CRIMINAL LAW REVIEW 4-B

For July 20, 2016

1.
BASIC
PRINCPLES
IN
CRIMINAL
LAW:
Definitions / Characteristics / Underlying Philosophies
Doctrine of Pro Reo / Lenity Rule / Equipoise Rule
Utilitarian Theory

Doctrine of Pro Reo

Doctrine of pro reo. Rem. Law. [The doctrine that] where the
evidence on an issue of fact is in question or there is doubt on
which side the evidence weighs, the doubt should be resolved
in favor of the accused. [People v. Abarquez, GR 150762, 20
Jan. 2006, 479 SCRA 225, 239].
The Rule of Lenity: in construing an ambiguous criminal
statute, a court should resolve the ambiguity in favor of the
defendant. Rule of Lenity is a judicial doctrine requiring that
those ambiguities in a criminal statute relating to prohibition
and penalties be resolved in favor of the defendant if it is not
contrary to legislative intent. It embodies a presupposition of
law to resolve doubts in the enforcement of a penal code
against the imposition of a harsher punishment. The courts
while construing an ambiguous criminal statute that sets out
multiple or inconsistent punishments should resolve the
ambiguity in favor of the more lenient punishment.
The Equipoise Rule: where the evidence of the parties is
evenly balanced, the case will be resolved against the plaintiff,
thus in criminal cases the accused must be acquitted and in
civil cases, the complaint must be dismissed.
Under the utilitarian philosophy, laws that specify punishment
for criminal conduct should be designed to deter future criminal
conduct. Deterrence operates on a specific and a general
level. General deterrence means that the punishment should
prevent other people from committing criminal acts. The
punishment serves as an example to the rest of society, and it
puts others on notice that criminal behavior will be punished.

Case: Magno vs. CA 210 SCRA 471 June 26, 1992

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 96132 June 26, 1992
ORIEL MAGNO, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
PARAS, J.:

This is an appeal by certiorari under Rule 45 of the Revised

Rules of Court, from the decision* of the respondent Court of
Appeals which affirmed in toto the decision of the Regional
Trial Court of Quezon City, Branch 104 finding the accused
petitioner, guilty of violations of Batas Pambansa Blg. 22, in
Criminal Cases Q-35693 to 35696 before they were elevated
on appeal to the respondent appellate Court under CA-G.R.
CR No. 04889.
The antecedent facts and circumstances of the four (4) counts
of the offense charged, have been clearly illustrated, in the
Comment of the Office of the Solicitor General as official
counsel for the public respondent, thus:
Petitioner was in the process of putting up a car repair shop
sometime in April 1983, but a did not have complete equipment
that could make his venture workable. He also had another
problem, and that while he was going into this
entrepreneurship, he lacked funds with which to purchase the
necessary equipment to make such business operational.
Thus, petitioner, representing Ultra Sources International
Corporation, approached Corazon Teng, (private complainant)
Vice President of Mancor Industries (hereinafter referred to as
Mancor) for his needed car repair service equipment of which
Mancor was a distributor, (Rollo, pp. 40-41)
Having been approached by petitioner on his predicament,
who fully bared that he had no sufficient funds to buy the
equipment needed, the former (Corazon Teng) referred Magno
to LS Finance and Management Corporation (LB Finance for
brevity) advising its Vice-President, Joey Gomez, that Mancor
was willing and able to supply the pieces of equipment needed
if LS Finance could accommodate petitioner and provide him
credit facilities. (Ibid., P. 41)
The arrangement went through on condition that petitioner has
to put up a warranty deposit equivalent to thirty per
centum (30%) of the total value of the pieces of equipment to
be purchased, amounting to P29,790.00. Since petitioner could
not come up with such amount, he requested Joey Gomez on
a personal level to look for a third party who could lend him the
equivalent amount of the warranty deposit, however, unknown
to petitioner, it was Corazon Teng who advanced the deposit in
question, on condition that the same would be paid as a short
term loan at 3% interest (Ibid., P. 41)
The specific provision in the Leasing Agreement, reads:
1.1. WARRANTY DEPOSIT Before or upon delivery of each
item of Equipment, the Lessee shall deposit with the Lessor
such sum or sums specified in Schedule A to serve as security
for the faithful performance of its obligations.
This deposit shall be refunded to the Lessee upon the
satisfactory completion of the entire period of Lease, subject to
the conditions of clause 1.12 of this Article. (Ibid., p. 17)
As part of the arrangement, petitioner and LS Finance entered
into a leasing agreement whereby LS Finance would lease the
garage equipments and petitioner would pay the corresponding
rent with the option to buy the same. After the documentation

was completed, the equipment were delivered to petitioner who

in turn issued a postdated check and gave it to Joey Gomez
who, unknown to the petitioner, delivered the same to Corazon
Teng. When the check matured, Petitioner requested through
Joey Gomez not to deposit the check as he (Magno) was no
longer banking with Pacific Bank.
To replace the first check issued, petitioner issued another set
of six (6) postdated checks. Two (2) checks dated July 29,
1983 were deposited and cleared while the four (4) others,
which were the subject of the four counts of the aforestated
charges subject of the petition, were held momentarily by
Corazon Teng, on the request of Magno as they were not
covered with sufficient funds. These checks were a) Piso Bank
Check Nos. 006858, dated August 15, 1983, 006859 dated
August 28, 1983 and 006860 dated September 15, 1983, all in
the amount of P5,038.43 and No. 006861 dated September 28,
1983, in the amount of P10,076.87. (Ibid., pp. 42 & 43).
Subsequently, petitioner could not pay LS Finance the monthly
rentals, thus it pulled out the garage equipments. It was then
on this occasion that petitioner became aware that Corazon
Teng was the one who advanced the warranty deposit.
Petitioner with his wife went to see Corazon Teng and
promised to pay the latter but the payment never came and
when the four (4) checks were deposited they were returned
for the reason "account closed." (Ibid., p. 43)
After joint trial before the Regional Trial Court of Quezon City,
Branch 104, the accused-petitioner was convicted for violations
of BP Blg. 22 on the four (4) cases, as follows:
. . . finding the accused-appellant guilty beyond reasonable
doubt of the offense of violations of B.P. Blg. 22 and sentencing
the accused to imprisonment for one year in each Criminal
Case Nos. Q-35693, Q-35695 and Q-35696 and to pay to
complainant the respective amounts reflected in subject
checks. (Ibid., pp. 25, 27)
Reviewing the above and the affirmation of the above-stated
decision of the court a quo, this Court is intrigued about the
outcome of the checks subject of the cases which were
intended by the parties, the petitioner on the one hand and the
private complainant on the other, to cover the "warranty
deposit" equivalent to the 30% requirement of the financing
company. Corazon Teng is one of the officers of Mancor, the
supplier of the equipment subject of the Leasing Agreement
subject of the high financing scheme undertaken by the
petitioner as lessee of the repair service equipment, which was
arranged at the instance of Mrs. Teng from the very beginning
of the transaction.
By the nature of the "warranty deposit" amounting to
P29,790.00 corresponding to 30% of the "purchase/lease"
value of the equipments subject of the transaction, it is obvious
that the "cash out" made by Mrs. Teng was not used by
petitioner who was just paying rentals for the equipment. It
would have been different if petitioner opted to purchase the
pieces of equipment on or about the termination of the leasepurchase agreement in which case he had to pay the
additional amount of the warranty deposit which should have

formed part of the purchase price. As the transaction did not

ripen into a purchase, but remained a lease with rentals being
paid for the loaned equipment, which were pulled out by the
Lessor (Mancor) when the petitioner failed to continue paying
possibly due to economic constraints or business failure, then
it is lawful and just that the warranty deposit should not be
charged against the petitioner.
To charge the petitioner for the refund of a "warranty deposit"
which he did not withdraw as it was not his own account, it
having remained with LS Finance, is to even make him pay an
unjust "debt", to say the least, since petitioner did not receive
the amount in question. All the while, said amount was in the
safekeeping of the financing company, which is managed,
supervised and operated by the corporation officials and
employees of LS Finance. Petitioner did not even know that
the checks he issued were turned over by Joey Gomez to Mrs.
Teng, whose operation was kept from his knowledge on her
instruction. This fact alone evoke suspicion that the transaction
is irregular and immoral per se, hence, she specifically
requested Gomez not to divulge the source of the "warranty
deposit".
It is intriguing to realize that Mrs. Teng did not want the
petitioner to know that it was she who "accommodated"
petitioner's request for Joey Gomez, to source out the needed
funds for the "warranty deposit". Thus it unfolds the kind of
transaction that is shrouded with mystery, gimmickry and
doubtful legality. It is in simple language, a scheme whereby
Mrs. Teng as the supplier of the equipment in the name of her
corporation, Mancor, would be able to "sell or lease" its goods
as in this case, and at the same time, privately financing those
who desperately need petty accommodations as this one.
This modus operandi has in so many instances victimized
unsuspecting businessmen, who likewise need protection from
the law, by availing of the deceptively called "warranty deposit"
not realizing that they also fall prey to leasing equipment under
the guise of a lease-purchase agreement when it is a scheme
designed to skim off business clients.
This maneuvering has serious implications especially with
respect to the threat of the penal sanction of the law in issue,
as in this case. And, with a willing court system to apply the full
harshness of the special law in question, using the "mala
prohibitia" doctrine, the noble objective of the law is tainted
with materialism and opportunism in the highest, degree.
This angle is bolstered by the fact that since the petitioner or
lessee referred to above in the lease agreement knew that the
amount of P29,790.00 subject of the cases, were mere
accommodation-arrangements with somebody thru Joey
Gomez, petitioner did not even attempt to secure the refund of
said amount from LS Finance, notwithstanding the agreement
provision to the contrary. To argue that after the termination of
the lease agreement, the warranty deposit should be
refundable in full to Mrs. Teng by petitioner when he did not
cash out the "warranty deposit" for his official or personal use,
is to stretch the nicety of the alleged law (B.P. No, 22) violated.
For all intents and purposes, the law was devised to safeguard
the interest of the banking system and the legitimate public

checking account user. It did not intend to shelter or favor nor

encourage users of the system to enrich themselves through
manipulations and circumvention of the noble purpose and
objective of the law. Least should it be used also as a means of
jeopardizing honest-to-goodness transactions with some color
of "get-rich" scheme to the prejudice of well-meaning
businessmen who are the pillars of society.
Under the utilitarian theory, the "protective theory" in criminal
law, "affirms that the primary function of punishment is the
protective (sic) of society against actual and potential
wrongdoers." It is not clear whether petitioner could be
considered as having actually committed the wrong sought to
be punished in the offense charged, but on the other hand, it
can be safely said that the actuations of Mrs. Carolina Teng
amount to that of potential wrongdoers whose operations
should also be clipped at some point in time in order that the
unwary public will not be failing prey to such a vicious
transaction (Aquino, The Revised Penal Code, 1987 Edition,
Vol. I, P. 11)
Corollary to the above view, is the application of the theory that
"criminal law is founded upon that moral disapprobation . . . of
actions which are immoral, i.e., which are detrimental (or
dangerous) to those conditions upon which depend the
existence and progress of human society. This disappropriation
is inevitable to the extent that morality is generally founded and
built upon a certain concurrence in the moral opinions of
all. . . . That which we call punishment is only an external
means of emphasizing moral disapprobation the method of
punishment is in reality the amount of punishment," (Ibid., P.
11, citing People v. Roldan Zaballero, CA 54 O.G. 6904, Note
also Justice Pablo's view in People v. Piosca and Peremne, 86
Phil. 31).
Thus, it behooves upon a court of law that in applying the
punishment imposed upon the accused, the objective of
retribution of a wronged society, should be directed against the
"actual and potential wrongdoers." In the instant case, there is
no doubt that petitioner's four (4) checks were used to
collateralize an accommodation, and not to cover the receipt of
an actual "account or credit for value" as this was absent, and
therefore petitioner should not be punished for mere issuance
of the checks in question. Following the aforecited theory, in
petitioner's stead the "potential wrongdoer", whose operation
could be a menace to society, should not be glorified by
convicting the petitioner.
While in case of doubt, the case should have been resolved in
favor of the accused, however, by the open admission of the
appellate court below, oven when the ultimate beneficiary of
the "warranty deposit" is of doubtful certainty, the accused was
convicted, as shown below:
Nor do We see any merit in appellant's claim that the obligation
of the accused to complainant had been extinguished by the
termination of the leasing agreement by the terms of which
the warranty deposit advanced by complainant was refundable
to the accused as lessee and that as the lessor L.S.
Finance neither made any liquidation of said amount nor
returned the same to the accused, it may he assumed that the

amount was already returned to the complainant. For these

allegations, even if true, do not change the fact, admitted by
appellant and established by the evidence, that the four
checks were originally issued on account or for value. And as
We have already observed, in order that there may be a
conviction under the from paragraph of Section 2 of B.P. Blg 22
with respect to the element of said offense that the check
should have been made and issued on account or for value
it is sufficient, all the other elements of the offense being
present, that the check must have been drawn and issued in
payment of an obligation.
Moreover, even granting, arguendo, that the extinguishment,
after the issuance of the checks, of the obligation in
consideration of which the checks were issued, would have
resulted in placing the case at bar beyond the purview of the
prohibition in Section 1 of BP Blg. 22, there is no satisfactory
proof that there was such an extinguishment in the present
case. Appellee aptly points out that appellant had not adduced
any direct evidence to prove that the amount advanced by the
complainant to cover the warranty deposit must already have
been returned to her. (Rollo, p. 30)
It is indubitable that the respondent Court of Appeals even
disregarded the cardinal rule that the accused is presumed
innocent until proven guilty beyond reasonable doubt. On the
contrary, the same court even expected the petitioner-appellant
to adduce evidence to show that he was not guilty of the crime
charged. But how can be produce documents showing that the
warranty deposit has already been taken back by Mrs. Teng
when she is an officer of Mancor which has interest in the
transaction, besides being personally interested in the profit of
her side-line. Thus, even if she may have gotten back the
value of the accommodation, she would still pursue collecting
from the petitioner since she had in her possession the checks
that "bounced".
That the court a quo merely relied on the law, without looking
into the real nature of the warranty deposit is evident from the
following pronouncement:
And the trail court concluded that there is no question that the
accused violated BP Blg. 22, which is a special statutory law,
violations of which are mala prohibita. The court relied on the
rule that in cases ofmala prohibita, the only inquiry is whether
or not the law had been violated, proof of criminal intent not
being necessary for the conviction of the accused, the acts
being prohibited for reasons of public policy and the defenses
of good faith and absence of criminal intent being unavailing in
prosecutions for said offenses." (Ibid., p. 26)
The crux of the matter rests upon the reason for the drawing of
the postdated checks by the petitioner, i.e., whether they were
drawn or issued "to apply on account or for value", as required
under Section 1 of B.P. Blg, 22. When viewed against the
following definitions of the catch-terms "warranty" and
"deposit", for which the postdated checks were issued or
drawn, all the more, the alleged crime could not have been
committed by petitioner:

a) Warranty A promise that a proposition of fact is true. A

promise that certain facts are truly as they are represented to
be and that they will remain so: . . . (Black's Law Dictionary,
Fifth Edition, (1979) p. 1423)
A cross-reference to the following term shows:
Fitness for Particular Purpose:
Where the seller at the time of contracting has reason to know
any particular purpose for which the goods are required and
that the buyer is relying on the seller's skill or judgment to
select or furnish suitable goods, there is, unless excluded or
modified, an implied warranty that the goods shall be fit for
such purpose, (Ibid., p. 573)
b) Deposit: Money lodged with a person as an earnest or
security for the performance of some contract, to be forfeited if
the depositor fails in his undertaking. It may be deemed to be
part payment and to that extent may constitute the purchaser
the actual owner of the estate.
To commit to custody, or to lay down; to place; to put. To lodge
for safe- keeping or as a pledge to intrust to the care of
another.
The act of placing money in the custody of a bank or banker,
for safety or convenience, to be withdrawn at the will of the
depositor or under rules and regulations agreed on. Also, the
money so deposited, or the credit which the depositor receives
for it. Deposit, according to its commonly accepted and
generally understood among bankers and by the public,
includes not only deposits payable on demand and for which
certificates, whether interest-bearing or not, may be issued,
payable on demand, or on certain notice or at a fixed future
time. (Ibid., pp. 394-395)
Furthermore, the element of "knowing at the time of issue that
he does not have sufficient funds in or credit with the drawee
bank for the payment of such check in full upon its
presentment, which check is subsequently dishonored by the
drawee bank for insufficiency of funds or credit or would have
been dishonored for the same reason . . . is inversely applied
in this case. From the very beginning, petitioner never hid the
fact that he did not have the funds with which to put up the
warranty deposit and as a matter of fact, he openly intimated
this to the vital conduit of the transaction, Joey Gomez, to
whom petitioner was introduced by Mrs. Teng. It would have
been different if this predicament was not communicated to all
the parties he dealt with regarding the lease agreement the
financing of which was covered by L.S. Finance Management.
WHEREFORE, the appealed decision is REVERSED and the
accused-petitioner is hereby ACQUITTED of the crime
charged.

