G.R. No.

L-43530 August 3, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
AURELIO LAMAHANG, defendant-appellant.

Honesto K. Bausa for appellant.

Office of the Solicitor-General Hilado for appellee.

RECTO, J.:

The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of
Iloilo, finding him guilty of attempted robbery and sentencing him to suffer two years and four months
of prision correccional and to an additional penalty of ten years and one day of prision mayor for being an
habitual delinquent, with the accessory penalties of the law, and to pay the costs of the proceeding.

At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C.R.
Fuentes streets of the City of Iloilo, caught the accused in the act of making an opening with an iron bar on the
wall of a store of cheap goods located on the last named street. At that time the owner of the store, Tan Yu,
was sleeping inside with another Chinaman. The accused had only succeeded in breaking one board and in
unfastening another from the wall, when the policeman showed up, who instantly arrested him and placed
him under custody.

The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge
and the Solicitor-General, as constituting attempted robbery, which we think is erroneous.

It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a
logical relation to a particular, concrete offense; that, which is the beginning of the execution of the offense by
overt acts of the perpetrator, leading directly to its realization and consummation. The attempt to commit an
indeterminate offense, inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact
from the standpoint of the Penal Code. There is no doubt that in the case at bar it was the intention of the
accused to enter Tan Yu's store by means of violence, passing through the opening which he had started to
make on the wall, in order to commit an offense which, due to the timely arrival of policeman Tomambing, did
not develop beyond the first steps of its execution. But it is not sufficient, for the purpose of imposing penal
sanction, that an act objectively performed constitute a mere beginning of execution; it is necessary to
establish its unavoidable connection, like the logical and natural relation of the cause and its effect, with the
deed which, upon its consummation, will develop into one of the offenses defined and punished by the Code;
it is necessary to prove that said beginning of execution, if carried to its complete termination following its
natural course, without being frustrated by external obstacles nor by the voluntary desistance of the
perpetrator, will logically and necessarily ripen into a concrete offense. Thus, in case of robbery, in order that
the simple act of entering by means of force or violence another person's dwelling may be considered an
attempt to commit this offense, it must be shown that the offender clearly intended to take possession, for
the purpose of gain, of some personal property belonging to another. In the instant case, there is nothing in
the record from which such purpose of the accused may reasonably be inferred. From the fact established and
stated in the decision, that the accused on the day in question was making an opening by means of an iron bar
on the wall of Tan Yu's store, it may only be inferred as a logical conclusion that his evident intention was to
enter by means of force said store against the will of its owner. That his final objective, once he succeeded in
entering the store, was to rob, to cause physical injury to the inmates, or to commit any other offense, there is
nothing in the record to justify a concrete finding.1avvphil.ñet

It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material
damage is wanting, the nature of the action intended (accion fin) cannot exactly be ascertained, but
the same must be inferred from the nature of the acts executed (accion medio). Hence, the necessity
that these acts be such that by their very nature, by the facts to which they are related, by the
circumstances of the persons performing the same, and by the things connected therewith, they must
 show without any doubt, that they are aimed at the consummation of a crime. Acts susceptible of
double interpretation , that is, in favor as well as against the culprit, and which show an innocent as
well as a punishable act, must not and can not furnish grounds by themselves for attempted nor
frustrated crimes. The relation existing between the facts submitted for appreciation and the offense
which said facts are supposed to produce must be direct; the intention must be ascertained from the
facts and therefore it is necessary, in order to avoid regrettable instances of injustice, that the mind
be able to directly infer from them the intention of the perpetrator to cause a particular injury. This
must have been the intention of the legislator in requiring that in order for an attempt to exist, the
offender must commence the commission of the felony directly by overt acts, that is to say, that the
acts performed must be such that, without the intent to commit an offense, they would be
meaningless.

Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the
offense, are not punished except when they are aimed directly to its execution, and therefore they must have
an immediate and necessary relation to the offense."

Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in order to
declare that such and such overt acts constitute an attempted offense it is necessary that their
objective be known and established, or that said acts be of such nature that they themselves should
obviously disclose the criminal objective necessarily intended, said objective and finality to serve as
ground for the designation of the offense: . . . .

In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not
constitute attempted robbery but attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606,
and decisions of the Supreme Court of Spain therein cited). Under article 280 of the Revised Penal Code, this
offense is committed when a private person shall enter the dwelling of another against the latter's will. The
accused may be convicted and sentenced for an attempt to commit this offense in accordance with the
evidence and the following allegation contained in the information: "... the accused armed with an iron bar
forced the wall of said store by breaking a board and unfastening another for the purpose of entering said
store ... and that the accused did not succeed in entering the store due to the presence of the policeman on
beat Jose Tomambing, who upon hearing the noise produced by the breaking of the wall, promptly
approached the accused ... ." Under the circumstances of this case the prohibition of the owner or inmate is
presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs.
Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused must
be taken into consideration the aggravating circumstances of nighttime and former convictions, — inasmuch
as the record shows that several final judgments for robbery and theft have been rendered against him — and
in his favor, the mitigating circumstance of lack of instruction. The breaking of the wall should not be taken
into consideration as an aggravating circumstance inasmuch as this is the very fact which in this case
constitutes the offense of attempted trespass to dwelling.

The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if
committed with force, is prision correccional in its medium and maximum periods and a fine not exceeding
P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted trespass to dwelling is to degrees
lower (art. 51), or, arresto mayor in its minimum and medium periods. Because of the presence of two
aggravating circumstances and one mitigating circumstance the penalty must be imposed in its maximum
period. Pursuant to article 29 of the same Code, the accused is not entitled to credit for one-half of his
preventive imprisonment.

Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted
trespass to dwelling, committed by means of force, with the aforesaid aggravating and mitigating
circumstances and sentenced to three months and one day of arresto mayor, with the accessory penalties
thereof and to pay the costs.

Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.

G.R. No. L-5848 April 30, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SY PIO, alias POLICARPIO DE LA CRUZ, defendant-appellant.

Exequiel Zaballero, Jr. for appellant.

Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio Villamor for appellee.

LABRADOR, J.:

This is an appeal from a judgment of the Court of First Instance of Manila finding the defendant-appellant
herein Sy Pio, alias Policarpio de la Cruz, guilty of frustrated murder against the person of Tan Siong Kiap, and
sentencing him to suffer an indeterminate sentence of 6 years, 1 month, and 11 days of prision mayor, to 14
years, 8 months, and 1 day of reclusion temporal, to indemnify the offended party Tan Siong Kiap in the sum of
P350, without subsidiary imprisonment in case of insolvency, and to pay the costs. The case was appealed to
the Court of Appeals, but that court certified it to this Court under the provisions of section 17 (4) of Republic
Act No. 296, on the ground that the crime charged was committed on the same occasion that the defendant-
appellant had committed crime of murder, with which the defendant-appellant was also charged.

The evidence for the prosecution shows that early in the morning of September 3, 1949, the defendant-
appellant entered the store at 511 Misericordia, Sta Cruz, Manila. Once inside he started firing a .45 caliber
pistol that he had in his hand. The first one shot was Jose Sy. Tan Siong Kiap, who was in the store and saw the
accused enter and afterwards fire a shot at Jose Sy, asked the defendant-appellant, "What is the idea?"
Thereupon defendant-appellant turned around and fired at him also. The bullet fired from defendant-
appellant's pistol entered the right shoulder of Tan Siong Kiap immediately ran to a room behind the store to
hide. From there he still heard gunshot fired from defendant-appellant's pistol, but afterwards defendant-
appellant ran away.

Tan Siong Kiap was brought to the Chinese General Hospital, where his wound was treated. He stayed there
from September 3 to September 12, 1949, when he was released upon his request and against the physician's
advice. He was asked to return to the hospital for further treatment, and he did so five times for a period of
more than ten days. Thereafter his wound was completely healed. He spent the sum of P300 for hospital and
doctor's fees.

The defendant-appellant shot two other persons in the morning of September 3, 1949, before shooting and
wounding Tan Siong Kiap; one was Ong Pian and the other Jose Sy. On September 5 information was received
by the Manila Police Department that defendant-appellant was in custody of the Constabulary in Tarlac, so a
captain of the Manila police by the name of Daniel V. Lomotan proceeded to Tarlac. There he saw the
defendant-appellant and had a conversation with him. On this occasion defendant-appellant and had a
conversation with him. On this occasion defendant-appellant admitted to Lomotan that his victims were Tan
Siong Kiap, Ong Pian, and Jose Sy. The Constabulary in Tarlac also delivered to Lomotan the pistol used by the
defendant-appellant, marked Exhibit C, and its magazine, Exhibit C-1, both of which the Constabulary had
confiscated from the defendant-appellant. The defendant-appellant was thereupon delivered to the custody of
Lomotan, and the latter brought him to Manila, where his statement was taken down in writing. This
declaration was submitted at the time of the trial as Exhibit D, and it contains all the details of the assaults that
defendant-appellant 3 against the persons of Tan Siong Kiap, Ong Pian, and Jose Sy. This written statement
was taken down on a typewriter and afterwards signed by the defendant-appellant in both his Chinese and
Filipino names, the latter being Policarpio de la Cruz.

According to the declaration of the defendant-appellant, some months prior to September 3, 1949, he was
employed as an attendant in a restaurant belonging to Ong Pian. Defendant-appellant's wife by the name of
Vicenta was also employed by Ong Pian's partner, Eng Cheng Suy. Prior to September 3 the relatives of his wife
had been asking the latter for help, because her father was sick. Defendant-appellant asked money from Ong
Pian, but the latter could only give him P1. His wife was able to borrow P20 from her employer, and this was
sent to his wife's parents in Cebu. Afterwards defendant-appellant was dismissed from his work at the
restaurant of Ong Pian, and he became a peddler. Ong Pian presented a list of the sums that defendant-
appellant had borrowed from him, and these sums were deducted from the salary of his wife. Defendant-
appellant did not recognize these sums as his indebtedness, and so he resented Ong Pian's conduct.

As to Tan Siong Kiap, the confession states that a few days before September 3, 1949, defendant-appellant had
been able to realize the sum of P70 from the sales of medicine that he peddled. He laid his money in a place in
his room, but the following morning he found that it had disappeared from the place in which he had placed it.
Tan Siong Kiap and Jose Sy, upon the discovery of the loss of money, told defendant-appellant that he must
have given the money to his wife, and that nobody had stolen it. After this incident of the loss, the defendant-
appellant used to hear Tan Siong Kiap and Jose Sy and other Chinamen say that the money had not been
actually stolen, but that he lost it in gambling. Because of these accusations against him, he nurtured
resentment against both Tan Siong Kiap and Jose Sy.

So early in the morning of September 3, while a Chinaman by the name of Ngo Cho, who the possessor of a
caliber .45 pistol, was away from his room, defendant-appellant got his pistol and tucked it in his belt. With
this pistol he went to the restaurant at 822 Ongpin, and there shot Ong Pian. After shooting him, he proceeded
to 511 Misericordia, in store where Jose Sy and Tan Siong Kiap were, and there he fired at them. Then he
escaped to Legarda Street, in Sampaloc, where he borrowed P1 from his relatives. From there he went to
Malabon, to the house of his mother, to whom he told he had killed two persons and from he asked money.

The foregoing is the substance of the written declaration made by the defendant-appellant in Exhibit D on
September 6, 1949. At the time of the trial, however, he disowned the confession and explained that he signed
it without having read its contents. He declared that it was not he who shot the three victims, but it was one
by the name of Chua Tone, with whom he had previously connived to kill the three other victims. He
introduced no witnesses, however, to support his denial. Neither did he deny that he admitted before Captain
Lomotan having killed the three persons, or having been found in Tarlac in possession of the caliber .45 pistol,
Exhibit C, and its magazine, Exhibit C-1. In his cross-examination he admitted many of the incidents mentioned
in the confession, especially the cause of his resentment against his victims Ong Pian, Jose Sy, and Tan Siong
Kiap.

The trial court refused to believed his testimony, and therefore, found him guilty of the crime charged.

On this appeal counsel for the defendant-appellant claims that the trial court erred in not finding that Tan
Siong Kiap received the shot accidentally from the same bullet that had been fired at Jose Sy, and in finding
that defendant-appellant has committed a crime distinct and separate from that of murder for the slaying of
Jose Sy. We find no merit in this contention. According to the uncontradicted testimony of the offended party
Tan Siong Kiap, when the latters saw defendant-appellant firing shots he asked him why he was doing so, and
the defendant-appellant, instead of answering him, turned around and fired at him also. It is not true,
therefore, that the shot which hit him was fired at Sy.

It is also contended that the evidence is not sufficient to sustain the judgment of conviction. We also find no
merit in this contention. The evidence submitted to prove the charge consists of: the uncontradicted
testimony of the victim himself; the admissions made verbally by the defendant-appellant before Captain
Lomotan in Tarlac; the fact that the defendant-appellant had escaped and was found in Tarlac; his possession
of the .45 caliber pistol coupled with the fact, attested to by the testimony of the physician who examined and
treated the wounds of Tan Siong Kiap, that the wounds found in his person must have been caused by the
caliber .45 bullet; and, lastly, the confession of the defendant-appellant himself, Exhibit D, which he was not
able to impugn. As against this mass of evidence, defendant-appellant has only made a very unbelievable story
that it was not he but another that had committed the crime charged. His admissions at the time of the trial
regarding the incidents, as well as the cause of his having assaulted his victims, coincide exactly with the
reasons given in his written confession. This shows that he had made the confession himself, for nobody but
himself could have known the facts therein stated. The claim that the offense has not been proved beyond
reasonable doubt must be dismissed.
The defendant-appellant lastly claims that the lower court also erred in sentencing him to pay an indemnity of
P350. The offended party testified that he actually spent P300 for hospital and doctor's fees, and that he was
confined in the hospital for nine days. The above facts stand uncontradicted. This assignment of error must
also be dismissed.

It is lastly contended that the defendant-appellant should be found guilty only of less serious physical injuries
instead of the crime of frustrated murder as defendant-appellant admitted in his confession in the open court
that he had a grudge against the offended party, and that he connived with another to kill the latter. The
intent to kill is also evident from his conduct in firing the shot directly at the body of the offended party.

But while intent to kill is conclusively proved the wound inflicted was not necessarily fatal, because it did not
touch any of the vital organs of the body. As a matter of fact, the medical certification issued by the physician
who examined the wound of the offended party at the time he went to the hospital, states that the wound
was to heal within a period of fourteen days, while the offended party actually stayed in the hospital for nine
days and continued receiving treatment thereafter five time for the period of more than ten days, or a total of
not more than thirty days. The question that needs to be determined, therefore, is: Did the defendant-
appellant perform all the acts of execution necessary to produce the death of his victim?

In the cases of U.S. vs. Eduave, 36 Phil., 209, People vs. Dagman, 47 Phil., 768 and People vs. Borinaga, 55 Phil.,
433, this Court has held that it is not necessary that the accused actually commit all the acts of execution
necessary to produce the death of his victim, but that it is sufficient that he believes that he has committed all
said acts. In the case of People vs. Dagman, supra, the victim was first knocked down by a stone thrown at him,
then attacked with a lance, and then wounded by bolos and clubs wielded by the accused, but the victim upon
falling down feigned death, and the accused desisted from further continuing in the assault in the belief that
their victim was dead. And in the case of People vs. Borinaga, supra, the accused stabbed his intended victim,
but the knife with which he committed the aggression instead of hitting the body of the victim, lodged in the
back of the chair in which he was seated, although the accused believed that he had already harmed him. In
both these cases this Court held that of the crime committed was that of frustrated murder, because the
subjective phase of the acts necessary to commit the offense had already passed; there was full and complete
belief on the part of the assailant that he had committed all the acts of execution necessary to produce the
death of the intended victim.

In the case at bar, however, the defendant-appellant fired at his victim, and the latter was hit, but he was able
to escape and hide in another room. The fact that he was able to escape, which appellant must have seen,
must have produced in the mind of the defendant-appellant that he was not able to his his victim at a vital part
of the body. In other words, the defendant-appellant knew that he had not actually all the acts of execution
necessary to kill his victim. Under these circumstances, it can not be said that the subjective phase of the acts
of execution had been completed. And as it does not appear that the defendant-appellant continued in the
pursuit, and as a matter of fact, he ran away afterwards a reasonable doubt exist in our mind that the
defendant-appellant had actually believed that he has committed all the acts of execution or passed the
subjective phase of the said acts. This doubt must be resolved in favor of the defendant-appellant.

We are, therefore, not prepared to find the defendant-appellant guilty of frustrated murder, as charged in the
information. We only find him guilty of attempted murder, because he did not perform all the acts of
execution, actual and subjective, in order that the purpose and intention that he had to kill his victim might be
carried out.

Therefore, the judgment appealed from should be, as it is hereby, modified and the defendant-appellant is
found guilty of the crime of attempted murder, and the sentence imposed upon him reduced to an
indeterminate penalty of from 4 years, 2 months, and 1 day of prision correccional to 10 years of prision
mayor. In all other respects the judgment is affirmed. With costs against the defendant-appellant.

Paras, C.J., Pablo, Bengzon, Reyes, Jugo, Bautista Angelo, and Concepcion, JJ., concur.

G.R. No. 234651, June 06, 2018

 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. BENITO LABABO ALIAS "BEN," WENEFREDO LABABO,
JUNIOR LABABO (AL), AND FFF, Accused-Appellants.

DECISION

VELASCO JR., J.:

The Case

For consideration is an ordinary appeal from the August 31, 2016 Decision 1 of the Court of Appeals (CA) in CA-
G.R. CR-H.C. No. 01992, entitled "People of the Philippines v. Benito Lababo alias "Ben", Wenefredo Lababo,
Junior Lababo (Al) and FFF".

The Facts

Accused-appellants Benito, Wenefredo, Junior, and FFF, all surnamed "Lababo," were charged in an
Information for the crime of Murder before the Regional Trial Court (RTC), Branch 19 of Catarman, Northern
Samar, docketed as Criminal Case No. C-4460, the accusatory portion of which reads:
That on or about the 27th day of October 2007, at about 3:00 o'clock in the afternoon at (portion deleted)
Province of Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused conspiring with, confederating and mutually helping one another, armed with an unlicensed
homemade shotgun locally known as "bardog" and with a long bolo, with deliberate intent to kill thru
treachery, evident premeditation and abuse of superior strength, did then and there, willfully, unlawfully, and
feloniously attack, assault and shoot AAA2 with the use of said weapons which the accused had provided
themselves for the purpose, thereby inflicting upon said AAA a gunshot wound which directly caused the death
of said victim. CONTRARY TO LAW.3
Additionally, accused-appellants Benito and Wenefredo were likewise indicted with the crime of Frustrated
Murder before Branch 20, RTC of Catarman, or Northern Samar. Docketed as Criminal Case No. C-4479, the
Information reads:
That on or about the 27th day of October, 2007, at about 3:00 o'clock in the afternoon, in (portion deleted)
Province of Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed
accused armed with a homemade shotgun, conspiring with (sic) confederating, and mutually helping each
other, with deliberate intent to kill thru treachery and evident premeditation did, then and there, willfully,
unlawfully and feloniously attack, assault and shoot BBB4 with the use of said weapon which the accused had
provided themselves for the purpose, thus the accused having performed all the acts of execution which could
have produced the crime of murder but did not produce it by reason of some cause independent of the will of
the (sic) herein, accused, that is the timely and (sic) medical attendance to said BBB which prevented his
death.

That the commission of the crime was aggravated with the use of an unlicensed firearm.

CONTRARY TO LAW.5
On January 26, 2009, accused-appellants pleaded not guilty to the charge of murder in Criminal Case No. C-
4460. As for Criminal Case No. C-4479, Benito and Wenefredo pleaded not guilty to the charge of frustrated
murder on April 21, 2009. Junior, however, remained at large.6

Upon joint motion of the prosecution and the defense, the cases were consolidated.

Prosecution's version

According to the prosecution, the facts surrounding the incident are as follows:

On October 27, 2007, at around 3:00 in the afternoon, BBB, his wife CCC, 7 and their son AAA, alighted from a
motorcycle in front of Benito's house, some fifty (50) meters away from their residence, and proceeded
directly to go to their house. A few minutes later, CCC heard a gunshot accompanied by a child's scream
emanating from near Benito's house. When she went outside to check, she saw her husband and son lying on
the ground, wounded. Within close proximity is Benito holding a 29-inch gun locally known as "bardog"
together with Wenefredo, FFF, and Junior, all armed with bolos. Jesus Caparal corroborated these accounts,
saying that he was nearby when the incident occurred and that after hearing gunshots, he proceeded to his
house. On the way there, he saw Benito holding a "bardog", with the three each holding a bolo, while AAA and
BBB were lying on the ground. He reported the incident to the Barangay Tanod. 8

CCC ran towards Barangay Malobago to seek help from Vice Mayor Diodato Bantilo. The latter went to the
crime scene with CCC, at which point, CCC lost consciousness. Vice Mayor Bantilo brought the two (2) victims
to the hospital. AAA was declared dead on arrival. BBB survived the gunshot wounds on his left wrist, right leg,
and left buttock, but was confined at the hospital for one (1) month. DDD, CCC's adopted daughter, reported
the incident to the police authorities of Northern Samar.9

Dr. Candelaria Castillo, the attending physician of the victims, issued the Post Mortem Report on AAA declaring
that he sustained a single but fatal gunshot wound on his back, injuring his lungs, which resulted in
cardiopulmonary arrest, leading to his immediate death.10

As for her finding on BBB, in the Medico-Legal Certificate, it is stated that he sustained eight (8) non-fatal
gunshot wounds in the different parts of his body, signifying that he was moving at the time of the shooting.
The doctor stated that if BBB was not given timely medical attention, he would have died from his wounds.11

CCC suggested that the possible cause for the shooting was the boundary dispute between BBB and his
brothers, Benito and Wenefredo.12

Version of the defense

For their part, the three denied the charges against them.

According to Wenefredo, he was fishing with a certain Rudy Castro at the time of the incident. He claims that it
was only around 6:00 pm of that day when he learned of the shooting when DDD came to his house to borrow
money for the hospital expenses.13

As for Benito, he claims that he was at home fixing his motorcycle with FFF's help when the incident happened.
According to him, their house is at least twelve (12) kilometers away from (information deleted). He also posits
that he only knew of the incident three (3) days later. As for the alleged boundary dispute, Benito states that
he was not involved therein.14

In his defense, FFF claimed that on the day of the incident, he was helping with the chores in their house. 15

RTC Ruling

In its Decision16 dated July 8, 2014, the RTC found accusedappellants guilty of murder. Benito and Wenefredo
were also found guilty for the crime of frustrated murder. According to the trial court, despite the fact that
there was no eyewitness to the actual commission of the crime, the combination of the circumstantial
evidence points out to accused-appellants as the perpetrators and conspirators.17 The falloof the Decision
reads:
From all the foregoing, the Court finds the accused BENITO LABABO @ BEN, WENEFREDO LABABO and FFF, in
Crim. Case No. C-4460 are also (sic) found guilty beyond reasonable doubt of Murder and hereby sentenced to
suffer the penalty of RECLUSION PERPETUA and to pay the private complainant each the amount of
P50,000.00 civil indemnity, P50,000.00 moral damages, P25,000.00 exemplary damages and to pay the costs.

Accused BENITO LABABO @ BEN and WENEFREDO LABABO in Crim. Case No. C-4479 are also found guilty of
the (sic) frustrated murder beyond reasonable doubt, and are sentenced to suffer an indeterminate penalty of
imprisonment of EIGHT (8) YEARS and ONE (1) DAY of prision mayor medium as minimum to FOURTEEN (14)
YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal as maximum, and to pay the amount of
P25,000.00 as temperate damages, P40,000.00 as moral damages, P30,000.00 exemplary damages and to pay
the costs.
SO ORDERED.18
CA Ruling

On appeal, the CA affirmed the RTC's findings.

According to the CA, convictions may be anchored on circumstantial evidence as long as the series of
circumstances duly proved are consistent with each other and that each and every circumstance is consistent
with the accused's guilt and inconsistent with his innocence. Applying this, the CA found that the
circumstances proved by the prosecution lead to no other conclusion than that the accused-appellants were
the assailants and are, therefore, guilty of the crimes charged. 19

The CA likewise found that the elements for the crime of murder are all present in the killing of AAA, noting
that it was done with treachery, the attack being sudden and unexpected, leaving AAA defenseless. As for the
charge of frustrated murder, the CA agreed with the finding of the RTC that although the wounds sustained by
BBB were not fatal, the sheer number thereof made the totality of said injuries fatal. The CA noted the
attending physician's testimony that one of the wounds, located at the posterior lumbar area, was located in
the area of a vital organ which could cause his death if it would not be treated. 20

Anent the theory that the accused-appellants conspired to kill the victims, the CA held that the pieces of
circumstantial evidence establish a common criminal design-that is, to harm and kill the victims. The appellate
court added that although the victims only sustained gunshot wounds from Benito's bardog, and not from the
bolos held by the three, the fact that they stayed together while wielding said bladed weapons are enough to
demonstrate their common evil intent to threaten, harm, and eventually assault the victims. 21

With respect to the penalties and damages imposed, the CA affirmed the penalty meted upon Benito and
Wenefredo. But for FFF, the appellate court noted that he was 17 years old at the time of the commission of
the crime thus, being a minor, Article 68 (2) of the Revised Penal Code, which states that the penalty next
lower than that prescribed by law shall be imposed upon a person over fifteen and under eighteen, but always
in the proper period, shall apply to him. After following said provision and the Indeterminate Sentence Law,
the CA held, the range of penalty for FFF is prision mayor in any of its period, as minimum, to reclusion
temporal in its medium period, as maximum.22 The CA thus modified the RTC's ruling by imposing upon FFF for
his commission of the crime of murder the penalty of imprisonment of six (6) years and one (1) day of prision
mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as
maximum.

