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EN BANC

[G.R. No. 133226. March 16, 2000]


PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LOCSIN FABON @ "Loklok," accused-appellant.

DECISION

PER CURIAM:

Circumstantial evidence coupled with accused-appellant's flight from the town where the crime as committed sealed his fate and merited his conviction of a
heinous crime and the corresponding imposition of the supreme penalty of death. h Y

In an information filed before the Regional Trial Court of Hilongos, Leyte, docketed as Criminal Case No. H-642, accused-appellant Locsin Fabon, alias "Loklok."
was charged with the crime of robbery with homicide accompanied by rape and intentional mutilation.[1] The information reads:

That on or about the 23rd day of April 1995, in the Municipality of Hilongos, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court,
said accused at the house of the victim did then and there, willfully, unlawfully and feloniously with intent to gain by means of force and violence against one
BONIFACIA LASQUITE, take and carry away, sum of money consisting of bills of assorted denominations and coins amounting to TWENTY FIVE THOUSAND
PESOS (P25,000.00) more or less, Philippine Currency, and by reason or on occasion of the robbery the same accused attack (sic) and take (sic) the life of the
victim with the use of [a] bladed weapon, thus wounding:

1. Lacerated wound on (R) side of the forehead about 0.5 cm. x 0.2 cm. with a depressed skull fracture;

2. Stabbed (sic) wound (punctured-like) at the (R) side of the epigastic area;

3. Stabbed (sic) wound (punctured-like) at the 3rd intercostal space (L) parasternal line;

4. Depressed fracture (L) parieto-occipital area;

5. Hematoma formation, lower jaw and at the base of the neck;

6. Multiple hematoma formation at the epigastic area, RUQ and anterior chest wall; which clearly evince the manifest and intentional mutilation of victim's
person or corspe (sic); and likewise on the same occasion of the robbery, rape has (sic) been committed by the same accused on the person of the victim,
BONIFACIA LASQUITE, as shown by the autopsy report, thus:

7. Hematoma formation noted on both sides of vaginal canal and near urethral opening;

8. Hematoma formation (L) hand, dorsal aspect of metacarpo-phalangeal joint;

9. Tonge (sic) half bitten and directed to the right side.

ACTS CONTRARY TO LAW.[2]

Upon being arraigned on 26 September 1995, accused-appellant, assisted by counsel de oficio, Atty. Mario Alonzo of the Public Attorney's Office, pleaded
"not guilty" to the offense charged.[3]

The prosecution presented Benjamin Milano, the nine (9) year old nephew and neighbor of the accused-appellant, as its first witness. He testified that on 23
April 1995, at around five o'clock in the morning, he was awakened by his mother to fetch water for their morning meal.[4] Bringing along a container, he
then proceeded to the water pump of Bonifacia Lasquite, located at the back of the latter's house.[5] After filling up his container, he then went on his way
home.[6] However, while still near the house of Bonifacia Lasquite, he noticed that someone was coming from the fence of Bonifacia Lasquite's house.[7]
Although it was still a little dark,[8] he recognized it to be his uncle, accused-appellant.[9] While standing only five (5) meters away,[10] accused-appellant
asked him: "Toy, is there somebody fetching water?"[11] He responded in the negative. He noticed that the forehead, t-shirt and hair of accused-appellant
were stained with blood.[12] He also noticed that accused-appellant was carrying a plastic bag[13] and had a bolo tucked in his pants.[14] Accused-appellant
then walked away in a hurried manner while repeatedly looking over his shoulders.[15] Later on in the day, he was informed by a certain Emma about the
death of their neighbor, Bonifacia Lasquite.[16] Because of this, he informed Roberto Lasquite, the son of Bonifacia Lasquite, of his encounter with accused-
appellant in the early morning of the ill-fated day.[17]

The second witness presented by the prosecution was Mario Vinculado. He testified that he has been a resident of Brgy. Santa Cruz, Hilongos, Leyte, since his
birth and, as such, he knows both accused-appellant and the victim.[18] Sometime in the second week of August of 1995, he went to Ampayon, Butuan City
together with a police officer named Lumayno from the Hilongos Police Station.[19] He went to the said town because he was requested by Roberto Lasquite
to accompany police officer Lumayno in ascertaining whether accused-appellant was indeed in Ampayon pursuant to an information sent by the Butuan
Police Station to the Hilongos Police Station.[20] When they arrived in Ampayon, they went to the municipal jail where they found accused-appellant being
investigated by the police.[21] After the investigation, accused-appellant asked Mario Vinculado if they could have a talk.[22] During their conversation,
accused-appellant informed Mario Vinculado that he had a companion when he assaulted Bonifacia Lasquite[23] and that he was only able to stab the victim
twice in the breast.[24] Upon Mario Vinculado's return to his hometown, he informed the Hilongos police and Roberto Lasquite of the admission made to him
by accused-appellant. Jksm

The prosecution then presented Dr. Conrado Abiera as its expert witness. He testified that on 23 April 1995, he conducted an autopsy on the victim and,
correspondingly, accomplished a gross autopsy report.[25] The gross autopsy report reads: Chief

Name: BONIFACIA FABON LASQUITE Age: 64 years old

Address: Brgy. Sta. Cruz, Hilongos, Leyte Sex: Female

Civil Status:

Widow

Occupation: Housekeeper

Requesting Officer: Jaime S. Yamba

Sr. Insp. PNP


Acting Chief of Police

Date & Time of Autopsy: April 23, 1995 at 2:10 p.m.

Place of Autopsy: Brgy. Sta. Cruz, Hilongos, Leyte

General Survey: Fairly build (sic), fairly nourished, fairly developed, whole body covered with with (sic) blanket, when removed the face is (sic) covered with
moist, torned (sic) cloth the upper half of the body covered with cloth and lower half naked, in the state of cadaveric spasm with hematoma formation on the
jaw and base of the neck, lacerated wound on the forehead, stabbed (sic) wound on the anterior chest wall and multiple hematoma formation on the
anterior chest wall.

Pertinent Findings:

1. Lacerated wound on (R) side of the forehead about 0.5 cm. x 0.2 cm. with a depressed skull fracture.

2. Stabbed (sic) wound (punctured-like) at the (R) side of epigastric area.

3. Stabbed (sic) wound (punctured-like) at the 3rd intercostal space (L) parasternal line.

4. Depressed fracture (L) parieto-occipital area.

5. Hematoma formation, lower jaw and at the base of the neck.

6. Multiple hematoma formation at the epigastric area, RUQ and anterior chest wall.

7. Hematoma formation noted on both sides of vaginal canal and near the urethral opening.

8. Hematoma formation (L) hand, dorsal aspect of metacarpo-phalangeal joint.

9. Tongue half-bitten and directed to the right side.

Cause of Death: Internal Hemorrhage due to stabbed (sic) wound at the heart and liver area.

Suffocation secondary to strangulation.

(signed)

DR. CONRADO B. ABIERA III

Medical Officer III[26]

During his testimony, Dr. Abiera clarified the statements he made in the gross autopsy report. He stated that lacerated wound in the victim's forehead and the
depressed skull fracture, reported as the first item under the heading Pertinent Findings, signified that the victim was hit with a blunt instrument which could
have been a stone, a piece of wood or the back portion of a bolo.[27] He added that the same blunt instrument may have also been used in the depressed
fracture in the parieto-occipital area.[28] Dr. Abiera also explained that the punctured-like stab wounds, reported as the second and third items under the
heading Pertinent Findings, meant that the assailant used an instrument similarly shaped as an ice pick or a sharpened welding rod.[29] With regard to the
hematoma formation at the lower jaw and at the base of the neck, reported as the fifth item above, this signifies that the victim was strangled.[30] Dr. Abiera
added that the strangulation of the victim caused her to struggle for air and, in the process, she probably bit her tongue which, thus, accounts for the finding
in the ninth item above.[31] He concluded that this strangulation could not have been caused by a wire or a rope since these instruments would have left
marks in the neck of the victim. In his expert opinion, Dr. Abiera deduced that the victim was strangled through the use of a handkerchief or some other piece
of cloth.[32] With regard to the hematoma formation in the vaginal canal and near the urethral opening, the seventh item above, he explained that this could
mean that the victim was raped.[33] However, he clarified that he cannot assert such conclusion with certainty because he did not examine if there were
sperm cells in the victim's vagina since the autopsy was conducted in a barrio where there was no laboratory.[34] Looking at the gross autopsy report in its
entirety, Dr. Abiera concluded that the assault on the victim could have been done by more than one assailant considering that three devices were used in
attacking the victim, i.e., a blunt object, an ice-pick like tool and a cloth-like instrument. On the aspect of mutilation, Dr. Abiera stated that no vital part of the
victim's body was severed which, thus, negates mutilation.[35]

The fourth and final witness for the prosecution was the son of the victim, Roberto Lasquite. He testified that on 22 April 1995, he went with a friend to Sitio
Panas, Brgy. Bilibol, Southern Leyte, to attend a fiesta.[36] He stayed in the said place until the following day. On 23 April 1995, at around ten o'clock in the
morning, a certain Costan Taping informed him that his mother was dead.[37] He immediately went home together with Costan Taping and his fiancee and
arrived at their house at noon of the same day.[38] He found his mother lying dead on the kitchen floor with their things scattered.[39] When he searched for
the shell where they kept their money, it was no longer in its hiding place in their cabinet.[40] Inside the missing shell was the Twenty Five Thousand Pesos
(P25,000.00) that was sent to them by the victim's sister who lives in Denmark.[41] Later on in the day, Benjamin Milano informed him of his encounter with
accused-appellant while he was fetching water.[42] Because of this, he and the barangay tanods looked for accused-appellant.[43] They searched for accused-
appellant for more than a month but could not find him.[44] He only learned about the whereabouts of his mother's assailant when he was informed by
police officer Lumayno that accused-appellant had been arrested in Butuan City.[45] Roberto Lasquite then went to their councilor, Mario Vinculado, to
request the latter to go to Butuan City and confirm if accused-appellant indeed killed his mother. Esm

In his defense, accused-appellant took the witness stand and denied the accusations against him. He testified that he was registered as a resident of Brgy.
Bliss but he actually resides in the house of his brother in Brgy. Sta. Cruz,[46] which is around 380 meters away from the house of Bonifacia Lasquite, her
aunt.[47] He stated that in the morning of 22 April 1999, he was with his live-in partner, Prima Naul, washing clothes since they were preparing to leave for
Butuan City the following day[48] in order to look for her live-in partner's long lost father.[49] At noon of the same day, he and Prima Naul went to his
mother's house to have lunch.[50] They left his mother's house at around one oclock in the afternoon and returned to their house.[51] He turned in for bed
at around nine o'clock in the evening and woke up at 5:30 a.m. the following day, 23 April 1995.[52] He then prepared their provisions for their Butuan trip
and finished at around 8:00 a.m.[53] Thereafter, he went to the house of the Brgy. Captain of Brgy. Bliss to get a residence certificate.[54] He was informed by
the Brgy. Captain that he can get his residence certificate from the Brgy. Secretary, Mrs. Lumayno.[55] He went to the house of Mrs. Lumayno and was able to
get a residence certificate.[56] He and his live-in partner then proceeded to Butuan City and arrived thereat in the morning of the following day.[57] During
their stay in Butuan City, they were unable to locate her live-in partner's father. When inquired upon with regard to the testimony of Benjamin Milano,
accused-appellant denied that he saw the child in the morning of 23 April 1995. On cross-examination, accused-appellant testified that he does not know of
any reason why Benjamin Milano testified the way he did.[58] He also admitted having seen Mario Vinculado in the police station while he was incarcerated
and being investigated in Butuan City on account of another charge for robbery.[59] Despite his having seen Mario Vinculado, he denies having spoken with
the latter and that he admitted to killing the victim.[60] He reasoned that he was unable to speak with Mario Vinculado since he was being investigated by
the police.[61] He also stated that when he left for Butuan City, he was not aware that Bonifacia Lasquite was dead.[62] He, however, admitted that while he
was in Butuan City, he was informed by a certain Citas about the killing of the victim and that he was being made responsible for the same.[63] Nevertheless,
despite learning of this matter, he admitted not having exerted any effort to inform Roberto Lasquite of his innocence and justified his complacency with the
excuse that he had differences with Roberto Lasquite.[64] Their differences arose sometime in 1992 when he was accused by Roberto Lasquite of having
stabbed the latter's carabao.[65] Accused-appellant also admitted having escaped from prison during the pendency of the present case before the lower
court.[66] He was, however, recaptured by prison guards for which he suffered a gunshot wound.[67] When asked why he escaped, accused-appellant
reasoned that his decision to escape was due to the fact that he was denied his conjugal visits by prison authorities since Prima Naul was only his live-in
partner.[68]

The second and last witness presented by the defense was Remedios Lumayno, the secretary of the barangay who issued accused-appellant's residence
certificate.[69] She corroborated the testimony of accused-appellant that the latter obtained a residence certificate from her on 23 April 1995 at around eight
o'clock in the morning.[70] She also stated that when accused-appellant secured his residence certificate, the latter explained to her that he was going to use
it for his trip to Marangog where he will harvest coconut.[71]

In its Decision, dated 15 December 1997, the lower court convicted accused-appellant of the crime of robbery with homicide and rape aggravated by
dwelling. The pertinent portion of the decision reads: Esmsc

There having been sufficient and convincing evidence by the prosecution, the court finds and so holds the accused liable for robbery with homicide and rape
as charged. Robbery with Homicide is defined and penalized under Article 294, number 1 of the Revised Penal Code, as amended by R.A. 7659 with the
penalty of Reclusion Perpetua to Death, when by reason or on occasion of the robbery, the crime of Homicide shall have been committed or when the
robbery shall have been accompanied by rape or intentional mutilation or arson. The homicide committed by the accused on the occasion of the robbery of
victim Bonifacia Lasquite was perpetrated inside her home. Consequently, the aggravating circumstance of dwelling should be appreciated to maximize the
penalty.

WHEREFORE, premises considered, the Court finds the accused LOCSIN FABON, alias "Loklok" GUILTY beyond reasonable doubt of the crime of Robbery with
Homicide and Rape, penalized under Article 294, number 1 of the Revised Penal Code, as amended by R.A. 7659 and there being aggravating and no
mitigating circumstance hereby SENTENCES him to suffer the maximum penalty of DEATH.

In addition, the accused is ordered to pay the heirs of the victim Bonifacia Lasquite the following sums: Esmmis

a. P50,000.00 as indemnity for Bonifacia lasquite's death;

b. To pay the sum of P25,000.00 by way of reparation of the stolen cash money.

Cost taxed against the accused.

SO ORDERED.[72]

The case is now before us on automatic review pursuant to Section 10 of Rule 122.

Parenthetically, we note that the trial court inaccurately designated the crime committed as "robbery with homicide and rape."[73] When the special complex
crime of robbery with homicide is accompanied by another offense like rape or intentional mutilation, such additional offense is treated as an aggravating
circumstance which would result in the imposition of the maximum penalty of death.[74] In the case of People vs. Lascuna,[75] we said: Esmso

We agree with the Solicitor General's observation that the crime committed was erroneously designated as robbery with homicide, rape and physical injuries.
The proper designation is robbery with homicide aggravated by rape. When rape and homicide co-exist in the commission of robbery, it is the first paragraph
of Article 294 of the Revised Penal Code which applies, the rape to be considered as an aggravating circumstance. xxx[76]

We now come to the merits of the case. Msesm

The core issue the instant case is whether the circumstantial evidence on record forms an unbroken chain which leads to the conclusion that accused-
appellant committed the crime for which he is being made accountable for, to the exclusion of all others. Circumstantial evidence is defined as that which
indirectly proves a fact in issue.[77] Under Section 4 of Rule 133 of the Revised Rules on Evidence, circumstantial evidence is sufficient to convict an accused if
the following requisites concur: (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.

The peculiarity of circumstantial evidence is that the guilt of the accused cannot be deduced from scrutinizing just one particular piece of evidence. It is more
like a puzzle which, when put together, reveals a convincing picture pointing towards the conclusion that the accused is the author of the crime. Exsm

In the case at bar, the circumstantial evidence presented by the prosecution clearly establishes the guilt of accused-appellant and overpowers his defense of
denial and alibi. Aside from the fact that denial and alibi are inherently weak defenses, accused-appellant's alibi of being in his house at 5:30 in the morning
does not preclude his physical presence in the house of the victim considering that their respective residences are only 380 meters apart. Moreover, the
proven circumstances in the instant case, when viewed in their entirety, are as convincing as direct evidence and, as such, negate the innocence of accused-
appellant, to wit: (1) accused-appellant was present at the scene of the crime; (2) he had blood stains on his body and clothes, had a bolo tucked in his waist
and was carrying a plastic bag when he was seen leaving the scene of the crime; (3) he left Brgy. Sta. Cruz for Butuan City on the same day when the victim
was killed; (4) he admitted to Mario Vinculado that he kill the victim; (5) he did not even bother to inform Roberto Lasquite of his alleged innocence despite
having learned that he was being made accountable for the death of Bonifacia Lasquite; (6) he could not think of any reason as to why Benjamin Milano, his
nephew, would lie in testifying against him; and (7) he escaped from incarceration during the pendency of this case before the lower court. Clearly, the
foregoing evidence is consistent with the culpability of the accused and inconsistent with his defense of denial and alibi. Not the least worthy of notice is the
fact that accused-appellant twice sought to escape liability: first, on the day that the victim was killed and second, while he was incarcerated in prison. As has
often been repeated, flight is a strong indication of guilt.[78] The reasons put forward by accused-appellant to justify the two instances when he fled, i.e.,
first, to look for his live-in partner's long lost father and second, because he was denied conjugal visits, are simply too lame and whimsical to merit credibility.
Moreover, if the purpose of his trip to Butuan City was to look for his live-in partner's father, why did he not return immediately to Brgy. Sta. Cruz after he and
his live-in partner failed to locate the whereabouts of the said father? The only logical reason would be that he was avoiding something in Brgy. Sta. Cruz.
However, despite his efforts to escape from the long arm of the law, it still caught up with him in Butuan City. Kyle

In the appreciation of evidence in criminal cases, it is a basic tenet that the prosecution has the burden of proof in establishing the guilt of the accused for all
the offenses he is charged with - ei incumbit probatio non qui negat.[79] The conviction of accused-appellant must rest not on the weakness of his defense
but on the strength of the prosecution's evidence. In the present case, it is the opinion of the Court that although the prosecution has sufficiently established
accused-appellant's guilt for the crime of robbery with homicide, it has, however, failed to substantiate the alleged aggravating circumstances of rape and
intentional mutilation. As testified upon by the prosecution's expert witness, Dr. Abiera, it cannot be conclusively stated that the victim was raped. Due to the
fact that the entirety of the evidence presented in this case are all circumstantial, the fact that the victim was no longer wearing her underwear when her
cadaver was discovered and that the victim had hematoma formations on both sides of vaginal canal and near the urethral opening cannot conclusively prove
that she was raped. Moreover, the aggravating circumstance of intentional mutilation cannot also be appreciated since, as also testified upon by Dr. Abiera,
no vital body part was severed. Likewise, the fact that the victim's tongue was half-bitten does not prove intentional mutilation since it could have been
caused by the victim herself when she was fighting to breathe for air while she was being strangled by accused-appellant. Kycalr

However, despite our finding that accused-appellant cannot be made liable for the aggravating circumstances of rape and intentional mutilation, a finding
which would have lowered the penalty in the instant case to reclusion perpetua, accused-appellant will still have to suffer the supreme penalty of death due
to the attendance of the aggravating circumstance of dwelling[80] which was alleged in the information and duly proven during the trial. Dwelling is
considered aggravating primarily because of the sanctity of privacy that the law accords to the human abode.[81] In People vs. Cabato,[82] we ruled that:
"Dwelling is aggravating in robbery with violence or intimidation because this class of robbery can be committed without the necessity of trespassing the
sanctity of the offended party's house."[83]

The penalty for robbery with homicide is reclusion perpetua to death which is composed of two (2) indivisible penalties. Applying Article 63 of the Revised
Penal Code, the imposable penalty in the present case is death due to the presence of the aggravating circumstance of dwelling and the absence of any
mitigating circumstance.