Nocon, J., is on leave.

2. ARTICLES 1 6, RPC
Cases:
Article 3:
Rogelio Roque vs. People G.R. No. 193169 April 6, 2015
Republic of the Philippines
SUPREME COURT
Baguio City
SECOND DIVISION
G.R. No. 193169

April 6, 2015

ROGELIO ROQUE, Petitioner,

vs.
PEOPLE OF THE PIDLIPPINES, Respondent.
RESOLUTION
DEL CASTILLO, J.:
Petitioner Rogelio Roque (petitioner) was charged with the
crime of frustrated homicide in an Information that reads as
follows:
That on or about the 22nd day of November, 2001, in the
municipality of Pandi, province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the abovenamed accused did then and there willfully, unlawfully, and
feloniously, with intent to kill[,] attack, assault and shoot with a
gun complain[an]t Reynaldo Marquez, hitting the latter on his
right ear and nape, and kick[ing] him on the face and back,
causing serious physical injuries which ordinarily would have
caused the death of the said Reynaldo Marquez, thus,
performing all the acts of execution which should have
produced the crime of homicide as a consequence, but
nevertheless did not produce it by reason of causes
independent of his will, that is[,] by the timely and able medical
attendance rendered to said Reynaldo Marquez which
prevented his death.
CONTRARY TO LAW.1
When arraigned on March 23, 2003, petitioner pleaded "not
guilty." During the pre-trial conference, the defense admitted
the identity of petitioner; that he is a Kagawad of Barangay
Masagana, Pandi, Bulacan; and that the day of the incident,
November 22, 2001 was the Thanksgiving Day of the said
barangay. Trial thereafter ensued where the parties presented
their respective versions of the incident.

SO ORDERED.
Padilla and Regalado, JJ., concur.
Narvasa, C.J.,, concurs in the result.

The prosecution averred that on November 22, 2001, while

brothers Reynaldo Marquez (Reynaldo) and Rodolfo Marquez
(Rodolfo) were in the house of Bella Salvador-Santos (Bella) in
Pandi, Bulacan, Rodolfo spotted Rogelio dela Cruz (dela Cruz)
and shouted to him to join them. At that instant, petitioner and

his wife were passing-by on board a tricycle. Believing that

Rodolfo's shout was directed at him, petitioner stopped the
vehicle and cursed the former. Reynaldo apologized for the
misunderstanding but petitioner was unyielding. Before
leaving, he warned the Marquez brothers that something bad
would happen to them if they continue to perturb him.

Undaunted, petitioner appealed to the Court of Appeals (CA).

In its Decision5 dated February 27, 2009, the CA affirmed in full
the RTC's Decision, thus:

Bothered, Rodolfo went to the house of Barangay Chairman

Pablo Tayao (Tayao) to ask for assistance in settling the
misunderstanding. Because of this, Reynaldo, who had already
gone home, was fetched by dela Cruz and brought to the
house of Tayao. But since Tayao was then no longer around,
Reynaldo just proceeded to petitioner's house to follow Tayao
and Rodolfo who had already gone ahead. Upon arriving at
petitioner's residence, Reynaldo again apologized to petitioner
but the latter did not reply. Instead, petitioner entered the
house and when he came out, he was already holding a gun
which he suddenly fired at Reynaldo who was hit in his right
ear. Petitioner then shot Reynaldo who fell to the ground after
being hit in the nape. Unsatisfied, petitioner kicked Reynaldo
on the face and back. Reynaldo pleaded Tayao for help but to
no avail since petitioner warned those around not to get
involved. Fortunately, Reynaldo's parents arrived and took him
to a local hospital for emergency medical treatment. He was
later transferred to Jose Reyes Memorial Hospital in Manila
where he was operated on and confined for three weeks. Dr.
Renato Raymundo attended to him and issued a medical
certificate stating that a bullet entered the base of Reynaldo's
skull and exited at the back of his right ear. Presenting a totally
different version, the defense claimed that on November 22,
2001, petitioner went to the house of Bella on board a tricycle
to fetch his child. While driving, he was cursed by brothers
Reynaldo and Rodolfo who were visibly intoxicated. Petitioner
ignored the two and just went home. Later, however, the
brothers appeared in front of his house still shouting invectives
against him. Petitioner's brother tried to pacify Rodolfo and
Reynaldo who agreed to leave but not without threatening that
they would return to kill him. Petitioner thus asked someone to
call Tayao. Not long after, the brothers came back, entered
petitioner's yard, and challenged him to a gun duel. Petitioner
requested Tayao to stop and pacify them but Reynaldo refused
to calm down and instead fired his gun. Hence, as an act of
self-defense, petitioner fired back twice.

SO ORDERED.6

On March 12, 2007, the Regional Trial Court (RTC) of Malolos,

Bulacan, Branch 84, rendered its Decision2 finding petitioner
guilty as charged, viz:
WHEREFORE, finding the accused GUILTY beyond
reasonable doubt of the crime charged in the information, he is
hereby sentenced to suffer the penalty of imprisonment of six
( 6) years [of] prision correccional, as minimum[;] to ten (10)
years of prision mayor in its medium [period], as maximum.

WHEREFORE, in the light of the foregoing premises, the

decision appealed from is hereby AFFIRMED in its entirety.

Petitioner's Motion for Reconsideration7 thereto was likewise

denied in a Resolution8 dated July 30, 2010.
Hence, this Petition for Review on Certiorari9 under Rule 45 of
the Rules of Court where petitioner imputes upon the CA the
following errors:
I. THE HONORABLE COURT OF APPEALS ERRONEOUSLY
APPRECIATED THE FACTS AND EVIDENCE ON RECORD
WHEN IT RULED THAT THE ELEMENT OF UNLAWFUL
AGGRESSION WAS NOT SATISFACTORILY PROVEN SINCE
1HE ACCUSED-APPELLANT HAS NOT SATISFACTORILY
SHOWN THAT THE VICTIM/PRIV A TE COMPLAINANT WAS
INDEED ARMED WITH AGUN.
II. THE HONORABLE COURT OF APPEALS ERRONEOUSLY
APPRECIATED THE FACTS AND EVIDENCE ON RECORD
WHEN IT RULED THAT GRANTING FOR THE BENEFIT OF
ARGUMENT THAT THERE WAS INDEED UNLAWFUL
AGGRESSION, PETITIONER WAS NO LONGER JUSTIFIED
IN FIRING AT THE VICTIM/PRIVATE COMPLAINANT FOR
THE SECOND TIME.
III. THE HONORABLE COURT OF APPEALS ERRONEOSUL
Y APPRECIATED THE FACTS AND EVIDENCE ON RECORD
WHEN IT RULED THAT INTENT TO KILL ON THE PART OF
PETITIONER WAS PRESENT CONSIDERING: (A) THE
PRIVATE COMPLAINANT ALLEGEDLY RECEIVED TWO
GUNSHOT WOUNDS, AND (B) THE PETITIONER
PREVENTED BARANGA Y OFFICIALS FROM INTERVENING
AND
HELPING
OUT
THE
WOUNDED
PRIVATE
COMPLAINANT.10
Our Ruling
The Petition must be denied.
The errors petitioner imputes upon the CA all pertain to
"appreciation of evidence" or factual errors which are not within
the province of a petition for review on certiorari under Rule 45.
The Court had already explained in Batistis v. People11 that:

SO ORDERED.3

Pursuant to Section 3, Rule 122, and Section 9, Rule 45, of the

Rules of Court, the review on appeal of a decision in a criminal
case, wherein the CA imposes a penalty other than death,
reclusion perpetua, or life imprisonment, is by petition for
review on certiorari.

Petitioner filed a motion for reconsideration which was denied

in an Order4 dated August 16, 2007.

A petition for review on certiorari raises only questions of law.

Sec. 1, Rule 45, Rules of Court, explicitly so provides, viz:
Section I. Filing of petition with Supreme Court. - A party
desiring to appeal by certiorari from a judgment, final order or

resolution of the Court of Appeals, the Sandiganbayan, the

Court of Tax Appeals, the Regional Trial Court or other courts,
whenever authorized by law, may file with the Supreme Court a
verified petition for review on certiorari. The petition may
include an application for a writ of preliminary injunction or
other provisional remedies and shall raise only questions of
law, which must be distinctly set forth. The petitioner may seek
the same provisional remedies by verified motion filed in the
same action or proceeding at any time during its pendency.
Petitioner's assigned errors, requiring as they do a reappreciation and reexamination of the evidence, are
evidentiary and factual in nature.12 The Petition must therefore
be denied on this basis because "one, the petition for review
thereby violates the limitation of the issues to only legal
questions, and, two, the Court, not being a trier of facts, will not
disturb the factual findings of the CA, unless they were
mistaken, absurd, speculative, conflicting, tainted with grave
abuse of discretion, or contrary to the findings reached by the
court of origin,"13 which was not shown to be the case here.
Besides, findings of facts of the RTC, its calibration of the
testimonial evidence, its assessment of the probative weight
thereof, as well as its conclusions anchored on the said
findings, are accorded high respect if not conclusive effect
when affirmed by the CA,14 as in this case. After all, the RTC
"had the opportunity to observe the witnesses on the stand and
detect if they were telling the truth."15 "To [thus] accord with the
established doctrine of finality and bindingness of the trial
court's findings of fact, [the Court shall] not disturb [the]
findings of fact of the RTC, particularly after their affirmance by
the CA"16 as petitioner was not able to sufficiently establish any
extraordinary circumstance which merits a departure from the
said doctrine.17
In any event, the Court observes that the CA correctly affirmed
the RTC 's ruling that petitioner is guilty of frustrated homicide
and not merely of less serious physical injuries as the latter
insists. As aptly stated by the CA:
In attempted or frustrated homicide, the offender must have the
intent to kill the victim.1wphi1 If there is no intent to kill on the
part of the offender, he is liable for physical injuries only. Viceversa, regardless of whether the victim only suffered injuries
that would have healed in nine to thirty days, if intent to kill is
sufficiently borne out, the crime committed is frustrated
homicide (Arts. 263-266).
Usually, the intent to kill is shown by the kind of weapon used
by the offender and the parts of the victim's body at which the
weapon was aimed, as shown by the wounds inflicted. Hence,
when a deadly weapon, like a bolo, is used to stab the victim in
the latter's abdomen, the intent to kill can be presumed (Reyes,
The Revised Penal Code, 13TH ED., P. 431).
It is worth highlighting that the victim received two gunshot
wounds in the head. Indeed the location of the wounds plus the
nature of the weapon used are ready indications that the
accused-appellant's objective is not merely to warn or
incapacitate a supposed aggressor. Verily, had the accusedappellant been slightly better with his aim, any of the two

bullets surely would have killed him outright. Also, the intent to
kill is further exhibited by the fact that the accused-appellant
even prevented barangay officials from intervening and helping
x x x the bleeding victim. Indeed, the fact that Reynaldo
Marquez was miraculously able to live through the ordeal and
sustain only modicum injuries does not mean that the crime
ought to be downgraded from frustrated homicide to less
serious physical injuries. After all, as was mentioned above,
what should be determinative of the crime is not the gravity of
the resulting injury but the criminal intent that animated the
hand that pulled the trigger.18
The Court, however, notes that while the penalty imposed upon
appellant is also proper, there is a need to modify the assailed
CA Decision in that awards of damages must be made in favor
of the victim Reynaldo.
The RTC and the CA correctly held that actual damages
cannot be awarded to Reynaldo due to the absence of receipts
to prove the medical expenses he incurred from the incident.
"Nonetheless, absent competent proof on the actual damages
suffered, a party still has the option of claiming temperate
damages, which may be allowed in cases where, from the
nature of the case, definite proof of pecuniary loss cannot be
adduced although the court is convinced that the aggrieved
party suffered some pecuniary loss."19 Since it was undisputed
that Reynaldo was hospitalized due to the gunshot wounds
inflicted by petitioner, albeit as observed by the RTC there was
no evidence offered as to the expenses he incurred by reason
thereof, Reynaldo is entitled to temperate damages in the
amount of P25,000.00. Aside from this, he is also entitled to
moral damages of P25,000.00. These awards of damages are
in accordance with settled jurisprudence.20 An interest at the
legal rate of 6% per annum must also be imposed on the
awarded damages to commence from the date of finality of this
Resolution until fully paid.21
WHEREFORE, the Petition is DENIED. The Decision dated
February 27, 2009 of the Court of Appeals in CA-G.R. CR No.
31084 affirming in its entirety the March 12, 2007 Decision of
the Regional Trial Court of Malolos, Bulacan, Branch 84 in
Criminal Case No. 3486-M-2002 convicting petitioner Rogelio
Roque of the crime of :frustrated homicide, is AFFIRMED with
the MODIFICATION that the petitioner is ordered to pay the
victim Reynaldo Marquez moral damages and temperate
damages in the amount of P25,000,00 each, with interest at
the legal rate 6% per annum from the date of finality of this
Resolution until fully paid.
SO ORDERED.