As to the damages awarded, the CA modified the amounts thereof to the following to conform to recent
jurisprudence and imposed legal interest at the rate of six percent (6%) per annum on all damages awarded,
from the date of finality of the judgment until fully paid. 23

The fallo of the Decision reads:

WHEREFORE, premises considered, the instant appeal is DENIED. The assailed 8 July 2014 Decision of the
Regional Trial Court, Branch 19, of Catarman, Northern Samar is AFFIRMED with MODIFICATIONS as follows:

In Criminal Case No. C-4460, accused-appellants Benito Lababo, Wenefredo Lababo and FFF are held GUILTY
beyond reasonable doubt of the crime of Murder. Accused-appellants Benito Lababo and Wenefredo Lababo
are sentenced to suffer the penalty of Reclusion Perpetua while FFF, being a minor at the time of the
commission of the crime, shall suffer the penalty of six (6) years and one (1) day of prision mayor as minimum
to fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal as maximum. Said accused-
appellants are also ordered to pay private complainant the amounts of Php75,000.00 as civil indemnity,
Php75,000.00 as moral damages, Php30,000.00 as exemplary damages, and Php25,000.00 as temperate
damages.

In Criminal Case No. C-4479, accused-appellants Benito Lababo and Wenefredo Lababo are held GUILTY
beyond reasonable doubt of Frustrated Murder and are hereby sentenced to suffer the indeterminate penalty
of eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and
one (1) day of reclusion temporalas maximum. They are also ordered to pay private complainant the amounts
of Php40,000.00 as moral damages, Php25,000.00 as temperate damages, and Php20,000.00 as exemplary
damages.

All monetary awards for damages shall earn interest at the legal rate of 6% per annumfrom date of finality of
this Decision until fully paid.

SO ORDERED.24
The Issue

Whether or not the CA erred in affirming the RTC's finding that accused-appellants are guilty of the crimes
charged.

Our Ruling

The instant appeal is without merit.

Conviction anchored on circumstantial evidence

Murder is defined and penalized under Art. 248 of the RPC, as amended, which provides:
ART. 248. Murder. Any person who, not falling within the provisions of Article 246, shall kill another, shall be
guilty of murder and shall be punished by reclusion perpetua, to death if committed with any of the following
attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to
weaken the defense, or of means or persons to insure or afford impunity;

2. In consideration of a price, reward, or promise;

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon
a railroad, fall of an airship, by means of motor vehicles, or with the use of any other means involving great
waste and ruin;

4. On occasion of any calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a

volcano, destructive cyclone, epidemic, or any other public calamity;

5. With evident premeditation;

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing
at his person or corpse.
The elements of murder are:
1. That a person was killed.

2. That the accused killed him.

3. That the killing was attended by any of the qualifying circumstances mentioned in Art. 248.

4. The killing is not parricide or infanticide.

Thus, for the charge of murder to prosper, the prosecution must prove beyond a reasonable doubt that: (1)
the offender killed the victim, (2) through treachery, or by any of the other five qualifying circumstances, duly
alleged in the Information.25

In the case at hand, the fact of AAA's death is undisputed. Similarly, there is no question that the killing is
neither parricide nor infanticide. It has also been sufficiently established that the killing is attended with
treachery. In People v. Camat, this Court expounded on the qualifying circumstance of treachery in this wise:
There is treachery or alevosia when the offender commits any of the crimes against the person, employing
means, methods or forms in the execution thereof which tend directly and specially to insure its execution,
without risk to himself arising from any defense which the offended party might make. For alevosia to qualify
the crime to Murder, it must be shown that: (1) the malefactor employed such means, method or manner of
execution as to ensure his or her safety from the defensive or retaliatory acts of the victim; and (2) the said
means, method and manner of execution were deliberately adopted. Moreover, for treachery to be
appreciated, it must be present and seen by the witness right at the inception of the attack. 26 (Citations
omitted)
Here, the prosecution sufficiently proved that AAA, an unarmed minor, sustained a single, but fatal wound on
his back through from a firearm. This, to Us, is more than sufficient to prove that the killing is treacherous
since the attack was so sudden and unexpected that AAA was not given an opportunity to defend himself.

As for BBB's case, We agree with the RTC and CA's factual finding that the eight gunshot wounds sustained by
BBB, as contained in the Medico-Legal Certificate, would have caused his death if he was not given timely
medical attention.27 Furthermore, it does not appear that BBB was armed or was in a position to deflect the
attack. As a matter of fact, based on CCC's narration of the events that transpired, the suddenness of the
attack upon AAA and BBB cannot be denied. Only that, unlike AAA, BBB survived.

The act of killing becomes frustrated when an offender performs all the acts of execution which could produce
the crime but did not produce it for reasons independent of his or her will. 28

Here, taking into consideration the fact that BBB was shot eight times with the use of a firearm and that AAA,
who was with him at that time, was killed, convinces Us that the malefactor intended to take EBB's life as well.
However, unlike in AAA's case, BBB survived. It was also established that he survived not because the wounds
were not fatal, but because timely medical attention was rendered to him. Definitely, EBB's survival was
independent of the perpetrator's will. As such, this Court is convinced that the attack upon BBB qualifies as
frustrated murder.

What is left to be determined, therefore, is whether indeed it was Benito who fired the shot that took AAA's
life and inflicted upon BBB eight wounds that could have killed him as well. In this respect, for one reason or
another, no eyewitness was presented. The evidence to support accused appellant's conviction are, therefore,
circumstantial evidence.

Convictions based entirely on circumstantial evidence are not new. In People v. Evangelio,29 We detailed the
instances when a judgment of conviction can be sustained on the basis of circumstantial evidence. Thus:
Circumstantial evidence, also known as indirect or presumptive evidence, refers to proof of collateral facts and
circumstances whence the existence of the main fact may be inferred according to reason and common
experience. Circumstantial evidence is sufficient to sustain conviction if (a) there is more than one
circumstance; (b) the facts from which the inferences are derived are proven; (c) the combination of all
circumstances is such as to produce a conviction beyond reasonable doubt. A judgment of conviction based on
circumstantial evidence can be sustained when the circumstances proved form an unbroken chain that results
in a fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the perpetrator.
Thus, for as long as the prosecution is able to meet the requirements for a finding of guilt beyond reasonable
doubt anchored purely on circumstantial evidence, there is nothing to prevent a court from handing out a
judgment of conviction.

In the present case, We are sufficiently convinced that accused-appellant Benito is guilty of the crimes
charged. As found by the RTC and affirmed by the CA, the prosecution were able to establish the following
facts:

1. On October 27, 2007, gunshots, accompanied by a child's scream, were heard emanating from near
Benito's house;

2. After such, the victims AAA and BBB were seen lying on the ground, wounded;
 3. While the victims were sprawled on the ground, Benito was seen standing near them, holding a 29-
inch "bardog" together with Wenefredo, FFF, and Junior, all armed with bolos;

4. AAA died from a single gunshot wound to the back; and

5. BBB sustained eight (8) gunshot wounds.

Basic is the rule that findings of fact of the trial court, as affirmed by the appellate court, are conclusive absent
any evidence that both courts ignored, misconstrued, or misinterpreted cogent facts and circumstances of
substance which, if considered, would warrant a modification or reversal of the outcome of the case. 30 Since
the aforementioned exceptions are not present, We are inclined to agree with the findings of the RTC and the
CA.

Furthermore, although none of the witnesses were able to testify on the actual shooting and BBB was not
presented as a witness, still, the prosecution's evidence formed a coherent narration of the events that
transpired that the only logical conclusion thereon is that it was Benito who shot the two victims. Aside from
Benito being seen standing near the sprawled bodies of the victims while holding a firearm and that the
wounds sustained by the victims emanated from a firearm, there is no evidence that there was another person
there who was wielding a firearm and who could have fired the shots at the victims.

With these, We find no error on the ruling of both the RTC and the CA that it was Benito who attacked AAA
and BBB.

On the alleged conspiracy

Having settled the issue on whether it was indeed Benito who fired at the victims, We shall now determine
whether, as held by the RTC and the CA, accused-appellants conspired to commit the crimes charged.

Article 8 of the Revised Penal Code provides that conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it. To prove conspiracy, the
prosecution must establish the following three requisites: (1) two or more persons came to an agreement, (2)
the agreement concerned the commission of a crime, and (3) the execution of the felony was decided upon.
Once conspiracy is established, the act of one becomes the act of all.31

In Bahilidad v. People,32 the Court summarized the basic principles in determining whether conspiracy exists or
not. Thus:
There is conspiracy when two or more persons come to an agreement concerning the commission of a felony
and decide to commit it. Conspiracy is not presumed. Like the physical acts constituting the crime itself, the
elements of conspiracy must be proven beyond reasonable doubt. While conspiracy need not be established
by direct evidence, for it may be inferred from the conduct of the accused before, during and after the
commission of the crime, all taken together, however, the evidence must be strong enough to show the
community of criminal design. For conspiracy to exist, it is essential that there must be a conscious design to
commit an offense. Conspiracy is the product of intentionality on the part of the cohorts.

It is necessary that a conspirator should have performed some overt act as a direct or indirect contribution to
the execution of the crime committed. The overt act may consist of active participation in the actual
commission of the crime itself, or it may consist of moral assistance to his co-conspirators by being present at
the commission of the crime or by exerting moral ascendancy over the other co-conspirators. Hence, the mere
presence of an accused at the discussion of a conspiracy, even approval of it, without any active participation
in the same, is not enough for purposes of conviction.
Here, it was established that Wenefredo and FFF were present at the scene of the crime, both wielding a bolo.
However, it was also established that their alleged participation thereat did not go beyond being present and
holding said weapons. As a matter of fact, both the victims only sustained gunshot wounds. The question now
is this: Is Wenefredo and FFF's mere presence at the scene of the crime, while armed with bolos, sufficient to
prove beyond reasonable doubt that they conspired with Benito to commit the crimes imputed against them?
We rule in the affirmative.

While it is true that mere presence at the scene of the crime at the time of its commission, without actively
participating in the conduct thereof, is insufficient to prove that the accused conspired to commit the crime,
Wenefredo and FFF's act of standing near the victims and Benito, while wielding bolos, does not partake of this
nature.

To Our mind, their overt act of staying in close proximity while Benito executes the crime served no other
purpose than to lend moral support by ensuring that no one could interfere and prevent the successful
perpetration thereof.33 We are sufficiently convinced that their presence thereat has no doubt, encouraged
Benito and increased the odds against the victims, especially since they were all wielding lethal weapons.

Indeed, one who participates in the material execution of the crime by standing guard or lending moral
support to the actual perpetration thereof is criminally responsible to the same extent as the actual
perpetrator, especially if they did nothing to prevent the commission of the crime.34 Under the circumstances,
there is no evidence to support a conclusion that they have nothing to do with the killing. We are, therefore,
convinced that indeed, the three conspired to commit the crimes charged.

On the penalties imposed

Finding that the RTC erred in the penalty imposed on FFF, the CA made the following modifications, noting at
FFF was 17 years old at the time of the commission of the crime, thus:
WHEREFORE, premises considered, the instant appeal is DENIED. The assailed 8 July 2014 Decision of the
Regional Trial Court, Branch 19, of Catarman, Northern Samar is AFFIRMED with MODIFICATIONS as follows:

In Criminal Case No. C-4460, accused-appellants Benito Lababo, Wenefredo Lababo and FFF are held GUILTY
beyond reasonable doubt of the crime of Murder. Accused-appellants Benito Lababo and Wenefredo Lababo
are sentenced to suffer the penalty of Reclusion Perpetua while FFF being a minor at the time of the
commission of the crime shall suffer the penalty of six (6) years and one (1) day of prision mayor as minimum
to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum. Said accused-
appellants are also ordered to pay private complainant the amounts of Php75,000.00 as civil indemnity,
Php75,000.00 as moral damages, Php30,000.00 as exemplary damages, and Php25,000.00 as temperate
damages.

In Criminal Case No. C-4479, accused-appellants Benito Lababo and Wenefredo Lababo are held GUILTY
beyond reasonable doubt of Frustrated Murder and are hereby sentenced to suffer the indeterminate penalty
of eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and
one (1) day of reclusion temporalas maximum. They are also ordered to pay private complainant the amounts
of Php40,000.00 as moral damages, Php25,000.00 as temperate damages, and Php20,000.00 as exemplary
damages.

All monetary awards for damages shall earn interest at the legal rate of 6% per annumfrom date of finality of
this Decision until fully paid.

SO ORDERED.35 (underscoring ours)

We sustain the CA's modification of the penalty imposed on FFF.

The CA correctly took into account FFF's minority, he being 17 years old at the time of the commission of the
crime, in reducing the period of imprisonment to be served by him. Being of said age, FFF is entitled to the
privileged mitigating circumstance of minority under Article 68(2) of the RPC which provides that the penalty
to be imposed upon a person under 18 but above 15 shall be the penalty next lower than that prescribed by
law, but always in the proper period.36

Murder is punishable by reclusion perpetua to death.37 However, pursuant to RA No. 9346, proscribing the
imposition of the death penalty, the penalty to be imposed on appellant should be reclusion perpetua.
Applying Article 68 (2), the imposable penalty must be reduced by one degree, i.e., from reclusion perpetua,
which is reclusion temporal. Being a divisible penalty, the Indeterminate Sentence Law is applicable. To
determine the minimum of the indeterminate penalty, reclusion temporal should be reduced by one
degree, prision mayor, which has a range of from six (6) years and one (1) day to twelve (12) years. The
minimum of the indeterminate penalty should be taken from the full range of prision mayor. Furthermore,
there being no modifying circumstances attendant to the crime, the maximum of the indeterminate penalty
should be imposed in its medium period38 which is 14 years, eight months, and one day to 17 years and four
months.39

The CA thus correctly imposed the penalty of imprisonment of six (6) years and one (1) day of prision mayor as
minimum to fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal as maximum to FFF.

As for the penalties imposed on Benito and Wenefredo anent their conviction for Murder and Frustrated
Murder, there is no reason to disturb the RTC and CA's ruling thereon.

Suspended sentence

We note, however, that FFF, being a minor at the time of the commission of the offense, should benefit from a
suspended sentence pursuant to Section 38 of RA 9344, or the Juvenile Justice and Welfare Act of 2006. Said
provision reads:
SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of age at the
time of the commission of the offense is found guilty of the offense charged, the court shall determine and
ascertain any civil liability which may have resulted from the offense committed. However, instead of
pronouncing the judgment of conviction, the court shall place the child in conflict with the law under
suspended sentence, without need of application: Provided, however, That suspension of sentence shall still
be applied even if the juvenile is already eighteen years (18) of age or more at the time of the
pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various circumstances of the child, the court shall
impose the appropriate disposition measures as provided in the Supreme Court Rule on Juveniles in Conflict
with the Law. (emphasis ours)
It is well to recall that Section 38 of the law applies regardless of the imposable penalty, since R.A. No. 9344
does not distinguish between a minor who has been convicted of a capital offense and another who has been
convicted of a lesser offense. We, therefore, should also not distinguish and should apply the automatic
suspension of sentence to a child in conflict with the law who has been found guilty of a heinous crime. 40

Furthermore, the age of the child in conflict with the law at the time of the promulgation of judgment of
conviction is immaterial. What matters is that the offender committed the offense when he/she was still of
tender age. The promotion of the welfare of a child in conflict with the law should extend even to one who has
exceeded the age limit of twenty-one (21) years, so long as he/she committed the crime when he/she was still
a child. The offender shall be entitled to the right to restoration, rehabilitation and reintegration in accordance
with the Act in order that he/she is given the chance to live a normal life and become a productive member of
the community.41

FFF may thus be confined in an agricultural camp or any other training facility in accordance with Section 51 of
Republic Act No. 9344, which provides that "[a] child in conflict with the law may, after conviction and upon
order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in
an agricultural camp and other training facilities that may be established, maintained, supervised and
controlled by the BUCOR, in coordination with the DSWD." The case shall thus be remanded to the court of
origin to effect appellant's confinement in an agricultural camp or other training facility, following the Court's
pronouncement in People v. Sarcia.42

On the damages awarded

Lastly, We find the need to modify the damages awarded for both crimes, following People v. Jugueta.43Thus,
I. For those crimes like, Murder, Parricide, Serious Intentional Mutilation, Infanticide, and other crimes
involving death of a victim where the penalty consists of indivisible penalties:
1.1 Where the penalty imposed is death but reduced to reclusion perpetua because of RA 9346:

a. Civil indemnity - P100,000.00

b. Moral damages - P100,000.00

c. Exemplary damages - P100,000.00

1.2 Where the crime committed was not consummated:

a. Frustrated:

i. Civil indemnity - P75,000.00

ii. Moral damages - P75,000.00

iii. Exemplary damages - P75,000.00.

It is well to mention that for FFF, Section 6 of RA 9344 expressly provides that the child in conflict with the law
is still civilly liable for the crime committed.44 Accordingly, FFF shall pay the same amount of damages as shall
be meted upon his co-accused-appellants.

Thus, applying Our pronouncement in People v. Jugueta,45 in Criminal Case No. C-4460 [Murder], accused-
appellants shall each pay civil indemnity in the amount of P100,000.00, P100,000.00 as moral damages, and
P100,000.00 as exemplary damages.

As for their conviction for Frustrated Murder in Criminal Case No. C-4479, Benito and Wenefredo shall pay the
amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P75,000.00 as exemplary
damages.

WHEREFORE, premises considered, the appeal is DISMISSED. The August 31, 2016 Decision of the Court of
Appeals (CA) in CA-G.R. CR-H.C. No. 01992 is hereby AFFIRMED with MODIFICATION. The dispositive portion
of the assailed Decision, as modified, shall read:
In Criminal Case No. C-4460, accused-appellants Benito Lababo, Wenefredo Lababo and FFF are held GUILTY
beyond reasonable doubt of the crime of Murder. Accused-appellants Benito Lababo and Wenefredo Lababo
are sentenced to suffer the penalty of Reclusion Perpetua, [while the case against FFF, being a minor at the
time of the commission of the crime, shall be remanded to the court of origin for appropriate disposition in
accordance with Section 51 of Republic Act No. 9344.]

Each of the accused-appellants are ordered to pay private complainant the amounts of [P100,000.00] as civil
indemnity, [P100,000.00] as moral damages, [P100,000.00] as exemplary damages.

In Criminal Case No. C-4479, accused-appellants Benito Lababo and Wenefredo Lababo are held GUILTY
beyond reasonable doubt of Frustrated Murder and are hereby sentenced to suffer the indeterminate penalty
of eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and
one (1) day of reclusion temporalas maximum. They are also ordered to pay private complainant the amounts
of [P75,000.00] as civil damages, [P75,000.00] as moral damages, and [P75,000.00] as exemplary damages.

All monetary awards for damages shall earn interest at the legal rate of 6% per annumfrom date of finality of
this Decision until fully paid.
SO ORDERED.

G.R. No. 88724 April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

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

MEDIALDEA, J.:

The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-031-B before
the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in the said case reads as
follows (p. 47, Rollo):

The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the offended
party, accuses CEILITO ORITA alias LITO of the crime of Rape committed as follows:

That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at Victoria St.,
Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court,
above named accused with lewd designs and by the use of a Batangas knife he conveniently provided
himself for the purpose and with threats and intimidation, did, then and there wilfully, unlawfully and
feloniously lay with and succeeded in having sexual intercourse with Cristina S. Abayan against her
will and without her consent.

CONTRARY TO LAW.

Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the witnesses
for the People testified and the exhibits were formally offered and admitted, the prosecution rested its case.
Thereafter, the defense opted not to present any exculpatory evidence and instead filed a Motion to Dismiss.
On August 5, 1985, the trial court rendered its decision, the dispositive portion of which reads (pp. 59-
60, Rollo):

WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @ LITO, of the
crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the aggravating
circumstances of dwelling and nightime (sic) with no mitigating circumstance to offset the same, and
considering the provisions of the Indeterminate Sentence Law, imposes on accused an imprisonment
of TEN (10) YEARS and ONE (1) DAY,PRISION MAYOR, as minimum to TWELVE (12) YEARS PRISION
MAYOR, maximum; to indemnify CRISTINA S. ABAYAN, the amount of Four Thousand (P4,000.00)
Pesos, without subsidiary imprisonment in case of insolvency, and to pay costs.

SO ORDERED.

Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29, 1988, the
Court of Appeals rendered its decision, the dispositive portion of which reads (p. 102, Rollo):

WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty of the
crime of rape, and consequently, sentenced to suffer imprisonment of reclusion perpetua and to
indemnify the victim in the amount of P30,000.00.

SO ORDERED.

On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988 decision and
forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of Batas Pambansa Blg.
129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the Judiciary Act of 1948.

The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's College at
Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier.

In the early morning of March 20, 1983, complainant arrived at her boarding house. Her classmates
had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after her classmates had
left, she knocked at the door of her boarding house (p. 5, ibid). All of a sudden, somebody held her
and poked a knife to her neck. She then recognized appellant who was a frequent visitor of another
boarder (pp. 8-9, ibid).

She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door which
led to the first floor was locked from the inside, appellant forced complainant to use the back door
leading to the second floor (p. 77, ibid). With his left arm wrapped around her neck and his right hand
poking a "balisong" to her neck, appellant dragged complainant up the stairs (p. 14, ibid). When they
reached the second floor, he commanded her to look for a room. With the Batangas knife still poked
to her neck, they entered complainant's room.

Upon entering the room, appellant pushed complainant who hit her head on the wall. With one hand
holding the knife, appellant undressed himself. He then ordered complainant to take off her clothes.
Scared, she took off her T-shirt. Then he pulled off her bra, pants and panty (p. 20, ibid).

He ordered her to lie down on the floor and then mounted her. He made her hold his penis and insert
it in her vagina. She followed his order as he continued to poke the knife to her. At said position,
however, appellant could not fully penetrate her. Only a portion of his penis entered her as she kept
on moving (p. 23, ibid).

Appellant then lay down on his back and commanded her to mount him. In this position, only a small
part again of his penis was inserted into her vagina. At this stage, appellant had both his hands flat on
the floor. Complainant thought of escaping (p. 20, ibid).

She dashed out to the next room and locked herself in. Appellant pursued her and climbed the
partition. When she saw him inside the room, she ran to another room. Appellant again chased her.
She fled to another room and jumped out through a window (p. 27, ibid).

Still naked, she darted to the municipal building, which was about eighteen meters in front of the
boarding house, and knocked on the door. When there was no answer, she ran around the building
and knocked on the back door. When the policemen who were inside the building opened the door,
they found complainant naked sitting on the stairs crying. Pat. Donceras, the first policeman to see
her, took off his jacket and wrapped it around her. When they discovered what happened, Pat.
Donceras and two other policemen rushed to the boarding house. They heard a sound at the second
floor and saw somebody running away. Due to darkness, they failed to apprehend appellant.

Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital where she
was physically examined.

Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical Certificate
(Exhibit "A") which states:

Physical Examination — Patient is fairly built, came in with loose clothing with no under-
clothes; appears in state of shock, per unambulatory.

PE Findings — Pertinent Findings only.

Neck- — Circumscribed hematoma at Ant. neck.

 Breast — Well developed, conical in shape with prominent nipples; linear abrasions below (L)
breast.

Back — Multiple pinpoint marks.

Extremities — Abrasions at (R) and (L) knees.

Vulva — No visible abrasions or marks at the perineal area or over the

vulva, errythematous (sic) areas noted surrounding vaginal orifice, tender, hymen intact; no
laceration fresh and old noted; examining finger can barely enter and with difficulty; vaginal
canal tight; no discharges noted.

As aforementioned, the trial court convicted the accused of frustrated rape.

In this appeal, the accused assigns the following errors:

1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the witnesses; and

2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.