Although four Justices continue to maintain that Republic Act No. 7659, insofar as it imposes the death penalty, is unconstitutional, they nevertheless submit
to the ruling of the majority that the law is constitutional and that the death penalty should accordingly be imposed. Calrky

IN VIEW OF THE FOREGOING, the Court finds the accused Locsin Fabon, alias "Loklok," guilty beyond reasonable doubt of the crime of "robbery with
homicide" under Article 294 (1) of the Revised Penal Code, as amended by Republic Act No. 7659,[84] with the aggravating circumstance of dwelling, and
hereby sentences the said accused to suffer the supreme penalty of death, to indemnify the heirs of Bonifacia Lasquite in the amount of Fifty Thousand Pesos
(P50,000.00) and to pay Twenty Five Thousand Pesos (P25,000.00) as actual damages for the stolen money.

In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let copies of the records
of this case be forthwith forwarded to the Office of the President of the Philippines for possible exercise of clemency or pardoning power. Mesm

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Gonzaga-Reyes, Ynares-Santiago, and De Leon,
Jr., JJ., concur.

Buena, J., on leave.


EN BANC

[G.R. Nos. 130665 and 137996-97. April 21, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO BALIAO EMPANTE @ PETER, accused-appellant.

DECISION

PER CURIAM:

This is an appeal from the decision of the Regional Trial Court of Oroquieta City, Misamis Occidental (Branch 12) finding accused-appellant Pedro Baliao
Empante guilty of three counts of rape against his daughter, Elvie Empante, then below 18 years of age, and sentencing him to death and to indemnify his
daughter in the amount of P50,000.00 and to pay her moral damages in the amount of P50,000.00 for each count of rape. Accused-appellant admits his guilt.
He contends, however, that the trial court erred in sentencing him to death because it should have appreciated two mitigating circumstances in his favor, i.e.,
voluntary confession of guilt and intoxication, and sentenced him to a lesser penalty.

The facts are as follows:

Accused-appellant Pedro B. Empante is married to Flaviana Intong Empante, by whom he has four children, namely, Elvie, Elmer, Elna, and Eric. Elvie, the
eldest, was born on March 6, 1982 (Exh. A). During the time relevant to these cases, accused-appellant worked as a laborer at a quarry in Barangay Unidos,
Plaridel, Misamis Occidental, while his wife worked as a domestic helper outside Plaridel and went home only on weekends.

In November 1994, Elvie, then only 12 years old and a Grade VI student, was left alone with her father, accused-appellant, in their house at Sitio Napo,
Barangay Unidos, Plaridel, Misamis Occidental. For some reason, her mother, brothers, and sister were all out at that time. She was cleaning the living room
of their house when she was called by accused-appellant to his room. When Elvie approached him, accused-appellant, without warning, poked a hunting
knife (Exh. B) on her right side and told her not to make any noise, otherwise he would kill her. Elvie described the knife as one with a sharp blade and a
wooden handle covered by black tape wound around it. Accused-appellant pushed her to the bed as a result of which she fell on her back. Accused-appellant
then went on top of her. He removed her shorts and panties with his right hand as he held with his left hand the hunting knife. After removing his shorts,
accused-appellant succeeded in violating his daughter. Elvie resisted and tried to prevent accused-appellant from ravishing her by closing her thighs, but her
efforts proved futile. Elvie felt pain in her private parts. She was warned not to tell her mother about the incident or accused-appellant would kill both of
them. Elvie knew her father to be a violent man. He maltreated her mother and threatened her with a bolo. Hence, when her mother arrived later that day,
Elvie did not tell her anything about the incident.[1]

The family later moved from Sitio Napo to a place near the national highway, also in Barangay Unidos, Plaridel, Misamis Occidental. In the evening of
December 24, 1996, Elvie was left at home with only her younger brothers Elmer and Eric, their younger sister being then in the house of their grandmother,
Lourdes Intong. Elvie was going to church with her mother to hear midnight mass, but accused-appellant told her to stay home on the pretext that he would
be going to work the next morning. Elvie, therefore, prepared to go to sleep. She was made to sleep near the wall, with her father at her left side. Her two
young brothers, Eric and Elmer, slept beside their father. Elvie was awakened as she found accused-appellant on top of her. She noticed that her shorts and
underwear had been removed and that her father was naked from the waist down. She tried to free herself from her fathers hold and prevent him from
ravishing her by closing her thighs, but he was too strong for her. Elvie testified that a hunting knife (Exh. B) was pointed at her side. She knew that he had
succeeded in inserting his penis into her vagina because she felt pain in her private parts. As accused-appellant did the sexual act, he kissed Elvie all over the
face, neck, and breast, even sucking her lips and telling her to stick out her tongue. So revolted was she by what her father was doing to her that she tried to
cover her face with her hands. After satisfying himself, accused-appellant put on his shorts and gave Elvie her panties and shorts to wear. Again Elvie did not
tell her mother, who arrived late that night, about the incident because of fear of her father.[2] She, however, asked her mother to let her sleep in another
room. But when accused-appellant learned that Elvie was not in his room, he got mad and forced the door open. He slapped her, hit her on the back, pinched
her side, and then grabbed and dragged her outside. Elvies mother was not home at that time, but when she arrived Elvie told her about her experience.
Elvies mother confronted her father and a quarrel ensued between the two.[3]

Elvie went to her grandmothers house, located a few kilometers away, and stayed there, but her father forced her to come home with him.[4]

On January 16, 1997, Elvies mother left their house to work in Manila after being beaten up by accused-appellant. As a result, Elvie was left with no one to
protect her. In the evening of January 18, 1997, she was again molested by her father. She was asleep when accused-appellant went on top of her. When she
woke up, she found that her shorts and underwear had already been removed. As before, she tried to hold her father at bay and prevent him from
dishonoring her, but she was threatened with a hunting knife (Exh. B). Accused-appellant again was able to have sexual intercourse with her. In anger, she
demanded from him, Why do you sexually abuse me? Why not go to others? To this, accused-appellant answered, Why [do I have to] go to others when you
are here?[5] even as he covered her mouth with his hands to keep her from talking. After accused-appellant was through, he put on his shorts and slept
beside her. Elvie could not sleep and kept crying. As her sobbing kept her father awake, he hit her on the back and threatened her with harm if she did not
stop.[6]

Elvie feared that, with her mother gone, her father would make a mistress of her. She went to the house of her grandmother the next morning and told her
her story. Her grandmother, Lourdes Intong, lost no time in taking her to the barangay captain who referred them to the police and advised them to take Elvie
to the hospital for examination. On the same day, Elvie was examined by Dr. Jona Handumon at the Calamba District Hospital in Calamba, Misamis Occidental.
The medico-legal report (Exh. C) of Dr. Handumon contained the following findings:

Date & Time of Examination: January 19, 1997

Findings:

- NORMAL EXTERNAL GENITALIA

- NULLIPAROUS VAGINA

- BLUNT & ROUNDED POSTERIOR FOURCHETTE

- (+) HEALED LACERATION AT POSTERIOR FOURCHETTE

- INTROITOUS ADMITS 2 FINGERS EASILY

- HYMEN RUPTURED W/ HEALED LACERATIONS AT 2:00 & 7:00 POSITIONS

- CERVIX CLOSED, FIRM

- (+) MUCOID, WHITISH DISCHARGES AT OS

- CORPUS SMALL

- (-) ADNEXAL MASS & TENDERNESS[7]

On June 20, 1997, Elvie filed with the Philippine National Police at Plaridel, Misamis Occidental three criminal complaints for rape which became the basis of
informations lodged with the Regional Trial Court of Oroquieta City against accused-appellant.

In Criminal Case No. 1301, it was alleged -

That on or about January 18, 1997 at about 8:00 oclock in the evening at barangay Unidos, Plaridel, Misamis Occidental, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused PEDRO BALIAO EMPANTE alias Peter through threats, force and intimidation and with the use
of a hunting knife wilfully, unlawfully and feloniously did then and there lie and succeeded in having carnal knowledge with complainant Elvie Empante, his
own daughter, a minor, 15 years of age and against her will.

CONTRARY TO LAW, aggravated that the victim is a minor, a 15 year old and the offender is the parent-father of the victim and use of a hunting knife.

Upon being arraigned on May 7, 1997, accused-appellant, assisted by counsel, Atty. Rudy Magsayo, entered a plea of not guilty. Thereafter, the trial was set
by the court on June 6, 1997.

Two more cases were later filed in court against accused-appellant. The information in Criminal Case No. 1304 alleged -

That sometime in November 1994 at 10:00 a.m. at their house at Napo, barangay Unidos, municipality of Plaridel, Province of Misamis Occidental, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused Pedro Baliao Empante, through threats, force and intimidation and with the
use of a hunting knife willfully, unlawfully and feloniously did then and there have carnal knowledge with Elvie Empante his own daughter, a 12 year old girl
against her will and without her consent.

CONTRARY TO LAW, with the qualifying circumstances of minority, Elvie Empante was a 12 year old girl a legitimate daughter of accused and with the used
[sic] of a hunting knife.

In Criminal Case No. 1305, the information alleged substantially the same facts except as to the date of the incident which occurred at around 10 p.m. on
December 24, 1996.

Accused-appellant pleaded not guilty to the two charges.

The cases were thereafter tried together beginning June 6, 1997. The prosecution presented Elvie as its first witness. On June 16, 1997, accused-appellant,
through his counsel, asked the court to allow him to change his plea from not guilty to guilty. His motion was denied on the grounds that the prosecution had
already started presenting its evidence and that the purpose [of the accused-appellant in] changing his plea was to be given a lighter penalty of reclusion
perpetua and not that of death x x x x[8]

On the third day of trial on June 20, 1997, accused-appellant again asked the court to allow him to change his plea, assuring the court that his plea would be
unconditional and that he would accept whatever penalty the court would impose on him. The trial court then asked several questions from accused-
appellant to determine if he understood the consequences of a plea of guilty. Having been satisfied that the plea of guilty was freely, knowingly, and
voluntarily being made, the trial court ordered accused-appellant re-arraigned by having the informations read to him in the Cebuano-Visayan dialect, which
he understood, after which he pleaded guilty to all counts of rape.[9]

The trial court then directed the prosecution to complete the presentation of its evidence. Aside from Elvie, the prosecution presented Lourdes Intong, Elvies
grandmother and accused-appellants mother-in-law. Lourdes Intong testified that at about 7 a.m. on January 19, 1997, Elvie went to her house and told her
that she had been sexually abused by her father several times. Lourdes confirmed that she accompanied Elvie to the hospital where Elvie was examined and
to the local authorities with whom Elvie filed her complaints against accused-appellant. Lourdes testified that, while accused-appellant was in detention
pending investigation, he talked to her and asked for her forgiveness, but she told him to ask for forgiveness from Elvie. For this reason, accused-appellant
sent relatives to talk to Elvie since the latter refused to see or talk to him personally. In addition, accused-appellant wrote Elvie three letters in which he asked
for forgiveness so that he will be given a lighter sentence for his crimes. The letters could not be presented in court as they had been destroyed by Elvie who
did not then realize they could be used in evidence.[10]

After the prosecution had rested its case, accused-appellant was presented as the sole witness by the defense. Accused-appellant admitted having raped his
daughter, claiming, however, that he was drunk at the time. He denied that he used a hunting knife to threaten his daughter and claimed that he only
threatened her verbally. He alleged that he did not have any hunting knife and that the hunting knife (Exh. B) presented in court, which Elvie and her
grandmother claim to have found in a closet (aparador) in his house when he was detained, belonged to the brother of his mother-in-law, Pablo Calunod.[11]

On June 30, 1997, the trial court rendered its decision, the dispositive portion of which reads:

WHEREFORE, finding him guilty beyond reasonable doubt of the crime of rape committed upon his own daughter Elvie Empante who was then below
eighteen (18) years old in all the three criminal cases, the Court hereby sentences accused PEDRO BALIAO EMPANTE:

1. In Criminal Case No. 1301, to suffer the penalty of death and to indemnify Elvie Empante the amount of P50,000.00 and to pay her the additional sum of
P50,000.00 for moral damages;

2. In Criminal Case No. 1304, to suffer the penalty of death and to indemnify Elvie Empante the amount of P50,000.00 and to pay her the additional sum of
P50,000.00 for moral damages; and

3. In Criminal Case No. 1305, to suffer the penalty of death and to indemnify Elvie Empante the amount of P50,000.00 and to pay her the additional sum of
P50,000.00 for moral damages.

The records of the three criminal cases including the transcripts of stenographic notes are hereby ordered forwarded to the Honorable Supreme Court for
automatic review pursuant to Article 47 of the Revised Penal Code, as amended by Republic Act No. 7659.

With costs against the accused.

Accused-appellant does not seek a reversal of the findings of the trial court. In his lone assignment of error, he argues that -

THE TRIAL COURT ERRED IN IMPOSING THE EXTREME PENALTY OF DEATH DESPITE THE PLEA OF THE ACCUSED-APPELLANT FOR HUMANITARIAN
CONSIDERATION AS WELL AS THE PLEA OF GUILTY AND THE DEFENSE OF INTOXICATION WHICH MITIGATE HIS LIABILITY DESERVES A PENALTY OF RECLUSION
PERPETUA ONLY.

After reviewing the evidence in these cases, the Court finds no reason to alter, much less to reverse, the decision of the trial court. The evidence establishes
beyond reasonable doubt the guilt of accused-appellant. The testimony of complainant is plain, straightforward, and positive. Although in rape cases it is
sufficient for the offended party to state that she has been raped, in the cases at bar, complainants testimony is filled with details which can only enhance its
credibility. With clarity and candor, complainant recounted the manner in which she was raped on the three occasions stated in the informations. Her
testimony was in fact corroborated even by accused-appellant.

The defense points out an alleged contradiction between what she said during trial (that accused-appellant was not drunk when he raped her)[12] and what
she said in her sworn statement before the police (that accused-appellant smelled of liquor on January 18, 1997 when he raped her).[13] We are not
persuaded. It may be that accused-appellant had taken some liquor and, for that reason, smelled of alcohol, but he was not drunk or inebriated. In any event,
the inconsistency concerns a minor matter and does not affect the credibility of complainants testimony. To the contrary it serves to strengthen her credibility
as it shows that her testimony is not contrived.[14]

Nor is there any reason to suspect complainant of any ill motive. She complained against her father because of what he had done to her. Complainant
testified:

PROSECUTOR CARRIAGA-OMANDAM:

Q. Now before you filed these present cases against your father, had you considered that by filing these cases you are exposing yourself to shame, dishonor
and humiliation?

ATTY. MAGSAYO:

Objection! Witness is incompetent, Your Honor.

COURT:

She is already fifteen years old. She knows what is right and wrong. Proceed.

WITNESS:

Yes, sir.

PROSECUTOR CARRIAGA-OMANDAM:

Q. And yet you pursued these cases?

A. Yes, sir.

Q. Why?

A. Because I wanted my father to be imprisoned [for] what he had done to me.

COURT:

Q. Now if the law provides that by the act of your father he would be penalized [with] the penalty of death, what will be your feeling?

A. He did not even [take] pity on me, his own daughter.[15]

There is no reason to doubt the veracity of Elvies testimony. As we recently held in People vs. Calayca:
We believe that a teenage unmarried lass would not ordinarily file a rape charge against anybody, much less her own father, if it were not true. For it is
unnatural for a young and innocent girl to concoct a story of defloration, allow an examination of her private parts, and thereafter subject herself to a public
trial if she has not, in fact, been a victim of rape and deeply motivated by a sincere desire to have the culprit apprehended and punished.[16]

Moreover, it is hardly necessary to say that the evaluations of trial courts of the testimonies of witnesses are entitled to great respect because of their
opportunity to observe the demeanor of witnesses in determining whether they are telling the truth.[17] In these cases, the trial court said in its decision:

Aware of its duty to exercise as it did exercise the greatest degree of care and caution in scrutinizing the testimony of the complainant in these rape cases and
to render judgment of conviction only when the complainants sincerity and candor are free from suspicion, the Court after having thoroughly observed the
demeanor and conduct of complainant Elvie Empante on the witness stand, is fully convinced of the guilt of the accused Pedro Baliao Empante in the three
criminal cases. The testimony of the complainant in describing the manner by which she was sexually abused by no less than her own legitimate father is so
clear, positive and convincing to admit any doubt that the accused committed the crime charged in at least three occasions for having carnal knowledge of a
woman (his daughter Elvie Empante) x x x by using force or intimidation (Article 335, paragraph 1, Revised Penal Code) with the use of a hunting knife.[18]

Above all, whatever doubt there might be as to accused-appellants guilt should be dispelled by his admission that he had indeed raped complainant. His only
reservations are with respect to minor details which are inconsequential in determining his guilt and the penalty to be imposed upon him, to wit:

1. He did not threaten complainant using a hunting knife when he raped her but only verbally did so.[19]

2. He could not recall the exact time he raped his daughter on December 24, 1996 and January 18, 1997 because he was drunk on both occasions.[20] But he
admitted that he was awakened at dawn on December 25, 1996 by the sobbing of his daughter who told him that he had raped her, although he denied
hitting Elvie on the back to stop her from crying.[21]

3. He denied that he forbade Elvie from sleeping in the other room or in her grandmothers house. He claimed that it was his daughter herself who insisted on
sleeping beside him.[22]

The prosecution presented the hunting knife (Exh. B) which complainant said her father had threatened her with. There is really no need to pass upon
accused-appellants claim. For even if no knife was used by accused-appellant, his admission that he was able to rape his daughter by threatening her is
sufficient considering the moral ascendancy that he has over his child.[23]

Accused-appellant also claimed that he was drunk on the three occasions when he raped his daughter, but denied that he is a habitual drinker.[24] He also
claimed to have been so intoxicated that he did not know what he was doing.[25]

The trial judge correctly rejected the claim of intoxication as a mitigating circumstance.[26] For even if accused-appellant was intoxicated and he is not a
habitual drinker, to be considered mitigating, the intoxication must be shown to have so impaired his willpower that he did not know what he was doing or
could not comprehend the wrongfulness of his acts.[27] In these cases, not only did complainant deny that her father was drunk when he raped her, but the
fact that accused-appellant himself could recall details of the rape incidents (i.e., time of the day as regards the November 1994 incident, the manner he
raped his daughter, what his daughter was wearing, how he forced and threatened her to submit to his desires)[28] is the best proof that he knew what he
was doing on those occasions.

Indeed, accused-appellant himself said that his plea of guilty was unconditional. His plea was an admission of everything alleged in the informations. The trial
judge took care that the safeguards for its admission, as provided in Rule 116, Section 3 of the Rules of Court and in existing jurisprudence, were observed.
The transcript of stenographic notes taken at the proceedings held on June 20, 1997 shows this and leaves no room for doubt that accused-appellants plea
was not improvidently given:

PROS. CARRIAGA-OMANDAM:

I respectfully appear for the prosecution.

ATTY. MAGSAYO:

Appearing as counsel for the accused, ready.

Last time we move[d] to withdraw the plea of not guilty entered by the accused but [it was] denied by this honorable court. In view of the denial we reiterate
our motion that the accused is willing to enter a plea of guilty and he is willing to withdraw his plea of not guilty to that of guilty.

COURT:

So, you are asking the court to reconsider the previous ruling denying the plea of guilty of the accused.

COURT TO ACCUSED:

Q In the previous hearing you ask the court that you be allowed to enter a plea of guilty and replace that of not guilty previously entered by you. However,
during the discussions on that motion you had in mind the possibility that the penalty be only reclusion perpetua and not death. For that reason the plea of
guilty to the crime charged becomes conditional and moreover the prosecution has already started the presentation of its evidence and so the court denied
your motion to withdraw your plea of not guilty and replace that with the plea of guilty.