De Guzman, Jr. vs. People GR 178512 November 26, 2014

Republic
SUPREME
Manila

of

the

FIRST DIVISION
G.R. No. 178512

November 26, 2014

Philippines
COURT

ALFREDO
DE
GUZMAN,
JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
Frustrated homicide requires intent to kill on the part of the
offender. Without proof of such intent, the felony may only be
serious physical injuries. Intent to kill may be established
through the overt and external acts and conduct of the offender
before, during and after the assault, or by the nature, location
and number of the wounds inflicted on the victim.
The Case
Under review at the instance of the petitioner is the decision
promulgated on September 27, 2006,1 whereby the Court of
Appeals (CA) affirmed his conviction for frustrated homicide
committed against Alexander Flojo under the judgment
rendered on September 10, 2003 by the Regional Trial Court
(RTC), Branch 213, in Mandaluyong City in Criminal Case No.
191-MD.2
Antecedents
The CA summarized the versions of the parties as follows:
x x x [O]n December 24, 1997, at aboutten oclock in the
evening, Alexander Flojo (hereafter "Alexander") was fetching
water below his rented house at 443 Aglipay Street, Old Zaniga
St., Mandaluyong City when suddenly Alfredo De Guzman
(hereafter "Alfredo"), the brother of his land lady, Lucila
Bautista (hereafter "Lucila"), hit him on the nape. Alexander
informed Lucila about what Alfredo did to him. Lucila
apologized to Alexander by saying, "Pasensya ka na Mang
Alex" and told the latter to just go up. Alexander obliged and
went upstairs. He took a rest for about two hours. Thereafter,
at around 12:00 to 12:15 A.M., Alexander went down and
continued to fetch water. While pouring water into a container,
Alfredo suddenly appeared in front of Alexander and stabbed
him on his left face and chest.
Cirilino Bantaya, a son-in-law of Alexander, saw the latter
bleeding on the left portion of his body and begging for help.
Alexander then told Cirilino that Alfredo stabbed him. Cirilino
immediately loaded Alexander into his motorcycle (backride)
and brought him to the Mandaluyong City Medical Center.
Upon arrival at the hospital, the doctors immediately rendered
medical assistance to Alexander. Alexander stayed in the
emergency room of said hospital for about 30 to 40 minutes.
Then, he was brought to the second floor of the said hospital
where he was confined for two days. Thereafter, Alexander
was transferred to the Polymedic General Hospital where he
was subjected for (sic) further medical examination.
Alexander sustained two stabbed (sic) wounds. (sic) One of
which was on the zygoma, left side, and aboutone (1) cm. long.
The other is on his upper left chest which penetrated the fourth
intercostal space at the proximal clavicular line measuring
about two (2) cm. The second stabbed (sic) wound penetrated

the thoracic wall and left lung of the victim which resulted to
blood air (sic) in the thoracic cavity thus necessitating the
insertion of a thoracostomy tube toremove the blood.
According to Dr. Francisco Obmerga, the physician who
treated the victim at the Mandaluyong City Medical Center, the
second wound was fatal and could have caused Alexanders
death without timely medical intervention. (Tsn, July 8, 1998,
p.8).
On the other hand, Alfredo denied having stabbed Alexander.
According to him, on December 25,1997 at around midnight,
he passed by Alexander who was, then, fixing a motorcycle. At
that point, he accidentally hit Alexanders back, causing the
latter to throw invective words against him. He felt insulted,
thus, a fistfight ensued between them. They even rolled on the
ground. Alfredo hit Alexander on the cheek causing blood to
ooze from the latters face.3
The RTC convicted the petitioner, decreeing thusly:
PRESCINDING (sic) FROM THE FOREGOING
CONSIDERATIONS, the court finds accused Alfredo De
Guzman y Agkis a.k.a., "JUNIOR," guilty beyond reasonable
doubt for (sic) the crime of FRUSTRATED HOMICIDE defined
and penalized in Article 250 of the Revised Penal Code and in
the absence of any modifying circumstance, he is hereby
sentenced to suffer the indeterminate penalty of Six (6) Months
and One (1) day of PRISION CORR[R]ECCIONAL as
MINIMUM to Six (6) Years and One (1) day of PRISION
MAYOR as MAXIMUM.
The accused is further ordered topay the private complainant
compensatory damages in the amount of P14,170.35
representing the actual pecuniary loss suffered by him as he
has duly proven.
SO ORDERED.4
On appeal, the petitioner contended that his guilt had not been
proved beyond reasonable doubt; that intent to kill, the critical
element of the crime charged, was not established; that the
injuries sustained by Alexander were mere scuffmarks inflicted
in the heatof anger during the fist fight between them; that he
did not inflict the stabwounds, insisting that another person
could have inflicted such wounds; and that he had caused only
slight physical injuries on Alexander, for which he should be
accordingly found guilty.
Nonetheless, the CA affirmedthe petitioners conviction, viz:
WHEREFORE, premises considered, the instant appeal is
DISMISSED. The September 10, 2003 Decision of the
Regional Trial Court of Mandaluyong City, Branch 213, is
hereby AFFIRMED in toto.
SO ORDERED.5
The CA denied the petitioners motion for reconsideration on
May 2, 2007.6
Issue

Was the petitioner properly found guilty beyond reasonable

doubt of frustrated homicide?
Ruling
The appeal lacks merit.
The elements of frustrated homicide are: (1) the accused
intended to kill his victim, as manifested by his use of a deadly
weapon in his assault; (2) the victim sustained fatal or mortal
wound but did not die because of timely medical assistance;
and (3) noneof the qualifying circumstances for murder under
Article 248 of the Revised Penal Code, as amended, is
present.7 Inasmuch as the trial and appellate courts found
none of the qualifying circumstances in murder under Article
248 to be present, we immediately proceed to ascertain the
presence of the two other elements.
The petitioner adamantly denies that intent to kill was present
during the fistfight between him and Alexander.1wphi1 He
claims that the heightened emotions during the fistfight
naturally emboldened both of them, but he maintains that he
only inflicted minor abrasions on Alexander, not the stab
wounds that he appeared to have sustained. Hence, he should
be held liable only for serious physical injuries because the
intent to kill, the necessary element to characterize the crime
as homicide, was not sufficiently established. He avers that
such intentto kill is the main element that distinguishes the
crime of physical injuries from the crime of homicide; and that
the crime is homicide only if the intent to kill is competently
shown.
The essential element in frustrated or attempted homicide is
the intent of the offender to kill the victim immediately before or
simultaneously with the infliction of injuries. Intent to kill is a
specific intent that the State must allege in the information, and
then prove by either direct or circumstantial evidence, as
differentiated from a general criminal intent, which is presumed
from the commission of a felony by dolo. 8 Intent to kill, being a
state of mind, is discerned by the courts only through external
manifestations, i.e., the acts and conduct of the accused at the
time of the assault and immediately thereafter. In Rivera v.
People,9 we considered the following factors to determine the
presence of intent to kill, namely: (1) the means used by the
malefactors; (2) the nature, location, and number of wounds
sustained by the victim; (3) the conduct of the malefactors
before, during, or immediately after the killing of the victim; and
(4) the circumstances under which the crime was committed
and the motives of the accused. We have also considered as
determinative factors the motive of the offender and the words
he uttered at the time of inflicting the injuries on the victim.10
Here, both the trial and the appellate court agreed that intent to
kill was present. We concur with them. Contrary to the
petitioners submission, the wounds sustained by Alexander
were not mere scuffmarks inflicted in the heat of anger or as
the result ofa fistfight between them. The petitioner
wielded and used a knife in his assault on Alexander. The
medical records indicate, indeed, that Alexander sustained two
stab wounds, specifically, one on his upper left chest and the

other on the left side of his face. The petitioners attack was
unprovoked with the knife used therein causing such wounds,
thereby belying his submission, and firmly proving the
presence of intent to kill. There is also to beno doubt about the
wound on Alexanders chest being sufficient to result into his
death were it not for the timely medical intervention.
With the State having thereby shown that the petitioner already
performed all the acts of execution that should produce the
felony of homicide as a consequence, but did not produce it by
reason of causes independent of his will, i.e., the timely
medical attention accorded to Alexander, he was properly
found guilty of frustrated homicide.
We have no cogent reason to deviate from or to disregard the
findings of the trial and appellate courts on the credibility of
Alexanders testimony. It is not disputed that the testimony of a
single but credible and trustworthy witness sufficed to support
the conviction of the petitioner. This guideline finds more
compelling application when the lone witness is the victim
himself whose direct and positive identification of his assailant
is almost always regarded with indubitable credibility, owing to
the natural tendency of the victim to seek justice for himself,
and thus strive to remember the face of his assailant and to
recall the manner in which the latter committed the
crime.11 Moreover, it is significant that the petitioners mere
denial of the deadly manner of his attack was contradicted by
the credible physical evidence corroborating Alexanders
statements. Under the circumstances, we can only affirm the
petitioners conviction for frustrated homicide. The affirmance
of the conviction notwithstanding, we find the indeterminate
penalty of "Six (6) Months and One (1) day of PRISION
CORR[R]ECCIONAL as MINIMUM to Six (6) Years and One
(1) day of PRISION MAYOR as MAXIMUM" 12 fixed by the RTC
erroneous despite the CA concurring with the trial court
thereon. Under Section 1 of the Indeterminate Sentence Law,
an indeterminate sentence is imposed on the offender
consisting of a maximum term and a minimum term.13 The
maximum term is the penaltyproperly imposed under the
Revised Penal
Code after considering any attending modifying circumstances;
while the minimum term is within the range of the penalty next
lower than that prescribed by the Revised Penal Codefor the
offense committed. Conformably with Article 50 of the Revised
Penal Code,14 frustrated homicide is punished by prision
mayor, which is next lower to reclusion temporal, the penalty
for homicide under Article 249 of the Revised Penal Code.
There being no aggravating or mitigating circumstances
present, however, prision mayorin its medium period from
eight years and one day to 10 years is proper. As can be
seen, the maximum of six years and one day of prision mayor
as fixed by the RTC and affirmed by the CA was not within the
medium period of prision mayor. Accordingly, the correct
indeterminate sentence is four years of prision correccional, as
the minimum, to eight years and one day of prision mayor, as
the maximum.
The RTC and the CA also agreed on limiting the civil liability to
the sum of P14,170.35 as compensatory damages
"representing the actual pecuniary loss suffered by [Alexander]

as he has duly proven."15 We need to revise such civil liability

in order to conform to the law, the Rules of Court and relevant
jurisprudence. In Bacolod v. People,16 we emphatically
declared to be "imperative that the courts prescribe the proper
penalties when convicting the accused, and determine the civil
liability to be imposed on the accused, unless there has been a
reservation of the action to recover civil liability or a waiver of
its recovery." We explained why in the following manner:
It is not amiss to stress that both the RTC and the CA
disregarded their express mandate under Section 2, Rule 120
of the Rules of Courtto have the judgment, if it was of
conviction, state: "(1) the legal qualification of the offense
constituted by the acts committed by the accused and the
aggravating or mitigating circumstances which attended its
commission; (2) the participation of the accused in the offense,
whether as principal, accomplice, or accessory after the fact;
(3) the penalty imposed upon the accused; and (4) the civil
liability or damages caused by his wrongful act or omission to
be recovered from the accused by the offended party, if there is
any, unless the enforcement of the civil liability by a separate
civil action has been reserved or waived." Their disregard
compels us to actas we now do lest the Court be unreasonably
seen as tolerant of their omission. That the Spouses Cogtas
did not themselves seek the correction of the omission by an
appeal is no hindrance to this action because the Court, as the
final reviewing tribunal, has not only the authority but also the
duty to correct at any time a matter of law and justice.
We also pointedly remind all trial and appellate courts to avoid
omitting reliefs that the parties are properly entitled to by law or
in equity under the established facts. Their judgments will not
be worthy of the name unless they thereby fully determine the
rights and obligations of the litigants. It cannot be otherwise, for
only by a full determination of such rights and obligations
would they be true to the judicial office of administering justice
and equity for all. Courts should then be alert and cautious in
their rendition of judgments of conviction in criminal cases.
They should prescribe the legal penalties, which is what the
Constitution and the law require and expect them to do. Their
prescription of the wrong penalties will be invalid and
ineffectual for being done without jurisdiction or in manifest
grave abuse of discretion amounting to lack of jurisdiction.
They should also determine and set the civil liability ex delicto
of the accused, in order to do justice to the complaining victims
who are always entitled to them. The Rules of Court mandates
them to do so unless the enforcement of the civil liability by
separate actions has been reserved or waived.17
Alexander as the victim in frustrated homicide suffered moral
injuries because the offender committed violence that nearly
took away the victims life. "Moral damages include physical
suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation,
and similar injury. Though incapable of pecuniary computation,
moral damages may be recovered if they are the proximate
result of the defendant's wrongful act for omission." 18 Indeed,
Article 2219, (1), of the Civil Code expressly recognizes the
right of the victim in crimes resulting in physical
injuries.19 Towards that end, the Court, upon its appreciation of
the records, decrees thatP30,000.00 is a reasonable award of

moral damages.20 In addition, AAA was entitled to recover civil

indemnity ofP30,000.00.21 Both of these awards did not require
allegation and proof.
In addition, the amounts awarded ascivil liability of the
petitioner shall earn interest of 6% per annumreckoned from
the finality of this decision until full payment by the accused.
WHEREFORE, the Court AFFIRMS the decision promulgated
on September 27, 2006 finding petitioner Alfredo De Guzman,
Jr. GUILTY beyond reasonable doubt of FRUSTRATED
HOMICIDE, and SENTENCES him to suffer the indeterminate
penalty of four years of prision correccional, as the minimum,
to eight years and one day of prision mayor, as the maximum;
ORDERS the petitioner to pay to Alexander Flojo civil
indemnity of P30,000.00; moral damages of P30,000.00; and
compensatory damages of Pl4,170.35, plus interest of 6% per
annum on all such awards from the finality of this decision until
full payment; and DIRECTS the petitioner to pay the costs of
suit.
SO ORDERED.