The accused assails the testimonies of the victim and Pat. Donceras because they "show remarkable and vital
inconsistencies and its incredibility amounting to fabrication and therefore casted doubt to its candor, truth
and validity." (p. 33, Rollo)

A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which are not
sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being badges of
fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as manifestations of
truthfulness on material points. These little deviations also confirm that the witnesses had not been rehearsed.
The most candid witnesses may make mistakes sometimes but such honest lapses do not necessarily impair
their intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA 98). Rather than
discredit the testimonies of the prosecution witnesses, discrepancies on minor details must be viewed as
adding credence and veracity to such spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al.,
G.R. No. L-41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete uniformity in details would be
a strong indication of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No. L-41829, June 27, 1988,
162 SCRA 609). However, one of the alleged inconsistencies deserves a little discussion which is, the testimony
of the victim that the accused asked her to hold and guide his penis in order to have carnal knowledge of her.
According to the accused, this is strange because "this is the only case where an aggressor's advances is being
helped-out by the victim in order that there will be a consumation of the act." (p. 34, Rollo). The allegation
would have been meritorious had the testimony of the victim ended there. The victim testified further that the
accused was holding a Batangas knife during the aggression. This is a material part of the victim's testimony
which the accused conveniently deleted.

We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court on the
credibility of witnesses should be accorded the highest respect because it has the advantage of observing the
demeanor of witnesses and can discern if a witness is telling the truth (People v. Samson, G.R. No. 55520,
August 25, 1989). We quote with favor the trial court's finding regarding the testimony of the victim (p
56, Rollo):

As correctly pointed out in the memorandum for the People, there is not much to be desired as to the
sincerity of the offended party in her testimony before the court. Her answer to every question
profounded (sic), under all circumstances, are plain and straightforward. To the Court she was a
picture of supplication hungry and thirsty for the immediate vindication of the affront to her honor. It
is inculcated into the mind of the Court that the accused had wronged her; had traversed illegally her
honor.
When a woman testifies that she has been raped, she says in effect all that is necessary to show that rape was
committed provided her testimony is clear and free from contradiction and her sincerity and candor, free from
suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-
88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400).
The victim in this case did not only state that she was raped but she testified convincingly on how the rape was
committed. The victim's testimony from the time she knocked on the door of the municipal building up to the
time she was brought to the hospital was corroborated by Pat. Donceras. Interpreting the findings as indicated
in the medical certificate, Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude)
declared that the abrasions in the left and right knees, linear abrasions below the left breast, multiple pinpoint
marks, circumscribed hematoma at the anterior neck, erythematous area surrounding the vaginal orifice and
tender vulva, are conclusive proof of struggle against force and violence exerted on the victim (pp. 52-
53, Rollo). The trial court even inspected the boarding house and was fully satisfied that the narration of the
scene of the incident and the conditions therein is true (p. 54, Rollo):

. . . The staircase leading to the first floor is in such a condition safe enough to carry the weight of
both accused and offended party without the slightest difficulty, even in the manner as narrated. The
partitions of every room were of strong materials, securedly nailed, and would not give way even by
hastily scaling the same.

A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al., G.R. No.
L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):

. . . And the jump executed by the offended party from that balcony (opening) to the ground which
was correctly estimated to be less than eight (8) meters, will perhaps occasion no injury to a
frightened individual being pursued. Common experience will tell us that in occasion of conflagration
especially occuring (sic) in high buildings, many have been saved by jumping from some considerable
heights without being injured. How much more for a frightened barrio girl, like the offended party to
whom honor appears to be more valuable than her life or limbs? Besides, the exposure of her private
parts when she sought assistance from authorities, as corroborated, is enough indication that
something not ordinary happened to her unless she is mentally deranged. Sadly, nothing was adduced
to show that she was out of her mind.

In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We ruled that:

What particularly imprints the badge of truth on her story is her having been rendered entirely naked
by appellant and that even in her nudity, she had to run away from the latter and managed to gain
sanctuary in a house owned by spouses hardly known to her. All these acts she would not have done
nor would these facts have occurred unless she was sexually assaulted in the manner she narrated.

The accused questions also the failure of the prosecution to present other witnesses to corroborate the
allegations in the complaint and the non-presentation of the medico-legal officer who actually examined the
victim. Suffice it to say that it is up to the prosecution to determine who should be presented as witnesses on
the basis of its own assessment of their necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29,
1989; People v. Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of the medico-legal
officer who actually examined the victim, the trial court stated that it was by agreement of the parties that
another physician testified inasmuch as the medico-legal officer was no longer available. The accused did not
bother to contradict this statement.

Summing up, the arguments raised by the accused as regards the first assignment of error fall flat on its face.
Some were not even substantiated and do not, therefore, merit consideration. We are convinced that the
accused is guilty of rape. However, We believe the subject matter that really calls for discussion, is whether or
not the accused's conviction for frustrated rape is proper. The trial court was of the belief that there is no
conclusive evidence of penetration of the genital organ of the victim and thus convicted the accused of
frustrated rape only.
The accused contends that there is no crime of frustrated rape. The Solicitor General shares the same view.

Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:

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

1. By using force or intimidation;

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

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

xxx xxx xxx

Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman (Black's Law
Dictionary. Fifth Edition, p. 193).

On the other hand, Article 6 of the same Code provides:

Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies as well as those
which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and accomplishment are
present; and it is frustrated when the offender performs all the acts of execution which would
produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of a felony directly by overt acts,
and does not perform all the acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance.

Correlating these two provisions, there is no debate that the attempted and consummated stages apply to the
crime of rape.1âwphi1 Our concern now is whether or not the frustrated stage applies to the crime of rape.

The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution which
would produce the felony and (2) that the felony is not produced due to causes independent of the
perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice Moreland set a
distinction between attempted and frustrated felonies which is readily understood even by law students:

. . . A crime cannot be held to be attempted unless the offender, after beginning the commission of
the crime by overt acts, is prevented, against his will, by some outside cause from performing all of
the acts which should produce the crime. In other words, to be an attempted crime the purpose of
the offender must be thwarted by a foreign force or agency which intervenes and compels him to
stop prior to the moment when he has performed all of the acts which should produce the crime as a
consequence, which acts it is his intention to perform. If he has performed all of the acts which should
result in the consummation of the crime and voluntarily desists from proceeding further, it can not be
an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the
latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of
the commission of the crime and the moment when all of the acts have been performed which should
result in the consummated crime; while in the former there is such intervention and the offender
does not arrive at the point of performing all of the acts which should produce the crime. He is
stopped short of that point by some cause apart from his voluntary desistance.
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he actually
attains his purpose and, from that moment also all the essential elements of the offense have been
accomplished. Nothing more is left to be done by the offender, because he has performed the last act necessary
to produce the crime.Thus, the felony is consummated. In a long line of cases (People v. Oscar, 48 Phil. 527;
People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v.
Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the
consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the male
organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of
the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the
female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States v. Garcia: 9
Phil. 434) because not all acts of execution was performed. The offender merely commenced the commission of
a felony directly by overt acts. Taking into account the nature, elements and manner of execution of the crime
of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be
committed.

Of course, We are aware of our earlier pronouncement in the case of People v. Eriña 50 Phil. 998 [1927] where
We found the offender guilty of frustrated rape there being no conclusive evidence of penetration of the
genital organ of the offended party. However, it appears that this is a "stray" decision inasmuch as it has not
been reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code,
as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March
29, 1965) which provides, in its penultimate paragraph, for the penalty of death when the rape is attempted
or frustrated and a homicide is committed by reason or on the occasion thereof. We are of the opinion that
this particular provision on frustrated rape is a dead provision. The Eriña case, supra, might have prompted the
law-making body to include the crime of frustrated rape in the amendments introduced by said laws.

In concluding that there is no conclusive evidence of penetration of the genital organ of the victim, the trial
court relied on the testimony of Dr. Zamora when he "categorically declared that the findings in the vulva does
not give a concrete disclosure of penetration. As a matter of fact, he tossed back to the offended party the
answer as to whether or not there actually was penetration." (p. 53, Rollo) Furthermore, the trial court stated
(p. 57, Rollo):

. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted by Dr.
Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether there was
penetration or not. It is true, and the Court is not oblivious, that conviction for rape could proceed
from the uncorroborated testimony of the offended party and that a medical certificate is not
necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the people relied
upon cannot be applicable to the instant case. The testimony of the offended party is at variance with
the medical certificate. As such, a very disturbing doubt has surfaced in the mind of the court. It
should be stressed that in cases of rape where there is a positive testimony and a medical certificate,
both should in all respect, compliment each other, for otherwise to rely on the testimony alone in
utter disregard of the manifest variance in the medical certificate, would be productive of
mischievous results.

The alleged variance between the testimony of the victim and the medical certificate does not exist. On the
contrary, it is stated in the medical certificate that the vulva was erythematous (which means marked by
abnormal redness of the skin due to capillary congestion, as in inflammation) and tender. It bears emphasis
that Dr. Zamora did not rule out penetration of the genital organ of the victim. He merely testified that there
was uncertainty whether or not there was penetration. Anent this testimony, the victim positively testified
that there was penetration, even if only partially (pp. 302, 304, t.s.n., May 23, 1984):

Q Was the penis inserted on your vagina?

A It entered but only a portion of it.

xxx xxx xxx

 Q What do you mean when you said comply, or what act do you referred (sic) to, when you said
comply?

A I inserted his penis into my vagina.

Q And was it inserted?

A Yes only a little.

The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the victim's
testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v. Aragona,
G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos. L-37928-29, September 29,
1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely corroborative and is not an indispensable
element in the prosecution of this case (People v. Alfonso, supra).

Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused because
after a thorough review of the records, We find the evidence sufficient to prove his guilt beyond reasonable
doubt of the crime of consummated rape.

Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is committed
with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The trial court appreciated
the aggravating circumstances of dwelling and nighttime. Thus, the proper imposable penalty is death. In view,
however, of Article 111, Section 19(1) of the 1987 Constitution and Our ruling in People v. Millora, et al., G.R.
Nos. L-38968-70, February 9, 1989, that the cited Constitutional provision did not declare the abolition of the
death penalty but merely prohibits the imposition of the death penalty, the Court has since February 2, 1987
not imposed the death penalty whenever it was called for under the Revised Penal Code but instead reduced
the same to reclusion perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion
perpetua, being a single indivisible penalty under Article 335, paragraph 3, is imposed regardless of any
mitigating or aggravating circumstances (in relation to Article 63, paragraph 1, Revised Penal Code; see People
v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449, November 25,
1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702).

ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito Orita is hereby
found guilty beyond reasonable doubt of the crime of rape and sentenced to reclusion perpetua as well as to
indemnify the victim in the amount of P30,000.00.

SO ORDERED.

G.R. No. L-23133 July 13, 1967

VICENTE S. DEL ROSARIO, CEFERINA LLAMAS VDA. DE DEL ROSARIO, TERESITA REYES and DIOSDADO
LARRAZABAL, petitioners,
vs.
THE COURT OF INDUSTRIAL RELATIONS and THE PHILIPPINE LAND-AIR-SEA LABOR UNION
(PLASLU),respondents.

Vicente S. del Rosario, Francisco E. P. Remotigue and Hilario G. David, Jr. and Eriberto Ignacio for petitioners.
Emilio Lumontad and Ramon N. Bagato for respondents.

BENGZON, J.P., J.:

A 200-hectare land, known as Hacienda del Rosario owned in common by Vicente del Rosario Ceferina Vda. de
del Rosario and Teresita Reyes, and administered by Diosdado Larrazabal, has been devoted to large-scale
sugar cane planting, processing and milling. Said co-owners also leased and applied to the same purpose a
107-hectare land owned by the Roman Catholic Church and administered by His Excellency, Archbishop Julio
Rosales.

Against the above-named person the PLASLU (Philippine Land-Air-Sea Labor Union) filed before the Court of
Industrial Relations on June 30, 1958, a charge of unfair labor practice, for alleged violation of Section 4-A of
Republic Act 875 consisting in dismissals of 87 workers in said hacienda due to membership in petitioning
union. PLASLU asked that respondents be ordered to cease and desist from such unfair labor practice and to
reinstate the laborers, with back wages.

Respondents filed a motion to dismiss on the ground that the Court of Industrial Relations had no jurisdiction.
Action thereon was deferred. Respondents thereafter answered, on July 20, 1960, alleging lack of jurisdiction,
questioning the PLASLU's personality to sue, and denying liability.

Rendering its decision on May 11, 1963, the Court of Industrial Relations upheld PLASLU's legal capacity to sue
and ruled that it had jurisdiction over the case. Finding that about fifty of the hacienda workers were dismissed
by respondents for reasons of union membership, it ordered respondents to reinstate them with back wages.

A motion for reconsideration was lodged with the Court of Industrial Relations en banc. Resolving the same on
December 13, 1963, said, Court ruled that in accordance with the doctrine in Victorias Milling Co. vs. CIR, L-
17281, March 30, 1963, the complaint should be dismissed as to the agricultural workers such as field laborers
planting and harvesting sugar cane in the hacienda. As to those whose work is by nature industrial, like the mill
laborers, trapicheros, chemists, fuelmen, oilers, mangongogay,* tractor and truck drivers, those undertaking or
transporting the sugar cane from the field to the mill and then to the market, it held that the same doctrine
sustained its jurisdiction, thereby affirming the decision as to said industrial workers.1äwphï1.ñët

Respondents appealed to Us and poise the following questions: Does the Court of Industrial Relations have
jurisdiction over the case? If it does, is the finding of unfair labor practice supported by substantial evidence?

The first issue leads Us to consider Our rulings in Pampanga Sugar Mills vs. Pasumil Workers'
Union1 and Victorias Milling Co. vs. CIR, supra.

In the Pasumil case, We held that where "petitioner is a highly mechanized industrial concern with the work of
planting and harvesting clearly distinguished from that of transporting the cane from the fields, first to a
switch and later to the mill x x x all its workers are to be considered industrial workers, except those devoted
to purely agricultural work." (at p. 561) Reiterating this, We said in the Victorias case that it is "the nature of
the work which classifies a worker as one falling under the exemption [from coverage of R.A. 875] as
agricultural laborers."

In an hacienda, there may therefore be both agricultural and industrial workers. Regarding the former,
exclusive jurisdiction has been given to the Court of Agrarian Relations. As to the latter, exclusive jurisdiction
has been placed in the Court of Industrial Relations.

As regards those workers who perform functions the nature of which is industrial, therefore, suit was properly
filed in the Court of Industrial Relations.

Against petitioners' contention to the contrary, the record shows that the petitioners' undertaking is a
merchanized, one, rendering applicable the norm set forth in the Victorias and Pasumil cases: (1) Petitioners
already owned 200 hectares, yet they leased 107 hectares more. It would be very difficult for them to
profitably carry on under conditions they alleged unless the haciendas are mechanized; (2) Petitioners had 2
mills in the haciendas — one in their own land and another in the land leased; (3) The field workers were
different from the mill workers, showing specialization in the kind of work done; (4) The presence of a
timekeeper and inspector in the hacienda, showing that the workers had a working schedule, and laborers
were made to sign payrolls, a practice typical of industrial concerns; (5) The positions in question, mill laborers,
trapicheros, chemists, fuelmen, oilers, mangongogay, tractor and truck drivers, those involving taking or
transporting sugar cane from the field to the mill and to the market, are positions commonly found in
industrial concerns.

Petitioners' liability for unfair labor practice is thus premised on Sec. 4-A of Republic Act 875, not under
Republic Act 2263. As industrial employees, the laborers in the positions aforementioned were already
covered by Republic Act 875, even before the effectivity of R.A. 2263, and were so covered when they were
dismissed.

Petitioners claim that the finding of unfair labor practice is not supported by substantial evidence. They failed
however, to show why. Petitioners cite the dissenting opinion of Judge Amando Bugayong who believed that
there was no illegal dismissal because in letters dated March 18 and 31, 1958, complainants through their
lawyer claimed back wages and overtime pay without mention of their alleged dismissal. This however does
not indicate that there was no such dismissal, for it could also mean that said laborers at first would have been
contented with payment of back wages and overtime pay; but that later, when refused payment thereof, they
decided to ask for reinstatement also and thus raised the ground of dismissal as an unfair labor practice.

Petitioners stress that 24 [actually, the CIR said 20] of the 87 complainants were found never to have worked
at all in the hacienda, and that 16 [actually the CIR said 14] moved to dismiss the complaint with regard to
their claims. All this did not alter the finding that the others were illegally dismissed. Neither do we find
significant the fact that only seven witnesses were presented to support the charge, as long as the lower court
found them credible; the same is true of petitioners' observation that the witnesses did not agree as to the
precise date of their dismissal, whether March 18 or 19, 1958. The fact is that substantial evidence there is,
behind the finding that petitioners dismissed the laborers in question of March of 1968 for reason of union
membership. The submission that said laborers resigned freely, or were no longer employed by then, or that
their dismissals were prompted by financial difficulties, was rejected below as not credible. Such matters
relate to findings of facts in regard to which the determinations of the Court of Industrial Relations are
conclusive where, as in this case, it has substantial evidence to rest upon.

Wherefore, the appealed decision and resolution of the Court of Industrial Relations are hereby affirmed.
Costs against petitioners. So ordered.

Reyes, J.B.L., Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.
Concepcion, C.J. and Dizon, J., are on leave.

G.R. No. L-31770 December 5, 1929

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ANTONINO HERNANDEZ, defendant-appellant.

Crispin Oben for appellant.

Attorney-General Jaranilla for appellee.

AVANCEÑA, C.J.:

In the judgment appealed from the appellant was convicted of arson and sentenced to eight years and one
daypresidio mayor, with the accessaries of law, and the costs.

On February 3, 1929, Miguel Dayrit, the offended party, was living with his children in his house situated in the
barrio of Duque, municipality of Mabalacat, Province of Pampanga. At a little past midnight on that date, and
after Miguel Dayrit had retired, he noticed that the thatched roof of his house was on fire. He got up to fetch
some water with which to extinguish the fire, when, looking out of the window, he saw the appellant beside
the house, carrying a stick (Exhibit A). Miguel Dayrit shouted for help, and started to put out the fire, which he
succeeded in doing, after a small part of the roof had burned. In answer to his cries for help, Artemio Tanglao
repaired to the place and saw the defendant running away. Daniel Mallari also came, and on his way to the
house met the defendant.

The appellant knew that Miguel Dayrit and his children lived and were in the house that night.

The testimony of the offended party, corroborated by that of Artemio Tanglao and Daniel Mallari, establishes
beyond all doubt the fact that it was the appellant who set fire to the house. The stick which Miguel Dayrit saw
in the appellant's possession on that night was found leaning against the house with the end burnt and a rag
soaked with petroleum dangling from it. Daniel Mallari recognized it as the stick which the appellant used in
getting guava fruits.

It should be noted, moreover, that prior to the crime, the appellant and the offended party, Miguel Dayrit, had
some disagreements because the offended party suspected that the appellant was stealing his paddy piled up
behind his house. The offended party communicated his suspicions to the barrio lieutenant, who, together
with the complainant, went to the appellant's house, but the latter armed with a bolo, barred their way, saying
that he would cut them to pieces, and that he recognized no authority. This characteristic violence on the part
of the appellant was also shown when, in pursuance of this information, he was arrested; for he refused to
give himself up.

The trial court held that the crime committed was only frustrated arson. We agree with the Attorney-General
that the crime was consummated. The appellant did in fact, set fire to the roof of the house, and said house
was in fact partially burned. With this, the crime of arson was consummated, notwithstanding the fact that the
fire was afterwards extinguished, for, once the fire has been started, the consummation of the crime of arson
does not depend upon the extent of the damage cause. This court has so held in the cases of United States vs.
Go Foo Suy and Go Jancho (25 Phil., 187) and United States vs. Po Chengco (23 Phil., 487).

The crime of arson having been consummated, as it appears from the facts thoroughly proved, article 549 of
the Penal Code is applicable herein, with the corresponding penalty of cadena temporal to life imprisonment.
And as the aggravating circumstance of nighttime must be taken into consideration, as having been doubtless
sought by the appellant in order to insure the commission of the crime, the penalty must be imposed in its
maximum degree.

In view of these considerations, the judgment appealed from is modified, and in accordance with article 549 of
the Penal Code the appellant is found guilty of the crime of arson, committed in a dwelling, knowing that
within it were the offended party and his children; and, considering one aggravating circumstance in the
commission of the crime, the defendant is sentenced to life imprisonment, with the accessaries, and the costs.

The appellant is an old man, about 85 years of age, and in view of this, and of the fact that the damage caused
was very slight, the Attorney-General recommends that, in pursuance of the second paragraph of article 2 of
the Penal Code, these facts be explained to the Executive, for the exercise of his clemency to such an extent as
he may deem proper. The suggestion is accepted, and it is hereby ordered that the clerk forward a copy of this
decision, once it becomes final, to the Governor-General for consideration. So ordered.

Johnson, Street, Malcolm, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

G.R. No. L-14128 December 10, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
SEVERINO VALDES Y GUILGAN, defendant-appellant.

Ariston Estrada for appellant.

Attorney-General Paredes for appellee.
TORRES, J.:

This cause was instituted by a complaint filed by the prosecuting attorney before the Court of First Instance of
this city, charging Severino Valdes y Guilgan and Hugo Labarro y Bunaladi, alias Hugo Navarro y Bunadia, with
the crime of arson, and, on the 20th of May of the present year, judgment was rendered whereby Severino or
Faustino Valdes u Guilgan was sentenced to six years and one day of presidio mayor and to pay one-half of the
costs. From this judgment this defendant appealed. With respect to Hugo Labarro or Navarro, the proceedings
were dismissed with the other half of the costs de officio.

Between 8 and 9 o'clock in the morning of April 28th of this year, when M. D. Lewin was absent from the
house in which he was living his family, at No. 328, San Rafael Street, San Miguel, Mrs. Auckback, who appears
to have been a resident of the neighborhood, called Mrs. Lewin and told her that much smoke was issuing
from the lower floor of the latter's house, for until then Mrs. Lewin had not noticed it, and as soon as her
attention was brought to the fact she ordered the servant Paulino Banal to look for the fire, as he did and he
found, so asked with kerosene oil and placed between a post of the house and a partition of the entresol, a
piece of a jute sack and a rag which were burning. At that moment the defendant Valdes was in the entresol,
engaged in his work of cleaning, while, the other defendant Hugo Labarro was cleaning the horses kept at the
place.

On the same morning of the occurrence, the police arrested the defendants, having been called for the
purpose by telephone. Severino Valdes, after his arrest, according to the statement, Exhibit C, drawn up in the
police station, admitted before several policemen that it was he who had set the fire to the sack and the rag,
which had been noticed on the date mentioned. and he also who had started the several other fires which had
occurred in said house on previous days; that he had performed such acts through the inducement of the
other prisoner, Hugo Labarro, for they felt resentment against, or had trouble with, their masters, and that, as
he and his coaccused were friends, he acted as he did under the promise on Labarro's part to give him a peso
for each such fire that he should start. lawphi1.net

The defendant Severino Valdes admitted, in an affidavit, that he made declarations in the police station,
although he denied having placed the rag and piece of jute sack, soaked with kerosene, in the place where
they were found, and stated, that it was the servant Paulino who had done so. He alleged that, on being
arraigned, he stated that he had set fire to a pile of dry mango leaves that he had gathered together, which is
contrary to the statement he made in the police station, to wit, that he had set the fire to the said rag and
piece of sack under the house.

For lack of evidence and on his counsel's petition, the case was dismissed with respect to the other defendant
Hugo Labarro.

Owing to the repeated attempts made for about a month past, since Severino Valdes Began to serve the Lewin
family, to burn the house above mentioned. occupied by the latter and in which this defendant was employed,
some policemen were watching the building and one of them, Antonio Garcia del Cid., one morning prior to
the commission of the crime, according to his testimony, saw the defendant Valdes climbing up the wall of the
warehouse behind the dwelling house, in which warehouse there was some straw that had previously been
burned, and that, when the defendant noticed the presence of the policeman, he desisted from climbing the
wall and entering the warehouse.

The fact of setting fire to a jute sack and a rag, soaked with kerosene oil and placed beside an upright of the
house and a partition of the entresol of the building, thus endangering the burning of the latter, constitutes
the crime of frustrated arson of an inhabited house, on an occasion when some of its inmates were inside of
it.. This crime of provided for and punished by article 549, in connection with articles 3, paragraph 2, and 65 of
the Penal Code, and the sole proven perpetrator of the same by direct participation is the defendant Severino
Valdes, for, notwithstanding his denial and unsubstantiated exculpations, the record discloses conclusive proof
that it was he who committed the said unlawful act, as it was also he who was guilty of having set the other
fires that occurred in said house. In an affidavit the defendant admitted having made declarations in the police
station, and though at the trial he denied that he set fire to the sacks and the rag which were found soaked in
kerosene and burning, and, without proof whatever, laid the blame unto his codefendant, the fact is that
confessed to having set fire to a pile of dry leaves whereby much smoke arose from the lower part of the
house, but which, however, did not forewarn his mistress, Mrs. Lewin, though she should have noticed it, and
he allowed the sack and the rag to continue burning until Mrs. Auckback noticing a large volume of smoke in
the house, gave the alarm. No proof was submitted to substantiate the accusation he made against the
servant Paulino, who apparently is the same persons as the driver Hugo Labarro.