Q Now, you are again reiterating your motion for you to enter a plea of guilty and consequently you are asking the reconsideration of the order of the court
denying your motion. Now the court is asking, would that plea of guilty be [conditional]?

A No more.

Q Do you know the consequence of your change of plea from that of not guilty to that of guilty?

A Yes.

Q Do you know that because of your plea of guilty the court may impose a death penalty?

A Yes.

Q Despite the fact that . . . now, with your plea of guilty, the court may attend to the death penalty, you are still insisting to proceed with your move to enter a
plea of guilty?
A Yes, I will proceed with my plea of guilty.

Q Why have you change[d] your mind and insist to enter now a plea of guilty when before you have entered the plea of not guilty?

A Because at that time I still plan to talk first with my wife.

Q At that time where was your wife?

A She is in Manila.

Q This time where is your wife?

A She is still in Manila.

Q And so you have not yet talk to your wife?

A No, I have not yet talk[ed] to my wife but this is already my decision.

xxxxxxxxx

COURT:

Q Did you ask your mother-in-law to intercede for you and to request your wife to forgive you?

A Yes.

Q Now, what was the reaction of your wife on that particular request through the telephone?

A That she can still forgive me being my wife as a human being but the case is now with the government already.

Q Did your wife through the telephone conversation tell your mother-in-law that your wife submits to whatever the law provides?

A Yes.

Q And because you were informed by your mother-in-law the result of the telephone conversation with your wife, what have you finally decided?

A I am now going to admit and enter the plea of guilty and I will entrust everything to the Lord.

Q The court would like to know your version of the case considering that this is a heinous crime attached to it is the capital punishment of death, are you
willing to testify on how come that this incident happened?

A Yes.

Q So, you are going to testify in this case?

A Yes.

Q You will be allowed by the court because that is your right?

A Yes.

COURT:

Q Despite the fact that you have already entered a plea of guilty?

A Yes.

Q The Court would allow you to testify in your behalf for the court to determine the appropriate penalty that may imposed upon you?

A Yes.

Q The court however will proceed with the presentation of the evidence of the prosecution to establish your guilt even if you have manifested to enter a plea
of guilty for the purpose again of the court to determine the appropriate penalty for you to be punished?

A Yes, sir.

PROS. OMANDAM:

The prosecution would like to ask the accused if he is admitting in these three cases. I would like to ask permission that the following questions be
propounded to the accused: whether said accused is admitting his guilt in these three cases [of] rape [he] committed [against his] daughter. I would like to
emphasize Crim. Case Nos. 1301, 1304 & 1305.

COURT:

May I ask the counsel for the accused on the comment on the manifestation of the handling prosecutor.

A Yes, your honor, he is willing to [admit to] these three cases.

The handling prosecutor may ask now the accused concerning the matter brought out by him despite the statement given by the counsel that the accused is
willing to admit the three cases.

PROS. OMANDAM:
Q Mr. [Empante], would you also admit that you rape[d] your daughter in these three cases 1301, 1304 and 1305?

A Yes.

Q You heard your daughter testifying, do you admit that all the testimonies of your daughter is true?

A Yes.[29]

Thus, accused-appellant entered his plea of guilty freely, voluntarily, and with full understanding of its consequences and should be bound by it.

Accused-appellant asseverates that his plea of guilty mitigates his liability. The contention has no merit. To be considered a mitigating circumstance, a plea of
guilty must be made spontaneously by the accused, in open court, prior to the presentation of evidence for the prosecution.[30] In the cases at bar, accused-
appellant at first pleaded not guilty and only confessed his guilt after the prosecutions first witness was nearly finished with her testimony. Such a belated act
of remorse or contrition[31] cannot be considered spontaneous or timely within the contemplation of the law.[32]

Be that as it may, as we recently held in People vs. Mengote[33] and People vs. Robles,[34] even if the plea of guilty entered by accused-appellant satisfied
the requisites laid down by law, it would not serve to mitigate his liability for qualified rape and justify the imposition of a lighter penalty. Article 335 of the
Revised Penal Code, as amended by Republic Act No. 7659, states:

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

1. By using force or intimidation;

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

3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death.

When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to
death.

When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death.

The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:

1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law spouse of the parent of the victim.

2. when the victim is under the custody of the police or military authorities.

3. when the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity.

4. when the victim is a religious or child below seven (7) years old.

5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease.

6. when committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency.

7. when by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation.

As held in People vs. Garcia,[35] the seven (7) circumstances enumerated in this provision are special qualifying circumstances, the presence of any of which
takes the case out of the purview of simple rape and effectively qualifies the same by increasing the penalty one degree higher. Qualified rape is thus
punishable by the single indivisible penalty of death, which must be applied regardless of any mitigating or aggravating circumstance which may have
attended the commission of the deed.[36]

In these cases, the informations charged accused-appellant with having committed the crime of rape qualified against complainant, under 18 years old, who
is his daughter. As the charges were proven beyond reasonable doubt, the imposition of the death penalty is required.

Four (4) Members of the Court, although maintaining their adherence to the separate opinions expressed in People vs. Echegaray[37] that Republic Act No.
7659 insofar as it prescribes the penalty of death is unconstitutional, nevertheless submit to the ruling of the majority that the law is constitutional and that
the death penalty should accordingly be imposed.

With respect to the monetary liability of accused-appellant, the trial courts award of P50,000.00 for indemnity in each case should be increased to
P75,000.00 in line with prevailing jurisprudence. The award of P50,000.00 for moral damages is correct and should be maintained, it being assumed that the
victim has suffered moral injuries entitling her to such an award.[38]

WHEREFORE, the decision of the Regional Trial Court of Oroquieta City (Branch 12) is AFFIRMED with the modification that accused-appellant is ORDERED to
indemnify complainant Elvie Empante in each case the amount of P75,000.00 and to pay her P50,000.00 as moral damages.

In accordance with Section 25 of Republic Act No. 7659 amending Article 83 of the Revised Penal Code, upon finality of this decision, let the record of these
cases be forthwith forwarded to His Excellency, the President of the Philippines, for his reference in case he decides to exercise his prerogative of mercy.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and Ynares-
Santiago, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. L-25375 and 25376 October 8, 1926

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,


vs.
VICENTEDE LEON Y FLORA, defendant-appellant.

Modesto Reyes for appellant.


Attorney-General Jaranilla for appellee.

VILLAMOR, J.:

Early in the morning of December 21, 1925, Vicente de Leon y Flora entered the yard of Vicente Magat's house on Domingo Santiago Street, Manila, and
without violence or intimidation against persons nor force upon things, took, with intent to gain, two game roosters which were in the yard, one with colored
plumage valued at P8 belonging to Diego Magat, and the other with white plumage and black spots, valued at P10, belonging to Ignacio Nicolas.

Vicente de Leon y Flora was prosecuted in the municipal court for two crimes of theft, on the theft of Magat's rooster and the other that of Nicolas'. Upon
being arraigned, the accused pleaded guilty and was sentenced by the municipal court in each to suffer the penalty of three years, six months and one day
presidio correcional, to return the stolen roosters to their respective owners and to pay the costs in both cases. The accused appealed from this judgment to
the Court of First Instance, and, upon being arraigned upon the same informations, pleaded not guilty in both cases, which were tried jointly by agreement of
the parties approved by the court.

In view of the evidence, the trial court found the accused guilty of one crime of theft, holding that the theft of the two roosters constituted but one crime,
and taking into consideration the circumstance that the accused is an habitual delinquent sentenced him in said two cases to the penalty of three years, six
moths and one day presidio correccional and to pay the costs in case R. G. No. 25375, declaring the costs in case No. 25376, de oficio without the obligation
to indemnify, as the roosters were returned to their respective owners. The accused appealed to this court and his counsel alleges that the trial court erred:
(a) In holding that the guilt of the accused was proven by his own admission; (b) in not giving him the benefit of reasonable doubt, and (c) in sentencing
instead of acquitting the accused, with the costs de oficio.

We have reviewed the evidence and find no grounds to support the contention of the appellant. We are of the opinion, and so hold, that the guilt of the
accused in the present case is proven beyond a reasonable doubt. The case falls under the provisions of paragraph 5 of article 518 of the Penal Code,
amended by section 1 of Act No. 3244, in connection with paragraph 3 of article 520 of the same Code. The penalty provided in the law is that of presidio
correcional in its full extent, and there having been present the aggravating circumstance of nocturnity, the penalty must be imposed upon the accused in its
maximum degree, or four years, two moths and one day presidio correcional. The accused being an habitual delinquent, under Act No. 3062 an additional
penalty must be imposed upon him consisting of half the penalty provided or the crime committed, or 2 years and 1 month presidio correcional. (People vs.
Aguinaldo, 47 Phil., 728; People vs. Espiritu, R. G. No. 24753 1).

We could stop right here, but the Attorney-General raises a question in his brief which we believe it is necessary for us to resolve now, due to the fact that it is
not only important to our jurisprudence, but also to the due prosecution of violators of the law. The Attorney-General urges that the penalty for two crimes of
theft be imposed upon the accused for each of the stolen roosters. The question, then, to determine is whether or not the fact that the accused, with intent
to gain, on the same occasion and in the same place, took the two roosters, one belonging to Vicente Magat and the other to Ignacio Nicolas, constitutes two
crimes of theft.

It will be remembered that article 517 of the Penal Code contains three paragraphs enumerating the acts which constitute the crime of theft. The first defines
theft in general; the second declares a particular act to be theft which is not included in the description in the first paragraph, and the third also considers
theft a series of acts with similar characteristics to the general type, with the exceptions therein noted.

Article 517 of the Penal Code reads as follows:

ART. 517. The following are guilty of theft: 1awph!l.net

1. Any person who, with intent to gain, but without the use of violence or intimidation against any person or the use of force upon anything, shall take
anything which is the personal property of another without the latter's consent.

2. Any person who, having found anything which has been lost, shall with knowledge of its ownership appropriate the same with of gain.

3. Any person guilty of malicious damage who shall remove or make use of the things damaged, subject to the exceptions established by paragraphs
one two, and three of article five hundred and ninety-two paragraph one of article five hundred and ninety-three; paragraph one of article five hundred and
ninety-five, and articles five hundred and ninety-six, five hundred and ninety-eight, and six hundred and three.

As may be seen, the act taking another's property without violence or intimidation against persons, not force upon things, with intent to gain and without the
consent of its owner, is what constitutes the crime of theft, as described in the first paragraph of article 517.

The crime of theft is an offense against personal property and what is punished is the alarm caused in the community by the perpetration of the act which is
violative of the individual rights guaranteed by the law, as well as the damage that said act may occasion to the members of the community. Under sound
principles, the act of taking the two roosters, in response to the unity of thought in the criminal purpose on one occasion, is not susceptible of being modified
by the accidental circumstance that the article unlawfully belonged to two distinct persons. There is no series of acts here for the accomplishment of different
purposes, but only one of which was consummated, and which determines the existence of only one crime. The act of taking the roosters in the same place
and on the same occasion cannot give rise to two crimes having an independent existence of their own, because there are not two distinct appropriations nor
two intentions that characterize two separate crimes.

The Supreme Court of Spain, in its decision of July 13, 1894, said:

The act of unlawfully taking two colts, two cows and two calves on one night, belonging to four owners, which livestock was found in various adjacent and
open meadows, constitutes only one crime of theft, because the fact that the persons injured by the taking of the cattle by the accused were several, said
accused knowing that the meadows in which this livestock was found were open and adjacent, it being easy to pass from one to the other, does not authorize
the legal conception that the said accused committed four thefts on said night, but only one as found by the lower court, which did not commit an error of
law by holding that the acts were committed on a single occasion.
It is not an element of the crime of theft that the culprit know the owner of the thing stolen, the crime being consummated provided that being stolen
belongs to another and the same is taken with intent to gain. (Decision of the supreme Court of Spain of November 22, 1898.) Neither is it necessary for the
existence of the crime of theft that it should appear in a specific manner who the owner is of the thing stolen, because the law does not require it nor does it
affect the criminal liability, but only the restitution or indemnification of damages, which are merely of a civil nature. (Decision of the Supreme Court of Spain,
October 4, 1905.) What constitutes the crime of theft is the taking of another's property with intent to gain, without the consent of the owner, so that after
the unlawful act of taking another's property is proven, it is evident that all the elements mentioned in the first paragraph of article 517 of the Penal Code
exist. Therefore, we are of the opinion that the unity of the intention to take a thing belonging to another on one occasion and in the same place, constitutes
the commission of only one crime of theft; and fact that the things taken belong to different persons does not produce a multiplicity of crimes, which must be
punished separately.

In arriving at this conclusion, we have not lost sight of the doctrine laid down in United States vs. Balaba (37 Phil., 260), according to which, where the
accused made no objection to the information on the ground that it charged more than one offense, the prosecution properly submitted evidence as to the
commission of each and all of the offenses charged; and the trial court also properly entered judgment of conviction of each and all of these offenses which
were established by the introduction of competent evidence at the trial and should, therefore, have imposed the prescribed penalties for each and all of the
offenses of which the accused was convicted in accordance with the provisions of article 87 of the Penal Code. This doctrine, however, is not applicable to the
present case as two separate complaints have been filed herein against the accused, but the trial court convicted the accused in the two cases, considering
the facts alleged in the said complaints as constituting but one crime.

In American cases the same doctrine is maintained as in Spanish decisions in regard to the question which is here debated:

In Corpus Juris, vol. 36, page 799, it is said in regard to the taking of articles belonging to two different owners at the same time and place: "In a few
jurisdictions the rule obtains that if two or more articles belonging to different are stolen at the same time and place, the theft of the property of each owner
is a separate crime and may be prosecuted as such." (U. S. vs. Beerman, 24 Fed. Cas. No. 14,560; 5 Cranch C. C., 412; State vs. Thurston 27 S. C. L., 382;
Morton vs. State, 1 Lea [Tenn.], 498.) In other jurisdiction it is held that such a theft may be prosecuted, at the pleasure of the State, either as one offense or
as several distinct offenses. (Bushman vs. Com., 138 Mass., 507; Com. vs. Sullivan, 104 Mass., 552; State vs. Douglas, 26 Nev., 196; 65 Pac., 802; 99 Am. St.,
688; State vs. Lambert, 9 Nev., 321.) But the prevailing rule is that if several articles, stored in the same place, are taken by a single larcenous act, the mere
fact that some of them belonged to one person and some to another does not dissolve the act into separate crimes. (Ala.-Clemm vs. State, 154 Ala., 12; 45
So., 212; Am. St., 17; D. C.-Chanock vs. U. S., 50 App., 54; 267 Fed., 612; Holies vs. U. S., 10 D. C., 370; 36 Am. Rep., 106; Ga.-Lowe vs. State, 57 Ga., 171; Dean
vs. State, 9 Ga. A., 571; 71 South East, 932; III.-Peo. vs. Israel, 269 III., 284; 109 North East, 969; Ind.-Furnace vs. State, 153 Ind.-93; 54 North East, 441; Bell vs.
State 42 Ins., 335; Iowa-State vs. Sampson, 157 Iowa, 257; 138 North West, 473; 42 Law. Rep. An. [N. S.], 967; State vs. Congrove, 109 Iowa., 66; 80 North
West, 227; State vs. Larson, 85 Iowa, 659; 52 North West, 539; Ky.-Nichols vs. Com., 78 Ky., 180; Md.-State vs. Warren, 77 Md., 121; 26 Atl. Rep., 500; 39 Am.
St., 401; Mich.-Peo. vs. Johnson, 81 Mich., 573; 45 North West, 1119; Miss.-State vs. Quintini, 51 So., 276; Dalton vs. State, 91 Miss., 162; 44 So., 802; 124 Am.
St., 637; Ward vs. State, 90 Miss., 249; 43 So., 466; Mo.-State vs. Morphin, 37 Mo., 373; Lorton vs. State, 7 Mo., 55; 37 Am. Dec., 179; Mont.-State vs. Mjelde,
29 Mont., 490; 75 Pac., 87; N. H.-State vs. Merril, 44 N. H., 624; N. M.-State vs. Klasner, 19 N. M., 474; 145 Pac., 679; Ann. Cas. 1917-D, 824; N. C.-State vs.
Simons, 70 N. C., 336; Oh-State vs. Hennessey, 23 Oh. St., 339, 13 Am. Rep., 253; State vs. Smith, 10 Oh. Dec. (Reprint), 682; 23 Cinc- LBul., 85; Or.-State vs.
Clark, 46 Or., 140; 80 Pac., 101; Pa.-Fulmer vs. Com., 97 Pa., 503; Com. vs. Lent, 15 Pa. Dist., 884; S. D.-State vs. Kieffer, 17 S. D., 67; 95 North West, 289; Tex.-
Wilson vs. State, 45 Tex., 76; 23 Am. Rep., 602; Hudson vs. State, 9 Tex. A., 151, 35 Am. Rep., 732; Addison vs. State, 3 Tex. A., Utah-State vs. Mickel, 23 Utah,
507; 65 Pac., 484; Vt.-State vs. Blay, 77 Vt., 56; 58 Atl. Rep., 794; State vs. Emery, 68 Vt., 109; 34 Atl. Rep., 432; 54 Am. St., 878; State vs. Newton, 42 Vt., 537;
Va.-Alexander vs. Com., 90 Va., 809; 20 South East, 782; Wash.-State vs. Laws, 61 Wash., 533; 112 Pac., 488; State vs. Butts, 42 Wash., 455; 85 Pac., 33; Terr. vs.
Heywood, 2 Wash., 180; 2 Pac., 189; Wyo.-Ackerman vs. State, 7 Wyo., 504; 54 Pac., 228; Eng.-Reg. vs. Bleasdale, 2 C. & K., 765; 61 Eng. C. L., 765.)

For the foregoing, the judgment appealed from must be, as is hereby, modified and the accused Vicente de Leon y Flora is sentenced to suffer the penalty of
six years and three months presidio mayor, with the accessories of the law, and to pay the costs. So ordered.

Avanceña, C. J., Johnson, Street, Ostrand, Romualdez and Villa-Real., JJ., concur.
Johns, J., concurs in the result.

Republic of the Philippines


SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-28547 February 22, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
ELIAS JARANILLA, RICARDO SUYO, FRANCO BRILLANTES and HEMAN GORRICETA, accused. ELIAS JARANILLA, RICARDO SUYO, and FRANCO BRILLANTES,
defendants-appellants.

Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Felicisimo R. Rosete and Solicitor Antonio M. Martinez for plaintiff-appellee.

Sixto P. Dimaisip for defendants-appellants.

AQUINO, J.:p

This is an appeal of defendants Elias Jaranilla, Ricardo Suyo and Franco Brillantes from the decision of the Court of First Instance of Iloilo, which convicted
them of robbery with homicide, sentenced each of them to reclusion perpetua and ordered them to pay solidarily the sum of six thousand pesos to the heirs
of Ramonito Jabatan and the sum of five hundred pesos to Valentin Baylon as the value of fighting cocks (Criminal Case No. 11082).

The evidence for the prosecution shows that at around eleven o'clock in the evening of January 9, 1966, Gorriceta, who had just come from Fort San Pedro in
Iloilo City, was driving a Ford pickup truck belonging to his sister, Remia G. Valencia. While he was in front of the Elizalde Building on J. M. Basa Street, he saw
Ricardo Suyo, Elias Jaranilla and Franco Brillantes. They hailed Gorriceta who stopped the truck. Jaranilla requested to bring them to Mandurriao, a district in
another part of the city. Gorriceta demurred. He told Jaranilla that he (Gorriceta) was on his way home.

Jaranilla prevailed upon Gorriceta to take them to Mandurriao because Jaranilla ostensibly had to get something from his uncle's place. So, Jaranilla, Brillantes
and Suyo boarded the pickup truck which Gorriceta drove to Mandurriao.
Upon reaching Mandurriao, Gorriceta parked the truck at a distance of about fifty to seventy meters from the provincial hospital. Jaranilla, Suyo and Brillantes
alighted from the vehicle. Jaranilla instructed Gorriceta to wait for them. The trio walked in the direction of the plaza. After an interval of about ten to twenty
minutes, they reappeared. Each of them was carrying two fighting cocks. They ran to the truck.