Rivera vs. People GR 166326 January 25, 2006,

Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION
G.R. No. 166326

January 25, 2006

ESMERALDO RIVERA, ISMAEL RIVERA,

RIVERA, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

EDGARDO

DECISION
CALLEJO, SR., J.:
This is a petition for review of the Decision1 of the Court of
Appeals (CA) in CA-G.R. CR No. 27215 affirming, with
modification, the Decision2 of the Regional Trial Court (RTC) of
Cavite, Branch 90, in Criminal Case No. 6962-99,
entitled People of the Philippines. v. Esmeraldo Rivera, et al.
On April 12, 1999, an Information was filed in the RTC of Imus,
Cavite, charging Esmeraldo, Ismael and Edgardo, all
surnamed Rivera, of attempted murder. The accusatory portion
of the Information reads:
That on or about the 3rd day of May 1998, in the Municipality
of Dasmarias, Province of Cavite, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another,
with intent to kill, with treachery and evident premeditation, did
then and there, wilfully, unlawfully, and feloniously attack,
assault and hit with a piece of hollow block, one RUBEN
RODIL who thereby sustained a non-mortal injury on his head

and on the different parts of his body, the accused thus

commenced the commission of the felony directly by overt
acts, but failed to perform all the acts of execution which would
produce the crime of Murder by reason of some causes other
than their own spontaneous desistance, that is, the said Ruben
Rodil was able to ran (sic) away and the timely response of the
policemen, to his damage and prejudice.
CONTRARY TO LAW.3
Ruben Rodil testified that he used to work as a taxi driver. He
stopped driving in April 1998 after a would-be rapist threatened
his life. He was even given a citation as a Bayaning Pilipino by
the television network ABS-CBN for saving the would-be
victim. His wife eked out a living as a manicurist. They and
their three children resided in Barangay San Isidro Labrador II,
Dasmarias, Cavite, near the house of Esmeraldo Rivera and
his brothers Ismael and Edgardo.
At noon of May 2, 1998, Ruben went to a nearby store to buy
food. Edgardo mocked him for being jobless and dependent on
his wife for support. Ruben resented the rebuke and hurled
invectives at Edgardo. A heated exchange of words ensued.
At about 7:30 p.m. the next day, a Sunday, Ruben went to the
store to buy food and to look for his wife. His three-year-old
daughter was with him. Momentarily, Esmeraldo and his two
brothers, Ismael and Edgardo, emerged from their house and
ganged up on Ruben. Esmeraldo and Ismael mauled Ruben
with fist blows and he fell to the ground. In that helpless
position, Edgardo hit Ruben three times with a hollow block on
the parietal area. Esmeraldo and Ismael continued mauling
Ruben. People who saw the incident shouted: "Awatin sila!
Awatin sila!" Ruben felt dizzy but managed to stand up. Ismael
threw a stone at him, hitting him at the back. When policemen
on board a mobile car arrived, Esmeraldo, Ismael and Edgardo
fled to their house.
Ruben was brought to the hospital. His attending physician, Dr.
Lamberto Cagingin, Jr., signed a medical certificate in which he
declared that Ruben sustained lacerated wounds on the
parietal area, cerebral concussion or contusion, hematoma on
the left upper buttocks, multiple abrasions on the left shoulder
and hematoma periorbital left.4 The doctor declared that the
lacerated wound in the parietal area was slight and superficial
and would heal from one to seven days.5 The doctor
prescribed medicine for Rubens back pain, which he had to
take for one month.6
Esmeraldo testified that at around 1:00 p.m. on May 3, 1998,
Ruben arrived at his house and banged the gate. Ruben
challenged him and his brothers to come out and fight. When
he went out of the house and talked to Ruben, the latter
punched him. They wrestled with each other. He fell to the
ground. Edgardo arrived and pushed Ruben aside. His wife
arrived, and he was pulled away and brought to their house.
For his part, Ismael testified that he tried to pacify Ruben and
his brother Esmeraldo, but Ruben grabbed him by the hair. He
managed to free himself from Ruben and the latter fled. He

went home afterwards. He did not see his brother Edgardo at

the scene.
Edgardo declared that at about 1:00 p.m. on May 3, 1998, he
was throwing garbage in front of their house. Ruben arrived
and he went inside the house to avoid a confrontation. Ruben
banged the gate and ordered him to get out of their house and
even threatened to shoot him. His brother Esmeraldo went out
of their house and asked Ruben what the problem was. A fist
fight ensued. Edgardo rushed out of the house and pushed
Ruben aside. Ruben fell to the ground. When he stood up, he
pulled at Edgardos shirt and hair, and, in the process, Rubens
head hit the lamp post.7
On August 30, 2002, the trial court rendered judgment finding
all the accused guilty beyond reasonable doubt of frustrated
murder. The dispositive portion of the decision reads:
WHEREFORE, premises considered, all the accused are
found GUILTY beyond reasonable doubt and are sentenced to
an imprisonment of six (6) years and one (1) day to eight (8)
years of prision mayor as the prosecution has proved beyond
reasonable doubt the culpability of the accused. Likewise, the
accused are to pay, jointly and severally, civil indemnity to the
private complainant in the amount of P30,000.00.
SO ORDERED.8
The trial court gave no credence to the collective testimonies of
the accused and their witnesses. The accused appealed to the
CA, which rendered judgment on June 8, 2004 affirming, with
modification, the appealed decision. The dispositive portion of
the CA decision reads:
WHEREFORE, the Decision of the Regional Trial Court of
Imus, Cavite, Branch 90, is MODIFIED in that the appellants
are convicted of ATTEMPTED MURDER and sentenced to an
indeterminate penalty of 2 years of prision correccional as
minimum to 6 years and 1 day of prision mayor as maximum.
In all other respects, the decision appealed from is AFFIRMED.
SO ORDERED.9
The accused, now petitioners, filed the instant petition for
review on certiorari, alleging that the CA erred in affirming the
RTC decision. They insist that the prosecution failed to prove
that they had the intention to kill Ruben when they mauled and
hit him with a hollow block. Petitioners aver that, based on the
testimony of Dr. Cagingin, Ruben sustained only a superficial
wound in the parietal area; hence, they should be held
criminally liable for physical injuries only. Even if petitioners
had the intent to kill Ruben, the prosecution failed to prove
treachery; hence, they should be held guilty only of attempted
homicide.
On the other hand, the CA held that the prosecution was able
to prove petitioners intent to kill Ruben:
On the first assigned error, intent to kill may be deduced from
the nature of the wound inflicted and the kind of weapon used.
Intent to kill was established by victim Ruben Rodil in his
testimony as follows:

Q: And while you were being boxed by Esmeraldo and Bong,

what happened next?
A: When I was already lying [down] xxx, Dagol Rivera showed
up with a piece of hollow block xxx and hit me thrice on the
head, Sir.
Q: And what about the two (2), what were they doing when you
were hit with a hollow block by Dagol?
A: I was already lying on the ground and they kept on boxing
me while Dagol was hitting, Sir.
As earlier stated by Dr. Cagingin, appellants could have killed
the victim had the hollow block directly hit his head, and had
the police not promptly intervened so that the brothers
scampered away. When a wound is not sufficient to cause
death, but intent to kill is evident, the crime is attempted. Intent
to kill was shown by the fact that the (3) brothers helped each
other maul the defenseless victim, and even after he had
already fallen to the ground; that one of them even picked up a
cement hollow block and proceeded to hit the victim on the
head with it three times; and that it was only the arrival of the
policemen that made the appellants desist from their concerted
act of trying to kill Ruben Rodil.10
The Office of the Solicitor General (OSG), for its part, asserts
that the decision of the CA is correct, thus:
The evidence and testimonies of the prosecution witnesses
defeat the presumption of innocence raised by petitioners. The
crime has been clearly established with petitioners as the
perpetrators. Their intent to kill is very evident and was
established beyond reasonable doubt.
Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo
clearly and categorically declared that the victim Ruben Rodil
was walking along St. Peter Avenue when he was suddenly
boxed by Esmeraldo "Baby" Rivera. They further narrated that,
soon thereafter, his two brothers Ismael and Edgardo "Dagul"
Rivera, coming from St. Peter II, ganged up on the victim. Both
Alicia Vera Cruz and Lucita Villejo recounted that they saw
Edgardo "Dagul" Rivera pick up a hollow block and hit Ruben
Rodil with it three (3) times. A careful review of their
testimonies revealed the suddenness and unexpectedness of
the attack of petitioners. In this case, the victim did not even
have the slightest warning of the danger that lay ahead as he
was carrying his three-year old daughter. He was caught offguard by the assault of Esmeraldo "Baby" Rivera and the
simultaneous attack of the two other petitioners. It was also
established that the victim was hit by Edgardo "Dagul" Rivera,
while he was lying on the ground and being mauled by the
other petitioners. Petitioners could have killed the victim had he
not managed to escape and had the police not promptly
intervened.
Petitioners also draw attention to the fact that the injury
sustained by the victim was superficial and, thus, not life
threatening. The nature of the injury does not negate the intent
to kill. The Court of Appeals held:

As earlier stated by Dr. Cagingin, appellants could have killed

the victim had the hollow block directly hit his head, and had
the police not promptly intervened so that the brothers
scampered away. When a wound is not sufficient to cause
death, but intent to kill is evident, the crime is attempted. Intent
to kill was shown by the fact that the three (3) brothers helped
each other maul the defenseless victim, and even after he had
already fallen to the ground; that one of them picked up a
cement hollow block and proceeded to hit the victim on the
head with it three times; and that it was only the arrival of the
policemen that made the appellants desist from their concerted
act of trying to kill Ruben Rodil.11
The petition is denied for lack of merit.
An essential element of murder and homicide, whether in their
consummated, frustrated or attempted stage, is intent of the
offenders to kill the victim immediately before or
simultaneously with the infliction of injuries. Intent to kill is a
specific intent which the prosecution must prove by direct or
circumstantial evidence, while general criminal intent is
presumed from the commission of a felony by dolo.
In People v. Delim,12 the Court declared that evidence to prove
intent to kill in crimes against persons may consist,inter alia, in
the means used by the malefactors, the nature, location and
number of wounds sustained by the victim, the conduct of the
malefactors before, at the time, or immediately after the killing
of the victim, the circumstances under which the crime was
committed and the motives of the accused. If the victim dies as
a result of a deliberate act of the malefactors, intent to kill is
presumed.
In the present case, the prosecution mustered the requisite
quantum of evidence to prove the intent of petitioners to kill
Ruben. Esmeraldo and Ismael pummeled the victim with fist
blows. Even as Ruben fell to the ground, unable to defend
himself against the sudden and sustained assault of
petitioners, Edgardo hit him three times with a hollow block.
Edgardo tried to hit Ruben on the head, missed, but still
managed to hit the victim only in the parietal area, resulting in
a lacerated wound and cerebral contusions.
That the head wounds sustained by the victim were merely
superficial and could not have produced his death does not
negate petitioners criminal liability for attempted murder. Even
if Edgardo did not hit the victim squarely on the head,
petitioners are still criminally liable for attempted murder.
The last paragraph of Article 6 of the Revised Penal Code
defines an attempt to commit a felony, thus:
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.
The essential elements of an attempted felony are as follows:
1. The offender commences the commission of the felony
directly by overt acts;

2. He does not perform all the acts of execution which should

produce the felony;
3. The offenders act be not stopped by his own spontaneous
desistance;
4. The non-performance of all acts of execution was due to
cause or accident other than his spontaneous desistance.13
The first requisite of an attempted felony consists of two
elements, namely:
(1) That there be external acts;
(2) Such external acts have direct connection with the crime
intended to be committed.14
The Court in People v. Lizada15 elaborated on the concept of
an overt or external act, thus:
An overt or external act is defined as some physical activity or
deed, indicating the intention to commit a particular crime,
more than a mere planning or preparation, which if carried out
to its complete termination following its natural course, without
being frustrated by external obstacles nor by the spontaneous
desistance of the perpetrator, will logically and necessarily
ripen into a concrete offense. The raison detre for the law
requiring a direct overt act is that, in a majority of cases, the
conduct of the accused consisting merely of acts of preparation
has never ceased to be equivocal; and this is necessarily so,
irrespective of his declared intent. It is that quality of being
equivocal that must be lacking before the act becomes one
which may be said to be a commencement of the commission
of the crime, or an overt act or before any fragment of the
crime itself has been committed, and this is so for the reason
that so long as the equivocal quality remains, no one can say
with certainty what the intent of the accused is. It is necessary
that the overt act should have been the ultimate step towards
the consummation of the design. It is sufficient if it was the
"first or some subsequent step in a direct movement towards
the commission of the offense after the preparations are
made." The act done need not constitute the last proximate
one for completion. It is necessary, however, that the attempt
must have a causal relation to the intended crime. In the words
of Viada, the overt acts must have an immediate and
necessary relation to the offense.16
In the case at bar, petitioners, who acted in concert,
commenced the felony of murder by mauling the victim and
hitting him three times with a hollow block; they narrowly
missed hitting the middle portion of his head. If Edgardo had
done so, Ruben would surely have died.
We reject petitioners contention that the prosecution failed to
prove treachery in the commission of the felony. Petitioners
attacked the victim in a sudden and unexpected manner as
Ruben was walking with his three-year-old daughter,
impervious of the imminent peril to his life. He had no chance
to defend himself and retaliate. He was overwhelmed by the
synchronized assault of the three siblings. The essence of
treachery is the sudden and unexpected attack on the
victim.17 Even if the attack is frontal but is sudden and

unexpected, giving no opportunity for the victim to repel it or

defend himself, there would be treachery.18 Obviously,
petitioners assaulted the victim because of the altercation
between him and petitioner Edgardo Rivera a day before.
There being conspiracy by and among petitioners, treachery is
considered against all of them.19
The appellate court sentenced petitioners to suffer an
indeterminate penalty of two (2) years of prision correccionalin
its minimum period, as minimum, to six years and one day
of prision mayor in its maximum period, as maximum. This is
erroneous. Under Article 248 of the Revised Penal Code, as
amended by Republic Act No. 7659, the penalty for murder
is reclusion perpetua to death. Since petitioners are guilty only
of attempted murder, the penalty should be reduced by two
degrees, conformably to Article 51 of the Revised Penal Code.
Under paragraph 2 of Article 61, in relation to Article 71 of the
Revised Penal Code, such a penalty is prision mayor. In the
absence of any modifying circumstance in the commission of
the felony (other than the qualifying circumstance of treachery),
the maximum of the indeterminate penalty shall be taken from
the medium period of prision mayor which has a range of from
eight (8) years and one (1) day to ten (10) years. To determine
the minimum of the indeterminate penalty, the penalty ofprision
mayor should be reduced by one degree, prision correccional,
which has a range of six (6) months and one (1) day to six (6)
years.
Hence, petitioners should be sentenced to suffer an
indeterminate penalty of from two (2) years of prision
correccional in its minimum period, as minimum, to nine (9)
years and four (4) months of prision mayor in its medium
period, as maximum.
IN LIGHT OF ALL THE FOREGOING, the petition
is DENIED for lack of merit. The Decision of the Court of
Appeals is AFFIRMED WITH THE MODIFICATION that
petitioners are sentenced to suffer an indeterminate penalty of
from two (2) years of prision correccional in its minimum
period, as minimum, to nine (9) years and four (4) months
ofprision mayor in its medium period, as maximum. No costs.
SO ORDERED.

