that one aspect of such a right, to follow the
language of another American decision, 11 is the protection against "any
disclosures which the witness may reasonably apprehend could be used in a
criminal prosecution or which could lead to other evidence that might be so
used." If that were all there is then it becomes diluted.lawphi1.ñet
The constitutional guarantee protects as well the right to silence. As far back
as 1905, we had occasion to declare: "The accused has a perfect right to
remain silent and his silence cannot be used as a presumption of his guilt."
12 Only last year, in Chavez v. Court of Appeals, 13 speaking through
Justice Sanchez, we reaffirmed the doctrine anew that it is the right of a
defendant "to forego testimony, to remain silent, unless he chooses to take
the witness stand — with undiluted, unfettered exercise of his own free
genuine will."
Why it should be thus is not difficult to discern. The constitutional guarantee,
along with other rights granted an accused, stands for a belief that while
crime should not go unpunished and that the truth must be revealed, such MANOLITA GONZALES VDA.
desirable objectives should not be accomplished according to means or
methods offensive to the high sense of respect accorded the human DE CARUNGCONG, represented
personality. More and more in line with the democratic creed, the deference
accorded an individual even those suspected of the most heinous crimes is by MEDIATRIX CARUNGCONG, Present:
given due weight. To quote from Chief Justice Warren, "the constitutional
foundation underlying the privilege is the respect a government ... must as Administratrix,
accord to the dignity and integrity of its citizens." 14
Petitioner, CORONA, J., Chairperson,
It is likewise of interest to note that while earlier decisions stressed the
principle of humanity on which this right is predicated, precluding as it does VELASCO, JR.,
all resort to force or compulsion, whether physical or mental, current judicial
opinion places equal emphasis on its identification with the right to privacy. NACHURA,
Thus according to Justice Douglas: "The Fifth Amendment in its Self-
Incrimination clause enables the citizen to create a zone of privacy which - v e r s u s - PERALTA and
government may not force to surrender to his detriment." 15 So also with the
observation of the late Judge Frank who spoke of "a right to a private MENDOZA, JJ.
enclave where he may lead a private life. That right is the hallmark of our
democracy." 16 In the light of the above, it could thus clearly appear that no
possible objection could be legitimately raised against the correctness of the
decision now on appeal. We hold that in an administrative hearing against a
medical practitioner for alleged malpractice, respondent Board of Medical
Examiners cannot, consistently with the self-incrimination clause, compel the PEOPLE OF THE PHILIPPINES
person proceeded against to take the witness stand without his consent.
and WILLIAM SATO,
WHEREFORE, the decision of the lower court of August 2, 1965 is affirmed.
Without pronouncement as to costs. Respondents. Promulgated:

Reyes, Dizon, Makalintal, Zaldivar, Sanchez and Capistrano, JJ., concur.

Teehankee and Barredo, JJ., took no part.
Concepcion, C.J., and Castro, J., are on leave. February 11, 2010

THIRD DIVISION

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

INTESTATE ESTATE OF G.R. No. 181409

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 12th Avenue,
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 sisters 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
grandmothers 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 fathers 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 mothers
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 Satos 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 Satos motion in an opposition dated March 29,
2006.
In an order dated April 17, 2006,[8] the trial court granted Satos motion and
ordered the dismissal of the criminal case:
The Trial Prosecutors 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 Zenaidas 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 prosecutions motion for reconsideration[10] was denied in an order
dated June 2, 2006.[11]
Dissatisfied with the trial courts 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 respondents 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
lawgivers 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 Codes 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
(Satos 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 mothers 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 Zenaidas 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 petitioners claim that Zenaidas 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 332s 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 ones relationship by affinity to the blood relatives of
ones 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 spouses
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 ones living child and the surviving
spouse of ones 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 ones relatives under Article 11[2] of the
Revised Penal Code, the mitigating circumstance of immediate vindication of
grave offense committed against ones 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
Manolitas properties in Tagaytay City;
(c) relying on Satos 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
(d) 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. Manolitas 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 raise the presumption that Sato, as the possessor of the falsified document
intention as she only signed and thumbmarked the SPA (a document which and the one who benefited therefrom, was the author thereof.
she could not have read) because of Satos 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 Furthermore, it should be noted that the prosecution moved for the
signature and thumbmark, therefore, served as her conformity to Satos amendment of the Information so as to increase the amount of damages
proposal that she execute a document to settle her taxes. 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
Thus, by inducing Manolita to sign the SPA, Sato made it appear that received the total amount of P22,034,000 as proceeds of the sale of
Manolita granted his daughter Wendy a special power of attorney for the Manolitas properties.[45] This also meant that the deeds of sale (which were
purpose of selling, assigning, transferring or otherwise disposing of Manolitas public documents) were also falsified by making untruthful statements as to
Tagaytay properties when the fact was that Manolita signed and the amounts of consideration stated in the deeds.
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. 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.
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
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.

(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

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 plurality of crimes where different criminal intents result in two or more
is committed through falsification of a public document, however, the matter crimes, for each of which the accused incurs criminal liability.[52] The latter
acquires a very serious public dimension and goes beyond the respective category is covered neither by the concept of complex crimes nor by Article
rights and liabilities of family members among themselves. Effectively, when 48.
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.
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)

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 In [a] complex crime, although two or more crimes are actually committed,
complex crime as treated under Article 48 of the Revised Penal Code. 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]
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)
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]
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.
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 RENATO C. CORONA
was consummated upon the execution of the SPA, the consummation of the Associate Justice
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 Chairperson
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 FIRST DIVISION
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.
JULIUS AMANQUITON, G.R. No. 186080

Petitioner,
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 Present:
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 PUNO, C.J., Chairperson,
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 CARPIO,
 Thereafter, they saw complainant Leoselie John Baaga being chased by a
- v e r s u s - CORONA, certain Gil Gepulane. Upon learning that Baaga was the one who threw the
pillbox[2] that caused the explosion, petitioner and his companions also went
DE CASTRO and after him.
BERSAMIN, JJ.

On reaching Baagas house, petitioner, Cabisudo and Amante knocked on

PEOPLE OF THE PHILIPPINES, the door. When no one answered, they decided to hide some distance away.
After five minutes, Baaga came out of the house. At this juncture, petitioner
Respondent. Promulgated: and his companions immediately apprehended him. Baaga's aunt, Marilyn
Alimpuyo, followed them to the barangay hall.

August 14, 2009

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

DECISION During the investigation, petitioner learned Baaga had been previously
mauled by a group made up of a certain Raul, Boyet and Cris but failed to
CORONA, J.: identify two others. The mauling was the result of gang trouble in a certain
residental compound in Taguig City. Baagas mauling was recorded in a
barangay blotter which read:

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 10-30-201
community.
Time: 10-15 p.m.

RECORD purposes
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.
Dumating dito sa Barangay Head Quarters si Dossen[4] Baaga 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. [Baaga], 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 childs
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 Baaga on October 30, 2001, Baaga himself, Alimpuyo and
Rachelle Baaga (complainants 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 Baaga 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.
Amanquitons 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.
Petitioners 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 petitioners 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 Baagas statement that, when he was apprehended by petitioner
and Amante, there were many people around.[15] Yet, the prosecution
presented only Baaga 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 Baaga by petitioner and
Amante, as supposedly witnessed by Alimpuyo?[16] The testimonies of the
two other prosecution witnesses, Dr. Paulito Cruz and Rachelle Baaga, did
not fortify Baagas claim that petitioner mauled him, for the following reasons:
Dr. Cruz merely attended to Baagas injuries, while Rachelle testified that she
saw Baaga only after the injuries have been inflicted on him.
We note furthermore that, Baaga 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 Baagas 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
Baaga, came out of nowhere and punched Baaga while the latter was being
brought to the police station. Gepulane, not petitioner, could very well have
caused Baaga's injuries.
Alimpuyo admitted that she did not see who actually caused the bloodied
condition of Baagas 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 Baaga 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 Baaga 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 childs 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 minors 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 prosecutions 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.
 The Solicitor General for plaintiff-appellee.
WHEREFORE, the petition is hereby GRANTED. The August 28, 2008
decision and January 15, 2009 resolution of Court of Appeals are Wilfred D. Asis for defendant-appellant.
REVERSED and SET ASIDE. Petitioner Julius Amanquiton is hereby
ACQUITTED of violation of Section 10 (a), Article VI of RA 7160.
GRIÑO-AQUINO, J.:

The accused-appellant Vicente Temblor alias "Ronald" was charged with the
crime of murder in Criminal Case No. 1809 of the Court of First Instance
SO ORDERED. (now Regional Trial Court) of Agusan del Norte and Butuan City for shooting
to death Julius Cagampang. The information alleged:

That on or about the evening of December 30, 1980 at Talo-ao, Buenavista,

Agusan del Norte, Philippines and within the jurisdiction of this Honorable
RENATO C. CORONA Court, the said accused conspiring, and confederating with one another with
Associate Justice Anecito Ellevera who is at large, did then and there wilfully, unlawfully and
feloniously, with treachery and with intent to kill, attack, assault and shoot
with firearms one Julius Cagampang, hitting the latter on the vital parts of the
body thereby inflicting mortal wounds, causing the direct and instantaneous
WE CONCUR: death of the said Julius Cagampang.

CONTRARY TO LAW: Article 248 of the Revised Penal Code.

Upon arraignment on June 8, 1982, he entered a plea of not guilty. After trial,
he was convicted and sentenced to suffer the penalty of reclusion perpetua,
with the accessory penalties thereof under Articles 41 and 42 of the Revised
Penal Code, and to indemnify the heirs of the victim in the amount of
REYNATO S. PUNO P12,000 without subsidiary imprisonment in case of insolvency. He
Chief Justice appealed.

Chairperson The evidence of the prosecution showed that at about 7:30 in the evening of
December 30, 1980, while Cagampang, his wife and their two children, were
G.R. No. L-66884 May 28, 1988 conversing in the store adjacent to their house in Barangay Talo-ao,
Buenavista, Province of Agusan del Norte, the accused Vicente Temblor
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, alias Ronald, arrived and asked to buy a half-pack of Hope cigarettes. While
vs. Cagampang was opening a pack of cigarettes, there was a sudden burst of
VICENTE TEMBLOR alias "RONALD," defendant-appellant. gunfire and Cagampang instantly fell on the floor, wounded and bleeding on
the head. His wife Victorina, upon seeing that her husband had been shot,
shouted her husband's name "Jul" Two persons, one of whom she later
Identified as the accused, barged into the interior of the store through the
main door and demanded that she brings out her husband's firearm. "Igawas
mo ang iyang armas!" ("You let out his firearm!") they shouted. The accused
fired two more shots at the fallen victim. Terrified, Victorina hurried to get the
"maleta" (suitcase) where her husband's firearm was hidden. She gave the
suitcase to the accused who, after inspecting its contents, took her
husband's .38 caliber revolver, and fled.
In 1981, some months after the incident, Victorina was summoned to the
Buenavista police station by the Station Commander Milan, where she saw
and Identified the accused as the man who killed her husband.
The accused's defense was an alibi. He alleged that from 4:00 o'clock in the
afternoon of December 30, 1980, he and his father had been in the house of
Silverio Perol in Barangay Camagong, Nasipit, Agusan del Norte, where they
spent the night drinking over a slaughtered dog as "pulutan," until 8:00
o'clock in the morning of the following day, December 31, 1980.
The accused and his companion, admittedly members of the dreaded NPA
(New People's Army) were not apprehended earlier because they hid in the
mountains of Malapong with other members- followers of the New People's
Army. Temblor surrendered to Mayor Dick Carmona of Nasipit during the
mass surrender of dissidents in August, 1981. He was arrested by the
Buenavista Police at the Buenavista public market on November 26, 1981
and detained at the Buenavista municipal jail.
The accused capitalized the fact that the victim's widow, Victorina, did not
know him by name. That circumstance allegedly renders the Identification of
the accused, as the perpetrator of her husband's killing, insufficient.
However, during the trial, the accused was positively identified by the widow
who recognized him because she was less than a meter away from him
inside the store which was well lighted inside by a 40-watt flourescent lamp
and by an incandescent lamp outside. Her testimony was corroborated by
another prosecution witness — a tricycle driver, Claudio Sabanal — who was
a long-time acquaintance of the accused and who knew him as "Ronald." He
saw the accused in the store of Cagampang at about 7:30 o'clock in the
evening of December 30, 1980. He heard the gunshots coming from inside
the store, and saw the people scampering away.
Dr. Alfredo Salonga who issued the post-mortem examination report certified
that the victim sustained three (3) gunshot wounds.
Rebutting the accused's alibi, the prosecution presented a Certification of the
Nasipit Lumber Company's Personnel Officer, Jose F. Tinga (Exh. D), and
the NALCO Daily Time Record of Silverio Perol (Exh. D), showing that Perol
was not at home drinking with the accused and his father, but was at work on
December 30, 1980 from 10:50 o'clock in the evening up to 7:00 o'clock in
the morning of December 31, 1980. The accused did not bother to overcome
this piece of rebuttal evidence.
In this appeal, the appellant alleges that the court a quo erred:
1. in finding that he was positively identified by the prosecution witness
as the killer of the deceased Julius Cagampang; and
2. in rejecting his defense of allbi.
The appeal deserves no merit. Was the accused positively Identified as the
killer of Cagampang? The settled rule is that the trial court's assessment of
the credibility of witnesses while testifying is generally binding on the
appellate court because of its superior advantage in observing their conduct
and demeanor and its findings, when supported by convincingly credible
evidence as in the case at bar, shall not be disturbed on appeal (People vs.
Dava, 149 SCRA, 582).<äre||anº•1àw>
The minor inconsistencies in the testimony of the eyewitness Victorina Vda.
de Cagampang did not diminish her credibility, especially because she had
positively Identified the accused as her husband's assailant, and her
testimony is corroborated by the other witnesses. Her testimony is credible,
probable and entirely in accord with human experience.
Appellant's self-serving and uncorroborated alibi cannot prevail over the
positive Identification made by the prosecution witnesses who had no base
motives to falsely accuse him of the crime. Furthermore, the rule is that in
order for an alibi to be acceptable as a defense, it is not enough that the
appellant was somewhere else when the crime was committed; it must be
demonstrated beyond doubt that it was physically impossible for him to be at
the scene of the crime. Here it was admitted that Perol's house in barrio
Camagong, Nasipit is accessible to barrio Talo-ao in Buenavista by jeep or
tricycle via a well-paved road in a matter of 15 to 20 minutes. The testimony
of the witnesses who had positively Identified him could not be overcome by
the defendant's alibi. (People vs. Mercado, 97 SCRA 232; People vs.
Venancio Ramilo, 146 SCRA 258.)
Appellant's alleged lack of motive for killing Cagampang was rejected by the
trial court which opined that the defendant's knowledge that Cagampang
possessed a firearm was motive enough to kill him as killings perpetrated by
members of the New People's Army for the sole purpose of acquiring more
arms and ammunition for their group are prevalent not only in Agusan del
Norte but elsewhere in the country. It is known as the NPA's "agaw armas"
campaign. Moreover, proof of motive is not essential when the culprit has
been positively Identified (People vs. Tan, Jr., 145 SCRA 615).
The records further show that the accused and his companion fled after
killing Cagampang and taking his firearm. They hid in the mountains of
Agusan del Norte. Their flight was an implied admission of guilt (People vs.
Dante Astor, 149 SCRA 325; People vs. Realon, 99 SCRA 422).
WHEREFORE, the judgment appealed from is affirmed in all respects,
except as to the civil indemnity payable to the heirs of the Julius Cagampang
which is increased to P30,000.00.
SO ORDERED.
Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.
G.R. No. L-68969 January 22, 1988
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
USMAN HASSAN y AYUN, respondent.
SARMIENTO, J.:
This is a pauper's appeal of the decision 1 of the Regional Trial Court of
Zamboanga City, Ninth Judicial Region Branch XIII, dated January 25, 1984,
which "finds the accused USMAN HASSAN y AYUN guilty beyond
reasonable doubt as principal of the Crime of MURDER, and there being
neither aggravating nor mitigating circumstance attending the commission of
the crime, and pursuant to Paragraph No. 1 of Article 64 of the Revised
Penal Code, hereby imposes upon the said accused the penalty of
RECLUSION PERPETUA and all its accessory penalties; to indemnify the
heirs of the deceased victim Ramon Pichel, Jr. y Uro the amount of
P12,000.00 and to pay the costs." 2
Usman Hassan was accused of murder for stabbing to death Ramon Pichel,
Jr. y Uro, 24, single, and a resident of Zamboanga City. 3 At the time of his
death on July 23,1981, the deceased was employed as manager of the sand
and gravel business of his father. On the other hand, Hassan was an
illiterate, 15-year-old pushcart cargador. 4
The quality of justice and the majesty of the law shine ever brightest when
they are applied with more jealousy to the poor, the marginalized, and the
disadvantaged. Usman Hassan, the herein accused-appellant, belongs to
this class. At the time of the alleged commission of the crime, he was poor,
marginalized, and disadvantaged. He was a flotsam in a sea of violence,
following the odyssey of his widowed mother from one poverty-stricken area
to another in order to escape the ravages of internicine war and rebellion in
Zamboanga del Sur. In the 15 years of Hassan's existence, he and his family
had to evacuate to other places for fear of their lives, six times. His existence
in this world has not even been officially recorded; his birth has not been
registered in the Registry of Births because the Samal tribe, to which he
belongs, does not see the importance of registering births and deaths.
Usman was convicted on the bases of the testimony of a lone eyewitness for
the prosecution and the sloppiness of the investigation conducted by the
police investigator, Police Corporal Rogelio Carpio of the Homicide and
Arson Section of the Zamboanga City Police Station, who also testified for
the prosecution.
 xxx xxx xxx
We rule that Usman Hassan's guilt was not proved beyond reasonable doubt
and that Usman Hassan must, therefore, be set free. Q When you rushed Ramon Pichel, Jr. to the hospital you came to know that
he was already dead, is that correct?
The lone eyewitness for the prosecution is Jose Samson, 24 years old when
he testified, married, and a resident of Zamboanga City. On the day of the A Yes, sir, I learned that he was already dead.
killing, he was employed at the sand and gravel business of the father of the
deceased but was jobless at the time of his examination-in-chief on February Q In the hospital, were you investigated by the police?
3, 1982.
A They just asked the description of that person as to his attire and his
He testified that he was with Ramon Pichel, Jr. at about 7:00 o'clock in the appearance.
evening of July 23, 1981; that he was a backrider in the motorcycle of Ramon
when they went to buy mangoes at Fruit Paradise near the Barter Trade Q And it was while in the hospital that you told them the description of the
Zone in Zamboanga City that while he was selecting mangoes, he saw a one who stabbed Ramon Pichel, Jr.?
person stab Ramon who was seated at his red Honda motorcycle which was
parked about two or three meters from the fruit stand where he Samson) was A Yes, Sir.
selecting mangoes; that he saw the assailant stab Ramon "only once" and
that after the stabbing, the assailant ran towards the PNB Building. When Q And the body of Ramon Pichel, Jr., was brought to the Funeraria La
asked at the cross-examination if he knew the assailant, Samson said, "I Merced?
know him by face but I do not know his name." 5
A Yes, sir,
This sole eyewitness recounted the stabbing thus: "While Ramoncito Pichel,
Jr. was holding the motorcycle with both of his hands, the assailant come Q Can you recall what time was that?
from behind, held his left hand and stabbed him from behind on his chest
while the victim was sitting on the motorcycle." He claimed that he was able A I do not know what time was that.
to see the assailant because it was very bright there that Ramon was facing
the light of a petromax lamp, and that all these happened in front of the fruit Q And it was all La Merced Funeraria that the police brought to you the
stand a — distance of about 6 to 7 meters from the side of the road. accused?

Samson described the assailant as wearing a white, short-sleeved t-shirt and A...
maong pants, but "he did not see if the aggressor was wearing shoes," that
the assailant stabbed Ramon with a knife but "he did not exactly see what Q For Identification?
kind of knife it was, and he did not see how long the knife was He said he
brought the wounded Ramon to the Zamboanga City General Hospital in a A Yes, sir.
tricycle.
Q And he was alone when you Identified him?
On cross-examination, Samson testified:
A Yes he was alone.

Q Aside from working with the Pichel family in their sand and gravel
business, do you have any blood relationship with them?
A Yes. sir. 6
(Emphasis supplied)
xxx xxx xxx
What comes as a surprise is that Samson's statement 7 which was taken
only on July 25, 1981, two days after the stabbing, and sworn to only on July
27, 1981, also two days after it was taken, or four days after the killing, was
never presented or mentioned by the prosecution at all. The information was
practically forced out of Police Corporal Rogelio P. Carpio, a witness for the
People, during his cross-examination. 8 The sworn statement contained the
following questions and answers:
xxx xxx xxx
Q-14. What and please narrate it to me briefly in your own words, the
incident you are referring?
A-14. While I was busy selecting some mangoes, I saw unidentified person
whom I can recognize by face if seen again embraced my companion Ramon
Pitcher Jr. while the latter was aboard his motorcycle parked within the area.
That this person without much ado, and armed with a knife suddenly stabbed
him (Ramon). That by coincidence to this incident, our eye met each other
and immediately thereafter, he fled the area toward the Philippine National
Bank (PNB). That this unidentified person was sporting a semi-long hair,
dressed in White Polo-Shirt (Short sleeve), maong pants height to more or
less 5'5, Dark Complexion. That as this unidentified person fled the area I
immediately came to aid my companion, Ramon Pitcher, Jr., and rushed him
to Zamboanga General Hospital, on board a Tricycle. That may companion
(Ramon) did not whispered (sic) any words to me for he was in serious
condition and few minutes later, he expired.
Q-15. Was tills unidentified person was with companion when he attack
(sic) Ramon Pitcher Jr.?
A-15. He was alone Sir.
Q-16. Can you really Identified (sic) this person who attacked and stabbed
your companion, Ramon Pitcher, Jr., that evening in question?
A-16. Yes, Sir,
Q-17. Do you still remember that confrontation we made at the Office of La
Merced Funeral Homes, wherein you were confronted with one Usman
Hassan, whom this Officer brought along?
A-17. Yes, Sir.
Q-18. Was he the very person, who attacked and stabbed your companion,
Ramon Pitcher, Jr.?
A-18. Yes, Sir, he was the very person who attacked and stabbed my
companion, Ramon Pitcher, Jr., that evening in question.
Q-19. Why?
A-19. Because his face and other physical appearance were fully noted by
me and this I cannot forget for the rest of my life.
Q-20. Before this incident, was there any altercation that had ensued while
in the process of buying some mangoes in that area?
A-20. None Sir.
Q-21. Were you able to note what kind of knife used by said Usman
Hassan in stabbing your companion, Ramon Pitcher Jr.?
A-21: None Sir,
Q-22. Well, I have nothing more to ask of you, do you have anything more
to say, add or alter in this statement?
A-22. No more Sir.
Q-23. Are you willing to give a supplemental statement if needed in the
future?
A-23. Yes, Sir. 9
(Emphasis supplied)
xxx xxx xxx
The version of the sole eyewitness appearing in his statement 10 is
substantially the same as that embodied in the "Case Report," Exhibit it "C",
by Police Corporal Carpio, also admitted a s Exhibit "2." This exhibit for the
prosecution confirms the sworn statement of witness Samson that an
unidentified person, whom he recognized only by face, appeared and without
any provocation, the latter embraced the victim and stabbed the same
allegedly with a knife." The rest of the Case Report: is also significant in that
it confirms the confrontation between the accused and Jose Samson in the
funeral parlor arranged by the police Investigator and prosecution witness,
Corporal Carpio.
xxx xxx xxx
From this end, a follow-up was made within the premises of the Old Barter
Trade, wherein the person of USMAN HASSAN Y AYUN, of Paso Bolong,
this City, was arrested in connection with the above stated incident. That this
Officer and companions arrested this person Usman due to his physical
appearance, which was fully described by victim's companion. Jose Samson.
During his arrest, a knife, measuring to more or less seven (7) inches in
blade was confiscated in his possession. The person of Usman Hassan was
brought along at the La Merced Funeral Homes for a confrontation with
victims companion, Jose Samson and in this confrontation, Jose Samson
positively Identified said Usman Hassan as the very person who stabbed the
victim.
Usman Hassan, on the other hand, denied the charges levelled against hub
and admitted ownership of said knife; claiming among other things that he
used said knife for slicing mangoes. 11
xxx xxx xxx
We hold that the evidence for the prosecution in its entirety does not satisfy
the quantum of proof — beyond reasonable doubt — required by the
Constitution, the law, and applicable jurisprudence to convict an accused
person. The said evidence denies us the moral certainty which would allow
us to pronounce, without uneasiness of conscience. Usman Hassan y Ayun
guilty of the killing of the deceased Ramon Pichel, Jr. y Uro, and condemn
him to life imprisonment and in effect turning him into a flotsam again in a
sea of convicted felons in which he would be a very young stranger.
In evaluating the worth of the testimony of the lone eyewitness for the
prosecution against the denial and alibi of the accused, value judgment must
not be separated from the constitutionally guaranteed presumption of
innocence.
When the evidence for the prosecution and the evidence for the accused are
weighed, the scales must be tipped in favor of the latter. This is because of
the constitutional presumtion of innocence the accused enjoys as a counter-
foil to the awesome authority of the State that is prosecuting him.
The element of doubt, if reasonable in this case, must operate against the
inference of guilt the prosecution would draw from its evidence. That
evidence, as it happens, consists only of the uncorroborated statement of the
two policemen which, as previously observed, is flawed and therefore
suspect. 12
The testimony of Jose Samson, the lone eyewitness, is weak and
unconvincing. And so with the evidence sought to be introduced by Police
Corporal Carpio. We discover, for example, that the expert testimony of the
medico-legal officer of the National Bureau of Investigation, Dr. Valentin
Bernalez, presented by the prosecution, contradicted, on material points, the
testimony of the one eyewitness, Jose Samson. While Samson averred on
the witness stand that he saw the assailant stab the deceased "from behind
on his chest" 13 only once, the NBI medico-legal officer Identified two stab
wounds, one at the front portion of the chest at the level and third rib, (sic)
and another stab wound located at the left arm posterior aspect." 14 The
same medical expert also concluded from the nature and location of the
chest wound, which was the cause of death, that the same was inflicted on
the victim while the alleged accused was in front of him." 15
The investigation of this case by the Homicide/Arson Section of the
Zamboanga Southern Police Sector, 16 at Zamboanga City, particularly by
Police Corporal Rogelio P. Carpio, leaves much to be desired. For one, we
are not satisfied with the procedure adopted by the police investigators in the
Identification of the accused as the assailant. We have no doubt that Usman
Hassan was "presented" alone 17 to Jose Samson by the police investigator
and prosecution witness, Police Corporal Carpio, and his police companions,
at the office of the La Merced Funeral Homes in Zamboanga City. As
correctly termed by the very evidence 18 of the prosecution, the procedure
adopted by the police investigators was a confrontation" between Jose
Samson, Jr. and Usman. Earlier, on direct examination, Corporal Carpio
testified that Usman was alone when he was brought to Samson for
confrontation in the funeral parlor. However, on cross-examination, Carpio
made a turnabout by saying that the accused was Identified by Samson in a
"police line-up;" this tergiversation we dare say, was an afterthought, more
the result of an over or careless cross-examination, augmented by the
leading questions 19 of the trial judge rather than a fastidiousness if not
sincerity, on the part of the police investigator, to honestly correct erroneous
statements in his examination-in-chief. The fact remains that both Samson
and the accused testified clearly and unequivocably that Usman was alone
when presented to Samson by Carpio. There was no such police line-up as
the police investigator, to honestly correct erreoneous statements in his
examination-in-chief. The fact remains that both Samson and the accused
testified clearly and unequivocably that Usman was alone when presented to
Samson by Carpio. There was no such police investigator claimed on second
thought.
The manner by which Jose Samson, Jr. was made to confront and Identify
the accused alone at the funeral parlor, without being placed in the police
line-up, was "pointedly suggsestive, generated confidence where there was
none, activated visual imagination, and, all told, subserted his reliability as
eyewitness. This unusual, coarse, and highly singular method of
Identification, which revolts against the accepted principles of scientific crime
detection, alienates the esteem of every just man, and commands neither our
respect nor acceptance." 20
Moreover, the confrontation arranged by the police investigator between the
self-proclaimed eyewitness and the accused did violence to the right of the
latter to counsel in all stages of the investigation into the commission of a
crime especially at its most crucial stage — the Identification of the accused.
As it turned out, the method of Identification became just a confrontation. At
that critical and decisive moment, the scales of justice tipped unevenly
against the young, poor, and disadvantaged accused. The police procedure
adopted in this case in which only the accused was presented to witness
Samson, in the funeral parlor, and in the presence of the grieving relatives of
the victim, is as tainted as an uncounselled confession and thus falls within
the same ambit of the constitutionally entrenched protection. For this
infringement alone, the accused-appellant should be acquitted.
Moreover, aside from this slipshod Identification procedure, the rest of the
investigation of the crime and the preparation of the evidence for prosecution
were done haphazardly, perfunctorily, and superficially. Samson was not
investigated thoroughly and immediately after the incident. As previously
mentioned, his statement was taken by the investigator only two days after
the murder of Ramon Pichel, Jr. and sworn only two days after it had been
taken. Similarly, there is nothing in the record to show that the fruit vendor—
from whom Samson and the deceased were buying mangoes that fateful
evening and who certainly must have witnessed the fatal stabbing—was
investigated, or why he was not investigated. Nor is any explanation given as
to why the companion 21 of the accused at the time Corporal Carpio arrested
him (accused) 'sitting on a pushcart " 22 at about 8:00 P.M. (around 7:00
P.M., according to Usman) of that same evening near the scene of the crime,
was not also investigated when he could have been a material witness of the
killing or of the innocence of the accused. In addition, the knife and its
scabbard, 23 Confiscated by Carpio from Usman (tucked on the right side of
his waist") at the time of his arrest, were not even subjected to any testing at
all to determine the presence of human blood which could be typed and
compared with the blood type of the deceased. A crime laboratory test —
had Carpio or the prosecuting fiscal, or even the trial judge, insisted on it —
would have revealed whether or not the knife in question (confiscated from
the accused by Carpio one hour after the alleged commission of the crime)
had indeed been the weapon used to kill Ramon. The police investigator
instead nonchalantly dismissed this sin of omission by saying that the knife
could have been cleaned or the bloodstain could have been taken away. 24
This presumption of the deadly weapon's having been "cleaned" of
bloodstains is tantamount to pronouncing the accused of being guilty.
Our doubt about the guilt of the accused is further deepened by a resolution,
25 in a separate case, 26 of Assistant City Fiscal of Zamboanga City and
deputized Tanod bayan Prosecutor Pablo Murillo, which clearly reveals that
on July 24, 1981, a day after the killing of Ramon Pichel, Jr., a similar
stabbing took place at Plaza Pershing near the place of the earlier incident,
with the suspect in that frustrated homicide case being a certain Benhar Isa,
'a notorious and a deadly police character" in Zamboanga City, with a long
record of arrests. In that resolution, Fiscal Murillo said the same Benhar Isa
was tagged as 'also a suspect in the stabbing of Ramon Pichel, Jr. to death
and the stabbing of Pastor Henry Villagracia at the Fruit Paradise, this City."
The said resolution further states that "with regards to this incident or
witnesses ever testified for fear of possible reprisals." 27
The trial of Usman Hassan began on October 27, 1981. Benhar Isa himself
was killed by a policeman on August 28, 1981, while he (Isa) "was apparently
under the influence of liquor armed with a knife (was) molesting and extorting
money from innocent civilians' and "making trouble." 28 The records of the
case at bar do not show any attempt on the part of Corporal Carpio, or any
other police officer, to investigate or question Benhar Isa in connection with
the killing of Pichel, Jr. Was it fear of the notorious police character that
made the police officers disregard the possible connection between the
slaying of Ramon and that of the person (Harun Acan y Arang of the Ministry
of National Defense) 29 who was allegedly stabbed by Benhar Isa a day after
the killing of Ramon Jr.? And yet questioning Isa might have provided that
vital link to the resolution of Usman's guilt or innocence. But why should the
police officers investigate Isa when Usman Hassan was already in custody
and could be an available fall guy? Usman Hassan, instead, became a victim
of a grave injustice. Indeed, Usman Hassan is too poor to wage a legal fight
to prove his innocence. And he is so marginalized as to claim and deserve
an honest-to-goodness, thorough, and fair police investigation with all angles
and leads pursued to their logical, if not scientific, conclusions. Sadly
circumstanced as he is, the authority of the State was too awesome for him
to counteract.
The appealed decision made much ado of the admission by Usman "that he
was arrested at the former barter trade, which is a place just across the place
of the stabbing at the Fruit Paradise." 30 The trial judge found it "therefore
strange that on the very evening of the stabbing incident he was still at the
barter trade area by 8:00 o'clock in the evening when he usually comes to
the city proper at about 6:00 o'clock in the morning and goes home at past
5:00 o'clock and sometimes 6:00 o'clock in the afternoon." 31 Usman's
explanation — that, at around 7:00 o'clock P.M., he was waiting for
transportation to take him home — was found by the trial court as 'flimsy and
weak since he did not explain why he had to go home late that evening." 32
But the whole trouble is nobody asked him. The trial judge did not propound
any single question to the accused, and only three to his mother on
innocuous matters, by way of clarification, if only to put on record what the
mother and son could articulate with clarity. Taking into account their poverty
and illiteracy, the mother and son needed as much, if not more, help, than
the trial judge extended to the prosecution witnesses during their
examination by asking them clarificatory and mostly leading questions. In
that sense and to that extent, the accused was disadvantaged.
A fact that looms large, though mutely to testify on the innocence of the
accused but the importance of which was brushed away by the trial judge
was the presence of the accused near the scene (about 100 to 150 meters
away) soon after the stabbing (he testified at around 7:00 P.M. although
Police Corporal Carpio stated it was 8:00 P.M.) where he was found sitting
on his pushcart with a companion. If he were the assailant, he would have
fled. But the trial court instead indulged in conjecture, foisting the probability
that the accused 'was lulled by a false sense of security in returning to the
place (of the stabbing), when no police officers immediately responded and
appeared at the scene of the crime," adding 'there are numerous cases in the
past where criminals return to the scene of their crimes, for reasons only
psychologist can explain." 33 It must have escaped the trial court's attention
that Usman has no criminal record, and, therefore, he could not be generally
classed with criminals. In the second place, the trial court's rationalization
ignores the biblical truism recognized by human nature and endorsed with
approval by this Court that "(T)he wicked flee when no man pursueth but the
righteous are as bold as a lion." 34
And now as a penultimate observation, we could not help but note the total
absence of motive ascribed to Usman for stabbing Ramon, a complete
stranger to him. While, as a general rule, motive is not essential in order to
arrive at a conviction, because, after all, motive is a state of mind, 35
procedurally, however, for purposes of complying with the requirement that a
judgment of guilty must stem from proof beyond reasonable doubt, the lack
of motive on the part of the accused plays a pivotal role towards his acquittal.
This is especially true where there is doubt as to the Identity of the culprit 36
as when 'the Identification is extremely tenuous," 37 as in this case.
We can not end this travail without adverting to the cavalier manner in which
the trial court disregarded the claimed young age of Usman Hassan.
The defense claims that the accused Usman Hassan is a minor, basing such
claim on the testimony of Lahunay Hassan, the mother of said accused, who
declared that her son Usman Hassan, who is one of her four (4) children,
was born in the year 1967. She testified that she was just told by a person
coming from their place about the year of the birth of her son Usman.
However on cross-examination, Lahunay Hassan cannot even remember the
date or year of birth of her other children. The failure of Lahunay Hassan to
remember the date or year of birth of her children is of course
understandable, considering that she is unschooled and she belongs to a
tribe that does not register births, deaths or marriages, however, it is strange
that she only took pains to find out the year of birth of her son Usman. For
this reason, the Court granted a motion of the defense on September 13,
1982, to have the herein accused examined by a competent dentist to
determine his age. However, the findings of the dentist of Zamboanga
General Hospital which is marked as Exhibit "5" shows the following: "age
cannot be determined accurately under present mouth conditions.
Approximately, he can be from 14 to 21 years of age." This simply means
that the herein accused could either be 14 years of age or 21 years of age, or
any age in between those aforestated years. From the observation of this
court, the accused Usman Hassan was about 18 years of age at the time he
committed this crime and this observation is based on his personal
appearance, his size and facial features and other personal characteristics,
hence he can not be classified as a youthful offender under Article. 189 of
Presendential Decree No. 603, as ammended by Presedential Decree No.
1179. In the case of U.S. vs. Mallari, 29 Phil. 13 and People vs. Reyes and
Panganiban, CA 48 O.G. 1022, cited in the Edition, Page 680, it was ruled by
the Supreme Court that "In cases where the age of the culprit is at issue as a
basis for claiming an exempting mitigating circumstance, it is incumbent upon
the accused to establish that circumstance ad any other elements of
defense. 38
Considering that the age of the accused could exempt him from punishment
or cause the suspension of his sentence under Articles 12 and 80,
respectively of the Revised Penal Code, if found guilty, more meticulousness
and care should have been demanded of medical or scientific sources, and
less reliance on the observation of the judge as had happened in this case.
The preliminary findings of the dentist that the accused could be anywhere
between fourteen to twenty one years, despite the difficulty of arriving at an
accurate determination due to Hassan's mouth condition, would have placed
the trial judge on notice that there is the probability that the accused might be
exempted from criminal liability due to his young age. All the foregoing
indicates that the accused had not been granted the concern and
compassion with which the poor, marginalized, and disadvantaged so
critically deserve. It is when judicial and police processes and procedures are
thoughtlessly and haphazardly observed that cries of the law and justice
being denied the poor are heard. In any event, all this would not be of any
moment now, considering the acquittal of the accused herein ordered.
WHEREFORE, the decision is hereby REVERSED, and the accused Usman
Hassan y Ayun is ACQUITTED of the crime charged. His release from
confinement is hereby Ordered, unless he is held for another legal cause.
With costs de oficio.
SO ORDERED.
Yap (Chairman), Paras and Padilla, JJ., concur.
[G.R. No. 135919. May 9, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. DANNY DELOS SANTOS Y
FERNANDEZ, appellant.
DECISION
SANDOVAL-GUTIERREZ, J.:
For automatic review is the Decision[1] dated October 2, 1998 of the
Regional Trial Court, Branch 21, Malolos, Bulacan, in Criminal Case No.
3551798, finding appellant Danny delos Santos guilty of the crime of murder
and sentencing him to suffer the penalty of death.
In the Information[2] dated February 23, 1998, appellant was charged with
murder, thus:
That on or about the 6th day of November 1997, in the Municipality of San
Jose, Del Monte, Province of Bulacan, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, armed with a kitchen
knife, with intent to kill one Rod Flores y Juanitas, with evident premeditation,
treachery and taking advantage of superior strength, did then and there
willfully, unlawfully and feloniously attack, assault and stab with the said
kitchen knife said Rod Flores y Juanitas, hitting him on the different parts of
his body, thereby inflicting upon him mortal wounds which directly caused his
death.
Upon arraignment, appellant pleaded not guilty.[3] Thereafter, trial on the
merits ensued. The prosecution presented Marcelino de Leon, Marvin
Tablate, Dr. Benito Caballero and Romeo Flores as its witnesses. Appellant
and Sonny Bautista took the witness stand for the defense.
Marcelino De Leon testified that at around 8:00 p.m. of November 6, 1997,
he saw Rod Flores drinking gin with Narciso Salvador, Marvin Tablate and
Jayvee Rainier at the latters house in Sarmiento Homes, San Jose del
Monte, Bulacan.[4] As he was about to fetch water from a nearby faucet, he
approached them and borrowed Flores cart.[5] While waiting for the cart, he
stood across Flores who was then seated and conversing with the group.[6]
Suddenly, appellant emerged from the back of Flores and stabbed him with a
knife,[7] making an upward and downward thrust.[8] Flores ran after he was
stabbed twice.[9] Appellant pursued him and stabbed him many times.[10] As
a result, Flores intestines bulged out of his stomach.[11] Appellant ceased
stabbing Flores only after he saw him dead. Thereafter, he turned his ire
against Jayvee Rainier and chased him. Fearful for his life, witness De Leon
hid himself and later on reported the incident to the police.[12]
Marvin Tablate corroborated De Leons testimony. On cross-examination,
Tablate testified that he tried to help Flores by separating him from the
appellant who ran away.[13] He also testified that the latter joined his group
at about 11:00 a.m. and kept on coming back and forth.
Dr. Caballero declared on the witness stand that Flores suffered twenty-one
(21) stab wounds in the frontal, posterior and lateral side of his body, eleven
(11) of which were fatal. Dr. Caballero said it was possible that appellant was
behind Flores considering the stab wounds inflicted at his back.[14]
According to the doctor, Flores died because of massive external/internal
hemorrhages due to multiple stab wounds in the thorax and abdomen
penetrating both lungs, heart, stomach, liver, spleen and intestines.[15]
Romeo Flores testified that his son Rod Flores was then working at Vitarich,
Marilao, Bulacan, earning P600.00 every 15th day of the month;[16] that he
spent P100,000.00 for his sons burial and wake; that he has receipts in the
amount of P19,110.00 spent for the funeral services and the cost of the
cemetery lot[17] and a list of other expenses in the amount of
P35,960.00;[18] and that his family has been grieving for the loss of a loved
one.
Appellant had a different version of the events. He denied the accusation and
declared that on November 6, 1997 at 8:00 p.m., he was in his aunties house
in Muson, San Jose del Monte, Bulacan,[19] forty (40) meters away from the
scene of the crime. He was then fetching water.[20] Earlier, at about 5:30
p.m., he and Flores met but they did not greet each other. There was no
altercation between them. Hence, he could not understand why De Leon and
Tablate testified against him.
Sonny Bautista testified that on that particular date and time, he and
appellant were in their aunties house in San Jose del Monte, Bulacan.[21]
They watched television up to 8:30 p.m. and then went home. At about 10:00
p.m., appellant was arrested. Bautista did not inform the policemen that they
were watching television in their aunties house at the time the crime took
place. Neither did he accompany appellant to the police station.[22]
On October 2, 1998, the trial court rendered a Decision, the dispositive
portion of which reads:
All premises considered, this Court resolves and so holds that the
prosecution has been able to establish the criminal culpability of the accused
beyond reasonable doubt. Accordingly, Danny delos Santos is hereby found
guilty of the crime of Murder with the qualifying circumstance of treachery.
In the imposition of the penalty, the Court hereby takes into account the
brutality in the manner by which the life of the victim was taken, and if only to
serve as deterrent to others who might be similarly obsessed, it is believed
that the higher of the two penalties provided should be meted to the accused
herein. Absent any circumstance that would mitigate the severity of his
criminal act and pursuant to Articles 248 of the Revised Penal Code, as
amended by Section 6, Republic Act no. 7659, the accused Danny delos
Santos y Fernandez is hereby sentenced to suffer the penalty of Death by
lethal injection.
Further, the accused is condemned to indemnify the heirs of the deceased
the amount of P50,000.00 for the victims death. Moreover, accused delos
Santos is ordered to pay the said heirs of the deceased Rod Flores the
following sums of money:
1. P264,000.00 for loss of earning capacity;
2. P55,070.00 for actual and compensatory damages;
3. P50,000.00 for moral damages;
4. P50,000.00 for exemplary damages.
With costs against the accused.
SO ORDERED.
In his Appellants brief, appellant ascribes to the trial court the following
errors:
I
THE COURT A QUO GRAVELY ERRED IN GIVING FULL FAITH AND
CREDENCE TO THE TESTIMONY OF THE ALLEGED EYEWITNESSES,
AND IN NOT ACQUITTING ACCUSED-APPELANT ON GROUND OF
REASONABLE DOUBT.
II
THE COURT A QUO ERRED IN ORDERING ACCUSED-APPELLANT TO
INDEMNIFY THE HEIRS OF VICTIM THE AMOUNT OF P50,000.00 FOR
VICTIMS DEATH; P264,000.00 FOR LOSS OF EARNING CAPACITY;
P55,070.00 FOR ACTUAL AND COMPENSATORY DAMAGES; P50,000.00
FOR MORAL DAMAGES; AND P50,000.00 FOR EXEMPLARY
DAMAGES.[23]
Appellant contends that there are some inconsistencies between the
testimonies of De Leon and Tablate, the prosecution witnesses. Also, there is
no evidence that he has a motive to kill Flores. In fact, there was no previous
heated argument or altercation between them. That the prosecution
witnesses executed their sworn statements only after two months from the
commission of the crime raises doubt as to their credibility. Finally, the
evidence for the prosecution failed to meet the exacting test of moral
certainty, hence, the trial court should not have ordered him to indemnify the
heirs of Flores.
The Solicitor General, in the Appellees brief, counters that: (a) the
inconsistencies pointed out by appellant are minor and do not vitiate the fact
that he was the one who killed Flores; (b) appellants defenses of alibi and
denial are worthless since he was positively identified by the prosecution
witnesses; (c) he failed to proffer any explanation why the prosecution
witnesses implicated him; (d) the crime was aggravated by cruelty because
he butchered Flores until his intestines bulged out of his stomach; and (e) the
heirs of Flores are entitled to indemnification as it has been shown beyond incident by De Leon and Tablate. During cross-examination, De Leon
reasonable doubt that appellant killed him. testified as follows:

The first assigned error involves a determination of the credibility of the
prosecution witnesses. Settled is the rule that when it comes to credibility of
witnesses, appellate courts generally do not overturn the findings of trial
courts. The latter are in a best position to ascertain and measure the sincerity
and spontaneity of witnesses through their actual observation of the
witnesses manner of testifying, demeanor and behavior in court.[24]
Atty. De la Cruz:
Q You did not see the accused because it was dark in that place, is it not?
A No, sir, he suddenly appeared from the back of Rod Flores and started
stabbing Rod that is why we were surprised.

We see no reason to deviate from this rule. Court:

Appellant maintains that there are inconsistencies in the testimonies of De Q How did the accused thrust the weapon to the victim?
Leon and Tablate. While De Leon testified that appellant did not join Flores
group, however, Tablate declared that he was drinking gin with them at about A (Witness demonstrating by making upward, downward thrust at the back of
11:00 a.m. De Leon testified that no one assisted Flores when he was being the victim)
attacked by appellant. However, Tablate stated that he attempted to separate
Flores from appellant after the former had sustained two stab wounds. Atty. De la Cruz

The first alleged inconsistency is understandable. Unlike Tablate who was Q Where was Rod Flores hit, if you know?
with the group in a drinking spree, De Leon approached Flores only when he
borrowed the cart from the latter at about 8:00 p.m. He stayed with Flores A At the back, sir.
group only for about thirty minutes,[25] or up to 8:30 p.m. Thus, he could not
have observed that appellant joined the group earlier, or at about 11:00 a.m. Q How many times?

The second alleged inconsistency is a minor one that does not enfeeble the A At first, twice, sir.
prosecutions theory that appellant killed Flores. Evident from De Leons
testimony is the fact that he was so shocked in witnessing the gruesome Court:
killing of his companion. With such a state of mind, it would be too much to
demand from him a full recollection of the details surrounding the event. Q That was the time when Rod Flores ran away after having been stabbed
Many times we have ruled that inconsistencies in the testimony of witnesses twice.
when referring only to minor details and collateral matters do not affect the
substance of their declaration, their veracity, or the weight of their A Yes, Your Honor.
testimony.[26] They only serve to strengthen rather than weaken the
credibility of witnesses for they erase the suspicion of a rehearsed xxxxxx
testimony.[27] What we find important in the case at bar is that the two
prosecution witnesses were one in saying that it was appellant who stabbed Court:
Flores with a knife. We quote the clear and straightforward account of the
Q How did the accused thrust for the second time the weapon at the back of
the victim. Q What do you mean?

A Both at the back, sir. A Danny delos Santos stabbed Rod Flores at the back, sir.

xxxxxx Q When you said Danny delos Santos stabbed Rod Flores at the back, are
you saying that Danny delos Santos was at the back of Rod Flores at the
Atty. De la Cruz: time?

Q Was Rod Flores able to ran away? A Yes, sir.

A Yes, sir. Q How many times did the accused stab Rod Flores?

Q Where were you when Rod Flores was running away? A I saw him stabbed the victim twice, sir. (Witness demonstrated in
downward position as if he was holding something).
A We were left behind, sir. I was not able to move anymore.
Q What was he holding?
Q And was the accused able to reach Flores?
A A knife, sir.
A Yes, sir.
xxxxxx
Q What did the accused do?
Court:
A Again, he started stabbing at the back, sir.
xxxxxx
Q So the stabbing was inflicted at the back of the victim?
Q Are you sure that when Rod Flores fell to the ground, he was not able to
A Not all, sir, because he turned him face up and stabbed him again, sir.[28] rise nor was he able to run away?

Tablates direct testimony reads: A He was able to run but then he was drunk and the accused was able to
catch and stab him again, sir.
Fiscal Vicente:
xxxxxx
xxxxxx
Q Are you positive to the identity of Danny delos Santos that he was the one
Q How did Danny delos Santos stab Rod Flores? who stabbed Rod Flores?

A Patalikod, sir. A Yes, sir.[29]


Appellant argues that since the prosecution witnesses testified that there was
no altercation between him and Flores, it follows that no motive to kill can be
attributed to him. This is an inconsequential argument. Proof of motive is not
indispensable for a conviction, particularly where the accused is positively
identified by an eyewitness and his participation is adequately
established.[30] In People vs. Galano,[31] we ruled that in the crime of
murder, motive is not an element of the offense, it becomes material only
when the evidence is circumstantial or inconclusive and there is some doubt
on whether the accused had committed it. In the case before us, no such
doubt exits as De Leon and Tablate positively identified appellant.
In a last-ditch attempt to cast doubt on the testimonies of the prosecution
witnesses, appellant questions why their statements were taken only on
January 29, 1998 when the incident happened on November 6, 1997. The
two-month delay is hardly an indicium of a concocted story. It is but natural
for witnesses to avoid being involved in a criminal proceeding particularly
when the crime committed is of such gravity as to show the cruelty of the
perpetrator. Born of human experience, the fear of retaliation can have a
paralyzing effect to the witnesses.[32] Thus, in People vs. Dacibar,[33] we
held that the initial reluctance of witnesses to volunteer information about a
criminal case is of common knowledge and has been judicially declared as
insufficient to affect credibility, especially when a valid reason exists for such
hesitance.
Anent the second error, appellant contends that the trial court erred in
indemnifying the heirs of Flores since his guilt was not proved beyond
reasonable doubt. Suffice it to state at this point that the evidence for the
prosecution produces moral certainty that appellant is guilty of the crime
charged, hence, should be answerable for all its consequences.
As earlier mentioned, appellants defenses are mere alibi and denial. He
testified that at the time the crime took place, he was in his aunties house in
Muson, San Jose del Monte, Bulacan. When probed by the trial court, he
categorically stated that the house is only 40 meters away from the scene of
the crime and may be traveled in about three or five minutes.[34] For the
defense of alibi to prosper, it must be convincing enough to preclude any
doubt on the physical impossibility of the presence of the accused at the
locus criminis at the time of the incident.[35] Certainly, the required
impossibility does not exist here.
Weighing the evidence of the prosecution vis--vis that of the defense, the
scale of justice must tilt in favor of the former. Time and again, we ruled that
positive identification, where categorical and consistent and without any
showing of ill-motive on the part of the eyewitnesses testifying on the matter,
prevails over alibi and denial which, if not substantiated by clear and
convincing proof, are negative and self-serving evidence undeserving of
weight in law.[36] With marked relevance is the fact that appellant did not
present any evidence to show that the prosecution witnesses, in testifying
against him, have improper motive.
The prosecution was able to establish that appellants attack on Flores was
from behind without any slightest provocation on his part[37] and that it was
sudden and unexpected. This is a clear case of treachery. Where the victim
was totally unprepared for the unexpected attack from behind with no
weapon to resist it, the stabbing could only be described as treacherous.[38]
There being treachery, appellants conviction for murder is in order.
However, in the imposition of penalty, we cannot appreciate the aggravating
circumstance of cruelty considered by the trial court. Pursuant to the 2000
Revised Rules of Criminal Procedure, every Information must state not only
the qualifying but also the aggravating circumstances.[39] This rule may be
given retroactive effect in the light of the well-established rule that statutes
regulating the procedure of the courts will be construed as applicable to
actions pending and undetermined at the time of their passage.[40] The
aggravating circumstance of cruelty, not having been alleged in the
Information, may not be appreciated to enhance the liability of appellant.
Under Article 248[41] of the Revised Penal Code, the penalty for the
consummated crime of murder is reclusion perpetua to death. In this case,
the lesser of the two indivisible penalties shall be imposed, there being
neither mitigating nor aggravating circumstances attending the crime.[42]
In keeping with the current jurisprudence, the heirs of Flores are entitled to
the amount of P50,000.00 by way of civil indemnity ex delicto.[43] As regards
the actual damages, it appears that out of the P55,070.00 awarded by the
trial court, only P19,170.00[44] was actually supported by receipts. The other
amounts were based solely on a list prepared by Romeo Flores. To be
entitled to actual damages, it is necessary to prove the actual amount of loss
with a reasonable degree of certainty, premised upon competent proof and
on the best evidence obtainable to the injured party.[45] In the case at bar,
the prosecution failed to present receipts for the other expenses incurred.
Thus, in light of the recent case of People vs. Abrazaldo,[46] we grant the
award of P25,000.00 as temperate damages inasmuch as the proven actual
damages is less than P25,000.00. The moral damages awarded in the
amount of P50,000.00 is affirmed, there being proofs that because of Flores
death, his heirs suffered wounded feelings, mental anguish, anxiety and
similar injury.[47] However, we reduce to P25,000.00 only the trial courts
award of P50,000.00 as exemplary damages.[48]
The amount of indemnity for loss of earning capacity is based on the income
at the time of death and the probable life expectancy of the victim. In the
case at bar, the trial court found that Flores annual gross income is
P14,400.00 computed at the rate of P1,200.00 a month for twelve (12)
months. From this amount is deducted the necessary and incidental
expenses, estimated at 50%, leaving a balance of P7,200.00. His net income
would then be multiplied by his life expectancy, using the following formula:
2/3 x 80 25 (age of the victim at time of death). Considering that he was 25
years old when he died, his life expectancy would be 37. Multiplying the net
balance of his annual income by his life expectancy, the loss of his earning is
P266,400.00, thus:
Loss of earning capacity
net annual income x life expectancy
P7,200 x 37
= P266,400.00 [49]
WHEREFORE, the Decision dated October 2, 1998 of the Regional Trial
Court, Branch 21, Malolos, Bulacan, in Criminal Case No. 3551798, finding
appellant Danny delos Santos y Fernandez guilty of the crime of murder is
AFFIRMED with MODIFICATION in the sense that he is sentenced to suffer
the penalty of reclusion perpetua and to pay the heirs of the late Rod Flores y
Juanitas the amounts of P50,000.00 as civil indemnity, P25,0000.00 as
temperate damages, P50,000.00 as moral damages, P25,000.00 as
exemplary damages, and P266,400.00 for loss of earning capacity.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-
Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and
Azcuna, JJ., concur.

In computing the life expectancy and loss of earning capacity of a person the G.R. No. L-5272 March 19, 1910
following formula is used:
THE UNITED STATES, plaintiff-appellee,
Life expectancy vs.
AH CHONG, defendant-appellant.
2/3 x (80-the age of the victim at the time of death)
Gibb & Gale, for appellant.
2/3 x (80-25) Attorney-General Villamor, for appellee.

2/3 x 55 CARSON, J.:

= 36.66 or 37
The evidence as to many of the essential and vital facts in this case is limited
to the testimony of the accused himself, because from the very nature of
these facts and from the circumstances surrounding the incident upon which
these proceedings rest, no other evidence as to these facts was available
either to the prosecution or to the defense. We think, however, that, giving
the accused the benefit of the doubt as to the weight of the evidence
touching those details of the incident as to which there can be said to be any
doubt, the following statement of the material facts disclose by the record
may be taken to be substantially correct:
The defendant, Ah Chong, was employed as a cook at "Officers' quarters,
No. 27," Fort Mc Kinley, Rizal Province, and at the same place Pascual
Gualberto, deceased, was employed as a house boy or muchacho. "Officers'
quarters No. 27" as a detached house situates some 40 meters from the
nearest building, and in August, 19087, was occupied solely as an officers'
mess or club. No one slept in the house except the two servants, who jointly
occupied a small room toward the rear of the building, the door of which
opened upon a narrow porch running along the side of the building, by which
communication was had with the other part of the house. This porch was
covered by a heavy growth of vines for its entire length and height. The door
of the room was not furnished with a permanent bolt or lock, and occupants,
as a measure of security, had attached a small hook or catch on the inside of
the door, and were in the habit of reinforcing this somewhat insecure means
of fastening the door by placing against it a chair. In the room there was but
one small window, which, like the door, opened on the porch. Aside from the
door and window, there were no other openings of any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who had
received for the night, was suddenly awakened by some trying to force open
the door of the room. He sat up in bed and called out twice, "Who is there?"
He heard no answer and was convinced by the noise at the door that it was
being pushed open by someone bent upon forcing his way into the room.
Due to the heavy growth of vines along the front of the porch, the room was
very dark, and the defendant, fearing that the intruder was a robber or a thief,
leaped to his feet and called out. "If you enter the room, I will kill you." At that
moment he was struck just above the knee by the edge of the chair which
had been placed against the door. In the darkness and confusion the
defendant thought that the blow had been inflicted by the person who had
forced the door open, whom he supposed to be a burglar, though in the light
of after events, it is probable that the chair was merely thrown back into the
room by the sudden opening of the door against which it rested. Seizing a
common kitchen knife which he kept under his pillow, the defendant struck
out wildly at the intruder who, it afterwards turned out, was his roommate,
Pascual. Pascual ran out upon the porch and fell down on the steps in a
desperately wounded condition, followed by the defendant, who immediately
recognized him in the moonlight. Seeing that Pascual was wounded, he
called to his employers who slept in the next house, No. 28, and ran back to
his room to secure bandages to bind up Pascual's wounds.
There had been several robberies in Fort McKinley not long prior to the date
of the incident just described, one of which took place in a house in which the
defendant was employed as cook; and as defendant alleges, it was because
of these repeated robberies he kept a knife under his pillow for his personal
protection.
The deceased and the accused, who roomed together and who appear to
have on friendly and amicable terms prior to the fatal incident, had an
understanding that when either returned at night, he should knock at the door
and acquiant his companion with his identity. Pascual had left the house
early in the evening and gone for a walk with his friends, Celestino Quiambao
and Mariano Ibañez, servants employed at officers' quarters No. 28, the
nearest house to the mess hall. The three returned from their walk at about
10 o'clock, and Celestino and Mariano stopped at their room at No. 28,
Pascual going on to his room at No. 27. A few moments after the party
separated, Celestino and Mariano heard cries for assistance and upon
returning to No. 27 found Pascual sitting on the back steps fatally wounded in
the stomach, whereupon one of them ran back to No. 28 and called
Liuetenants Jacobs and Healy, who immediately went to the aid of the
wounded man.
The defendant then and there admitted that he had stabbed his roommate,
but said that he did it under the impression that Pascual was "a ladron"
because he forced open the door of their sleeping room, despite defendant's
warnings.
No reasonable explanation of the remarkable conduct on the part of
Pascuals suggests itself, unless it be that the boy in a spirit of mischief was
playing a trick on his Chinese roommate, and sought to frightened him by
forcing his way into the room, refusing to give his name or say who he was,
in order to make Ah Chong believe that he was being attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was conveyed to
the military hospital, where he died from the effects of the wound on the
following day.
The defendant was charged with the crime of assassination, tried, and found
guilty by the trial court of simple homicide, with extenuating circumstances,
and sentenced to six years and one day presidio mayor, the minimum
penalty prescribed by law.
At the trial in the court below the defendant admitted that he killed his
roommate, Pascual Gualberto, but insisted that he struck the fatal blow
without any intent to do a wrongful act, in the exercise of his lawful right of
self-defense.
Article 8 of the Penal Code provides that —
The following are not delinquent and are therefore exempt from criminal
liability:
xxx xxx xxx
4 He who acts in defense of his person or rights, provided there are the
following attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent or repel it.
(3) Lack of sufficient provocation on the part of the person defending himself.
Under these provisions we think that there can be no doubt that defendant
would be entitle to complete exception from criminal liability for the death of
the victim of his fatal blow, if the intruder who forced open the door of his
room had been in fact a dangerous thief or "ladron," as the defendant
believed him to be. No one, under such circumstances, would doubt the right
of the defendant to resist and repel such an intrusion, and the thief having
forced open the door notwithstanding defendant's thrice-repeated warning to
desist, and his threat that he would kill the intruder if he persisted in his
attempt, it will not be questioned that in the darkness of the night, in a small
room, with no means of escape, with the thief advancing upon him despite
his warnings defendant would have been wholly justified in using any
available weapon to defend himself from such an assault, and in striking
promptly, without waiting for the thief to discover his whereabouts and deliver
the first blow.
But the evidence clearly discloses that the intruder was not a thief or a
"ladron." That neither the defendant nor his property nor any of the property
under his charge was in real danger at the time when he struck the fatal
blow. That there was no such "unlawful aggression" on the part of a thief or
"ladron" as defendant believed he was repelling and resisting, and that there
was no real "necessity" for the use of the knife to defend his person or his
property or the property under his charge.
The question then squarely presents it self, whether in this jurisdiction one
can be held criminally responsible who, by reason of a mistake as to the
facts, does an act for which he would be exempt from criminal liability if the
facts were as he supposed them to be, but which would constitute the crime
of homicide or assassination if the actor had known the true state of the facts
at the time when he committed the act. To this question we think there can
be but one answer, and we hold that under such circumstances there is no
criminal liability, provided always that the alleged ignorance or mistake or fact
was not due to negligence or bad faith.
In broader terms, ignorance or mistake of fact, if such ignorance or mistake
of fact is sufficient to negative a particular intent which under the law is a
necessary ingredient of the offense charged (e.g., in larcerny, animus
furendi; in murder, malice; in crimes intent) "cancels the presumption of
intent," and works an acquittal; except in those cases where the
circumstances demand a conviction under the penal provisions touching
criminal negligence; and in cases where, under the provisions of article 1 of
the Penal Code one voluntarily committing a crime or misdeamor incurs
criminal liability for any wrongful act committed by him, even though it be
different from that which he intended to commit. (Wharton's Criminal Law,
sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases cited;
Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates
vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs.
Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of discussion, and the only
question worthy of consideration is whether malice or criminal intent is an
essential element or ingredient of the crimes of homicide and assassination
as defined and penalized in the Penal Code. It has been said that since the
definitions there given of these as well as most other crimes and offense
therein defined, do not specifically and expressly declare that the acts
constituting the crime or offense must be committed with malice or with
criminal intent in order that the actor may be held criminally liable, the
commission of the acts set out in the various definitions subjects the actor to
the penalties described therein, unless it appears that he is exempted from
liability under one or other of the express provisions of article 8 of the code,
which treats of exemption. But while it is true that contrary to the general rule
of legislative enactment in the United States, the definitions of crimes and
offenses as set out in the Penal Code rarely contain provisions expressly
declaring that malice or criminal intent is an essential ingredient of the crime,
nevertheless, the general provisions of article 1 of the code clearly indicate
that malice, or criminal intent in some form, is an essential requisite of all
crimes and offense therein defined, in the absence of express provisions
modifying the general rule, such as are those touching liability resulting from
acts negligently or imprudently committed, and acts done by one voluntarily
committing a crime or misdemeanor, where the act committed is different
from that which he intended to commit. And it is to be observed that even
these exceptions are more apparent than real, for "There is little distinction,
except in degree, between a will to do a wrongful thing and indifference
whether it is done or not. Therefore carelessness is criminal, and within limits
supplies the place of the affirmative criminal intent" (Bishop's New Criminal
Law, vol. 1, s. 313); and, again, "There is so little difference between a
disposition to do a great harm and a disposition to do harm that one of them
may very well be looked upon as the measure of the other. Since, therefore,
the guilt of a crime consists in the disposition to do harm, which the criminal
shows by committing it, and since this disposition is greater or less in
proportion to the harm which is done by the crime, the consequence is that
the guilt of the crime follows the same proportion; it is greater or less
according as the crime in its own nature does greater or less harm" (Ruth.
Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done, having
proceeded from a corrupt mid, is to be viewed the same whether the
corruption was of one particular form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions punished by
law.
Acts and omissions punished by law are always presumed to be voluntarily
unless the contrary shall appear.
An person voluntarily committing a crime or misdemeanor shall incur criminal
liability, even though the wrongful act committed be different from that which
he had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the word
"voluntary" as used in this article, say that a voluntary act is a free, intelligent,
and intentional act, and roundly asserts that without intention (intention to do
wrong or criminal intention) there can be no crime; and that the word
"voluntary" implies and includes the words "con malicia," which were
expressly set out in the definition of the word "crime" in the code of 1822, but
omitted from the code of 1870, because, as Pacheco insists, their use in the
former code was redundant, being implied and included in the word
"voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the crime can
only be said to exempt from criminal responsibility when the act which was
actually intended to be done was in itself a lawful one, and in the absence of
negligence or imprudence, nevertheless admits and recognizes in his
discussion of the provisions of this article of the code that in general without
intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have
shown above, the exceptions insisted upon by Viada are more apparent than
real.

Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which declared that where
there is no intention there is no crime . . . in order to affirm, without fear of
mistake, that under our code there can be no crime if there is no act, an act
which must fall within the sphere of ethics if there is no moral injury. (Vol. 2,
the Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme court of Spain,
as, for example in its sentence of May 31, 1882, in which it made use of the
following language:
It is necessary that this act, in order to constitute a crime, involve all the
malice which is supposed from the operation of the will and an intent to
cause the injury which may be the object of the crime.
And again in its sentence of March 16, 1892, wherein it held that
"considering that, whatever may be the civil effects of the inscription of his
three sons, made by the appellant in the civil registry and in the parochial
church, there can be no crime because of the lack of the necessary element
or criminal intention, which characterizes every action or ommission
punished by law; nor is he guilty of criminal negligence."
And to the same effect in its sentence of December 30, 1896, it made use of
the following language:
. . . Considering that the moral element of the crime, that is, intent or malice
or their absence in the commission of an act defined and punished by law as
criminal, is not a necessary question of fact submitted to the exclusive
judgment and decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice to be an
essential element of the various crimes and misdemeanors therein defined
becomes clear also from an examination of the provisions of article 568,
which are as follows:
He who shall execute through reckless negligence an act that, if done with
malice, would constitute a grave crime, shall be punished with the penalty of
arresto mayor in its maximum degree, to prision correccional in its minimum
degrees if it shall constitute a less grave crime.
He who in violation of the regulations shall commit a crime through simple
imprudence or negligence shall incur the penalty of arresto mayor in its
medium and maximum degrees.
In the application of these penalties the courts shall proceed according to
their discretion, without being subject to the rules prescribed in article 81.
The provisions of this article shall not be applicable if the penalty prescribed
for the crime is equal to or less than those contained in the first paragraph
thereof, in which case the courts shall apply the next one thereto in the
degree which they may consider proper.
The word "malice" in this article is manifestly substantially equivalent to the
words "criminal intent," and the direct inference from its provisions is that the
commission of the acts contemplated therein, in the absence of malice
(criminal intent), negligence, and imprudence, does not impose any criminal
liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem to
approximate in meaning the word "willful" as used in English and American
statute to designate a form of criminal intent. It has been said that while the
word "willful" sometimes means little more than intentionally or designedly,
yet it is more frequently understood to extent a little further and approximate
the idea of the milder kind of legal malice; that is, it signifies an evil intent
without justifiable excuse. In one case it was said to mean, as employed in a
statute in contemplation, "wantonly" or "causelessly;" in another, "without
reasonable grounds to believe the thing lawful." And Shaw, C. J., once said
that ordinarily in a statute it means "not merely `voluntarily' but with a bad
purpose; in other words, corruptly." In English and the American statutes
defining crimes "malice," "malicious," "maliciously," and "malice aforethought"
are words indicating intent, more purely technical than "willful" or willfully,"
but "the difference between them is not great;" the word "malice" not often
being understood to require general malevolence toward a particular
individual, and signifying rather the intent from our legal justification.
(Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)
But even in the absence of express words in a statute, setting out a condition
in the definition of a crime that it be committed "voluntarily," willfully,"
"maliciously" "with malice aforethought," or in one of the various modes
generally construed to imply a criminal intent, we think that reasoning from
general principles it will always be found that with the rare exceptions
hereinafter mentioned, to constitute a crime evil intent must combine with an
act. Mr. Bishop, who supports his position with numerous citations from the
decided cases, thus forcely present this doctrine:
In no one thing does criminal jurisprudence differ more from civil than in the
rule as to the intent. In controversies between private parties the quo animo
with which a thing was done is sometimes important, not always; but crime
proceeds only from a criminal mind. So that —
There can be no crime, large or small, without an evil mind. In other words,
punishment is the sentence of wickedness, without which it can not be. And
neither in philosophical speculation nor in religious or mortal sentiment would
any people in any age allow that a man should be deemed guilty unless his
mind was so. It is therefore a principle of our legal system, as probably it is of
every other, that the essence of an offense is the wrongful intent, without
which it can not exists. We find this doctrine confirmed by —
Legal maxims. — The ancient wisdom of the law, equally with the modern, is
distinct on this subject. It consequently has supplied to us such maxims as
Actus non facit reum nisi mens sit rea, "the act itself does not make man
guilty unless his intention were so;" Actus me incito factus non est meus
actus, "an act done by me against my will is not my act;" and others of the
like sort. In this, as just said, criminal jurisprudence differs from civil. So also
— 76 and 77); and the rule that ignorance of the law excuses no man has been
Moral science and moral sentiment teach the same thing. "By reference to
the intention, we inculpate or exculpate others or ourselves without any
respect to the happiness or misery actually produced. Let the result of an
action be what it may, we hold a man guilty simply on the ground of intention;
or, on the dame ground, we hold him innocent." The calm judgment of
mankind keeps this doctrine among its jewels. In times of excitement, when
vengeance takes the place of justice, every guard around the innocent is cast
down. But with the return of reason comes the public voice that where the
mind is pure, he who differs in act from his neighbors does not offend. And —
In the spontaneous judgment which springs from the nature given by God to
man, no one deems another to deserve punishment for what he did from an
upright mind, destitute of every form of evil. And whenever a person is made
to suffer a punishment which the community deems not his due, so far from
its placing an evil mark upon him, it elevates him to the seat of the martyr.
Even infancy itself spontaneously pleads the want of bad intent in justification
of what has the appearance of wrong, with the utmost confidence that the
plea, if its truth is credited, will be accepted as good. Now these facts are
only the voice of nature uttering one of her immutable truths. It is, then, the
doctrine of the law, superior to all other doctrines, because first in nature
from which the law itself proceeds, that no man is to be punished as a
criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs.
286 to 290.)
Compelled by necessity, "the great master of all things," an apparent
departure from this doctrine of abstract justice result from the adoption of the
arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law excuses
no man"), without which justice could not be administered in our tribunals;
and compelled also by the same doctrine of necessity, the courts have
recognized the power of the legislature to forbid, in a limited class of cases,
the doing of certain acts, and to make their commission criminal without
regard to the intent of the doer. Without discussing these exceptional cases
at length, it is sufficient here to say that the courts have always held that
unless the intention of the lawmaker to make the commission of certain acts
criminal without regard to the intent of the doer is clear and beyond question
the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes
said not to be a real departure from the law's fundamental principle that
crime exists only where the mind is at fault, because "the evil purpose need
not be to break the law, and if suffices if it is simply to do the thing which the
law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.)
But, however this may be, there is no technical rule, and no pressing
necessity therefore, requiring mistake in fact to be dealt with otherwise that in
strict accord with the principles of abstract justice. On the contrary, the
maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact
is, in all cases of supposed offense, a sufficient excuse"). (Brown's Leg.
Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in every crime, any
such mistake of fact as shows the act committed to have proceeded from no
sort of evil in the mind necessarily relieves the actor from criminal liability
provided always there is no fault or negligence on his part; and as laid down
by Baron Parke, "The guilt of the accused must depend on the
circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387; P.
vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N.
Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P.
vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say,
the question as to whether he honestly, in good faith, and without fault or
negligence fell into the mistake is to be determined by the circumstances as
they appeared to him at the time when the mistake was made, and the effect
which the surrounding circumstances might reasonably be expected to have
on his mind, in forming the intent, criminal or other wise, upon which he
acted.
If, in language not uncommon in the cases, one has reasonable cause to
believe the existence of facts which will justify a killing — or, in terms more
nicely in accord with the principles on which the rule is founded, if without
fault or carelessness he does believe them — he is legally guiltless of the
homicide; though he mistook the facts, and so the life of an innocent person
is unfortunately extinguished. In other words, and with reference to the right
of self-defense and the not quite harmonious authorities, it is the doctrine of
reason and sufficiently sustained in adjudication, that notwithstanding some
decisions apparently adverse, whenever a man undertakes self-defense, he
is justified in acting on the facts as they appear to him. If, without fault or
carelessness, he is misled concerning them, and defends himself correctly
according to what he thus supposes the facts to be the law will not punish
him though they are in truth otherwise, and he was really no occassion for
the extreme measures. (Bishop's New Criminal Law, sec. 305, and large
array of cases there cited.)
The common illustration in the American and English textbooks of the
application of this rule is the case where a man, masked and disguised as a
footpad, at night and on a lonely road, "holds up" his friends in a spirit of
mischief, and with leveled pistol demands his money or his life, but is killed
by his friend under the mistaken belief that the attack is a real one, that the
pistol leveled at his head is loaded, and that his life and property are in
imminent danger at the hands of the aggressor. No one will doubt that if the
facts were such as the slayer believed them to be he would be innocent of
the commission of any crime and wholly exempt from criminal liability,
although if he knew the real state of the facts when he took the life of his
friend he would undoubtedly be guilty of the crime of homicide or
assassination. Under such circumstances, proof of his innocent mistake of
the facts overcomes the presumption of malice or criminal intent, and (since
malice or criminal intent is a necessary ingredient of the "act punished by
law" in cases of homicide or assassination) overcomes at the same time the
presumption established in article 1 of the code, that the "act punished by
law" was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the person slain
had a felonious design against him, and under that supposition killed him,
although it should afterwards appear that there was no such design, it will not
be murder, but it will be either manslaughter or excusable homicide,
according to the degree of caution used and the probable grounds of such
belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418,
Lloyd's report of the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as
follows:
A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him,
with an outstretched arms and a pistol in his hand, and using violent
menaces against his life as he advances. Having approached near enough in
the same attitude, A, who has a club in his hand, strikes B over the head
before or at the instant the pistol is discharged; and of the wound B dies. It
turns out the pistol was loaded with powder only, and that the real design of
B was only to terrify A. Will any reasonable man say that A is more criminal
that he would have been if there had been a bullet in the pistol? Those who
hold such doctrine must require that a man so attacked must, before he
strikes the assailant, stop and ascertain how the pistol is loaded — a doctrine
which would entirely take away the essential right of self-defense. And when
it is considered that the jury who try the cause, and not the party killing, are
to judge of the reasonable grounds of his apprehension, no danger can be
supposed to flow from this principle. (Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court of Spain, cited
by Viada, a few of which are here set out in full because the facts are
somewhat analogous to those in the case at bar.
QUESTION III. When it is shown that the accused was sitting at his hearth, at
night, in company only of his wife, without other light than reflected from the
fire, and that the man with his back to the door was attending to the fire,
there suddenly entered a person whom he did not see or know, who struck
him one or two blows, producing a contusion on the shoulder, because of
which he turned, seized the person and took from his the stick with which he
had undoubtedly been struck, and gave the unknown person a blow,
knocking him to the floor, and afterwards striking him another blow on the
head, leaving the unknown lying on the floor, and left the house. It turned out
the unknown person was his father-in-law, to whom he rendered assistance
as soon as he learned his identity, and who died in about six days in
consequence of cerebral congestion resulting from the blow. The accused,
who confessed the facts, had always sustained pleasant relations with his
father-in-law, whom he visited during his sickness, demonstrating great grief
over the occurrence. Shall he be considered free from criminal responsibility,
as having acted in self-defense, with all the circumstances related in
paragraph 4, article 8, of the Penal Code? The criminal branch of the
Audiencia of Valladolid found that he was an illegal aggressor, without
sufficient provocation, and that there did not exists rational necessity for the
employment of the force used, and in accordance with articles 419 and 87 of
the Penal Code condemned him to twenty months of imprisonment, with
accessory penalty and costs. Upon appeal by the accused, he was acquitted
by the supreme court, under the following sentence: "Considering, from the
facts found by the sentence to have been proven, that the accused was
surprised from behind, at night, in his house beside his wife who was nursing
her child, was attacked, struck, and beaten, without being able to distinguish
with which they might have executed their criminal intent, because of the
there was no other than fire light in the room, and considering that in such a
situation and when the acts executed demonstrated that they might endanger
his existence, and possibly that of his wife and child, more especially
because his assailant was unknown, he should have defended himself, and
in doing so with the same stick with which he was attacked, he did not
exceed the limits of self-defense, nor did he use means which were not
rationally necessary, particularly because the instrument with which he killed
was the one which he took from his assailant, and was capable of producing
death, and in the darkness of the house and the consteration which naturally
resulted from such strong aggression, it was not given him to known or
distinguish whether there was one or more assailants, nor the arms which
they might bear, not that which they might accomplish, and considering that
the lower court did not find from the accepted facts that there existed rational
necessity for the means employed, and that it did not apply paragraph 4 of
article 8 of the Penal Code, it erred, etc." (Sentence of supreme court of
Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house, which was
situated in a retired part of the city, upon arriving at a point where there was
no light, heard the voice of a man, at a distance of some 8 paces, saying:
"Face down, hand over you money!" because of which, and almost at the
same money, he fired two shots from his pistol, distinguishing immediately
the voice of one of his friends (who had before simulated a different voice)
saying, "Oh! they have killed me," and hastening to his assistance, finding
the body lying upon the ground, he cried, "Miguel, Miguel, speak, for God's
sake, or I am ruined," realizing that he had been the victim of a joke, and not
receiving a reply, and observing that his friend was a corpse, he retired from
the place. Shall he be declared exempt in toto from responsibility as the
author of this homicide, as having acted in just self-defense under the
circumstances defined in paragraph 4, article 8, Penal Code? The criminal
branch of the Audiencia of Malaga did not so find, but only found in favor of
the accused two of the requisites of said article, but not that of the
reasonableness of the means employed to repel the attack, and, therefore,
condemned the accused to eight years and one day of prison mayor, etc.
The supreme court acquitted the accused on his appeal from this sentence,
holding that the accused was acting under a justifiable and excusable
mistake of fact as to the identity of the person calling to him, and that under
the circumstances, the darkness and remoteness, etc., the means employed
were rational and the shooting justifiable. (Sentence supreme court, March
17, 1885.) (Viada, Vol. I, p. 136.)
QUESTION VI. The owner of a mill, situated in a remote spot, is awakened,
at night, by a large stone thrown against his window — at this, he puts his
head out of the window and inquires what is wanted, and is answered "the
delivery of all of his money, otherwise his house would be burned" —
because of which, and observing in an alley adjacent to the mill four
individuals, one of whom addressed him with blasphemy, he fired his pistol at
one the men, who, on the next morning was found dead on the same spot.
Shall this man be declared exempt from criminal responsibility as having
acted in just self-defense with all of the requisites of law? The criminal
branch of the requisites of law? The criminal branch of the Audiencia of
Zaragoza finds that there existed in favor of the accused a majority of the
requisites to exempt him from criminal responsibility, but not that of
reasonable necessity for the means, employed, and condemned the accused
to twelve months of prision correctional for the homicide committed. Upon
appeal, the supreme court acquitted the condemned, finding that the
accused, in firing at the malefactors, who attack his mill at night in a remote
spot by threatening robbery and incendiarism, was acting in just self-defense
of his person, property, and family. (Sentence of May 23, 1877). (I Viada, p.
128.)
A careful examination of the facts as disclosed in the case at bar convinces
us that the defendant Chinaman struck the fatal blow alleged in the
information in the firm belief that the intruder who forced open the door of his
sleeping room was a thief, from whose assault he was in imminent peril, both
of his life and of his property and of the property committed to his charge;
that in view of all the circumstances, as they must have presented
themselves to the defendant at the time, he acted in good faith, without
malice, or criminal intent, in the belief that he was doing no more than
exercising his legitimate right of self-defense; that had the facts been as he
believed them to be he would have been wholly exempt from criminal liability
on account of his act; and that he can not be said to have been guilty of
negligence or recklessness or even carelessness in falling into his mistake
as to the facts, or in the means adopted by him to defend himself from the
imminent danger which he believe threatened his person and his property
and the property under his charge.
The judgment of conviction and the sentence imposed by the trial court
should be reversed, and the defendant acquitted of the crime with which he
is charged and his bail bond exonerated, with the costs of both instance de
oficio. So ordered.
Johnson Moreland and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent.
Separate Opinions
TORRES, J., dissenting:
The writer, with due respect to the opinion of the majority of the court,
believes that, according to the merits of the case, the crime of homicide by
reckless negligence, defined and punishes in article 568 of the Penal Code,
was committed, inasmuch as the victim was wilfully (voluntariomente) killed,
and while the act was done without malice or criminal intent it was, however,
executed with real negligence, for the acts committed by the deceased could
not warrant the aggression by the defendant under the erroneous belief on
the part of the accused that the person who assaulted him was a malefactor;
the defendant therefore incurred responsibility in attacking with a knife the
person who was accustomed to enter said room, without any justifiable
motive.
By reason of the nature of the crime committed, in the opinion of the
undersigned the accused should be sentenced to the penalty of one year and
one month of prision correctional, to suffer the accessory penalties provided
in article 61, and to pay an indemnify of P1,000 to the heirs of the deceased,
with the costs of both instances, thereby reversing the judgment appealed
from.
G.R. No. L-47722 July 27, 1943
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.
Antonio Z. Oanis in his own behalf.
Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibañez and Assistant Attorney Torres for appellee.
MORAN, J.:
Charged with the crime of murder of one Serapio Tecson, the accused
Antonio Z. Oanis and Alberto Galanta, chief of police of Cabanatuan and
corporal of the Philippine Constabulary, respectively, were, after due trial,
found guilty by the lower court of homicide through reckless imprudence and
were sentenced each to an indeterminate penalty of from one year and six
months to two years and two months of prison correccional and to indemnify
jointly and severally the heirs of the deceased in the amount of P1,000.
Defendants appealed separately from this judgment.
In the afternoon of December 24, 1938. Captain Godofredo Monsod,
Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija, received
from Major Guido a telegram of the following tenor: "Information received
escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan
get him dead or alive." Captain Monsod accordingly called for his first
sergeant and asked that he be given four men. Defendant corporal Alberto
Galanta, and privates Nicomedes Oralo, Venancio Serna and D. Fernandez,
upon order of their sergeant, reported at the office of the Provincial Inspector
where they were shown a copy of the above-quoted telegram and a
newspaper clipping containing a picture of Balagtas. They were instructed to
arrest Balagtas and, if overpowered, to follow the instruction contained in the
telegram. The same instruction was given to the chief of police Oanis who
was likewise called by the Provincial Inspector. When the chief of police was
asked whether he knew one Irene, a bailarina, he answered that he knew
one of loose morals of the same name. Upon request of the Provincial
Inspector, the chief of police tried to locate some of his men to guide the
constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to
see anyone of them he volunteered to go with the party. The Provincial
Inspector divided the party into two groups with defendants Oanis and
Galanta, and private Fernandez taking the route to Rizal street leading to the
house where Irene was supposedly living. When this group arrived at Irene's
house, Oanis approached one Brigida Mallare, who was then stripping
banana stalks, and asked her where Irene's room was. Brigida indicated the
place and upon further inquiry also said that Irene was sleeping with her
paramour. Brigida trembling, immediately returned to her own room which
was very near that occupied by Irene and her paramour. Defendants Oanis
and Galanta then went to the room of Irene, and an seeing a man sleeping
with his back towards the door where they were, simultaneously or
successively fired at him with their .32 and .45 caliber revolvers. Awakened
by the gunshots, Irene saw her paramour already wounded, and looking at
the door where the shots came, she saw the defendants still firing at him.
Shocked by the entire scene. Irene fainted; it turned out later that the person
shot and killed was not the notorious criminal Anselmo Balagtas but a
peaceful and innocent citizen named Serapio Tecson, Irene's paramour. The
Provincial Inspector, informed of the killing, repaired to the scene and when
he asked as to who killed the deceased. Galanta, referring to himself and to
Oanis, answered: "We two, sir." The corpse was thereafter brought to the
provincial hospital and upon autopsy by Dr. Ricardo de Castro, multiple
gunshot wounds inflicted by a .32 and a .45 caliber revolvers were found on
Tecson's body which caused his death.
These are the facts as found by the trial court and fully supported by the
evidence, particularly by the testimony of Irene Requinea. Appellants gave,
however, a different version of the tragedy. According to Appellant Galanta,
when he and chief of police Oanis arrived at the house, the latter asked
Brigida where Irene's room was. Brigida indicated the place, and upon further
inquiry as to the whereabouts of Anselmo Balagtas, she said that he too was
sleeping in the same room. Oanis went to the room thus indicated and upon
opening the curtain covering the door, he said: "If you are Balagtas, stand
up." Tecson, the supposed Balagtas, and Irene woke up and as the former
was about to sit up in bed. Oanis fired at him. Wounded, Tecson leaned
towards the door, and Oanis receded and shouted: "That is Balagtas."
Galanta then fired at Tecson.
On the other hand, Oanis testified that after he had opened the curtain
covering the door and after having said, "if you are Balagtas stand up."
Galanta at once fired at Tecson, the supposed Balagtas, while the latter was
still lying on bed, and continued firing until he had exhausted his bullets: that
it was only thereafter that he, Oanis, entered the door and upon seeing the
supposed Balagtas, who was then apparently watching and picking up
something from the floor, he fired at him.
The trial court refused to believe the appellants. Their testimonies are
certainly incredible not only because they are vitiated by a natural urge to
exculpate themselves of the crime, but also because they are materially
contradictory. Oasis averred that be fired at Tecson when the latter was
apparently watching somebody in an attitudes of picking up something from
the floor; on the other hand, Galanta testified that Oasis shot Tecson while
the latter was about to sit up in bed immediately after he was awakened by a
noise. Galanta testified that he fired at Tecson, the supposed Balagtas, when
the latter was rushing at him. But Oanis assured that when Galanta shot
Tecson, the latter was still lying on bed. It is apparent from these
contradictions that when each of the appellants tries to exculpate himself of
the crime charged, he is at once belied by the other; but their mutual
incriminating averments dovetail with and corroborate substantially, the
testimony of Irene Requinea. It should be recalled that, according to
Requinea, Tecson was still sleeping in bed when he was shot to death by
appellants. And this, to a certain extent, is confirmed by both appellants
themselves in their mutual recriminations. According, to Galanta, Oanis shot
Tecson when the latter was still in bed about to sit up just after he was
awakened by a noise. And Oanis assured that when Galanta shot Tecson,
the latter was still lying in bed. Thus corroborated, and considering that the
trial court had the opportunity to observe her demeanor on the stand, we
believe and so hold that no error was committed in accepting her testimony
and in rejecting the exculpatory pretensions of the two appellants.
Furthermore, a careful examination of Irene's testimony will show not only
that her version of the tragedy is not concocted but that it contains all indicia
of veracity. In her cross-examination, even misleading questions had been
put which were unsuccessful, the witness having stuck to the truth in every
detail of the occurrence. Under these circumstances, we do not feel
ourselves justified in disturbing the findings of fact made by the trial court.
The true fact, therefore, of the case is that, while Tecson was sleeping in his
room with his back towards the door, Oanis and Galanta, on sight, fired at
him simultaneously or successively, believing him to be Anselmo Balagtas
but without having made previously any reasonable inquiry as to his identity.
And the question is whether or not they may, upon such fact, be held
responsible for the death thus caused to Tecson. It is contended that, as
appellants acted in innocent mistake of fact in the honest performance of
their official duties, both of them believing that Tecson was Balagtas, they
incur no criminal liability. Sustaining this theory in part, the lower court held
and so declared them guilty of the crime of homicide through reckless
imprudence. We are of the opinion, however, that, under the circumstances
of the case, the crime committed by appellants is murder through specially
mitigated by circumstances to be mentioned below.
In support of the theory of non-liability by reasons of honest mistake of fact,
appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488. The maxim is
ignorantia facti excusat, but this applies only when the mistake is committed
without fault or carelessness. In the Ah Chong case, defendant therein after
having gone to bed was awakened by someone trying to open the door. He
called out twice, "who is there," but received no answer. Fearing that the
intruder was a robber, he leaped from his bed and called out again., "If you
enter the room I will kill you." But at that precise moment, he was struck by a
chair which had been placed against the door and believing that he was then
being attacked, he seized a kitchen knife and struck and fatally wounded the
intruder who turned out to be his room-mate. A common illustration of
innocent mistake of fact is the case of a man who was marked as a footpad
at night and in a lonely road held up a friend in a spirit of mischief, and with
leveled, pistol demanded his money or life. He was killed by his friend under
the mistaken belief that the attack was real, that the pistol leveled at his head
was loaded and that his life and property were in imminent danger at the
hands of the aggressor. In these instances, there is an innocent mistake of
fact committed without any fault or carelessness because the accused,
having no time or opportunity to make a further inquiry, and being pressed by
circumstances to act immediately, had no alternative but to take the facts as
they then appeared to him, and such facts justified his act of killing. In the
instant case, appellants, unlike the accused in the instances cited, found no
circumstances whatsoever which would press them to immediate action. The
person in the room being then asleep, appellants had ample time and
opportunity to ascertain his identity without hazard to themselves, and could
even effect a bloodless arrest if any reasonable effort to that end had been
made, as the victim was unarmed, according to Irene Requinea. This,
indeed, is the only legitimate course of action for appellants to follow even if
the victim was really Balagtas, as they were instructed not to kill Balagtas at
sight but to arrest him, and to get him dead or alive only if resistance or
aggression is offered by him.
Although an officer in making a lawful arrest is justified in using such force as
is reasonably necessary to secure and detain the offender, overcome his
resistance, prevent his escape, recapture him if he escapes, and protect
himself from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never
justified in using unnecessary force or in treating him with wanton violence,
or in resorting to dangerous means when the arrest could be effected
otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the new
Rules of Court thus: "No unnecessary or unreasonable force shall be used in
making an arrest, and the person arrested shall not be subject to any greater
restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a
peace officer cannot claim exemption from criminal liability if he uses
unnecessary force or violence in making an arrest (5 C.J., p. 753; U.S. vs.
Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a
notorious criminal, a life-termer, a fugitive from justice and a menace to the
peace of the community, but these facts alone constitute no justification for
killing him when in effecting his arrest, he offers no resistance or in fact no
resistance can be offered, as when he is asleep. This, in effect, is the
principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil.,
234, 242).
It is, however, suggested that a notorious criminal "must be taken by storm"
without regard to his right to life which he has by such notoriety already
forfeited. We may approve of this standard of official conduct where the
criminal offers resistance or does something which places his captors in
danger of imminent attack. Otherwise we cannot see how, as in the present
case, the mere fact of notoriety can make the life of a criminal a mere trifle in
the hands of the officers of the law. Notoriety rightly supplies a basis for
redoubled official alertness and vigilance; it never can justify precipitate
action at the cost of human life. Where, as here, the precipitate action of the
appellants has cost an innocent life and there exist no circumstances
whatsoever to warrant action of such character in the mind of a reasonably
prudent man, condemnation — not condonation — should be the rule;
otherwise we should offer a premium to crime in the shelter of official
actuation.
The crime committed by appellants is not merely criminal negligence, the
killing being intentional and not accidental. In criminal negligence, the injury
caused to another should be unintentional, it being simply the incident of
another act performed without malice. (People vs. Sara, 55 Phil., 939). In the
words of Viada, "para que se celifique un hecho de imprudencia es preciso
que no haya mediado en el malicia ni intencion alguna de dañar; existiendo
esa intencion, debera calificarse el hecho del delito que ha producido, por
mas que no haya sido la intencion del agente el causar un mal de tanta
gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal
Comentado, 5.a ed. pag. 7). And, as once held by this Court, a deliberate
intent to do an unlawful act is essentially inconsistent with the idea of
reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor,
56 Phil., 16), and where such unlawful act is wilfully done, a mistake in the
identity of the intended victim cannot be considered as reckless imprudence
(People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability.
As the deceased was killed while asleep, the crime committed is murder with
the qualifying circumstance of alevosia. There is, however, a mitigating
circumstance of weight consisting in the incomplete justifying circumstance
defined in article 11, No. 5, of the Revised Penal Code. According to such
legal provision, a person incurs no criminal liability when he acts in the
fulfillment of a duty or in the lawful exercise of a right or office. There are two
requisites in order that the circumstance may be taken as a justifying one: (a)
that the offender acted in the performance of a duty or in the lawful exercise
of a right; and (b) that the injury or offense committed be the necessary
consequence of the due performance of such duty or the lawful exercise of
such right or office. In the instance case, only the first requisite is present —
appellants have acted in the performance of a duty. The second requisite is
wanting for the crime by them committed is not the necessary consequence
of a due performance of their duty. Their duty was to arrest Balagtas or to get
him dead or alive if resistance is offered by him and they are overpowered.
But through impatience or over-anxiety or in their desire to take no chances,
they have exceeded in the fulfillment of such duty by killing the person whom
they believed to be Balagtas without any resistance from him and without
making any previous inquiry as to his identity. According to article 69 of the
Revised Penal Code, the penalty lower by one or two degrees than that
prescribed by law shall, in such case, be imposed.

For all the foregoing, the judgment is modified and appellants are hereby
declared guilty of murder with the mitigating circumstance above mentioned,
and accordingly sentenced to an indeterminate penalty of from five (5) years
of prision correctional to fifteen (15) years of reclusion temporal, with the
accessories of the law, and to pay the heirs of the deceased Serapio Tecson
jointly and severally an indemnity of P2,000, with costs.
Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.
Separate Opinions
PARAS, J., dissenting:
Anselmo Balagtas, a life termer and notorious criminal, managed to escape
and flee form Manila to the provinces. Receiving information to the effect that
he was staying with one Irene in Cabanatuan, Nueva Ecija, the office of the
Constabulary in Manila ordered the Provincial Inspector in Cabanatuan by
telegram dispatched on December 25, 1938, to get Balagtas "dead or alive".
Among those assigned to the task of carrying out the said order, were
Antonio Z. Oanis, chief of police of Cabanatuan, and Alberto Galanta, a
Constabulary corporal, to whom the telegram received by the Provincial
Inspector and a newspaper picture of Balagtas were shown. Oanis, Galanta
and a Constabulary private, after being told by the Provincial Inspector to
gather information about Balagtas, "to arrest him and, if overpowered, to
follow the instructions contained in the telegram," proceeded to the place
where the house of Irene was located. Upon arriving thereat, Oanis
approached Brigida Mallari, who was then gathering banana stalks in the
yard, and inquired for the room of Irene. After Mallari had pointed out the
room, she was asked by Oanis to tell where Irene's paramour, Balagtas,
was, whereupon Mallari answered that he was sleeping with Irene. Upon
reaching the room indicated, Oanis and Galanta, after the former had
shouted "Stand up, if you are Balagtas," started shooting the man who was
found by them lying down beside a woman. The man was thereby killed, but
Balagtas was still alive, for it turned out that the person shot by Oanis and
Galanta was one Serapio Tecson.
Consequently, Oanis and Galanta were charged with having committed
murder. The Court of First Instance of Nueva Ecija, however, convicted them
only of homicide through reckless imprudence and sentenced them each to
suffer the indeterminate penalty of from 1 year and 6 months to 2 years and
2 months of prision correctional, to jointly and severally indemnify the heirs of
Serapio Tecson in the amount of P1,000, and to pay the costs. Oanis and
Galanta have appealed.
In accomplishing the acts with which the appellants were charged, they
undoubtedly followed the order issued by the Constabulary authorities in
Manila requiring the Provincial Inspector in Cabanatuan to get Balagtas dead
or alive, in the honest belief that Serapio Tecson was Anselmo Balagtas. As
the latter became a fugitive criminal, with revolvers in his possession and a
record that made him extremely dangerous and a public terror, the
Constabulary authorities were justified in ordering his arrest, whether dead or
alive. In view of said order and the danger faced by the appellants in carrying
it out, they cannot be said to have acted feloniously in shooting the person
honestly believed by them to be the wanted man. Conscious of the fact that
Balagtas would rather kill than be captured, the appellants did not want to
take chances and should not be penalized for such prudence. On the
contrary, they should be commended for their bravery and courage bordering
on recklessness because, without knowing or ascertaining whether the
wanted man was in fact asleep in his room, they proceeded thereto without
hesitation and thereby exposed their lives to danger.
The Solicitor-General, however, contends that the appellants were
authorized to use their revolvers only after being overpowered by Balagtas.
In the first place, the alleged instruction by the Provincial Inspector to that
effect, was in violation of the express order given by the Constabulary
authorities in Manila and which was shown to the appellants. In the second
place, it would indeed be suicidal for the appellants or, for that matter, any
agent of the authority to have waited until they have been overpowered
before trying to put our such a character as Balagtas. In the third place, it is
immaterial whether or not the instruction given by the Provincial Inspector
was legitimate and proper, because the facts exist that the appellants acted
in conformity with the express order of superior Constabulary authorities, the
legality or propriety of which is not herein questioned.
The theory of the prosecution has acquired some plausibility, though quite
psychological or sentimental, in view only of the fact that it was not Balagtas
who was actually killed, but an "innocent man . . . while he was deeply
asleep." Anybody's heart will be profoundly grieved by the trade, but in time
will be consoled by the realization that the life of Serapio Tecson was not
vainly sacrificed, for the incident will always serve as a loud warning to any
one desiring to follow in the footsteps of Anselmo Balagtas that in due time
the duly constituted authorities will, upon proper order, enforce the summary
forfeiture of his life.
In my opinion, therefore, the appellants are not criminally liable if the person
killed by them was in fact Anselmo Balagtas for the reason that they did so in
the fulfillment of their duty and in obedience to an order issued by a superior
for some lawful purpose (Revised Penal Code, art. 11, pars. 5 and 6). They
also cannot be held criminally liable even if the person killed by them was not
Anselmo Balagtas, but Serapio Tecson, because they did so under an
honest mistake of fact not due to negligence or bad faith. (U.S. vs. Ah
Chong, 15 Phil., 488).
It is true that, under article 4 of the Revised Penal Code, criminal liability is
incurred by any person committing a felony although the wrongful act done
be different from that which he intended; but said article is clearly
inapplicable since the killing of the person who was believed to be Balagtas
was, as already stated, not wrongful or felonious.
The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General,
is not in point, inasmuch as the defendant therein, who intended to injure
Hilario Lauigan with whom he had a quarrel, but killed another by mistake,
would not be exempted from criminal liability if he actually injured or killed
Hilario Lauigan, there being a malicious design on his part. The other case
involved by the prosecution is U.S. vs. Donoso (3 Phil., 234). This is also not
in point, as it appears that the defendants therein killed one Pedro Almasan
after he had already surrendered and allowed himself to be bound and that
the said defendants did not have lawful instructions from superior authorities
to capture Almasan dead or alive.
The appealed judgment should therefore be reversed and the appellants,
Antonio Z. Oanis and Alberto Galanta, acquitted, with costs de oficio.
HONTIVEROS, J., dissenting:
According to the opinion of the majority, it is proper to follow the rule that a
notorious criminal "must be taken by storm without regard to his life which he
has, by his conduct, already forfeited," whenever said criminal offers
resistance or does something which places his captors in danger of imminent
attack. Precisely, the situation which confronted the accused-appellants
Antonio Z. Oanis and Alberto Galanta in the afternoon of December 24,
1938, was very similar to this. It must be remembered that both officers
received instructions to get Balagtas "dead or alive" and according to the
attitude of not only the said appellants but also of Capt. Monsod,
constabulary provincial inspector of Nueva Ecija, it may be assumed that
said instructions gave more emphasis to the first part; namely, to take him
dead. It appears in the record that after the shooting, and having been
informed of the case, Capt. Monsod stated that Oanis and Galanta might be
decorated for what they had done. That was when all parties concerned
honestly believed that the dead person was Balagtas himself, a dangerous
criminal who had escaped from his guards and was supposedly armed with a
.45 caliber pistol Brigida Mallari, the person whom the appellants met upon
arriving at the house of Irene Requinea, supposed mistress of Balagtas,
informed them that said Balagtas was upstairs. Appellants found there
asleep a man closely resembling the wanted criminal. Oanis said: If you are
Balagtas stand up," But the supposed criminal showed his intention to attack
the appellants, a conduct easily explained by the fact that he should have felt
offended by the intrusion of persons in the room where he was peacefully
lying down with his mistress. In such predicament, it was nothing but human
on the part of the appellants to employ force and to make use of their
weapons in order to repel the imminent attack by a person who, according to
their belief, was Balagtas It was unfortunate, however that an innocent man
was actually killed. But taking into consideration the facts of the case, it is,
according to my humble opinion, proper to apply herein the doctrine laid
down in the case of U.S. vs. Ah Chong (15 Phil., 488). In the instant case we
have, as in the case supra, an innocent mistake of fact committed without
any fault or carelessness on the part of the accused, who having no time to
make a further inquiry, had no alternative but to take the facts as they
appeared to them and act immediately.
The decision of the majority, in recognition of the special circumstances of
this case which favored the accused-appellants, arrives at the conclusion
that an incomplete justifying circumstance may be invoked, and therefore,
according to Article 69 of the Revised Penal Code, the imposable penalty
should be one which is lower by one or two degrees than that prescribed by
law. This incomplete justifying circumstance is that defined in Article 11, No.
5 of the Revised Penal Code, in favor of "a person who acts in the fulfillment
of a duty or in the lawful exercise of a right or office." I believe that the
application of this circumstance is not proper. Article 69 of the Revised Penal
Code provides as follows:
Art. 69. Penalty to be imposed when the crime committed is not wholly
excusable. — A penalty lower by one or two degrees than that prescribed by
law shall be imposed if the deed is not wholly excusable by reason of the
lack of some of the conditions required to justify the same or to exempt from
criminal liability in the several cases mentioned in articles 11 and 12,
provided that the majority of such conditions be present. The courts shall
impose the penalty in the period which may be deemed proper, in view of the
number and nature of the conditions of exemption present or lacking.
This provision has been copied almost verbatim from Article 84 of the old
Penal Code of the Philippines, and which was also taken from Article 87 of
the Spanish Penal Code of 1870.
Judge Guillermo Guevara, one of the members of the Committee created by
Administrative Order No. 94 of the Department of Justice for the drafting of
the Revised Penal Code, in commenting on Article 69, said that the justifying
circumstances and circumstances exempting from liability which are the
subject matter of this article are the following: self-defense, defense of
relatives, defense of strangers, state of necessity and injury caused by mere
accident. Accordingly, justifying circumstance No. 5 of Article 11 dealing with
the fulfillment of a duty or the lawful exercise of a right, calling or office,
cannot be placed within its scope.
The eminent treatiser of criminal law Mr. Groizard, in his commentary of
Article 87 of the Spanish Penal Code of 1870 which is the source of Article
69 of our Code says:
Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni del
que obra violentado por una fuerza inrresistible o impulsado por miedo
insuperable de un mal igual o mayor, o en cumplimiento de un deber, o en el
ejercito legitimo de un derecho, oficio o cargo, o en virtud de obediencia
debida, ni del que incurre en alguna omision hallandose impedido por causa
legitima o insuperable, puede tener aplicacion al articulo que comentamos. Y
la razon es obvia. En ninguna de estas execiones hay pluralidad de
requisitos. La irrespondabilidad depende de una sola condicion. Hay o no
perturbacion de la razon; el autor del hecho es o no menor de nueve años;
existe o no violencia material o moral irresistible, etc., etc.; tal es lo que
respectivamente hay que examinar y resolver para declarar la culpabilidad o
inculpabilidad. Es, por lo tanto, imposible que acontezca lo que el texto que
va al frente de estas lineas rquiere, para que se imponga al autor del hecho
la penalidad excepcional que establece; esto es, que falten algunos
requisitos de los que la ley exige para eximir de responsabilidad, y que
concurran el mayor numero de ellos, toda vez que, en los casos referidos, la
ley no exige multiples condiciones.
It must be taken into account the fact according to Article 69 a penalty lower
by one or two degrees than that prescribed by law shall be imposed if the
deed is not wholly excusable by reason of the lack of some of the conditions
required by the law to justify the same or exempt from criminal liability. The
word "conditions" should not be confused with the word "requisites". In
dealing with justifying circumstance No. 5 Judge Guevara states: "There are
two requisites in order that this circumstance may be taken into account: (a)
That the offender acted in the performance of his duty or in the lawful
exercise of a right; and (b) That the injury or offense committed be the
necessary consequence of the performance of a duty or the lawful exercise
of a right or office." It is evident that these two requisites concur in the
present case if we consider the intimate connection between the order given
to the appellant by Capt. Monsod, the showing to them of the telegram from
Manila to get Balagtas who was with a bailarina named Irene, the conduct of
said appellants in questioning Brigida Mallari and giving a warning to the
supposed criminal when both found him with Irene, and the statement made
by Capt. Monsod after the shooting.
If appellant Oanis is entitled to a reversal of the decision of the court below,
there are more reasons in favor of the acquittal of appellant Galanta.
According to the evidence no bullet from the gun fired by this accused ever
hit Serapio Tecson. Galanta was armed in the afternoon of December 24,
1938, with a .45 caliber revolver (Exhibit L). He so testified and was
corroborated by the unchallenged testimony of his superior officer Sgt.
Valeriano Serafica. According to this witness, since Galanta was made a
corporal of the Constabulary he was given, as part of his equipment, revolver
Exhibit L with a serial No. 37121. This gun had been constantly used by
Galanta, and, according to Sgt. Pedro Marasigan, who accompanied said
accused when he took it from his trunk in the barracks on the night of
December 24, 1938, upon order of Captain Monsod, it was the same revolver
which was given to the witness with five .45 caliber bullets and one empty
shell. Fourteen unused bullets were also taken from Galanta by Sergeant
Serafica, thus completing his regular equipment of twenty bullets which he
had on the morning of December 24, 1938, when Sergeant Serafica made
the usual inspection of the firearms in the possession of the non-
commissioned officers and privates of the constabulary post at Cabanatuan.
Galanta stated that he had fired only one shot and missed. This testimony is
corroborated by that of a ballistic expert who testified that bullets exhibits F
and O, — the first being extracted from the head of the deceased, causing
wound No. 3 of autopsy report Exhibit C and the second found at the place of
the shooting, — had not been fired from revolver Exhibit L nor from any other
revolver of the constabulary station in Cabanatuan. It was impossible for the
accused Galanta to have substituted his revolver because when Exhibit L
was taken from him nobody in the barracks doubted that the deceased was
none other than Balagtas. Moreover, Exhibit L was not out of order and
therefore there was no reason why Galanta should carry along another gun,
according to the natural course of things. On the other hand, aside from
wound No. 3 as above stated, no other wound may be said to have been
caused by a .45 caliber revolver bullet. Doctor Castro's record gives the
conclusion that wound No. 2 must have been caused by a .45 caliber
revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2
must have been caused by a .45 caliber bullet, but inasmuch as the diameter
of the wound's entrance was only 8 mm., the caliber should be .32 and not
.45, because according to the medico-legal expert who testified in this case,
a bullet of a .45 caliber will produce a wound entrance with either 11 mm. or
12 mm. diameter. All other wounds found by the surgeon who performed the
autopsy appeared to have been caused by bullets of a lesser caliber. In
consequence, it can be stated that no bullet fired by Galanta did ever hit or
kill Serapio Tecson and therefore there is no reason why he should be
declared criminally responsible for said death.
G.R. No. 207175 November 26, 2014
EDUARDO MAGSUMBOL, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari seeking to reverse and set aside the
December 14, 2012 Decision1 and the May 6, 2013 Resolution2 of the Court
of Appeals (CA) in CA-G.R. CR No. 34431 filed by Eduardo Magsumbol
(Magsumbol), questioning his conviction for Theft.
The Facts
Petitioner Magsumbol, together with Erasmo Magsino (Mogsino). Apolonio
Inanoria (Jnanoria), and Bonifacio Ramirez (Ramirez). vvas charged with the
crime of Theft in the Information, dated August 30, 2002, filed before the
Regional Trial Court of Lucena City, Branch 55 (RTC) and docketed as
Criminal Case No. 2002-1017. The Information indicting Magsumbol and his
co-accused reads:
That on or about the 1st day of February 2002, at Barangay Kinatihan I, in
the Munipality of Candelaria, Province of Quezon, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring
and confederating together with seven (7) John Does whose true names and
real identities are still unknown and whose physical descriptions were not
made known by available witnesses, and who are all still at large, and
mutually helping one another, with intent togain and without the consent of
the owner, Menandro Avanzado, did then and there willfully, unlawfully and
feloniously cut, take, steal and carry away with them thirty three (33) coconut
trees from the coconut plantation of the said owner, valued at FORTY FOUR
THOUSAND FOUR HUNDRED PESOS (₱44,400.00), Philippine currency,
belonging to said Menandro Avanzado, to his damage and prejudice in the
aforesaid amount.3
Culled from the testimonies of prosecution witnesses Ernesto Caringal
(Caringal), private complainant Engr. Menandro Avanzado (Menandro), and
SPO1 Florentino Manalo (SPO1 Manalo), it appears that at around 11:00
o’clock in the morning of February 1, 2002, Caringal, the overseer of a one-
hectare unregistered parcel of land located in Candelaria, Quezon, and co-
owned by Menandro, saw the four accused, along with seven others, cutting
down the coconut trees on the said property. Later, the men turned the felled
trees into coco lumber. Caringal did not attempt to stop the men from cutting
down the coconut trees because he was outnumbered. Instead, Caringal left
the site and proceeded toSan Pablo City to inform Menandro about the
incident.
On February 3, 2002, Menandro and Caringal reported the incident to the
police. Thereafter, the two, accompanied by SPO1 Manalo, went to the
coconut plantation only to discover that about thirty three (33) coconut trees
(subject trees) had been cut down. The coco lumber were no longer in the
area. They took photographs of the stumps left by the men.
The defense, on the other hand, presented Atanacio Avanzado
(Atanacio),accused Ramirez, petitioner Magsumbol, Barangay Captain Pedro
Arguelles (Brgy. Captain Arguelles)and accused Inanoria, to substantiate its
claim of innocence for all the accused.
Atanacio testified that he authorized his brothers-in-law, Magsino and
Magsumbol, to cut down the coconut trees within the boundary of his
property, which was adjacent to the land co-owned by Menandro. Atanacio
admitted that he had never set foot on his property for about 20 years
already and that he was not present whenthe cutting incident happened.
Defense witness Brgy. Captain Arguelles testified that on January 28, 2002,
Magsumbol, Magsino, Ramirez, and Inanoria came to his office seeking
permission to cut down the coconut trees planted on the land of Atanacio.
All the accused vehemently denied the charges against them. Ramirez and
Magsumbol claimed that only the coconut trees which stood within the land
owned by Atanacio, a relative of the private complainant, were cut down on
that morning of February 1, 2002. Ramirez added that he was a coco lumber
trader and that Atanacio offered to sell the coconut trees planted on his lot.
Magsumbol claimed that he took no part in the felling of the coconut trees but
merely supervised the same. He claimed that he did not receive any
remuneration for the service he rendered or a share from the proceeds of the
coco lumbers sale. Inanoria likewise denied participation in the cutting down
of the coconut treesbut confirmed the presence of Magsumbol and Magsino
at the site to supervise the accomplishment of the work being done thereat.
Inanoria corroborated the narration of Magsumbol and Ramirez that all the
felled trees were planted inside the lot owned by Atanacio. Inanoria intimated
that Menandro included him in the complaint for theft due to his refusal to
accede to latter’s request for him to testify against his co-accused in relation
to the present criminal charge.4
Ruling of the RTC
On March 15, 2011, the RTC rendered its decision5 stating that the
prosecution was able to establish with certitude the guilt of all the accused for
the crime of simple theft. The RTC rejected the defense of denial invoked by
the accused in the face of positive identification by Caringal pointing to them
as the perpetrators of the crime. It did not believe the testimony of Atanacio
and even branded him as biased witness on account of his relationship with
accused Magsino and Magsumbol. The trial court adjudged:
WHEREFORE, judgment is hereby rendered finding all the accused Erasmo
Magsino, Apolonio Inanoria, Eduardo Magsumbol and Bonifacio Ramirez
guilty as charged and applying the Indeterminate sentence law, the court
hereby sentences them to suffer an imprisonment of 2 years, 4 months and 1
day of Prision Correccional as minimum to 6 years and 1 day of Prision
Mayor as maximum.
The accused are likewise directed to pay jointly and severally Engr.
Menandro Avanzado and the other heirs of Norberto Avanzado the sum of
₱13,200.00 representing the value of the 33 coconut trees they have cut and
sold to accused Ramirez.
SO ORDERED.
Aggrieved, the accused appealed from the March 15, 2011 judgment of the
RTC before the CA insisting that the prosecution evidence did not meet the
quantum of proof necessary towarrant their conviction of the crime charged.
They posited that the RTC erred in failing to appreciate the lack of criminal
intent on their part to commit the crime of simple theft. They claimed that not
a scintilla of evidence was presented to prove the element of intent to gain.6
Ruling of the CA
In its assailed Decision, dated December 14, 2012, the CA sustained the
findings of facts and conclusions of law by the RTC and upheld the judgment
of conviction rendered against the accused. The CA was of the view,
however, that the crime committed in this case would not fall under the
general definition of theft under Article 308 of the Revised Penal Code
(RPC), but rather under paragraph (2) of the same provision which penalizes
theft of damaged property. The CA ruled that the RTC was correct in giving
full faith and credence to the testimony of Caringal who was not shown to
have been motivated by any ill will to testify falsely against the accused. It
agreed with the RTC that Atanacio’s testimony should not be given any
evidentiary weight in view of his relationship with Magsino and Magsumbol,
which provided sufficient reason for him to suppress or pervert the truth.
Anent the element of intent to gain, the CA stated that the mere fact that the
accused cut the coconut trees on Menandro’s land and made them into coco
lumber, gave rise to the presumption that it was done with intent to gain. The
falloreads:
WHEREFORE, premises considered, the appeal is hereby DENIED. The
Decision dated March 15, 2011, of the Regional Trial Court, Branch 55,
Lucena City is AFFIRMED with MODIFICATION in that the accused-
appellants Erasmo Magsino, Apolonio Inanoria, Eduardo Magsumbol and
Bonifacio Ramirez are sentenced to suffer imprisonment of tw0 (2) years,
four (4) months and one (1) day as minimum, to seven (7) years, four (4)
months and one (1) day, as maximum; and to pay jointly and severally
private complainant Menandro Avanzado the amount of Thirteen Thousand
Two Hundred Pesos (₱13,200.00).
SO ORDERED.7
The accused moved for reconsideration of the December 14, 2012 Decision
but their motion was denied by the CA on May 6, 2013.
Issues:
Bewailing his conviction, Magsumbolfiled the present petition before this
Court and imputes to the CA the following
ERRORS:
THE HONORABLE COURT OFAPPEALS COMMITTED SERIOUS
ERRORS OF LAW WHEN IT FOUND THE ACCUSED GUILTY OF THE
CRIME OF THEFT UNDER ARTICLE 308 OF THE REVISED PENAL
CODE, IN THAT:
I
NO COMPETENT EVIDENCEWAS ADDUCED BY THE PROSECUTION TO
PROVE THAT THE COCONUT TREES THAT WERE CUT WERE BEYOND
THE PROPERTY OWNED BY ATANACIO AVANZADO; and
II
MALICE AND INTENT TO GAIN, AS ELEMENTS OF THE CRIME OF
THEFT, ARE NOT PRESENT IN THE CASE AT HAND.8
The Court’s Ruling
The petition is impressed with merit.
It is a time-honored rule that the assessment of the trial court with regard to
the credibility of witnesses deserves the utmost respect, if not finality, for the
reason that the trial judge has the prerogative, denied to appellate judges, of
observing the demeanor of the declarants in the course of their testimonies.
Though it is true that the trial court’s evaluation of the credibility of witnesses
and their testimonies is entitled to great respect and will not be disturbed on
appeal, this rule, however, is not a hard and fast one. The exception is
observed if there is a showing that the trial judge overlooked, misunderstood,
or misapplied some factor circumstance of weight and substance that would
have cast doubt on the guilt of the accused.9 The said exception apparently
exists in the case at bench.
It is the statutory definition that generally furnishes the elements of each
crime under the RPC, while the elements in turn unravel the particular
requisite acts of execution and accompanying criminal intent. In the case at
bench, petitioner Magsumbol and his co-accused were convicted by the CA
of the crime of theft of damaged property under paragraph (2) of Article 308
of the RPC which provides:
Art. 308. Who are liable for theft.–: xxxx
Theft is likewise committed by:
1. xxxxx;
2. Any person who, after having maliciously damaged the property of
another, shall remove or make use of the fruits or object of the damage
caused by him; and xxx.
[Emphasis Supplied]
To warrant a conviction under the aforecited provision for theft of damaged
property, the prosecution must prove beyond reasonable that the accused
maliciously damaged the property belonging to another and, thereafter,
removed or used the fruits or object thereof, with intent to gain. Evidently,
theft of damaged property is an intentional felony for which criminal liability
attaches only when it is shown that the malefactor acted with criminal intent
or malice. Criminal intent must be clearly established with the other elements
of the crime; otherwise, no crime is committed.10 Was criminal intent
substantiated tojustify the conviction of Magsumbol and his co-accused?
It does not so appear in this case.
There is no dispute that the land co-owned by Menandro is adjacent to the
land owned by Atanacio. The prosecution claimed that the thirty three (33)
cut coconut trees were planted within the land co-owned by Menandro. The
defense, on the other hand, averred that only the coconut trees found within
the land of Atanacio were felled by Magsumbol and his co-accused.
Menandro testified that there were muniments that delimit the boundaries
between the adjacent lots11 while Atanacio claimed that there were none
and that "x" marks were just etched on the trunk of the trees to delineate the
boundary of his land.12 Apart from the bare allegations of these witnesses,
no concrete and competent evidence was adduced to substantiate their
respective submissions. In view of such conflicting claims and considering
the meager evidence on hand, the Court cannot determine with certainty the
owner of the 33 felled coconut trees. The uncertainty of the exact location of
the coconut trees negates the presenceof the criminal intent to gain.
At any rate, granting arguendo that the said coconut trees were within
Menandro’s land, no malice or criminal intent could be rightfully attributed to
Magsumbol and his co-accused. The RTC and the CA overlooked one
important point in the present case, to wit: Magsumbol and his co-accused
went to Barangay KinatihanI, Candelaria, Quezon, to cut down the coconut
trees belonging to Atanacio upon the latter’s instruction.
Such fact was confirmed by Atanacio who narrated that due to financial
reversals, he sold all the coconut trees in his land to Ramirez, a coco lumber
trader; that since he could not go to the site due to health reasons, he
authorized Magsumbol and Magsino to cut down his trees and to oversee the
gathering of the felled trees; that he informed Menandro about this and even
offered to pay for the damages that he might have sustained as some of his
(Menandro’s) trees could have been mistakenly cut down in the process; that
Menandro refused his offer of compensation and replied that a case had
already been filed against the four accused; and that he tried to seek an
audience again from Menandro, but the latter refused to talk to him
anymore.13
Both the RTC and the CA chose to brush aside the foregoing unrebutted
testimony of Atanacio for being unreliable and considered him a biased
witness simply because he is related by affinity to Magsumbol and Magsino.
Family relationship, however, does not by itself render a witness’ testimony
inadmissible or devoid of evidentiary weight.14 To warrant rejection of the
testimony of a relative or friend, it must be clearly shown that, independently
of the relationship, the testimony was inherently improbable or defective, or
that improper or evil motives had moved the witness to incriminate the
accused falsely.15
The relationship of Atanacio to the accused, per se, does not impair his
credibilty.1âwphi1 It bears stressing that while Magsumbol and Magsino are
Atanacio’s brothers-in-law, Menandro ishis cousin. Considering that both the
accused and the accuser are Atanacio’s relatives, and purportedly both have
bearing with regard to his decision, why would then Atanacio support one
over the other? The logical explanation could only be that Atanacio had
indeed ordered Magsumbol and Magsino to cut the trees on his land. The
Court is convinced that Atanacio was telling the truth.
If, indeed, in the course of executing Atanacio’s instructions, Magsumbol and
his co-accused encroached on the land co-owned by Menandro, because
they missed the undetectable boundary between the two lots, and cut down
some of Menandro’s trees, such act merely constituted mistake or
judgmental error. The following pronouncement in the case of Lecaroz vs.
Sandiganbayan16 may serve as a guidepost, to wit:
If what is proven is mere judgmental error on the part of the person
committing the act, no malice or criminal intent can be rightfully imputed to
him. x x x. Ordinarily, evil intent must unite with an unlawful act for a crime to
exist. Actus non facit reum, nisi mens sit rea. There can be no crime when
the criminal mind is wanting. As a general rule, ignorance or mistake as to
particular facts, honest and real, will exempt the doer from felonious
responsibility. The exception of course is neglect in the discharge of duty or
indifference to consequences, which is equivalent to criminal intent, for in this
instance, the element of malicious intent is supplied by the element
ofnegligence and imprudence.17
[Emphasis supplied]
The criminal mind is indeed wanting in the situation where Magsumbol and
his co-accused even sought prior permission from Brgy. Captain Arguelles to
cut down the coconut trees which was done openly and during broad daylight
effectively negated malice and criminal intent on their part. It defies reason
that the accused would still approach the barangay captain if their real
intention was tosteal the coconut trees of Menandro. Besides, criminals
would usually execute their criminal activities clandestinely or through stealth
or strategy to avoid detection of the commission of a crime or a wrongdoing.
The findings of this Court in this case should not create the mistaken
impression that the testimonies of the prosecution witnesses should always
be looked at with askance. The point is that courts should carefully scrutinize
the prosecution evidence to make sure that no innocent person is
condemned. An allegation, or even a testimony, that an act was done should
never be hastily accepted as proof that it was really done. Evidence adduced
must be closely examined under the lens of a judicial microscope to ensure
that conviction only flows from moral certainty that guilt has been established
by proof beyond reasonable doubt.
Here, that quantum of proof has not been satisfied.1âwphi1 The prosecution
miserably failed to establish proof beyond reasonable doubt that Magsumbol,
together with his co-accused, damaged the property or Menandro with malice
and deliberate intent and then removed the felled coconut trees from the
premises.
Hence, we must reckon with a dictum of the law, in dubilis reus est
absolvendus. All doubts must be resolved in favor of the accused.
WHEREFORE, the petition is GRANTED. The assailed December 14, 2012
Decision and the May 6, 2013 Resolution of the Court of Appeals in CA-G.R.
CR No. 34431 are REVERSED and SET ASIDE. Petitioner Eduardo
Magsumbol is ACQUITTED on reasonable doubt.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice REYES, J.B.L., Actg. C.J.:
Chairperson
Direct appeal by the accused from an order of the Court of First
MARIANO C. DEL CASTILLO Instance of Bulacan, in its Criminal Case No. 5243 (for serious physical
Associate Justice BIENVENIDO L. REYES* injuries and damage to property through reckless imprudence), overruling a
Associate Justice motion to quash on the ground of double jeopardy.
MARVIC M.V.F. LEONEN
Associate Justice Stripped to essentials, the case arose in this wise:

ATTESTATION The accused was driving a passenger bus of the La Mallorca

Company on July 23, 1962, along the MacArthur Highway in the municipality
I attest that the conclusions in the above Decision had been reached in of Guiguinto, Bulacan. Allegedly because of his negligence — and
consultation before the case was assigned to the writer of the opinion or the recklessness, the vehicle driven by him struck and collided with the
Court's Division. passenger jeep of Sergio Lumidao, damaging said jeep and causing it to turn
turtle, and injuring its passengers. Six of the latter suffered slight physical
ANTONIO T. CARPIO injuries requiring medical attendance for 5 to 9 days: three other riders came
Associate Justice out with serious bodily injuries that needed medical attention for 30 to 45
Chairperson, Second Division days; while the jeep was damaged to the extent of P1,395.00.