Jaranilla directed Gorriceta to start the truck because they were being chased. Gorriceta drove the truck to Jaro (another district of the city) on the same
route that they had taken in going to Mandurriao.

It is important to note the positions of Gorriceta and his three companions on the front seat of the track. Gorriceta the driver, was on the extreme left. Next
to him on his right was Suyo. Next to Suyo was Brillantes. On the extreme right was Jaranilla.

While the truck was traversing the detour road near the Mandurriao airport, then under construction, Gorriceta saw in the middle of the road Patrolmen
Ramonito Jabatan and Benjamin Castro running towards them. Gorriceta slowed down the truck after Patrolman Jabatan had fired a warning shot and was
signalling with his flashlight that the truck should stop. Gorriceta stopped the truck near the policeman. Jabatan approached the right side of the truck near
Jaranilla and ordered all the occupants of the truck to go down. They did not heed the injunction of the policeman.

Brillantes pulled his revolver but did not fire it. Suyo did nothing. Jaranilla, all of a sudden, shot Patrolman Jabatan. The shooting frightened Gorriceta. He
immediately started the motor of the truck and drove straight home to La Paz, another district of the city. Jaranilla kept on firing towards Jabatan.

Jaranilla, Suyo and Brillantes alighted in front of Gorriceta's house. Gorriceta parked the truck inside the garage. Jaranilla warned Gorriceta not to tell anybody
about the incident. Gorriceta went up to his room. After a while, he heard policemen shouting his name and asking him to come down. Instead of doing so,
he hid in the ceiling. It was only at about eight o'clock in the morning of the following day that he decided to come down. His uncle had counselled him to
surrender to the police. The policemen took Gorriceta to their headquarters. He recounted the incident to a police investigator.

Victorino Trespeces, whose house was located opposite the house of Valentin Baylon on Taft Street in Mandurriao, testified that before midnight of January 9,
1966, he conducted a friend in his car to the housing project in the vicinity of the provincial hospital at Mandurriao. As he neared his residence, he saw three
men emerging from the canal on Taft Street in front of Baylon's house. He noticed a red Ford pickup truck parked about fifty yards from the place where he
saw the three men. Shortly thereafter, he espied the three men carrying roosters. He immediately repaired to the police station at Mandurriao. He reported
to Patrolmen Jabatan and Castro what he had just witnessed. The two policemen requested him to take them in his car to the place where he saw the three
suspicious-looking men. Upon arrival thereat, the men and the truck were not there anymore.

Trespeces and the policemen followed the truck speeding towards Jaro. On reaching the detour road leading to the airport, the policemen left the car and
crossed the runway which was a shortcut. Their objective was to intercept the truck. Trespeces turned his car around in order to return to Mandurriao. At
that moment he heard gunshots. He stopped and again turned his car in the direction where shots had emanated. A few moments later, Patrolman Castro
came into view. He was running. He asked Trespeces for help because Jabatan, his comrade, was wounded. Patrolman Castro and Trespeces lifted Jabatan into
the car and brought him to the hospital. Trespeces learned later that Jabatan was dead.

Doctor Raymundo L. Torres, the chief medico-legal officer of the Iloilo City police department, conducted an autopsy on the remains of Patrolman Jabatan. He
found:

(1) Contusion on left eyebrow.

(2) Bullet wound one centimeter in diameter, penetrating left anterior axilla, directed diagonally downward to the right, perforating the left upper lobe
of the lungs through and through, bitting the left pulmonary artery and was recovered at the right thoracic cavity; both thoracic cavity was full of blood.

Cause of death: Shock, hemorrhage, secondary to bullet wound.

Valentin Baylon, the owner of the fighting cocks, returned home at about six o'clock in the morning of January 10, 1966. He discovered that the door of one
of his cock pens or chicken coops (Exhs. A and A-1) was broken. The feeding vessels were scattered on the ground. Upon investigation he found that six of his
fighting cocks were missing. Each coop contained six cocks. The coop was made of bamboo and wood with nipa roofing. Each coop had a door which was
locked by means of nails. The coops were located at the side of his house, about two meters therefrom.

Baylon reported the loss to the police at Mandurriao. At about ten o'clock, a group of detectives came to his house together with the police photographer
who took pictures of the chicken coops. The six roosters were valued at one hundred pesos each. Two days later, he was summoned to the police station at
Mandurriao to identify a rooster which was recovered somewhere at the airport. He readily identified it as one of the six roosters which was stolen from his
chicken coop (Exh. B).

Gorriceta, Jaranilla, Suyo and Brillantes were charged with robo con homicidio with the aggravating circumstances of use of a motor vehicle, nocturnity, band,
contempt of or with insult to the public authorities and recidivism. The fiscal utilized Gorriceta as a state witness. Hence, the case was dismissed as to him.

On February 2, 1967, after the prosecution had rested its case and before the defense had commenced the presentation of its evidence, Jaranilla escaped
from the provincial jail. The record does not show that he has been apprehended.

The judgment of conviction was promulgated as to defendants Suyo and Brillantes on October 19, 1967 when it was read to them in court. They signed at the
bottom of the last page of the decision.

There was no promulgation of the judgment as to Jaranilla, who, as already stated, escaped from jail (See Sec. 6, Rule 120, Rules of Court).

However, the notice of appeal filed by defendants' counsel de oficio erroneously included Jaranilla. Inasmuch as the judgment has not been promulgated as
to Jaranilla, he could not have appealed. His appeal through counsel cannot be entertained. Only the appeals of defendants Suyo and Brillantes will be
considered.

In convicting Suyo, Jaranilla and Brillantes of robo con homicidio, the trial court assumed that the taking of the six fighting cocks was robbery and that
Patrolman Jabatan was killed "by reason or on the occasion of the robbery" within the purview of article 294 of the Revised Penal Code.

In this appeal the appellants contend that the trial court erred in not finding that Gorriceta was the one who shot the policeman and that Jaranilla was driving
the Ford truck because Gorriceta was allegedly drunk. Through their counsel de oficio, they further contend that the taking of roosters was theft and,
alternatively, that, if it was robbery, the crime could not be robbery with homicide because the robbery was already consummated when Jabatan was killed.

After evaluating the testimonies of Gorriceta and Brillantes as to who was driving the truck and who shot policeman, this Court finds that the trial court did
not err in giving credence to Gorriceta's declaration that he was driving the truck at the time that Jaranilla shot Jabatan.
The improbability of appellants' theory is manifest. The truck belonged to Gorriceta's sister. He was responsible for its preservation. He had the obligation to
return it to his sister in the same condition when he borrowed it. He was driving it when he saw Brillantes, Jaranilla and Suyo and when he allegedly invited
them for a paseo. There is no indubitable proof that Jaranilla knows how to drive a truck.

The theory of the defense may be viewed from another angle. If, according to the appellants, Gorriceta asked Jaranilla to drive the truck because he
(Gorriceta) was drunk then that circumstance would be inconsistent with their theory that Gorriceta shot Jabatan. Being supposedly intoxicated, Gorriceta
would have been dozing when Jabatan signalled the driver to stop the truck and he could not have thought of killing Jabatan in his inebriated state. He would
not have been able to shoot accurately at Jabatan. But the fact is that the first shot hit Jabatan. So, the one who shot him must have been a sober person like
Jaranilla.

Moreover, as Jaranilla and his two comrades were interested in concealing the fighting cocks, it was Jaranilla, not Gorriceta, who would have the motive for
shooting Jabatan. Consequently, the theory that Gorriceta shot Jabatan and that Jaranilla was driving the truck appears to be plausible.

Was the taking of the roosters robbery or theft? There is no evidence that in taking the six roosters from their coop or cages in the yard of Baylon's house
violence against or intimidation of persons was employed. Hence, article 294 of the Revised Penal Code cannot be invoked.

Neither could such taking fall under article 299 of the Revised Penal Code which penalizes robbery in an inhabited house (casa habitada), public building or
edifice devoted to worship. The coop was not inside Baylon's house. Nor was it a dependency thereof within the meaning of article 301 of the Revised Penal
Code.

Having shown the inapplicability of Articles 294 and 299, the next inquiry is whether the taking of the six roosters is covered by article 302 of the Revised
Penal Code which reads:

ART. 302. Robbery in an uninhabited place or in private building.—Any robbery committed in an uninhabited place or in a building other than those
mentioned in the first paragraph of article 299, if the value of the property exceeds 250 pesos, shall be punished by prision correccional in its medium and
maximum periods provided that any of the following circumstances is present:

1. If the entrance has been effected through any opening not intended for entrance or egress.

2. If any wall, roof, floor or outside door or window has been broken.

3. If the entrance has been effected through the use of false keys, picklocks or other similar tools.

4. If any door, wardrobe, chest, or any sealed or closed furniture or receptacle has been broken.

5. If any closed or sealed receptacle, as mentioned in the preceding paragraph, has been removed, even if the same be broken open elsewhere.

xxx xxx xxx

In this connection, it is relevant to note that there is an inaccuracy in the English translation of article 302. The controlling Spanish original reads:

ART. 302. Robo en lugar no habitado o edificio particular.—El robo cometido en un lugar no habitado o en un edificio que no sea de los comprendidos en el
parrafo primero del articulo 299, ... . (Tomo 26, Leyes Publicas 479).

The term "lugar no habitado" is erroneously translated. as "uninhabited place", a term which may be confounded with the expression "uninhabited place" in
articles 295 and 300 of the Revised Penal Code, which is the translation of despoblado and which is different from the term lugar no habitado in article 302.
The term lugar no habitado is the antonym of casa habitada (inhabited house) in article 299.

One essential requisite of robbery with force upon things under Articles 299 and 302 is that the malefactor should enter the building or dependency, where
the object to be taken is found. Articles 299 and 302 clearly contemplate that the malefactor should enter the building (casa habitada o lugar no habitado o
edificio). If the culprit did not enter the building, there would be no robbery with force upon things. (See Albert, Revised Penal Code, 1932 edition, p. 688).

Thus, where the accused broke the show-window of the Bombay Palace Bazar at Rizal Avenue, Manila and removed forty watches therefrom, the crime was
theft and not robbery because he did not enter the building. The show-window was outside the store. (People vs. Adorno, CA 40 O. G. 567, per Montemayor,
J., who later became a member of this Court). *

In the instant case, the chicken coop where the six roosters were taken cannot be considered a building within the meaning of article 302. Not being a
building, it cannot be said that the accused entered the same in order to commit the robbery by means of any of the five circumstances enumerated in article
302.

The term "building" in article 302, formerly 512 of the old Penal Code, was construed as embracing any structure not mentioned in article 299 (meaning not
an "inhabited house or public building or edifice devoted to worship" or any dependency thereof) used for storage and safekeeping of personal property. As
thus construed, a freight car used for the shipment of sugar was considered a private building. The unnailing of a strip of cloth nailed over the door, the
customary manner of sealing a freight car, was held to constitute breaking by force within the meaning of article 512, now article 302. (U.S. vs. Magsino, 2
Phil. 710).

The ruling in the Magsino case is in conflict with the rulings of the Supreme Court of Spain that a railroad employee who, by force, opens a sealed or locked
receptacle deposited in a freight car, does not commit robbery. He is guilty of theft because a railroad car is neither a house nor a building within the meaning
of article 302 which corresponds to article 525 of the 1870 Spanish Penal Code. Article 302 refers to houses or buildings which, while not actually inhabited,
are habitable. Thus, a pig sty is not a building within the meaning of article 302. The stealing of hogs from a pig sty is theft and not robbery, although the
culprit breaks into it. Article 302 refers to habitable buildings. (Guevara, Revised Penal Code, 1939 Edition, pages 555-6, citing II Hidalgo Codigo Penal 636-7,
642, which in turn cites the decisions of the Spanish Supreme Court dated March 2, 1886 and April 25, 1887). **

As may be seen from the photographs (Exhs. A and A-1) Baylon's coop, which is known in the dialect as tangkal or kulungan, is about five yards long, one yard
wide and one yard high. It has wooden stilts and bamboo strips as bars. The coop barely reaches the shoulder of a person of average height like Baylon. It is
divided into six compartments or cages. A compartment has an area of less than one cubic yard. A person cannot be accommodated inside the cage or
compartment. It was not intended that a person should go inside that compartment. The taking was effected by forcibly opening the cage and putting the
hands inside it to get the roosters.

Therefore, the taking of the six roosters from their coop should be characterized as theft and not robbery. The assumption is that the accused were animated
by single criminal impulse. The conduct of the accused reveals that they conspired to steal the roosters. The taking is punishable as a single offense of theft.
Thus, it was held that the taking of two roosters in the same place and on the same occasion cannot give rise to two crimes of theft (People vs. De Leon, 49
Phil. 437, citing decision of Supreme Court of Spain dated July 13, 1894 and 36 C. J. 799; People vs. Tumlos, 67 Phil. 320; People vs. Villanueva, 49 O.G. 5448,
L-10239, August 7, 1953).

Nocturnity and use of a motor vehicle are aggravating. Those circumstances facilitated the commission of the theft. The accused intentionally sought the
cover of night and used a motor vehicle so as to insure the success of their nefarious enterprise (People vs. Tan, 89 Phil. 647, 660; People vs. Gardon, 104 Phil.
372).

Also to be appreciated against appellants Suyo and Brillantes is the aggravating circumstance of recidivism which was alleged in the information. They
admitted their previous convictions for theft (130, 132 tsn; Exhs. I and J; Art. 14[9], Revised Penal Code).

The theft of six roosters valued at six hundred pesos is punishable by prision correccional in its minimum and medium periods (Art. 309[3], Revised Penal
Code). That penalty should be imposed in its maximum period because only aggravating circumstances are present (Art. 64[3], Revised Penal Code).

Although recidivists, appellants Suyo and Brillantes are not habitual delinquents. They are entitled to an indeterminate sentence (Sec. 2, Act No. 4103).

With respect to the killing of Patrolman Jabatan, it has already been noted that the evidence for the prosecution points to Jaranilla as the malefactor who
shot that unfortunate peace officer. The killing was homicide because it was made on the spur of the moment. The treacherous mode of attack was not
consciously or deliberately adopted by the offender (U.S. vs. Namit, 38 Phil. 926; People vs. Tumaob, 83 Phil. 738; People vs. Abalos, 84 Phil. 771).

The twenty-four year old Jabatan was an agent of authority on night duty at the time of the shooting. He was wearing his uniform. The killing should be
characterized as a direct assault (atentado) upon an agent of authority (Art. 148, Revised Penal Code) complexed with homicide. The two offenses resulted
from a single act. (Art. 48, Revised Penal Code; People vs. Guillen, 85 Phil. 307; People vs. Lojo, Jr., 52 Phil. 390).

The evidence for the prosecution does not prove any conspiracy on the part of appellants Jaranilla, Suyo and Brillantes to kill Jabatan. They conspired to steal
the fighting cocks. The conspiracy is shown by the manner in which they perpetrated the theft. They went to the scene of the crime together. They left the
yard of Baylon's residence, each carrying two roosters. They all boarded the getaway truck driven by Gorriceta.

The theft was consummated when the culprits were able to take possession of the roosters. It is not an indispenable element of theft that the thief carry,
more or less far away, the thing taken by him from its owner (People vs. Mercado, 65 Phil. 665; Duran vs. Tan, 85 Phil. 476; U.S vs. Adiao, 38 Phil. 754).

It is not reasonable to assume that the killing of any peace officer, who would forestall the theft or frustrate appellants' desire to enjoy the fruits of the crime,
was part of their plan. There is no evidence to link appellants Suyo and Brillantes to the killing of Jabatan, except the circumstance that they were with
Jaranilla in the truck when the latter shot the policeman. Gorriceta testified that Suyo did not do anything when Jabatan approached the right side of the
truck and came in close proximity to Jaranilla who was on the extreme right. Brillantes pulled his revolver which he did not fire (47, 53-55 tsn). Mere presence
at the scene of the crime does not necessarily make a person a co-principal thereof.

Jaranilla heard Gorriceta's testimony that he (Jaranilla) shot Jabatan. Instead of taking the witness stand to refute the testimony of Gorriceta, Jaranilla
escaped from jail. That circumstance is an admission of guilt.

The instant case is different from People vs. Mabassa, 65 Phil. 568 where the victim was killed on the occasion when the accused took his chickens under the
house. It is distinguishable from the People vs. Gardon, 104 Phil. 372 and People vs. Salamudin No. 1, 52 Phil. 670 (both cited by the Solicitor General) where
the robbery was clearly proven and the homicide was perpetrated on the occasion of the robbery. As already noted, theft, not robbery, was committed in this
case.

The situation in this case bears some analogy to that found in the People vs. Basisten, 47 Phil. 493 where the homicide committed by a member of the band
was not a part of the common plan to commit robbery. Hence, only the person who perpetrated the killing was liable for robbery with homicide. The others
were convicted of robbery only.

There is a hiatus in the evidence of the prosecution as to the participation of Suyo and Brillantes in the killing of Jabatan by Jaranilla. As already stated, no
robbery with homicide was committed. Therefore, it cannot be concluded that those two appellants have any responsibility for Jabatan's death. Their
complicity in the homicide committed by Jaranilla has not been established.

WHEREFORE, the judgment of the trial court convicting appellants Ricardo Suyo and Franco Brillantes of robbery with homicide is reversed. They are
acquitted of homicide on the ground of reasonable doubt.

As co-principals with Elias Jaranilla in the theft of the six fighting cocks, they are (a) each sentenced to an indeterminate penalty of six (6) months of arresto
mayor as minimum to four (4) years and two (2) months of prision correccional as maximum and (b) ordered to indemnify solidarily the complainant, Valentin
Baylon, in the sum of five hundred pesos (P500). Each appellant should pay one-third of the costs.

As to the liability of Elias Jaranilla for theft and homicide, with direct assault upon an agent of authority, trial court should render a new judgment consistent
with this opinion (See Sec. 19, Art. IV, Constitution).

So ordered.

Zaldivar (Chairman), Fernando, Antonio and Fernandez, JJ., concur.


THIRD DIVISION

[G.R. No. 153911. December 10, 2004]

MELANIO MALLARI y LIBERATO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

PANGANIBAN, J.:

To warrant conviction based on circumstantial evidence, the totality of the circumstances must eliminate beyond reasonable doubt the possibility of
innocence; otherwise, the accused must be acquitted.

The Case

Before us is a Petition for Review[1] on Certiorari under Rule 45 in relation to Rule 125 of the Rules of Court, seeking to reverse, set aside, nullify and/or
modify the December 18, 2001 Decision[2] of the Court of Appeals (CA) in CA-GR CR No. 18051. The dispositive portion of that Decision states:
WHEREFORE, foregoing premises considered, the decision appealed from is MODIFIED. Accused-appellants Melanio Mallari and Zaldy Bontia, as well as
Leonardo Bontia are found guilty of Attempted Murder punishable under Article 248 in relation to Article 6 of the Revised Penal Code for which they are
SENTENCED to four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum. The award with
respect to damages and costs stand.[3]

In its May 14, 2002 Resolution,[4] the CA denied petitioners Motion for Reconsideration of the assailed Decision.

The Facts

Version of the Prosecution

The factual background of the case, as related by the Court of Appeals[5] based on prosecution evidence, is as follows:

The records show that private complainant Erlinda Boyose was a teacher at the Bustamante High School, Davao City from 1977 up to 1989. At the start, she
had a good working relationship with the school principal, appellant Melanio Mallari. However, their relationship turned sour when she began to question
appellant Mallari on alleged unaccounted school funds.

On June 29, 1989 at about 9:00 oclock in the morning, while Boyose was at the Guidance Office, a man approached her and asked if he can still enroll his
nephew. As enrollment was already closed, she advised the man to see Mallari, who is the school principal.