Villareal vs. People GR 151258 February 1, 2012

Republic
SUPREME
Manila

of

the

Philippines
COURT

SPECIAL SECOND DIVISION

G.R. No. 151258

December 1, 2014

ARTEMIO
VILLAREAL, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x-----------------------x

G.R. No. 154954

PEOPLE
OF
THE
PHILIPPINES, Petitioner,
vs.
THE HONORABLE COURT OF APPEALS, ANTONIO
MARIANO ALMEDA, DALMACIO LIM, JR., JUNEL
ANTHONY AMA, ERNESTO JOSE MONTECILLO, VINCENT
TECSON, ANTONIO GENERAL, SANTIAGO RANADA III,
NELSON VICTORINO, JAIME MARIA FLORES II, ZOSIMO
MENDOZA, MICHAEL MUSNGI, VICENTE VERDADERO,
ETIENNE GUERRERO, JUDE FERNANDEZ, AMANTE
PURISIMA II, EULOGIO SABBAN, PERCIVAL D. BRIGOLA,
PAUL ANGELO SANTOS, JONAS KARL B. PEREZ,
RENATO BANTUG, JR., ADEL ABAS, JOSEPH LLEDO, and
RONAN DE GUZMAN, Respondents.
x-----------------------x
G.R. No. 155101
FIDELITO
DIZON, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x-----------------------x
G.R. Nos. 178057 & 178080
GERARDA
H.
VILLA, Petitioner,
vs.
MANUEL LORENZO ESCALONA II, MARCUS JOEL
CAPELLAN RAMOS, CRISANTO CRUZ SARUCA, JR., and
ANSELMO ADRIANO, Respondents.
RESOLUTION
SERENO, CJ:
We are asked to revisit our Decision in the case involving the
death of Leonardo "Lenny" Villa due to fraternity hazing. While
there is nothing new in the arguments raised by the parties in
their respective Motions for Clarification or Reconsideration,
we find a few remaining matters needing to be clarified and
resobed. Sorne oJ' these matters include the effect of our
Decision on the finality of the Court of Appeals judgments
insofar as respondents Antonio Mariano A!meda (Almeda),
June] Anthony D. Arna (Arna), Renato Bantug, Jr. (Bantug),
and Vincent Tecson (Tecson) are concerned; the question of
who are eligible to seek probation; and the issue of the validity
of the probation proceedings and the concomitant orders of a
court that allegedly had no jurisdiction over the case.
Before the Court are the respective Motions for
Reconsideration or Clarification filed by petitioners People of
the Philippines, through the Office of the Solicitor General
(OSG), and Gerarda H. Villa (Villa); and by respondents
Almeda, Ama, Bantug, and Tecson (collectively, Tecson et al.)
concerning the Decision of this Court dated 1 February
2012.1 The Court modified the assailed judgments2 of the Court
of Appeals (CA) in CA-G.R. CR No. 15520 and found
respondents Fidelito Dizon (Dizon), Almeda, Ama, Bantug, and
Tecson guilty beyond reasonable doubt of the crime of reckless

imprudence resulting in homicide. The modification had the

effect of lowering the criminal liability of Dizon from the crime of
homicide, while aggravating the verdict against Tecson et al.
from slight physical injuries. The CA Decision itself had
modified the Decision of the Caloocan City Regional Trial Court
(RTC) Branch 121 finding all of the accused therein guilty of
the crime of homicide.3
Also, we upheld another CA Decision4 in a separate but related
case docketed as CA-G.R. S.P. Nos. 89060 & 90153 and ruled
that the CA did not commit grave abuse of discretion when it
dismissed the criminal case against Manuel Escalona II
(Escalona), Marcus Joel Ramos (Ramos), Crisanto Saruca, Jr.
(Saruca), and Anselmo Adriano (Adriano) on the ground that
their right to speedy trial was violated. Reproduced below is
the dispositive portion of our Decision:5
WHEREFORE, the appealed Judgmentin G.R. No. 155101
finding petitioner Fidelito Dizon guilty of homicide is hereby
MODIFIED and SET ASIDE IN PART. The appealed Judgment
in G.R. No. 154954 finding Antonio Mariano Almeda, Junel
Anthony Ama, Renato Bantug, Jr., and Vincent Tecson guilty of
the crime of slight physical injuries is also MODIFIED and
SET ASIDE IN PART. Instead, Fidelito Dizon, Antonio Mariano
Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent
Tecson are found GUILTY beyond reasonable doubt of
reckless imprudence resulting in homicide defined and
penalized under Article 365 in relation to Article 249 of the
Revised Penal Code. They are hereby sentenced to suffer an
indeterminate prison term of four (4) months and one (1) day of
arresto mayor, as minimum, to four (4) years and two (2)
months of prision correccional, as maximum. In addition,
accused are ORDERED jointly and severally to pay the heirs of
Lenny Villa civil indemnity ex delicto in the amount of 50,000,
and moral damages in the amount of 1,000,000, plus legal
interest on all damages awarded at the rate of 12% from the
date of the finality of this Decision until satisfaction. Costs de
oficio.
The appealed Judgment in G.R. No. 154954, acquitting
Victorino et al., is hereby AFFIRMED. The appealed
Judgments in G.R. Nos. 178057 & 178080, dismissing the
criminal case filed against Escalona, Ramos, Saruca, and
Adriano, are likewise AFFIRMED. Finally, pursuant to Article
89(1) of the Revised Penal Code, the Petition in G.R. No.
151258 is hereby dismissed, and the criminal case against
Artemio Villareal deemed CLOSED and TERMINATED.
Let copies of this Decision be furnished to the Senate
President and the Speaker of the House of Representatives for
possible consideration of the amendment of the Anti-Hazing
Law to include the fact of intoxication and the presence of nonresident or alumni fraternity members during hazing as
aggravating circumstances that would increase the applicable
penalties.
SO ORDERED.
To refresh our memories, we quote the factual antecedents
surrounding the present case:6

In February 1991, seven freshmen law students of the Ateneo

de Manila University School of Law signified their intention to
join the Aquila Legis Juris Fraternity (Aquila Fraternity). They
were Caesar "Bogs" Asuncion, Samuel "Sam" Belleza,
Bienvenido "Bien" Marquez III, Roberto Francis "Bert" Navera,
Geronimo "Randy" Recinto, Felix Sy, Jr., and Leonardo
"Lenny" Villa (neophytes).

paddle blows, one of which was so strong it sent him sprawling

to the ground. The neophytes heard him complaining of
intense pain and difficulty in breathing. After their last session
of physical beatings, Lenny could no longer walk. He had to be
carried by the auxiliaries to the carport. Again, the initiation for
the day was officially ended, and the neophytes started eating
dinner. They then slept at the carport.

On the night of 8 February 1991, the neophytes were met by

some members of the Aquila Fraternity (Aquilans) at the lobby
of the Ateneo Law School. They all proceeded to Rufos
Restaurant to have dinner. Afterwards, they went to the house
of Michael Musngi, also an Aquilan, who briefed the neophytes
on what to expect during the initiation rites. The latter were
informed that there would be physical beatings, and that they
could quit at any time. Their initiation rites were scheduled to
last for three days. After their "briefing," they were brought to
the Almeda Compound in Caloocan City for the
commencement of their initiation.

After an hour of sleep, the neophytes were suddenly roused by

Lennys shivering and incoherent mumblings.1avvphi1Initially,
Villareal and Dizon dismissed these rumblings, as they thought
he was just overacting. When they realized, though, that Lenny
was really feeling cold, some of the Aquilans started helping
him. They removed his clothes and helped him through a
sleeping bag to keep him warm. When his condition worsened,
the Aquilans rushed him to the hospital. Lenny was
pronounced dead on arrival.

Even before the neophytes got off the van, they had already
received threats and insults from the Aquilans. As soon as the
neophytes alighted from the van and walked towards the
pelota court of the Almeda compound, some of the Aquilans
delivered physical blows to them. The neophytes were then
subjected to traditional forms of Aquilan "initiation rites." These
rites included the "Indian Run," which required the neophytes
to run a gauntlet of two parallel rows of Aquilans, each row
delivering blows to the neophytes; the "Bicol Express," which
obliged the neophytes to sit on the floor with their backs
against the wall and their legs outstretched while the Aquilans
walked, jumped, or ran over their legs; the "Rounds," in which
the neophytes were held at the back of their pants by the
"auxiliaries" (the Aquilans charged with the duty of lending
assistance to neophytes during initiation rites), while the latter
were being hit with fist blows on their arms or withknee blows
on their thighs by two Aquilans; and the "Auxies Privilege
Round," in which the auxiliaries were given the opportunity to
inflict physical pain on the neophytes. During this time, the
neophytes were also indoctrinated with the fraternity principles.
They survived their first day of initiation.
On the morning of their second day 9 February 1991 the
neophytes were made to present comic plays and to play
rough basketball. They were also required to memorize and
recite the Aquila Fraternitys principles. Whenever they would
give a wrong answer, they would be hit on their arms or legs.
Late in the afternoon, the Aquilans revived the initiation rites
proper and proceeded to torment them physically and
psychologically. The neophytes were subjected to the same
manner of hazing that they endured on the first day of initiation.
After a few hours, the initiation for the day officially ended.
After a while, accused non-resident or alumni fraternity
members Fidelito Dizon (Dizon) and Artemio Villareal (Villareal)
demanded that the rites be reopened. The head of initiation
rites, Nelson Victorino (Victorino), initially refused. Upon the
insistence of Dizon and Villareal, however, he reopened the
initiation rites. The fraternity members, including Dizon and
Villareal, then subjected the neophytes to "paddling" and to
additional rounds of physical pain. Lenny received several

Consequently, a criminal case for homicide was filed against

the following 35 Aquilans:
In Criminal Case No. C-38340(91)
1. Fidelito Dizon (Dizon)
2. Artemio Villareal (Villareal)
3. Efren de Leon (De Leon)
4. Vincent Tecson (Tecson)
5. Junel Anthony Ama (Ama)
6. Antonio Mariano Almeda (Almeda)
7. Renato Bantug, Jr. (Bantug)
8. Nelson Victorino (Victorino)
9. Eulogio Sabban (Sabban)
10. Joseph Lledo (Lledo)
11. Etienne Guerrero (Guerrero)
12. Michael Musngi (Musngi)
13. Jonas Karl Perez (Perez)
14. Paul Angelo Santos (Santos)
15. Ronan de Guzman (De Guzman)
16. Antonio General (General)
17. Jaime Maria Flores II (Flores)
18. Dalmacio Lim, Jr. (Lim)
19. Ernesto Jose Montecillo (Montecillo)
20. Santiago Ranada III (Ranada)
21. Zosimo Mendoza (Mendoza)

22. Vicente Verdadero (Verdadero)

23. Amante Purisima II (Purisima)
24. Jude Fernandez (J. Fernandez)
25. Adel Abas (Abas)
26. Percival Brigola (Brigola)
In Criminal Case No. C-38340
1. Manuel Escalona II (Escalona)
2. Crisanto Saruca, Jr. (Saruca)
3. Anselmo Adriano (Adriano)
4. Marcus Joel Ramos (Ramos)
5. Reynaldo Concepcion (Concepcion)
6. Florentino Ampil (Ampil)
7. Enrico de Vera III (De Vera)
8. Stanley Fernandez (S. Fernandez)
9. Noel Cabangon (Cabangon)
Twenty-six of the accused Aquilans in Criminal Case No. C38340(91) were jointly tried. On the other hand, the trial
against the remaining nine accused in Criminal Case No. C38340 was held in abeyance due to certain matters that had to
be resolved first.
On 8 November 1993, the trial court rendered judgment in
Criminal Case No. C-38340(91), holding the 26 accused guilty
beyond reasonable doubt of the crime of homicide, penalized
with reclusion temporal under Article 249 of the Revised Penal
Code. A few weeks after the trial court rendered its judgment,
or on 29 November 1993, Criminal Case No. C-38340 against
the remaining nine accused commenced anew.
On 10 January 2002, the CAin (CA-G.R. No. 15520) set aside
the finding of conspiracy by the trial court in Criminal Case No.
C-38340(91) and modified the criminal liability of each of the
accused according to individual participation. Accused De Leon
had by then passed away, so the following Decision applied
only to the remaining 25 accused, viz:
1. Nineteen of the accused-appellants Victorino, Sabban,
Lledo, Guerrero, Musngi, Perez, De Guzman, Santos, General,
Flores, Lim, Montecillo, Ranada, Mendoza, Verdadero,
Purisima, Fernandez, Abas, and Brigola (Victorino et al.)
were acquitted,as their individual guilt was not established by
proof beyond reasonable doubt.
2. Four of the accused-appellants Vincent Tecson, Junel
Anthony Ama, Antonio Mariano Almeda, and Renato Bantug,
Jr. (Tecson et al.) were found guilty of the crime of slight
physical injuriesand sentenced to 20 days of arresto menor.

They were also ordered to jointly pay the heirs of the victim the
sum of P30,000 as indemnity.
3. Two of the accused-appellants Fidelito Dizonand Artemio
Villareal were found guilty beyond reasonable doubt of the
crime of homicide under Article 249 of the Revised Penal
Code. Having found no mitigating or aggravating circumstance,
the CA sentenced them to an indeterminate sentence of 10
years of prision mayor to 17 years of reclusion temporal. They
were also ordered to indemnify, jointly and severally, the heirs
of Lenny Villa in the sum of P50,000 and to pay the additional
amount of P1,000,000 by way of moral damages.
On 5 August 2002, the trial court in Criminal Case No. 38340
dismissed the charge against accused Concepcion on the
ground of violation of his right to speedy trial. Meanwhile, on
different dates between the years 2003 and 2005, the trial
court denied the respective Motions to Dismiss of accused
Escalona, Ramos, Saruca, and Adriano. On 25 October 2006,
the CA in CA-G.R. SP Nos. 89060 & 90153 reversed the trial
courts Orders and dismissed the criminal case against
Escalona, Ramos, Saruca, and Adriano on the basis of
violation of their right to speedy trial.
From the aforementioned Decisions, the five (5) consolidated
Petitions were individually brought before this Court. (Citations
omitted)
Motion
for
Partial
filed by Petitioner Gerarda H. Villa

Reconsideration

Petitioner Villa filed the present Motion for Partial

Reconsideration7 in connection with G.R. Nos. 178057 &
178080 (Villa v. Escalona) asserting that the CA committed
grave abuse of discretion when it dismissed the criminal case
against Escalona, Ramos,Saruca, and Adriano (collectively,
Escalona et al.) in its assailed Decision and Resolution. 8 Villa
reiterates her previous arguments that the right to speedy trial
of the accused was not violated, since they had failed to assert
that right within a reasonable period of time. She stresses that,
unlike their co-accused Reynaldo Concepcion, respondents
Escalona et al.did not timely invoke their right to speedy trial
during the time that the original records and pieces of evidence
were unavailable. She again emphasizes that the prosecution
cannot be faulted entirely for the lapse of 12 years from the
arraignment until the initial trial, as there were a number of
incidents attributable to the accused themselves that caused
the delay of the proceedings. She then insists that we apply
the balancing test in determining whether the right to speedy
trial of the accused was violated.
Motion for Reconsideration filed by the OSG
The OSG, in its Motion for Reconsideration 9 of G.R. Nos.
155101 (Dizon v. People) and 154954 (People v. Court of
Appeals), agrees with the findings of this Court that accused
Dizon and Tecson et al. had neither the felonious intent to kill
(animus interficendi) nor the felonious intent to injure (animus
iniuriandi) Lenny Villa. In fact, it concedes that the mode in
which the accused committed the crime was through fault
(culpa). However, it contends that the penalty imposed should

have been equivalent to that for deceit (dolo) pursuant to

Article 249 (Homicide) of the Revised Penal Code. It argues
that the nature and gravity of the imprudence or negligence
attributable to the accused was so gross that it shattered the
fine distinction between dolo and culpaby considering the act
as one committed with malicious intent. It maintains that the
accused conducted the initiation rites in such a malevolent and
merciless manner that it clearly endangered the lives of the
initiates and was thus equivalent to malice aforethought.
With respect to the 19 other accused, or Victorino et al., the
OSG asserts that their acquittal may also be reversed despite
the rule on double jeopardy, as the CA also committed grave
abuse of discretion in issuing its assailed Decision (CA-G.R.
No. 15520). The OSG insists that Victorino et al. should have
been similarly convicted like their other co-accused Dizon,
Almeda, Ama, Bantug, and Tecson, since the former also
participated in the hazing of Lenny Villa, and their actions
contributed to his death.
Motions for Clarification or Reconsideration of Tecson et al.
Respondents Tecson et al.,10 filed their respective motions
pertaining to G.R. No. 154954 (People v. Court of Appeals).
They essentially seek a clarification as to the effect of our
Decision insofar as their criminal liability and service of
sentence are concerned. According to respondents, they
immediately applied for probation after the CA rendered its
Decision (CAG.R. No. 15520) lowering their criminal liability
from the crime of homicide, which carries a non-probationable
sentence, to slight physical injuries, which carries a
probationable sentence. Tecson et al.contend that, as a result,
they have already been discharged from their criminal liability
and the cases against them closed and terminated. This
outcome was supposedly by virtue of their Applications for
Probation on various dates in January 200211 pursuant to
Presidential Decree No. 968, as amended, otherwise known as
the Probation Law. They argue that Branch 130 of Caloocan
City Regional Trial Court (RTC) had already granted their
respective Applications for Probation on 11 October
200212 and, upon their completion of the terms and conditions
thereof, discharged them from probation and declared the
criminal case against them terminated on various dates in April
2003.13
To support their claims, respondents attached14 certified true
copies of their respective Applications for Probation and the
RTC Orders granting these applications, discharging them
from probation, and declaring the criminal case against them
terminated. Thus, they maintain that the Decision in CA-G.R.
No. 15520 had already lapsed into finality, insofar as they were
concerned, whenthey waived their right to appeal and applied
for probation.
ISSUES
I. Whether the CA committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it dismissed
the case against Escalona, Ramos, Saruca, and Adriano for
violation of their right to speedy trial