The crime is classified only as frustrated arson, inasmuch as the defendant performed all the acts conceive to
the burning of said house, but nevertheless., owing to causes independent of his will, the criminal act which he
intended was not produced. The offense committed cannot be classified as consummated arson by the
burning of said inhabited house, for the reason that no part of the building had yet commenced to burn,
although, as the piece of sack and the rag, soaked in kerosene oil, had been placed near partition of the
entresol, the partition might have started to burn, had the fire not been put out on time.

There is no extenuating or aggravating circumstance to be considered in a connection with the commission of

the crime, and therefore the penalty of presidio mayor immediately inferior in degree to that specified in
article 549 of the Penal Code, should be imposed in its medium degree.

For the foregoing reasons the judgment appealed from should be affirmed, with the modification however,
that the penalty imposed upon the defendant shall be given eight years and one day of presidio mayor, with
the accessory penalties prescribed in article 57 of the Code. The defendant shall also pay the costs of both
instances. So ordered.

Arellano, C.J., Johnson, Araullo, Street, Malcolm and Avanceña, JJ., concur.

G.R. No. L-13785 October 8, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
TOMAS ADIAO, defendant-appellant.

Victoriano Yamzon for appellant.

Attorney-General Paredes for appellee.

MALCOLM, J.:

The defendant was charged in the Municipal Court of the city of Manila with the crime of theft. He was found
guilty of the lesser crime of frustrated theft. He appealed to the Court of First Instance of the city of Manila
and again he was found guilty of the crime of frustrated theft, and was sentenced to pay a fine of P100, with
subsidiary imprisonment in case of insolvency, and to pay the costs.

The sole error assigned on appeal is that the lower court erred in holding that the defendant was guilty of the
crime of theft as dis closed by the facts appearing of record. We have examined the evidence carefully and
from our study are unable to say that the proof is contrary to the findings of the lower court. Stated in one
sentence, the defendant, Tomas Adiao, a customs inspector, abstracted a leather belt valued at P0.80, from
the baggage of a Japanese named T. Murakami, and secreted the belt in his desk in the Custom House, where
it was found by other customs employees.
Based on these facts, the Court is of the opinion that the crime can not properly be classified as frustrated, as
this word is defined in article 3 of the Penal Code, but that since the offender performed all of the acts of
execution necessary for the accomplishment crime of theft. The fact that the defendant was under
observation during the entire transaction and that he was unable to get the merchandise out of the Custom
House, is not decisive; all the elements of the completed crime of theft are present. The following decisions of
the supreme court of Spain are in point:

The defendant was charged with the theft of some fruit from the land of another. As he was in the act
of taking the fruit he was seen by a policeman, yet it did not appear that he was at that moment
caught by the policeman but sometime later. The court said: ". . . The trial court did not err . . . in
considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing
appears in the record showing that the policemen who saw the accused take the fruit from the
adjoining land arrested him in the act and thus prevented him from taking full possession of the thing
stolen and even its utilization by him for an interval of time. (Decision of the supreme court of Spain,
October 14, 1898.)

Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on
account of the solemnity of the act, although noticing the theft, did not do anything to prevent it.
Subsequently, however, while the defendant was still inside the church, the offended party got back the
money from the defendant. The court said that the defendant had performed all the acts of execution and
considered the theft as consummated. (Decision of the supreme court of Spain, December 1, 1897.)

The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from
the case took a small box, which was also opened with a key, from which in turn he took a purse containing
461 reales and 20 centimos, and then placed the money over the cover of the case; just at this moment he was
caught by two guards who were stationed in another room near-by. The court considered this as
consummated robbery, and said: " . . . The accused . . . having materially taken possession of the money from
the moment he took it from the place where it had been, and having taken it with his hands with intent to
appropriate the same, he executed all the acts necessary to constitute the crime which was thereby produced;
only the act of making use of the thing having been frustrated, which, however, does not go to make the
elements of the consummated crime. (Decision of the supreme court of Spain, June 13, 1882.)

There exists the aggravating circumstance that advantage was taken by the offender of his public position.
Wherefore, in view of the provisions of articles 517 and 518, No. 5, of the Penal Code, and there being present
one aggravating circumstance compensated by no mitigating circumstances, the penalty must be imposed in
the maximum degree.1awph!l.net

Judgment is reversed and the defendant and appellant is sentenced to three months and one day of arresto
mayor, with the costs of all instances against him. The merchandise in question, attached to the record as
Exhibit A, shall be returned to the lawful owner, T. Murakami. So ordered.

Torres, Johnson, Street, Avanceña and Fisher, JJ., concur.

G.R. No. L-17021 February 23, 1921

THE UNITED STATES, plaintiff-appellee,

vs.
ISAAC DOMINGUEZ, defendant-appellant.

Pablo, Guzman & Lucero for appellant.

Attorney-General Feria for appellee.

VILLAMOR, J.:

The fact which gave rise to the present appeal is described in the information as follows:
 That on or about 19th day of January, 1920, in the city of Manila, Philippine Islands, the said accused
who was a salesman at the Philippine Education Co., Inc. did then and there receive the sum of seven
pesos and fifty centavos (pesos 750) from one Lamberto Garcia as payment for five copies of Sam's
"Practical Business Letters" bought from the store of the said company, which amount should have
been turned over and delivered by him (accused) to the company's cashier or his authorized
representative therein; that instead of delivering the said amount to the said cashier or his
representative therein, which he knew it was his obligation to do, the said accused did then and there
willfully, unlawfully and criminally misappropriate and convert it to his own personal use to the
damage and prejudice of the said Philippine Education Co., Inc. in the sum of seven pesos and fifty
centavos (pesos 7.50) equivalent to 37 ½ pesetas.

At the close of the trial the court found the accused guilty of the crime of estafa of the sum of pesos 7.50 and
sentenced him to be imprisoned for two months and one day of arresto mayor, with the accessories provided
by law, and costs.

Appeal having been taken to this to this Supreme Court, the counsel for the accused assigns, as error
committed by the court, its finding that the accused is guilty of the crime charged and its action in imposing
upon him the penalty corresponding to a principal in the crime of estafa.

It is proved that the accused, as salesman of the bookstore "Philippine Education Co., Inc." sold on the morning
of January 19, 1920, five copies of Sams' "Practical Business Letters," of the value of seven pesos and fifty
centavos (pesos 7.50), which the accused should have immediately delivered to the cashier but which he did
not deliver, until after it was discovered that he had sold the books and received their value without delivering
it to the cashier, as was his duty.

The accused alleges that he did not deliver the money immediately after the sale, because the cash boys were
very busy as well as the cashier, while he had to go to the toilet for some necessity, and upon coming out, the
cashier caught him by the arm and asked him for the money, and then he delivered the sum of pesos 7.50 to
him; and that it was not his intention to make use of said money. Such claim, nevertheless, does not exempt
him from the criminal responsibility which he had incurred, for the evidence before us shows clearly that he
attempted to defraud the "Philippine Education Co., Inc." Upon being asked for the money, he first said that a
woman, whom he did not know, bought books, without having paid, for the reason that she was, according to
herself, in a hurry; and, latter, he went out of the store to talk to a friend who was employed in the Pacific Mail
Steamship Co. to tell him that if anyone should ask him if he (the employee of the Pacific Mail Steamship Co.)
bought books that morning in the store of the "Philippine Education Company" he should answer affirmatively.
Furthermore, he had also declared to the manager of the bookstore that he used part of the money in
purchasing postage stamps.

There can be no doubt as to the injury which the accused would have caused to the interests of the company
in retaining for himself the proceeds of the sale in question.

But the question of law to be decided is whether the fact that the accused retained in his possession the
proceeds of the sale, delivering them to the cashier only after the deceit had been discovered, constitutes a
consummated offense or merely a frustrated offense of estafa.

Should the fact that the accused attempted to get certain bundles of merchandise at the station, by means of
the presentation of the tag sent to the consignee in a letter which must have been taken from the mail, it not
having been proven by whom or how it came to the accused, who did not attain their object, because the
bundles had been withdrawn two or three days before by the consignee, be considered as an attempted or
frustrated offense? The supreme court of Spain in its decision of January 3, 1876, in deciding the appeal taken
by the accused, who alleged that the act constituted only an attempt and not a frustrated estafa, declared that
the appeal was not well taken, on the ground that the offense is frustrated when the accused performs all the
acts of execution which would have produced the crime, and, nevertheless, do not produce it by reason of
causes independent of the will of the actor, and that in said case the appellant, together with his coaccused
attempted to take possession of the two bundles which they believed were at the station, by going there and
presenting the tag, and they did not succeed because these bundles had already been taken, which constitutes
the frustrated crime.

In his commentaries on the Penal Code Viada asks the following questions: "Is immediate return by the
accused of the thing he intended to convert, as soon as the injured party found out the fraud committed,
sufficient to divest the act of its consummated character and to place it within the limits of a mere frustrated
offense?" "The religious society of Santa Clara deposited, in the year 1868, with D. Manuel Nuñez an oil
painting on copper, but when they demanded it a few years afterwards, the latter delivered to them the same
frame but with merely a copy of the original painting, which, upon his order, a painter had made for the sum
of 40 pesetas. The substitution having been afterwards noted, the society protested and Nuñez returned the
original, valued at 125 pesetas, and in turn obtained the copy referred to. But, in the meantime a criminal
action having been instituted upon this fact and prosecuted to trial, the Madrid court, holding that Nuñez had
defrauded and injured the society in the amount of the difference in the value of the paintings, sentenced him,
as principal in the consummated crime of estafa, defined in number 5 of article 548 of the Code, to the penalty
of two months and one day of arresto mayor, together with the accessories, and costs. An appeal having been
taken from said judgment, on the ground that it violated among others, article 3 of the Code, the Supreme
Court, declaring that the appeal was well taken, held that the estafa committed was mere frustrated estafa.
'Considering that while the acts of D. Manuel Nuñez appear to have been actuated by the desire to convert the
painting to his own use and the consequent injury of its owner, and that to that end he performed all the acts
which should produce the crime as a consequence, nevertheless, the injury and the appropriation were not
realized, and therefore the crime was not consummated because of a cause independent of his will, which was
the discovery of the substitution of the plate, after which the owner obtained what belonged to him without
the objection of the depositary and without any delay juridically appreciable — therefore, the trial court in
holding as consummated an offense that was frustrated, violated, in failing to apply it, article 3 of the Code.' "
(1 Viada, 65.)

The same author puts and solves the following question: "Where a person appointed Commissioner to make
collection of debts due to the public treasury for real estate taxes owing by a mining company goes to a store
and acts of the owner thereof a certain sum in order that he might not file a complaint by virtue of which the
owner might have to pay a big fine because the establishment was not registered in the corresponding class,
and the owner pays him part of the sum demanded, but he is in the act caught by agents of the authority who
were detailed for the purpose, is he guilty of the consummated or simply frustrated crime of estafa? The
criminal branch of the court of Seville found him guilty of the former and sentenced him to the penalty of two
months and one day of arresto mayor. But, appeal having been taken from the judgment on the ground that
the fact constituted only an attempt to commit estafa, the Supreme Court, while not of the same opinion,
however, held that the crime committed was merely frustrated: 'Considering that while the acts executed by
the appellant should be qualified, not merely as an attempt, as claimed by the appellant, inasmuch as he did
not limit himself to commencing the acts of execution of the crime, but as a frustrated crime because the
accused performed all the acts of execution which should produce the crime as a result, such s the obtaining of
the money exacted, in this manner apparently realizing his object, but which acts nevertheless did not produce
the crime by reason of a cause independent of his will, which cause in this case was the appearance of agents
of the authority at the place, as a consequence of the complaint filed by Da. Candelaria Polanco to the treasury
deputy, a fact which prevented the consummation of the crime prosecuted, which would have consisted in
completely divesting the owner of his money, a result prevented by the vigilance of the authorities:
Considering that in not so holding the trial court erred on a point of law, as claimed, and violated the articles of
the Penal Code to which the appeal refers, etc., etc.' " (Viada, Suppl. 1887-1889, p. 8.)

Applying the doctrine, established by the supreme court of Spain in the decisions cited, to the case at bar, we
are of the opinion, and so hold, that the appellant is guilty of the frustrated offense of estafa of 37 ½ pesetas,
inasmuch as he performed all the acts of execution which should produce the crime as a consequence, but
which, by reason of causes independent of his will, did not produce it, no appreciable damage having been
caused to the offended party, such damage being one of the essential elements of the crime, due to the timely
discovery of the acts prosecuted.
From what has been said, it results that the judgment appealed from should, as it is hereby, modified, and the
accused is sentenced to pay a find of 325 pesetas, with subsidiary imprisonment in case of insolvency, and to
pay the costs of the trial. So ordered.

Mapa, C.J., Araullo, Streets and Malcolm, JJ., concur.

[G.R. No. 63451. May 31, 1984.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ERNESTO ESPIRITU, Defendant-Appellant.

The Solicitor General for Plaintiff-Appellee.

Fajardo, Juan, Laronia & Arcega, for Defendant-Appellant.

SYLLABUS

1. CRIMINAL LAW; RAPE; VIRGINITY, NOT ESSENTIAL ELEMENT. — Appellant’s contention that there could have
been no sexual intercourse on the date in question because of the doctor’s findings that the laceration of
complainant’s hymen is old, is untenable. For, be that as it may, the crime of rape is not dependent on the
virginity of the offended party. The fact that she was no longer a virgin is not a defense.

2. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; ABSENCE OF ILL MOTIVE OF COMPLAINANT; CASE
AT BAR. — The judgment of conviction by the lower court is well supported by evidence. Complainant was only
13 or 14 years old at the time she was raped and she has no reason to publicly expose herself to have been
ravished by a brother-in-law.

3. ID.; ID.; ID.; ALIBI; REQUIRES PHYSICAL IMPOSSIBILITY FOR THE ACCUSED TO BE AT THE SCENE OF THE CRIME
BEFORE, DURING OR AFTER THE COMMISSION OF THE CRIME; CASE AT BAR. — Patok, Bucay, Abra is only 3 or
4 kilometers away from Quimloong, the scene of the crime. It is not therefore physically impossible for him to
be at the scene of the crime before during or after he was allegedly at Patok.

DECISION

RELOVA, J.:

Appeal from the decision of the Regional Trial Court of Bangued, Abra convicting Ernesto Espiritu of the crime
of rape in Criminal Case No. 1513 and sentencing him "to suffer the penalty of reclusion perpetuaand to
indemnify the victim the sum of Fifteen Thousand Pesos (P15,000.00) as moral damages." chanrobles virtual
lawlibrary

In her complaint, Marieta Trongco alleged that —

"That on or about September 18, 1982, at Quimloong, in the municipality of Bucay, Province of Abra,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force
and violence, did then and there, wilfully, unlawfully and feloniously had sexual intercourse with one Marieta
F. Trongco, a 12 year old girl, single, without her consent and against her will." (page 50, Rollo).

Prosecution evidence shows that complainant Marieta Trongco is the 7th child in a family of nine, She is a first
year high school student and a resident of Quimloong, Bucay, Abra. Accused Ernesto Espiritu is her brother-in-
law, being the husband of her elder sister.
Around 5:00 in the afternoon of September 18, 1982, Marieta was in the house of Eutiquio Pacano watching a
television program. When she felt the urge to urinate, she went to the eastern part of the house and there she
urinated. Accused-appellant suddenly arrived and pulled her in the direction of the forest where she was made
to lie down and had sexual intercourse with her. She tried to shout for help but Espiritu closed her mouth with
his hand and, subsequently, with a handkerchief. The accused then boxed her in the stomach, causing her to
lose consciousness. When she regained consciousness, Accusedwas already on top of her performing sexual
intercourse. The accused then stood up and left. She also stood up, put on her pantie and ran home. She
reported the matter to her father, Benjamin Trongco, that her brother-in-law, Ernesto Espiritu, had abused
her. Her father and a brother went to look for the accused but they failed to find him. Said accused never
showed up again in their house.chanroblesvirtualawlibrary

The next day, the matter was reported to the police sub-station at Bucay, Abra. The police authorities took the
statement of Marieta and then had her examined physically at the Abra Provincial Hospital. Dr. Fidel Gabat
looked her over and then issued a medical certificate containing the following:jgc:chanrobles.com.ph

"External:chanrob1es virtual 1aw library

Hymen with old laceration at 6:00 and 11:00 o’clock positions.

Vaginal opening admits 2 fingers.

Spermatozoa — negative per Laboratory Technician."cralaw virtua1aw library

In this appeal, Ernesto Espiritu alleged that the lower court erred in not acquitting him on ground of
reasonable doubt.

The defense is denial and alibi, appellant claiming that on the date in question, he was at Patok, Bucay, Abra;
however, he admitted that in the morning of September 18, 1982, he was at Quimloong.

WE find the judgment of conviction by the lower court well supported by the evidence and, it should,
therefore, be affirmed. As aptly observed by the trial court —

"The claim of the accused that he did not abuse the complainant because he was at Patok, Bucay, Abra at the
time of the incident is unreliable and unworthy of belief. Accused admitted that he was at Quimloong in the
morning of September 18, 1982. There was nobody presented to corroborate him that he was at Patok, Bucay,
Abra in the afternoon of September 18, 1982. Patok is a neighboring barangay of Quimloong, Bucay, Abra, and
there is no showing whatsoever of the impossibility that the accused was not at Quimloong, Bucay, Abra in the
afternoon of September 18, 1982. It is nearer the truth and acceptable to reason that after having committed
the act and knowing that the complainant had reported the matter to his father-in-law Benjamin Trongco, he
went to Patok, Bucay, Abra where he stayed until arrested.

"Between, therefore, the affirmative declaration of the complainant Marieta Trongco that she was forcibly
raped by the accused and the alibi of the accused amounting to a denial, the Court has to give greater weight
to the former. The defense of alibi interposed by the accused is unbelievable and cannot prevail over the direct
and positive testimony of the complainant Marieta Trongco." (p. 53, Rollo).

Appellant’s contention that there could have been no sexual intercourse on the date in question because of
the doctor’s findings that the laceration of complainant’s hymen is old, is untenable. For, be that as it may, the
crime of rape is not dependent on the virginity of the offended party. The fact that she was no longer a virgin is
no defense.chanrobles law library : red

Complainant was only 13 or 14 years old at the time and she has no reason to publicly expose herself to have
been ravished by a brother-in-law. Patok, Bucay, Abra is only 3 to 4 kilometers away from Quimloong. It is not
therefore physically impossible for him to be at the scene of the crime before, during or after he was allegedly
at Patok. Further, the fact that he left the place and failed to show up until he was arrested is a circumstance
of guilt.
IN VIEW OF THE FOREGOING, the appealed decision is hereby AFFIRMED in toto. With costs.

SO ORDERED.

Melencio-Herrera, Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.

Teehankee, J., took no part.

G.R. No. L-22345 October 10, 1924

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, vs. FELIPE DIÑO, ET AL.,defendants.
FELIPE DIÑO and FORTUNATO LAURISTO, appellants.

Jose Avelino and Vicente de Vera for appellants.

Attorney-General Villa-Real for appellee.

VILLAMOR, J.:

The Court of First Instance of Samar sentenced the appellants to be imprisoned for ten years and one day
of presidio mayor, with the accessories prescribed by law, to indemnify Casimiro Abria jointly and severally in
the sum of P10, and to pay the costs.chanroblesvirtualawlibrary chanrobles virtual law library

The defendants are charged with the crime of arson committed, according to the complaint, as follows:

That on or about midnight of the 4th of May, 1923, in the sitio of Capipian, barrio of Lope de Vega,
municipality of Catarman, Province of Samar, Philippine Islands, and within the jurisdiction of this court, the
above named defendants with premeditation and confederating together, provided themselves with dynamite
and criminally place it and cause the same to explode on the door of the house inhabited by Casimiro Abria
and his family, which dynamite or explosive substance exploded and burnt the ceiling of said house; as a result
of which a part of said house was destroyed; the damage caused not exceeding
6,250 pesetas.chanroblesvirtualawlibrary chanrobles virtual law library

Contrary to law.

The appellants pray for the reversal of the judgment appealed from, while the Attorney-General prays for the
modification thereof in the sense that the penalty of from four months and twenty-one days to six months
of arresto mayor be imposed upon the defendants, under the provision of article 557, paragraph 1, of the
Penal Code.chanroblesvirtualawlibrary chanrobles virtual law library

After a careful study of the record, we are of the opinion, and so hold, that the guilt of the defendants does
not appear duly proven beyond a reasonable doubt, as is required for the imposition of the penalty fixed by
the law.chanroblesvirtualawlibrary chanrobles virtual law library

There is in the record no direct evidence of the commission of the crime by the defendants. None of the
witnesses has seen the dynamite which, it is said, they caused to explode in the house of the offended
Casimiro Abria. Indeed the Attorney-General says in his brief: "It is true that none of the witnesses for the
prosecution has seen the defendants Felipe Diño and Fortunato Lauristo on the night of May 4, 1923, at the
act of firing the dynamite that set fire to the ceiling of the house of Casimiro Abria and unnailed several boards
from its wall, but the circumstances of record in this case are so clear and conclusive that no other conclusion
is possible than that the herein appellants Felipe Diño and Fortunato Lauristo were the authors of the
explosion that caused a part of the ceiling of the house of Casimiro Abria to burn."chanrobles virtual law
library
What are these circumstances? They are made to consists in the facts testified to by Andres Borca and Enrique
Horogon.chanroblesvirtualawlibrary chanrobles virtual law library

The witness Andres Borca says that about the month of February, 1923, the accused Felipe Diño proposed to
him to cause a dynamite to explode in the house of Casimiro Abria, telling him, "Andres there is a dynamite
here; fire it in the house of Casimiro Abria," which the witness refused to do, because he did not known how to
fire a dynamite. This seems to indicate the guilt of the accused Felipe Diño; but if it is considered that the
testimony of the witness Borca is not corroborated in any manner and is denied by the accused Felipe Diño,
and that Borca has not seen any dynamite or other explosive substance in Felipe's possession, it cannot be said
in reason that his testimony constitutes a strong and conclusive evidence of guilt of the accused Felipe
Diño.chanroblesvirtualawlibrary chanrobles virtual law library

The witness Enrique Horogon says that he was invited by Gabriel Diño on the night of the 4th of May, 1923, to
go out fishing on a boat. This witness says, further, that upon their arrival at the place known as Iraya of the
barrio of Lope de Vega his companions left them on the boat; that then he heard an explosion and a little later
the accused came back in a hurry to the boat and in their return Felipe Diño warned him not to reveal to
anybody that he (Felipe Diño) had ordered the accused Lauristo to fire a dynamite in the house of Casimiro
Abria.chanroblesvirtualawlibrary chanrobles virtual law library

But is it true that Horogon was invited by Gabriel Diño on the night in question to go out on a boat with the
defendants up to the place known as Iraya? The record does not disclose any confirmation of the testimony of
Horogon; on the contrary it is denied by the Diño defendants and the circumstances of the voyage on the boat
and of the warning that Horogon puts in the mouth of Felipe make it completely incredible. If after all,
Horogon had no part to perform in connection with the supposed igniting of the dynamite, what necessity did
the accused have to take him on the boat? If Horogon, at any rate, did not know where the defendants went
after they had left him on the boat, nor did he see Lauristo fire the dynamite in the house of Abria, what
necessity did Felipe have to caution him not to tell anything about what they (the defendants) had done? By
instinct the criminal avoids the presence of witnesses who may denounce the commission of the crime; and
the case now related by the witness Horogon is so rare that without a strong corroboration, as is the case
here, we cannot believe it. And upon this ground, the case must be dismissed as to the defendant Gabriel
Diño.chanroblesvirtualawlibrary chanrobles virtual law library

The fact itself of the explosion of the dynamite related by the offended Abria is not free from doubt. According
to this witness, at about midnight of May 4, 1923, while he was sleeping in company with eight persons in his
house situated in the sitio of Capipian, barrio of Lope de Vega, municipality of Catarman, Province of Samar, he
was awakened by a strong explosion, which he supposed had burst out in his house; he immediately stood up,
and went to the place where he believed the explosion had taken place, and found a part of the wall that was
contiguous to the door destroyed, and the ceiling of the house burning; he called his servant and both of them
succeeded in putting out the fire. As a result of said explosion, the hemp fiber baled and deposited behind the
main door of the house was scattered and a part of the ceiling, which was of anahaw, burnt, thus presenting a
hole which was one foot in diameter, four boards having been unnailed and a hole made on the wooden floor.
On the next day he reported the matter to the municipal president of Catarman who repaired to the place of
the event and saw that the damage caused by the explosion would amount to
P10.chanroblesvirtualawlibrary chanrobles virtual law library

According to the testimony of the witness Abria the explosion seems to have taken place on the exterior part
of his house near the main door, destroying the wall contiguous to the door through which it entered,
scattering the hemp fiber which was baled and deposited behind said door, and unnailing four boards of the
wall; but such a hypothesis cannot be reconciled with the fact of an opening one foot in diameter having been
made on the wooden floor of the house, and another of equal size on the ceiling of anahaw, unless it is
granted that the explosion was so strong that a part of the explosive was thrown against the unnailed boards,
another part against the floor, making an opening thereon, and still another against the ceiling. But then it
cannot be explained how the eight persons who were sleeping in the same room, which contained an area of
only about 12 square brazas and formed one single compartment, did not suffer the slightest
injury.chanroblesvirtualawlibrary chanrobles virtual law library
Without the necessity of expounding other hypotheses which may be drawn from the testimony of Abria, and
taking into account that the same witnesses, Borca and Horogon, have not seen any dynamite in possession of
the defendants, or in those of Felipe, Diño, or in the boat on the night in question, we conclude that if the
circumstances stated by said witnesses indicate anything, they are not so convincing or conclusive as to
establish the guilt of the defendants beyond a reasonable doubt.chanroblesvirtualawlibrary chanrobles virtual
law library

According to Rule 52 of the Provincial Law for the Application of the Provisions of the Penal Code, in order that
a conviction may be sustained upon circumstantial evidence alone, it is necessary , first, that the circumstances
be more than one; second, that the facts upon which they are based be proven; and third, that, taken
together, they convince the mind in such a manner as not to leave any room for reasonable doubt as to the
guilt of the accused in the natural and ordinary course of things. And this is substantially the same rule
established by the jurisprudence of this court. (U. S. vs. Perez, 2 Phil., 171; U. S. vs. Douglass, 2 Phil., 461; U.
S. vs. Reyes, 3 Phil., 3; U. S. vs. Villos, 6 Phil., 510.)chanrobles virtual law library

For all of the foregoing, the judgment appealed from must be reversed, and the appellants Felipe Diño and
Fortunato Lauristo be, as they are hereby, acquitted with the costs de oficio. So
ordered.chanroblesvirtualawlibrary chanrobles virtual law library

Johnson, Malcolm, Avanceña, Ostrand and Romualdez, JJ., concur.