Thereafter, Boyose went to her classroom. About twenty minutes later, the man approached her again. Meeting him by the door, she asked the man if he was
able to talk to Mallari. The man answered that the principal was not in his office. So, she advised the man to just return the following day.

In the afternoon, Boyose rode on a jeepney bound for Sasa, Davao. She observed that the man who talked to her in the morning was also in the same
jeepney. She then inquired from him if he was able to talk to the principal regarding the enrollment of his nephew but the man just ignored her.

While they were near Km. 13, Panacan, Davao City, the said man drew and pointed a gun at Boyoses temple. Boyose heard two successive clicking sounds of
the gun but it did not fire. She heard the man utter in the Cebuano dialect, Unsa man ni, dili man ni moboto, meaning Whats this, this will not fire. She then
grabbed the gun and grappled for its possession. But she failed. Eventually, she was able to get out of the jeepney and ran away but the man followed her and
shot her repeatedly.

Boyose was hit in the lower mouth and at her back. She shouted for help. A man helped her and brought her to the San Pedro Hospital where she was treated
and confined.

Policeman Remo Pagal of the Sasa Police Station was one of those who went to the crime scene on June 29, 1989 to investigate. But nothing came out of it.
He was only able to get the description of the gunman the following day when he interviewed the victim at the hospital.

The police investigators were able to get the lead when a certain Andy Magdadaro went to the Sasa Police Station and told Policeman Pagal that he knew
something about the shooting of Erlinda Boyose. He told the said police investigator that he was asked by one Edwin Amparado to kill Boyose but the plan
was not carried out. He pointed to accused-appellant Zaldy Bontia as the man who hired Amparado to look for a triggerman.

Thus, Edwin Amparado was picked up by the police. While in the police station where he was brought, he told the police investigators that in one occasion, he
went to the house of appellant Mallari and the latter asked him to kill Boyose who used to be his neighbor at Doa Pilar Village but the same did not push thru.
He later offered this job to Andy Magdadaro who was his neighbor in Agdao. They talked about the plan to kill Boyose and Magdadaro was only waiting for
his go-signal. At the police station, he executed an affidavit regarding the offer of Mallari to kill Boyose.

On August 1, 1989, at around 3:00 p.m., Pagal together with other policemen from the Sasa Police Station arrested appellant Zaldy Bontia near the house of
accused-appellant Mallari. Zaldy allegedly admitted participation in the incident and implicated his brother Leonardo Bontia as the gunman. The police lost no
time in going to Asuncion, Davao del Norte to arrest Leonardo Bontia.

Leonardo Bontia was brought to the Sasa Police Station at about 2:00 p.m. of August 2, 1989. Later that day, a police line-up was conducted and Boyose
identified accused Leonardo Bontia as the gunman. She likewise identified accused-appellant Zaldy Bontia to be the constant companion and protg of
accused-appellant Mallari.

When the custodial investigation was about to start, the Bontia brothers were apprised by police investigators Anastacio Naive of their rights under the
Constitution. When asked by Naive if they had a lawyer to assist them, they told him that they had none. Naive then stopped the investigation and called the
PAO office for assistance. At around 5:00 p.m. on that day, Atty. Jonathan Jocum,**** a PAO lawyer arrived. Pfc. Naive then asked the Bontia brothers if they
wanted to be represented by Atty. Jocum and they said they are agreeable.

During the custodial investigation, Leonardo Bontia admitted to be the gunman. He pointed to appellant Mallari as the one who hired him to kill Boyose. On
the [other] hand, Zaldy Bontia admitted to have been hired by Mallari to look for a gunman to kill Erlinda Boyose and that he was the one who recommended
to Mallari his brother Leonardo Bontia to do the job for a fee.

Melanio Mallari, Leonardo Bontia and Zaldy Bontia, were accordingly charged by Asst. City Prosecutor Jose Emmanuel M. Castillo of the crime of Frustrated
Murder, in an Information alleging

That on or about June 29, 1989, in the City of Davao, Philippines and within the jurisdiction of this Honorable Court, the above-mentioned accused Melanio
Mallari, directly interested in the death of Erlinda P. Boyose, conspiring, confederating and helping one another, accused Melanio Mallari induced his co-
accused Leonardo Bontia and Zaldy Bontia, the latter convincing his brother Leonardo Bontia of the plan to kill said Erlinda P. Boyose by giving price and/or
offering a reward to kill said Erlinda P. Boyose and which price and/or offer was accepted by said Leonardo Bontia and Zaldy Bontia; that in pursuance of said
conspiracy said accused Leonardo Bontia, with treachery and evident premeditation, willfully, unlawfully and feloniously assaulted, and shot with a caliber 22
Magnum homemade revolver and hit said Erlinda Boyose, thereby inflicting upon her the following, to wit:

AVULSION. LOWER LIP AND NAPE SECONDARY TO GUNSHOT WOUND WITH DISPLACEMENT OF TEETH ON MANDIBLE; FOREIGN BODY, G-4-5 LEVEL which
injuries would ordinarily cause the death of the said Erlinda Boyose, thus performing all the acts of execution which should have produced the crime of
murder as a consequence, but nevertheless did not produce it by reason of causes independent of their will, that is the timely shout and cry for help of
Erlinda Boyose that as a result of which immediate assistance was had from a member of a coast guard and by the timely and able medical assistance
rendered to the said Erlinda Boyose which prevented her death.[6]

During their arraignment,[7] all the accused pleaded not guilty. Thereafter, herein Petitioner Mallari moved for a separate trial, which was granted by the trial
court in its Order dated September 18, 1990.
In his separate trial, Mallari did not present evidence to establish his innocence or to refute the prosecutions evidence against him. Instead, he moved for
dismissal by way of demurrer to evidence which, however, the trial court denied in its Order dated July 2, 1992. Thereafter, although given ample time and
granted numerous postponements over about a year, petitioner failed to present any witness in his favor.

Even in its Memorandum, the defense did not present its version of facts.

Ruling of the Trial Court

After evaluating the evidence on record, the RTC concluded that there was conspiracy among the three accused, although Leonardo Bontia was alone when
he shot Erlinda Boyose. It held herein Petitioner Mallari liable as principal by inducement, Leonardo Bontia as principal by direct participation, and Zaldy
Bontia as principal by indispensable cooperation, based on the following circumstances supposedly establishing their complicity:

1. Accused Mallari has an axe to grind against victim Boyose therefore, has an interest of silencing her because of her persistent inquiries regarding the use or
misuse of school funds under the custody of Mallari as principal of Bustamante Barangay High School. This is the motive for the shooting of Erlinda Boyose.

2. The contact man Zaldy Bontia is beholden to Melanio Mallari being a protg and a man Friday of the latter who exercised moral ascendancy considering that
he promised Zaldy a steady government job and have been extending cash advances in the form of allowances to tide him over till such time that he can
receive a regular salary from the government.

3. Leonardo Bontia is the older brother of Zaldy who at that time the job was offered to him by Mallari to kill Boyose was in dire need of money having eight
(8) children and wife to support.

4. Leonardo Bontia when confronted by the victim at the police station readily admitted he shot Erlinda Boyose because of the money he hopes to receive
from Mallari afterwards.

5. Zaldy Bontia gave P900.00 to Leonardo Bontia which came from Mallari so Leonardo can hide.

6. That Zaldy Bontia likewise confessed of his participation of the crime after being confronted by the victim at the police station.

7. Both Leonardo and Zaldy Bontia voluntarily executed an extra-judicial statement regarding their complicity to the crime.

8. A letter marked exh. I addressed to the victim Erlinda Boyose which clearly came from Leonardo Bontia because it contained narration of events anent the
crime and full of explicit details which only the author of the shooting has personal knowledge of and asking for forgiveness.[8]

Thus, the RTC disposed as follows:

WHEREFORE, the prosecution having established the guilt of accused Melanio Mallari as principal by inducement, Leonardo Bontia as principal by direct
participation and Zaldy Bontia as principal by indispensable cooperation beyond reasonable doubt, the court finds the aforesaid three accused guilty of the
crime of frustrated murder as charged in the information. They are hereby sentenced to suffer the indeterminate penalty of 4 years 2 months and 20 days of
prision correccional as the minimum to 11 years 6 months and 21 days of prision mayor as the maximum and to solidarily indemnify the victim Erlinda Boyose
in the amount of P15,000.00 representing loss of income, P8,000.00 representing hospital and medical expenses, P20,000.00 as attorneys fees and
P50,000.00 as moral damages and to pay the cost.[9]

Ruling of the Court of Appeals

On appeal, the CA essentially upheld the findings and conclusions of the trial court, except as to the stage of the crime committed.

The appellate court was convinced that petitioner was the one who had induced the Bontia brothers to kill Boyose, despite the absence of direct evidence
showing his participation in the crime charged. It ratiocinated that the accused could be convicted on the basis of circumstantial evidence. There was more
than one circumstance, the facts from which the inferences were derived had been proven, and the combination of all the circumstances was such as to
produce a conviction beyond reasonable doubt.

It further held that, in the separately held trial of petitioner, there was no need for the prosecution to offer the evidence adduced during the trial of the
Bontia brother[s,] considering that only one criminal Complaint had been filed against all the accused. Moreover, the issue could not be raised for the first
time on appeal.

Hence, as stated earlier, the CA modified the trial courts disposition and convicted the accused-appellants of attempted murder.

This Petition[10] was filed only by the alleged mastermind, Melanio Mallari.

Issues

In his Memorandum, petitioner submits the following issues for the Courts consideration:

I.

Whether the questioned CA Decision and the refusal by the Court of Appeals to reconsider it in its CA Resolution [are in] accord with the circumstantial
evidence rule and the controlling jurisprudence thereon;

II.

Whether the questioned CA Decision and the refusal by the Court of Appeals to reconsider it in its CA Resolution, upholding the trial courts admission of an
irrelevant, immaterial and improper evidence (coming from Edwin Amparado) which was among the basis for conviction was in accordance with law and
jurisprudence;

III.

Whether the questioned CA Decision and the refusal by the Court of Appeals to reconsider it in its CA Resolution, correctly sustained the trial courts
consideration of an evidence given in a separately conducted trial (not as against the petitioner) which was among the basis for conviction; and

IV.
Whether the questioned CA Decision and the refusal by the Court of Appeals to reconsider it in its CA Resolution, which failed to tackle all the issues raised on
appeal was consistent with due process.[11]

In brief, the issues raised before this Court will be discussed seriatim as follows: (1) whether the trial and the appellate courts erred in taking cognizance of
evidence given in the separate trial of petitioners co-accused; (2) whether there was sufficient circumstantial evidence to establish petitioners guilt beyond
reasonable doubt; and (3) whether the Court of Appeals failed to accord due process to petitioner.

This Courts Ruling

The Petition is meritorious. The prosecution failed to adduce the quantum of evidence needed for a criminal conviction.

First Issue:

Evidence Proffered in Separate Trial

Petitioner alleges that the trial and the appellate courts convicted him on the basis mainly of evidence adduced at the separately held trial of his co-accused.
He submits that absent such evidence, there would have been no sufficient proof to establish his guilt beyond reasonable doubt.

In its Memorandum, the Office of the Solicitor General (OSG) simplistically contends that in the trial against petitioner, there was no need to offer anew the
evidence separately proffered against the Bontias, because the case [filed against them] involved only one case number.[12] Respondent fails to cite
jurisprudence in support of such logic or to give even a semblance of a sound rationale therefor.

As a rule, a court should not take judicial notice of evidence presented in other proceedings, even if these have been brought before it or have been heard by
and are actually pending before it. This rule is especially true in criminal cases, in which the accused have the constitutional right to confront and cross-
examine the witnesses presented against them.[13] Moreover, when a separate trial is granted, the testimony of the accused imputing the crime to the co-
accused is not admissible against the latter, who has had no opportunity to cross-examine the witnesses.[14]

Parenthetically, the object of conducting a separate trial would be rendered naught if evidence proffered at the trial of one of the accused would be
considered likewise adduced in the distinct trial of the other accused. What then would be the rationale for requesting and being granted separate trial?
While the grant of separate trials for persons jointly accused of an offense is discretionary upon the court, the motions therefor are usually found meritorious
when antagonism is apparent in the respective defenses of the accused.[15]

In the case before us, petitioners co-accused -- Zaldy and Leonardo Bontia -- executed, prior to trial, their respective extrajudicial confessions admitting their
complicity in the crime charged and implicating petitioner as the mastermind. On the other hand, in denying their accusations, petitioner stood his ground
and refused to execute a statement. Precisely, their antagonistic defenses must have impelled him to seek, and the trial court to grant him, a separate trial.

Records show, however, that most of the prosecution witnesses presented during the trial of the Bontias were likewise presented during the separate trial of
petitioner. Testifying against him on December 20, 1990, was Pfc. Danilo Carvajal. The latter said that, as police investigator of the Sasa Patrol Station, he had
conducted an investigation of the shooting incident involving Erlinda Boyose, leading to the arrest of Zaldy and Leonardo Bontia and Melanio Mallari. He had
allegedly taken the supposed extrajudicial confession of Leonardo Bontia who, after being apprised of his constitutional rights, voluntarily executed his Sworn
Statement in the presence of an inquest lawyer of the Public Attorneys Office (PAO).[16]

On the same day, Atty. Jonathan Jocom testified that he was the PAO lawyer who had assisted the Bontias while each of them was under custodial
investigation on August 2, 1989; that prior to their investigation, he had apprised them of their constitutional rights to counsel and not to be compelled to
make any statement against their interests; and that despite his repeated warnings about the negative consequences of their statements, they nevertheless
voluntarily executed and signed their statements confessing to the crime.[17]

On April 19, 1991, Pfc. Anastacio Naive testified that he had also investigated the shooting incident; interviewed the victim (Erlinda Boyose) and the witness
(Edwin Amparado) who was an alleged friend of petitioner; and that he had reduced the statement of Zaldy Bontia into writing after informing the latter of
his constitutional rights in the presence of Atty. Jocom. Zaldy named Melanio Mallari as the mastermind who had asked him to look for a triggerman who
would eliminate Boyose.[18]

The testimonies of Policemen Antonio Ysulat and Victoriano Padilla were admitted by herein petitioner, according to the stipulation of his counsel.[19] Ysulat
was the Sasa Patrol Stations exhibit custodian, to whom the gun that had allegedly been used in the shooting incident was turned over. Padilla was the desk
officer who had recorded the Complaint regarding the incident on June 29, 1989, the appearance of Erlinda Boyose, her identification of Zaldy and Leonardo
Bontia from a police lineup, and the appearance of Petitioner Mallari at the patrol station on August 2, 1989.

Erlinda stated[20] that she was a classroom teacher and guidance counselor of Bustamante High School, where petitioner was the principal from 1983 to
1989; and that initially, they had a good working relationship, which turned sour when she began inquiring about school funds that had remained
unaccounted for. On March 22, 1989, she personally handed over to him a letter[21] she had written, reminding him of, among other things, some basic
needs of the school that had remained unmet, such as blackboards, chairs and comfort rooms for the students; and his failure, as the school administrator in
the past five years, to account for fees collected from students.

She then admonished him in that letter for his moral indiscretions in office;[22] recommended that he conduct dialogues/discussions with teachers, students
and their parents, to disclose financial reports so as to avoid suspicions of fund misuse; and, finally, apologized for having to bring up all these matters, but
expressed hope that it would all be for the improvement of the school administration. Boyose further testified that after reading the letter, Mallari told her
sarcastically that he had been to so many schools, but that it was only she who had written to him in such a manner; he warned her that she made a mistake
in writing this [letter].

Boyose also attested to the incidents of that fateful day, June 29, 1989, which culminated in the attempt on her life by Leonardo Bontia. He had asked her
earlier that day in school about how to enroll his nephew at the Bustamante High School. Because of the gunshot injuries that she sustained, she had to
undergo hospitalization for which she incurred expenses.

While the instant case was pending trial, Leonardo Bontia supposedly wrote her a letter[23] asking for forgiveness for the crime [he] had done against [her,]
saying that he was in dire need of money at the time. Allegedly, he had to go to Mallari, hoping to be able to ask for some, but the latter instead dared [him]
to discipline Mrs. Boyose, gave [him] food and drinks until [he] got drunk, and also promised to give him money and a job. Because the accused was drunk
and, thus, out of his mind, he supposedly gave in to the prodding of Mallari.

Only two other witnesses against the Bontias were not presented against Petitioner Mallari. They were (1) Pfc. Remo Pagal, who had also participated in the
investigation and allegedly received an informers tip that led to their arrest; and (2) Dr. Roberto Alabado, who had treated the injuries of the victim.[24]

The remaining witnesses at the separate trial of the Bontias were petitioners co-accused, Zaldy and Leonardo Bontia. It is worth noting that despite their
earlier confessions -- as attested to by Witnesses Carvajal, Jocom and Naive -- the Bontia brothers, assisted by counsel, entered a plea of not guilty. Moreover,
during their trial, the brothers denied committing the crime; admitted to having signed their respective statements; but alleged that these had been procured
without the assistance of counsel and with the police officers use of force, intimidation and violence.[25]

After reading the testimonies of Pagal, Alabado and the two Bontias and reviewing the rulings, we find that the trial and the appellate courts could not have
taken those testimonies into substantial consideration, if at all, in convicting the petitioner. In fact, the testimonies of Pagal and Alabado were merely
corroborative of those of the other witnesses who were presented during petitioners trial. On the other hand, the declarations of Zaldy and Leonardo Bontia
in open court were, on their face, favorable to him. And the lower courts cognizance of those declarations would not have prejudiced him, as petitioner
asserts. However, despite the denials by the Bontias, the lower courts still found them, including petitioner, guilty.

We therefore find no basis at all for the allegation of petitioner that the trial and the appellate courts convicted him on the ground of evidence adduced at his
co-accuseds separate trial, but supposedly not during his own trial.

Second Issue:

Sufficiency of Circumstantial Evidence

A close perusal of the testimonies of the witnesses presented against petitioner reveals the absence of direct evidence establishing his criminal participation.
Nonetheless, in the absence of direct proof, a conviction may still be based on circumstantial evidence. But to warrant such conviction, the following
requisites must concur: (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 reasonable doubt.[26]

Corollary to the constitutional precept that the accused is presumed innocent until the contrary is proved, a conviction based on circumstantial evidence must
exclude each and every hypothesis consistent with innocence.[27] Hence, if the totality of the circumstances eliminates beyond reasonable doubt the
possibility of innocence, conviction is proper; otherwise, the accused must be acquitted.[28]

With the above jurisprudential premises in mind, we examined the circumstances on the basis of which petitioner had been found guilty beyond reasonable
doubt and, consequently, convicted.

According to the CA, the following circumstances were sufficient to establish the criminal culpability of the three accused (Zaldy and Leonardo Bontia, as well
as Petitioner Mallari):

x x x. First, appellant Mallari had an axe to grind against the victim because of her persistent inquiries regarding the use or misuse of school funds under the
custody of Mallari as principal of Bustamante Barangay High School. This fact shows the motive of Mallari in silencing her. Second, Zaldy Bontia, the person
who looked for a killer, is beholden to Melanio Mallari, considering that the latter had promised him a steady government job and had been giving cash
advances in the form of allowance to tide him over till such time that he could receive a regular salary from the government. Third, Leonardo Bontia is the
older brother of Zaldy. When the job to kill Boyose was offered by Mallari to Leonardo Bontia, the latter immediately acceded considering that he was in dire
need of money having eight (8) children and a wife to support. Thus, when confronted by the victim at the police station, he readily admitted that he shot
Erlinda Boyose because of the consideration he hoped to receive from Mallari afterwards. Fourth, the money in the amount of P900.00 which Zaldy Bontia
gave to his brother Leonardo so that he can hide came from Mallari. Fifth, the confession made by Zaldy Bontia concerning his participation to the crime after
he was confronted by the victim at the police station. Sixth, both Leonardo and Zaldy Bontia voluntarily executed extra-judicial statements regarding their
involvement in the crime. In their respective extra-judicial confession, they pointed to Mallari as the person who induced them to kill Boyose. Finally, the
letter of Leonardo Bontia marked as Exhibit I, addressed to the victim asking for forgiveness, contained narration of events with full of explicit details
regarding the commission of the crime.[29]

In its Memorandum,[30] the OSG substantially repeats the above circumstances in support of the conviction of petitioner.