II. Whether the penalty imposed on Tecson et al. should have

corresponded to that for intentional felonies
III. Whether the completion by Tecson et al. of the terms and
conditions of their probation discharged them from their
criminal liability, and closed and terminated the cases against
them DISCUSSION
Findings on the Motion for Partial Reconsideration of
Petitioner Gerarda H. Villa
As regards the first issue, we take note that the factual
circumstances and legal assertions raised by petitioner Villa in
her Motion for Partial Reconsideration concerning G.R. Nos.
178057 & 178080 have already been thoroughly considered
and passed uponin our deliberations, which led to our Decision
dated 1 February 2012. We emphasize that in light of the
finding of violation of the right of Escalona et al. to speedy trial,
the CAs dismissal of the criminal case against them amounted
to an acquittal,15 and that any appeal or reconsideration thereof
would result in a violation of their right against double
jeopardy.16 Though we have recognized that the acquittal of the
accused may be challenged where there has been a grave
abuse of discretion,17 certiorari would lie if it is convincingly
established that the CAs Decision dismissing the case was
attended by a whimsical or capricious exercise of judgment
equivalent to lack of jurisdiction. It must be shown that the
assailed judgment constitutes "a patent and gross abuse of
discretion amounting to an evasion of a positive duty or to a
virtual refusal to perform a duty imposed by law or toact in
contemplation of law; an exercise of power in an arbitrary and
despotic manner by reason of passion and hostility; or a
blatant abuse of authority to a point so grave and so severe as
to deprive the court of its very power to dispense
justice."18 Thus, grave abuse of discretion cannot be attributed
to a court simply because it allegedly misappreciated the facts
and the evidence.19
We have taken a second look at the court records, the CA
Decision, and petitioners arguments and found no basis to rule
that the CA gravely abused its discretion in concluding that the
right to speedy trial of the accused was violated. Its findings
were sufficiently supported by the records of the case and
grounded in law. Thus, we deny the motion of petitioner Villa
with finality.
Ruling on the Motion for Reconsideration filed by the OSG
We likewise deny with finality the Motion for Reconsideration
filed by the OSG with respect to G.R. Nos. 155101 (Dizon v.
People) and 154954 (People v. Court of Appeals). Many of the
arguments raised therein are essentially a mere rehash of the
earlier grounds alleged in its original Petition for Certiorari.
Furthermore, we cannot subscribe to the OSGs theory that
even if the act complained of was born of imprudence or
negligence, malicious intent can still be appreciated on account
of the gravity of the actions of the accused. We emphasize that
the finding of a felony committed by means of culpa is legally
inconsistent with that committed by means of dolo. Culpable
felonies involve those wrongs done as a result of an act

performed without malice or criminal design. The Revised

Penal Code expresses thusly:
ARTICLE 365. Imprudence and Negligence. Any person
who, by reckless imprudence, shall commit any act which, had
it been intentional, would constitute a grave felony, shall suffer
the penalty of arresto mayorin its maximum period toprisin
correccional in its medium period; if it would have constituted a
less grave felony, the penalty of arresto mayor in its minimum
and medium periods shall be imposed.
Any person who, by simple imprudence or negligence, shall
commit an act which would otherwise constitute a grave felony,
shall suffer the penalty of arresto mayorin its medium and
maximum periods; if it would have constituted a less serious
felony, the penalty of arresto mayor in its minimum period shall
be imposed.
xxxx
Reckless imprudence consists in voluntary, but without malice,
doing or falling to do an act from which material damage
results by reason of inexcusable lack of precaution on the part
of the person performing or failing to perform suchact, taking
into consideration his employment or occupation, degree of
intelligence, physical condition and other circumstances
regarding persons, time and place.
Simple imprudence consists in the lack of precaution displayed
in those cases in which the damage impending to be caused is
not immediate nor the danger clearly manifest. (Emphases
supplied)
On the other hand, intentional felonies concern those wrongs
in which a deliberate malicious intent to do an unlawful act is
present. Below is our exhaustive discussion on the
matter:20 Our Revised Penal Code belongs tothe classical
school of thought. x x x The identity of mens rea defined as a
guilty mind, a guilty or wrongful purpose or criminal intent is
the predominant consideration. Thus, it is not enough to do
what the law prohibits. In order for an intentional felony to exist,
it is necessary that the act be committed by means of doloor
"malice."
The term "dolo" or "malice" is a complex idea involving the
elements of freedom, intelligence, and intent. x x x x The
element of intent on which this Court shall focus is
described as the state of mind accompanying an act,
especially a forbidden act. It refers to the purpose of the mind
and the resolve with which a person proceeds.It does not refer
to mere will, for the latter pertains to the act, while
intentconcerns the result of the act. While motive is the
"moving power" that impels one to action for a definite result,
intent is the "purpose" of using a particular means to produce
the result. On the other hand, the term "felonious"means, inter
alia, malicious, villainous, and/or proceeding from an evil heart
or purpose.With these elements taken together, the
requirement of intent in intentional felony must refer to
malicious intent, which is a vicious and malevolent state of
mind accompanying a forbidden act. Stated otherwise,
intentional felony requires the existence of dolus malus that

the act or omission be done "willfully," "maliciously," "with

deliberate evil intent," and "with malice aforethought." The
maxim is actus non facit reum, nisi mens sit rea a crime is not
committed if the mind of the person performing the act
complained of is innocent. As is required of the other elements
of a felony, the existence of malicious intent must be proven
beyond reasonable doubt.
xxxx
The presence of an initial malicious intent to commit a felony is
thus a vital ingredient in establishing the commission of the
intentional felony of homicide. Being mala in se, the felony of
homicide requires the existence of malice or dolo immediately
before or simultaneously with the infliction of injuries. Intent to
kill or animus interficendi cannot and should not be inferred,
unless there is proof beyond reasonable doubt of such intent.
Furthermore, the victims death must not have been the
product of accident, natural cause, or suicide. If death resulted
from an act executed without malice or criminal intent but
with lack of foresight, carelessness, or negligence the act
must be qualified as reckless or simple negligence or
imprudence resulting in homicide.
xxxx
In order to be found guilty ofany of the felonious acts under
Articles 262 to 266 of the Revised Penal Code, the
employment of physical injuries must be coupled with dolus
malus. As an act that is mala in se, the existence of malicious
intent is fundamental, since injury arises from the mental state
of the wrongdoer iniuria ex affectu facientis consistat. If there
is no criminal intent, the accused cannot be found guilty of an
intentional felony. Thus, incase of physical injuries under the
Revised Penal Code, there must be a specific animus
iniuriandi or malicious intention to do wrong against the
physical integrity or wellbeing of a person, so as to incapacitate
and deprive the victim of certain bodily functions. Without proof
beyond reasonable doubt of the required animus iniuriandi, the
overt act of inflicting physical injuries per semerely satisfies the
elements of freedom and intelligence in an intentional felony.
The commission of the act does not, in itself, make a man
guilty unless his intentions are.
Thus, we have ruled in a number of instances that the mere
infliction of physical injuries, absentmalicious intent, does not
make a person automatically liable for an intentional felony.x x
x.
xxxx
The absence of malicious intent does not automatically mean,
however, that the accused fraternity members are ultimately
devoid of criminal liability. The Revised Penal Code also
punishes felonies that are committed by means of fault (culpa).
According to Article 3 thereof, there is fault when the wrongful
act results from imprudence, negligence, lack of foresight, or
lack of skill.
Reckless imprudence or negligence consists of a voluntary act
done without malice, from which an immediate personal harm,

injury or material damage results by reason of an inexcusable

lack of precaution or advertence on the part of the person
committing it. In this case, the danger is visible and
consciously appreciated by the actor. In contrast, simple
imprudence or negligence comprises an act done without
grave fault, from which an injury or material damage ensues by
reason of a mere lack of foresight or skill. Here, the threatened
harm is not immediate, and the danger is not openly visible.
The test for determining whether or not a person is negligent in
doing an act is as follows: Would a prudent man in the position
of the person to whom negligence is attributed foresee harm to
the person injured as a reasonable consequence of the course
about to be pursued? If so, the law imposes on the doer the
duty to take precaution against the mischievous resultsof the
act. Failure to do so constitutes negligence.
As we held in Gaid v. People, for a person to avoid being
charged with recklessness, the degree of precaution and
diligence required varies with the degree of the danger
involved. If, on account of a certain line of conduct, the danger
of causing harm to another person is great, the individual who
chooses to follow that particular course of conduct is bound to
be very careful, inorder to prevent or avoid damage or injury. In
contrast, if the danger is minor, not much care is required. It is
thus possible that there are countless degrees of precaution or
diligence that may be required of an individual, "from a
transitory glance of care to the most vigilant effort." The duty of
the person to employ more or less degree of care will depend
upon the circumstances of each particular case. (Emphases
supplied, citations omitted)
We thus reiterate that the law requires proof beyond
reasonable doubt of the existence of malicious intent or dolus
malus before an accused can be adjudged liable for
committing an intentional felony.
Since the accused were found to have committed a felony by
means of culpa, we cannot agree with the argument of the
OSG. It contends that the imposable penalty for intentional
felony can also be applied to the present case on the ground
that the nature of the imprudence or negligence of the accused
was so gross that the felony already amounted to malice. The
Revised Penal Code has carefully delineated the imposable
penalties as regards felonies committed by means of culpaon
the one hand and felonies committed by means of doloon the
other in the context of the distinctions it has drawn between
them. The penalties provided in Article 365 (Imprudence and
Negligence) are mandatorily applied if the death of a person
occurs as a result of the imprudence or negligence of another.
Alternatively, the penalties outlined in Articles 246 to 261
(Destruction of Life) are automatically invoked if the death was
a result of the commission of a forbidden act accompanied by
a malicious intent. These imposable penalties are statutory,
mandatory, and not subjectto the discretion of the court. We
have already resolved and the OSG agrees that the
accused Dizon and Tecson et al. had neither animus
interficendi nor animus iniuriandi in inflicting physical pain on
Lenny Villa. Hence, we rule that the imposable penalty is what
is applicable to the crime of reckless imprudence resulting in

homicide as defined and penalized under Article 365 of the

Revised Penal Code.
Ruling on the Motions for Clarification or Reconsideration
filed by Tecson et al.
We clarify, however, the effect of our Decision in light of the
motions of respondents Tecson et al. vis--vis G.R. No.
154954 (People v. Court of Appeals).
The
finality
of
a
bar
the
state
annulment
of
the
Rule 65 petition.

CA
decision
will
from
seeking
judgment
via

not
the
a

In their separate motions,21 respondents insist that the previous

verdict of the CA finding them guilty of slight physical injuries
has already lapsed into finality as a result of their respective
availments of the probation program and their ultimate
discharge therefrom. Hence, they argue that they can no
longer be convicted of the heavier offense of reckless
imprudence resulting in homicide.22 Respondents allude to our
Decision in Tan v. People23 to support their contention that the
CA judgment can no longer be reversed or annulled even by
this Court.
The OSG counters24 that the CA judgment could not have
attained finality, as the former had timely filed with this Court a
petition for certiorari. It argues that a Rule 65 petition is
analogous to an appeal, or a motion for new trial or
reconsideration, in that a petition for certiorarialso prevents the
case from becoming final and executory until after the matter is
ultimately resolved.
Indeed, Rule 120 of the Rules of Court speaks of the finality of
a criminal judgment once the accused applies for probation,
viz:
SECTION 7. Modification of judgment. A judgment of
convictionmay, upon motion of the accused, be modified or set
aside before it becomes final or before appeal is perfected.
Except where the death penalty is imposed, a judgment
becomes finalafter the lapse of the period for perfecting an
appeal, or whenthe sentence has been partially or totally
satisfied or served, or when the accusedhas waived in writing
his right to appeal, or has applied for probation. (7a)
(Emphases supplied)
Coupled with Section 7 of Rule 117 25 and Section 1 of Rule
122,26 it can be culled from the foregoing provisions that only
the accused may appeal the criminal aspect of a criminal case,
especially if the relief being sought is the correction or review
of the judgment therein. This rule was instituted in order to give
life to the constitutional edict27against putting a person twice in
jeopardy of punishment for the same offense. It is beyond
contention that the accused would be exposed to double
jeopardy if the state appeals the criminal judgment in order to
reverse an acquittal or even to increase criminal liability. Thus,
the accuseds waiver of the right to appeal as when applying
for probation makes the criminal judgment immediately final

and executory. Our explanation in People v. Nazareno is worth

reiterating:28
Further prosecution via an appeal from a judgment of acquittal
is likewise barred because the government has already been
afforded a complete opportunity to prove the criminal
defendants culpability; after failing to persuade the court to
enter a final judgment of conviction, the underlying reasons
supporting the constitutional ban on multiple trials applies and
becomes compelling. The reason is not only the defendants
already established innocence at the first trial where he had
been placed in peril of conviction, but also the same untoward
and prejudicial consequences of a second trial initiated by a
government who has at its disposal all the powers and
resources of the State.
Unfairness and prejudice would necessarily result, as the
government would then be allowed another opportunity to
persuade a second trier of the defendants guilt while
strengthening any weaknesses that had attended the first trial,
all in a process where the governments power and resources
are once again employed against the defendants individual
means. That the second opportunity comesvia an appeal does
not make the effects any less prejudicial by the standards of
reason, justice and conscience. (Emphases supplied, citations
omitted)
It must be clarified, however, that the finality of judgment
evinced in Section 7 of Rule 120 does not confer blanket
invincibility on criminal judgments. We have already explained
in our Decision that the rule on double jeopardy is not absolute,
and that this rule is inapplicable to cases in which the state
assails the very jurisdiction of the court that issued the criminal
judgment.29 The reasoning behind the exception is articulated
in Nazareno, from which we quote:30
In such instance, however, no review of facts and law on the
merits, in the manner done in an appeal, actually takes place;
the focus of the review is on whether the judgment is per
sevoid on jurisdictional grounds, i.e., whether the verdict was
rendered by a court that had no jurisdiction; or where the court
has appropriate jurisdiction, whether it acted with grave abuse
of discretion amounting to lack or excess of jurisdiction. In
other words, the review is on the question of whether there has
been a validly rendered decision, not on the question of the
decisions error or correctness. Under the exceptional nature of
a Rule 65 petition, the burden a very heavy one is on the
shoulders of the party asking for the review to show the
presence of a whimsical or capricious exercise of judgment
equivalent to lack of jurisdiction; or of a patent and gross abuse
of discretion amounting to an evasion of a positive duty or a
virtual refusal to perform a duty imposed by law or to act in
contemplation of law; or to an exercise of power in an arbitrary
and despotic manner by reason of passion and hostility.
(Emphases supplied, citations omitted) While this Courts
Decision in Tan may have created an impression of the
unassailability of a criminal judgment as soon as the accused
applies for probation, we point out that what the state filed
therein was a mere motion for the modification of the penalty,
and not a Rule 65 petition. A petition for certiorari is a special
civil action that is distinct and separate from the main case.