G. R. No. 160188 June 21, 2007

ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS NACHURA, respondents.

DECISION

TINGA, J.:

This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively
concedes having performed the felonious acts imputed against him, but instead insists that as a result, he
should be adjudged guilty of frustrated theft only, not the felony in its consummated stage of which he was
convicted. The proposition rests on a common theory expounded in two well-known decisions1 rendered
decades ago by the Court of Appeals, upholding the existence of frustrated theft of which the accused in both
cases were found guilty. However, the rationale behind the rulings has never been affirmed by this Court.

As far as can be told,2 the last time this Court extensively considered whether an accused was guilty of
frustrated or consummated theft was in 1918, in People v. Adiao.3 A more cursory

treatment of the question was followed in 1929, in People v. Sobrevilla,4 and in 1984, in Empelis v. IAC.5 This
petition now gives occasion for us to finally and fully measure if or how frustrated theft is susceptible to
commission under the Revised Penal Code.

I.

The basic facts are no longer disputed before us. The case stems from an Information 6 charging petitioner
Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at
around 4:30 p.m., petitioner and Calderon were sighted outside the Super Sale Club, a supermarket within the
ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his
post at the open parking area of the supermarket. Lago saw petitioner, who was wearing an identification card
with the mark "Receiving Dispatching Unit (RDU)," hauling a push cart with cases of detergent of the well-
known "Tide" brand. Petitioner unloaded these cases in an open parking space, where Calderon was waiting.
Petitioner then returned inside the supermarket, and after five (5) minutes, emerged with more cartons of
Tide Ultramatic and again unloaded these boxes to the same area in the open parking space. 7

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the
parking space where Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi, then
boarded the vehicle. All these acts were eyed by Lago, who proceeded to stop the taxi as it was leaving the
open parking area. When Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon
reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow security guards of the incident.
Petitioner and Calderon were apprehended at the scene, and the stolen merchandise recovered. 8 The filched
items seized from the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3)
additional cases of detergent, the goods with an aggregate value of ₱12,090.00. 9

Petitioner and Calderon were first brought to the SM security office before they were transferred on the same
day to the Baler Station II of the Philippine National Police, Quezon City, for investigation. It appears from the
police investigation records that apart from petitioner and Calderon, four (4) other persons were apprehended
by the security guards at the scene and delivered to police custody at the Baler PNP Station in connection with
the incident. However, after the matter was referred to the Office of the Quezon City Prosecutor, only
petitioner and Calderon were charged with theft by the Assistant City Prosecutor, in Informations prepared on
20 May 1994, the day after the incident.10

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been
innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they
were haled by Lago and his fellow security guards after a commotion and brought to the Baler PNP Station.
Calderon alleged that on the afternoon of the incident, he was at the Super Sale Club to withdraw from his
ATM account, accompanied by his neighbor, Leoncio Rosulada.11 As the queue for the ATM was long, Calderon
and Rosulada decided to buy snacks inside the supermarket. It was while they were eating that they heard the
gunshot fired by Lago, leading them to head out of the building to check what was

transpiring. As they were outside, they were suddenly "grabbed" by a security guard, thus commencing their
detention.12 Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio Valenzuela, 13 had
been at the parking lot, walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-
asa, when they saw the security guard Lago fire a shot. The gunshot caused him and the other people at the
scene to start running, at which point he was apprehended by Lago and brought to the security office.
Petitioner claimed he was detained at the security office until around 9:00 p.m., at which time he and the
others were brought to the Baler Police Station. At the station, petitioner denied having stolen the cartons of
detergent, but he was detained overnight, and eventually brought to the prosecutor’s office where he was
charged with theft.14 During petitioner’s cross-examination, he admitted that he had been employed as a
"bundler" of GMS Marketing, "assigned at the supermarket" though not at SM. 15

In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90,
convicted both petitioner and Calderon of the crime of consummated theft. They were sentenced to an
indeterminate prison term of two (2) years of prision correccional as minimum to seven (7) years of prision
mayor as maximum.17 The RTC found credible the testimonies of the prosecution witnesses and established
the convictions on the positive identification of the accused as perpetrators of the crime.

Both accused filed their respective Notices of Appeal,18 but only petitioner filed a brief19 with the Court of
Appeals, causing the appellate court to deem Calderon’s appeal as abandoned and consequently dismissed.
Before the Court of Appeals, petitioner argued that he should only be convicted of frustrated theft since at the
time he was apprehended, he was never placed in a position to freely dispose of the articles stolen.20 However,
in its Decision dated 19 June 2003,21 the Court of Appeals rejected this contention and affirmed petitioner’s
conviction.22 Hence the present Petition for Review,23 which expressly seeks that petitioner’s conviction "be
modified to only of Frustrated Theft."24

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and
his actual participation in the theft of several cases of detergent with a total value of ₱12,090.00 of which he
was charged.25 As such, there is no cause for the Court to consider a factual scenario other than that presented
by the prosecution, as affirmed by the RTC and the Court of Appeals. The only question to consider is whether
under the given facts, the theft should be deemed as consummated or merely frustrated.

II.

In arguing that he should only be convicted of frustrated theft, petitioner cites 26 two decisions rendered many
years ago by the Court of Appeals: People v. Diño27 and People v. Flores.28 Both decisions elicit the interest of
this Court, as they modified trial court convictions from consummated to frustrated theft and involve a factual
milieu that bears similarity to the present case. Petitioner invoked the same rulings in his appeal to the Court
of Appeals, yet the appellate court did not expressly consider the import of the rulings when it affirmed the
conviction.

It is not necessary to fault the Court of Appeals for giving short shrift to the Diño and Flores rulings since they
have not yet been expressly adopted as precedents by this Court. For whatever reasons,

the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet despite the
silence on our part, Diño and Flores have attained a level of renown reached by very few other appellate court
rulings. They are comprehensively discussed in the most popular of our criminal law annotations,29 and studied
in criminal law classes as textbook examples of frustrated crimes or even as definitive of frustrated theft.

More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate criminal
law exams more than they actually occur in real life. Indeed, if we finally say that Diño and Flores are doctrinal,
such conclusion could profoundly influence a multitude of routine theft prosecutions, including commonplace
shoplifting. Any scenario that involves the thief having to exit with the stolen property through a supervised
egress, such as a supermarket checkout counter or a parking area pay booth, may easily call for the application
of Diño and Flores. The fact that lower courts have not hesitated to lay down convictions for frustrated theft
further validates that Diño and Flores and the theories offered therein on frustrated theft have borne some
weight in our jurisprudential system. The time is thus ripe for us to examine whether those theories are
correct and should continue to influence prosecutors and judges in the future.

III.

To delve into any extended analysis of Diño and Flores, as well as the specific issues relative to "frustrated
theft," it is necessary to first refer to the basic rules on the three stages of crimes under our Revised Penal
Code.30

Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is
consummated "when all the elements necessary for its execution and accomplishment are present." It is
frustrated "when the offender performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator." Finally, it is attempted "when the offender commences the commission of a felony directly by
overt acts, and does not perform all the acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance."

Each felony under the Revised Penal Code has a "subjective phase," or that portion of the acts constituting the
crime included between the act which begins the commission of the crime and the last act performed by the
offender which, with prior acts, should result in the consummated crime. 31 After that point has been breached,
the subjective phase ends and the objective phase begins.32 It has been held that if the offender never passes
the subjective phase of the offense, the crime is merely attempted. 33 On the other hand, the subjective phase
is completely passed in case of frustrated crimes, for in such instances, "[s]ubjectively the crime is complete." 34

Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted
felonies on the other. So long as the offender fails to complete all the acts of execution despite commencing
the commission of a felony, the crime is undoubtedly in the attempted stage. Since the specific acts of
execution that define each crime under the Revised Penal Code are generally enumerated in the code itself,
the task of ascertaining whether a crime is attempted only would need to compare the acts actually performed
by the accused as against the acts that constitute the felony under the Revised Penal Code.

In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial

concession that all of the acts of execution have been performed by the offender. The critical distinction
instead is whether the felony itself was actually produced by the acts of execution. The determination of
whether the felony was "produced" after all the acts of execution had been performed hinges on the particular
statutory definition of the felony. It is the statutory definition that generally furnishes the elements of each
crime under the Revised Penal Code, while the elements in turn unravel the particular requisite acts of
execution and accompanying criminal intent.

The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an important characteristic of
a crime, that "ordinarily, evil intent must unite with an unlawful act for there to be a crime," and accordingly,
there can be no crime when the criminal mind is wanting.35 Accepted in this jurisdiction as material in crimes
mala in se,36mens rea has been defined before as "a guilty mind, a guilty or wrongful purpose or criminal
intent,"37 and "essential for criminal liability."38 It follows that the statutory definition of our mala in se crimes
must be able to supply what the mens rea of the crime is, and indeed the U.S. Supreme Court has comfortably
held that "a criminal law that contains no mens rea requirement infringes on constitutionally protected
rights."39 The criminal statute must also provide for the overt acts that constitute the crime. For a crime to
exist in our legal law, it is not enough that mens rea be shown; there must also be an actus reus. 40

It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is
produced. As a postulate in the craftsmanship of constitutionally sound laws, it is extremely preferable that
the language of the law expressly provide when the felony is produced. Without such provision, disputes
would inevitably ensue on the elemental question whether or not a crime was committed, thereby presaging
the undesirable and legally dubious set-up under which the judiciary is assigned the legislative role of defining
crimes. Fortunately, our Revised Penal Code does not suffer from such infirmity. From the statutory definition
of any felony, a decisive passage or term is embedded which attests when the felony is produced by the acts of
execution. For example, the statutory definition of murder or homicide expressly uses the phrase "shall kill
another," thus making it clear that the felony is produced by the death of the victim, and conversely, it is not
produced if the victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements are
spelled out as follows:

Art. 308. Who are liable for theft.— Theft is committed by any person who, with intent to gain but without
violence against or intimidation of persons nor force upon things, shall take personal property of another
without the latter’s consent.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its
owner;

2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the
fruits or object of the damage caused by him; and

3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to
another and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other
forest or farm products.

Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by
which theft may be committed.41 In the present discussion, we need to concern ourselves only with the
general definition since it was under it that the prosecution of the accused was undertaken and sustained. On
the face of the definition, there is only one operative act of execution by the actor involved in theft ─ the
taking of personal property of another. It is also clear from the provision that in order that such taking may be
qualified as theft, there must further be present the descriptive circumstances that the taking was with intent
to gain; without force upon things or violence against or intimidation of persons; and it was without the
consent of the owner of the property.

Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised
Penal Code, namely: (1) that there be taking of personal property; (2) that said property belongs to another;
(3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner;
and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force
upon things.42

In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early Roman law
as defined by Gaius, was so broad enough as to encompass "any kind of physical handling of property
belonging to another against the will of the owner," 43 a definition similar to that by Paulus that a thief "handles
(touches, moves) the property of another."44 However, with the Institutes of Justinian, the idea had taken hold
that more than mere physical handling, there must further be an intent of acquiring gain from the object, thus:
"[f]urtum est contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus
possessinisve."45 This requirement of animo lucrandi, or intent to gain, was maintained in both the Spanish and
Filipino penal laws, even as it has since been abandoned in Great Britain. 46

In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to characterize
theft. Justice Regalado notes that the concept of apoderamiento once had a controversial interpretation and
application. Spanish law had already discounted the belief that mere physical taking was constitutive of
apoderamiento, finding that it had to be coupled with "the intent to appropriate the object in order to
constitute apoderamiento; and to appropriate means to deprive the lawful owner of the thing." 47 However, a
conflicting line of cases decided by the Court of Appeals ruled, alternatively, that there must be permanency in
the taking48 or an intent to permanently deprive the owner of the stolen property; 49 or that there was no need
for permanency in the taking or in its intent, as the mere temporary possession by the offender or disturbance
of the proprietary rights of the owner already constituted apoderamiento. 50 Ultimately, as Justice Regalado
notes, the Court adopted the latter thought that there was no need of an intent to permanently deprive the
owner of his property to constitute an unlawful taking.51

So long as the "descriptive" circumstances that qualify the taking are present, including animo lucrandi and
apoderamiento, the completion of the operative act that is the taking of personal property of another
establishes, at least, that the transgression went beyond the attempted stage. As applied to the present case,
the moment petitioner obtained physical possession of the cases of detergent and loaded them in the
pushcart, such seizure motivated by intent to gain, completed without need to inflict violence or intimidation
against persons nor force upon things, and accomplished without the consent of the SM Super Sales Club,
petitioner forfeited the extenuating benefit a conviction for only attempted theft would have afforded him.

On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6
of the Revised Penal Code to ascertain the answer. Following that provision, the theft would have been
frustrated only, once the acts committed by petitioner, if ordinarily sufficient to produce theft as a
consequence, "do not produce [such theft] by reason of causes independent of the will of the perpetrator."
There are clearly two determinative factors to consider: that the felony is not "produced," and that such failure
is due to causes independent of the will of the perpetrator. The second factor ultimately depends on the
evidence at hand in each particular case. The first, however, relies primarily on a doctrinal definition attaching
to the individual felonies in the Revised Penal Code 52 as to when a particular felony is "not produced," despite
the commission of all the acts of execution.

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how
exactly is the felony of theft "produced." Parsing through the statutory definition of theft under Article 308,
there is one apparent answer provided in the language of the law — that theft is already "produced" upon the
"tak[ing of] personal property of another without the latter’s consent."
U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was charged with theft after he
abstracted a leather belt from the baggage of a foreign national and secreted the item in his desk at the
Custom House. At no time was the accused able to "get the merchandise out of the Custom House," and it
appears that he "was under observation during the entire transaction." 54 Based apparently on those two
circumstances, the trial court had found him guilty, instead, of frustrated theft. The Court reversed, saying that
neither circumstance was decisive, and holding instead that the accused was guilty of consummated theft,
finding that "all the elements of the completed crime of theft are present."55 In support of its conclusion that
the theft was consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the discussion
of which we replicate below:

The defendant was charged with the theft of some fruit from the land of another. As he was in the act of
taking the fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment caught by the
policeman but sometime later. The court said: "[x x x] The trial court did not err [x x x ] in considering the crime
as that of consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing
that the policemen who saw the accused take the fruit from the adjoining land arrested him in the act and
thus prevented him from taking full possession of the thing stolen and even its utilization by him for an interval
of time." (Decision of the Supreme Court of Spain, October 14, 1898.)

Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on
account of the solemnity of the act, although noticing the theft, did not do anything to prevent it.
Subsequently, however, while the defendant was still inside the church, the offended party got back the
money from the defendant. The court said that the defendant had performed all the acts of execution and
considered the theft as consummated. (Decision of the Supreme Court of Spain, December 1, 1897.)

The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from
the case took a small box, which was also opened with a key, from which in turn he took a purse containing
461 reales and 20 centimos, and then he placed the money over the cover of the case; just at this moment he
was caught by two guards who were stationed in another room near-by. The court considered this as
consummated robbery, and said: "[x x x] The accused [x x x] having materially taken possession of the money
from the moment he took it from the place where it had been, and having taken it with his hands with intent
to appropriate the same, he executed all the acts necessary to constitute the crime which was thereby
produced; only the act of making use of the thing having been frustrated, which, however, does not go to
make the elements of the consummated crime." (Decision of the Supreme Court of Spain, June 13, 1882.) 56

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal
actors in all these cases had been able to obtain full possession of the personal property prior to their
apprehension. The interval between the commission of the acts of theft and the apprehension of the thieves
did vary, from "sometime later" in the 1898 decision; to the very moment the thief had just extracted the
money in a purse which had been stored as it was in the 1882 decision; and before the thief had been able to
spirit the item stolen from the building where the theft took place, as had happened in Adiao and the 1897
decision. Still, such intervals proved of no consequence in those cases, as it was ruled that the thefts in each of
those cases was consummated by the actual possession of the property belonging to another.

In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than
consummated theft. The case is People v. Sobrevilla,57 where the accused, while in the midst of a crowd in a
public market, was already able to abstract a pocketbook from the trousers of the victim when the latter,
perceiving the theft, "caught hold of the [accused]’s shirt-front, at the same time shouting for a policeman;
after a struggle, he recovered his pocket-book and let go of the defendant, who was afterwards caught by a
policeman."58 In rejecting the contention that only frustrated theft was established, the Court simply said,
without further comment or elaboration:

We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and that
determines the crime of theft. If the pocket-book was afterwards recovered, such recovery does not affect the
[accused’s] criminal liability, which arose from the [accused] having succeeded in taking the pocket-book.59
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that
the fact that the offender was able to succeed in obtaining physical possession of the stolen item, no matter
how momentary, was able to consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in
this case. Yet to simply affirm without further comment would be disingenuous, as there is another school of
thought on when theft is consummated, as reflected in the Diño and Flores decisions.

Diño was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The
accused therein, a driver employed by the United States Army, had driven his truck into the port area of the
South Harbor, to unload a truckload of materials to waiting U.S. Army personnel. After he had finished
unloading, accused drove away his truck from the Port, but as he was approaching a checkpoint of the Military
Police, he was stopped by an M.P. who inspected the truck and found therein three boxes of army rifles. The
accused later contended that he had been stopped by four men who had loaded the boxes with the
agreement that they were to meet him and retrieve the rifles after he had passed the checkpoint. The trial
court convicted accused of consummated theft, but the Court of Appeals modified the conviction, holding
instead that only frustrated theft had been committed.

In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles
"pass through the checkpoint, perhaps in the belief that as the truck had already unloaded its cargo inside the
depot, it would be allowed to pass through the check point without further investigation or checking." 60 This
point was deemed material and indicative that the theft had not been fully produced, for the Court of Appeals
pronounced that "the fact determinative of consummation is the ability of the thief to dispose freely of the
articles stolen, even if it were more or less momentary."61 Support for this proposition was drawn from a
decision of the Supreme Court of Spain dated 24 January 1888 (1888 decision), which was quoted as follows:

Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la consumacion del
delito de hurto es preciso que so haga en circunstancias tales que permitan al sustractor la libre disposicion de
aquella, siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el concepto del delito de
hurto, no puede decirse en realidad que se haya producido en toda su extension, sin materializar demasiado el
acto de tomar la cosa ajena.62

Integrating these considerations, the Court of Appeals then concluded:

This court is of the opinion that in the case at bar, in order to make the booty subject to the control and
disposal of the culprits, the articles stolen must first be passed through the M.P. check point, but since the
offense was opportunely discovered and the articles seized after all the acts of execution had been performed,
but before the loot came under the final control and disposal of the looters, the offense can not be said to
have been fully consummated, as it was frustrated by the timely intervention of the guard. The offense
committed, therefore, is that of frustrated theft.63

Diño thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of
apprehension is determinative as to whether the theft is consummated or frustrated. This theory was applied
again by the Court of Appeals some 15 years later, in Flores, a case which according to the division of the court
that decided it, bore "no substantial variance between the circumstances [herein] and in [Diño]." 64 Such
conclusion is borne out by the facts in Flores. The accused therein, a checker employed by the Luzon
Stevedoring Company, issued a delivery receipt for one empty sea van to the truck driver who had loaded the
purportedly empty sea van onto his truck at the terminal of the stevedoring company. The truck driver
proceeded to show the delivery receipt to the guard on duty at the gate of the terminal. However, the guards
insisted on inspecting the van, and discovered that the "empty" sea van had actually contained other
merchandise as well.65 The accused was prosecuted for theft qualified by abuse of confidence, and found
himself convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative
that he was guilty only of attempted theft, but the appellate court pointed out that there was no intervening
act of spontaneous desistance on the part of the accused that "literally frustrated the theft." However, the
Court of Appeals, explicitly relying on Diño, did find that the accused was guilty only of frustrated, and not
consummated, theft.
As noted earlier, the appellate court admitted it found "no substantial variance" between Diño and Flores then
before it. The prosecution in Flores had sought to distinguish that case from Diño, citing a "traditional ruling"
which unfortunately was not identified in the decision itself. However, the Court of Appeals pointed out that
the said "traditional ruling" was qualified by the words "is placed in a situation where [the actor] could dispose
of its contents at once."66 Pouncing on this qualification, the appellate court noted that "[o]bviously, while the
truck and the van were still within the compound, the petitioner could not have disposed of the goods ‘at
once’." At the same time, the Court of Appeals conceded that "[t]his is entirely different from the case where a
much less bulk and more common thing as money was the object of the crime, where freedom to dispose of or
make use of it is palpably less restricted,"67 though no further qualification was offered what the effect would
have been had that alternative circumstance been present instead.

Synthesis of the Diño and Flores rulings is in order. The determinative characteristic as to whether the crime of
theft was produced is the ability of the actor "to freely dispose of the articles stolen, even if it were only
momentary." Such conclusion was drawn from an 1888 decision of the Supreme Court of Spain which had
pronounced that in determining whether theft had been consummated, "es preciso que so haga en
circunstancias tales que permitan al sustractor de aquella, siquiera sea mas o menos momentaneamente." The
qualifier "siquiera sea mas o menos momentaneamente" proves another important consideration, as it implies
that if the actor was in a capacity to freely dispose of the stolen items before apprehension, then the theft
could be deemed consummated. Such circumstance was not present in either Diño or Flores, as the stolen
items in both cases were retrieved from the actor before they could be physically extracted from the guarded
compounds from which the items were filched. However, as implied in Flores, the character of the item stolen
could lead to a different conclusion as to whether there could have been "free disposition," as in the case
where the chattel involved was of "much less bulk and more common x x x, [such] as money x x x." 68

In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of the Diño
ruling:

There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely dispose of
the stolen articles even if it were more or less momentary. Or as stated in another case[ 69 ], theft is
consummated upon the voluntary and malicious taking of property belonging to another which is realized by
the material occupation of the thing whereby the thief places it under his control and in such a situation that
he could dispose of it at once. This ruling seems to have been based on Viada’s opinion that in order the theft
may be consummated, "es preciso que se haga en circumstancias x x x [70 ]"71

In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also states that "[i]n
theft or robbery the crime is consummated after the accused had material possession of the thing with intent
to appropriate the same, although his act of making use of the thing was frustrated."72

There are at least two other Court of Appeals rulings that are at seeming variance with the Diño and Flores
rulings. People v. Batoon73 involved an accused who filled a container with gasoline from a petrol pump within
view of a police detective, who followed the accused onto a passenger truck where the arrest was made.
While the trial court found the accused guilty of frustrated qualified theft, the Court of Appeals held that the
accused was guilty of consummated qualified theft, finding that "[t]he facts of the cases of U.S. [v.] Adiao x x x
and U.S. v. Sobrevilla x x x indicate that actual taking with intent to gain is enough to consummate the crime of
theft."74

In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a supply depot and loaded
them onto a truck. However, as the truck passed through the checkpoint, the stolen items were discovered by
the Military Police running the checkpoint. Even though those facts clearly admit to similarity with those in
Diño, the Court of Appeals held that the accused were guilty of consummated theft, as the accused "were able
to take or get hold of the hospital linen and that the only thing that was frustrated, which does not constitute
any element of theft, is the use or benefit that the thieves expected from the commission of the offense." 76

In pointing out the distinction between Diño and Espiritu, Reyes wryly observes that "[w]hen the meaning of
an element of a felony is controversial, there is bound to arise different rulings as to the stage of execution of
that felony."77 Indeed, we can discern from this survey of jurisprudence that the state of the law insofar as
frustrated theft is concerned is muddled. It fact, given the disputed foundational basis of the concept of
frustrated theft itself, the question can even be asked whether there is really such a crime in the first place.