The first circumstance -- that Mallari had an axe to grind against the victim because of her persistent inquiries regarding the use or misuse of school funds --
appears to be a conclusion based merely on the impression of the victim herself. Other than the one letter[31] she wrote to petitioner, only her self-serving
statement supported her allegation that she had questioned persistently (several times) his supposed administrative malpractices as school principal.

Be that as it may, a reading of that letter, which was indeed replete with denigrating statements against him, probably served as a motive for a reprisal from
him, if its contents were not treated as constructive criticism. To the extent that it tends to establish motive, this circumstance may be taken into
consideration in the overall assessment of the evidence against him.

The second to the fourth circumstances[32] are not directly established by the evidence against petitioner. None of the prosecution witnesses testified
thereon. A scrutiny of the records of the case reveals that those circumstances were derived from the Written Statements[33] that had been made by
petitioners co-accused and presented when Prosecution Witnesses Carvajal and Naive testified. These witnesses were the police investigators who had
reduced into writing the statements of Leonardo and Zaldy Bontia at the time of the arrest of the latter two.

Section 36 of Rule 130 of the Rules of Court provides that witnesses can testify only with regard to facts of which they have personal knowledge; otherwise,
their testimonies would be inadmissible for being hearsay.[34] In the present case, neither of the said witnesses had personal knowledge of the second to the
fourth circumstances considered by the appellate court, or of the rest of the statements made by the declarants in their respective Written Statements. The
witnesses merely attested to the voluntariness and due execution of the Bontias respective extrajudicial confessions. Thus, insofar as the substance of those
confessions is concerned, the testimonies of the police witnesses are mere hearsay.[35]

The fifth and the sixth circumstances refer to the aforementioned Written Statements of petitioners co-accused who did not, however, testify against him.
Well-settled is the rule that extrajudicial declarations are inadmissible in evidence against the declarants co-accused.[36] The admission by the court of such
declarations violates the incriminated persons right to due process. This principle holds if, as in the case before us, the declarants fail to take the witness
stand and thereby deny the accused-petitioner the fundamental right to confront and cross-examine them face-to-face, in order to test their truthfulness and
credibility.

True, there are exceptions to this rule, such as when the confession is used as circumstantial evidence to show the probability of the participation of the co-
accused in the crime, or when the confession is corroborated by other pieces of evidence.[37] In such instances, the significance of the confession comes to
the fore, but only in relation to the other circumstantial evidence establishing the guilt of the person incriminated. In the instant case, the merits of the fifth
and the sixth circumstances mentioned by the appellate court depend, therefore, on the strength of the other circumstantial evidence against petitioner.

But, as discussed so far, just the first circumstance, establishing petitioners motive, may be given due weight. Only one more remains to be considered, as the
three other circumstances have been discounted as hearsay.

This last circumstance cited by the appellate court pertains to a supposed letter of Leonardo Bontia addressed to the victim, containing explicit details
regarding the commission of the crime and asking for forgiveness. The latter was presented as part of the testimony of the victim, Erlinda Boyose. However,
Leonardo was not presented in court to identify it. No other witness testified as to its genuineness or as to the fact that it had personally and voluntarily been
written by him. Incidentally, Boyose received it through the mail, and no one ever attested that it had in fact been written and sent by the same Leonardo
Bontia, petitioners co-accused.[38]

As we have said earlier, witnesses can testify only with regard to facts of which they have personal knowledge. Testimonial or documentary evidence is
hearsay if it is based, not on the personal knowledge of the witness, but on the knowledge of some other person not on the witness stand. Consequently,
hearsay evidence -- whether objected to or not -- has no probative value unless the proponent can show that the evidence falls within any of the exceptions
to the hearsay rule, as provided in the Rules of Court.[39] Clearly, none of the exceptions apply to the present case.

Thus, an unverified and unidentified private document cannot be accorded probative value. It is precluded because the party against whom it is presented is
deprived of the right and opportunity to cross-examine the person to whom the statements or writings are attributed. Its executor or author should be
presented as a witness to provide the other party to the litigation the opportunity to question its contents. Being mere hearsay evidence, failure to present
the author of the letter renders its contents suspect and of no probative value.[40]

There is another circumstance, not mentioned by the appellate court but advanced by the Office of the Solicitor General: that Prosecution Witness Edwin
Amparado declared that he had been contacted by petitioner to kill Boyose. Let us first recall the testimony of that witness, as related by the trial court:

On December 11, 1990, Edwin Amparado testified that he personally knows accused Mallari because he studied at F. Bangoy Barangay High School where
Melanio Mallari was the principal from 1983 to 1984, that he also knows Zaldy Bontia, that the last time he saw Zaldy Bontia was in February 1989 in the
house of Melanio Mallari located at Juan Luna, corner Chavez Streets, that he went to the house of Melanio Mallari to pledge his electric fan, that Melanio
Mallari asked him to kill Mrs. Boyose who used to be his neighbor at Doa Pilar Village but nothing came out of it, that later he heard over the radio that Mrs.
Boyose was shot, that he knows Andy Magdadaro who was his neighbor in Agdao, that they talked about the plan to kill Mrs. Boyose, that Andy Magdadaro
was only waiting for his go-signal, that he executed an affidavit regarding the offer of Melanio Mallari to kill Mrs. Boyose. He said on cross-examination that
he did not feel disgusted when Mallari asked him to kill Mrs. Boyose, that he thought of killing Mrs. Boyose and relayed the offer to Andy Magdadaro the
same job, that he is close to Mr. Mallari, that the job of killing Mrs. Boyose was the only illegal job offered to him by Melanio Mallari, that during that time he
needed money because his wife was pregnant, that he relayed the offer to Andy Magdadaro because he is a rebel returnee.[41]

It appears that the prosecution presented Amparado merely to show that petitioner had criminal intent against the victim. The testimony of the witness,
however, concerned petitioners alleged proposal to him (not to the Bontias) to kill Boyose -- an act that, by his own admission, did not materialize. Even if
indeed petitioner made such a proposal, it did not necessarily mean that it was also made to the Bontias, absent any strong supporting evidence. The witness
does not in fact appear privy to any conspiracy between petitioner and the Bontias.

Thus, insofar as the actual attempt on the life of Boyose is concerned, Amparados testimony is clearly irrelevant or of no probative weight. It does not tend to
establish, to any reasonable degree, the probability of a fact in issue[42] -- whether petitioner had induced or conspired with the Bontias to kill Boyose.
Hence, the testimony is worthless in establishing the guilt of petitioner of the crime charged against him.

In the final analysis, other than the victims letter to petitioner tending to establish his ill motive, there is hardly any evidence to corroborate his co-accuseds
extrajudicial confessions (later recanted) or to establish the probability of his actual participation (by inducement) in the commission of the crime.
Considering that the strength of the prosecution evidence against him falls short of the required quantum of proof beyond reasonable doubt, his
constitutional right to be presumed innocent must prevail.

The Court has repeatedly held that when the circumstances shown to exist yield at least two inferences -- one of which is consistent with the presumption of
innocence and the other with the finding of guilt -- the Court must acquit the accused, because the evidence does not then fulfill the test of moral certainty
or suffice to support a judgment of conviction.[43]

Consistent with the above principles, and in view of the dearth of evidence to prove his guilt beyond reasonable doubt, petitioner must be acquitted.

Third Issue:

Due Process

Petitioner also claims that he was denied due process by the Court of Appeals, because it allegedly failed to tackle all the issues raised in his appeal brief.

While it is no longer necessary to resolve this issue in view of our disposition of the second one, it is enough to say that petitioner has neglected to
substantiate this allegation in his Petition. He did not, in fact, even care to point out -- much less discuss -- what issues the appellate court had failed to
resolve. In any event, a wrong disposition by the court is not tantamount to denial of due process.

WHEREFORE, the assailed Decision insofar as it pertains to Petitioner is REVERSED and SET ASIDE. On reasonable doubt, Petitioner Melanio Mallari y Liberato
is ACQUITTED. The director of the Bureau of Corrections is directed to cause the immediate release of petitioner, unless the latter is being lawfully held for
another cause; and to inform the Court of the date of his release, or the reasons for his continued confinement, within ten days from notice. No costs.

SO ORDERED.

Sandoval-Guttierez, Carpio-Morales, and Garcia, JJ.,concur.

Corona, J., On leave.


Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-34940 June 27, 1988

BERNARDO LACANILAO, petitioner,


vs.
HON. COURT OF APPEALS, respondent.

SARMIENTO, J.:

The sole question in this petition which calls for our exercise of the power of judicial review, is one of law, which is: When the decision finds in favor of the
accused the circumstance of incomplete fulfillment of duty or lawful exercise of a right, would Article 69 of the Revised Penal Code apply, thereby resulting in
the lowering of the penalty by one or two degrees?
The Court of First Instance of Manila 1 found the petitioner, a policeman, guilty of homicide for the death of one Ceferino Erese, and was sentenced to an
indeterminate penalty of six years and one day of prision mayor, as the minimum, to fourteen years, eight months, and one day of reclusion temporal, as the
maximum, to indemnify the heirs of the victim in the amount of P20,000.00, and to pay the costs. The petitioner subsequently appealed to the Court of
Appeals which rendered a decision, the dispositive portion of which reads:

WHEREFORE, with the modification that appellant is hereby sentenced to the indeterminate penalty of six (6) years and one (1) day of prision mayor, as the
minimum, to twelve years and one (1) day of reclusion temporal, as the maximum, the appealed decision is hereby affirmed in all other respects, with costs
against appellant. 2

The petition is impressed with merit.

Indisputably, the Court of Appeals found that the accused, the petitioner herein, acted in the performance of a duty but that the shooting of the victim was
not the necessary consequence of the due performance thereof, therefore, crediting to him the mitigating circumstance consisting of the incomplete
justifying circumstance of fulfillment of duty. In the words of the respondent Court:

While appellant is to be commended for responding to the can of duty when he tried to stop the victim and the latter's companions from their drunken and
disorderly conduct, nevertheless he cannot be exonerated from overdoing his fulfillment of duty to the extent of admittedly shooting and thereby killing said
victim. ...

xxx xxx xxx

Following the ruling in People vs. Oanis, et al., 74 Phil. 257, we find in favor of appellant the mitigating circumstance of incomplete fulfillment of duty or
lawful exercise of right (Article 11, paragraph 5, Revised Penal Code), without any aggravating circumstances, and the imposable penalty should thus be
reduced to the minimum of reclusion temporal (Article 64, Paragraph 2, of the same Code). 3

Thus, the respondent court lowered the penalty merely by one period applying Article 64, paragraph 2, of the same Code, appreciating as it did incomplete
justification (incomplete fulfillment of duty or lawful exercise of right or office) as a mere generic or specific mitigating circumstance lowering the penalty to
the minimum period. Accordingly, the penalty originally imposed by the Court of First Instance of Manila was modified and lowered by the Court of Appeals
to six years and one day of prision mayor, as the minimum, to twelve years and one day of reclusion temporal, as the maximum. 4

The respondent Court erred. Incomplete justification is a special or privileged mitigating circumstance, which, not only can not be offset by aggravating
circumstances but also reduces the penalty by one or two degrees than that prescribed by law. We agree with the petitioner that the governing provision is
Article 69 of the Revised Penal Code, which states:

Art. 69. PENALTY TO BE IMPOSED 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.

The above legal provision, articulating the basis of the special or privileged mitigating circumstance of incomplete justification, expressly provides for its
applicability to the instances enumerated in Article 11, on Justifying Circumstances, and Article 12, on Exempting Circumstances, of the Revised Penal Code,
when not all of the conditions required to justify the act or to exempt from criminal liability are present. Unquestionably, the present case would have fallen
under No. 5 of Article 11 5 if the two conditions therefor, viz.: (1) that the accused acted in the performance of a duty or in the lawful exercise of a right or
office and (2) 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, concurred. But here only the first condition is fulfilled; the second is wanting. Consequently, Article 69 is applicable, for the requirement "that the
majority of such conditions be present" is immaterial since there are only two conditions in order that the circumstance in No. 5 of Article 11 may be taken
into account. Basic is the rule that penal laws in favor of the accused should be given liberal construction without, of course, going beyond the obvious
intention of the legislature. Article 69 is, obviously, in favor of the accused as it provides for a penalty lower than that prescribed by law when the crime
committed is not wholly justifiable, the intention of the legislature being to mitigate the penalty by reason of the diminution of either freedom of action,
intelligence, or intent, or of the lesser perversity of the offender.

Indeed, there appears to be no reason why we should not reiterate here our ruling in People vs. Oanis. 6 As we stated therein:

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 performance of such duty or the lawful exercise of such right or office. In the
instant case, only the first requisite is present-appellants have acted in the performance of a duty. The second requisite is wanting for the crime committed by
them 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 were overpowered. But through impatience or over-anxiety or in their desire to take no chances, they have exceeded in the
fulfilment 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.

WHEREFORE, the petition is GRANTED insofar as it seeks the modification of the penalty pursuant to Article 69 of the Revised Penal Code and our ruling in
Oanis. The petitioner is hereby SENTENCED to an indeterminate penalty of from two years, four months, and one day of prision correccional, to eight years
and one day of prision mayor. The questioned judgment is AFFIRMED in all other respects.

Yap, C.J., Melencio-Herrera, Paras and Padilla, JJ., concur.

FIRST DIVISION

[G.R. No. 47364. November 14, 1940.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, against PASTOR LACSAMANA AND OTHERS, accused. RUPERTO GREGORIO AND JOAQUIN LLANERA,
appellants
IMPERIAL, J.
Ruperto Gregorio (aka Norberto Gregorio) and Joaquin (aka Joaquin Linera), together with Pastor Lacsamana, Joaquina Reyes and Florentina de la Cruz, were
accused in the Court of First Instance of Pampanga of having committed the crime of robbery for having seized 4 of August of 1939, against the will of its
owner, of personal properties of Tomas Poy Lorenzo, of the value of P52, penetrating inside the house of said Lorenzo, located in the neighborhood of San
Jose, municipality of Angeles, Province of Pampanga, and breaking the door of it; and were sentenced, the first to five years of correctional prison and to the
additional penalty of ten years and one day of major prison, and, the second, to three years and six months of correctional prison, and both to indemnify
jointly and severally Tomas Poy Lorenzo in the amount of P52 and the proportional payment of the costs. Both defendants appealed the ruling that is so
dictated.
The two appellants voluntarily pleaded guilty to the crime of robbery alleged in the complaint and in this instance the defense counsel defending them does
not dispute the facts constituting the crime. By his declaration of guilt the appellants have admitted all the material allegations of the complaint, including
that of habitual delinquency in relation to Ruperto Gregorio.
The defense maintains that aggravating nocturnal and motor vehicle use should not be taken into account against appellants. Since these two aggravating
circumstances have been alleged in the complaint and the appellants have admitted them by declaring themselves to be guilty, the claim is untenable and
they must be upheld by imposing the penalty indicated by law. The evidence presented in the trial against the co-defendants Pastor Lacsamana, Joaquina
Reyes and Florentina de la Cruz, on which the defense is based to argue that the aforementioned aggravations should not be taken into account, can not be
considered in determining the responsibility of the appellants nor when imposing the penalty pointed out.
According to the allegations of the complaint and the documentary evidence that the indictment presented immediately after the appellant Ruperto Gregorio
was found guilty, the crime prosecuted is the seventh he has committed because he was previously convicted five times for the crime of theft and once for
the robbery, having been released last time on February 13, 1939. The claim of the appellant is unfounded to the effect that he is not a habitual criminal
within the meaning of Article 62, No. 5 (c) of the Code Criminal Revised by the circumstance that his last conviction took place on August 12, 1927 or more
than ten years before the commission of the crime prosecuted that occurred on August 4, 1939. The last paragraph of Article 62 considers habitual offender
the person who within ten years from the date on which he was released or has been convicted for the last time of the crime of theft, theft, fraud or forgery,
has been guilty of any of these crimes for third or more times and the aforementioned appellant is within this case because he was released within ten years
immediately prior to his last conviction for the crime prosecuted.
Nor does it have merit the defense's claim that the appellant Ruperto Gregorio can not be declared a habitual criminal because during the ten years prior to
February 13, 1939, when he was released last time, he did not commit any crime and because he who committed and was convicted on August 12, 1927, had
been sentenced to the additional penalty of fifteen years for being equally habitual delinquent. The last paragraph of Article 62 of the Revised Penal Code
does not exempt from ordinary crime or the additional penalty to the inmate who is in such conditions, enough, to be declared habitual criminal and creditor
of the additional penalty indicated, that is found guilty of any of the aforementioned crimes by third or more times and that his last conviction or freedom
took place ten years ago immediately before. The law does not exempt habitual crime or additional punishment when between the crimes committed
previously had mediated more than ten years or when for any of them the prisoner had been sentenced to fifteen years of prison as an additional penalty.
The crime committed by the appellants is that of robbery in uninhabited house for not having been alleged in the complaint that the house was inhabited
(Pueblo contra Moro Asa, RG No. 39711, October 31, 1933) and is punishable by the penultimate paragraph of the Article 302 of the Revised Penal Code, as
amended by Commonwealth Law No. 417, with arrest in its maximum degree to correctional prison in its minimum degree for being P52 the value of the
stolen property. In the commission of crime should be assessed the aggravating circumstances of nocturnal and use of motor vehicle and, in relation to
Ruperto Gregorio, the aggravating factors of recidivism and reiteration in addition, and one of them must be compensated with the mitigating circumstance
of the declaration of guilt, what the above-mentioned composite penalty should be imposed in its maximum degree whose duration is one year, eight months
and one day to two years and four months. Ruperto Gregorio must also be imposed the additional penalty of twelve years of major prison for being the
seventh conviction, in accordance with the provisions of Article 62, No. 5 (c) of the Revised Penal Code. As for Joaquin Lanera, not being a habitual
delinquent, the indeterminate penalty of four months of arrest greater than one year, eight months and one day of correctional imprisonment in accordance
with Law No. 4103, as amended by the Law, must be imposed. No. 4225.
With modification of the appealed sentence, the appellants are declared Ruperto Gregorio (aka Norberto Gregorio) and Joaquin Llanera (aka Joaquin Linera)
guilty of the crime of robbery in an uninhabited house and sentenced to the first, one year, eight months and one day of correctional prison and the
additional twelve years of major prison and, the second, the indeterminate penalty of four months of arrest greater than one year, eight months and one day
of correctional prison; to both to indemnify jointly and severally Tomas Poy Lorenzo in the amount of P52 and to the proportional payment of the costs of
both instances. In case of insolvency of the indemnification, Joaquin Llanera will suffer the corresponding subsidiary prison. This is how it is ordered.

Avanceña, Pres., Diaz, Laurel, and Horrilleno, MM., Are satisfied.


[ G.R. No. 42924, March 12, 1935 ]
THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. ANSELMO MORALES (ALIAS ARSENIO PABLO), DEFENDANT AND APPELLANT.

DECISION
ABAD SANTOS, J.:

Appellant was charged with the crime of estafa committed, according to the information, as follows:
"That on or about the 8th day of October, 1932, in the municipality of Mariquina, Province of Rizal, Philippine Islands, the said accused, Anselmo Morales
(alias Arsenio Pablo), through false representations, that is, posing himself as a physician, diagnosed the ailment of one Remedios Suarez and induced,
convinced, received and took from the latter the amount of P3 for which he pretended to purchase the necessary drug for the said Remedios Suarez, but the
said accused, once in possession of the said amount, far from complying with his obligation to purchase and deliver to the offended party herein the medicine
which he promised to buy, with intent to defraud, did then and there wilfully and feloniously, appropriate the said sum to his own personal use and benefit,
to the damage and prejudice of the said Remedios Suarez in the aforesaid amount of P3.