CERTIFICATION A charge was filed against the accused-appellant, one for slight
physical injuries through reckless imprudence, in the Justice of the Peace
Pursuant to Section 13, Article VIII of the Constitution and the Division Court of Guiguinto, for which he was tried and acquitted on December 16,
Chairperson's Attestation, I certify that the conclusions in the above Decision 1963. Prior to this acquittal, however, the Provincial Fiscal of Bulacan filed in
had been reached in consultation before the case was assigned to the writer the Court of First Instance the information in the case now before us, for
of the opinion of the Court's Division. serious physical injuries, and damage to property through reckless
imprudence. Admittedly, both charges referred to the same highway collision.
MARIA LOURDES P.A. SERENO
Chief Justice When the accused was arraigned in the Court of First Instance, his
counsel moved to quash the charges on the ground that he had already been
G.R. No. L-25366 March 29, 1968 acquitted of the same offense by the Justice of the Peace Court. The
prosecution opposed the motion and the Court denied the motion quash.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Unable to secure reconsideration, the accused appealed to this Court.
vs.
JOSE BUAN, accused-appellant. Sole issue before us, therefore, is whether the second case placed the
appellant twice in jeopardy for the same offense, and is barred by the
Office of the Solicitor General for plaintiff-appellee. previous acquittal.
Felipe C. Magat and Amado D. Dyoco for accused-appellant.
 We agree with the appellant that the Court below erred in not
dismissing the information for "serious physical injuries and damage to
property through reckless imprudence," in view of the appellant's previous
acquittal by the Justice of the Peace Court of Guiguinto, Bulacan, for the
same imprudence.
Reason and precedent both coincide in that once convicted or
acquitted of a specific act of reckless imprudence, the accused may not be
prosecuted again for that same act. For the essence of the quasi offense of
criminal negligence under article 365 of the Revised Penal Code lies in the
execution of an imprudent or negligent act that, if intentionally done, would
be punishable as a felony. The law penalizes thus the negligent or careless
act, not the result thereof. The gravity of the consequence is only taken into
account to determine the penalty, it does not qualify the substance of the
offense. And, as the careless act is single, whether the injurious result should
affect one person or several persons, the offense (criminal negligence)
remains one and the same, and can not be split into different crimes and
prosecutions. This has been the constant ruling of the Spanish Supreme
Court, and is also that of this Court in its most recent decisions on the matter.
Thus, in People vs. Silva, L-15974, January 30, 1962, where as the
result of the same vehicular accident one man died, two persons were
seriously injured while another three suffered only slight physical injuries, we
ruled that the acquittal on a charge of slight physical injuries through reckless
imprudence, was a bar to another prosecution for homicide through reckless
imprudence. In People vs. Diaz, L-6518, March 30, 1954, the ruling was that
the dismissal by the Municipal Court of a charge of reckless driving barred a
second information of damage to property through reckless imprudence
based on the same negligent act of the accused. In People vs, Belga, 100
Phil. 996, dismissal of an information for physical injuries through needless
imprudence as a result of a collision between two automobiles was declared,
to block two other prosecutions, one for damage to property through reckless
imprudence and another for multiple physical injuries arising from the same
collision. The same doctrine was reasserted in Yap vs. Lutero, et al., L-
12669, April 30, 1959. In none of the cases cited did the Supreme Court
regard as material that the various offenses charged for the same occurrence
were triable in Courts of differing category, or that the complainants were not
the individuals.
As for the Spanish jurisprudence, Cuello Calon, in his Derecho Penal
(12th Ed.), Vol. I, p. 439, has this to say:1äwphï1.ñët
Aun cuando de un solo hecho imprudente se originen males diversos,
como el hecho culposo es uno solo, existe un solo delito de imprudencia.
Esta es jurisprudencia constante del Tribunal Supremo. De acuerdo con esta
doctrinael automovilista imprudente que atropella y causa lesiones a dos
personas y ademas daños, no respondera de dos delitos de lesiones y uno
de daños por imprudencia, sino de un solo delito culposo.
The said author cites in support of the text the following decisions of
the Supreme Court of Spain (footnotes 2 and 3).
8 octubre 1887, 18 octubre 1927.
Si con el hecho imprudente se causa la muerte de una persona y
ademas se ocasionan daños, existe un solo hecho punible, pues uno solo
fue el acto, aun cuando deben apreciarse dos enorden a la responsabilidad
civil, 14 diciembre 1931 si a consecuencia de un solo acto imprudente se
produjeron tres delitos, dos de homicidio y uno de daños, como todos son
consecuencia de un solo acto culposo, no cabe penarlos por separado, 2
abril 1932.
The Solicitor General stresses in his brief that the charge for slight
physical injuries through reckless imprudence could not be joined with the
accusation for serious physical injuries through reckless imprudence,
because Article 48 of the Revised Penal Code allows only the complexing of
grave or less grave felonies. This same argument was considered and
rejected by this Court in the case of People vs. Diaz, supra:
... The prosecution's contention might be true. But neither was the
prosecution obliged to first prosecute the accused for slight physical injuries
through reckless imprudence before pressing the more serious charge of
homicide with serious physical injuries through reckless imprudence. Having
first prosecuted the defendant for the lesser offense in the Justice of the
Peace Court of Meycauayan, Bulacan, which acquitted the defendant, the
prosecuting attorney is not now in a position to press in this case the more
serious charge of homicide with serious physical injuries through reckless
imprudence which arose out of the same alleged reckless imprudence of
which the defendant has been previously cleared by the inferior court.
In view of the foregoing, we must perforce rule that the exoneration of
this appellant, Jose Buan, by the Justice of the Peace (now Municipal) Court
of Guiguinto, Bulacan, of the charge of slight physical injuries through
reckless imprudence, prevents his being prosecuted for serious physical
injuries through reckless imprudence in the Court of First Instance of the
province, where both charges are derived from the consequences of one and
the same vehicular accident, because the second accusation places the
appellant in second jeopardy for the same offense.
WHEREFORE, the order appealed from is reversed, and the Court of
First Instance of Bulacan is directed to quash and dismiss the charge in its
Criminal Case No. 5243. No costs. So ordered.
Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Angeles and Fernando,
JJ., concur.
Castro, J., took no part.
G.R. No. L-74324 November 17, 1988
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y MAGDALENA,
accused-appellants.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellants.
MEDIALDEA, J.:
For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y
BALCITA and BENJAMIN SAMSON y MAGDALENA were charged with the
crime of MURDER in Criminal Case No. L-175-82 of the Court of First
Instance (now Regional Trial Court) of Cavite, under an information which
reads as follows:
That on or about May 19, 1982 at the town plaza of the Municipality of
Rosario, Province of Cavite, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and
mutually helping and assisting one another, with treachery and evident
premeditation, taking advantage of their superior strength, and with the
decided purpose to kill, poured gasoline, a combustible liquid to the body of
Bayani Miranda and with the use of fire did then and there, wilfully, unlawfully
and feloniously, burn the whole body of said Bayani Miranda which caused
his subsequent death, to the damage and prejudice of the heirs of the
aforenamed Bayani Miranda.
That the crime was committed with the qualifying circumstance of treachery
and the aggravating circumstances of evident premeditation and superior
strength, and the means employed was to weaken the defense; that the
wrong done in the commission of the crime was deliberately augmented by
causing another wrong, that is the burning of the body of Bayani Miranda.
CONTRARY TO LAW (p. 1, Records).
Upon being arraigned, both accused pleaded not guilty to the offense
charged. After trial, the trial court rendered a decision finding both accused
guilty on the crime of murder but crediting in favor of the accused Pugay the
mitigating circumstance of lack of intention to commit so grave a wrong, the
dispositive portion of which reads as follows:
WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin
Samson y Magdalena are pronounced guilty beyond reasonable doubt as
principals by direct participation of the crime of murder for the death of
Bayani Miranda, and appreciating the aforestated mitigating circumstance in
favor of Pugay, he is sentenced to a prison term ranging from twelve (12)
years of prision mayor, as minimum, to twenty (20) years of reclusion
temporal, as maximum, and Samson to suffer the penalty of reclusion
perpetua together with the accessories of the law for both of them. The
accused are solidarily held liable to indemnify the heirs of the victim in the
amount of P13,940.00 plus moral damages of P10,000.00 and exemplary
damages of P5,000.00.
Let the preventive imprisonment of Pugay be deducted from the principal
penalty.
Cost against both accused.
SO ORDERED (p. 248, Records).
Not satisfied with the decision, both accused interposed the present appeal
and assigned the following errors committed by the court a quo:
1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF
ACCUSED-APPELLANTS IN ITS APPRECIATION OF FACTS DESPITE ITS
ADMISSION THAT THE ACCUSED-APPELLANTS WERE NOT ASSISTED
BY A COUNSEL DURING THE CUSTODIAL INVESTIGATION.
2. THE COURT A QUO ERRED IN NOT FINDING THAT THE
SUPPRESSION BY THE PROSECUTION OF SOME EVIDENCE IS FATAL
TO ITS CASE.
3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE
INCREDIBLE TESTIMONY OF EDUARDO GABION WHO WAS ONE OF
THE MANY SUSPECTS ARRESTED BY THE POLICE (Accused-appellants'
Brief, p. 48, Rollo).
The antecedent facts are as follows:
The deceased Miranda, a 25-year old retardate, and the accused Pugay
were friends. Miranda used to run errands for Pugay and at times they slept
together. On the evening of May 19, 1982, a town fiesta fair was held in the
public plaza of Rosario, Cavite. There were different kinds of ride and one
was a ferris wheel.
Sometime after midnight of the same date, Eduardo Gabion was sitting in the
ferris wheel and reading a comic book with his friend Henry. Later, the
accused Pugay and Samson with several companions arrived. These
persons appeared to be drunk as they were all happy and noisy. As the
group saw the deceased walking nearby, they started making fun of him.
They made the deceased dance by tickling him with a piece of wood.
Not content with what they were doing with the deceased, the accused
Pugay suddenly took a can of gasoline from under the engine of the ferns
wheel and poured its contents on the body of the former. Gabion told Pugay
not to do so while the latter was already in the process of pouring the
gasoline. Then, the accused Samson set Miranda on fire making a human
torch out of him.
The ferris wheel operator later arrived and doused with water the burning
body of the deceased. Some people around also poured sand on the burning
body and others wrapped the same with rags to extinguish the flame.
The body of the deceased was still aflame when police officer Rolando
Silangcruz and other police officers of the Rosario Police Force arrived at the
scene of the incident. Upon inquiring as to who were responsible for the
dastardly act, the persons around spontaneously pointed to Pugay and
Samson as the authors thereof.
The deceased was later rushed to the Grace Hospital for treatment. In the
meantime, the police officers brought Gabion, the two accused and five other
persons to the Rosario municipal building for interrogation. Police officer
Reynaldo Canlas took the written statements of Gabion and the two accused,
after which Gabion was released. The two accused remained in custody.
After a careful review of the records, We find the grounds relied upon by the
accused-appellants for the reversal of the decision of the court a quo to be
without merit.
It bears emphasis that barely a few hours after the incident, accused-
appellants gave their written statements to the police. The accused Pugay
admitted in his statement, Exhibit F, that he poured a can of gasoline on the
deceased believing that the contents thereof was water and then the
accused Samson set the deceased on fire. The accused Samson, on the
other hand, alleged in his statement that he saw Pugay pour gasoline on
Miranda but did not see the person who set him on fire. Worthy of note is the
fact that both statements did not impute any participation of eyewitness
Gabion in the commission of the offense.
While testifying on their defense, the accused-appellants repudiated their
written statements alleging that they were extracted by force. They claimed
that the police maltreated them into admitting authorship of the crime. They
also engaged in a concerted effort to lay the blame on Gabion for the
commission of the offense.
Thus, while it is true that the written statements of the accused-appellants
were mentioned and discussed in the decision of the court a quo, the
contents thereof were not utilized as the sole basis for the findings of facts in
the decision rendered. The said court categorically stated that "even without
Exhibits 'F' and 'G', there is still Gabion's straightforward, positive and
convincing testimony which remains unaffected by the uncorroborated, self-
serving and unrealiable testimonies of Pugay and Samson" (p. 247,
Records).
Accused-appellants next assert that the prosecution suppressed the
testimonies of other eyewitnesses to the incident. They claim that despite the
fact that there were other persons investigated by the police, only Gabion
was presented as an eyewitness during the trial of the case. They argue that
the deliberate non- presentation of these persons raises the presumption that
their testimonies would be adverse to the prosecution.
There is no dispute that there were other persons who witnessed the
commission of the crime. In fact there appears on record (pp. 16-17,
Records) the written statements of one Abelardo Reyes and one Monico
Alimorong alleging the same facts and imputing the respective acts of
pouring of gasoline and setting the deceased on fire to the accused-
appellants as testified to by Gabion in open court. They were listed as
prosecution witnesses in the information filed. Considering that their
testimonies would be merely corroborative, their non-presentation does not
give rise to the presumption that evidence wilfully suppressed would be
adverse if produced. This presumption does not apply to the suppression of
merely corroborative evidence (U.S. vs. Dinola, 37 Phil. 797).<äre||anº•1àw>
Besides, the matter as to whom to utilize as witness is for the prosecution to
decide.
Accused-appellants also attack the credibility of the eyewitness Gabion
alleging that not only was the latter requested by the mother of the deceased
to testify for the prosecution in exchange for his absolution from liability but
also because his testimony that he was reading a comic book during an
unusual event is contrary to human behavior and experience.
Gabion testified that it was his uncle and not the mother of the deceased who
asked him to testify and state the truth about the incident. The mother of the
deceased likewise testified that she never talked to Gabion and that she saw
the latter for the first time when the instant case was tried. Besides, the
accused Pugay admitted that Gabion was his friend and both Pugay and the
other accused Samson testified that they had no previous misunderstanding
with Gabion. Clearly, Gabion had no reason to testify falsely against them.
In support of their claim that the testimony of Gabion to the effect that he saw
Pugay pour gasoline on the deceased and then Samson set him on fire is
incredible, the accused-appellants quote Gabion's testimony on cross-
examination that, after telling Pugay not to pour gasoline on the deceased,
he (Gabion) resumed reading comics; and that it was only when the victim's
body was on fire that he noticed a commotion.
However, explaining this testimony on re-direct examination, Gabion stated:
Q. Mr. Gabion, you told the Court on cross-examination that you were
reading comics when you saw Pugay poured gasoline unto Bayani Miranda
and lighted by Samson. How could you possibly see that incident while you
were reading comics?
A. I put down the comics which I am reading and I saw what they were
doing.
Q. According to you also before Bayani was poured with gasoline and
lighted and burned later you had a talk with Pugay, is that correct?
A. When he was pouring gasoline on Bayani Miranda I was trying to
prevent him from doing so.
Q. We want to clarify. According to you a while ago you had a talk with Q. So, it is clear when you told Pugay not to pour gasoline he was
Pugay and as a matter of fact, you told him not to pour gasoline. That is what already in the process of pouring gasoline on the body of Bayani?
I want to know from you, if that is true?
A. Yes, sir (Tsn, July 30, 1983, pp. 32-33).
A. Yes, sir.
It is thus clear that prior to the incident in question, Gabion was reading a
Q. Aside from Bayani being tickled with a stick on his ass, do you mean comic book; that Gabion stopped reading when the group of Pugay started to
to say you come to know that Pugay will pour gasoline unto him? make fun of the deceased; that Gabion saw Pugay get the can of gasoline
from under the engine of the ferris wheel; that it was while Pugay was in the
A. I do not know that would be that incident. process of pouring the gasoline on the body of the deceased when Gabion
warned him not to do so; and that Gabion later saw Samson set the
Q. Why did you as(k) Pugay in the first place not to pour gasoline before deceased on fire.
he did that actually?
However, there is nothing in the records showing that there was previous
A. Because I pity Bayani, sir. conspiracy or unity of criminal purpose and intention between the two
accused-appellants immediately before the commission of the crime. There
Q. When you saw Pugay tickling Bayani with a stick on his ass you tried was no animosity between the deceased and the accused Pugay or Samson.
according to you to ask him not to and then later you said you asked not to Their meeting at the scene of the incident was accidental. It is also clear that
pour gasoline. Did Pugay tell you he was going to pour gasoline on Bayani? the accused Pugay and his group merely wanted to make fun of the
deceased. Hence, the respective criminal responsibility of Pugay and
A. I was not told, sir. Samson arising from different acts directed against the deceased is
individual and not collective, and each of them is liable only for the act
Q. Did you come to know..... how did you come to know he was going to committed by him (U.S. vs. Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog,
pour gasoline that is why you prevent him? et. al. 37 Phil. 1371).

A. Because he was holding on a container of gasoline. I thought it was The next question to be determined is the criminal responsibility of the
water but it was gasoline. accused Pugay. Having taken the can from under the engine of the ferris
wheel and holding it before pouring its contents on the body of the deceased,
Q. It is clear that while Pugay was tickling Bayani with a stick on his ass, this accused knew that the can contained gasoline. The stinging smell of this
he later got hold of a can of gasoline, is that correct? flammable liquid could not have escaped his notice even before pouring the
same. Clearly, he failed to exercise all the diligence necessary to avoid every
A. Yes, sir. undesirable consequence arising from any act that may be committed by his
companions who at the time were making fun of the deceased. We agree
Q. And when he pick up the can of gasoline, was that the time you told with the Solicitor General that the accused is only guilty of homicide through
him not to pour gasoline when he merely pick up the can of gasoline. reckless imprudence defined in Article 365 of the Revised Penal Code, as
amended. In U.S. vs. Maleza, et. al. 14 Phil. 468, 470, this Court ruled as
A. I saw him pouring the gasoline on the body of Joe. follows:
A man must use common sense and exercise due reflection in all his acts; it
is his duty to be cautious, careful, and prudent, if not from instinct, then
through fear of incurring punishment. He is responsible for such results as
anyone might foresee and for acts which no one would have performed
except through culpable abandon. Otherwise his own person, rights and
property, all those of his fellow-beings, would ever be exposed to all manner
of danger and injury.
The proper penalty that the accused Pugay must suffer is an indeterminate
one ranging from four (4) months of arresto mayor, as minimum, to four (4)
years and two (2) months of prision correccional, as maximum. With respect
to the accused Samson, the Solicitor General in his brief contends that "his
conviction of murder, is proper considering that his act in setting the
deceased on fire knowing that gasoline had just been poured on him is
characterized by treachery as the victim was left completely helpless to
defend and protect himself against such an outrage" (p. 57, Rollo). We do
not agree.
There is entire absence of proof in the record that the accused Samson had
some reason to kill the deceased before the incident. On the contrary, there
is adequate evidence showing that his act was merely a part of their fun-
making that evening. For the circumstance of treachery to exist, the attack
must be deliberate and the culprit employed means, methods, or forms in the
execution thereof which tend directly and specially to insure its execution,
without risk to himself arising from any defense which the offended party
might make.
There can be no doubt that the accused Samson knew very well that the
liquid poured on the body of the deceased was gasoline and a flammable
substance for he would not have committed the act of setting the latter on fire
if it were otherwise. Giving him the benefit of doubt, it call be conceded that
as part of their fun-making he merely intended to set the deceased's clothes
on fire. His act, however, does not relieve him of criminal responsibility.
Burning the clothes of the victim would cause at the very least some kind of
physical injuries on his person, a felony defined in the Revised Penal Code. If
his act resulted into a graver offense, as what took place in the instant case,
he must be held responsible therefor. Article 4 of the aforesaid code
provides, inter alia, 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.
As no sufficient evidence appears in the record establishing any qualifying
circumstances, the accused Samson is only guilty of the crime of homicide
defined and penalized in Article 249 of the Revised Penal Code, as
amended. We are disposed to credit in his favor the ordinary mitigating
circumstance of no intention to commit so grave a wrong as that committed
as there is evidence of a fact from which such conclusion can be drawn. The
eyewitness Gabion testified that the accused Pugay and Samson were
stunned when they noticed the deceased burning (Tsn, June 1, 1983, pp. 16-
17).<äre||anº•1àw>
The proper penalty that the accused Samson must suffer is an indeterminate
one ranging from eight (8) years of prision mayor, as minimum, to fourteen
(14) years of reclusion temporal, as maximum.
The lower court held the accused solidarily liable for P13,940.00, the amount
spent by Miranda's parents for his hospitalization, wake and interment. The
indemnity for death is P30,000.00. Hence, the indemnity to the heirs of the
deceased Miranda is increased to P43,940.00.
Both accused shall be jointly and severally liable for the aforesaid amount
plus the P10,000.00 as moral damages and P5,000.00 as exemplary
damages as found by the court a quo.
Accordingly, the judgment is affirmed with the modifications above-indicated.
Costs against the accused-appellants.
SO ORDERED.
Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.
[G.R. No. 148560. November 19, 2001]
JOSEPH EJERCITO ESTRADA, petitioner, vs. SANDIGANBAYAN (Third
Division) and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
BELLOSILLO, J.:
JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his
pen in defense of the rights of the individual from the vast powers of the
State and the inroads of societal pressure. But even as he draws a
sacrosanct line demarcating the limits on individuality beyond which the State
cannot tread - asserting that "individual spontaneity" must be allowed to
flourish with very little regard to social interference - he veritably
acknowledges that the exercise of rights and liberties is imbued with a civic
obligation, which society is justified in enforcing at all cost, against those who
would endeavor to withhold fulfillment. Thus he says -
The sole end for which mankind is warranted, individually or collectively, in
interfering with the liberty of action of any of their number, is self-protection.
The only purpose for which power can be rightfully exercised over any
member of a civilized community, against his will, is to prevent harm to
others.
Parallel to individual liberty is the natural and illimitable right of the State to
self-preservation. With the end of maintaining the integrity and cohesiveness
of the body politic, it behooves the State to formulate a system of laws that
would compel obeisance to its collective wisdom and inflict punishment for
non-observance.
The movement from Mill's individual liberalism to unsystematic collectivism
wrought changes in the social order, carrying with it a new formulation of
fundamental rights and duties more attuned to the imperatives of
contemporary socio-political ideologies. In the process, the web of rights and
State impositions became tangled and obscured, enmeshed in threads of
multiple shades and colors, the skein irregular and broken. Antagonism,
often outright collision, between the law as the expression of the will of the
State, and the zealous attempts by its members to preserve their individuality
and dignity, inevitably followed. It is when individual rights are pitted against
State authority that judicial conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking official to be
prosecuted under RA 7080 (An Act Defining and Penalizing the Crime of
Plunder),[1] as amended by RA 7659,[2] wishes to impress upon us that the
assailed law is so defectively fashioned that it crosses that thin but distinct
line which divides the valid from the constitutionally infirm. He therefore
makes a stringent call for this Court to subject the Plunder Law to the
crucible of constitutionality mainly because, according to him, (a) it suffers
from the vice of vagueness; (b) it dispenses with the "reasonable doubt"
standard in criminal prosecutions; and, (c) it abolishes the element of mens
rea in crimes already punishable under The Revised Penal Code, all of which
are purportedly clear violations of the fundamental rights of the accused to
due process and to be informed of the nature and cause of the accusation
against him.
Specifically, the provisions of the Plunder Law claimed by petitioner to have
transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4 which
are reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business,
enterprise or material possession of any person within the purview of Section
Two (2) hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any
combination or series of the following means or similar schemes:
(1) Through misappropriation, conversion, misuse, or malversation of public
funds or raids on the public treasury;
(2) By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary benefit from any
person and/or entity in connection with any government contract or project or
by reason of the office or position of the public office concerned;
(3) By the illegal or fraudulent conveyance or disposition of assets belonging
to the National Government or any of its subdivisions, agencies or
instrumentalities, or government owned or controlled corporations and their
subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly any shares of
stock, equity or any other form of interest or participation including the
promise of future employment in any business enterprise or undertaking;
(5) By establishing agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders intended to
benefit particular persons or special interests; or
(6) By taking advantage of official position, authority, relationship, connection
or influence to unjustly enrich himself or themselves at the expense and to
the damage and prejudice of the Filipino people and the Republic of the
Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer
who, by himself or in connivance with members of his family, relatives by
affinity or consanguinity, business associates, subordinates or other persons,
amasses, accumulates or acquires ill-gotten wealth through a combination or
series of overt or criminal acts as described in Section 1 (d) hereof, in the
aggregate amount or total value of at least fifty million pesos
(P50,000,000.00) shall be guilty of the crime of plunder and shall be
punished by reclusion perpetua to death. Any person who participated with
the said public officer in the commission of an offense contributing to the
crime of plunder shall likewise be punished for such offense. In the
imposition of penalties, the degree of participation and the attendance of
mitigating and extenuating circumstances as provided by the Revised Penal
Code shall be considered by the court. The court shall declare any and all ill-
gotten wealth and their interests and other incomes and assets including the
properties and shares of stocks derived from the deposit or investment
thereof forfeited in favor of the State (underscoring supplied).
Section 4. Rule of Evidence. - For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act done
by the accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy (underscoring supplied).
On 4 April 2001 the Office of the Ombudsman filed before the
Sandiganbayan eight (8) separate Informations, docketed as: (a) Crim. Case
No. 26558, for violation of RA 7080, as amended by RA 7659; (b) Crim.
Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3,
par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt
Practices Act), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7,
par. (d), of RA 6713 (The Code of Conduct and Ethical Standards for Public
Officials and Employees); (d) Crim. Case No. 26564, for Perjury (Art. 183 of
The Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of
An Alias (CA No. 142, as amended by RA 6085).
On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the
case to the Ombudsman for preliminary investigation with respect to
specification "d" of the charges in the Information in Crim. Case No. 26558;
and, for reconsideration/reinvestigation of the offenses under specifications
"a," "b," and "c" to give the accused an opportunity to file counter-affidavits
and other documents necessary to prove lack of probable cause. Noticeably,
the grounds raised were only lack of preliminary investigation,
reconsideration/reinvestigation of offenses, and opportunity to prove lack of
probable cause. The purported ambiguity of the charges and the vagueness
of the law under which they are charged were never raised in that Omnibus
Motion thus indicating the explicitness and comprehensibility of the Plunder
Law.
On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in
Crim. Case No. 26558 finding that "a probable cause for the offense of
PLUNDER exists to justify the issuance of warrants for the arrest of the
accused." On 25 June 2001 petitioner's motion for reconsideration was
denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim. Case
No. 26558 on the ground that the facts alleged therein did not constitute an
indictable offense since the law on which it was based was unconstitutional
for vagueness, and that the Amended Information for Plunder charged more
than one (1) offense. On 21 June 2001 the Government filed its Opposition to
the Motion to Quash, and five (5) days later or on 26 June 2001 petitioner
submitted his Reply to the Opposition. On 9 July 2001 the Sandiganbayan
denied petitioner's Motion to Quash.

As concisely delineated by this Court during the oral arguments on 18
September 2001, the issues for resolution in the instant petition for certiorari
are: (a) The Plunder Law is unconstitutional for being vague; (b) The Plunder
Law requires less evidence for proving the predicate crimes of plunder and
therefore violates the rights of the accused to due process; and, (c) Whether
Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is
within the power of Congress to so classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the validity of
legislation is predicated on the basic principle that a legislative measure is
presumed to be in harmony with the Constitution.[3] Courts invariably train
their sights on this fundamental rule whenever a legislative act is under a
constitutional attack, for it is the postulate of constitutional adjudication. This
strong predilection for constitutionality takes its bearings on the idea that it is
forbidden for one branch of the government to encroach upon the duties and
powers of another. Thus it has been said that the presumption is based on
the deference the judicial branch accords to its coordinate branch - the
legislature.
If there is any reasonable basis upon which the legislation may firmly rest,
the courts must assume that the legislature is ever conscious of the borders
and edges of its plenary powers, and has passed the law with full knowledge
of the facts and for the purpose of promoting what is right and advancing the
welfare of the majority. Hence in determining whether the acts of the
legislature are in tune with the fundamental law, courts should proceed with
judicial restraint and act with caution and forbearance. Every intendment of
the law must be adjudged by the courts in favor of its constitutionality,
invalidity being a measure of last resort. In construing therefore the
provisions of a statute, courts must first ascertain whether an interpretation is
fairly possible to sidestep the question of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon[4] we held that as long as
there is some basis for the decision of the court, the constitutionality of the
challenged law will not be touched and the case will be decided on other
available grounds. Yet the force of the presumption is not sufficient to
catapult a fundamentally deficient law into the safe environs of
constitutionality. Of course, where the law clearly and palpably transgresses
the hallowed domain of the organic law, it must be struck down on sight lest
the positive commands of the fundamental law be unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on the
party challenging the validity of the statute. He must demonstrate beyond any
tinge of doubt that there is indeed an infringement of the constitution, for
absent such a showing, there can be no finding of unconstitutionality. A
doubt, even if well-founded, will hardly suffice. As tersely put by Justice
Malcolm, "To doubt is to sustain."[5] And petitioner has miserably failed in the
instant case to discharge his burden and overcome the presumption of
constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and well-
defined parameters which would enable the accused to determine the nature
of his violation. Section 2 is sufficiently explicit in its description of the acts,
conduct and conditions required or forbidden, and prescribes the elements of
the crime with reasonable certainty and particularity. Thus -
1. That the offender is a public officer who acts by himself or in connivance
with members of his family, relatives by affinity or consanguinity, business
associates, subordinates or other persons;
2. That he amassed, accumulated or acquired ill-gotten wealth through a
combination or series of the following overt or criminal acts: (a) through
misappropriation, conversion, misuse, or malversation of public funds or
raids on the public treasury; (b) by receiving, directly or indirectly, any
commission, gift, share, percentage, kickback or any other form of pecuniary
benefits from any person and/or entity in connection with any government
contract or project or by reason of the office or position of the public officer;
(c) by the illegal or fraudulent conveyance or disposition of assets belonging
to the National Government or any of its subdivisions, agencies or
instrumentalities of Government owned or controlled corporations or their
subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or participation including
the promise of future employment in any business enterprise or undertaking;
(e) by establishing agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders intended to
benefit particular persons or special interests; or (f) by taking advantage of
official position, authority, relationship, connection or influence to unjustly
enrich himself or themselves at the expense and to the damage and
prejudice of the Filipino people and the Republic of the Philippines; and,
3. That the aggregate amount or total value of the ill-gotten wealth amassed,
accumulated or acquired is at least P50,000,000.00.
As long as the law affords some comprehensible guide or rule that would
inform those who are subject to it what conduct would render them liable to
its penalties, its validity will be sustained. It must sufficiently guide the judge
in its application; the counsel, in defending one charged with its violation; and
more importantly, the accused, in identifying the realm of the proscribed
conduct. Indeed, it can be understood with little difficulty that what the
assailed statute punishes is the act of a public officer in amassing or
accumulating ill-gotten wealth of at least P50,000,000.00 through a series or
combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law.
In fact, the amended Information itself closely tracks the language of the law,
indicating with reasonable certainty the various elements of the offense
which petitioner is alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office
of the Ombudsman, hereby accuses former PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG
SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy'
Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma
Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy,
Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of
Plunder, defined and penalized under R.A. No. 7080, as amended by Sec.
12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January 2001, in the Philippines,
and within the jurisdiction of this Honorable Court, accused Joseph Ejercito
Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused,
WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR
OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL
POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR
INFLUENCE, did then and there willfully, unlawfully and criminally amass,
accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-
gotten wealth in the aggregate amount or TOTAL VALUE of FOUR BILLION
NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE
HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
(P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING
HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE
OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES,
through ANY OR A combination OR A series of overt OR criminal acts, OR
SIMILAR SCHEMES OR MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL
INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED
FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM
ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF
AND/OR in connection with co-accused CHARLIE 'ATONG' ANG, Jose
'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES
AND JANE DOES, in consideration OF TOLERATION OR PROTECTION
OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing
DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and
benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION
PESOS (P130,000,000.00), more or less, representing a portion of the TWO
HUNDRED MILLION PESOS (P200,000,000.00) tobacco excise tax share
allocated for the province of Ilocos Sur under R.A. No. 7171, by himself
and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro,
JOHN DOE a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia
Rajas, AND OTHER JOHN DOES & JANE DOES; (italic supplied).
(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND
BENEFIT, the Government Service Insurance System (GSIS) TO
PURCHASE 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the
Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE
OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE
OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED
SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY
CENTAVOS (P1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED
FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR
HUNDRED FIFTY PESOS (P744,612,450.00), RESPECTIVELY, OR A
TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY
SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY
SEVEN PESOS AND FIFTY CENTAVOS (P1,847,578,057.50); AND BY
COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF
AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES,
COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES
OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY
NINE MILLION SEVEN HUNDRED THOUSAND PESOS (P189,700,000.00)
MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME
PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE
ACCOUNT NAME 'JOSE VELARDE;'
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES,
PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY
BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the
amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY
THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED
SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
(P3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS
ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI BANK."
We discern nothing in the foregoing that is vague or ambiguous - as there is
obviously none - that will confuse petitioner in his defense. Although subject
to proof, these factual assertions clearly show that the elements of the crime
are easily understood and provide adequate contrast between the innocent
and the prohibited acts. Upon such unequivocal assertions, petitioner is
completely informed of the accusations against him as to enable him to
prepare for an intelligent defense.
Petitioner, however, bewails the failure of the law to provide for the statutory
definition of the terms "combination" and "series" in the key phrase "a
combination or series of overt or criminal acts" found in Sec. 1, par. (d), and
Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to
petitioner, render the Plunder Law unconstitutional for being impermissibly
vague and overbroad and deny him the right to be informed of the nature and
cause of the accusation against him, hence, violative of his fundamental right
to due process.
The rationalization seems to us to be pure sophistry. A statute is not
rendered uncertain and void merely because general terms are used therein,
or because of the employment of terms without defining them;[6] much less
do we have to define every word we use. Besides, there is no positive
constitutional or statutory command requiring the legislature to define each
and every word in an enactment. Congress is not restricted in the form of
expression of its will, and its inability to so define the words employed in a
statute will not necessarily result in the vagueness or ambiguity of the law so
long as the legislative will is clear, or at least, can be gathered from the
whole act, which is distinctly expressed in the Plunder Law.
Moreover, it is a well-settled principle of legal hermeneutics that words of a
statute will be interpreted in their natural, plain and ordinary acceptation and
signification,[7] unless it is evident that the legislature intended a technical or
special legal meaning to those words.[8] The intention of the lawmakers -
who are, ordinarily, untrained philologists and lexicographers - to use
statutory phraseology in such a manner is always presumed. Thus,
Webster's New Collegiate Dictionary contains the following commonly
accepted definition of the words "combination" and "series:"
Combination - the result or product of combining; the act or process of
combining. To combine is to bring into such close relationship as to obscure
individual characters.
Series - a number of things or events of the same class coming one after
another in spatial and temporal succession.
That Congress intended the words "combination" and "series" to be
understood in their popular meanings is pristinely evident from the legislative
deliberations on the bill which eventually became RA 7080 or the Plunder
Law:
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May
1991
REP. ISIDRO: I am just intrigued again by our definition of plunder. We say
THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL
ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say
combination, we actually mean to say, if there are two or more means, we
mean to say that number one and two or number one and something else
are included, how about a series of the same act? For example, through
misappropriation, conversion, misuse, will these be included also?
REP. GARCIA: Yeah, because we say a series.
REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that -
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that two of the enumerated
means not twice of one enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but combination, two acts.
REP. ISIDRO: So in other words, thats it. When we say combination, we
mean, two different acts. It cannot be a repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
REP. GARCIA: A series.
REP. ISIDRO: Thats not series. Its a combination. Because when we say
combination or series, we seem to say that two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is
why, I said, that is a very good suggestion because if it is only one act, it may
fall under ordinary crime but we have here a combination or series of overt or
criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term series?
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be combination.
Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that sometimes one or
maybe even two acts may already result in such a big amount, on line 25,
would the Sponsor consider deleting the words a series of overt or, to read,
therefore: or conspiracy COMMITTED by criminal acts such as. Remove the
idea of necessitating a series. Anyway, the criminal acts are in the plural.
SENATOR TANADA: That would mean a combination of two or more of the
acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because a series implies several or many; two or
more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be prosecuted under
the particular crime. But when we say acts of plunder there should be, at
least, two or more.
SENATOR ROMULO: In other words, that is already covered by existing
laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring to at least
two (2) acts falling under different categories of enumeration provided in Sec.
1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1),
and fraudulent conveyance of assets belonging to the National Government
under Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a series" there must be two (2) or more overt
or criminal acts falling under the same category of enumeration found in Sec.
1, par. (d), say, misappropriation, malversation and raids on the public
treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the
legislature intended a technical or distinctive meaning for "combination" and
"series," it would have taken greater pains in specifically providing for it in the
law.
As for "pattern," we agree with the observations of the Sandiganbayan[9] that
this term is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and
Sec. 2 -
x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a
combination or series of overt or criminal acts enumerated in subsections (1)
to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of
overt or criminal acts is directed towards a common purpose or goal which is
to enable the public officer to amass, accumulate or acquire ill-gotten wealth.
And thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy'
to achieve said common goal. As commonly understood, the term 'overall
unlawful scheme' indicates a 'general plan of action or method' which the
principal accused and public officer and others conniving with him follow to
achieve the aforesaid common goal. In the alternative, if there is no such
overall scheme or where the schemes or methods used by multiple accused
vary, the overt or criminal acts must form part of a conspiracy to attain a
common goal.
Hence, it cannot plausibly be contended that the law does not give a fair
warning and sufficient notice of what it seeks to penalize. Under the
circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is
manifestly misplaced. The doctrine has been formulated in various ways, but
is most commonly stated to the effect that a statute establishing a criminal
offense must define the offense with sufficient definiteness that persons of
ordinary intelligence can understand what conduct is prohibited by the
statute. It can only be invoked against that specie of legislation that is utterly
vague on its face, i.e., that which cannot be clarified either by a saving clause
or by construction.
A statute or act may be said to be vague when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its
meaning and differ in its application. In such instance, the statute is
repugnant to the Constitution in two (2) respects - it violates due process for
failure to accord persons, especially the parties targeted by it, fair notice of
what conduct to avoid; and, it leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.[10] But the doctrine does not apply as against
legislations that are merely couched in imprecise language but which
nonetheless specify a standard though defectively phrased; or to those that
are apparently ambiguous yet fairly applicable to certain types of activities.
The first may be "saved" by proper construction, while no challenge may be
mounted as against the second whenever directed against such
activities.[11] With more reason, the doctrine cannot be invoked where the
assailed statute is clear and free from ambiguity, as in this case.
The test in determining whether a criminal statute is void for uncertainty is
whether the language conveys a sufficiently definite warning as to the
proscribed conduct when measured by common understanding and
practice.[12] It must be stressed, however, that the "vagueness" doctrine
merely requires a reasonable degree of certainty for the statute to be upheld
- not absolute precision or mathematical exactitude, as petitioner seems to
suggest. Flexibility, rather than meticulous specificity, is permissible as long
as the metes and bounds of the statute are clearly delineated. An act will not
be held invalid merely because it might have been more explicit in its
wordings or detailed in its provisions, especially where, because of the
nature of the act, it would be impossible to provide all the details in advance
as in all other statutes.
Moreover, we agree with, hence we adopt, the observations of Mr. Justice
Vicente V. Mendoza during the deliberations of the Court that the allegations
that the Plunder Law is vague and overbroad do not justify a facial review of
its validity -
The void-for-vagueness doctrine states that "a statute which either forbids or
requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of law."[13] The
overbreadth doctrine, on the other hand, decrees that "a governmental
purpose may not be achieved by means which sweep unnecessarily broadly
and thereby invade the area of protected freedoms."[14]
A facial challenge is allowed to be made to a vague statute and to one which
is overbroad because of possible "chilling effect" upon protected speech. The
theory is that "[w]hen statutes regulate or proscribe speech and no readily
apparent construction suggests itself as a vehicle for rehabilitating the
statutes in a single prosecution, the transcendent value to all society of
constitutionally protected expression is deemed to justify allowing attacks on
overly broad statutes with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a statute drawn
with narrow specificity."[15] The possible harm to society in permitting some
unprotected speech to go unpunished is outweighed by the possibility that
the protected speech of others may be deterred and perceived grievances
left to fester because of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be prevented
from enacting laws against socially harmful conduct. In the area of criminal
law, the law cannot take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only
to free speech cases. They are inapt for testing the validity of penal statutes.
As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist,
"we have not recognized an 'overbreadth' doctrine outside the limited context
of the First Amendment."[16] In Broadrick v. Oklahoma,[17] the Court ruled
that "claims of facial overbreadth have been entertained in cases involving
statutes which, by their terms, seek to regulate only spoken words" and,
again, that "overbreadth claims, if entertained at all, have been curtailed
when invoked against ordinary criminal laws that are sought to be applied to
protected conduct." For this reason, it has been held that "a facial challenge
to a legislative act is the most difficult challenge to mount successfully, since
the challenger must establish that no set of circumstances exists under which
the Act would be valid."[18] As for the vagueness doctrine, it is said that a
litigant may challenge a statute on its face only if it is vague in all its possible
applications. "A plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied to the
conduct of others."[19]
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing "on their faces" statutes in free speech
cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute.
With respect to such statute, the established rule is that "one to whom
application of a statute is constitutional will not be heard to attack the statute
on the ground that impliedly it might also be taken as applying to other
persons or other situations in which its application might be
unconstitutional."[20] As has been pointed out, "vagueness challenges in the
First Amendment context, like overbreadth challenges typically produce facial
invalidation, while statutes found vague as a matter of due process typically
are invalidated [only] 'as applied' to a particular defendant."[21]
Consequently, there is no basis for petitioner's claim that this Court review
the Anti-Plunder Law on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down
entirely on the ground that they might be applied to parties not before the
Court whose activities are constitutionally protected.[22] It constitutes a
departure from the case and controversy requirement of the Constitution and
permits decisions to be made without concrete factual settings and in sterile
abstract contexts.[23] But, as the U.S. Supreme Court pointed out in Younger
v. Harris[24]
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and
requiring correction of these deficiencies before the statute is put into effect,
is rarely if ever an appropriate task for the judiciary. The combination of the
relative remoteness of the controversy, the impact on the legislative process
of the relief sought, and above all the speculative and amorphous nature of
the required line-by-line analysis of detailed statutes, . . . ordinarily results in
a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described
as "manifestly strong medicine," to be employed "sparingly and only as a last
resort,"[25] and is generally disfavored.[26] In determining the
constitutionality of a statute, therefore, its provisions which are alleged to
have been violated in a case must be examined in the light of the conduct
with which the defendant is charged.[27]
In light of the foregoing disquisition, it is evident that the purported ambiguity
of the Plunder Law, so tenaciously claimed and argued at length by
petitioner, is more imagined than real. Ambiguity, where none exists, cannot
be created by dissecting parts and words in the statute to furnish support to
critics who cavil at the want of scientific precision in the law. Every provision
of the law should be construed in relation and with reference to every other
part. To be sure, it will take more than nitpicking to overturn the well-
entrenched presumption of constitutionality and validity of the Plunder Law. A
fortiori, petitioner cannot feign ignorance of what the Plunder Law is all about.
Being one of the Senators who voted for its passage, petitioner must be
aware that the law was extensively deliberated upon by the Senate and its
appropriate committees by reason of which he even registered his affirmative
vote with full knowledge of its legal implications and sound constitutional
anchorage.
The parallel case of Gallego v. Sandiganbayan[28] must be mentioned if only
to illustrate and emphasize the point that courts are loathed to declare a
statute void for uncertainty unless the law itself is so imperfect and deficient
in its details, and is susceptible of no reasonable construction that will
support and give it effect. In that case, petitioners Gallego and Agoncillo
challenged the constitutionality of Sec. 3, par. (e), of The Anti-Graft and
Corrupt Practices Act for being vague. Petitioners posited, among others,
that the term "unwarranted" is highly imprecise and elastic with no common
law meaning or settled definition by prior judicial or administrative
precedents; that, for its vagueness, Sec. 3, par. (e), violates due process in
that it does not give fair warning or sufficient notice of what it seeks to
penalize. Petitioners further argued that the Information charged them with
three (3) distinct offenses, to wit: (a) giving of "unwarranted" benefits through
manifest partiality; (b) giving of "unwarranted" benefits through evident bad
faith; and, (c) giving of "unwarranted" benefits through gross inexcusable
negligence while in the discharge of their official function and that their right
to be informed of the nature and cause of the accusation against them was
violated because they were left to guess which of the three (3) offenses, if
not all, they were being charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-
Graft and Corrupt Practices Act does not suffer from the constitutional defect
of vagueness. The phrases "manifest partiality," "evident bad faith," and
"gross and inexcusable negligence" merely describe the different modes by
which the offense penalized in Sec. 3, par. (e), of the statute may be
committed, and the use of all these phrases in the same Information does not
mean that the indictment charges three (3) distinct offenses.
The word 'unwarranted' is not uncertain. It seems lacking adequate or official
support; unjustified; unauthorized (Webster, Third International Dictionary, p.
2514); or without justification or adequate reason (Philadelphia Newspapers,
Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and
Phrases, Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket
Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act consider
a corrupt practice and make unlawful the act of the public officer in:
x x x or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial functions
through manifest partiality, evident bad faith or gross inexcusable negligence,
x x x (Section 3 [e], Rep. Act 3019, as amended).
It is not at all difficult to comprehend that what the aforequoted penal
provisions penalize is the act of a public officer, in the discharge of his
official, administrative or judicial functions, in giving any private party
benefits, advantage or preference which is unjustified, unauthorized or
without justification or adequate reason, through manifest partiality, evident
bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing vague or ambiguous
in the use of the term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and
Corrupt Practices Act, which was understood in its primary and general
acceptation. Consequently, in that case, petitioners' objection thereto was
held inadequate to declare the section unconstitutional.
On the second issue, petitioner advances the highly stretched theory that
Sec. 4 of the Plunder Law circumvents the immutable obligation of the
prosecution to prove beyond reasonable doubt the predicate acts constituting
the crime of plunder when it requires only proof of a pattern of overt or
criminal acts showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act done
by the accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to the simplistic mind. In a
criminal prosecution for plunder, as in all other crimes, the accused always
has in his favor the presumption of innocence which is guaranteed by the Bill
of Rights, and unless the State succeeds in demonstrating by proof beyond
reasonable doubt that culpability lies, the accused is entitled to an
acquittal.[29] The use of the "reasonable doubt" standard is indispensable to
command the respect and confidence of the community in the application of
criminal law. It is critical that the moral force of criminal law be not diluted by
a standard of proof that leaves people in doubt whether innocent men are
being condemned. It is also important in our free society that every individual
going about his ordinary affairs has confidence that his government cannot
adjudge him guilty of a criminal offense without convincing a proper factfinder
of his guilt with utmost certainty. This "reasonable doubt" standard has
acquired such exalted stature in the realm of constitutional law as it gives life
to the Due Process Clause which protects the accused against conviction
except upon proof beyond reasonable doubt of every fact necessary to
constitute the crime with which he is charged.[30] The following exchanges
between Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during
the deliberations in the floor of the House of Representatives are elucidating
-
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080,
9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law
that what is alleged in the information must be proven beyond reasonable
doubt. If we will prove only one act and find him guilty of the other acts
enumerated in the information, does that not work against the right of the
accused especially so if the amount committed, say, by falsification is less
than P100 million, but the totality of the crime committed is P100 million since
there is malversation, bribery, falsification of public document, coercion,
theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the information needs
to be proved beyond reasonable doubt. What is required to be proved
beyond reasonable doubt is every element of the crime charged. For
example, Mr. Speaker, there is an enumeration of the things taken by the
robber in the information three pairs of pants, pieces of jewelry. These need
not be proved beyond reasonable doubt, but these will not prevent the
conviction of a crime for which he was charged just because, say, instead of
3 pairs of diamond earrings the prosecution proved two. Now, what is
required to be proved beyond reasonable doubt is the element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the
crime of plunder the totality of the amount is very important, I feel that such a
series of overt criminal acts has to be taken singly. For instance, in the act of
bribery, he was able to accumulate only P50,000 and in the crime of
extortion, he was only able to accumulate P1 million. Now, when we add the
totality of the other acts as required under this bill through the interpretation
on the rule of evidence, it is just one single act, so how can we now convict
him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an
essential element of the crime, there is a need to prove that element beyond
reasonable doubt. For example, one essential element of the crime is that
the amount involved is P100 million. Now, in a series of defalcations and
other acts of corruption in the enumeration the total amount would be P110
or P120 million, but there are certain acts that could not be proved, so, we
will sum up the amounts involved in those transactions which were proved.
Now, if the amount involved in these transactions, proved beyond reasonable
doubt, is P100 million, then there is a crime of plunder (underscoring
supplied).
It is thus plain from the foregoing that the legislature did not in any manner
refashion the standard quantum of proof in the crime of plunder. The burden
still remains with the prosecution to prove beyond any iota of doubt every fact
or element necessary to constitute the crime.
The thesis that Sec. 4 does away with proof of each and every component of
the crime suffers from a dismal misconception of the import of that provision.
What the prosecution needs to prove beyond reasonable doubt is only a
number of acts sufficient to form a combination or series which would
constitute a pattern and involving an amount of at least P50,000,000.00.
There is no need to prove each and every other act alleged in the Information
to have been committed by the accused in furtherance of the overall unlawful
scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. To
illustrate, supposing that the accused is charged in an Information for plunder
with having committed fifty (50) raids on the public treasury. The prosecution
need not prove all these fifty (50) raids, it being sufficient to prove by pattern
at least two (2) of the raids beyond reasonable doubt provided only that they
amounted to at least P50,000,000.00.[31]
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical
conclusion that "pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy" inheres in the very acts of accumulating,
acquiring or amassing hidden wealth. Stated otherwise, such pattern arises
where the prosecution is able to prove beyond reasonable doubt the
predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of
the proof of the predicate acts. This conclusion is consistent with reason and
common sense. There would be no other explanation for a combination or
series of
overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or
conspiracy to amass, accumulate or acquire ill gotten wealth." The
prosecution is therefore not required to make a deliberate and conscious
effort to prove pattern as it necessarily follows with the establishment of a
series or combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of Sec. 4 is his
submission that "pattern" is "a very important element of the crime of
plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of evidence
and a substantive element of the crime," such that without it the accused
cannot be convicted of plunder -
JUSTICE BELLOSILLO: In other words, cannot an accused be convicted
under the Plunder Law without applying Section 4 on the Rule of Evidence if
there is proof beyond reasonable doubt of the commission of the acts
complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes
enumerated in the Revised Penal Code, but not plunder.
JUSTICE BELLOSILLO: In other words, if all the elements of the crime are
proved beyond reasonable doubt without applying Section 4, can you not
have a conviction under the Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in
convicting an accused charged for violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a
substantive element of the law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4
when there is proof beyond reasonable doubt on the acts charged
constituting plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it
contains a rule of evidence and it contains a substantive element of the crime
of plunder. So, there is no way by which we can avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar
as the predicate crimes charged are concerned that you do not have to go
that far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very
important element of the crime of plunder and that cannot be avoided by the
prosecution.[32]
We do not subscribe to petitioner's stand. Primarily, all the essential
elements of plunder can be culled and understood from its definition in Sec.
2, in relation to Sec. 1, par. (d), and "pattern" is not one of them. Moreover,
the epigraph and opening clause of Sec. 4 is clear and unequivocal:
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder
xxxx
It purports to do no more than prescribe a rule of procedure for the
prosecution of a criminal case for plunder. Being a purely procedural
measure, Sec. 4 does not define or establish any substantive right in favor of
the accused but only operates in furtherance of a remedy. It is only a means
to an end, an aid to substantive law. Indubitably, even without invoking Sec.
4, a conviction for plunder may be had, for what is crucial for the prosecution
is to present sufficient evidence to engender that moral certitude exacted by
the fundamental law to prove the guilt of the accused beyond reasonable
doubt. Thus, even granting for the sake of argument that Sec. 4 is flawed and
vitiated for the reasons advanced by petitioner, it may simply be severed
from the rest of the provisions without necessarily resulting in the demise of
the law; after all, the existing rules on evidence can supplant Sec. 4 more
than enough. Besides, Sec. 7 of RA 7080 provides for a separability clause -
Sec. 7. Separability of Provisions. - If any provisions of this Act or the
application thereof to any person or circumstance is held invalid, the
remaining provisions of this Act and the application of such provisions to
other persons or circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole act from being
declared invalid as a result of the nullity of some of its provisions, assuming
that to be the case although it is not really so, all the provisions thereof
should accordingly be treated independently of each other, especially if by
doing so, the objectives of the statute can best be achieved.
As regards the third issue, again we agree with Justice Mendoza that plunder
is a malum in se which requires proof of criminal intent. Thus, he says, in his
Concurring Opinion -
x x x Precisely because the constitutive crimes are mala in se the element of
mens rea must be proven in a prosecution for plunder. It is noteworthy that
the amended information alleges that the crime of plunder was committed
"willfully, unlawfully and criminally." It thus alleges guilty knowledge on the
part of petitioner.

In support of his contention that the statute eliminates the requirement of
mens rea and that is the reason he claims the statute is void, petitioner cites
the following remarks of Senator Taada made during the deliberation on S.B.
No. 733:
SENATOR TAADA . . . And the evidence that will be required to convict him
would not be evidence for each and every individual criminal act but only
evidence sufficient to establish the conspiracy or scheme to commit this
crime of plunder.[33]
However, Senator Taada was discussing 4 as shown by the succeeding
portion of the transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is
contained in Section 4, Rule of Evidence, which, in the Gentleman's view,
would provide for a speedier and faster process of attending to this kind of
cases?
SENATOR TAADA: Yes, Mr. President . . .[34]
Senator Taada was only saying that where the charge is conspiracy to
commit plunder, the prosecution need not prove each and every criminal act
done to further the scheme or conspiracy, it being enough if it proves beyond
reasonable doubt a pattern of overt or ciminal acts indicative of the overall
unlawful scheme or conspiracy. As far as the acts constituting the pattern are
concerned, however, the elements of the crime must be proved and the
requisite mens rea must be shown.
Indeed, 2 provides that -
Any person who participated with the said public officer in the commission of
an offense contributing to the crime of plunder shall likewise be punished for
such offense. In the imposition of penalties, the degree of participation and
the attendance of mitigating and extenuating circumstances, as provided by
the Revised Penal Code, shall be considered by the court.
The application of mitigating and extenuating circumstances in the Revised
Penal Code to prosecutions under the Anti-Plunder Law indicates quite
clearly that mens rea is an element of plunder since the degree of
responsibility of the offender is determined by his criminal intent. It is true that
2 refers to "any person who participates with the said public officer in the
commission of an offense contributing to the crime of plunder." There is no
reason to believe, however, that it does not apply as well to the public officer
as principal in the crime. As Justice Holmes said: "We agree to all the
generalities about not supplying criminal laws with what they omit, but there
is no canon against using common sense in construing laws as saying what
they obviously mean."[35]
Finally, any doubt as to whether the crime of plunder is a malum in se must
be deemed to have been resolved in the affirmative by the decision of
Congress in 1993 to include it among the heinous crimes punishable by
reclusion perpetua to death. Other heinous crimes are punished with death
as a straight penalty in R.A. No. 7659. Referring to these groups of heinous
crimes, this Court held in People v. Echegaray:[36]
The evil of a crime may take various forms. There are crimes that are, by
their very nature, despicable, either because life was callously taken or the
victim is treated like an animal and utterly dehumanized as to completely
disrupt the normal course of his or her growth as a human being . . . . Seen
in this light, the capital crimes of kidnapping and serious illegal detention for
ransom resulting in the death of the victim or the victim is raped, tortured, or
subjected to dehumanizing acts; destructive arson resulting in death; and
drug offenses involving minors or resulting in the death of the victim in the
case of other crimes; as well as murder, rape, parricide, infanticide,
kidnapping and serious illegal detention, where the victim is detained for
more than three days or serious physical injuries were inflicted on the victim
or threats to kill him were made or the victim is a minor, robbery with
homicide, rape or intentional mutilation, destructive arson, and carnapping
where the owner, driver or occupant of the carnapped vehicle is killed or
raped, which are penalized by reclusion perpetua to death, are clearly
heinous by their very nature.
There are crimes, however, in which the abomination lies in the significance
and implications of the subject criminal acts in the scheme of the larger
socio-political and economic context in which the state finds itself to be
struggling to develop and provide for its poor and underprivileged masses.
Reeling from decades of corrupt tyrannical rule that bankrupted the
government and impoverished the population, the Philippine Government
must muster the political will to dismantle the culture of corruption,
dishonesty, greed and syndicated criminality that so deeply entrenched itself
in the structures of society and the psyche of the populace. [With the
government] terribly lacking the money to provide even the most basic
services to its people, any form of misappropriation or misapplication of
government funds translates to an actual threat to the very existence of
government, and in turn, the very survival of the people it governs over.
Viewed in this context, no less heinous are the effects and repercussions of
crimes like qualified bribery, destructive arson resulting in death, and drug
offenses involving government officials, employees or officers, that their
perpetrators must not be allowed to cause further destruction and damage to
society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous offense
implies that it is a malum in se. For when the acts punished are inherently
immoral or inherently wrong, they are mala in se[37] and it does not matter
that such acts are punished in a special law, especially since in the case of
plunder the predicate crimes are mainly mala in se. Indeed, it would be
absurd to treat prosecutions for plunder as though they are mere
prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an
ordinance against jaywalking, without regard to the inherent wrongness of
the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the amendatory
law of RA 7080, on constitutional grounds. Suffice it to say however that it is
now too late in the day for him to resurrect this long dead issue, the same
having been eternally consigned by People v. Echegaray[38] to the archives
of jurisprudential history. The declaration of this Court therein that RA 7659 is
constitutionally valid stands as a declaration of the State, and becomes, by
necessary effect, assimilated in the Constitution now as an integral part of it.
Our nation has been racked by scandals of corruption and obscene
profligacy of officials in high places which have shaken its very foundation.
The anatomy of graft and corruption has become more elaborate in the
corridors of time as unscrupulous people relentlessly contrive more and more
ingenious ways to bilk the coffers of the government. Drastic and radical
measures are imperative to fight the increasingly sophisticated,
extraordinarily methodical and economically catastrophic looting of the
national treasury. Such is the Plunder Law, especially designed to
disentangle those ghastly tissues of grand-scale corruption which, if left
unchecked, will spread like a malignant tumor and ultimately consume the
moral and institutional fiber of our nation. The Plunder Law, indeed, is a living
testament to the will of the legislature to ultimately eradicate this scourge and
thus secure society against the avarice and other venalities in public office.
These are times that try men's souls. In the checkered history of this nation,
few issues of national importance can equal the amount of interest and
passion generated by petitioner's ignominious fall from the highest office, and
his eventual prosecution and trial under a virginal statute. This continuing
saga has driven a wedge of dissension among our people that may linger for
a long time. Only by responding to the clarion call for patriotism, to rise above
factionalism and prejudices, shall we emerge triumphant in the midst of
ferment.
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known
as the Plunder Law, as amended by RA 7659, is CONSTITUTIONAL.
Consequently, the petition to declare the law unconstitutional is DISMISSED
for lack of merit.
SO ORDERED.
Buena, and De Leon, Jr., JJ., concur.
Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J.
Mendoza.
Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion.
Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see dissenting
opinion.
Mendoza, J., please see concurring opinion.
Panganiban J., please see separate concurring opinion.

Carpio, J., no part. Was one of the complainants before Ombudsman.

DECISION
THIRD DIVISION

CARPIO, J.:

JOHN ERIC LONEY, G.R. No. 152644

STEVEN PAUL REID and
The Case
PEDRO B. HERNANDEZ,

Petitioners, Present:

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
QUISUMBING, J., Chairperson, November 2001 Decision affirmed the ruling of the Regional Trial Court,
Boac, Marinduque, Branch 94, in a suit to quash Informations filed against
CARPIO, petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez
(petitioners). The 14 March 2002 Resolution denied petitioners motion for
- versus - CARPIO MORALES, and reconsideration.

TINGA, JJ.

The Facts

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent. February 10, 2006

Petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez are
the President and Chief Executive Officer, Senior Manager, and Resident
x--------------------------------------------------x 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 tunnels end. On 24 March 1994, tailings gushed out of
or near the tunnels 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 respondents
appeal was raffled to Branch 38. On public respondents motion, Branch 38
ordered public respondents 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
respondents 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

The Ruling of the Court of Appeals

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.
In its Decision of 5 November 2001, the Court of Appeals affirmed Branch
94s ruling. The appellate court held:

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]
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

Petitioners filed a petition for certiorari with the Court of Appeals alleging that [D]uplicity of Informations is not among those included in x x x [Section 3,
Branch 94 acted with grave abuse of discretion because (1) the Informations Rule 117].
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] xxxx
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 We now go to petitioners claim that the resolution of the public respondent
latter absorbs the former. Hence, petitioners should only be prosecuted for contravened the doctrine laid down in People vs. Relova for being violative of
violation of Article 365 of the RPC.[17] their right against multiple prosecutions.

In the said case, the Supreme Court found the Peoples 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 respondents 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 Courts 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 courts denial of the petitioners 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 94s 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 lack 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 94s 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 Courts ruling in People v. Relova. In particular,
petitioners cite the Courts 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 Opulencias 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
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.

and from our case law on this point. The basic difficulty with the petitioners
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 ANTONIO T. CARPIO
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 Associate Justice
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 WE CONCUR:
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 LEONARDO A. QUISUMBING
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) Associate Justice

Chairperson

Thus, Relova is no authority for petitioners claim against multiple

prosecutions based on a single act not only because the question of double THIRD DIVISION
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 ARSENIA B. GARCIA,
prohibits multiple prosecution for the same offense, and not, as in Relova, for
offenses arising from the same incident. Petitioner,
 DECISION
- versus -
QUISUMBING, J.:

This petition seeks the review of the judgment of the Court of Appeals in CA-
G.R. CR No. 24547[1] that affirmed the conviction of petitioner by the
Regional Trial Court[2] of Alaminos City, Pangasinan, Branch 54, for violation
G.R. No. 157171 of Section 27(b) of Republic Act No. 6646.[3]

Present: Based on the complaint-affidavit of Aquilino Q. Pimentel, Jr., who ran in the
1995 senatorial elections, an information dated March 30, 1998, was filed in
the Regional Trial Court of Alaminos, charging Herminio R. Romero, Renato
R. Viray, Rachel Palisoc and Francisca de Vera, and petitioner, with violation
QUISUMBING, J., Chairperson, of Section 27(b). The information reads:

CARPIO, That on or about May 11, 1995, which was within the canvassing period
during the May 8, 1995 elections, in the Municipality of Alaminos, Province of
CARPIO MORALES, and Pangasinan, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, Election Officer Arsenia B. Garcia, Municipal
TINGA, JJ. Treasurer Herminio R. Romero, Public School District Supervisor Renato R.
Viray, Chairman, Vice-Chairman, and Member-Secretary, respectively, of the
Municipal Board of Canvassers of Alaminos, Pangasinan, tabulators Rachel
Palisoc and Francisca de Vera, conspiring with, confederating together and
HONORABLE COURT OF APPEALS and THE PEOPLE OF THE mutually helping each other, did, then and there, willfully, and unlawfully
PHILIPPINES, decrease[d] the votes received by senatorial candidate Aquilino Q. Pimentel,
Jr. from six thousand nine hundred ninety-eight (6,998) votes, as clearly
Respondents. disclosed in the total number of votes in the one hundred fifty-nine (159)
precincts of the Statement of Votes by Precincts of said municipality, with
Promulgated: Serial Nos. 008417, 008418, 008419, 008420, 008421, 008422 and 008423
to one thousand nine hundred twenty-one (1,921) votes as reflected in the
Statement of Votes by Precincts with Serial No. 008423 and Certificate of
Canvass with Serial No. 436156 with a difference of five thousand seventy-
March 14, 2006 seven (5,077) votes.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x CONTRARY TO LAW.[4]

In a Decision dated September 11, 2000, the RTC acquitted all the accused
for insufficiency of evidence, except petitioner who was convicted as follows:
xxx
5. And finally, on the person of ARSENIA B. GARCIA, the Court
pronounces her GUILTY beyond reasonable doubt, of the crime defined
under Republic Act 6646, Section 27 (b) for decreasing the votes of Senator
Pimentel in the total of 5,034 and in relation to BP Blg. 881, considering that
this finding is a violation of Election Offense, she is thus sentenced to suffer
an imprisonment of SIX (6) YEARS as maximum, but applying the
INDETERMINATE SENTENCE LAW, the minimum penalty is the next
degree lower which is SIX (6) MONTHS; however, accused ARSENIA B.
GARCIA is not entitled to probation; further, she is sentenced to suffer
disqualification to hold public office and she is also deprived of her right of
suffrage.
The bailbond posted by her is hereby ordered cancelled, and the Provincial
Warden is ordered to commit her person to the Bureau of Correctional
Institution for Women, at Metro Manila, until further orders from the court.
No pronouncement as to costs.
IT IS SO ORDERED.[5]
Petitioner appealed before the Court of Appeals which affirmed with
modification the RTC Decision, thus,
WHEREFORE, foregoing considered, the appealed decision is hereby
AFFIRMED with MODIFICATION, increasing the minimum penalty imposed
by the trial court from six (6) months to one (1) year.
SO ORDERED.[6]
The Court of Appeals likewise denied the motion for reconsideration. Hence,
this appeal assigning the following as errors of the appellate court:
I
ON THE FIRST AND SECOND GROUNDS RELIED UPON BY THE
RESPONDENT COURT, NAMELY, THAT IT COULD NOT HAVE BEEN
SECRETARY VIRAY WHO DECREASED THE VOTES OF COMPLAINANT
PIMENTEL SINCE HE MERELY RELIED ON WHAT THE PETITIONER
DICTATED, AND THAT IT COULD NOT HAVE ALSO BEEN THE
TABULATORS BECAUSE PETITIONER WAS THE ONE WHO READ THE
ADDING [MACHINE] TAPE.
II
ON THE THIRD GROUND, NAMELY, THAT PETITIONER DID NOT
PRODUCE THE TAPES DURING THE TRIAL BECAUSE IF PRODUCED, IT
IS GOING TO BE ADVERSE TO HER.
III
ON THE FOURTH GROUND, NAMELY, THAT THE PETITIONER WAS THE
ONE WHO ENTERED THE REDUCED FIGURE OF 1,921 IN THE
CERTIFICATE OF CANVASS (COC), Exh. 7, WHEN THE DUTY WAS THAT
OF THE SECRETARY OF THE BOARD.
IV
THE REDUCTION OF THE VOTES OF CANDIDATE PIMENTEL WAS
CLEARLY NOT WILLFUL OR INTENTIONAL.[7]
Petitioner contends that (1) the Court of Appeals judgment is erroneous,
based on speculations, surmises and conjectures, instead of substantial
evidence; and (2) there was no motive on her part to reduce the votes of
private complainant.
Respondent on the other hand contends that good faith is not a defense in
the violation of an election law, which falls under the class of mala prohibita.
The main issue is, Is a violation of Section 27(b) of Rep. Act No. 6646,
classified under mala in se or mala prohibita? Could good faith and lack of
criminal intent be valid defenses?
Generally, mala in se felonies are defined and penalized in the Revised
Penal Code. When the acts complained of are inherently immoral, they are
deemed mala in se, even if they are punished by a special law.[8]
Accordingly, criminal intent must be clearly established with the other
elements of the crime; otherwise, no crime is committed. On the other hand,
in crimes that are mala prohibita, the criminal acts are not inherently immoral
but become punishable only because the law says they are forbidden. With
these crimes, the sole issue is whether the law has been violated.[9] Criminal
intent is not necessary where the acts are prohibited for reasons of public
policy.[10]
Section 27(b) of Republic Act No. 6646[11] provides:
SEC. 27. Election Offenses.- In addition to the prohibited acts and election
offenses enumerated in Sections 261 and 262 of Batas Pambansa Blg. 881,
as amended, the following shall be guilty of an election offense:
xxx
(b) Any member of the board of election inspectors or board of canvassers
who tampers, increases, or decreases the votes received by a candidate in
any election or any member of the board who refuses, after proper
verification and hearing, to credit the correct votes or deduct such tampered
votes.
xxx
Clearly, the acts prohibited in Section 27(b) are mala in se.[12] For
otherwise, even errors and mistakes committed due to overwork and fatigue
would be punishable. Given the volume of votes to be counted and
canvassed within a limited amount of time, errors and miscalculations are
bound to happen. And it could not be the intent of the law to punish
unintentional election canvass errors. However, intentionally increasing or
decreasing the number of votes received by a candidate is inherently
immoral, since it is done with malice and intent to injure another.
Criminal intent is presumed to exist on the part of the person who executes
an act which the law punishes, unless the contrary shall appear.[13] Thus,
whoever invokes good faith as a defense has the burden of proving its
existence.
Records show that the canvassing of votes on May 11, 1995 before the
Board of Canvassers of the Municipality of Alaminos, Pangasinan was
conducted as follows:
1. After the votes in the 159 precincts of the municipality of Alaminos were
tallied, the results thereof were sealed and forwarded to the Municipal Board
of Canvassers for canvassing;
2. The number of votes received by each candidate in each precinct was
then recorded in the Statement of Votes with appellant, in her capacity as
Chairman, reading the figures appearing in the results from the precincts and
accused Viray, in his capacity as secretary of the Board, entering the number
in the Statements of Votes as read by the appellant. Six Statements of Votes
were filled up to reflect the votes received by each candidate in the 159
precincts of the Municipality of Alaminos, Pangasinan.
3. After the number of votes received by each candidate for each
precincts were entered by accused Viray in the Statements of Votes, these
votes were added by the accused Palisoc and de Vera with the use of
electrical adding machines.
4. After the tabulation by accused Palisoc and de Vera, the corresponding
machine tapes were handed to appellant who reads the subtotal of votes
received by each candidate in the precincts listed in each Statement of
Votes. Accused Viray [then] records the subtotal in the proper column in the
Statement of Votes.
5. After the subtotals had been entered by accused Viray, tabulators
accused Palisoc and de Vera added all the subtotals appearing in all
Statement of Votes.
6. After the computation, the corresponding machine tape on which the
grand total was reflected was handed to appellant who reads the same and
accused Viray enters the figure read by appellant in the column for grand
total in the Statement of Votes.[14]
Neither the correctness of the number of votes entered in the Statement of
Votes (SOV) for each precinct, nor of the number of votes entered as
subtotals of votes received in the precincts listed in SOV Nos. 008417 to
008422 was raised as an issue.
At first glance, however, there is a noticeable discrepancy in the addition of
the subtotals to arrive at the grand total of votes received by each candidate
for all 159 precincts in SOV No. 008423.[15] The grand total of the votes for
private complainant, Senator Aquilino Pimentel, was only 1,921 instead of
6,921, or 5,000 votes less than the number of votes private complainant
actually received. This error is also evident in the Certificate of Canvass
(COC) No. 436156 signed by petitioner, Viray and Romero.[16]
During trial of this case, petitioner admitted that she was indeed the one who
announced the figure of 1,921, which was subsequently entered by then
accused Viray in his capacity as secretary of the board.[17] Petitioner
likewise admitted that she was the one who prepared the COC (Exhibit A-7),
though it was not her duty. To our mind, preparing the COC even if it was not
her task, manifests an intention to perpetuate the erroneous entry in the
COC.[18]
Neither can this Court accept petitioners explanation that the Board of
Canvassers had no idea how the SOV (Exhibit 6) and the COC reflected that
private complainant had only 1,921 votes instead of 6,921 votes. As
chairman of the Municipal Board of Canvassers, petitioners concern was to
assure accurate, correct and authentic entry of the votes. Her failure to
exercise maximum efficiency and fidelity to her trust deserves not only
censure but also the concomitant sanctions as a matter of criminal
responsibility pursuant to the dictates of the law.[19]
The fact that the number of votes deducted from the actual votes received by
private complainant, Sen. Aquilino Pimentel, Jr. was not added to any
senatorial candidate does not relieve petitioner of liability under Section 27(b)
of Rep. Act No. 6646. The mere decreasing of the votes received by a
candidate in an election is already punishable under the said provision.[20]
At this point, we see no valid reason to disturb the factual conclusions of the
appellate court. The Court has consistently held that factual findings of the
trial court, as well as of the Court of Appeals are final and conclusive and
may not be reviewed on appeal, particularly where the findings of both the
trial court and the appellate court on the matter coincide.[21]
Public policy dictates that extraordinary diligence should be exercised by the
members of the board of canvassers in canvassing the results of the
elections. Any error on their part would result in the disenfranchisement of
the voters. The Certificate of Canvass for senatorial candidates and its
supporting statements of votes prepared by the municipal board of
canvassers are sensitive election documents whose entries must be
thoroughly scrutinized.[22]
In our review, the votes in the SOV should total 6,998.[23]
As between the grand total of votes alleged to have been received by private
complainant of 6,921 votes and statement of his actual votes received of
6,998 is a difference of 77 votes. The discrepancy may be validly attributed
to mistake or error due to fatigue. However, a decrease of 5,000 votes as
reflected in the Statement of Votes and Certificate of Canvass is substantial,
it cannot be allowed to remain on record unchallenged, especially when the
error results from the mere transfer of totals from one document to another.
WHEREFORE, the instant petition is DENIED. The assailed Decision of the
Court of Appeals sustaining petitioners conviction but increasing the
minimum penalty in her sentence to one year instead of six months is
AFFIRMED.
SO ORDERED
ARTEMIO V. PANGANIBAN
Chief Justice
Adm. Case No. 3086 February 23, 1988
ALEXANDER PADILLA, complainant,
vs.
THE HON. BALTAZAR R. DIZON, Presiding Judge of the Regional Trial
Court of Pasay City Branch 113, respondent.
RESOLUTION
PER CURIAM:
This is an administrative complaint, dated August 6, 1987, filed by the then
Commissioner of Customs, Alexander Padilla, against respondent Baltazar
R. Dizon, RTC Judge, Branch 115, Pasay City, for rendering a manifestly
erroneous decision due, at the very least, to gross incompetence and gross
ignorance of the law, in Criminal Case No. 86- 10126-P, entitled "People of
the Philippines vs. Lo Chi Fai", acquitting said accused of the offense
charged, i.e., smuggling of foreign currency out of the country.
Required by the Court to answer the complaint, the respondent judge filed an
Answer, dated October 6, 1987, reciting his "commendable record as a
fearless prosecutor" since his appointment as Assistant City Fiscal of Manila
on December 4, 1962, until his appointment eventually as RTC Judge on
February 18, 1983; that at in the reorganization of the judiciary after the
February 26, 1986 revolution, he was reappointed to his present position;
that his length of service as prosecutor and judge is "tangible proof that
would negate the allegations of the petitioner" (should be complainant),
whereas the latter did not last long in the service for reasons only known to
him; that the decision involved in the complaint was promulgated by
respondent on September 29, 1986, but the complaint against him was filed
only on August 6, 1987, a clear indication of malice and ill-will of the
complainant to subject respondent to harassment, humiliation and
vindictiveness; that his decision, of which he submits a copy (Annex A) as
part of his Answer, is based on "fundamental principles and the foundation of
rights and justice" and that if there are mistakes or errors in the questioned
decision, they are committed in good faith. Accordingly, respondent prays for
the dismissal of the petition (should be complaint).
The issue before the Court is whether or not the respondent judge is guilty of
gross incompetence or gross ignorance of the law in rendering the decision
in question. A judge can not be held to account or answer, criminally, civilly
or administratively, for an erroneous decision rendered by him in good faith.
The case in which the respondent rendered a decision of acquittal involved a A$ 17,425.00
tourist, Lo Chi Fai, who was caught by a Customs guard at the Manila
International Airport while attempting to smuggle foreign currency and foreign Singapore Dollar
exchange instruments out of the country. Lo Chi Fai, was apprehended by a
customs guard and two PAFSECOM officers on July 9, 1986, while on board S$ 9,945.00
Flight PR 300 of the Philippine Air Lines bound for Hongkong. At the time of
his apprehension, he was found carrying with him foreign currency and Deutsche Marck
foreign exchange instruments (380 pieces) amounting to US$ 355,349.57, in
various currency denominations, to wit: Japanese Yen, Swiss Franc, DM 18,595.00
Australian Dollar, Singapore Dollar, HFL Guilder, French Franc, U.S. Dollar,
English Pound, Malaysian Dollar, Deutsche Mark, Canadian Dollar and Canadian Dollar
Hongkong Dollar, without any authority as provided by law. At the time the
accused was apprehended, he was able to exhibit two currency declarations CS 13,330.00
which he was supposed to have accomplished upon his arrival in Manila in
previous trips, namely, CB Currency Declaration No. 05048, dated May 4, Hongkong Dollar
1986 for US$39,600.00 and Japanese Yen 4,000,000.00, and CB Currency
Declaration No. 06346, dated June 29, 1986 for Japanese Yen 6,600,000.00. HK$ 15,630.00

An information was filed against Lo Chi Fai, with the RTC of Pasay City for HFL Guilder
violation of Sec. 6, Central Bank Circular No. 960, as follows:
HFL 430.00
That on or about the 9th day of July, 1986, in the City of Pasay, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the French Franc
above-named accused, Mr. LO CHI FAI, did then and there wilfully,
unlawfully and feloniously attempt to take out of the Philippines through the F/6,860.00
Manila International Airport the following foreign currencies in cash and in
checks: US Dollar

Japanese Yen US$ 73,950.00

Y 32,800,000.00 English Pound

Swiss Franc 5,318.00

SW. FR 6,9000.00 Malaysian Dollar

Australian Dollar M$. 14,760.00

(in checks) Tourists and non-resident visitors may take out or send out from the
Philippine foreign exchange in amounts not exceeding such amounts of
foreign exchange brought in by them. For purposes of establishing the
amount of foreign exchange brought in or out of the Philippines, tourists and
Australian Dollar non-resident temporary visitors bringing with them more than US$3,000.00 or
its equivalent in other foreign currencies shall declare their foreign exchange
A$ 7,750.00 in the form prescribed by the Central Bank at points of entries upon arrival in
the Philippines.
British Pound
The penal sanction is provided by Section 1, P.D. No. 1883, which reads as
700.00 follows:

US Dollar Section 1. Blackmarketing of Foreign Exchange .— That any person

US$ 17,630.00
Canadian Dollar
C$ 990.00
without authority from the Central Bank.
Contrary to Law.
The case, which was docketed as Criminal Case No. 86-10126-P, was
subsequently raffled to Branch 113, presided by herein respondent Judge
Baltazar A. Dizon.
Section 6 of Circular No. 960 of the Central Bank provides as follows:
Sec. 6. Export, import of foreign exchange; exceptions. — No person shall
take out or transmit or attempt to take out or transmit foreign exchange in any
form, out of the Philippines directly, through other persons, through the mails
or through international carriers except when specifically authorized by the
Central Bank or allowed under existing international agreements or Central
Bank regulations.
who shall engage in the trading or purchase and sale of foreign currency in
violation of existing laws or rules and regulations of the Central Bank shall be
guilty of the crime of blackmarketing of foreign exchange and shall suffer the
penalty of reclusion temporal, (minimum of 12 years and I day and maximum
of 20 years) and a fine of no less than fifty thousand (P50,000.00) Pesos.
At the trial, the accused tried to establish that he was a businessman from
Kowloon, Hongkong, engaged in the garment business, in which he had
invested 4 to 5 million Hongkong Dollars; that he had come to the Philippines
9 to 1 0 times, although the only dates he could remember were April 2,
1986, May 4, 1986, June 28,1986, and July 8, 1986; that the reason for his
coming to the Philippines was to invest in business in the Philippines and
also to play in the casino; that he had a group of business associates who
decided to invest in business with him, namely: Wakita Noboyuki, Kobayashi
Nabuo, Lee Shiang Pin, Lee Chin and Cze Kai Kwan, who had their own
businesses in Japan and Hongkong; that when he came to the Philippines on
April 2,1986, he brought US$50,000.00 and 8,500,000.00 Japanese Yen
which he tried to declare but the Central Bank representative refused to
accept his declaration, until he could get a confirmation as to the source of
the money, for which reason he contacted his bank in Hongkong and a telex
was sent to him on April 3,1986 (Exh. 4). He also brought in with him
US$39,000.00 and 4,000,000.00 Japanese Yen when he arrived on May
4,1986 which he declared (Exh. 1). Again, he declared 8,600,000.00
Japanese Yen when he arrived on June 28, 1986 (Exh. 2). He also testified
that his business associates, as per their agreement to invest in some
business with him in the Philippines, started putting their money for this
purpose in a common fund, hence, every time anyone of them came to the
Philippines, they would declare the money they were bringing in, and all
declarations were handed to and kept by him; these currency declarations
were presented at the trial as exhibits for the defense. When asked by the
court why he did not present all of these declarations when he was
apprehended at the airport, his answer was that he was not asked to present
the declaration papers of his associates, and besides, he does not
understand English and he was not told to do so. He also testified on cross-
examination that the reason he was going back to Hongkong bringing with
him all the money intended to be invested in the Philippines was because of
the fear of his group that the "revolution" taking place in Manila might
become widespread. It was because of this fear that he was urged by his
associates to come to Manila on July 8, 1986 to bring the money out of the
Philippines.
The respondent judge, in his decision acquitting the accused, stated:
The factual issue for this Court to determine is whether or not the accused
wilfully violated Section 6 of Circular No. 960. The fact that the accused had
in his possession the foreign currencies when he was about to depart from
the Philippines did not by that act alone make him liable for Violation of
Section 6.
What is imperative is the purpose for which the act of bringing foreign
currencies out of the country was done the very intention. It is that which
qualifies the act as criminal or not. There must be that clear intention to
violate and benefit from the act done. Intent is a mental state, the existence
of which is shown by overt acts of a person.
The respondent proceeded to analyze the evidence which, according to him,
tended to show that the accused had no wilfull intention to violate the law.
According to the respondent in his decision:
... this Court is persuaded to accept the explanation of the defense that the
currencies confiscated and/or seized from the accused belong to him and his
business associates abovenamed. And from the unwavering and
unequivocal testimonies of Mr. Templo and all of currencies in question came
from abroad and not from the local source which is what is being prohibited
by the government. Yes, simply reading the provisions of said circular will,
readily show that the currency declaration is required for the purpose of
establishing the amount of currency being brought by tourist or temporary
non-resident visitors into the country. The currency declarations, therefore, is
already (sic) intended to serve as a guideline for the Customs authorities to
determine the amounts actually brought in by them to correspond to the
amounts that could be allowed to be taken out. Indeed, this Court is amazed
and really has its misgivings in the manner currency declarations were made
as testified to by the Central Bank employees. Why the Bureau of Customs
representative never took part in all these declarations testified to by no less
than five (5) Central Bank employees? Seemingly, these employees are the
favorites of these travellers. It is the hope of this Court that the authorities
must do something to remedy the evident flaw in the system for effective
implementation of the questioned Central Bank Circular No. 960.
But even with a doubtful mind this Court would not be able to pin criminal
responsibility on the accused. This is due to its steadfast adherence and
devotion to the rule of law-a factor in restoring the almost lost faith and
erosion of confidence of the people in the administration of justice. Courts of
Justice are guided only by the rule of evidence.
The respondent-judge has shown gross incompetence or gross ignorance of
the law in holding that to convict the accused for violation of Central Bank
Circular No. 960, the prosecution must establish that the accused had the
criminal intent to violate the law. The respondent ought to know that proof of
malice or deliberate intent (mens rea) is not essential in offenses punished
by special laws, which are mala prohibita. In requiring proof of malice, the
respondent has by his gross ignorance allowed the accused to go scot free.
The accused at the time of his apprehension at the Manila International
Airport had in his possession the amount of US$355,349.57 in assorted
foreign currencies and foreign exchange instruments (380 pieces), without
any specific authority from the Central Bank as required by law. At the time of
his apprehension, he was able to exhibit only two foreign currency
declarations in his possession. These were old declarations made by him on
the occasion of his previous trips to the Philippines.
Although lack of malice or wilfull intent is not a valid defense in a case for
violation of Central Bank Circular No. 960, the respondent nonetheless chose
to exonerate the accused based on his defense that the foreign currency he
was bringing out of the country at the time he was apprehended by the
customs authorities were brought into the Philippines by him and his alleged
business associates on several previous occasions when they came to the
Philippines, supposedly to be used for the purpose of investing in some
unspecified or undetermined business ventures; that this money was kept in
the Philippines and he precisely came to the Philippines to take the money
out as he and his alleged business associates were afraid that the
"attempted revolution" which occurred on July 6,1986 might spread. Such
fantastic tale, although totally irrelevant to the matter of the criminal liability of
the accused under the information, was swallowed by the respondent-judge
"hook, line and sinker." It did not matter to the respondent that the foreign
currency and foreign currency instruments found in the possession of the
accused when he was apprehended at the airport-380 pieces in all-and the
amounts of such foreign exchange did not correspond to the foreign currency
declarations presented by the accused at the trial. It did not matter to the
respondent that the accused by his own story admitted, in effect, that he was
a carrier" of foreign currency for other people. The respondent closed his
eyes to the fact that the very substantial amounts of foreign exchange found
in the possession of the accused at the time of his apprehension consisted of
personal checks of other people, as well as cash in various currency
denominations (12 kinds of currency in all), which clearly belied the claim of
the accused that they were part of the funds which he and his supposed
associates had brought in and kept in the Philippines for the purpose of
investing in some business ventures. The respondent ignored the fact that
most of the CB Currency declarations presented by the defense at the trial
were declarations belonging to other people which could not be utilized by
the accused to justify his having the foreign exchange in his possession.
Although contrary to ordinary human experience and behavior, the
respondent judge chose to give credence to the fantastic tale of the accused
that he and his alleged business associates had brought in from time to time
and accumulated and kept in the Philippines foreign exchange (of very
substantial amounts in cash and checks in various foreign currency
denominations) for the purpose of investing in business even before they
knew and had come to an agreement as to the specific business venture in
which they were going to invest. These and other circumstances which make
the story concocted by the accused so palpably unbelievable as to render the
findings of the respondent judge obviously contrived to favor the acquittal of
the accused, thereby clearly negating his claim that he rendered the decision
"in good faith." His actuations in this case amount to grave misconduct
prejudicial to the interest of sound and fair administration of justice.
He not only acquitted the accused Lo Chi Fai, but directed in his decision the
release to the accused of at least the amount of US$3,000.00, allowed,
according to respondent, under Central Bank Circular No. 960. This, in spite
of the fact that forfeiture proceedings had already been instituted by the
Bureau of Customs over the currency listed in the information, which
according to the respondent should be respected since the Bureau of
Customs "has the exclusive jurisdiction in the matter of seizure and forfeiture
of the property involved in the alleged infringements of the aforesaid Central
Bank Circular." In invoking the provisions of CB Circular No. 960 to justify the
release of US$ 3,000.00 to the accused, the respondent judge again
displayed gross incompetence and gross ignorance of the law. There is
nothing in the said CB Circular which could be taken as authority for the trial
court to release the said amount of U.S. Currency to the accused. According
to the above-cited CB Circular, tourists may take out or send out from the
Philippines foreign exchange in amounts not exceeding such amounts of
foreign exchange brought in by them; for the purpose of establishing such
amount, tourists or non-resident temporary visitors bringing with them more
than US$3,000.00 or its equivalent in other foreign currencies must declare
their foreign exchange at points of entries upon arrival in the Philippines. In
other words, CB Circular No. 960 merely provides that for the purpose of
establishing the amount of foreign currency brought in or out of the
Philippines, a tourist upon arrival is required to declare any foreign exchange
he is bringing in at the time of his arrival, if the same exceeds the amount of
US$3,000.00 or its equivalent in other foreign currencies. There is nothing in
said circular that would justify returning to him the amount of at least
US$3,000.00, if he is caught attempting to bring out foreign exchange in
excess of said amount without specific authority from the Central Bank.
Accordingly, the Court finds the respondent Regional Trial Court Judge,
Baltazar R. Dizon, guilty of gross incompetence, gross ignorance of the law
and grave and serious misconduct affecting his integrity and efficiency, and
consistent with the responsibility of this Court for the just and proper
administration of justice and for the attainment of the objective of maintaining
the people's faith in the judiciary (People vs. Valenzuela, 135 SCRA 712), it
is hereby ordered that the Respondent Judge be DISMISSED from the
service. All leave and retirement benefits and privileges to which he may be
entitled are hereby forfeited with prejudice to his being reinstated in any
branch of government service, including government-owned and/or
controlled agencies or corporations.
This resolution is immediately executory.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Feliciano, Gancayco, Bidin, Sarmiento Cortes, and Griño-Aquino, JJ.,
concur.
Padilla, Narvasa, JJ., took no part.
[G.R. No. 121917. March 12, 1997]
ROBIN CARIO PADILLA @ ROBINHOOD PADILLA, petitioner, vs. COURT
OF APPEALS and PEOPLE of the PHILIPPINES, respondents.
DECISION
FRANCISCO, J.:
On October 26, 1992, high-powered firearms with live ammunitions were
found in the possession of petitioner Robin Padilla @ Robinhood Padilla, i.e.:
"(1) One .357 Caliber revolver, Smith and Wesson, SN-32919 with six (6) live
ammunitions;
"(2) One M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one
(1) short magazine with ammunitions;
"(3) One .380 Pietro Beretta, SN-A 35723 Y with clip and eight (8)
ammunitions; and
"(4) Six additional live double action ammunitions of .38 caliber revolver."[1]
Petitioner was correspondingly charged on December 3, 1992, before the
Regional Trial Court (RTC) of Angeles City with illegal possession of firearms
and ammunitions under P.D. 1866[2] thru the following Information:[3]
"That on or about the 26th day of October, 1992, in the City of Angeles,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, did then and there willfully, unlawfully and feloniously have
in his possession and under his custody and control one (1) M-16 Baby
Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazines
with ammunitions, one (1) .357 caliber revolver Smith and Wesson, SN-
32919 with six (6) live ammunitions and one (1) .380 Pietro Beretta, SN-
A35723Y with clip and eight (8) ammunitions, without having the necessary
authority and permit to carry and possess the same.
ALL CONTRARY TO LAW."[4]
The lower court then ordered the arrest of petitioner,[5] but granted his
application for bail.[6] During the arraignment on January 20, 1993, a plea of
not guilty was entered for petitioner after he refused,[7] upon advice of
counsel,[8] to make any plea.[9] Petitioner waived in writing his right to be
present in any and all stages of the case.[10]
After trial, Angeles City RTC Judge David Rosete rendered judgment dated
April 25, 1994 convicting petitioner of the crime charged and sentenced him
to an "indeterminate penalty from 17 years, 4 months and 1 day of reclusion
temporal as minimum, to 21 years of reclusion perpetua, as maximum".[11]
Petitioner filed his notice of appeal on April 28, 1994.[12] Pending the appeal
in the respondent Court of Appeals,[13] the Solicitor-General, convinced that
the conviction shows strong evidence of guilt, filed on December 2, 1994 a
motion to cancel petitioner's bail bond. The resolution of this motion was
incorporated in the now assailed respondent court's decision sustaining
petitioner's conviction,[14] the dispositive portion of which reads:
"WHEREFORE, the foregoing circumstances considered, the appealed
decision is hereby AFFIRMED, and furthermore, the P200,000.00 bailbond
posted by accused-appellant for his provisional liberty, FGU Insurance
Corporation Bond No. JCR (2) 6523, is hereby cancelled. The Regional Trial
Court, Branch 61, Angeles City, is directed to issue the Order of Arrest of
accused-appellant and thereafter his transmittal to the National Bureau of
Prisons thru the Philippine National Police where the said accused-appellant
shall remain under confinement pending resolution of his appeal, should he
appeal to the Supreme Court. This shall be immediately executory. The
Regional Trial Court is further directed to submit a report of compliance
herewith.
SO ORDERED."[15]
Petitioner received a copy of this decision on July 26, 1995.[16] On August 9,
1995 he filed a "motion for reconsideration (and to recall the warrant of
arrest)"[17] but the same was denied by respondent court in its September
20, 1995 Resolution,[18] copy of which was received by petitioner on
September 27, 1995. The next day, September 28, petitioner filed the instant
petition for review on certiorari with application for bail[19] followed by two
"supplemental petitions" filed by different counsels,[20] a "second
supplemental petition"[21] and an urgent motion for the separate resolution
of his application for bail. Again, the Solicitor-General[22] sought the denial of
the application for bail, to which the Court agreed in a Resolution
promulgated on July 31, 1996.[23] The Court also granted the Solicitor-
General's motion to file a consolidated comment on the petitions and
thereafter required the petitioner to file his reply.[24] However, after his
vigorous resistance and success on the intramural of bail (both in the
respondent court and this Court) and thorough exposition of petitioner's guilt
in his 55-page Brief in the respondent court, the Solicitor-General now makes
a complete turnabout by filing a "Manifestation In Lieu Of Comment" praying
for petitioner's acquittal.[25]
The People's detailed narration of facts, well-supported by evidence on
record and given credence by respondent court, is as follows:[26]
"At about 8:00 o'clock in the evening of October 26, 1992, Enrique Manarang
and his compadre Danny Perez were inside the Manukan sa Highway
Restaurant in Sto. Kristo, Angeles City where they took shelter from the
heavy downpour (pp. 5-6, TSN, February 15, 1993) that had interrupted their
ride on motorcycles (pp. 5-6, ibid.) along McArthur Highway (ibid). While
inside the restaurant, Manarang noticed a vehicle, a Mitsubishi Pajero,
running fast down the highway prompting him to remark that the vehicle
might get into an accident considering the inclement weather. (p. 7, Ibid) In
the local vernacular, he said thus: 'Ka bilis na, mumuran pa naman pota
makaaksidente ya.' (p. 7, ibid). True enough, immediately after the vehicle
had passed the restaurant, Manarang and Perez heard a screeching sound
produced by the sudden and hard braking of a vehicle running very fast (pp.
7-8, ibid) followed by a sickening sound of the vehicle hitting something (p. 8,
ibid). Danny Cruz, quite sure of what had happened, remarked 'oy ta na'
signifying that Manarang had been right in his observation (pp. 8-9, ibid).
"Manarang and Cruz went out to investigate and immediately saw the vehicle
occupying the edge or shoulder of the highway giving it a slight tilt to its side
(pp. 9-10, ibid). Manarang, being a member of both the Spectrum, a civic
group and the Barangay Disaster Coordinating Council, decided to report the
incident to the Philippine National Police of Angeles City (p. 10, ibid). He took
out his radio and called the Viper, the radio controller of the Philippine
National Police of Angeles City (p. 10, ibid). By the time Manarang completed
the call, the vehicle had started to leave the place of the accident taking the
general direction to the north (p. 11, ibid).
"Manarang went to the location of the accident and found out that the vehicle
had hit somebody (p. 11, ibid).
"He asked Cruz to look after the victim while he went back to the restaurant,
rode on his motorcycle and chased the vehicle (p. 11 ibid). During the chase
he was able to make out the plate number of the vehicle as PMA 777 (p. 33,
TSN, February 15, 1993). He called the Viper through the radio once again
(p. 34, ibid) reporting that a vehicle heading north with plate number PMA
777 was involved in a hit and run accident (p. 20, TSN, June 8, 1993). The
Viper, in the person of SPO2 Ruby Buan, upon receipt of the second radio
call flashed the message to all units of PNP Angeles City with the order to
apprehend the vehicle (p. 20, ibid). One of the units of the PNP Angeles City
reached by the alarm was its Patrol Division at Jake Gonzales Street near
the Traffic Division (pp. 5-7, TSN, February 23, 1993). SPO2 Juan C. Borja
III and SPO2 Emerlito Miranda immediately borded a mobile patrol vehicle
(Mobile No. 3) and positioned themselves near the south approach of
Abacan bridge since it was the only passable way going to the north (pp. 8-9,
ibid). It took them about ten (10) seconds to cover the distance between their
office and the Abacan bridge (p. 9, ibid).
"Another PNP mobile patrol vehicle that responded to the flash message
from SPO2 Buan was Mobile No. 7 of the Pulongmaragal Detachment which
was then conducting patrol along Don Juico Avenue (pp. 8-9, TSN, March 8,
1993). On board were SPO Ruben Mercado and SPO3 Tan and SPO2
Odejar (p. 8, ibid). SPO Ruben Mercado immediately told SPO3 Tan to
proceed to the MacArthur Highway to intercept the vehicle with plate number
PMA 777 (p. 10, ibid).
"In the meantime, Manarang continued to chase the vehicle which figured in
the hit and run incident, even passing through a flooded portion of the
MacArthur Highway two (2) feet deep in front of the Iglesia ni Kristo church
but he could not catch up with the same vehicle (pp. 11-12, February 15,
1993). When he saw that the car he was chasing went towards Magalang, he
proceeded to Abacan bridge because he knew Pulongmaragal was not
passable (pp. 12-14, ibid). When he reached the Abacan bridge, he found
Mobile No. 3 and SPO2 Borja and SPO2 Miranda watching all vehicles
coming their way (p. 10, TSN, February 23, 1993). He approached them and
informed them that there was a hit and run incident (p. 10, ibid). Upon
learning that the two police officers already knew about the incident,
Manarang went back to where he came from (pp. 10-11; ibid). When
Manarang was in front of Tina's Restaurant, he saw the vehicle that had
figured in the hit and run incident emerging from the corner adjoining Tina's
Restaurant (p. 15, TSN, February 15, 1993). He saw that the license plate
hanging in front of the vehicle bore the identifying number PMA 777 and he
followed it (p. 15, ibid) towards the Abacan bridge.
"Soon the vehicle was within sight of SPO2 Borja and SPO2 Miranda of
Mobile No. 3 (p. 10, TSN, February 23, 1993). When the vehicle was about
twelve (12) meters away from their position, the two police officers boarded
their Mobile car, switched on the engine, operated the siren and strobe light
and drove out to intercept the vehicle (p. 11, ibid). They cut into the path of
the vehicle forcing it to stop (p. 11, ibid).
"SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (P. 12, TSN,
February 23, 1993). SPO2 Miranda went to the vehicle with plate number
PMA 777 and instructed its driver to alight (p. 12, ibid). The driver rolled
down the window and put his head out while raising both his hands. They
recognized the driver as Robin C. Padilla, appellant in this case (p. 13, ibid).
There was no one else with him inside the vehicle (p. 24). At that moment,
Borja noticed that Manarang arrived and stopped his motorcycle behind the
vehicle of appellant (p. 14, ibid). SPO2 Miranda told appellant to alight to
which appellant complied. Appellant was wearing a short leather jacket (p.
16, TSN, March 8, 1993) such that when he alighted with both his hands
raised, a gun (Exhibit 'C') tucked on the left side of his waist was revealed (p.
15, TSN, February 23, 1993), its butt protruding (p. 15, ibid). SPO2 Borja
made the move to confiscate the gun but appellant held the former's hand
alleging that the gun was covered by legal papers (p. 16, ibid). SPO2 Borja,
however, insisted that if the gun really was covered by legal papers, it would
have to be shown in the office (p. 16, ibid). After disarming appellant, SPO2
Borja told him about the hit and run incident which was angrily denied by
appellant (p. 17, ibid). By that time, a crowd had formed at the place (p. 19,
ibid). SPO2 Borja checked the cylinder of the gun and find six (6) live bullets
inside (p. 20, ibid).
"While SPO2 Borja and appellant were arguing, Mobile No. 7 with SPO
Ruben Mercado, SPO3 Tan and SPO2 Odejar on board arrived (pp. 11-12,
TSN, March 8, 1993). As the most senior police officer in the group, SPO
Mercado took over the matter and informed appellant that he was being
arrested for the hit and run incident (p. 13, ibid). He pointed out to appellant
the fact that the plate number of his vehicle was dangling and the railing and
the hood were dented (p. 12, ibid). Appellant, however, arrogantly denied his
misdeed and, instead, played with the crowd by holding their hands with one
hand and pointing to SPO3 Borja with his right hand saying 'iyan, kinuha ang
baril ko' (pp. 13-15, ibid). Because appellant's jacket was short, his gesture
exposed a long magazine of an armalite rifle tucked in appellant's back right
pocket (p. 16, ibid). SPO Mercado saw this and so when appellant turned
around as he was talking and proceeding to his vehicle, Mercado confiscated
the magazine from appellant (pp. 16-17, ibid). Suspecting that appellant
could also be carrying a rifle inside the vehicle since he had a magazine,
SPO2 Mercado prevented appellant from going back to his vehicle by
opening himself the door of appellant's vehicle (16-17, ibid). He saw a baby
armalite rifle (Exhibit D) lying horizontally at the front by the driver's seat. It
had a long magazine filled with live bullets in a semi-automatic mode (pp. 17-
21, ibid). He asked appellant for the papers covering the rifle and appellant
answered angrily that they were at his home (pp. 26-27, ibid). SPO Mercado
modified the arrest of appellant by including as its ground illegal possession
of firearms (p. 28, ibid). SPO Mercado then read to appellant his
constitutional rights (pp. 28-29, ibid).
"The police officers brought appellant to the Traffic Division at Jake Gonzales
Boulevard (pp. 31-32, ibid) where appellant voluntarily surrendered a third
firearm, a pietro berreta pistol (Exhibit 'L') with a single round in its chamber
and a magazine (pp. 33-35, ibid) loaded with seven (7) other live bullets.
Appellant also voluntarily surrendered a black bag containing two additional
long magazines and one short magazine (Exhibits M, N, and O, pp. 36-37,
ibid). After appellant had been interrogated by the Chief of the Traffic
Division, he was transferred to the Police Investigation Division at Sto.
Rosario Street beside the City Hall Building where he and the firearms and
ammunitions were turned over to SPO2 Rene Jesus Gregorio (pp. 5-10,
TSN, July 13, 1993). During the investigation, appellant admitted possession
of the firearms stating that he used them for shooting (p. 14, ibid). He was
not able to produce any permit to carry or memorandum receipt to cover the
three firearms (pp. 16-18, TSN, January 25, 1994).
"On November 28, 1992, a certification (Exhibit 'F') was issued by Captain,
Senior Inspector Mario Espino, PNP, Chief, Record Branch of the Firearms
and Explosives Office (pp. 7-8, TSN, March 4, 1993). The Certification stated
that the three firearms confiscated from appellant, an M-16 Baby armalite
rifle SN-RP 131280, a .357 caliber revolver Smith and Wesson SN 32919
and a .380 Pietro Beretta SN-A35720, were not registered in the name of
Robin C. Padilla (p. 6, ibid). A second Certification dated December 11, 1992
issued by Captain Espino stated that the three firearms were not also
registered in the name of Robinhood C. Padilla (p. 10, ibid)."
Petitioner's defenses are as follows: (1) that his arrest was illegal and
consequently, the firearms and ammunitions taken in the course thereof are
inadmissible in evidence under the exclusionary rule; (2) that he is a
confidential agent authorized, under a Mission Order and Memorandum
Receipt, to carry the subject firearms; and (3) that the penalty for simple
illegal possession constitutes excessive and cruel punishment proscribed by
the 1987 Constitution.
After a careful review of the records[27]of this case, the Court is convinced
that petitioner's guilt of the crime charged stands on terra firma,
notwithstanding the Solicitor-General's change of heart.
Anent the first defense, petitioner questions the legality of his arrest. There is
no dispute that no warrant was issued for the arrest of petitioner, but that per
se did not make his apprehension at the Abacan bridge illegal.
Warrantless arrests are sanctioned in the following instances:[28]
"Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it.
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
Paragraph (a) requires that the person be arrested (i) after he has committed
or while he is actually committing or is at least attempting to commit an
offense, (ii) in the presence of the arresting officer or private person.[29] Both
elements concurred here, as it has been established that petitioner's vehicle
figured in a hit and run - an offense committed in the "presence" of
Manarang, a private person, who then sought to arrest petitioner. It must be
stressed at this point that "presence" does not only require that the arresting
person sees the offense, but also when he "hears the disturbance created
thereby AND proceeds at once to the scene."[30] As testified to by
Manarang, he heard the screeching of tires followed by a thud, saw the
sideswiped victim (balut vendor), reported the incident to the police and
thereafter gave chase to the erring Pajero vehicle using his motorcycle in
order to apprehend its driver. After having sent a radio report to the PNP for
assistance, Manarang proceeded to the Abacan bridge where he found
responding policemen SPO2 Borja and SPO2 Miranda already positioned
near the bridge who effected the actual arrest of petitioner.[31]
Petitioner would nonetheless insist on the illegality of his arrest by arguing
that the policemen who actually arrested him were not at the scene of the hit
and run.[32] We beg to disagree. That Manarang decided to seek the aid of
the policemen (who admittedly were nowhere in the vicinity of the hit and run)
in effecting petitioner's arrest, did not in any way affect the propriety of the
apprehension. It was in fact the most prudent action Manarang could have
taken rather than collaring petitioner by himself, inasmuch as policemen are
unquestionably better trained and well-equipped in effecting an arrest of a
suspect (like herein petitioner) who , in all probability, could have put up a
degree of resistance which an untrained civilian may not be able to contain
without endangering his own life. Moreover, it is a reality that curbing
lawlessness gains more success when law enforcers function in collaboration
with private citizens. It is precisely through this cooperation, that the offense
herein involved fortunately did not become an additional entry to the long list
of unreported and unsolved crimes.
It is appropriate to state at this juncture that a suspect, like petitioner herein,
cannot defeat the arrest which has been set in motion in a public place for
want of a warrant as the police was confronted by an urgent need to render
aid or take action.[33] The exigent circumstances of - hot pursuit,[34] a
fleeing suspect, a moving vehicle, the public place and the raining nighttime -
all created a situation in which speed is essential and delay improvident.[35]
The Court acknowledges police authority to make the forcible stop since they
had more than mere "reasonable and articulable" suspicion that the occupant
of the vehicle has been engaged in criminal activity.[36] Moreover, when
caught in flagrante delicto with possession of an unlicensed firearm (Smith &
Wesson) and ammunition (M-16 magazine), petitioner's warrantless arrest
was proper as he was again actually committing another offense (illegal
possession of firearm and ammunitions) and this time in the presence of a
peace officer.[37]
Besides, the policemen's warrantless arrest of petitioner could likewise be
justified under paragraph (b) as he had in fact just committed an offense.
There was no supervening event or a considerable lapse of time between the
hit and run and the actual apprehension. Moreover, after having stationed
themselves at the Abacan bridge in response to Manarang's report, the
policemen saw for themselves the fast approaching Pajero of petitioner,[38]
its dangling plate number (PMA 777 as reported by Manarang), and the
dented hood and railings thereof.[39] These formed part of the arresting
police officer's personal knowledge of the facts indicating that petitioner's
Pajero was indeed the vehicle involved in the hit and run incident. Verily
then, the arresting police officers acted upon verified personal knowledge
and not on unreliable hearsay information.[40]
Furthermore, in accordance with settled jurisprudence, any objection, defect
or irregularity attending an arrest must be made before the accused enters
his plea.[41] Petitioner's belated challenge thereto aside from his failure to
quash the information, his participation in the trial and by presenting his
evidence, placed him in estoppel to assail the legality of his arrest.[42]
Likewise, by applying for bail, petitioner patently waived such irregularities
and defects.[43]
We now go to the firearms and ammunitions seized from petitioner without a
search warrant, the admissibility in evidence of which, we uphold.
The five (5) well-settled instances when a warrantless search and seizure of
property is valid,[44] are as follows:
1. warrantless search incidental to a lawful arrest recognized under Section
12, Rule 126 of the Rules of Court[45] and by prevailing jurisprudence[46],
2. Seizure of evidence in "plain view", the elements of which are:[47]
(a). a prior valid intrusion based on the valid warrantless arrest in which the
police are legally present in the pursuit of their official duties;
(b). the evidence was inadvertently discovered by the police who had the
right to be where they are;
(c). the evidence must be immediately apparent, and
(d). "plain view" justified mere seizure of evidence without further search.[48]
3. search of a moving vehicle.[49] Highly regulated by the government, the
vehicle's inherent mobility reduces expectation of privacy especially when its
transit in public thoroughfares furnishes a highly reasonable suspicion
amounting to probable cause that the occupant committed a criminal
activity.[50]
4. consented warrantless search, and
5. customs search.
In conformity with respondent court's observation, it indeed appears that the
authorities stumbled upon petitioner's firearms and ammunitions without
even undertaking any active search which, as it is commonly understood, is a
prying into hidden places for that which is concealed.[51] The seizure of the
Smith & Wesson revolver and an M-16 rifle magazine was justified for they
came within "plain view" of the policemen who inadvertently discovered the
revolver and magazine tucked in petitioner's waist and back pocket
respectively, when he raised his hands after alighting from his Pajero. The
same justification applies to the confiscation of the M-16 armalite rifle which
was immediately apparent to the policemen as they took a casual glance at
the Pajero and saw said rifle lying horizontally near the driver's seat.[52]
Thus it has been held that:
"(W)hen in pursuing an illegal action or in the commission of a criminal
offense, the . . . police officers should happen to discover a criminal offense
being committed by any person, they are not precluded from performing their
duties as police officers for the apprehension of the guilty person and the
taking of the corpus delicti."[53]
"Objects whose possession are prohibited by law inadvertently found in plain
view are subject to seizure even without a warrant."[54]
With respect to the Berreta pistol and a black bag containing assorted
magazines, petitioner voluntarily surrendered them to the police.[55] This
latter gesture of petitioner indicated a waiver of his right against the alleged
search and seizure[56], and that his failure to quash the information
estopped him from assailing any purported defect.[57]
Even assuming that the firearms and ammunitions were products of an active
search done by the authorities on the person and vehicle of petitioner, their
seizure without a search warrant nonetheless can still be justified under a
search incidental to a lawful arrest (first instance). Once the lawful arrest was
effected, the police may undertake a protective search[58] of the passenger
compartment and containers in the vehicle[59] which are within petitioner's
grabbing distance regardless of the nature of the offense.[60] This satisfied
the two-tiered test of an incidental search: (i) the item to be searched
(vehicle) was within the arrestee's custody or area of immediate control[61]
and (ii) the search was contemporaneous with the arrest.[62] The products of
that search are admissible evidence not excluded by the exclusionary rule.
Another justification is a search of a moving vehicle (third instance). In
connection therewith, a warrantless search is constitutionally permissible
when, as in this case, the officers conducting the search have reasonable or
probable cause to believe, before the search, that either the motorist is a law-
offender (like herein petitioner with respect to the hit and run) or the contents
or cargo of the vehicle are or have been instruments or the subject matter or
the proceeds of some criminal offense.[63]
Anent his second defense, petitioner contends that he could not be convicted
of violating P.D. 1866 because he is an appointed civilian agent authorized to
possess and carry the subject firearms and ammunition as evidenced by a
Mission Order[64] and Memorandum Receipt duly issued by PNP Supt.
Rodialo Gumtang, the deputy commander of Task Force Aguila, Lianga,
Surigao del Sur. The contention lacks merit.
In crimes involving illegal possession of firearm, two requisites must be
established, viz.: (1) the existence of the subject firearm and, (2) the fact that
the accused who owned or possessed the firearm does not have the
corresponding license or permit to possess.[65] The first element is beyond
dispute as the subject firearms and ammunitions[66] were seized from
petitioner's possession via a valid warrantless search, identified and offered
in evidence during trial. As to the second element, the same was
convincingly proven by the prosecution. Indeed, petitioner's purported
Mission Order and Memorandum Receipt are inferior in the face of the more
formidable evidence for the prosecution as our meticulous review of the
records reveals that the Mission Order and Memorandum Receipt were mere
afterthoughts contrived and issued under suspicious circumstances. On this
score, we lift from respondent court's incisive observation. Thus:
"Appellant's contention is predicated on the assumption that the
Memorandum Receipts and Mission Order were issued before the subject
firearms were seized and confiscated from him by the police officers in
Angeles City. That is not so. The evidence adduced indicate that the
Memorandum Receipts and Mission Order were prepared and executed long
after appellant had been apprehended on October 26, 1992.
"Appellant, when apprehended, could not show any document as proof of his
authority to possess and carry the subject firearms. During the preliminary
investigation of the charge against him for illegal possession of firearms and
ammunitions he could not, despite the ample time given him, present any
proper document showing his authority. If he had, in actuality, the
Memorandum Receipts and Missions Order, he could have produced those
documents easily, if not at the time of apprehension, at least during the
preliminary investigation. But neither appellant nor his counsel inform the
prosecutor that appellant is authorized to possess and carry the subject
firearms under Memorandum Receipt and Mission Order. At the initial
presentation of his evidence in court, appellant could have produced these
documents to belie the charged against him. Appellant did not. He did not
even take the witness stand to explain his possession of the subject firearms.
"Even in appellant's Demurrer to Evidence filed after the prosecution rested
contain no allegation of a Memorandum Receipts and Mission Order
authorizing appellant to possess and carry the subject firearms.
"At the initial presentation of appellant's evidence, the witness cited was one
James Neneng to whom a subpoena was issued. Superintendent Gumtang
was not even mentioned. James Neneng appeared in court but was not
presented by the defense. Subsequent hearings were reset until the defense
found Superintendent Gumtang who appeared in court without subpoena on
January 13, 1994."[67]
The Court is baffled why petitioner failed to produce and present the Mission
Order and Memorandum Receipt if they were really issued and existing
before his apprehension. Petitioner's alternative excuses that the subject
firearms were intended for theatrical purposes, or that they were owned by
the Presidential Security Group, or that his Mission Order and Memorandum
Receipt were left at home, further compound their irregularity. As to be
reasonably expected, an accused claiming innocence, like herein petitioner,
would grab the earliest opportunity to present the Mission Order and
Memorandum Receipt in question and save himself from the long and
agonizing public trial and spare him from proffering inconsistent excuses. In
fact, the Mission Order itself, as well as the Letter-Directive of the AFP Chief
of Staff, is explicit in providing that:
"VIII. c. When a Mission Order is requested for verification by enforcement
units/personnels such as PNP, Military Brigade and other Military Police
Units of AFP, the Mission Order should be shown without resentment to
avoid embarrassment and/or misunderstanding.
"IX. d. Implicit to this Mission Order is the injunction that the confidential
instruction will be carried out through all legal means and do not cover an
actuation in violation of laws. In the latter event, this Mission Order is
rendered inoperative in respect to such violation."[68]
which directive petitioner failed to heed without cogent explanation.
The authenticity and validity of the Mission Order and Memorandum Receipt,
moreover, were ably controverted. Witness for the prosecution Police Supt.
Durendes denied under oath his signature on the dorsal side of the Mission
Order and declared further that he did not authorize anyone to sign in his
behalf.[69] His surname thereon, we note, was glaringly misspelled as
"Durembes."[70] In addition, only Unit Commanders and Chief of Offices
have the authority to issue Mission Orders and Memorandum Receipts under
the Guidelines on the Issuance of MOs, MRs, & PCFORs.[71] PNP Supt.
Rodialo Gumtang who issued petitioner's Mission Order and Memorandum
Receipt is neither a Unit Commander nor the Chief of Office, but a mere
deputy commander. Having emanated from an unauthorized source,
petitioner's Mission Order and Memorandum Receipt are infirm and lacking
in force and effect. Besides, the Mission Order covers "Recom 1-12-Baguio
City,"[72] areas outside Supt. Gumtang's area of responsibility thereby
needing prior approval "by next higher Headquarters"[73] which is absent in
this case. The Memorandum Receipt is also unsupported by a certification as
required by the March 5, 1988 Memorandum of the Secretary of Defense
which pertinently provides that:
"No memorandum receipt shall be issued for a CCS firearms without
corresponding certification from the corresponding Responsible Supply
Officer of the appropriate AFP unit that such firearm has been officially taken
up in that units property book, and that report of such action has been
reported to higher AFP authority."
Had petitioner's Memorandum Receipt been authentic, we see no reason
why he cannot present the corresponding certification as well.
What is even more peculiar is that petitioner's name, as certified to by the
Director for Personnel of the PNP, does not even appear in the Plantilla of
Non-Uniform Personnel or in the list of Civilian Agents or Employees of the
PNP which could justify the issuance of a Mission Order, a fact admitted by
petitioner's counsel.[74] The implementing rules of P.D. 1866 issued by the
then PC-INP Chief and Director-General Lt. Gen. Fidel V. Ramos are clear
and unambiguous, thus:
"No Mission Order shall be issued to any civilian agent authorizing the same
to carry firearms outside residence unless he/she is included in the regular
plantilla of the government agency involved in law enforcement and is
receiving regular compensation for the services he/she is rendering in the
agency. Further, the civilian agent must be included in a specific law
enforcement/police/intelligence project proposal or special project which
specifically required the use of firearms(s) to insure its accomplishment and
that the project is duly approved at the PC Regional Command level or its
equivalent level in other major services of the AFP, INP and NBI, or at higher
levels of command."[75]
Circular No. 1, dated January 6, 1986, of the then Ministry of Justice likewise
provides as follows:
"If mission orders are issued to civilians (not members of the uniformed
service), they must be civilian agents included in the regular plantilla of the
government agency involved in law enforcement and are receiving regular
compensation for the service they are rendering."
That petitioner's Mission Order and Memorandum Receipt were fabricated
pieces of evidence is accentuated all the more by the testimony and
certification of the Chief of the Records Branch of the firearms and
Explosives Office of the PNP declaring that petitioner's confiscated firearms
are not licensed or registered in the name of the petitioner.[76] Thus:
"Q. In all these files that you have just mentioned Mr. Witness, what did you
find, if any?
"A. I found that a certain Robin C. Padilla is a licensed registered owner of
one 9 mm pistol, Smith and Wesson with Serial No. TCT 8214 and the
following firearms being asked whether it is registered or not, I did not find
any records, the M-16 and the caliber .357 and the caliber .380 but there is a
firearm with the same serial number which is the same as that licensed
and/or registered in the name of one Albert Villanueva Fallorina.
"Q. So in short, the only licensed firearms in the name of accused Robin C.
Padilla is a pistol, Smith and Wesson, caliber 9 mm with Serial No. TCT
8214?
"A. Yes, sir.
"Q. And the firearms that were the subject of this case are not listed in the
names of the accused in this case?
"A. Yes, sir.[77]
xxx xxx xxx
And the certification which provides as follows:
Republic of the Philippines
Department of the Interior and Local Government
GENERAL HEADQUARTERS PHILIPPINE NATIONAL POLICE
FIREARMS AND EXPLOSIVES OFFICE
Camp Crame, Quezon City
"PNPFEO5 28 November 1992
"C E R T I F I C A T I O N
"TO WHOM IT MAY CONCERN:
"THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St., Quezon City is a
licensed/registered holder of Pistol Smith and Wesson Cal 9mm with serial
number TCT8214 covered by License No. RL M76C4476687.
"Further certify that the following firearms are not registered with this Office
per verification from available records on file this Office as of this date:
M16 Baby Armalite SN-RP131120
Revolver Cal 357 SN-3219
Pistol Cal 380 Pietro Beretta SN-35723
"However, we have on file one Pistol Cal 380, Beretta with serial number
35723Y, licensed/registered to one Albert Villanueva Fallorina of 29 San
Juan St., Capitol Pasig, MM under Re-Registered License.
"This certification is issued pursuant to Subpoena from City of Angeles.
"FOR THE CHIEF, FEO:
(Sgd.)
JOSE MARIO M. ESPINO
Sr. Inspector, PNP
Chief, Records Branch" [78]
In several occasions, the Court has ruled that either the testimony of a
representative of, or a certification from, the PNP Firearms and Explosives
Office (FEO) attesting that a person is not a licensee of any firearm would
suffice to prove beyond reasonable doubt the second element of illegal
possession of firearm.[79] In People vs. Tobias,[80] we reiterated that such
certification is sufficient to show that a person has in fact no license. From
the foregoing discussion, the fact that petitioner does not have the license or
permit to possess was overwhelmingly proven by the prosecution. The
certification may even be dispensed with in the light of the evidence[81] that
an M-16 rifle and any short firearm higher than a .38 caliber pistol, akin to the
confiscated firearms, cannot be licensed to a civilian,[82] as in the case of
petitioner. The Court, therefore, entertains no doubt in affirming petitioner's
conviction especially as we find no plausible reason, and none was
presented, to depart from the factual findings of both the trial court and
respondent court which, as a rule, are accorded by the Court with respect
and finality.[83]
Anent his third defense, petitioner faults respondent court "in applying P.D.
1866 in a democratic ambience (sic) and a non-subversive context" and adds
that respondent court should have applied instead the previous laws on
illegal possession of firearms since the reason for the penalty imposed under
P.D. 1866 no longer exists.[84] He stresses that the penalty of 17 years and
4 months to 21 years for simple illegal possession of firearm is cruel and
excessive in contravention of the Constitution.[85]
The contentions do not merit serious consideration. The trial court and the
respondent court are bound to apply the governing law at the time of
appellant's commission of the offense for it is a rule that laws are repealed
only by subsequent ones.[86] Indeed, it is the duty of judicial officers to
respect and apply the law as it stands.[87] And until its repeal, respondent
court can not be faulted for applying P.D. 1866 which abrogated the previous
statutes adverted to by petitioner.
Equally lacking in merit is appellant's allegation that the penalty for simple
illegal possession is unconstitutional. The penalty for simple possession of
firearm, it should be stressed, ranges from reclusion temporal maximum to
reclusion perpetua contrary to appellant's erroneous averment. The severity
of a penalty does not ipso facto make the same cruel and excessive.
"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.' (24 C.J.S., 1187-1188). 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' "[88]
It is well-settled that as far as the constitutional prohibition goes, it is not so
much the extent as the nature of the punishment that determines whether it
is, or is not, cruel and unusual and that sentences of imprisonment, though
perceived to be harsh, are not cruel or unusual if within statutory limits.[89]
Moreover, every law has in its favor the presumption of constitutionality. The
burden of proving the invalidity of the statute in question lies with the
appellant which burden, we note, was not convincingly discharged. To justify
nullification of the law, there must be a clear and unequivocal breach of the
Constitution, not a doubtful and argumentative implication,[90] as in this
case. In fact, the constitutionality of P.D. 1866 has been upheld twice by this
Court.[91] Just recently, the Court declared that "the pertinent laws on illegal
possession of firearms [are not] contrary to any provision of the Constitution.
. ."[92] Appellant's grievance on the wisdom of the prescribed penalty should
not be addressed to us. Courts are not concerned with the wisdom, efficacy
or morality of laws. That question falls exclusively within the province of
Congress which enacts them and the Chief Executive who approves or
vetoes them. The only function of the courts, we reiterate, is to interpret and
apply the laws.
With respect to the penalty imposed by the trial court as affirmed by
respondent court (17 years 4 months and 1 day of reclusion temporal, as
minimum, to 21 years of reclusion perpetua, as maximum), we reduce the
same in line with the fairly recent case of People v. Lian[93] where the Court
en banc provided that the indeterminate penalty imposable for simple illegal
possession of firearm, without any mitigating or aggravating circumstance,
should be within the range of ten (10) years and one (1) day to twelve years
(12) of prision mayor, as minimum, to eighteen (18) years, eight (8) months
and one (1) day to twenty (20) of reclusion temporal, as maximum. This is
discernible from the following explanation by the Court:
"In the case at bar, no mitigating or aggravating circumstances have been
alleged or proved, In accordance with the doctrine regarding special laws
explained in People v. Simon,[94] although Presidential Decree No. 1866 is a
special law, the penalties therein were taken from the Revised Penal Code,
hence the rules in said Code for graduating by degrees or determining the
proper period should be applied. Consequently, the penalty for the offense of
simple illegal possession of firearm is the medium period of the complex
penalty in said Section 1, that is, 18 years, 8 months and 1 day to 20 years.
"This penalty, being that which is to be actually imposed in accordance with
the rules therefor and not merely imposable as a general prescription under
the law, shall be the maximum of the range of the indeterminate sentence.
The minimum thereof shall be taken, as aforesaid, from any period of the
penalty next lower in degree, which is, prision mayor in its maximum period
to reclusion temporal in its medium period.[95]
WHEREFORE, premises considered, the decision of the Court of Appeals
sustaining petitioner's conviction by the lower court of the crime of simple
illegal possession of firearms and ammunitions is AFFIRMED EXCEPT that
petitioner's indeterminate penalty is MODIFIED to ten (10) years and one (1)
day, as minimum, to eighteen (18) years, eight (8) months and one (1) day,
as maximum.
SO ORDERED
Narvasa, C.J. (Chairman), Davide, Jr., Melo, and Panganiban, concur.
[G.R. No. 121179. July 2, 1998]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONINE B.
SALEY a.k.a. ANNIE B. SALEY, accused-appellant.
DECISION
VITUG, J.:
The case before the Court focuses on the practice of some "illegal recruiters"
who would even go to the extent of issuing forged tourist visas to aspiring
overseas contract workers. These unsuspecting job applicants are made to
pay exorbitant "placement" fees for nothing really since, almost invariably,
they find themselves unable to leave for their purported country of
employment or, if they are able to, soon find themselves unceremoniously
repatriated. This Court once described their plight in a local proverb as being
naghangad ng kagitna, isang salop ang nawala.[1]
In this appeal from the 3rd March 1995 decision of the Regional Trial Court of
La Trinidad, Benguet, Branch 10,[2] appellant Antonine B. Saley, a.k.a. Annie
B. Saley, seeks a reversal of the verdict finding her guilty beyond reasonable
doubt of eleven counts of estafa punishable under the Revised Penal Code
and six counts of illegal recruitment, one committed in large scale, proscribed
by the Labor Code.
Appellant was indicted in eleven separate informations for estafa under
Article 315, paragraph 2(1), of the Revised Penal Code. The cases (naming
the complainants and stating the amounts therein involved) include: (1)
Criminal Case No. 92-CR-1397[3] (Francisco T. Labadchan P45,000.00); (2)
Criminal Case No. 92-CR-1414 (Victoria Asil P33,000.00); (3) Criminal Case
No. 92-CR-1415 (Cherry Pi-ay P18,000.00); (4) Criminal Case No. 92-CR-
1426 (Corazon del Rosario P40,000.00); (5) Criminal Case No. 92-CR-1428
(Arthur Juan P24,200.00); (6) Criminal Case No. 93-CR-1644 (Alfredo C.
Arcega P25,000.00); (7) Criminal Case No. 93-CR-1646 (Brando B. Salbino
P25,000.00); (8) Criminal Case No. 93-CR-1647 (Mariano Damolog
P25,000.00); (9) Criminal Case No. 93-CR-1649 (Lorenzo Belino
P25,000.00); (10) Criminal Case No. 93-CR-1651 (Peter Arcega P25,000.00)
and (11) Criminal Case No. 93-CR-1652 (Adeline Tiangge P18,500.00).
Except for the name of the offended party, the amount involved and the date
of the commission of the crime, the following information in Criminal Case
No. 93-CR-1652 typified the other informations for the crime of estafa:
That in or about the month of December, 1991, and sometime prior to or
subsequent thereto, at Buyagan, Municipality of La Trinidad, Province of
Benguet, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, with intent to defraud ADELINE TIANGGE y
MARCOS and by means of deceit through false representations and
pretenses made by her prior to or simultaneous with the commission of the
fraud, did then and there willfully, unlawfully and feloniously defraud said
ADELINE TIANGGE y MARCOS, by then and there representing herself as a
duly authorized or licensed recruiter for overseas employment, when in truth
and in fact she was not, thereby inducing the said ADELINE TIANGGE y
MARCOS to give and deliver to her the total amount of EIGHTEEN
THOUSAND FIVE HUNDRED PESOS (P18,500.00), Philippine Currency, for
placement abroad and after having received it, she appropriated and
misappropriated the same for her own use and benefit and despite repeated
demands made upon (her) to return the same, she refused, failed, neglected,
and still refuses, fails and neglects to comply therewith, all to the damage
and prejudice of ADELINE TIANGGE y MARCOS in the total sum aforesaid.
"Contrary to law.[4]
For the violation of Article 38, in relation to Article 39, of the Labor Code, five
separate informations were also instituted against appellant on various dates.
These cases (with the names of the complainants) include: (1) Criminal Case
No. 92-CR-1396 (Francisco T. Labadchan); (2) Criminal Case No. 92-CR-
1413 (Cherry Pi-ay); (3) Criminal Case No. 92- CR-1416 (Victoria Asil); (4)
Criminal Case No. 92-CR-1425 (Corazon del Rosario) and (5) Criminal Case
No. 92-CR-1427 (Arthur Juan). The typical information in these indictments
read:
That sometime in the month of April, 1991 and subsequent thereto at
Buyagan, Municipality of La Trinidad, Province of Benguet, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, did
then and there willfully, unlawfully and knowingly recruit one ARTHUR JUAN
for overseas employment, by then and there ably misrepresenting herself as
a duly authorized or licensed recruiter when in truth and in fact she fully knew
it to be false but by reason of her said misrepresentations which were
completely relied upon by Arthur Juan, she was able to obtain from the latter
the total amount of TWENTY FOUR THOUSAND TWO HUNDRED PESOS
(P24,200.00), Philippine Currency, all to the damage and prejudice of Arthur
Juan in the total sum aforesaid.
"Contrary to Law.[5]
The information in Criminal Case No. 93-CR-1645 for illegal recruitment in
large scale under Article 38, paragraph 1, of Presidential Decree No. 442
(Labor Code), as amended, filed on 16 April 1993, read:
That in or about the months of August and September, 1992, in the
Municipality of La Trinidad, Province of Benguet, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did then and
there willfully, unlawfully and knowingly recruit the following: PETER
ARCEGA, LORENZO BELINO, MARIANO DAMOLOG, FIDEL OPDAS,
BRANDO B. SALBINO, DEMBER LEON and ALFREDO C. ARCEGA for
overseas employment, by then and there misrepresenting herself as a duly
authorized or licensed recruiter when in truth and in fact she was not and by
reason of her said misrepresentation which was completely relied upon by
the said complainants whom she recruited, either individually or as a group
amounting to illegal recruitment in large scale causing economic sabotage,
she was able to obtain and received from them the aggregate total amount of
ONE HUNDRED SEVENTY FIVE THOUSAND PESOS (P175,000.00),
Philippine Currency, all to the damage and prejudice of the foregoing
complainants in the total sum aforesaid.
"Contrary to law.[6]
Appellant pleaded not guilty to all the charges of illegal recruitment and
estafa. The criminal cases filed were raffled off to two (2) branches of the
Regional Trial Court of Benguet; later, however, the cases were consolidated
at the instance of the prosecution.
Parenthetically, appellant jumped bail pending trial but she was soon
arrested by agents of the Criminal Investigation Service ("CIS").
The Evidence for the Prosecution. -
In Criminal Case No. 92-CR-1397 and Criminal Case No. 92-CR-1396
Francisco Labadchan, a 25-year-old employee in the Navy Base in Pacdal,
Baguio City, was introduced to appellant by Crispin Perez. In September
1991, the two went to the house of Conchita Tagle at Kilometer 3, La
Trinidad, Benguet, who was known to be recruiting workers for abroad. After
Labadchan had expressed interest in applying for a job in Korea, Tagle told
Labadchan to prepare P45,000.00, P30,000.00 of which was to be paid that
month and the balance of P15,000.00 before his departure for abroad.
Labadchan paid Tagle the amount of P30,000.00 on 23 September 1991.
Appellant, in turn, received that amount when she went to La Trinidad to
"brief" him. She told Labadchan that his flight would be on the 9th of October
1991 and that he should have paid by then the balance of P15,000.00 of the
fees. He paid Tagle the P15,000.00 balance on 05 October 1991. When he
requested her to make a receipt, Tagle included the amount in the old receipt
for the P30,000.00 previously given. Appellant handed over to Labadchan
some papers to fill up and gave last-minute instructions before she boarded a
green-colored aircraft.
On 08 October 1991, Labadchan and his wife went to Manila and stayed, as
so instructed by Tagle, at the Prince Hotel near the terminal of the Dangwa
bus company in Dimasalang, Manila. There, he met other people, among
them, his co-complainant Arthur Juan. In the morning of 09 October 1991,
Labadchan and the others were told to go to the airport with Tagle, where
appellant was supposed to give the travel papers including passports and
plane tickets for Korea. At the airport, however, appellant told the group that
their flight had been re-scheduled for 11 October 1991. Labadchan returned
to Baguio City.
On 11 October 1991, Labadchan returned to the airport only to be told this
time, however, that his passport was still with the Department of Foreign
Affairs. Appellant told her husband to accompany Labadchan to the Foreign
Affairs office. When Labadchan received the passport, he saw that while his
picture appeared on it, the passport was made out in the name of a person
from Negros Occidental. Labadchan had to imitate the signature on the
passport just so he could get it. Back at the airport, he was allowed inside the
terminal but only to be later sent out because the ticket he had was one
intended for passage from Korea and not to Korea. Asserting that he and
company were mere "chance passengers," appellant sent them all home with
a promise that another departure date would be set. She also took back the
show money of US$1,000.00.
Appellant would repeatedly schedule a departure date but nothing tangible
came out of her assurances. Finally, Labadchan was able to get appellant to
promise that the money he had given her would be refunded. When this
promise neither materialized, Labadchan finally reported the matter to the
National Bureau of Investigation ("NBI"). In that office, appellant executed a
promissory note stating that she would return the amount of P46,500.00,
which included the amount of P1,500.00 allegedly used for getting a
passport, to Labadchan.[7]
In Criminal Case No. 92-CR-1414 and Criminal Case No. 92-CR-1416
Victoria Asil, a 40-year-old housewife from Imelda Village, Roxas Street,
Baguio City, heard from her elder sister, Feling Derecto, that appellant was
recruiting workers for abroad. During the second week of January 1992, she,
along with her husband Gabriel, went to appellants house in Buyagan, La
Trinidad. Appellant assured her that she could have a job in a factory in
Korea. Appellant asked for an advance fee of P25,000.00 of the P40,000.00
agreed fee. Victoria gave appellant the "advance fee" on 13 January 1992 at
her (Victorias) shop in Shoppers Lane, Baguio City which appellant
acknowledged by issuing a receipt for the amount. She told Victoria to be at
appellant's house in Buyagan after three weeks.
When Victoria went to appellants house as so directed, appellant told her
that her flight had been postponed supposedly because prior applicants had
to be accommodated first. Victoria met appellant seven more times only to be
ultimately told that the latter had been allegedly fooled by the main office in
Manila. Appellant, nevertheless, demanded an additional P5,000.00 from
Victoria so that she could leave on 18 April 1992. Victoria gave appellant the
amount of P5,000.00 at her shop on 31 March 1992 for which appellant gave
a corresponding receipt.
When on 18 April 1992 still nothing happened, Victoria demanded from
appellant a refund. Appellant gave her an advance of P15,000.00. An
acknowledgment receipt with appellants signature affixed thereon would
evidence that payment. Appellant, however, failed to return the rest of the
promised refund.[8]
In Criminal Case No. 92-CR-1413 and Criminal Case No. 92-CR-1415
Cherry Pi-ay, a 26-year-old nursing student from Acop, Tublay, Benguet, was
visited once in March 1991 by appellant who encouraged Cherry to apply for
work in a textile or a plastic factory in Korea with a monthly salary of
US$800.00. Appellant told Cherry that the moment she would pay the
amount of P45,000.00, she could be deployed in Korea. Cherry prepared her
bio-data and gave it to appellant at the latter's residence during the first week
of April 1991.
Cherry was able to leave the country on 04 July 1991 after having paid the
total amount of P45,000.00. Appellant told her that a certain Ramil would
meet her at the airport in Korea. When she arrived, a Filipina, named Marlyn,
instead met her. Marlyn introduced herself as appellants friend and
accompanied Cherry to a certain house owned by a Korean. There, Cherry
met, among other compatriots, Corazon del Rosario and Jane Kipas. Cherry
soon realized that she was not going to have a job in the factory promised by
appellant. Instead, she was made to work for the Korean applying rugby on
and folding leather jackets. About a month later, men from the Korean
Immigration accosted her and the others. Brought in for questioning by
Immigration officials, Cherry and her companions were informed that they
were illegal workers. After the investigation, Cherry and her group were
allowed to go but on 08 August 1991, all were deported.
Back to the Philippines, the deportees were assured by appellant that they
would get a refund of their money. Cherry executed a sworn statement
narrating her experience in Korea.[9]
Ayson Acbaya-an, Cherrys "boyfriend" who later was to become her
husband, corroborated Cherrys testimony that appellant first received
P18,000.00 from Cherry. Thereafter, appellant also received P27,000.00
from Cherry, fifteen thousand pesos (P15,000.00) of which amount came
from him. In both instances, appellant signed receipts for the payments. The
receipts were among Cherry's papers confiscated in Korea.[10]
In Criminal Case No. 92-CR-1425 and Criminal Case No. 92-CR-1426
Corazon del Rosario, a 34-year-old housemaid from 48 Happy Homes,
Baguio City, had known appellant, an acquaintance, since 1980. One day in
December 1990, she happened to chance upon appellant at a PLDT
telephone booth in Kilometer 4, La Trinidad, Baguio City. Appellant,
representing herself to be an authorized recruiter, tried to persuade Corazon
to work abroad. Corazon showed interest. From then on, appellant would
visit Corazon in her brothers house in Kilometer 4. Ultimately, appellant was
able to convince Corazon that, for a fee of P40,000.00, she could be sent to
Korea. Corazon gave appellant the amount of P15,000.00. She paid the
balance of P25,000.00 in May 1991. The payments were both made in the
presence of Cherry Pi-ay and Jane Kipas. Appellant issued the
corresponding receipts for these amounts.
Corazon took the flight for Korea on 28 June 1991. Appellant had instructed
Corazon, upon landing in Korea, to call up a certain Ramil. At the airport,
Corazon, including her companions among them Jane Kipas, kept on dialing
the number but each time only a Korean woman would answer the call.
Later, that evening, a certain Marlyn, who introduced herself as appellants
friend, took them to a hotel. There, Marlyn took their show money of
US$1,000.00. The group stayed overnight in the hotel and the following
morning, a Korean took them to a house proximately two hours away by car
from the airport. For about a month, they did nothing but apply rugby on
leather jackets, for which they were not paid, until a policeman arrived and
took all ten of them to the airport. All that the immigration and airport
personnel would tell them was that they should be thankful they were only
being repatriated home. Immigration and airport authorities confiscated
everything that they had.
At home, appellant promised to return Corazons money. Not having received
the promised refund, Corazon went to the CIS stationed at Camp Dangwa
where, on 28 July 1992, she executed her sworn statement.[11]
Avelina Velasco Samidan, a friend of Corazon and in whose house the latter
would stay whenever she was in Baguio, corroborated the testimony of
Corazon that she gave to appellant the amount of P15,000.00, ten thousand
pesos of which amount Corazon borrowed from Avelina, and that some time
in April 1991, Corazon withdrew P25,000.00 from the bank which she
likewise paid to appellant.[12]
In Criminal Case No. 92-CR-1427 and Criminal Case No. 92-CR-1428
Arthur Juan, a 30-year-old farmer from Dumulpot, Tublay, Benguet, first met
appellant in her house at Buyagan, La Trinidad, Benguet, when he, together
with Maxima Gomez, Tirso Gomez and Francisco Labadchan, went to see
appellant who was said to be recruiting workers for Korea. Juan promptly
submitted his bio-data form after being told that he could work in a factory in
Korea at US$400.00 a month. Appellant quoted a processing fee of
P40,000.00. Juan initially paid the amount of P6,500.00 in April 1991. On 09
October 1991, the scheduled date of the flight, Juan went to the airport and
gave appellant another P15,000.00; the final balance of the fees were, by
their agreement, to be remitted to appellant on a salary deduction basis.
Appellant then told Juan that he could not leave on that day (09 October
1991) because the airplane was already full. Appellant took back Juans
passport, telling Juan that he should be able to depart in a few days.
Appellant, however, kept on rescheduling the flight for about five more times
until it became clear to Juan that he had been deceived. Juan paid out a total
amount of P24,200.00, including the US$100.00 that would have been his
pocket money, to appellant. The latter executed receipts for the amounts.
Juan executed a sworn statement narrating the unfortunate incident.[13]
In Criminal Case No. 93-CR-1652
Adeline Tiangge, a 43-year-old housekeeper from Bangao, Buguias,
Benguet, learned that appellant was recruiting workers for abroad. Adeline,
accompanied by her sister, went to see appellant at her house in Buyagan
some time in December 1991. There were others, like her, who also went to
see appellant. When she produced the required identification pictures and
P1,500.00 for passport processing, appellant told Adeline that she could be a
factory worker in Korea with a monthly salary of US$350.00. Appellant
agreed to be paid by Adeline the additional P35,000.00 balance by
installment. The first installment of P17,000.00 was paid on 15 February
1992, evidenced by a receipt signed by Antonine Saley, with the remaining
P18,000.00 being payable before getting on her flight for abroad.

Adeline waited in Baguio City for word on her departure. Adeline, together
with some other applicants, thrice went to appellants office at the Shoppers
Lane to check. She also went to Dimasalang, Manila, in front of the Dangwa
terminal, for a like purpose. Appellant informed her that she just had to wait
for her flight. Adeline, exasperated, finally demanded a refund of the amount
she had paid but appellant merely gave her P100.00 for her fare back to
Benguet.[14]
-0-
The sum of the evidence, infra., in Criminal Case No. 93-CR-1645 for illegal
recruitment in large scale had been submitted to likewise constitute the
evidence to establish the People's case, respectively, in -
Criminal Case No. 93-CR-1644
Alfredo Arcega, a 42-year-old hotel employee from 16 Q.M. Subdivision,
Baguio City, heard from a former co-worker, Fidel Opdas, that appellant was
recruiting workers for overseas employment. Interested, he, in the company
of his nephew, Peter Arcega, went to appellants house in Buyagan, La
Trinidad. There, he met job applicants Dembert Leon, Mariano Damolog and
Brando Salbino. Appellant assured the group that they could get employed in
Taiwan for a monthly salary of P12,000.00 to P15,000.00. She told them that
the processing and placement fees would amount to P40,000.00 each.
Arcega and his companions agreed.
On 17 August 1992, Arcega paid appellant P10,000.00 in Dimasalang,
Manila. Appellant issued a cash voucher for the amount. She told Arcega to
just wait for the results. On 30 September 1992, appellant asked Arcega for
another P15,000.00 which amount he paid. With him at the time were his
nephew Peter Arcega, as well as Dembert Leon, Mariano Damolog, Lorenzo
Belino and Brando Salbino. Appellant issued a receipt and affixed thereon
her signature. Appellant told Arcega that with the payment, his employment
abroad was assured. She stressed, however, that the balance of P15,000.00
should be paid before his departure for Taiwan. After following up the matter
with appellant in October 1992 and then in December 1992, he finally gave
up. Arcega went to the POEA office in Magsaysay Avenue, Baguio City, and
when he learned that appellant had pending cases for illegal recruitment, he
also filed his own complaint and executed an affidavit before Atty. Justinian
Licnachan.[15]
Criminal Case No. 93-CR-1646
Brando Salbino, a 36-year-old resident of East Quirino Hill, Baguio City, used
to be a "forester" of the DENR. In July 1992, he met appellant at her
Buyagan residence after his brother-in-law, Fidel Opdas, had said that she
was recruiting workers for abroad. Appellant told him that she could help him
get employed in Taiwan with a P12,000.00 monthly salary. Salbino submitted
various documents required by appellant. On 11 August 1992, Salbino paid
appellant the amount of P10,000.00 at her Dimasalang "temporary office" so
that, according to her, his travel papers could be processed. The payment
was receipted. On 30 September 1992, he paid her another P15,000.00, for
which appellant again issued an acknowledgment receipt.
Appellant told Salbino to merely wait in Baguio City. When she failed to show
up, he went to appellants house in Buyagan to verify. She was not there. The
following week, he went to Manila with Fidel Opdas hoping to see her.
Appellant's whereabouts could not be determined. Having failed to locate
her, Salbino and his companions went to the POEA office in Magsaysay,
Baguio City. It was at the POEA office that they were to learn that appellant
was not in the list of licensed recruiters. He, along with the others, then
executed an affidavit-complaint before Atty. Licnachan.[16]
Criminal Case No. 93-CR-1647
Mariano Damolog, a 33 year-old farmer from 26 P. Burgos Street, Baguio
City, went to appellants residence in Buyagan in July 1992 when informed by
Fidel Opdas, his co-worker at the MIDO Restaurant, that appellant was
recruiting workers for Taiwan. Appellant herself later told Damolog that she
was licensed to recruit workers. He forthwith applied for a position at a
factory in Taiwan with a salary of between US$400.00 and US$500.00 a
month. He, after being required to pay a processing fee, paid the amount of
P10,000.00 to appellant at her Manila office. Appellant gave him a cash
voucher. Damolog was then supposed to just wait in Baguio City for a
telegram.

When he did not receive word from appellant, Damolog went to Manila to see
what had happened to his application. Appellant was again told to simply
stand by in Baguio City. After several days, Opdas, who had meanwhile gone
to Manila, told Damolog to see appellant in Manila. In Manila, appellant told
Damolog to sign a bio-data form for screening purposes. Like Peter Arcega,
Fred Arcega, Brando Salbino and Lorenzo Belino, he was also asked to pay
another P15,000.00. The group went back to Baguio City to raise the amount
of P15,000.00 each. On 30 September 1992, he, together with Fred and
Peter Arcega, Brando Salbino and Lorenzo Belino, returned to Manila.
Damolog handed over his P15,000.00 to appellant who issued an
acknowledgment receipt, signed by Annie Saley which, according to
appellant, was her name. Appellant assured him that he would be among the
first to go to Taiwan by December 1992.
December 1992 came but no word was received prompting Damolog and his
companions to repair to appellants house in Buyagan. She was not home.
Damolog proceeded to Manila where appellant told him to wait a few more
days. When still nothing happened, Damolog and his companions went to the
POEA office where Atty. Licnachan issued a certification stating that
appellant was not authorized to recruit workers. Damolog and his
companions filed a joint affidavit-complaint executed before Atty.
Licnachan[17] against appellant.
Criminal Case No. 93-CR-1649
Lorenzo Belino, a 37-year-old farmer from Tawang, La Trinidad, Benguet,
was in Manila in August 1992 looking for employment. Fidel Opdas, a
companion in his trip to Manila, mentioned that perhaps appellant could help.
Belino saw appellant who then told him about the prospect of getting
employed in Taiwan. Appellant invited him to see her on 20 September 1992
in Buyagan.
On the appointed date, Belino found Mariano Damolog, Fidel Opdas, Brando
Salbino, Dembert Leon, Alfredo Arcega and Peter Arcega already in
appellants residence in Buyagan. Appellant asked P10,000.00 from each of
them if they wanted her to be responsible for representing them to get
themselves employed in Taiwan with a monthly income of P15,000.00. When
the group agreed, appellant made them fill up and sign a bio-data form.
Appellant also made them understand that they would each have to pay her
the total amount of P40,000.00, P10,000.00 of which was to be forthwith paid
and the balance to be paid as and when everything would have been
arranged for their flight to Taiwan.
On 23 September 1992, Belino paid appellant the amount of P10,000.00 at
her Dimasalang office. Appellant issued a cash voucher therefor. Belino
returned to Baguio City. Five days later, Belino went down to Manila after
appellant had sent word that he had to come to Manila. On 30 September
1992, Belino paid in Manila the amount of P15,000.00 demanded by
appellant. Appellant signed her name as Annie Saley on the receipt.
Appellant informed Belino that he should wait for her telephone call regarding
the schedule of his flight. He waited but when no calls came, Belino and
Opdas decided to visit appellant in her house in Buyagan. Appellant asked to
be given until January to deploy them in Taiwan. February 1993 came, and
still there was no news from appellant. In March 1993, Belino and others,
namely, Fidel Opdas, Brando Salbino, Dembert Leon and Alfredo
Arcega,[18] decided to file a complaint against appellant with the POEA in
Magsaysay Avenue, Baguio City, where their sworn statements were taken.
Criminal Case No. 93-CR-1651
Peter Arcega, a 27-year-old cashier from 317 Magsaysay Avenue, Baguio
City, also paid the amount of P10,000.00 to appellant for a promised job
overseas. A cash voucher was signed by appellant to acknowledge the
payment. Peter, subsequently, also paid the amount of P15,000.00 to
appellant for which the latter issued a receipt signed by Annie Saley. He was
among those who signed the affidavit-complaint before the POEA.
Testifying in Criminal Case No. 93-CR-1645,[19] as a corroborative witness,
Dembert Leon, a 25-year-old unemployed from 52-F Tandang Sora Street,
Baguio City, said that he, desiring to get an employment abroad, likewise
went to see appellant at her residence in Buyagan. Accompanied by Fidel
Opdas, Leon was told by appellant to complete the necessary papers,
including his bio-data, barangay clearance, ID and NBI clearance. Leon
applied to be a factory worker in Taiwan. He was assured a monthly salary of
P12,000.00, but first, appellant told him, he should commit to pay a
placement fee of P40,000.00 of which amount P10,000.00 had to be paid
forthwith. Leon paid and a cash voucher, dated 08 September 1992, was
issued by appellant. On 30 September 1992, he paid appellant another
P15,000.00 for which another acknowledgment receipt was issued. The
remaining P15,000.00 was agreed to be paid at the airport before his flight to
Taiwan. No further word came from appellant. Finally, in December 1992,
when he and the others called her up, appellant informed them to wait until
January 1993. January came and still nothing happened. In March 1993,
Leon and the others went to the POEA office to lodge a complaint against
appellant.[20]
Jose B. Matias, an Attorney II at the POEA Regional Station Unit in Baguio
City, received a request for verification on whether or not appellant was a
licensed recruiter. In response, he advised that appellant was not authorized
to recruit in the City of Baguio and in the region from 1989 to the present.
Atty. Matias issued a certification to that effect.
-0-
The Case for the Defense. -
The defense posited the theory that appellant merely assisted the
complainants in applying for overseas employment with duly accredited
travel agencies for and from which she derived a commission.[21]
According to the 37-year-old appellant, she used to be the liaison officer of
the Friendship Recruitment Agency from 1983 to 1986. In that capacity, she
would submit to the POEA contracts for processing job orders for applicants
and assist applicants prior to their departure at the airport. When the licensed
agency closed in 1986, she went to Baguio where she engaged in the
purchase and sale of vegetables and flowers. Even then, however, she
would not hesitate extending help to applicants for overseas employment by
recommending licensed agencies which could assist said applicants in going
abroad. She named the Dynasty Travel and Tours and the Mannings
International as such licensed agencies. She had, in the process, been able
to help workers, like Cherry Pi-ay, Corazon del Rosario, Arthur Juan and
Francisco Labadchan to name some, sent abroad.[22]
Cherry Pi-ay was able to leave for Kuwait. In 1991, Cherry went to see her
again, this time asking for assistance in getting an employment in Korea. She
accompanied Cherry to the Dynasty Travel and Tours in Manila that enabled
her to get a tourist visa to Korea. Appellant herself later gave Cherry her
tourist visa. For Cherrys visa and plane ticket, appellant received from Cherry
P15,000.00 and US$250.00. Appellant issued a receipt therefor and
delivered the amounts to the Dynasty Travel and Tours which, in turn, issued
her a receipt. The CIS men who arrested her in Manila confiscated that
receipt. In August 1991, Cherry came back and asked her to look for another
travel agency saying she did not like the work she had in Korea.[23]
Norma Bao-idang, a former client of the Friendship Recruitment Agency,
introduced Corazon del Rosario to appellant. Since the agency had already
been closed, appellant referred Corazon to Mannings International in Kalaw
Street, Ermita, Manila. Corazon was able to leave for Abu Dhabi where she
worked as a domestic helper. In 1991, Corazon again sought appellant's
assistance in getting an employment in Korea. Appellant introduced her to
Dynasty Travel and Tours which, in turn, helped Corazon get a tourist visa
for Korea. She did ask for P15,000.00 and US$250.00 from Corazon but
these amounts, being for Corazons ticket and hotel accommodation, were
turned over to Dynasty Travel and Tours. She also knew that Corazon was
able to leave for Korea because she herself handed over to Corazon her
tourist visa and ticket. Appellant received P2,000.00 from Dynasty Travel and
Tours by way of commission. She was also issued a receipt by that travel
agency showing that she had turned over to it the amounts received from
Corazon but the CIS men took the receipts and other documents from her.
When Corazon returned home in 1991 after going to Korea, she again
sought appellants help in looking for a travel agency that could assist her in
going back to that country.[24]
Appellant came to know Arthur Juan through a vegetable vendor named
Maxima Gomez. He asked her for help in securing a tourist visa. Appellant
was able to assist him and others, like Francisco Labadchan, Tirso Gomez
and Romeo Balao, by referring them to the Dynasty Travel and Tours.
Appellant asked from them the amounts of P15,000.00 and US$250.00
which she turned over to the travel agency. Again, she was issued a receipt
by that agency but that, too, was confiscated by the CIS agents who arrested
her. Of the men who sought her help in going abroad, seven "were able to
leave. The others had been re-scheduled to leave but they failed to arrive at
the airport.
Labadchan and Juan met appellant during the first week of January 1993.
She gave them back the plane ticket and the amount of US$250.00 so that
they could ask for a refund from the travel agency. The next time she saw
Labadchan was at the NBI office when NBI Director Limmayog invited her for
questioning. Appellant tried her best to look for a job for Labadchan but the
transaction she had with Fast International failed to push through.[25]
Appellant helped Victoria Asil secure a tourist visa. The latters sister was a
former client at the Friendship Recruitment Agency who was able to work in
Saudi Arabia in 1985. She introduced Victoria to the Dynasty Travel and
Tours. Appellant asked Victoria to advance P15,000.00 and US$250.00 for
her ticket and hotel accommodation. Victoria gave appellant the amount, and
the latter issued corresponding receipts. She turned over the amount to the
travel agency which, in turn, issued a receipt to appellant. The CIS, however,
confiscated all the documents in her attache case.[26] Appellant was able to
process Victorias visa for Korea but when someone informed the latter that
she could have a visa for Taiwan, Victoria opted to change her destination.
Appellant told Victoria that her visa and ticket for Korea had already been
obtained but Victoria insisted on a refund of her money. Appellant returned to
her P15,000.00 that was supposed to be the amount to be exchanged into
dollars for her show money. Victoria issued a receipt for the amount but
appellant entrusted it to her former lawyer. Appellant handed over the plane
ticket to Victoria.[27]
Mercedes Quimson (Kimson) introduced appellant to Adeline Tiangge. When
Adeline said that she was interested in securing a tourist visa for Korea,
appellant took her to the Dynasty Travel and Tours. Appellant asked from
Adeline the amount of P17,000.00 for her plane ticket. Appellant was able to
buy a plane ticket and to get a passport for Adeline. The latter, however, later
said that she was no longer interested in going to Korea and that her
passport application should, instead, be diverted to Hongkong. In fact,
Adeline was able to leave for Hongkong. Adeline filed a case against
appellant because when Adeline sought a refund from Dynasty Travel and
Tours, the agency only gave her P5,000.00 or just a half of the P10,000.00
she wanted.[28]
Fidel Opdas was appellants client at the Friendship Agency who was able to
leave for Saudi Arabia. He asked her if she could find a job for him in Taiwan.
When appellant told him that she knew someone who could help, Opdas
brought along Mariano Damolog. Appellant introduced them to Marites Tapia
and Carol Cornelio of Dynasty Travel and Tours who told Opdas and
Damolog to submit the necessary documents for their application for work in
Taiwan. In May 1993, Opdas returned with Brando Salbino who also talked
to Marites and Carol. Opdas submitted to appellant the documents required
by Marites and Carol. Appellant, in turn, gave the papers to Marites and
Carol. When, later, Opdas went to see appellant, he brought along Dembert
Leon and Lorenzo Belino. Appellant requested Opdas to accompany the two
to Marites and Carol with whom they discussed what would be necessary
"for their application for Taiwan. Still later when Opdas came back with Peter
and Alfredo Arcega to see appellant, she again referred them to Marites and
Carol. The job applicants each gave appellant P10,000.00 which the latter
turned over to Marites and Carol. The two gave her receipts but these were
in the same attache case that was seized by the CIS agents and never
returned. The group subsequently withdrew their applications although it was
only Opdas who received a P15,000.00 refund.[29]
In a bid to prove that CIS agents indeed took away her attache case
containing documents that could bail her out of the charges, appellant
presented Danilo A. Deladia, one of the three policemen who arrested her.
Equipped with a warrant of arrest issued by Judge Luis Dictado of Branch 8,
the policemen went to the house of appellants cousin at 2320-B San Antonio,
Sampaloc, Manila at 3:00 p.m. of 25 August 1993. According to Deladia,
however, they did not get anything from appellant because their mission was
only to arrest her. At the counter intelligence branch of the CIS, he did not
even hear appellant requesting for the return of a brief case.[30] Apparently
because of what had turned out to be Deladias adverse testimony, the
defense presented George Santiago who claimed to be at the boarding
house when appellant was arrested. Santiago said that he had allowed the
CIS agents to enter the boarding house. Santiago did not see what might
have happened in appellant's room but what he did see was that when the
agents all came out, they had with them an attache case. Santiago,
accompanied by his cousin Atty. Lomboan, went to the CIS in Camp Crame
where one of the men asked P50,000.00 for the release of appellant.
Santiago did not see any brief case in the office but one of the men told them
that they would "produce" appellant and the attache case if they could
"produce" the amount of P50,000.00.[31]
On cross-examination, however, Santiago admitted that the P50,000.00 was
meant for bonding purposes and that they did not make a formal request for
the release of the brief case.[32]
The defense next attempted to shift, albeit unsuccessfully, the responsibility
for the crime from appellant to Maritess and Carol. Presented at the witness
stand was Oscar Gaoyen, a 30-year-old farmer, who testified that appellant
had failed to assist him in going to Korea to work because it was difficult.
While following up his application in Manila, he met Marites and Carol in front
of the Dangwa station in Dimasalang and he was told that they knew
someone who could "transfer his application to Taiwan." He said that even
after he had paid appellant P50,000.00, nothing happened constraining him
to file charges against her. Appellant returned P15,000.00 of the money to
him.[33]
Appellant filed, before the trial court could promulgate its decision, a Motion
to Reopen Trial with an urgent motion to defer promulgation on the ground of
newly discovered evidence.[34] In its order of 03 March 1995, the trial court,
noting that the newly discovered evidence consisted of affidavits of
desistance of seven complainants, found no merit in the motion. It held that
presentation of the same does not give valid ground for possible amendment
of the decision as the private complainants had already testified. It agreed
with the prosecutor that the affidavits of desistance only (had) the effect of
satisfying the civil liability.[35]
The Judgment of the Trial Court. -
On 03 March 1995, the trial court rendered its decision finding appellant
guilty beyond reasonable doubt of the crimes charged. It found implausible
appellants claim that she was merely an agent of Dynasty Travel and Tours
and/or Maritess Tapia and Carol Cornelio. If what she claimed were true,
said the court, appellant could have presented her principals; instead, that
failure exposed her to the adverse inference and legal presumption that
evidence suppressed would be adverse if produced. It also found hard to
believe, the "self-serving" claim of appellant that her brief case, supposedly
containing receipts of her remittances to the travel agencies, was confiscated
by the CIS and remained unaccounted for. The trial court concluded:
In fine, accused gave the distinct assurance, albeit false, that she had the
ability to send the complainants abroad for work deployment, thereby
employing false pretenses to defraud them. This was despite her knowing
very well that she was not legally authorized. The complainants willingly
parted with their money in the hope of overseas employment deceitfully
promised them by the accused. What makes matters worse is that these
amounts given to the accused come from hard-earned money, or worse,
could have been borrowed from money lenders who have no qualms about
collecting usurious interest rates. Complainants who faithfully relied on the
accused did not hesitate to painstakingly raise or even beg or borrow money
just so they could give a decent future to their families even to the extent of
leaving them for far-off lands. But now, all their dreams are gone, their hopes
shattered. Some may not have even been able to pay back what they
borrowed nor recoup their losses. Now, more than ever, their future appears
bleaker. But this time, a glimmering light appears at the end of the tunnel as
the Court steps in to lay down the iron fist of the law so as to serve the
accused a lesson, a bitter one, with the hope that those who are trekking or
those who are about to trek the same pilfered path that the accused took will
reconsider their pursuits before it would be too late, and in the end, this form
of fraud which invariably victimizes the poor will forever be stopped.[36]
All given, the trial court then decreed as follows:
WHEREFORE, in all the above-mentioned cases, the Court finds accused
Antonine B. Saley, also known as Annie B. Saley, GUILTY beyond
reasonable doubt of the corresponding crime as charged in the informations
and hereby sentences her in each case, except in Criminal Case NO. 93-CR-
1645 where an indeterminate sentence is not applicable, to suffer an
indeterminate sentence for the duration hereunder given, and to pay the
costs, as well as the damages due the private complainants, to wit:
"Criminal Case No. 92-CR-1396
"Imprisonment from Four (4) Years as MINIMUM to Six (6) Years as
MAXIMUM and to pay Francisco T. Labadchan P45,000.00 for actual
damages, plus costs.
"Criminal Case No. 92-CR-1397
"Imprisonment from Three (3) Years, Six (6) Months and Twenty-One (21)
Days of prision correccional as MINIMUM to Seven (7) Years, Four (4)
Months and One (1) Day of prision mayor as MAXIMUM and to pay
Francisco T. Labadchan P45,000.00 for actual damages, plus costs.
"Criminal Case No. 92-CR-1413
"Imprisonment from Four (4) Years as MINIMUM to Six (6) Years as
MAXIMUM and to pay Cherry Pi-ay P20,000.00 for moral damages, plus
costs.
"Criminal Case No. 92-CR-1414
"Imprisonment from One (1) Year, Eight (8) Months and Twenty-One (21)
Days of prision correccional as MINIMUM to Five (5) Years, Five (5) Months
and Eleven (11) Days of prision correccional as MAXIMUM and to pay
Victoria As-il P15,000.00 for actual damages, plus costs.
"Criminal Case No. 92-CR-1415
"Imprisonment from One (1) Year, Eight (8) Months and Twenty-One (21)
Days of prision correccional as MINIMUM to Five (5) Years, Five (5) Months
and Eleven (11) Days of prision correccional as MAXIMUM and to pay
Cherry Pi-ay P20,000.00 for moral damages, plus costs.
"Criminal Case No. 92-CR-1416
"Imprisonment from Four (4) Years as MINIMUM to Six (6) Years as
MAXIMUM and to pay Victoria As-il P15,000.00 for actual damages, plus
costs.
"Criminal Case No. 92-CR-1425
"Imprisonment from Four (4) Years as MINIMUM to Six (6) Years as
MAXIMUM and to pay Corazon del Rosario P20,000.00 for moral damages,
plus costs.
"Criminal Case No. 92-CR-1426
"Imprisonment from One (1) Year, Seven (7) Months and Eleven (11) Days
of prision correccional as MINIMUM to Six (6) Years, Five (5) Months and
Eleven (11) Days of prision mayor as MAXIMUM and to pay Corazon del
Rosario P20,000.00 for moral damages, plus costs.
"Criminal Case No. 92-CR-1427
"Imprisonment from Four (4) Years as MINIMUM to Six (6) Years as
MAXIMUM and to pay the costs.
"Criminal Case No. 92-CR-1428
"Imprisonment from One (1) Year, Eight (8) Months and Twenty-One (21)
Days of prision correccional as MINIMUM to Five (5) Years, Five (5) Months
and Eleven (11) Days of prision correccional as MAXIMUM and to pay the
costs.
"Criminal Case No. 93-CR-1644
"Imprisonment from One (1) Year, Eight (8) Months and Twenty-One (21)
Days of prision correccional as MINIMUM to Five (5) Years, Five (5) Months
and Eleven (11) Days of prision correccional as MAXIMUM and to pay
Alfredo C. Arcega P25,000.00 for actual damages, plus costs.
"Criminal Case No. 93-CR-1645
"To suffer the penalty of life imprisonment and to pay a fine of One Hundred
Thousand Pesos (P100,000.00), with subsidiary imprisonment in case of
insolvency, and to pay the costs. She shall also pay Twenty-Five Thousand
Pesos (P25,000.00) each to Peter Arcega, Lorenzo Belino, Mariano
Damolog, Brando Salbino, Dembert Leon and Alfredo Arcega for actual
damages, plus costs.
"Criminal Case No. 93-CR-1646
"Imprisonment from One (1) Year, Eight (8) Months and Twenty-One (21)
Days of prision correccional as MINIMUM to Five (5) Years, Five (5) Months
and Eleven (11) Days of prision correccional as MAXIMUM and to pay
Brando B. Salbino P25,000.00 for actual damages, plus costs.
"Criminal Case No. 93-CR-1647
"Imprisonment from One (1) Year, Eight (8) Months and Twenty-One (21)
Days of prision correccional as MINIMUM to Five (5) Years, Five (5) Months
and Eleven (11) Days of prision correccional as MAXIMUM and to pay
Mariano Damolog P25,000.00 for actual damages, plus costs.
Criminal Case No. 93-CR-1649
"Imprisonment from One (1) Year, Eight (8) Months and Twenty-One (21)
Days of prision correccional as MINIMUM to Five (5) Years, Five (5) Months
and Eleven (11) Days of prision correccional as MAXIMUM and to pay
Lorenzo Belino P25,000.00 for actual damages, plus costs.
"Criminal Case No. 93-CR-1651
"Imprisonment from One (1) Year, Eight (8) Months and Twenty-One (21)
Days of prision correccional as MINIMUM to Five (5) Years, Five (5) Months
and Eleven (11) Days of prision correccional as MAXIMUM and to pay Peter
Arcega P25,000.00 for actual damages, plus costs.
"Criminal Case No. 93-CR-1652
"Imprisonment from One (1) Year, Eight (8) Months and Twenty-One (21)
Days of prision correccional as MINIMUM to Five (5) Years, Five (5) Months
and Eleven (11) Days of prision correccional as MAXIMUM and to pay
Adeline Tiangge y Marcos P17,000.00 for actual damages, plus costs.
"With respect to accused Conchita Tagle in Criminal Cases Nos. 92-CR-
1396 and 92-CR-1397, let these cases be sent to the files without prejudice
to their revival as soon as she shall have been arrested and brought to the
jurisdiction of this Court.
"In order that Conchita Tagle may not escape the clutches of the law, let
Alias Warrants of Arrest issue addressed to the PNP Chief of Police, La
Trinidad, Benguet and the National Bureau of Investigation (NBI) in Manila
and in Baguio City. Further, the Commission of Immigration and Deportation
(CID), Manila is ordered to include her name in the its Hold-Departure List.
"SO ORDERED.[37]
Appellant filed a motion for reconsideration of the decision asserting that the
trial court had erred in giving credence to the testimonies of the complaining
witnesses and in finding her guilty of the crimes charged despite the "failure"
of the prosecution to fully establish the elements of the crimes beyond
reasonable doubt.[38] Finding no merit in the motion, the trial court, on 03
April 1995, denied a reconsideration of its decision.[39] The following day,
appellant filed a notice of appeal.[40] The trial court gave due course to the
appeal on 17 April 1995.[41]
The Instant Appeal. -
Appellant continues to profess before this Court her innocence of the
accusation. She reiterates her assertion that the trial court has erred in giving
credence to the testimonies of the complaining witnesses and in finding her
guilty beyond reasonable doubt of the various offenses she has been
charged with by the prosecution.[42] She avers that her transactions with the
complainants have been limited to her assisting them secure their respective
travel visa specifically for tourist and that her assistance to them (has been)
only to refer them to travel agencies such as the Dynasty Travel and Tours
and the Mannings International. She insists that she has remitted the
amounts solicited from the complainants to the travel agencies, or to
Maritess Tapia and Carol Cornelio, earning only the commissions for bringing
in clients interested in getting tourist visas.[43]
At the outset, it might be explained that this appeal involves the conviction of
appellant not only for the crime of illegal recruitment in large scale for which
the penalty of life imprisonment is imposed but also for other offenses for
which lesser penalties have been meted by the trial court upon appellant.
This Court has appellate jurisdiction over ordinary appeals in criminal cases
directly from the Regional Trial Courts when the penalty imposed is reclusion
perpetua or higher.[44] The Rules of Court, allows, however, the appeal of
criminal cases involving penalties lower than reclusion perpetua or life
imprisonment under the circumstances stated in Section 3, Rule 122, of the
Revised Rules of Criminal Procedure. Thus -
(c) The appeal to the Supreme Court in cases where the penalty imposed is
life imprisonment, or where a lesser penalty is imposed but involving
offenses committed on the same occasion or arising out of the same
occurrence that gave rise to the more serious offense for which the penalty of
death or life imprisonment is imposed shall be by filing a notice of appeal in
accordance with paragraph (a) of this Section.
In giving due course to the notice of appeal filed by appellant, the trial court
has directed that the entire records of the seventeen cases should be
forwarded to this Court.[45] It might be observed that this appeal, which has
been assigned only one docket number, involves cases, although spawned
under different circumstances could be said to somehow be linked to the
incident giving rise to the case for illegal recruitment in large scale. The
cases have thus been correctly consolidated and heard jointly below. The
appeal made directly to this Court of the seventeen cases, each of which
incidentally should have been assigned a separate docket number in this
Court, is properly taken.
Article 38(a) of the Labor Code considers illegal any recruitment activity
undertaken by non-licensees or non-holders of authority. Recruitment is
defined by Article 13, paragraph (b), of the same Code as referring -
x x x to any act of canvassing, enlisting, contracting, transporting, utilizing,
hiring or procuring workers, and includes referrals, contract services,
promising or advertising for employment, locally or abroad, whether for profit
or not; Provided, That any person or entity which, in any manner, offers or
promises for a fee employment to two or more persons shall be deemed
engaged in recruitment and placement.
Illegal recruitment is committed when two elements concur:
1) That the offender has no valid license or authority required by law to
enable one to lawfully engage in recruitment and placement of workers; and
2) That the offender undertakes either any activity within the meaning of
recruitment and placement defined under Article 13(b), or any prohibited
practices enumerated under Article 34.[46]
Any person who commits the prohibited acts enumerated in Article 13(b) of
the Labor Code shall be liable under Article 38(a) thereof.[47] The proviso in
Article 13(b) lays down a rule of evidence that where a fee is collected in
consideration of a promise or offer of employment to two or more prospective
workers, the individual or entity dealing with them shall be deemed to be
engaged in the act of recruitment and placement.[48] The article also
provides that recruitment includes the act of referral or the act of passing
along or forwarding of an applicant for employment after an initial interview of
a selected applicant for employment to a selected employer, placement
officer or bureau.[49]
The Court agrees with the trial court that appellant, indeed, violated the law
against illegal recruitment.
The prosecution was able to prove by overwhelming evidence that appellant
did represent herself as being in a position to get for the aspiring overseas
contract workers good-paying jobs abroad. Appellant was thus able to
demand and receive various amounts from the applicants. The latter would
then be briefed by appellant on the requirements for employment overseas.
Appellant herself testified, thus:
Q From 1986 when separated from Friendship Recruitment Agency and
before you were put to jail did you have any occupation?
"A Yes, sometimes we brought vegetables and flowers to Manila for resale.
"Q Aside from buying and selling vegetables down in Manila did you have
any other source of income?
"A Sometimes I helped some applicants who are interested to go abroad and
asked if I know some agencies who can assist them to go abroad.
"Q Were you able to assist some people to look for an agency to assist them
to go abroad?
"A Yes, sir.
"Q Were you being paid when you assist these people applying for overseas
employment?
"A Yes, sir.
"Q By whom?
"A The travel agencies give me some amount of commission.
"Q What are the names of these agencies which you know?
"A Dynasty Travel and Tours and Mannings International.
"x x x x x x x x x.
"Q Do you know also if this Dynasty Travel and Tours and Mannings
International is duly licensed by the government to recruit applicants abroad?
"A Yes, sir.
"Q Do you have any document to prove that it is registered?
"A Yes, sir.
"Q Where is that?
"A Mannings International is a licensed agency and Dynasty Travel and
Tours is licensed to issue tickets for applicants to go abroad.
"Q You said that Dynasty Travel and Tours is licensed to issue tickets for
applicants going abroad what do you mean by applicants going abroad?
"A Those applicants to work as a contract worker and who are ready to leave
for abroad and they are being issued tickets.
"Q Were you actually able to help or assist some overseas worker-
applicants?
"A Yes, sir.
"Q Do you remember some of them?
"A Cherry Piay, Corazon del Rosario, Arthur Juan, Francisco Labadchan and
others. (Underscoring supplied.)[50]
Appellant at one point claimed that she had helped complainants only in
acquiring for them plane tickets and tourist visas. On cross-examination,
however, she admitted that she had made referrals of job applicants to
recruitment agencies.[51] She evidently knew all along that the persons she
was dealing with were applicants for employment abroad.
The law requires that the above activities of appellant should have first been
authorized by the POEA.[52] Rule II, Book II, of the POEA Rules and
Regulations Governing Overseas Employment provides:
SEC. 11. Appointment of Representatives. Every appointment of
representatives or agents of licensed agency shall be subject to prior
approval or authority of the Administration.
"The approval may be issued upon submission of or compliance with the
following requirements:
"a. Proposed appointment or special power of attorney;
"b. Clearances of the proposed representative or agent from NBI;
"c. A sworn or verified statement by the designating or appointing person or
company assuming full responsibility for all acts of the agent or
representative done in connection with the recruitment and placement of
workers.
"Approval by the Administration of the appointment or designation does not
authorize the agent or representative to establish a branch or extension
office of the licensed agency represented.
"Any revocation or amendment in the appointment should be communicated
to the Administration. Otherwise, the designation or appointment shall be
deemed as not revoked or amended.
The claim that appellant did not categorically represent herself as a licensed
recruiter, or that she merely helped the complainants secure tourist visas,
could not make her less guilty of illegal recruitment,[53] it being enough that
he or she gave the impression of having had the authority to recruit workers
for deployment abroad.[54]
The fact that, with the exception of the cases involving Cherry Pi-ay and
Corazon del Rosario, only the complainant in each of the cases, have
testified against appellant in the illegal recruitment cases does not thereby
make the case for the prosecution weak. The rule has always been that the
testimony of witnesses is to be weighed, not that the witnesses be
numbered, and it is not an uncommon experience to have a conclusion of
guilt reached on the basis of the testimony of a single witness.[55]
Corroborative evidence is necessary only when there are reasons to warrant
the suspicion that the witness has perjured himself or that his observations
have veered from the truth.[56]
The absence of receipts to evidence payment to an indictee in a criminal
case for illegal recruitment does not warrant an acquittal of the accused, and
it is not necessarily fatal to the prosecution's cause. As long as the
prosecution is able to establish through credible testimonial evidence that the
accused has involved himself in an act of illegal recruitment, a conviction for
the offense can very well be justified.[57]
Altogether, the evidence against appellant has established beyond any
discernible shadow of doubt that appellant is indeed guilty of illegal
recruitment on various counts. Being neither a licensee nor a holder of
authority to recruit, appellant must suffer under Article 39(c) of the Labor
Code the penalty of imprisonment of not less than four years nor more than
eight years or a fine of not less than P20,000.00 nor more than P100,000.00
or both such imprisonment and fine, at the discretion of the court. In imposing
the penalty, the provisions of the Revised Penal Code on the application of
the circumstances that could modify the criminal liability of an accused
cannot be considered, these provisions being inapplicable to special
laws.[58]
Under the Indeterminate Sentence Law,[59] whenever the offense is
punishable by a special law, the court shall impose on the accused an
indeterminate sentence, "the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the
minimum term prescribed by the same."[60] Accordingly, in imposing the
penalty of four (4) years to six (6) years on appellant for each of the five
cases of illegal recruitment, the trial court has acted correctly.
Illegal recruitment is committed in large scale if it is perpetrated against three
or more persons "individually or as a group." Its requisites are that: (1) the
person charged with the crime must have undertaken recruitment activities
as so defined by law, (2) the same person does not have a license or
authority to do that, and (3) the questioned act is committed against three or
more persons.[61] The prosecution has been able to successfully show that,
for a fee, appellant, not being authorized to recruit workers for abroad, did so
in Criminal Case No. 93-CR-1645 against seven complainants. For this
offense, Article 39(a) of the Labor Code imposes the penalty of life
imprisonment and a fine of one hundred thousand pesos (P100,000.00). This
penalty was thus likewise aptly meted out upon appellant by the trial court.
Conviction for these various offenses under the Labor Code does not bar the
punishment of the offender for estafa. Illegal recruitment is a malum
prohibitum offense where criminal intent of the accused is not necessary for
conviction while estafa is malum in se which requires criminal intent to
warrant conviction.[62] Under Article 315, paragraph 2(a),[63] of the Revised
Penal Code, the elements of the offense (estafa) are that (1) the accused
has defrauded another by abuse of confidence or by means of deceit and (2)
damage or prejudice capable of pecuniary estimation is caused to the
offended party or third person.[64] Clearly, these elements have sufficiently
been shown in the cases under review.
The penalty for the crime is prescribed by Article 315, first to fourth
paragraphs, of the Revised Penal Code as follows:
1st. The penalty of prision correccional in its maximum period to prision
mayor in its minimum period, if the amount of the fraud is over 12,000 pesos
but does not exceed 22,000 pesos, and if such amount exceeds the latter
sum, the penalty provided in this paragraph shall be imposed in its maximum
period, adding one year for each additional 10,000 pesos; but the total
penalty which may be imposed shall not exceed twenty years. 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.
2nd. The penalty of prision correccional in its minimum and medium periods,
if the amount of the fraud is over 6,000 pesos but does not exceed 12,000
pesos;
"3rd. The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period if such amount is over 200 pesos but does
not exceed 6,000 pesos; and
"4th. By arresto mayor in its maximum period, if such amount does not
exceed 200 pesos, provided that in the four cases mentioned, the fraud be
committed by any of the following means: x x x."
In the case of People vs. Gabres,[65] the Court has had occasion to so state
that -
"Under the Indeterminate Sentence Law, the maximum term of the penalty
shall be `that which, in view of the attending circumstances, could be
properly imposed' under the Revised Penal Code, and the minimum shall be
`within the range of the penalty next lower to that prescribed' for the offense.
The penalty next lower should be based on the penalty prescribed by the
Code for the offense, without first considering any modifying circumstance
attendant to the commission of the crime. The determination of the minimum
penalty is left by law to the sound discretion of the court and it can be
anywhere within the range of the penalty next lower without any reference to
the periods into which it might be subdivided. The modifying circumstances
are considered only in the imposition of the maximum term of the
indeterminate sentence.
"The fact that the amounts involved in the instant case exceed P22,000.00
should not be considered in the initial determination of the indeterminate
penalty; instead, the matter should be so taken as analogous to modifying
circumstances in the imposition of the maximum term of the full
indeterminate sentence. This interpretation of the law accords with the rule
that penal laws should be construed in favor of the accused. Since the
penalty prescribed by law for the estafa charge against accused-appellant is
prision correccional maximum to prision mayor minimum, the penalty next
lower would then be prision correccional minimum to medium. Thus, the
minimum term of the indeterminate sentence should be anywhere within six
(6) months and one (1) day to four (4) years and two (2) months x x x."[66]
The Court reiterates the above rule; however, in fixing the maximum term,
the prescribed penalty of prision correccional maximum period to prision
mayor minimum period should be divided into "three equal portions of time,"
each of which portion shall be deemed to form one period; hence -
Minimum Period Medium Period Maximum Period
From 4 years, 2 months From 5 years, 5 months From 6 years, 8 months
and 1 day to 5 years, and 11 days to 6 years, and 21 days to 8 years
5 months and 10 days 8 months and 20 days -
in consonance with Article 65,[67] in relation to Article 64,[68] of the Revised
Penal Code.
When the amount involved in the offense exceeds P22,000.00, the penalty
prescribed in Article 315 of the Code "shall be imposed in its maximum
period," adding one year for each additional P10,000.00 although the total
penalty which may be imposed shall not exceed 20 years. The maximum
penalty should then be termed as prision mayor or reclusion temporal as the
case may be. In fine, the one year period, whenever applicable, shall be
added to the maximum period of the principal penalty of anywhere from 6
years, 8 months and 21 days to 8 years.
Accordingly, with respect to the cases of estafa filed by the complainants
who individually charged appellant with illegal recruitment, the applicable
penalties would, respectively, be, as follows:
In Criminal Case No. 92-CR-1397 where appellant defrauded Francisco T.
Labadchan in the amount of P45,000.00, two years for the additional amount
of P23,000.00 in excess of P22,000.00 provided for in Article 315 shall be
added to the maximum period of the prescribed penalty of prision
correccional maximum to prision mayor minimum (or added to anywhere
from 6 years, 8 months and 21 days to 8 years). As such, aside from paying
Labadchan the amount of P45,000.00 by way of actual damages, the Court
deems it proper to sentence appellant to the indeterminate penalty of three
(3) years, six (6) months and twenty-one (21) days of prision correccional
medium to eight (8) years, eight (8) months and twenty-one (21) days of
prision mayor medium.
In Criminal Case No. 92-CR-1414, appellant defrauded Victoria Asil in the
amount of P15,000.00. Hence, aside from paying Victoria Asil the amount of
P15,000.00 by way of actual damages, appellant shall also suffer the
indeterminate penalty of one (1) year, eight (8) months and twenty-one (21)
days of prision correccional medium to five (5) years, five (5) months and
eleven (11) days of prision correccional maximum.
In Criminal Case No. 92-CR-1415 where appellant defrauded Cherry Pi-ay in
the amount of P18,000.00, appellant, besides paying Cherry Pi-ay that
amount by way of actual damages, shall also suffer the indeterminate penalty
of one (1) year, eight (8) months and twenty-one (21) days of prision
correccional minimum to five (5) years, five (5) months and eleven (11) days
of prision correccional maximum.
In Criminal Case No. 92-CR-1426 where appellant defrauded Corazon del
Rosario in the amount of P40,000.00, appellant shall suffer the indeterminate
penalty of two (2) years, four (4) months and one (1) day of prision
correccional medium to seven (7) years, eight (8) months and twenty-one
(21) days of prision mayor minimum.
In Criminal Case No. 92-CR-1428 where appellant fraudulently solicited the
amount of P24,200.00 from Arthur Juan, appellant shall pay him actual
damages in that amount and shall suffer the indeterminate penalty of from
one (1) year, eight (8) months and twenty-one (21) days (imposed by the
court a quo) of prision correccional minimum period to six (6) years, eight (8)
months and twenty-one (21) days of prision mayor minimum.
In Criminal Case No. 92-CR-1652 where appellant defrauded Adeline
Tiangge the amount of P18,500.00, appellant shall pay her the same amount
as actual damages and shall suffer the indeterminate penalty of from one (1)
year, eight (8) months and twenty-one (21) days of prision correccional
minimum to five (5) years, five (5) months and eleven (11) days of prision
correccional maximum.
In Criminal Case No. 93-CR-1645, the prosecution has successfully
established its case against appellant for illegal recruitment in large scale.
Evidently banking on her reputation in the community as a job recruiter,
appellant was able to make the seven complainants believe that they could
land various jobs in Taiwan. Confident of her assurances, each complainant
parted with P25,000.00 for supposed processing and placement fees.
It would appear that of the seven complainants for illegal recruitment in large
scale, only five[69] of them filed separate charges of estafa against appellant.
Accordingly, appellant was only and could only be held liable for five counts
of estafa arising from the charge of illegal recruitment in large scale. Since
appellant collected the amount of P25,000.00 from each of the five (5)
victims, she must be held subject to the penalty in its maximum period or
prision mayor in its minimum period (not any higher on account of the fact
that the amount in excess of P22,000.00 provided for by Article 315 of the
Revised Penal Code is less than P10,000.00).[70] Applying the
Indeterminate Sentence Law, and there being no attending circumstances,
appellant shall bear, the indeterminate penalty of one (1) year, eight (8)
months and twenty-one (21) days of prision correccional medium as
minimum penalty to six (6) years, eight (8) months and twenty-one (21) days
of prision mayor minimum as maximum penalty for each offense. In addition,
appellant should pay the five (5) victims the amount of P25,000.00 each as
actual damages.
The actual damages awarded here shall be subject to diminution or
cancellation should it be shown that appellant had already paid the
complainants.
WHEREFORE, the Decision finding appellant guilty beyond reasonable
doubt of the crimes of illegal recruitment, illegal recruitment in large scale
and estafa is hereby AFFIRMED subject to the modifications hereunder
specified, and only to the extent thereof, in the following cases:
1) In Criminal Case No. 92-CR-1397, accused-appellant is sentenced to an
indeterminate penalty of imprisonment of from three (3) years, six (6) months
and twenty-one (21) days of prision correccional medium period as
MINIMUM, to eight (8) years, eight (8) months and twenty-one (21) days of
prision mayor medium period as MAXIMUM and to pay Francisco T.
Labadchan the amount of P45,000.00 by way of actual damages.
2) In Criminal Case No. 92-CR-1414, accused-appellant is sentenced to an
indeterminate penalty of from one (1) year, eight (8) months and twenty-one
(21) days of prision correccional minimum period as MINIMUM, to five (5)
years, five (5) months and eleven (11) days of prision correccional maximum
period as MAXIMUM and to pay Victoria Asil the amount of P15,000.00 by
way of actual damages.
3) In Criminal Case No. 92-CR-1415, accused-appellant is sentenced to an
indeterminate penalty of from one (1) year, eight (8) months and twenty-one
(21) days of prision correccional minimum period as MINIMUM, to five (5)
years, five (5) months and eleven (11) days of prision correccional maximum
period as MAXIMUM.
4) In Criminal Case No. 92-CR-1426, accused-appellant is sentenced to an
indeterminate penalty of imprisonment of from two (2) years, four (4) months
and one (1) day of prision correccional medium period as MINIMUM, to
seven (7) years, eight (8) months and twenty-one (21) days of prision mayor
minimum period as MAXIMUM.
5) In Criminal Case No. 92-CR-1428, accused-appellant is sentenced to an
indeterminate penalty of from one (1) year, eight (8) months and twenty-one
(21) days of prision correccional minimum period as MINIMUM, to six (6)
years, eight (8) months and twenty-one (21) days of prision mayor minimum
period as MAXIMUM.
6) In Criminal Case No. 93-CR-1644, accused-appellant is sentenced to an
indeterminate penalty of from one (1) year, eight (8) months and twenty-one
(21) days of prision correccional minimum period as MINIMUM, to six (6)
years, eight (8) months and twenty-one (21) days of prision mayor minimum
period as MAXIMUM and to pay Alfredo Arcega the amount of P25,000.00 by
way of actual damages.
7) In Criminal Case No. 93-CR-1646, accused-appellant is sentenced to an
indeterminate penalty of from one (1) year, eight (8) months and twenty-one
(21) days of prision correccional minimum period as MINIMUM, to six (6)
years, eight (8) months and twenty-one (21) days of prision mayor minimum
period as MAXIMUM and to pay Brando Salbino the amount of P25,000.00
by way of actual damages.
8) In Criminal Case No. 93-CR-1647, accused-appellant is sentenced to an
indeterminate penalty of from one (1) year, eight (8) months and twenty-one
(21) days of prision correccional minimum period as MINIMUM, to six (6)
years, eight (8) months and twenty-one (21) days of prision mayor minimum
period as MAXIMUM and to pay Mariano Damolog the amount of P25,000.00
by way of actual damages.
9) In Criminal Case No. 93-CR-1649, accused-appellant is sentenced to an
indeterminate penalty of from one (1) year, eight (8) months and twenty-one
(21) days of prision correccional minimum period as MINIMUM, to six (6)
years, eight (8) months and twenty-one (21) days of prision mayor minimum
period as MAXIMUM and to pay Lorenzo Belino the amount of P25,000.00
by way of actual damages.
10) In Criminal Case No. 93-CR-1651, accused-appellant is sentenced to an
indeterminate penalty of from one (1) year, eight (8) months and twenty-one
(21) days of prision correccional minimum period as MINIMUM, to six (6)
years, eight (8) months and twenty-one (21) days of prision mayor minimum
period as MAXIMUM and to pay Peter Arcega the amount of P25,000.00 by
way of actual damages.
11) In Criminal Case No. 92-CR-1652, accused-appellant is sentenced to an
indeterminate penalty of from one (1) year, eight (8) months and twenty-one
(21) days of prision correccional minimum period as MINIMUM, to five (5)
years, five (5) months and eleven (11) days of prision correccional maximum
period as MAXIMUM and to pay Adeline Tiangge the amount of P17,000.00
by way of actual damages.
The awards of damages in Criminal Cases No. 92-CR-1396, No. 92-CR-
1413, No. 92-CR-1416, No. 92-CR-1425, and No. 92-CR-1427, all for illegal
recruitment, as well as No. 93-CR-1645 for illegal recruitment in large scale,
except for the award of P25,000.00 by way of actual damages to Dember
Leon (no estafa case having been instituted), are DELETED, either because
similar awards have already been provided for by the trial court, or for
insufficiency of proof, in the estafa cases aforenumbered.
Costs against accused-appellant.
SO ORDERED.
Davide, Jr., Bellosillo, Panganiban, and Quisumbing, JJ., concur.
G.R. No. 93028 July 29, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARTIN SIMON y SUNGA, respondent.
The Solicitor General for plaintiff-appellee.
Ricardo M.Sampang for accused-appellant.
REGALADO, J.:
Herein accused-appellant Martin Simon y Sunga was charged on November
10, 1988 with a violation of Section 4, Article II of Republic Act
No. 6425, as amended, otherwise known as the Dangerous Drugs Act of
1972, under an indictment alleging that on or about October 22, 1988, at
Barangay Sto. Cristo, Guagua, Pampanga, he sold four tea bags of
marijuana to a Narcotics Command (NARCOM) poseur-buyer in
consideration of the sum of P40.00, which tea bags, when subjected to
laboratory examination, were found positive for marijuana.1
Eventually arraigned with the assistance of counsel on March 2, 1989, after
his rearrest following his escape from Camp Olivas, San Fernando,
Pampanga where he was temporarily detained,2 he pleaded not guilty. He
voluntarily waived his right to a pre-trial conference,3 after which trial on the
merits ensued and was duly concluded.
I
The evidence on record shows that a confidential informant, later identified
as a NARCOM operative, informed the police unit at Camp Olivas, San
Fernando, Pampanga, of the illegal drug activities of a certain "Alyas Pusa"
at Sto. Cristo, Guagua, Pampanga. Capt. Francisco Bustamante,
Commanding Officer of the 3rd Narcotics Regional Unit in the camp, then
formed a buy-bust team composed of Sgt. Buenaventura Lopez, Pfc. Virgilio
Villaruz and
Sgt. Domingo Pejoro, all members of the same unit. After securing marked
money from Bustamante, the team, together with their informant, proceeded
to Sto. Cristo after they had coordinated with the police authorities and
barangay officers thereof. When they reached the place, the confidential
informer pointed out appellant to Lopez who consequently approached
appellant and asked him if he had marijuana. Appellant answered in the
affirmative and Lopez offered to buy two tea bags. Appellant then left and,
upon returning shortly thereafter, handed to Lopez two marijuana tea bags
and Lopez gave him the marked money amounting to P40.00 as payment.
Lopez then scratched his head as a
pre-arranged signal to his companions who were stationed around ten to
fifteen meters away, and the team closed in on them. Thereupon, Villaruz,
who was the head of the back-up team, arrested appellant. The latter was
then brought by the team to the 3rd Narcotics Regional Unit at Camp Olivas
on board a jeep and he was placed under custodial investigation, with Sgt.
Pejoro as the investigator.4
Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal
that transpired between Lopez and the appellant. He also averred that he
was the one who confiscated the marijuana and took the marked money from
appellant.5
Sgt. Domingo Pejoro, for his part, declared that although he was part of the
buy-bust team, he was stationed farthest from the rest of the other members,
that is, around two hundred meters away from his companions. He did not
actually see the sale that transpired between Lopez and appellant but he saw
his teammates accosting appellant after the latter's arrest. He was likewise
the one who conducted the custodial investigation of appellant wherein the
latter was apprised of his rights to remain silent, to information and to
counsel. Appellant, however, orally waived his right to counsel.6
Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property
Seized/Confiscated" which appellant signed, admitting therein the
confiscation of four tea bags of marijuana dried leaves in his possession.
Pejoro likewise informed the court below that, originally, what he placed on
the receipt was that only one marijuana leaf was confiscated in exchange for
P20.00. However, Lopez and Villaruz corrected his entry by telling him to put
"two", instead of "one" and "40", instead of "20". He agreed to the correction
since they were the ones who were personally and directly involved in the
purchase of the marijuana and the arrest of appellant.7
Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at
5:30 p.m. of the day after the latter's apprehension, and the results were
practically normal except for his relatively high blood pressure. The doctor
also did not find any trace of physical injury on the person of appellant. The
next day, he again examined appellant due to the latter's complaint of
gastro-intestinal pain. In the course of the examination, Dr. Calara
discovered that appellant has a history of peptic ulcer, which causes him to
experience abdominal pain and consequently vomit blood. In the afternoon,
appellant came back with the same complaint but, except for the gastro-
intestinal pain, his physical condition remained normal.8
As expected, appellant tendered an antipodal version of the attendant facts,
claiming that on the day in question, at around 4:30 p.m., he was watching
television with the members of his family in their house when three persons,
whom he had never met before suddenly arrived. Relying on the assurance
that they would just inquire about something from him at their detachment,
appellant boarded a jeep with them. He was told that they were going to
Camp Olivas, but he later noticed that they were taking a different route.
While on board, he was told that he was a pusher so he attempted to alight
from the jeep but he was handcuffed instead. When they finally reached the
camp, he was ordered to sign some papers and, when he refused, he was
boxed in the stomach eight or nine times by Sgt. Pejoro. He was then
compelled to affix his signature and fingerprints on the documents presented
to him. He denied knowledge of the P20.00 or the dried marijuana leaves,
and insisted that the twenty-peso bill came from the pocket of Pejoro.
Moreover, the reason why he vomited blood was because of the blows he
suffered at the hands of Pejoro. He admitted having escaped from the
NARCOM office but claimed that he did so since he could no longer endure
the maltreatment to which he was being subjected. After escaping, he
proceeded to the house of his uncle, Bienvenido Sunga, at San Matias,
Guagua, reaching the place at around 6:30 or 7:30 p.m. There, he consulted
a quack doctor and, later, he was accompanied by his sister to the Romana
Pangan District Hospital at Floridablanca, Pampanga where he was confined
for three days.9
Appellant's brother, Norberto Simon, testified to the fact that appellant was
hospitalized at Floridablanca, Pampanga after undergoing abdominal pain
and vomiting of blood. He likewise confirmed that appellant had been
suffering from peptic ulcer even before the latter's arrest.10 Also, Dr. Evelyn
Gomez-Aguas, a resident physician of Romana Pangan District Hospital,
declared that she treated appellant for three days due to abdominal pain, but
her examination revealed that the cause for this ailment was appellant's
peptic ulcer. She did not see any sign of slight or serious external injury,
abrasion or contusion on his body.11
On December 4, 1989, after weighing the evidence presented, the trial court
rendered judgment convicting appellant for a violation of Section 4, Article II
of Republic Act No. 6425, as amended, and sentencing him to suffer the
penalty of life imprisonment, to pay a fine of twenty thousand pesos and to
pay the costs. The four tea bags of marijuana dried leaves were likewise
ordered confiscated in favor of the Government.12
Appellant now prays the Court to reverse the aforementioned judgment of the
lower court, contending in his assignment of errors that the latter erred in (1)
not upholding his defense of "frame-up", (2) not declaring Exhibit "G"
(Receipt of Property Seized/Confiscated) inadmissible in evidence, and (3)
convicting him of a violation of the Dangerous Drugs Act.13
At the outset, it should be noted that while the People's real theory and
evidence is to the effect the appellant actually sold only two tea bags of
marijuana dried leaves, while the other two tea bags were merely confiscated
subsequently from his possession,14 the latter not being in any way
connected with the sale, the information alleges that he sold and delivered
four tea bags of marijuana dried leaves.15 In view thereof, the issue
presented for resolution in this appeal is merely the act of selling the two tea
bags allegedly committed by appellant, and does not include the disparate
and distinct issue of illegal possession of the other two tea bags which
separate offense is not charged herein.16
To sustain a conviction for selling prohibited drugs, the sale must be clearly
and unmistakably established.17 To sell means to give, whether for money
or any other material consideration.18 It must, therefore, be established
beyond doubt that appellant actually sold and delivered two tea bags of
marijuana dried leaves to Sgt. Lopez, who acted as the poseur-buyer, in
exchange for two twenty-peso bills.
After an assiduous review and calibration of the evidence adduced by both
parties, we are morally certain that appellant was caught in flagrante delicto
engaging in the illegal sale of prohibited drugs. The prosecution was able to
prove beyond a scintilla of doubt that appellant, on October 22, 1988, did sell
two tea bags of marijuana dried leaves to Sgt. Lopez. The latter himself
creditably testified as to how the sale took place and his testimony was
amply corroborated by his teammates. As between the straightforward,
positive and corroborated testimony of Lopez and the bare denials and
negative testimony of appellant, the former undeniably deserves greater
weight and is more entitled to credence.
We are aware that the practice of entrapping drug traffickers through the
utilization of poseur-buyers is susceptible to mistake, harassment, extortion
and abuse.19 Nonetheless, such causes for judicial apprehension and doubt
do not obtain in the case at bar. Appellant's entrapment and arrest were not
effected in a haphazard way, for a surveillance was conducted by the team
before the
buy-bust operation was effected.20 No ill motive was or could be attributed to
them, aside from the fact that they are presumed to have regularly performed
their official duty.21 Such lack of dubious motive coupled with the
presumption of regularity in the performance of official duty, as well as the
findings of the trial court on the credibility of witnesses, should prevail over
the self-serving and uncorroborated claim of appellant of having been
framed,22 erected as it is upon the mere shifting sands of an alibi. To top it
all, appellant was caught
red-handed delivering prohibited drugs, and while there was a delimited
chance for him to controvert the charge, he does not appear to have
plausibly done so.
When the drug seized was submitted to the Crime Laboratory Service of the
then Philippine Constabulary-Integrated National Police (PC-INP) at Camp
Olivas for examination, P/Cpl. Marlyn Salangad, a forensic chemist
therein,23 confirmed in her Technical Report No. NB-448-88 that the
contents of the four tea bags confiscated from appellant were positive for and
had a total weight of 3.8 grams of marijuana.24 Thus, the corpus delicti of the
crime had been fully proved with certainty and conclusiveness.25
Appellant would want to make capital of the alleged inconsistencies and
improbabilities in the testimonies of the prosecution witnesses. Foremost,
according to him, is the matter of who really confiscated the marijuana tea
bags from him since, in open court, Pejoro asserted that he had nothing to do
with the confiscation of the marijuana, but in the aforementioned "Receipt of
Property Seized/Confiscated," he signed it as the one who seized the
same.26
Suffice it to say that whether it was Villaruz or Pejoro who confiscated the
marijuana will not really matter since such is not an element of the offense
with which appellant is charged. What is unmistakably clear is that the
marijuana was confiscated from the possession of appellant. Even, assuming
arguendo that the prosecution committed an error on who actually seized the
marijuana from appellant, such an error or discrepancy refers only to a minor
matter and, as such, neither impairs the essential integrity of the prosecution
evidence as a whole nor reflects on the witnesses' honesty.27 Besides, there
was clearly a mere imprecision of language since Pejoro obviously meant
that he did not take part in the physical taking of the drug from the person of
appellant, but he participated in the legal seizure or confiscation thereof as
the investigator of their unit.
Next, appellant adduces the argument that the twenty-peso bills allegedly
confiscated from him were not powdered for finger-printing purposes contrary
to the normal procedure in buy-bust operations.28 This omission has been
satisfactorily explained by Pfc. Virgilio Villaruz in his testimony, as follows:
Q: Is it the standard operating procedure of your unit that in conducting
such operation you do not anymore provide a powder (sic) on the object so
as to determine the thumbmark or identity of the persons taking hold of the
object?
A: We were not able to put powder on these denominations because
we are lacking that kind of material in our office since that item can be
purchased only in Manila and only few are producing that, sir.
xxx xxx xxx
Q: Is it not a fact that your office is within (the) P.C. Crime Laboratory,
CIS, as well as the office of NICA?
A: Our office is only adjacent to those offices but we cannot make a
request for that powder because they, themselves, are using that in their own
work, sir.29
The foregoing explanation aside, we agree that the failure to mark the money
bills used for entrapment purposes can under no mode of rationalization be
fatal to the case of the prosecution because the Dangerous Drugs Act
punishes "any person who, unless authorized by law, shall sell, administer,
deliver, give away to another, distribute, dispatch in transit or transport any
prohibited drug, or shall act as a broker in any of such transactions."30 The
dusting of said bills with phosphorescent powder is only an evidentiary
technique for identification purposes, which identification can be supplied by
other species of evidence.
Again, appellant contends that there was neither a relative of his nor any
barangay official or civilian to witness the seizure. He decries the lack of
pictures taken before, during and after his arrest. Moreover, he was not
reported to or booked in the custody of any barangay official or police
authorities.31 These are absurd disputations. No law or jurisprudence
requires that an arrest or seizure, to be valid, be witnessed by a relative, a
barangay official or any other civilian, or be accompanied by the taking of
pictures. On the contrary, the police enforcers having caught appellant in
flagrante delicto, they were not only authorized but were also under the
obligation to effect a warrantless arrest and seizure.
Likewise, contrary to appellant's contention, there was an arrest report
prepared by the police in connection with his apprehension. Said Booking
Sheet and Arrest Report32 states, inter alia, that "suspect was arrested for
selling two tea bags of suspected marijuana dried leaves and the
confiscation of another two tea bags of suspected marijuana dried leaves."
Below these remarks was affixed appellant's signature. In the same manner,
the receipt for the seized property, hereinbefore mentioned, was signed by
appellant wherein he acknowledged the confiscation of the marked bills from
him.33
However, we find and hereby declare the aforementioned exhibits
inadmissible in evidence. Appellant's conformance to these documents are
declarations against interest and tacit admissions of the crime charged. They
were obtained in violation of his right as a person under custodial
investigation for the commission of an offense, there being nothing in the
records to show that he was assisted by counsel.34 Although appellant
manifested during the custodial investigation that he waived his right to
counsel, the waiver was not made in writing and in the presence of
counsel,35 hence whatever incriminatory admission or confession may be
extracted from him, either verbally or in writing, is not allowable in
evidence.36 Besides, the arrest report is self-serving and hearsay and can
easily be concocted to implicate a suspect.
Notwithstanding the objectionability of the aforesaid exhibits, appellant
cannot thereby be extricated from his predicament since his criminal
participation in the illegal sale of marijuana has been sufficiently proven. The
commission of the offense of illegal sale of prohibited drugs requires merely
the consummation of the selling transaction37 which happens the moment
the buyer receives the drug from the seller.38 In the present case, and in
light of the preceding discussion, this sale has been ascertained beyond any
peradventure of doubt.
Appellant then asseverates that it is improbable that he would sell marijuana
to a total stranger.39 We take this opportunity to once again reiterate the
doctrinal rule that drug-pushing, when done on a small scale as in this case,
belongs to that class of crimes that may be committed at any time and in any
place.40 It is not contrary to human experience for a drug pusher to sell to a
total stranger,41 for what matters is not an existing familiarity between the
buyer and seller but their agreement and the acts constituting the sale and
delivery of the marijuana leaves.42 While there may be instances where
such sale could be improbable, taking into consideration the diverse
circumstances of person, time and place, as well as the incredibility of how
the accused supposedly acted on that occasion, we can safely say that those
exceptional particulars are not present in this case.
Finally, appellant contends that he was subjected to physical and mental
torture by the arresting officers which caused him to escape from Camp
Olivas the night he was placed under custody.43 This he asserts to support
his explanation as to how his signatures on the documents earlier discussed
were supposedly obtained by force and coercion.
The doctrine is now too well embedded in our jurisprudence that for evidence
to be believed, it must not only proceed from the mouth of a credible witness
but must be credible in itself such as the common experience and
observation of mankind can approve as probable under the circumstances.44
The evidence on record is bereft of any support for appellant's allegation of
maltreatment. Two doctors, one for the prosecution45 and the other for the
defense,46 testified on the absence of any tell-tale sign or indication of bodily
injury, abrasions or contusions on the person of appellant. What is evident is
that the cause of his abdominal pain was his peptic ulcer from which he had
been suffering even before his arrest.47 His own brother even corroborated
that fact, saying that appellant has had a history of bleeding peptic ulcer.48
Furthermore, if it is true that appellant was maltreated at Camp Olivas, he
had no reason whatsoever for not divulging the same to his brother who went
to see him at the camp after his arrest and during his detention there.49
Significantly, he also did not even report the matter to the authorities nor file
appropriate charges against the alleged malefactors despite the opportunity
to do so50 and with the legal services of counsel being available to him.
Such omissions funnel down to the conclusion that appellant's story is a pure
fabrication.
These, and the events earlier discussed, soundly refute his allegations that
his arrest was baseless and premeditated for the NARCOM agents were
determined to arrest him at all costs.51 Premeditated or not, appellant's
arrest was only the culmination, the final act needed for his isolation from
society and it was providential that it came about after he was caught in the
very act of illicit trade of prohibited drugs. Accordingly, this opinion could
have concluded on a note of affirmance of the judgment of the trial court.
However, Republic Act No. 6425, as amended, was further amended by
Republic Act No. 7659 effective December 31, 1993,52 which supervenience
necessarily affects the original disposition of this case and entails additional
questions of law which we shall now resolve.
II
The provisions of the aforesaid amendatory law, pertinent to the adjudication
of the case at bar, are to this effect:
Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No.
6425, as amended, known as the Dangerous Drugs Act of 1972, are hereby
amended to read as follows:
xxx xxx xxx
Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of
Prohibited Drugs. — The penalty of reclusion perpetua to death and a fine
ranging from five hundred thousand pesos to ten million pesos shall be
imposed upon any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any of such
transactions.
xxx xxx xxx
Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended,
known as the Dangerous Drugs Act of 1972, is hereby amended to read as
follows:
Sec. 20. Application of Penalties, Confiscation and Forfeiture of the
Proceeds or Instrument of the Crime. — The penalties for offenses under
Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of
Article III of this Act shall be applied if the dangerous drugs involved is in any
of the following quantities:
xxx xxx xxx
5. 750 grams or more of indian hemp or marijuana
xxx xxx xxx
Otherwise, if the quantity involved is less than the foregoing quantities, the
penalty shall range from prision correccional to reclusion perpetua depending
upon the quantity.
1. Considering that herein appellant is being prosecuted for the sale of
four tea bags of marijuana with a total weight of only 3.8 grams and, in fact,
stands to be convicted for the sale of only two of those tea bags, the initial
inquiry would be whether the patently favorable provisions of Republic Act
No. 7659 should be given retroactive effect to entitle him to the lesser penalty
provided thereunder, pursuant to Article 22 of the Revised Penal Code.
Although Republic Act No. 6425 was enacted as a special law, albeit
originally amendatory and in substitution of the previous Articles 190 to 194
of the Revised Penal Code,53 it has long been settled that by force of Article
10 of said Code the beneficient provisions of Article 22 thereof applies to and
shall be given retrospective effect to crimes punished by special laws.54 The
execution in said article would not apply to those convicted of drug offenses
since habitual delinquency refers to convictions for the third time or more of
the crimes of serious or less serious physical injuries, robo, hurto, estafa or
falsification.55
Since, obviously, the favorable provisions of Republic Act No. 7659 could
neither have then been involved nor invoked in the present case, a corollary
question would be whether this court, at the present stage, can
sua sponte apply the provisions of said Article 22 to reduce the penalty to be
imposed on appellant. That issue has likewise been resolved in the cited
case of People vs. Moran, et al., ante., thus:
. . . . The plain precept contained in article 22 of the Penal Code, declaring
the retroactivity of penal laws in so far as they are favorable to persons
accused of a felony, would be useless and nugatory if the courts of justice
were not under obligation to fulfill such duty, irrespective of whether or not
the accused has applied for it, just as would also all provisions relating to the
prescription of the crime and the penalty.
If the judgment which could be affected and modified by the reduced
penalties provided in Republic Act No. 7659 has already become final and
executory or the accused is serving sentence thereunder, then practice,
procedure and pragmatic considerations would warrant and necessitate the
matter being brought to the judicial authorities for relief under a writ of
habeas corpus.56
2. Probably through oversight, an error on the matter of imposable
penalties appears to have been committed in the drafting of the aforesaid
law; thereby calling for and necessitating judicial reconciliation and
craftsmanship.
As applied to the present case, Section 4 of Republic Act No. 6425, as now
further amended, imposes the penalty of reclusion perpetua to death and a
fine ranging from P500,000.00 to P10,000,000.00 upon any person who shall
unlawfully sell, administer, deliver, give away, distribute, dispatch in transit or
transport any prohibited drug. That penalty, according to the amendment to
Section 20 of the law, shall be applied if what is involved is 750 grams or
more of indian hemp or marijuana; otherwise, if the quantity involved is less,
the penalty shall range from prision correccional to reclusion perpetua
depending upon the quantity.
In other words, there is here an overlapping error in the provisions on the
penalty of reclusion perpetua by reason of its dual imposition, that is, as the
maximum of the penalty where the marijuana is less than 750 grams, and
also as the minimum of the penalty where the marijuana involved is 750
grams or more. The same error has been committed with respect to the other
prohibited and regulated drugs provided in said Section 20. To harmonize
such conflicting provisions in order to give effect to the whole law,57 we
hereby hold that the penalty to be imposed where the quantity of the drugs
involved is less than the quantities stated in the first paragraph shall range
from prision correccional to reclusion temporal, and not reclusion perpetua.
This is also concordant with the fundamental rule in criminal law that all
doubts should be construed in a manner favorable to the accused.
3. Where, as in this case, the quantity of the dangerous drug is only 3.8
grams, hence covered by the imposable range of penalties under the second
paragraph of Section 20, as now modified, the law provides that the penalty
shall be taken from said range "depending upon the quantity" of the drug
involved in the case. The penalty in said second paragraph constitutes a
complex one composed of three distinct penalties, that is, prision
correccional, prision mayor, and reclusion temporal. In such a situation, the
Code provides that each one shall form a period, with the lightest of them
being the minimum, the next as the medium, and the most severe as the
maximum period.58
Ordinarily, and pursuant to Article 64 of the Code, the mitigating and
aggravating circumstances determine which period of such complex penalty
shall be imposed on the accused. The peculiarity of the second paragraph of
Section 20, however, is its specific mandate, above quoted, that the penalty
shall instead depend upon the quantity of the drug subject of the criminal
transaction.59 Accordingly, by way of exception to Article 77 of the Code and
to subserve the purpose of Section 20 of Republic Act No. 7659, each of the
aforesaid component penalties shall be considered as a principal imposable
penalty depending on the quantity of the drug involved. Thereby, the
modifying circumstances will not altogether be disregarded. Since each
component penalty of the total complex penalty will have to be imposed
separately as determined by the quantity of the drug involved, then the
modifying circumstances can be used to fix the proper period of that
component penalty, as shall hereafter be explained.
It would, therefore, be in line with the provisions of Section 20 in the context
of our aforesaid disposition thereon that, unless there are compelling reasons
for a deviation, the quantities of the drugs enumerated in its second
paragraph be divided into three, with the resulting quotient, and double or
treble the same, to be respectively the bases for allocating the penalty
proportionately among the three aforesaid periods according to the severity
thereof. Thus, if the marijuana involved is below 250 grams, the penalty to be
imposed shall be prision correccional; from 250 to 499 grams, prision mayor;
and 500 to
749 grams, reclusion temporal. Parenthetically, fine is imposed as a
conjunctive penalty only if the penalty is reclusion perpetua to death.60
Now, considering the minimal quantity of the marijuana subject of the case at
bar, the penalty of prision correccional is consequently indicated but, again,
another preliminary and cognate issue has first to be resolved.
4. Prision correccional has a duration of 6 months and 1 day to 6 years
and, as a divisible penalty, it consists of three periods as provided in the text
of and illustrated in the table provided by Article 76 of the Code. The question
is whether or not in determining the penalty to be imposed, which is here to
be taken from the penalty of prision correccional, the presence or absence of
mitigating, aggravating or other circumstances modifying criminal liability
should be taken into account.
We are not unaware of cases in the past wherein it was held that, in
imposing the penalty for offenses under special laws, the rules on mitigating
or aggravating circumstances under the Revised Penal Code cannot and
should not be applied. A review of such doctrines as applied in said cases,
however, reveals that the reason therefor was because the special laws
involved provided their own specific penalties for the offenses punished
thereunder, and which penalties were not taken from or with reference to
those in the Revised Penal Code. Since the penalties then provided by the
special laws concerned did not provide for the minimum, medium or
maximum periods, it would consequently be impossible to consider the
aforestated modifying circumstances whose main function is to determine the
period of the penalty in accordance with the rules in Article 64 of the Code.
This is also the rationale for the holding in previous cases that the provisions
of the Code on the graduation of penalties by degrees could not be given
supplementary application to special laws, since the penalties in the latter
were not components of or contemplated in the scale of penalties provided
by Article 71 of the former. The suppletory effect of the Revised Penal Code
to special laws, as provided in Article 10 of the former, cannot be invoked
where there is a legal or physical impossibility of, or a prohibition in the
special law against, such supplementary application.
The situation, however, is different where although the offense is defined in
and ostensibly punished under a special law, the penalty therefor is actually
taken from the Revised Penal Code in its technical nomenclature and,
necessarily, with its duration, correlation and legal effects under the system
of penalties native to said Code. When, as in this case, the law involved
speaks of prision correccional, in its technical sense under the Code, it would
consequently be both illogical and absurd to posit otherwise. More on this
later.
For the nonce, we hold that in the instant case the imposable penalty under
Republic Act No. 6425, as amended by Republic Act No. 7659, is prision
correccional, to be taken from the medium period thereof pursuant to Article
64 of the Revised Penal Code, there being no attendant mitigating or
aggravating circumstance.
5. At this juncture, a clarificatory discussion of the developmental
changes in the penalties imposed for offenses under special laws would be
necessary.
Originally, those special laws, just as was the conventional practice in the
United States but differently from the penalties provided in our Revised Penal
Code and its Spanish origins, provided for one specific penalty or a range of
penalties with definitive durations, such as imprisonment for one year or for
one to five years but without division into periods or any technical statutory
cognomen. This is the special law contemplated in and referred to at the time
laws like the Indeterminate Sentence Law61 were passed during the
American regime.
Subsequently, a different pattern emerged whereby a special law would
direct that an offense thereunder shall be punished under the Revised Penal
Code and in the same manner provided therein. Inceptively, for instance,
Commonwealth Act No. 30362 penalizing non-payment of salaries and
wages with the periodicity prescribed therein, provided:
Sec. 4. Failure of the employer to pay his employee or laborer as required by
section one of this Act, shall prima facie be considered a fraud committed by
such employer against his employee or laborer by means of false pretenses
similar to those mentioned in article three hundred and fifteen, paragraph
four, sub-paragraph two (a) of the Revised Penal Code and shall be
punished in the same manner as therein provided.63
Thereafter, special laws were enacted where the offenses defined therein
were specifically punished by the penalties as technically named and
understood in the Revised Penal Code. These are exemplified by Republic
Act No. 1700 (Anti-Subversion Act) where the penalties ranged from arresto
mayor to
death;64 Presidential Decree No. 1612 (Anti-Fencing Decree) where the
penalties run from arresto mayor to prision mayor; and Presidential Decree
No. 1866 (illegal possession and other prohibited acts involving firearms), the
penalties wherefor may involve prision mayor, reclusion temporal, reclusion
perpetua or death.
Another variant worth mentioning is Republic Act No. 6539
(Anti-Carnapping Act of 1972) where the penalty is imprisonment for not less
than 14 years and 8 months and not more than 17 years and 4 months, when
committed without violence or intimidation of persons or force upon things;
not less than 17 years and 4 months and not more than 30 years, when
committed with violence against or intimidation of any person, or force upon
things; and life imprisonment to death, when the owner, driver or occupant of
the carnapped vehicle is killed.
With respect to the first example, where the penalties under the special law
are different from and are without reference or relation to those under the
Revised Penal Code, there can be no suppletory effect of the rules for the
application of penalties under said Code or by other relevant statutory
provisions based on or applicable only to said rules for felonies under the
Code. In this type of special law, the legislative intendment is clear.
The same exclusionary rule would apply to the last given example, Republic
Act No. 6539. While it is true that the penalty of 14 years and
8 months to 17 years and 4 months is virtually equivalent to the duration of
the medium period of reclusion temporal, such technical term under the
Revised Penal Code is not given to that penalty for carnapping. Besides, the
other penalties for carnapping attended by the qualifying circumstances
stated in the law do not correspond to those in the Code. The rules on
penalties in the Code, therefore, cannot suppletorily apply to Republic Act
No. 6539 and special laws of the same formulation.
On the other hand, the rules for the application of penalties and the
correlative effects thereof under the Revised Penal Code, as well as other
statutory enactments founded upon and applicable to such provisions of the
Code, have suppletory effect to the penalties under the former Republic Act
No. 1700 and those now provided under Presidential Decrees Nos. 1612 and
1866. While these are special laws, the fact that the penalties for offenses
thereunder are those provided for in the Revised Penal code lucidly reveals
the statutory intent to give the related provisions on penalties for felonies
under the Code the corresponding application to said special laws, in the
absence of any express or implicit proscription in these special laws. To hold
otherwise would be to sanction an indefensible judicial truncation of an
integrated system of penalties under the Code and its allied legislation, which
could never have been the intendment of Congress.
In People vs. Macatanda,65 a prosecution under a special law (Presidential
Decree No. 533, otherwise known as the Anti-Cattle Rustling Law of 1974), it
was contended by the prosecution that Article 64, paragraph 5, of the
Revised Penal Code should not apply to said special law. We said therein
that —
We do not agree with the Solicitor General that P.D. 533 is a special law
entirely distinct from and unrelated to the Revised Penal Code. From the
nature of the penalty imposed which is in terms of the classification and
duration of penalties as prescribed in the Revised Penal Code, which is not
for penalties as are ordinarily imposed in special laws, the intent seems clear
that P.D. 533 shall be deemed as an amendment of the Revised Penal Code,
with respect to the offense of theft of large cattle (Art. 310) or otherwise to be
subject to applicable provisions thereof such as Article 104 of the Revised
Penal Code . . . . Article 64 of the same Code should, likewise, be applicable,
. . . . (Emphasis supplied.)
More particularly with regard to the suppletory effect of the rules on penalties
in the Revised Penal Code to Republic Act No. 6425, in this case involving
Article 63(2) of the Code, we have this more recent pronouncement:
. . . Pointing out that as provided in Article 10 the provisions of the Revised
Penal Code shall be "supplementary" to special laws, this Court held that
where the special law expressly grants to the court discretion in applying the
penalty prescribed for the offense, there is no room for the application of the
provisions of the Code . . . .
The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains
no explicit grant of discretion to the Court in the application of the penalty
prescribed by the law. In such case, the court must be guided by the rules
prescribed by the Revised Penal Code concerning the application of
penalties which distill the "deep legal thought and centuries of experience in
the administration of criminal laws." (Emphasis ours.)66
Under the aforestated considerations, in the case of the Dangerous Drugs
Act as now amended by Republic Act No. 7659 by the incorporation and
prescription therein of the technical penalties defined in and constituting
integral parts of the three scales of penalties in the Code, 67 with much more
reason should the provisions of said Code on the appreciation and effects of
all attendant modifying circumstances apply in fixing the penalty. Likewise,
the different kinds or classifications of penalties and the rules for graduating
such penalties by degrees should have supplementary effect on Republic Act
No. 6425, except if they would result in absurdities as will now be explained.
While not squarely in issue in this case, but because this aspect is involved
in the discussion on the role of modifying circumstances, we have perforce to
lay down the caveat that mitigating circumstances should be considered and
applied only if they affect the periods and the degrees of the penalties within
rational limits.
Prefatorily, what ordinarily are involved in the graduation and consequently
determine the degree of the penalty, in accordance with the rules in Article
61 of the Code as applied to the scale of penalties in Article 71, are the stage
of execution of the crime and the nature of the participation of the accused.
However, under paragraph 5 of Article 64, when there are two or more
ordinary mitigating circumstances and no aggravating circumstance, the
penalty shall be reduced by one degree. Also, the presence of privileged
mitigating circumstances, as provided in Articles 67 and 68, can reduce the
penalty by one or two degrees, or even more. These provisions of Articles
64(5), 67 and 68 should not apply in toto in the determination of the proper
penalty under the aforestated second paragraph of section 20 of Republic
Act No. 6425, to avoid anomalous results which could not have been
contemplated by the legislature.
Thus, paragraph 5 of Article 61 provides that when the law prescribes a
penalty in some manner not specially provided for in the four preceding
paragraphs thereof, the courts shall proceed by analogy therewith. Hence,
when the penalty prescribed for the crime consists of one or two penalties to
be imposed in their full extent, the penalty next lower in degree shall likewise
consist of as many penalties which follow the former in the scale in Article 71.
If this rule were to be applied, and since the complex penalty in this
case consists of three discrete penalties in their full extent, that is,
prision correccional, prision mayor and reclusion temporal, then one degree
lower would be arresto menor, destierro and arresto mayor. There could,
however, be no further reduction by still one or two degrees, which must
each likewise consist of three penalties, since only the penalties of fine and
public censure remain in the scale.
The Court rules, therefore, that while modifying circumstances may be
appreciated to determine the periods of the corresponding penalties, or even
reduce the penalty by degrees, in no case should such graduation of
penalties reduce the imposable penalty beyond or lower than prision
correccional. It is for this reason that the three component penalties in the
second paragraph of Section 20 shall each be considered as an independent
principal penalty, and that the lowest penalty should in any event be prision
correccional in order not to depreciate the seriousness of drug offenses.
Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation
is to be adopted so that the law may continue to have efficacy rather than
fail. A perfect judicial solution cannot be forged from an imperfect law, which
impasse should now be the concern of and is accordingly addressed to
Congress.
6. The final query is whether or not the Indeterminate Sentence Law is
applicable to the case now before us. Apparently it does, since drug offenses
are not included in nor has appellant committed any act which would put him
within the exceptions to said law and the penalty to be imposed does not
involve reclusion perpetua or death, provided, of course, that the penalty as
ultimately resolved will exceed one year of imprisonment.68 The more
important aspect, however, is how the indeterminate sentence shall be
ascertained.
It is true that Section 1 of said law, after providing for indeterminate sentence
for an offense under the Revised Penal Code, states that "if the offense is
punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the
minimum term prescribed by the same." We hold that this quoted portion of
the section indubitably refers to an offense under a special law wherein the
penalty imposed was not taken from and is without reference to the Revised
Penal Code, as discussed in the preceding illustrations, such that it may be
said that the "offense is punished" under that law.
There can be no sensible debate that the aforequoted rule on indeterminate
sentence for offenses under special laws was necessary because of the
nature of the former type of penalties under said laws which were not
included or contemplated in the scale of penalties in Article 71 of the Code,
hence there could be no minimum "within the range of the penalty next lower
to that prescribed by the Code for the offense," as is the rule for felonies
therein. In the illustrative examples of penalties in special laws hereinbefore
provided, this rule applied, and would still apply, only to the first and last
examples. Furthermore, considering the vintage of Act No. 4103 as earlier
noted, this holding is but an application and is justified under the rule of
contemporanea expositio.69
We repeat, Republic Act No. 6425, as now amended by Republic Act No.
7659, has unqualifiedly adopted the penalties under the Revised Penal Code
in their technical terms, hence with their technical signification and effects. In
fact, for purposes of determining the maximum of said sentence, we
have applied the provisions of the amended Section 20 of said law to arrive
at prision correccional and Article 64 of the Code to impose the same in the
medium period. Such offense, although provided for in a special law, is now
in effect punished by and under the Revised Penal Code. Correlatively, to
determine the minimum, we must apply the first part of the aforesaid Section
1 which directs that "in imposing a prison sentence for an offense punished
by the Revised Penal Code, or its amendments, the court shall sentence the
accused to an indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be properly
imposed under the rules of said Code, and the minimum which shall be
within the range of the penalty next lower to that prescribed by the Code for
the offense." (Emphasis ours.)
A divergent pedantic application would not only be out of context but also an
admission of the hornbook maxim that qui haeret in litera haeret in cortice.
Fortunately, this Court has never gone only skin-deep in its construction of
Act. No. 4103 by a mere literal appreciation of its provisions. Thus, with
regard to the phrase in Section 2 thereof excepting from its coverage
"persons convicted of offenses punished with death penalty or life
imprisonment," we have held that what is considered is the penalty actually
imposed and not the penalty imposable under the law,70 and that reclusion
perpetua is likewise embraced therein although what the law states is "life
imprisonment".
What irresistibly emerges from the preceding disquisition, therefore, is that
under the concurrence of the principles of literal interpretation, which have
been rationalized by comparative decisions of this Court; of historical
interpretation, as explicated by the antecedents of the law and related
contemporaneous legislation; and of structural interpretation, considering the
interrelation of the penalties in the Code as supplemented by Act No. 4103 in
an integrated scheme of penalties, it follows that the minimum of the
indeterminate sentence in this case shall be the penalty next lower to that
prescribed for the offense. Thereby we shall have interpreted the seeming
ambiguity in Section 1 of Act No. 4103 in such a way as to harmonize laws
with laws, which is the best mode of interpretation.71
The indeterminate Sentence Law is a legal and social measure of
compassion, and should be liberally interpreted in favor of the accused.72
The "minimum" sentence is merely a period at which, and not before, as a
matter of grace and not of right, the prisoner may merely be allowed to serve
the balance of his sentence outside of his confinement.73 It does not
constitute the totality of the penalty since thereafter he still has to continue
serving the rest of his sentence under set conditions. That minimum is only
the period when the convict's eligibility for parole may be considered. In fact,
his release on parole may readily be denied if he is found unworthy thereof,
or his reincarceration may be ordered on legal grounds, even if he has
served the minimum sentence.
It is thus both amusing and bemusing if, in the case at bar, appellant should
be begrudged the benefit of a minimum sentence within the range of arresto
mayor, the penalty next lower to prision correccional which is the maximum
range we have fixed through the application of Articles 61 and 71 of the
Revised Penal Code. For, with fealty to the law, the court may set the
minimum sentence at 6 months of arresto mayor, instead of 6 months and 1
day of prision correccional. The difference, which could thereby even involve
only one day, is hardly worth the creation of an overrated tempest in the
judicial teapot.
ACCORDINGLY, under all the foregoing premises, the judgment of
conviction rendered by the court a quo against accused-appellant Martin
Simon y Sunga is AFFIRMED, but with the MODIFICATION that he should
be, as he hereby is, sentenced to serve an indeterminate penalty of six (6)
months of arresto mayor, as the minimum, to six (6) years of prision
correccional, as the maximum thereof.

SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Bidin, Romero, Melo, Puno, Vitug, Kapunan and
Mendoza, JJ., concur.
Bellosillo, J., is on leave.
Separate Opinions
DAVIDE, JR., J., concurring and dissenting:
I am still unable to agree with the view that (a) in appropriate cases where
the penalty to be imposed would be prision correccional pursuant to the
second paragraph of Section 20 of R.A. No. 6425, as amended by Section
17 of R.A. No. 7659, the sentence to be meted out, applying the
Indeterminate Sentence Law (Act No. 4103, as amended), should be that
whose minimum is within the range of the penalty next lower, i.e., arresto
mayor; and (b) the presence of two or more mitigating circumstances not
offset by any mitigating circumstances or of a privileged mitigating
circumstance shall not reduce the penalty by one or two degrees if the
penalty to be imposed, taking into account the quantity of the dangerous
drugs involved, would be prision correccional.
I Revised Penal Code if it is defined by it, and none other, as a crime and is
The first view is based on the proposition that since R.A. No. 7659 had
unqualifiedly adopted the penalties under the Revised Penal Code in their
technical terms, hence also their technical signification and effects, then what
should govern is the first part of Section 1 of the Indeterminate Sentence Law
which directs that:
in imposing a prison sentence for an offense punished by the Revised Penal
Code, or its amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be that which, in
view of the attending circumstances, could be properly imposed under the
rules of the said Code, and the minimum which shall be within the range of
the penalty next lower to that prescribed by the Code for the offense.
Elsewise stated, by the adoption of the penalties provided for in the Revised
Penal Code for the offenses penalized under the Dangerous Drugs Act (R.A.
No. 6425), as amended, the latter offenses would now be considered as
punished under the Revised Penal Code for purposes of the Indeterminate
Sentence Law.
Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as amended by
Act. No. 4225 and R.A. No. 4203) also provides that:
if the offense is punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which shall not
exceed the maximum fixed by said law and the minimum shall not be less
than the minimum prescribed by the same (Emphasis supplied).
There are, therefore, two categories of offenses which should be taken into
account in the application of the Indeterminate Sentence Law: (1) offenses
punished by the Revised Penal Code, and (2) offenses punished by other
laws (or special laws).
The offenses punished by the Revised Penal Code are those defined and
penalized in Book II thereof, which is thus appropriately titled CRIMES AND
PENALTIES. To simplify further, a crime is deemed punished under the
punished by a penalty which is included in the classification of Penalties in
Chapter II, Title III of Book I thereof.
On the other hand, an offense is considered punished under any other law
(or special law) if it is not defined and penalized by the Revised Penal Code
but by such other law.
It is thus clear that an offense is punished by the Revised Penal Code if both
its definition and the penalty therefor are found in the said Code, and it is
deemed punished by a special law if its definition and the penalty therefor are
found in the special law. That the latter imports or borrows from the Revised
Penal Code its nomenclature of penalties does not make an offense in the
special law punished by or punishable under the Revised Penal Code. The
reason is quite simple. It is still the special law that defines the offense and
imposes a penalty therefor, although it adopts the Code's nomenclature of
penalties. In short, the mere use by a special law of a penalty found in the
Revised Penal Code can by no means make an offense thereunder an
offense "punished or punishable" by the Revised Penal Code.
Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted
the penalties prescribed by the Revised Penal Code in drug cases, offenses
related to drugs should now be considered as punished under the Revised
Penal Code. If that were so, then we are also bound, ineluctably, to declare
that such offenses are mala in se and to apply the Articles of the Revised
Penal Code regarding the stages of a felony (Article 6), the nature of
participation (Article 16), accessory penalties (Articles 40-45), application of
penalties to principals, accomplices, and accessories (Article 46 et seq.),
complex crimes (Article 48), and graduation of penalties (Article 61), among
others. We cannot do otherwise without being drawn to an inconsistent
posture which is extremely hard to justify.
I respectfully submit then that the adoption by the Dangerous Drugs Act of
the penalties in the Revised Penal Code does not make an offense under the
Dangerous Drugs Act an offense punished by the Revised Penal Code.
Consequently, where the proper penalty to be imposed under Section 20 of
the Dangerous Drugs Act is prision correccional, then, applying the
Indeterminate Sentence Law, the indeterminate sentence to be meted on the
accused should be that whose minimum should not be less than the
minimum prescribed by the special law (the Dangerous Drugs Act), i.e., not
lower than six (6) months and one (1) day of prision correccional.
II
The majority opinion holds the view that while the penalty provided for in
Section 20 of the Dangerous Drugs Act is a complex one composed of three
distinct penalties, viz., prision correccional, prision mayor, and reclusion
temporal, and that pursuant to Article 77 of the Revised Penal Code, each
should form a period, with the lightest of them being the minimum, the next
as the medium, and the most severe as the maximum, yet, considering that
under the said second paragraph of Section 20 the penalty depends on the
quantity of the drug subject of the criminal transaction, then by way of
exception to Article 77 of the Revised Penal Code and to subserve the
purpose of Section 20, as amended, each of the aforesaid component
penalties shall be considered as a principal penalty depending on the
quantity of the drug involved. Thereafter, applying the modifying
circumstances pursuant to Article 64 of the Revised Penal Code, the proper
period of the component penalty shall then be fixed.
To illustrate, if the quantity of the drugs involved (e.g., marijuana below 250
grams) the proper principal penalty should be prision correccional, but there
is one mitigating and no aggravating circumstance, then the penalty to be
imposed should be prision correccional in its minimum period. Yet, the
majority opinion puts a limit to such a rule. It declares:
The Court rules, therefore, that while modifying circumstances may be
appreciated to determine the periods of the corresponding penalties, or even
reduce the penalty by degrees, in no case should such graduation of
penalties reduce the imposable penalty beyond or lower than
prision correccional. It is for this reason that the three component penalties in
the second paragraph of Section 20 shall each be considered as an
independent principal penalty, and that the lowest penalty should in any
event be prision correccional in order to depreciate the seriousness of drug
offenses.
Simply put, this rule would allow the reduction from reclusion
temporal — if it is the penalty to be imposed on the basis of the quantity of
the drugs involved — by two degrees, or to prision correccional, if there are
two or more mitigating circumstances and no aggravating circumstance is
present (paragraph 5, Article 64, Revised Penal Code) or if there is a
privileged mitigating circumstances of, say, minority (Article 68, Revised
Penal Code), or under circumstances covered by Article 69 of the Revised
Penal Code. Yet, if the proper penalty to be imposed is prision mayor,
regardless of the fact that a reduction by two degrees is proper, it should only
be reduced by one degree because the rule does not allow a reduction
beyond prision correccional. Finally, if the proper penalty to be imposed is
prision correccional, no reduction at all would be allowed.
I find the justification for the rule to be arbitrary and unfair. It is arbitrary
because within the same second paragraph involving the same range of
penalty, we both allow and disallow the application of Article 64(5), Article 68,
and Article 69 of the Revised Penal Code. The reason for the disallowance,
viz., in order not to depreciate the seriousness of drug offenses, is
unconvincing because Section 20 of the Dangerous Drugs Act, as amended
by R.A.
No. 7659, has in fact "depreciated" the seriousness of drug offenses by
providing quantity as basis for the determination of the proper penalty and
limiting fine only to cases punishable by reclusion perpetua to death. It is
unfair because an accused who is found guilty of possessing MORE
dangerous
drugs — say 500 to 749 grams of marijuana, in which case the penalty to be
imposed would be reclusion temporal — may only be sentenced to six (6)
months and one (1) day of prision correccional minimum because of
privileged mitigating circumstances. Yet, an accused who is found guilty of
possession of only one (1) gram of marijuana — in which case the penalty to
be imposed is prision correccional — would not be entitled to a reduction
thereof even if he has the same number of privileged mitigating
circumstances as the former has.
Also, if the privileged mitigating circumstance happens to be the minority of
the accused, then he is entitled to the reduction of the penalty as a matter of
right pursuant to Article 68 of the Revised Penal Code, which reads:
Art. 68. Penalty to be imposed upon a person under eighteen years of age.
— When the offender is a minor under eighteen years and his case is one
coming under the provisions of the paragraph next to the last of Article 80 of
this Code, the following rules shall be observed:
1. Upon a person under fifteen but over nine years of age, who is not
exempted from liability by reason of the court having declared that he acted
with discernment, a discretionary penalty shall be imposed, but always lower
by two degrees at least than that prescribed by law for the crime which he
committed.
2. Upon a person over fifteen and under eighteen years of age the
penalty next lover than that prescribed by law shall be imposed, but always in
the proper period.
I do not think that as to the second paragraph of Section 20 of the Dangerous
Drugs Act, as amended by Section 17 of R.A. No. 7659, we can be at liberty
to apply the Revised Penal Code in one aspect and not to apply it in another.
Feliciano and Quiason, JJ., concur.
# Separate Opinions
DAVIDE, JR., J., concurring and dissenting:
I am still unable to agree with the view that (a) in appropriate cases where
the penalty to be imposed would be prision correccional pursuant to the
second paragraph of Section 20 of R.A. No. 6425, as amended by Section
17 of R.A. No. 7659, the sentence to be meted out, applying the
Indeterminate Sentence Law (Act No. 4103, as amended), should be that
whose minimum is within the range of the penalty next lower, i.e., arresto
mayor; and (b) the presence of two or more mitigating circumstances not
offset by any mitigating circumstances or of a privileged mitigating
circumstance shall not reduce the penalty by one or two degrees if the
penalty to be imposed, taking into account the quantity of the dangerous
drugs involved, would be prision correccional.
I
The first view is based on the proposition that since R.A. No. 7659 had
unqualifiedly adopted the penalties under the Revised Penal Code in their
technical terms, hence also their technical signification and effects, then what
should govern is the first part of Section 1 of the Indeterminate Sentence Law
which directs that:
in imposing a prison sentence for an offense punished by the Revised Penal
Code, or its amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be that which, in
view of the attending circumstances, could be properly imposed under the
rules of the said Code, and the minimum which shall be within the range of
the penalty next lower to that prescribed by the Code for the offense.
Elsewise stated, by the adoption of the penalties provided for in the Revised
Penal Code for the offenses penalized under the Dangerous Drugs Act (R.A.
No. 6425), as amended, the latter offenses would now be considered as
punished under the Revised Penal Code for purposes of the Indeterminate
Sentence Law.
Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as amended by
Act. No. 4225 and R.A. No. 4203) also provides that:
if the offense is punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which shall not
exceed the maximum fixed by said law and the minimum shall not be less
than the minimum prescribed by the same (Emphasis supplied).
There are, therefore, two categories of offenses which should be taken into
account in the application of the Indeterminate Sentence Law: (1) offenses
punished by the Revised Penal Code, and (2) offenses punished by other
laws (or special laws).
The offenses punished by the Revised Penal Code are those defined and
penalized in Book II thereof, which is thus appropriately titled CRIMES AND
PENALTIES. To simplify further, a crime is deemed punished under the
Revised Penal Code if it is defined by it, and none other, as a crime and is
punished by a penalty which is included in the classification of Penalties in
Chapter II, Title III of Book I thereof.
On the other hand, an offense is considered punished under any other law
(or special law) if it is not defined and penalized by the Revised Penal Code
but by such other law.
It is thus clear that an offense is punished by the Revised Penal Code if both
its definition and the penalty therefor are found in the said Code, and it is
deemed punished by a special law if its definition and the penalty therefor are
found in the special law. That the latter imports or borrows from the Revised
Penal Code its nomenclature of penalties does not make an offense in the
special law punished by or punishable under the Revised Penal Code. The
reason is quite simple. It is still the special law that defines the offense and
imposes a penalty therefor, although it adopts the Code's nomenclature of
penalties. In short, the mere use by a special law of a penalty found in the
Revised Penal Code can by no means make an offense thereunder an
offense "punished or punishable" by the Revised Penal Code.
Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted
the penalties prescribed by the Revised Penal Code in drug cases, offenses
related to drugs should now be considered as punished under the Revised
Penal Code. If that were so, then we are also bound, ineluctably, to declare
that such offenses are mala in se and to apply the Articles of the Revised
Penal Code regarding the stages of a felony (Article 6), the nature of
participation (Article 16), accessory penalties (Articles 40-45), application of
penalties to principals, accomplices, and accessories (Article 46 et seq.),
complex crimes (Article 48), and graduation of penalties (Article 61), among
others. We cannot do otherwise without being drawn to an inconsistent
posture which is extremely hard to justify.
I respectfully submit then that the adoption by the Dangerous Drugs Act of
the penalties in the Revised Penal Code does not make an offense under the
Dangerous Drugs Act an offense punished by the Revised Penal Code.
Consequently, where the proper penalty to be imposed under Section 20 of
the Dangerous Drugs Act is prision correccional, then, applying the
Indeterminate Sentence Law, the indeterminate sentence to be meted on the
accused should be that whose minimum should not be less than the
minimum prescribed by the special law (the Dangerous Drugs Act), i.e., not
lower than six (6) months and one (1) day of prision correccional.
II
The majority opinion holds the view that while the penalty provided for in
Section 20 of the Dangerous Drugs Act is a complex one composed of three
distinct penalties, viz., prision correccional, prision mayor, and reclusion
temporal, and that pursuant to Article 77 of the Revised Penal Code, each
should form a period, with the lightest of them being the minimum, the next
as the medium, and the most severe as the maximum, yet, considering that
under the said second paragraph of Section 20 the penalty depends on the
quantity of the drug subject of the criminal transaction, then by way of
exception to Article 77 of the Revised Penal Code and to subserve the
purpose of Section 20, as amended, each of the aforesaid component
penalties shall be considered as a principal penalty depending on the
quantity of the drug involved. Thereafter, applying the modifying
circumstances pursuant to Article 64 of the Revised Penal Code, the proper
period of the component penalty shall then be fixed.
To illustrate, if the quantity of the drugs involved (e.g., marijuana below 250
grams) the proper principal penalty should be prision correccional, but there
is one mitigating and no aggravating circumstance, then the penalty to be
imposed should be prision correccional in its minimum period. Yet, the
majority opinion puts a limit to such a rule. It declares:
The Court rules, therefore, that while modifying circumstances may be
appreciated to determine the periods of the corresponding penalties, or even
reduce the penalty by degrees, in no case should such graduation of
penalties reduce the imposable penalty beyond or lower than
prision correccional. It is for this reason that the three component penalties in
the second paragraph of Section 20 shall each be considered as an
independent principal penalty, and that the lowest penalty should in any
event be prision correccional in order to depreciate the seriousness of drug
offenses.
Simply put, this rule would allow the reduction from reclusion
temporal — if it is the penalty to be imposed on the basis of the quantity of
the drugs involved — by two degrees, or to prision correccional, if there are
two or more mitigating circumstances and no aggravating circumstance is
present (paragraph 5, Article 64, Revised Penal Code) or if there is a
privileged mitigating circumstances of, say, minority (Article 68, Revised
Penal Code), or under circumstances covered by Article 69 of the Revised
Penal Code. Yet, if the proper penalty to be imposed is prision mayor,
regardless of the fact that a reduction by two degrees is proper, it should only
be reduced by one degree because the rule does not allow a reduction
beyond prision correccional. Finally, if the proper penalty to be imposed is
prision correccional, no reduction at all would be allowed.
I find the justification for the rule to be arbitrary and unfair. It is arbitrary
because within the same second paragraph involving the same range of
penalty, we both allow and disallow the application of Article 64(5), Article 68,
and Article 69 of the Revised Penal Code. The reason for the disallowance,
viz., in order not to depreciate the seriousness of drug offenses, is
unconvincing because Section 20 of the Dangerous Drugs Act, as amended
by R.A.
No. 7659, has in fact "depreciated" the seriousness of drug offenses by
providing quantity as basis for the determination of the proper penalty and
limiting fine only to cases punishable by reclusion perpetua to death. It is
unfair because an accused who is found guilty of possessing MORE
dangerous
drugs — say 500 to 749 grams of marijuana, in which case the penalty to be
imposed would be reclusion temporal — may only be sentenced to six (6)
months and one (1) day of prision correccional minimum because of
privileged mitigating circumstances. Yet, an accused who is found guilty of
possession of only one (1) gram of marijuana — in which case the penalty to
be imposed is prision correccional — would not be entitled to a reduction
thereof even if he has the same number of privileged mitigating
circumstances as the former has.
Also, if the privileged mitigating circumstance happens to be the minority of
the accused, then he is entitled to the reduction of the penalty as a matter of
right pursuant to Article 68 of the Revised Penal Code, which reads:
Art. 68. Penalty to be imposed upon a person under eighteen years of age.
— When the offender is a minor under eighteen years and his case is one
coming under the provisions of the paragraph next to the last of Article 80 of
this Code, the following rules shall be observed:
1. Upon a person under fifteen but over nine years of age, who is not
exempted from liability by reason of the court having declared that he acted
with discernment, a discretionary penalty shall be imposed, but always lower
by two degrees at least than that prescribed by law for the crime which he
committed.
2. Upon a person over fifteen and under eighteen years of age the
penalty next lover than that prescribed by law shall be imposed, but always in
the proper period.
I do not think that as to the second paragraph of Section 20 of the Dangerous
Drugs Act, as amended by Section 17 of R.A. No. 7659, we can be at liberty
to apply the Revised Penal Code in one aspect and not to apply it in another.
Feliciano and Quiason, JJ., concur.
[G.R. No. 141066. February 17, 2005]
EVANGELINE LADONGA, petitioner, vs. PEOPLE OF THE PHILIPPINES,
respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Petitioner Evangeline Ladonga seeks a review of the Decision,[1] dated May
17, 1999, of the Court of Appeals in CA-G.R. CR No. 20443, affirming the
Decision dated August 24, 1996, of the Regional Trial Court (RTC), Branch 3
of Bohol, in Criminal Case Nos. 7068, 7069 and 7070 convicting her of
violation of B.P. Blg. 22, otherwise known as The Bouncing Checks Law.
The factual background of the case is as follows:
On March 27, 1991, three Informations for violation of B.P. Blg. 22 were filed
with the RTC, docketed as Criminal Case Nos. 7068 - 7070. The Information
in Criminal Case No. 7068 alleges as follows:
That, sometime in May or June 1990, in the City of Tagbilaran, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating, and mutually helping with one another,
knowing fully well that they did not have sufficient funds deposited with the
United Coconut Planters Bank (UCPB), Tagbilaran Branch, did then and
there willfully, unlawfully, and feloniously, draw and issue UCPB Check No.
284743 postdated July 7, 1990 in the amount of NINE THOUSAND
SEVENTY-FIVE PESOS AND FIFTY-FIVE CENTAVOS (P9,075.55),
payable to Alfredo Oculam, and thereafter, without informing the latter that
they did not have sufficient funds deposited with the bank to cover up the
amount of the check, did then and there willfully, unlawfully and feloniously
pass on, indorse, give and deliver the said check to Alfredo Oculam by way
of rediscounting of the aforementioned checks; however, upon presentation
of the check to the drawee bank for encashment, the same was dishonored
for the reason that the account of the accused with the United Coconut
Planters Bank, Tagbilaran Branch, had already been closed, to the damage
and prejudice of the said Alfredo Oculam in the aforestated amount.
Acts committed contrary to the provisions of Batas Pambansa Bilang 22.[2]
The accusatory portions of the Informations in Criminal Case Nos. 7069 and
7070 are similarly worded, except for the allegations concerning the number,
date and amount of each check, that is:
(a) Criminal Case No. 7069 - UCPB Check No. 284744 dated July 22, 1990
in the amount of P12,730.00;[3]
(b) Criminal Case No. 7070 UCPB Check No. 106136 dated July 22, 1990 in
the amount of P8,496.55.[4]
The cases were consolidated and jointly tried. When arraigned on June 26,
1991, the two accused pleaded not guilty to the crimes charged.[5]
The prosecution presented as its lone witness complainant Alfredo Oculam.
He testified that: in 1989, spouses Adronico[6] and Evangeline Ladonga
became his regular customers in his pawnshop business in Tagbilaran City,
Bohol;[7] sometime in May 1990, the Ladonga spouses obtained a P9,075.55
loan from him, guaranteed by United Coconut Planters Bank (UCPB) Check
No. 284743, post dated to dated July 7, 1990 issued by Adronico;[8]
sometime in the last week of April 1990 and during the first week of May
1990, the Ladonga spouses obtained an additional loan of P12,730.00,
guaranteed by UCPB Check No. 284744, post dated to dated July 26, 1990
issued by Adronico;[9] between May and June 1990, the Ladonga spouses
obtained a third loan in the amount of P8,496.55, guaranteed by UCPB
Check No. 106136, post dated to July 22, 1990 issued by Adronico;[10] the
three checks bounced upon presentment for the reason CLOSED
ACCOUNT;[11] when the Ladonga spouses failed to redeem the check,
despite repeated demands, he filed a criminal complaint against them.[12]
While admitting that the checks issued by Adronico bounced because there
was no sufficient deposit or the account was closed, the Ladonga spouses
claimed that the checks were issued only to guarantee the obligation, with an
agreement that Oculam should not encash the checks when they mature;[13]
and, that petitioner is not a signatory of the checks and had no participation
in the issuance thereof.[14]
On August 24, 1996, the RTC rendered a joint decision finding the Ladonga
spouses guilty beyond reasonable doubt of violating B.P. Blg. 22, the
dispositive portion of which reads:
Premises considered, this Court hereby renders judgment finding accused
Adronico Ladonga, alias Ronie, and Evangeline Ladonga guilty beyond
reasonable doubt in the aforesaid three (3) criminal cases, for which they
stand charged before this Court, and accordingly, sentences them to
imprisonment and fine, as follows:
1. In Criminal Case No. 7068, for (sic) an imprisonment of one (1) year for
each of them, and a fine in the amount of P9,075.55, equivalent to the
amount of UCPB Check No. 284743;
2. In Criminal Case No. 7069, for (sic) an imprisonment for each of them to
one (1) year and a fine of P12, 730.00, equivalent to the amount of UCPB
Check No. 284744; and,
3. In Criminal Case No. 7070, with (sic) an imprisonment of one year for each
of them and a fine of P8,496.55 equivalent to the amount of UCPB Check
No. 106136;
4. That both accused are further ordered to jointly and solidarily pay and
reimburse the complainant, Mr. Alfredo Oculam, the sum of P15,000.00
representing actual expenses incurred in prosecuting the instant cases;
P10,000.00 as attorneys fee; and the amount of P30,302.10 which is the total
value of the three (3) subject checks which bounced; but without subsidiary
imprisonment in case of insolvency.
With Costs against the accused.
SO ORDERED.[15]
Adronico applied for probation which was granted.[16] On the other hand,
petitioner brought the case to the Court of Appeals, arguing that the RTC
erred in finding her criminally liable for conspiring with her husband as the
principle of conspiracy is inapplicable to B.P. Blg. 22 which is a special law;
moreover, she is not a signatory of the checks and had no participation in the
issuance thereof.[17]
On May 17, 1999, the Court of Appeals affirmed the conviction of
petitioner.[18] It held that the provisions of the penal code were made
applicable to special penal laws in the decisions of this Court in People vs.
Parel, [19] U.S. vs. Ponte, [20] and U.S. vs. Bruhez.[21] It noted that Article
10 of the Revised Penal Code itself provides that its provisions shall be
supplementary to special laws unless the latter provide the contrary. The
Court of Appeals stressed that since B.P. Blg. 22 does not prohibit the
applicability in a suppletory character of the provisions of the Revised Penal
Code (RPC), the principle of conspiracy may be applied to cases involving
violations of B.P. Blg. 22. Lastly, it ruled that the fact that petitioner did not
make and issue or sign the checks did not exculpate her from criminal liability
as it is not indispensable that a co-conspirator takes a direct part in every act
and knows the part which everyone performed. The Court of Appeals
underscored that in conspiracy the act of one conspirator could be held to be
the act of the other.
Petitioner sought reconsideration of the decision but the Court of Appeals
denied the same in a Resolution dated November 16, 1999.[22]
Hence, the present petition.
Petitioner presents to the Court the following issues for resolution:
1. WHETHER OR NOT THE PETITIONER WHO WAS NOT THE DRAWER
OR ISSUER OF THE THREE CHECKS THAT BOUNCED BUT HER CO-
ACCUSED HUSBAND UNDER THE LATTERS ACCOUNT COULD BE
HELD LIABLE FOR VIOLATIONS OF BATAS PAMBANSA BILANG 22 AS
CONSPIRATOR.
2. ANCILLARY TO THE MAIN ISSUE ARE THE FOLLOWING ISSUES:
A. WHETHER OR NOT CONSPIRACY IS APPLICABLE IN VIOLATIONS OF
BATAS PAMBANSA BILANG 22 BY INVOKING THE LAST SENTENCE OF
ARTICLE 10 OF THE REVISED PENAL CODE WHICH STATES:
Art. 10. Offenses not subject of the provisions of this Code. Offenses which
are or in the future may be punished under special laws are not subject to the
provisions of this Code. This Code shall be supplementary to such laws,
unless the latter should specially provide the contrary.
B. WHETHER OR NOT THE CASES CITED BY THE HONORABLE COURT
OF APPEALS IN AFFIRMING IN TOTO THE CONVICTION OF
PETITIONER AS CONSPIRATOR APPLYING THE SUPPLETORY
CHARACTER OF THE REVISED PENAL CODE TO SPECIAL LAWS LIKE
B.P. BLG. 22 IS APPLICABLE.[23]
Petitioner staunchly insists that she cannot be held criminally liable for
violation of B.P. Blg. 22 because she had no participation in the drawing and
issuance of the three checks subject of the three criminal cases, a fact
proven by the checks themselves. She contends that the Court of Appeals
gravely erred in applying the principle of conspiracy, as defined under the
RPC, to violations of B.P. Blg. 22. She posits that the application of the
principle of conspiracy would enlarge the scope of the statute and include
situations not provided for or intended by the lawmakers, such as penalizing
a person, like petitioner, who had no participation in the drawing or issuance
of checks.
The Office of the Solicitor General disagrees with petitioner and echoes the
declaration of the Court of Appeals that some provisions of the Revised
Penal Code, especially with the addition of the second sentence in Article 10,
are applicable to special laws. It submits that B.P. Blg. 22 does not provide
any prohibition regarding the applicability in a suppletory character of the
provisions of the Revised Penal Code to it.
Article 10 of the RPC reads as follows:
ART. 10. Offenses not subject to the provisions of this Code. Offenses which
are or in the future may be punishable under special laws are not subject to
the provisions of this Code. This Code shall be supplementary to such laws,
unless the latter should specially provide the contrary.
The article is composed of two clauses. The first provides that offenses
which in the future are made punishable under special laws are not subject to
the provisions of the RPC, while the second makes the RPC supplementary
to such laws. While it seems that the two clauses are contradictory, a
sensible interpretation will show that they can perfectly be reconciled.
The first clause should be understood to mean only that the special penal
laws are controlling with regard to offenses therein specifically punished.
Said clause only restates the elemental rule of statutory construction that
special legal provisions prevail over general ones.[24] Lex specialis derogant
generali. In fact, the clause can be considered as a superfluity, and could
have been eliminated altogether. The second clause contains the soul of the
article. The main idea and purpose of the article is embodied in the provision
that the "code shall be supplementary" to special laws, unless the latter
should specifically provide the contrary.
The appellate courts reliance on the cases of People vs. Parel,[25] U.S. vs.
Ponte,[26] and U.S. vs. Bruhez[27] rests on a firm basis. These cases
involved the suppletory application of principles under the then Penal Code
to special laws. People vs. Parel is concerned with the application of Article
22[28] of the Code to violations of Act No. 3030, the Election Law, with
reference to the retroactive effect of penal laws if they favor the accused.
U.S. vs. Ponte involved the application of Article 17[29] of the same Penal
Code, with reference to the participation of principals in the commission of
the crime of misappropriation of public funds as defined and penalized by Act
No. 1740. U.S. vs. Bruhez covered Article 45[30] of the same Code, with
reference to the confiscation of the instruments used in violation of Act No.
1461, the Opium Law.
B.P. Blg. 22 does not expressly proscribe the suppletory application of the
provisions of the RPC. Thus, in the absence of contrary provision in B.P. Blg.
22, the general provisions of the RPC which, by their nature, are necessarily
applicable, may be applied suppletorily. Indeed, in the recent case of Yu vs.
People,[31] the Court applied suppletorily the provisions on subsidiary
imprisonment under Article 39[32] of the RPC to B.P. Blg. 22.
The suppletory application of the principle of conspiracy in this case is
analogous to the application of the provision on principals under Article 17 in
U.S. vs. Ponte. For once conspiracy or action in concert to achieve a criminal
design is shown, the act of one is the act of all the conspirators, and the
precise extent or modality of participation of each of them becomes
secondary, since all the conspirators are principals.[33]
All these notwithstanding, the conviction of the petitioner must be set aside.
Article 8 of the RPC provides that a conspiracy exists when two or more
persons come to an agreement concerning the commission of a felony and
decide to commit it. To be held guilty as a co-principal by reason of
conspiracy, the accused must be shown to have performed an overt act in
pursuance or furtherance of the complicity.[34] The overt act or acts of the
accused may consist of active participation in the actual commission of the
crime itself or may consist of moral assistance to his co-conspirators by
moving them to execute or implement the criminal plan.[35]
In the present case, the prosecution failed to prove that petitioner performed
any overt act in furtherance of the alleged conspiracy. As testified to by the
lone prosecution witness, complainant Alfredo Oculam, petitioner was merely
present when her husband, Adronico, signed the check subject of Criminal
Case No. 7068.[36] With respect to Criminal Case Nos. 7069-7070, Oculam
also did not describe the details of petitioners participation. He did not specify
the nature of petitioners involvement in the commission of the crime, either
by a direct act of participation, a direct inducement of her co-conspirator, or
cooperating in the commission of the offense by another act without which it
would not have been accomplished. Apparently, the only semblance of overt
act that may be attributed to petitioner is that she was present when the first
check was issued. However, this inference cannot be stretched to mean
concurrence with the criminal design.
Conspiracy must be established, not by conjectures, but by positive and
conclusive evidence.[37] Conspiracy transcends mere companionship and
mere presence at the scene of the crime does not in itself amount to
conspiracy.[38] Even knowledge, acquiescence in or agreement to
cooperate, is not enough to constitute one as a party to a conspiracy, absent
any active participation in the commission of the crime with a view to the
furtherance of the common design and purpose.[39]
As the Court eloquently pronounced in a case of recent vintage, People vs.
Mandao:[40]
To be sure, conspiracy is not a harmless innuendo to be taken lightly or
accepted at every turn. It is a legal concept that imputes culpability under
specific circumstances; as such, it must be established as clearly as any
element of the crime. Evidence to prove it must be positive and convincing,
considering that it is a convenient and simplistic device by which the accused
may be ensnared and kept within the penal fold.
Criminal liability cannot be based on a general allegation of conspiracy, and
a judgment of conviction must always be founded on the strength of the
prosecutions evidence. The Court ruled thus in People v. Legaspi, from
which we quote:
At most, the prosecution, realizing the weakness of its evidence against
accused-appellant Franco, merely relied and pegged the latters criminal
liability on its sweeping theory of conspiracy, which to us, was not attendant
in the commission of the crime.
The rule is firmly entrenched that a judgment of conviction must be
predicated on the strength of the evidence for the prosecution and not on the FRANCISCO DE GUZMAN, G.R. No. 166502
weakness of the evidence for the defense. The proof against him must
survive the test of reason; the strongest suspicion must not be permitted to Petitioner,
sway judgment. The conscience must be satisfied that on the defense could
be laid the responsibility for the offense charged; that not only did he Present:
perpetrate the act but that it amounted to a crime. What is required then is
moral certainty.
QUISUMBING, J., Chairperson,
Verily, it is the role of the prosecution to prove the guilt of the appellant
beyond reasonable doubt in order to overcome the constitutional - versus - CARPIO MORALES,
presumption of innocence.
TINGA,
In sum, conviction must rest on hard evidence showing that the accused is
guilty beyond reasonable doubt of the crime charged. In criminal cases, VELASCO, JR., and
moral certainty -- not mere possibility -- determines the guilt or the innocence
of the accused. Even when the evidence for the defense is weak, the BRION, JJ.
accused must be acquitted when the prosecution has not proven guilt with
the requisite quantum of proof required in all criminal cases. (Citations
omitted)[41]
PEOPLE OF THE PHILIPPINES, Promulgated:
All told, the prosecution failed to establish the guilt of the petitioner with moral
certainty. Its evidence falls short of the quantum of proof required for Respondent.
conviction. Accordingly, the constitutional presumption of the petitioners
innocence must be upheld and she must be acquitted. October 17, 2008

WHEREFORE, the instant petition is GRANTED. The assailed Decision, x-----------------------------------------------------------------------------------------x

dated May 17, 1999, of the Court of Appeals in CA-G.R. CR No. 20443
affirming the Decision, dated August 24, 1996, of the Regional Trial Court
(Branch 3), Bohol, in Criminal Case Nos. 7068, 7069 and 7070 convicting the
petitioner of violation of B.P. Blg. 22 is hereby REVERSED and SET ASIDE. DECISION
Petitioner Evangeline Ladonga is ACQUITTED of the charges against her
under B.P. Blg. 22 for failure of the prosecution to prove her guilt beyond
reasonable doubt. No pronouncement as to costs.
VELASCO, JR., J.:
SO ORDERED.

Puno, (Chairman), Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.

The Case
This is a Petition for Review on Certiorari under Rule 45 of the August 27,
2004 Decision[1] and November 30, 2004[2] Resolution of the Court of
Appeals (CA) in CA-G.R. CR No. 25253 entitled People of the Philippines v.
Ramon Valdez, et al. The assailed decision affirmed the September 15, 2000
Decision of the Regional Trial Court (RTC), Branch 67 in Bauang, La Union
in Criminal Case No. 1214-BG, which found petitioner Francisco de Guzman
guilty of the crime of robbery with force upon things, while the assailed
resolution denied petitioners Motion for Reconsideration.
The Facts
Private complainant Lucia Valdez married Agustin Valdez sometime in 1973,
following the death of Agustins first wife, Presentacion. The relationship of
Lucia and Agustin, however, thereafter turned sour and the two separated.
Agustin went to the United States of America and Lucia remained in the
couples house in Sobredillo, Caba, La Union.[3] But after the July 16, 1990
earthquake, Lucia and her children temporarily moved out of their residence
and stayed in an apartment in Paringao, Bauang, La Union.[4]
During this time, Agustin learned that Lucia had been selling their personal
properties. Alarmed, he asked Ramon Valdez, his son with Presentacion, to
retrieve whatever was left in their house as those properties belonged to
Ramons mother. Ramon, who was also residing within Sobredillo, Caba, La
Union, readily obeyed his father. Thus, sometime during the first week of
September 1990, Ramon went to Lucias house which was then closed and
uninhabited. Consequently, Ramon demolished the north eastern portion of
Lucias kitchen to gain entry. He then solicited his neighbors help in bringing
out the properties from Lucias house. Among those who assisted Ramon
were Marlon Gatchalian, Elpidio Picazo, and petitioner Francisco de
Guzman.
Agustin Mendegoria, the common-law husband of one of Lucias daughters,
witnessed the retrieval incident. He saw Ramon and petitioner bring out
chairs, aparadors, mortars, a big frying pan, a wooden bench, and a bed
from Lucias house. Mendegoria immediately reported the matter to Lucia,
who then went to the respective houses of Ramon and petitioner. She
discovered that her properties were brought to Ramons house, save for the
wooden bench which was left just outside petitioners house. Lucia took
pictures of her personal belongings and then reported the matter to the
police.[5]
Thereafter, Ramon and petitioner were charged with the crime of robbery
with force upon things in the following Information:
That on or about the first week of September, 1990, in the Municipality of
Caba, Province of La Union, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused conspiring, confederating and
mutually helping one another, and with intent of gain, did then and there
willfully, unlawfully and feloniously enter the residential house of the private
complainant, LUCIA VALDEZ, by hammering down the hollow-blocks of the
house not intended for entrance or egress, at the northeastern portion of said
house, did, then and there willfully, unlawfully and feloniously take, rob and
carry away without the consent of the owner, personal properties worth
P20,000.00 to the damage and prejudice of the complainant.[6]
Both petitioner and Ramon pleaded not guilty to the charge. In his defense,
Ramon admitted taking the properties but without intending to gain from his
act. After the earthquake in 1990, according to Ramon, he received SO ORDERED.[7]
instruction from his father to take the personal properties belonging to his
mother. He maintained that the properties taken were owned by his father
and mother, and not by Lucia.

Petitioner appealed the case to the CA.

On the other hand, petitioner denied taking the properties for gain. He
claimed that he merely helped Ramon bring out the properties belonging to
the latters father from Lucias house. He explained that since his house was The Ruling of the CA
relatively nearer to Lucias house, he acceded to Ramons request that the
wooden bench be temporarily placed in his house. But before Ramon could
transfer the bench to his own house, Lucia arrived and reported them to the
police. In a Decision dated August 27, 2004, the appellate court dismissed the
appeal for lack of merit. It held that Ramons acquittal cannot benefit
petitioner because the defense of Ramon is based on his personal
relationship with the private complainant. Further, it ruled that the prosecution
On September 15, 2000, the RTC rendered a Decision, the dispositive part of established intent to gain when petitioner failed to satisfactorily explain how
which reads: he was able to gain possession of Lucias property.

In view thereof, the Court renders judgment:

In his Motion for Reconsideration, petitioner attached an affidavit executed by

Lucia stating that petitioner was wrongfully charged of the crime. But the CA
1) [A]ccused Ramon Valdez is hereby acquitted of the crime charge[d] gave no probative value to Lucias affidavit and denied the motion for
and is hereby directed to repair the wall destroyed thereat or to pay the reconsideration.
amount of [PhP] 10,000.00;

The Issues
2) [A]ccused Francisco de Guzman is hereby convicted of the crime
charged and is hereby sentenced to suffer imprisonment of the indeterminate
penalty of prision correccional in its medium period to prision mayor in its
minimum period of two (2) years, four (4) months and one (1) day to eight (8) Hence, petitioner comes to this Court with the following issues for our
years and to pay the amount of [PhP] 3,700.00. consideration:
1. Whether or not the guilt of the petitioner in the crime charged was
proved beyond reasonable doubt;
2. Whether or not the Court of Appeals erred in not appreciating the
Affidavit executed by the private complainant although belated when it truly
gives rise to a reasonable doubt as to the guilt of the petitioner.[8]
In essence, the determinative issue revolves on the presence of the element
of intent to gain.
The Ruling of the Court
The appeal has merit.
The instant petition involves a review of the factual findings of the trial and
appellate courts. As a general rule, only questions of law may be raised in a
petition for review on certiorari with this Court.[9] And we have always held
that the factual findings of the trial court, when affirmed by the appellate
court, are conclusive and binding on this Court; except when, as in this case,
the judgment assailed is based on a misapprehension of facts.[10]
To constitute robbery, the following elements must be established: (1) the
subject is personal property belonging to another; (2) there is unlawful taking
of that property; (3) the taking is with the intent to gain; and (4) there is
violence against or intimidation of any person or use of force upon things.[11]
In the present case, petitioner is imputed with intent to gain for his alleged
failure to explain why Lucias wooden bench was in his possession. Animus
lucrandi or intent to gain is an internal act which can be established through
the overt acts of the offender. The unlawful taking of anothers property gives
rise to the presumption that the act was committed with intent to gain. This
presumption holds unless special circumstances reveal a different intent on
the part of the perpetrator.[12] The term gain is not merely limited to
pecuniary benefit but also includes the benefit which in any other sense may
be derived or expected from the act which is performed. Thus, the mere use
of the thing which was taken without the owners consent constitutes gain.[13]
We are not convinced with moral certainty that petitioner had acted with
intent to gain. Contrary to the findings of the trial and appellate courts, the
records bear out that it was Ramon, under a claim of ownership, who had
wanted the properties taken out from Lucias house.[14] And he had asked
his neighbors, petitioner among them, to assist him in recovering these
properties.[15] To be sure, petitioner, like the others who helped Ramon, was
an innocent person who merely acceded to a neighbors request.
The only fact that perhaps raises doubt on petitioners innocence was the
presence of the wooden bench in his house. Petitioner, however, sufficiently
explained that owing to the proximity of his house to that of Lucias, Ramon
had asked that the bench be temporarily left in petitioners house until he
could transfer it. Unfortunately, before Ramon could remove it, Lucia had
already filed a complaint against them.[16] Noticeably, petitioner did not
falsely claim ownership over the bench nor did he make any effort to conceal
that the bench was in his possession as it was placed outside his house. To
our mind, his acts were consistent with his assertion that he was merely
helping Ramon, whom he honestly believed to be the owner, take out the
properties from Lucias home.

To stress, petitioner should not be held answerable for the act charged
absent a felonious intent. Actus non facit reum, nisi mens sit rea. A crime is
not committed if the mind of the person performing the act complained of is
innocent.[17]
As regards the affidavit of desistance executed by Lucia, we could not fault
the appellate court for not giving it persuasive value, it being settled that
affidavits of recantation made by a witness after the conviction of the
accused deserve only scant consideration.[18] Even without the said
affidavit, the circumstances of the case do not, however, confirm the
culpability of petitioner.
WHEREFORE, the petition is GRANTED. The assailed CA Decision dated
August 27, 2004 and Resolution dated November 30, 2004 in CA-G.R. CR
No. 25253 are REVERSED. Petitioner Francisco de Guzman is ACQUITTED
of the crime charged. No costs.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
[G.R. No. 123485. August 31, 1998]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLUSAPE
SABALONES alias Roling, ARTEMIO TIMOTEO BERONGA, TEODULO
ALEGARBES and EUFEMIO CABANERO, accused, ROLUSAPE
SABALONES alias Roling and ARTEMIO TIMOTEO BERONGA, accused-
appellants.
DECISION
PANGANIBAN, J.:
Factual findings of trial courts which are affirmed by the Court of Appeals are,
as a general rule, binding and conclusive upon the Supreme Court. Alibi, on
the other hand, cannot prevail over positive identification by credible
witnesses. Furthermore, alleged violations of constitutional rights during
custodial investigation are relevant only when the conviction of the accused
by the trial court is based on the evidence obtained during such investigation.
The Case
These are the principles relied upon by the Court in resolving this appeal
from the Court of Appeals (CA)[1] Decision[2] dated September 28, 1995,
convicting Rolusape Sabalones and Timoteo Beronga of murder and
frustrated murder. The convictions arose from a shooting incident on June 1,
1985 in Talisay, Cebu, which resulted in the killing of two persons and the
wounding of three others, who were all riding in two vehicles which were
allegedly ambushed by appellants.
After conducting a preliminary investigation, Second Assistant Provincial
Prosecutor Juanito M. Gabiana Sr. filed before the Regional Trial Court
(RTC) of Cebu City, Branch 7,[3] five amended Informations charging four
John Does, who were later identified as Rolusape Sabalones, Artemio
Timoteo Beronga, Teodulo Alegarbes and Eufemio Cabanero, with two
counts of murder and three counts of frustrated murder. The Informations are
quoted hereunder.
1) Crim Case No. CBU-9257 for murder:
That on the 1st day of June, 1985, at 11:45 oclock in the evening, more or
less, at Mansueto Village, Bulacao, Municipality of Talisay, Province of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating and mutually helping one another,
armed with high-powered firearms, with intent to kill and treachery, did then
and there wilfully, unlawfully and feloniously attack, assault and shoot
GLENN TIEMPO, who was riding [i]n a jeep and who gave no provocation,
thereby inflicting upon the latter several gunshot wounds, thereby causing his
instantaneous death.
CONTRARY TO Article 248 of the Revised Penal Code.
2) Criminal Case No. 9258 for murder:
That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or
less at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating and mutually
helping one another, armed with high-powered firearms, with intent to kill and
treachery, did [then] and there wilfully, unlawfully and feloniously attack,
assault and shoot ALFREDO NARDO, who was riding on a jeep and who
gave no provocation, thereby inflicting upon the latter several gunshot
wounds, thereby causing his instantaneous death.
CONTRARY TO Article 248 of the Revised Penal Code.
3) Crim Case No. CBU-9259 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or
less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused conspiring, confederating and mutually
helping one another, armed with high-powered firearms, with intent to kill and
treachery, did and there wilfully, unlawfully and feloniously attack, assault
and shoot REY BOLO who was riding in a car and who gave no provocation,
thereby inflicting upon the latter the following injuries to wit:
laceration, mouth due to gunshot wound, gunshot wound (L) shoulder
penetrating (L) chest; gunshot wound (R) hand (palm); open fracture (L)
clavicle (L) scapula; contusion (L) lung;
thereby performing all the acts of execution which would produce the crime
of [m]urder as a consequence but which, nevertheless, did not produce it by
reason of causes independent of the will of the perpetrator, i.e. the timely
medical attendance.
IN VIOLATION of Article 248 of the Revised Penal Code.
4) Criminal Case No. 9260 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or
less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused conspiring, confederating and mutually
helping one another, armed with high-powered firearms, with intent to kill and
treachery, did then and there wilfully, unlawfully and feloniously attack,
assault and shoot ROGELIO PRESORES, who was riding in a car and who
gave no provocation, thereby inflicting upon the latter the following injuries, to
wit:
gunshot wound, thru and thru right chest
thereby performing all the acts of execution which would produce the crime
of [m]urder as a consequence but which, nevertheless, did not produce it by
reason of causes independent of the will of the perpetrator, i.e. the timely
medical attendance.
IN VIOLATION of Article 248 of the Revised Penal Code.
5) Criminal Case No. 9261 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or
less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused conspiring, confederating and mutually
helping one another, armed with high-powered firearms, with intent to kill and
treachery, did then and there wilfully, unlawfully and feloniously attack,
assault and shoot NELSON TIEMPO, who was riding in a car and who gave
no provocation, thereby inflicting upon the latter the following injuries, to wit:
Gunshot wound neck penetrating wound perforating trachea (cricoid) thereby
performing all the acts of execution which would produce the crime of
[m]urder as a consequence but which nevertheless, did not produce it by
reason of causes independent of the will of the perpetrator, i.e. the timely
medical attendance.
IN VIOLATION of Article 248 of the Revised Penal Code.
Of the four indictees in the five Informations, Teodulo Alegarbes and Artemio
Timoteo Beronga were the first to be arraigned. Upon the arrest of the two,
the Informations were amended by the public prosecutor, with the conformity
of the defense counsel, by substituting the names of the two accused for the
John Does appearing in the original Informations. When arraigned, said
accused, assisted by their respective lawyers, pleaded not guilty to the five
Informations.
Alegarbes died in the course of trial; thus, the cases against him were
dismissed. Accused Cabanero remained at large. Sabalones, on the other
hand, was eventually arrested. Subsequently, he jumped bail but was
recaptured in 1988 and thereafter pleaded not guilty during his arraignment.
The cases against Sabalones and Beronga were jointly tried. Thereafter, the
lower court found them guilty beyond reasonable doubt of the crimes
charged. The RTC disposed as follows:
WHEREFORE, premises above-set forth, the Court finds accused
ROLUSAPE SABALONES and (ARTEMIO) TIMOTEO BERONGA, [g]uilty
beyond reasonable doubt, as principals:
In Crim. Case No. CBU-9257, for MURDER, defined and penalized in Art.
248 of the Revised Penal Code, hereby sentences each said accused to
suffer the penalty of [f]ourteen (14) years, [e]ight (8) months and [o]ne (1)
day, as minimum, to [s]eventeen (17) years, [f]our (4) months and [o]ne (1)
day, of [r]eclusion [t]emporal, as maximum, to indemnify the heirs of
deceased, Glenn Tiempo, the sum of P50,000.00;
In Crim. Case No. CBU-9258, for MURDER, defined and penalized in Art.
248 of the Revised Penal Code, hereby sentences each said accused to
suffer the penalty of [f]ourteen (14) years, [e]ight (8) months and [o]ne (1)
day, as minimum, to [s]eventeen (17) years, [f]our (4) months and [o]ne (1)
day, of [r]eclusion [t]emporal, as maximum, to indemnify the heirs of
deceased, Alfredo Nardo, the sum of P50,000.00;
In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, defined and
penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code, hereby
sentences each said accused to suffer the penalty of [e]ight (8) years of
prision mayor, as minimum, to [f]ourteen (14) years and [e]ight (8) months of
[re]clusion [t]emporal, as maximum, to indemnify the victim, Rey Bolo, the
sum of P20,000.00;
In Crim. Case No. CBU-9260, for FRUSTRATED MURDER, defined and
penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code, hereby
sentences each said accused to suffer the penalty of [e]ight (8) years of
prision mayor, as minimum, to [f]ourteen (14) years and [e]ight months of
[r]eclusion [t]emporal, as maximum, to indemnify the victim, Rogelio
Presores, the sum of P20,000.00;
In Crim. Case no. CBU-9261, for FRUSTRATED MURDER, defined and
penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code, hereby
sentences each said accused to suffer the penalty of [e]ight (8) years of
prision mayor, as minimum, to [f]ourteen (14) years and [e]ight (8) months of
[r]eclusion [t]emporal, as maximum, to indemnify the victim, Nelson Tiempo,
the sum of P20,000.00; and
To pay the costs in all instances. The period of their preventive imprisonment
shall be credited to each accused in full.

SO ORDERED.[4]
Appellants filed a notice of appeal to the Court of Appeals. Thereafter, the
CA affirmed their conviction but sentenced them to reclusion perpetua for the
murders they were found guilty of. Accordingly, the appellate court, without
entering judgment, certified the case to the Supreme Court in accordance
with Section 13, Rule 124 of the Rules of Court. The dispositive portion of the
CA Decision reads:
WHEREFORE, the Decision of the trial court convicting accused-appellants
Rolusa[p]e Sabalones and Artemio Timoteo Beronga for murder in Crim.
Cases Nos. CBU-9257 and CBU-9258, and [f]rustrated [m]urder in Crim.
Cases Nos. CBU-9259, CBU-9260, and CBU-9261 is hereby AFFIRMED;
however, the penalties in the [f]rustrated [m]urder and [m]urder cases are
hereby MODIFIED, such that both accused-appellants are each sentenced to
imprisonment of TEN (10) YEARS of [p]rision [m]ayor medium as minimum
to SEVENTEEN (17) YEARS and FOUR (4) MONTHS of [r]eclusion
[t]emporal medium as maximum in each of the three [f]rustrated [m]urder
cases (Crim. Cases Nos. CBU-9259, CBU-9260 and CBU-9261); and are
each sentenced to [r]eclusion [p]erpetua in each of the two [m]urder cases
(Crim. Cases Nos. CBU-9257 and CBU-9258). The indemnity to the victim in
each [f]rustrated [m]urder case shall remain. In conformity with Rule 124,
Section 13 of the Rules of Court, however, this Court refrains from entering
judgment, and hereby certifies the case and orders that the entire record
hereof be elevated to the Supreme Court for review.[5]
After the Court of Appeals certified the case to this Court, we required
appellants to file supplemental briefs. Appellants failed to comply within the
prescribed period and were deemed to have waived their right to do so.[6]
Thus, in resolving this case, this Court will address primarily the arguments
raised by the appellants in their Brief before the Court of Appeals, which
assailed the RTC Decision.
The Facts
Version of the Prosecution
The solicitor general[7] quoted the following factual findings of the trial court:
Edwin Santos, a resident of Mambaling, Cebu City stated that on June 1,
1985 at 6:00 oclock in the evening, he was at the residence of Inday
Presores, sister of Rogelio Presores, located at Rizal Ave., Cebu City to
attend a wedding. He stayed until 9:00 oclock in the evening and proceeded
to the house of Maj. Tiempo at Basak, Mambaling, Cebu City where a small
gathering was also taking place. (pp. 3-6, tsn, April 7, 1987)
Arriving thereat, he saw Nelson and Glenn Tiempo as well as Rogelio
Presores, Rogelio Oliveros, Junior Villoria, Rey Bolo and Alfredo Nardo. (p.
7, ibid.)
At about 11:00 oclock in the evening, Stephen Lim, who was also at the
party, called their group and requested them to push his car. When the
engine started, the former asked them to drive his car home. (pp. 7-11, ibid.)
Together with Nelson Tiempo, who was at the wheel, Rogelio Presores,
Rogelio Oliveros and Junior Villoria, they drove to the residence of Stephen
Lim at Mansueto Compound, Bulacao, Talisay, Cebu. (p. 12, ibid.)
Glenn Tiempo, Rey Bolo and Alfredo Nardo also went with them riding in an
owner-type jeep, driven by the latter, in order to bring back the group [as]
soon as the car of Mr. Lim was parked in his home. (p. 21, ibid.)
The two vehicles traveled in convoy with the jeep 3 to 4 meters ahead of the
car. When they arrived at the gate of the house of Stephen Lim, they were
met with a sudden burst of gunfire. He looked at the direction where the
gunfire came, and saw [the] persons [who] fired at the jeep. He identified
accused, Teodulo Alegarbes, Rolusape Sabalones and Timoteo Beronga as
the persons who fired at the vehicle. Except for Teodulo Alegarbes, who was
naked from [the] waist up, the gunmen wore clothes. (pp. 21-23; 13-16; 33,
ibid.)
After firing at the jeep, the assailants shot the car they were riding[,] hitting
Nelson Tiempo on the throat and Rogelio Presores on the breast. Despite
the injury he sustained, Nelson Tiempo was able to maneuver the car back to
their residence. (pp. 17-19, ibid.)

He immediately informed Maj. Tiempo about the incident and the lat[t]er
brought the victims to the Cebu Doctors Hospital. (p. 20, ibid.)
Rogelio Presores corroborated in substance the testimony of Edwin Santos,
being one of those who were in the car driven by Nelson Tiempo to the
residence of Stephen Lim. (pp. 4-6, tsn, Aug. 14, 1987)
He further testified that when the jeep driven by Alfredo Nardo with Rey Bolo
and Glenn Tiempo as passengers arrived at the front gate of Lims residence
and while their car was 3 meters from the rear end of the jeep, there was a
volley of gunfire. He glanced at the direction of the gunfire and saw the jeep
being fired at by four persons, who were standing behind a concrete wall, 42
inches in height, and armed with long firearms. Thenceforth, he saw Alfredo
Nardo, Glenn Tiempo and Rey Bolo f[a]ll to the ground. (pp. 6-7, ibid.)
He recognized accused, Rolusape Sabalones, as one of those who fired at
the jeep. He also identified in Court accused, Teodulo Alegarbes, Timoteo
Beronga and another person, whom he recognized only through his facial
appearance. (pp. 7-8, ibid.)
When the shots were directed [at] their car[,] they were able to bend their
heads low. When the firing stopped, he directed Nelson Tiempo to back out
from the place. As the latter was maneuvering the car, the shooting
continued and he was hit in the breast while Nelson Tiempo, in the neck, and
the windshield of the vehicle was shattered. (p. 10, ibid.)
Arriving at the house of Maj. Tiempo, they were brought to Cebu Doctors
Hospital. He and Nelson Tiempo were operated on. He had incurred hospital
expenses in the sum of P5,412.69, (Exh. I, K). (pp. 11-12, ibid.)
Ladislao Diola, Jr., [m]edico-[l]egal [o]fficer of the PC Crime Laboratory,
Regional Unit 7 stationed at Camp Sotero Cabahug, Cebu City remembered
having performed a post-mortem examination on the dead body of Glenn
Tiempo on June 2, 1985 at the Cosmopolitan Funeral Homes, Cebu City. (p.
7, tsn, Nov. 11, 1987)
He issued the necessary Death Certificate, (Exh. D) and Necropsy Report,
(Exh. F) and indicated therein that the victims cause of death was [c]ardio
respiratory arrest due to [s]hock and [h]emorrhage [s]econdary to [g]unshot
wounds to the trunk. (p. 8, ibid.)
The victim sustained gunshot wounds in the right chest and left lumbar area.
(pp. 10-11, ibid.)
He explained that in gunshot wound no. 1, the wound entrance[,] which [was]
characterized by invaginated edges and contusion collar[,] was located in the
right chest and the bullet went up to the left clavicle hitting a bone which
incompletely fractured it causing the navigation of the bullet to the left and to
the anterior side of the body. He recovered a slug, (Exh. G) below the
muscles of the left clavicle. (p. 21, ibid.)
Based on the trajectory of the bullet, the assailant could have been [o]n the
right side of the victim or in front of the victim but [o]n a lower level than the
latter.
In both gunshot wounds, he did not find any powder burns which would
indicate that the muzzle of the gun was beyond a distance of 12 inches from
the target. (p. 15, ibid.)
At the time he conducted the autopsy, he noted that rigor mortis in its early
stage had already set in which denote[s] that death had occurred 5 to 6
hours earlier. (pp. 34-5, ibid.)
Maj. Juan Tiempo, father of the victims, Glenn and Nelson Tiempo, testified
that when he learned about the incident in question, he immediately
summoned military soldiers and together they proceeded to the scene. (pp.
4-6, tsn, Nov. 12, 1988)
Arriving thereat, he saw the lifeless body of his son, Glenn. He immediately
carried him in his arms and rushed him to the hospital but the victim was
pronounced Dead on Arrival. (pp. 6-7, ibid.)
They buried his son, who was then barely 14 years old, at Cebu Memorial
Park and had incurred funeral expenses (Exhs. K, L, O). (pp. 7-8, ibid.)

His other son, Nelson, then 21 years old and a graduate of [m]edical
[t]echology, was admitted at the Cebu Doctors Hospital for gunshot wound in
the neck. The latter survived but could hardly talk as a result of the injuries
he sustained. He had incurred medical and hospitalization expenses in the
sum of P21,594.22, (Exh. H), (pp. 8-10, ibid.)
He had also incurred expenses in connection with the hospitalization of the
injured victims, Rogelio Presores and Rey Bolo in the amount[s] of
P5,412.69, (exh. I) and P9,431.10, (Exh. J), respectively. (p. 11, ibid.)
He further stated that he [was] familiar with the accused, Roling Sabalones,
because the latter had a criminal record in their office in connection with the
kidnapping of a certain Zabate and Macaraya. (p. 16, ibid.)
xxxxxxxxx
Dr. Jesus P. Cerna, [m]edico-[l]egal [o]fficer of the PC/INP, Cebu
Metrodiscom, had conducted an autopsy on the dead body of Alfredo Nardo,
who sustained two (2) gunshot wounds in the lower lip and left intraclavicular
region, upon the request of the [c]hief of the Homicide Section of Cebu
Metrodiscom. He issued the victims Necropsy Report, (Exh. F) and Death
Certificate, (Exh. G). (pp. 5-8, tsn, Dec. 4, 1987; pp. 4-6, tsn, Nov. 29, 1988)
He stated that the wound of entrance in gunshot wound no. 1 was located in
the lower lip, more or less[,] on the left side making an exit in the left
mandibular region. (pp. 9-11, tsn, Dec. 4, 1987; pp. 6-8, tsn, Nov. 29, 1988)
In gunshot wound no. 2, the wound of entrance was in the left intraclavicular
region exiting at the back as reflected in the sketch, (Exh. F-2). This wound
was fatal and [could] almost cause an instantaneous death considering that
the bullet penetrated the thoracic cavity, lacerating the lungs and perforating
the heart before making an exit. (pp. 11-13, tsn, Dec. 4, 1987; pp. 13-15, tsn,
Nov. 29, 1988)
He found no tattooing around the wound of entrance in both gunshot
wounds. (pp. 8-9, tsn, Nov. 29, 1988)
He prepared and issued th[e] Necropsy Report, (Exh. F) and Death
Certificate, (Exh. G) of Alfredo Nardo who was identified to him by the latters
daughter, Anita Nardo. (pp. 26-27, ibid.)
Rey Bolo, one of the victims, testified that when the jeep he was riding [in]
together with Glenn Tiempo and Alfredo Nardo, reached the gate of the
residence of Stephen Lim, they were suddenly fired upon. (pp. 5-8, tsn,
March 6, 1989)
He was hit in the right palm and left cheek. He jumped out of the vehicle and
ran towards the car which was behind them but he was again shot at [,] [and
hit] in the left scapular region. He was still able to reach the road despite the
injuries he sustained and tried to ask help from the people who were in the
vicinity but nobody dared to help him, [they] simply disappeared from the
scene, instead. (pp. 8-9, ibid.)
He took a passenger jeepney to the city and had himself treated at the Cebu
Doctors Hospital, and incurred medical expenses in the sum of P9,000.00.
(p. 9, ibid.)
He was issued a Medical Certificate, (Exh. N) by his attending physician.
Dr. Miguel Mancao, a [p]hysician-[s]urgeon, recalled having attended [to] the
victims, Nelson Tiempo, Rey Bolo and Rogelio Presores at the Cebu Doctors
Hospital on June 2, 1985. (pp. 7-8, 11, 14, tsn, May 30, 1989)
Nelson Tiempo sustained gunshot wound[s] in the neck and in the right chest
but the bullet did not penetrate the chest cavity but only the left axilla. He was
not able to recover any slugs because the same disintegrated while the other
was thru and thru. The wound could have proved fatal but the victim
miraculously survived. As a consequence of the injury he sustained, Nelson
Tiempo permanently lost his voice because his trachea was shattered. His
only chance of recovery is by coaching and speech therapy. He issued his
Medical Certificate. (Exh. O). (pp. 8-11, ibid.)
With regard to the patient, Rey Bolo, the latter suffered multiple gunshot
wounds in the left shoulder penetrating the chest and fracturing the 2nd, 3rd,
and 4th ribs in the process, in the right hand fracturing the proximal right
thumb and in the mouth lacerating its soft tissues, per Medical Certificate,
(Exh. N) which he issued. (pp. 11-16, ibid.)
Based on the trajectory of the bullet, the gunman could have been in front of
the victim, when gunshot would no. 1 was inflicted. (p. 30, ibid.)
With respect to the patient, Rogelio Presores, the latter suffered [a] gunshot
wound in the chest with the wound of entrance in the right anterior chest
exiting at the back which was slightly lower than the wound of entrance. He
issued the victims Medical Certificate, (Exh. M). (pp. 34-35, ibid.)
Based on the location of the wound, the gunman could have been in front of
the victim but [o]n a slightly higher elevation than the latter. (pp. 35-36,
ibid.)[8]
Version of the Defense
Appellants interposed denial and alibi. Their version of the facts is
summarized by the trial court[9] thus:
xxx Timoteo Beronga, a cristo or bet caller in the cockpit, testified that in the
afternoon of June 1, 1985, he was in the Talisay Sports Complex located at
Tabunok, Talisay, Cebu to attend a cock-derby.
At about 7:00 oclock in the evening, he was fetched by his wife and they left
taking a taxicab going to their residence in Lapulapu City. After passing by
the market place, they took a tricycle and arrived home at 8:00 oclock in the
evening.
After taking his supper with his family, he went home to sleep at 10:30 in the
evening. The following morning, after preparing breakfast, he went back to
sleep until 11:00 in the morning.
On February 24, 1987, while he was playing mahjong at the corner of R.R.
Landon and D. Jakosalem Sts., Cebu City, complainant, Maj. Juan Tiempo
with some companions, arrived and after knowing that he [was] Timmy,
[which was] his nickname, the former immediately held him by the neck.
He ran away but the latter chased him and kicked the door of the house
where he hid. He was able to escape through the back door and took refuge
in Mandaue at the residence of Nito Seno, a driver of Gen. Emilio
Narcissi.(Tsn-Abangan, pp. 4-17, October 19, 1989)
On February 27, 1987, upon the advi[c]e of his friend, they approached Gen.
Narcissi and informed him of the incident. The latter brought him to the
Provincial Command Headquarters in Lahug, Cebu City to confront Maj.
Juan Tiempo.
After several days, he was brought by Maj. Tiempo to the PC Headquarter[s]
in Jones Ave., Cebu City where he was provided with a lawyer to defend him
but he was instructed that he should assent to whatever his lawyer would ask
of him.
He was introduced to Atty. Marcelo Guinto, his lawyer, who made him sign
an Affidavit, (Exh. U) the contents of which, co[u]ched in the dialect, were
read to him.
He also testified that before he was detained at the CPDRC, complainant
brought him inside the shop of a certain Den Ong, where he was again
mauled after he denied having any knowledge of the whereabouts of Roling
Sabalones and the carbine.
At the instance of Col. Medija, he was physically examined at the Southern
Islands Hospital, Cebu City and was issued a [M]edical Certificate. (Tsn-
Formentera, pp. 3-36, Jan. 18, 1990).
Justiniano Cuizon, [a]ccount [o]fficer of the Visayan Electric Company
(VECO) South Extension Office, who is in charge of the billing, disconnection
and reconnection of electric current, testified that based on the entries in their
logbook, (Exh. 3) made by their checker, Remigio Villaver, the electrical
supply at the Mansueto Compound, Bulacao, Talisay, Cebu, particularly the
Mansueto Homeowners covered by Account No. 465-293000-0, (Exh. 4-B)
was disconnected on January 10, 1985, (Exh. 3-A) for non-payment of
electric bills from March 1984 to January 1985 and was reconnected only on
June 17, 1985 (Exh. 4, 4-A). (Tsn-Abangan, pp. 22-27, Jan. 31, 1990).
Remigio Villaver, a checker of VECO, whose area of responsibility cover[ed]
the towns of Talisay and San Fernando, Cebu had kept the record of
disconnection of electrical supply of Mansueto Subdivision in Bulacao,
Talisay, Cebu and the same showed that on January 10, 1985, (Exh. 3-A), a
service order was issued by their office to the Mansueto Homeowners for the
permanent disconnection of their electric lights due to non-payment of their
electric bills from March 1984 until January 1985. The actual disconnection
took place on December 29, 1984.
Witness Fredo Canete made efforts to corroborate their testimony. (Tsn-
Formentera, pp.3-5, Apr. 20, 1990).
Vicente Cabanero, a resident of Mansueto Compound in Talisay, Cebu since
1957 until the present, remembered that on June 1, 1985, between 10:00
oclock and 11:00 oclock in the evening, he heard a burst of gunfire about 15
to 20 armslength [sic] from his residence.
He did not bother to verify because he was scared since the whole place was
in total darkness. (Tsn-Abangan, pp. 18-23, Feb. 22, 1990).
Marilyn Boc, another witness for the accused, stated that on the date and
time of the incident in question, while she was at the wake of Junior
Sabalones, younger brother of Roling Sabalones, who died on May 26, 1985,
a sudden burst of gunfire occurred more or less 60 meters away.
Frightened, she went inside a room to hide and saw accused, Roling
Sabalones, sound asleep.
She came to know accused, Timoteo Beronga, only during one of the
hearings of this case and during the entire period that the body of the late
Junior Sabalones [lay] in state at his residence, she never saw said accused.
She was requested to testify in this case by Thelma Beronga, wife of Timoteo
Beronga. (Tsn-Abangan, pp. 9-13, February 28, 1990).
Dr. Daniel Medina, while then the [r]esident [p]hysician of Southern Islands
Hospital, Cebu City had treated the patient, Timoteo Beronga on March 18,
1987.
Upon examination, he found out that the patient sustained linear abrasion,
linear laceration and hematoma in the different parts of the body. Except for
the linear laceration which he believed to have been inflicted two or three
days prior to [the] date of examination, all the other injuries were already
healed indicating that the same were inflicted 10 to 12 days earlier.
He issued the corresponding Medical Certificate (Exh. 2) to the patient. (Tsn-
Abangan, pp. 9-13, May 21, 1990).
Atty. Jesus Pono, counsel for accused Beronga, mounted the witness stand
and averred that he [was] a resident of Mansueto Compound, Bulacao,
Talisay, Cebu. As shown in the pictures, (Exhs. 3, 4 & 5 with submarkings)
his house is enclosed by a concrete fence about 5 feet 6 inches tall. It is
situated 6 meters from the residence of accused, Roling Sabalones, which
was then being rented by Stephen Lim. Outside the fence [are] shrubs and at
the left side is a lamp post provided with 200 watts fluorescent bulb.
On June 1, 1985 at about 7:00 oclock in the evening, he saw Roling
Sabalones, whom he personally [knew] because they used to be neighbors
in Talisay, Cebu, at the wake of his brother, Federico Sabalones, Jr. or
Junior Sabalones, as mentioned repeatedly hereabout. They even had a talk
and he noticed accused to be physically indisposed being gravely affected by
the loss of his only brother, who met a violent death in the hands of an
unknown hitman on May 26, 1985.
He went home after he saw accused [lie] down on a bamboo bench to rest.
At about 12:00 oclock midnight, he was awakened by a rapid burst of gunfire
which emanated near his house. He did not attempt to go down or look
outside. He [was] in no position to tell whether or not the street light was
lighted.
When he verified the following morning, he noticed bloodstains on the ground
as well as inside the jeep which was parked 2 to 3 meters from his fence and
50 to 70 meters from the house where Junior Sabalones [lay] in state. He
observed that the jeep was riddled with bullets and its windshield shattered.
(Tsn-Abangan, pp. 3-16, June 6, 1990).
He admitted that he used to be a counsel of accused, Roling Sabalones, in
several cases, among which involved the death of a certain Garces and
Macaraya, which cases were however, dismissed by the Office of the
Provincial Fiscal of Cebu. (Tsn-Tumarao, pp. 2-3, June 13, 1990).
Doroteo Ejares, a relative of accused, testified that when he attended the
wake of Junior Sabalones on June 1, 1985 at 8:00 oclock in the evening, he
saw accused lying on a bamboo bench in the yard of the house of the
deceased.
At past 10:00 oclock in the evening, accused excused himself as he was not
feeling well and entered a room to rest while he remained by the door and
slept.
At almost 12:00 oclock midnight, he was awakened by a burst of gunfire
which took place more or less 20 meters away and saw the people
scamper[ing] for safety. He hid inside the room where accused was sleeping
and peeped thru the door. Not long after, Marilyn Boc entered and in a low
voice talked about the incident.
They decided to wake up the accused to inform him of what was happening,
but the latter merely opened his eyes and realizing that accused was too
weak, they allowed him to go back to sleep.
When he went home at past 5:00 oclock in the morning of June 2, 1985, he
saw a jeep outside of the compound. He did not bother to investigate or
inquire about the incident as he was in a hurry to go home and prepare for
the burial of Junior Sabalones.
He was requested to testify in this case by his aunt and mother of accused
Rolusape Sabalones. (Tsn-Tumarao, pp. 10-15, June 13, 1990).
Russo Sabalones, uncle of accused, Sabalones, averred that the latter was
once, one of his undercover agents while he was then the [c]hief of the
Intelligence Service of the PC from 1966 until 1968.
As part of their intelligence tradition, an undercover agent is not allowed to
carry his real name. In the case of his nephew and accused, Rolusape
Sabalones, the latter chose the name Paciano Laput which name was
recorded in their code of names.
When he retired in 1968, the accused ceased to be an agent and xxx
likewise ceased to have the authority to use the name Paciano Laput. (Tsn-
Abangan, p. 12, July 23, 1990).
Alfonso Allere, a distant relative of the accused, remembered having
received a call from Roling Sabalones, one morning after the burial of the
latters brother, asking for his advise because of the threats [to] his life which
he received thru telephone from the group of Nabing Velez and the group of
the military.
After he had advised accused to lie low, he had not heard of him, since then.
Godofredo Mainegro of the Public Assistance and Complaint Action Office of
the Regional Unified Command 7, received a complaint from one Inocencia
Sabalones on March 13, 1986.
He recorded the complaint in their Complaint Sheet, (Exh. 6) and let
complainant affix her signature.
After the document was subscribed and sworn to before him, (Exh. 6-C), he
indorsed it to their [c]ommanding [o]fficer, Apolinario Castano. (Tsn-
Formentera, pp. 3-10, July 24, 1990).
Ret. Col. Apolinario Castano, recalled that while he was then with the
Regional Unified Command 7, his niece, Racquel Sabalones together with
her husband Roling Sabalones, came to him for advi[c]e because the latter
was afraid of his life brought about by the rampant killings of which his
brother and the son of Maj. Tiempo were victims.
Considering that accuseds problem was a police matter, they approached
Gen. Ecarma, the then [c]ommander of the PC/INP, Recom 7, and the latter
referred them to his [c]hief of [s]taff, Col. Roger Denia, who informed them
that there was no case filed against the accused. Nevertheless, the latter
was advised to be careful and consult a lawyer.
Inocencia Sabalones, mother of accused, Roling Sabalones, narrated that on
March 12, 1986 at past 10:00 oclock in the evening, she was roused from
sleep by a shout of a man demanding for Roling Sabalones.
Upon hearing the name of her son, she immediately stood up and peeped
through the door of her store and saw men in fatigue uniforms carrying long
firearms. Thenceforth, these men boarded a vehicle and left.
On the following morning, she was again awakened by the persistent shouts
and pushing of the gate. When she verified, the man who introduced himself
to her as Maj. Tiempo, ordered her to open the gate. Once opened, the men
of Maj. Tiempo entered the house and proceeded to search for Roling
Sabalones, whom Maj. Tiempo suspected to have killed his son and shot
another to near death. When she demanded for a search warrant, she was
only shown a piece of paper but was not given the chance to read its
contents.
Racquel Sabalones, wife of accused, Rolusape Sabalones, maintained that
on June 1, 1985 at 1:00 oclock in the afternoon, she was at the wake of her
brother-in-law, Junior Sabalones, at his residence in Bulacao, Talisay, Cebu.
At 11:00 oclock in the evening of the same day, together with her 3
daughters as well as Marlyn Sabarita, Rose Lapasaran and Gloria Mondejar,
left the place in order to sleep in an unoccupied apartment situated 30
meters away from the house where her deceased, brother-in-law, Junior,
was lying in state, as shown in the Sketch, (Exh. 7 and submarkings)
prepared by her. They brought with them a flashlight because the whole
place was in total darkness.
As they were about to enter the gate leading to her apartment she noticed a
sedan car coming towards them. She waited for the car to come nearer as
she thought that the same belong[ed] to her friend, but the vehicle instead
stopped at the corner of the road, (Exh. 7-F) and then proceeded to the end
portion of Mansueto Compound, (Exh. 7-G). As it moved slowly towards the
highway, she rushed inside the apartment.
Few minutes later, she heard a burst of gunfire outside their gate. She
immediately gathered her children and instructed Marlyn Sabarita to use the
phone situated at the third door apartment and call the police.
After the lull of gunfire, she went to the terrace and saw people in civilian and
in fatigue uniforms with firearms, gathered around the place. One of these
men even asked her about the whereabouts of her husband, whom she left
sleeping in the house of the deceased.
At 8:30 in the morning of June 2, 1985, during the burial of Junior Sabalones,
they were informed by Pedro Cabanero that Roling Sabalones was a suspect
for the death of Nabing Velez and the son of Maj. Tiempo.
She believed that the reason why her husband was implicated in the killing of
Nabing Velez was because of the slapping incident involving her father-in-
law, Federico Sabalones, Sr. and Nabing Velez which took place prior to the
death of Junior Sabalones.
After the funeral, she began to receive mysterious calls at their residence in
Sikatuna St., Cebu City where they began staying since 1978. She also
noticed cars with tinted windows strangely parked in front of their residence.
Frightened and cowed, they decided to seek the advice of Col. Apolinario
Castano, who after relating to him their fears, advised her husband to lie low
and to consult a lawyer.
To allay their apprehension, accused, Roling Sabalones, left Cebu City for
Iligan, Manila and other cities to avoid those who were after him. When she
learned about the threat made by Maj. Tiempo on her husband, she
forewarned the latter not to return to Cebu.
Marlyn Sabarita, an illegitimate daughter of Rolusape Sabalones, stated that
in the night in question, she was at the wake of Junior Sabalones and saw
her Papa Roling, the herein accused, lying on the lawn of the house of the
deceased.
She was already in the apartment with her Mama Racquel when she heard a
burst of gunfire. Upon instructions of the latter, she went out to call the police
thru the phone located [in] the third apartment occupied by a certain Jet.
(Tsn-Tumarao, pp. 3-15, Oct. 15, 1990).
Edward Gutang, [a]sst. lay-out [e]ditor and [a]sst. [s]ports [e]ditor of Sun-Star
Daily, while then a military and police reporter had covered the shooting
incident which took place on June 1, 1985 at the Mansueto Compound,
Bulacao, Talisay, Cebu.
At past 1:00 oclock dawn, together with their newspaper photographer,
Almario Bitang, they went to the crime scene boarding the vehicle of the
Cosmopolitan Funeral Homes. Arriving thereat, they decided not to proceed
inside the compound because of fear. The place was then in complete
darkness.
Upon being informed that the victims were brought to Cebu City Medical
Center, they rushed to the place and met Maj. Tiempo hugging the dead
body of his 14-year old son. His photographer took a picture of that pathetic
scene. (Exh. 8-B).
Samson Sabalones, a retired [a]mbassador and uncle of Rolusape
Sabalones, posted a bail bond for his nephew with Eastern Insurance
Company, when a warrant for his arrest was issued by the Municipal Court,
on March 12, 1986 because he was bothered by the fact that the latter was
being unreasonably hunted by several groups. He even advised the accused
to appear in [c]ourt to clarify the nature of the case filed against him.
Virgincita Pajigal, a resident of Butuan City, met accused, Rolusape
Sabalones, who introduced himself to her as Paciano Laput nicknamed,
Ondo, in a massage clinic where she was working.
For less than a year, they lived together as husband and wife without the
benefit of marriage because according to her the accused was married but
separated from his wife, whose name was never mentioned to her. For such
a short span of time being together, her love for the accused developed to
the extent that whatever happen[ed] to him, she [would] always be there to
defend him.
With the help of Maj. delos Santos, who advised her to always stay close [to]
the accused, she was able to board the same vessel. She saw the latter clad
in green T-shirt, (Exh. 14) and pants, handcuffed and guarded.
Reaching Cebu City, they took a taxicab and as the vehicle went around the
city, she was instructed by Maj. Tiempo to place the towel, (Exh. 15) which
she found inside her bag, on the head of the accused. They stopped at the
Reclamation Area and Maj. Tiempo pulled them out of the vehicle but she
held on tightly to Ondo, ripping his shirt. This pulling incident happened for
several times but complainant failed to let them out of the vehicle.
The accused was finally brought to the Provincial Jail while she stayed in the
residence of the accused. She returned to Butuan after a week. (Tsn-
Formentera, pp. 5-33, Jan. 22, 1991).
Accused, Rolusape Sabalones, alias Roling, in his defense, with ancillary
incidental narrations, testified , that on June 1, 1985 at 6:00 oclock in the
evening, he was at the wake of his only brother, Junior Sabalones, who was
killed on May 26, 1985.
He had no idea as to who was responsible for the killing of his brother
inasmuch as the latter had plenty of enemies. He also did not exert effort to
look into the case and to place it under police authority since he had lost faith
in the capabilities of the police. The matter was however reported by his
uncle, Ambassador Sabalones, to the authorities.
He stayed at the wake until 10:00 oclock in the evening because he was not
feeling well. He retired in a small room adjacent to the sala of the house of
the deceased. Not long after, he felt somebody waking him up but he merely
opened his eyes and went back to sleep as he was really exhausted.
At 6:30 the following morning, he was roused by his wife so he could prepare
for the burial. He came to know about the burst of gunfire which took place
the previous night upon the information of his wife. He did not take the news
seriously as he was busy preparing for the burial of his deceased brother,
Jun.
The funeral started at past 8:00 oclock in the morning and he noticed the
presence of Maj. Eddie Ricardo and his men, who were sent by Col. Castano
purposely to provide the burial with military security, upon the request of his
wife.
He had a conversation with Maj. Ricardo who inquired about the shooting
incident which resulted in the death of the son of Maj. Tiempo and others in
his company. Also in the course of their conversation, he came to know that
Nabing Velez was killed earlier on that same night in Labangon, Cebu [C]ity.
On the same occasion, Pedro Cabanero also notified him that he was a
suspect in the killing of Nabing Velez, a radio commentator of ferocious
character, who was engaged in a protection racket with several under his
control.
He remembered that a month prior to the death of Nabing Velez, his father,
Federico Sabalones, Sr. and the deceased while matching their fighting
cocks at the Talisay Sports Complex, had an altercation and the latter
slapped his paralytic father and challenged him to ask one of his sons to
avenge what he had done to him. He came to know about the incident only
after a week.
He did not deny the fact that he was hurt by the actuation of the deceased for
humiliating his father but it did not occur to him to file a case or take any
action against the deceased because he was too busy with his business and
with his work as a bet caller in the cockpit.
He advised his father to stay in Bohol to avoid further trouble because he
knew that the latter would frequent the cockpit[,] being a cockfight aficionado.
Likewise, during the burial, he was informed by a PC soldier, Roger
Capuyan, that he was also a suspect in the killing of the son of Maj. Tiempo
and even advised him to leave the place.
On the following days after the burial, his wife started to notice cars
suspiciously parked in front of their house and [she] also received mysterious
calls.
Together with his wife, they decided to see Col. Apolinario Castao to seek his
advise. The latter verified from the Cebu Metrodiscom and learned that there
was no case filed against him.
In the evening of June 6, 1985, he left for Iligan and after a month, he
transferred to Ozamis and then to Pagadian. He likewise went to Manila
especially when he learned that his uncle, Samson Sabalones, had arrived
from abroad. The latter posted a bond for his temporary liberty immediately
after being informed that a case was filed against him, before the Municipal
Court of Talisay.
Despite xxx the bond put up by his uncle, he did not return to Cebu City
because it came to his knowledge that Maj. Tiempo inquired from the
bonding company as to his address.
He also stayed in Marikina in the house of his friend and during his stay in
the said place, he registered as a voter and was issued a Voters Affidavit,
(Exh. 19; Exh. R for the prosecution) which bore the name Paciano Mendoza
Laput which [was] his baptismal name. He explained that the name[s]
Mendoza and Laput [were] the middle name and surname, respectively of his
mother. The name Rolusape was given to him by his father and the same
[was] not his registered name because during the old days, priests would not
allow parents to name their children with names not found in the Almanac;
thus, Paciano [was] his chosen name and the same appeared in his
Baptismal Certificate, (Exh. 20) issued by the Parish of the Blessed Trinity of
Talibon, Bohol. In his Birth Certificate, it [was] the name Rolusape which
appeared based upon the data supplied by his father.
He had used the name Paciano during the time when he [was] still a secret
agent under his uncle, Gen. Russo Sabalones, when the latter was still the
[c]hief of the C-2 in 1966 until 1967 and as such, he was issued a firearm. He
likewise used said name at the time he was employed at the Governors
Office in Agusan and when he registered in the Civil Service Commission to
conceal his identity to protect himself from those who were after him.
From Marikina he proceeded to Davao and then to Butuan City where he
was made to campaign for the candidacy of Gov. Eddie Rama. When the
latter won in the election, he was given a job at the Provincial Capitol and
later became an agent of the PC in Butuan using the name, Paciano Laput.
During his stay in Butuan, he met Virgie Pajigal, a manicurist who became
his live-in partner.
On October 23, 1988 while he was at the Octagon Cockpit in Butuan with
Sgt. Tambok, he was arrested by Capt. Ochate and was brought to the PC
Headquarter[s] in Libertad, Butuan City and was detained. Among the papers
confiscated from him was his Identification Card No. 028-88, (Exh. 21) issued
by the PC Command bearing the name Paciano Laput.
On October 26, 1988 he was taken from the City Jail by Capt. Ochate and
some soldiers, one of whom was Maj. Tiempo whom he met for the first time.
On their way to Nasipit to board a vessel bound for Cebu City, Maj. Tiempo
made him lie flat on his belly and stepped on his back and handcuffed him.
He cried in pain because of his sprained shoulder. A certain soldier also took
his watch and ring.
Arriving in Cebu at 7:00 oclock in the morning, he and Virgie Pajigal, who
followed him in the boat, were made to board a taxicab. Maj. Tiempo alighted
in certain place and talked to a certain guy. Thereafter, they were brought to
the Reclamation Area and were forced to go down from the vehicle but Virgie
Pajigal held him tightly. They were again pulled out of the taxi but they
resisted.
From the Capitol Building, they proceeded to CPDRC and on their way
thereto, Maj. Tiempo sat beside him inside the taxi and boxed him on the
right cheek below the ear and pulled his cuffed hands apart.
At the Provincial Jail, he was physically examined by its resident physician,
Dr. Dionisio Sadaya, and was also fingerprinted and photographed, (Exh.
21). He was issued a Medical Certificate, (Exh. 22).
He further stated that he [was] acquainted with his co-accused Timoteo
Beronga, known to him as Timmy being also a bet caller in the cockpit. (Tsn-
Formentera, pp. 5-23, Feb. 26, 1991; Tsn-Abangan, pp. 3-33, Feb. 27, 1991;
Tsn-Abangan, pp. 4-18, Apr. 10, 1991).
As surrebuttal witness, accused Rolusape Sabalones denied that he bribed a
certain soldier because at the time he was arrested, his wallet as well as his
wristwatch and ring worth P2,000.00 each were confiscated and his hands
tied behind his back.
He also denied the allegation of Maj. Tiempo that he offered the latter the
amount of P1,000.000.00 to drop the case against him, the truth being that
while they were on board a vessel bound for Cebu City, Maj. Tiempo
compelled him to tell [who] the real killers of his son [were] because he knew
that he (Rolusape Sabalones) was not responsible. The former also inquired
from him as to the whereabouts of the carbine.
He also rebutted complainants testimony that upon their arrival here in Cebu
City and while on board a taxicab, he directed the former [to] first go around
the city to locate a certain Romeo Cabaero, whom he did not know
personally.[10]
Ruling of the Court of Appeals
Giving full credence to the evidence of the prosecution, the Court of Appeals
affirmed the trial courts Decision convicting appellants of two counts of
murder and three counts of frustrated murder. Like the trial court, it
appreciated the qualifying circumstance of treachery and rejected appellants
defense of alibi.
The Court of Appeals, however, ruled that the penalties imposed by the trial
court were erroneous. Hence, for each count of murder, it sentenced
appellants to reclusion perpetua. For each count of frustrated murder, it
imposed the following penalty: ten years (10) of prision mayor (medium), as
minimum, to seventeen years (17) years and four (4) months of reclusion
temporal (medium), as maximum. Sustaining the trial court, the Court of
Appeals awarded indemnity of P20,000 to each of the victims of frustrated
murder. However, it was silent on the indemnity of P50,000 awarded by the
trial court to the heirs of each of the two deceased.
Having imposed reclusion perpetua on the appellants, the Court of Appeals,
as earlier noted, refrained from entering judgment and certified the case to
the Supreme Court for review, in conformity with Section 13, Rule 124 of the
Rules of Court.
Hence, this appeal before this Court.[11]
The Issues
In his Brief,[12] Appellant Sabalones raised the following errors allegedly
committed by the trial court:
I counsel, adopted as his own the Brief of Sabalones.[13]
The court a quo erred in finding that accused Sabalones and his friends left
the house where his brother Sabalones Junior was lying in state and went to
their grisly destination amidst the dark and positioned themselves in defense
of his turf against the invasion of a revengeful gang of the supporters of
Nabing Velez.
II
The court a quo erred in finding that accused Sabalones and his two co-
accused were identified as among the four gunmen who fired at the victims.
III
The court a quo erred in overlooking or disregarding physical evidence that
would have contradicted the testimony of prosecution witnesses Edwin
Santos and Rogelio Presores that the gunmen were shooting at them from a
standing position.
IV
The court a quo erred in holding that the instant case is one of aberratio
ictus, which is not a defense, and that the defense of alibi interposed by the
accused may not be considered.
V
The court a quo erred in not finding that the evidence of the prosecution has
not overcome the constitutional presumption of innocence in favor of the
accused.
VI
The court a quo erred in not acquitting the accused on ground of reasonable
doubt.
In a Manifestation dated December 20, 1995, Appellant Beronga, through
The foregoing assignment of errors shall be reformulated by the Court into
these three issues or topics: (1) credibility of the witnesses and sufficiency of
the prosecution evidence, (2) defense of denial and alibi, and (3)
characterization of the crimes committed and the penalty therefor.
The Courts Ruling
The appeal is devoid of merit.
First Issue:
Credibility of Witnesses and Sufficiency of Evidence
Well-entrenched is the tenet that this Court will not interfere with the trial
courts assessment of the credibility of the witnesses, absent any indication or
showing that the trial court has overlooked some material facts or gravely
abused its discretion,[14] especially where, as in this case, such assessment
is affirmed by the Court of Appeals. As this Court has reiterated often
enough, the matter of assigning values to declarations at the witness stand is
best and most competently performed or carried out by a trial judge who,
unlike appellate magistrates, can weigh such testimony in light of the
accuseds behavior, demeanor, conduct and attitude at the trial.[15] Giving
credence to the testimonies of the prosecution witnesses, the trial court
concluded:

Stripped of unnecessary verbiage, this Court, given the evidence, finds that
there is more realism in the conclusion based on a keener and realistic
appraisal of events, circumstances and evidentiary facts on record, that the
gun slaying and violent deaths of Glenn Tiempo and Alfredo Nardo, and the
near fatal injuries of Nelson Tiempo, Rey Bolo and Rogelio Presores,
resulted from the felonious and wanton acts of the herein accused for
mistaking said victims for the persons [who were] objects of their wrath.[16]
We stress that factual findings of the lower courts, the trial court and the
Court of Appeals are, as a general rule, binding and conclusive upon the
Supreme Court.[17] We find nothing in the instant case to justify a reversal or
modification of the findings of the trial court and the Court of Appeals that
appellants committed two counts of murder and three counts of frustrated
murder.
Edwin Santos, a survivor of the assault, positively pointed to and identified
the appellants as the authors of the crime. His categorical and
straightforward testimony is quoted hereunder:[18]
COURT:
Q You stated there was a gun fired. What happened next?
WITNESS:
A There was a rapid fire in succession.
Q When you heard this rapid firing, what did you do?
A I tried to look from where the firing came from.
Q After that, what did you find?
A I saw persons firing towards us.
Q Where were these persons situated when they were firing towards you?
A Near the foot of the electric post and close to the cemented wall.
Q This electric post, was that lighted at that moment?
A Yes, sir, it was lighted.
Q How far were these persons firing, to the place where you were?
A From here to there (The witness indicating the distance by pointing to a
place inside the courtroom, indicating a distance of about 6 to 7 meters,
making the witness stand as the point of reference).
Q Were you able to know how many persons fired towards you?
A I only saw 3 to 4 persons.
Q How long did these persons fire the guns at you?
A Until we went home. The persons were still firing, until we went home.
Q You stated that you saw these persons who were firing at you. Do you
know these persons?
A I can identify [them] when I [see] them.
Q Try to look around this courtroom, if these persons you saw who were
firing at you are present in the courtroom[.]
A Yes, sir.
Q Can you point to these persons?
A Yes, sir.
Q Point at them.
COURT INTERPRETER:
The Court directed the witness to go down from the witness stand and [point]
at them, Beronga and Alegarbes. Q While the car was following the jeep at that distance of 3 to 4 meters, what
happened?
FISCAL GABIANA:
A All of a sudden, we heard the burst of gunfire.
I would like to make it of record that on the bench of prisoner, only the two
accused were seated. Q From what direction was the gunfire?

COURT: A Through the direction of the jeep.

Make it of record that only two prisoners were present. Q After hearing the gunfire, what happened?

Q Now, Mr. Santos, aside from these two accused you identified as among A We looked at the jeep.
those who fired [at] you on that evening, were there other persons that you
saw on that particular occasion who fired at you? Q What did you see?

A Yes, sir, there were[;] if I can see them, I can identify them. A We saw Alfredo Nardo and Glenn Tiempo and Rey Bolo f[a]ll to the
ground. There were only 3.
Corroborating the foregoing, Rogelio Presores, another survivor, also pointed
to Timoteo Beronga, Teodulo Alegarbes and Roling Sabalones as the Q Who was driving the jeep at that time?
perpetrators of the crime. His testimony proceeded in this manner:[19]
A Alfredo Nardo.
Q When you arrived at the residence of Stephen Lim, can you remember of
any unusual incident that took place? Q What happened after that?

A Yes, sir. A So, I looked, whence the burst of gunfire came from.

Q What was that? Q What did you see from that gunfire?

A When the jeep arrived, the car was following. A I saw 4 persons standing at the back of the fence.

Q What happened next? Q What were those 4 persons doing when they were standing at the back of
the fence?
A When the jeep was near the gate, the car was following.
A They were bringing long firearms.
Q The car was following the jeep, at what distance?
Q Did you recognize these persons?
A 3 to 4 meters.
A I can clearly recognize one and the 3 persons[.] I can identify them, if I can
see them again.
Q If you are shown these persons, can you recognize them? Can you name
these persons?
Indeed, we have carefully waded through the voluminous records of this case
and the testimonies of all the fifty-nine witnesses, and we find that the
prosecution has presented the required quantum of proof to establish that
appellants are indeed guilty as charged. Appellants arguments, as we shall
now discuss, fail to rebut this conclusion.

A No, sir. Only their facial appearance. Positive Identification

Q What about the 3 persons? Appellants allege that the two witnesses could not have properly identified
the appellants because, after the first burst of shooting, they both crouched
A Thats why the 3 persons, I do not know them. I can recognize only their down, such that they could not have seen the faces of their assailants. This
facial appearance. contention does not persuade. Both eyewitnesses testified that the firing was
not continuous; thus, during a lull in the firing, they raised their heads and
Q What about one person? managed a peek at the perpetrators. Edwin Santos testified as follows:

A Yes, sir. Atty. Albino, counsel for accused Beronga:

Q What is the name of the person? Q You mean to say that when you bent you heard the successive shots,
[and] you again raised your head. Is that correct?
A Roling Sabalones.
A There were times that the shots were not in succession and continuous
Q If Roling Sabalones is inside the courtroom, can you recognize Roling and that was the time I raised my head again.[20]
Sabalones?
Like Santos, Rogelio Presores also stooped down when the firing started, but
A Yes, sir, he is around. he raised his head during a break in the gunfire:

Q Can you point to Roling Sabalones? Atty. Albino:

A Yes, he is there (The witness pointing to the person who answered the Q So, what did you do when you first heard that one shot?
name of Roling Sabalones).
A So, after the first shot, we looked towards the direction we were facing and
Q I would like [you] again to please look around and see, if those persons when we heard the second shot, that was the time we stooped down.[21]
whom you know through their faces, if they are here around?
He further testified:
A The two of them (The witness pointing to the 2 persons, who, when asked,
answered that his name [was] Teofilo Beronga and the other [was] Atty. Acido: [Counsel for Appellant Sabalones]
Alegarbes).
Q And you said you stooped down inside the car when you heard the first
firing to the jeep. Is that what you want the Court to understand[?]
Presores:
A Yes, sir.
Q So, you never saw who fired the successive shots to the car as you said
you stooped down inside the car?
A The bursts of gunfire stopped for a while and that was the time I reared of
[sic] my head.
Q And that was the first time you saw them?
A Yes, sir.[22]
The records clearly show that two vehicles proceeded to the house of
Stephen Lim on that fateful day. The first was the jeep where Alfredo Nardo,
Glenn Tiempo and Rey Bolo were riding. About three to four meters behind
was the second car carrying Nelson Tiempo, Guillermo Viloria, Rogelio
Oliveros and the two prosecution witnesses -- Edwin Santos and Rogelio
Presores.[23] As stated earlier, said witnesses attested to the fact that after
the first volley of shots directed at the jeep, they both looked at the direction
where the shots were coming from, and they saw their friends in the jeep
falling to the ground, as well as the faces of the perpetrators.[24] It was only
then that a rapid succession of gunshots were directed at them, upon which
they started crouching to avoid being hit.
Hence, they were able to see and identify the appellants, having had a good
look at them after the initial burst of shots. We stress that the normal reaction
of a person is to direct his sights towards the source of a startling shout or
occurrence. As held in People v. Dolar,[25] the most natural reaction for
victims of criminal violence is to strive to see the looks and faces of their
assailants and to observe the manner in which the crime is committed.
In bolstering their claim that it was impossible for the witnesses to have
identified them, appellants further aver that the crime scene was dark, there
being no light in the lampposts at the time. To prove that the service wire to
the street lamps at the Mansueto Compound was disconnected as early as
December 1984 and reconnected only on June 27, 1985, they presented the
testimonies of Vicente Cabanero,[26] Remigio Villaver,[27] Fredo
Canete[28]and Edward Gutang.[29] The trial court, however, did not lend
weight to said testimonies, preferring to believe the statement of other
prosecution witnesses that the place was lighted during that time.
The Court of Appeals sustained said findings by citing the testimonies of
defense witnesses. Fredo Canete of the Visayan Electric Company (VECO),
for instance, admitted that it was so easy to connect and disconnect the
lights. He testified thus:
Atty. Kintanar:
Q Now, as a cutter, what instruments do you usually use in cutting the
electrical connection of a certain place?
Canete:
A Pliers and screw driver.
Q Does it need xxx very sophisticated instruments to disconnect the lights?
A No, these are the only instruments we use.
Q Ordinary pliers and ordinary screw driver?
A Yes, sir.
Q And does [one] need to be an expert in electronic [sic] in order to conduct
the disconnection?
A No, sir.
Q In other words, Mr. Canete, any ordinary electrician can cut it?
A That is if they are connected with the Visayan Electric Company.

Q What I mean is that, can the cutting be done by any ordinary electrician?
A Yes, sir.[30]
Said witness even admitted that he could not recall if he did in fact cut the
electrical connection of the Mansueto Compound.[31] The Court of Appeals
further noted that none of the above witnesses were at the crime scene at or
about the exact time that the ambush occurred. Thus, none was in a position
to state with absolute certainty that there was allegedly no light to illuminate
the gunmen when they rained bullets on the victims.[32]
Even assuming arguendo that the lampposts were not functioning at the
time, the headlights of the jeep and the car were more than sufficient to
illuminate the crime scene.[33] The Court has previously held that the light
from the stars or the moon, an oven, or a wick lamp or gasera can give
ample illumination to enable a person to identify or recognize another.[34] In
the same vein, the headlights of a car or a jeep are sufficient to enable
eyewitnesses to identify appellants at the distance of 4 to 10 meters.
Extrajudicial Statement of Beronga
Appellants insist that Berongas extrajudicial statement was obtained through
violence and intimidation. Citing the res inter alios acta rule, they also argue
that the said statement is inadmissible against Sabalones. Specifically, they
challenge the trial courts reliance on the following portions of Berongas
statement:
Q After Roling knew that Na[b]ing Velez was killed, have you observed [if]
Roling and his companions prepared themselves for any eventuality?
A It did not take long after we knew that Na[b]ing was killed, somebody called
up by telephone looking for Roling, and this was answered by Roling but we
did not know what they were conversing about and then Roling went back to
the house of Junior after answering the phone. And after more than two
hours, we heard the sound of engines of vehicles arriving, and then Meo, the
man who was told by Roling to guard, shouted saying: They are already
here[;] after that, Roling came out carrying a carbine accompanied by Tsupe,
and not long after we heard gunshots and because of that we ran towards
the house where the wake was. But before the gun-shots, I heard Pedring
Sabalones father of Roling saying: You clarify, [t]hat you watch out for
mistake[n] in identity, and after that shout, gunshots followed. [sic] Then after
the gun-shots Roling went back inside still carrying the carbine and shouted:
GATHER THE EMPTY SHELLS AND MEO[,] YOU BRING A FLASHLIGHT,
and then I was called by Meo to help him gather the empty shells of the
carbine and also our third companion to gather the empty shells.
These arguments have no merit. In the first place, it is well to stress that
appellants were convicted based primarily on the positive identification of the
two survivors, Edwin Santos and Rogelio Presores, and not only on the
extrajudicial statement, which merely corroborates the eyewitness
testimonies. Thus, said arguments have no relevance to this case. As the
Court held in People vs. Tidula:[35] Any allegation of violation of rights during
custodial investigation is relevant and material only to cases in which an
extrajudicial admission or confession extracted from the accused becomes
the basis of their conviction.
In any case, we sustain the trial courts holding, as affirmed by the Court of
Appeals, that the extrajudicial statement of Beronga was executed in
compliance with the constitutional requirements.[36] Extrajudicial
confessions, especially those which are adverse to the declarants interests
are presumed voluntary, and in the absence of conclusive evidence showing
that the declarants consent in executing the same has been vitiated, such
confession shall be upheld.[37]
The exhaustive testimony of Sgt. Miasco, who undertook the investigation,
shows that the appellant was apprised of his constitutional rights to remain
silent and to have competent and independent counsel of his own choice.[38]
Said witness also stated that Beronga was assisted by Atty. Marcelo Guinto
during the custodial investigation.[39] In fact, Atty. Guinto also took the
witness stand and confirmed that Appellant Beronga was informed of his
rights, and that the investigation was proper, legal and not objectionable.
Indeed, other than appellants bare allegations, there was no showing that
Berongas statement was obtained by force or duress.[40]
Equally unavailing is appellants reliance on the res inter alios acta rule under A I heard over the radio at the Sabalones Family that a certain Nabing Velez
Section 30, Rule 130 of the Rules of Court, which provides: was shot.

The act or declaration of a conspirator relating to the conspiracy and during Q That [a] certain Nabing Velez was shot? What else xxx transpired?
its existence, may be given in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act or declaration. A I observed that their reactions were so queer, - as if they were running.

Appellants assert that the admission referred to in the above provision is xxxxxxxxx
considered to be against a co-conspirator only when it is given during the
existence of the conspiracy. They argue that Berongas statement was made Q In that evening of June 1, 1985, when you went there at the house of Jun
after the termination of the conspiracy; thus, it should not be admitted and Sabalones, have you seen an armalite?
used against Sabalones.
A Yes, sir.
The well-settled rule is that the extrajudicial confession of an accused is
binding only upon himself and is not admissible as evidence against his co- Q Where did you see this armalite?
accused, it being mere hearsay evidence as far as the other accused are
concerned.[41] But this rule admits of exception. It does not apply when the A At the table where they were conversing.
confession, as in this case, is used as circumstantial evidence to show the
probability of participation of the co-accused in the killing of the victims[42] or Q How many armalites or guns [did you see] that evening in that place?
when the confession of the co-accused is corroborated by other
evidence.[43] A Two (2).

Berongas extrajudicial statement is, in fact, corroborated by the testimony of xxxxxxxxx

Prosecution Witness Jennifer Binghoy. Pertinent portions of said testimony
are reproduced hereunder:
Q While you were at the wake of Jun Sabalones and the group were sitting
with Roling Sabalones, what were they doing?
Q This armalite that you saw, - how far was this in relation to the groups of
Sabalones?
A There (The witness indicating a distance of about 4 to 5 meters).

A They were gathered in one table and they were conversing with each ATTY. KINTANAR:
other.
Q When you looked xxx through the window and saw there were two
xxxxxxxxx vehicles and there were bursts of gunfire, what happened after that?