IV.

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated,
theft. As we undertake this inquiry, we have to reckon with the import of this Court’s 1984 decision in Empelis
v. IAC.78

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his
plantation, in the act of gathering and tying some coconuts. The accused were surprised by the owner within
the plantation as they were carrying with them the coconuts they had gathered. The accused fled the scene,
dropping the coconuts they had seized, and were subsequently arrested after the owner reported the incident
to the police. After trial, the accused were convicted of qualified theft, and the issue they raised on appeal was
that they were guilty only of simple theft. The Court affirmed that the theft was qualified, following Article 310
of the Revised Penal Code,79 but further held that the accused were guilty only of frustrated qualified theft.

It does not appear from the Empelis decision that the issue of whether the theft was consummated or
frustrated was raised by any of the parties. What does appear, though, is that the disposition of that issue was
contained in only two sentences, which we reproduce in full:

However, the crime committed is only frustrated qualified theft because petitioners were not able to perform
all the acts of execution which should have produced the felony as a consequence. They were not able to carry
the coconuts away from the plantation due to the timely arrival of the owner. 80

No legal reference or citation was offered for this averment, whether Diño, Flores or the Spanish authorities
who may have bolstered the conclusion. There are indeed evident problems with this formulation in Empelis.

Empelis held that the crime was only frustrated because the actors "were not able to perform all the acts of
execution which should have produced the felon as a consequence."81 However, per Article 6 of the Revised
Penal Code, the crime is frustrated "when the offender performs all the acts of execution," though not
producing the felony as a result. If the offender was not able to perform all the acts of execution, the crime is
attempted, provided that the non-performance was by reason of some cause or accident other than
spontaneous desistance. Empelis concludes that the crime was

frustrated because not all of the acts of execution were performed due to the timely arrival of the owner.
However, following Article 6 of the Revised Penal Code, these facts should elicit the conclusion that the crime
was only attempted, especially given that the acts were not performed because of the timely arrival of the
owner, and not because of spontaneous desistance by the offenders.

For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two
sentences we had cited actually aligned with the definitions provided in Article 6 of the Revised Penal Code,
such passage bears no reflection that it is the product of the considered evaluation of the relevant legal or
jurisprudential thought. Instead, the passage is offered as if it were sourced from an indubitable legal premise
so settled it required no further explication.

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we
cannot see how Empelis can contribute to our present debate, except for the bare fact that it proves that the
Court had once deliberately found an accused guilty of frustrated theft. Even if Empelis were considered as a
precedent for frustrated theft, its doctrinal value is extremely compromised by the erroneous legal premises
that inform it, and also by the fact that it has not been entrenched by subsequent reliance.

Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this
jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot present any
efficacious argument to persuade us in this case. Insofar as Empelis may imply that convictions for frustrated
theft are beyond cavil in this jurisdiction, that decision is subject to reassessment.

V.

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de España was then in place.
The definition of the crime of theft, as provided then, read as follows:

Son reos de hurto:

1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las personas ni fuerza en las cosas, toman las
cosas muebles ajenas sin la voluntad de su dueño.

2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la apropriaren co intención de
lucro.

3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño causado, salvo los casos previstos en
los artίculos 606, núm. 1.0; 607, núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613; Segundo párrafo del 617 y 618.

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were
handed down. However, the said code would be revised again in 1932, and several times thereafter. In fact,
under the Codigo Penal Español de 1995, the crime of theft is now simply defined as "[e]l que, con ánimo de
lucro,

tomare las cosas muebles ajenas sin la voluntad de su dueño será castigado"82

Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre disposicion" of the
property is not an element or a statutory characteristic of the crime. It does appear that the principle
originated and perhaps was fostered in the realm of Spanish jurisprudence.

The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the 1870 Codigo
Penal de España. Therein, he raised at least three questions for the reader whether the crime of frustrated or
consummated theft had occurred. The passage cited in Diño was actually utilized by Viada to answer the
question whether frustrated or consummated theft was committed "[e]l que en el momento mismo de
apoderarse de la cosa ajena, viéndose sorprendido, la arroja al suelo." 83 Even as the answer was as stated in
Diño, and was indeed derived from the 1888 decision of the Supreme Court of Spain, that decision’s factual
predicate occasioning the statement was apparently very different from Diño, for it appears that the 1888
decision involved an accused who was surprised by the employees of a haberdashery as he was abstracting a
layer of clothing off a mannequin, and who then proceeded to throw away the garment as he fled. 84

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of the
Supreme Court of Spain that have held to that effect.85 A few decades later, the esteemed Eugenio Cuello
Calón pointed out the inconsistent application by the Spanish Supreme Court with respect to frustrated theft.

Hay frustración cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de harino del
carro que los conducia a otro que tenían preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por
la intervención de la policia situada en el local donde se realizó la sustracción que impidió pudieran los reos
disponer de lo sustraído, 30 de octubre 1950. Hay "por lo menos" frustración, si existe apoderamiento, pero el
culpale no llega a disponer de la cosa, 12 abril 1930; hay frustración "muy próxima" cuando el culpable es
detenido por el perjudicado acto seguido de cometer la sustracción, 28 febrero 1931. Algunos fallos han
considerado la existencia de frustración cuando, perseguido el culpable o sorprendido en el momento de llevar
los efectos hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es
admissible, éstos, conforme a lo antes expuesto, son hurtos consumados. 86

Ultimately, Cuello Calón attacked the very idea that frustrated theft is actually possible:
La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda de hecho a
la disposición del agente. Con este criterio coincide la doctrina sentada últimamente porla jurisprudencia
española que generalmente considera consumado el hurto cuando el culpable coge o aprehende la cosa y ésta
quede por tiempo más o menos duradero bajo su poder. El hecho de que éste pueda aprovecharse o no de lo
hurtado es indiferente. El delito no pierde su carácter de consumado aunque la cosa hurtada sea devuelta por
el culpable o fuere recuperada. No se concibe la frustración, pues es muy dificil que el que hace cuanto es
necesario para la consumación del hurto no lo consume efectivamente, los raros casos que nuestra
jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos delitos consumados.87 (Emphasis
supplied)

Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the
Spanish Supreme Court decisions on the matter, Cuello Calón actually set forth his own thought that
questioned whether theft could truly be frustrated, since "pues es muy dificil que el que hace cuanto es
necesario para la consumación del hurto no lo consume efectivamente." Otherwise put, it would be difficult to
foresee how the execution of all the acts necessary for the completion of the crime would not produce the
effect of theft.

This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that
obliges us to accept frustrated theft, as proposed in Diño and Flores. A final ruling by the Court that there is no
crime of frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a submission is hardly
heretical in light of Cuello Calón’s position.

Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a fresh
perspective, as we are not bound by the opinions of the respected Spanish commentators, conflicting as they
are, to accept that theft is capable of commission in its frustrated stage. Further, if we ask the question
whether there is a mandate of statute or precedent that must compel us to adopt the Diño and Flores
doctrines, the answer has to be in the negative. If we did so, it would arise not out of obeisance to an
inexorably higher command, but from the exercise of the function of statutory interpretation that comes as
part and parcel of judicial review, and a function that allows breathing room for a variety of theorems in
competition until one is ultimately adopted by this Court.

V.

The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature,
through statute, to define what constitutes a particular crime in this jurisdiction. It is the legislature, as
representatives of the sovereign people, which determines which acts or combination of acts are criminal in
nature. Judicial interpretation of penal laws should be aligned with what was the evident legislative intent, as
expressed primarily in the language of the law as it defines the crime. It is Congress, not the courts, which is to
define a crime, and ordain its punishment.88 The courts cannot arrogate the power to introduce a new element
of a crime which was unintended by the legislature, or redefine a crime in a manner that does not hew to the
statutory language. Due respect for the prerogative of Congress in defining crimes/felonies constrains the
Court to refrain from a broad interpretation of penal laws where a "narrow interpretation" is appropriate.
"The Court must take heed of language, legislative history and purpose, in order to strictly determine the
wrath and breath of the conduct the law forbids." 89

With that in mind, a problem clearly emerges with the Diño/Flores dictum. The ability of the offender to freely
dispose of the property stolen is not a constitutive element of the crime of theft. It finds no support or
extension in Article 308, whether as a descriptive or operative element of theft or as the mens rea or actus
reus of the felony. To restate what this Court has repeatedly held: the elements of the crime of theft as
provided for in Article 308 of the Revised Penal Code are: (1) that there be taking of personal property; (2) that
said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done
without the consent of the owner; and (5) that the taking be accomplished without the use of violence against
or intimidation of persons or force upon things.90

Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of
personal property of another without the latter’s consent. While the Diño/Flores dictum is considerate to the
mindset of the offender, the statutory definition of theft considers only the perspective of intent to gain on the
part of the offender, compounded by the deprivation of property on the part of the victim.

For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the
question is again, when is the crime of theft produced? There would be all but certain unanimity in the
position that theft is produced when there is deprivation of personal property due to its taking by one with
intent to gain. Viewed from that perspective, it is immaterial to the product of the felony that the offender,
once having committed all the acts of execution for theft, is able or unable to freely dispose of the property
stolen since the deprivation from the owner alone has already ensued from such acts of execution. This
conclusion is reflected in Chief Justice Aquino’s commentaries, as earlier cited, that "[i]n theft or robbery the
crime is consummated after the accused had material possession of the thing with intent to appropriate the
same, although his act of making use of the thing was frustrated."91

It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the
concept of "taking" itself, in that there could be no true taking until the actor obtains such degree of control
over the stolen item. But even if this were correct, the effect would be to downgrade the crime to its
attempted, and not frustrated stage, for it would mean that not all the acts of execution have not been
completed, the "taking not having been accomplished." Perhaps this point could serve as fertile ground for
future discussion, but our concern now is whether there is indeed a crime of frustrated theft, and such
consideration proves ultimately immaterial to that question. Moreover, such issue will not apply to the facts of
this particular case. We are satisfied beyond reasonable doubt that the taking by the petitioner was completed
in this case. With intent to gain, he acquired physical possession of the stolen cases of detergent for a
considerable period of time that he was able to drop these off at a spot in the parking lot, and long enough to
load these onto a taxicab.

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment
the offender gains possession of the thing, even if he has no opportunity to dispose of the same. 92 And long
ago, we asserted in People v. Avila:93

x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated into the
physical power of the thief, which idea is qualified by other conditions, such as that the taking must be
effected animo lucrandi and without the consent of the owner; and it will be here noted that the definition
does not require that the taking should be effected against the will of the owner but merely that it should be
without his consent, a distinction of no slight importance.94

Insofar as we consider the present question, "unlawful taking" is most material in this respect. Unlawful taking,
which is the deprivation of one’s personal property, is the element which produces the felony in its
consummated stage. At the same time, without unlawful taking as an act of execution, the offense could only
be attempted theft, if at all.

With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft
cannot have a frustrated stage. Theft can only be attempted or consummated.

Neither Diño nor Flores can convince us otherwise. Both fail to consider that once the offenders therein
obtained possession over the stolen items, the effect of the felony has been produced as there has been
deprivation of property. The presumed inability of the offenders to freely dispose of the stolen property does
not negate the fact that the owners have already been deprived of their right to possession upon the
completion of the taking.

Moreover, as is evident in this case, the adoption of the rule —that the inability of the offender to freely
dispose of the stolen property frustrates the theft — would introduce a convenient defense for the accused
which does not reflect any legislated intent,95 since the Court would have carved a viable means for offenders
to seek a mitigated penalty under applied circumstances that do not admit of easy classification. It is difficult
to formulate definite standards as to when a stolen item is susceptible to free disposal by the thief. Would this
depend on the psychological belief of the offender at the time of the commission of the crime, as implied in
Diño?

Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the
property, the location of the property, the number and identity of people present at the scene of the crime,
the number and identity of people whom the offender is expected to encounter upon fleeing with the stolen
property, the manner in which the stolen item had been housed or stored; and quite frankly, a whole lot more.
Even the fungibility or edibility of the stolen item would come into account, relevant as that would be on
whether such property is capable of free disposal at any stage, even after the taking has been consummated.

All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was
indeed deprived of property by one who intended to produce such deprivation for reasons of gain. For such
will remain the presumed fact if frustrated theft were recognized, for therein, all of the acts of execution,
including the taking, have been completed. If the facts establish the non-completion of the taking due to these
peculiar circumstances, the effect could be to downgrade the crime to the attempted stage, as not all of the
acts of execution have been performed. But once all these acts have been executed, the taking has been
completed, causing the unlawful deprivation of property, and ultimately the consummation of the theft.

Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the
legislated framework of the crime of theft. The Revised Penal Code provisions on theft have not been designed
in such fashion as to accommodate said rulings. Again, there is no language in Article 308 that expressly or
impliedly allows that the "free disposition of the items stolen" is in any way determinative of whether the
crime of theft has been produced. Diño itself did not rely on Philippine laws or jurisprudence to bolster its
conclusion, and the later Flores was ultimately content in relying on Diño alone for legal support. These cases
do not enjoy the weight of stare decisis, and even if they did, their erroneous appreciation of our law on theft
leave them susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not
since found favor from this Court.

We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has
latched the success of his appeal on our acceptance of the Diño and Flores rulings, his petition must be denied,
for we decline to adopt said rulings in our jurisdiction. That it has taken all these years for us to recognize that
there can be no frustrated theft under the Revised Penal Code does not detract from the correctness of this
conclusion. It will take considerable amendments to our Revised Penal Code in order that frustrated theft may
be recognized. Our deference to Viada yields to the higher reverence for legislative intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

G.R. No. 83325 May 8, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DANTE MARCOS y SIBAYAN, accused-appellant.

The Solicitor General for plaintiff-appellee.

Carlito A. Corpuz for accused-appellant.

PARAS, J.:

This is an appeal interposed by the accused Dante Marcos y Sibayan, from the decision * of the Regional Trial
Court, First Judicial Region, Branch V, Baguio City, in Criminal Case No. 2890-R finding him guilty of violation of
Section 4, Article II of Republic Act No. 6425 (Sale and Distribution of Prohibited Drugs) and sentencing him to
suffer the penalty of life imprisonment and to pay a fine of P20,000.00 without subsidiary imprisonment in
case of insolvency.

The dispositive portion of the said decision reads:

WHEREFORE, the Court hereby finds and declares the accused DANTE MARCOS y SIBAYAN
guilty beyond reasonable doubt of the crime of illegal sale and distribution of marijuana as
charged and hereby sentences him to suffer life imprisonment; to pay a fine of P20,000.00,
without subsidiary imprisonment in case of insolvency; and to pay the costs.

In the service of his sentence, the accused shall be credited with his preventive
imprisonment under the terms and conditions prescribed in Article 29 of the Revised Penal
Code, as amended.

The confiscated marijuana leaves (Exhibits "B", "B-1" to "B-9") are hereby declared forfeited
in favor of the Government, and upon the finality of this decision, the Branch Clerk of Court
is directed to turn over the same to the Dangerous Drugs Custodian (NBI), through the Chief,
PC Crime Laboratory, Regional Unit No. 1, Camp Dangwa, La Trinidad, Benguet, for
disposition in accordance with law.

SO ORDERED.

An information was filed by the Second Assistant Fiscal Alberto G. Gorospe at the Regional Trial Court, First
Judicial Region, Branch V, Baguio City on December 3, 1985 charging the accused, Dante Marcos y Sibayan, of
violation of Section 4, Article II of Republic Act No. 6425 (Sale and Distribution of Prohibited Drugs), having
been committed as follows:

That on or about the 4th day of December, 1985, in the City of Baguio, Philippines, and
within the jurisdiction of this Honorable Court, the above- named accused, and without any
authority of law, did then and there willfully, unlawfully and feloniously sell and distribute
dried marijuana leaves weighing about nine (9) kilos, more or less, contained in a big sack,
for P700.00 per kilo or a total of P6,300.00, Philippine Currency, knowing fully well that said
leaves of marijuana is a prohibited drug in violation of the above-mentioned provision of law.

CONTRARY TO LAW.

Upon arraignment, the accused entered a plea of not guilty and trial on the merits ensued.

As gathered from the records, Major Florencio Junio, Commanding Officer of the First Narcotic Regional Unit,
Baguio City, acting upon an information given by a confidential informer that accused-appellant Dante Marcos
was selling marijuana at the Holy Ghost Hill Proper, Baguio City, organized on December 4, 1985 a "buy bust"
operation team composed of A2C Serafin Artizona who was to pose as the buyer of the prohibited stuff, with
Major Junio, Maximo Peralta, Freddie Cortel and Philip de Vera providing the back-up support (Rollo, pp. 58-
59). The testimony of this team which eventually apprehended the accused, constitutes the major part of the
prosecution's evidence

The prosecution presented the testimonies of the following witnesses:

Lt. Carlos V. Figueroa, a forensic chemist at the PC Crime Laboratory, Camp Dangwa, La Trinidad, Benguet,
testified that on January 2, 1986, he received a request for laboratory examination dated December 16, 1985
(Hearing of March 18, 1986; TSN, p. 3; Record, p. 4) for nine (9) bundles of marijuana stuff, weighing 9.2 kilos.
He examined the same by means of the Duquenois-Levine test and the thin-layer chromatography test. Both
tests showed that the bundles were positive for marijuana (Hearing of March 18, 1986; TSN, p. 4; Records, pp.
5-6).
A2C Serafin Artizona, a soldier, assigned at the lst Regional Narcotics Command, Baguio City, testified that on
December 4, 1985, he was assigned by his immediate chief Major Florencio Junio to compose a team to entrap
accused Dante Marcos in the Holy Ghost Proper (Hearing of April 28, 1986; TSN, pp. 13-14; Records, pp. 14-
15). Thereafter, together with the confidential informer they went to the Holy Ghost Proper. He was also
accompanied by the back-up team strategically positioned within the vicinity, namely Major Junio, Maximo
Peralta, Freddie Cortel and Philip de Vera (Hearing of April 28, 1986; TSN, pp. 14-15; Records, pp. 15-16). Once
at the Holy Ghost Proper, he was introduced by the confidential informer as a buyer of marijuana to the
accused who was then standing at the stairway together with his companion. After a while, they were asked to
proceed to the second floor (Hearing of April 28, 1986; TSN, pp. 20-22; Records, pp. 21-23). He then ordered
ten (10) kilos of marijuana priced at seven hundred pesos per kilo (P700.00). The accused left the room to get
the stuff, and returned with a light blue sack and gave it to him. After inspecting the contents of the aforesaid
sack, he gave the prearranged signal to his companion by spitting through the window. Accordingly, the back-
up team went inside the house. Meanwhile, he introduced himself to the accused as a NARCOM agent
(Hearing of April 28, 1986; TSN, pp. 16-17; Records, pp. 17-18). Eventually, the accused was arrested while his
companion was able to evade the arrest. He also testified that he did not execute any affidavit to support his
complaint against the accused (Heating of April 28, 1986; TSN, p. 18; Records, p. 19).

Pat. Maximiano Peralta, an investigator of the lst Narcotics Regional Unit, testified that on December, 1985, he
was a member of the back-up team of A2C Artizona who negotiated with the accused. He rushed to the house
when Major Junio who posted himself near the house of accused gave the prearranged signal that the accused
was already held by A2C Serafin Artizona (Hearing of January 14, 1987; TSN, pp. 31-32; Records, pp. 32-33).
Inside the house, he saw Artizona holding the accused. He further disclosed that the sack contained ten (10)
bundles of marijuana weighing more or less 9-1/2 kilos (Hearing of January 14, 1987; TSN, pp. 33-34; Records,
pp. 34-35). Moreover, he testified that he was the one who prepared the affidavit of arrest and other
supporting papers (Hearing of January 14, 1987; TSN, pp. 34-35; Records, pp. 35-36).

With the presentation of the oral testimonies of the witnesses by the prosecution and the documentary
evidence which consist of: (a) Letter-request for laboratory examination dated December 16, 1985, signed by
Murphy Bugtong, Chief of Narcotics Division, Baguio City Police Station (Exhibit "A", Original Record, p. 195);
(b) Blue sack which contained marijuana leaves (Exhibits "B" -"B-10", ibid., p. 196); (c) Chemistry Report
(Exhibit "C", ibid., p. 197); (d) Sketch (Exhibit "D", ibid., p. 198); (e) Joint Affidavit (Exhibit "E", ibid., p. 199); as
well as the physical evidence, the prosecution rested its case.

On the other hand, the defense presented the accused Dante Marcos as its principal witness who vehemently
denied the accusation against him and claimed instead that the sack of marijuana belonged to a certain Roland
Bayogan.

He testified that he was a security guard of the Freeport and Vito Security Agency and an Architectural drafting
student at the University of Baguio. He was boarding at the ground floor of No. 23-C Sumulong St., a two-
storey boarding house owned by Melita Adase (Hearing of August 24, 1987; TSN, pp. 2-3; Records, pp. 74-75).
On December 4, 1985, he went to his class until 2:30 p.m. Thereafter, he went to his boarding house and
reviewed for his last subject at 3:30 p.m. (Ibid., pp. 4-5; 15; Records, pp. 76-77; 87). However, while reviewing,
Roland Bayogan, a student from Kalinga-Apayao who was occupying a room on the second floor (Ibid., p. 4;
Records, p. 76) knocked at his door and asked him to go to his (Roland's) room to entertain his visitors as he
was to go somewhere for a while. Accordingly, he went to Roland's room, and there met Roland's visitors, an
American, a Filipino and a Negro boy. He was introduced to the three visitors and then Roland left (Ibid., pp. 5-
7; Records, pp. 77-79). Ten (10) minutes after, Roland returned carrying a big sack which he brought near the
bed which was hidden from his view by a curtain. Roland then called for the Negro boy who in turn called for
the American. When the American saw the contents of the sack he overheard him say, "Okay , I'll pay it," at
the same time brought out his money as he emerged from behind the curtain (Ibid., pp. 7-8; Records, pp. 79-
80). He testified that as Roland was sitting on his bed he was called by the Filipino visitor, who held the former.
He was also called by the same visitor who held his hands saying, "Relax lang kayo, this is NARCOM." He saw
the Negro boy jump out of the window while panicked-stricken Roland tried to free himself from the hands of
the Filipino, but the Filipino visitor pulled them both outside the door. When they were near the stairs Roland
was able to free himself. Roland ran downstairs and fled. Suddenly, he heard a shot. The Filipino held on to
him while the American went back to the room and got the sack. Later, accompanied by the Filipino and the
American, they were met by two male persons at the foot of the stairs. He was pulled inside a vehicle and
brought to the police station. He further declared that once inside the said vehicle, he heard one of them say,
"Hindi ito talaga ang target natin, iyong nakatakbo." (Hearing of August 24, 1987; TSN, pp. 8-10,; Records, pp.
80-82). He further stated that A2C Serafin Artizona was not one of the visitors of Roland Bayogan. He and Pat.
Peralta were never at the boarding house during the incident. He also claimed that the sketch of the place as
presented by A2C Artizona is erroneous (Ibid., p. 12; Record, p. 84) and insisted that his only purpose in going
to the room of Roland Bayogan was to entertain the latter's visitors.

On cross examination, the accused admitted that he came to know Roland Bayogan only on November 15,
1985. Their relationship was casual and he had been to the room of Bayogan for the second time only on
December 4, 1985, the day of the incident.

Renato Padua, a law student at the Baguio Colleges Foundation, testified and corroborated the testimony of
the accused that at about 3:30 to 4:00 o'clock p.m. of December 4, 1987, he was reading in the second floor of
No. 23-D Holy Ghost Proper, about 1.5 meters from No. 23-C where the accused Dante Marcos lived (Hearing
of March 11, 1987; TSN, pp. 1-5; Record, pp. 49- 53); that on the said afternoon he heard a commotion at 23-C
which was followed by successive stamping of feet going down to the first floor. He went out from his room
and stayed at the porch of his boarding house. Later, he saw Roland Bayogan, a boarder of 23-C running
toward a small alley (Ibid., pp. 7-10; Record, pp. 55-58). Meanwhile, he saw two persons who were then
standing fire a shot into the air (Ibid., p. 1 0; Record, p. 58). Thereafter, the two men came down to 23-C and
met the accused (Ibid., p. 11; Record, p. 59). At the same time, the accused was being held by a certain man
followed by an American holding a sack. Finally, they boarded a jeep and then left (Ibid., pp. 11-14; Records,
pp. 59-61).