While in the main case, the core issue is whether the accused
is innocent or guilty of the crime charged, the crux of a Rule 65
petition is whether the court acted (a) without or in excess of its
jurisdiction; or (b) with grave abuse of discretion amounting to
lack or excess of jurisdiction. Hence, strictly speaking, there is
nomodification of judgment in a petition for certiorari, whose
resolution does not call for a re-evaluation of the merits of the
case in order to determine the ultimate criminal responsibility of
the accused. In a Rule 65 petition, any resulting annulment of a
criminal judgment is but a consequence of the finding of lack of
jurisdiction.
In view thereof, we find that the proper interpretation of Section
7 of Rule 120 must be that it is inapplicable and irrelevant
where the courts jurisdiction is being assailed through a Rule
65 petition. Section 7 of Rule 120 bars the modification of a
criminal judgment only if the appeal brought before the court is
in the nature of a regular appeal under Rule 41, or an appeal
by certiorari under Rule 45, and if that appeal would put the
accused in double jeopardy. As it is, we find no irregularity in
the partial annulment of the CA Decision in CA-G.R. No. 15520
in spite of its finality, as the judgment therein was issued with
grave abuse of discretion amounting to lack or excess of
jurisdiction.
The
orders
of
Caloocan
Branch
130
have
no
legal
they were issued without jurisdiction.

City
effect,

RTC
as

First, Tecson et al. filed their Applications for Probation with the
wrong court. Part and parcel of our criminal justice system is
the authority or jurisdiction of the court to adjudicate and
decide the case before it. Jurisdiction refers to the power and
capacity of the tribunal to hear, try, and decide a particular
case or matter before it.31 That power and capacity includes
the competence to pronounce a judgment, impose a
punishment,32 and enforce or suspend33 the execution of a
sentencein accordance with law.
The OSG questions34 the entire proceedings involving the
probation applications of Tecson et al. before Caloocan City
RTC Branch 130. Allegedly, the trial court did not have
competence to take cognizance of the applications,
considering that it was not the court of origin of the criminal
case. The OSG points out that the trial court that originally
rendered the Decision in Criminal Case No. C-38340(91) was
Branch 121 of the Caloocan City RTC.
The pertinent provision of the Probation Law is hereby quoted
for reference:
SEC. 4. Grant of Probation. Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and
sentenced a defendant, and upon application by said
defendant within the period for perfecting an appeal, suspend
the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions
as it may deem best; Provided, That no application for
probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction. x x x x
(Emphases supplied)

It is obvious from the foregoing provision that the law requires

that an application for probation be filed withthe trial court that
convicted and sentenced the defendant, meaning the court of
origin. Here, the trial court that originally convicted and
sentenced Tecson et al.of the crime of homicide was Branch
121 not Branch 130 of the Caloocan City RTC. 35 Neither
the judge of Branch 130 in his Orders nor Tecson et al.in their
pleadings have presented any explanation or shown any
special authority that would clarify why the Applications for
Probation had not been filed with or taken cognizance of by
Caloocan City RTC Branch 121. While we take note that in a
previous case, the CA issued a Decision ordering the inhibition
of Branch 121 Judge Adoracion G. Angeles from hearing and
deciding Criminal Case No. C-38340(91), the ruling was made
specifically applicable to the trial of petitioners therein, i.e.
accused Concepcion, Ampil, Adriano, and S. Fernandez.36
Tecson et al. thus committed a fatal error when they filed their
probation applications with Caloocan City RTC Branch 130,
and not with Branch 121. We stress that applicants are not at
liberty to choose the forum in which they may seek probation,
as the requirement under Section 4 of the Probation law is
substantive and not merely procedural. Considering, therefore,
that the probation proceedings were premised on an
unwarranted exercise of authority, we find that Caloocan City
RTC Branch 130 never acquired jurisdiction over the case.
Second, the records of the casewere still with the CA when
Caloocan City RTC Branch 130 granted the probation
applications. Jurisdiction over a case is lodged with the court in
which the criminal action has been properly instituted. 37 If a
party appeals the trial courts judgment or final
order,38 jurisdiction is transferred to the appellate court. The
execution of the decision is thus stayed insofar as the
appealing party is concerned.39 The court of origin then loses
jurisdiction over the entire case the moment the other partys
time to appeal has expired.40 Any residual jurisdiction of the
court of origin shall cease including the authority to order
execution pending appeal the moment the complete records
of
the
case
are
transmitted
to
the
appellate
court.41 Consequently, it is the appellate court that shall have
the authority to wield the power to hear, try, and decide the
case before it, as well as to enforce its decisions and
resolutions appurtenant thereto. That power and authority shall
remain with the appellate court until it finally disposes of the
case. Jurisdiction cannot be ousted by any subsequent event,
even if the nature of the incident would have prevented
jurisdiction from attaching in the first place.
According to Article 78 of the Revised Penal Code, "[n]o
penalty shall be executed except by virtue of a final judgment."
A judgment of a court convicting or acquitting the accused of
the offense charged becomes final under any of the following
conditions among others:42 after the lapse of the period for
perfecting an appeal; when the accused waives the right to
appeal; upon the grant of a withdrawal ofan appeal; when the
sentence has already been partially or totally satisfied or
served; or when the accused applies for probation. When the
decision attains finality, the judgment or final order is entered in
the book of entries of judgments.43 If the case was previously
appealed to the CA, a certified true copy of the judgment or

final order must be attached to the original record, which shall

then be remanded to the clerk of the court from which the
appeal was taken.44 The court of origin then reacquires
jurisdiction over the case for appropriate action. It is during this
time that the court of origin may settle the matter of the
execution of penalty or the suspension of the execution
thereof,45 including the convicts applications for probation.46
A perusal of the case records reveals that the CA had not yet
relinquished its jurisdiction over the case when Caloocan City
RTC Branch 130 took cognizance of the Applications for
Probation of Tecson et al. It shows that the accused filed their
respective applications47 while a motion for reconsideration
was still pending before the CA48 and the records were still with
that court.49 The CA settled the motion only upon issuing the
Resolution dated 30 August 2002 denying it, or about seven
months after Tecson et al. had filed their applications with the
trial court.50 In September 2002, or almost a month before the
promulgation of the RTC Order dated 11 October 2002
granting the probation applications,51 the OSG had filed
Manifestations of Intent to File Petition for Certiorari with the
CA52 and this Court.53 Ultimately, the OSG assailed the CA
judgments by filing before this Court a Petition for Certiorari on
25 November 2002.54 We noted the petition and then required
respondents to file a comment thereon.55 After their submission
of further pleadings and motions, we eventually required all
parties to file their consolidated memoranda.56 The records of
the case remained with the CA until they were elevated to this
Court in 2008.57
For the foregoing reasons, we find that RTC Branch 130 had
no jurisdiction to act on the probation applications of Tecson et
al. It had neither the power nor the authority to suspend their
sentence, place them on probation, order their final discharge,
and eventually declare the case against them terminated. This
glaring jurisdictional faux pasis a clear evidence of either gross
ignorance of the law oran underhanded one-upmanship on the
part of RTC Branch 130 or Tecson et al., or both to which this
Court cannot give a judicial imprimatur.
In any event, Tecson et al. were ineligible to seek probation at
the time they applied for it. Probation 58 is a special privilege
granted by the state to penitent qualified offenders who
immediately admit their liability and thus renounce their right to
appeal. In view of their acceptance of their fate and willingness
to be reformed, the state affords them a chance to avoid the
stigma of an incarceration recordby making them undergo
rehabilitation outside of prison. Some of the major purposes of
the law are to help offenders to eventually develop themselves
into law-abiding and self respecting individuals, as well as to
assist them in their reintegration with the community.
It must be reiterated that probation is not a right enjoyed by the
accused. Rather, it is an act of grace orclemency conferred by
the state. In Francisco v. Court of Appeals, 59 this Court
explained thus:
It is a special prerogative granted by law to a person or group
of persons not enjoyed by others or by all. Accordingly, the
grant of probation rests solely upon the discretion of the court
which is to be exercised primarily for the benefit of organized

society, and only incidentally for the benefit of the accused.

The Probation Law should not therefore be permitted to divest
the state or its government of any of the latters prerogatives,
rights or remedies, unless the intention of the legislature to this
end is clearly expressed, and no person should benefit from
the terms of the law who is not clearly within them. (Emphases
supplied)
The OSG questions the validity of the grant of the probation
applications of Tecson et al.60 It points out that when they
appealed to the CA their homicide conviction by the RTC, they
thereby made themselves ineligible to seek probation pursuant
to Section 4 of Presidential Decree No. 968 (the Probation
Law).
We refer again to the full text ofSection 4 of the Probation Law
as follows:
SEC. 4. Grant of Probation. Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and
sentenced a defendant, and upon application by said
defendant within the period for perfecting an appeal, suspend
the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions
as it may deem best; Provided, That no application for
probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction.
Probation may be granted whether the sentence imposes a
term of imprisonment or a fine only. An application for
probation shall be filed with the trial court. The filing of the
application shall be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be appealable.
(Emphases supplied)
Indeed, one of the legal prerequisites of probation is that the
offender must not have appealed the conviction. 61 In the 2003
case Lagrosa v. Court of Appeals, 62 this Court was faced with
the issue of whether a convict may still apply for probation
even after the trial court has imposed a non probationable
verdict, provided that the CA later on lowers the original
penalty to a sentence within the probationable limit. In that
case, the trial court sentenced the accused to a maximum term
of eight years of prisin mayor, which was beyond the
coverage of the Probation Law. They only became eligible for
probation after the CA reduced the maximum term of the
penalty imposed to 1 year, 8 months and 21 days of prisin
correccional.
In deciding the case, this Court invoked the reasoning in
Francisco and ruled that the accused was ineligiblefor
probation, since they had filed an appeal with the CA. In
Francisco, we emphasized that Section 4 of the Probation Law
offers no ambiguity and does not provide for any distinction,
qualification, or exception. What is clearis that all offenders
who previously appealed their cases, regardless of their
reason for appealing, are disqualified by the law from seeking
probation. Accordingly, this Court enunciated in Lagrosathat
the accused are disallowed from availing themselves of the
benefits of probation if they obtain a genuine opportunity to

apply for probation only on appeal as a result of the

downgrading of their sentence from non-probationable to
probationable.
While Lagrosa was promulgated three months after Caloocan
City RTC Branch 130 issued its various Orders discharging
Tecson et al. from probation, the ruling in Lagrosa, however,
was a mere reiteration of the reasoning of this Court since the
1989 case Llamado v. Court of Appeals 63 and Francisco. The
Applications for Probation of Tecson et al., therefore, should
not have been granted by RTC Branch 130, as they had
appealed their conviction to the CA. We recall that respondents
were originally found guilty of homicide and sentenced to suffer
14 years, 8 months, and 1 day of reclusion temporal as
maximum. Accordingly, even if the CA later downgraded their
conviction to slight physical injuries and sentenced them to 20
days of arresto menor, which made the sentence fall within
probationable limits for the first time, the RTC should have
nonetheless found them ineligible for probation at the time.
The actions of the trial court must thus be adjudged as an
arbitrary and despotic use of authority, so gross that it divested
the court of its very power to dispense justice. As a
consequence, the RTC Orders granting the Applications for
Probation of Tecson et al. and thereafter discharging them from
their criminal liability must be deemed to have been issued with
grave abuse of discretion amounting to lack or excess of
jurisdiction.
Whether for lack of jurisdiction orfor grave abuse of discretion,
amounting to lack or excess of jurisdiction, we declare all
orders, resolutions, and judgments of Caloocan City RTC
Branch 130 in relation to the probation applications of Tecson
et al. null and void for having been issued without jurisdiction.
We
find
our
pronouncement
in
Galman
v.
Sandiganbayan64 applicable, viz:
A void judgment is, in legal effect, no judgment at all. By it no
rights are divested. Through it, no rights can be attained. Being
worthless, all proceedings founded upon it are equally
worthless. It neither binds nor bars anyone. All acts performed
under it and all claims flowing out of it are void. (Emphasis
supplied)
The
ultimate
discharge
al.
from
probation
extinguish their criminal liability.

of
did

Tecson
et
not
totally

Accused Bantug asserts65 that, in any event, their criminal

liability has already been extinguished as a result of their
discharge from probation and the eventual termination of the
criminal case against them by Caloocan City RTC Branch 130.
To support his argument, he cites the following provision of the
Revised Penal Code:
ARTICLE 89. How Criminal Liability is Totally Extinguished.
Criminal liability is totally extinguished:
1. By the death of the convict, as to the personal penalties; and
as to pecuniary penalties, liability therefor is extinguished only
when the death of the offender occurs before final judgment.