Q On that same date, time and place, at about 10:00 [i]n the evening, can A I did not proceed to look xxx through the window because I stooped down.
you remember if there was unusual incident that took place?
Q When you stooped down, what happened?
A After the burst of gunfire, I again opened the window.
Q And when again you opened the window, what happened?
A I saw two persons going towards the jeep.
Q What transpired next after [you saw] those 2 persons?
A When they arrived there, they nodded their head[s].
Q After that, what happened?
A So, they went back to the direction where they came from, going to the
house of Sabalones.
Q While they were going to the direction of the house of Sabalones, what
transpired?
A I saw 5 to 6 persons coming from the highway and looking to the jeep, and
before they reached the jeep, somebody shouted that its ours.
Q Who shouted?
A The voice was very familiar to me.
Q Whose voice?
A The voice of Roling Sabalones.
Q What else have you noticed during the commotion [when] wives were
advising their husbands to go home?
A They were really in chaos.[44]
A careful reading of her testimony buttresses the finding of the trial court that
Rolusape Sabalones and his friends were gathered at one table, conversing
in whispers with each other, that there were two rifles on top of the table, and
that they became panicky after hearing of the death of Nabing Velez on the
radio. Hence, the observation of the trial court that they went to their grisly
destination amidst the dark and positioned themselves in defense of his turf
against the invasion of a revengeful gang of supporters of the recently slain
Nabing Velez.[45]
Alleged Inconsistencies
Appellants also allege that the prosecution account had inconsistencies
relating to the number of shots heard, the interval between gunshots and the
victims positions when they were killed. These, however, are minor and
inconsequential flaws which strengthen, rather than impair, the credibility of
said eyewitnesses. Such harmless errors are indicative of truth, not
falsehood, and do not cast serious doubt on the veracity and reliability of
complainants testimony.[46]
Appellants further claim that the relative positions of the gunmen, as testified
to by the eyewitnesses, were incompatible with the wounds sustained by the
victims. They cite the testimony of Dr. Ladislao Diola, who conducted the
autopsy on Glenn Tiempo. He declared that the victim must necessarily be
on a higher level than the assailant, in the light of the path of the bullet from
the entrance wound to where the slug was extracted. This finding, according
to appellant, negates the prosecutions account that the appellants were
standing side by side behind a wall when they fired at the victims. If standing,
appellants must have been on a level higher than that of the occupants of the
vehicles; if beside each other, they could not have inflicted wounds which
were supposed to have come from opposite angles.
We are not persuaded. The defense presumes that the victims were sitting
still when they were fired upon, and that they froze in the same position
during and after the shooting. This has no testimonial foundation. On the
contrary, it was shown that the victims ducked and hid themselves, albeit in
vain, when the firing began. After the first volley, they crouched and tried to
take cover from the hail of bullets. It would have been unnatural for them to
remain upright and still in their seats. Hence, it is not difficult to imagine that
the trajectories of the bullet wounds varied as the victims shifted their
positions. We agree with the following explanation of the Court of Appeals:
The locations of the entry wounds can readily be explained. xxx Glenn
Tiempo, after looking in the direction of the explosion, turned his body
around; and since the ambushers were between the jeep and the car, he
received a bullet in his right chest (wound no. 1) which traveled to the left. As
to wound No. 2, it can be explained by the spot where Major Tiempo found
his fallen son.
Atty. Kintanar:
Q: Upon being informed by these occupants who were ambushed and [you]
were able to return the car, what did you do?
Major Tiempo:
A: I immediately got soldiers and we immediately proceeded to the area or to
the place where my fallen son was located and when we reached x x x the
place, I saw my fallen son [in] a kneeling position where both knees [were]
touching the ground and the toes also and the forehead was touching
towards the ground. (TSN, Feb. 12, 1988, p. 6)
In such position, the second bullet necessarily traveled upwards in relation to
the body, and thus the entry wound should be lower than the exit wound.
There is no showing that both wounds were inflicted at the same time.[47]
In any event, the witnesses saw that the appellants were the gunmen who
were standing side by side firing at them. They could have been in a different
position and in another hiding place when they first fired, but this is not
important. They were present at the crime scene, and they were shooting
their rifles at the victims.
Aberratio Ictus
Appellants likewise accuse the trial court of engaging in conjecture in ruling
that there was aberratio ictus in this case. This allegation does not advance
the cause of the appellants. It must be stressed that the trial court relied on
the concept of aberratio ictus to explain why the appellants staged the
ambush, not to prove that appellants did in fact commit the crimes. Even
assuming that the trial court did err in explaining the motive of the appellants,
this does not detract from its findings, as affirmed by the Court of Appeals
and sustained by this Court in the discussion above, that the guilt of the
appellants was proven beyond reasonable doubt.
In any event, the trial court was not engaging in conjecture in so ruling. The
conclusion of the trial court and the Court of Appeals that the appellants
killed the wrong persons was based on the extrajudicial statement of
Appellant Beronga and the testimony of Jennifer Binghoy. These pieces of
evidence sufficiently show that appellants believed that they were suspected
of having killed the recently slain Nabing Velez, and that they expected his
group to retaliate against them. Hence, upon the arrival of the victims
vehicles which they mistook to be carrying the avenging men of Nabing
Velez, appellants opened fire. Nonetheless, the fact that they were mistaken
does not diminish their culpability. The Court has held that mistake in the
identity of the victim carries the same gravity as when the accused zeroes in
on his intended victim.[48]
Be that as it may, the observation of the solicitor general on this point is well-
taken. The case is better characterized as error in personae or mistake in the
identity of the victims, rather than aberratio ictus which means mistake in the
blow, characterized by aiming at one but hitting the other due to imprecision
in the blow.
Second Issue:
Denial and Alibi
Appellants decry the lower courts disregard of their defense of alibi. We
disagree. As constantly enunciated by this Court, the established doctrine
requires the accused to prove not only that he was at some other place at the
time of the commission of the crime, but that it was physically impossible for
him at the time to have been present at the locus criminis or its immediate
vicinity.[49] This the appellants miserably failed to do.
Appellant Beronga testified that, at the time of the incident, he was in his
residence in Lapulapu City, which was not shown to be so remote and
inaccessible that it precluded his presence in Mansueto Subdivision. The
alibi of Sabalones is even more unworthy of belief; he sought to establish
that he was a mere 20-25 meters away from the scene of the crime. He was
allegedly in the house of his brother who was lying in state, which was so
near the ambush site that some of the defense witnesses even testified that
they were terrified by the gunfire. Clearly, appellants failed to establish the
requisites of alibi.
Furthermore, the defense of alibi cannot overcome the positive identification
of the appellants.[50] As aptly held by this Court in People v. Nescio:[51]
Alibi is not credible when the accused-appellant is only a short distance from
the scene of the crime. The defense of alibi is further offset by the positive
identification made by the prosecution witnesses. Alibi, to reiterate a well-
settled doctrine, is accepted only upon the clearest proof that the accused-
appellant was not or could not have been at the crime scene when it was
committed.
Flight
Appellants further object to the finding that Sabalones, after the incident,
made himself scarce from the place of commission. He left for Manila, thence
Mindanao on the supposition that he want[ed] to escape from the wrath of
Maj. Tiempo and his men for the death of Glenn Tiempo and the near fatal
shooting of the other son or from the supporters of Nabing Velez. x x x On
his supposedly borrowed freedom, he jumped bail and hid himself deeper
into Mindanao, under a cloak of an assumed name. Why, did his conscience
bother him for comfort?[52]
Appellants rationalized that Sabalones was forced to jump bail in order to
escape two groups, who were allegedly out to get him, one of Nabing Velez
and the other of Major Tiempo. Their ratiocination is futile. It is well-
established that the flight of an accused is competent evidence to indicate his
guilt, and flight, when unexplained, is a circumstance from which an
inference of guilt may be drawn.[53] It must be stressed, nonetheless, that
appellants were not convicted based on legal inference alone but on the
overwhelming evidence presented against them.
Third Issue:
Crime and Punishment
We agree with the appellate court that accused-appellants are guilty of
murder for the deaths of Glenn Tiempo and Alfredo Nardo. The allegation of
treachery as charged in the Information was duly proven by the prosecution.
Treachery is committed when two conditions concur, namely, that the means,
methods, and forms of execution employed gave the person attacked no
opportunity to defend himself or to retaliate; and that such means, methods
and forms of execution were deliberately and consciously adopted by the
accused without danger to his person.[54] These requisites were evidently
present when the accused, swiftly and unexpectedly, fired at the victims who
were inside their vehicles and were in no position and without any means to
defend themselves.
The appellate court also correctly convicted them of frustrated murder for the
injuries sustained by Nelson Tiempo, Rey Bolo and Rogelio Presores. As
evidenced by the medical certificates and the testimony of Dr. Miguel
Mancao who attended to the victims, Nelson Tiempo sustained a neck
wound which completely shattered his trachea and rendered him voiceless,
as well as a wound on the right chest which penetrated his axilla but not his
chest cavity.[55] Rey Bolo sustained three injuries which affected his clavicle,
ribs and lungs.[56] Rogelio Presores, on the other hand, sustained an injury
to his lungs from a bullet wound which entered his right chest and exited
through his back.[57]
The wounds sustained by these survivors would have caused their death had
it not been for the timely medical intervention. Hence, we sustain the ruling of
the Court of Appeals that appellants are guilty of three counts of frustrated
murder.
We also uphold the Court of Appeals modification of the penalty for murder,
but not its computation of the sentence for frustrated murder.
For each of the two counts of murder, the trial court imposed the penalty of
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal
(medium), as minimum, to seventeen (17) years, four (4) months and one (1)
day of reclusion temporal (maximum), as maximum. This is incorrect. Under
Article 248 of the Revised Penal Code, the imposable penalty is reclusion
temporal, in its maximum period, to death. There being no aggravating or
mitigating circumstance, aside from the qualifying circumstance of treachery,
the appellate court correctly imposed reclusion perpetua for murder.
The Court of Appeals, however, erred in computing the penalty for each of
the three counts of frustrated murder. It sentenced appellants to
imprisonment of ten years of prision mayor (medium) as minimum to
seventeen years and four months of reclusion temporal (medium) as
maximum. It modified the trial courts computation of eight (8) years of prision
mayor (minimum), as minimum, to fourteen (14) years and eight (8) months
of reclusion temporal (minimum) as maximum.
Under Article 50 of the Revised Penal Code, the penalty for a frustrated
felony is the next lower in degree than that prescribed by law for the
consummated felony x x x. The imposable penalty for frustrated murder,
therefore, is prision mayor in its maximum period to reclusion temporal in its
medium period.[58] Because there are no aggravating or mitigating
circumstance as the Court of Appeals itself held,[59] the penalty prescribed
by law should be imposed in its medium period. With the application of the
Indeterminate Sentence Law, the penalty for frustrated murder should be 8
years of prision mayor (minimum), as minimum, to 14 years and 8 months of
reclusion temporal (minimum) as maximum.
Although the Court of Appeals was silent on this point, the trial court correctly
ordered the payment of P50,000 as indemnity to the heirs of each of the two
murdered victims. In light of current jurisprudence, this amount is awarded
without need of proof other than the fact of the victims death.[60] The trial
court and the CA, however, erred in awarding indemnity of P20,000 each to
Nelson Tiempo, Rogelio Presores and Rey Bolo. There is no basis, statutory
or jurisprudential, for the award of a fixed amount to victims of frustrated
murder. Hence, they are entitled only to the amounts of actual expenses duly
proven during the trial.
Thus, Nelson Tiempo, who was treated for a gunshot wound on the neck
which shattered his trachea, should be awarded indemnity of P21,594.22 for
his medical expenses. This is evidenced by a statement of account from
Cebu Doctors Hospital.[61]
Rogelio Presores, who was likewise treated for gunshot wound in the same
hospital, presented a statement of account amounting to P5,412.69 for his
hospitalization.[62] Hence, he is likewise entitled to indemnity in the said
amount.
Rey Bolo, on the other hand, incurred an expense of P9,431.10 for the
treatment of his gunshot wounds, as evidenced by a statement of account
from the same hospital.[63] This amount should be awarded to him as
indemnity.
WHEREFORE, the appeal is DENIED and the assailed Decision is
AFFIRMED. However, the penalties are hereby MODIFIED as follows:
1) In Crim. Case No. CBU-9257, for MURDER, the accused-appellants are
each hereby sentenced to reclusion perpetua and to indemnify, jointly and
severally, the heirs of the deceased, Glenn Tiempo, in the sum of P50,000;
2) In Crim. Case No. CBU-9258, for MURDER, the accused-appellants are
each hereby sentenced to reclusion perpetua and to indemnify, jointly and
severally, the heirs of the deceased, Alfredo Nardo, in the sum of P50,000;
3) In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, the accused-
appellants are each hereby sentenced to suffer the penalty of 8 years of
prision mayor (minimum), as minimum, to 14 years and 8 months of reclusion
temporal (minimum) as maximum; and to jointly and severally pay the victim,
Rey Bolo, in the sum of P9,431.10 as actual damages;
4) In Crim Case No. CBU-9260, for FRUSTRATED MURDER, the accused-
appellants are hereby sentenced to suffer the penalty of 8 years of prision
mayor (minimum), as minimum, to 14 years and 8 months of reclusion
temporal (minimum) as maximum; and to jointly and severally indemnify the
victim, Rogelio Presores, in the sum of P5,412.69 for actual damages;
5) In Crim. Case No. CBU-9261 for FRUSTRATED MURDER, the accused-
appellants are hereby sentenced to suffer the penalty of 8 years of prision
mayor (minimum), as minimum, to 14 years and 8 months of reclusion
temporal (minimum) as maximum; and to jointly and severally indemnify the
victim, Nelson Tiempo, in the sum of P21,594.22 as actual damages.

Let copies of this Decision be furnished the Secretary of Interior and Local
Government and the Secretary of Justice so that Accused Eufemio Cabanero
may be brought to justice.
Costs against appellants.
SO ORDERED.
Davide, Jr., (Chairman), Bellosillo, Vitug and Quisumbing, JJ., concur.
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 Decision1 dated December 20, 2005 of the
Court of Appeals in CA-G.R.-CR No. 27544 affirming the Decision2 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 Resolution3 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 (₱50,000.00) PESOS, as death indemnity; TWO HUNDRED
THOUSAND (₱200,000.00) PESOS, representing expenses for the wake
and burial; THREE HUNDRED THOUSAND (₱300,000.00) PESOS, as
moral damages; and THREE HUNDRED THIRTY[-]TWO THOUSAND
(₱332,000.00] 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. Antonio15 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.1avvphi1
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 occlusion23 is the complete obstruction of an artery of
the heart, usually from progressive arteriosclerosis24 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
myocardium27 caused by a previous heart attack. Said fibrosis28 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:
Q: I will repeat the question… Dr. Antonio testified that the deceased died
because 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.31lawph!l
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.
Brobst32 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. Rodriguez34 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,40or
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 ₱332,000. 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 capacity = 2/3 x (80-age of x a reasonable portion of the the
victim at the annual net income which time of this death) would have been
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 ₱10,600
or a gross annual income of ₱127,200. But, in view of the victim’s delicate
condition, the trial court reduced his life expectancy to 10 years. It also
deducted ₱7,000 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, jurisprudence44 approximates net income to be 50% of the gross
income. Accordingly, by reason of his death, the heirs of Manuel Chy should
be awarded ₱1,229,600 as loss of earning capacity, computed as follows:
Net earning capacity = 2/3 x (80-51) x [₱127,200 - 1/2 (₱127,200)]
= 2/3 x (29) x ₱63,600
= 19 1/3 x ₱63,600
= ₱1,229,600
We sustain the trial court’s grant of funerary expense of ₱200,000 as
stipulated by the parties45 and civil indemnity of ₱50,000.46 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 ₱50,000.
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 ₱50,000. Petitioner is further ordered to indemnify the heirs of
Manuel K. Chy ₱50,000 as civil indemnity; ₱200,000, representing expenses
for the wake and burial; and ₱1,229,600 as loss of earning capacity.
No pronouncement as to costs.
SO ORDERED. FILOMENO URBANO, petitioner,
vs.
LEONARDO A. QUISUMBING HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE
Associate Justice PHILIPPINES, respondents.

WE CONCUR:
GUTIERREZ, JR., J.:
CONCHITA CARPIO MORALES
Associate Justice This is a petition to review the decision of the then Intermediate Appellate
Court which affirmed the decision of the then Circuit Criminal Court of
ARTURO D. BRION Dagupan City finding petitioner Filomeno Urban guilty beyond reasonable
Associate Justice MARIANO C. DEL CASTILLO doubt of the crime of homicide.
Associate Justice
ROBERTO A. ABAD The records disclose the following facts of the case.
Associate Justice
At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno
ATTESTATION Urbano went to his ricefield at Barangay Anonang, San Fabian, Pangasinan
located at about 100 meters from the tobacco seedbed of Marcelo Javier. He
I attest that the conclusions in the above Decision had been reached in found the place where he stored his palay flooded with water coming from
consultation before the case was assigned to the writer of the opinion of the the irrigation canal nearby which had overflowed. Urbano went to the
Court’s Division. elevated portion of the canal to see what happened and there he saw
Marcelo Javier and Emilio Erfe cutting grass. He asked them who was
LEONARDO A. QUISUMBING responsible for the opening of the irrigation canal and Javier admitted that he
Associate Justice was the one. Urbano then got angry and demanded that Javier pay for his
Chairperson soaked palay. A quarrel between them ensued. Urbano unsheathed his bolo
(about 2 feet long, including the handle, by 2 inches wide) and hacked Javier
CERTIFICATION hitting him on the right palm of his hand, which was used in parrying the bolo
hack. Javier who was then unarmed ran away from Urbano but was
Pursuant to Section 13, Article VIII of the Constitution and the Division overtaken by Urbano who hacked him again hitting Javier on the left leg with
Chairperson’s Attestation, I certify that the conclusions in the above Decision the back portion of said bolo, causing a swelling on said leg. When Urbano
had been reached in consultation before the case was assigned to the writer tried to hack and inflict further injury, his daughter embraced and prevented
of the opinion of the Court’s Division. him from hacking Javier.

REYNATO S. PUNO Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought
Chief Justice Javier to his house about 50 meters away from where the incident happened.
Emilio then went to the house of Barangay Captain Menardo Soliven but not
G.R. No. 72964 January 7, 1988 finding him there, Emilio looked for barrio councilman Felipe Solis instead.
Upon the advice of Solis, the Erfes together with Javier went to the police
station of San Fabian to report the incident. As suggested by Corporal Torio,
Javier was brought to a physician. The group went to Dr. Guillermo Padilla,
rural health physician of San Fabian, who did not attend to Javier but instead
suggested that they go to Dr. Mario Meneses because Padilla had no
available medicine.
After Javier was treated by Dr. Meneses, he and his companions returned to
Dr. Guillermo Padilla who conducted a medico-legal examination. Dr. Padilla
issued a medico-legal certificate (Exhibit "C" dated September 28, 1981)
which reads:
TO WHOM IT MAY CONCERN:
This is to certify that I have examined the wound of Marcelo Javier, 20 years
of age, married, residing at Barangay Anonang, San Fabian, Pangasinan on
October 23, 1980 and found the following:
1 -Incised wound 2 inches in length at the upper portion of the lesser
palmar prominence, right.
As to my observation the incapacitation is from (7-9) days period. This wound
was presented to me only for medico-legal examination, as it was already
treated by the other doctor. (p. 88, Original Records)
Upon the intercession of Councilman Solis, Urbano and Javier agreed to
settle their differences. Urbano promised to pay P700.00 for the medical
expenses of Javier. Hence, on October 27, 1980, the two accompanied by
Solis appeared before the San Fabian Police to formalize their amicable
settlement. Patrolman Torio recorded the event in the police blotter (Exhibit
A), to wit:
xxx xxx xxx
Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both parties
appeared before this Station accompanied by brgy. councilman Felipe Solis
and settled their case amicably, for they are neighbors and close relatives to
each other. Marcelo Javier accepted and granted forgiveness to Filomeno
Urbano who shoulder (sic) all the expenses in his medical treatment, and
promising to him and to this Office that this will never be repeated anymore
and not to harbour any grudge against each other. (p. 87, Original Records.)
Urbano advanced P400.00 to Javier at the police station. On November 3,
1980, the additional P300.00 was given to Javier at Urbano's house in the
presence of barangay captain Soliven.
At about 1:30 a.m. on November 14, 1980, Javier was rushed to the
Nazareth General Hospital in a very serious condition. When admitted to the
hospital, Javier had lockjaw and was having convulsions. Dr. Edmundo
Exconde who personally attended to Javier found that the latter's serious
condition was caused by tetanus toxin. He noticed the presence of a healing
wound in Javier's palm which could have been infected by tetanus.
On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The
medical findings of Dr. Exconde are as follows:
Date Diagnosis
11-14-80 ADMITTED due to trismus
adm. at DX TETANUS
1:30 AM Still having frequent muscle spasm. With diffi-
#35, 421 culty opening his mouth. Restless at times. Febrile
11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessa-
tion of respiration and HR after muscular spasm.
02 inhalation administered. Ambo bag resuscita-
tion and cardiac massage done but to no avail.
Pronounced dead by Dra. Cabugao at 4:18 P.M.
PMC done and cadaver brought home by rela-
tives. (p. 100, Original Records)
In an information dated April 10, 1981, Filomeno Urbano was charged with
the crime of homicide before the then Circuit Criminal Court of Dagupan City,
Third Judicial District.
Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court
found Urbano guilty as charged. He was sentenced to suffer an
indeterminate prison term of from TWELVE (12) YEARS of prision mayor, as
minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY
of reclusion temporal, as maximum, together with the accessories of the law,
to indemnify the heirs of the victim, Marcelo Javier, in the amount of
P12,000.00 without subsidiary imprisonment in case of insolvency, and to
pay the costs. He was ordered confined at the New Bilibid Prison, in
Muntinlupa, Rizal upon finality of the decision, in view of the nature of his
penalty.
The then Intermediate Appellate Court affirmed the conviction of Urbano on
appeal but raised the award of indemnity to the heirs of the deceased to
P30,000.00 with costs against the appellant.
The appellant filed a motion for reconsideration and/or new trial. The motion
for new trial was based on an affidavit of Barangay Captain Menardo Soliven
(Annex "A") which states:
That in 1980, I was the barrio captain of Barrio Anonang, San Fabian,
Pangasinan, and up to the present having been re-elected to such position in
the last barangay elections on May 17, 1982;
That sometime in the first week of November, 1980, there was a typhoon that
swept Pangasinan and other places of Central Luzon including San Fabian, a
town of said province;
That during the typhoon, the sluice or control gates of the Bued irrigation
dam which irrigates the ricefields of San Fabian were closed and/or
controlled so much so that water and its flow to the canals and ditches were
regulated and reduced;
That due to the locking of the sluice or control gates of the dam leading to the
canals and ditches which will bring water to the ricefields, the water in said
canals and ditches became shallow which was suitable for catching
mudfishes;
That after the storm, I conducted a personal survey in the area affected, with
my secretary Perfecto Jaravata;
That on November 5, 1980, while I was conducting survey, I saw the late
Marcelo Javier catching fish in the shallow irrigation canals with some
companions;
That few days there after,or on November l5, l980, I came to know that said
Marcelo Javier died of tetanus. (p. 33, Rollo)
The motion was denied. Hence, this petition.
In a resolution dated July 16, 1986, we gave due course to the petition.
The case involves the application of Article 4 of the Revised Penal Code
which provides that "Criminal liability shall be incurred: (1) By any person
committing a felony (delito) although the wrongful act done be different from
that which he intended ..." Pursuant to this provision "an accused is criminally
responsible for acts committed by him in violation of law and for all the
natural and logical consequences resulting therefrom." (People v. Cardenas,
56 SCRA 631).
The record is clear that Marcelo Javier was hacked by the petitioner who
used a bolo as a result of which Javier suffered a 2-inch incised wound on
his right palm; that on November 14, 1981 which was the 22nd day after the
incident, Javier was rushed to the hospital in a very serious condition and
that on the following day, November 15, 1981, he died from tetanus.
Under these circumstances, the lower courts ruled that Javier's death was
the natural and logical consequence of Urbano's unlawful act. Hence, he was
declared responsible for Javier's death. Thus, the appellate court said:
The claim of appellant that there was an efficient cause which supervened
from the time the deceased was wounded to the time of his death, which
covers a period of 23 days does not deserve serious consideration. True,
that the deceased did not die right away from his wound, but the cause of his
death was due to said wound which was inflicted by the appellant. Said
wound which was in the process of healing got infected with tetanus which
ultimately caused his death.
Dr. Edmundo Exconde of the Nazareth General Hospital testified that the
victim suffered lockjaw because of the infection of the wound with tetanus.
And there is no other way by which he could be infected with tetanus except
through the wound in his palm (tsn., p. 78, Oct. 5, 1981). Consequently, the
proximate cause of the victim's death was the wound which got infected with
tetanus. And the settled rule in this jurisdiction is that an accused is liable for
all the consequences of his unlawful act. (Article 4, par. 1, R.P.C. People v.
Red, CA 43 O.G. 5072; People v. Cornel 78 Phil. 418).
Appellant's allegation that the proximate cause of the victim's death was due
to his own negligence in going back to work without his wound being properly
healed, and lately, that he went to catch fish in dirty irrigation canals in the
first week of November, 1980, is an afterthought, and a desperate attempt by
appellant to wiggle out of the predicament he found himself in. If the wound
had not yet healed, it is impossible to conceive that the deceased would be
reckless enough to work with a disabled hand. (pp. 20-21, Rollo)
The petitioner reiterates his position that the proximate cause of the death of
Marcelo Javier was due to his own negligence, that Dr. Mario Meneses found
no tetanus in the injury, and that Javier got infected with tetanus when after
two weeks he returned to his farm and tended his tobacco plants with his
bare hands exposing the wound to harmful elements like tetanus germs.
The evidence on record does not clearly show that the wound inflicted by
Urbano was infected with tetanus at the time of the infliction of the wound.
The evidence merely confirms that the wound, which was already healing at
the time Javier suffered the symptoms of the fatal ailment, somehow got
infected with tetanus However, as to when the wound was infected is not
clear from the record.
In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the
following definition of proximate cause:
xxx xxx xxx
... A satisfactory definition of proximate cause is found in Volume 38, pages
695-696 of American Jurisprudence, cited by plaintiffs-appellants in their
brief. It is as follows:
... "that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the result
would not have occurred."And more comprehensively, "the proximate legal
cause is that acting first and producing the injury, either immediately or by
setting other events in motion, all constituting a natural and continuous chain
of events, each having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting the injury as a
natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as an
ordinarily prudent and intelligent person, have reasonable ground to expect
at the moment of his act or default that an injury to some person might
probably result therefrom." (at pp. 185-186)
The issue, therefore, hinges on whether or not there was an efficient
intervening cause from the time Javier was wounded until his death which
would exculpate Urbano from any liability for Javier's death.
We look into the nature of tetanus-
The incubation period of tetanus, i.e., the time between injury and the
appearance of unmistakable symptoms, ranges from 2 to 56 days. However,
over 80 percent of patients become symptomatic within 14 days. A short
incubation period indicates severe disease, and when symptoms occur within
2 or 3 days of injury the mortality rate approaches 100 percent.
Non-specific premonitory symptoms such as restlessness, irritability, and
headache are encountered occasionally, but the commonest presenting
complaints are pain and stiffness in the jaw, abdomen, or back and difficulty
swallowing. As the progresses, stiffness gives way to rigidity, and patients
often complain of difficulty opening their mouths. In fact, trismus in the
commonest manifestation of tetanus and is responsible for the familiar
descriptive name of lockjaw. As more muscles are involved, rigidity becomes
generalized, and sustained contractions called risus sardonicus. The
intensity and sequence of muscle involvement is quite variable. In a small
proportion of patients, only local signs and symptoms develop in the region of
the injury. In the vast majority, however, most muscles are involved to some
degree, and the signs and symptoms encountered depend upon the major
muscle groups affected.
Reflex spasm usually occur within 24 to 72 hours of the first symptom, an
interval referred to as the onset time. As in the case of the incubation period,
a short onset time is associated with a poor prognosis. Spasms are caused
by sudden intensification of afferent stimuli arising in the periphery, which
increases rigidity and causes simultaneous and excessive contraction of
muscles and their antagonists. Spasms may be both painful and dangerous.
As the disease progresses, minimal or inapparent stimuli produce more
intense and longer lasting spasms with increasing frequency. Respiration
may be impaired by laryngospasm or tonic contraction of respiratory muscles
which prevent adequate ventilation. Hypoxia may then lead to irreversible
central nervous system damage and death.
Mild tetanus is characterized by an incubation period of at least 14 days and
an onset time of more than 6 days. Trismus is usually present, but dysphagia
is absent and generalized spasms are brief and mild. Moderately severe
tetanus has a somewhat shorter incubation period and onset time; trismus is
marked, dysphagia and generalized rigidity are present, but ventilation
remains adequate even during spasms. The criteria for severe tetanus
include a short incubation time, and an onset time of 72 hrs., or less, severe
trismus, dysphagia and rigidity and frequent prolonged, generalized
convulsive spasms. (Harrison's Principle of Internal Medicine, 1983 Edition,
pp. 1004-1005; Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus found inside a man's
body depends on the incubation period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right palm
when he parried the bolo which Urbano used in hacking him. This incident
took place on October 23, 1980. After 22 days, or on November 14, 1980, he
suffered the symptoms of tetanus, like lockjaw and muscle spasms. The
following day, November 15, 1980, he died.
If, therefore, the wound of Javier inflicted by the appellant was already
infected by tetanus germs at the time, it is more medically probable that
Javier should have been infected with only a mild cause of tetanus because
the symptoms of tetanus appeared on the 22nd day after the hacking
incident or more than 14 days after the infliction of the wound. Therefore, the
onset time should have been more than six days. Javier, however, died on
the second day from the onset time. The more credible conclusion is that at
the time Javier's wound was inflicted by the appellant, the severe form of
tetanus that killed him was not yet present. Consequently, Javier's wound
could have been infected with tetanus after the hacking incident. Considering
the circumstance surrounding Javier's death, his wound could have been
infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.
The rule is that the death of the victim must be the direct, natural, and logical
consequence of the wounds inflicted upon him by the accused. (People v.
Cardenas, supra) And since we are dealing with a criminal conviction, the
proof that the accused caused the victim's death must convince a rational
mind beyond reasonable doubt. The medical findings, however, lead us to a
distinct possibility that the infection of the wound by tetanus was an efficient
intervening cause later or between the time Javier was wounded to the time
of his death. The infection was, therefore, distinct and foreign to the crime.
(People v. Rellin, 77 Phil. 1038).
Doubts are present. There is a likelihood that the wound was but the remote
cause and its subsequent infection, for failure to take necessary precautions,
with tetanus may have been the proximate cause of Javier's death with which
the petitioner had nothing to do. As we ruled in Manila Electric Co. v.
Remoquillo, et al. (99 Phil. 118).
"A prior and remote cause cannot be made the be of an action if such remote
cause did nothing more than furnish the condition or give rise to the occasion
by which the injury was made possible, if there intervened between such
prior or remote cause and the injury a distinct, successive, unrelated, and
efficient cause of the injury, even though such injury would not have
happened but for such condition or occasion. If no danger existed in the
condition except because of the independent cause, such condition was not
the proximate cause. And if an independent negligent act or defective
condition sets into operation the instances which result in injury because of
the prior defective condition, such subsequent act or condition is the
proximate cause." (45 C.J. pp. 931-932). (at p. 125)
It strains the judicial mind to allow a clear aggressor to go scot free of
criminal liability. At the very least, the records show he is guilty of inflicting
slight physical injuries. However, the petitioner's criminal liability in this
respect was wiped out by the victim's own act. After the hacking incident,
Urbano and Javier used the facilities of barangay mediators to effect a
compromise agreement where Javier forgave Urbano while Urbano defrayed
the medical expenses of Javier. This settlement of minor offenses is allowed
under the express provisions of Presidential Decree G.R. No. 1508, Section
2(3). (See also People v. Caruncho, 127 SCRA 16).
We must stress, however, that our discussion of proximate cause and remote
cause is limited to the criminal aspects of this rather unusual case. It does
not necessarily follow that the petitioner is also free of civil liability. The well-
settled doctrine is that a person, while not criminally liable, may still be civilly
liable. Thus, in the recent case of People v. Rogelio Ligon y Tria, et al. (G.R.
No. 74041, July 29, 1987), we said:
xxx xxx xxx
... While the guilt of the accused in a criminal prosecution must be
established beyond reasonable doubt, only a preponderance of evidence is
required in a civil action for damages. (Article 29, Civil Code). The judgment
of acquittal extinguishes the civil liability of the accused only when it includes
a declaration that the facts from which the civil liability might arise did not
exist. (Padilla v. Court of Appeals, 129 SCRA 559).
The reason for the provisions of article 29 of the Civil Code, which provides
that the acquittal of the accused on the ground that his guilt has not been
proved beyond reasonable doubt does not necessarily exempt him from civil
liability for the same act or omission, has been explained by the Code
Commission as follows:
The old rule that the acquittal of the accused in a criminal case also releases
him from civil liability is one of the most serious flaws in the Philippine legal
system. It has given use to numberless instances of miscarriage of justice,
where the acquittal was due to a reasonable doubt in the mind of the court as
to the guilt of the accused. The reasoning followed is that inasmuch as the
civil responsibility is derived from the criminal offense, when the latter is not
proved, civil liability cannot be demanded.
This is one of those causes where confused thinking leads to unfortunate
and deplorable consequences. Such reasoning fails to draw a clear line of
demarcation between criminal liability and civil responsibility, and to
determine the logical result of the distinction. The two liabilities are separate
and distinct from each other. One affects the social order and the other,
private rights. One is for the punishment or correction of the offender while
the other is for reparation of damages suffered by the aggrieved party. The
two responsibilities are so different from each other that article 1813 of the
present (Spanish) Civil Code reads thus: "There may be a compromise upon
the civil action arising from a crime; but the public action for the imposition of
the legal penalty shall not thereby be extinguished." It is just and proper that,
for the purposes of the imprisonment of or fine upon the accused, the offense
should be proved beyond reasonable doubt. But for the purpose of indemnity
the complaining party, why should the offense also be proved beyond
reasonable doubt? Is not the invasion or violation of every private right to be
proved only by a preponderance of evidence? Is the right of the aggrieved
person any less private because the wrongful act is also punishable by the
criminal law?
"For these reasons, the Commission recommends the adoption of the reform
under discussion. It will correct a serious defect in our law. It will close up an
inexhaustible source of injustice-a cause for disillusionment on the part of the
innumerable persons injured or wronged."
The respondent court increased the P12,000.00 indemnification imposed by
the trial court to P30,000.00. However, since the indemnification was based
solely on the finding of guilt beyond reasonable doubt in the homicide case,
the civil liability of the petitioner was not thoroughly examined. This aspect of
the case calls for fuller development if the heirs of the victim are so minded.
WHEREFORE, the instant petition is hereby GRANTED. The questioned
decision of the then Intermediate Appellate Court, now Court of Appeals, is
REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of YNARES-SANTIAGO, J.,
homicide. Costs de oficio.
Chairperson,
SO ORDERED.
CHICO-NAZARIO,
Fernan, (Chairman), Feliciano, Bidin and,Cortes, JJ., concur.
VELASCO, JR.,

THIRD DIVISION NACHURA, and

PERALTA, JJ.

GEMMA T. JACINTO,

Petitioner, PEOPLE OF THE PHILIPPINES,

G.R. No. 162540 Promulgated:

Respondent.

Present:
July 13, 2009

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

- versus -
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 didnt know where to
find the woman who rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of
Investigation (NBI) and worked out an entrapment operation with its agents.
Ten pieces of P1,000.00 bills provided by Dyhengco were marked and
dusted with fluorescent powder by the NBI. Thereafter, the bills were given to
Ricablanca, who was tasked to pretend that she was going along with
Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the latter's house.
Petitioner, who was then holding the bounced BDO check, handed over said
check to Ricablanca. They originally intended to proceed to Baby Aquino's
place to have the check replaced with cash, but the plan did not push
through. However, they agreed to meet again on August 21, 2007.
On the agreed date, Ricablanca again went to petitioners house, where she
met petitioner and Jacqueline Capitle. Petitioner, her husband, and
Ricablanca went to the house of Anita Valencia; Jacqueline Capitle decided
not to go with the group because she decided to go shopping. It was only
petitioner, her husband, Ricablanca and Valencia who then boarded
petitioner's jeep and went on to Baby Aquino's factory. Only Ricablanca
alighted from the jeep and entered the premises of Baby Aquino, pretending
that she was getting cash from Baby Aquino. However, the cash she actually
brought out from the premises was the P10,000.00 marked money previously
given to her by Dyhengco. Ricablanca divided the money and upon returning
to the jeep, gave P5,000.00 each to Valencia and petitioner. Thereafter,
petitioner and Valencia were arrested by NBI agents, who had been watching
the whole time.
Petitioner and Valencia were brought to the NBI office where the Forensic
Chemist found fluorescent powder on the palmar and dorsal aspects of both
of their hands. This showed that petitioner and Valencia handled the marked
money. The NBI filed a criminal case for qualified theft against the two and
one Jane Doe who was later identified as Jacqueline Capitle, the wife of
Generoso Capitle.
The defense, on the other hand, denied having taken the subject check and
presented the following scenario. WHEREFORE, in view of the foregoing, the Court finds accused Gemma
Tubale De Jacinto y Latosa, Anita Busog De Valencia y Rivera and
Jacqueline Capitle GUILTY beyond reasonable doubt of the crime of
QUALIFIED THEFT and each of them is hereby sentenced to suffer
Petitioner admitted that she was a collector for Mega Foam until she imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND ELEVEN (11)
resigned on June 30, 1997, but claimed that she had stopped collecting DAYS, as minimum, to SIX (6) YEARS, EIGHT (8) MONTHS AND TWENTY
payments from Baby Aquino for quite some time before her resignation from (20) DAYS, as maximum.
the company. She further testified that, on the day of the arrest, Ricablanca
came to her mothers house, where she was staying at that time, and asked
that she accompany her (Ricablanca) to Baby Aquino's house. Since
petitioner was going for a pre-natal check-up at the Chinese General SO ORDERED.[7]
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 The three appealed to the CA and, on December 16, 2003, a Decision was
Ricablanca placed the money on her lap and the NBI agents arrested them. promulgated, the dispositive portion of which reads, thus:

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 IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED,
accompany her (Ricablanca) to the house of Baby Aquino. Valencia claims in that:
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 (a) the sentence against accused Gemma Jacinto stands;
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, (b) the sentence against accused Anita Valencia is reduced to 4 months
Ricablanca gave her money and so she even asked, What is this? Then, the arresto mayor medium.
NBI agents arrested them.
(c) The accused Jacqueline Capitle is acquitted.

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: 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 owners consent petitioner hid the fact that she had received the
check payment from her employer's customer by not remitting the check to
the company; (5) it was accomplished without the use of violence or
intimidation against persons, nor of force upon things the check was
voluntarily handed to petitioner by the customer, as she was known to be a
collector for the company; and (6) it was done with grave abuse of
confidence petitioner is admittedly entrusted with the collection of payments
from customers.
However, as may be gleaned from the aforementioned Articles of the
Revised Penal Code, the personal property subject of the theft must have
some value, as the intention of the accused is to gain from the thing stolen.
This is further bolstered by Article 309, where the law provides that the
penalty to be imposed on the accused is dependent on the value of the thing
stolen.
In this case, petitioner unlawfully took the postdated check belonging to
Mega Foam, but the same was apparently without value, as it was
subsequently dishonored. Thus, the question arises on whether the crime of
qualified theft was actually produced.
The Court must resolve the issue in the negative.
Intod v. Court of Appeals[9] is highly instructive and applicable to the present
case. In Intod, the accused, intending to kill a person, peppered the latters
bedroom with bullets, but since the intended victim was not home at the time,
no harm came to him. The trial court and the CA held Intod guilty of
attempted murder. But upon review by this Court, he was adjudged guilty
only of an impossible crime as defined and penalized in paragraph 2, Article
4, in relation to Article 59, both of the Revised Penal Code, because of the
factual impossibility of producing the crime. Pertinent portions of said
provisions read as follows:
Under this article, the act performed by the offender cannot produce an
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be offense against persons or property because: (1) the commission of the
incurred: offense is inherently impossible of accomplishment; or (2) the means
employed is either (a) inadequate or (b) ineffectual.

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)
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.

Article 59. Penalty to be imposed in case of failure to commit the crime Legal impossibility occurs where the intended acts, even if completed, would
because the means employed or the aims sought are impossible. - When the not amount to a crime.
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 xxxx
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 The impossibility of killing a person already dead falls in this category.
offender, shall impose upon him the penalty of arresto mayor or a fine
ranging from 200 to 500 pesos.

On the other hand, factual impossibility occurs when extraneous

Thus, the requisites of an impossible crime are: (1) that the act performed circumstances unknown to the actor or beyond his control prevent the
would be an offense against persons or property; (2) that the act was done consummation of the intended crime. x x x [11]
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) In Intod, the Court went on to give an example of an offense that involved
of the Revised Penal Code was further explained by the Court in Intod[10] in factual impossibility, i.e., a man puts his hand in the coat pocket of another
this wise:
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 latters consent.
xxxx
x x x when is the crime of theft produced? There would be all but certain
unanimity in the position that theft is produced when there is deprivation of
personal property due to its taking by one with intent to gain. Viewed from
that perspective, it is immaterial to the product of the felony that the offender,
once having committed all the acts of execution for theft, is able or unable to
freely dispose of the property stolen since the deprivation from the owner
alone has already ensued from such acts of execution. x 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 ones personal property, is
the element which produces the felony in its consummated stage. x x x [13]
From the above discussion, there can be no question that as of the time that
petitioner took possession of the check meant for Mega Foam, she had
performed all the acts to consummate the crime of theft, had it not been
impossible of accomplishment in this case. The circumstance of petitioner
receiving the P5,000.00 cash as supposed replacement for the dishonored
check was no longer necessary for the consummation of the crime of
qualified theft. Obviously, the plan to convince Baby Aquino to give cash as
replacement for the check was hatched only after the check had been
dishonored by the drawee bank. Since the crime of theft is not a continuing
offense, petitioner's act of receiving the cash replacement should not be
considered as a continuation of the theft. At most, the fact that petitioner was
caught receiving the marked money was merely corroborating evidence to
strengthen proof of her intent to gain.
WE CONCUR:

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. CONSUELO YNARES-SANTIAGO

Associate Justice
IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of
the Court of Appeals, dated December 16, 2003, and its Resolution dated Chairperson
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.

DIOSDADO M. PERALTA MINITA V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice Associate Justice

 CERTIFICATION

ANTONIO EDUARDO B. NACHURA

Associate Justice Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision
were reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.

ATTESTATION

REYNATO S. PUNO
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Chief Justice
Courts Division.

[G.R. No. 155791. March 16, 2005]

MELBA QUINTO, petitioner, vs. DANTE ANDRES and RANDYVER

PACHECO, respondents.

DECISION
CONSUELO YNARES-SANTIAGO
CALLEJO, SR., J.:
Associate Justice
At around 7:30 a.m. on November 13, 1995, eleven-year-old Edison Garcia,
Third Division, Chairperson a Grade 4 elementary school pupil, and his playmate, Wilson Quinto, who
was also about eleven years old, were at Barangay San Rafael, Tarlac,
Tarlac. They saw respondents Dante Andres and Randyver Pacheco by the
mouth of a drainage culvert. Andres and Pacheco invited Wilson to go fishing
with them inside the drainage culvert.[1] Wilson assented. When Garcia saw
that it was dark inside, he opted to remain seated in a grassy area about two
meters from the entrance of the drainage system.[2]
Respondent Pacheco had a flashlight. He, along with respondent Andres and
Wilson, entered the drainage system which was covered by concrete culvert
about a meter high and a meter wide, with water about a foot deep.[3] After a
while, respondent Pacheco, who was holding a fish, came out of the
drainage system and left[4] without saying a word. Respondent Andres also
came out, went back inside, and emerged again, this time, carrying Wilson
who was already dead. Respondent Andres laid the boys lifeless body down
in the grassy area.[5] Shocked at the sudden turn of events, Garcia fled from
the scene.[6] For his part, respondent Andres went to the house of petitioner
Melba Quinto, Wilsons mother, and informed her that her son had died.
Melba Quinto rushed to the drainage culvert while respondent Andres
followed her.[7]
The cadaver of Wilson was buried without any autopsy thereon having been
conducted. The police authorities of Tarlac, Tarlac, did not file any criminal
complaint against the respondents for Wilsons death.
Two weeks thereafter, or on November 28, 1995, National Bureau of
Investigation (NBI) investigators took the sworn statements of respondent
Pacheco, Garcia and petitioner Quinto.[8] Respondent Pacheco alleged that
he had never been to the drainage system catching fish with respondent
Andres and Wilson. He also declared that he saw Wilson already dead when
he passed by the drainage system while riding on his carabao.
On February 29, 1996, the cadaver of Wilson was exhumed. Dr. Dominic
Aguda of the NBI performed an autopsy thereon at the cemetery and
submitted his autopsy report containing the following postmortem findings:
POSTMORTEM FINDINGS
Body in previously embalmed, early stage of decomposition, attired with
white long sleeves and dark pants and placed inside a wooden coffin in a
niche-apartment style.
Hematoma, 14.0 x 7.0 cms., scalp, occipital region.
Abrasion, 4.0 x 3.0 cms., right face, 5.0 x 3.0 cms., left forearm.
Laryngo tracheal lumina congested and edematous containing muddy
particles with bloody path.
Lungs hyperinflated, heavy and readily pits on pressure; section contains
bloody froth.
Brain autolyzed and liquefied.
Stomach partly autolyzed.
CAUSE OF DEATH: Asphyxia by drowning; traumatic head injuries,
contributory.[9]
The NBI filed a criminal complaint for homicide against respondents Andres
and Pacheco in the Office of the Provincial Prosecutor, which found probable
cause for homicide by dolo against the two.
An Information was later filed with the Regional Trial Court (RTC) of Tarlac,
Tarlac, charging the respondents with homicide. The accusatory portion
reads:
That at around 8 oclock in the morning of November 13, 1995, in the
Municipality of Tarlac, Province of Tarlac, Philippines, and within the
jurisdiction of this Honorable Court, the said accused Dante Andres and
Randyver Pacheco y Suliven @ Randy, conspiring, confederating, and
helping one another, did then and there willfully, unlawfully, and feloniously
attack, assault, and maul Wilson Quinto inside a culvert where the three were
fishing, causing Wilson Quinto to drown and die.
CONTRARY TO LAW.[10]
After presenting Garcia, the prosecution presented Dr. Dominic Aguda, who
testified on direct examination that the hematoma at the back of the victims
head and the abrasion on the latters left forearm could have been caused by
a strong force coming from a blunt instrument or object. The injuries in the
larynx and trachea also indicated that the victim died of drowning, as some
muddy particles were also found on the lumina of the larynx and trachea
(Nakahigop ng putik). Dr. Aguda stated that such injury could be caused
when a person is put under water by pressure or by force.[11] On cross-
examination, Dr. Aguda declared that the hematoma on the scalp was
caused by a strong pressure or a strong force applied to the scalp coming
from a blunt instrument. He also stated that the victim could have fallen, and
that the occipital portion of his head could have hit a blunt object.
Dr. Aguda also declared that the 14x7-centimeter hematoma at the back of
Wilsons head could have rendered the latter unconscious, and, if he was
thrown in a body of water, the boy could have died by drowning.
In answer to clarificatory questions made by the court, the doctor declared
that the 4x3-centimeter abrasion on the right side of Wilsons face could have
also been caused by rubbing against a concrete wall or pavement, or by
contact with a rough surface. He also stated that the trachea region was full
of mud, but that there was no sign of strangulation.[12]
After the prosecution had presented its witnesses and the respondents had
admitted the pictures showing the drainage system including the inside
portions thereof,[13] the prosecution rested its case.
The respondents filed a demurer to evidence which the trial court granted on
the ground of insufficiency of evidence, per its Order dated January 28, 1998.
It also held that it could not hold the respondents liable for damages because
of the absence of preponderant evidence to prove their liability for Wilsons
death.
The petitioner appealed the order to the Court of Appeals (CA) insofar as the
civil aspect of the case was concerned. In her brief, she averred that
THE TRIAL COURT ERRED IN DISMISSING THE CASE AND IN RULING
THAT NO PREPONDERANT EVIDENCE EXISTS TO HOLD ACCUSED-
APPELLEES CIVILLY LIABLE FOR THE DEATH OF THE VICTIM WILSON
QUINTO.[14]
The CA rendered judgment affirming the assailed order of the RTC on
December 21, 2001. It ruled as follows:
The acquittal in this case is not merely based on reasonable doubt but rather
on a finding that the accused-appellees did not commit the criminal acts
complained of. Thus, pursuant to the above rule and settled jurisprudence,
any civil action ex delicto cannot prosper. Acquittal in a criminal action bars
the civil action arising therefrom where the judgment of acquittal holds that
the accused did not commit the criminal acts imputed to them. (Tan v.
Standard Vacuum Oil Co., 91 Phil. 672)[15]
The petitioner filed the instant petition for review and raised the following
issues:
I
WHETHER OR NOT THE EXTINCTION OF RESPONDENTS CRIMINAL
LIABILITY, LIKEWISE, CARRIES WITH IT THE EXTINCTION OF THEIR
CIVIL LIABILITY.
II
WHETHER OR NOT PREPONDERANT EVIDENCE EXISTS TO HOLD
RESPONDENTS CIVILLY LIABLE FOR THE DEATH OF WILSON
QUINTO.[16]
The petitioner avers that the trial court indulged in mere possibilities,
surmises and speculations when it held that Wilson died because (a) he
could have fallen, his head hitting the stones in the drainage system since
the culvert was slippery; or (b) he might have been bitten by a snake which
he thought was the prick of a fish fin, causing his head to hit hard on the top
of the culvert; or (c) he could have lost consciousness due to some ailment,
such as epilepsy. The petitioner also alleges that the trial court erred in ruling
that the prosecution failed to prove any ill motive on the part of the
respondents to kill the victim, and in considering that respondent Andres
even informed her of Wilsons death.
The petitioner posits that the trial court ignored the testimony of the Medico-
Legal Expert, Dr. Aguda; the nature, location and number of the injuries
sustained by the victim which caused his death; as well as the locus criminis.
The petitioner insists that the behavior of the respondents after the
commission of the crime betrayed their guilt, considering that respondent
Pacheco left the scene, leaving respondent Andres to bring out Wilsons
cadaver, while respondent Andres returned inside the drainage system only
when he saw Garcia seated in the grassy area waiting for his friend Wilson to
come out.
The petitioner contends that there is preponderant evidence on record to
show that either or both the respondents caused the death of her son and, as
such, are jointly and severally liable therefor.
In their comment on the petition, the respondents aver that since the
prosecution failed to adduce any evidence to prove that they committed the
crime of homicide and caused the death of Wilson, they are not criminally
and civilly liable for the latters death.
The petition has no merit.
Every person criminally liable for a felony is also civilly liable.[17] The civil
liability of such person established in Articles 100, 102 and 103 of the
Revised Penal Code includes restitution, reparation of the damage caused,
and indemnification for consequential damages.[18] When a criminal action
is instituted, the civil action for the recovery of civil liability arising from the
offense charged shall be deemed instituted with the criminal action unless
the offended party waives the civil action, reserves the right to institute it
separately or institutes the civil action prior to the criminal action.[19] With the
implied institution of the civil action in the criminal action, the two actions are
merged into one composite proceeding, with the criminal action
predominating the civil.[20]
The prime purpose of the criminal action is to punish the offender in order to
deter him and others from committing the same or similar offense, to isolate
him from society, to reform and rehabilitate him or, in general, to maintain
social order.[21] The sole purpose of the civil action is the restitution,
reparation or indemnification of the private offended party for the damage or
injury he sustained by reason of the delictual or felonious act of the
accused.[22] While the prosecution must prove the guilt of the accused
beyond reasonable doubt for the crime charged, it is required to prove the
cause of action of the private complainant against the accused for damages
and/or restitution.
The extinction of the penal action does not carry with it the extinction of the
civil action. However, the civil action based on delict shall be deemed
extinguished if there is a finding in a final judgment in the civil action that the
act or omission from where the civil liability may arise does not exist.[23]
Moreover, a person committing a felony is criminally liable for all the natural
and logical consequences resulting therefrom although the wrongful act done
be different from that which he intended.[24] Natural refers to an occurrence
in the ordinary course of human life or events, while logical means that there
is a rational connection between the act of the accused and the resulting
injury or damage. The felony committed must be the proximate cause of the
resulting injury. Proximate cause is that cause which in natural and
continuous sequence, unbroken by an efficient intervening cause, produces
the injury, and without which the result would not have occurred. The
proximate legal cause is that acting first and producing the injury, either
immediately, or by setting other events in motion, all constituting a natural
and continuous chain of events, each having a close causal connection with
its immediate predecessor.[25]
There must be a relation of cause and effect, the cause being the felonious
act of the offender, the effect being the resultant injuries and/or death of the
victim. The cause and effect relationship is not altered or changed because
of the pre-existing conditions, such as the pathological condition of the victim
(las condiciones patologica del lesionado); the predisposition of the offended
party (la predisposicion del ofendido); the physical condition of the offended
party (la constitucion fisica del herido); or the concomitant or concurrent
conditions, such as the negligence or fault of the doctors (la falta de medicos
para sister al herido); or the conditions supervening the felonious act such as
tetanus, pulmonary infection or gangrene.[26]
The felony committed is not the proximate cause of the resulting injury when:
(a) there is an active force that intervened between the felony committed and
the resulting injury, and the active force is a distinct act or fact absolutely
foreign from the felonious act of the accused; or
(b) the resulting injury is due to the intentional act of the victim.[27]
If a person inflicts a wound with a deadly weapon in such a manner as to put
life in jeopardy and death follows as a consequence of their felonious act, it
does not alter its nature or diminish its criminality to prove that other causes
cooperated in producing the factual result. The offender is criminally liable for
the death of the victim if his delictual act caused, accelerated or contributed
to the death of the victim.[28] A different doctrine would tend to give immunity
to crime and to take away from human life a salutary and essential
safeguard.[29] This Court has emphasized that:
Amid the conflicting theories of medical men, and the uncertainties attendant
upon the treatment of bodily ailments and injuries, it would be easy in many
cases of homicide to raise a doubt as to the immediate cause of death, and
thereby to open a wide door by which persons guilty of the highest crime
might escape conviction and punishment. [30]
In People v. Quianzon,[31] the Supreme Court held:
The Supreme Court of Spain, in a Decision of April 3, 1879, said in a case
similar to the present, the following: Inasmuch as a man is responsible for the
consequences of his act and in this case, the physical condition and
temperament of the offended party nowise lessen the evil, the seriousness
whereof is to be judged, not by the violence of the means employed, but by
the result actually produced; and as the wound which the appellant inflicted
upon the deceased was the cause which determined his death, without his
being able to counteract its effects, it is evident that the act in question
should be qualified as homicide, etc.[32]
In the present case, the respondents were charged with homicide by dolo. In
People v. Delim,[33] the Court delineated the burden of the prosecution to
prove the guilt of the accused for homicide or murder:
In the case at bar, the prosecution was burdened to prove the corpus delicti
which consists of two things: first, the criminal act and second, defendants
agency in the commission of the act. Wharton says that corpus delicti
includes two things: first, the objective; second, the subjective element of
crimes. In homicide (by dolo) and in murder cases, the prosecution is
burdened to prove: (a) the death of the party alleged to be dead; (b) that the
death was produced by the criminal act of some other than the deceased and
was not the result of accident, natural cause or suicide; and (c) that
defendant committed the criminal act or was in some way criminally
responsible for the act which produced the death. To prove the felony of
homicide or murder, there must be incontrovertible evidence, direct or
circumstantial, that the victim was deliberately killed (with malice); in other
words, that there was intent to kill. Such evidence may consist inter alia in
the use of weapons by the malefactors, the nature, location and number of
wounds sustained by the victim and the words uttered by the malefactors
before, at the time or immediately after the killing of the victim. If the victim
dies because of a deliberate act of the malefactor, intent to kill is conclusively
presumed.[34]
Insofar as the civil aspect of the case is concerned, the prosecution or the
private complainant is burdened to adduce preponderance of evidence or
superior weight of evidence. Although the evidence adduced by the plaintiff is
stronger than that presented by the defendant, he is not entitled to a
judgment if his evidence is not sufficient to sustain his cause of action. The
plaintiff must rely on the strength of his own evidence and not upon the
weakness of that of the defendants.[35]
Section 1, Rule 133 of the Revised Rules of Evidence provides how
preponderance of evidence is determined:
Section 1. Preponderance of evidence, how determined. In civil cases, the
party having the burden of proof must establish his case by a preponderance
of evidence. In determining where the preponderance or superior weight of
evidence on the issues involved lies, the court may consider all the facts and
circumstance of the case, the witnesses manner of testifying, their
intelligence, their means and opportunity of knowing the facts to which they
are testifying, the nature of the facts to which they testify, the probability of
their testimony, their interest or want of interest, and also their personal
credibility so far as the same may legitimately appear upon the trial. The
court may also consider the number of witnesses, though the preponderance
is not necessarily with the greater number.[36]
In the present case, we rule that, as held by the trial court and the CA, the
prosecution failed to adduce preponderant evidence to prove the facts on
which the civil liability of the respondents rest, i.e., that the petitioner has a
cause of action against the respondents for damages.
It bears stressing that the prosecution relied solely on the collective
testimonies of Garcia, who was not an eyewitness, and Dr. Aguda.
We agree with the petitioner that, as evidenced by the Necropsy Report of
Dr. Dominic Aguda, the deceased sustained a 14x7-centimeter hematoma on
the scalp. But as to how the deceased sustained the injury, Dr. Aguda was
equivocal. He presented two possibilities: (a) that the deceased could have
been hit by a blunt object or instrument applied with full force; or (b) the
deceased could have slipped, fell hard and his head hit a hard object:
COURT:
The Court would ask questions.
Q So it is possible that the injury, that is the hematoma, caused on the back
of the head might be due to the victims falling on his back and his head
hitting a pavement?
A Well, the 14x7-centimeter hematoma is quite extensive, so if the fall is
strong enough and would fall from a high place and hit a concrete pavement,
then it is possible.
Q Is it possible that if the victim slipped on a concrete pavement and the
head hit the pavement, the injury might be caused by that slipping?
A It is also possible.
Q So when the victim was submerged under water while unconscious, it is
possible that he might have taken in some mud or what?
A Yes, Sir.
Q So it is your finding that the victim was submerged while still breathing?
A Yes, Your Honor, considering that the finding on the lung also would
indicate that the victim was still alive when he was placed under water.[37]
The doctor also admitted that the abrasion on the right side of the victims
face could have been caused by rubbing against a concrete wall or
pavement:
Q The abrasion 4x3 centimeters on the right [side of the] face, would it be
caused by the face rubbing against a concrete wall or pavement?
A Yes, Sir. Abrasion is usually caused by a contact of a skin to a rough
surface.
Q Rough surface?
A Yes, Your Honor.
Q When you say that the trachea region was full of mud, were there no signs
that the victim was strangled?
A There was no sign of strangulation, Your Honor.[38]
The trial court gave credence to the testimony of Dr. Aguda that the
deceased might have slipped, causing the latter to fall hard and hit his head
on the pavement, thus:
Q -Could it be possible, Doctor, that this injury might have been caused when
the victim fell down and that portion of the body or occipital portion hit a blunt
object and might have been inflicted as a result of falling down?
A - If the fall if the victim fell and he hit a hard object, well, it is also
possible.[39]
The trial court took into account the following facts:
Again, it could be seen from the pictures presented by the prosecution that
there were stones inside the culvert. (See Exhibit D to D-3). The stones could
have caused the victim to slip and hit his head on the pavement. Since there
was water on the culvert, the portion soaked with water must be very
slippery, aside from the fact that the culvert is round. If the victim hit his head
and lost consciousness, he will naturally take in some amount of water and
drown.[40]
The CA affirmed on appeal the findings of the trial court, as well as its
conclusion based on the said findings.
We agree with the trial and appellate courts. The general rule is that the
findings of facts of the trial court, its assessment of probative weight of the
evidence of the parties, and its conclusion anchored on such findings,
affirmed no less by the CA, are given conclusive effect by this Court, unless
the trial court ignored, misapplied or misconstrued cogent facts and
circumstances which, if considered, would change the outcome of the case.
The petitioner failed to show any justification to warrant a reversal of the
findings or conclusions of the trial and appellate courts.
That the deceased fell or slipped cannot be totally foreclosed because even
Garcia testified that the drainage culvert was dark, and that he himself was
so afraid that he refused to join respondents Andres and Pacheco inside.[41]
Respondent Andres had no flashlight; only respondent Pacheco had one.
Moreover, Dr. Aguda failed to testify and explain what might have caused the
abrasion on the left forearm of the deceased. He, likewise, failed to testify
whether the abrasions on the face and left forearm of the victim were made
ante mortem or post mortem.
The petitioner even failed to adduce preponderance of evidence that either or
both the respondents hit the deceased with a blunt object or instrument, and,
consequently, any blunt object or instrument that might have been used by
any or both of the respondents in hitting the deceased.
It is of judicial notice that nowadays persons have killed or committed serious
crimes for no reason at all.[42] However, the absence of any ill-motive to kill
the deceased is relevant and admissible in evidence to prove that no
violence was perpetrated on the person of the deceased. In this case, the
petitioner failed to adduce proof of any ill-motive on the part of either
respondent to kill the deceased before or after the latter was invited to join
them in fishing. Indeed, the petitioner testified that respondent Andres used
to go to their house and play with her son before the latters death:
Q Do you know this Dante Andres personally?
A Not much but he used to go to our house and play with my son after going
from her mother who is gambling, Sir.
Q But you are acquainted with him, you know his face?
A Yes, Sir.
Q Will you please look around this courtroom and see if he is around?
A (Witness is pointing to Dante Andres, who is inside the courtroom.)[43]
When the petitioners son died inside the drainage culvert, it was respondent
Andres who brought out the deceased. He then informed the petitioner of her
sons death. Even after informing the petitioner of the death of her son,
respondent Andres followed the petitioner on her way to the grassy area
where the deceased was:
Q Did not Dante Andres follow you?
A He went with me, Sir.
Q So when you went to the place where your son was lying, Dante Andres
was with you?
A No, Sir. When I was informed by Dante Andres that my son was there at
the culvert, I ran immediately. He [was] just left behind and he just followed,
Sir.

Q So when you reached the place where your son was lying down, Dante
Andres also came or arrived?
A It was only when we boarded the jeep that he arrived, Sir.[44]
In sum, the petitioner failed to adduce preponderance of evidence to prove a
cause of action for damages based on the deliberate acts alleged in the
Information.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of
merit. No costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.
[G.R. No. 129291. July 3, 2002]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ENRICO A.
VALLEDOR, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
This is an appeal from the decision[1] of the Regional Trial Court of Palawan
and Puerto Princesa City, Branch 47, in Criminal Case Nos. 9359, 9401, and
9489, convicting accused-appellant of the crimes of murder, attempted
murder and frustrated murder, respectively.
The informations filed against accused-appellant read:
In Criminal Case No. 9359, for murder:
That on or about the 6th day of March, 1991, in the afternoon, at Barangay
Tagumpay, Puerto Princesa City, Philippines, and within the jurisdiction of
this Honorable Court, the said accused, with treachery and evident
premeditation, with intent to kill and while armed with a knife, did then and
there willfully, unlawfully and feloniously assault, attack and stab therewith
one Elsa Villon Rodriguez thereby inflicting upon the latter stabbed (sic)
wound on the chest, which was the immediate cause of her death.
CONTRARY TO LAW.[2]
In Criminal Case No.9401, for attempted murder:
That on or about the 6th day of March, 1991, in the afternoon, at Bgy.
Tagumpay, Puerto Princesa City, Philippines and within the jurisdiction of this
Honorable Court, the said accused, with intent to kill, with treachery and
evident premiditation (sic) and while armed with a knife, did then and there
willfully, unlawfully and feloniously assault, attack and stab therewith one
Ricardo Maglalang thereby inflicting upon the latter physical injuries on the
different parts of his body, thus commencing the commission of the crime of
murder directly by overt acts and does not perform all the acts of execution
which would produce the felony by reason of some causes or accident other
than his own spontaneous desistance that is, by the timely and able medical
assistance rendered to said Ricardo Maglalang which prevented his death.
CONTRARY TO LAW.[3]
In Criminal Case No.9489, for frustrated murder:
That on or about the 6th day of March, 1991 at Bgy. Tagumpay, Puerto
Princesa City, Philippines and within the jurisdiction of this Honorable Court
the above-named accused, with intent to kill with treachery and evidence
(sic) premeditation and while armed with a butcher knife, did then and there
willfully, unlawfully and feloniously assault, attack and stab therewith on (sic)
Roger Cabiguen, hitting him on his right forearm, thus performing all the acts
of execution which produce the crime of murder as a consequence but which
nevertheless did not produce it by reason of causes independent of his will,
that is, by the timely and able medical attendance rendered to him which
saved his life.
CONTRARY TO LAW.[4]
After his arrest, accused-appellant was intermittently confined at the National
Center for Mental Health. Thus, he was arraigned only on February 19, 1993
wherein he pleaded not guilty.[5] Thereafter, the cases were archived until
November 15, 1994, when accused-appellant was declared mentally fit to
withstand trial.[6] This time, accused-appellant admitted commission of the
crimes charged but invoked the exempting circumstance of insanity. The
lower court thus conducted reverse and joint trial, at which the following facts
were established:
On March 6, 1991, at around 1:45 in the afternoon, Roger Cabiguen was in
his house at Burgos Street, Barangay Tagumpay, Puerto Princesa City. He
was working on a lettering job inside his bedroom together with his first
cousin, then 25-year old Elsa Rodriguez, and his friends, Simplicio Yayen
and Antonio Magbanua. Roger was working at his table and seated on his
bed while Elsa was across the table. Antonio was on the left side, while
Simplicio was seated near the door, on the right side of Roger.[7]
All of a sudden, accused-appellant entered the room; uttered Rogers
nickname (Jer) and immediately attacked him with a knife, but Roger was
able to parry the thrust and was stabbed instead on the right forearm.
Accused-appellant then stabbed Elsa Rodriguez on the chest and said, Ako
akabales den, Elsa. (I had my revenge, Elsa). Thereafter, accused-appellant
fled, leaving the stunned Simplicio and Antonio unharmed.[8]
Roger and Elsa were immediately brought to the hospital. On their way out,
Antonio noticed a commotion and saw that Ricardo Maglalang, a neighbor of
the victim, was wounded. Antonio learned from the by-standers that Ricardo
was likewise stabbed by accused-appellant.[9]
Upon reaching the hospital, Elsa was declared dead on arrival. Roger on the
other hand was treated for the 5-centimeter wound sustained by him on his
right forearm.[10]
Prosecution witness Roger Cabiguen testified that sometime in 1980,
accused-appellant suspected him of killing his pet dog. In 1989, accused-
appellant courted Elsa but she jilted him. On one occasion, Elsa spat on and
slapped accused-appellant.[11]
Accused-appellants defense of insanity was anchored on the following facts:
Accused-appellant, then 30 years of age, was a resident of Barangay
Tagumpay, Puerto Princesa City, and employed as provincial jail guard at the
Palawan Provincial Jail. Sometime in January 1990, Pacita Valledor, his
mother noticed that accused-appellant was behaving abnormally. For days
he was restless and unable to sleep. He likewise complained that their
neighbors were spreading rumors that he was a rapist and a thief. This
prompted Pacita to bring his son to Dr. Deriomedes de Guzman, a medical
practitioner. Pacita disclosed to Dr. de Guzman that insanity runs in their
family. After examining accused-appellant, Dr. de Guzman diagnosed him as
suffering from psychosis with schizophrenia.[12] He prescribed a depressant
known as Thoracin, which kept accused-appellant sane for a period two
months.[13]
On March 4, 1991, Pacita noticed that accused-appellant was again acting
strangely. She left to buy Thoracin but when she returned he was nowhere to
be found.[14]
On March 6, 1991, at around 6:00 in the morning, accused-appellant was
seen swimming across the river of Barangay Caruray, San Vicente, Palawan.
Barangay Captain Rufino Nuez and Barangay Councilman Antonio Sibunga
took accused-appellant out of the water and took him on board a pump boat.
Inside the boat, accused-appellant kept on crying and uttering words to the
effect that his family will be killed. Suspecting that accused-appellant was
mentally ill, Barangay Captain Nuez, asked Councilman Sibunga to
accompany accused-appellant to Puerto Princesa City. Sibunga acceded
and thereafter took a jeepney with accused-appellant at Barangay Bahile. At
about 1:00 in the afternoon, they reached Junction I at the intersection of the
National Highway and Rizal Avenue, Puerto Princesa City. Suddenly,
accused-appellant jumped off the jeepney. Sibunga tried but failed to chase
accused-appellant, who immediately boarded a tricycle. Later that day, he
learned that accused-appellant killed and harmed somebody.[15]
Meanwhile, at around 2:00 in the afternoon of March 6, 1991, Pacita Valledor
was awakened by her daughter who told her that accused-appellant has
returned. She rushed out of the house and saw him standing in the middle of
the road, dusty and dirty. She asked him where he came from but his answer
was Pinatay niya kayong lahat. Pacita dragged him inside the house and
later learned that he killed and wounded their neighbors. Thirty minutes later,
accused-appellant was arrested and detained at the city jail.[16]
On March 11, 1991, Dr. Manuel Bilog, City Health Officer I of Puerto
Princesa City interviewed accused-appellant and thereafter made the
following conclusions and recommendation, to wit:
PHYSICAL EXAMINATION:
Cooperative; talkative but incoherent
Disoriented as to time, place and person
DISPOSITION AND RECOMMENDATION:
Respectfully recommending that subject patient be committed to the National
Mental Hospital, Metro Manila for proper medical care and evaluation
soonest.[17]
The defense offered in evidence the April 27, 1992 medical findings on
accused-appellant by Dr. Guia Melendres of the National Center for Mental
Health, pertinent portion of which reads:
REMARKS AND RECCOMENDATION:
In view of the foregoing history, observations, physical mental and
psychological examinations the patient Enrico Valledor y Andusay is found
suffering from Psychosis or Insanity classified under Schizophrenia. This is a
thought disorder characterized by deterioration from previous level of
functioning, auditory hallucination, ideas of reference, delusion of control,
suspiciousness, poor judgment and absence of insight.
Likewise, he is found to be suffering from Psychoactive Substance Use
Disorder, Alcohol, abuse. This is characterized by a maladaptive pattern of
psychoactive substance use indicated by continued use despite knowledge
of having a persistent or recurrent social, occupational, psychological or
physical problems.[18]
Dr. Oscar Magtang, a psychiatrist assigned at the Medical Service of the
PNP, Puerto Princesa City was likewise presented by the defense to interpret
the aforecited findings of Dr. Melendres.[19]
On February 28, 1997, the trial court rendered the assailed judgment of
conviction. The dispositive portion thereof reads:
WHEREFORE, premises considered, the accused ENRICO A. VALLEDOR
is hereby found guilty beyond reasonable doubt of the crimes of MURDER in
Criminal Case No. 9359; of FRUSTRATED MURDER in Criminal Case No.
9489; and of ATTEMPTED MURDER in Criminal Case No. 9401 as charged
herein. Accordingly he is hereby sentenced to suffer the penalty of reclusion
perpetua in Criminal Case No. 9359; reclusion perpetua in Criminal Case No.
9489; and imprisonment of from EIGHT (8) YEARS and ONE (1) DAY to
TEN (10) YEARS in Criminal Case No. 9401. It is understood that the
accused shall serve these penalties successively or one after the other.
The accused is also ordered to indemnify the heirs of the deceased victim
Elsa Villon Rodriguez the sum of P50,000.00 and to indemnify the victim
Roger Cabiguen, the sum of P14,000.00 as actual damages, and the sum
P15,000.00 for loss of income.
Considering that the accused is found to be suffering from a serious mental
disorder at present as certified to by the National Center for Mental Health,
Mandaluyong City, Metro Manila, the service of his sentence is hereby
ordered SUSPENDED pursuant to Article 12 and 79 of the Revised Penal
Code. He (Enrico Valledor) is ordered shipped to and confined at the
National Center for Mental Health, Mandaluyong City, Metro Manila, for his
treatment, until such time that he becomes fit for the service of his sentence
at the national penitentiary, Muntinlupa, Metro Manila. As to his civil liability,
the same is subject to execution after this judgment shall have become final
executory.
IT IS ORDERED.[20]
Accused-appellant interposed this appeal and raised the lone assignment of
error that:
THE LOWER COURT ERRED IN CONVICTING THE ACCUSED DESPITE
THE FACT THAT WHEN HE ALLEGEDLY COMMITTED THE OFFENSE
CHARGED HE WAS MENTALLY ILL, OUT OF HIS MIND OR INSANE AT
THE (sic) TIME.[21]
The appeal has no merit.
In considering a plea of insanity as a defense, the starting premise is that the
law presumes all persons to be of sound mind. Otherwise stated, the law
presumes all acts to be voluntary, and it is improper to presume that acts
were done unconsciously.[22]
In People v. Estrada,[23] it was held that:
In the eyes of the law, insanity exists when there is a complete deprivation of
intelligence in committing the act. Mere abnormality of the mental faculties
will not exclude imputability. The accused must be "so insane as to be
incapable of entertaining a criminal intent." He must be deprived of reason
and act without the least discernment because there is a complete absence
of the power to discern or a total deprivation of freedom of the will.
Since the presumption is always in favor of sanity, he who invokes insanity
as an exempting circumstance must prove it by clear and positive evidence.
And the evidence on this point must refer to the time preceding the act under
prosecution or to the very moment of its execution.
Insanity is evinced by a deranged and perverted condition of the mental
faculties which is manifested in language and conduct. An insane person has
no full and clear understanding of the nature and consequences of his acts.
Hence, insanity may be shown by the surrounding circumstances fairly
throwing light on the subject, such as evidence of the alleged deranged
person's general conduct and appearance, his acts and conduct consistent
with his previous character and habits, his irrational acts and beliefs, as well
as his improvident bargains. The vagaries of the mind can only be known by
outward acts, by means of which we read thoughts, motives and emotions of
a person, and through which we determine whether the acts conform to the
practice of people of sound mind.[24]
In the case at bar, accused-appellant failed to discharge the burden of
overcoming the presumption of sanity at the time of the commission of the
crime. The following circumstances clearly and unmistakably show that
accused-appellant was not legally insane when he perpetrated the acts for
which he was charged: 1) Simplicio Yayen was positioned nearest to
accused-appellant but the latter chose to stab Roger and Elsa; 2) Accused-
appellant called out the nickname of Roger before stabbing him; 3) Simplicio
Yayen and Antonio Magbanua who were likewise inside the room were left
unharmed; 4) Accused-appellant, a spurned suitor of Elsa, uttered the words,
Ako akabales den, Elsa. (I had my revenge, Elsa) after stabbing her; and 5)
Accused-appellant hurriedly left the room after stabbing the victims.
Evidently, the foregoing acts could hardly be said to be performed by one
who was in a state of a complete absence of the power to discern. Judging
from his acts, accused-appellant was clearly aware and in control of what he
was doing as he in fact purposely chose to stab only the two victims. Two
other people were also inside the room, one of them was nearest to the door
where accused-appellant emerged, but the latter went for the victims. His
obvious motive of revenge against the victims was accentuated by calling out
their names and uttering the words, I had my revenge after stabbing them.
Finally, his act of immediately fleeing from the scene after the incident
indicates that he was aware of the wrong he has done and the consequence
thereof.
Accused-appellants acts prior to the stabbing incident to wit: crying;
swimming in the river with his clothes on; and jumping off the jeepney; were
not sufficient to prove that he was indeed insane at the time of the
commission of the crime. As consistently held by this Court, A man may act
crazy but it does not necessarily and conclusively prove that he is legally
so.[25] Then, too, the medical findings showing that accused-appellant was
suffering from a mental disorder after the commission of the crime, has no
bearing on his liability. What is decisive is his mental condition at the time of
the perpetration of the offense. Failing to discharge the burden of proving
that he was legally insane when he stabbed the victims, he should be held
liable for his felonious acts.
In Criminal Case No. 9489, accused-appellant should be held liable only for
attempted murder and not frustrated murder. The wound sustained by Roger
Cabiguen on his right forearm was not fatal. The settled rule is that where the
wound inflicted on the victim is not sufficient to cause his death, the crime is
only attempted murder, since the accused did not perform all the acts of
execution that would have brought about death.[26]
Pursuant to Article 51 of the Revised Penal Code, the penalty to be imposed
upon the principal of an attempted crime shall be lower by two degrees than
that prescribed for the consummated felony. Before its amendment by R.A.
No. 7659, Article 248 provided that the penalty for murder was reclusion
temporal in its maximum period to death. Under Article 61(3), the penalty two
degrees lower would be prision correccional maximum to prision mayor
medium. As there is no modifying circumstance, the medium period of the
penalty, which is prision mayor minimum, should be imposed. Under the
Indeterminate Sentence Law, accused-appellant is entitled to a minimum
penalty of arresto mayor in its maximum period to prision correcional in its
medium period, the penalty next lower than the penalty for attempted
murder.[27]
For the murder of Elsa Rodriguez, in Criminal Case No. 9359, the trial court
correctly imposed upon accused-appellant the penalty of reclusion perpetua,
considering that no aggravating or mitigating circumstance was proven by
the prosecution.
Accused-appellants civil liability must be modified. Not being substantiated
by evidence, the award of P14,000.00 as actual damages, and P15,000.00
for loss of income, to Roger Cabiguen in Criminal Case No. 9489, should be
deleted. However, in lieu thereof, temperate damages under Article 2224 of
the Civil Code may be recovered, as it has been shown that Roger Cabiguen
suffered some pecuniary loss but the amount thereof cannot be proved with
certainty. For this reason, an award of P10,000.00 by way of temperate
damages should suffice.[28]
In addition to the amount of P50,000.00 as civil indemnity which was properly
awarded by the trial court in Criminal Case No. 9359, the heirs of Elsa
Rodriguez are entitled to another P50,000.00 as moral damages which
needs no proof since the conviction of accused-appellant for the crime of
murder is sufficient justification for said award.[29] The heirs of the deceased
are likewise entitled to the amount of P29,250.00 representing actual
damages[30] based on the agreement of the parties.[31]
WHEREFORE, in view of all the foregoing, the decision of the Regional Trial
Court of Palawan and Puerto Princesa City, Branch 47, is MODIFIED as
follows:
1. In Criminal Case No. 9359, accused-appellant Enrico A. Valledor is hereby
found guilty beyond reasonable doubt of the crime of murder and is
sentenced to suffer the penalty of reclusion perpetua; and to indemnify the
heirs of the deceased Elsa Rodriguez the following amounts: P50,000.00 as
civil indemnity, P50,000.00 as moral damages and P29,250.00 as actual
damages;
2. In Criminal Case No. 9489, accused-appellant is found guilty beyond
reasonable doubt only of the crime of attempted murder and is sentenced to
an indeterminate penalty of four (4) years and two (2) months of prision
correccional, as minimum, to eight (8) years of prision mayor, as maximum;
and to indemnify Roger Cabiguen in the amount of P10,000.00 by way of
temperate damages;
3. In Criminal Case No. 9401, accused-appellant is found guilty beyond
reasonable doubt of the crime of attempted murder and is sentenced to an
indeterminate penalty of four (4) years and two (2) months of prision
correccional, as minimum, to eight (8) years of prision mayor, as maximum.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, Kapunan, and Austria-Martinez, JJ.,
concur.
G.R. No. L-2189 November 3, 1906
THE UNITED STATES,Plaintiff-Appellee, vs. FRANCISCO BAUTISTA, ET
AL.,Defendants-Appellants.
Aguedo Velarde and Pineda and Escueta, for appellants.
Office of the Solicitor-General Araneta, for appellee.
CARSON, J.:
The appellants in this case was convicted in the Court of First Instance of
Manila of the crime of conspiracy to overthrow, put down, and destroy by
force the Government of the United States in the Philippine Islands and the
Government of the Philippine Islands, as defined and penalized in section 4
of Act No. 292 of the Philippine Commission.chanroblesvirtualawlibrary
chanrobles virtual law library
The appellant Francisco Bautista was sentenced to four years' imprisonment,
with hard labor, and $3,000 fine, and Aniceto de Guzman and Tomas Puzon,
and each of them, to three years' imprisonment, with hard labor, and a fine of
$2,000, and all and each of the said appellants to pay their proportionate
share of the costs of the trial and to undergo subsidiary imprisonment in the
event of insolvency and failure to pay their respective
fines.chanroblesvirtualawlibrary chanrobles virtual law library
The evidence of record conclusively establishes that during the latter part of
the year 1903 a junta was organized and a conspiracy entered into by a
number of Filipinos, resident in the city of Hongkong, for the purpose of
overthrowing the Government of the United States in the Philippine Islands
by force of arms and establishing in its stead a government to be known as
the Republica Universal Democratica Filipina; that one Prim Ruiz was
recognized as the titular head of this conspiracy and one Artemio Ricarte as
chief of the military forces to the organized in the Philippines in the
furtherance of the plans of the conspirators; that toward the end of
December, 1903 the said Ricarte came to Manila from Hongkong in hidding
on board the steamship Yuensang; that after his arrival in the Philippines he
held a number of meetings in the city of Manila and the adjoining provinces
whereat was perfected the above-mentioned conspiracy hatched in
Hongkong that at these meetings new members were taken into the
conspiracy and plans made for the enlistment of an army of revolution and
the raising of money by national and private loans to carry on the campaign;
that to this end bonds were issued and commissions as officers in the
revolutionary army were granted to a number of conspirators, empowering
the officers thus appointed to raise troops and take command thereof; and
that the conspirators did in fact take the field and offered armed resistance to
the constituted authorities in the Philippines, only failing in their design of
overthrowing the Government because of their failure to combat successfully
with the officers of the law who were sent against them and of the failure of
the people to rise en masse in response to their
propaganda.chanroblesvirtualawlibrary chanrobles virtual law library
It further appears from the evidence that the appellant Francisco Bautista, a
resident of the city of Manila, was an intimate friend of the said Ricarte; that
Ricarte wrote and notified Bautista of his coming to Manila and that, to aid
him in his journey, Bautista forwarded to him secretly 200 pesos; that after
the arrival of Ricarte, Bautista was present, taking part in several of the
above-mentioned meetings whereat the plans of the conspirators were
discussed and perfected, and that at one of these meetings Bautista, in
answer to a question of Ricarte, assured him that the necessary preparations
had been made and that he "held the people in readiness." chanrobles virtual
law library
It further appears that the appellant, Tomas Puzon, united with the
conspirators through the agency of one Jose R. Muñoz, who was proven to
have been a prime leader of the movement, in the intimate confidence of
Ricarte, and by him authorized to distribute bonds and nominate and appoint
certain officials, including a brigadier-general of the signal corps of the
proposed revolutionary forces; that at the time when the conspiracy was
being brought to a head in the city of Manila, Puzon held several conferences
with the said Muñoz whereat plans were made for the coming insurrection;
that at one of these conferences Muñoz offered Puzon a commission as
brigadier-general of the signal corps and undertook to do his part in
organizing the troops; and that at a later conference he assured the said
Muñoz that he had things in readiness, meaning thereby that he had duly
organized in accordance with the terms of his
commission.chanroblesvirtualawlibrary chanrobles virtual law library
Puzon at the trial declared that he had never united himself with the
conspirators; that he had accepted the appointment as brigadier-general of
the signal corps of the revolutionary forces with no intention of ever taking
any further action in the matter, and merely because he did not wish to vex
his friend Muñoz by refusing to do so, and that when Muñoz offered him the
appointment as brigadier-general he did so in "a joking tone," and that he,
Puzon, did not know that Ricarte was in Manila organizing the conspiracy at
that time.chanroblesvirtualawlibrary chanrobles virtual law library
These statements, however (except in so far as they corroborate the
testimony of Muñoz as to the fact that he had several interviews with Puzon
at which plans were entered into for the advancement of the cause of the
conspirators), can not be accepted as true in the light of a written statement
signed by Puzon himself at the time when he was first arrested, part of which
is as follows:
Q. What is your name and what is your age, residence, and
occupation? - A. My name is Tomas Puzon; born in Binondo in the Province
of Manila; 37 years of age; married; by profession a teacher of primary and
secondary schools, and residing in Calle Concepcion, No. 195, district of
Quiapo.chanroblesvirtualawlibrary chanrobles virtual law library
Q. Do you know Artemio Ricarte? - A. Personally I do not know him, but
by name, yes.chanroblesvirtualawlibrary chanrobles virtual law library
Q. Did you have any information that Ricarte was in these Islands and
with what object he came here? And if you know it to be true, through whom
did you get such information? - A. In the first place I had notice of his coming
to the Islands as well as his object by reading the newspapers of Manila, and
secondly because J. R. Muñoz told me the same on one occasion when I
was in his house to visit him.chanroblesvirtualawlibrary chanrobles virtual law
library
Q. Did you acquire this information through any other person? - A. No,
sir; I have no more information than that which I have
mentioned.chanroblesvirtualawlibrary chanrobles virtual law library
Q. Are you a part of his new revolution presided over by Ricarte? - A.
Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library
Q. What is the employment ( empleo) which you have in this
organization, and who is it who invited you to join it? - A. J. R. Muñoz, who is
general of division of this new organization, spoke to me with much instance,
asking me to accept employment as brigadier-general, chief of signal corps,
to which I, on account of his request and in view of the fact that the said
Muñoz is a friend of mine from my youth, acceded; nevertheless I have
organized absolutely nothing in respect to this
matter.chanroblesvirtualawlibrary chanrobles virtual law library
Q. Did you accept the employment and did they give you any
commission for it? - A. Yes, sir; I accepted said employment and although
they gave me an order to organize in my brigade I did not do it, because I
had neither the confidence nor the will.chanroblesvirtualawlibrary chanrobles
virtual law library
Q. If you didn't have faith in the said authorization nor the will to carry
out what was intrusted to you, why did you accept employment as general of
the brigade? - A. I accepted it on account of friendship and not to vex a
friend, but I never have the intention of fulfilling the obligations.
Puzon, when on the stand in his own behalf, did not deny that he made this
statement, but he attempted to explain it away by saying that when he made
it he was so exited that he did not know just what he was saying. He does
not allege that improper means were taken to procure the confession, and it
was proven at the trial that it was freely and voluntarily made and not the
result of violence, intimidation, threat, menace, or promise of reward or
leniency. The accused appears to be an intelligent man and was for eighteen
years a school-teacher and later a telegraph operator under the Spanish
Government, and during the insurrection he held a commission as an officer
in the signal corps of the revolutionary army. His confession is clear and
intelligible and in no way supports his pretense that he was so excited as not
to know what he was saying when he made it, and its truth and accuracy in
so far it inculpates him is sustained by other evidence of record in this
case.chanroblesvirtualawlibrary chanrobles virtual law library
It is contended that the acceptance or possession of an appointment as an
officer of the military forces of the conspiracy should not be considered as
evidence against him in the light of the decisions of this court in the cases of
the United States vs. Antonio de los Reyes 1 (2 Off. Gaz., 364), United
States vs. Silverio Nuñez et al. 2 (3 Off. Gaz., 408), the United States vs.
Eusebio de la Serna et al. 3 (3 Off. Gaz., 528), and United States vs.
Bernardo Manalo et al. 4 (4 Off. Gaz., 570). But the case at bar is to be
distinguished from these and like cases by the fact that the record clearly
disclose that the accused actually and voluntarily accepted the apppointment
in question and in doing so assumed all the obligations implied by such
acceptance, and that the charge in this case is that of conspiracy, and the
fact that the accused accepted the appointment is taken into consideration
merely as evidence of his criminal relations with the conspirators. In the first
of these cases - the United States vs. De los Reyes - the accused was
charged with treason, and the court found that the mere acceptance of a
commission by the defendant, nothing else being done either by himself or
by his companions, was not an "overt act" of treason within the meaning of
the law, but the court further expressly held that -
That state of affairs disclosed body of evidence, . . . the playing of the game
of government like children, the secretaries, colonels, and captains, the
pictures of flags and seals and commission, all on proper, for the purpose of
duping and misleading the ignorant and the visionary . . . should not be
dignified by the name of treason.
In the second case - the United States vs. Nuñez et al. -- wherein the
accused were charged with brigandage, the court held that, aside from the
possession of commissions in an insurgent band, there was no evidence to
show that it they had committed the crime and, "moreover, that it appeared
that they had never united with any party of brigands and never had been in
any way connected with such parties unless the physical possession of these
appointments proved such relation," and that it appeared that each one of
the defendants "were separately approached at different times by armed
men while working in the field and were virtually compelled to accept the
commissions." chanrobles virtual law library
In the case of the United States vs. de la Serna et al. it was contended that
de la Serna had confessed that "he was one of the members of the
pulajanes, with a commission as colonel," but the court was of opinion that
the evidence did not sustain a finding that such confession had in fact been
made, hence the doctrine laid down in that decision, "that the mere
possession of such an appointment, when it is not shown that the possessor
executed some external act by the virtue of the same, does not constitute
sufficient proof of the guilt of the defendant," applies only the case of Enrique
Camonas, against whom the only evidence of record was "the fact that a so-
called appointment of sergeant was found at his house."chanrobles virtual
law library
In the case of the United States vs. Bernardo Manalo et al. there was
testimony that four appointments of officials in a revolutionary army were
found in a trunk in the house of one Valentin Colorado, and the court in said
case reaffirmed the doctrine that "the mere possession of the documents of
this kind is not sufficient to convict," and held, furthermore, that there was
"evidence in the case that at the time these papers were received by the
appellant, Valentin Colorado, he went to one of the assistant councilmen of
the barrio in which lived, a witness for the Government, showed him the
envelope, and stated to him he had received these papers; that he didn't
know what they were and requested this councilman to open them. The
coucilman did not wish to do that but took the envelope and sent it to the
councilman Jose Millora. We are satisfied that this envelope contained the
appointments in question and that the appellant did not act under the
appointment but immediately reported the receipt of them to the authorities."
chanrobles virtual law library
It is quite conceivable that a group of conspirators might appoint a person in
no wise connected with them to some high office in the conspiracy, in the
hope that such person would afterwards accept the commission and thus
unite himself with them, and it is even possible that such an appointment
might be forwarded in the mail or otherwise, and thus come into the
possession of the person thus nominated, and that such appointment might
be found in his possession, and, notwithstanding all this, the person in whose
possession the appointment was found might be entirely innocent of all
intention to join the conspiracy, never having authorized the conspirators to
use his name in this manner nor to send such a commission to him. Indeed,
cases are not unknown in the annals of criminal prosecutions wherein it has
been proven that such appointments have been concealed in the baggage or
among the papers of the accused persons, so that when later discovered by
the officers of the law they might be used as evidence against the accused.
But where a genuine conspiracy is shown to have existed as in this case,
and it is proven that the accused voluntarily accepted an appointment as an
officer in that conspiracy, we think that this fact may properly be taken into
consideration as evidence of his relations with the
conspirators.chanroblesvirtualawlibrary chanrobles virtual law library
Counsel for appellants contend that the constitutional provision requiring the
testimony of at least two witnesses to the same overt act, or confession in
open court, to support a conviction for the crime of treason should be applied
in this case, but this court has always held, in conformance with the
decisions of the Federal courts of the United States, that the crime of
conspiring to commit treason is a separate and distinct offense from the
crime of treason, and that this constitutional provision is not applicable in
such cases. ( In re Bollman, 4 Cranch, 74; U. S. vs. Mitchell, 2 Dall.,
348.)chanrobles virtual law library
The evidence of record does not sustain the conviction of Aniceto de
Guzman. The finding of his guilt rest substantially upon his acceptance of a
number of bonds from one of the conspirators, such bonds having been
prepared by the conspirators for the purpose of raising funds for carrying out
the plans of the conspiracy, but it does not affirmatively appear that he knew
anything of the existence of the conspiracy or that, when he received the
bonds wrapped in a bundle, he knew what the contents of the bundle was,
nor that ever, on any occasion, assumed any obligation with respect to these
bonds. He, himself, states that when he opened the bundle and discovered
the nature of the contents he destroyed them with fire, and that he never had
any dealings with the conspirators in relation to the conspiracy or the object
for which it was organized.chanroblesvirtualawlibrary chanrobles virtual law
library
We are of opinion, therefore, that the judgment and sentence before us, in so
far as it affects the said Aniceto de Guzman, should be reversed, with his
proportionate share of the costs of both instances de oficio, and that the said
Anecito de Guzman should be acquitted of the crime with which he is
charged and set a liberty forthwith, and that the judgment and sentence of
the trial court, in so far as it applies to Francisco Bautista and Tomas Puzon,
should be, and is hereby, affirmed, except so far as it imposes subsidiary
imprisonment in the event of insolvency and failure to pay their respective
fines, and, there being no authority in law of such provision, so much of the
sentence as undertakes to impose subsidiary imprisonment is hereby
reversed.chanroblesvirtualawlibrary chanrobles virtual law library
After ten days let judgment be entered in accordance herewith, when the
record will be returned to the trial court for execution. So
ordered.chanroblesvirtualawlibrary chanrobles virtual law library
Arellano, C.J., Torres, Johnson and Tracey, JJ., concur.
Mapa, and Willard, JJ., concur as to the penalty imposed upon Bautista and
dissent as to that imposed upon Puzon.
G.R. No. L-31657 January 31, 1984
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EDGARDO VENGCO Y DAVID alias "Edwin", ROGELIO ENCARNACION Y
DE LOS SANTOS alias "Roger Pusa", ROMEO SOLIBA Y REDOBLA alias
"Romy", CONSTANTINO LENESES Y MARILLANO alias Alexander
Remonte y Marillano alias "Alex Remonte", and LEON DAVID alias "Junior",
defendants, CONSTANTINO LENESES Y MARILLANO alias "ALEXANDER
REMONTE Y MARILLANO" alias ALEX REMONTE, defendant-appellant.
G.R. No. L-32264 January 31, 1984
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EDGARDO VENGCO Y DAVID alias "Edwin", ROGELIO ENCARNACION Y
DE LOS SANTOS alias "Roger Pusa", ROMEO SOLIBA Y REDOBLA alias
"Romy", CONSTANTINO LENESES MARILLANO alias Alexander Remonte
y Marillano alias "Alex Remonte", and LEON DAVID alias "Junior",
defendants, LEON DAVID alias "Junior", defendant-appellant.
The Solicitor General for plaintiff-appellee.
Tagalo, Gozar & Associates and Ricafort, Laxamana & Nacpil Law Office for
defendants-appellants.
RELOVA, J.:
hese appeals are interposed by Constantino Leneses alias "Alex Remonte"
and Leon David alias "Junior" who, together with three others, were charged
in Criminal Case No. 87918, for the murder of Charlie Celadeña y Lim in the
then Court of First Instance of Manila, Branch XX. The lower court adjudged
them guilty thereof, and sentenced both of them to reclusion perpetua, with
the accessory penalties provided by law, to indemnify the heirs of the
deceased in the sum of P12,000.00, and to pay the costs.
The information filed against said appellants recites:
That on or about the 24th day of August 1967, in the City of Manila,
Philippines, the said accused, at night time, and with the use of superior
strength to insure and afford impunity, conspiring and confederating together
and mutually helping one another, with intent to kill and with evident
premeditation and treachery, did then and there willfully, unlawfully and
feloniously attack, assault and use personal violence upon one, CHARLIE
CELADEÑA Y LIM, by then and there stabbing the latter with bladed and
pointed instruments which they were then armed, hitting him on the different
parts of his body, thereby inflicting upon said CHARLIE CELADEÑA Y LIM
mortal and fatal wounds which were the direct and immediate cause of his
death moments thereafter. (p. 2, Rollo of L-31657 & L-32264)
The version of the prosecution was unfolded by prosecution witnesses Go
Hong, Rolando Quiane, Purita Delgado, and Dr. Mariano de Lara, Chief of
the Medico-Legal Division, Manila Police Department.
Go Hong testified that in the evening of August 24, 1967 he was in his house
at 2815-A Bagac Street, Tondo, Manila when he heard a commotion outside.
Looking out of the window he saw Charlie Celadeña being stabbed by Edwin
Vengco while three others, one of whom he recognized as appellant
Constantino Leneses, were moving away from the victim, all of them armed
with a dagger, an ice pick and a weapon with pointed blade. He went out of
the house and lifted Celadeña from the ground when he noticed that the
latter was bloody in all parts of his body. The victim was brought to the Jose
Reyes Memorial Hospital where he was pronounced dead upon arrival.
Rolando Quiane testified that about midnight on August 24, 1967 he and his
brother were conversing on a sidewalk along Bagac Street, near the corner
of Corrigidor Street, Tondo, Manila, when a taxicab came and stopped at the
place where they were. Charlie Celadeña alighted from the taxicab.
Thereafter, at about 30 meters away, a group of five persons, among whom
were Edwin Vengco and Leon David came towards them. As there was an
incident between Charlie Celadeña and Edwin Vengco three or four nights
before, when the latter chased the former and threw bottles at him, Quiane
invited Charlie Celadeña to go with him inside the apartment where he and
his brother were living, to avoid the group. Celadeña would not go with them
and so Quiane and his brother went inside their apartment. They then heard
Charlie Celadeña knocking at the door of, and calling his sister at, the latter's
house across the street. After a while Quiane heard the voice of a girl Calling
for help. Quiane opened the door of the apartment and saw Charlie
Celadeña lying down on the ground bleeding.
The testimony of Rolando Quiane was corroborated by Go Hong and Purita
Delgado who declared that about midnight of August 24, 1967 while she was
sleeping in the house of "Ate During" the sister of Charlie Celadeña, along
Bagac Street, Ate During woke her up and she heard a commotion outside
the house. When she peeped through the opening of the window, she saw
her "Kuya Charlie" leaning against the wall of the house being held by two
men, one of whom was appellant Leon David, on his hands. Thereafter,
another person approached the one being held by the two and stabbed him,
followed by two more men who also stabbed him. There were several thrusts
with pointed instruments hurled at Charlie until one of them ran away,
followed by three others, leaving the tall one who continued stabbing Charlie,
then already prostrate on the ground.
Dr. Mariano de Lara conducted the autopsy on the body of the deceased and
his post-mortem findings show that the deceased sustained eleven (11) stab
wounds mostly located in the chest and abdomen and one in the back. Five
(5) of the stab wounds were fatal.
The defense of Constantino Leneses alias "Alex Remonte", is denial and
alibi. He contends that earlier in the afternoon of August 24, 1967, he was at
the tailor shop near Jose Abad Santos Boulevard waiting for a pair of pants
the tailor was making for him. While waiting there, Edgardo Vengco, Rogelio
Encarnacion, Romeo Soliba and Leon David arrived and invited him to go
with them. They went to the house of Leon David where they had a drinking
spree. He became dead drunk that he was taken to his house in Balintawak
where he stayed the whole evening unconscious and regained
consciousness only the following morning.
Appellant Leon David denied participation in the crime committed,
contending that only Edwin Vengco, Roger, Romeo and Alex attacked and
killed Charlie Celadeña. He testified that about 10:30 in the evening of
August 24, 1967 he went home to turn over the proceeds of the sale of
cigarettes to his mother. He then proceeded to the house of Edwin Vengco
and joined the group, namely: Vengco, Romy, Roger and Alex in a drinking
spree. Vengco even asked money from him for the jeepney fares of the
three. Knowing Vengco to be a tough guy and a "siga-siga", he gave the
latter money. After about five minutes, he separated from them and
proceeded to go home. On the way, he saw at a distance of about eight
meters a person being ganged up by Edwin Vengco and his companions.
Vengco and Alex were stabbing the person with bladed weapons, while
Roger and Romy were holding the hands of the victim. He shouted at them
not to do it and then left the place because he was afraid that he might be
implicated.
Further, Leon David denied the truth of the testimony of Purita Delgado who
Identified him as one of the persons who held the victim by his hands when
the latter was being stabbed by Edwin Vengco and his companions.
However, on cross examination, he could not say what reason or motive
could have induced Purita Delgado to testify falsely against him.
The defense also presented Melquiades Nuque, a taxi driver, who declared
that he was about 20 meters from the place of the incident which occurred in
the evening of August 24, 1967. He saw Vengco, Alex and the others
assaulting the victim, but appellant Leon David was not one of them,
Appellants put squarely in issue the credibility of Go Hong, Rolando Quiane
and Purita Delgado averring that the lower court erred (1) in relying purely on
the testimony of these three witnesses; (2) in not considering the individual
participation of each of the accused there being no proof of conspiracy; and
(3) in not holding that the evidence adduced by the prosecution is insufficient
to convict him.
The trial court committed no error in finding appellants Constantino Leneses
and Leon David guilty of the crime charged.
1. WE have consistently held that when there is no showing of improper
motive on the part of witnesses for testifying against an accused, the fact that
they are neighbors, friends or relatives of the victim does not render their
clear and positive testimony less worthy of full faith and credit. Purita
Delgado saw her "Kuya Charlie" leaning on the wall by the window of the
house of her Ate During about a meter away, being ganged up by appellants
and their companions, when she peeped through the window. The place was
bright because of the two mercury lamps in front of the house. Go Hong,
husband of Ate During, immediately went to the assistance of the victim after
the assailants had ran away.
2. As found by the lower court, a circumstance highly indicative of the
guilt is the fact that soon after the commission of the crime, Leon David left
Manila for Cavitewhere he hid himself until he was arrested on February 2,
1970. His explanation for hiding that he was afraid of Edwin Vengco does not
impress Us because if he was really innocent, as he claimed to be, he would
not have gone into hiding and would even tell the authorities what transpired
that evening. The truth is, he would have no reason to be afraid of anyone,
including Edwin Vengco who has no reason to go after him, he having done
nothing wrong against him. On the contrary, he was not afraid to shout at
Vengco and his companions not to assault the victim and later to testify in
court with respect to their participation in the incident.
3. The testimonies of prosecution witnesses have not been shown to
suffer from any inconsistency and/or contradiction. In fact, the testimony of
only one witness, if credible and positive and if it satisfies the court beyond
reasonable doubt, is sufficient to convict. (People vs. Argana, 10 SCRA 311).
Alibi, which is the defense of Constantino Leneses, is weak since it is easy to
concoct. Courts view it with caution and accept it only when proved by
positive, clear and convincing evidence. The positive Identification of
appellant Leneses as one of the perpetrators of the crime dwindles the
defense of alibi.
The crime committed is murder, qualified by abuse of superior strength. The
People's evidence relative to the commission of the crime, the manner of its
perpetration and the circumstance of abuse of superior strength is not
disputed. Appellant Leon David and his witness, the taxi driver, confirmed
these facts. The conspiracy among therein appellants and their companions
is easily discernible from their conduct. The way in which they assaulted
Charlie Celadeña and their conduct sometime before and immediately after
the stabbing, clearly show that they had agreed to kill him. The rule is that "if
it is proven that two or more persons aimed by their acts towards the
accomplishment of the same unlawful object, each doing a part so that their
acts, although apparently independent, were in fact connected and
cooperative, indicating a closeness of personal association and concurrence
of sentiment, a conspiracy may be inferred though no actual meeting among
them is proven (Underhill, Criminal Evidence, 4th Ed. by Niblack, pp. 1402-3;
People vs. Carbonel, 48 Phil. 868, 875). (Cited in People vs. Velez, 58 SCRA
21, 31).
WE agree with the trial court that "no generic aggravating circumstance was
sufficiently proved by the prosecution, the elements of nighttime, evident
premeditation and treachery, not having been established by its evidence.
On the other hand, no mitigating circumstance was shown by the evidence of
the defense. The medium of the penalty prescribed for the offense should be
imposed on the accused. The penalty to be imposed is reclusion perpetua, it
being the medium of the penalty of reclusion temporal in its maximum period
to death for murder."
WHEREFORE, the judgment appealed from is AFFIRMED, with the
modification that appellants pay, jointly and severally, the heirs of the
deceased in the sum of P30,000.00. (People vs. de la Fuente, G.R. Nos. L-
63251-52, Dec. 29, 1983)
SO ORDERED.
Teehankee, Melencio-Herrera, Plana and Gutierrez, Jr., JJ., concur.
G.R. No. L-75390 March 25, 1988
PEOPLE OF THE PHILIPPINES, appellee,
vs.
DANILO VALDEZ and SINIPLICIO ORODIO alias "Kamlon", appellants.
FELICIANO, J.:
This case is before us on automatic review of the decision of the Regional
Trial Court, First Judicial Region, Branch 26, San Fernando, La Union,
convicting the accused-appellants Danilo Valdez and Simplicio Orodio of the
crime of murder and sentencing each of them to death.
The accused Danilo Valdez and Simplicio Orodio were charged in an
information which read as follows:
That on or about the 7th day of June, 1977, in the Municipality of Santol,
Province of La Union, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and
mutually aiding one another, armed with a fire arm, with treachery and
evident premeditation and with deliberate intent to kill, did then and there
willfully, unlawfully and feloniously, shoot Eleno Maquiling inflicting upon him
a gunshot wound which caused the victim's instantaneous death.
That the aggravating circumstance of nighttime was present in the
commission of the crime. Contrary to Article 248 of the Revised Penal Code.
After arraignment and trial, the trial court rendered in due course, on 27 June
1986, a decision finding both of the accused guilty of murder. The dispositive
portion of the decision states:
WHEREFORE, in view of the foregoing, this Court finds the accused Danilo
Valdez and Simplicio Orodio alias 'Kamlon' guilty beyond reasonable doubt
of the crime of murder and judgment is hereby rendered imposing upon each
of them the Capital penalty of death; to indemnify the heirs of Eleno
Maquiling the sum of P30,000.00; to reimburse the expenses in the sum of
P3,000.00 to said heirs, and to pay the costs.
The bail bonds posted by the accused for their provisional liberty are hereby
cancelled and their immediate arrest ordered.
The accused-appellants argue that the trial court erred in the following
respects:
1) That the evidence of the prosecution does not establish the guilt of the
accused beyond reasonable doubt; and
2) That the evidence of the prosecution is based simply on suspicion.
We will address these arguments together.
From the record, the facts of the case may be collated as follows:
The house of the Maquiling family stands on the slope of a mountain in
Barangay Ambagat, Santol, La Union. At about 8:00 o'clock in the evening of
7 June 1977, the victim Eleno Maquiling, his sisters Leticia and Thelma, his
mother Esmenia, and his father Juanito were an in the yard of their house.
Esmenia and Juanito were under the awning of their house facing north,
engaged in stringing together tobacco leaves. The victim's brother Dionisio
was eating his dinner in the wall-less kitchen located on the ground floor of
the house. The victim Eleno was seated with his back toward the north and
plucking a guitar. The place and its surroundings were lighted by a 300
candle power petromax lamp hanging under the northern end of the awning
of the house. 1
While the Maquilings were thus seated in their yard, a relative of the family,
one Carolina, arrived and asked Esmenia to accompany her to a prayer
meeting. Esmenia demurred and instead asked Eleno to accompany
Carolina. The victim was then just about two (2) meters away from his
parents and about to stand up when suddenly a very loud gun shot rang out
from the northern side of the yard and Eleno fell to the ground, crying out to
his father for help. Juanita rushed to his fallen son and carried him into their
house; Eleno, however, died immediately thereafter.
The victim's mother Esmenia was about to succour Eleno when she
instinctively looked toward the direction from whence the gunshot came and
saw the two (2) accused, Danilo Valdez and Simplicio Orodio, running down
the hill away from the bamboo groves on the northern side of the house.
According to Esmenia, the accused Danilo was wearing a blue shirt and dark
pants and carrying a long firearm, while the other accused Simplicio was
running along side the former. Dionisio Maquiling, brother of the victim, also
testified that he too had seen Danilo with a gun and Simplicio both running
away in a westernly direction. Danilo stated that he was then about seven (7)
meters away from the accused-appellants. 2 Danilo Valdez was a neighbor
and a relative of the Maquilings, while Simplicio Orodio was their old
accquaintance residing in Sitio Village, Barangay Corooy of the same town;
thus, both were well-known to Esmenia and Dionisio Maquiling.
On 8 June 1977, the Municipal Health Officer of Balaoan, Dr. Monico O.
Morales, conducted an autopsy which showed that the victim Eleno had
sustained eight (8) gunshot (pellet) wounds on his back:
1. Wound, gunshot, ½; inch longest dia., 1 cm. below base of neck,
medial, pellet plowed slightly upward and found its exist at the lower 3rd of
neck, left, measuring 3/4 inch longest diameter. (Thru and thru).
2. Wound, gunshot, ½ inch longest dia medial, 1 inch lateral to
vertebral column, right, pellet plowed upward and found its exit at the base of
neck, left, measuring ¾ longest diameter. (Thru and thru).
3. Wound, gunshot, ½ inch longest dia level of 4th intercostal space,
back, right, penetrating the chest cavity, pellet was recovered at the upper
lobe of right lung.
4. Wound, gunshot, ½ inch longest dia 1 inch above armpit, back, right,
pellet plowed slightly upwards and to left. Pellet was not recovered.
5. Wound, gunshot, ½ inch longest dia 8th intercostal space, back,
right, 1 inch lateral to the vertebral column, pellet penetrated check cavity
hitting lower lobe of lungs, right. Pellet was not recovered.
6. Wound, gunshot ½ inch longest dia medial, back, left, level of 8th
intercostal space, hitting the lower lobe, lung, left. Pellet was not recovered.
7. Wound, gunshot. ½ inch longest dia chest, back medial, left, (Level
of 9th interspace), penetrating chest cavity hitting lower lobe, lung, left. Pellet
was not recovered.
 A. We immediately rushed to his side and we found him on the ground,
8. Wound, gunshot, ½ inch longest dia postero-lateral, back, I inch sir.
below lowest rib of chest, right. Pellet was recovered at the abdominal wall,
hypochondic region, front, right. Two (2) pellets were given to Chief of Police, Q. From what direction did you hear the gunshot?
Segundo Tuvera. 3
A. North of our yard, sir.
The morning after the shooting, on 8 June 1977, Sgt. Segundo Tuvera of the
Integrated National Police, Santol, La Union, went to the house of the Q. When you went to the succour of your son, what else did you do?
Maquilings to investigate the death of Eleno. 4 He saw a petromax lamp
hanging from the awning of the northern end of the house, as well as A. When I went, to give succour to my son, I turned and I saw these
footprints near the bamboo groves near the northern side of the house. two, sir,
During his investigation, neither Esmenia nor Dionisio informed Sgt. Tuvera
of what they had seen. Q. Where did you see the two accused?

On 10 June 1977, Juanito Maquiling, the victim's father, executed a sworn A. North of our yard, sir.
statement before the police in the Santol Police Substation. Juanita admitted
in his statement that he had not seen the accused-appellants on the night of Q. How far were they from you when you saw them?
the shooting. He did relate, however, that three (3) days prior to the shooting
of Eleno, Eleno had informed him that in case something untoward happened A. Witness indicating a distance of more or less five meters.
to him (Eleno), the accused-appellants Danio Valdez and Simplicio Orodio
should be held responsible, since he (Eleno) had quarrelled with them Q. When you saw the two accused, did you see anything in their
concerning their stealing and robbing. 5 Juanita further, stated that the possession?
accused Danilo has had a personal grudge against Eleno; Danilo had
mortgaged to Eleno's brother a stolen spading fork, a circumstance that A. They have, sir, (Witness indicating a length of about a foot), and it
Eleno discovered when the real owner of the spading fork came to talk to was Danilo Valdez who was holding that object.
him. Esmenia, Eleno's mother, gave no sworn statement on that day. Ten
(10) days later, on 20 June 1977, however, she made a sworn statement to Q. Were you able to recognize that object which Danilo Valdez was
the Philippine Constabulary in San Fernando, La Union. Shortly thereafter, then holding?
on 23 June 1977, Dionisio Maquiling, Eleno's brother, gave his own separate
sworn statement also to the Philippine Constabulary. Both Esmenia and A. It was a gun, sir.
Dionisio Identified Danilo Orodio as Eleno's killers. 6
Q. When you saw Danilo Valdez and Simplicio Orodio north of your
At the trial, Esmenia Maquiling was firm and categorical in Identifying the yard, what were they doing?
appellants as the men she saw running from the bamboo groves immediately
after the shooting — A. I saw Danilo Valdez holding the gun while Simplicio Orodio ran
downhill and then Danilo Valdez followed, sir.
Q. When you heard that gunshot, what did you do?
Q. You Id that you saw Danilo Valdez and Simplicio Orodio north of A. None, sir.
your yard. In relation to the place where you heard the gunshot, where were
they? Q. That petromax lamp which you said was hanging under the awning
of your house, how high is the petromax light from the ground level?
A. Near the bamboo grove which is located north of our house, sir?
A. The height is 12 feet, sir.
Q. In relation to that bamboo grove where you heard the gunshot,
where were Danilo Valdez and Simplicio Orodio at the time you saw them? Q. How big was the petromax light?

A. They were east of the bamboo grove, sir. A. About two feet, sir. 7

Q. How far were they from that bamboo grove? Esmenia's testimony was corroborated by the equally definite testimony of
Dionisio Maquiling, who declared that:
A. Witness referring to a distance of about 6 to 6-½ meters away.
Q. Where were you at the time your brother was shot to death?
COURT:
A. I was in our kitchen eating.
Q. How far were you from the accused when you recognized them?
Q. Where was your brother then at the time he was shot in relation to
A. Less than a meter away when I recognized them, sir. your house?

FISCAL: A. He was west of our kitchen.

Q. You Id that the distance between you and the two accused at the Q. In what particular part of your house, inside or outside?
time you saw them was five meters more or less. Upon questioning of the
court, you Id that the distance is less than a meter. Which is true? A. Outside of our house.

A. Witness pointing to a distance of more or less five meters. Q. What time was your brother shot to death?

Q. How were you able to recognize the two accused at that distance of A. More or less 8 o'clock in the evening.
five meters from you considering that it was nighttime?
Q. You said you were in the kitchen of your house eating and you
A. There was a light from the petromax lamp which was hanging [from] Pointed to Danilo Valdez and Simplicio Orodio alias "Kamlon" as the persons
the awning of our house, sir. who shot your brother. How were you able to see Simplicio Orodio and
Danilo Valdez shoot your brother?
Q. That part of the house where this awning is located, is there a wall
surrounding the awning? A. I saw them.
Q. Will you relate how were you able to see Danilo Valdez and Simplicio
Orodio alias Kamlon shoot your brother Eleno Maquiling?
A. When I was eating facing westward I heard a gunshot and when I
looked through the north I saw Danilo Valdez running being followed by
Simplicio Orodio.
Q. When you looked northward and you saw Danilo Valdez and
Simplicio Orodio running, did you see anything in their possession?
A. A gun. (Witness showing a length of about half a meter).
Q. Who of the two, Danilo Valdez and Simplicio Orodio was hiding the
gun?
A. Danilo Valdez. 8
The trial court found the testimony of witnesses Esmenia and Dionisio as
positive, credible and reliable. We find no reason to disagree with the finding
of the trial court. It is commonplace that "the findings of the trial court as to
the credibility of the witnesses are to be given great weight and a high
degree of respect by the appellate court". 9 There is nothing in the record to
show that the prosecution witnesses were moved by any improper motive to
accuse falsely the accused-appellant — one a relative and the other an old
acquaintance — of so grave a crime as murder.
The circumstance that Esmenia waited for thirteen (13) days after her son's
assassination before reporting the Identities of the accused to the authorities,
was not unnatural in itself. She explained the delay by saying that she was
afraid to talk about the killing and that she had seen the accused loitering
frequently around the Maquilings' house, carrying a gun, after the burial of
her son.10 The trial court observed that Esmenia's fear —
was not imaginary because the night that she reported the Identities of the
accused their house was stoned by unidentified persons. The delay was
satisfactorily explained. In People vs. Martinez, 127 SCRA 260, it was held
that delay of witness for several months, because of fear, in reporting the
incident to the police does not affect credibility. "Fear of likely retaliation by
the several accused who were still at large has been considered as a justified
reason for the witnesses' delay in coming forward with their testimony'
(People vs. Sampang, 16 SCRA 531; People vs. Equal, 14 SCRA 89). 11
This explanation does not appear incredible in itself and certainly such a
delay of thirteen(13)days, under the circumstances of this case, does not
warrant a conclusion that her testimony as to the Identities of the killers of
her son was false. In People v. Martinez, 12 the Court held that the failure of
a witness to reveal immediately the Identities of the accused does not militate
against his credibility.
Both Esmenia Maquiling and Dionisio Maquiling did not testify that they had
actually seen either Danilo Valdez or Simplicio Orodio shooting at the
deceased victim. The principal evidence against the accused is, therefore,
circumstantial in character. The trial court recognized this and was careful to
analyze the chain of circumstantial evidence on the basis of which the trial
court concluded that the two (2) accused had killed Eleno Maquiling:
While the prosecution failed to present an eye witness to the actual shooting
by the accused of deceased Eleno, the chain of circumstances, prior and
subsequent to the killing, leaves no room for doubt that accused are the
guilty persons. The rule is that before conviction upon circumstantial
evidence, the circumstances proved should constitute an unbroken chain
which leads to one fair and reasonable conclusion pointing to the accused as
the authors of the crime. (People vs. Pamintuan, 127 SCRA 820). In this
case, this requisite has been fully met.
Rule 133, Section 5 of the Revised Rules of Court provides:
CIRCUMSTANTIAL EVIDENCE, WHEN SUFFICIENT. — Circumstantial
evidence is sufficient for conviction if:
(a) There is more than one circumstances;
(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 a reasonable doubt.