"That the herein accused is a habitual delinquent under the provisions of article 62 of the Revised Penal Code, paragraph 5 (c), in that he has been five times
convicted of the crime of estafa by virtue of final judgments handed down by competent courts, the last one herein complained of haying been committed
within the period of 10 years from the date of his last conviction"
Upon arraignment he pleaded guilty of the crime thus charged, and was sentenced to two months and one day of arresto mayor, to indemnify the offended
party in the sum of P3, and to pay the costs. He was further sentenced to an additional penalty of ten years of prision mayor for habitual delinquency.

On this appeal the only question raised relates to the additional penalty imposed for habitual delinquency, counsel de oficw for the appellant contending that
appellant's plea of guilty did not amount to an admission that he was a habitual delinquent.

While it ia well settled that a plea of guilty admits all the material allegations in the information, including that of habitual delinquency, in the case before us
the information failed to allege the date of appellant's last conviction or release. It simply averred that the crime herein complained of was "committed within
the period of 10 years from the date of his last conviction". Apart from the fact that such averment is a mere conclusion of fact, the law specifically provides
that a person shall be deemed a habitual delinquent if within a period of ten years from the date of his release or last conviction, he is found guilty of the
crime of estafa a third time or oftener. It is thus clear that what is material is not the date of commission of the subsequent offense, but that of his conviction
thereof, in relation to the date of his release or last conviction. As stated by this court in People vs. Siojo (G. R. No. 36835, 57 Phil., 1005), "it is true that there
is an admission that the appellant had previously been convicted four times of the crime of theft, but there is no showing that the judgment appealed from
was rendered within the period of ten years from appellant's last conviction or from his last release." Moreover, the record shows that the five previous
convictions of the appellant took place on the same day. Upon the authority of People vs. Kaw Liong and Yu Siong (57 Phil,, 839); People vs. Santiago (55 Phil.,
266) ; People vs. De la Cruz (G. R. No. 33786, promulgated February 7, 1931, not reported), and People vs. Ventura (56 Phil., 1), and others the said five
convictions should be considered as only one conviction. It follows that the appellant can not be deemed a habitual delinquent, but only a recidivist.

The offense committed falls within the purview of article 315, subsection 2 (a), of the Revised Penal Code. The penalty prescribed is arresto mayor in its
medium and maximum periods. Inasmuch as the aggravating circumstance of recidivism is offset by the mitigating circumstance of plea of guilty, the
prescribed penalty should be imposed in its medium degree, that is, from three months and eleven days to four months and twenty days of arresto mayor.
Appellant is therefore sentenced to three months and eleven days of arresto mayor, and to indemnify the offended party in the sum of P3, with subsidiary
imprisonment in case of insolvency.
Modified as above indicated, the judgment appealed from is affirmed with costs de oflcio in this instance. So ordered.

Avanceña, C.J., Street, Hull, and Vickers, JJ., concur.


Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. L-32456, 32457 November 14, 1930

THE PEOPLE OF THE PHILIPPINE ISLAND, plaintiff-appellee,


vs.
GERVASIO SANTIAGO, defendant-appellant.

Ewald E. Selph for appellant.


Attorney-General Jaranilla for appellee.

VILLA-REAL, J.:

This is an appeal taken by Gervasio Santiago from the judgment of the Court of First Instance of Manila, the dispositive part whereof is as follows:

Wherefore the court finds the defendant Gervasio Santiago guilty beyond a reasonable doubt of the offense charged in the information filed in these cases,
and sentences him:

(a) In case No. 38871, for the crime of estafa defined and penalized in article 534, No. 1, of the Penal Code, as amended by Act No. 3244 in connection with
articles 535, No. 1, and 536 of said Code, to two years, four months, and one day of presidio correccional, the accessories of the law, to indemnify Francisco
Fulgencio in the amount of P1.50, without subsidiary imprisonment (Ballesteros, 1 Phil., 208) and to pay the costs; and being an habitual criminal, he is
further sentenced to nine years' imprisonment.

(b) In case No. 38872, to pay a fine of P5 with subsidiary imprisonment in case of insolvency, and to pay the costs. So ordered.

In support of his appeal, the appellant assigns the following alleged errors as committed by the trial court in its judgment, to wit:

1. The trial court erred in not giving due weight to the testimony of the defendant that upon dismissing the carretela driven Francisco Fulgencio, he paid the
latter as hire hereof 40 centavos, which amount was accepted by said driver through the intervention of a policeman.

2. The trial court erred in not granting the defendant the benefit of reasonable doubt in not acquitting him of the crime of estafa and violation of section 1213
of the Revised Ordinances of the City of Manila, charged in the information filed in cases Nos. 38871 and 38872, respectively, of the Court of First Instance of
Manila.

The following facts were proved at the trial beyond a reasonable doubt:

On the morning of August 27, 1929, the defendant engaged Francisco Fulgencio's carretela at the stipulated price of P1.50 for the round trip from the corner
of Isaac Peral and Nebraska Streets in Ermita, to the Quinta Market. The defendant first went to the Meralco office, and thence to San Miguel Brewery on
Aviles Street. On reaching the latter place, the defendant went into one of he buildings of said brewery, and emerging after a while, asked the driver whether
he had any money with him. Fulgencio answered he only had 70 centavos. The defendant asked for the loan of it and went into the office of the brewery.
Seeing that the defendant was trying to get away, Fulgencio pursued him in his carretela. The defendant disappeared somewhere near San Rafael Street, but
Fulgencio soon spotted him with the help of someone who had seen him hide himself. Upon being discovered, the defendant at once returned to Fulgencio
the 70 centavos he had borrowed. The driver turned over the defendant to policeman Cirilo Abala, telling him what had happened. The policeman then
searched the defendant's pockets and did not find 1 centavo. Of course, he was unable to pay Fulgencio the P1.50 for the hire of his carretela. The policeman
then went over to a police telephone. While he did so, the defendant tried to run away, but the policeman gave chase and captured him.

The defendant admitted that he had already been convicted of estafa and that the last conviction was in the month of April, 1927.

The evidence shows that the defendant is guilty of the crime charged beyond a reasonable doubt. The only questions to be decided are the principal and the
additional penalty which should be imposed.

In criminal case No. 38871 (G. R. No. 32456), wherein he was found guilty of estafa in the amount of P1.50 or 7 ½ pesetas, the penalty fixed by article 534,
case 1, of the Penal Code, as amended by Act No. 3244, is arresto mayor in the minimum and medium degrees. Having committed the same crime previously
more than twice, the penalty to be imposed must be one degree higher, or arresto mayor in the maximum degree to presidio correccional in the minimum
degree, in accordance with the provisions of article 536 of said Code. In the absence of modifying circumstances said penalty must be imposed in the medium
degree, that is to say, one year and one day of presidio correccional.

With respect to the additional penalty which must be imposed upon the defendant in accordance with Act No. 3397, the trial court says:

The court is of the opinion that the defendant Gervasio Santiago is an habitual criminal under Act No. 3397, having been previously convicted of the same
crime more than three times within ten years of the last offense. Since it has been proved that the defendant was previously convicted six times of the same
crime, namely estafa, he must suffer the penalty prescribed in letter (d) of section 1, Act No. 3397, that is an additional penalty of not less than twenty-one
nor more than thirty years. But considering that the defendant herein has already been sentenced by this court in case No. 38870 to two years, four months,
and one day of presidio correctional and the additional penalty of twenty-one years' imprisonment for habitual delinquency, the additional penalty to be
imposed upon him in this case, No. 38871, must not exceed nine years, so that, adding up the two additional penalties, twenty-one years in case No. 38870
and nine years in the instant case No. 38871, the sum should not be greater than the maximum of thirty years prescribed in Act No. 3397. And it must be so
in accordance with the spirit of the law, whose evident purpose is not to impose upon the defendant such a number of years' imprisonment as exceeds that
of a human life.

The defendant-appellant was tried convicted in criminal case No. 38870 (G.R. No. 32455) 1 of the crime of estafa committed on March 13, 1929, and being an
habitual criminal, he was further sentenced to twenty-one years' imprisonment, in accordance with section 1, subsection (d) of Act No. 3397 cited above. In
the instant case, the same defendant was tried and convicted of estafa again, committed on August 27, 1929, before being convicted and sentenced for the
former offense.
Section 1 of said Act No. 3397 provides as follows:

SECTION 1. Any person who within a period of ten years from the date of his release or his last conviction by the courts of this country of the crimes of robo,
hurto, estafa, embezzlement, or forgery, or of a violation of the laws against vagrancy or prostitution, is found guilty of any of said crimes a third time or
oftener, shall be deemed an habitual criminal. . . .

It will be seen that an accused can only be deemed an habitual criminal if he had been convicted and sentenced at least three times by the courts of this
country for any of the crimes of robbery, larceny, estafa, embezzlement or forgery, or a violation of the laws against vagrancy or prostitution, or for three of
said crimes, and that his third conviction and sentence must be within the ten years following his liberty or last conviction, which must be the second. It may
be deduced from all this that it is not enough that the defendant should have been convicted three times of any of the crimes above set forth, or of three of
said crimes, in order to be legally deemed an habitual criminal; the second conviction must be of a crime committed after the first, or after service of
sentence for the first, and that the third conviction must be for a crime committed within ten years immediately following the second.

The law also regulates the additional penalty to be imposed upon an habitual criminal if he has committed any of the crimes mentioned three, four, five, six
or more times, or has committed three, four, five, six or more of them.

If, in order that an accused may be legally deemed an habitual criminal, it is necessary that he should have been convicted three times of any of the crimes
enumerated in the law, or of three such crimes, and that the second crime was committed after the first conviction, and the third after the second conviction,
then, in order to apply the additional penalty for the fourth commission of crime, he must also have been convicted or have served the sentence for the third
crime, and so on. The reason for this is obvious: As the additional penalties fixed by law are graduated, their application should also be gradual, in view of the
reformatory nature of the law in question; that is, the fourth additional penalty provided for the fourth crime must be applied only when the latter has been
committed after the third conviction or service, and so on with regard to the fifth, sixth, or more crimes, because until the habitual criminal has served the
additional penalty provided for his case, and has committed or abstained from committing another crime, it cannot be known if said additional penalty has or
has not reformed him. If in order that an additional penalty may be imposed upon an habitual criminal for a new crime he must have been previously
convicted or must have served the sentence for the preceeding crime. An habitual criminal who, after having been convicted or after having served his term,
commits several of the crimes mentioned in the the law, whether all at once or one after another, without having first been convicted of any of them before
committing the others, cannot be sentenced to the additional penalty of each of said new crimes, because that would be contrary to the reformatory purpose
of the law, and the graduation of the additional penalties, and because he would thus be made to serve additional penalties gradually increased for crimes
committed before having been convicted of crimes of the same class committed previously.

In Kinney vs. State (45 Tex. Cr. R., 500; 79 S. W., 570), the Texas Criminal Court Appeals held:

Pen. Code 1895, art. 1014, authorizing an increased punishment where defendant has previously been convicted of the same offense when construed with
other provisions of the Penal Code, and the Code of Criminal Procedure is a reformatory statute, and does not warrant the cumulation of a number of cases
occurring simultaneously, in order to add to the punishment of the case on trial but contemplates an enhanced punishment for a party who, after one
conviction, does not reform, but persists in committing other offenses of a like character.

There can be no doubt that when an habitual criminal, after serving as additional penalty again commits several crimes, whether at the same time or one
after another, he thereby shows that the additional penalty attached to the principal penalty to which he has been sentenced, and which he has served was
not enough to reform him. In committing new crimes, his mental and moral perversity was not greater when he committed the second that when he
committed the first crime, nor when he committed the third than when he committed the second, whether he did so simultaneously or successively. The
degree of his guilt being the same in such cases, he cannot logically or scientifically be sentenced for each of said crimes to a gradually increasing penalty.

In view of the foregoing considerations, we are of the opinion and so hold that when an habitual criminal has committed several crimes, whether
simutaneously or successively, without being first convicted of any of them before committing the others, he cannot be sentenced for each of said crimes to
the gradually increasing additional penalty, and for the purposes of the law, said crimes must be considered as one, applying the additional penalty to one of
them, and passing over the rest.

In the case at bar, inasmuch as the two estafas were committed one after the other within a short space of time by the defendant-appellant, without having
been convicted of the first before committing the second, and the proper additional penalty having been applied to the first crime, no additional penalty can
be imposed in view of the offense now before this court.lawphil.net

By virtue whereof, the judgment appealed from is modified, and the defendant-appellant is hereby sentenced to one year, and one day of presidio
correccional, eliminating the additional penalty of nine years imposed in criminal case No. 38871; and in all other respects the judgment appealed from is
affirmed, with costs against the appellant. So ordered.

Street, Ostrand, Johns, and Romualdez, JJ., concur.


EN BANC

[G.R. No. 45198. October 31, 1936.]

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. BASILIO DE JESUS Y JAVIER, Defendant-Appellant.
DECISION

DIAZ, J.:

Basilio de Jesus y Javier was convicted by the Court of First Instance of Manila in criminal case No. 52270 of said court, of the theft of an umbrella and a buri
hat valued at P2.65 committed, according to the information, on April 28, 1936. He was therein sentenced to one month and one day of arresto mayor with
the accessory penalties, to indemnify Francisco Liwanag in the sum of P2.50 representing the value of the umbrella which was not recovered, and being a
habitual delinquent, the additional penalty of two years, four months and one day of prision correccional with the corresponding accessory penalties was also
imposed upon him in conformity with the provisions of subsection 5, paragraph (a), of article 62 of the Revised Penal Code. Not agreeing with said penalties
he appealed from the sentence undoubtedly for the review of his case.

The appellant’s counsel de oficio in this instance, considering the appealed sentence in accordance with law, recommends the affirmance thereof in all
respects in his short brief.

Due to the amount involved, the theft imputed to the appellant is punishable with arresto mayor in its minimum and mediums periods the duration of which
is from one month and one day of four months (art. 309, subsection 6, Revised Penal Code); and the minimum period of said penalty is from one month and
one day to two months. It appears therefrom that the penalty questioned by the appellant is the minimum of the minimum period, as no other less penalty
could have been imposed upon him because said penalty in itself already constitutes the minimum limit under the law. The reasons which prompted the
lower court to be lenient with the appellant were undoubtedly his voluntary confession before the prosecution presented its evidence, which constitutes a
mitigating circumstance (art. 13, subsection 7, Revised Penal Code), and the apparent absence of all allegation in the information of some aggravating
circumstance that may compensate said mitigating circumstance (art. 63, rule 1, Revised Penal Code).

The imposition of the additional penalty of two years, four months and one day upon the appellant is justified by his own admission of guilt because the rule
is well settled in this jurisdiction that when one pleads guilty of the crime imputed to him in an information, it is understood that he admits all the material
facts alleged therein (U.S. v. Barba, 29 Phil., 206; U.S. v. Santiago, 35 Phil., 20), not excluding those alleging his former convictions of other crimes (U.S. v.
Burlado, 42 Phil., 72); and in the information filed against the appellant, it was alleged:jgc:chanrobles.com.ph

"That the said accused is a habitual delinquent within the purview of rule 5 of article 62 of the Revised Penal Code, he having been convicted by final
judgments of competent courts of the following crimes: On January 4, 1933, he was convicted of theft and sentenced to one month and one day of
imprisonment, the date of his last release being January 10, 1936."cralaw virtua1aw library

The Solicitor-General, taking advantage of the allegation in the information that the appellant is a habitual delinquent, recommends that instead of affirming
his principal penalty of one month and one day of arresto mayor, it be increased to the minimum of the medium period of that prescribed by law for his
crime, or two months and one day of arresto mayor, considering the aggravating circumstance of recidivism established but compensated by the mitigating
circumstance of voluntary confession. His argument appears to be as follows: Habitual delinquency necessarily implies recidivism or former conviction, at
least more than once. The appellant having admitted in his confession that he is a habitual delinquent for having committed theft for the third time within the
period prescribed by law, he must necessarily be considered a recidivist. This naturally raises the question whether or not in this case the circumstance of
recidivism can be and must be twice taken into consideration against the appellant, first as an aggravating circumstance although compensated by another
mitigating circumstance, and second as a qualifying circumstance or one inherent, as the case may be, in habitual delinquency. If such an opinion were
sustained, would not an injustice be committed against the appellant by imposing two penalties upon him, the principal and the additional, in a period which
must be determined by taking into consideration one and the same fact or circumstance, which is recidivism? There is no express provision of law prohibiting
it. On the contrary, as to the principal penalty, there is the rule that in cases in which the penalty prescribed by law contains three periods, the courts must
take into consideration, in the application of said penalty, the aggravating or mitigating circumstances established at the trial if they do not appear to be
compensated by other circumstances; and there is also the rule that when only an aggravating circumstance is present the former, that is the principal
penalty, must be imposed in its maximum period (art. 64, Revised Penal Code); and in People v. Aguinaldo (47 Phil., 728), this court has stated, and it is
reiterated in People v. Melendrez (59 Phil., 154), that the aggravating circumstance of recidivism, even in cases of habitual delinquency, should be taken into
consideration in the application of the principal penalty in the corresponding period.

As to the additional penalty, if we must rely upon the spirit and letter of the law, we would say that the purpose of the latter in establishing it was to prevent
those who for the second time or more commit the crimes enumerated in the last paragraph of article 62 of the Revised Penal Code from relapsing thereafter
at least during the period fixed thereby, as if to tell them: "If you relapse, the penalty corresponding to your last offense will be imposed upon you plus
another additional penalty ranging from prision correccional in its medium and maximum periods to prision mayor in its maximum period and reclusion
temporal in its minimum period, according to your recidivism, that is, the third, fourth, fifth or more times."cralaw virtua1aw library

When the law has prescribed the additional penalty for habitual delinquency in a manner susceptible of division into periods and has enumerated it among
the penalties that may be imposed by incorporating it into the Revised Penal Code, it was for no other purpose than that all the circumstances present in
every case be taken into consideration in order to avoid arbitrariness in the determination of the period in which said penalty should be imposed. It would be
arbitrary, in the absence of any circumstance, to impose the maximum of the additional penalty upon a habitual delinquent, as it would also be arbitrary to
impose the minimum thereof upon him when there are circumstances justifying its application in the maximum period.

We should not lose sight of the fact that when the Legislature incorporated the provision relative to habitual delinquency into the Revised Penal Code, it was
aware — this, at least, is the presumption of law — that recidivism was, as it continues to be in the majority of cases to this date, an aggravating circumstance
the effect of which, as the name itself implies, is to aggravate the criminal responsibility of the delinquent. But unlike other circumstances, as treachery,
evident premeditation, sex, craft, relationship, public position, dwelling, not to mention several others so as not to be tedious, which may be aggravating,
qualifying and inherent as the case may be, recidivism is and can be nothing else but an aggravating circumstance. This is the general rule; but as such it
certainly is not without its exception as other general rules. The exception is found in the case of habitual delinquency, as recidivism is precisely one of those
that constitute and give it existence, and other being former conviction, but it is not necessary that both be present at the same time.

Treachery, evident premeditation and relationship are aggravating circumstances in crimes against persons and when one of them is present, for instance, in a
case of homicide, the crime is present, for instance, in a case of homicide, the crime committed ceases to be homicide and becomes murder or parricide, as
the case may be. In such cases, that of the said three circumstances which has raised the crime committed from the category of homicide to that of murder or
parricide, ceases to be an aggravating circumstance to become a qualifying circumstance and, once accepted as such, it cannot, by virtue of the legal maxim
non bis in idem be considered as an aggravating circumstance at the same time (U.S. v. Estopia, 28 Phil., 97; U.S. v. Vitug, 17 Phil., 1; Decision of the Supreme
Court of Spain of November 13, 1871). So must recidivism be considered in habitual delinquency. We have taken it into consideration in imposing the
principal penalty and we cannot again take it into consideration in imposing the additional penalty because inasmuch as recidivism is a qualifying or inherent
circumstance in habitual delinquency, it cannot be considered an aggravating circumstance at the same time. Consequently, the additional penalty to be
imposed upon the appellant must be the minimum of that prescribed by law as, with the exception of recidivism, no other circumstance or fact justifying the
imposition of said penalty in a higher period has been present.