Lastly, the defense presented Raul Bayangdan an AB-BSE student at Baguio Colleges Foundation, a board mate
and province mate of the accused. He testified that he has been a boarder at the first floor of 23-C Holy Ghost
St. from June 1984 to March 1986. He corroborated the testimony of the accused as to the boarders of that
house including Roland Bayogan and his sister Anita. He declared that he came to know about the incident
from Melita Adasen and Renato Padua, a neighbor, when he went home from school. He also learned that
Roland Bayogan ran away and never returned. He asserted that he has no knowledge of the incident except
that which has been told to him (Hearing of February 8, 1988; TSN, pp. 2- 9; Records, pp. 94-100).

The trial court gave more weight to the evidence of the prosecution and found the accused-appellant Dante
Marcos guilty as charged.

Hence, this appeal.

On October 28, 1988, accused-appellant through his counsel filed his brief (Rollo, p. 35), while on May 19,
1989, the appellee's brief was filed (Rollo, p. 54).

The crucial issue of this case is whether or not there is instigation or entrapment of the accused.

Appellant contends that there was an instigation or even frame up and not a real entrapment. The "buy-bust"
operation team who went to the place does not know the accused. In fact, the alleged buyer had to be
introduced. There was no marijuana yet when the authorities came or when the alleged poseur buyer came to
buy the prohibited drug. Thus, the accused was not about to commit a crime or committing a crime.

The contention is without merit.

The testimony of Artizona, the poseur buyer, was clear and convincing and demonstrated that the accused
needed no instigation or prodding to commit a crime he would not otherwise have committed. Noteworthy is
the fact that the accused, as gathered from the records, had a ready supply of marijuana for sale and
disposition to anyone willing to pay the price asked for the prohibited material. Thus, the acts of the arresting
officers here constituted entrapment, a process not prohibited by the Revised Penal Code (People v. Sanchez,
G.R. No. 77588, May 12, 1989; People v. Borja G.R. No. 71838, February 26, 1990).
It must be noted that in instigation, where the officers of the law or their agents incite, induce, instigate or lure
an accused into committing an offense, which he otherwise would not commit and has no intention of
committing, the accused cannot be held liable. But in entrapment, where the criminal intent or design to
commit the offense charged originates from the mind of the accused and law enforcement officials merely
facilitate the commission of the offense, the accused cannot justify his conduct. Instigation is a "trap for the
unwary innocent." Entrapment is a trap for the unwary criminal (Cabrera v. Judge Pajares, Adm. Mat. R-278-
RTJ & R 309-RTJ, May 30, 1986, En Banc, Per Curiam, 142 SCRA 124).

In entrapment, the entrapper resorts to ways and means to trap and capture a lawbreaker while executing his
criminal plan. On the other hand, in instigation the instigator practically induces the would-be defendant into
committing the offense, and himself becomes a co-principal (People v. Natipravat, infra). Entrapment is no bar
to prosecution and conviction while in instigation, the defendant would have to be acquitted (People v.
Lapatha, 167 SCRA 159).

The difference in the nature of the two lies in the origin of the criminal intent. In entrapment, the means
originate from the mind of the criminal. The idea and the resolve to commit the crime come from him. In
instigation, the law enforcer conceives the commission of the crime and suggests to the accused who adopts
the idea and carries it into execution. The legal effects of entrapment do not exempt the criminal from liability.
Instigation does (Araneta v. Court of Appeals, 142 SCRA 534 [1986]).

The mere fact that the authorities deceived the appellants into believing that the former were buyers of
heroin does not exculpate the latter from liability for selling the prohibited drugs. The police can legitimately
feign solicitation to catch criminals who habitually engage in the commission of the offense (People v.
Natipravat, 145 SCRA 483 [1986]).

Moreover, as noted by this Court, the defense that the accused was framed by the apprehending officer can
be easily fabricated and not acceptable for accused being a drug pusher or seller almost always uses such
defense. (People v. Francia, 154 SCRA 694 [1987]). For the defense of having set up or framed up to prosper,
the evidence adduced must be clear and convincing. Like alibi, it is a weak defense, that is easy to concoct and
is difficult to prove (People v. Nabunat, No. 84392, February 7, 1990, First Division, Gancayco, J.).

But the more important consideration is the fact that the appellant was positively identified by the
prosecution witnesses. This should prevail over his denial and inadmission of having committed the crime for
which he was charged, since greater weight is generally accorded to the positive testimony of the prosecution
witnesses than the accused's denial (People v. de Jesus, 145 SCRA 52 [1986]; People v. Khan, 161 SCRA 406
[1988]; People v. Marilao, G.R. No. 71681, September 5,1989). As between the positive declaration of the
prosecution witnesses and the negative statement of the accused, the former deserves more credence (People
v. Melgar, G.R. No. 75268, 157 SCRA 718; People v. Marilao, G.R. No. 71861, September 5, 1989). Moreover,
even if the appellant denied the participation in the crime, his presence during the negotiation and actual
delivery indicates a common purpose with other accused to sell marijuana (People v. Natipravat, supra).

In the case at bar, the findings of the trial court are as follows:

On the other hand, the accused's pretension that he went to Roland's room that afternoon
of December 4, 1985 only to entertain the latter's visitors lacks appeal to reason. Considering
his own admission that he met Roland only on November 15, 1985; that he had gone to
Roland's room only once before December 4, 1985; that they are not even townmates as
Roland is from Kalinga-Apayao while the accused is from Pinged Sabangan Mt. Province,
there is simply no discernible special relationship between them that could have moved
Roland to pick on the accused as his surrogate to entertain his visitors. What is more, the
accused had a scheduled examination at 3:30 o'clock for which he had to review. Why should
he accede to Roland's request and thereby lose precious time he badly needed for his
review? To top it all, even as Roland had already returned to attend to his visitors, the
accused still did not leave. The Court is thus inclined to believe that Roland and the accused
were together that afternoon because both were engaged in the illegal trafficking of
marijuana.
It must be pointed out that ownership and possession are not indispensable elements of the crime. The mere
act of selling or even acting as broker in the sale of marijuana and other prohibited drugs consummates the
crime (People v. Madarang, 147 SCRA 123 [1987]).

Furthermore Artizona's testimony was corroborated by the "buy-bust" operation team especially Pat. Maximo
Peralta who confirmed that appellant was truly a marijuana dealer. The commission of the offense of illegal
sale of marijuana requires merely the consummation of the selling transaction (People v. Macuto, G.R. No.
80112, August 25, 1989). In the case at bar, the appellant handed over the blue sack containing the ten kilos of
marijuana upon the agreement with Artizona to exchange it for money. The circumstances show that there
was an agreement between the poseur-buyer and the appellant to consummate the sale. The fact that the
appellant returned with the amount of marijuana corresponding to the aforesaid price suffices to constitute if
not sale, then delivery or giving away to another and distribution of the prohibited drug punishable under
Section 4, Article 11 of Republic Act 6425 (People v. Rodriguez, April 25, 1989, G.R. No. 81332; People v.
Tejada, G.R. No. 81520, February 21, 1989). What is important is the fact that the poseur-buyer received the
marijuana from the appellant and that the contents were presented as evidence in court. Proof of the
transaction suffices (People v. Macuto, supra).

Neither can the appellant aver that no consideration or payment was made. In the case of People v. Tejada,
supra, this Court held that so long as the marijuana actually given by the appellant was presented before the
lower court the absence of the marked money does not create a hiatus in the prosecution's evidence (People
v. Teves, G.R. No. 81332, April 25, 1989). Recently, this Court ruled:

It is true that police officers did not have the amount of P1,600 with them to buy marijuana
from the appellants during the incident. Be that as it may, it was not indispensable for their
operation. Sgt,. Raquidan went through the motion as a buyer and his offer was accepted by
the appellant who produced and delivered the marijuana. There was no need to hand the
marked money to the appellants in the payment thereof. The crime was consummated by
the delivery of the goods. (People v. Galtongo-o, 168 SCRA 716 [1988]).

The alleged contradiction in the date of the affidavit or the fact that prosecution witnesses Artizona and
Peralta did not know the number and owner of the raided house will not impair their testimonies. There is no
cogent reason for the witnesses to know the number nor the owner of the house at Holy Ghost Hills in
Sumulong Street because Artizona who posed as a buyer was accompanied by a confidential informer, who
was familiar with the place. It has been ruled that contradictions in the testimonies of the prosecution
witnesses not on material points is not fatal (People v. Pulo, 147 SCRA 551 [1987]). The doctrinal jurisprudence
has consistently held that minor contradictions are to be expected but must be disregarded if they do not
affect the basic credibility of the evidence as a whole (People v. Ancheta, 148 SCRA 178; People v. Natipravat,
145 SCRA 483; People v. Reriodica, Jr., September 29, 1989).

Conversely, the actuations of the appellant during his arrest during which he did not make a protest, indicates
his Unusually submissive stance of the appellant after his entrapment and absence of vigorous protest when
he was arrested, destroy his alleged innocence (People v. Madarang, supra).

Appellant failed to show that the police officers were actuated by any improper motive in testifying as they
did. There is nothing in the records to suggest that the arrest was motivated by any reason other than the
desire of the police officers to accomplish their mission. Courts generally give full faith and credit to police
officers for they are presumed to have performed their duties in a regular manner (Rule 131, Section 5(m),
Rules of Court; People v. Lamong et al., G.R. No. 82373, April 17, 1989; People v. Gamayon, 121 SCRA 642;
People v. Policarpio, 158 SCRA 85; People v. Patog, G.R. No. 69620, September 24, 1989; People v. Natipravat,
supra; People v. de Jesus, supra). As such, their testimonies cannot be discredited where no motive is shown
why they would frame up the appellant (People v. Ranola, April 12, 1989, No. 71752; People v. Line, 71 SCRA
249 [1976]).

Well-settled is the rule that findings of the trial court on the issue of credibility of the witnesses' testimonies
are accorded great weight and respect on appeal because the trial judge has first hand opportunity to examine
and observe the conduct and demeanor of the witnesses during the giving of their testimonies (People v.
Rodriguez, G.R. No. 81332, April 25, 1989; People v. Tejada, supra; People v. Abonada, G.R. No. 50041, January
27, 1989; People v. Turla, G.R. No. 70270, November 11, 1988; People v. Aboga, 147 SCRA 404 [1987]).

PREMISES CONSIDERED, the decision appealed from is hereby AFFIRMED.

SO ORDERED.

FIRST DIVISION

[G.R. No. L-3540. March 19, 1907. ]

THE UNITED STATES, Plaintiff-Appellee, v. JOSE LOPEZ BASA, Defendant-Appellant.

Leocadio Joaquin, for Appellant.

Attorney-General Araneta, for Appellee.

SYLLABUS

1. MUNICIPAL CODE; INTEREST IN CONTRACTS. — The submission, by a member of a municipal council, of a

proposition to do certain work for the municipality, which proposition was never accepted, is not a violation of
article 28 of the Municipal code, which punishes an officer of a municipality who becomes interested in any
contract work of the municipality.

2. ACTS OF THE COMMISSION; PENAL CODE. — The last paragraph of article 3 of the Penal Code relating to
attempts to commit crimes is not applicable to crimes defined by laws of the Commission.

DECISION

WILLARD, J. :

The municipality of Gasan, on the Islands of Marinduque advertised for proposals to furnish the municipality
with street lamps. The defendant, in answer to such advertisement, submitted a proposition in writing by
which he agreed to furnish the municipality the lamps at a price therein named. He was at that time a member
of the municipal council.

Section 28 of the Municipal Code (Act No. 82) is as follows:jgc:chanrobles.com.ph

"(a) No municipal officer shall be directly or indirectly interested in any contract work, or cockpits, or other
permitted games and amusements or business of the municipality, or in the purchase of any real estate or any
other property belonging to the corporation.

"(b) Any officer violating the provisions of this section shall, upon a two-thirds vote of all the members of the
council, be removed from office; and, upon trial and conviction in a court of competent jurisdiction, shall be
imprisoned for not less than six months and not more than two years."cralaw virtua1aw library

The court below held that the submission of this proposition by the defendant, when he was a member of the
council, was a violation of section 28, and he was convicted therefor.

We agree with the Attorney-General that the conviction can not be sustained. The offer which the defendant
made was never accepted by the municipality. He therefore never became "interested in any contract work or
business of the municipality."cralaw virtua1aw library
Section 28 does not punish an attempt to commit this crime. In offenses created by acts of the Commission,
the last paragraph of article 3 of the Penal Code relating to attempts to commit crimes is not applicable.

The judgment of the court below is reversed, and the defendant is acquitted of the complaint, with the costs
of both instances de oficio.

After the expiration of ten days let judgment be entered in accordance herewith and ten days thereafter let
the case be remanded to the court from whence it came for execution. So ordered.

Arellano, C.J., Torres, Mapa, Johnson, and Tracey, JJ., concur.

G.R. No. L-26298 January 20, 1927

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
JULIAN ERINIA Y VINOLLA, defendant-appellant.

Hermogenes Caluag for appellant.

Attorney-General Jaranilla for appellee.

OSTRAND, J.:

This is an appeal from a judgment of the Court of First Instance of Manila finding the defendant guilty of the
crime of consummated rape and sentencing him to suffer seventeen years, four months and one day
of reclusion temporal, with the accessory penalties provided by law and to pay the costs.

The victim of the crime was a child of 3 years and 11 months old and the evidence is conclusive that the
defendant endeavored to have carnal intercourse with her, but there may be some doubt whether he
succeeded in penetrating the vagina before being disturbed by the timely intervention of the mother and the
sister of the child. The physician who examined the genital organ of the child a few hours after the commission
of the crime found a slight inflammation of the exterior parts of the organ, indicating that an effort had been
made to enter the vagina, but in testifying before the court he expressed doubts as to whether the entry had
been effected. The mother of the child testified that she found its genital organ covered with a sticky
substance, but that cannot be considered conclusive evidence of penetration.

It has been suggested that the child was of such tender age that penetration was impossible; that the crime of
rape consequently was impossible of consummation; and that, therefore, the offense committed should be
treated only as abusos deshonestos. We do not think so. It is probably true that a complete penetration was
impossible, but such penetration is not essential to the commission of the crime; it is sufficient if there is a
penetration of the labia. In the case of Kenny vs. State ([Tex. Crim. App.], 79 S. W., 817; 65 L. R. A., 316) where
the offended party was a child of the age of 3 years and 8 months the testimony of several physicians was to
the effect that her labia of the privates of a child of that age can be entered by a man's male organ to the
hymen and the defendant was found guilty of the consummated crime rape.

There being no conclusive evidence of penetration of the genital organ of the offended party, the defendant is
entitled to the benefit of the doubt and can only be found guilty of frustrated rape, but in view of the fact that
he was living in the house of the parents of the child as their guest, the aggravating circumstance of abuse of
confidence existed and the penalty must therefore be imposed in its maximum degree.

The judgment appealed from is modified and the defendant-appellant is hereby found guilty of the crime of
frustrated rape and is sentenced to suffer twelve years of prision mayor, with the accessory penalties
prescribed by law, and with the costs in both instances. So ordered.

Johnson, Street, Villamor, Romualdez and Villa-Real, JJ., concur.

G.R. No. 123070 April 14, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
CASIANO BUNTAG alias "CIANO" and DIEGO BONGO, appellants.

DECISION

CALLEJO, SR., J.:

This is an appeal from the Decision1 of the Regional Trial Court of Tagbilaran City, Branch 3, in Criminal Case
No. 7729, convicting the appellants Casiano Buntag alias "Ciano" and Diego Bongo of murder, sentencing each
of them to reclusion perpetua, and directing them to jointly indemnify the heirs of the victim Berno Georg Otte
the sum of P50,000 as moral damages.

The Indictment

The appellants were charged with murder in an Information, the accusatory portion of which reads:

That on or about the 9th day of February, 1992, in the municipality of Panglao, province of Bohol,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent
to kill and without any justifiable cause, conspiring, confederating and mutually helping each other,
with treachery by the suddenness and unexpectedness of the acts, the victim who was unarmed
being then unaware thereof, did then and there willfully, unlawfully and feloniously attack, assault
and stab with the use of a bladed instrument one Berno Georg Otte (a German national), hitting and
injuring the latter on his chest, thereby causing his immediate death; to the damage and prejudice of
the heirs of the victim in the amount to be proved during the trial.

Acts committed contrary to the provisions of Art. 248 in relation to Art. 14 all of the Revised Penal
Code as amended.2

The Case for the Prosecution

Before February 8, 1992, Berno Georg Otte, 3 a German national and a tourist, checked in at the Alona Ville
Beach Resort located in Panglao, Bohol. The resort manager, Herma Clarabal Bonga, 4 assigned Otte to Room
No. 95 and gave the latter his room key.

On February 8, 1992, Otte took his dinner at the resort’s restaurant. Bonga talked to him regarding the disco
which was about to unfold that night in lower Tawala near the Catibo Chapel. 6

At about 10:00 p.m., Bonga went to the disco party where she saw Otte seated at one of the tables. 7 She
noticed that he had some companions whom she failed to recognize.8

Isidro A. Mihangos, a 19-year-old student, and Benigno "Ninoy" Guigue were also at the disco. At around 2:00
a.m. of February 9, 1992, Mihangos and Guigue decided to call it a night and walked home, with their
respective bicycles at their sides.9 At the crossing to the Alona Beach, they saw a man lying on the road but did
not recognize him. They walked past the prostrate man. When they were about twenty-five meters10 away
from the body by the road, they met Casiano Buntag and Diego Bongo, their barriomates. 11 11 Suddenly,
Buntag and Bongo jointly and simultaneously lunged at them. Afraid for their lives, Mihangos and Guigue fled
and sought refuge in the house of Guigue’s uncle, Aquilino Bongo. 12 12 In the process, they left their bicycles
behind. Aquilino Bongo then accompanied Mihangos and Guigue to where they left their bicycles. Mihangos
and Guigue retrieved their bicycles, but Buntag and Bongo were no longer there.

At around 5:30 a.m. of February 9, 1992, the police station of Panglao, Bohol, received a report by radio call
about a man, believed to be dead, lying at the side of the crossroad near the Alona Beach. 13 13 PO1 Yolando E.
Hormachuelos, together with PO1 Mauro Sumaylo and PO1 Dominie Ragusta,14 14 proceeded to the crime
scene. They were accompanied by the Municipal Health Officer, Dr. Julita L. Cogo, who confirmed that the man
died due to a stab wound.15 15 The policemen found a hunting knife about one meter away from the
body.16 16 Constancio Geoivencal took pictures of the cadaver. Hormachuelos took custody of the knife. 17 17

In the course of their investigation, the policemen learned that Mihangos and Guigue had seen the dead body
by the road. Hormachuelos fetched Mihangos and Guigue from their houses and brought them to the road
where the body of Otte was found. Mihangos and Guigue narrated how they found the body at around 2:00
a.m. that day, as well as their encounter with Bongo and Buntag.

At about 1:00 p.m. that day, Hormachuelos took appellant Bongo to the police station and investigated him
without the assistance of counsel. Bongo admitted that he took Otte’s key to Room No. 9 and hid it near their
house. He then drew a sketch showing the place where he hid the key, at the back of their house. Bongo also
admitted that he was with appellant Casiano Buntag. The policemen went to Bongo’s house and recovered the
key to Otte’s room as indicated by Bongo in his sketch.

At 2:00 p.m., Guigue arrived at the police station and gave his statement to Hormachuelos. 18 18 At 3:00 p.m.,
Mihangos gave his statement to SPO1 Proculo Bonao.19 19 Hormachuelos then took custody of Casiano Buntag
and brought him to the police station where he was asked about his involvement in the killing of Otte without
the assistance of counsel. However, Buntag opted to keep silent. When apprised that Diego Bongo had
implicated him, Buntag, this time with the assistance of his counsel, Atty. Nerio G. Zamora, gave a statement
on February 13, 1992 to a police investigator. He stated that at 1:00 a.m. on February 9, 1992, he was walking
back home from the disco place where he caught up with Diego Bongo and Otte at the crossing of Alona
Beach. He saw Bongo poke a knife at Otte. Bongo then ordered him to box Otte but he refused, and moved
back about three meters. Bongo himself then boxed Otte three times on the face. When Otte fell to the
ground, Bongo stabbed him on the chest. Buntag also stated that he then ran back home, but Bongo followed
him and cautioned him not to reveal the incident to anybody or else he would be implicated. 20 Buntag
subscribed and swore to the truth of his statement on February 21, 1992 before Judge Antonio Sarce of the
Municipal Circuit Trial Court.

In the meantime, Municipal Health Officer Dr. Julita Lood-Cogo performed an autopsy on the cadaver of Otte
and submitted her Post-Mortem Report which contained the following findings:

Stab wound, anterior chest, right, at the level of the 4th rib, approx. 2 cms. x 1 cm. in size, with a
depth of approx. 12 cms., directed upwards and medially, with a complete fracture of the 4th rib,
right, involving a portion of the right lung and base of the heart.

Cause of death:

CARDIORESPIRATORY ARREST DUE TO HEMORRHAGE, SECONDARY TO STAB WOUND, ANTERIOR

CHEST, RIGHT.21

On March 7, 1992, a criminal complaint for murder was filed against appellants Bongo and Buntag with the
Municipal Circuit Trial Court. Attached to the records was Buntag’s sworn statement dated February 21, 1992.
Only appellant Bongo submitted his counter-affidavit on February 27, 1992, subscribed and sworn to before
Judge Antonio Sarce,22 where he confirmed (a) Buntag’s account in his sworn statement before Judge Sarce
that they were with Otte at 1:00 a.m. on February 9, 1992 at the crossing towards Alona Beach Resort, and (b)
that he was armed with a hunting knife. He further stated therein that while at the crossing, Buntag and Otte,
who were both drunk, had an altercation and that he tried to pacify them but in the process, Buntag pulled out
his (Bongo’s) hunting knife from his waist and stabbed Otte with it.23

After the requisite preliminary investigation, the MCTC issued a resolution finding probable cause against the
appellants for murder and issued warrants for their arrest. The court found Buntag’s sworn statement and
Bongo’s counter-affidavit self-serving.

On June 4, 1992, the day of the appellant’s arraignment in the Regional Trial Court, appellant Buntag, through
counsel, Atty. Nerio G. Zamora, filed a "Motion to Discharge (him) to be a Witness for the Prosecution,"
alleging inter alia:

1) That there is absolute necessity for the testimony of said accused whose discharge is requested;

2) That there is no other direct evidence available for the proper prosecution of the offense
committed, except the testimony of said accused, as can be shown by the affidavit of said accused in
relation to the affidavits or sworn statements of Ponciano Horcerada, Isidro Mihangos, Benigno
Guigue, Alfredo Guioguio, and PO1 Yolando [E.] Hormachuelos;

3) That the testimony of herein accused can be substantially corroborated in its material points;

4) That the said accused does not appear to be the most guilty; and

5) That the said accused has not at any time been convicted of any offense involving moral turpitude;

6) That herein accused-movant hereby expresses his consent to be a witness for the government. 24

However, the prosecution opposed the motion on the ground that both accused were equally guilty. On June
8, 1992, the court issued an Order denying the motion, and the appellants, assisted by their respective
counsels, entered pleas of not guilty.25

During the trial, the prosecution presented Judge Antonio G. Sarce who testified that he conducted the
preliminary examination of the case and identified both Buntag’s sworn statement and Bongo’s counter-
affidavit as subscribed and sworn to before him (Judge Sarce) in his chambers.

After presenting all its witnesses, the prosecution offered in evidence the hunting knife, 26 the key to room no.
9 of the beach resort,27 the sworn statement of Buntag,28 and Bongo’s counter-affidavit29 to prove that both
appellants conspired to kill the victim and that they in fact killed the victim, and as part of the testimony of
Judge Sarce. Both appellants objected to the admission of the said sworn statements and counter-affidavit
solely on the ground that the statements executed by one accused was hearsay as to the other accused. 30 By
way of rejoinder, the prosecution alleged as follows:

1. That exhibits A, B, C, D, E and all its submarkings are all relevant, pertinent and material evidence
against the accused in the above-entitled case, therefore, admissible in evidence;

2. That exhibits F and all its submarkings are not hearsay and do not violate the res inter alios acta
rule because they are principally offered against accused Casiano Buntag, the affiant. The sworn
statement of Casiano Buntag is offered mainly as admission of said accused Casiano Buntag;

3. That exhibits G and all its submarkings are not hearsay and do not violate the res inter alios acta
rule because they are principally offered against accused Diego Bongo, the affiant. The counter-
affidavit of Diego Bongo is offered mainly as admission of said accused Diego Bongo.

WHEREFORE, it is most respectfully prayed of this Honorable Court to admit in evidence all the
prosecution’s exhibits formally offered, for the purpose for which they are being offered.31
The court admitted the documentary and object evidence of the prosecution. The appellants opted not to
adduce any evidence on their behalf. Instead, they filed, without leave of court, a "Motion to Acquit." On June
7, 1993, the court issued an Order denying the motion.