Tested by the rule stated above, and considering that Eleno was killed by a
shot in the back and suffered eight (8) pellet wounds from one gunshot only;
that the accused were immediately seen running down-hill away from the
scene after the gunshot report with accused Danilo v. Valdez carrying a long
firearm; that three (3) days before the incident there was already bad blood
between the victim and accused Danilo Valdez as the victim confided to his
father Juanito Maquiling that if ever he would be shot accused Danilo Valdez
is the one to be blamed; 13 that when the place where the clime was
committed is an isolated place and it is highly probable that some other
malefactors could have been present; and that footprints were seen by the
police investigators behind the bamboo grove where the accused were seen
to come from immediately after the shooting that Esmenia Maquiling even
described the clothing of accused Danilo Valdez; that the two accused are
well known to the victim's family thereby precluding the possibility of
mistaken Identity; all these proven facts afford sufficient or a reasonable
inference that the two accused were indeed the killers of the victim. 14
In his brief, the Solicitor General took the position that accused-appellant
Simplicio Orodio should be acquitted for lack of sufficient evidence to sustain
this conviction either as a principal or an accomplice. The Solicitor General
said:
In the case at bar, the information charged Orodio as having allegedly
conspired with Valdez in killing Eleno. The prosecution did not however
adduce any evidence establishing the aforesaid alleged conspiracy between
Valdez and Orodio to commit the crime charged. The only fact that the
prosecution was able to successfully prove was the presence of Orodio at
the crime scene when he was seen running together with Valdez by Dionisio
and Esmenia after Eleno was gunned down and that he was a barkada of
Eleno. It is submitted that in the light of the aforecited ruling in the Madera
case, there exist no factual and legal basis to sustain the conviction of Orodio
either as a principal or accomplice in this case. 15
We are unable to agree with the Solicitor General, whose view appears to be
too drastic a simplification of the evidence that was in fact before the trial
court. Orodio was present with Valdez at the time Eleno Maquiling was killed
by a shotgun blast at his back. He was in the company of a man running with
a shotgun, at approximately 8:00 o'clock in the evening, immediately after the
fatal shooting, just outside the Maquilings house where he had no business
being if he were not acting in concert with Danilo Valdez, the accused-
appellant who carried the shotgun. He was a close friend (barkada) of the
accused Danilo Valdez, both of whom the deceased victim had Identified as
probably responsible should any untoward event befall the victim. Simplicio
Orodio completely failed to explain what he was doing with Danilo Valdez the
night of the killing, on the one hand. Upon the other, both Danilo Valdez and
Simplicio Orodio pleaded the same alibi. Valdez and Orodio both testified
that they were in Cervantes, Ilocos Sur, when Eleno was shot to death. Their
common alibi remained uncorroborated for both failed to present either the
mother of accused Danilo Valdez who was supposed to have come to
Cervantes Ilocos Sur, to inform them that Eleno Maquiling had been shot to
death, or any other witness for that matter. The trial court found the accused
common defense of alibi as non-credible "as it was not impossible for the
accused to be present at the scene of the crime. 16
We hold that the prosecution's evidence was more than adequate to sustain
the finding of the trial court of a conspiracy between Danilo Valdez and
Simplicio Orodio. Conspiracy being present, it does not matter that the
prosecution had failed to show who as between the two actually pulled the
trigger of the shotgun that killed Eleno Maquiling. 17 Both Danilo Valdez and
Simplicio Orodio are liable as co-conspirators since any act of a co-
conspirator becomes the act of the other regardless of the precise degree of
participation in the act. 18
The trial court correctly appreciated the presence of treachery and evident
premeditation. The accused had purposely sought nocturnity and hid
themselves behind the bamboo groves located close by the victim's house
and had fired at Eleno Maquiling suddenly, without any warning, from behind
obviously to ensure the success of their deadly purpose without any risk to
themselves and without any possibility of retaliation. Three (3) days before
his assassination, Eleno was already apprehensive for his life when he
disclosed to his father, Juanito Maquiling, his quarrel with Danilo Valdez and
Simplicio Orodio over the latter's thievery and robbery. Clearly, the accused
had planned to kill Eleno some days before the fateful night of 7 June 1977;
the shotgun blast at the back of Eleno was not the result of a spur of the
moment decision.

Since both treachery and evident premeditation were present, and only one
(1) qualifying circumstance is necessary to constitute homicide into murder,
evident premeditation may be considered as a generic aggravating
circumstance. 19 The circumstance of nighttime is, however, absorbed by
treachery. 20 A second aggravating circumstance — that the victim who had
given no provocation was slain in his dwelling — was also found by the trial
court. 21
WHEREFORE, premises considered, the decision of the trial court finding
Danilo Valdez and Simplicio Orodio guilty beyond reasonable doubt of the
crime of murder is hereby AFFIRMED. In view of the abolition of capital
punishment under the 1987 Constitution, and in view of the presence of two
(2) aggravating circumstances not offset by any mitigating circumstance, the
applicable penalty is reclusion perpetua.
SO ORDERED.
Fernan (Chairman), Gutierrez, Jr., Bidin and Cortes, JJ., concur.
G.R. No. L-69564 January 29, 1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JUAN ESCOBER y GERALDE, MACARIO PUNZALAN, JR., y GUEVARRA,
RICHARD DOE, PETER DOE AND JUAN DOE, accused. JUAN ESCOBER
y GERALDE and MACARIO PUNZALAN, JR., y GUEVARRA, accused-
appellants.
G.R. No. L-69658 January 29, 1988
JUAN ESCOBER y GERALDE, petitioner,
vs.
HON. OSCAR LEVISTE, PRESIDING JUDGE, REGIONAL TRIAL COURT,
BRANCH XCVII, QUEZON CITY and PEOPLE OF THE PHILIPPINES,
respondents.
FERNAN, J.:
These consolidated cases originated from the decision rendered by Judge
Oscar Leviste in Criminal Case No. Q-22896 of the Regional Trial Court of
Quezon City, Branch XCVII, finding the accused-appellants Juan Escober y
Geralde and Macario Punzalan, Jr. y Guevarra guilty beyond reasonable
doubt of the crime of Robbery with Homicide, sentencing them to suffer the
supreme penalty of DEATH and to pay jointly and severally the heirs of the
victims compensatory damages of P12,000.00 for each of the victims and
moral damages of P200,000.00 G.R. No. 69564 is the automatic review of
the death sentence while G.R. No. 69658 is a petition for review on certiorari
of said decision, the recourse taken by accused-appellant Juan Escober 'to
cut short that long period of wait for a final resolution of his fate." 1
Juan Escober, together with four unidentified persons designated as John
Doe, Peter Doe, Richard Doe and Juan Doe, were charged with the crime of
Robbery with Homicide before the Regional Trial Court of Quezon City in an
Information dated December 9, 1982. He entered a plea of "Not Guilty" with
the assistance of counsel Atty. Hipolito de Peralta upon arraignment on
March 2, 1983.
On March 29, 1983, the Information was amended to include accused-
appellant Macario Punzalan, Jr. as one of the accused therein. He, too,
pleaded "Not Guilty" during the arraignment on April 22, 1983, assisted by
court-appointed counsel, Atty. Benigno Mariano, who at that time had
replaced Atty. Hipolito de Peralta as counsel de parte for Juan Escober.
A joint trial of the accused ensued. The prosecution presented its evidence,
summarized by the Solicitor General in his Consolidated Brief, as follows:
One of the alleged co-conspirator (sic), Amadeo Abuyen alias Roberto
Alorte, * was formerly a co-security guard of appellant Juan Escober at the
Bee Seng Electrical Supply, Inc., a family corporation owned by the couple
Vicente Chua and Lina Chua. It is located inside a walled compound about
50 meters away from the residence of its owner, at 24 Joy Street, Grace
Village, Balintawak, Quezon City. About 4 months prior to the incident,
Abuyen was relieved by Domingo Rocero for being always absent and found
sleeping while on duty. [pp. 5-8, tsn, Aug. 16, 1983; pp. 2-10, tsn, Sept. 14,
1983; pp. 6-8, tsn, April 22, 1983).
At the time of the incident on December 3, 1982, Rocero's tour of duty was
from 7:00 in the morning to 7:00 in the evening. He left his post at about 7:30
P.M. that evening after he was relieved by appellant Juan Escober. On his
way home, he passed by Barangay Balingasa in Balintawak, where he saw
Amadeo Abuyen in the store of Colonel Samson drinking beer with three
companions, one of whom he later Identified as the appellant Macario
Punzalan, Jr. [pp. 4-11, tsn, April 22, 19831.
After Rocero had left his point, (sic) Vicente Chua went to his office at the
Bee Seng Electrical Supply as he usually does after office hours,
accompanied by his 13-year old son Irvin and 6-year old daughter Tiffany On
their way, he saw appellant Escober at his post. At the office, the two
children watched a television program, as their father proceeded to the
bathroom to take a bath [pp. 10-17, tsn, Sept. 14, 1983].
Meanwhile, Abuyen and his three companions rode a tricycle and proceeded
to the Bee Seng Electrical Supply. Upon alighting thereat, Abuyen knocked
at the little door of the gate. Appellant Escober, peeped thru the hole and
opened the door. Then after Abuyen had talked with Escober, the former
asked Punzalan to wait outside, while he (Abuyen) and his two other
companions went inside [pp. 4-5, tsn, Nov. 9, 1983].
At this juncture, the victims' mother, Mrs. Lina B. Chua, left their residence to
join her husband and two children. On her way, she noticed that the
pedestrian gate was wide open with the appellant Punzalan standing there.
She shouted why the gate was opened, but nobody answered. Suddenly,
she heard of shot coming from the direction of the garage; and when she
looked thereat, she saw Abuyen and the appellant Escober walking towards
the gate. So, she rushed back inside the house to contact her husband
through the intercom. But since the intercom was out of order, she hurriedly
went outside and met appellant Escober who volunteered the information
"that he was not hit." [pp. 9-20, tsn, Aug. 16, 1983].
Upon the other hand, Vicente Chua was inside the bathroom, when he heard
the gunshot. He hurriedly went out and saw her (sic) son Irvin lying on the
sofa while her (sic) daughter Tiffany was lying on the floor, both mortally
wounded. Beside her (sic) daughter, he saw a scissor blade [Exhibit 'E' fun of
blood. He also observed that everything was scattered in his office, with all
Ms drawers opened. Later, he found out that the P5,000.00 cash he kept in
one of the drawers was lost [pp. 1314, 31-36, tsn, Sept. 14, 1983].
Immediately, he went out and shouted for help from his wife to bring out the
car as their children was (sic) stabbed and bleeding. Forthwith, she got one
car, while her eldest son drove a second one. After Vicente Chua had
brought the two wounded children inside the two cars, they were brought to
the Chinese General Hospital where they were pronounced dead upon
arrival. [pp. 22-26, tsn, Aug. 16, 1983; pp. 13-14, tsn, Sept. 14, 1983].
It was about 8:45 in the evening of December 3, 1982 when Police
Investigator Oscar Francisco was dispatched to investigate the incident. And,
since the victims were already brought to the Chinese General Hospital, he
was instructed to proceed thereto. When he arrived at the hospital at past
9.00 o'clock P.M., he found the victims already dead. Whereupon, he
conducted a cursory examination of the victim and indicated on two separate
sketches (Exhibits "C" and "D"), the 12 and 11 stab wounds sustained by
Irvin Chua and Tiffany Chua, respectively. From there, he proceeded to the
scene of the crime, where he met Corporal Ibuan Pat. Robanera and a police
photographer, who arrived to assist him in the investigation [pp. 3-9, tsn, July
5, 1983].
Corporal Ibuan handed to Francisco a blood-stained blade of a scissor
(Exhibit "E") which the former said was found beside the pool of blood inside
the room where the incident happened. In the course of his investigation,
Francisco noticed that the drawers inside the office of Vicente Chua were
forcibly opened with its (sic) contents scattered. Upon subsequent interview
with Vicente, he likewise learned that cash amounting to P5,000.00 was
taken by the culprits in one of said drawers [pp. 9-13, Ibid].
Thereafter, Francisco invited for questioning at the Police Headquarters
appellant Escober, the security guard on duty then at the Bee Seng Electrical
Supply, who voluntarily gave his version of the incident (Exhibit "F"). Aside
from that of Escober, the written statements of the victims' parents, Vicente
Chua and Lina B. Chua, were also taken (Exhibits "G" & "H", respectively).
Thereafter, Francisco referred on December 8, 1983 [sic] (Exhibit "I") the
result of his investigation to the City Fiscal who wrote at the left hand margin
thereon the following notations: "Detained the accused all prima facie case
exist(s) and that accused is probably guilty thereof. No bail recommended.
[pp. 13-23, Ibid].
Subsequently, on the morning of December 10, 1982, the police
apprehended the appellant Punzalan, who in a police line-up was readily
Identified by the victims' mother, Una Chua, as one of those she saw
standing at the open gate of their compound during the night of the incident
on December 2 (sic), 1982. Another statement (Exhibit "F") was, therefore,
taken on December 10, 1982 from the victims' mother to supplement the
previous statement she gave on December 8, 1982. Also taken on even date
were the statements of Security Guard Jesus Zaragosa (Exhibit "K") and that
of Virginia Alorte Abuyen, the mother of one of the suspects who claimed that
her son, Amadeo Abuyen, mentioned to her his four [4] companions,
including the herein two appellants, in the commission of the crime. Even
appellant Punzalan waived his constitutional rights under custodial
investigation and voluntarily and willingly gave his statement (Exhibit "M")
wherein he did not only admit his participation in the commission of the
crime, but also implicated appellant Juan Escober [pp. 25-26, Ibid; pp. 2-12,
tsn, July 6, 1983].
Thus, in his second referral dated December 13, 1983 [sic] (Exhibit "J") to the
Fiscal, Police Investigator Francisco named the five [5] accused as: Juan
Escober y Geralde, Macario Punzalan, Jr. y Guevarra, Amadeo Abuyen y
Alorte, alias Florante Bato, alias Dodong and a certain Peter Doe, albeit, only
the herein two appellants were apprehended. [pp. 7-8, tsn, July 6, 1983]. 2
Thereafter, accused-appellant Juan Escober took the witness stand to testify
in his defense. His testimony is deed in his Brief, thus:
Escober was then a Security guard and belonged to the Western Private
Detective Security since January 1, 1982 and was assigned at Vising
Electrical Supply at Joyce St. Grace Village, Balintawak, Quezon City,owned
by Vicente Chua and Lina Saw Chua. On December 3, 1982, at 7 p.m. he
reported for work. When his companion left and he arrived (to take over) he
cleaned the guardhouse, a routinary work because Mr. and Mrs. Chua did
not like to see the guardhouse dirty and also because after the security guard
leaves, the security guard on duty must clean it. There was a janitor but the
security guards used to clean the guardhouse. As security guard, he had a
gun but on this occasion he left it in the locker because he was cleaning the
guardhouse. Then when he was to throw the garbage, Alorte arrived and
talked to him because he, Alorte alias Abuyen, wanted to, and two men [also
accused named Does as they are also still at large] entered and one man
[co-accused Punzalan] was left at the gate. Escober was not able to talk to
Alorte alias Abuyen because when Alorte came, one of his companions
aimed a gun at Escober and also a knife and they said they would kill him.
He does not know the man who aimed a gun at him. He only knows Alorte
because he Alorte used to be his co-guard at Vising Electrical Supply. They
then asked Escober to get into (climbed) the pick- up car inside the garage
and the other man was pointing a gun at Escober. Alorte and his companion
went up the Vising Electrical Supply. Escober does not know the real name
of Alorte; all the (sic) knows is Roberto Alorte. Escober does not know the
man who was left near the gate but he knows him by face and he was then in
the courtroom and he pointed to the person who answered by the name of
Macario Punzalan, Jr., his co- accused. Escober did not see what Punzalan
was doing because he, Escober, was made to climb the vehicle (pick-up). At
this point, his gun was in the locker. He was not able to get that gun when
these four men entered because a gun was already pointed at him. Alorte
took Escober's gun from the locker because he was formerly a security guard
at Vising Electrical Supply for 3 or 4 months. He does not know why Alorte
did not continue his work there. After 5 minutes, after the two men went up
the office, they came down and talked to the man guarding Escober and
Alorte fired at him. He was not hit for he was able to avoid it and after that,
the four men suddenly left. Escober went down from the pickup and he heard
Vicente Chua calling him and he responded. Chua asked him to call Mrs.
Chua at the house because, according to Chua, their children were stabbed.
So Escober went to the house and called Mrs. Chua. When Mr. Chua called
him, Alorte and his companions were no longer at the place for, after firing,
they hurriedly left. Escober was able to call Mrs. Chua and she and he,
together, returned to Vising Electrical Supply and upon reaching the place,
Mr. Chua was shouting and he could not understand him because he was
speaking in Chinese. Mrs. Chua went back and got the car, parked it and
returned to the office. When Mr. Chua went out of the office, he was bringing
his son and placed him at the parked car of the office. When Chua returned
to the office (after he called Escober) and came back out, Escober saw him
with his son and placed him at the balcony. The two children who were
stabbed were carried in two cars because there were only two cars at the
driveway. Escober opened the gate. He does not know to what hospital they
went. After that, he called Jeffrey one of the sons of the Chuas, so he could
help him (Escober) call the police. Jeffrey was not able to call the police
because when Jeffrey gave him a directory and asked him (Escober) to look
for the telephone number of the police but he told Jeffrey to look it up himself
because his eyes were blurred. After 15 minutes, the police came and after
that, the owner of the security agency arrived. Other policemen not in uniform
also arrived. They interviewed Escober and forced him to go with them to the
police precinct. He refused because the owner of the agency had not then
arrived. When owner arrived, he called another security guard to guard the
Vising Electrical Supply. The police and the owner of the security brought
Escober to the precinct to get his statement and there the police was forcing
him to adroit he was the one who robbed and killed the children of the Chuas
and he told them do not know everything. The testimony of Mrs. Chua that
she saw him together with Abuyen Alorte inside the garage is not true
because he was the one who told Mrs. Chua that their children were being
stabbed. When Alorte and his companions left, Mrs. Chua was finding (sic) to
call him (Escober). When he was brought to the precinct, the investigator
was typing something. Escober could recall/remember only his signature. He
Identified his statement, Exhibit I for the defense, Exh. F for the prosecution.
He narrated it there exactly. The signature there are his. He knows the police
who investigated him but he does not know the person. Escober was at the
precinct when he signed his statement. He was there up (sic) October 3,
1983, the date he testified in court (tsn, 2-13). 3
Accused-appellant Macario Punzalan, Jr. likewise testified in his defense.
The gist of his testimony is found in his Brief as follows:
PUNZALAN testified on his own behalf (his direct testimony is found in TSN,
pp. 2-35, Nov. 9, 1983). PUNZALAN is a fruit vendor at "the market of
Monumento." In the afternoon of 3 December 1982, according to
PUNZALAN, he accepted the invitation of fugitive ABUYEN/ALORTE for a
drink, in a place near Abonce Beer House; ABUYEN/ALORTE was with two
companions whom he introduced all his relatives; after several drinks, he
was requested to join the group to proceed to another place for which reason
they boarded a tricycle; and the group stopped 'at a place with a high gate'
because ABUYEN/ ALORTE wanted 'to drop by someone' (TSN, pp. 2-11,
November 9, 1983). ABUYEN/ALORTE knocked at the little door and the
security guard (PUNZALAN Identified accused Escober as the security
guard) opened the door and they greeted each other; ABUYEN/ALORTE
then instructed PUNZALAN "to wait for him outside;" and thereafter
ABUYEN/ALORTE and his two companions entered the compound (TSN,
pp. 11-14, Nov. 9, 1983).
PUNZALAN further testified that he waited for half an hour for the group; that
while waiting he heard the mourn (sic) of a child that he was then about to
enter the premises but he met ABUYEN/ALORTE and his two companions
and saw them with blood stains in their arms;' that ABUYEN/ALORTE and
his companions started running and he followed them; that in response to his
query AB ABUYEN/ALORTE stated that he stabbed the two [2] children'; and
that they boarded a taxi and he was brought back to our place where we are
selling apples' (TSN pp. 14- 18, Nov. 9, 1983)
PUNZALAN was apprehended early dawn of 10 December 1982 at the
Monuments market. No lawyer assisted him during his custodial investigation
despite the fact that he informed the police officers that he has a lawyer by
the name of Atty. Valdez nor was he informed of his constitutional rights to
remain silent and to counsel. Nevertheless, the police investigator proceeded
to interrogate him. He disclosed that he was invited by Amadeo Abuyen for a
drink; and that they drank beer 'in a place near Abonce Beer House.
"PUNZALAN asserted that, when Exh. M was presented for his signature he
refused to sign (Exh. "M") because 'many statements thereon are not correct
that he nevertheless signed Exh. "M" because he was already tired and was
forced to sign it after they hurt me by boxing me, subjected me to water
therapy and he could not endure the pain, when they gave (him) the electric
shock treatment;" and that the portions of Exh. "M" which are incorrect are
those Identified as Exhs.'11-A and 11-B (TSN, pp. 19-32, Nov. 9, 1983 ). 4
On January 10, 1984, the decision under review was promulgated. On
February 8, 1984, despite his manifestation in open court immediately after
the promulgation of the decision that he was appealing the same to this
Court, Atty. Mariano filed a motion for reconsideration. This was opposed by
the prosecution.
Pending resolution of the motion. Atty. A.E. Dacanay entered his appearance
on August 7, 1984 as counsel for accused Escober, and on August 20, 1984,
he filed another motion for reconsideration for the said accused, which was
likewise opposed by the prosecution. After an exchange of pleadings
between Atty. Dacanay and the prosecution, the trial court issued an Order
dated November 21, 1984 denying the motions. Hence. the petition in G.R.
No. 69658 and the automatic review.
In G.R. No. 69658, accused-appellant Juan Escober contends that:
RESPONDENT JUDGE GRAVELY ERRED IN RENDERING HIS TWO-
PAGE DECISION IMPOSING DEATH SENTENCE IN CULPABLE
VIOLATION OF THE CONSTITUTION AND CONSEQUENTLY IT MUST BE
REVERSED AND SET ASIDE, ACQUITTING PETITIONER ...;
RESPONDENT JUDGE ERRED IN FINDING AND CONCLUDING THAT
PETITIONER, TOGETHER WITH HIS CO-ACCUSED PUNZALAN AND
THREE OTHERS ACTED "AS PRINCIPALS BY INDISPENSABLE
COOPERATION" CONSIDERING THESE CIRCUMSTANCES: FIRST:
(THE) UNLIKELY GARBAGE THROWING REASON OF ACCUSED
ESCOBER (PETITIONER) IN OPENING THE GATE OF THE COMPOUND
IN QUESTION, AGAINST THE TESTIMONY OF HIS CO-ACCUSED
MACARIO PUNZALAN, JR. OF KNOCKING ON THEIR PART; SECOND
THE RITUAL IN AVOIDANCE OF SUSPICION OF FIRING A GUN JUST
BEFORE THE EXIT OF THE CONSPIRATORS AND VOLUNTEERING
THAT HE WAS NOT HIT': AND THIRD: '(T)HE VERSION OF JUAN
ESCOBER 'PETITIONER) REGARDING HIS ACTUATION DURING THE
HALF-HOUR ROBBERY-HOMICIDE WAS REPLETE WITH
CONTRADICTIONS.
RESPONDENT JUDGE ERRED FURTHERMORE IN CONVICTING
PETITIONER TO DEATH AS SUCH PRINCIPAL UNDER THE DECISIONAL
LAW ON CRIMINAL CONSPIRACY.
RESPONDENT JUDGE ERRED IN DENYING PETITIONER'S MOTION
FOR RECONSIDERATION ... OF SAID DECISION OF JANUARY 10, 1984.
5
These assigned errors were reiterated in the Brief for Accused-Appellant
Juan Escober filed in G.R. No. 69564.
On his part, Macario Punzalan, Jr. seeks reversal of his conviction on the
following grounds:
PUNZALAN SHOULD BE ACQUITTED; OR AT THE VERY LEAST, HIS
CONVICTION SHOULD BE NULLIFIED ON THE GROUND THAT
PUNZALAN WAS DENIED HIS RIGHTS TO RE MAIN SILENT AND TO
COUNSEL IN ALL OF THE THREE OF THIS CASE: CUSTODIAL
INVESTIGATION PRELIMINARY IN- INVESTIGATION AND TRIAL ON THE
MERITS;
THE LOWER COURT ERRED IN RULING THAT, AS A MAT TER OF LAW,
PUNZALAN IS ACCOUNTABLE FOR THE CRIME OF ROBBERY;
THE LOWER COURT ERRED IN RULING THAT THE PRINCI PAL MOTIVE
FOR THE CRIME WAS ROBBERY;
THE LOWER COURT ERRED IN RULING THAT ROBBERY WAS IN FACT
COMMITTED;
THE LOWER COURT ERRED IN NOT ACQUITTING PUNZALAN ON THE
GROUND OF REASONABLE DOUBT;
THERE BEING NO DIRECT EVIDENCE TO SHOW HOW THE CRIME WAS
COMMITTED, THE LOWER COURT ERRED, AS A MATTER OF LAW, IN
RULING THAT THE COMMISSION OF THE CRIME WAS ATTENDED
WITH THE AGGRAVATING CIRCUMSTANCES OF CRUELTY,
NIGHTTIME, TAKING ADVANTAGE OF SUPERIOR STRENGTH,
TREACHERY AND IN BAND. 6
We shall deal first with Escober's assigned errors, particularly the objection
interposed to the form and substance of the decision under review. Accused-
appellant Escober asserts that said decision is null and void for it does not
conform with the requirement of Section 9, Article X of the 1973 Constitution
and that it was rendered even before all the stenographic notes of the
proceedings had been transcribed.
We find merit in this contention. The decision of January 10, 1984 consists of
1-1/2 pages, typed single-space, with a number of handwritten notations and
insertions. It reads:
The AMENDED INFORMATION charged the above-named accused of
Robbery with Homicide defined in Article 294 of the Revised Penal Code. It
alleged, among others, that on or about December 3, 1982, in Quezon City,
said accused conspiring, confederating and mutually helping one another,
with intent to gain and by means of violence and intimidation again persons
robbed Vicente Chua y Ching by entering the premises of No. 24 Joy St.
Grace Village, Quezon City and taking therein P5,000.00 and (sic) by reason
or on the occasion of said robbery employed personal violence upon minors
Irvin Chua y Saw and Tiffany Chua y Saw, stabbing them and inflicting
thereby multiple serious mortal wounds directly causing their immediate
deaths, to the damage of their heirs.
Prosecution evidence consisted of the testimonies of Vicente Chua, Mrs.
Lina Chua, Domingo Rocero, Oscar Francisco, Amado V. Ramos, Teodoro
Ibuan Abelardo V. Lucero and Dr. Josefina Qua, and Exhibits "A" to "Z" with
sub-exhibits; while Defense evidence consisted of the testimonies of the two
named accused above and some exhibits, contained in Pages 1 to 454 of the
Records, Volume 2, Vol. 1 and 3.
In view of the foregoing evidence, and considering the memoranda of both
parties, the arguments and authorities cited therein, this Court finds that the
material allegations of the above information are facts, and that accused
Juan Escober y Geralde and Macario Punzalan, Jr. y Guevarra are guilty of
the charges of Robbery with Double Homicide, as principals by indispensable
cooperation as defined in article 17, par. 3, with no mitigating circumstances,
and attended by aggravating circumstances of cruelty, nighttime to insure the
commission of the crime, taking advantage of number and superior strength,
treachery, in band, among others, and that the defenses and excuses of the
accused are unnatural, incredible, contradictory and uncorroborated. The
circumstances pointing to the (sic) this fact, among others, are the following:
The unlikely garbage throwing reason of accused Juan Escober in opening
the gate of the compound in question, against the testimony of his co-
accused Macario Punzalan, Jr. of knocking on their part; the ritual in
avoidance of suspicion of firing a gun just before the exit of the co-
conspirators of Juan Escober, and volunteering the information that he was
not hit. The version of Juan Escober regarding his actuation during the half-
hour robbery homicide was replete with contradictions. Macario Punzalan
admitted being fetched by, going with and talking to, immediately prior to
taking a tricycle to the said compound, and later acting as lookout for, his co-
conspirators. The Court finds further that the group took some drinks, not to
get drunk admittedly, and therefore to strengthen their resolve better to
commit the crime planned.
WHEREFORE, this Court declares Juan Escober y Geralde and Macario
Punzalan, Jr. GUILTY beyond reasonable doubt of the crime charged in the
amended information, this Court holding firmly that when a hired security
guard opens the compound under his protection to four men who turn out to
be robbers and murderers or when a former security guard accompanies and
meets with said malefactors immediately before the commission of the
offense and stands guard at the gate and flees with said malefactors then the
burden of proof is shifted to him to exculpate and excuse himself by clear,
satisfactory and convincing evidence, which the named accused failed to do,
but succeeded only in insulting this Forum of Truth with their rediculous (sic)
justifications for the brutal and merciless killing of innocent and helpless
children on the occasion of that robbery in question, of being held-up at
gunpoint, of coincidentally being in the act of throwing garbage and being
fired at but not getting hit but not knowing so many vital details a truthful
witness would certainly not forget, among others, thus that this court after a
total appreciation of all the evidence on record is convinced that there being
apple (sic) circumstances present that could only possibly point to the guilt of
said accused for the most heinous (sic) crime that deserves the highest
penalty, Hereby sentences the said accused Juan Escober y Geralde and
Macario Punzalan, Jr. to the legal punishment provided by Article 294,
Paragraph 1 of the Revised Penal Code of the Philippines, which is DEATH
and orders the said accused further to pay the heirs of their victims
compensatory damages of P12,000.00 each, jointly and severally, and moral
damages of P200,000.00 to the said heirs, jointly and severally.
SO ORDERED. QUEZON CITY, January 10, 1984. 7

Every decision of a court of record shall clearly and distinctly state the facts
and the law on which it is based ...
The above-quoted decision falls short of this standard. The inadequacy
stems primarily from the respondent judge's tendency to generalize and to
form conclusions without detailing the facts from which such conclusions are
deduced. Thus, he concluded that the material allegations of the Amended
Information were the facts without specifying which of the testimonies or
exhibits supported this conclusion. He rejected the testimony of accused-
appellant Escober because it was allegedly replete with contradictions
without pointing out what these contradictions consist of or what "vital details"
Escober should have recalled as a credible witness. He also found the crime
to have been attended by the aggravating circumstances of cruelty,
nighttime, superior strength, treachery, in band, "among others," but did not
particularly state the factual bases for such findings.
As enunciated by this Court in the case of Hernandez v. Colayco, 64 SCRA
480, reiterating Montelibano v. Director of Lands, 21 Phil. 449; Alindogan v.
Insular Government 15 Phil. 168; City of Manila v. Insular Government, 9
Phil. 71; Enriquez v. Enriquez, 3 Phil. 746; Braga v. Millora, 3 Phil. 458:
Without the concrete relation or statement in the judgment of the facts
alleged and proved at the trial, it is not possible to pass upon and determine
the issue raised in litigation, inasmuch as when the facts held to be proved
are not set forth in a judicial controversy, it is impossible to administer justice,
to apply the law to the points argued, or to uphold the rights of the litigant
who has the law on his side.
It is not sufficient that the court or trial judge take into account the facts
brought out in an action suit, the circumstances of each question raised, and
the nature and condition of the proofs furnished by the parties. He must also
set out in his decision the facts alleged by the contending parties which he
finds to have been proven. The conclusions deduced therefrom and the
opinion he has formed on the issues raised; then only can be intelligently set
forth the legal grounds and considerations proper in his opinion for the due
determination of the case.
As it is written, the decision renders a review thereof extremely difficult.
Without a particularization of the evidence, testimonial or documentary, upon
which the findings of facts are based, it is practically impossible for the
appellate court to determine whether or not such findings were sufficiently
and logically supported by the evidence relied upon by the trial court.
Were it not for its dire consequences, we would have appreciated the efforts
shown by respondent-judge to administer justice in this case in the most
speedy and expeditious manner. He obviously took to heart our admonition
that judges do not have to wait for the transcription of stenographic notes
before rendering judgments but can rely on the notes of the proceedings
personally taken by them. For this is what respondent judge did. The records
show that he took copious notes of the testimonies of the witnesses on which
he apparently based this decision, as the transcript of the stenographic notes
were not yet complete at the time of the rendition of the judgment. In fact, the
review of the case suffered some delay due to the failure of stenographer
Eduardo Bober to submit to this Court the transcript of stenographic notes of
some hearings.
Speed in the administration of justice, however, is not the sole concern of
courts and judges. More than this is the essentiality of justice and fairness
which is the primordial objective of the courts. Respondent judge lamentably
disregarded the latter for the former.
The decision of January 10, 1987 calls to mind the decision rendered by
another trial court in the case of People v. Banayo, 129 SCRA 725, regarding
which We said:
At the onset, this Court takes a rather dim view of the apparently indifferent
attitude displayed by the trial court towards a murder case it has tried as
shown by the rendition of a decision, the body of which contains only 63 lines
spread out over less than three typewritten pages, double-spaced and wide-
margined. While brevity should characterize a court's decision and length is
not necessarily determinative of its quality, the lower court in deciding this
murder case nonetheless should have outlined in greater and more
satisfactory detail the evidence presented by both prosecution and the
defense, the facts as found by the trial judge based on the evidence on
record and the jurisprudence and the authorities supporting the court's
decision.
This trial judge failed to do. There is not one single citation of authority in the
decision. The issues raised by the appellant include allegations of concocted
testimony, the nature of a dying declaration, premeditation, conspiracy,
treachery and superior strength. The issues raised are quite serious and they
deserved better treatment. [Emphasis supplied].
With the finding that the decision of January 10, 1984 does not conform to
the requirements of Section 9, Article X of the 1973 Constitution, the case
should have been remanded to the court a quo for the rendition of a new
judgment. However, since the records of the case, including all evidence
necessary for a determination of the innocence or guilt of the accused-
appellants are now before Us, We deem it wise to render judgment in this
case in order to accord the accused-appellants their right to a speedy
disposition of their cases. 8
The prosecution's theory is that Juan Escober is a principal by indispensable
cooperation in the crime of robbery with homicide. In support thereof, it tried
to prove that Escober's actuations during the incident in question were done
with the knowledge of and pursuant to said nefahous plan. These acts
consist of- [1] his alleged act of opening the gate of the compound to his co-
conspirators; [2] his having been seen by Mrs. Lina Chua behind
Alorte/Abuyen, the alleged mastermined, after the gunshot; and [3] his
having volunteered the information to Mrs. Chua that he was not hit. The
prosecution further attempted to show that the gun-firing was a mere ritual in
avoidance of suspicion and that Escober's version of the incident is too
replete with contradictions to merit belief.
After a thorough review of the evidence, We find that the guilt of Juan
Escober has not been proved beyond reasonable doubt.
The act of opening a gate upon hearing a knock is by itself an innocent
gesture. One who imputes an evil motive or purpose thereto must prove his
allegations convincingly. In the case at bar, even if the version of Macario
Punzalan, Jr. that Escober opened the gate at the knock of the alleged
mastermind Amadeo Abuyen/Roberto Alorte were to be believed, the same
would not constitute sufficient and convincing proof that Escober had
knowledge of the nefarious plan. The worse that could be attributed to him is
lack of better judgment or laxity in the performance of his duties as a security
guard in having failed to exercise the minimum precaution dictated by his
occupation to exclude from the premises being guarded persons who have
not demonstrated any legitimate reason for getting in. For it must be
remembered that having been co-employees, Escober knew Abuyen/Alorte.
It was therefore not surprising that he should open the gate for him. In fact,
even Domingo Rocero, the security guard who replaced Abuyen/Alorte and
who was not as familiar with Abuyen/Alorte admitted on his Sworn Statement
having allowed Abuyen/Alorte into the compound thus:
20.T Mula ng manungkulan ka sa Bee Seng Electrical Supply, ilang beses
mo ng nakita si Roberto Alorte sa malapit sa iyong pinagguaguardiayahan?
S Dalawang beses ko na po siyang nakita sa lugar na iyon, una noong
buwan ng Septyembre at pangalawa noong buwan November 1982.
21.T Ano ang dahilan at nakikita mo siya sa lugar na iyan?
S Una binisita niya ako at pangalawa mayroon siyang kasamang
babae at hindi ko na siya pinapasok sa loob ng Bee Seng Electrical Supply.
9
The facts of the case likewise do not support the prosecution's theory that
the gun-firing incident was a mere ritual in avoidance of suspicion. We share
the keen observation of counsel for Escober that "... it is not a common
experience that a person allows himself to be shot by a gun. He would be the
stupidest person on earth if he allows that ... to avoid suspicion that he was
in cahoots [sic] with malefactors The least or perhaps the safest way for that
evil purpose is to allow himself to be rendered ineffective, i.e., by tieing [sic]
him up, mauling him or wounding him so he would live if he were a
conspirator. To allow him to be shot by a gun is too risky a ritual for he might
get killed. 10
Besides, the robbery and homicide were perpetrated within a span of 5-10
minutes, not half an hour as found by the trial court, a time too short to
enable Abuyen/Alorte and Escober to contrive such a ritual or scenario, or if
it were a pre-conceived plan, for Abuyen/Aorte to have remembered it
considering the unexpected apprearance of Lina Chua at the scene and the
need for immediate escape.
Even assuming arguendo that the gun was fired in the air and not at
Escober, the same could have been done to scare Lina Chua away from the
scene of the crime rather than to divert suspicion from Escober.
That the gun-firing was not a ritual and that Escober was not a part of the
criminal plan are further bolstered by the statement made by Macario
Punzalan during the preliminary investigation, and extra-judicial statement of
the alleged mastermind Abuyen /Alorte dated April 16, 1986, submitted by
the prosecution as Exhibit B during the separate trial of said Abuyen/Alorte.
The pertinent portion of Macario Punzalan's statement reads:
FISCAL: Ito ba si Abuyen at saka si Juan Escober at Abuyen ay matagal ng
magkakilala?
PUNZALAN: Hindi ko po alam sir, dahil po sa guardiya po dati yung
Alorte.
FISCAL: Ito ba ang kasalukuyang guardia [referring to Escober]
PUNZALAN: Oho, siya po ang naka guardia noon. [duty]
FISCAL: Noong pagkatapos ng pag-uusap nila ano pa ang ginawa? Kung
mayroon pa?
PUNZALAN: Hindi ko na po nakikita sir.
FISCAL: Ito ng umakyat kayo sa bahay ay sumama ba?
PUNZALAN: Hindi ho, nasa ibaba po rin ako sir.
FISCAL: Ito [referring to Escober nakita mong umakyat?
PUNZALAN: Hind ho, kung baga sa ano ay pinapapatay ho sa akin ni
Abuyen ni Alorte.
FISCAL: Bakit?
PUNZALAN: Ewan ko po, hindi ko po alam ang dahilan.
FISCAL: Pero hindi mo naman pinatay.
PUNZALAN: Hindi po.
FISCAL: Bakit?
PUNZALAN: Ewan ko po, dahil hindi ko po alam nga ang dahilan, sir, kasi
po ay gusto kong mahuli yung Abuyen, sapagkat iyon pong talaga ang utak
eh. 11
On the other hand, Amadeo Abuyen's extrajudicial statement reads in part:
... Pagkatapos ay sumakay kami sa tricycle at nakarating kami sa bahay ni
Mr. Chua ng bandana alas 8:00 ng gabi ng petsa 3 ng Desiyembre.
Pagdating namin doon ay kumatok ako at binuksan naman ako ng guwardia
dahil kakilala ko. Kinumusta ko muna siya kong paano ang buhay-buhay
niya. Habang nagkakamustahan kami ay bigla ko siyang tinutukan ng aking
baril sinabi ko sa kanya na pasensiya na siya. Pinakuha ko ngayon kay
DON-DON iyong baril na .22 kalibre sa lalagyan nito. Pagkatapos ay sabay
pumasok si DON-DON at si REY sa opisina ni Mr. Chua. Ako naman ay
pumuesto sa labas ng opisina at sa gate ay si KUMANG. Nang nakapuesto
na ako sa pintuan ay pumalag itong guwardiya na si Escober na hindi an
pala ginapos nitong si KUMANG. Nang makita ko ay binaril ko siya pero hindi
siya tinamaan. Noong matapos kong barilin si ESCOBER ay niyaya ko na
sila at tumakbo na kami ... 12
These exculpatory statements, although emanating from alleged co-
conspirators and therefore may ordinarily be considered "polluted," deserve
credence. Punzalan's statement, it must be observed, is not even responsive
to the question being asked. The spontaneous and candid manner by which
it was given lends credence to his statement, that Abuyen/Alorte wanted
Escober killed. This statement, together with the statement of Abuyen/ Alorte
that he himself fired at E scober although the latter was not hit, unwittingly
corroborates Escober's version that the gun was aimed at him. That Escober
was not thereby hit should not be taken as conclusive proof that the gun-
firing was a mere ritual because the same could be easily occasioned by a
poor aim and/ or the hurried manner of its execution.
On the other hand, We see no reason why Abuyen/Alorte should absolve
Escober of any complicity in the crime if this were not the truth. The usual
practice is for a conspirator to exculpate himself and pass on the blame to a
co-conspirator, particularly in a case such as this where the crime charged is
indeed very grave and serious. However undesirable a person may seem,
there may be left in him a sense of justice and fairness. Without passing
judgment on Abuyen/Alorte, We believe that it was this sense of justice and
fairness that moved him to disclose the truth in his extrajudicial confession.
Escober's unilateral offer of the information that he was not hit does not
prove either that he was a co-conspirator. It was but natural that he would
want to inform and assure his superior who is presumed to be concerned
with his safety and well-being. The motivation attached to said act by the
prosecution is therefore too conjectural and far-fetched to pass the test of
logic and reason.
The only evidence of the prosecution which may lead to a conclusion of
Escober's complicity is the testimony of Mrs. Lina Chua that upon hearing a
shot, she looked at the garage where the shot sounded to have come from
and saw Abuyen/Alorte walking towards the gate with Escober about a meter
behind.
We have reasons to doubt the veracity and/or accuracy of this statement. We
observe that Mrs. Lina Chua was the last among the prosecution witnesses
to give her statement to the police. She gave her statement on December 8,
1983 when none of the accused had been apprehended. So, soon after the
violent incident her appreciation of what she saw may have been faulty when
she attributed the blame on Escober whose lack of better judgment and laxity
in the performance of his job resulted in the tragic event.
Taken in conjunction with the extra-judicial confession of Abuyen/Alorte
quoted above, Mrs. Chua's narration of the situation would suffer from
inaccuracy, aside from being susceptible to other interpretations.
Abuyen/Alorte declared that immediately after the shooting, he called his
companions and ran away from the scene of the crime. Punzalan's testimony
was of the same tenor, i.e., that Abuyen/Alorte and his companions started
running and he [Punzalan] followed them. This was precisely the moment
when the malefactors were fleeing from the scene of the crime, and at which
point Escober could have felt safe enough to emerge from the pick-up where
he was held captive. Thus, Mrs. Chua claims to have seen Escober about a
meter behind Abuyen/ Alorte, who was not walking, but running away from
the scene of the crime.
Indeed, it was not unlikely for Mrs. Chua to misinterpret the situation she
described having seen. She was then in an agitated condition on seeing the
pedestrian gate of the compound open, which was Escober's duty to keep
closed. Moreover, from the relative positions of Mrs. Chua, Abuyen/Alorte
and Escober, the line of vision of Mrs. Chua was such that it would be difficult
for her to determine for certain the distance between Abuyen/Alorte and
Escober and whether the latter was merely walking behind the former or in
fact chasing him.
Additionally, in her testimony on August 1, 1986 in the separate trial of
Abuyen/Alorte, she declared that 'they [referring to Abuyen/Alorte and
Escober] were walking towards the gate; they were nagmamadali [in a
hurry]." 13 This description given by Lina Chua does not jibe with the
impression gathered from her previous statement of seeing Escober walking
behind Abuyen/Alorte. The element of speed injected into the 'walking" by
the descriptive term 'nagmamadali" corroborates Abuyen/ Alorte's declaration
that after firing the gun, he ran away from the scene of the crime, and tills
can be interpreted to mean that Escober was indeed chasing Abuyen/Alorte.
The fact that the accused was at the scene of the crime at the time of its
commission is not, by itself, sufficient to establish his criminal liability. To hold
the accused guilty as co-principal in the crime charged, the existence of
conspiracy between the accused and the actual killers, must be shown, and
the same degree of proof required for establishing the crime is required to
support a finding of the presence of the conspiracy, i.e., it must be shown to
exist as clearly and convincingly as the commission of the crime itself. 14
The prosecution evidence is glaringly wanting in this regard. It failed to prove
beyond reasonable doubt that [1] Escober had knowledge of the criminal
design and [2] that his acts during the commission of the crime, such as the
opening of the gate and having been behind Abuyen after the gunshot, were
performed pursuant to said nefarious plot. This being the case, the
prosecution's reliance on the alleged inconsistencies in Escober's testimony
regarding his actuations during the incident at bar can not improve its case.
To convict on this basis is repugnant to the constitutional right of the accused
to be presumed innocent until the contrary is proved 15 and its corollary rule
that the prosecution must rely on the strength of its own evidence and not on
the weakness of the defense. 16
Indeed, the accidents of Escober being on duty during the commission of the
crime and his having opened the gate to persons who turned out to be
robbers and killers make him an easy suspect. A less discerning mind could
have been blinded by these suspicions and compassion for the two hapless
victims. But convictions can never rest on mere suspicions, however, grave
and serious.
We now turn to Macario Punzalan's case. He contends having been denied
his rights to remain silent and to counsel during the custodial investigation,
the preliminary investigation and the trial on the merits.
Punzalan's extra-judicial statement 17 is prefaced by the for lowing:
PAGPAPAUNAWA NG KARAPATAN SA ILALIM NG SALIGANG BATAS NG
PILIPINAS.
Ikaw ngayon ay nasa ilalim ng pagtatanong sa himpilang ito ng pulisya
hinggil sa isang usaping kinasasangkutan mo sa salang PAGNANAKAW NA
MAY KASAMANG PAGPATAY. Bago ka tanungin ng anoman, ipinauunawa
ko muna sa iyo at pinagpapaalalahanan ka ng iyong mga karapatan sa ilalim
ng Saligang Batas ng Pilipinas, tulad ng mga sumusunod:
1. Ikaw ay may karapatang manatiling tahimik at huwag magsalita o
magbigay ng salaysay kung hindi mo nais.
2. Ikaw ay may karapatang magkaroon ng paglilingkod ng isang
abogado na iyong mapipili. Kung hindi mo kayang kumuha ng abogado, at
nais mong magkaroon ng paglilingkod nito maglalaan ng isa para sa iyo ang
hukuman na hindi mo na kailangang bayaran ang paglilingkod nito.
3. Ikaw ay may karapatan na huwag magbigay ng anomang pahayag
na maaaring gamiting katibayan laban sa iyo.
4. Hindi ka maaaring pilitin,o gamitan ng anomang uring karahasan o
pamilit para ikaw ay magbigay ng salaysay.
Tanong — Pagkatapos na malaman mo, maipaunawa sa iyo at
mapagpaalalahanan ka ng iyong mga karapatan sa ilalim ng Saligang Batas
ng Pilipinas, nahahanda ka bang magbigay ng isang malaya at kusang loob
ng salaysay?
Sagot — Opo.
Tanong — Nahahanda kang magbigay ng salaysay kahit na walang abogado
na sumusubaybay sa iyo habang ikaw ay sinisiyasat?
Sagot— Opo.
Tanog— Lubos mo bang naunawaan na ikaw ay hindi maaaring pilitin
or gamitan ng anomang uri ng karahasan upang maging saksi laban sa iyong
sarili?
Sagot— Opo.
Tanong— Sa kabila ng lahat ng mga karapatang ipinaunawa sa iyo
magbibigay ka pa rin ba ng salaysay?
Sagot— Opo.
Sgd. Macario G. Punzalan, Jr.
Noteworthy is the fact that except for an additional question in Escober's
extra-judicial statement, 18 the latter carried the same quoted prefatory
statement. This, to our mind, indicates the lack of zeal and initiative on the
part of the investigating officers to fully and truly inform Punzalan of his rights
to remain silent and to counsel during the custodial investigation. The
Identical manner by which the police sought to inform Escober and Punzalan
of their constitutional rights shows a blatant disregard for individual
comprehensive ability arising from differences in intelligence level,
educational background and personal experiences. No effort was exerted to
see to it that Punzalan really understood what was being told, considering his
low educational attainment of Grade 2 Elementary level. The so-called
"informing" done by the police in the case at bar was nothing more than a
superficial and mechanical act, performed not so much to attain the
objectives of the fundamental law as to give a semblance of compliance
thereto. Besides, the phraseology used by the police respecting the
appointment of counsel de oficio for Punzalan was misleading. It gives the
impression that the services of a counsel de oficio can be availed of by
Punzalan only during the court proceedings, not during the custodial
investigation.
Not having been fully and truly informed of his right to counsel, the waiver
appearing in Punzalan's extrajudicial statement cannot be considered
intelligently made. For this reason, aside from the fact that it was done
without the assistance of counsel, said waiver is not valid. 19 Needless to
say, the extrajudicial confession is inadmissible in evidence. 20
With respect to Punzalan not having been represented by counsel during the
preliminary investigation, suffice it to say that such irregularity which amounts
to an absence of preliminary investigation, should have been raised before
the trial court, Philippine jurisprudence is uniform and consistent in ruling
that:
The question of absence of a proper preliminary investigation is also better
inquired into by the Court below. When so raised, this Court, speaking
through Mr. Justice Claudio Teehankee, has held that the trial Court is called
upon 'not to dismiss the information but hold the case in abeyance and
conduct its own investigation or require the fiscal to hold a reinvestigation. As
stressed in People vs. Casiano, I SCRA 478 (1 961), this is the proper
procedure since the 'absence of such investigation did not impair the validity
of the Information or otherwise render it defective. Much less did it affect the
jurisdiction of the Court of First Instance. The right to a preliminary
investigation, being waivable does not argue against the validity of the
proceedings, the most that could have been done being to remand the case
in order that such investigation could be conducted.
... the proper forum before which absence of preliminary investigation should
be ventilated is the Court of First Instance, not this Court. Reason is not
wanting for this view. Absence of preliminary investigation does not go to the
jurisdiction of the court but merely to the regularity of the proceedings. It
could even be waived. Indeed, it is frequently waived. These are matters to
be inquired into by the trial courts, not an appellate court. 21
While it may be conceded that it would have been more judicious for the trial
court to appoint a counsel de oficio for Punzalan other than the counsel de
parte of his co-accused Escober, such failure did not constitute prejudicial
error to warrant nullification of the proceedings taken against Punzalan.
There is no evidence that Atty. Mariano was biased in favor of Escober to the
prejudice of Punzalan. The records show that Atty. Mariano defended both
accused with equal zeal and vigor and that Punzalan was able to present his
defense well. In fact, it was Punzalan's version of having knocked that the
trial court believed. In the final analysis, the only prejudice Punzalan might
have suffered was the failure of Atty. Mariano to cross-examine Escober on
the latter's testimony regarding Punzalan's presence at the scene of the
crime. 22 Escober's testimony, however, was merely corroborative of the
testimonies of Lina Chua and Domingo Rocero, witnesses for the
prosecution who were cross-examined by Atty. Mariano. 23
Prosecution witnesses Vicente Chua and Lina Chua had established the fact
of robbery and we are convinced beyond reasonable doubt that Punzalan
knew of such plan. It is incredible that his three companions would fetch him
on the pretext of drinking beer and just bring him along to the scene of crime,
thereby risking another eyewitness to the perpetration thereof. Punzalan's
flight from the scene of the crime with his companions and his failure, if he
were truly innocent, to report to the police what he knew about the crime after
reading it in the newspapers further demonstrate his knowledge of the plan.
While it has been established that Punzalan's participation in the crime was
to act as a look-out, and as such, he did not participate in the killing of the
two helpless victims, he cannot evade responsibility therefor. Well-
established is the rule in this jurisdiction that whenever a homicide has been
committed as a consequence of or on the occasion of a robbery, all those
who took part as principals in the commission of the robbery are also guilty
as principals in the special complex crime of robbery with homicide although
they did not actually take part in the homicide unless it clearly appeared that
they endeavored to prevent the homicide. 24
WHEREFORE, the decision dated January 10, 1984 in Criminal Case No. Q-
22896 of the Regional Trial Court of Quezon City is hereby SET ASIDE.
Accused-appellant Juan Escober y Geralde is hereby ACQUITTED of the
crime of Robbery with Homicide and his immediate release from confinement
is ordered, unless detained for some other crimes. Accused- appellant
Macario Punzalan, Jr. y Guevarra is hereby found guilty beyond reasonable
doubt as principal in the complex crime of Robbery with Homicide and is
accordingly sentenced to suffer the penalty of reclusion perpetua and to
indemnify the heirs of the victims in the amount of P60,000,00,
SO ORDERED.
Yap, Narvasa, Cruz, Paras, Gancayco, Bidin and Cortes, JJ., concur.
Separate Opinions
TEEHANKEE, C.J., concurring:
I concur in toto with the judgment of the Court (a) holding that the 1-1/2 page,
single-spaced, decision of the trial court presided by Judge Oscar Leviste,
sentencing the accused at bar to the supreme penalty of death without
specification of the evidence, testimonial and documentary, upon which his
conclusions finding them guilty had been based falls short of the
constitutional requirement that every decision of a court of justice clearly and
distinctly state the facts and the law on which it is based; (b) acquitting the
accused Juan Escober of the crime of robbery with homicide on the ground
that his guilt has not been proved beyond reasonable doubt; and (c ) finding
the other accused Macario Punzalan, Jr. guilty beyond reasonable doubt as
principal in the complex crime of robbery with homicide and imposing upon
him the penalty of reclusion perpetua in view of the abolition of the death
penalty under the 1987 Constitution.
a) This brief concurrence is just to restate that the whole Court en banc
is unanimous as to the utter failure of the trial judge's 1-1/2 page decision to
conform to the mandatory constitutional requirement that a decision must
clearly state the facts and the law on which it is based. Normally, in such
cases, the case would have to be remanded to the court a quo for the
rendition of a new judgment that does conform to the constitutional mandate
but the Court, since all the briefs have been filed, opted to review the record
and the evidence and to render judgment accordingly in order to avoid further
delay in the disposition of the case on the merits;
b) The whole Court en banc is likewise unanimous in its judgment
finding the accused Macario Punzalan, Jr. guilty beyond reasonable doubt of
the crime of robbery with homicide, even as it reaffirms the settled doctrine in
Criminal Law that whenever a homicide has been committed as a
consequence of or on the occasion of the robbery, all those who took part as
conspirators in the commission of the crime of robbery are also guilty as
principals of the special complex crime of robbery with homicide although
they did not actually take part in the homicide, unless it clearly appears that
they endeavored to prevent the homicide under the basic principle that once
a conspiracy or community of criminal design is shown, then the actual mode
of participation in a crime of any of the accused, whether he be a lookout
posted outside the scene of the robbery, is of no moment, since the act of
one conspirator is the act of all. This has been the consistent doctrine of the
Court applied since the early 1907 case of U.S. v. Macalalag and most
recently affirmed in the 1987 case of People vs. Pecato as traced by Mr.
Justice Feliciano in Ms scholarly separate opinion; and
c) The ten-to-four division among the members of the Court is confined
to the case of accused Juan Escober with ten members voting to acquit him
and four members dissenting from his acquittal. On my part, I have given him
the benefit of the doubt and voted for his acquittal. The superior and
immutable rule is that the guilt of an accused must be proven beyond
reasonable doubt by virtue of the constitutional presumption of his
innocence, which presumption must prevail unless overturned by clear,
competent and credible proof. Here, as discussed in the extensive main
opinion of the Court ably penned by Mr. Justice Fernan, the evidence as to
the existence of a conspiracy between the accused Juan Escober and the
robbers-killers and as to his participation in the crime of robbery appears to
be inadequate and therefore failed to produce the required moral certainty of
his guilt.
GUTIERREZ, JR., J., separate opinion:
While acknowledging the impeccable logic behind the concurring and
dissenting opinion of Justice Florentino P. Feliciano, I regret I cannot join him
completely.
I entertain reasonable if not grave doubt as to the complicity of Juan Escober
in the robbery and in the killing of two children while the robbery was
underway. It is an easy task after a crime has been consummated for us to
surmise how the mind of an accused should have operated during crucial
moments and to state how an accused should have behaved to avoid the
possibility of his being implicated as a co-principal and conspirator.
Unfortunately, things do not always work logically and according to
predictable patterns of behaviour in real life. The minds of ordinary persons
(and I see nothing special, extraordinary, or superior about the accused
security guard), seldom behave in predictable ways. Seemingly negligent or
even inexplicable behaviour is not necessarily a badge of guilt. Not every
security guard who opens a gate when he should keep it closed can be
accused of complicity in a crime even if evil persons choose that particular
moment of indiscretion to barge into the premises. I agree with Justice
Fernan that from the records of this case, the guilt of Juan Escober has not
been proved with the degree of certainty required under our penal laws.
I would also like to make some observations about the Court's apparently
unqualified adherence to the precedent in the 1907 case of U.S. v. Macalalad
(9 Phil. 1) and the list of decisions from 1926 to 1927 cited in the separate
opinion of Justice Feliciano. A conspirator should not necessarily or
automatically be found guilty of everything that happens while the crime,
object of the conspiracy, is being committed.
It would seem that unless a conspirator endeavors to prevent the other crime
committed on the occasion of the principal crime, object of the conspiracy, he
would be guilty as a principal in the complex crime or other crime even if he
had absolutely no part in it. I may have no statistics to prove it but I believe
that conspiracy improperly handled could send more innocent persons to jail
than any other principle in criminal law.For instance, many accused persons
protesting they had nothing to do with a crime have been convicted of
malversation or estafa simply because the documents evidencing the crime
somehow passed their hands. A person who is in a stupor or is simply not
paying any attention during a drinking party where the details of a robbery,
car-napping, or murder are planned could, in the hands of a brilliant
prosecutor, be convicted of the resulting crime and all its consequences.
I believe that appellant Punzalan in this case is guilty of robbery with
homicide. My observations are simply aimed at an unqualified adherence to
the principle that the accused must always endeavor to prevent the other
crime to be freed from complicity in a crime he knew nothing about. Or that
he must run away and leave his companions before the second crime is
committed. Every case must be judged on its separate facts and
notwithstanding conspiracy in the planned crime, a person may still be
acquitted of the other crime about which he had no knowledge at all For
instance, if the innocent victims of the vicious killing in this case had been the
children of Punzalan, certainly he cannot be held guilty of parricide. Or if a
band of robbers rape a woman inside a house not knowing he is the wife of
their look-out, the rule on all conspirators being equally responsible for all the
consequences or happenings during the commission of the planned crime
should not apply. The precedents from Macalalad are impressively cited by
my teamed colleague, but I believe all judges should still be cautioned to look
beyond the unqualified rule and ascertain carefully whether the lookout or
anybody else similarly situated should be automatically convicted for
something about which he was completely ignorant. The consequences of
sending an innocent person to j ail for a crime where he had no participation
are too horrible to be left simply to the operation of an unqualified rule.
FELICIANO, J., concurring and dissenting :
With regret, I am compelled to dissent from the opinion written by Mr. Justice
Fernan to the extent that it would acquit Juan Escober. I would, upon the
other hand, like to add somewhat to the reference made in the majority
opinion to the rule on the basis of which Punzalan is correctly held liable for
robbery with homicide.
We consider first the proposed acquittal of Juan Escober.
The prosecution theory, as found by the majority opinion, was that Juan
Escober was a principal by indispensable cooperation in the crime of robbery
with homicide. According to the majority opinion, the prosecution sought to
prove that Escober joined in the community of design, a conspiracy, which
was shown in respect of the other accused, by referring to the following
particular acts of Escober:
[1] [Escober's] alleged act of opening the gate of the compound to his co-
conspirators;
[2] his having been seen by Mrs. Lina Chua behind Abuyen, the alleged
mastermind, after the gun shot; and
[3] his having volunteered the information to Mrs. Chua that he was not hit.
The prosecution further urged that the firing of a hand gun by Abuyen was a
mere ritual designed to avoid or deflect suspicion from Escober and that
Escober's version of the incident [was] too replete with contradictions "to
merit belief"
The opening of the gate of the Chua compound to the malefactors by
Escober was absolutely indispensable for the commission of the crime of
robbery and for the killing of the two (2) children of Mr. and Mrs. Vicente
Chua in the course thereof. In abstracto, the act of opening a gate upon
hearing a knock is, of course, an innocent gesture. It is important to bear in
mind, however, that Escober was a security guard; that he had seen and
recognized Abuyen through the peephole in the pedestrians' gate before
opening that gate; and surely the least that can be expected of a security
guard, who is on guard duty at night time, is that he must exclude from the
premises being guarded persons who have not demonstrated any lawful
reason for wanting to enter such premises. If one assumes that Escober had
not joined the criminal conspiracy, it was at the very least utterly reckless for
him to have opened the gate under the circumstance in this case. The fact
that Escober was acquainted with Abuyen was no justification for letting
Abuyen and his gang come in. Upon the other hand, the circumstance that
Escober knew Abuyen suggests at least the probability that Escober was
indeed part of the criminal conspiracy if Escober was totally unacquainted
with Abuyen, that probability would not of course exist It must further be
noted that Escober himself, who had thoughtfully left his gun in a locker
before opening the gate of the compound, 1 did not claim that he had been
coerced by Abuyen and his companions into opening the gate of the
compound.2 If he had in fact been forced into opening the gate by Abuyen
and company, it would have been the simplest and most natural thing in the
world for him to have said so. Abuyen, the brains of the conspiracy, however,
conveniently explained later that he had pointed his gun at Escober, almost
apologetically, after Escober had opened the small gate and let Abuyen and
the other malefactors into the compound.
Mrs. Lina Chua testified that upon hearing a shot, and thereupon turning to
the garage from whence the sound of the shot came, she saw Abuyen
walking towards the gate with Escober about a meter behind. 3 It must not
escape notice there was no suggestion by any witness that Escober was
then chasing and trying to capture Abuyen, which a security guard faithful to
his duties might be expected at least to try to do. The majority opinion does
try to suggest that because Mrs. Lina Chua, in the separate trial of Abuyen,
had said that Abuyen and Escober were warning towards the gate; they were
in a hurry (nagmamadali)," Escober could be regarded as 'indeed chasing
Abuyen/Alorte Escober himself had not claimed that he had somehow
summoned his courage and sought to capture Abuyen immediately after
Abuyen had, according to Escober, fired a shot at him but had missed. Thus,
the suggested interpretation would seem unreal and excessively generous to
Escober. There was also no evidence that Escober was trying to flee or hide
himself from Abuyen. The net effect, if the testimony of Mrs. Lina Chua is to
be believed at all, was that Escober was acting in concert with Abuyen,
presumably to facilitate the escape of Abuyen and his companions.
Clearly, the testimony of Mrs. Chua was critical for the prosecution. The
majority opinion, however, rejects totally the testimony of Mrs. Chua as
suffer[ing] from inaccuracy and as being susceptible to other interpretations"
in the premises, when "taken in conjunction with the extrajudicial confession
of Abuyen." It must be observed, with respect, that the majority opinion so
discarded Mrs. Chua's testimony upon the totally speculative ground that it is
not contrary to human psychology and experience," that Mrs. Lina Chua
having lost two (2) of her children to the robbers, would in seeking
vengeance deliberately and baselessly implicate Escober in the robbery and
the killings as a "sacrificial lamb." There appears no basis for this speculation
at all. Moreover, the rejection of Mrs. Chua's testimony runs counter to the
prevailing jurisprudence which has been summed up in the following terms in
People v. Roxas:
... Neither is the relationship of Victorino and Paterno to the deceased
sufficient to render their testimony doubtful nor enough to discredit their
credibility. The credibility of witnesses cannot be assailed as prejudiced
simply because of their close relation to the victim. For it is not to be lightly
supposed that the relatives of the deceased would callously violate their
conscience to avenge the death of a dear one by blaming it on persons
whom they know to be innocent. 4
It was part of the prosecution theory that Abuyen had fired a shot,
presumably in the air, in order to create the impression that Escober was not
part of the conspiracy. Escober claimed that the shot had been fired at him
while he was inside the van in the garage, and advised Mrs. Chua that he
had not been hit by the shot. 5 The first point that may be noted in this
connection is that if the robbers had really wanted to kill Escober in order to
prevent Escober's later Identifying them, there was absolutely nothing to
prevent them from doing so. The two (2) young children of Mrs. Chua had
been stabbed to death brutally to prevent them from Identifying the robbers;
yet, if E scober is to be believed, the robbers made no more than a token,
half hearted, effort to insure that Escober, an adult male and a security
guard, would not Identify them. Escober was not even tied up and blind-
folded. It is hence difficult to appreciate the "keen observation" of Escober's
counsel that Escober would be the "stupidest person on earth" if he allowed
himself "to be shot by a gun—to avoid suspicion that he was in cahoots with
the malefactors." Escober was in fact not wounded at all. No bullet hole was
found in the van where Escober claimed to have been crouching when
Abuyen shot at him. 6 Upon the other hand, a shot fired in the air can only be
regarded as a cheap method for supporting a profession of innocence on the
part of Escober. Escober's counsel was simply begging the question.
In the majority opinion, reliance is placed upon statements made by co-
accused Macario Punzalan during the preliminary investigation, and upon an
extrajudicial statement of Abuyen (accused in a separate criminal case) to
support the position that the gun play was not mere play-acting and that
Escober was not part of the criminal conspiracy. The statements coming from
Punzalan and Abuyen must, however, be taken with great caution. For it
must be recalled that the testimony of accomplices—principals confederates
or conspirators — while admissible and competent, comes from a "polluted
source." Consequently, as Mr. Justice Malcolm cautioned, such testimony
must be "scrutinized with care. It is properly subject to grave suspicion. If not
corroborated,credibility is affected." 7 It should also be pointed out that the
statement of Punzalan adduced in this connection in the majority opinion,
appears disjointed and totally unrelated to the question in response to which
it was given. The statement of Punzalan, in other words, would appear, not
spontaneous and candid" (as suggested in the majority opinion) but rather to
have been deliberately thrown in for the purpose of exculpating Escober.
Thus:
FISCAL: Ito ng umakyat kayo sa bahay ay sumama ba?
PUNZALAN: Hindi ho, nasa ibaba po rin ako sir.
FISCAL: Ito [referring to Escober] nakita mong umakyat?
PUNZALAN: Hindi ho, kung baga sa ano ay pinapapatay ho sa akin ni
Abuyen ni Alorte.
FISCAL: Bakit?
PUNZALAN: Ewan ko po, hindi ko po alam ang dahilan.

FISCAL: Pero hindi mo naman pinatay.
PUNZALAN: Hindi po.
FISCAL: Bakit?
PUNZALAN: Ewan ko po, dahil hindi ko po alam nga ang dahilan, sir, kasi po
ay gusto kong mahuli yung Abuyen sapagkat iyon pong talaga ang utak eh.
(Emphasis supplied)
To accept and to accord full credence to statements of proven conspirators
to all appearances designed to avoid suspicion from settling on Escober, who
had made the robbery and double homicide possible to begin with, while
rejecting as biased the testimony of Mrs. Lina Chua solely because she was
the mother of the slain children, must seem a strange situation indeed. If one
must, without requiring proof, impute a 'sense of justice and fairness' to
Abuyen from whose mind the conspiracy sprang and whose hands and arms
were splattered with the blood of the two (2) young children of Mrs. Lina
Chua, one ought not, it is submitted, to assume casually that Mrs. Lina Chua
was bereft of that same 'sense of justice and fairness."
While each of the acts of Escober cited by the prosecution might not,
considered in isolation from the others, be sufficient to show participation in
the common criminal design, it is submitted that where those acts are
considered together, and viewed in the light of what Abuyen, Punzalan and
their other two companions did, and did not do, they constitute more than
adequate basis for not overturning the conclusion of the trial court that
Escober was guilty. After all, it was not this Court but the trial judge who
examined all the evidence and listened to all the testimony, and his
conclusion, even if too cryptically set down on paper, must be given great
weight.
We turn to Macario Punzalan whom the majority opinion finds guilty of
robbery with homicide. There is no question that Punzalan participated in the
common design to commit robbery. He acted as lookout for the gang of
robbers. He did not go upstairs to the house which was ransacked and where
the victims were slain; unlike Abuyen, he did not take part in the actual
stabbing of the two (2) innocent children of Vicente and Lina Chua. Even so,
the majority opinion, stressing that Punzalan's participation in the conspiracy
to commit robbery was conclusively shown, rightly held him responsible for
robbery with double homicide.
Because the above rule on this matter and its underlying ratio have not
always been well understood and because a handful of decisions of this
Court contain language or have reached results which, at first glance, may
seem at variance with the rule above referred to, it should be useful to
examine in some detail the development of that rule and to mark out its
present scope and shape.
The rule correctly applied by the Court was unanimously reaffirmed by the
Court en banc most recently in People v. Pecato (G.R. No. L-41008, 18 June
1987) in the following terms:
The crime committed by the accused is Robbery with Homicide as defined
and penalized under Article 294 (1), of the Revised Penal Code. Felix Larong
was shot to death during the robbery. We have repeatedly held that: (A)s
long as homicide resulted during or because of the robbery, even if the killing
is by mere accident, robbery with homicide is committed; it is only the result
obtained, without reference or distincttion as to the circumstances, causes,
modes or persons intervening in the commission of the crime that has to be
taken into consideration. (People vs. Guiapar, No. L-35465, May
31,1984,129 SCRA 539, 553554 [1984].) Further, whenever a homicide has
been committed as a consequence of or on the occasion of a robbery, all
those who took part as principals in the commission of the crime are also
guilty as principals in the special complex crime of robbery with homicide
although they did not actually take part in the homicide unless it clearly
appeared that they endeavored to prevent the homicide. (Id., 554, citing:
People vs. Bautista, 49 Phil. 389 [19261; and U.S. vs. Macalalad, 9 Phil 1
[1907].) In this instance, the evidence on record is bereft of any showing that
any of the accused tried to prevent the killing of Felix Larong. What is shown
instead is that they merely stood watching and did nothing when one of their
companions shot the victim. (T.s.n. session of October 21, 1974, 29;
Deposition, Id., 3, 5.) Additionally, the term 'homicide' in robbery with
homicide should be understood as a generic term and includes murder.
(People vs. Revotoc, No. L-37425, July 25, 1981, 106 SCRA 22 [1981]. )

xxx xxx xxx
(Emphasis supplied.)
The rule so reiterated in Pecato was first elaborated upon as long ago as 8
October 1907 in U.S. v. Macalalad, 9 Phil. 1. Mr. Justice Carson, speaking
for the Supreme Court, said:
... While it does not appear that this defendant [Fructizoso Esguerra] himself
struck the fatal blow which caused the death of Rufino Calderon he must be
adjudged guilty as principal of the complex crime of robbery with homicide
with which he is charged, it having been proved that he was present, ad.ded,
abetted, and took part therein. The testimony of the witnesses for the
prosecution fully establishes the guilt of the defendant as a principal in the
commission of the robbery, and, even were we to disregard his confession,
which he repudiated at the trial of' the case, and wherein he admitted he was
present at the killing of Rufino Calderon, we would, nevertheless, be
compelled to find him guilty of the crime of robo con homicide (robbery with
homicide). The supreme court of Spain, interpreting the provisions of the
Penal Code touching the complex crime of robo con homicidio has frequently
decided that, where the complex crime has been committed, all those who
look part as principals in the commission of the robbery are guilty as
principals in the commission of the crime of robo con homicidio, unless it
appears that the endeavored to prevent the unlawful killing. (Decisions of the
supreme court of Spain, April 30 and February 23, 1872, and June 19, 1890.
See also Viada, vol. 3, pp. 347, 354, and 356).
Accepting as true the exculpatory statements of the accused in his
repudiated confession, it does not appear therefrom that he made any
genuine effort to prevent the murder of Rufino Calderon.
xxx xxx xxx 8
(Emphasis supplied.)
The rule in Macalalad was consistently followed until 1925 when U.S. v.
Basisten, 47 Phil. 493 (1925) was decided. In Basisten, Mr. Justice
Romualdez wrote, for the Court:
The liability of the other appellants Andres Pasquin Placido Heusca Vicente
Caballero and Alejandro Picate, consist in having conspired and taken part in
the robbery. They must not be held responsible for the homicide which was
not the subject matter of their conspiracy and in which they did not have any
intervention, for it was performed by Emilio Huesca alone. The proper
punishment, therefore, for them is the penalty for robbery in band within the
limits of which the trial court has imposed upon them. 9
But in 1926, barely one year after Basisten had deviated from Macalalad, the
Supreme Court went back to the Macalalad rule. In People vs. Bautista, the
Court, through Mr. Justice Johnson, invoked and applied the Macalalad rule
without even mentioning the deviation in Basisten:
xxx xxx xxx
In the first place it may be said that the evidence adduced during the trial of
the cause clearly shows that the appellants are guilty of the crime of robbery
with homicide and must therefore be punished in accordance with the
provisions of paragraph 1 of article 503 of the Penal Code. It is clearly
established that the appellants, together with an armed band of more than
four persons, committed a robbery and that on the occasion of such robbery
a homicide was committed. The crime which they committed therefore falls
clearly within the provisions of said article. (Decision of the Supreme Court of
Spain, July 13, 1871; 3 Viada, Commentaries on the Penal Code, p. 347.)
Whenever a homicide has been committed as a consequence or on the
occasion of a robbery, all principals in the commission of the robbery will also
be held guilty as principals in the complex crime of robbery with homicide,
although they did not actually take part in the homicide, unless it clearly
appeared that they endeavored to prevent the homicide. 10
From 1926 to 1967, the Macalalad doctrine was applied and re-applied many
times by the Court. The following list does not purport to be exhaustive:
1. People v. Morados, 70 Phil. 558 (1940);

2. People v. de la Rosa, 90 Phil. 365 (1952);
3. People v. Libre, 93 Phil. 5 (1953);
4. People v. Lingad, 98 Phil. 5 (1955);
5. People v. Mangulabnan, G.R. No. L-8919,28 September 1956; 52 O.G.
6532 (1956);
6. People v. Gardon, 104 Phil. 371 (1958);
7. People v. Carunungan, 109 Phil. 534 (1960);
8. People v. Flores de Garcia, 111 Phil. 393 (1961); and
9. People v. Rogel, 4 SCRA 807 (1962).
In 1967, People v. Pelagic, 11 was decided. Here, U.S. v. Basisten, was
indeed cited by the Court. A close scrutiny of the facts in Pelagio will,
however, show that the result there reached does not really represent a
departure from the Macalalad rule which, as noted above, had been
reiterated many times since the 1925 Basisten case.
Pancho Pelagio and five (5) others conspired to rob a particular house in G.
Villanueva St., Pasay City. Only Pelagio and three (3) others actually carried
out the robbery as planned. Pelagio acted as the lookout and posted himself
at the gate of the house; two (2) others actually entered the victim's
premises; the fourth was ordered to hail and hold a taxi in readiness for the
getaway. The robbery was carried out as planned. But, when the two (2)
robbers who had gone up the house came down and out into the street, they
failed to find Pelagio at the gate. The two (2) robbers hurried to the next
block where they found the fourth conspirator waiting for them inside a taxi.
The two (2) robbers boarded the taxi. As the taxi was about to leave,
however, a jeepney arrived from the opposite direction and blocked the taxi's
way. A man alighted from the jeepney and started towards the taxi. One of
the robbers recognized the man as a police officer and ordered his
companions to shoot which they did, killing the police officer. Pelagio later
explained to his associates that he had fled before the two (2) robbers had
completed their job because he, Pelagic, had seen someone slip out of the
house being robbed apparently to summon the police. In a per curiam
decision, the Supreme Court modified the conviction of Pelagio from robbery
with homicide to simple robbery. The Court said:
Even the decision under appeal recites that when Arcadio Balmeo and Oscar
Caymo hurried out of the victim's house after the robbery, Pancho Pelagio
had evidently fled from his lookout post because the pair, Balmeo and
Caymo, failed to locate him at the gate where the was supposed to have
stationed himself. To be sure, the said decision itself renders the account
that it was only Balmeo and Caymo who walked together from the said house
to the corner of Villanueva and F. Fernando Streets where then they saw
Armando Manalang waiting for them in a taxi and that it was only when these
three had taken to the said taxi, and the cab was about to leave, that the
shooting of Pat. Trinidad happened. When the homicide was committed,
therefore, Pancho Pelagio could not have had the least intervention or
participation as might justify penalizing him likewise for the said killing. So far
as the records disclose, the conspirators were agreed only on the
commission of robbery; there is no evidence that homicide besides was
determined by them when they plotted the crime. All these warrant the
exclusion of Pancho Pelagio from any responsibility for the said killing.
(People vs. Basisten, et al., 47 Phil. 493) ...
Clearly, Pelagio, having fled from the scene of the robbery, had abandoned
the conspiracy and dissociated himself from his co-conspirators even while
the robbery was still in process and certainly before the unfortunate
policeman arrived on the scene as the robbers were about to escape in a
taxi. Because of such abandonment and dissociation, the conspiracy,
whatever may have been the subject thereof, was over and done with, so far
as concerned Pelagio. Abandonment and dissociation are clear equivalents
of efforts to prevent the homicide which, under Macalalad, would exculpate
one from liability for the homicide but not for the robbery.
It may be observed that very soon after Pelagic, the Supreme Court resumed
application and reiteration of the Macalalad rule. Thus, e.g.:
(1) People v. Atencio, 22 SCRA 88 (1968);
(2) People v..Pujinio, 27SCRA1186(1969); In Abalos, the accused Abalos and Mendiola, after a long drinking bout with
two (2) other comrades got into a taxi and directed the driver to take all four
(3) People v. Puno, 56 SCRA 659 (1974); of them to the Arty Subdivision, Valenzuela, Bulacan, in the early hours of
the morning. Abalos was seated beside the driver; the other three (3) were in
(4) People v. Sumayo, 70 SCRA 448 (1976); the back seat. Two (2) of the four (4) comrades got off before reaching the
subdivision, Abalos and Mendiola then directed the driver to enter the
(5) People v. Navasca, 76 SCRA 70 (1977); subdivision. Abalos signalled Mendiola that he would hold up the driver.
Abalos drew out a knife and held it at the driver's neck. Mendiola at the same
(6) People v. Page, 77 SCRA 348 (1977); time demanded the driver's earnings and boxed him three (3) times on the
back. The driver refused to surrender his earnings and apparently tried to
(7) People v. Berberino, 79 SCRA 694 (1977); fight back. Abalos, infuriated by the driver's resistance, plunged his seven
and a half inch blade through the driver's right cheek. Unnerved by the
(8) People v. Cristobal, 91 SCRA 71 (1979); sudden, profuse bleeding of the, wounded driver, Abalos and Mendiola
hastily left the taxicab, forgetting all about the driver's earnings, and fled. The
(9) People v. Umbao, 103 SCRA 233 (1981); taxi driver suffered a massive hemorrhage which brought on death. Abalos
and Mendiola were convicted by the trial court of attempted robbery with
(10) People v. Veloso, 112 SCRA 173 (1982); homicide. The Supreme Court through then Mr. Justice Aquino upheld the
conviction of Abalos but found Mendiola guilty only of attempted robbery,
(11) People v. Tabian, 120 SCRA 571 (1982); citing in this connection U.S. v. Basisten. The reference to Basisten in this
case, however, appears quite unnecessary for the Court had explicitly found
(12) People Lot Solis, 128 SCRA 217 (1984); a few pages that there in fact was no conspiracy at all, whether for robbery
(holdup) or for homicide. Mr. Justice Aquino wrote:
(13) People v. Guiapar, 129 SCRA 539 (1984); and
As already noted [Abalos] said in his confession that he was intoxicated
(14) People v. Gapasin, 145 SCRA 178 (1986). when he stabbed the cab driver, he and his companions had been ng
continuously sometimes before the crime was prepetrated. Intoxication
Clearly, the Court did not abandon the Macalalad rule by promulgating mitigates his liability. It was not habitual nor intentional (Article 15, Revised
Pelagio, as Mr. Justice Antonio had mistakenly supposed in his concurring Penal Code). The holdup was not the offspring of planning and deliberation.
opinion in People v. Adriano. 12 Examination of the cases listed above will It was a fatal improvisation dictated by an impromptu impulse. 16 (Emphasis
show, further, that the Macalalad rule, while it originated in a case involving a supplied).
band (en cuadrilla), has in fact not been limited by the Court to situations
where a band was present. Indeed, the great majority of the above cases are Since there was neither conspiracy the presence of a band, there was in
conspiracy cases where the technical elements of a band 13 were absent. point of fact no occasion for application of the doctrine of Macalalad nor of
the Basisten case. Both Abalos and Mendiola were simply principals by
We turn to People v. Abalos, 14 and People v. Adriano, 15 which also need direct participation in the attempted robbery.
to be considered. A close examination of the facts will show that Abalos and
Adriano do not represent true departures from the 1907 Macalalad rule.
People v. Adriano involved the horrifying slaughter of five (5) security guards
of the Rice and Corn Administration. The security guards were hacked with
an ax, one by one, as they lay hogtied on the floor. The malefactors
numbered about eleven (11) in all. The trial court found four (4) guilty of the
crime of robbery with homicide. The precise question before the Court was
whether the decision of the trial court holding four (4) persons, including one
Leonardo Bernardo, guilty of robbery with homicide and sentencing them to
death should be affirmed or whether Leonardo Bernardo should be held
guilty of robbery merely. A majority of six (6) justices plus one (1) concurring
justice held that Leonardo Bernardo was guilty of simple robbery. Six (6)
other members of the Court voted for affirmance in toto of the trial court's
judgment. 17 The facts in Adriano as found by the Court showed that there
were two (2) conspiracies: one for the commission of robbery, which included
Leonardo Bernardo and all the other malefactors; 18 another, smaller, one
for the commission of the multiple murder, which did not include Leonardo
Bernardo. The per curiam decision read, in relevant part:
... The awareness that just one of them being known and arrested would lead
to the apprehension of the other participants in the robbery, the common
design of liquidating the possible witnesses to avoid the grim possibility of
their being all brought before the bar of justice entered the minds of those
specifically named above, and moved to act accordingly. Quite obviously
Mariano Domingo did nothing to prevent the killing which he himself hinted at
as the next practical move to take following the consummation of the
robbery. The conspiracy Lo hill, born of the exigency of the situation,
therefore clearly involved Apolonio Adriano, Mario San Diego, Mariano
Domingo and possibly Pedro Miranda who is yet to be apprehended. Their
respective acts clearly were directed to the same object and for the same
purpose. Once the conspiracy is established, which may be done by mere
circumstantial evidence, as direct evidence is not so easily obtainable
(People vs. Candado, 84 SCRA 508; People vs. Cabiling, 74 SCRA 285;
People vs. Mejia, 55 SCRA 453; People vs. Carino, 55 SCRA 516; People
vs. Cadag, 2 SC RA 388), the conspirators are all liable as co-principals,
regardless of the extent and character of their respective participation in the
commission of the crime (People vs. Candado, 84 SCRA 508; People vs.
Phones, 84 SCRA 167).
The Court, however, finds Leonardo Bernardo seemingly unaware of the
intention to kill the guards. The Idea of killing them arose only when Mariano
Domingo called the attention of Apolonio Adriano to his being known by the
guards, being one of them. By that time the robbery had been consummated,
the jeep driven by him (Leonardo Bernardo) with Plate No. J-14362, was
already loaded with bags and carton boxes containing the stolen money...
... It was clearly only at the spur of the moment, so to speak, that Mariano
Domingo and Apolonio Adriano, joined by Mariano San Diego and Pedro
Miranda, thought of having to kill the guards, entirely without the knowledge
of Leonardo Bernardo... 19 (Emphasis supplied.)
Because Leonardo Bernardo was not part of the smaller and later conspiracy
(to kill the five guards) within the larger conspiracy (to rob the treasury of the
Rice and Corn Administration), he was found guilty of robbery only and his
sentence reduced from death to reclusion perpetua. Thus, the result reached
in Adriano is compatible with the Macalalad-Pecato doctrine.
What may be stressed, in resume is that the result reached by the Court in
respect of the accused Punzalan is in line with the rule first elaborated in
U.S. v. Macalalad (1907) and most recently reaffirmed in People v. Pecato
(1987,). U.S. v. Basisten, a case whose rule was over-turned the very next
year after it was promulgated, was in fact an aberration. That the Court has
today affirmed once more the Macalalad-Pecato doctrine evidences its
discriminating regard for settled rules.
That the Court has reaffirmed Macalalad-Pecato is important for another
reason. To have disregarded Macalalad-Pecato would have come too close
to discarding the basic rule on conspiracy, that is, once a conspiracy or
community of criminal design is shown, then the concrete modality of
participation in a crime becomes secondary for determination of liability —
"the act of one is the act of all." To require affirmative proof that the subject of
the conspiracy in this case embraced not just robbery but also the double
homicide, is to lose sight of the fact that conspiracy, in the nature of things, is
almost always only indirectly or circumstantially shown, by proof of concerted
acts rather than by e.g., a written plan of action. To require such affirmative
proof would also be to impose a very heavy (and quite unnecessary) burden
on our law enforcement agencies, a burden which under present
circumstances of rampant violent crime and severely limited governmental
resources, may well be an insupportable one. Our law on conspiracy is
infused, in important degree, with the objective of deterring conspiracies to
commit crimes and the implementation of such conspiracies. A man's
capacity for inflicting harm is magnified when he joins a conspiracy to commit
crime (whether or not a band, in the technical sense of Article 296, Revised
Penal Code, materializes). The threat to society posed by a criminal group is
greater than the sum total of the particular acts of the individual members of
the group. The result here reached by the Court in respect of Punzalan may
be seen to reinforce the capability of our law to achieve that objective of
deterrence.
Finally, there appears nothing unfair or illiberal about holding a man, who
knowingly joins a conspiracy to commit a crime, responsible for all the crimes
which are causally connected with the conspiracy. 20 No one complains
about the same rule in tort law. One who joins a criminal conspiracy in effect
adopts as his own the criminal designs of his co- conspirators; he merges his
will into the common felonious intent. A person who embraces a criminal
conspiracy is properly held to have cast his lot with his fellow conspirators
and to have taken his chances that a co-conspirator may get rattled, that a
victim may unexpectedly decide to resist and fight back, or that something
else may go awry, and third persons may get killed or injured in the course of
implementing the basic criminal design. To free himself from such liability,
the law requires some overt act on the part of the conspirator, to seek to
prevent commission of the second or related felony or to abandon or
dissociate himself from the conspiracy.
I vote to affirm the judgment of the trial court that both Juan Escober and
Macario Punzalan, Jr. are guilty beyond reasonable doubt as principals in the
crime of robbery with homicide and that accordingly, both should be
sentenced to suffer the penalty of reclusion perpetua and to Idemnify the
heirs of the victims in the amount of P60,000.00 and to pay moral damages
to such heirs in the amount of P200,000.00.
Melencio-Herrrera, Sarmiento, and Padilla, concur and dissent:
Separate Opinions
TEEHANKEE, C.J., concurring:
I concur in toto with the judgment of the Court (a) holding that the 1-1/2 page,
single-spaced, decision of the trial court presided by Judge Oscar Leviste,
sentencing the accused at bar to the supreme penalty of death without
specification of the evidence, testimonial and documentary, upon which his
conclusions finding them guilty had been based falls short of the
constitutional requirement that every decision of a court of justice clearly and
distinctly state the facts and the law on which it is based; (b) acquitting the
accused Juan Escober of the crime of robbery with homicide on the ground
that his guilt has not been proved beyond reasonable doubt; and (c ) finding
the other accused Macario Punzalan, Jr. guilty beyond reasonable doubt as
principal in the complex crime of robbery with homicide and imposing upon
him the penalty of reclusion perpetua in view of the abolition of the death
penalty under the 1987 Constitution.
a) This brief concurrence is just to restate that the whole Court en banc
is unanimous as to the utter failure of the trial judge's 1-1/2 page decision to
conform to the mandatory constitutional requirement that a decision must
clearly state the facts and the law on which it is based. Normally, in such
cases, the case would have to be remanded to the court a quo for the
rendition of a new judgment that does conform to the constitutional mandate
but the Court, since all the briefs have been filed, opted to review the record
and the evidence and to render judgment accordingly in order to avoid further
delay in the disposition of the case on the merits;
b) The whole Court en banc is likewise unanimous in its judgment
finding the accused Macario Punzalan, Jr. guilty beyond reasonable doubt of
the crime of robbery with homicide, even as it reaffirms the settled doctrine in
Criminal Law that whenever a homicide has been committed as a
consequence of or on the occasion of the robbery, all those who took part as
conspirators in the commission of the crime of robbery are also guilty as
principals of the special complex crime of robbery with homicide although
they did not actually take part in the homicide, unless it clearly appears that
they endeavored to prevent the homicide under the basic principle that once
a conspiracy or community of criminal design is shown, then the actual mode
of participation in a crime of any of the accused, whether he be a lookout
posted outside the scene of the robbery, is of no moment, since the act of
one conspirator is the act of all. This has been the consistent doctrine of the
Court applied since the early 1907 case of U.S. v. Macalalag and most
recently affirmed in the 1987 case of People vs. Pecato as traced by Mr.
Justice Feliciano in Ms scholarly separate opinion; and
c) The ten-to-four division among the members of the Court is confined
to the case of accused Juan Escober with ten members voting to acquit him
and four members dissenting from his acquittal. On my part, I have given him
the benefit of the doubt and voted for his acquittal. The superior and
immutable rule is that the guilt of an accused must be proven beyond
reasonable doubt by virtue of the constitutional presumption of his
innocence, which presumption must prevail unless overturned by clear,
competent and credible proof. Here, as discussed in the extensive main
opinion of the Court ably penned by Mr. Justice Fernan, the evidence as to
the existence of a conspiracy between the accused Juan Escober and the
robbers-killers and as to his participation in the crime of robbery appears to
be inadequate and therefore failed to produce the required moral certainty of
his guilt.
GUTIERREZ, JR., J., separate opinion:
While acknowledging the impeccable logic behind the concurring and
dissenting opinion of Justice Florentino P. Feliciano, I regret I cannot join him
completely.
I entertain reasonable if not grave doubt as to the complicity of Juan Escober
in the robbery and in the killing of two children while the robbery was
underway. It is an easy task after a crime has been consummated for us to
surmise how the mind of an accused should have operated during crucial
moments and to state how an accused should have behaved to avoid the
possibility of his being implicated as a co-principal and conspirator.
Unfortunately, things do not always work logically and according to
predictable patterns of behaviour in real life. The minds of ordinary persons
(and I see nothing special, extraordinary, or superior about the accused
security guard), seldom behave in predictable ways. Seemingly negligent or
even inexplicable behaviour is not necessarily a badge of guilt. Not every
security guard who opens a gate when he should keep it closed can be
accused of complicity in a crime even if evil persons choose that particular
moment of indiscretion to barge into the premises. I agree with Justice
Fernan that from the records of this case, the guilt of Juan Escober has not
been proved with the degree of certainty required under our penal laws.
I would also like to make some observations about the Court's apparently
unqualified adherence to the precedent in the 1907 case of U.S. v. Macalalad
(9 Phil. 1) and the list of decisions from 1926 to 1927 cited in the separate
opinion of Justice Feliciano. A conspirator should not necessarily or
automatically be found guilty of everything that happens while the crime,
object of the conspiracy, is being committed.
It would seem that unless a conspirator endeavors to prevent the other crime
committed on the occasion of the principal crime, object of the conspiracy, he
would be guilty as a principal in the complex crime or other crime even if he
had absolutely no part in it. I may have no statistics to prove it but I believe
that conspiracy improperly handled could send more innocent persons to jail
than any other principle in criminal law.For instance, many accused persons
protesting they had nothing to do with a crime have been convicted of
malversation or estafa simply because the documents evidencing the crime
somehow passed their hands. A person who is in a stupor or is simply not
paying any attention during a drinking party where the details of a robbery,
car-napping, or murder are planned could, in the hands of a brilliant
prosecutor, be convicted of the resulting crime and all its consequences.
I believe that appellant Punzalan in this case is guilty of robbery with
homicide. My observations are simply aimed at an unqualified adherence to
the principle that the accused must always endeavor to prevent the other
crime to be freed from complicity in a crime he knew nothing about. Or that
he must run away and leave his companions before the second crime is
committed. Every case must be judged on its separate facts and
notwithstanding conspiracy in the planned crime, a person may still be
acquitted of the other crime about which he had no knowledge at all For
instance, if the innocent victims of the vicious killing in this case had been the
children of Punzalan, certainly he cannot be held guilty of parricide. Or if a
band of robbers rape a woman inside a house not knowing he is the wife of
their look-out, the rule on all conspirators being equally responsible for all the
consequences or happenings during the commission of the planned crime
should not apply. The precedents from Macalalad are impressively cited by
my teamed colleague, but I believe all judges should still be cautioned to look
beyond the unqualified rule and ascertain carefully whether the lookout or
anybody else similarly situated should be automatically convicted for
something about which he was completely ignorant. The consequences of
sending an innocent person to j ail for a crime where he had no participation
are too horrible to be left simply to the operation of an unqualified rule.
FELICIANO, J., concurring and dissenting :
With regret, I am compelled to dissent from the opinion written by Mr. Justice
Fernan to the extent that it would acquit Juan Escober. I would, upon the
other hand, like to add somewhat to the reference made in the majority
opinion to the rule on the basis of which Punzalan is correctly held liable for
robbery with homicide.
We consider first the proposed acquittal of Juan Escober.
The prosecution theory, as found by the majority opinion, was that Juan
Escober was a principal by indispensable cooperation in the crime of robbery
with homicide. According to the majority opinion, the prosecution sought to
prove that Escober joined in the community of design, a conspiracy, which
was shown in respect of the other accused, by referring to the following
particular acts of Escober:
[1] [Escober's] alleged act of opening the gate of the compound to his co-
conspirators;
[2] his having been seen by Mrs. Lina Chua behind Abuyen, the alleged
mastermind, after the gun shot; and
[3] his having volunteered the information to Mrs. Chua that he was not hit.
The prosecution further urged that the firing of a hand gun by Abuyen was a
mere ritual designed to avoid or deflect suspicion from Escober and that
Escober's version of the incident [was] too replete with contradictions "to
merit belief"
The opening of the gate of the Chua compound to the malefactors by
Escober was absolutely indispensable for the commission of the crime of
robbery and for the killing of the two (2) children of Mr. and Mrs. Vicente
Chua in the course thereof. In abstracto, the act of opening a gate upon
hearing a knock is, of course, an innocent gesture. It is important to bear in
mind, however, that Escober was a security guard; that he had seen and
recognized Abuyen through the peephole in the pedestrians' gate before
opening that gate; and surely the least that can be expected of a security
guard, who is on guard duty at night time, is that he must exclude from the
premises being guarded persons who have not demonstrated any lawful
reason for wanting to enter such premises. If one assumes that Escober had
not joined the criminal conspiracy, it was at the very least utterly reckless for
him to have opened the gate under the circumstance in this case. The fact
that Escober was acquainted with Abuyen was no justification for letting
Abuyen and his gang come in. Upon the other hand, the circumstance that
Escober knew Abuyen suggests at least the probability that Escober was
indeed part of the criminal conspiracy if Escober was totally unacquainted
with Abuyen, that probability would not of course exist It must further be
noted that Escober himself, who had thoughtfully left his gun in a locker
before opening the gate of the compound, 1 did not claim that he had been
coerced by Abuyen and his companions into opening the gate of the
compound.2 If he had in fact been forced into opening the gate by Abuyen
and company, it would have been the simplest and most natural thing in the
world for him to have said so. Abuyen, the brains of the conspiracy, however,
conveniently explained later that he had pointed his gun at Escober, almost
apologetically, after Escober had opened the small gate and let Abuyen and
the other malefactors into the compound.
Mrs. Lina Chua testified that upon hearing a shot, and thereupon turning to
the garage from whence the sound of the shot came, she saw Abuyen
walking towards the gate with Escober about a meter behind. 3 It must not
escape notice there was no suggestion by any witness that Escober was
then chasing and trying to capture Abuyen, which a security guard faithful to
his duties might be expected at least to try to do. The majority opinion does
try to suggest that because Mrs. Lina Chua, in the separate trial of Abuyen,
had said that Abuyen and Escober were warning towards the gate; they were
in a hurry (nagmamadali)," Escober could be regarded as 'indeed chasing
Abuyen/Alorte Escober himself had not claimed that he had somehow
summoned his courage and sought to capture Abuyen immediately after
Abuyen had, according to Escober, fired a shot at him but had missed. Thus,
the suggested interpretation would seem unreal and excessively generous to
Escober. There was also no evidence that Escober was trying to flee or hide
himself from Abuyen. The net effect, if the testimony of Mrs. Lina Chua is to
be believed at all, was that Escober was acting in concert with Abuyen,
presumably to facilitate the escape of Abuyen and his companions.
Clearly, the testimony of Mrs. Chua was critical for the prosecution. The
majority opinion, however, rejects totally the testimony of Mrs. Chua as
suffer[ing] from inaccuracy and as being susceptible to other interpretations"
in the premises, when "taken in conjunction with the extrajudicial confession
of Abuyen." It must be observed, with respect, that the majority opinion so
discarded Mrs. Chua's testimony upon the totally speculative ground that it is
not contrary to human psychology and experience," that Mrs. Lina Chua
having lost two (2) of her children to the robbers, would in seeking
vengeance deliberately and baselessly implicate Escober in the robbery and
the killings as a "sacrificial lamb." There appears no basis for this speculation
at all. Moreover, the rejection of Mrs. Chua's testimony runs counter to the
prevailing jurisprudence which has been summed up in the following terms in
People v. Roxas:
... Neither is the relationship of Victorino and Paterno to the deceased
sufficient to render their testimony doubtful nor enough to discredit their
credibility. The credibility of witnesses cannot be assailed as prejudiced
simply because of their close relation to the victim. For it is not to be lightly
supposed that the relatives of the deceased would callously violate their
conscience to avenge the death of a dear one by blaming it on persons
whom they know to be innocent. 4
It was part of the prosecution theory that Abuyen had fired a shot,
presumably in the air, in order to create the impression that Escober was not
part of the conspiracy. Escober claimed that the shot had been fired at him
while he was inside the van in the garage, and advised Mrs. Chua that he
had not been hit by the shot. 5 The first point that may be noted in this
connection is that if the robbers had really wanted to kill Escober in order to
prevent Escober's later Identifying them, there was absolutely nothing to
prevent them from doing so. The two (2) young children of Mrs. Chua had
been stabbed to death brutally to prevent them from Identifying the robbers;
yet, if E scober is to be believed, the robbers made no more than a token,
half hearted, effort to insure that Escober, an adult male and a security
guard, would not Identify them. Escober was not even tied up and blind-
folded. It is hence difficult to appreciate the "keen observation" of Escober's
counsel that Escober would be the "stupidest person on earth" if he allowed
himself "to be shot by a gun—to avoid suspicion that he was in cahoots with
the malefactors." Escober was in fact not wounded at all. No bullet hole was
found in the van where Escober claimed to have been crouching when
Abuyen shot at him. 6 Upon the other hand, a shot fired in the air can only be
regarded as a cheap method for supporting a profession of innocence on the
part of Escober. Escober's counsel was simply begging the question.
In the majority opinion, reliance is placed upon statements made by co-
accused Macario Punzalan during the preliminary investigation, and upon an
extrajudicial statement of Abuyen (accused in a separate criminal case) to
support the position that the gun play was not mere play-acting and that
Escober was not part of the criminal conspiracy. The statements coming from
Punzalan and Abuyen must, however, be taken with great caution. For it
must be recalled that the testimony of accomplices—principals confederates
or conspirators — while admissible and competent, comes from a "polluted
source." Consequently, as Mr. Justice Malcolm cautioned, such testimony
must be "scrutinized with care. It is properly subject to grave suspicion. If not
corroborated,credibility is affected." 7 It should also be pointed out that the
statement of Punzalan adduced in this connection in the majority opinion,
appears disjointed and totally unrelated to the question in response to which
it was given. The statement of Punzalan, in other words, would appear, not
spontaneous and candid" (as suggested in the majority opinion) but rather to
have been deliberately thrown in for the purpose of exculpating Escober.
Thus:
FISCAL: Ito ng umakyat kayo sa bahay ay sumama ba?
PUNZALAN: Hindi ho, nasa ibaba po rin ako sir.
FISCAL: Ito [referring to Escober] nakita mong umakyat?
PUNZALAN: Hindi ho, kung baga sa ano ay pinapapatay ho sa akin ni
Abuyen ni Alorte.
FISCAL: Bakit?
PUNZALAN: Ewan ko po, hindi ko po alam ang dahilan.
FISCAL: Pero hindi mo naman pinatay.
PUNZALAN: Hindi po.
FISCAL: Bakit?
PUNZALAN: Ewan ko po, dahil hindi ko po alam nga ang dahilan, sir, kasi po
ay gusto kong mahuli yung Abuyen sapagkat iyon pong talaga ang utak eh.
(Emphasis supplied)
To accept and to accord full credence to statements of proven conspirators
to all appearances designed to avoid suspicion from settling on Escober, who
had made the robbery and double homicide possible to begin with, while
rejecting as biased the testimony of Mrs. Lina Chua solely because she was
the mother of the slain children, must seem a strange situation indeed. If one
must, without requiring proof, impute a 'sense of justice and fairness' to
Abuyen from whose mind the conspiracy sprang and whose hands and arms
were splattered with the blood of the two (2) young children of Mrs. Lina
Chua, one ought not, it is submitted, to assume casually that Mrs. Lina Chua
was bereft of that same 'sense of justice and fairness."
While each of the acts of Escober cited by the prosecution might not,
considered in isolation from the others, be sufficient to show participation in
the common criminal design, it is submitted that where those acts are
considered together, and viewed in the light of what Abuyen, Punzalan and
their other two companions did, and did not do, they constitute more than
adequate basis for not overturning the conclusion of the trial court that
Escober was guilty. After all, it was not this Court but the trial judge who
examined all the evidence and listened to all the testimony, and his
conclusion, even if too cryptically set down on paper, must be given great
weight.
We turn to Macario Punzalan whom the majority opinion finds guilty of
robbery with homicide. There is no question that Punzalan participated in the
common design to commit robbery. He acted as lookout for the gang of
robbers. He did not go upstairs to the house which was ransacked and where
the victims were slain; unlike Abuyen, he did not take part in the actual
stabbing of the two (2) innocent children of Vicente and Lina Chua. Even so,
the majority opinion, stressing that Punzalan's participation in the conspiracy
to commit robbery was conclusively shown, rightly held him responsible for
robbery with double homicide.
Because the above rule on this matter and its underlying ratio have not
always been well understood and because a handful of decisions of this
Court contain language or have reached results which, at first glance, may
seem at variance with the rule above referred to, it should be useful to
examine in some detail the development of that rule and to mark out its
present scope and shape.
The rule correctly applied by the Court was unanimously reaffirmed by the
Court en banc most recently in People v. Pecato (G.R. No. L-41008, 18 June
1987) in the following terms:
The crime committed by the accused is Robbery with Homicide as defined
and penalized under Article 294 (1), of the Revised Penal Code. Felix Larong
was shot to death during the robbery. We have repeatedly held that: (A)s
long as homicide resulted during or because of the robbery, even if the killing
is by mere accident, robbery with homicide is committed; it is only the result
obtained, without reference or distincttion as to the circumstances, causes,
modes or persons intervening in the commission of the crime that has to be
taken into consideration. (People vs. Guiapar, No. L-35465, May
31,1984,129 SCRA 539, 553554 [1984].) Further, whenever a homicide has
been committed as a consequence of or on the occasion of a robbery, all
those who took part as principals in the commission of the crime are also
guilty as principals in the special complex crime of robbery with homicide
although they did not actually take part in the homicide unless it clearly
appeared that they endeavored to prevent the homicide. (Id., 554, citing:
People vs. Bautista, 49 Phil. 389 [19261; and U.S. vs. Macalalad, 9 Phil 1
[1907].) In this instance, the evidence on record is bereft of any showing that
any of the accused tried to prevent the killing of Felix Larong. What is shown
instead is that they merely stood watching and did nothing when one of their
companions shot the victim. (T.s.n. session of October 21, 1974, 29;
Deposition, Id., 3, 5.) Additionally, the term 'homicide' in robbery with
homicide should be understood as a generic term and includes murder.
(People vs. Revotoc, No. L-37425, July 25, 1981, 106 SCRA 22 [1981]. )
xxx xxx xxx
(Emphasis supplied.)
The rule so reiterated in Pecato was first elaborated upon as long ago as 8
October 1907 in U.S. v. Macalalad, 9 Phil. 1. Mr. Justice Carson, speaking
for the Supreme Court, said:
... While it does not appear that this defendant [Fructizoso Esguerra] himself
struck the fatal blow which caused the death of Rufino Calderon he must be
adjudged guilty as principal of the complex crime of robbery with homicide
with which he is charged, it having been proved that he was present, ad.ded,
abetted, and took part therein. The testimony of the witnesses for the
prosecution fully establishes the guilt of the defendant as a principal in the
commission of the robbery, and, even were we to disregard his confession,
which he repudiated at the trial of' the case, and wherein he admitted he was
present at the killing of Rufino Calderon, we would, nevertheless, be
compelled to find him guilty of the crime of robo con homicide (robbery with
homicide). The supreme court of Spain, interpreting the provisions of the
Penal Code touching the complex crime of robo con homicidio has frequently
decided that, where the complex crime has been committed, all those who
look part as principals in the commission of the robbery are guilty as
principals in the commission of the crime of robo con homicidio, unless it
appears that the endeavored to prevent the unlawful killing. (Decisions of the
supreme court of Spain, April 30 and February 23, 1872, and June 19, 1890.
See also Viada, vol. 3, pp. 347, 354, and 356).
Accepting as true the exculpatory statements of the accused in his
repudiated confession, it does not appear therefrom that he made any
genuine effort to prevent the murder of Rufino Calderon.
xxx xxx xxx 8
(Emphasis supplied.)
The rule in Macalalad was consistently followed until 1925 when U.S. v.
Basisten, 47 Phil. 493 (1925) was decided. In Basisten, Mr. Justice
Romualdez wrote, for the Court:
The liability of the other appellants Andres Pasquin Placido Heusca Vicente
Caballero and Alejandro Picate, consist in having conspired and taken part in
the robbery. They must not be held responsible for the homicide which was
not the subject matter of their conspiracy and in which they did not have any
intervention, for it was performed by Emilio Huesca alone. The proper
punishment, therefore, for them is the penalty for robbery in band within the
limits of which the trial court has imposed upon them. 9
But in 1926, barely one year after Basisten had deviated from Macalalad, the
Supreme Court went back to the Macalalad rule. In People vs. Bautista, the
Court, through Mr. Justice Johnson, invoked and applied the Macalalad rule
without even mentioning the deviation in Basisten:
xxx xxx xxx
In the first place it may be said that the evidence adduced during the trial of
the cause clearly shows that the appellants are guilty of the crime of robbery
with homicide and must therefore be punished in accordance with the
provisions of paragraph 1 of article 503 of the Penal Code. It is clearly
established that the appellants, together with an armed band of more than
four persons, committed a robbery and that on the occasion of such robbery
a homicide was committed. The crime which they committed therefore falls
clearly within the provisions of said article. (Decision of the Supreme Court of
Spain, July 13, 1871; 3 Viada, Commentaries on the Penal Code, p. 347.)
Whenever a homicide has been committed as a consequence or on the
occasion of a robbery, all principals in the commission of the robbery will also
be held guilty as principals in the complex crime of robbery with homicide,
although they did not actually take part in the homicide, unless it clearly
appeared that they endeavored to prevent the homicide. 10
From 1926 to 1967, the Macalalad doctrine was applied and re-applied many
times by the Court. The following list does not purport to be exhaustive:
1. People v. Morados, 70 Phil. 558 (1940);
2. People v. de la Rosa, 90 Phil. 365 (1952);
3. People v. Libre, 93 Phil. 5 (1953);
4. People v. Lingad, 98 Phil. 5 (1955);
5. People v. Mangulabnan, G.R. No. L-8919,28 September 1956; 52 O.G.
6532 (1956);
6. People v. Gardon, 104 Phil. 371 (1958);
7. People v. Carunungan, 109 Phil. 534 (1960);
8. People v. Flores de Garcia, 111 Phil. 393 (1961); and
9. People v. Rogel, 4 SCRA 807 (1962).
In 1967, People v. Pelagic, 11 was decided. Here, U.S. v. Basisten, was
indeed cited by the Court. A close scrutiny of the facts in Pelagio will,
however, show that the result there reached does not really represent a
departure from the Macalalad rule which, as noted above, had been
reiterated many times since the 1925 Basisten case.
Pancho Pelagio and five (5) others conspired to rob a particular house in G.
Villanueva St., Pasay City. Only Pelagio and three (3) others actually carried
out the robbery as planned. Pelagio acted as the lookout and posted himself
at the gate of the house; two (2) others actually entered the victim's
premises; the fourth was ordered to hail and hold a taxi in readiness for the
getaway. The robbery was carried out as planned. But, when the two (2)
robbers who had gone up the house came down and out into the street, they
failed to find Pelagio at the gate. The two (2) robbers hurried to the next
block where they found the fourth conspirator waiting for them inside a taxi.
The two (2) robbers boarded the taxi. As the taxi was about to leave,
however, a jeepney arrived from the opposite direction and blocked the taxi's
way. A man alighted from the jeepney and started towards the taxi. One of
the robbers recognized the man as a police officer and ordered his
companions to shoot which they did, killing the police officer. Pelagio later
explained to his associates that he had fled before the two (2) robbers had
completed their job because he, Pelagic, had seen someone slip out of the
house being robbed apparently to summon the police. In a per curiam
decision, the Supreme Court modified the conviction of Pelagio from robbery
with homicide to simple robbery. The Court said:
Even the decision under appeal recites that when Arcadio Balmeo and Oscar
Caymo hurried out of the victim's house after the robbery, Pancho Pelagio
had evidently fled from his lookout post because the pair, Balmeo and
Caymo, failed to locate him at the gate where the was supposed to have
stationed himself. To be sure, the said decision itself renders the account
that it was only Balmeo and Caymo who walked together from the said house
to the corner of Villanueva and F. Fernando Streets where then they saw
Armando Manalang waiting for them in a taxi and that it was only when these
three had taken to the said taxi, and the cab was about to leave, that the
shooting of Pat. Trinidad happened. When the homicide was committed,
therefore, Pancho Pelagio could not have had the least intervention or
participation as might justify penalizing him likewise for the said killing. So far
as the records disclose, the conspirators were agreed only on the
commission of robbery; there is no evidence that homicide besides was
determined by them when they plotted the crime. All these warrant the
exclusion of Pancho Pelagio from any responsibility for the said killing.
(People vs. Basisten, et al., 47 Phil. 493) ...
Clearly, Pelagio, having fled from the scene of the robbery, had abandoned
the conspiracy and dissociated himself from his co-conspirators even while
the robbery was still in process and certainly before the unfortunate
policeman arrived on the scene as the robbers were about to escape in a
taxi. Because of such abandonment and dissociation, the conspiracy,
whatever may have been the subject thereof, was over and done with, so far
as concerned Pelagio. Abandonment and dissociation are clear equivalents
of efforts to prevent the homicide which, under Macalalad, would exculpate
one from liability for the homicide but not for the robbery.
It may be observed that very soon after Pelagic, the Supreme Court resumed
application and reiteration of the Macalalad rule. Thus, e.g.:
(1) People v. Atencio, 22 SCRA 88 (1968);
show, further, that the Macalalad rule, while it originated in a case involving a
band (en cuadrilla), has in fact not been limited by the Court to situations
where a band was present. Indeed, the great majority of the above cases are
conspiracy cases where the technical elements of a band 13 were absent.
We turn to People v. Abalos, 14 and People v. Adriano, 15 which also need
to be considered. A close examination of the facts will show that Abalos and
Adriano do not represent true departures from the 1907 Macalalad rule.