The proposition based on rules 1 and 2 of article 62 of the Revised Penal Code, that if recidivism is considered an inherent or qualifying circumstance of
habitual delinquency it should not be taken into account in the imposition of the principal penalty, seems to us untenable because it is based upon the
erroneous assumption that habitual delinquency is a crime. It is simply a fact or circumstance which, if present in a given case with the other circumstances
enumerated in rule 5 of said article, gives rise to the imposition of the additional penalties therein prescribed. This is all the more true because the law itself
clearly provides that the habitual delinquent must be sentenced to the penalty provided by law for his last crime in addition to the additional penalty he
deserves.

In view of the foregoing facts and considerations and furthermore taking into account the provisions of article 62, rule 5, paragraph (a), of the Revised Penal
Code, we deem it clear that the appellant deserves the additional penalty imposed by the lower court upon him. The penalty prescribed by said rule is prision
correccional in its medium and maximum periods, or from two years, four months and one day to six years. What was imposed upon the appellant is the
minimum of said penalty and he has absolutely no reason to complain because after all he can not be exempt from the additional penalty by reason of his
admission at the trial that he is a habitual delinquent, having committed the crime of theft for the third time before the expiration of ten years from the
commission of his former crime.

In resume we hold that the principal penalty of the appellant must be two months and one day of arresto mayor. We therefore modify the appealed sentence
in this sense and so modified it is affirmed in all other respects, with the costs to the appellant. So ordered.

Avanceña, C.J., Villa-Real, Imperial and Laurel, JJ., concur.


[ G.R. No. 48740, August 05, 1942 ]
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. FAUSTINO TOLENTINO Y DE DIOS AND LUISA CORPUZ Y QUITONG, DEFENDANTS. FAUSTINO
TOLENTINO V DE DIOS, APPELLANT.

DECISION
OZAETA, J.:

In the municipal court of Manila, where this action was commenced, as well as in the Court of First Instance, to which it was appealed, both of the above-
named defendants pleaded guilty to the charge of theft of seven shirts valued at P14 belonging to one Cosme Famorca. Both, being recidivists, were
sentenced in the Court of First Instance to suffer two months and one day of arresto mayor and to pay the corresponding civil indemnity to the offended
party. Faustino Tolentino y de Dios was further sentenced to suffer an additional penalty of six years and one day of prision mayor for habitual delinquency.
He alone appealed to this Court.

The only question raised by the appellant is the correctness of the additional penalty. The pertinent allegation of the information is that the accused Faustino
Tolentino y dc Dios is a habitual delinquent, he having been convicted of the crimes of theft and estafa by final judgments rendered by competent courts, as
follows:
Date of
commission
Date of
sentence
Crime
Sentence
Date of
release

10-29-26
8-1-27
9-14-35
10-13-25
10-30-26
8-1-27
9-30-35
Qualified theft, MCDE-16887
Theft, NCDE-42165
Qualified, theft. NCDE-57895
Estafa, CFID-50973
6 months and P3 indemnity
3 months and 1 day
6 months 1 day and P15 indemnity
2 months 2 day arresto mayor, to return the bicycle stolen or its value P40, and additional penalty of 2 years 4 months 21 days of prision correccional and
costs.
3-18326
1-20-27
8-10-27
The trial court sentenced the appellant under paragraph 5 (b) of article 62 of the Revised Penal Code, as if this were only his fourth and not his fifth
conviction. The Solicitor General recommends the affirmance of that sentence, on the theory that appellant's fourth previous conviction alleged in the
information should be disregarded because the date of his release in connection therewith was not shown. On the other hand counsel for the appellant, on
the basis of the trial court's implied finding that this is appellant's fourth conviction, contends that appellant should be sentenced under paragraph 5 (a) of
article 62, as if the present were only his third conviction, on the ground that the first conviction should be taken as an aggravating circumstance and should
be disregarded as an element of habitual delinquency.

We cannot uphold appellant's contention. Under his theory an accused cannot be sentenced for habitual delinquency unless he has had at least three
previous convictions, because the first conviction has to be taken only as an aggravating circumstance and has to be disregarded for the purpose of
determining habitual delinquency. That, we think, would be an unwarranted interpretation of the Habitual Delinquency Law (paragraph 5 of article 62 of the
Revised Penal Code), which reads as follows:
5. Habitual delinquency shall have the following effects:

"(a) Upon a third conviction the culprit shall be sentenced to the penalty provided by law for the last crime of which he be found guilty and to the additional
penalty of prision correccional in its medium and maximum periods;

"(b) Upon a fourth conviction the culprit shall be sentenced to the penalty provided for the last crime of which he be found guilty and to the additional
penalty of prision mayor in its minimum and medium periods; and

"(c) Upon fifth or additional conviction, the culprit shall be sentenced to the penalty provided for the last crime of which he be found guilty and to the
additional penalty of prision mayor in its maximum period to reclusion temporal in its minimum period.

"Notwithstanding the provisions of this article, the total of the two penalties to be imposed upon the offender, in conformity herewith, shall in no case exceed
30 years.

"For the purposes of this article, a person shall be deemed to be habitual delinquent, if within a period of ten years from the date of his release or last
conviction of the crimes of robo, hurto, ettafa, or falsificacion, he is found guilty of any of said crimC3 a third time or oftener."
A habitual delinquent is necessarily a recidivist, and in imposing the principal penalty upon him the aggravating circumstance of recidivism ha.i to lie taken
into account. In fixing "the penalty provided by law for the last crime" as required in paragraph 5 (a), (b), and (c) of article 62 of the Revised Penal Code, the
court cannot disregard articles 14 (9) and 64 of the Revised Penal Code, which respectively define recidivism as an aggravating circumstance and lay down the
rule for the application of aggravating and mitigating circumstances. We reaffirm the holding of this Court in People vs. Melondrez, 59 Phil., 154; People vs.
Espina, 62 Phil., 607; and People vs. De Jesus, 63 Phil., 760, as a correct interpretation of the Habitual Delinquency Law. However, for the purpose of fixing the
additional penalty, recidivism cannot be taken as an aggravating circumstance for the reason that it is inherent in habitual delinquency (People vs. De Jesus,
supra).

Neither can we accept the recommendation for affirmance made by the Solicitor General on the theory that the present is appellant's fourth conviction. We
cannot disregard his previous fourth conviction alleged in the information solely because the date of his release in connection therewith has not been shown.
It appearing that he was sentenced for the fourth time on September 30,1935, to suffer two months and one day of arresta mayor plus an additional penalty
of two years, four months, and twenty-one days of prision correccional, we can readily see that he must have been released in connection therewith less than
ten years previous to August 13, 1941, the date of the commission of the offense complained of in the present case. The stand taken by the trial court and the
Solicitor General is untenable because if appellant's fourth previous conviction be disregarded, he could not be sentenced to any additional penalty as a
habitual delinquent, his previous third conviction and release having: taken place more than ten years prior to August 13, 1941.
It results that this is appellant's fifth conviction and, accordingly, he must be sentenced under paragraph 5 (c) of article 62 to the additional penalty of prision
mayor in its maximum period to reclusion temporal in its minimum period. This penalty must be imposed in its minimum degree because of the mitigating
circumstance of plea of guilty. Wherefore, with the modification that the appellant Faustino Tolentino y de Dios shall suffer an additional penalty of ten years
and one day of prision mayor, the sentence appealed from is affirmed, with costs. So ordered.

Yulo, C. J., Paras and Moran, JJ., concur.


EN BANC

June 30, 1987

G.R. Nos. L-51065-72

ARTURO A. MEJORADA, petitioner,


vs.
THE HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.

CORTES, J.:

This petition for certiorari seeks to reverse the May 23, 1979 decision of the Sandiganbayan finding the accused Arturo A. Mejorada in Criminal Cases Nos.
002-009 guilty beyond reasonable doubt of violating Section 3(E) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

Eight informations were filed by the Provincial Fiscal against the petitioner and jointly tried before the Sandiganbayan. The eight informations substantially
allege the same set of circumstances constituting the offense charged, Criminal Case No. 002 reads as follows:

That in (sic) or about and during the period comprised from October 1977 to February 1978, in the municipality of Pasig, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, being employed in the Office of the Highway District Engineer, Pasig, Metro Manila,
as Right-of-Way-Agent conspiring and confederating together with two (2) other John Does whose true Identities and present whereabouts are still unknown,
with evident bad faith, and for personal gain, did then and there wilfully, unlawfully and feloniously, directly intervene, work for, and facilitate the approval of
one Isagani de Leon's claim for the payment in the removal and reconstruction of his house and a part of his land expropriated by the government having
been affected by the proposed Pasig-Sta Cruz-Calamba Road. 2nd IBRD Project at Binangonan, Rizal, while the accused, Arturo A. Mejorada is in the discharge
of his official and/or administrative functions and after said claim was approved and the corresponding PNB Check No. SN 5625748 was issued and encashed
in the amount of P7,200.00 given only P1,000.00 to claimant (Isagani de Leon), appropriating, applying and converting to themselves the amount of
P6,200.00, thereby causing damage and prejudice to Isagani de Leon and the government in the aforementioned amount of P6,200.00.

Contrary to law.

Except for the date of the commission of the offense, the name of the aggrieved private party, the PNB Check number, the amount involved and the number
or John Does, the seven other informations are verbatim repetitions of the above.

The facts are found by the respondent Sandiganbayan are as follows:

Arturo A. Mejorada was a public officer who was first employed as a temporary skilled laborer in the Bureau of Public Works on March 16, 1947, and then as
right-of-way agent in the Office of the Highway District Engineer, Pasig, Metro Manila, from February, 1974 up to December 31, 1978. As a right-of-way agent,
his main duty was to negotiate with property owners affected by highway constructions or improvements for the purpose of compensating them for the
damages incurred by said owners.

Among those whose lots and improvements were affected by the widening of the proposed Pasig-Sta. Cruz-Calamba Road. 2nd IBRD Project, at Binangonan,
Rizal were Isagani de Leon, Isaac Carlos, Napoleon Maybituin, Dominga Villaroza, Florentino de la Cruz, Cipriano Aran, Celestina S. Mallari and Rodolfo Rivera,
all residents of Mambog, Binangonan, Rizal.

Sometime in October or November 1977, petitioner contacted the aforenamed persons and informed them that he could work out their claims for payment
of the values of their lots and/or improvements affected by the widening of said highway. In the process, Mejorada required the claimants to sign blank
copies of the "Sworn Statement on the Correct and Fair Market Value of Real Properties" and "Agreement to Demolish, Remove and Reconstruct
improvements" pertinent to their claims. The claimants complied without bothering to find out what the documents were all about as they were only
interested in the payment of damages.

In said "Sworn Statements" and "Agreements to Demolish", the value of the respective properties of the claimants were made to appear very much higher
than the actual value claimed by them. Likewise, the said "Agreements to Demolish" reflected the value of the improvements as per assessor" which on the
average was only P2,000.00 lower than the value declared by the owners in their sworn statements. The value as per assessor was, in turn, supported by the
Declarations of Real Property in the names of the claimants containing an assessed value exactly the same as that stated in the Agreements to Demolish "as
per assessor", except the claims of De la Cruz and Aran where there is only a difference of P400.00 and P200.00, respectively. It turned out, however, that said
Declarations of Property are not really intended for the claimants as they were registered in the names of other persons, thus showing that they were all
falsified.

A few months after processing the claims, accused accompanied the claimants to the Office of the Highway District Engineer at the provincial capitol of Pasig,
Metro Manila, to receive payments and personally assisted the claimants in signing the vouchers and encashing the checks by certifying as to their Identities
and guaranteeing payment.

Right after the claimants had received the proceeds of their checks, accused accompanied them to his car which was parked nearby where they were
divested of the amounts paid to them leaving only the sum of P1,000.00 to each, except Isaac Carlos to whom P5,000.00 was left, explaining to them that
there were many who would share in said amounts. All the claimants were helpless to complaint because they were afraid of the accused and his armed
companion.

The claimants, through the assistance of counsel, filed their complaints with the Provincial Fiscal's Office of Pasig, Metro Manila, narrating in their supporting
sworn statements what they later testified to in court.

Five issues are raised in this petition to review the decision of the Sandiganbayan:

I. Whether or not the essential elements constituting the offense penalized by section 3(e) of Republic Act No. 3019, otherwise known as the Anti-
Graft and Corrupt Practices Act have been clearly and convincingly proven by the prosecution;

II. Whether or not the Sandiganbayan is a court of competent jurisdiction duly constituted in accordance with Pres. Dec. No. 1606;
III. Whether or not the penalty imposed upon the petitioner is excessive and contrary to the three-fold rule as provided for by Article 70 of the Revised
Penal Code;

IV. Whether or not there is a variance between the offense charged in the information and the offense proved;

V. Whether or not the conclusion drawn from the record of the Sandiganbayan in arriving at a verdict of conviction of petitioner is correct is a
question of law which this Honorable Court is authorized to pass upon.

I. Petitioner contends that the eight informations filed against him before the Sandiganbayan are fatally defective in that it failed to allege the
essential ingredients or elements constituting the offense penalized by Section 3(e) of Rep. Act No. 3019.

The section under which the accused-petitioner was charged provides:

Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby declared to be unlawful.

xxx xxx xxx

(e) Causing any undue injury to any party, including the Government, 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. This provision
shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

Petitioner enumerated three elements which, in his opinion, constitute a violation of Section 3(e).

First, that the accused must be a public officer charged with the duty of granting licenses or permits or other concessions. Petitioner contends that inasmuch
as he is not charged with the duty of granting licenses, permits or other concessions, then he is not the officer contemplated by Section 3 (e).

Section 3 cited above enumerates in eleven subsections the corrupt practices of any public officers declared unlawful. Its reference to "any public officer" is
without distinction or qualification and it specifies the acts declared unlawful. We agree with the view adopted by the Solicitor General that the last sentence
of paragraph (e) is intended to make clear the inclusion of officers and employees of officers or government corporations which, under the ordinary concept
of "public officers" may not come within the term. It is a strained construction of the provision to read it as applying exclusively to public officers charged with
the duty of granting licenses or permits or other concessions.

The first element, therefore, of Section 3 (e) is that the accused must be a public officer. This, the informations did not fail to allege.

Second, that such public officer caused undue injury to any party, including the Government, or gave any private party unwarranted benefits, advantage or
preference in the discharge of his official administrative or judicial functions.

Petitioner denies that there was injury or damage caused the Government because the payments were allegedly made on the basis of a document solely
made by the Highway District Engineer to which petitioner had no hand in preparing. The fact, however, is that the government suffered undue injury as a
result of the petitioner's having inflated the true claims of complainants which became the basis of the report submitted by the Highway District Engineer to
the Regional Director of the Department of Highways and which eventually became the basis of payment. His contention that he had no participation is
belied by the fact that as a right-of-way-agent, his duty was precisely to negotiate with property owners who are affected by highway constructions for the
purpose of compensating them.

On the part of the complainants, the injury caused to them consists in their being divested of a large proportion of their claims and receiving payment in an
amount even lower than the actual damage they incurred. They were deprived of the just compensation to which they are entitled.

Third, the injury to any party, or giving any private party any unwarranted benefits, advantage or preference was done through manifest, partiality, evident
bad faith or gross inexcusable negligence.

Petitioner argues that for the third element to be present, the alleged injury or damage to the complainants and the government must have been caused by
the public officer in the discharge of his official, administrative or judicial functions and inasmuch as when the damage was caused to the complainants, he
was no longer discharging his official administrative functions, therefore, he is not liable for the offense charged.

The argument is devoid of merit. The Sandiganbayan established the fact that the petitioner took advantage of his position as a right-of-way-agent by making
the claimants sign the aforementioned agreements to demolish and sworn statements which contained falsified declarations of the value of the
improvements and lots. There was evident bad faith on the part of the petitioner when he inflated the values of the true claims and when he divested the
claimants of a large share of the amounts due them.

In view of the above holding. We also dispose of the fourth issue which relates to the allegation that petitioner cannot be convicted for a violation of the Anti-
Graft Law because the evidence adduced by the prosecution is not the violation of Section 3 (e) but the crime of robbery. Contrary to the petitioner
averment. We find no variance between the offense charged in the information and the offense proved. The prosecution was able to establish through the
corroborating testimonies of the witnesses presented how through evident bad faith, petitioner caused damage to the claimants and the Government. The
manner by which the petitioner divested the private parties of the compensation they received was part of' the scheme which commenced when the
petitioner approached the claimants and informed them that he could work out their claims for payment of the values of their lots and/or improvements
affected by the widening of the Pasig-Sta. Cruz-Calamba Road. The evidence presented by the prosecution clearly establish a violation of Section 3(e).

II. The petitioner also assails the competency of the Sandiganbayan to hear and decide this case. He argues that before the Sandiganbayan could
legally function as a judicial body, at least two (2) divisions, or majority of the justices shall have been duly constituted and appointed.

We previously ruled on this matter in the case of De Guzman v. People (G.R. No. 54288, December 15, 1982, 119 SCRA 337). In that case, the petitioner De
Guzman questioned the authority of the Sandiganbayan to hear and decide his case on the same ground that herein petitioner assails its jurisdiction. The
Court upheld the authority of the Sandiganbayan saying that:

Although the Sandiganbayan is composed of a Presiding Justice, and eight Associate Justices, it does not mean that it cannot validly function without all of the
Divisions constituted. Section 3 of P.D. 1606 provides that the "Sandiganbayan shall sit in three divisions of three justices each" while Section 5 thereof
provides that the unanimous vote of three justices of a division shall be necessary for the pronouncement of a judgment.

Thus the Sandiganbayan functions in Divisions of three Justices each and each Division functions independently of the other. As long as a division has been
duly constituted it is a judicial body whose pronouncements are binding as judgments of the Sandiganbayan.
The judgment convicting petitioner was a unanimous Decision of the First Division duly constituted. It thus met the requirement for the pronouncement of a
judgment as required by Section 5 of P.D. 1606 supra.

III. The third issue raised by the petitioner concerns the penalty imposed by the Sandiganbayan which totals fifty-six (56) years and eight (8) days of
imprisonment. Petitioner impugns this as contrary to the three-fold rule and insists that the duration of the aggregate penalties should not exceed forty (40)
years.

Petitioner is mistaken in his application of the three-fold rule as set forth in Article 70 of the Revised Penal Code. This article is to be taken into account not in
the imposition of the penalty but in connection with the service of the sentence imposed (People v. Escares, 102 Phil. 677 [1957]). Article 70 speaks of
"service" of sentence, "duration" of penalty and penalty "to be inflicted". Nowhere in the article is anything mentioned about the "imposition of penalty". It
merely provides that the prisoner cannot be made to serve more than three times the most severe of these penalties the maximum of which is forty years.

The Sandiganbayan, therefore, did not commit any error in imposing eight penalties for the eight informations filed against the accused-petitioner. As We
pointed out in the case of People v. Peralta, (No. L-19069, October 29, 1968, 25 SCRA 759, 783-784):

... Even without the authority provided by Article 70, courts can still impose as many penalties as there are separate and distinct offenses committed, since for
every individual crime committed, a corresponding penalty is prescribed by law. Each single crime is an outrage against the State for which the latter, thru the
courts of justice, has the power to impose the appropriate penal sanctions.

In the light of the above reasons, petitioner cannot assail the penalty imposed upon him as harsh, cruel and unusual (See Veniegas v. People, G.R. No. 57601-
06 July 20, 1982, 115 SCRA 790, 792).

We deem it unnecessary to pass upon the fifth issue raised in view of the foregoing discussion.

WHEREFORE, the petition is denied for lack of merit.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin and Sarmiento, JJ., concur.

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