On August 14, 1995, the trial court rendered judgment finding both the appellants guilty of the crime charged.
The decretal portion of the decision of the trial court reads:

FROM THE FOREGOING PREMISES, this Court renders judgment finding the two (2) accused Casiano
Buntag, alias Ciano, and Diego Bongo guilty beyond reasonable doubt of the crime of MURDER, an act
committed contrary to the provisions of Article 248, in relation to Article 14 of the Revised Penal
Code, as amended, and does hereby sentences each one of them to the penalty of Reclusion
Perpetua, with all the accusatory penalties imposed by law.

There being no evidence disclosed as to the civil liability, this Court, therefore, limits in providing that
the accused shall pay jointly the heirs of the deceased Berno Georg Otte the amount of Fifty
Thousand Pesos (P50,000.00), by way of moral damages, but without subsidiary imprisonment in case
of insolvency.

Without pronouncement as to costs.

SO ORDERED.32

The trial court relied, inter alia, on the sworn statement of Buntag dated February 21, 199233 and the counter-
affidavit of Bongo34 in convicting them of the crime charged. Both the appellants appealed the decision.

Although the appellants enumerated separate issues in their briefs, the same may be synthesized into three
issues, namely: (a) whether or not the prosecution proved beyond reasonable doubt that they conspired to kill
the victim Otte and that they, in fact, killed him; (b) whether or not the appellants are guilty of murder; and,
(c) whether or not the appellants are liable for moral damages to the heirs of the victim. Appellant Bongo’s
contention that he was deprived of his right to due process on his claim that the transcripts of the respective
testimonies of Dr. Julita Cogo, SPO1 Bonao and resort manager Bonga were not transmitted to this Court is
belied by the records. In a Resolution dated September 11, 2000, the Court declared that, based on the
records, the transcripts of stenographic notes in this case were already complete. 35

The appellants contend that the prosecution failed to adduce direct or circumstantial evidence to prove that
they conspired to kill the victim, and that they, in fact, killed him. They argue that although the prosecution
adduced circumstantial evidence consisting of the extrajudicial sworn statement of appellant Buntag and the
counter-affidavit of appellant Bongo, such evidence is utterly insufficient to prove their guilt beyond
reasonable doubt.

Furthermore, according to the appellants, the admissions made by appellant Buntag in his sworn statement
are binding on him only. Being prejudicial to appellant Bongo, such admissions are not inadmissible against the
latter unless repeated in open court by appellant Buntag, thus, affording appellant Bongo the right to cross-
examination. Likewise, the admissions of appellant Bongo in his sworn statement are inadmissible against
appellant Buntag, unless the former repeated his admissions during the trial, affording the latter an
opportunity to cross-examine the said appellant. The appellants further aver that since they opted not to
testify on their respective statements, there was no opportunity for cross-examination. Consequently, the
admissions made by one appellant in his sworn statement are hearsay evidence against the other appellant,
and vice versa. In fine, the appellants contend that the trial court should have acquitted them of the crime
charged.

We agree with the appellants that the prosecution failed to adduce direct evidence that they conspired to kill
Otte and that they, in fact, stabbed and killed the victim. However, we find and so hold, after an incisive review
of the records, that the prosecution adduced sufficient circumstantial evidence to prove the guilt of the
appellants beyond reasonable doubt.
Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons agree to
commit a crime and decide to commit it. Direct proof is not essential to establish conspiracy, and may be
inferred from the collective acts of the accused before, during and after the commission of the
crime.36 Conspiracy can be presumed from and proven by acts of the accused themselves when the said acts
point to a joint purpose and design, concerted action and community of interests. 37 It is not necessary to show
that all the conspirators actually hit and killed the victim. Conspiracy renders all the conspirators as co-
principals regardless of the extent and character of their participation because in contemplation of law, the act
of one conspirator is the act of all.38

The crime charged may also be proved by circumstantial evidence, sometimes referred to as indirect or
presumptive evidence. Circumstantial evidence is sufficient on which to anchor a judgment of conviction if the
following requisites are established: (a) there is more than one circumstance; (b) the facts from which the
inferences are derived have been established; and, (c) the combination of all the circumstances is such as to
warrant a finding of guilt beyond reasonable doubt. 39

In People v. Delim,40 we held, thus:

The prosecution is burdened to prove the essential events which constitute a compact mass of
circumstantial evidence, and the proof of each being confirmed by the proof of the other, and all
without exception leading by mutual support to but one conclusion: the guilt of the accused for the
offense charged. For circumstantial evidence to be sufficient to support a conviction, all the
circumstances must be consistent with each other, consistent with the hypothesis that accused is
guilty and at the same time inconsistent with the hypothesis that he is innocent, and with every other
rational hypothesis except that of guilt. If the prosecution adduced the requisite circumstantial
evidence to prove the guilt of the accused beyond reasonable doubt, the burden of evidence shifts to
the accused to controvert the evidence of the prosecution. 41

In convicting the appellants of the crime charged, the trial court relied not only on the counter-affidavit of
appellant Bongo42 and appellant Buntag’s sworn statement, 43 but also on the other evidence on record,
namely, the knife used in killing the victim, 44 the key to Otte’s room,45 and the collective testimonies of the
other witnesses of the prosecution.

The general rule is that the extrajudicial confession or admission of one accused is admissible only against the
said accused but is inadmissible against the other accused.46 The same rule applies if the extrajudicial
confession is made by one accused after the conspiracy has ceased. However, if the declarant/admitter
repeats in court his extrajudicial confession during trial and the other accused is accorded the opportunity to
cross-examine the admitter, such confession or admission is admissible against both accused.47 The erstwhile
extrajudicial confession or admission when repeated during the trial is transposed into judicial admissions.

In criminal cases, an admission is something less than a confession. It is but a statement of facts by the
accused, direct or implied, which do not directly involve an acknowledgment of his guilt or of his criminal
intent to commit the offense with which he is bound, against his interests, of the evidence or truths
charged.48 It is an acknowledgment of some facts or circumstances which, in itself, is insufficient to authorize a
conviction and which tends only to establish the ultimate facts of guilt. 49 A confession, on the other hand, is an
acknowledgment, in express terms, of his guilt of the crime charged.50

In this case, appellant Buntag made extrajudicial admissions against his interest in his sworn statement, and
not a confession. So did appellant Bongo in his counter-affidavit. Such admissions in the form of affidavits,
made in the Municipal Trial Court in the course of its preliminary investigation, are high quality
evidence.51 MCTC Judge Antonio Sarce testified on the said sworn statement and counter-affidavit and was
cross-examined.52 Moreover, some of the extrajudicial inculpatory admissions of one appellant are identical
with some of the extrajudicial inculpatory admissions of the other, and vice versa. This corroborates and
confirms their veracity. Such admissions, made without collusion, are akin to interlocking extrajudicial
confessions. They are admissible as circumstantial evidence against the other appellant implicated therein to
show the probability of his participation in the commission of the crime and as corroborative evidence against
him.53 The Court rejects the appellants’ contention that they were deprived of their right to cross-examine the
other on the latter’s admissions against the other. Through their common counsel, they opted not to testify
and be cross-examined on their respective statements by the prosecution. They opted to file a motion to
acquit. Besides, they had opportunity to cross-examine Judge Sarce before whom they swore to the
truthfulness of their statements.54

In this case, the prosecution adduced the following circumstantial evidence which constitutes proof beyond
reasonable doubt that the appellants, indeed, conspired to kill and did kill the victim:

1. Appellant Buntag admitted, in his sworn statement,55 that, at about 1:00 a.m. on February 9, 1992, he was in
the company of appellant Bongo and the victim Otte at the crossing of Alona Beach, and that appellant Bongo
was armed with a hunting knife. Appellant Buntag identified the victim through the latter’s picture, as well as
the hunting knife used in the killing.56 Appellant Bongo, in his counter-affidavit, confirmed the truth of
appellant Buntag’s admissions and also admitted that on the said date, time and place, he was with appellant
Buntag and the victim, and that he was armed with a hunting knife which was tucked on his waist.

2. The appellants admitted in their respective statements that on the said occasion, Otte died from a stab
wound caused by a hunting knife.

3. Appellant Bongo admitted in his counter-affidavit that he took the key to the victim’s room and hid it near
their house where the policemen found it.

4. While both appellants were within the periphery of the situs criminis, Mihangos and Guigue sauntered by
with their bicycles at their sides. Suddenly, the appellants jointly and simultaneously lunged at them, causing
Mihangos and Guigue to believe that their lives were in peril, impelling them to run for their lives and seek
sanctuary in the house of Guigue’s uncle, Aquilino Bongo. By the time Mihangos and Guigue returned to
the situs criminis to retrieve their bicycles, the appellants had already left.

5. In his sworn statement, appellant Buntag admitted that after the victim was stabbed, he and appellant
Bongo fled from the situs criminis. This was corroborated by the testimony of Mihangos. The presence of both
appellants at the situs criminis and their flight from the scene are strong indicia of their participation in the
commission of the crime and their complicity therein.57 Appellant Bongo opted not to testify or adduce
evidence to controvert the testimony of Mihangos and the admissions of the appellant prejudicial to him.

6. The hunting knife of appellant Bongo which was used to kill the victim was left at the scene of the crime
where the policemen recovered it shortly thereafter.

7. The appellants admitted in their respective sworn statements that the victim was stabbed once with a
hunting knife. These admissions were corroborated by Dr. Julita Cogo’s finding that the victim was stabbed
once on the anterior chest area.58 The doctor testified that the stab wound could have been caused by a sharp-
edged weapon.59

8. Neither of the appellants brought the victim to the hospital for immediate medical attendance and
operation.

9. Although the appellants pointed to the other as the assailant in their respective statements, neither of them
reported the stabbing to the police authorities and claimed that the other killed the victim.

10. Neither of the appellants took the witness stand to deny any involvement in the killing of the victim. The
evidence of the prosecution, thus, stands unrebutted.

The appellants cannot rely on the exculpatory portions of their respective statements as basis for their
acquittal of the crime charged. In the case of appellant Buntag, he avers in his sworn statement that he was
ordered by appellant Bongo to box the victim and when he refused, appellant Bongo himself boxed and
stabbed the victim with the hunting knife. When appellant Buntag fled from the scene and went back home,
appellant Bongo followed and warned him not to divulge the incident so that he would not be implicated. For
his part, appellant Bongo turned the tables on appellant Buntag and claimed in his counter-affidavit that the
latter snatched the hunting knife from his waist and stabbed the victim in the heat of their altercation. The
stabbing was so sudden, he insists, that he was unable to stop appellant Buntag from stabbing the victim.

We are not persuaded by the claims of the appellants for the following reasons:

First. Contrary to the claim of appellant Buntag that appellant Bongo boxed the victim, the necropsy report of
Dr. Cogo failed to show that the victim’s body sustained hematoma, bruises or contusions. The findings of the
doctor must prevail as against the bare statements of the appellants.

Second. Appellant Buntag admitted in his sworn statement that before he and appellant Bongo could leave
the situs criminis after the victim was stabbed, Mihangos and Guigue arrived. The appellants lunged jointly and
simultaneously at the two teenagers which so terrified the latter that they fled for their lives. If, as appellant
Buntag claims, he had nothing to do with the stabbing of the victim, he should have sought the help of the
teenagers, brought the victim to the hospital and reported to the police authorities that it was appellant
Bongo who stabbed the victim. Appellant Buntag failed to do so. Neither did appellant Bongo seek the help of
the two teenagers and report the stabbing to the police authorities. Both appellants’ unexplained omission is
another indication of their conspiracy and complicity in the crime charged.

Third. Appellant Bongo took the key from the body of the victim and hid it near their house where the
policemen found it. The appellant has not explained why he had the key to the victim’s room and hid it near
their house. He owned the hunting knife used in stabbing the victim. He knew or should have known that
sooner or later, the policemen would trace the knife to him; and yet, appellant Bongo failed to report the
incident to the police authorities and surrender the knife to them.

Fourth. Appellant Bongo denied involvement in the killing and pointed to appellant Buntag as the assailant
only after the latter had executed his own sworn statement pointing to appellant Bongo as the victim’s
assailant. We are convinced that appellant Bongo’s denial of any involvement in the killing is but a belated
afterthought to escape criminal liability for the victim’s death.

The trial court convicted the appellants of murder under Article 248 of the Revised Penal Code, as amended,
and sentenced each of them to reclusion perpetua. We note, however, that the trial court, in its amended
decision, made no finding on any attendant circumstance which would qualify the killing to murder. It bears
stressing that under the Rules of Criminal Procedure, any qualifying circumstance attendant to the commission
of a crime must be alleged in the Information and proved by the prosecution, conformably to the
constitutional right of an accused to be informed of the nature of the charges against him.

In this case, the Information alleged that treachery was attendant in the commission of the crime. The
prosecution was burdened to prove beyond reasonable doubt, not only the crime itself, but also the qualifying
circumstance of alevosia.60 Treachery cannot be based on speculations and surmises. In order that treachery
may be appreciated as a qualifying circumstance under Article 14 of the Revised Penal Code, the prosecution is
burdened to prove that (a) the malefactor employed means, method or manner of execution affording the
person attacked no opportunity to defend himself or to retaliate and, (b) the means, method or manner of
execution was deliberately or consciously adopted by the offender. In this case, there was no eyewitness to
the crime.

On the other hand, appellant Buntag, in his sworn statement, claimed that before the victim was stabbed,
appellant Bongo and the victim had an altercation; appellant Bongo, in his counter-affidavit, stated that it was
appellant Buntag and the victim who had an altercation before the victim was killed. There is no evidence that
the appellants deliberately or consciously adopted a method or means of execution to insure the death of the
victim.

In fine then, the appellants are guilty only of homicide, punishable under Article 249 of the Revised Penal Code
with reclusion temporal in its full range, which is twelve (12) years and one (1) day to twenty (20) years. There
being no modifying circumstance attendant to the crime, the maximum of the indeterminate penalty should
be in its medium period.

The trial court awarded moral damages to the heirs of the victim, although the prosecution failed to present
any heir of the victim as witness. The trial court, likewise, failed to award civil indemnity ex delicto to the heirs
of the victim. The decision of the trial court shall, thus, be modified accordingly.

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Tagbilaran City, Branch 3, in
Criminal Case No. 7729 is AFFIRMED WITH MODIFICATIONS. Appellants Casiano Buntag alias "Ciano" and Diego
Bongo are found guilty, as principals, of homicide under Article 249 of the Revised Penal Code. There being no
modifying circumstances attendant to the crime, each of the appellants are sentenced to suffer an
indeterminate penalty from ten (10) years of prision mayor, in its medium period, as minimum, to sixteen (16)
years and one (1) day of reclusion temporal in its medium period, as maximum. The award of moral damages is
deleted. The said appellants are ordered to pay, jointly and severally, to the heirs of the victim Berno Georg
Otte, P50,000 as civil indemnity, conformably to current jurisprudence. 61 Costs de oficio.

SO ORDERED.

G.R. No. 223565

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
JONATHAN PAL, THANIEL MAGBANTA, alias DODONG MANGO [RON ARIES DAGATAN CARIA T] and alias
TATAN CUTACTE, Accused

DECISION

DEL CASTILLO, J.:

This resolves the appeal filed by Ron Aries Dagatan Cariat alias Dodong Mango (appellant) assailing the
October 12, 2015 Decision 1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 01261-MIN which affirmed with
modification the March 28, 2012 Judgment2 of the Regional Trial Court (RTC) of Davao City, Branch 11, in
Criminal Case No. 63,897-08 finding him guilty beyond reasonable doubt of the crime of rape and sentencing
him to suffer the penalty of reclusion perpetua.

On July 2, 2008, an Information was filed charging appellant and his three co-accused with the crime of rape
allegedly committed as follows:

That on or about July 26, 2007, in the City of Davao, Philippines, and within the jurisdiction of this Honorable
Court, accused THANIEL MAGBANTA, conspiring and confederating with the other above-named accusedr,1
with force and intimidation, willfully, unlawfully[,] and feloniously had carnal knowledge of [AAA],3 while
accused alias DODONG MANGO was pointing a knife and holding the legs of the latter and while other accused
JONA THAN PAL and alias TAT AN CUTACTE were watching and laughing, to her damage and prejudice.

CONTRARY TO LAW.4

Of the four accused, only appellant was arrested and brought under the jurisdiction of the RTC. The other
three accused have remained fugitives from justice.

Appellant pleaded not guilty to the offense charged when he was arraigned on August 1, 2008. Thereafter, trial
on the merits followed.

Version of the Prosecution

"AAA" testified that on July 26, 2007 at around 11:00 p.m., she was on her way home when her neighbors,
accused Jonathan Pal (Pal) and Thaniel Magbanta (Magbanta), invited her to join them celebrate Pal's
birthday.5 "AAA" accepted their invitation and joined the drinking spree. After taking several shots of rum,
"AAA" felt dizzy and intoxicated.

Thereafter, "AAA" averred that Magbanta approached and punched her stomach twice. Pal, Magbanta, Tatan
Cutacte (Cutacte), and appellant held her hands and dragged her to a grassy and secluded area near Pal's
house about 500 meters away. Appellant was then holding and pointing a knife at "AAA". Feeling weak and
numb, "AAA" cried for help but no one heard her. Magbanta punched her again three times and pushed her to
the ground to stop her from shouting. Magbanta warned "AAA" not to resist or else he would kill her.

"AAA" further narrated that appellant held her legs while Pal and Cutacte acted as lookout. Magbanta then
undressed and raped "AAA". Magbanta laid on top of her and forcibly inserted his penis inside her vagina.
"AAA" recalled that appellant, Pal, and Cutacte were all laughing as they watched Magbanta insert his penis
inside "AAA's" vagina. After raping her, Magbanta again punched "AAA" in her stomach which caused her to
faint.

"AAA" regained consciousness around 3:00 a.m. of July 27, 2007. She was only wearing her bra and
panty.1âwphi1 She looked for her clothes and after finding them, she went home afterward.

Traumatized by her harrowing experience, "AAA" kept the incident to herself for three months. Her sisters
confronted her when they noticed a change in her disposition. "AAA" subsequently disclosed to them what
had happened to her. Her sister then referred "AAA" to a psychiatrist. "AAA" also had a medical check-up on
November 13, 2007 and was then asked to stay at her sister's convent for her security.

Version of the Defense

For his defense, appellant claimed that on July 26, 2007 while they were celebrating the birthday of Pal's
father, "AAA" arrived around 8:00 p.m. and joined their drinking spree. When all the rum was consumed,
"AAA" brought out another bottle from her back pocket. She also procured two bottles of tuba and cigarettes.

Later in the evening, "AAA" asked to be excused to relieve herself outside. She asked Mabanta to accompany
her. A few moments later, only Mabanta returned. Soon appellant's friends went home. Appellant then went
to sleep.

Appellant denied that he held "AAA" and dragged her outside their house to a grassy area. He denied that he
pointed a knife at "AAA" while Magbanta raped her.

Ruling of the Regional Trial Court

On March 28, 2012, the RTC of Davao City, Branch 11 rendered judgment finding appellant guilty as charged.
The RTC was convinced that the prosecution, through the testimony of "AAA", was able to establish conspiracy
among the four accused to commit the crime of rape. The RTC held that, while it was Magbanta who had
sexual intercourse with "AAA'', the fact the appellant held her legs which allowed Magbanta to consummate
the rape constituted direct participation in the commission of the crime.

The dispositive portion of the RTC's Judgment reads:

Wherefore, in view of the foregoing, judgment is hereby rendered finding Ron Aries Cariat alias Dodong
Mango GUILTY beyond reasonable doubt of the crime of Rape.

He is hereby sentenced to suffer the penalty of reclusion perpetua. He is further sentenced to pay the private
complainant [AAA] the amount of FITTY THOUSAND (₱50,000.00) PESOS as moral damages.

Issue alias warrant of arrest for Nathaniel Magbanta, Jonathan Pal and one alias Tata Cutacte.
SO ORDERED.6

Aggrieved by the RTC's Judgment, appellant appealed to the CA.

Ruling of the Court of Appeals

On October 12, 2015, the CA affirmed with modification the RTC's Judgment and held as follows:

WHEREFORE, the Judgment dated March 28, 2012 of the Regional Trial Court, Branch 11, Davao City, in
Criminal Case No. 63,897-08 is hereby AFFIRMED with MODIFICATION. Accused-appellant RON ARIES DAGA
TAN CARIA T alias DO DONG MANGO is hereby found GUILTY beyond reasonable doubt of the crime of rape
and is sentenced to suffer the penalty of reclusion perpetua.

Accused-Appellant is ORDERED to pay AAA the amount of ₱50,000.00 as civil indemnity and another
₱50,000.00 as moral damages and interest on all damages at the rate of six percent (6%) per annumfrom the
finality of judgment until fully paid.

SO ORDERED.7

Dissatisfied with the CA's Decision, and after denial of his Motion for Reconsideration, appellant filed a Notice
of Appeal8 dated December 4, 2015 manifesting his intention to appeal the CA Decision.

Hence, this appeal.

Issue

The issue in this case is whether appellant was guilty of the crime of rape. According to appellant, the RTC
erred in convicting him of rape in view of the prosecution's failure to prove his guilt beyond reasonable doubt.
Appellant claims that the fact of sexual and physical assault were not sufficiently proven. He also argues that
the prosecution failed to establish the existence of a conspiracy.

Our Ruling

The Court upholds appellant's conviction and dismisses his appeal for lack of merit.

To secure a conviction for rape under Article 266-A of the Revised Penal Code, the prosecution must prove
that (1) the offender had carnal knowledge of a woman; and (2) he accomplished such act through force,
threat, or intimidation, or when she was deprived of reason or otherwise unconscious, or when she was under
twelve years of age or was demented.

In this case, the prosecution had sufficiently established the existence of the elements above. The testimony of
"AAA" established that Magbanta had sexual intercourse with her with the assistance of appellant, Pal, and
Cutacte. "AAA" testified that appellant held her, pointed a knife at her, and helped his co-accused drag her to a
secluded grassy area where Magbanta punched her and forced her to lie down. Magbanta then undressed her
and inserted his penis inside her vagina while her legs were held by appellant. These circumstances show that
Magbanta had sexual intercourse with "AAA" against her will through force, threat, and intimidation and with
the assistance of appellant and the other accused.

Contrary to appellant's contention, the fact of sexual and physical assault were sufficiently established through
the testimony of "AAA". This Court finds no cogent reason to reverse the RTC's assessment of "AAA's"
credibility. Absent any evidence that it was tainted with arbitrariness or patent error, the trial court's
assessment of a witness' credibility is entitled to great weight, if not conclusive on this Court. Time and again,
the Court has held that "assigning of values to declarations of witnesses is best and most competently
performed by the trial judge who has the unique and unmatched opportunity to observe the demeanor
witnesses and assess their credibility."9 It is with more reason to uphold the assessment made by the trial
court when the CA affirms the same, as in the present case.

The Court likewise finds that conspiracy was established in this case.1âwphi1 There is conspiracy "when the
acts of the accused demonstrate a common design towards the accomplishment of the same unlawful
purpose." 10 While appellant did not personally have sexual intercourse with "AAA", the acts of appellant,
Magbanta, Pal, and Cutacte clearly demonstrated a common design to have carnal knowledge of "AAA".
Appellant helped Magbanta, Pal, and Cutacte in restraining "AAA" and in dragging her to a secluded grassy
area. He also pointed a knife at "AAA" and held her while Magbanta inserted his penis into "AAA's" vagina.
Unmistakably, appellant concurred in the criminal design to rape "AAA". Since there was conspiracy among
appellant, Magbanta, Pal, and Cutacte, the act of one was the act of all making them equally guilty of the crime
of rape against "AAA".

Finally, as to the award of damages, the Court enunciated in People v. Jugueta, 11 that "when the
circumstances surrounding the crime call for the imposition of reclusion perpetua only, there being no ordinary
aggravating circumstance, xx x the proper amounts [of civil liability] should be ₱75,000.00 as civil indemnity,
₱75,000.00 as moral damages and ₱75,000.00 exemplary damages, regardless of the number of qualifying
aggravating circumstances present." 12 Thus, there is a need to increase the award of civil indemnity to
₱75,000.00, moral damages to ₱75,000.00 and to further impose exemplary damages in the amount of
₱75,000.00. Moreover, all damages awarded shall earn interest at the rate of 6% per annum from finality of
this Decision until full payment.

Based on the evidence on record, save as to the amount of damages awarded, the Court finds no reason to
disturb the findings of the CA that appellant was guilty beyond reasonable doubt of the crime of rape.

WHEREFORE, the October 12, 2015 Decision of the Court of Appeals in CA-G.R. CR-HC No. 01261-MIN
is AFFIRMED with the fu1ther MODIFICATIONS in that appellant Ron Aries Dagatan Cariat alias Dodong Mango
is ordered to pay the victim "AAA" the increased amounts of ₱75,000.00 as civil indemnity and ₱75,000.00 as
moral damages. He is further ordered to pay ₱75,000.00 as exemplary damages. All damages awarded shall
earn interest at the rate of 6% per annum from the date of final ity of this Decision until fully paid.

SO ORDERED.