(2) People v..Pujinio, 27SCRA1186(1969); In Abalos, the accused Abalos and Mendiola, after a long drinking bout with
two (2) other comrades got into a taxi and directed the driver to take all four
(3) People v. Puno, 56 SCRA 659 (1974); of them to the Arty Subdivision, Valenzuela, Bulacan, in the early hours of
the morning. Abalos was seated beside the driver; the other three (3) were in
(4) People v. Sumayo, 70 SCRA 448 (1976); the back seat. Two (2) of the four (4) comrades got off before reaching the
subdivision, Abalos and Mendiola then directed the driver to enter the
(5) People v. Navasca, 76 SCRA 70 (1977); subdivision. Abalos signalled Mendiola that he would hold up the driver.
Abalos drew out a knife and held it at the driver's neck. Mendiola at the same
(6) People v. Page, 77 SCRA 348 (1977); time demanded the driver's earnings and boxed him three (3) times on the
back. The driver refused to surrender his earnings and apparently tried to
(7) People v. Berberino, 79 SCRA 694 (1977); fight back. Abalos, infuriated by the driver's resistance, plunged his seven
and a half inch blade through the driver's right cheek. Unnerved by the
(8) People v. Cristobal, 91 SCRA 71 (1979); sudden, profuse bleeding of the, wounded driver, Abalos and Mendiola
hastily left the taxicab, forgetting all about the driver's earnings, and fled. The
(9) People v. Umbao, 103 SCRA 233 (1981); taxi driver suffered a massive hemorrhage which brought on death. Abalos
and Mendiola were convicted by the trial court of attempted robbery with
(10) People v. Veloso, 112 SCRA 173 (1982); homicide. The Supreme Court through then Mr. Justice Aquino upheld the
conviction of Abalos but found Mendiola guilty only of attempted robbery,
(11) People v. Tabian, 120 SCRA 571 (1982); citing in this connection U.S. v. Basisten. The reference to Basisten in this
case, however, appears quite unnecessary for the Court had explicitly found
(12) People Lot Solis, 128 SCRA 217 (1984); a few pages that there in fact was no conspiracy at all, whether for robbery
(holdup) or for homicide. Mr. Justice Aquino wrote:
(13) People v. Guiapar, 129 SCRA 539 (1984); and
As already noted [Abalos] said in his confession that he was intoxicated
(14) People v. Gapasin, 145 SCRA 178 (1986). when he stabbed the cab driver, he and his companions had been ng
continuously sometimes before the crime was prepetrated. Intoxication
Clearly, the Court did not abandon the Macalalad rule by promulgating mitigates his liability. It was not habitual nor intentional (Article 15, Revised
Pelagio, as Mr. Justice Antonio had mistakenly supposed in his concurring Penal Code). The holdup was not the offspring of planning and deliberation.
opinion in People v. Adriano. 12 Examination of the cases listed above will
It was a fatal improvisation dictated by an impromptu impulse. 16 (Emphasis
supplied).
Since there was neither conspiracy the presence of a band, there was in
point of fact no occasion for application of the doctrine of Macalalad nor of
the Basisten case. Both Abalos and Mendiola were simply principals by
direct participation in the attempted robbery.
People v. Adriano involved the horrifying slaughter of five (5) security guards
of the Rice and Corn Administration. The security guards were hacked with
an ax, one by one, as they lay hogtied on the floor. The malefactors
numbered about eleven (11) in all. The trial court found four (4) guilty of the
crime of robbery with homicide. The precise question before the Court was
whether the decision of the trial court holding four (4) persons, including one
Leonardo Bernardo, guilty of robbery with homicide and sentencing them to
death should be affirmed or whether Leonardo Bernardo should be held
guilty of robbery merely. A majority of six (6) justices plus one (1) concurring
justice held that Leonardo Bernardo was guilty of simple robbery. Six (6)
other members of the Court voted for affirmance in toto of the trial court's
judgment. 17 The facts in Adriano as found by the Court showed that there
were two (2) conspiracies: one for the commission of robbery, which included
Leonardo Bernardo and all the other malefactors; 18 another, smaller, one
for the commission of the multiple murder, which did not include Leonardo
Bernardo. The per curiam decision read, in relevant part:
... The awareness that just one of them being known and arrested would lead
to the apprehension of the other participants in the robbery, the common
design of liquidating the possible witnesses to avoid the grim possibility of
their being all brought before the bar of justice entered the minds of those
specifically named above, and moved to act accordingly. Quite obviously
Mariano Domingo did nothing to prevent the killing which he himself hinted at
as the next practical move to take following the consummation of the
robbery. The conspiracy Lo hill, born of the exigency of the situation,
therefore clearly involved Apolonio Adriano, Mario San Diego, Mariano
Domingo and possibly Pedro Miranda who is yet to be apprehended. Their
respective acts clearly were directed to the same object and for the same
purpose. Once the conspiracy is established, which may be done by mere
circumstantial evidence, as direct evidence is not so easily obtainable
(People vs. Candado, 84 SCRA 508; People vs. Cabiling, 74 SCRA 285;
People vs. Mejia, 55 SCRA 453; People vs. Carino, 55 SCRA 516; People
vs. Cadag, 2 SC RA 388), the conspirators are all liable as co-principals,
regardless of the extent and character of their respective participation in the
commission of the crime (People vs. Candado, 84 SCRA 508; People vs.
Phones, 84 SCRA 167).
The Court, however, finds Leonardo Bernardo seemingly unaware of the
intention to kill the guards. The Idea of killing them arose only when Mariano
Domingo called the attention of Apolonio Adriano to his being known by the
guards, being one of them. By that time the robbery had been consummated,
the jeep driven by him (Leonardo Bernardo) with Plate No. J-14362, was
already loaded with bags and carton boxes containing the stolen money...
... It was clearly only at the spur of the moment, so to speak, that Mariano
Domingo and Apolonio Adriano, joined by Mariano San Diego and Pedro
Miranda, thought of having to kill the guards, entirely without the knowledge
of Leonardo Bernardo... 19 (Emphasis supplied.)
Because Leonardo Bernardo was not part of the smaller and later conspiracy
(to kill the five guards) within the larger conspiracy (to rob the treasury of the
Rice and Corn Administration), he was found guilty of robbery only and his
sentence reduced from death to reclusion perpetua. Thus, the result reached
in Adriano is compatible with the Macalalad-Pecato doctrine.
What may be stressed, in resume is that the result reached by the Court in
respect of the accused Punzalan is in line with the rule first elaborated in
U.S. v. Macalalad (1907) and most recently reaffirmed in People v. Pecato
(1987,). U.S. v. Basisten, a case whose rule was over-turned the very next
year after it was promulgated, was in fact an aberration. That the Court has
today affirmed once more the Macalalad-Pecato doctrine evidences its
discriminating regard for settled rules.
That the Court has reaffirmed Macalalad-Pecato is important for another
reason. To have disregarded Macalalad-Pecato would have come too close
to discarding the basic rule on conspiracy, that is, once a conspiracy or
community of criminal design is shown, then the concrete modality of
participation in a crime becomes secondary for determination of liability —
"the act of one is the act of all." To require affirmative proof that the subject of
the conspiracy in this case embraced not just robbery but also the double
homicide, is to lose sight of the fact that conspiracy, in the nature of things, is
almost always only indirectly or circumstantially shown, by proof of concerted
acts rather than by e.g., a written plan of action. To require such affirmative
proof would also be to impose a very heavy (and quite unnecessary) burden
on our law enforcement agencies, a burden which under present
circumstances of rampant violent crime and severely limited governmental
resources, may well be an insupportable one. Our law on conspiracy is
infused, in important degree, with the objective of deterring conspiracies to
commit crimes and the implementation of such conspiracies. A man's
capacity for inflicting harm is magnified when he joins a conspiracy to commit
crime (whether or not a band, in the technical sense of Article 296, Revised
Penal Code, materializes). The threat to society posed by a criminal group is
greater than the sum total of the particular acts of the individual members of
the group. The result here reached by the Court in respect of Punzalan may
be seen to reinforce the capability of our law to achieve that objective of
deterrence.
Finally, there appears nothing unfair or illiberal about holding a man, who
knowingly joins a conspiracy to commit a crime, responsible for all the crimes
which are causally connected with the conspiracy. 20 No one complains
about the same rule in tort law. One who joins a criminal conspiracy in effect
adopts as his own the criminal designs of his co- conspirators; he merges his
will into the common felonious intent. A person who embraces a criminal
conspiracy is properly held to have cast his lot with his fellow conspirators
and to have taken his chances that a co-conspirator may get rattled, that a
victim may unexpectedly decide to resist and fight back, or that something
else may go awry, and third persons may get killed or injured in the course of
implementing the basic criminal design. To free himself from such liability,
the law requires some overt act on the part of the conspirator, to seek to
prevent commission of the second or related felony or to abandon or
dissociate himself from the conspiracy.
I vote to affirm the judgment of the trial court that both Juan Escober and
Macario Punzalan, Jr. are guilty beyond reasonable doubt as principals in the
crime of robbery with homicide and that accordingly, both should be
sentenced to suffer the penalty of reclusion perpetua and to Idemnify the
heirs of the victims in the amount of P60,000.00 and to pay moral damages
to such heirs in the amount of P200,000.00.
[G.R. No. 126531. April 21, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GILBERT ELIJORDE
y DE LA CRUZ and REYNALDO PUNZALAN y ZACARIAS alias KIRAT,
accused-appellants.
DECISION
BELLOSILLO, J.:
GILBERT ELIJORDE Y DE LA CRUZ and REYNALDO PUNZALAN Y
ZACARIAS alias Kirat were convicted of murder by the Regional Trial Court
of Bulacan for the killing of Eric Hierro. Both accused were sentenced to
death and ordered jointly and severally to indemnify the heirs of Eric Hierro
P50,000.00 plus P35,000.00 for actual damages, P100,000.00 for moral
damages and P25,000.00 for exemplary damages. The case is now with us
on automatic review.
The records show that at around 6:00 oclock in the evening of 21 May 1995
Eric Hierro, Benjamin Visbal and Rodel Contemplado were drinking in the
house of the latter. Sometime later, Hierro and Visbal went out to buy mango
at a nearby sari-sari store. Accused Gilbert Elijorde, Reynaldo Punzalan and
a certain Edwin Menes were at the time in front of the store. As Menes
approached Hierro the latter warned Menes, Dont touch me, my clothes will
get dirty. Suddenly Menes punched Hierro on the face, followed by Elijorde
who also boxed Hierro on the face, and Punzalan who kicked Hierro at the
back. Hierro and Visbal ran for their lives. They sought shelter at
Contemplados house. After some three (3) minutes, Hierro went out of the
house to go home together with Visbal and the latters wife.
As they walked home, Visbal noticed the accused Elijorde, Punzalan and
Menes waiting for them. As Hierro and company drew near, Punzalan kicked
Hierro at the back for the second time. Visbal tried to retaliate by punching
Punzalan on the face but was held back by his wife. Hierro ran away pursued
by Elijorde. They were followed by Visbal. Elijorde stabbed Hierro at the
back. When Hierro fell down, Elijorde placed himself on top of Hierro who
was now raising his arms defensively and pleading, Maawa na kayo, huwag
ninyo akong patayin, wala akong kasalanan sa inyo. Despite the pleas of
Hierro for mercy, Elijorde stabbed him with a knife on the chest and then fled.
Visbal and his wife brought Hierro to the hospital where he died soon after.
Dr. Benito Caballero, Medico-Legal Officer of Bocaue, Bulacan, conducted a
post-mortem examination of Eric Hierro, and reported that the cause of his
death was shock resulting from multiple stab wounds in the thorax
penetrating the aorta and vena cava.[1]
Gilbert Elijorde, Reynaldo Punzalan and Edwin Menes alias Nonong[2] were
accordingly charged in an Information for murder of Eric Hierro qualified by
treachery, evident premeditation and abuse of superior strength. But only
Elijorde and Punzalan were arrested and tried. Menes has since remained at
large.
Both accused contend that the court a quo erred in finding that treachery
qualified the killing of Hierro to murder, and in finding Punzalan guilty of
murder by reason of conspiracy with Elijorde. The defense argues that
Punzalan did not conspire with Elijorde because the only participation of
Punzalan in the commission of the offense was his kicking of Hierro twice:
first, after Hierro was boxed by Elijorde and Menes in front of the nearby sari
sari store, and the second time, when Hierro was on his way home; that
Punzalan remained in the place where he kicked Hierro and did nothing
more; that he did not join or cooperate with Elijorde in pursuing and stabbing
the deceased; and, that the acts of kicking Hierro were neither in pursuance
of the same criminal design of Elijorde nor done in concert aimed at the
attainment of the same objective of killing Hierro.
Indeed, with respect to accused Reynaldo Punzalan, the Court cannot assert
with moral certainty that he is guilty of murder. To convict him as a principal
by direct participation in the instant case, it is necessary that conspiracy
between him and his co-accused Elijorde be proved. That, precisely, is
wanting in the present case. Conspiracy must be proved as indubitably as
the crime itself through clear and convincing evidence, not merely by
conjecture.[3] To hold an accused guilty as a co-principal by reason of
conspiracy, he must be shown to have performed an overt act in pursuance
or furtherance of the complicity.[4] Hence, conspiracy exists in a situation
where at the time the malefactors were committing the crime, their actions
impliedly showed unity of purpose among them, a concerted effort to bring
about the death of the victim.[5] In a great majority of cases, complicity was
established by proof of acts done in concert, i.e., acts which yield the
reasonable inference that the doers thereof were acting with a common
intent or design. Therefore, the task in every case is determining whether the
particular acts established by the requisite quantum of proof do reasonably
yield that inference.[6]
Clearly, the testimony of eyewitness Benjamin Visbal narrated the
circumstances surrounding the killing of Hierro, to wit:
Q: Now, you said that Eric Hierro went to the store to buy mango, do you
know the reason why there was a boxing incident?
A: Yes, Your Honor.
Q: What was the reason?
A: When Nongnong approached Eric, Eric stated, "Dont touch me, my
clothes will become dirty."
Q: Who is this Nongnong?
A: Edwin Meneses,[7] Your Honor.
Q: When Eric Hierro said that what did Edwin Menes(es ) do?
A: He suddenly punched Eric Hierro.
Q: When Eric Hierro (was) punched what did this Gilbert Elijorde do?
A: Gilbert Elijorde also punched Eric Hierro.
Q: How about Reynaldo Punzalan?
A: Reynaldo Punzalan kicked Hierro at the back, Your Honor.
A: The three of them were waiting for Eric Hierro but during the chasing it
Q: That was during the first incident? was only Gilbert Elijorde who chased us.

A: Yes, Your Honor. Q; What did Edwin do during the second incident?

Q: You mean to say they were three at that time? A: He did nothing.

A: Yes, Your Honor. Q: How about Kirat?

Q: Now, after that Eric Hierro went home? A: He kicked Eric Hierro at the back.

A: Yes, Your Honor. Q: After that what did you do?

Q: How long did Eric Hierro stayed (sic) at that place? A: I cant (sic) do anything, Your Honor, because I was being held by my wife.

A: For about three (3) minutes, Your Honor. Q: How about Eric Hierro what did he do?

Q: When Eric Hierro went out you went with him together with Eric Hierro? A: He ran away x x x x

A: Yes, Your Honor. Q: While Eric Hierro was running did you see that Gilbert stab Eric at the
back?
Q: Together with your wife?
A: Yes, Your Honor.
A: Yes, Your Honor.
Q: That was the first stab that was made by Gilbert is that correct?
Q: When the three of you went out what happened?
A: Yes, Your Honor.
A: While we were walking home this Kirat (Reynaldo Punzalan) suddenly
kicked Eric Hierro at the back. Q: What happened to Eric when he was stabbed at the back?

Q: Do you mean to say aside from the first incident Kirat kicked Eric Hierro, A: He continued running, Your Honor.
(during) the second incident Kirat kicked Eric Hierro?
Q: And how about Gilbert what did Gilbert do?
A: Yes, Your Honor.
A: He continued chasing, Your Honor.
Q: When you were approaching, how many of them were there waiting for
Eric Hierro? Q: How about your wife where was your wife?

A: At my back, Your Honor.
Q: When you met Eric Hierro at a certain point what did you actually see?
A: That was when I saw Gilbert stab Eric Hierro right on the chest.
Q: And when Eric Hierro was already lying (facing?) up?
A: Yes, Your Honor.
Q: And Gilbert was on top of Eric Hierro?
A: Yes, Your Honor.
Q: And you saw Gilbert stab Eric Hierro?
A: Yes, Your Honor.
Q: How many times?
A: Only once, Your Honor.
Q: During those incidents where was Kirat?
A: He did not run after Eric Hierro. He remained in front of the house of my
cousin Rodel.
On the basis of the above testimony, the only involvement of Punzalan was
kicking Hierro at the back before the latter was pursued and stabbed by
accused Elijorde. After kicking the victim, Punzalan remained where he was
and did not cooperate with Elijorde in pursuing Hierro to ensure that the latter
would be killed. There is no other evidence to show unity of purpose and
design between Punzalan and Elijorde in the execution of the killing, which is
essential to establish conspiracy. His act of kicking Hierro prior to the actual
stabbing by Elijorde does not of itself demonstrate concurrence of wills or
unity of purpose and action. For it is possible that the accused Punzalan had
no knowledge of the common design, if there was any, nor of the intended
assault which was committed in a place far from where he was. The mere
kicking does not necessarily prove intention to kill. The evidence does not
show that Punzalan knew that Elijorde had a knife and that he intended to
use it to stab the victim.[8] Neither can Punzalan be considered an
accomplice in the crime of murder. In order that a person may be considered
an accomplice in the commission of the offense, the following requisites must
concur: (a) community of design, i.e., knowing that criminal design of the
principal by direct participation, he concurs with the latter in his purpose; (b)
he cooperates in the execution of the offense by previous or simultaneous
acts; and, (c) there must be a relation between the acts done by the principal
and those attributed to the person charged as accomplice. The cooperation
that the law punishes is the assistance knowingly or intentionally rendered
which cannot exist without previous cognizance of the criminal act intended
to be executed. It is therefore required in order to be liable either as a
principal by indispensable cooperation or as an accomplice that the accused
must unite with the criminal design of the principal by direct participation.
There is nothing on record to show that accused Punzalan knew that Elijorde
was going to stab Hierro, thus creating serious doubt on Punzalans criminal
intent.[9]
In the absence of a previous plan or agreement to commit a crime, the
criminal responsibility arising from different acts directed against one and the
same person is individual and not collective, and that each of the participants
is liable only for his own acts.[10] Consequently, accused Punzalan must be
absolved from all responsibility for the killing of Hierro. It may be emphasized
that at the time accused Elijorde intervened in the assault, Punzalan had
already desisted from his own acts of aggression. He did nothing in fact to
assist Elijorde in the immediate commission of the murder. Moreover, the act
of kicking by Punzalan prior to the actual stabbing by Elijorde was evidently
done without knowledge of the criminal design on the part of the latter as that
design had not yet been revealed prior to the killing of Hierro.
As regards the kicking of the victim by Punzalan, which the latter admits,
there is nothing on record to show that the kicking resulted in any injury on
any part of the body of Hierro. Neither is there any evidence that the victim
was hit at all when Punzalan kicked him. Of what then can Punzalan be held
liable?
With regard to the principal accused Gilbert Elijorde, the trial court correctly
ruled that treachery attended the killing of Hierro thus qualifying the crime to
murder. Treachery exists when the offender commits any of the crimes
against person, employing means, methods or forms in the execution thereof
which tend directly and specially to insure its execution, without risk to
himself arising from any defense which the offended party might make. The
fact that a verbal confrontation accompanied by physical assault by the group
of Elijorde preceded the actual killing did not negate the treacherous
character of the stabbing which resulted in the death of Hierro. After the first
physical assault which sent Hierro retreating and seeking shelter in the
house of a friend, the victim did not expect that the accused would persist in
inflicting harm upon him who, unaware of the impending danger, proceeded
home with his friends. Unfortunately, however, Elijorde was waiting for the
deceased and pursued him to his end. After stabbing Hierro at the back, and
if only to ensure the success of his criminal design, accused Elijorde
persistently chased his unarmed quarry until he finally overpowered his
victim and delivered the fatal stab on his chest. In one case, treachery was
present where the accused stabbed the victim with a bladed weapon even as
his hands were raised and he was pleading for mercy.[11] In another case
where the accused who was armed with a revolver had an altercation with
the victim, fired at him, pursued him, and when cornered he (victim) threw
himself on the floor, raised his hands and begged the defendant not to shoot
him as he was already wounded, but the malefactor just the same shot him
thrice, we held that there was treachery in the killing.[12]
We likewise agree with the trial court when it disregarded the aggravating
circumstances of evident premeditation and abuse of superior strength
alleged in the Information. No sufficient evidence exists to show that the
requisites of evident premeditation were present, to wit: (a) the time when the
offender decided to commit the crime; (b) an act manifestly indicating that he
had clung to his determination to commit it; and, (c) a sufficient lapse of time
between the determination and the execution to allow him to reflect upon the
consequences of his act and for his conscience to overcome the resolution of
his will had he desired to hearken to its warnings.[13] Where there is no
showing that the accused Elijorde prior to the night of the commission of the
crime resolved to kill the victim nor proof that such killing was the result of
meditation, calculation or resolution on his part, evident premeditation cannot
be appreciated against him.[14] Moreover, the time interval of three (3)
minutes between the first and the second assault on Hierro is too brief to
have enabled Elijorde to ponder over what he intended to do with Hierro. The
circumstance of abuse of superior strength is absorbed in treachery; hence, it
cannot be appreciated as an independent aggravating circumstance when
treachery is already present.[15]
The penalty for murder under Art. 248 of the Revised Penal Code as
amended by RA 7659 is reclusion perpetua to death. As regards the accused
Gilbert Elijorde, the killing although qualified by treachery was not attended
by any generic modifying circumstance; consequently, the penalty to be
imposed upon him must be the indivisible penalty of reclusion perpetua.[16]
With respect to the accused Reynaldo Punzalan, he should be acquitted of
the crime charged for insufficiency of evidence.
Although not objected to by the accused, we modify the award of damages
adjudged by the court a quo in favor of the heirs of the victim, particularly
with regard to the moral and exemplary damages. The award of P100,000.00
for moral damages may seem excessive considering the purpose of the
award which is not to enrich the heirs but to compensate them for injuries to
their feelings.[17] For this reason, an award of P50,000.00 may be adequate
and reasonable.[18] The exemplary damages awarded by the trial court may
be deleted since they are granted only when the crime is committed with one
(1) or more aggravating circumstances. In the instant case, treachery may no
longer be considered as an aggravating circumstance since it was already
taken as a qualifying circumstance in the murder, and abuse of superior
strength which would otherwise warrant the award of exemplary damages
was already absorbed in the treachery.[19] But the indemnity for death fixed
at P50,000.00 and the actual damages representing uncontested funeral
expenses of P35,000.00 should be affirmed.
On the part of accused Reynaldo Punzalan as there is no finding of criminal
responsibility against him, only accused Gilbert Elijorde should bear the
liability for such civil indemnity as well as the actual and moral damages.
WHEREFORE, the decision of the court a quo is MODIFIED. Accused
GILBERT ELIJORDE y DE LA CRUZ is found GUILTY of MURDER and is
accordingly sentenced to reclusion perpetua. Accused REYNALDO
PUNZALAN y ZACARIAS is ACQUITTED of the crime charged and is
ordered RELEASED FROM CUSTODY IMMEDIATELY unless legally held
for another cause. In this regard, the Director of Prisons is directed to report
to the Court his compliance herewith within five (5) days from receipt hereof.
Accused ELIJORDE is solely held responsible for the payment to the heirs of
the victim Eric Hierro the amounts of P50,000.00 for civil indemnity,
P35,000.00 for actual damages and P50,000.00 for moral damages.
SO ORDERED.
Davide, Jr., C.J., Romero, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and
Ynares-Santiago, JJ., concur.
[G.R. No. 95089. August 11, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NICOMEDES
FABRO, FRANCISCO DIMALANTA, AMADO ALCALA, WILLIAM HOGE and
JOHN DOE, accused, NICOMEDES FABRO, accused-appellant.
DECISION
PANGANIBAN, J.:
The 1987 Constitution guarantees persons undergoing custodial
investigation the rights to remain silent and to have competent and
independent counsel. These rights cannot be waived except in writing and in
the presence of counsel. The Constitution impels strict compliance with these
requirements because a confession of guilt given during such investigation
constitutes formidable evidence against the accused on the principle that no
one will knowingly, freely and deliberately admit authorship of a crime unless
prompted by truth and conscience, particularly where the facts given could
have been known only by appellant. On the other hand, any allegation of
force, duress, undue influence or other forms of involuntariness in exacting
such confession must be proven by clear, convincing and competent
evidence by the defense. Otherwise, the confessions full probative value may
be used to demonstrate the guilt of the accused beyond reasonable doubt.
Statement of the Case
These doctrines are applied by the Court in deciding this appeal from the
Decision[1] of the Regional Trial Court of Olongapo City, Branch 72,[2] in
Crim. Case No. 364-87, finding the accused guilty of murder and sentencing
them to reclusin perpetua.
In an Information dated June 11, 1987, Second Assistant Fiscal of Olongapo
City, Jesus P. Duranto, charged Nicomedes Fabro, Francisco Dimalanta,
Amado Alcala, William Hoge and a certain John Doe with murder committed
as follows:
"That on or about the twelfth (12th) day of April 1987, in the City of
Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating together and mutually
helping one another, accused Nicomedes Fabro armed with a gun, with
intent to kill and with treachery, evident premeditation and in consideration of
promise of reward, did then and there wilfully, unlawfully and feloniously
assault, attack and shot (sic) therewith one Dionisio Joaquin and as a result
thereof, the latter suffered shock and Hemmorhage Massive, Secondary to
Gun Shot Wound which directly caused his death shortly thereafter.
CONTRARY TO LAW: With the qualifying circumstances of treachery,
evident premeditation and reward."[3]
On August 10, 1987, Dimalanta and Appellant Fabro, with the assistance of
Counsel de oficio Romeo C. Alinea, pleaded not guilty. On September 8,
1987, Accused Alcala entered the same plea. The other two accused,
William Hoge and John Doe, were never arrested or arraigned.
In the course of the trial, both Accused Dimalanta and Alcala jumped bail.[4]
Thus, only appellant was presented as witness by the defense.
On June 25, 1990, the trial court rendered its assailed Decision, the
dispositive portion of which reads:
"WHEREFORE, premised on all the foregoing consideration, the Court finds
accused NICOMEDES FABRO, FRANCISCO DIMALANTA and AMADO
ALCALA guilty beyond the shadow of a doubt of the crime of MURDER as
charged in the information, with three aggravating circumstances and
pursuant to Article 248, and hereby sentences them (to) the maximum
penalty of death. However, with the abolition of death penalty, accused shall
suffer reclusion perpetua, with costs against the accused. The Court orders
the accused collectively to indemnify the heirs of Dionisio Joaquin (in) the
sum of P30,000.00."[5]
On June 29, 1990, a Notice of Appeal direct to the Supreme Court was filed
in the trial court in view of the penalty imposed, reclusin perpetua. As
Dimalanta and Alcala jumped bail during the proceedings before the court a
quo, their appeal is deemed dismissed pursuant to Rule 124, Section 8 of the
Rules of Court[6] and Supreme Court Administrative Circular 2-92.[7] Hence,
only the appeal of Fabro will be ruled upon.7-A References to Dimalanta and
Alcala in this Decision are made only to complete the narration of the case,
and thus will affect only Fabro.
The Facts
Version of the Prosecution
The prosecution presented five witnesses: (1) Dr. Richard Patilano who
conducted the autopsy on the remains of the victim; (2) Sgt. Felipe Bolina,
the police investigator; (3) Anthony Beck, companion of the victim; (4)
Conrado Joaquin, the victims father; and (5) Atty. Isagani Jungco, the IBP
President (Zambales Chapter) who was presented as rebuttal witness.
Among the documentary evidence submitted were the sworn statements of
appellant, Beck, Dimalanta and Joaquin, and the joint affidavit of Sgts. Bolina
and Lappay. The prosecution's version of the facts, as summarized by the
Solicitor General in the Appellees Brief,[8] is as follows:
Sometime in the second week of April, 1987, a strike was held by workers on
the premises of the Casa Blanca, located at Barrio Barretto, Olongapo City.
Dionisio Joaquin, the victim, was one of organizers thereof. He sought the
assistance of friends, among whom was Anthony Beck, a stevedore and
resident of Olongapo City (pp. 28-31, TSN, May 24, 1988).
At about 6:00 P.M. on April 11, 1987, Joaquin and Beck were at Whisky Bar
fronting the Casa Blanca, at Barrio Barretto, Olongapo City. They were
conversing while resting at the veranda of said Whisky Bar, fronting the Casa
Blanca where a picket was being conducted by their co-strikers. Both had
fallen asleep, as they lacked sleep the previous nights, on a chair near each
other with their feet resting on the veranda railings (pp. 39-46, ibid.).
Anthony Beck fell asleep at about 4:00 o'clock in the early morning of April
12, 1987. Shortly thereafter, at about 5:00 to 5:30 in the morning, he was
awakened by gun report. Opening his eyes, he saw Joaquin dead, with a
single bullet wound on the forehead. Blood was oozing from Joaquin's head.
Seeing a man running away from where he and Joaquin were seated,
Anthony Beck then gave chase. The fleeing man turned left on an alley and
then right on another. Beck lost him at the second turn. He saw an old man
who inquired why he was chasing the fleeing man. Beck told the old man of
the shooting incident. Then and there the old man told Beck that the man he
(Beck) was running after was Badong, later identified as the accused
Nicomedes Fabro (pp. 54-62, Ibid).
Police officers from the Olongapo Metrodiscom, led by Sgt. Felipe Bolina,
proceeded to Fabro's residence at about noon that same day. They failed to
apprehend Fabro as he was allegedly then asleep. The accused (Fabro) was
surrendered by his sister to the CIS the following day (pp. 12-14, TSN, July
18, 1989).
At 6:00 o'clock that night, April 13, 1987, Fabro was interrogated by CIS
personnel and grilled for about two (2) hours (pp. 16-19, supra).
At that juncture, CIS investigator Santiago requested Fabro to sign a
document, which turned out to be his extra-judicial confession/admission
(Exh. F). Accused Fabro (claims that he) was not allowed to read the
document, neither were its contents read to him (pp. 24-26). A certain Atty.
Isagani Jungco was however present when he signed the document (p. 28,
supra; pp. 2-18, TSN, March 19, 1990).
While it appears from the transcript that co-accused Francisco Dimalanta
executed an extra-judicial statement (confession) (pp. 24-25, TSN, Feb. 2,
1988), Dimalanta himself was never presented in court as defense witness,
as both accused Dimalanta and Alcala jumped bail during trial.
Version of the Defense
The defense presented its only witness in the person of the appellant. No
documentary evidence was submitted. The counter-statement of facts, as
narrated in the six-page Brief for the Appellants,[9] reads as follows:
The version of the defense as testified to by Nicomedes Fabro was that at
two o'clock in the morning of April 12, 1987, he stopped ferrying passengers
and slept on a sofa at the Whiskey River Club, located on a terrace of said
club. When he laid down and rested at the sofa, there was also another
person who was seated on the sofa and was more or less one arm's length
away from him. The man was then asleep but (Fabro) only knew his face but
not his name. While sleeping, he was awakened by the shout of one of his
companion saying may binaril, may binaril. The shout was very loud and after
shouting the man ran towards Olongapo City. Accused according to him was
standing and looking at the bloodied person who was more or less two arms
length away from him. The bloodied person was at the balcony of the
Whiskey River Club.
Accused was surrendered to the CIS by his sister on April 13, 1987.
Nicomedes Fabro claimed that he was made to sign a document without
allowing him to read the contents. According to accused Fabro, investigator
Santiago told him that if he will not sign the document something will happen
to him. Atty. Isagani Jungco was present when he signed his name, however,
the document was already prepared and ready for signature."
Trial Courts Findings
In its Decision, the trial court leaned towards the version of the
prosecution:[10]
From the evidence presented by the prosecution, both testimonial and
documentary, the Court finds these facts to be indubitable. That in the early
morning of April 12, 1987, between 5:00 and 5:30, the deceased Dionisio
Joaquin who was sleeping side by side with Anthony Beck on the terrace of
the Whiskey Bar, opposite Casa Blanca, Barrio Barretto, Olongapo City, was
shot in the head at close range by accused Nicomedes Fabro. The deceased
was bleeding with blood oozing from the forehead when found by some
Olongapo police and Sgt. Bolina, a PC soldier who arrived at the scene. The
deceased was found on a chair, his feet raised on the veranda with his head
inclined back.
xxx xxx xxx
Anthony Beck who was asleep side by side with the deceased was
awakened by a shot and even heard the kalansing of the bullet, chased the
person whom he saw running away after the shot was fired. He testified that
when he was chasing the man he did not yet know his name but he could
identify him. Beck made the identification when accused Fabro was mixed
with other people getting clearance at 164th PC Company Office. Beck
positively identified the accused when he testified in Court.
xxx xxx xxx
Beck testified that Dionisio Joaquin was an organizer of a labor organization
and that the latter invited the former to support the strikers.
Sgt. Bolina thru his investigation learned the identity of the man who was
running away from the scene of the crime as Nicomedes Fabro. Upon
learning the identity of the suspect, Bolina went to the parents of Fabro
whom he knew personally and requested that Fabro be surrendered to him.
Bolina learned later that the suspect was surrendered to the CIS. After the
CIS investigation, Nicomedes Fabro gave his confession in the presence of
Atty. Isagani Jungco who was called to assist the suspect. In his confession,
Fabro implicated Francisco Dimalanta and Amado Alcala.
From reliable information received by Sgt. Bolina and the other policemen,
they learned the identity of two other suspects, namely: Francisco Dimalanta
and Amado Alcala. From unconfirmed reports these two Dimalanta and
Alcala participated in the killing of Dionisio Joaquin. The confession of Fabro
confirmed that indeed Dimalanta and Alcala were his co-conspirator.
xxx xxx xxx
xxxx (Sgt.) Lappay testified that he was present during the investigation of
Fabro. Fabro in his presence admitted his participation and pointed to
Francisco Dimalanta and Amado Alcala and one Ernesto de Guzman. It was Assignment of Errors
in early morning of April 14, 1987 that de Guzman and Dimalanta were
apprehended along Rizal Extension, they being neighbors. Alcala was Appellant interposes the present appeal, faulting the trial court:
arrested at above street.
I
After analyzing and weighing all the pieces of testimonial and documentary
evidence, the trial court declined to give credence to the uncorroborated For not considering the defense of alibi when there is doubt as to the identity
claim of appellant that he was asleep at the terrace of the Whiskey Club at of the suspect.
the time of the incident. The court a quo also rejected his contention that he
was coerced into signing a confession, since the solitary verbal threat II
allegedly made by the investigator was vague and not backed up by the use
of actual physical force. After considering the presence of the counsel (Atty. For not considering the admissions and confessions as inadmissible as
Jungco) who assisted the appellant (and his co-accused) during the custodial violative of the Constitution.
investigation as well as in the execution of their respective sworn statements,
the lower court admitted in evidence their extrajudicial confessions. III

The confession of Appellant Fabro was summarized by the lower court, thus:
In the confession of Nicomedes Fabro he narrated how Francisco Dimalanta
offered him P10,000.00 to kill a man, how the gun was given him and how
they observed the movements of the victim to the time of the killing. While
Nicomedes Fabro did the actual shooting, accused Alcala and Dimalanta
were present awaiting the outcome of the shooting.
The confession of Dimalanta coincided in all material points with the
confession of Fabro. Dimalanta narrated how he was promised the amount
P10,000 by a certain Bill Hoge and how he was paid of P5,000.00 as initial
payment and the balance to be paid after the killing is accomplished. The
P5,000.00 initial payment was shared by the three accused.
From the foregoing, the trial court established the existence of conspiracy
among the three accused. The trial court further found the testimony of Beck
unbiased, truthful and credible.
Finally, the court below held that the commission of the crime was attended
by the aggravating circumstances of treachery, evident premeditation and
consideration of price or reward.
For not considering the statements and testimonies of prosecution witnesses
as hearsay.
IV
For presuming that conspiracy exists.
The Courts Ruling
The appeal is not meritorious. In view of the incriminatory nature of
appellants confession, the Court will tackle the second assigned error ahead
of the first.
First Issue: Admissibility of Appellants Confession
A confession is defined in jurisprudence as a declaration made voluntarily
and without compulsion or inducement by a person, stating or acknowledging
that he has committed or participated in the commission of a crime.[11] But
before it can be admitted in evidence, several requirements have to be
satisfied.
Article III, Section 12 of the 1987 Constitution, which came into effect on
February 2, 1987, requires that:
(1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of
counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or section 17
hereof shall be inadmissible in evidence against him.
Moreover, Article III, Section 17 of the Constitution guaranteeing the right of
the accused against self-incrimination, provides:
SEC.17. No person shall be compelled to be a witness against himself.
In jurisprudence, no confession can be admitted in evidence unless it is
given:
1. Freely and voluntarily, without compulsion, inducement or trickery;[12]
2. Knowingly based on an effective communication to the individual under
custodial investigation of his constitutional rights;[13] and
3. Intelligently with full appreciation of its importance and comprehension of
its consequences.[14]
Once admitted, the confession must inspire credibility or be one which the
normal experience of mankind can accept as being within the realm of
probability.[15]
A confession meeting all the foregoing requisites constitutes evidence of a
high order since it is supported by the strong presumption that no person of
normal mind will knowingly, freely and deliberately confess that he is the
perpetrator of a crime unless prompted by truth and conscience.[16] When all
these requirements are met and the confession is admitted in evidence, the
burden of proof that it was obtained by undue pressure, threat or intimidation
rests upon the accused.[17]
Admittedly, the case of the prosecution hinges on appellants confession. The
defense maintains that the same is inadmissible for the following reasons: (1)
appellants confession was extracted under threat and intimidation; (2) the
lawyer's (Atty. Jungcos) participation was only as a witness during the
signing of the prepared confession and not during the investigation or
interrogation itself; and (3) appellant was made to sign the confession without
having read it and without the presence of counsel.
As proof thereof, the defense quotes appellants statements during direct
examination:[18]
"Q. And what did (CIS Investigator) Santiago tell you if he told you anything?
A. Santiago told me that if I will not sign it, something will happen to me.
Q. But you will admit before this Court that before you affixed your signature,
the document was shown to you by Santiago, did he not?
A. No more, I was just made to sign.
Q. Do you want to impress the Court that you just affixed your signature
without you being allowed to read the documents or the investigator Santiago
did not even read unto you the contents of the documents?
A. No sir."
Such uncorroborated and anemic allegations are insufficient to render
appellants confession inadmissible. Rather, they appear to be a mere
subterfuge designed to impute constitutional infirmity to the conduct of the
custodial interrogation.
The more credible evidence is the rebuttal testimony of Atty. Jungco showing
adherence to the constitutional requirements. Atty. Jungco testified that after
he apprised appellant of his constitutional rights to be silent and to have
counsel during the investigation, the latter waived them in his (Atty. Jungcos)
presence. Thus:[19]
ATTY. DE DIOS:
Q. Atty. Jungco, I would like to bring your attention to April 13, 1987, do you
remember having been called to assist an accused detained at the CIS
Office, Camp Maquinaya, Olongapo City?
A. Yes, I was then the President of the IBP of Zambales-Olongapo Chapter
and the CIS people approached me if I will help them in the waiver, to be
present when waiver will be signed by the person before the CIS,
Q. Waiver of what?
A. Waiver of the right to counsel and the presence of counsel during the
taking of his investigation.
xxx xxx xxx
Q. To refresh your memory, Atty. Jungco, I am showing you a statement
which has been marked as Exhibit F for the prosecution, please go over this
before I ask my question.
A. (Witness going over the document handed to him) I recognize this
statement.
xxx xxx xxx
Q. Can you explain what is this Pagpapatunay wherein you are a witness to
that?
A. I was present when Nicomedes Fabro during the time that I was there
signed his waiver of the right to have counsel at the time of the taking of his
testimony.
Q. Now, it is the waiver of the accused to counsel, will you please tell the
Court if you advised him of his rights and effect of such waiver?
xxx xxx xxx
A. Before he signed this waiver, I apprised him of his rights under the
Constitution, that is, the right to be silent, the right to counsel and that any
statement that he will make in any investigation may be used for or against
him in any court of law and after that, I asked him if despite his right to have
counsel present during the taking of his testimony, he still waives that right to
counsel and he said Yes and he signed that statement there. As a matter of
fact, in this Pagpapatunay, the last sentence Pumirma ako x x x x sa harapan
ni Atty. Isagani Jungco, IBP President. (Sgd) Nicomedes Fabro.
Q. Atty. Jungco, was that advice given in Tagalog or in English?
A. It was given in Tagalog and in English.
Q. Did he understand your admonition or your reminders concerning his
right?
A. He understood because he said Yes.
xxx xxx xxx
Q. Thank you. Atty. Jungco, at the last page and this is the end of his
confession, there is a signature of Nicomedes Fabro, were you present when
he signed the last page of his testimony?
A. At the time that he signed this, I was there present because I was talking
then with their Chief there which is I think Capt. Flores and before I left, this
statement was completed.
ATTY. DE DIOS:
Q. Thank you. Atty. Jungco, when you signed this first page and when
Nicomedes Fabro signed this waiver, do you remember whether or not there
was already a statement prepared?

xxx xxx xxx
A. At the time that he signed this, the investigation has not yet began
because precisely, I was asked to be present because of the waiver. And
after he signed his waiver and I signed it also in his presence, I was talking
with Capt. Flores and they were taking his testimony at that time.
Then, afterwards, before I left."
This adherence to the Constitution is further confirmed by the confession
itself. It starts off with a Pasubali[20] wherein appellant was informed of his
constitutional rights and a Pagpapatunay which confirmed that he understood
said rights. Both parts also serve as a written proof of appellants waiver in
fulfillment of the requirements of the Constitution.
As pointed out by the Solicitor General, the testimony of Atty. Jungco was
replete with details as to how he informed and warned appellant of the
consequences of the waiver of his right to counsel. Thus, he argues that
there is no room for doubt that appellant was indeed assisted by counsel
when he waived his right to counsel during the time that his statement was
taken, and not only at the time he signed it as claimed by appellant.
The Constitution further requires that the counsel be independent; thus, he
cannot be a special counsel, public or private prosecutor, counsel of the
police, or a municipal attorney whose interest is admittedly adverse to that of
the accused. Atty. Jungco does not fall under any of said enumeration. Nor is
there any evidence that he had any interest adverse to that of the
accused.[21] The indelible fact is that he was president of the Zambales
Chapter of the Integrated Bar of the Philippines, and not a lackey of the
lawmen.
Doubts that Atty. Jungcos assistance to appellant was not independent since
he was engaged by the CIS Investigators are further dispelled by the fact that
he was sent[22] to the CIS Office by Sgt. Bolina who personally knew
appellants parents and was a friend of his brother-in-law.[23] He took the
trouble to ensure that a lawyer was present during the taking of appellants
statement, even though he (Bolina) would not be there. Ineluctably,
appellant, by his uncorroborated, puerile and matter-of-fact claim, failed to
overcome the presumption that Atty. Jungco regularly performed his official
duty as an officer of the court in giving assistance to persons undergoing
custodial interrogation.[24] Upon the other hand, the overwhelming evidence
is that he did perform such duty faithfully.
After the prosecution has shown that the confession was obtained in
accordance with the aforesaid constitutional guarantee, the burden of proving
that undue pressure or duress was used to obtain it rests on the accused.[25]
In Antillon vs. Barcelon,[26] the Court imposed a high degree of proof to
overthrow the presumption of truth in the recitals contained in a public
instrument executed with all the legal formalities.
In People vs. Pia,[27] the Court held that where the accused failed to present
credible evidence of compulsion or duress or violence on their persons, e.g.,
where they failed to complain to the officers who administered the oaths;
where they did not institute any criminal or administrative action against their
alleged intimidators for maltreatment; where there appeared to be no marks
of violence on their bodies; and where they did not have themselves
examined by a reputable physician to buttress their claim, their confession
should be considered voluntary.[28]
Appellant has miserably failed to present any convincing evidence to prove
the use of force or intimidation on his person to secure his confession. The
records show that appellants confession was sworn and subscribed to before
Fiscal Jesus Dorante, to whom he could have and should have voiced his
objection, if any. Quite the contrary, Fiscal Dorante certified that he
personally examined appellant and was convinced that the latter gave his
statement freely and voluntarily and that he understood the contents of his
confession. Appellants failure to voice out his complaints is tantamount to a
manifestation that indeed he waived his right to counsel in the presence of
Atty. Jungco in accordance with the Constitution.[29] His assertion on appeal
that he was intimidated into giving said confession rings hollow and too
late.[30]
This claim is further belied by appellants lack of complaint, or even any
mention thereof, to his sister and relatives who visited him at Camp
Maquinaya where he was detained for one year.[31] This reinforces the trial
courts ruling.
Perhaps the most telling indication that appellants confession was voluntary
is the fact that said confession contained exculpatory claims[32] (Question
Nos. 5, 7, 8 and 9) and facts that only the appellant could have known
(Question Nos. 5,6,7,8, 9, 14, 15, 17, 20 and 29).[33]
Thus, we can only affirm the following findings of the trial court:
"Neither can the Court accept that accused Nicomedes Fabro was only
forced into giving a confession. The Court cannot even for a while believe
that he was only forced to give his statement when the accused himself
stated that he was not even once hurt by any of the CIS investigators. In
(fact), he was even told to rest.
Atty. Alinea:
Q. And immediately after your sister left, your interrogation by the CIS agents
started, that is correct or it is not?
A. No, sir I was asked to clean.
Q. What portion or portions of the CIS headquarters were you ordered to
clean?
A. The ceilings.
Q. And after cleaning the ceiling of the CIS headquarters, what was the next
order to you?
A. They asked me to rest.
(TSN, July 18, 1989, pp. 15-16.)
xxx xxx xxx
Q. And after cleaning the car of Capt. Flores, what was your next chore or
activity?
A. I cooked food for them.
Q. And these activities became routinary and ordinary for how many days?
A. I stayed there for a year and that was the routinary work I did. (TSN, July
18, 1989, p. 23)
The only alleged threat to him was that Santiago told me that if I will not sign
it something will happen to me. (TSN, July 18, 1989, p. 26). Nothing was
mentioned about actual physical force used on accused.[34] x x x
We hold that appellants confession was properly admitted by the trial court
as part of the prosecution evidence.
Second Issue: Defense of Alibi vs. Positive Identification
The defense argues that, although alibi is the weakest defense, easily
fabricated and concocted, nevertheless it gains strength when there is doubt
as to the identity of the suspect. Although appellant admitted that he was
sleeping next to the victim when the latter was shot, he claims that Witness
Beck could not have seen the face of the person running away from the
crime scene since it was still dark at that time. Beck had just awakened, so it
would have taken some time before his eyes could have adjusted. Thus, the
defense speculates that the identification of appellant by Beck was "coached
and suggested" by the investigators who fetched him and prepared his
second statement.
These arguments do not inspire belief. Beck claimed that he saw appellant
running away from the scene of the shooting. In answer to the trial judges
clarificatory questions during the cross-examination, the witness replied that,
when he opened his eyes after hearing the gun report, he saw a person who
immediately ran away.[35] Beck testified that he saw appellants face while
chasing the latter, although he did not catch up with appellant.[36] Therefore,
from the time he was awakened until he lost the appellant during the chase,
Beck saw appellants face. Subsequently, in open court, he pointed to
appellant as the man he had chased. This fact was not lost on the defense;
thus, the defense claimed that, considering the time of the incident (5:00 to
5:30 a.m. in mid-April), there would have been insufficient daylight to permit
clear and positive identification of the culprit by the witness.
The defense claims that this weak identification by Beck strengthened
appellants alibi, which is actually and more accurately a denial in view of
appellants admission that he was at the scene of the crime. However, giving
it a different name does not increase its probative value. A denial, like other
defenses, remains subject to the strength of the prosecution evidence which
is independently assessed. When the evidence for the prosecution
convincingly connects the crime and the culprit, the probative value of the
denial is negligible. Otherwise, credibility of testimonies and their evidentiary
weight come into play. The well-settled rule is that the assessment by the
trial court of credibility and weight of evidence is accorded the highest
respect and will not be disturbed on appeal in the absence of any clear
showing that the trial court overlooked, misunderstood or misapplied some
facts or circumstances of substance which would have affected the result of
the case.
Becks testimony that appellant was the man he chased contravenes the
contention that appellant was sleeping one arms length away from the victim;
that appellant was only awakened by shouts that somebody was shot; and
that he stayed at the crime scene for a time during the investigation.
Moreover, the denial is directly contravened by his confession that he shot
the victim.
In light of this confession, the denial is actually a belated retraction of said
confession. The rule in this jurisdiction is that repudiation and recantation of
confessions which have been obtained in accordance with the Constitution
are looked upon with disfavor as unreliable.[37] They have negligible
probative weight.
Thus, we agree with the trial court that appellants denial is totally
unconvincing. Appellants uncorroborated testimony is: (1) that he just
happened to be asleep at the terrace of the Whiskey Bar; (2) that appellant
who resided nearby, for no explainable reason, elected to sleep on the same
veranda during the very same night that the victim was shot; (3) that he was
awakened only by the shouting of people and not by the sound of the
gunshot; (4) and finally, that he stayed at the scene of the crime for about 30
minutes without anybody noticing that he was there at all.[38]
Third Issue: Alleged Hearsay Evidence
The defense claims that the identification of appellant was hearsay because
appellants name was allegedly given to Witness Beck by a certain Eduardo
Ragonton who, however, was not presented as a witness. We cannot sustain
this. The fact remains that Witness Beck was able to identify appellant in
open court because he had seen the latters face that fateful night.[39] While
Beck may not have known the name of the appellant, he was certain about
the latters identity. Indeed, appellants name which was supplied by another
person to Witness Beck may be considered hearsay; but appellants identity
which the said witness personally knew is not.
Fourth Issue: Existence of Conspiracy
The defense raises this issue without elaborating further or offering any
evidence in support thereof.
We are not persuaded. In fact, the conspiracy between appellant and his co-
accused appears indubitable. The decision of the trial court states that:
From reliable information received by Sgt. Bolina and other policemen, they
learned the identity of two other suspects, namely: Francisco Dimalanta and
Amado Alcala. From unconfirmed reports these two (,) Dimalanta and
Alcala(,) participated in the killing of Dionisio Joaquin. The confession of
Fabro confirmed that indeed Dimalanta and Alcala were his co-conspirators.
xxx xxx xxx
In the confession of Nicomedes Fabro he narrated how Francisco Dimalanta
offered him P10,000.00 to kill a man, how the gun was given him and how
they observed the movements of the victim to the time of the killing. While
Nicomedes Fabro did the actual shooting, accused Alcala and Dimalanta
were present awaiting the outcome of the shooting.[40]
The said decision further elaborates:
The confession of Dimalanta coincided in all material points with the
confession of Fabro. Dimalanta narrated how he was promised the amount of
P10,000.00 by a certain Bill Hoge and how he was paid P5,000.00 initial
payment was shared by the three accused."[41]
The acts of the accused show that they were animated by the same purpose
and were united in their execution. When, by their acts, two or more persons
proceed toward the accomplishment of the same unlawful object -- each
doing a part so that their acts though apparently independent were in fact
connected, indicating a closeness of formal association and a concurrence of
sentiment -- conspiracy may be inferred.[42]
From appellants confession, it is clear that Dimalanta offered him money to
kill Joaquin; that, together with Alcala, they observed the movements of the
victim; that prior to the shooting, they had attempted to kill the victim at the D
& E Fast Food Restaurant; and that at the time of the shooting, on April 12,
1987, Dimalanta and Alcala were at or near the scene of the crime, acting as
lookouts and awaiting the outcome of the killing.[43]
Aggravating Circumstances
The trial court held that the following circumstances attended the killing:
1. The crime was committed in consideration of a price. Dimalanta was
promised P10,000.00 by Hoge to look for a killer. P5,000.00 was actually
paid. In turn Dimalanta secured the services of the triggerman, Fabro in
exchange for money. Alcala was paid for his participation in the plan.
2. With evident premeditation, the accused directly aiming the gun at a (sic)
close range; and
3. Treachery, by shooting the helpless victim while asleep to insure its
execution without risk to the killer.[44]
That the crime was committed in consideration of a price has been
satisfactorily shown by appellants confession. From the confession also,
evident premeditation is manifest from the fact that on April 10, 1987,
appellant was approached and hired by Dimalanta to kill the victim; that the
appellant clung to his determination to kill the victim even after an
unsuccessful first attempt on April 11, 1987 at the D & E Fast Food
Restaurant; and that a sufficient lapse of time had passed giving the
appellant a chance to reflect upon the consequences of his act.
In U.S. vs. Manalinde,[45] the Court held that the aggravating circumstances
of evident premeditation and offer of money, reward or promise are not
incompatible and may be appreciated together, one being independent of the
other.
Treachery is shown by the fact that appellant, after several days of observing
the movements of the victim, shot the latter while he was asleep.[46] The
means of execution (1) gave the person attacked no opportunity to defend
himself or to retaliate; and (2) showed that such method was deliberately or
consciously adopted.[47]
Although all three circumstances (price, premeditation and treachery) were
proven, only one will be appreciated to qualify the killing to murder and the
two others can be used only as generic aggravating circumstances.
However, the mitigating circumstance of voluntary surrender should also be
appreciated in appellants favor, as he surrendered to the CIS in Camp
Maquinaya on April 13, 1987, thus, offsetting one generic aggravating
circumstance. Accordingly, the proper penalty is reclusin perpetua.
WHEREFORE, the assailed Decision is hereby AFFIRMED with slight
modification, i.e., the indemnity is INCREASED to P50,000.00 in line with
current jurisprudence.[48]
SO ORDERED.
Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.
G.R. No. L-18792 February 28, 1964
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GUILLERMO BELLO, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Ferdinand E. Marcos for defendant-appellant.
REYES, J.B.L., J.:
Appeal from a judgment of the Court of First Instance of Quezon in its
Criminal Case No. 592-G, for murder.
The information filed against the accused alleged four (4) aggravating
circumstances, namely: treachery, evident premeditation, nighttime, and
superior strength. The trial court made a finding of "treachery, evident
premeditation and in cold blood and without any provocation"; however, the
dispositive portion of the appealed decision states as follows:
... the Court finds the accused Guillermo Bello guilty beyond reasonable
doubt of the crime of murder defined an punished by Article 248 of the
Revised Penal Code with the aggravating circumstances of (1) nighttime, (2)
abuse of confidence and obvious ungratefulness, (3) superior strength offset
only by his surrender to the authorities and hereby sentence him to DIE by
electrocution in the manner provided by law ordering his heirs, after his
death, to indemnify the heirs o the deceased Alicia Cervantes in the sum of
P3,000.00, wit costs.
The record bears out, the Office of the Solicitor General does not challenge,
and the counsel de oficio agree with, and adopts, the following findings of
fact of the trial court:
From the evidence adduced at the hearing of the case, it has been
established to the satisfaction of the Court (1) that on September 17, 1954,
the accused Guillermo Bello, a widower who at that time was about 54 years
of age, took a young peasant lady named Alicia Cervantes, about 24 years
old his common-law wife; (2) that from that day they lived together apparently
in blissful harmony as man and wife without the benefit of marriage bearing,
however, no child, ...; (3) that on May 15, 1958, the accused who had no
means of substantial livelihood except that of making "kaingin" and who
apparently was then in financial straits induced Alicia Cervantes to accept an
employment as entertainer in a bar and restaurant establishment known as
Maring's Place situated the corner of Aguinaldo and Bonifacio Streets,
Gumaca, Quezon (4) that Alicia Cervantes entered the service of Maring's
Place on that day as a public hostess; (5) that the accused being infatuated
with his young bride used to watch her movements in Maring's Place
everyday; (6) that on May 16 he saw Alicia enter the Gumaca theater in
Gumaca with a man whom the accused found later was caressing his
common-law wife inside the movie house; (7) that being in love with her he
took her out from the movie and warned her to be more discreet in her
personal conduct in Gumaca; (8) that Alicia Cervantes continued to serve at
Maring's Place as a public hostess; (9) that on May 20, 1958, at 3:00 p.m.
the accused went to Maring's Place to ask for some money from Alicia; (10)
that Maring, the owner of the place, and Alicia refused to give money, Maring
telling him to forget Alicia completely because he was already an old man, an
invalid besides and should stop bothering Alicia; (11) that having failed to
obtain financial assistance from his paramour, accused left the place
somewhat despondent and went home passing Bonifacio Street; (12) that on
his way home he met the brothers Justo Marasigan and Luis Marasigan who
greeted the accused, Luis saying to his brother Justo the following: "So this
is the man whose wife is being used by Maring for white slave trade"; (13)
that these remarks of Luis Marasigan naturally brought grief to the accused,
to drown which he sought Paty's place in Gumaca where he drank 5 glasses
of tuba; (14) that from Paty's place he went to Realistic Studio which is in
front of Maring's Place and from there watched the movements of Alicia; (15)
that at about 9:00 o'clock that night he entered Maring's Place and without
much ado held Alicia from behind with his left hand in the manner of a boa
strangulating its prey and with his right hand stabbed Alicia several times
with a balisong; (16) that seeing Alicia fallen on the ground and believing her
to be mortally wounded, he fled and went to the municipal building and there
surrendered himself to the police of Gumaca.
Both the prosecution and the defense also agree that the crime committed is
not murder but only homicide, but they disagree in the qualifying or
aggravating and mitigating circumstances. The prosecution holds that the
crime is homicide, aggravated by abuse of superior strength, but offset by
voluntary surrender. On the other hand, the defense maintains that the
accused is entitled to the additional mitigating circumstance of passion and
obfuscation. The trial court held a different conclusion, as earlier stated.
While it cannot be denied that Alicia was stabbed at the back, the wound was
but a part and continuation of the aggression. The four (4) stab wounds (the
3 others were in the breast, hypogastric region, and in the left wrist as shown
in the certificate of the Municipal Health Officer) were inflicted
indiscriminately, without regard as to which portion of her body was the
subject of attack. The trial court itself found that the stab in the back was
inflicted as Alicia was running away. For this reason, treachery cannot be
imputed (People v. Cañete, 44 Phil. 478).
Evident premeditation was, likewise, not established. The accused had been
carrying a balisong with him for a long time as a precaution against
drunkards, and without any present plan or intent to use it against his
common-law wife. That he watched her movements daily manifest his
jealous character, but there is no evidence that from this jealousy sprouted a
plan to snuff out her life.1äwphï1.ñët
The evidence does not show, either, any superior strength on the part of the
accused, and, not possessing it, he could not take advantage of it. True that
he was armed with a balisong, but he was old and baldado (invalid), while
Alicia was in the prime of her youth, and not infirm. The facts are not
sufficient to draw a comparison of their relative strength. Possession of a
balisong gives an aggressor a formidable advantage over the unarmed
victim, but the physique of the aggressor ought also to be considered. At any
rate, taking into account the emotional excitement of the accused, it is not
clearly shown that there was "intencion deliberada de prevalerse de la
superioridad o aprovecharse intencionadamente de la misma" (Sent. TS. 5
Oct. 1906), i.e., deliberate intent to take advantage of superior strength.
The crime was committed at nighttime, but the accused did not seek or take
advantage of it the better to accomplish his purpose. In fact, Maring's Place
was bright and well-lighted; hence, the circumstance did not aggravate the
crime. (U.S. vs. Ramos, et al., 2 Phil. 434; U.S. vs. Bonete, 40 Phil. 958.)
We can not understand how the trial court came to couple the crime with the
aggravating circumstance of abuse of confidence and obvious
ungratefulness. There is nothing to show that the assailant and his common-
law wife reposed in one another any special confidence that could be
abused, or any gratitude owed by one to the other that ought to be
respected, and which would bear any relation, or connection, with the crime
committed. None is inferable from the fact that the accused was much older
than his victim, or that he was penniless while she was able to earn a living
and occasionally gave him money, since both lived together as husband and
wife. Neither is it shown that the accused took advantage of any such special
confidence in order to carry out the crime.
Since the aggravating circumstances of treachery, evident premeditation,
and abuse of superior strength, which could have qualified the crime as
murder, were not present, and since the generic aggravating circumstances
of nighttime and abuse of confidence and obvious ungratefulness have not
been established, the accused can only be liable for homicide.
Both defense and prosecution agree that the accused-appellant is entitled to
the benefit of the mitigating circumstances of voluntary surrender to the
authorities. The remaining area of conflict is reduced to whether the accused
may lay claim to a second mitigating circumstance, that of having acted on a
provocation sufficiently strong to cause passion and obfuscation. The
defense submits that accused is so entitled, because the deceased's flat
rejection of petitioner's entreaties for her to quit her calling as a hostess and
return to their former relation, aggravated by her sneering statement that the
accused was penniless and invalid (baldado), provoked the appellant, as he
testified, into losing his head and stabbing the deceased. The state disputes
the claim primarily on the strength of the rule that passion and obfuscation
can not be considered when "arising from vicious, unworthy, and immoral
passions" (U.S. vs. Hicks, 14 Phil. 217).
We are inclined to agree with the defense, having due regard to the
circumstances disclosed by the record. It will be recalled that the lower court
found that the accused had previously reproved the deceased for allowing
herself to be caressed by a stranger. Her loose conduct was forcibly driven
home to the accused by Marasigan's remark on the very day of the crime
that the accused was the husband "whose wife was being used by Maring for
purposes of prostitution," a remark that so deeply wounded the appellant's
feelings that he was driven to consume a large amount of wine (tuba) before
visiting Alicia (the deceased) to plead with her to leave her work. Alicia's
insulting refusal to renew her liaison with the accused, therefore, was not
motivated by any desire to lead a chaste life henceforth, but showed her
determination to pursue a lucrative profession that permitted her to distribute
her favors indiscriminately. We can not see how the accused's insistence
that she live with him again, and his rage at her rejection of the proposal, can
be properly qualified as arising from immoral and unworthy passions. Even
without benefit of wedlock, a monogamous liaison appears morally of a
higher level than gainful promiscuity.
WHEREFORE, the appealed decision should be, and hereby is, modified.
This Court finds the accused-appellant, Guillermo Bello, guilty beyond
reasonable doubt of the crime of homicide, attended by two (2) mitigating
circumstances: (a) passion and obfuscation, and (b) voluntary surrender,
and, therefore, imposes upon him an indeterminate sentence ranging from a
minimum of six (6) years and one (1) day of prision mayor to a maximum of
ten (10) years of prision mayor; orders him also to personally indemnify the
heirs of Alicia Cervantes in the amount of P6,000.00, and to pay the costs.
So ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Barrera,
Paredes, Dizon, Regala and Makalintal, JJ., concur.
People vs. Trinidad, 162 SCRA 714 , G.R. No. L-38930 June 28, 1988
G.R. No. L-38930 June 28, 1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ISABELO TRINIDAD, alias "Pedro Diplat," and ROMEO CONDAYA, alias
"Romy," accused-appellants.
The Solicitor General for plaintiff-appellee.
Domingo V. Pascua for accused-appellant Isabelo Trinidad.
Emiliano S. Micu for accused-appellant Romeo Condaya.
CORTES, J.:
Appellants were accused of the crime of murder on the basis of the following
information:
That on or about the 16th day of April, 1973, at night, in Barrio San Vicente,
municipality of Umingan, province of Pangasinan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, Isabelo
Trinidad, alias "Pedro Diplat and Romeo Condaya, alias "Romy," and
Bonifacio Palding, alias "Pacio," and Wilfredo Mitrado, alias "Edo," who were
discharged in the municipal court for insufficiency of evidence, conspiring
together and mutually helping one another, armed with a shotgun and with
intent to kill, with evident premeditation and treachery, did, then and there,
wilfully, unlawfully and feloniously attack, assault and shoot Cristita Balancio
Vda. de Angel inflicting upon her fatal gunshot wounds which caused her
death as a consequence.
Contrary to Art. 248 of the Revised Penal Code. [Rollo, p. 4].
Upon arraignment, both accused-appellants, with the assistance of counsel,
pleaded "Not Guilty."
In a decision dated May 27, 1974, the Court of First Instance rendered
judgment convicting accused-appellants of murder and sentencing them to
suffer the penalty of reclusion perpetua, to jointly and severally indemnify the
heirs of the deceased Cristita Balancio Vda. de Angel in the amount of
P12,000.00 and to pay the costs. The shotgun and the cartridges used in the
commission of the crime were ordered confiscated and forfeited in favor of
the government.
Not agreeing with the decision of the trial court accused-appellants appealed
to this Court.
In his brief, accused-appellant Trinidad assigned the following errors:
I. THAT THE LOWER COURT ERRED SERIOUSLY WHEN IT REFUSED
TO CONSIDER THE EVIDENCE FOR THE DEFENSE
II. THAT THE LOWER COURT ERRED GRAVELY AND SERIOUSLY
WHEN IT CONCLUDED WITHOUT GROUNDS THAT:
1. It is undeniable that the initial holder of the gun was Isabelo Trinidad.
2. Isabelo Trinidad made sufficient steps in trying to escape suspicion by
giving the gun for safekeeping to Romeo Condaya.
3. It is inconceivable for the police authorities to exactly know where the gun
and the cartridges were hidden if not for the information furnished them by
Romeo Condaya.
4. Isabelo Trinidad's presence at the scene of the crime was established by
even the evidence in his behalf [as) his house is a few meters away from the
victim's house.
5. Such startling occurrence could have roused Isabelo Trinidad from his
sleep. In fine, when Isabelo Trinidad, after the burst of gunfire returned to the
victim's house it was only to shield himself from responsibility for the crime
which he concocted.
6. that the evidence clearly establish that Isabelo Trinidad conveniently
evaded direct confrontation with the police authorities at the initial stage of
the police investigation.
III. THAT THE LOWER COURT ERRED SO GRAVELY WHEN IT
CONVICTED THE ACCUSED (YOUR APPELLANT) OF THE CRIME
CHARGED CONTRARY TO LAW AND THE EVIDENCE.
On his part, accused-appellant Condaya assigned the following errors:
I
THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE
PRESENTED BY THE DEFENSE TO PROVE THE IRREGULARITY
RESORTED TO BY THE POLICE AUTHORITIES TO EXACT ADMISSION
BY MEANS OF VIOLENCE, INTIMIDATION AND DECEIT FROM THE
ACCUSED WAS IRRELEVANT DESPITE THAT ITS MATERIALITY AND
RELEVANCE TO THE CASE IS VERY CLEAR.
II
THE LOWER COURT ERRED IN HOLDING THAT THE INITIAL
INVESTIGATION REVEALED THAT ISABELO TRINIDAD, ROMEO
CONDAYA, BONIFACIO PALDING AND WILFREDO MITRADO
IMMEDIATELY AFTER THE, BURST OF GUNFIRE WAS HEARD, WERE
SEEN A FEW METERS FROM THE HOUSE OF THE VICTIM CRISTITA
BALANCIO VDA. DE ANGEL HURRIEDLY WALKING TOWARDS THE
NORTH AND THAT ROMEO CONDAYA WAS HOLDING A GUN, DESPITE
THE CLEARLY IMPROBABLE AND INCONSISTENT TESTIMONIES OF
THE WITNESSES WHO TESTIFIED ON THIS (SIC) POINTS.
III
THE LOWER COURT ERRED IN HOLDING THAT ROMEO CONDAYA LED
THE AUTHORITIES TO THE COLIBANGBANG" TREE AND THE BAMBOO
GROVES WHERE THE SHOTGUN (EXH. C) AND THE CARTRIDGES
(EXHS. D, D-1, D-2 AND D-3) WERE ALLEGEDLY RESPECTIVELY
RETRIEVED DESPITE THE UNRELIABLE AND THE INADMISSIBILITY OF
THE EVIDENCE UPON WHICH IT WAS BASED.
IV
THE LOWER COURT ERRED IN CONCLUDING THAT ROMEO CONDAYA
WAS THE GUN WIELDER AND THAT HE DID SO UPON THE ACTIVE
INDUCEMENT OF HIS CO-ACCUSED ISABELO TRINIDAD, DESPITE THE
TOTAL LACK OF EVIDENCE TO SUPPORT IT.
V
AND, FINALLY, THE LOWER COURT ERRED IN CONCLUDING THAT
THE CRIME CHARGED IN THE INFORMATION WAS PROVED AND THAT
BOTH THE ACCUSED ARE GUILTY THEREOF DESPITE THE TOTAL
LACK OF SUFFICIENT EVIDENCE TO PROVE THEIR GUILT BEYOND
REASONABLE DOUBT.
Ultimately, however, as pointed out by accused-appellant Condaya, the issue
boils down to whether or not the prosecution has proven beyond reasonable
doubt that accused-appellants Trinidad and Condaya were the persons
responsible for the death of the victim.
To support its judgment of conviction, the trial court relied on the following
findings:
The evidence for the prosecution tends to establish that in the evening of
April 16, 1973, one Cristita Balancio Vda. de Angel was asleep by the
balcony of her house situated at Barrio San Vicente, Umingan, Pangasinan.
With her at that time were her son, Juan Angel, her daughter-in- law and two
(2) grandchildren. Suddenly, there was a burst of gunfire, rousing Juan Angel
and his wife from their sleep. Juan Angel then peeped out from the window to
find out what happened as his carabao was tied just below the said window.
As Juan Angel peeped, he saw Isabelo Trinidad, Romeo Condaya, Wilfredo
Mitrado and Bonifacio Palding, about five (5) to six (6) meters away hurriedly
walking towards the North.
Shortly, as Juan Angel's wife shouted. Romeo Condaya who was then
holding a gun, Isabelo Trinidad, Bonifacio Palding, and Wilfredo Mitrado ran
farther towards the North.
It turned out that Cristita Balancio Vda. de Angel was hit by her neck which
caused her death. (Exhibits "A" and "A-1"). So, Juan Angel proceeded to call
for help. He asked somebody to fetch Ignacio Dopale, the Barrio Captain of
San Vicente, Umingan, Pangasinan, who immediately responded to Juan
Angel's call for help. Initial inquiries from Juan Angel, revealed the
information that Immediately after the burst of gunfire, Romeo Condaya,
Wilfredo Mitrado, Isabelo Trinidad and Bonifacio Palding, were seen hurriedly
walking towards the North. So that, Barrio Captain Ignacio Dopale proceeded
to the Umingan Municipal Building in Order to report the matter.
Corporal Dominador Barwel of the Umingan Police Force to whom the case
was referred first fetched Sergeant Casio of the Philippine Constabulary at
Umingan, Pangasinan. Then, they proceeded to the scene of the incident in
order to investigate.
Arriving at the premises, they saw Cristita Balancio Vda. de Angel, already
dead as a result of gunshot wounds suffered at the back of her neck. This
investigation again revealed the information that Isabelo Trinidad, Romeo
Condaya, Bonifacio Palding, and Wilfredo Mitrado, were seen within the
vicinity immediately after the gunfire. As Isabelo Trinidad was then on the
premises, he was apprehended and brought to the Municipal Building of
Umingan, Pangasinan. On the way, Isabelo Trinidad revealed that he had
caused the death of Cristita Balancio Vda. de Angel, as in fact he offered to
pay Romeo Condaya the amount of Five Hundred Pesos (P500.00) to do the
job. However, the intended victim was Juan Angel, because of Isabelo
Trinidad's carabao.
Accordingly, Sgt. Casio and Cpl. Dominador Barwel on April 17, 1973 took
steps to apprehend Romeo Condaya, Wilfredo Mitrado and Bonifacio
Palding, at Sta. Rosa, Umingan, Pangasinan. Wilfredo Mitrado was
apprehended on April 18,1973 while Romeo Condaya was apprehended
sometime on April 20, 1973 at Sto. Tomas, Pangasinan, after being turned
over by the Sto. Tomas police authorities. On the way to Umingan,
Pangasinan, Romeo Condaya was verbally interrogated inside the jeep.
Here, Condaya was asked if he had anything to do with the killing of Cristita
Balancio Vda. de Angel. Readily, Romeo Condaya admitted the shooting as
Isabelo Trinidad promised to pay him (Condaya) the amount of Five Hundred
Pesos (P500.00). However, this amount remained unpaid. On the same
occasion, Romeo Condaya informed Sgt. Casio and Cpl. Barwel that the gun
used in the killing was hidden somewhere atop a "Colibangbang" tree at Sta.
Rosa, Umingan, Pangasinan.
At Sta. Rosa, Umingan, Pangasinan, and upon Condaya's instructions, the
12 gauge locally made buck-shot was recovered. (Exhibit "C"). Thereafter,
Romeo Condaya pointed to the bamboo grove where he hid the cartridges.
(Exhibits "D", "D-1', "D-2" and "D-3").
After their apprehension, Romeo Condaya, Isabelo Trinidad, Bonifacio
Palding, and Wilfredo Mitrado were made to execute sworn statements
which, however, they refused to affirm before the Municipal Judge of
Umingan, Pangasinan. [CFI Decision, pp. 2-4; Rollo, pp. 21-23].
In their testimonies, accused-appellants Trinidad and Condaya denied their
participation in the crime and asserted that after their apprehension they
were tortured and maltreated until they signed documents which they later
found out to be their extrajudicial confessions. Hence, their refusal to affirm
their written confessions before the municipal judge.
To prove his innocence, Trinidad emphasized the undisputed facts that he
was even among those who went to Umingan to fetch Sgt. Casio and Cpl.
Barwel and that he even remained at the scene of the crime while, they were
conducting their investigation and provided refreshments for the
investigators.
The trial court dismissed accused-appellants defense with the following
observation:
Before anything else, this Court notes with muffled amusement the manner
at which the accused presented their side of the case. For aware as they
were that the alleged statements taken from them by the authorities of
Umingan, Pangasinan when offered by the prosecution was denied
admission, they persisted at presenting evidence along this line. There really
was no need for the accused to do what they did. As far as this Court is
concerned, the supposed irregularity at securing these admissions was
irrelevant. For so it is that these statements were not even subscribed and
sworn to before any competent authority. So that, when the accused
persistently harped at this alleged violence upon their persons, this Court
was furnished a sufficient basis at attributing a semblance of meaning to
these statements. But conformably with our settled constitutional demands of
due process, this Court considers these averments of violence extraneous to
this case, although the Municipal Health Officer, Dr. Eddie Soriano's medical
certificates had shown a contrary finding. (Exhibits "H", "H-1", "H-2", "I", "I-1",
"I-2" and "I- 3"). [Rollo, pp. 31-32].
At the outset, it must be stated that the trial court correctly denied the
admissibility as evidence of the written extrajudicial confessions of the
accused-appellants. Such denial, however, should not have been for the
reason given, namely, that they were not subscribed and sworn to before the
proper authorities, but, rather, because the requirements of the Constitution
were disregarded.
The 1973 Constitution, then in force and effect when the confessions were
taken, provided in words that left no room for doubt:
Sec. 20. No person shall be compelled to be a witness against himself. Any
person under investigation for the commission of an offense shall have the
right to remain silent and to counsel, and to be informed of such right. No
force, violence, threat, intimidation, or any other means which vitiates the
free will shall be used against him. Any confession obtained in violation of
this section shall be inadmissible in evidence. [Article IV].
The rule is that when an accused testifies that he signed his confession
because he was maltreated, the prosecution must present evidence to rebut
this claim, otherwise the confession will be considered illegally procured
[People v. Inguito, L-53497, October 18, 1982, 117 SCRA 641.] The
presumption of regularity of performance of official duty does not apply to
incustody confessions. The prosecution must prove compliance with the
constitutional requirements [People v. Tolentino, G.R. No. L-50103,
November 24, 1986, 145 SCRA 597.]In the instant case, accused-appellants'
allegations of torture and maltreatment were refuted by Dr. Soriano's
testimony and medical certificate.
However, since there is no proof that when they made their confessions they
were informed of their right to remain silent and to counsel and that they
knowingly and intelligently waived these rights, such confessions are
inadmissible in evidence [People v. Duero, G.R. No. L-52016, May 13, 1981,
104 SCRA 379.] Likewise, the absence of counsel at the time of custodial
investigation when the extrajudicial confession was taken renders it
inadmissible [People v. Burgos, G.R. No. L-68955, September 4, 1986, 144
SCRA 1.] It is not enough that the suspect is asked if he needs a lawyer, he
must be informed that if he is an indigent a lawyer will be appointed to
represent him during custodial interrogation [People v. Tolentino, supra].
It is not only the oral confessions made to the apprehending officers, Sgt.
Casio and Cpl. Barwel, that are tainted but also the written confessions made
and signed a few days after their arrest. Thus, the testimonies of the police
officers on the matters allegedly confessed to them by accused-appellants
and the written extrajudicial confessions are inadmissible in evidence.
2. As the extrajudicial confessions are inadmissible, the Court is tasked with
determining whether there remains sufficient evidence to sustain a finding of
guilt beyond reasonable doubt.
It must be emphasized that no direct evidence was adduced to prove
accused-appellants' commission of the crime charged.
To sustain a finding of guilt beyond reasonable doubt, the trial court wove
together several pieces of circumstantial evidence.
The Rules of Court provides that circumstantial evidence is sufficient for a
conviction if:
(1) there is more than one circumstance;
(2) the facts from which the inferences are derived are proven; and
(3) the combination of all the circumstances is such as to produce a
conviction beyond a reasonable doubt. [Sec. 5, Rule 133].
Although no general rule has been formulated as to the quantity of
circumstantial evidence sufficient for a conviction, the established
requirement is that the circumstances proved must be consistent with each
other, consistent with the hypothesis that the accused is guilty, and at the
same time inconsistent with any other hypothesis except that of guilty
[People v. Ludday, 61 Phil. 216; People v. Contante, G.R. No. L-14639,
December 28,1964,12 SCRA 653.]
Thus, using the requirements of the Rules of Court and established
jurisprudence as yardsticks, this Court is called upon, in this appeal, to
ultimately determine whether the circumstantial evidence adduced during the
trial are sufficient for a conviction.
The Solicitor General, in his brief [pp. 13-15], enumerated several
circumstances in support of a finding that accused-appellants were guilty
beyond reasonable doubt of the murder of Cristita Balancio Vda. de Angel,
which may be summarize as follows:
1. Before April 16, 1973, accused-appellant, Isabelo Trinidad, bore a grudge
against Juan Angel. Trinidad suspected Juan Angel of having burned the
rope of his (Trinidad's) carabao.
2. Trinidad had warned Juan Angel on April 15, 1973, that he (Trinidad) could
have Juan Angel killed at anytime, even inside the latter's house.
3. In the evening of April 16, 1973, Bonifacio Palding, saw Trinidad and
Condaya (in the course of a drinking session with Palding, and Wilfredo
Mitrado) converse secretly some six (6) meters away from Palding and
Mitrado. After this conversation, Trinidad gave Condaya a homemade
shotgun and then Trinidad and Condaya, followed by Palding, and Mitrado,
proceeded to the house of Juan Angel.
4. While Palding, was some four (4) meters behind Trinidad and Condaya he
(Palding) heard a gunshot and saw a flash of light near the door of Juan
Angel's house.
5. A few seconds later, Palding, saw Trinidad and Condaya running away
from the house. Palding and Mitrado also ran away in the direction taken by
Trinidad and Condaya.
6. Juan Angel saw Trinidad, Condaya, Palding, and Mitrado running away
from the house as he peeped through a window after he heard the gunshot.
7. When Palding, and Mitrado caught up with Trinidad and Condaya in a
certain field, Palding heard Trinidad instruct Condaya to take the shotgun to
Sta. Rosa, Umingan, Pangasinan and hide it.
8. After the apprehension of Condaya on April 20 or 21, 1973, the home-
made shotgun was recovered on top of a "colibangbang" tree behind the
house of Condaya's parents, together with three (3) live cartridges hidden in
a bamboo grove nearby.

To this enumeration may be added three (3) more circumstances: (1) that the
victim was found dead near the door inside her son Juan Angel's house; (2)
that the victim died of hemorrhage caused by gunshot wounds; and (3) that
two pellets were recovered from her body.
All of these circumstances, eleven (11) in all, have been proven by direct
evidence. Together, these circumstances lead to the conclusion that
accused-appellants Trinidad and Condaya were guilty beyond reasonable
doubt for the shooting of Cristita Balancio Vda. de Angel.
Even if the eighth circumstance cited by the Solicitor General — that the
shotgun and the ammunition were recovered in the vicinity of the house of
Condaya's parents — is disregarded on the ground that the recovery was the
fruit of the tainted confession, the result would be the same because of the
overwhelming circumstantial evidence.
Two (2) of the circumstances also manifest a community of purpose
indicative of a conspiracy between Trinidad and Condaya, which would make
both of them equally guilty of the crime [People v. Garcia, G.R. Nos. L-
26105, February 18, 1986, 141 SCRA 336], although only one of them may
have pulled the trigger and actually fired the fatal shot. Where a conspiracy
has been proven, a showing as to who inflicted the fatal wound is not
required. [People v. Tala, G.R. Nos. L-69153-54, January 30, 1986,141
SCRA 240].
The rule is that conspiracy must be shown to exist by direct or circumstantial
evidence, as clearly and convincingly as the commission of the crime itself
[People v. Vicente, G.R. No. L-26241, May 21, 1969, 28 SCRA 247]. In the
instant case, the third circumstance cited by the Solicitor General (that
Trinidad pulled Condaya away from Palding and Mitrado to converse secretly
and then gave him the shotgun before they all went to Juan Angel's house),
coupled with the seventh (that Trinidad told Condaya to hide the shotgun as
they were running away from Juan Angel's house), sufficiently proves the
conspiracy between Trinidad and Condaya. The conduct of accused-
appellants before, during and after the commission of the crime are
circumstances showing the presence of conspiracy [People v. Cabiltes, G.R.
No. L-18010, September 25, 1968, 25 SCRA 112].
The crime committed was murder with the qualifying circumstance of
treachery, as characterized by the fact that the victim was shot at close range
while she was asleep, thus ensuring the commission of the crime without risk
to the assailants [People v. Dequina, 60 Phil. 279 (1934)]. That Juan Angel,
and not his mother, was apparently the intended victim is not incompatible
with the existence of treachery. Treachery may be taken into account even if
the victim of the attack was not the person whom the accused intended to
kill. However, evident premeditation may not be considered as a qualifying
circumstance as it cannot be said that the assailants premeditated on the
killing of the actual victim [People v. Mabug-at, 51 Phil. 967 (1926); People v.
Guillen, 85 Phil. 307 (1950)]. Thus, evident premeditation, although alleged
in the information, may not be considered as a qualifying circumstance.
With the abolition of the death penalty in the 1987 Constitution, murder is
now penalized by reclusion temporal in its maximum period to reclusion
perpetua. Absent any modifying circumstances, the penalty is imposable in
its medium period, or from eighteen (18) years, eight (8) months and one (1)
day to twenty (20) years. Applying the Indeterminate Sentence Law, the
range of the penalty is lowered by one degree to prision mayor in its
maximum period to reclusion temporal in its medium period, or from ten (10)
years and one (1) day to seventeen (17) years and four (4) months.
WHEREFORE, the decision of the court a quo is MODIFIED and the Court,
in the exercise of its discretion, sentences accused-appellants to suffer the
indeterminate penalty of from fourteen (14) years and one (1) day of
reclusion temporal, as minimum, to twenty (20) years of reclusion temporal,
as maximum, and to indemnify the heirs of the victim in the amount of
P30,000.00.
SO ORDERED.
Fernan (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
[G.R. No. 129433. March 30, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y
BELLO, accused.
DECISION
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita[1] finally did away with frustrated
rape[2] and allowed only attempted rape and consummated rape to remain in
our statute books. The instant case lurks at the threshold of another
emasculation of the stages of execution of rape by considering almost every
attempt at sexual violation of a woman as consummated rape, that is, if the
contrary view were to be adopted. The danger there is that that concept may
send the wrong signal to every roaming lothario, whenever the opportunity
bares itself, to better intrude with climactic gusto, sans any restraint, since
after all any attempted fornication would be considered consummated rape
and punished as such. A mere strafing of the citadel of passion would then
be considered a deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the moment the offender
had carnal knowledge of the victim since by it he attained his objective. All
the elements of the offense were already present and nothing more was left
for the offender to do, having performed all the acts necessary to produce the
crime and accomplish it. We ruled then that perfect penetration was not
essential; any penetration of the female organ by the male organ, however
slight, was sufficient. The Court further held that entry of the labia or lips of
the female organ, even without rupture of the hymen or laceration of the
vagina, was sufficient to warrant conviction for consummated rape. We
distinguished consummated rape from attempted rape where there was no
penetration of the female organ because not all acts of execution were
performed as the offender merely commenced the commission of a felony
directly by overt acts.[3] The inference that may be derived therefrom is that
complete or full penetration of the vagina is not required for rape to be
consummated. Any penetration, in whatever degree, is enough to raise the
crime to its consummated stage.
But the Court in Orita clarified the concept of penetration in rape by requiring
entry into the labia or lips of the female organ, even if there be no rupture of
the hymen or laceration of the vagina, to warrant a conviction for
consummated rape. While the entry of the penis into the lips of the female
organ was considered synonymous with mere touching of the external
genitalia, e.g., labia majora, labia minora, etc.,[4] the crucial doctrinal bottom
line is that touching must be inextricably viewed in light of, in relation to, or as
an essential part of, the process of penile penetration, and not just mere
touching in the ordinary sense. In other words, the touching must be tacked
to the penetration itself. The importance of the requirement of penetration,
however slight, cannot be gainsaid because where entry into the labia or the
lips of the female genitalia has not been established, the crime committed
amounts merely to attempted rape.
Verily, this should be the indicium of the Court in determining whether rape
has been committed either in its attempted or in its consummated stage;
otherwise, no substantial distinction would exist between the two, despite the
fact that penalty-wise, this distinction, threadbare as it may seem, irrevocably
spells the difference between life and death for the accused - a reclusive life
that is not even perpetua but only temporal on one hand, and the ultimate
extermination of life on the other. And, arguing on another level, if the case at
bar cannot be deemed attempted but consummated rape, what then would
constitute attempted rape? Must our field of choice be thus limited only to
consummated rape and acts of lasciviousness since attempted rape would
no longer be possible in light of the view of those who disagree with this
ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape
and sentenced by the court a quo to the extreme penalty of death,[5] hence
this case before us on automatic review under Art. 335 of the Revised Penal
Code as amended by RA 7659.[6]
As may be culled from the evidence on record, on 25 April 1996, at around 4
oclock in the afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year
old Crysthel Pamintuan, went down from the second floor of their house to
prepare Milo chocolate drinks for her two (2) children. At the ground floor she
met Primo Campuhan who was then busy filling small plastic bags with water
to be frozen into ice in the freezer located at the second floor. Primo was a
helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy
preparing the drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!"[7]
prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan
inside her childrens room kneeling before Crysthel whose pajamas or
"jogging pants" and panty were already removed, while his short pants were
down to his knees.
According to Corazon, Primo was forcing his penis into Crysthels vagina.
Horrified, she cursed the accused, "P - t - ng ina mo, anak ko iyan!" and
boxed him several times. He evaded her blows and pulled up his pants. He
pushed Corazon aside when she tried to block his path. Corazon then ran
out and shouted for help thus prompting her brother, a cousin and an uncle
who were living within their compound, to chase the accused.[8] Seconds
later, Primo was apprehended by those who answered Corazon's call for
help. They held the accused at the back of their compound until they were
advised by their neighbors to call the barangay officials instead of detaining
him for his misdeed. Physical examination of the victim yielded negative
results. No evident sign of extra-genital physical injury was noted by the
medico-legal officer on Crysthels body as her hymen was intact and its orifice
was only 0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He
maintained his innocence and assailed the charge as a mere scheme of
Crysthel's mother who allegedly harbored ill will against him for his refusal to
run an errand for her.[9] He asserted that in truth Crysthel was in a playing
mood and wanted to ride on his back when she suddenly pulled him down
causing both of them to fall down on the floor. It was in this fallen position
that Corazon chanced upon them and became hysterical. Corazon slapped
him and accused him of raping her child. He got mad but restrained himself
from hitting back when he realized she was a woman. Corazon called for
help from her brothers to stop him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and
accosted Primo. Vicente punched him and threatened to kill him. Upon
hearing the threat, Primo immediately ran towards the house of Conrado
Plata but Vicente followed him there. Primo pleaded for a chance to explain
as he reasoned out that the accusation was not true. But Vicente kicked him
instead. When Primo saw Vicente holding a piece of lead pipe, Primo raised
his hands and turned his back to avoid the blow. At this moment, the
relatives and neighbors of Vicente prevailed upon him to take Primo to the
barangay hall instead, and not to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27
May 1997 found him guilty of statutory rape, sentenced him to the extreme
penalty of death, and ordered him to pay his victim P50,000.00 for moral
damages, P25,000.00 for exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma.
Corazon Pamintuan. He argues that her narration should not be given any
weight or credence since it was punctured with implausible statements and
improbabilities so inconsistent with human nature and experience. He claims
that it was truly inconceivable for him to commit the rape considering that
Crysthels younger sister was also in the room playing while Corazon was just
downstairs preparing Milo drinks for her daughters. Their presence alone as
possible eyewitnesses and the fact that the episode happened within the
family compound where a call for assistance could easily be heard and
responded to, would have been enough to deter him from committing the
crime. Besides, the door of the room was wide open for anybody to see what
could be taking place inside. Primo insists that it was almost inconceivable
that Corazon could give such a vivid description of the alleged sexual contact
when from where she stood she could not have possibly seen the alleged
touching of the sexual organs of the accused and his victim. He asserts that
the absence of any external signs of physical injuries or of penetration of
Crysthels private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the testimony
of Corazon that she saw Primo with his short pants down to his knees
kneeling before Crysthel whose pajamas and panty were supposedly
"already removed" and that Primo was "forcing his penis into Crysthels
vagina." The gravamen of the offense of statutory rape is carnal knowledge
of a woman below twelve (12), as provided in Art. 335, par. (3), of the
Revised Penal Code. Crysthel was only four (4) years old when sexually
molested, thus raising the penalty, from reclusion perpetua to death, to the
single indivisible penalty of death under RA 7659, Sec. 11, the offended party
being below seven (7) years old. We have said often enough that in
concluding that carnal knowledge took place, full penetration of the vaginal
orifice is not an essential ingredient, nor is the rupture of the hymen
necessary; the mere touching of the external genitalia by the penis capable
of consummating the sexual act is sufficient to constitute carnal
knowledge.[10] But the act of touching should be understood here as
inherently part of the entry of the penis into the labias of the female organ
and not mere touching alone of the mons pubis or the pudendum.
In People v. De la Pea[11] we clarified that the decisions finding a case for
rape even if the attackers penis merely touched the external portions of the
female genitalia were made in the context of the presence or existence of an
erect penis capable of full penetration. Where the accused failed to achieve
an erection, had a limp or flaccid penis, or an oversized penis which could
not fit into the victim's vagina, the Court nonetheless held that rape was
consummated on the basis of the victim's testimony that the accused
repeatedly tried, but in vain, to insert his penis into her vagina and in all
likelihood reached the labia of her pudendum as the victim felt his organ on
the lips of her vulva,[12] or that the penis of the accused touched the middle
part of her vagina.[13] Thus, touching when applied to rape cases does 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 victims 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.[14] 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.[15] Jurisprudence dictates that the labia majora must be
entered for rape to be consummated,[16] and not merely for the penis to
stroke the surface of the female organ. 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.
Judicial depiction of consummated rape has not been confined to the oft-
quoted "touching of the female organ,"[17] but has also progressed into
being described as "the introduction of the male organ into the labia of the
pudendum,"[18] or "the bombardment of the drawbridge."[19] But, to our
mind, the case at bar merely constitutes a "shelling of the castle of orgasmic
potency," or as earlier stated, a "strafing of the citadel of passion."
A review of the records clearly discloses that the prosecution utterly failed to
discharge its onus of proving that Primos penis was able to penetrate
Crysthels vagina however slight. Even if we grant arguendo that Corazon
witnessed Primo in the act of sexually molesting her daughter, we seriously
doubt the veracity of her claim that she saw the inter-genital contact between
Primo and Crysthel. When asked what she saw upon entering her childrens
room Corazon plunged into saying that she saw Primo poking his penis on
the vagina of Crysthel without explaining her relative position to them as to
enable her to see clearly and sufficiently, in automotive lingo, the contact
point. It should be recalled that when Corazon chanced upon Primo and
Crysthel, the former was allegedly in a kneeling position, which Corazon
described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of the accused
is pinning down the victim, while his right hand is holding his penis and his
left hand is spreading the legs of the victim).
It can reasonably be drawn from the foregoing narration that Primos kneeling
position rendered an unbridled observation impossible. Not even a vantage
point from the side of the accused and the victim would have provided
Corazon an unobstructed view of Primos penis supposedly reaching
Crysthels external genitalia, i.e., labia majora, labia minora, hymen, clitoris,
etc., since the legs and arms of Primo would have hidden his movements
from Corazons sight, not to discount the fact that Primos right hand was
allegedly holding his penis thereby blocking it from Corazons view. It is the
burden of the prosecution to establish how Corazon could have seen the
sexual contact and to shove her account into the permissive sphere of
credibility. It is not enough that she claims that she saw what was done to her
daughter. It is required that her claim be properly demonstrated to inspire
belief. The prosecution failed in this respect, thus we cannot conclude
without any taint of serious doubt that inter-genital contact was at all
achieved. To hold otherwise would be to resolve the doubt in favor of the
prosecution but to run roughshod over the constitutional right of the accused
to be presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his wicked
intention despite her timely appearance, thus giving her the opportunity to
fully witness his beastly act.
We are not persuaded. It is inconsistent with mans instinct of self-
preservation to remain where he is and persist in satisfying his lust even
when he knows fully well that his dastardly acts have already been
discovered or witnessed by no less than the mother of his victim. For, the
normal behavior or reaction of Primo upon learning of Corazons presence
would have been to pull his pants up to avoid being caught literally with his
pants down. The interval, although relatively short, provided more than
enough opportunity for Primo not only to desist from but even to conceal his
evil design.
What appears to be the basis of the conviction of the accused was Crysthel's
answer to the question of the court -
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily
said, "No." Thus -
Q: But did his penis penetrate your organ?
A: No, sir.[20]
This testimony alone should dissipate the mist of confusion that enshrouds
the question of whether rape in this case was consummated. It has
foreclosed the possibility of Primos penis penetrating her vagina, however
slight. Crysthel made a categorical statement denying penetration,[21]
obviously induced by a question propounded to her who could not have been
aware of the finer distinctions between touching and penetration.
Consequently, it is improper and unfair to attach to this reply of a four (4)-
year old child, whose vocabulary is yet as underdeveloped as her sex and
whose language is bereft of worldly sophistication, an adult interpretation that
because the penis of the accused touched her organ there was sexual entry.
Nor can it be deduced that in trying to penetrate the victim's organ the penis
of the accused touched the middle portion of her vagina and entered the
labia of her pudendum as the prosecution failed to establish sufficiently that
Primo made efforts to penetrate Crysthel.[22] Corazon did not say, nay, not
even hint that Primo's penis was erect or that he responded with an
erection.[23] On the contrary, Corazon even narrated that Primo had to hold
his penis with his right hand, thus showing that he had yet to attain an
erection to be able to penetrate his victim.
Antithetically, the possibility of Primos penis having breached Crysthels
vagina is belied by the child's own assertion that she resisted Primos
advances by putting her legs close together;[24] consequently, she did not
feel any intense pain but just felt "not happy" about what Primo did to her.[25]
Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases
where penetration was not fully established, the Court had anchored its
conclusion that rape nevertheless was consummated on the victim's
testimony that she felt pain, or the medico-legal finding of discoloration in the
inner lips of the vagina, or the labia minora was already gaping with redness,
or the hymenal tags were no longer visible.[26] None was shown in this case.
Although a child's testimony must be received with due consideration on
account of her tender age, the Court endeavors at the same time to harness
only what in her story appears to be true, acutely aware of the equally
guaranteed rights of the accused. Thus, we have to conclude that even on
the basis of the testimony of Crysthel alone the accused cannot be held
liable for consummated rape; worse, be sentenced to death.
Lastly, it is pertinent to mention the medico legal officer's finding in this case
that there were no external signs of physical injuries on complaining witness
body to conclude from a medical perspective that penetration had taken
place. As Dr. Aurea P. Villena explained, although the absence of complete
penetration of the hymen does not negate the possibility of contact, she
clarified that there was no medical basis to hold that there was sexual
contact between the accused and the victim.[27]
In cases of rape where there is a positive testimony and a medical certificate,
both should in all respects complement each other; otherwise, to rely on the
testimonial evidence alone, in utter disregard of the manifest variance in the
medical certificate, would be productive of unwarranted or even mischievous
results. It is necessary to carefully ascertain whether the penis of the
accused in reality entered the labial threshold of the female organ to
accurately conclude that rape was consummated. Failing in this, the thin line
that separates attempted rape from consummated rape will significantly
disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal 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. All the elements of attempted rape - and
only of attempted rape - are present in the instant case, hence, the accused
should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the imposable
penalty of death for the offense charged, which is statutory rape of a minor
below seven (7) years. Two (2) degrees lower is reclusion temporal, the
range of which is twelve (12) years and one (1) day to twenty (20) years.
Applying the Indeterminate Sentence Law, and in the absence of any
mitigating or aggravating circumstance, the maximum of the penalty to be
imposed upon the accused shall be taken from the medium period of
reclusion temporal, the range of which is fourteen (14) years, eight (8)
months and (1) day to seventeen (17) years and four (4) months, while the
minimum shall be taken from the penalty next lower in degree, which is
prision mayor, the range of which is from six (6) years and one (1) day to
twelve (12) years, in any of its periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO
"SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing him
to death and to pay damages is MODIFIED. He is instead found guilty of
ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight
(8) years four (4) months and ten (10) days of prision mayor medium as
minimum, to fourteen (14) years ten (10) months and twenty (20) days of
reclusion temporal medium as maximum. Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing,
Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon,
Jr., JJ., concur.
Panganiban, J., in the result.
[G.R. No. 122099. July 5, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGAPITO LISTERIO
y PRADO and SAMSON DELA TORRE y ESQUELA, accused,
AGAPITO LISTERIO y PRADO, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
For the deadly assault on the brothers Jeonito Araque and Marlon Araque,
Agapito Listerio y Prado, Samson dela Torre y Esquela, Marlon dela Torre,
George dela Torre, Bonifacio Bancaya and several others who are still at
large were charged in two (2) separate Amended Informations with Murder
and Frustrated Murder.
In Criminal Case No. 91-5842 the Amended Information[1] for Murder alleges
That on or about the 11th day of August 1991 in the Municipality of
Muntinlupa, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating
together and mutually helping and aiding one another, all armed with bladed
weapons and GI lead pipes, with intent to kill, treachery and evident
premeditation with abuse of superior strength did then and there willfully,
unlawfully and feloniously attack, assault and stab one Jeonito Araque y
Daniel at the back of his body, thereby inflicting upon the latter mortal
wounds which directly caused his death.
CONTRARY TO LAW.
WHEREFORE, finding Accused AGAPITO LISTERIO guilty beyond
reasonable doubt, he is sentenced:
1. For the death of Jeonito Araque y Daniel in Criminal Case NO. 91-5842,
RECLUSION PERPETUA;
2. For the attempt to kill Marlon Araque y Daniel, in Criminal Case No. 91-
5843, he is sentenced to six (6) months and one (1) day as minimum, to four
(4) years as maximum;

In Criminal Case No. 91-5843, the Amended Information[2] for Frustrated 3. As civil indemnity, he is ordered to indemnify the heirs of Jeonito Araque y
Homicide charges: Daniel the sum[s] of :

That on or about the 14th day of May 1991 in the Municipality of Muntinlupa, P54,200.66 as actual damages;
Metro Manila, Philippines and within the jurisdiction this Honorable Court, the
above-named accused, conspiring, confederating together, mutually helping P50,000.00 as moral damages;
and aiding one another, with intent to kill did then and there willfully,
unlawfully and feloniously stab and hit with a lead pipe and bladed weapon P5,000.00 as exemplary damages.
one Marlon Araque y Daniel on the vital portions of his body, thereby
inflicting serious and mortal wounds which would have cause[d] the death of 4. And for the damages sustained by Marlon Araque y Daniel, he is required
the said victim thus performing all the acts of execution which should have to pay Marlon Araque y Daniel, the sum[s] of :
produce[d] the crime of Homicide as a consequence but nevertheless did not
produce it by reason of causes independent of their will, that is by timely and P5,000.00 as actual damages;
able medical attendance rendered to said Marlon Araque y Daniel which
prevented his death. P5,000.00 as moral damages; and

CONTRARY TO LAW. P5,000.00 as exemplary damages

Upon arraignment, accused Agapito Listerio y Prado and Samson dela Torre SO ORDERED.[4]
y Esquela pleaded not guilty to the crimes charged. Their other co-accused
have remained at large. Dissatisfied, accused Agapito Listerio interposed this appeal alleging that

Trial thereafter ensued after which the court a quo rendered judgment only I
against accused Agapito Listerio because his co-accused Samson dela Torre
escaped during the presentation of the prosecutions evidence and he was THE PROSECUTION EVIDENCE FAILED TO ESTABLISH THE GUILT OF
not tried in absentia. The dispositive portion of the decision[3] reads: THE ACCUSED BEYOND REASONABLE DOUBT.

II

THE COURT CONVICTED THE ACCUSED OF THE CRIME OF MURDER
AND ATTEMPTED HOMICIDE DESPITE ABSENCE OF PROOF OF
CONSPIRACY AND AGGRAVATING CIRCUMSTANCE OF TREACHERY.
The version of the prosecution of what transpired on that fateful day of
August 14, 1991 culled from the eyewitness account of Marlon Araque
discloses that at around 5:00 p.m. of August 14, 1991, he and his brother
Jeonito were in Purok 4, Alabang, Muntinlupa to collect a sum of money from
a certain Tino.[5] Having failed to collect anything from Tino, Marlon and
Jeonito then turned back.[6] On their way back while they were passing
Tramo near Tinos place,[7] a group composed of Agapito Listerio, Samson
dela Torre, George dela Torre, Marlon dela Torre and Bonifacio Bancaya[8]
blocked their path[9] and attacked them with lead pipes and bladed
weapons.[10]
Agapito Listerio, Marlon dela Torre and George dela Torre, who were armed
with bladed weapons, stabbed Jeonito Araque from behind.[11] Jeonito
sustained three (3) stab wounds on the upper right portion of his back,
another on the lower right portion and the third on the middle portion of the
left side of his back[12] causing him to fall down.[13] Marlon Araque was hit
on the head by Samson dela Torre and Bonifacio Bancaya with lead pipes
and momentarily lost consciousness.[14] When he regained his senses three
(3) minutes later, he saw that Jeonito was already dead.[15] Their assailants
then fled after the incident.[16] Marlon Araque who sustained injuries in the
arm and back,[17] was thereafter brought to a hospital for treatment.[18]
Marlon Araque was examined by Dr. Salvador Manimtim, head of the Medico
Legal Division of the UP-PGH, [19] who thereafter issued a Medical
Certificate[20] indicating that Marlon Araque sustained two (2) lacerated
wounds, one measuring 5 centimeters in length located in the center (mid-
parietal area) of the ear.[21] The second lacerated wound measuring 2
centimeters in length is located at the mid-frontal area commonly known as
the forehead.[22] A third lacerated wound measuring 1.5 centimeters long is
located at the forearm[23] and a fourth which is a stab wound measuring 3
centimeters is located at the right shoulder at the collar.[24] Elaborating on
the nature of Marlon Araques injuries, Dr. Manimtim explained in detail
during cross-examination that the two (2) wounds on the forearm and the
shoulder were caused by a sharp object like a knife while the rest were
caused by a blunt instrument such as a lead pipe.[25]
Dr. Bievenido Munoz, NBI Medico Legal Officer conducted an autopsy on the
cadaver of Jeonito Araque[26] and prepared an Autopsy Report[27] of his
findings. The report which contains a detailed description of the injuries
inflicted on the victim shows that the deceased sustained three (3) stab
wounds all of them inflicted from behind by a sharp, pointed and single-
bladed instrument like a kitchen knife, balisong or any similar instrument.[28]
The first stab wound, measuring 1.7 centimeters with an approximate depth
of 11.0 centimeters, perforated the lower lobe of the left lung and the thoracic
aorta.[29] Considering the involvement of a vital organ and a major blood
vessel, the wound was considered fatal.[30] The second wound, measuring
2.4 centimeters, affected the skin and underlying soft tissues and did not
penetrate the body cavity.[31] The third wound measuring 2.7 centimeters
was like the second and involved only the soft tissues.[32] Unlike the first, the
second and third wounds were non-fatal.[33] Dr. Munoz averred that of the
three, the first and second wounds were inflicted by knife thrusts delivered
starting below going upward by assailants who were standing behind the
victim.[34]
On the other hand, accused-appellants version of the incident is summed
thus in his brief:
1. Accused-appellant is 39 years old, married, side walk vendor and a
resident of Purok 4, Bayanan, Muntinlupa, Metro Manila. He earns a living by
selling vegetables.[35]
2. At around 1:00 oclock in the afternoon of August 14, 1991, Accused-
Appellant was in the store of Nimfa Agustin having a little fun with Edgar
Demolador and Andres Gininao drinking beer. At around 2:00 oclock
Accused-appellant went to his house and slept.[36]
3. While asleep, at about 5 oclock, Edgar Remolador and Andres Gininao
woke him up and told him there was a quarrel near the railroad track.[37]
4. At around 6:00 oclock two (2) policemen passed by going to the house of
Samson de la Torre while Accused-appellant was chatting with Edgar
Remolador and Andres Gininao. These two (2) policemen together with co-
accused Samson de la Torre came back and invited Accused-appellant for
questioning at the Muntinlupa Police Headquarters together with Edgar
Demolador and Andres Gininao. Subsequently, Edgar Demolador and
Andres Gininao were sent home.[38]
5. At the Police Station, Accused-Appellant was handed a Sinumpaang
Salaysay executed by Marlon Araque, implicating him for the death of
Jeonito Araque and the frustrated murder of Marlon Araque. Accused-
Appellant confronted Marlon Araque as to why he was being included in the
case. Marlon Araque answered because you eject[ed] us from your
house.[39]
courts findings save only in cases where arbitrariness has set in and
disregard for the facts important to the case have been overlooked.[42]
The account of Marlon Araque as to how they were assaulted by the group of
accused-appellant was given in a categorical, convincing and straightforward
manner:
Q Mr. Witness, do you know a certain Jeonito Araque y Daniel?
A Yes, sir.
Q And why do you know him?

Professing his innocence, accused-appellant claims that Marlon Araques A He is my brother.

uncorroborated testimony failed to clearly and positively identify him as the
malefactor responsible for his brothers death. In fine, he insists that Marlons Q Where is Jeonito Araque now?
testimony is insufficient to convict him of the crimes charged.
A He is already dead.
We disagree.
Q When did he die?
It is well settled that witnesses are to be weighed, not numbered, such that
the testimony of a single, trustworthy and credible witness could be sufficient A Last August 14.
to convict an accused.[40] More explicitly, the well entrenched rule is that the
testimony of a lone eyewitness, if found positive and credible by the trial Q Do you know of your own knowledge how he died?
court is sufficient to support a conviction especially when the testimony bears
the earmarks of truth and sincerity and had been delivered spontaneously, A Yes, sir.
naturally and in a straightforward manner. It has been held that witnesses are
to be weighed not numbered; hence, it is not at all uncommon to reach a Q Will you please inform the Honorable Court what is your own knowledge?
conclusion of guilt on the basis of the testimony of a single witness.[41]
A He was stabbed, sir.
The trial court found Marlon Araques version of what transpired candid and
straightforward. We defer to the lower courts findings on this point consistent Q Do you know the person or persons who stabbed him?
with the oft-repeated pronouncement that: the trial judge is the best and the
most competent person who can weigh and evaluate the testimony of A Yes, sir.
witnesses. His firsthand look at the declarants demeanor, conduct and
attitude at the trial places him in a peculiar position to discriminate between Q Will you please inform the Honorable Court who are these person or
the true and the false. Consequently appellate courts will not disturb the trial persons, if you know?
A Its (sic) Agapito Listerio, Samson dela Torre, George dela Torre, Marlon Q When you went back, did you have any companion?
dela Torre and Bonifacio.
A Yes, sir.
Q Now if these persons [are] inside the courtroom, could you identify them?
Q Who was your companion?
A They (sic) are only two persons but the three persons is (sic) not around.
A My brother.
Q Could you please point to this Honorable Court who are these two persons
in side the courtroom? Q While you were going back, was there any untoward incidents that
happened?
A Yes, sir (Witness pointing to a persons [sic] and when asked [identified
themselves as] Agapito Listerio and Samson dela Torre.) A Yes sir Hinarang po kami.

Q Now, at around 5:00 oclock in the afternoon of August 14, 1991, do you
recall where were you?
A Yes, sir.
Q Will you please inform the Honorable Court where were you at that time?
A Im in Alabang at Purok 4 and Im collecting.
Q Do you have any companion at that time?
Q Now, what particular place [where] you were waylaid, if you recall?
A In Tramo, near Tinos place.
Q And who were the persons that were waylaid (sic)?
A Agapito Listerio, Samson dela Torre, George dela Torre and Bonifacio.
Q Will you please inform the Honorable Court how will (sic) you waylaid by
these persons?

A Yes, sir. A We were walking then suddenly they stabbed us with knife (sic) and ran
afterwards.
Q What are you doing at that time in [that] particular date?
Q Who were the persons that waylaid you?
A Im collecting from a certain Tino.
A Agapito Listerio, George and Marlon.
Q Were you able to collect?
Q How about your brother, what happened to him?
A No, sir.
A He fall (sic) down.
Q If you said that there were no collections, what did you do?
Q And after he fall (sic) down, do you know what happened?
A We went back.
A I was hit by a lead pipe thats why I painted (sic).

Q Do you know the reason why your brother fall (sic) down?
A I cannot recall, sir. Because I already painted (sic).
Q Do you know the reason why your brother fall (sic) before you painted
(sic)?
In what particular part of his body was stabbed wound (sic)?
A Witness pointing to his back upper right portion of the back, another on the
lower right portion and another on the middle portion of the left side at the
back.
COURT

A Yes, sir. Proceed.

Q Will you please inform the Honorable Court why your brother fall (sic) Q Will you please inform the Honorable Court why you are (sic) lost
down? consciousness?

xxx xxx xxx A I was hit by [a] lead pipe by Samson and Bonifacio.

A Yes, sir, because he was stabbed. Q And when did you regain consciousness?

Q What particular place of his body was [he] stabbed if you know? A After three minutes.

A At the back of his body. Q And when you gain[ed] consciousness, what happened to your brother?

Q Do you know the person or persons who was (sic) stabbed him? A He was already dead.

A Yes, sir. Q How about you, what did you do?

Q Will you please inform the Honorable Court who was that persons was A I go (sic) to the Hospital.
stabbed him?
Q How about the accused, the persons who way laid, what happened to
A Agapito, Marlon and George. them?

COURT A From what I know, they ran away.[43]

How many stabbed [him], if you know? Persistent efforts by defense counsel to establish that the attack was
provoked, by eliciting from Marlon Araque an admission that he and the
A Three (3), sir. deceased had a drinking spree with their attackers prior to the incident,
proved futile as Marlon steadfastly maintained on cross examination that he
COURT and his brother never drank liquor on that fateful day:
Q After your work, was there an occasion when you drink something with COURT
your borther (sic)?
Ask another question.
A No, sir.
Q Mr. Witness, will you please tell the Honorable Court where this George
Q And you stand to your testimony that you never drink (sic) on August 14, dela Torre, Marlon dela Torre and a certain Bonifacio were?
1991?
Atty. Agoot
A Yes, sir.
Witness is incompetent.
Q Were (sic) there no occasion on August 14, 1991 when you visited Sonny
Sari-Sari Store at 4:00 p.m. on August 14, 1991? Q Mr. Witness, you testified that it was your brother the deceased who
invited you to Purok 4?
A No, sir.
A Yes, sir.
Q And did you not have a drinking spree with George dela Torre?
Atty. Lumakang
A No, sir.
That will be all for the witness, your Honor.[44]
Q Marlon dela Torre?
That Marlon was able to recognize the assailants can hardly be doubted
A No, sir. because relatives of the victim have a natural knack for remembering the
faces of the attackers and they, more than anybody else, would be
Q Bonifacio? concerned with obtaining justice for the victim by the felons being brought to
the face of the law.[45] Indeed, family members who have witnessed the
A With your borther (sic)? killing of a loved one usually strive to remember the faces of the
assailants.[46] Marlons credibility cannot be doubted in this case because as
Q So you want to tell this Honorable Court that there was no point in time on a victim himself and an eyewitness to the incident, it can be clearly gleaned
August 14, 1991 at 4:00 p.m. that you did not take a sip of wine? from the foregoing excerpts of his testimony that he remembered with a high
degree of reliability the identity of the malefactors.[47]
A No, sir.
Likewise, there is no showing that he was motivated by any ill-feeling or bad
Q Neither your brother? blood to falsely testify against accused-appellant. Being a victim himself, he
is expected to seek justice. It is settled that if the accused had nothing to do
Atty. Agoot with the crime, it would be against the natural order of events to falsely
impute charges of wrongdoing upon him.[48] Accused-appellant likewise
Objection, Your Honor, the question is vague. insists on the absence of conspiracy and treachery in the attack on the
victims.

We remain unconvinced.
It must be remembered that direct proof of conspiracy is rarely found for
criminals do not write down their lawless plans and plots.[49] Conspiracy
may be inferred from the acts of the accused before, during and after the
commission of the crime which indubitably point to and are indicative of a
joint purpose, concert of action and community of interest.[50] Indeed
A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. To establish
the existence of a conspiracy, direct proof is not essential since it may be
shown by facts and circumstances from which may be logically inferred the
existence of a common design among the accused to commit the offense
charged, or it may be deduced from the mode and manner in which the
offense was perpetrated.[51]
More explicitly
conspiracy need not be established by direct evidence of acts charged, but
may and generally must be proved by a number of indefinite acts, conditions
and circumstances, which vary according to the purpose accomplished.
Previous agreement to commit a crime is not essential to establish a
conspiracy, it being sufficient that the condition attending to its commission
and the acts executed may be indicative of a common design to accomplish
a criminal purpose and objective. If there is a chain of circumstances to that
effect, conspiracy can be established.[52]
Thus, the rule is that conspiracy must be shown to exist by direct or
circumstantial evidence, as clearly and convincingly as the crime itself.[53] In
the absence of direct proof thereof, as in the present case, it may be
deduced from the mode, method, and manner by which the offense was
perpetrated, or inferred from the acts of the accused themselves when such
acts point to a joint purpose and design, concerted action and community of
interest.[54] Hence, it is necessary that a conspirator should have performed
some overt acts as a direct or indirect contribution in the execution of the
crime planned to be committed. The overt act may consist of active
participation in the actual commission of the crime itself, or it may consist of
moral assistance to his con-conspirators by being present at the commission
of the crime or by exerting moral ascendancy over the other co-
conspirators.[55]
Conspiracy transcends mere companionship, it denotes an intentional
participation in the transaction with a view to the furtherance of the common
design and purpose.[56] Conspiracy to exist does not require an agreement
for an appreciable period prior to the occurrence.[57] From the legal
standpoint, conspiracy exists if, at the time of the commission of the offense,
the accused had the same purpose and were united in its execution.[58] In
this case, the presence of accused-appellant and his colleagues, all of them
armed with deadly weapons at the locus criminis, indubitably shows their
criminal design to kill the victims.
Nowhere is it more evident than in this case where accused-appellant and
his cohorts blocked the path of the victims and as a group attacked them with
lead pipes and bladed weapons. Accused-appellant and his companions
acted in concert during the assault on the victims. Each member of the group
performed specific and coordinated acts as to indicate beyond doubt a
common criminal design or purpose.[59] Thus, even assuming arguendo that
the prosecution eyewitness may have been unclear as to who delivered the
fatal blow on the victim, accused-appellant as a conspirator is equally liable
for the crime as it is unnecessary to determine who inflicted the fatal wound
because in conspiracy, the act of one is the act of all.[60]
As to the qualifying circumstances here present, the treacherous manner in
which accused-appellant and his group perpetrated the crime is shown not
only by the sudden and unexpected attack upon the unsuspecting and
apparently unarmed victims but also by the deliberate manner in which the
assault was perpetrated. In this case, the accused-appellant and his
companions, all of them armed with bladed weapons and lead pipes, blocked
(hinarang) the path of the victims effectively cutting off their escape.[61] In
the ensuing attack, the deceased was stabbed three (3) times from behind by
a sharp, pointed and single-bladed instrument like a kitchen knife, balisong or
similar instrument[62] while Marlon Araque sustained lacerated wounds in
the head caused by blows inflicted by lead pipes as well as stab wounds on
the shoulder and forearm which were caused by a sharp object like a
knife.[63]

It must be noted in this regard that the manner in which the stab wounds
were inflicted on the deceased were clearly meant to kill without posing any
danger to the malefactors considering their locations and the fact that they
were caused by knife thrusts starting below going upward by assailants who
were standing behind the victim.[64] Treachery is present when the offender
commits any of the crimes against persons employing means, methods or
forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended
party might make.[65] That circumstance qualifies the crime into murder.
The commission of the crime was also attended by abuse of superior
strength on account of the fact that accused-appellant and his companions
were not only numerically superior to the victims but also because all of
them, armed with bladed weapons and lead pipes, purposely used force out
of proportion to the means of defense available to the persons attacked.
However, this aggravating circumstance is already absorbed in treachery.[66]
Furthermore, although alleged in the information, evident premeditation was
not proved by the prosecution. In the light of the finding of conspiracy,
evident premeditation need not be further appreciated, absent concrete proof
as to how and when the plan to kill was hatched or what time had elapsed
before it was carried out.[67]
In stark contrast to the evidence pointing to him as one of the assailants of
the victims, accused-appellant proffers the defense of alibi. At the risk of
sounding trite, it must be remembered that alibi is generally considered with
suspicion and always received with caution because it can be easily
fabricated.[68] For alibi to serve as a basis for acquittal, the accused must
establish that: a.] he was present at another place at the time of the
perpetration of the offense; and b.] it would thus be physically impossible for
him to have been at the scene of the crime.[69]
Suffice it to state that accused-appellant failed to discharge this burden. The
positive identification of the accused as one of the perpetrators of the crime
by the prosecution eyewitness, absent any showing of ill-motive, must prevail
over the weak and obviously fabricated alibi of accused-appellant.[70]
Furthermore, as aptly pointed out by the trial court [t]he place where the
accused was at the time of the killing is only 100 meters away. The distance
of his house to the place of the incident makes him physically possible to be
a participant in the killing [of Jeonito] and [the] wounding of Marlon.[71]
All told, an overall scrutiny of the records of this case leads us to no other
conclusion than that accused-appellant is guilty as charged for Murder in
Criminal Case No. 91-5842.
In Criminal Case No. 91-5843, wherein accused-appellant was indicted for
Frustrated Homicide, the trial court convicted accused-appellant of Attempted
Homicide only on the basis of Dr. Manimtims testimony that none of the
wounds sustained by Marlon Araque were fatal.
The reasoning of the lower court on this point is flawed because it is not the
gravity of the wounds inflicted which determines whether a felony is
attempted or frustrated but whether or not the subjective phase in the
commission of an offense has been passed. By subjective phase is meant
[t]hat portion of the acts constituting the crime included between the act
which begins the commission of the crime and the last act performed by the
offender which, with the prior acts, should result in the consummated crime.
From that time forward, the phase is objective. It may also be said to be that
period occupied by the acts of the offender over which he has control that
period between the point where he begins and the point where he voluntarily
desists. If between these two points the offender is stopped by reason of any
cause outside of his own voluntary desistance, the subjective phase has not
been passed and it is an attempt. If he is not so stopped but continues until
he performs the last act, it is frustrated.[72]
It must be remembered that a felony is frustrated when: 1.] the offender has
performed all the acts of execution which would produce the felony; 2.] the
felony is not produced due to causes independent of the perpetrators will.[73]
On the other hand, in an attempted felony: 1.] the offender commits overt
acts to commence the perpetration of the crime; 2.] he is not able to perform
all the acts of execution which should produce the felony; and 3.] his failure
to perform all the acts of execution was due to some cause or accident other
than his spontaneous desistance.[74] The distinction between an attempted
and frustrated felony was lucidly differentiated thus in the leading case of
U.S. v. Eduave:[75]
A crime cannot be held to be attempted unless the offender, after beginning
the commission of the crime by overt acts, is prevented, against his will, by
some outside cause from performing all of the acts which should produce the
crime. In other words, to be an attempted crime the purpose of the offender
must be thwarted by a foreign force or agency which intervenes and compels
him to stop prior to the moment when he has performed all of the acts which
should produce the crime as a consequence, which acts it is his intention to
perform. If he has performed all the acts which should result in the
consummation of the crime and voluntarily desists from proceeding further, it
cannot be an attempt. The essential element which distinguishes attempted
from frustrated felony is that, in the latter, there is no intervention of a foreign
or extraneous cause or agency between the beginning of the commission of
crime and the moment when all the acts have been performed which should
result in the consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of performing all of
the acts which should produce the crime. He is stopped short of that point by
some cause apart from his voluntary desistance.
To put it another way, in case of an attempt the offender never passes the
subjective phase of the offense. He is interrupted and compelled to desist by
the intervention of outside causes before the subjective phase is passed.
On the other hand, in case of frustrated crimes, the subjective phase is
completely passed. Subjectively the crime is complete. Nothing interrupted
the offender while he was passing through the subjective phase. The crime,
however, is not consummated by reason of the intervention of causes
independent of the will of the offender. He did all that was necessary to
commit the crime. If the crime did not result as a consequence it was due to
something beyond his control.
In relation to the foregoing, it bears stressing that intent to kill determines
whether the infliction of injuries should be punished as attempted or
frustrated murder, homicide, parricide or consummated physical injuries.[76]
Homicidal intent must be evidenced by acts which at the time of their
execution are unmistakably calculated to produce the death of the victim by
adequate means.[77] Suffice it to state that the intent to kill of the malefactors
herein who were armed with bladed weapons and lead pipes can hardly be
doubted given the prevailing facts of the case. It also can not be denied that
the crime is a frustrated felony not an attempted offense considering that
after being stabbed and clubbed twice in the head as a result of which he lost
consciousness and fell, Marlons attackers apparently thought he was already
dead and fled.
An appeal in a criminal case throws the whole case wide open for review[78]
and the reviewing tribunal can correct errors, though unassigned in the
appealed judgement[79] or even reverse the trial courts decision on the basis
of grounds other than those that the parties raised as errors.[80] With the
foregoing in mind, we now address the question of the proper penalties to be
imposed.
With regard to the frustrated felony, Article 250 of the Revised Penal Code
provides that
ART. 250. Penalty for frustrated parricide, murder, or homicide. The courts,
in view of the facts of the case, may impose upon the person guilty of the
frustrated crime of parricide, murder or homicide, defined and penalized in
the preceding articles, a penalty lower by one degree than that which should
be imposed under the provisions of article 50.[81]
The courts, considering the facts of the case, may likewise reduce by one
degree the penalty which under article 51 should be imposed for an attempt
to commit any of such crimes.
The penalty for Homicide is reclusion temporal[82] thus, the penalty one
degree lower would be prision mayor.[83] With the presence of the
aggravating circumstance of abuse of superior strength and no mitigating
circumstances, the penalty is to be imposed in its maximum period.[84]
Prision mayor in its maximum period ranges from ten (10) years and one (1)
day to twelve (12) years. Applying further the Indeterminate Sentence
Law,[85] the minimum of the imposable penalty shall be within the range of
the penalty next lower in degree, i.e. prision correccional in its maximum
period which has a range of six (6) months and one (1) day to six (6) years.
What now remains to be determined is the propriety of the awards made by
the trial court with regard to the civil aspect of the case for the death of
Jeonito Araque and the injuries sustained by Marlon Araque.

Anent actual or compensatory damages, it bears stressing that only
substantiated and proven expenses or those which appear to have been
genuinely incurred in connection with the death, wake or burial of the victim
will be recognized by the courts.[86] In this case, the expenses incurred for
the wake, funeral and burial of the deceased are substantiated by
receipts.[87] The trial courts award for actual damages for the death of
Jeonito Araque should therefore be affirmed.
In line with current jurisprudence,[88] the award of P50,000.00 as civil
indemnity ex delicto must also be sustained as it requires no proof other than
the fact of death of the victim and the assailants responsibility therefor.[89]
The award for moral damages for the pain and sorrow suffered by the victims
family in connection with his untimely death must likewise be affirmed. The
award is adequate, reasonable and with sufficient basis taking into
consideration the anguish and suffering of the deceaseds family particularly
his mother who relied solely upon him for support.[90] The award of
exemplary damages should likewise be affirmed considering that an
aggravating circumstance attended the commission of the crime.[91]
The trial court, however, correctly ignored the claim for loss of income or
earning capacity of the deceased for lack of factual basis. The estimate given
by the deceaseds sister on his alleged income as a pre-cast businessman is
not supported by competent evidence like income tax returns or receipts. It
bears emphasizing in this regard that compensation for lost income is in the
nature of damages[92] and as such requires due proof thereof.[93] In short,
there must be unbiased proof of the deceaseds average income.[94] In this
case, the victims sister merely gave an oral, self-serving and hence
unreliable statement of her deceased brothers income.
As for the awards given to Marlon Araque, the award for actual damages
must be affirmed as the same is supported by documentary evidence.[95]
With regard to moral and exemplary damages, the same being distinct from
each other require separate determination.[96] The award for moral damages
must be struck down as the victim himself did not testify as to the moral
suffering he sustained as a result of the assault on his person. For lack of
competent proof such an award is improper.[97] The award for exemplary
damages must, however, be retained considering that under Article 2230 of
the Civil Code, such damages may be imposed when the crime is committed
with one or more aggravating circumstances.[98]
Finally, this Court has observed that the trial court did not render judgment
against accused Samson dela Torre, notwithstanding that he was arraigned
and pleaded not guilty to both charges. Under the circumstances, he should
be deemed to have been tried in absentia and, considering the evidence
presented by the prosecution against him, convicted of the crime charged
together with appellant Agapito Listerio.
WHEREFORE, the appealed decision is AFFIRMED with the following
MODIFICATIONS:
1.] the award of P5,000.00 to Marlon Araque by way of moral damages in
Criminal Case No. 91-5843 is DELETED;
2.] Accused-Appellant is found GUILTY beyond reasonable doubt in Criminal
Case No. 91-5843 of Frustrated Homicide and is sentenced to suffer an
indeterminate penalty of Six (6) Years of Prision Correccional, as minimum to
Ten (10) Years and One (1) Day of Prision Mayor, as maximum.
After finality of this Decision, the records shall be remanded to the Regional
Trial Court of Makati City, which is directed to render judgment based on the
evidence against Samson dela Torre y Esquela.
SO ORDERED.
Davide, Jr., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.
G.R. No. 166441 October 8, 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 ₱20,000.00 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
guiltyto 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 ofrape directly byovert acts, to wit: While private
complainant AAA, an unmarried woman, fifteen (15) yearsold, was sleeping
inside the tentalong 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
x x x [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 thanan 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 totell 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 wereshaking. 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 at6:00 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 ₱20,000.00 as moral damages.
With regard to the crime ofACTS 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
BBBthe amount of ₱10,000.00 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 perpetuapursuant to Article 335 of
the Revised Penalty Code, as amended by Republic Act No. 7659. The
penalty two degrees lower than reclusion perpetuais prision mayor.
Applying the Indeterminate Sentence Law, the maximum term of the penalty
shall be the medium period of prision mayorin the absence of any mitigating
or aggravating circumstance and the minimum shall be within the range of
the penalty nextlower to that prescribed for the offense which in this case is
prision correccionalin any of its periods.
We also find that the trial court correctly assessed the amount of ₱20,000.00
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 adducedby the prosecution is insufficient to
substantiate the charge of acts of lasciviousness against the
accusedappellant. The basis of the complaint for acts of lasciviousness is the
sworn statement of BBB to the effectthat 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 suchlascivious 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 fertileimagination; 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 ₱80,000.00 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 thisrule, 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
decideissues 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
contentionsof the petitioner on the credibility of AAA as a witness for the
State cannot beentertained. 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 thatthey 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 ofher 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 anattempted 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 iswanting, the nature of the action
intended (accion fin) cannot exactly be ascertained, but the same must be
inferred from the nature of the acts of execution (accion 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 aswell 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 ascertainedfrom 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, withoutthe 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:
Article335. 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 ofreason 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 isdefined simply as "theact 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 peniscapable 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 does 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
indeedtouched 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" bythe
penis, are by their natural situsor location beneath the mons pubisor 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 pudendumor vulvais 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 pubisis the rounded
eminence that becomes hairy after puberty, and is instantly visible within the
surface. The next layer is the labia majoraor 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 majorais the labia
minora. Jurisprudence dictates that the labia majoramust 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 pubisof 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 pudendumby 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. Eriñia20 whereby the offender was declared guilty of frustrated
rapebecause of lack of conclusive evidence of penetration of the genital
organ of the offended party, was a stray decisionfor 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
Codeare 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 actsfor 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’etrefor the law
requiring a direct overtact 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 actswithout 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
withoutsuch 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 criminalintent 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 thatrape, 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 rapehad 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
Codefor 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’sintent 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 whenthe 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 ofreason or is
otherwise unconscious; or (iii) when the offended party is under 12 years of
age.32 In that regard, lewdis 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
actdescribed," 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 correccionalwhich ranges from one (1) WE CONCUR:
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) MARIA LOURDES P. A. SERENO
years, four (4) months and one day of prision correccional, as the maximum. Chief Justice

In acts of lasciviousness, the victim suffers moral injuries because the

offender violates her chastity by his lewdness.1âwphi1 "Moral damages EN BANC
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 ARISTOTEL VALENZUELA y G. R. No. 160188
damages may be recovered if they are the proximate result of the NATIVIDAD,
defendant's wrongful act for omission."36 Indeed, Article 2219, (3), of the Petitioner, Present:
Civil Code expressly recognizes the right of the victim in acts of
lasciviousness to recover moral damages.37 Towards that end, the Court, PUNO, C.J.,
upon its appreciation of the record, decrees that ₱30,000.00 is a reasonable QUISUMBING,
award of moral damages.38 In addition, AAA was entitled to recover civil SANTIAGO,
indemnity of ₱20,000.00.39 - versus - GUTIERREZ,
CARPIO,
Under Article 2211 of the Civil Code, the courts are vested with the discretion MARTINEZ,
to impose interest as a part of the damages in crimes and quasidelicts. In CORONA,
that regard, the moral damages of ₱20,000.00 shall earn interest of 6% per CARPIO MORALES,
annum reckoned from the finality of this decision until full payment.40 AZCUNA,
TINGA,
WHEREFORE, the Court FINDS and PRONOUNCES petitioner NORBERTO CHICO-NAZARIO,
CRUZ y BARTOLOME guilty of ACTS OF LASCIVIOUSNESS, and, GARCIA,
ACCORDINGLY, PENALIZES him with the indeterminate sentence of three VELASCO, and
(3) months of arresto mayor, as the minimum, to two (2) years, four (4) PEOPLE OF THE PHILIPPINES NACHURA, JJ.
months and one day of prision correccional, as the maximum; ORDERS him and HON. COURT OF APPEALS,
to pay moral damages of ₱30,000.00 and civil indemnity of ₱20,000.00 to the Respondents.
complainant, with interest of 6% per annum on such awards reckoned from Promulgated:
the finality of this decision until full payment; and DIRECTS him to pay the
costs of suit.
June 21, 2007
SO ORDERED.
x----------------------------------------------------------------------------x
LUCAS P. BERSAMIN
Associate Justice
DECISION
TINGA, J.:
This case aims for prime space in the firmament of our criminal law
jurisprudence. Petitioner effectively concedes having performed the felonious
acts imputed against him, but instead insists that as a result, he should be
adjudged guilty of frustrated theft only, not the felony in its consummated
stage of which he was convicted. The proposition rests on a common theory
expounded in two well-known decisions[1] rendered decades ago by the
Court of Appeals, upholding the existence of frustrated theft of which the
accused in both cases were found guilty. However, the rationale behind the
rulings has never been affirmed by this Court.
As far as can be told,[2] the last time this Court extensively considered
whether an accused was guilty of frustrated or consummated theft was in
1918, in People v. Adiao.[3] A more cursory
treatment of the question was followed in 1929, in People v. Sobrevilla,[4]
and in 1984, in Empelis v. IAC.[5] This petition now gives occasion for us to
finally and fully measure if or how frustrated theft is susceptible to
commission under the Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from an
Information[6] charging petitioner Aristotel Valenzuela (petitioner) and Jovy
Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30
p.m., petitioner and Calderon were sighted outside the Super Sale Club, a
supermarket within the ShoeMart (SM) complex along North EDSA, by
Lorenzo Lago (Lago), a security guard who was then manning his post at the
open parking area of the supermarket. Lago saw petitioner, who was wearing
an identification card with the mark Receiving Dispatching Unit (RDU),
hauling a push cart with cases of detergent of the well-known Tide brand.
Petitioner unloaded these cases in an open parking space, where Calderon
was waiting. Petitioner then returned inside the supermarket, and after five
(5) minutes, emerged with more cartons of Tide Ultramatic and again
unloaded these boxes to the same area in the open parking space.[7]
Thereafter, petitioner left the parking area and haled a taxi. He boarded the
cab and directed it towards the parking space where Calderon was waiting.
Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded
the vehicle. All these acts were eyed by Lago, who proceeded to stop the taxi
as it was leaving the open parking area. When Lago asked petitioner for a
receipt of the merchandise, petitioner and Calderon reacted by fleeing on
foot, but Lago fired a warning shot to alert his fellow security guards of the
incident. Petitioner and Calderon were apprehended at the scene, and the
stolen merchandise recovered.[8] The filched items seized from the duo were
four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three
(3) additional cases of detergent, the goods with an aggregate value of
P12,090.00.[9]
Petitioner and Calderon were first brought to the SM security office before
they were transferred on the same day to the Baler Station II of the Philippine
National Police, Quezon City, for investigation. It appears from the police
investigation records that apart from petitioner and Calderon, four (4) other
persons were apprehended by the security guards at the scene and
delivered to police custody at the Baler PNP Station in connection with the
incident. However, after the matter was referred to the Office of the Quezon
City Prosecutor, only petitioner and Calderon were charged with theft by the
Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day
after the incident.[10]
After pleading not guilty on arraignment, at the trial, petitioner and Calderon
both claimed having been innocent bystanders within the vicinity of the Super
Sale Club on the afternoon of 19 May 1994 when they were haled by Lago
and his fellow security guards after a commotion and brought to the Baler
PNP Station. Calderon alleged that on the afternoon of the incident, he was
at the Super Sale Club to withdraw from his ATM account, accompanied by
his neighbor, Leoncio Rosulada.[11] As the queue for the ATM was long,
Calderon and Rosulada decided to buy snacks inside the supermarket. It
was while they were eating that they heard the gunshot fired by Lago,
leading them to head out of the building to check what was
transpiring. As they were outside, they were suddenly grabbed by a security
guard, thus commencing their detention.[12] Meanwhile, petitioner testified
during trial that he and his cousin, a Gregorio Valenzuela,[13] had been at
the parking lot, walking beside the nearby BLISS complex and headed to ride
a tricycle going to Pag-asa, when they saw the security guard Lago fire a
shot. The gunshot caused him and the other people at the scene to start
running, at which point he was apprehended by Lago and brought to the
security office. Petitioner claimed he was detained at the security office until
around 9:00 p.m., at which time he and the others were brought to the Baler
Police Station. At the station, petitioner denied having stolen the cartons of
detergent, but he was detained overnight, and eventually brought to the
prosecutors office where he was charged with theft.[14] During petitioners
cross-examination, he admitted that he had been employed as a bundler of
GMS Marketing, assigned at the supermarket though not at SM.[15]
In a Decision[16] promulgated on 1 February 2000, the Regional Trial Court
(RTC) of Quezon City, Branch 90, convicted both petitioner and Calderon of
the crime of consummated theft. They were sentenced to an indeterminate
prison term of two (2) years of prision correccional as minimum to seven (7)
years of prision mayor as maximum.[17] The RTC found credible the
testimonies of the prosecution witnesses and established the convictions on
the positive identification of the accused as perpetrators of the crime.
Both accused filed their respective Notices of Appeal,[18] but only petitioner
filed a brief[19] with the Court of Appeals, causing the appellate court to
deem Calderons appeal as abandoned and consequently dismissed. Before
the Court of Appeals, petitioner argued that he should only be convicted of
frustrated theft since at the time he was apprehended, he was never placed
in a position to freely dispose of the articles stolen.[20] However, in its
Decision dated 19 June 2003,[21] the Court of Appeals rejected this
contention and affirmed petitioners conviction.[22] Hence the present Petition
for Review,[23] which expressly seeks that petitioners conviction be modified
to only of Frustrated Theft.[24]
Even in his appeal before the Court of Appeals, petitioner effectively
conceded both his felonious intent and his actual participation in the theft of
several cases of detergent with a total value of P12,090.00 of which he was
charged.[25] As such, there is no cause for the Court to consider a factual
scenario other than that presented by the prosecution, as affirmed by the
RTC and the Court of Appeals. The only question to consider is whether
under the given facts, the theft should be deemed as consummated or
merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner
cites[26] two decisions rendered many years ago by the Court of Appeals:
People v. Dio[27] and People v. Flores.[28] Both decisions elicit the interest
of this Court, as they modified trial court convictions from consummated to
frustrated theft and involve a factual milieu that bears similarity to the present
case. Petitioner invoked the same rulings in his appeal to the Court of
Appeals, yet the appellate court did not expressly consider the import of the
rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to the
Dio and Flores rulings since they have not yet been expressly adopted as
precedents by this Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft has not come to
pass before us. Yet despite the silence on our part, Dio and Flores have
attained a level of renown reached by very few other appellate court rulings.
They are comprehensively discussed in the most popular of our criminal law
annotations,[29] and studied in criminal law classes as textbook examples of
frustrated crimes or even as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the fanciful
scenarios that populate criminal law exams more than they actually occur in
real life. Indeed, if we finally say that Dio and Flores are doctrinal, such
conclusion could profoundly influence a multitude of routine theft
prosecutions, including commonplace shoplifting. Any scenario that involves
the thief having to exit with the stolen property through a supervised egress,
such as a supermarket checkout counter or a parking area pay booth, may
easily call for the application of Dio and Flores. The fact that lower courts
have not hesitated to lay down convictions for frustrated theft further
validates that Dio and Flores and the theories offered therein on frustrated
theft have borne some weight in our jurisprudential system. The time is thus
ripe for us to examine whether those theories are correct and should
continue to influence prosecutors and judges in the future.
III.
To delve into any extended analysis of Dio and Flores, as well as the specific
issues relative to frustrated theft, it is necessary to first refer to the basic
rules on the three stages of crimes under our Revised Penal Code.[30]
Article 6 defines those three stages, namely the consummated, frustrated
and attempted felonies. A felony is consummated when all the elements
necessary for its execution and accomplishment are present. It is frustrated
when the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce it by
reason of causes independent of the will of the perpetrator. Finally, it is
attempted when the offender commences the commission of a felony directly
by overt acts, and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other than his own
spontaneous desistance.
Each felony under the Revised Penal Code has a subjective phase, or that
portion of the acts constituting the crime included between the act which
begins the commission of the crime and the last act performed by the
offender which, with prior acts, should result in the consummated crime.[31]
After that point has been breached, the subjective phase ends and the
objective phase begins.[32] It has been held that if the offender never passes
the subjective phase of the offense, the crime is merely attempted.[33] On
the other hand, the subjective phase is completely passed in case of
frustrated crimes, for in such instances, [s]ubjectively the crime is
complete.[34]
Truly, an easy distinction lies between consummated and frustrated felonies
on one hand, and attempted felonies on the other. So long as the offender
fails to complete all the acts of execution despite commencing the
commission of a felony, the crime is undoubtedly in the attempted stage.
Since the specific acts of execution that define each crime under the Revised
Penal Code are generally enumerated in the code itself, the task of
ascertaining whether a crime is attempted only would need to compare the
acts actually performed by the accused as against the acts that constitute the
felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or
consummated necessitates an initial concession that all of the acts of
execution have been performed by the offender. The critical distinction
instead is whether the felony itself was actually produced by the acts of
execution. The determination of whether the felony was produced after all the
acts of execution had been performed hinges on the particular statutory
definition of the felony. It is the statutory definition that generally furnishes the
elements of each crime under the Revised Penal Code, while the elements in
turn unravel the particular requisite acts of execution and accompanying
criminal intent.
The long-standing Latin maxim actus non facit reum, nisi mens sit rea
supplies an important characteristic of a crime, that ordinarily, evil intent must
unite with an unlawful act for there to be a crime, and accordingly, there can
be no crime when the criminal mind is wanting.[35] Accepted in this
jurisdiction as material in crimes mala in se,[36] mens rea has been defined
before as a guilty mind, a guilty or wrongful purpose or criminal intent,[37]
and essential for criminal liability.[38] It follows that the statutory definition of
our mala in se crimes must be able to supply what the mens rea of the crime
is, and indeed the U.S. Supreme Court has comfortably held that a criminal
law that contains no mens rea requirement infringes on constitutionally
protected rights.[39] The criminal statute must also provide for the overt acts
that constitute the crime. For a crime to exist in our legal law, it is not enough
that mens rea be shown; there must also be an actus reus.[40]
It is from the actus reus and the mens rea, as they find expression in the
criminal statute, that the felony is produced. As a postulate in the
craftsmanship of constitutionally sound laws, it is extremely preferable that
the language of the law expressly provide when the felony is produced.
Without such provision, disputes would inevitably ensue on the elemental
question whether or not a crime was committed, thereby presaging the
undesirable and legally dubious set-up under which the judiciary is assigned
the legislative role of defining crimes. Fortunately, our Revised Penal Code
does not suffer from such infirmity. From the statutory definition of any felony,
a decisive passage or term is embedded which attests when the felony is
produced by the acts of execution. For example, the statutory definition of
murder or homicide expressly uses the phrase shall kill another, thus making
it clear that the felony is produced by the death of the victim, and conversely,
it is not produced if the victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the
Revised Penal Code, its elements are spelled out as follows:
Art. 308. Who are liable for theft. Theft is committed by any person who, with
intent to gain but without violence against or intimidation of persons nor force
upon things, shall take personal property of another without the latters
consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same
to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of
another, shall remove or make use of the fruits or object of the damage
caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is
forbidden or which belongs to another and without the consent of its owner,
shall hunt or fish upon the same or shall gather cereals, or other forest or
farm products.
Article 308 provides for a general definition of theft, and three alternative and
highly idiosyncratic means by which theft may be committed.[41] In the
present discussion, we need to concern ourselves only with the general
definition since it was under it that the prosecution of the accused was
undertaken and sustained. On the face of the definition, there is only one
operative act of execution by the actor involved in theft ─ the taking of
personal property of another. It is also clear from the provision that in order
that such taking may be qualified as theft, there must further be present the
descriptive circumstances that the taking was with intent to gain; without
force upon things or violence against or intimidation of persons; and it was
without the consent of the owner of the property.
Indeed, we have long recognized the following elements of theft as provided
for in Article 308 of the Revised Penal Code, namely: (1) that there be taking
of personal property; (2) that said property belongs to another; (3) that the
taking be done with intent to gain; (4) that the taking be done without the
consent of the owner; and (5) that the taking be accomplished without the
use of violence against or intimidation of persons or force upon things.[42]
In his commentaries, Judge Guevarra traces the history of the definition of
theft, which under early Roman law as defined by Gaius, was so broad
enough as to encompass any kind of physical handling of property belonging
to another against the will of the owner,[43] a definition similar to that by
Paulus that a thief handles (touches, moves) the property of another.[44]
However, with the Institutes of Justinian, the idea had taken hold that more
than mere physical handling, there must further be an intent of acquiring gain
from the object, thus: [f]urtum est contrectatio rei fraudulosa, lucri faciendi
causa vel ipsius rei, vel etiam usus ejus possessinisve.[45] This requirement
of animo lucrandi, or intent to gain, was maintained in both the Spanish and
Filipino penal laws, even as it has since been abandoned in Great Britain.[46]
In Spanish law, animo lucrandi was compounded with apoderamiento, or
unlawful taking, to characterize theft. Justice Regalado notes that the
concept of apoderamiento once had a controversial interpretation and
application. Spanish law had already discounted the belief that mere physical
taking was constitutive of apoderamiento, finding that it had to be coupled
with the intent to appropriate the object in order to constitute apoderamiento;
and to appropriate means to deprive the lawful owner of the thing.[47]
However, a conflicting line of cases decided by the Court of Appeals ruled,
alternatively, that there must be permanency in the taking[48] or an intent to
permanently deprive the owner of the stolen property;[49] or that there was
no need for permanency in the taking or in its intent, as the mere temporary
possession by the offender or disturbance of the proprietary rights of the
owner already constituted apoderamiento.[50] Ultimately, as Justice
Regalado notes, the Court adopted the latter thought that there was no need
of an intent to permanently deprive the owner of his property to constitute an
unlawful taking.[51]
So long as the descriptive circumstances that qualify the taking are present,
including animo lucrandi and apoderamiento, the completion of the operative
act that is the taking of personal property of another establishes, at least, that
the transgression went beyond the attempted stage. As applied to the
present case, the moment petitioner obtained physical possession of the
cases of detergent and loaded them in the pushcart, such seizure motivated
by intent to gain, completed without need to inflict violence or intimidation
against persons nor force upon things, and accomplished without the
consent of the SM Super Sales Club, petitioner forfeited the extenuating
benefit a conviction for only attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated theft,
we are obliged to apply Article 6 of the Revised Penal Code to ascertain the
answer. Following that provision, the theft would have been frustrated only,
once the acts committed by petitioner, if ordinarily sufficient to produce theft
as a consequence, do not produce [such theft] by reason of causes
independent of the will of the perpetrator. There are clearly two determinative
factors to consider: that the felony is not produced, and that such failure is
due to causes independent of the will of the perpetrator. The second factor
ultimately depends on the evidence at hand in each particular case. The first,
however, relies primarily on a doctrinal definition attaching to the individual
felonies in the Revised Penal Code[52] as to when a particular felony is not
produced, despite the commission of all the acts of execution.
So, in order to ascertain whether the theft is consummated or frustrated, it is
necessary to inquire as to how exactly is the felony of theft produced.
Parsing through the statutory definition of theft under Article 308, there is one
apparent answer provided in the language of the law that theft is already
produced upon the tak[ing of] personal property of another without the latters
consent.
U.S. v. Adiao[53] apparently supports that notion. Therein, a customs
inspector was charged with theft after he abstracted a leather belt from the
baggage of a foreign national and secreted the item in his desk at the
Custom House. At no time was the accused able to get the merchandise out
of the Custom House, and it appears that he was under observation during
the entire transaction.[54] Based apparently on those two circumstances, the
trial court had found him guilty, instead, of frustrated theft. The Court
reversed, saying that neither circumstance was decisive, and holding instead
that the accused was guilty of consummated theft, finding that all the
elements of the completed crime of theft are present.[55] In support of its
conclusion that the theft was consummated, the Court cited three (3)
decisions of the Supreme Court of Spain, the discussion of which we
replicate below:
The defendant was charged with the theft of some fruit from the land of
another. As he was in the act of taking the fruit[,] he was seen by a
policeman, yet it did not appear that he was at that moment caught by the
policeman but sometime later. The court said: "[x x x] The trial court did not
err [x x x ] in considering the crime as that of consummated theft instead of
frustrated theft inasmuch as nothing appears in the record showing that the
policemen who saw the accused take the fruit from the adjoining land
arrested him in the act and thus prevented him from taking full possession of
the thing stolen and even its utilization by him for an interval of time."
(Decision of the Supreme Court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter was
hearing mass in a church. The latter on account of the solemnity of the act,
although noticing the theft, did not do anything to prevent it. Subsequently,
however, while the defendant was still inside the church, the offended party
got back the money from the defendant. The court said that the defendant
had performed all the acts of execution and considered the theft as
consummated. (Decision of the Supreme Court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of a
key opened up a case, and from the case took a small box, which was also
opened with a key, from which in turn he took a purse containing 461 reales
and 20 centimos, and then he placed the money over the cover of the case;
just at this moment he was caught by two guards who were stationed in
another room near-by. The court considered this as consummated robbery,
and said: "[x x x] The accused [x x x] having materially taken possession of
the money from the moment he took it from the place where it had been, and
having taken it with his hands with intent to appropriate the same, he
executed all the acts necessary to constitute the crime which was thereby
produced; only the act of making use of the thing having been frustrated,
which, however, does not go to make the elements of the consummated
crime." (Decision of the Supreme Court of Spain, June 13, 1882.)[56]
It is clear from the facts of Adiao itself, and the three (3) Spanish decisions
cited therein, that the criminal actors in all these cases had been able to
obtain full possession of the personal property prior to their apprehension.
The interval between the commission of the acts of theft and the
apprehension of the thieves did vary, from sometime later in the 1898
decision; to the very moment the thief had just extracted the money in a
purse which had been stored as it was in the 1882 decision; and before the
thief had been able to spirit the item stolen from the building where the theft
took place, as had happened in Adiao and the 1897 decision. Still, such
intervals proved of no consequence in those cases, as it was ruled that the
thefts in each of those cases was consummated by the actual possession of
the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was
guilty only of frustrated rather than consummated theft. The case is People v.
Sobrevilla,[57] where the accused, while in the midst of a crowd in a public
market, was already able to abstract a pocketbook from the trousers of the
victim when the latter, perceiving the theft, caught hold of the [accused]s
shirt-front, at the same time shouting for a policeman; after a struggle, he
recovered his pocket-book and let go of the defendant, who was afterwards
caught by a policeman.[58] In rejecting the contention that only frustrated
theft was established, the Court simply said, without further comment or
elaboration:
We believe that such a contention is groundless. The [accused] succeeded in
taking the pocket-book, and that determines the crime of theft. If the pocket-
book was afterwards recovered, such recovery does not affect the
[accuseds] criminal liability, which arose from the [accused] having
succeeded in taking the pocket-book.[59]
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme
Court cases cited in the latter, in that the fact that the offender was able to
succeed in obtaining physical possession of the stolen item, no matter how
momentary, was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein
contradict the position of petitioner in this case. Yet to simply affirm without
further comment would be disingenuous, as there is another school of
thought on when theft is consummated, as reflected in the Dio and Flores
decisions.
Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao
and 15 years before Flores. The accused therein, a driver employed by the
United States Army, had driven his truck into the port area of the South
Harbor, to unload a truckload of materials to waiting U.S. Army personnel.
After he had finished unloading, accused drove away his truck from the Port,
but as he was approaching a checkpoint of the Military Police, he was
stopped by an M.P. who inspected the truck and found therein three boxes of
army rifles. The accused later contended that he had been stopped by four
men who had loaded the boxes with the agreement that they were to meet
him and retrieve the rifles after he had passed the checkpoint. The trial court
convicted accused of consummated theft, but the Court of Appeals modified
the conviction, holding instead that only frustrated theft had been committed.
In doing so, the appellate court pointed out that the evident intent of the
accused was to let the boxes of rifles pass through the checkpoint, perhaps
in the belief that as the truck had already unloaded its cargo inside the depot,
it would be allowed to pass through the check point without further
investigation or checking.[60] This point was deemed material and indicative
that the theft had not been fully produced, for the Court of Appeals
pronounced that the fact determinative of consummation is the ability of the
thief to dispose freely of the articles stolen, even if it were more or less
momentary.[61] Support for this proposition was drawn from a decision of the
Supreme Court of Spain dated 24 January 1888 (1888 decision), which was
quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea
determinate de la consumacion del delito de hurto es preciso que so haga en
circunstancias tales que permitan al sustractor la libre disposicion de aquella,
siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el
concepto del delito de hurto, no puede decirse en realidad que se haya
producido en toda su extension, sin materializar demasiado el acto de tomar
la cosa ajena.[62]
Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make the booty
subject to the control and disposal of the culprits, the articles stolen must first
be passed through the M.P. check point, but since the offense was
opportunely discovered and the articles seized after all the acts of execution
had been performed, but before the loot came under the final control and
disposal of the looters, the offense can not be said to have been fully
consummated, as it was frustrated by the timely intervention of the guard.
The offense committed, therefore, is that of frustrated theft.[63]
Dio thus laid down the theory that the ability of the actor to freely dispose of
the items stolen at the time of apprehension is determinative as to whether
the theft is consummated or frustrated. This theory was applied again by the
Court of Appeals some 15 years later, in Flores, a case which according to
the division of the court that decided it, bore no substantial variance between
the circumstances [herein] and in [Dio].[64] Such conclusion is borne out by
the facts in Flores. The accused therein, a checker employed by the Luzon
Stevedoring Company, issued a delivery receipt for one empty sea van to the
truck driver who had loaded the purportedly empty sea van onto his truck at
the terminal of the stevedoring company. The truck driver proceeded to show
the delivery receipt to the guard on duty at the gate of the terminal. However,
the guards insisted on inspecting the van, and discovered that the empty sea
van had actually contained other merchandise as well.[65] The accused was
prosecuted for theft qualified by abuse of confidence, and found himself
convicted of the consummated crime. Before the Court of Appeals, accused
argued in the alternative that he was guilty only of attempted theft, but the
appellate court pointed out that there was no intervening act of spontaneous
desistance on the part of the accused that literally frustrated the theft.
However, the Court of Appeals, explicitly relying on Dio, did find that the
accused was guilty only of frustrated, and not consummated, theft.
As noted earlier, the appellate court admitted it found no substantial variance
between Dio and Flores then before it. The prosecution in Flores had sought
to distinguish that case from Dio, citing a traditional ruling which unfortunately
was not identified in the decision itself. However, the Court of Appeals
pointed out that the said traditional ruling was qualified by the words is
placed in a situation where [the actor] could dispose of its contents at
once.[66] Pouncing on this qualification, the appellate court noted that
[o]bviously, while the truck and the van were still within the compound, the
petitioner could not have disposed of the goods at once. At the same time,
the Court of Appeals conceded that [t]his is entirely different from the case
where a much less bulk and more common thing as money was the object of
the crime, where freedom to dispose of or make use of it is palpably less
restricted,[67] though no further qualification was offered what the effect
would have been had that alternative circumstance been present instead.
Synthesis of the Dio and Flores rulings is in order. The determinative
characteristic as to whether the crime of theft was produced is the ability of
the actor to freely dispose of the articles stolen, even if it were only
momentary. Such conclusion was drawn from an 1888 decision of the
Supreme Court of Spain which had pronounced that in determining whether
theft had been consummated, es preciso que so haga en circunstancias
tales que permitan al sustractor de aquella, siquiera sea mas o menos
momentaneamente. The qualifier siquiera sea mas o menos
momentaneamente proves another important consideration, as it implies that
if the actor was in a capacity to freely dispose of the stolen items before
apprehension, then the theft could be deemed consummated. Such
circumstance was not present in either Dio or Flores, as the stolen items in
both cases were retrieved from the actor before they could be physically
extracted from the guarded compounds from which the items were filched.
However, as implied in Flores, the character of the item stolen could lead to a
different conclusion as to whether there could have been free disposition, as
in the case where the chattel involved was of much less bulk and more
common x x x, [such] as money x x x.[68]
In his commentaries, Chief Justice Aquino makes the following pointed
observation on the import of the Dio ruling:
There is a ruling of the Court of Appeals that theft is consummated when the
thief is able to freely dispose of the stolen articles even if it were more or less
momentary. Or as stated in another case[[69]], theft is consummated upon
the voluntary and malicious taking of property belonging to another which is
realized by the material occupation of the thing whereby the thief places it
under his control and in such a situation that he could dispose of it at once.
This ruling seems to have been based on Viadas opinion that in order the
theft may be consummated, es preciso que se haga en circumstancias x x x
[[70]][71]
In the same commentaries, Chief Justice Aquino, concluding from Adiao and
other cases, also states that [i]n theft or robbery the crime is consummated
after the accused had material possession of the thing with intent to
appropriate the same, although his act of making use of the thing was
frustrated.[72]
There are at least two other Court of Appeals rulings that are at seeming
variance with the Dio and Flores rulings. People v. Batoon[73] involved an
accused who filled a container with gasoline from a petrol pump within view
of a police detective, who followed the accused onto a passenger truck
where the arrest was made. While the trial court found the accused guilty of
frustrated qualified theft, the Court of Appeals held that the accused was
guilty of consummated qualified theft, finding that [t]he facts of the cases of
U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual taking
with intent to gain is enough to consummate the crime of theft.[74]
In People v. Espiritu,[75] the accused had removed nine pieces of hospital
linen from a supply depot and loaded them onto a truck. However, as the
truck passed through the checkpoint, the stolen items were discovered by the
Military Police running the checkpoint. Even though those facts clearly admit
to similarity with those in Dio, the Court of Appeals held that the accused
were guilty of consummated theft, as the accused were able to take or get
hold of the hospital linen and that the only thing that was frustrated, which
does not constitute any element of theft, is the use or benefit that the thieves
expected from the commission of the offense.[76]
In pointing out the distinction between Dio and Espiritu, Reyes wryly
observes that [w]hen the meaning of an element of a felony is controversial,
there is bound to arise different rulings as to the stage of execution of that
felony.[77] Indeed, we can discern from this survey of jurisprudence that the
state of the law insofar as frustrated theft is concerned is muddled. It fact,
given the disputed foundational basis of the concept of frustrated theft itself,
the question can even be asked whether there is really such a crime in the
first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty of
frustrated, and not consummated, theft. As we undertake this inquiry, we
have to reckon with the import of this Courts 1984 decision in Empelis v.
IAC.[78]
As narrated in Empelis, the owner of a coconut plantation had espied four (4)
persons in the premises of his plantation, in the act of gathering and tying
some coconuts. The accused were surprised by the owner within the
plantation as they were carrying with them the coconuts they had gathered.
The accused fled the scene, dropping the coconuts they had seized, and
were subsequently arrested after the owner reported the incident to the
police. After trial, the accused were convicted of qualified theft, and the issue
they raised on appeal was that they were guilty only of simple theft. The
Court affirmed that the theft was qualified, following Article 310 of the
Revised Penal Code,[79] but further held that the accused were guilty only of
frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the
theft was consummated or frustrated was raised by any of the parties. What
does appear, though, is that the disposition of that issue was contained in
only two sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft because
petitioners were not able to perform all the acts of execution which should
have produced the felony as a consequence. They were not able to carry the
coconuts away from the plantation due to the timely arrival of the owner.[80]
No legal reference or citation was offered for this averment, whether Dio,
Flores or the Spanish authorities who may have bolstered the conclusion.
There are indeed evident problems with this formulation in Empelis.
Empelis held that the crime was only frustrated because the actors were not
able to perform all the acts of execution which should have produced the
felon as a consequence.[81] However, per Article 6 of the Revised Penal
Code, the crime is frustrated when the offender performs all the acts of
execution, though not producing the felony as a result. If the offender was not
able to perform all the acts of execution, the crime is attempted, provided that
the non-performance was by reason of some cause or accident other than
spontaneous desistance. Empelis concludes that the crime was
frustrated because not all of the acts of execution were performed due to the
timely arrival of the owner. However, following Article 6 of the Revised Penal
Code, these facts should elicit the conclusion that the crime was only
attempted, especially given that the acts were not performed because of the
timely arrival of the owner, and not because of spontaneous desistance by
the offenders.
For these reasons, we cannot attribute weight to Empelis as we consider the
present petition. Even if the two sentences we had cited actually aligned with
the definitions provided in Article 6 of the Revised Penal Code, such passage
bears no reflection that it is the product of the considered evaluation of the
relevant legal or jurisprudential thought. Instead, the passage is offered as if
it were sourced from an indubitable legal premise so settled it required no
further explication.
Notably, Empelis has not since been reaffirmed by the Court, or even cited
as authority on theft. Indeed, we cannot see how Empelis can contribute to
our present debate, except for the bare fact that it proves that the Court had
once deliberately found an accused guilty of frustrated theft. Even if Empelis
were considered as a precedent for frustrated theft, its doctrinal value is
extremely compromised by the erroneous legal premises that inform it, and
also by the fact that it has not been entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given that
frustrated theft is viable in this jurisdiction. Considering the flawed reasoning
behind its conclusion of frustrated theft, it cannot present any efficacious
argument to persuade us in this case. Insofar as Empelis may imply that
convictions for frustrated theft are beyond cavil in this jurisdiction, that
decision is subject to reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo
Penal de Espaa was then in place. The definition of the crime of theft, as
provided then, read as follows:
Son reos de hurto:
1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas
ni fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad de su
dueo.
2. Los que encontrndose una cosa perdida y sabiendo quin es su dueo se
la apropriaren co intencin de lucro.
3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao
causado, salvo los casos previstos en los artίculos 606, nm. 1.0; 607, nms,
1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish
Supreme Court decisions were handed down. However, the said code would
be revised again in 1932, and several times thereafter. In fact, under the
Codigo Penal Espaol de 1995, the crime of theft is now simply defined as [e]l
que, con nimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueo ser
castigado[82]
Notice that in the 1870 and 1995 definition of theft in the penal code of Spain,
la libre disposicion of the property is not an element or a statutory
characteristic of the crime. It does appear that the principle originated and
perhaps was fostered in the realm of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his 1926
commentaries on the 1870 Codigo Penal de Espaa. Therein, he raised at
least three questions for the reader whether the crime of frustrated or
consummated theft had occurred. The passage cited in Dio was actually
utilized by Viada to answer the question whether frustrated or consummated
theft was committed [e]l que en el momento mismo de apoderarse de la cosa
ajena, vindose sorprendido, la arroja al suelo.[83] Even as the answer was
as stated in Dio, and was indeed derived from the 1888 decision of the
Supreme Court of Spain, that decisions factual predicate occasioning the
statement was apparently very different from Dio, for it appears that the 1888
decision involved an accused who was surprised by the employees of a
haberdashery as he was abstracting a layer of clothing off a mannequin, and
who then proceeded to throw away the garment as he fled.[84]
Nonetheless, Viada does not contest the notion of frustrated theft, and
willingly recites decisions of the Supreme Court of Spain that have held to
that effect.[85] A few decades later, the esteemed Eugenio Cuello Caln
pointed out the inconsistent application by the Spanish Supreme Court with
respect to frustrated theft.
Hay frustracin cuando los reos fueron sorprendidos por las guardias cuando
llevaban los sacos de harino del carro que los conducia a otro que tenan
preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la
intervencin de la policia situada en el local donde se realiz la sustraccin que
impidi pudieran los reos disponer de lo sustrado, 30 de octubre 1950. Hay
"por lo menos" frustracin, si existe apoderamiento, pero el culpale no llega a
disponer de la cosa, 12 abril 1930; hay frustracin "muy prxima" cuando el
culpable es detenido por el perjudicado acto seguido de cometer la
sustraccin, 28 febrero 1931. Algunos fallos han considerado la existencia de
frustracin cuando, perseguido el culpable o sorprendido en el momento de
llevar los efectos hurtados, los abandona, 29 mayo 1889, 22 febrero 1913,
11 marzo 1921; esta doctrina no es admissible, stos, conforme a lo antes
expuesto, son hurtos consumados.[86]
Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually
possible:
La doctrina hoy generalmente sustentada considera que el hurto se
consuma cuando la cosa queda de hecho a la disposicin del agente. Con
este criterio coincide la doctrina sentada ltimamente porla jurisprudencia
espaola que generalmente considera consumado el hurto cuando el culpable
coge o aprehende la cosa y sta quede por tiempo ms o menos duradero bajo
su poder. El hecho de que ste pueda aprovecharse o no de lo hurtado es
indiferente. El delito no pierde su carcter de consumado aunque la cosa
hurtada sea devuelta por el culpable o fuere recuperada. No se concibe la
frustracin, pues es muy dificil que el que hace cuanto es necesario para la
consumacin del hurto no lo consume efectivamente, los raros casos que
nuestra jurisprudencia, muy vacilante, declara hurtos frustrados son
verdaderos delitos consumados.[87] (Emphasis supplied)
Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was
content with replicating the Spanish Supreme Court decisions on the matter,
Cuello Caln actually set forth his own thought that questioned whether theft
could truly be frustrated, since pues es muy dificil que el que hace cuanto es
necesario para la consumacin del hurto no lo consume efectivamente.
Otherwise put, it would be difficult to foresee how the execution of all the acts
necessary for the completion of the crime would not produce the effect of
theft.
This divergence of opinion convinces us, at least, that there is no weighted
force in scholarly thought that obliges us to accept frustrated theft, as
proposed in Dio and Flores. A final ruling by the Court that there is no crime
of frustrated theft in this jurisdiction will not lead to scholastic pariah, for such
a submission is hardly heretical in light of Cuello Calns position.
Accordingly, it would not be intellectually disingenuous for the Court to look
at the question from a fresh perspective, as we are not bound by the opinions
of the respected Spanish commentators, conflicting as they are, to accept
that theft is capable of commission in its frustrated stage. Further, if we ask
the question whether there is a mandate of statute or precedent that must
compel us to adopt the Dio and Flores doctrines, the answer has to be in the
negative. If we did so, it would arise not out of obeisance to an inexorably
higher command, but from the exercise of the function of statutory
interpretation that comes as part and parcel of judicial review, and a function
that allows breathing room for a variety of theorems in competition until one
is ultimately adopted by this Court.
V.
The foremost predicate that guides us as we explore the matter is that it lies
in the province of the legislature, through statute, to define what constitutes a
particular crime in this jurisdiction. It is the legislature, as representatives of
the sovereign people, which determines which acts or combination of acts
are criminal in nature. Judicial interpretation of penal laws should be aligned
with what was the evident legislative intent, as expressed primarily in the
language of the law as it defines the crime. It is Congress, not the courts,
which is to define a crime, and ordain its punishment.[88] The courts cannot
arrogate the power to introduce a new element of a crime which was
unintended by the legislature, or redefine a crime in a manner that does not
hew to the statutory language. Due respect for the prerogative of Congress in
defining crimes/felonies constrains the Court to refrain from a broad
interpretation of penal laws where a narrow interpretation is appropriate. The
Court must take heed of language, legislative history and purpose, in order to
strictly determine the wrath and breath of the conduct the law forbids.[89]
With that in mind, a problem clearly emerges with the Dio/Flores dictum. The
ability of the offender to freely dispose of the property stolen is not a
constitutive element of the crime of theft. It finds no support or extension in
Article 308, whether as a descriptive or operative element of theft or as the
mens rea or actus reus of the felony. To restate what this Court has
repeatedly held: the elements of the crime of theft as provided for in Article
308 of the Revised Penal Code are: (1) that there be taking of personal
property; (2) that said property belongs to another; (3) that the taking be
done with intent to gain; (4) that the taking be done without the consent of the
owner; and (5) that the taking be accomplished without the use of violence
against or intimidation of persons or force upon things.[90]
Such factor runs immaterial to the statutory definition of theft, which is the
taking, with intent to gain, of personal property of another without the latters
consent. While the Dio/Flores dictum is considerate to the mindset of the
offender, the statutory definition of theft considers only the perspective of
intent to gain on the part of the offender, compounded by the deprivation of
property on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of commission in
the frustrated stage, the question is again, when is the crime of theft
produced? There would be all but certain unanimity in the position that theft
is produced when there is deprivation of personal property due to its taking
by one with intent to gain. Viewed from that perspective, it is immaterial to
the product of the felony that the offender, once having committed all the acts
of execution for theft, is able or unable to freely dispose of the property stolen
since the deprivation from the owner alone has already ensued from such
acts of execution. This conclusion is reflected in Chief Justice Aquinos
commentaries, as earlier cited, that [i]n theft or robbery the crime is
consummated after the accused had material possession of the thing with
intent to appropriate the same, although his act of making use of the thing
was frustrated.[91]
It might be argued, that the ability of the offender to freely dispose of the
property stolen delves into the concept of taking itself, in that there could be
no true taking until the actor obtains such degree of control over the stolen
item. But even if this were correct, the effect would be to downgrade the
crime to its attempted, and not frustrated stage, for it would mean that not all
the acts of execution have not been completed, the taking not having been
accomplished. Perhaps this point could serve as fertile ground for future
discussion, but our concern now is whether there is indeed a crime of
frustrated theft, and such consideration proves ultimately immaterial to that
question. Moreover, such issue will not apply to the facts of this particular
case. We are satisfied beyond reasonable doubt that the taking by the
petitioner was completed in this case. With intent to gain, he acquired
physical possession of the stolen cases of detergent for a considerable
period of time that he was able to drop these off at a spot in the parking lot,
and long enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is
deemed complete from the moment the offender gains possession of the
thing, even if he has no opportunity to dispose of the same.[92] And long
ago, we asserted in People v. Avila:[93]
x x x [T]he most fundamental notion in the crime of theft is the taking of the
thing to be appropriated into the physical power of the thief, which idea is
qualified by other conditions, such as that the taking must be effected animo
lucrandi and without the consent of the owner; and it will be here noted that
the definition does not require that the taking should be effected against the
will of the owner but merely that it should be without his consent, a distinction
of no slight importance.[94]
Insofar as we consider the present question, unlawful taking is most material
in this respect. Unlawful taking, which is the deprivation of ones personal
property, is the element which produces the felony in its consummated stage.
At the same time, without unlawful taking as an act of execution, the offense
could only be attempted theft, if at all.
With these considerations, we can only conclude that under Article 308 of the
Revised Penal Code, theft cannot have a frustrated stage. Theft can only be
attempted or consummated.
Neither Dio nor Flores can convince us otherwise. Both fail to consider that
once the offenders therein obtained possession over the stolen items, the
effect of the felony has been produced as there has been deprivation of
property. The presumed inability of the offenders to freely dispose of the
stolen property does not negate the fact that the owners have already been
deprived of their right to possession upon the completion of the taking.
Moreover, as is evident in this case, the adoption of the rule that the inability
of the offender to freely dispose of the stolen property frustrates the theft
would introduce a convenient defense for the accused which does not reflect
any legislated intent,[95] since the Court would have carved a viable means
for offenders to seek a mitigated penalty under applied circumstances that do
not admit of easy classification. It is difficult to formulate definite standards as
to when a stolen item is susceptible to free disposal by the thief. Would this
depend on the psychological belief of the offender at the time of the
commission of the crime, as implied in Dio?
Or, more likely, the appreciation of several classes of factual circumstances
such as the size and weight of the property, the location of the property, the
number and identity of people present at the scene of the crime, the number
and identity of people whom the offender is expected to encounter upon
fleeing with the stolen property, the manner in which the stolen item had
been housed or stored; and quite frankly, a whole lot more. Even the
fungibility or edibility of the stolen item would come into account, relevant as
that would be on whether such property is capable of free disposal at any
stage, even after the taking has been consummated.
All these complications will make us lose sight of the fact that beneath all the
colorful detail, the owner was indeed deprived of property by one who
intended to produce such deprivation for reasons of gain. For such will
remain the presumed fact if frustrated theft were recognized, for therein, all of
the acts of execution, including the taking, have been completed. If the facts
establish the non-completion of the taking due to these peculiar
circumstances, the effect could be to downgrade the crime to the attempted
stage, as not all of the acts of execution have been performed. But once all
these acts have been executed, the taking has been completed, causing the
unlawful deprivation of property, and ultimately the consummation of the
theft.
Maybe the Dio/Flores rulings are, in some degree, grounded in common
sense. Yet they do not align with the legislated framework of the crime of
theft. The Revised Penal Code provisions on theft have not been designed in
such fashion as to accommodate said rulings. Again, there is no language in
Article 308 that expressly or impliedly allows that the free disposition of the
items stolen is in any way determinative of whether the crime of theft has
been produced. Dio itself did not rely on Philippine laws or jurisprudence to
bolster its conclusion, and the later Flores was ultimately content in relying
on Dio alone for legal support. These cases do not enjoy the weight of stare
decisis, and even if they did, their erroneous appreciation of our law on theft
leave them susceptible to reversal. The same holds true of Empilis, a
regrettably stray decision which has not since found favor from this Court.
We thus conclude that under the Revised Penal Code, there is no crime of
frustrated theft. As petitioner has latched the success of his appeal on our
acceptance of the Dio and Flores rulings, his petition must be denied, for we
decline to adopt said rulings in our jurisdiction. That it has taken all these
years for us to recognize that there can be no frustrated theft under the
Revised Penal Code does not detract from the correctness of this conclusion.
It will take considerable amendments to our Revised Penal Code in order
that frustrated theft may be recognized. Our deference to Viada yields to the
higher reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
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 decision1 of the Court of
Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in its March 31, 1999
resolution2 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 information4 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) ΣΦ’ 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 …:
"0130H Baleros 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
Exh ‘C’ – One (1) night dress colored salmon pink.
2) One (1) small white pl astic 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 decision10 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.1avvphil.net
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 ₱5.00 to
₱200.00 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 ₱200.00, with the accessory penalties thereof and to pay the
costs.
SO ORDERED.
CANCIO C. GARCIA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Associate Justice
Chairperson
G.R. No. L-26298 January 20, 1927

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
JULIAN ERINIA Y VINOLLA, defendant-appellant.
Hermogenes Caluag for appellant.
Attorney-General Jaranilla for appellee.
OSTRAND, J.:
This is an appeal from a judgment of the Court of First Instance of Manila
finding the defendant guilty of the crime of consummated rape and
sentencing him to suffer seventeen years, four months and one day of
reclusion temporal, with the accessory penalties provided by law and to pay
the costs.
The victim of the crime was a child of 3 years and 11 months old and the
evidence is conclusive that the defendant endeavored to have carnal
intercourse with her, but there may be some doubt whether he succeeded in
penetrating the vagina before being disturbed by the timely intervention of
the mother and the sister of the child. The physician who examined the
genital organ of the child a few hours after the commission of the crime found
a slight inflammation of the exterior parts of the organ, indicating that an
effort had been made to enter the vagina, but in testifying before the court he
expressed doubts as to whether the entry had been effected. The mother of
the child testified that she found its genital organ covered with a sticky
substance, but that cannot be considered conclusive evidence of penetration.
It has been suggested that the child was of such tender age that penetration
was impossible; that the crime of rape consequently was impossible of
consummation; and that, therefore, the offense committed should be treated
only as abusos deshonestos. We do not think so. It is probably true that a
complete penetration was impossible, but such penetration is not essential to
the commission of the crime; it is sufficient if there is a penetration of the
labia. In the case of Kenny vs. State ([Tex. Crim. App.], 79 S. W., 817; 65 L.
R. A., 316) where the offended party was a child of the age of 3 years and 8
months the testimony of several physicians was to the effect that her labia of
the privates of a child of that age can be entered by a man's male organ to
the hymen and the defendant was found guilty of the consummated crime
rape.
There being no conclusive evidence of penetration of the genital organ of the
offended party, the defendant is entitled to the benefit of the doubt and can
only be found guilty of frustrated rape, but in view of the fact that he was
living in the house of the parents of the child as their guest, the aggravating
circumstance of abuse of confidence existed and the penalty must therefore
be imposed in its maximum degree.
The judgment appealed from is modified and the defendant-appellant is
hereby found guilty of the crime of frustrated rape and is sentenced to suffer
twelve years of prision mayor, with the accessory penalties prescribed by
law, and with the costs in both instances. So ordered.
Johnson, Street, Villamor, Romualdez and Villa-Real, JJ., concur.
Separate Opinions
MALCOLM, J., dissenting:
In my opinion, the accused is guilty of raping a child 3 years and 11 months
of age. It is consummated rape according to the evidence of record, the
findings of the trial judge, and our decisions. (People vs. Hernandez [1925],
49 Phil., 980; People vs. Oscar [1925], 48 Phil., 527.) The instant case is on
all fours with the case of Kenney vs. State (65 L. R. A., 316), cited in the
majority decision. In the Kenny case, the penalty was death, and here for this
horrible crime, should be placed in the maximum degree or seventeen years,
four months, and one day imprisonment, as imposed by the trial court.
Accordingly, my vote is for affirmance of the judgment.
G.R. No. 153675 April 19, 2007
GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION,
represented by the Philippine Department of Justice, Petitioner,
vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUÑOZ,
Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Certiorari under Rule 65 of the
1997 Rules of Civil Procedure, as amended, seeking to nullify the two Orders
of the Regional Trial Court (RTC), Branch 8, Manila (presided by respondent
Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are:
(1) the Order dated December 20, 2001 allowing Juan Antonio Muñoz,
private respondent, to post bail; and (2) the Order dated April 10, 2002
denying the motion to vacate the said Order of December 20, 2001 filed by
the Government of Hong Kong Special Administrative Region, represented
by the Philippine Department of Justice (DOJ), petitioner. The petition alleges
that both Orders were issued by respondent judge with grave abuse of
discretion amounting to lack or excess of jurisdiction as there is no provision
in the Constitution granting bail to a potential extraditee.
The facts are:
On January 30, 1995, the Republic of the Philippines and the then British
Crown Colony of Hong Kong signed an "Agreement for the Surrender of
Accused and Convicted Persons." It took effect on June 20, 1997.
On July 1, 1997, Hong Kong reverted back to the People’s Republic of China
and became the Hong Kong Special Administrative Region.
Private respondent Muñoz was charged before the Hong Kong Court with
three (3) counts of the offense of "accepting an advantage as agent," in
violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201
of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to
defraud, penalized by the common law of Hong Kong. On August 23, 1997
and October 25, 1999, warrants of arrest were issued against him. If
convicted, he faces a jail term of seven (7) to fourteen (14) years for each
charge.
On September 13, 1999, the DOJ received from the Hong Kong Department
of Justice a request for the provisional arrest of private respondent. The DOJ
then forwarded the request to the National Bureau of Investigation (NBI)
which, in turn, filed with the RTC of Manila, Branch 19 an application for the
provisional arrest of private respondent.
On September 23, 1999, the RTC, Branch 19, Manila issued an Order of
Arrest against private respondent. That same day, the NBI agents arrested
and detained him.
On October 14, 1999, private respondent filed with the Court of Appeals a
petition for certiorari, prohibition and mandamus with application for
preliminary mandatory injunction and/or writ of habeas corpus questioning
the validity of the Order of Arrest.
On November 9, 1999, the Court of Appeals rendered its Decision declaring
the Order of Arrest void.
On November 12, 1999, the DOJ filed with this Court a petition for review on
certiorari, docketed as G.R. No. 140520, praying that the Decision of the
Court of Appeals be reversed.
On December 18, 2000, this Court rendered a Decision granting the petition
of the DOJ and sustaining the validity of the Order of Arrest against private
respondent. The Decision became final and executory on April 10, 2001.
Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special
Administrative Region filed with the RTC of Manila a petition for the
extradition of private respondent, docketed as Civil Case No. 99-95733,
raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his
part, private respondent filed, in the same case,- a petition for bail which was
opposed by petitioner.
After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order
denying the petition for bail, holding that there is no Philippine law granting
bail in extradition cases and that private respondent is a high "flight risk."
On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further
hearing Civil Case No. 99-95733. It was then raffled off to Branch 8 presided
by respondent judge.
On October 30, 2001, private respondent filed a motion for reconsideration of
the Order denying his application for bail. This was granted by respondent
judge in an Order dated December 20, 2001 allowing private respondent to
post bail, thus:
In conclusion, this Court will not contribute to accused’s further erosion of
civil liberties. The petition for bail is granted subject to the following
conditions:
1. Bail is set at Php750,000.00 in cash with the condition that accused
hereby undertakes that he will appear and answer the issues raised in these
proceedings and will at all times hold himself amenable to orders and
processes of this Court, will further appear for judgment. If accused fails in
this undertaking, the cash bond will be forfeited in favor of the government;
2. Accused must surrender his valid passport to this Court;
3. The Department of Justice is given immediate notice and discretion of
filing its own motion for hold departure order before this Court even in
extradition proceeding; and
4. Accused is required to report to the government prosecutors handling this
case or if they so desire to the nearest office, at any time and day of the
week; and if they further desire, manifest before this Court to require that all
the assets of accused, real and personal, be filed with this Court soonest,
with the condition that if the accused flees from his undertaking, said assets
be forfeited in favor of the government and that the corresponding
lien/annotation be noted therein accordingly.
SO ORDERED.
On December 21, 2001, petitioner filed an urgent motion to vacate the above
Order, but it was denied by respondent judge in his Order dated April 10,
2002.
Hence, the instant petition. Petitioner alleged that the trial court committed
grave abuse of discretion amounting to lack or excess of jurisdiction in
admitting private respondent to bail; that there is nothing in the Constitution
or statutory law providing that a potential extraditee has a right to bail, the
right being limited solely to criminal proceedings.
In his comment on the petition, private respondent maintained that the right
to bail guaranteed under the Bill of Rights extends to a prospective
extraditee; and that extradition is a harsh process resulting in a prolonged
deprivation of one’s liberty.
Section 13, Article III of the Constitution provides that the right to bail shall
not be impaired, thus:
Sec. 13. All persons, except those charged with offenses punishable by
reclusion perpetua when evidence of guilt is strong, shall, before conviction,
be bailable by sufficient sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. Excessive bail shall not
be required.
Jurisprudence on extradition is but in its infancy in this jurisdiction.
Nonetheless, this is not the first time that this Court has an occasion to
resolve the question of whether a prospective extraditee may be granted bail.
In Government of United States of America v. Hon. Guillermo G. Purganan,
Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a.
Mario Batacan Crespo,1 this Court, speaking through then Associate Justice
Artemio V. Panganiban, later Chief Justice, held that the constitutional
provision on bail does not apply to extradition proceedings. It is "available
only in criminal proceedings," thus:
x x x. As suggested by the use of the word "conviction," the constitutional
provision on bail quoted above, as well as Section 4, Rule 114 of the Rules
of Court, applies only when a person has been arrested and detained for
violation of Philippine criminal laws. It does not apply to extradition
proceedings because extradition courts do not render judgments of
conviction or acquittal.
Moreover, the constitutional right to bail "flows from the presumption of
innocence in favor of every accused who should not be subjected to the loss
of freedom as thereafter he would be entitled to acquittal, unless his guilt be
proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6,
September 17, 1971, per Fernando, J., later CJ). It follows that the
constitutional provision on bail will not apply to a case like extradition, where
the presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is suspended"
does not detract from the rule that the constitutional right to bail is available
only in criminal proceedings. It must be noted that the suspension of the
privilege of the writ of habeas corpus finds application "only to persons
judicially charged for rebellion or offenses inherent in or directly connected
with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence
in the constitutional provision on bail merely emphasizes the right to bail in
criminal proceedings for the aforementioned offenses. It cannot be taken to
mean that the right is available even in extradition proceedings that are not
criminal in nature.
At first glance, the above ruling applies squarely to private respondent’s
case. However, this Court cannot ignore the following trends in international
law: (1) the growing importance of the individual person in public international
law who, in the 20th century, has gradually attained global recognition; (2)
the higher value now being given to human rights in the international sphere;
(3) the corresponding duty of countries to observe these universal human
rights in fulfilling their treaty obligations; and (4) the duty of this Court to
balance the rights of the individual under our fundamental law, on one hand,
and the law on extradition, on the other.
The modern trend in public international law is the primacy placed on the
worth of the individual person and the sanctity of human rights. Slowly, the
recognition that the individual person may properly be a subject of
international law is now taking root. The vulnerable doctrine that the subjects
of international law are limited only to states was dramatically eroded
towards the second half of the past century. For one, the Nuremberg and
Tokyo trials after World War II resulted in the unprecedented spectacle of
individual defendants for acts characterized as violations of the laws of war,
crimes against peace, and crimes against humanity. Recently, under the
Nuremberg principle, Serbian leaders have been persecuted for war crimes
and crimes against humanity committed in the former Yugoslavia. These
significant events show that the individual person is now a valid subject of
international law.
On a more positive note, also after World War II, both international
organizations and states gave recognition and importance to human rights.
Thus, on December 10, 1948, the United Nations General Assembly adopted
the Universal Declaration of Human Rights in which the right to life, liberty
and all the other fundamental rights of every person were proclaimed. While
not a treaty, the principles contained in the said Declaration are now
recognized as customarily binding upon the members of the international
community. Thus, in Mejoff v. Director of Prisons,2 this Court, in granting bail
to a prospective deportee, held that under the Constitution,3 the principles
set forth in that Declaration are part of the law of the land. In 1966, the UN
General Assembly also adopted the International Covenant on Civil and
Political Rights which the Philippines signed and ratified. Fundamental
among the rights enshrined therein are the rights of every person to life,
liberty, and due process.
The Philippines, along with the other members of the family of nations,
committed to uphold the fundamental human rights as well as value the
worth and dignity of every person. This commitment is enshrined in Section
II, Article II of our Constitution which provides: "The State values the dignity
of every human person and guarantees full respect for human rights." The
Philippines, therefore, has the responsibility of protecting and promoting the
right of every person to liberty and due process, ensuring that those detained
or arrested can participate in the proceedings before a court, to enable it to
decide without delay on the legality of the detention and order their release if
justified. In other words, the Philippine authorities are under obligation to
make available to every person under detention such remedies which
safeguard their fundamental right to liberty. These remedies include the right
to be admitted to bail. While this Court in Purganan limited the exercise of the
right to bail to criminal proceedings, however, in light of the various
international treaties giving recognition and protection to human rights,
particularly the right to life and liberty, a reexamination of this Court’s ruling in
Purganan is in order.
First, we note that the exercise of the State’s power to deprive an individual
of his liberty is not necessarily limited to criminal proceedings. Respondents
in administrative proceedings, such as deportation and quarantine,4 have
likewise been detained.
Second, to limit bail to criminal proceedings would be to close our eyes to our
jurisprudential history. Philippine jurisprudence has not limited the exercise of
the right to bail to criminal proceedings only. This Court has admitted to bail
persons who are not involved in criminal proceedings. In fact, bail has been
allowed in this jurisdiction to persons in detention during the pendency of
administrative proceedings, taking into cognizance the obligation of the
Philippines under international conventions to uphold human rights.
The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese
facing deportation for failure to secure the necessary certificate of registration
was granted bail pending his appeal. After noting that the prospective
deportee had committed no crime, the Court opined that "To refuse him bail
is to treat him as a person who has committed the most serious crime known
to law;" and that while deportation is not a criminal proceeding, some of the
machinery used "is the machinery of criminal law." Thus, the provisions
relating to bail was applied to deportation proceedings.
In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of
Immigration,7 this Court ruled that foreign nationals against whom no formal
criminal charges have been filed may be released on bail pending the finality
of an order of deportation. As previously stated, the Court in Mejoff relied
upon the Universal declaration of Human Rights in sustaining the detainee’s
right to bail.
If bail can be granted in deportation cases, we see no justification why it
should not also be allowed in extradition cases. Likewise, considering that
the Universal Declaration of Human Rights applies to deportation cases,
there is no reason why it cannot be invoked in extradition cases. After all,
both are administrative proceedings where the innocence or guilt of the
person detained is not in issue.
Clearly, the right of a prospective extraditee to apply for bail in this
jurisdiction must be viewed in the light of the various treaty obligations of the
Philippines concerning respect for the promotion and protection of human
rights. Under these treaties, the presumption lies in favor of human liberty.
Thus, the Philippines should see to it that the right to liberty of every
individual is not impaired.
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine
Extradition Law) defines "extradition" as "the removal of an accused from the
Philippines with the object of placing him at the disposal of foreign authorities
to enable the requesting state or government to hold him in connection with
any criminal investigation directed against him or the execution of a penalty
imposed on him under the penal or criminal law of the requesting state or
government."
Extradition has thus been characterized as the right of a foreign power,
created by treaty, to demand the surrender of one accused or convicted of a
crime within its territorial jurisdiction, and the correlative duty of the other
state to surrender him to the demanding state.8 It is not a criminal
proceeding.9 Even if the potential extraditee is a criminal, an extradition
proceeding is not by its nature criminal, for it is not punishment for a crime,
even though such punishment may follow extradition.10 It is sui generis,
tracing its existence wholly to treaty obligations between different nations.11
It is not a trial to determine the guilt or innocence of the potential
extraditee.12 Nor is it a full-blown civil action, but one that is merely
administrative in character.13 Its object is to prevent the escape of a person
accused or convicted of a crime and to secure his return to the state from
which he fled, for the purpose of trial or punishment.14
But while extradition is not a criminal proceeding, it is characterized by the
following: (a) it entails a deprivation of liberty on the part of the potential
extraditee and (b) the means employed to attain the purpose of extradition is
also "the machinery of criminal law." This is shown by Section 6 of P.D. No.
1069 (The Philippine Extradition Law) which mandates the "immediate arrest
and temporary detention of the accused" if such "will best serve the interest
of justice." We further note that Section 20 allows the requesting state "in
case of urgency" to ask for the "provisional arrest of the accused, pending
receipt of the request for extradition;" and that release from provisional arrest
"shall not prejudice re-arrest and extradition of the accused if a request for
extradition is received subsequently."
Obviously, an extradition proceeding, while ostensibly administrative, bears
all earmarks of a criminal process. A potential extraditee may be subjected to
arrest, to a prolonged restraint of liberty, and forced to transfer to the
demanding state following the proceedings. "Temporary detention" may be a
necessary step in the process of extradition, but the length of time of the
detention should be reasonable.
Records show that private respondent was arrested on September 23, 1999,
and remained incarcerated until December 20, 2001, when the trial court
ordered his admission to bail. In other words, he had been detained for over
two (2) years without having been convicted of any crime. By any standard,
such an extended period of detention is a serious deprivation of his
fundamental right to liberty. In fact, it was this prolonged deprivation of liberty
which prompted the extradition court to grant him bail.
While our extradition law does not provide for the grant of bail to an
extraditee, however, there is no provision prohibiting him or her from filing a
motion for bail, a right to due process under the Constitution.
The applicable standard of due process, however, should not be the same as
that in criminal proceedings. In the latter, the standard of due process is
premised on the presumption of innocence of the accused. As Purganan
correctly points out, it is from this major premise that the ancillary
presumption in favor of admitting to bail arises. Bearing in mind the purpose
of extradition proceedings, the premise behind the issuance of the arrest
warrant and the "temporary detention" is the possibility of flight of the
potential extraditee. This is based on the assumption that such extraditee is a
fugitive from justice.15 Given the foregoing, the prospective extraditee thus
bears the onus probandi of showing that he or she is not a flight risk and
should be granted bail.
The time-honored principle of pacta sunt servanda demands that the
Philippines honor its obligations under the Extradition Treaty it entered into
with the Hong Kong Special Administrative Region. Failure to comply with
these obligations is a setback in our foreign relations and defeats the
purpose of extradition. However, it does not necessarily mean that in keeping
with its treaty obligations, the Philippines should diminish a potential
extraditee’s rights to life, liberty, and due process. More so, where these
rights are guaranteed, not only by our Constitution, but also by international
conventions, to which the Philippines is a party. We should not, therefore,
deprive an extraditee of his right to apply for bail, provided that a certain
standard for the grant is satisfactorily met.
An extradition proceeding being sui generis, the standard of proof required in
granting or denying bail can neither be the proof beyond reasonable doubt in
criminal cases nor the standard of proof of preponderance of evidence in civil
cases. While administrative in character, the standard of substantial evidence
used in administrative cases cannot likewise apply given the object of
extradition law which is to prevent the prospective extraditee from fleeing our
jurisdiction. In his Separate Opinion in Purganan, then Associate Justice,
now Chief Justice Reynato S. Puno, proposed that a new standard which he
termed "clear and convincing evidence" should be used in granting bail in
extradition cases. According to him, this standard should be lower than proof
beyond reasonable doubt but higher than preponderance of evidence. The
potential extraditee must prove by "clear and convincing evidence" that he is
not a flight risk and will abide with all the orders and processes of the
extradition court.
In this case, there is no showing that private respondent presented evidence
to show that he is not a flight risk. Consequently, this case should be
remanded to the trial court to determine whether private respondent may be
granted bail on the basis of "clear and convincing evidence."
WHEREFORE, we DISMISS the petition. This case is REMANDED to the
trial court to determine whether private respondent is entitled to bail on the
basis of "clear and convincing evidence." If not, the trial court should order
the cancellation of his bail bond and his immediate detention; and thereafter,
conduct the extradition proceedings with dispatch.
SO ORDERED.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
[G. R. No. 149028-30. April 2, 2003]
THE PEOPLE OF THE PHILIPPINES, appellee, vs. ARMANDO
CABALLERO, RICARDO CABALLERO, MARCIANO CABALLERO, JR., and
ROBITO CABALLERO, accused.
ARMANDO CABALLERO, RICARDO CABALLERO, and MARCIANO
CABALLERO, JR., appellants.
DECISION
CALLEJO, SR., J.:
Before the Court on automatic review is the Decision[1] of the Regional Trial
Court of San Carlos City, Negros Occidental, Branch 57, convicting
appellants Armando Caballero, Ricardo Caballero and Marciano Caballero,
Jr. of murder in Criminal Cases Nos. RTC-1217 and RTC-1218 and meting
on each of them the supreme penalty of death and ordering them to pay
damages; and of frustrated murder in Criminal Case No. RTC-1219 and
imposing on them the penalty of reclusion perpetua.
The Antecedents
Teresito (Dodong) Mondragon and his family lived in a compound
surrounded by a barbed-wire fence at New Sumakwel, Broce Street, San
Carlos City, Negros Occidental. Living in the same compound were Ricardo
Caballero and his family; and Myrna Bawin, the sister of Eugene Tayactac,
and her family. Beside the compound was the house of Leonilo Broce, a
nephew of Wilma Broce.
In the afternoon of August 3, 1994, Armando (Baby), Robito (Bebot) and
Marciano, Jr. (Jun), all surnamed Caballero, were having a drinking spree in
the house of their brother Ricardo in the Mondragon Compound. At about
7:00 p.m. of said date, Eugene Tayactac and Arnold Barcuma arrived in the
sari-sari store of Wilma Broce which was across the Mondragon Compound.
Eugene had dinner in the store while Arnold proceeded to the house of
Susana Broce, Eugenes girlfriend, for a chat. Susanas house was about 15
meters away from the store of Wilma. Momentarily, Armando arrived in the
store and asked Eugene in an angry tone: Gene mopalit ka? (Gene, will you
buy?). Eugene replied: What is this all about? We dont have any quarrel
between us. Armando left the store but stood by the gate of the barbed-wired
fence of the Mondragon Compound. His brothers Ricardo, Robito and
Marciano, Jr. joined him. Ricardo and Robito were armed with knives. When
Wilma told Eugene that she was closing the store already, he stood up and
left the store on his way to Susanas house. At that time, Myrna Bawin, who
was standing by the window of their house saw her brother Eugene going out
of the store and proceeding to the house of Susana. She called out to him
and advised him to go home. Myrna then left the window to pacify her crying
baby.
As Eugene walked by the gate of the Mondragon Compound, Armando
suddenly grabbed Eugene towards the compound. Eugene resisted.
Spontaneously, Ricardo, Marciano, Jr. and Robito joined Armando and
assaulted Eugene. Armando took the wooden pole supporting the clothesline
and hit Eugene with it. The latter tried to parry the blows of the Caballero
brothers, to no avail. In the process, Eugene was stabbed three times. As
Eugene was being assaulted, Myrna returned to the window of her house
and saw the Caballero brothers assaulting Eugene. She shouted for help for
her hapless brother. Wilma, who witnessed the whole incident, was shocked
to immobility at the sudden turn of events.
From the nearby house of Susana, Arnold saw the commotion and rushed to
the scene to pacify the protagonists. Arnold told the Caballero brothers: Bay,
what is the trouble between you and Eugene? However, Ricardo accosted
Arnold and stabbed the latter on the left side of his body. Forthwith, Robito,
Marciano, Jr. and Armando ganged up on Arnold. Two of them stabbed
Arnold on his forearm. Arnold fled for his life and hid under the house of a
neighbor.

For his part, Leonilo rushed from his house to where the commotion was. He
was, however, met by Robito who stabbed him on the chest. Wounded,
Leonilo retreated and pleaded to his uncle Lucio Broce for help: Tio, help me
because I am hit. The commotion stopped only upon the arrival of Teresito
Mondragon who was able to pacify the Caballero brothers. They all returned
to the compound.
In the meantime, Lucio Broce, the uncle of Leonilo brought the injured
Eugene, Leonilo and Arnold to the Planters Hospital for medical treatment.
Eugene and Leonilo eventually died from the stab wounds they sustained.
Dr. Filped A. Maisog performed an autopsy on the cadaver of Eugene. He
signed a postmortem report containing the following findings:
POST-MORTEM EXAMINATION
Name: Eugenio Tayactac, 22 years old, male, single
Address: New Sumakwel, San Carlos City, Neg. Occ.
Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.
Place of Examination: San Carlos City Hospital
Date & Time of Incident: August 3, 1994 @ 8:30 P.M.
Date & Time Examined: August 3, 1994 @ 10:40 P.M.
Post-Mortem Findings:
= Stab wound (L) anterior chest 2 cm. 5th ICS MCL directed postero laterally,
lacerating (L) auricle of the heart, and the (L) pulmonary artery and the left
middle lobe of the lungs;
= Stab wound (R) anterior chest 2 cm. long 5th ICS parasternal line directed
posteriorly;
= Stab wound (R) posterior chest level 7th ICS 2 cm. long directed anteriorly.
CAUSE OF DEATH: Severe Hemorrhage secondary to Multiple Stab wounds
with Massive Hemothorax (L) and Hemopneumothorax (R).[2]
He testified that the stab wounds could have been caused by a sharp-edged
single-bladed or double-bladed instrument, or by three instruments.[3]
Dr. Jose Carlos L. Villarante performed an autopsy on the cadaver of
Leonilo. He signed a postmortem report containing the following findings:
POST-MORTEM EXAMINATION
Name: Leonilo Broce, 22 years old, male, married
Address: New Sumakwel, San Carlos City, Neg. Occ.
Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.
Place of Examination: San Carlos City Hospital
Date & Time of Incident: Aug. 3, 1994 @ 8:30 P.M.
Date & Time Examined: Aug. 3, 1994 @ 8:45 P.M.
Post-mortem findings:
= Stab wound, (R) post chest, about the level of the 6th and 7th RICS, post.
axillary line.
CAUSE OF DEATH: Hypovolemic shock secondary to multiple organ
injury.[4]
Dr. Edgardo B. Quisumbing attended to and operated on Arnold Barcuma.
He signed a medical certificate stating that Arnold sustained the following
injuries:
= Lacerated wound 2 cm. (R) forearm middle 3rd

= Incised wound 2 inches (L) forearm middle 3rd
= Stabbed wound, 2 inches in length (L) chest, anterior axillary line at the
level of the 7th intercostal space, penetrating thoracic cavity and abdominal
cavity.
... [5]
On the witness stand, Dr. Quisumbing testified that the wounds sustained by
Arnold could have been caused by three different sharp-pointed
instruments.[6] He further testified that Arnold would have died because of
the stab wound on his chest, were it not for the timely medical intervention.
On August 5, 1994, Armando, Ricardo, Marciano, Jr. and Robito, were
charged with Murder for the death of Leonilo Broce. The Information,
docketed as Criminal Case No. RTC 1217 reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San
Carlos City, Negros Occidental, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring together and helping
one another, armed with pieces of wood and hunting knives, and with intent
to kill, with treachery and evident premeditation, did, then and there, wilfully,
unlawfully and feloniously, with the use of said weapons, attack, assault and
use personal violence upon the person of one LEONILO BROCE, by striking
the latter with the use of pieces of wood and stabbing him, thereby inflicting
upon said Leonilo Broce physical injury described as follows:
= Stabbed wound (R) chest penetrating thoracic cavity.
and which injury caused massive hemorrhage which resulted to the death of
Leonilo Broce.
That an aggravating circumstance of abuse of superior strength is attendant
in the commission of the offense.
CONTRARY TO LAW.[7]
They were also charged with the same crime for the death of Eugene
Tayactac in an Information docketed as Criminal Case No. RTC-1218, which
reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San
Carlos City, Negros Occidental, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring together and helping
one another, armed with pieces of wood and hunting knives, and with intent
to kill, with treachery and evident premeditation, did, then and there, wilfully,
unlawfully and feloniously, with the use of said weapons, attack, assault and
use personal violence upon the person of one EUGENE TAYACTAC, by
striking the latter with use of pieces of wood and stabbing him thereby
inflicting upon said Eugene Tayactac physical injuries which resulted to the
death of the latter.
That an aggravating circumstances of abuse of superior strength is attendant
in the commission of the offense.
CONTRARY TO LAW.[8]
Another Information was filed against the Caballero brothers for frustrated
murder for the injuries of Arnold Barcuma. Docketed as Criminal Case No.
RTC-1219, it reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San
Carlos City, Negros Occidental, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring together and helping
one another, armed with pieces of wood and hunting knives, with intent to
kill, with treachery and evident premeditation, did, then and there, wilfully,
unlawfully and feloniously attack, assault and use personal violence upon the
person of one ARNOLD BARCUMA, by striking him with the use of pieces of
wood and stabbing him, thereby inflicting upon the latter physical injuries
which would have resulted to the death of said Arnold Barcuma, thus
performing 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 rendered to said Arnold Barcuma.
That an aggravating circumstance of abuse of superior strength is attendant
in the commission of the offense.[9]
Ricardo, Armando and Marciano, Jr., assisted by counsel, were arraigned on
September 15, 1994. They pleaded not guilty to all the charges. Robito
Caballero remained at-large.
Ricardo, Armando and Marciano, Jr. invoked the defenses of denial and alibi.
They adduced evidence that Ricardo was employed as electrician in the
Office of the City Engineer of San Carlos City. Armando was a motor cab
driver. Robito resided in H.C. Rigor Street, San Carlos City while Marciano,
Jr. was a resident of Don Juan Subdivision, San Carlos City and was
employed with the Victorias Milling Corporation.
On August 3, 1994, at 8:00 a.m., Robito left San Carlos City and went to
Bacolod City. Armando went to the house of his brother Ricardo to help in
the construction of the latters house and to take care of Ricardos fighting
cocks while he was in his office. Ricardo arrived home at 8:00 p.m. and had
dinner with his family and Armando. Momentarily, their sister Mila and their
younger brother Marciano, Jr. arrived in the house of Ricardo. Marciano, Jr.
allegedly was mauled by a group of men and sustained an abrasion, a
contusion and swelling of the left side of his face. Ricardo and Armando
brought their brother Marciano, Jr. to the hospital for treatment. On August 4,
1994, Marciano, Jr. was treated for:
= Linear abrasion (L) scapula region;
= Contusion (R) lower lip lateral side;
= Swelling left face.
No. of days of healing: 5-7 days barring complication.[10]
Ricardo, Armando and Marciano, Jr. denied killing Eugene and assaulting
Arnold. They also denied having any altercation with the victims. They also
denied stabbing Leonilo. They had no idea why Wilma, Arnold and Myrna
would implicate them for the deaths of Leonilo and Eugene and for the
injuries of Arnold.
After due proceedings, the trial court rendered judgment on May 7, 2001
finding all the three accused, now appellants guilty beyond reasonable doubt
as principals of the crimes charged, the decretal portion of which reads:
WHEREFORE, accused Armando Caballero, alias Baby, Ricardo Caballero,
alias Ricky and Marciano Caballero, Jr., alias Jun, having been found
GUILTY beyond reasonable doubt of the offenses charged them as
principals, are hereby sentenced to suffer:
1. In Criminal Case No. RTC-1217 for the murder of Leonilo Broce, there
being no mitigating circumstance present, with the attendant aggravating
circumstances of treachery and abuse of superior strength, the maximum
penalty of death and to pay the heirs of Leonilo Broce the sum of P75,000.00
as indemnity;
2. In Criminal Case No. RTC-1218, for the murder of Eugene or Eugenio
Tayactac, there being no mitigating circumstance present, with the attendant
aggravating circumstances of treachery and abuse of superior strength, the
maximum penalty of death; and to pay the heirs of Eugene Tayactac the sum
of P75,000.00 as indemnity; and
3. In Criminal Case No. RTC-1219, for Frustrated Murder, for having
seriously inflicted injuries upon the person of Arnold Barcuma which nearly
resulted to his death, there being no mitigating circumstance present, an
imprisonment of twelve (12) years, as minimum, to seventeen (17) years,
four (4) months and one (1) day, with no award as to damages, no evidence
having been introduced to establish, the same; and
4. To pay the costs in all three (3) cases.
SO ORDERED.[11]
In convicting the accused, the trial court found that all of them conspired to
kill Eugene and Leonilo and cause injuries to Arnold. While the trial court
stated that it was only appellant Armando who stabbed Eugene, and only the
accused Robito who stabbed Leonilo, however, it concluded that all of them
were equally liable for the deaths of Leonilo and Eugene and for the injuries
of Arnold.
In their Brief, the accused, now appellants assail the decision of the trial court
contending that:
I direct proof is not required. Conspiracy may be proved by circumstantial
THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-
APPELLANTS IN CRIMINAL CASES NOS. 1217-1219 DESPITE THE FACT
THAT THEIR GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE
AGGRAVATING CIRCUMSTANCES OF TREACHERY AND ABUSE OF
SUPERIOR STRENGTH ON THE ASSUMPTION THAT INDEED
ACCUSED-APPELLANTS KILLED THE VICTIMS.
III
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH
PENALTY UPON ACCUSED-APPELLANTS ON THE ASSUMPTION THAT
INDEED THEY KILLED THE VICTIMS.[12]
The Court will delve into and resolve the first two assignments of errors.
The appellants aver that the prosecution failed to prove beyond reasonable
doubt their respective guilt for the deaths of Eugene and Leonilo and for the
injuries sustained by Arnold. They assert that the trial court committed
reversible error in rejecting their defenses of denial and alibi. They claim that
at the time of the incident they were in the San Carlos Hospital for the
treatment of the injuries of appellant Marciano, Jr.
The appellants are partly correct.
The trial court correctly found that all the appellants conspired to kill Eugene
and assault Arnold; hence, they are criminally liable for the death of Eugene
and for the injuries sustained by Arnold. Article 8 of the Revised Penal Code
provides that there is conspiracy when two or more persons agree to commit
a felony and decide to commit it. Conspiracy is always predominantly mental
in composition because it consists primarily of a meeting of minds and
intent.[13] Conspiracy must be proved with the same quantum of evidence as
the crime itself, that is, by proof beyond reasonable doubt.[14] However,
evidence. Conspiracy may be proved through the collective acts of the
accused, before, during and after the commission of a felony, all the accused
aiming at the same object, one performing one part and another performing
another for the attainment of the same objective, their acts though apparently
independent were in fact concerted and cooperative, indicating closeness of
personal association, concerted action and concurrence of sentiments.[15]
The overt act or acts of the accused may consist of active participation in the
actual commission of the crime itself or may consist of moral assistance to
his co-conspirators by moving them to execute or implement the criminal
plan.[16] Direct proof of a person in agreement to commit a crime is not
necessary. It is enough that at the time of the commission of a crime, all the
malefactors had the same purpose and were united in their execution.[17]
Once established, all the conspirators are criminally liable as co-principals
regardless of the degree of participation of each of them for in contemplation
of the law, the act of one is the act of all.[18]
Criminal conspiracy must always be founded on facts, not on mere
inferences, conjectures and presumptions.[19] Mere knowledge,
acquiescence to or approval of the act without cooperation or agreement to
cooperate, is not enough to constitute one party to a conspiracy absent the
intentional participation in the act with a view to the furtherance of the
common objective and purpose.[20] Moreover, one is not criminally liable for
his act done outside the contemplation of the conspirators. Co-conspirators
are criminally liable only for acts done pursuant to the conspiring on how and
what are the necessary and logic consequence of the intended crime.[21]
In this case, when appellant Armando asked Eugene at the store of Wilma
whether the latter was going to buy something from the store, Eugene was
peeved and remonstrated that he and Armando had no quarrel between
them. Appellant Armando was likewise irked at the reaction of Eugene
because from the store, appellant Armando stationed himself by the gate of A Leonilo Broce came out of his house.
the Mondragon Compound near the sari-sari store of Wilma. Appellants
Ricardo, Marciano, Jr. and Robito joined their brother, appellant Armando at Q Where is the house of Leonilo Broce?
the gate. Appellant Ricardo and accused Robito were armed with knives.
When Eugene passed by the gate to the compound, appellant Armando A Still located at Sumakwel.
pulled Eugene to the gate but when the latter resisted, all the appellants
ganged up on Eugene. Appellant Armando took the wooden support of the Q In that case, the very house where Eugene Tayaktak leaned on when he
clothesline and hit Eugene with it. Eugene was stabbed three times on his was ganged up by the four?
chest even as he tried to parry the thrusts. When Arnold rushed to the situs
criminis to pacify the appellants and accused Robito, appellant Ricardo A Yes.
stabbed him on the left side of his body. The other appellants and accused
Robito joined appellant Ricardo and ganged up on Arnold. They stabbed Q What happened after that?
Arnold anew twice on his forearm. Teresito Mondragon, the father-in-law of
appellant Ricardo intervened and forthwith, all the appellants, including A When he came out from the house and saw that it was Eugene Tayaktak,
accused Robito returned to the Mondragon Compound. Patently, all the he proceeded to approach them but he was not able to approach them
appellants by their simultaneous collective acts before and after the because he was met by Robit Bebot Caballero and stabbed by Robito
commission of the crimes were united in one common objective, to kill Caballero.
Eugene, and cause injuries to Arnold for trying to intervene and prevent
bloodshed. Hence, all the appellants are criminally liable for the death of Q Was LeoniloBroce (sic) hit when he was stabbed by Robito Caballero?
Eugene and for the injuries of Arnold. It does not matter who among the
appellants stabbed Eugene or inflicted injuries on Arnold. The act of one is A Yes. He immediately ran back and said: Tio, help me because I am hit.
the act of the others.
INTERPRETERS (observation)
However, for the death of Leonilo, the Court believes that the appellants are
not criminally liable. The prosecution failed to adduce evidence that the Witness demonstrating by holding her left armpit.
appellants and the accused Robito conspired to kill Leonilo. The appellants
did not actually see Leonilo rushing out from his house to the situs criminis. Q Was Eugene Tayaktak able to escape from the attach (sic) of the
They had no foreknowledge that the accused Robito would stab Leonilo. Caballero brothers?
There was no evidence presented by the prosecution to prove that all the
appellants assisted the accused Robito in killing Leonilo. It must be recalled A Not (sic).
that Leonilo rushed out of his house when he saw the commotion, with the
intention of aiding the victim or pacifying the protagonists. He was, however, Q Now what happened to Eugene Tayaktak?
stopped by accused Robito who suddenly stabbed him on the chest. Leonilo
retreated and asked for help. Wilma Broce testified that only the accused A He appeared very weak and he was staggering.
Robito stabbed Leonilo:
Q Do you know where Eugene Tayaktak now?
Q After that, what happened next?
A Already dead.

Q What happened to Leonilo Broce, where is he now?
A The two of them were (sic) already dead.
Q Now, when did the trouble stop if it stopped?
A It stopped when Dodong Mondragon arrived.
Q What did the accused do after the trouble was stopped?
A They went inside the compound of his (sic) father.
Q What happened next?
A Nothing happened. Both of them were brought to the hospital.[22]
In sum, the trial court committed reversible error in convicting the appellants
of murder for the death of Leonilo. As this Court held in People v. Flora:[23]
However, we cannot find Edwin Flora similarly responsible for the death of
Emerita Roma and the injury of Flor Espinas. The evidence only shows
conspiracy to kill Ireneo Gallarte and no one else. For acts done outside the
contemplation of the conspirators only the actual perpetrators are liable. In
People v. De la Cerna, 21 SCRA 569, 570 (1967), we held:
... And the rule has always been that co-conspirators are liable only for acts
done pursuant to the conspiracy. For other acts done outside the
contemplation of the co-conspirators or which are not the necessary and
logical consequence of the intended crime, only the actual perpetrators are
liable. Here, only Serapio killed (sic) Casiano Cabizares. The latter was not
even going to the aid of his father Rafael but was fleeing away when shot.
To conclude, appellant Edwin Flora is guilty beyond reasonable doubt only of
the murder of Ireneo Gallarte. He has no liability for the death of Emerita
Roma nor the injuries of Flor Espinas caused by his co-accused
Hermogenes Flora.
Crimes Committed by Appellants
In Criminal Case No. RTC-1218, the appellants are guilty as co-principals by
direct participation of murder, qualified by treachery. In order that treachery
may be considered as a qualifying circumstance, the prosecution is burdened
to prove that:
.... (1) the employment of means of execution that give the person attacked
no opportunity to defend himself or to retaliate; and (2) the means of
execution was deliberately or consciously adopted.[24]
Even a frontal attack is treacherous if it is sudden and the victim is unarmed.
The essence of treachery is a swift and unexpected attack on the unarmed
victim.[25]
In this case, Eugene was unarmed. He had no inkling that he would be
waylaid as he sauntered on his way to his girlfriend Susanas house. On the
other hand, appellant Armando was armed with a wooden pole while
appellant Ricardo and accused Robito were armed with knives. The attack
on the hapless Eugene was swift and unannounced. Undeniably, the
appellants killed Eugene with treachery.
In Criminal Case No. RTC-1219, the appellants are guilty of frustrated
murder under Article 248 in relation to Article 6, first paragraph of the
Revised Penal Code which reads:
A felony is consummated when all the elements necessary for its execution
and accomplishment are present; and it is frustrated when the offender
performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
The essential elements of a frustrated felony are as follows:
Elements:
1. The offender performs all the acts of execution;
2. All the acts performed would produce the felony as a consequence;
3. But the felony is not produced;
4. By reason of causes independent of the will of the perpetrator.[26]
In the leading case of United States v. Eduave,[27] Justice Moreland,
speaking for the Court, distinguished an attempted from frustrated felony. He
said that to be an attempted crime the purpose of the offender must be
thwarted by a foreign force or agency which intervenes and compels him to
stop prior to the moment when he has performed all the acts which should
produce the crime as a consequence, which act it is his intention to perform.
The subjective phase in the commission of a crime is that portion of the acts
constituting the crime included between the act which begins the commission
of the crime and the last act performed by the offender which, with prior acts,
should result in the consummated crime. Thereafter, the phase is objective.
In case of an attempted crime, the offender never passes the subjective
phase in the commission of the crime. The offender does not arrive at the
point of performing all of the acts of execution which should produce the
crime. He is stopped short of that point by some cause apart from his
voluntary desistance.
On the other hand, a crime is frustrated when the offender has performed all
the acts of execution which should result in the consummation of the crime.
The offender has passed the subjective phase in the commission of the
crime. Subjectively, the crime is complete. Nothing interrupted the offender
while passing through the subjective phase. He did all that is necessary to
consummate the crime. However, the crime is not consummated by reason
of the intervention of causes independent of the will of the offender. In
homicide cases, the offender is said to have performed all the acts of
execution if the wound inflicted on the victim is mortal and could cause the
death of the victim barring medical intervention or attendance.[28]
If one inflicts physical injuries on another but the latter survives, the crime
committed is either consummated physical injuries, if the offender had no
intention to kill the victim or frustrated or attempted homicide or frustrated
murder or attempted murder if the offender intends to kill the victim. Intent to
kill may be proved by evidence of: (a) motive; (b) the nature or number of
weapons used in the commission of the crime; (c) the nature and number of
wounds inflicted on the victim; (d) the manner the crime was committed; and
(e) words uttered by the offender at the time the injuries are inflicted by him
on the victim.
In this case, appellant Armando was armed with a wooden pole. Appellant
Ricardo and accused Robito used knives. Dr. Quisumbing, who attended to
and operated on Arnold, testified that the stab wound sustained by Arnold on
the left side of his body was mortal and could have caused his death were it
not for the timely and effective medical intervention:
Q And how about the size and the depth of the wounds and how big is each
wound and how deep.
A The first wound is 2 cm. and the 2nd is about 2 inches and the 3rd is 2
inches in the left, penetrating the chest near the thorax along the lateral line.
Q So, aside from the 3rd wound there are wounds which are not really very
serious?
A As I said before, the most serious is the 3rd wound.
Q So even without the other wounds the 3rd wound - - it could be the cause
of the death of the victim?
A Yes, Sir.[29]
It cannot be denied that the appellants had the intention to kill Arnold. The
appellants performed all the acts of execution but the crime was not
consummated because of the timely medical intervention.
Treachery attended the stabbing of Arnold because he was unarmed and the
attack on him was swift and sudden. He had no means and there was no
time for him to defend himself. In sum, the appellants are guilty of frustrated
murder.
The appellants denial of the crimes charged in Criminal Case Nos. RTC-
1218 and RTC-1219 cannot prevail over Wilmas and Arnolds positive and
straightforward testimonies that the appellants killed Eugene and stabbed
Arnold. Moreover, Wilma and Arnold had no motive to falsely implicate the
appellants for the said crimes; hence, their testimony must be accorded full
probative weight.[30]
Equally barren of merit is appellants defense of alibi. Alibi as a defense is
inherently weak for it is easy to fabricate and difficult to disprove. To merit
approbation, the appellants were burdened to prove with clear and
convincing evidence that at the time the crimes were committed, they were in
a place other than the situs of the crimes such that it was physically
impossible for them to have committed said crimes.[31] The appellants
dismally failed in this respect. They testified that they were at the house of
appellant Ricardo, which was conveniently near the place where Eugene was
killed and Arnold was assaulted. Moreover, the records show that Marciano,
Jr. was treated for his superficial injuries on August 4, 1996, a day after the
incident. This belies the claim of appellants Ricardo and Armando that they
were allegedly in the hospital at the time of the incident.
Penalties Imposable on Appellants
The trial court imposed the death penalty on appellants in Criminal Case No.
RTC-1218 on its finding that treachery and abuse of superior strength were
attendant in the killing of Eugene. The Solicitor General does not agree with
the trial court and contends that abuse of superior strength was absorbed by
treachery; hence, should not be considered as a separate aggravating
circumstance in the imposition of the penalty on the appellants. The Court
agrees with the Solicitor General. Abuse of superior strength, concurring with
treachery is absorbed by treachery.[32]
The penalty for murder under Article 248 of the Revised Penal Code, as
amended by Republic Act 7659, is reclusion perpetua to death. Since aside
from the qualified circumstance of treachery, no other modifying
circumstance was attendant in the commission of the crime, the proper
penalty for the crime is reclusion perpetua conformably with Article 63 of the
Revised Penal Code.
In Criminal Case No. RTC-1219, for frustrated murder, the Solicitor General
contends that the indeterminate penalty of from 12 years of reclusion
temporal as minimum, to 17 years, 4 months and 1 day of reclusion temporal
as maximum, imposed on the appellants is not correct. The Court agrees
with the Solicitor General. The penalty for frustrated murder is one degree
lower than reclusion perpetua to death, which is reclusion temporal.[33] The
latter penalty has a range of 12 years and 1 day to 20 years. The maximum
of the indeterminate penalty should be taken from reclusion temporal, the
penalty for the crime taking into account any modifying circumstances in the
commission of the crime. The minimum of the indeterminate penalty shall be
taken from the full range of prision mayor which is one degree lower than
reclusion temporal. Since there is no modifying circumstance in the
commission of frustrated murder, the appellants should be meted an
indeterminate penalty of from nine (9) years and four (4) months of prision
mayor in its medium period as minimum to seventeen (17) years and four (4)
months of reclusion temporal in its medium period, as maximum.
Civil Liabilities of Appellants
The trial court ordered the appellants in Criminal Case No. RTC-1218 to pay
in solidum the heirs of the victim Eugene Tayactac, the amount of P75,000
by way of indemnity. The trial court did not award moral damages to said
heirs. This is erroneous. Since the penalty imposed on the appellants is
reclusion perpetua, the civil indemnity should be only P50,000. The heirs of
the victim should also be awarded the amount of P50,000 as moral
damages.[34]
In Criminal Case No. RTC-1219, the trial court did not award moral damages
to the victim Arnold Barcuma on its finding that the prosecution failed to
adduce any evidence to prove said damages. The Court disagrees with the
trial court. The victim Arnold Barcuma himself testified on his injuries.[35] He
is entitled to moral damages in the amount of P25,000.[36] Having suffered
injuries and undergone medical treatment he is, as well entitled to actual
damages, which in the absence of evidence would, nevertheless, entitle him
to an award of temperate or moderate damages, herein fixed at P10,000.
The Verdict of the Court
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial
Court of San Carlos City (Negros Occidental), Branch 57, in Criminal Cases
Nos. RTC-1217 up to RTC-1219 is AFFIRMED with the following
MODIFICATIONS:
1. In Criminal Case No. RTC-1217, the Court, finding the appellants not guilty
of the crime charged for failure of the prosecution to prove their guilt beyond
reasonable doubt, REVERSES the judgment of the trial court and ACQUITS
them of the said charge.
2. In Criminal Case No. RTC-1218, the appellants are found guilty beyond
reasonable doubt of murder under Article 248 of the Revised Penal Code,
qualified by treachery, and are sentenced to suffer the penalty of reclusion
perpetua and ordered to pay in solidum the heirs of the victim Eugene
Tayactac, the amounts of P50,000 as civil indemnity and P50,000 as moral
damages.
3. In Criminal Case No. RTC-1219, the appellants are found guilty beyond
reasonable doubt of frustrated murder under Article 248 in relation to Article
6, first paragraph of the Revised Penal Code and are hereby sentenced to
suffer an indeterminate penalty of from nine (9) years and four (4) months of
prision mayor in its medium period, as minimum, to seventeen (17) years and
four (4) months of reclusion temporal in its medium period, as maximum. The
appellants are hereby ordered to pay in solidum to the victim Arnold Barcuma
the amount of P25,000 as moral damages and P10,000 as temperate or
moderate damages.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing,
Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, and Azcuna, JJ., concur.
G.R. No. L-13785 October 8, 1918
THE UNITED STATES, plaintiff-appellee,
vs.
TOMAS ADIAO, defendant-appellant.
Victoriano Yamzon for appellant.
Attorney-General Paredes for appellee.
MALCOLM, J.:
The defendant was charged in the Municipal Court of the city of Manila with
the crime of theft. He was found guilty of the lesser crime of frustrated theft.
He appealed to the Court of First Instance of the city of Manila and again he
was found guilty of the crime of frustrated theft, and was sentenced to pay a
fine of P100, with subsidiary imprisonment in case of insolvency, and to pay
the costs.
The sole error assigned on appeal is that the lower court erred in holding that
the defendant was guilty of the crime of theft as dis closed by the facts
appearing of record. We have examined the evidence carefully and from our
study are unable to say that the proof is contrary to the findings of the lower
court. Stated in one sentence, the defendant, Tomas Adiao, a customs
inspector, abstracted a leather belt valued at P0.80, from the baggage of a
Japanese named T. Murakami, and secreted the belt in his desk in the
Custom House, where it was found by other customs employees.
Based on these facts, the Court is of the opinion that the crime can not
properly be classified as frustrated, as this word is defined in article 3 of the
Penal Code, but that since the offender performed all of the acts of execution
necessary for the accomplishment crime of theft. The fact that the defendant
was under observation during the entire transaction and that he was unable
to get the merchandise out of the Custom House, is not decisive; all the
elements of the completed crime of theft are present. The following decisions
of the supreme court of Spain are in point:
The defendant was charged with the theft of some fruit from the land of
another. As he was in the act of taking the fruit he was seen by a policeman,
yet it did not appear that he was at that moment caught by the policeman but
sometime later. The court said: ". . . The trial court did not err . . . in
considering the crime as that of consummated theft instead of frustrated theft
inasmuch as nothing appears in the record showing that the policemen who
saw the accused take the fruit from the adjoining land arrested him in the act
and thus prevented him from taking full possession of the thing stolen and
even its utilization by him for an interval of time. (Decision of the supreme
court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter was
hearing mass in a church. The latter on account of the solemnity of the act,
although noticing the theft, did not do anything to prevent it. Subsequently,
however, while the defendant was still inside the church, the offended party
got back the money from the defendant. The court said that the defendant
had performed all the acts of execution and considered the theft as
consummated. (Decision of the supreme court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of a
key opened up a case, and from the case took a small box, which was also
opened with a key, from which in turn he took a purse containing 461 reales
and 20 centimos, and then placed the money over the cover of the case; just
at this moment he was caught by two guards who were stationed in another
room near-by. The court considered this as consummated robbery, and said:
" . . . The accused . . . having materially taken possession of the money from
the moment he took it from the place where it had been, and having taken it
with his hands with intent to appropriate the same, he executed all the acts
necessary to constitute the crime which was thereby produced; only the act
of making use of the thing having been frustrated, which, however, does not
go to make the elements of the consummated crime. (Decision of the
supreme court of Spain, June 13, 1882.)
There exists the aggravating circumstance that advantage was taken by the
offender of his public position. Wherefore, in view of the provisions of articles
517 and 518, No. 5, of the Penal Code, and there being present one
aggravating circumstance compensated by no mitigating circumstances, the
penalty must be imposed in the maximum degree.1awph!l.net
Judgment is reversed and the defendant and appellant is sentenced to three
months and one day of arresto mayor, with the costs of all instances against
him. The merchandise in question, attached to the record as Exhibit A, shall
be returned to the lawful owner, T. Murakami. So ordered.
Torres, Johnson, Street, Avanceña and Fisher, JJ., concur.
G.R. No. L-23916 October 14, 1925
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
DOMINGO HERNANDEZ, defendant-appellant.
Cirilo B. Santos for appellant.
Acting Attorney-General Reyes for appllees
OSTRAND, J.:
The defendant is accused of the crime of rape, the information alleging "that
on or about the 26th day of February, 1925, in the City of Manila, Philippine
Islands, the said accused wilfully, unlawfully, and feloniously, by means of
force and by intimidating one Conrada Jocson with killing her with a knife
which said accused held in his hand should she not accede to his wish, did
then and there lie with and have carnal knowledge of said Conrada Jocson, a
girl under 12 years of age. That in the commission of the crime the following
aggravating circumstances existed to wit: (1) The accused is the husband of
the grandmother of said Conrada Jocson and (2) the crime was committed
with grave abuse of confidence, inasmuch as the offended and the accused
living in the same house."
The defendant is a man 70 years of age and the offended party is a child of 9
years, the granddaughter of the defendant's wife. There can be no question
as to the defendant's guilt. The evidence shows that he and the offended
party were living in the same house and that taking advantage of the
absence of the other inhabitants of the house, he had intercourse with the
child by force and violence. He admits that he did so, but maintains that he
was intoxicated at the time and did not know what he was doing. The
testimony of the witnesses for the prosecution is, however, to the effect that
he did not show any signs of intoxication at the time of the commission of the
crime or immediately afterwards.
The court below found the defendant guilty of frustrated rape and sentenced
him to suffer ten years and one day of prision mayor. In holding that the
crime was frustrated, the court seems to have been of the opinion that there
can be no consummated rape without a complete penetration of the hymen.
This view is not accordance with the weight of authority; in fact, it is contrary
to practically all modern authorities. In State vs. Johnson (91 Mo., 439), the
court held that "finding the hymen intact is not always proof that no rape has
been committed, nor virginity; for the case are not rare where the hymen had
to be removed after impregnation and in order to permit delivery."
In the same case, the court further said:
Any penetration whether reaching to the hymen or not is sufficient to
constitute the crime; for as Lord Meadowbank said in case in Scotland.
"Scientific and anatomical distinctions as to where the vagina commences
are worthless in a case of rape; it is enough if the woman's body is entered;
and it is not necessary to show to what extent penetration of the parts has
taken place; whether it has gone past the hymen, into what is anatomically
called the hymen, or even so far as to touch the hymen." (Stewart on Legal
Medicine, p. 137.)1awph!l.net
In the present case the physician who examined the offended party
immediately after the commission of the crime found the labia and the
opening of the vagina inflamed together with an abundance of semen,
though the hymen was intact. It also appears from the evidence that the
defendant lay on top of the child for over fifteen minutes and continued his
efforts of penetration during that period; the child testifies that the defendant
succeeded in a partial penetration and that she felt intense pain. In these
circumstances, the crime must be regarded as consummated.
The judgment appealed from is therefore modified by finding the defendant
guilty of the consummated crime of rape and, in view of the aggravating
circumstances mentioned in the information, the penalty imposed upon the
defendant is hereby increased to seventeen years, four months and one day
of reclusion temporal, with the accessory penalties prescribed by law. In all
other respects the judgment is affirmed with the costs against the appellant.
So ordered.
Avanceña, C. J., Street, Malcolm, Villamor, Johns, Romualdez and Villa-
Real, JJ., concur.

In People vs. Rivers (147 Mich., 643), the court says:

The law may now indeed be considered as settled that while the rupturing of
the hymen is not indispensable to a conviction, there must be proof of some
degree of entrance of the male organ "within the labia of Pudendum."

In the following cases it has been held that entry of the labia or lips of the
female organ, merely, without rupture of the hymen or laceration of the
vagina, is sufficient to warrant conviction of the consummated crime of rape.
(Kenny vs. State [Tex. Crim. App.]; 65 L. R. A., 316; 79 S. W., 817 [1903].
See [Eng.] Reg. vs. Lines, 1 Car. & K., 393 [1844]; 44 N. W., 571 [1890];
[Tex.] Rodgers vs. State, 30 Tex. App., 510; 17 S. W., 1077 [1891]; [Wis.]
Brauer vs. State, 25 Wis., 413 [1870].)