2. By service of the sentence.

3. By amnesty, which completely extinguishes the penalty and
all its effects.
4. By absolute pardon.
5. By prescription of the crime.
6. By prescription of the penalty.
7. By the marriage of the offended woman, as provided in
article 344 of this Code. (Emphasis supplied)
As previously discussed, a void judgment cannot be the source
of legal rights; legally speaking, it is as if no judgment had
been rendered at all. Considering our annulment of the Orders
of Caloocan City RTC Branch 130 in relation to the probation
proceedings, respondents cannot claim benefits that
technically do not exist.
In any event, Tecson et al.cannot invoke Article89 of the
Revised Penal Code, as we find it inapplicable to this case.
One of the hallmarks of the Probation Law is precisely to
"suspend the execution of the sentence,"66 and not to replace
the original sentence with another, as we pointed out in our
discussion in Baclayon v. Mutia:67
An order placing defendant on "probation" is not a "sentence"
but is rather in effect a suspension of the imposition of
sentence. It is not a final judgment but is rather an
"interlocutory judgment"in the nature of a conditional order
placing the convicted defendant under the supervision of the
court for his reformation, to be followed by a final judgment of
discharge, if the conditions of the probation are complied with,
or by a final judgment of sentence if the conditions are violated.
(Emphases supplied)
Correspondingly, the criminal liability of Tecson et al.remains.
In
light
of
our
recent
Decision
in
Colinares
v.
People,
Tecson
et
al.
may now reapply for probation.
68

Very recently, in Colinares v. People, we revisited our ruling in

Franciscoand modified our pronouncements insofar as the
eligibility for probation of those who appeal their conviction is
concerned. Through a majority vote of 9-6, the Court En
Bancin effect abandoned Lagrosaand settled the following
once and for all:69
Secondly, it is true that under the probation law the accused
who appeals "from the judgment of conviction" is disqualified
from availing himself of the benefits of probation. But, as it
happens, two judgments of conviction have been meted out to
Arnel: one, a conviction for frustrated homicide by the regional
trial court,now set aside; and, two, a conviction for attempted
homicide by the Supreme Court.
If the Court chooses to go by the dissenting opinions hard
position, it will apply the probation law on Arnel based on the
trial courts annulled judgment against him. He will not be
entitled to probation because of the severe penalty that such

judgment imposed on him. More, the Supreme Courts

judgment of conviction for a lesser offense and a lighter
penalty will also have to bend over to the trial courts judgment
even if this has been found in error. And, worse, Arnel will
now also be made to pay for the trial courts erroneous
judgment with the forfeiture of his right to apply for probation.
Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw(the
horse errs, the carabao gets the whip). Where is justice there?
The dissenting opinion also expresses apprehension that
allowing Arnel to apply for probation would dilute the ruling of
this Court in Francisco v. Court of Appealsthat the probation
law requires that an accused must not have appealed his
conviction before he can avail himself of probation. But there is
a huge difference between Franciscoand this case.
xxxx
Here, however, Arnel did not appeal from a judgment that
would have allowed him to apply for probation. He did not have
a choice between appeal and probation. Hewas not in a
position to say, "By taking this appeal, I choose not to apply for
probation." The stiff penalty that the trial court imposed on him
denied him that choice. Thus, a ruling that would allow Arnel to
now seek probation under this Courts greatly diminished
penalty will not dilute the sound ruling in Francisco. It remains
that those who will appeal from judgments of conviction, when
they have the option to try for probation, forfeit their right to
apply for that privilege.
xxxx
In a real sense, the Courts finding that Arnel was guilty, not of
frustrated homicide, but only of attempted homicide, is an
original conviction that for the first time imposes on him a
probationable penalty. Had the RTC done him right from the
start, it would have found him guilty of the correct offense and
imposed on him the right penalty of two years and four months
maximum. This would have afforded Arnel the right to apply for
probation.
The Probation Law never intended to deny an accused his
right to probation through no fault of his. The underlying
philosophy of probation is one of liberality towards the
accused. Such philosophy is not served by a harsh and
stringent interpretation of the statutory provisions. As Justice
Vicente V. Mendoza said in his dissent in Francisco, the
Probation Law must not be regarded as a mere privilege to be
given to the accused only where it clearly appears he comes
within its letter; to do so would be to disregard the teaching in
many cases that the Probation Law should be applied in favor
of the accused not because it is a criminal law but to achieve
its beneficent purpose.
xxxx
At any rate, what is clear is that, had the RTC done what was
right and imposed on Arnel the correct penalty of two years
and four months maximum, he would havehad the right to
apply for probation. No one could say with certainty that he
would have availed himself of the right had the RTC doneright

by him. The idea may not even have crossed his mind
precisely since the penalty he got was not probationable.

the accessory penalties inherent to the principal penalty

imposed on Dizon and Tecson et al.

The question in this case is ultimately one of

fairness.1wphi1 Is it fair to deny Arnel the right to apply for
probation when the new penalty that the Court imposes on him
is, unlike the one erroneously imposed by the trial court,
subject to probation? (Emphases supplied)

By operation of Articles 40 to 45 and 73 of the Revised Penal

Code, a corresponding accessory penalty automatically
attaches every time a court lays down a principal penalty
outlined in Articles 25 and 27 thereof. 71 The applicable
accessory penalty is determined by using as reference the
principal penaltyimposed by the court before the prison
sentence is computed in accordance with the ISL.72 This
determination is made in spite of the two classes ofpenalties
mentioned in an indeterminate sentence. It must be
emphasized that the provisions on the inclusion of accessory
penalties specifically allude to the actual "penalty" 73 imposed,
not to the "prison sentence"74 set by a court. We believe that
the ISL did not intend to have the effect of imposing on the
convict two distinct sets of accessory penalties for the same
offense.75 The two penalties are only relevant insofar as setting
the minimum imprisonment period is concerned, after which
the convict may apply for parole and eventually seek the
shortening of the prison term.76

In our Decision, we set aside the RTC and the CA judgments

and found Tecson et al.ultimately liable for the crime of
reckless imprudence resulting in homicide. Pursuant to Article
365 of the Revised Penal Code, the offense is punishable by
arresto mayor in its maximum period (from 4 months and 1 day
to 6 months) to prisin correccional in its medium period (from
2 years, 4 months, and 1 day to 4 years and 2 months).
Considering that the new ruling in Colinares is more favorable
to Tecson et al., we rule that they are now eligible to apply for
probation. Since Fidelito Dizon (Dizon) was convicted of the
same crime, we hereby clarify that Dizon is also eligible for
probation.
While we cannot recognize the validityof the Orders of RTC
Branch 130, which granted the Applications for Probation, we
cannot disregard the fact that Tecson et al. have fulfilled the
terms and conditions of their previous probation program and
have eventually been discharged therefrom. Thus, should they
reapply for probation, the trial court may, at its discretion,
consider their antecedent probation service in resolving
whether to place them under probation at this time and in
determining the terms, conditions, and period thereof.
Final clarificatory matters
We now take this opportunity to correct an unintentional
typographical error in the minimum term of the penalty
imposed on the accused Dizon and Tecson et al. While this
issue was not raised by any of the parties before us, this Court
deems it proper to discuss the matter ex proprio motuin the
interest of justice. In the first paragraph of the dispositive
portion of our Decision dated 1 February 2012, the fourth
sentence reads as follows:
They are hereby sentenced to suffer anindeterminate prison
term of four (4) months and one (1) day of arresto mayor, as
minimum, to four (4) years and two (2) months of prisin
correccional, as maximum.
As we had intended to impose on the accused the maximum
term of the "penalty next lower" than that prescribed by the
Revised Penal Code for the offense of reckless imprudence
resulting in homicide, in accordance with the Indeterminate
Sentence Law (ISL),70 the phrase "and one (1) day," which had
been inadvertently added, must be removed. Consequently, in
the first paragraph of the dispositive portion, the fourth
sentence should now read as follows:
They are hereby sentenced to suffer anindeterminate prison
term of four (4) months of arresto mayor, as minimum, to four
(4) years and two (2) months of prisin correccional, as
maximum. In this instance, we further find it important to clarify

Under Article 365 of the Revised Penal Code, the prescribed

penalty for the crime of reckless imprudence resulting in
homicide is arresto mayor in its maximum period to prisin
correccionalin its medium period. As this provision grants
courts the discretion tolay down a penalty without regard to the
presence of mitigating and aggravating circumstances, the
imposable penaltymust also be within the aforementioned
range.77 Hence, before applying the ISL, we ultimately imposed
on Dizon and Tecson et al. the actual (straight) penalty78 of four
years and two months of prisin correccional. 79 Pursuant to
Article 43 of the Revised Penal Code, the penalty of prisin
correccional automatically carries with it80 the following
accessory penalties: ARTICLE 43. Prisin Correccional Its
accessory penalties. The penalty of prisin correccional
shall carry with it that of suspension from public office, from the
right tofollow a profession or calling, and that of perpetual
special disqualification from the right of suffrage, if the duration
of said imprisonment shall exceed eighteen months. The
offender shall suffer the disqualification provided in this article
although pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon.
The duration of their suspension shall be the same as that of
their principal penalty sans the ISL; that is, for four years and
two months81 or until they have served their sentence in
accordance with law. Their suspension takes effect
immediately, once the judgment of conviction becomes final.82
We further point out that if the length of their imprisonment
exceeds 18 months, they shall furthermore suffer a perpetual
special disqualification from the right of suffrage. Under Article
32 of the RevisedPenal Code, if this accessory penalty
attaches, it shall forever deprive them of the exercise of their
right (a) to vote in any popular election for any public office; (b)
to be elected to that office; and (c) to hold any public
office.83 Any public office that they may be holding becomes
vacant upon finality of the judgment.84 The aforementioned
accessory penalties can only be wiped out if expressly remitted
in a pardon.85

Of course, the aforementioned accessory penalties are without

prejudice to a grant of probation, shouldthe trial court find them
eligible therefor. As we explained in Baclayon, 86 the grant of
probation suspends the execution of the principal penalty of
imprisonment, as well as that of the accessory penalties. We
have reiterated this point in Moreno v. Commission on
Elections:87
In Baclayon v. Mutia, the Court declared that an order placing
defendant on probation is not a sentence but is rather, in effect,
a suspension of the imposition of sentence. We held that the
grant of probation to petitioner suspended the imposition of the
principal penalty of imprisonment, as well as the accessory
penalties of suspension from public office and from the right to
follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage. We thus deleted from
the order granting probation the paragraph which required that
petitioner refrain from continuing with her teaching profession.
Applying this doctrine to the instant case, the accessory
penalties of suspension from public office, from the right to
follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, attendant to the
penalty of arresto mayor in its maximum period to prision
correccional in its minimum period imposed upon Moreno were
similarly suspended upon the grant of probation.

sentence of the first paragraph thereof. The sentence shall

now read as follows: "They are hereby sentenced to suffer an
indeterminate prison term of four (4) months of arresto mayor,
as minimum, to four (4) years and two (2) months of prisi6n
correccional, as maximum."
SO ORDERED.

U.S. vs. Ah Chong 15 PHIL 488

Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
G.R. No. L-5272

March 19, 1910

THE
UNITED
STATES, plaintiff-appellee,
vs.
AH CHONG, defendant-appellant.
Gibb
&
Gale,
for
Attorney-General Villamor, for appellee.

appellant.

CARSON, J.:
It appears then that during the period of probation, the
probationer is not even disqualified from running for a public
office because the accessory penalty of suspension from
public office is put on hold for the duration of the probation. x x
x x. During the period of probation, the probationer does not
serve the penalty imposed upon him by the court but is merely
required to comply with all the conditions prescribed in the
probation order.
WHEREFORE, premises considered, the Motion for Partial
Reconsideration of petitioner Gerarda H. Villa in connection
with G.R. Nos. 178057 & 178080 is hereby DENIED. The
Motion for Reconsideration filed by the Office of the Solicitor
General concerning G.R. Nos. 155101 and 154954 is also
DENIED.
The respective Motions for Clarification or Reconsideration of
Antonio Mariano Almeda, Junel Anthony D. Arna, Renato
Bantug, Jr., and Vincent Tecson are likewise DENIED. In light
of the finding that Caloocan City Regional Trial Court Branch
130 acted without or in excess of its jurisdiction in taking
cognizance of the aforementioned Applications for Probation,
we hereby ANNUL the entire probation proceedings and SET
ASIDE all orders, resolutions, or judgments issued in
connection thereto. We, however, CLARIFY that Antonio
Mariano Almeda, Junel Anthony D. Arna, Renato Bantug, Jr.,
Vincent Tecson, and Fidelito Dizon are eligible to apply or
reapply for probation in view of our recent ruling in Colinares v.
People of the Philippines,88 without prejudice to their remaining
civil liability, if any.
Furthermore, we issue a CORRECTION of the dispositive
portion of our Decision dated 1 February 2012 and hereby
delete the phrase "and one (1) day" located in the fourth

The evidence as to many of the essential and vital facts in this

case is limited to the testimony of the accused himself,
because from the very nature of these facts and from the
circumstances surrounding the incident upon which these
proceedings rest, no other evidence as to these facts was
available either to the prosecution or to the defense. We think,
however, that, giving the accused the benefit of the doubt as to
the weight of the evidence touching those details of the
incident as to which there can be said to be any doubt, the
following statement of the material facts disclose by the record
may be taken to be substantially correct:
The defendant, Ah Chong, was employed as a cook at
"Officers' quarters, No. 27," Fort Mc Kinley, Rizal Province, and
at the same place Pascual Gualberto, deceased, was
employed as a house boy or muchacho. "Officers' quarters No.
27" as a detached house situates some 40 meters from the
nearest building, and in August, 19087, was occupied solely as
an officers' mess or club. No one slept in the house except the
two servants, who jointly occupied a small room toward the
rear of the building, the door of which opened upon a narrow
porch running along the side of the building, by which
communication was had with the other part of the house. This
porch was covered by a heavy growth of vines for its entire
length and height. The door of the room was not furnished with
a permanent bolt or lock, and occupants, as a measure of
security, had attached a small hook or catch on the inside of
the door, and were in the habit of reinforcing this somewhat
insecure means of fastening the door by placing against it a
chair. In the room there was but one small window, which, like
the door, opened on the porch. Aside from the door and
window, there were no other openings of any kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the

defendant, who had received for the night, was suddenly
awakened by some trying to force open the door of the room.
He sat up in bed and called out twice, "Who is there?" He
heard no answer and was convinced by the noise at the door
that it was being pushed open by someone bent upon forcing
his way into the room. Due to the heavy growth of vines along
the front of the porch, the room was very dark, and the
defendant, fearing that the intruder was a robber or a thief,
leaped to his feet and called out. "If you enter the room, I will
kill you." At that moment he was struck just above the knee by
the edge of the chair which had been placed against the door.
In the darkness and confusion the defendant thought that the
blow had been inflicted by the person who had forced the door
open, whom he supposed to be a burglar, though in the light of
after events, it is probable that the chair was merely thrown
back into the room by the sudden opening of the door against
which it rested. Seizing a common kitchen knife which he kept
under his pillow, the defendant struck out wildly at the intruder
who, it afterwards turned out, was his roommate, Pascual.
Pascual ran out upon the porch and fell down on the steps in a
desperately wounded condition, followed by the defendant,
who immediately recognized him in the moonlight. Seeing that
Pascual was wounded, he called to his employers who slept in
the next house, No. 28, and ran back to his room to secure
bandages to bind up Pascual's wounds.

refusing to give his name or say who he was, in order to make

Ah Chong believe that he was being attacked by a robber.

There had been several robberies in Fort McKinley not long

prior to the date of the incident just described, one of which
took place in a house in which the defendant was employed as
cook; and as defendant alleges, it was because of these
repeated robberies he kept a knife under his pillow for his
personal protection.

(1) Illegal aggression.

The deceased and the accused, who roomed together and

who appear to have on friendly and amicable terms prior to the
fatal incident, had an understanding that when either returned
at night, he should knock at the door and acquiant his
companion with his identity. Pascual had left the house early in
the evening and gone for a walk with his friends, Celestino
Quiambao and Mariano Ibaez, servants employed at officers'
quarters No. 28, the nearest house to the mess hall. The three
returned from their walk at about 10 o'clock, and Celestino and
Mariano stopped at their room at No. 28, Pascual going on to
his room at No. 27. A few moments after the party separated,
Celestino and Mariano heard cries for assistance and upon
returning to No. 27 found Pascual sitting on the back steps
fatally wounded in the stomach, whereupon one of them ran
back to No. 28 and called Liuetenants Jacobs and Healy, who
immediately went to the aid of the wounded man.
The defendant then and there admitted that he had stabbed his
roommate, but said that he did it under the impression that
Pascual was "a ladron" because he forced open the door of
their sleeping room, despite defendant's warnings.
No reasonable explanation of the remarkable conduct on the
part of Pascuals suggests itself, unless it be that the boy in a
spirit of mischief was playing a trick on his Chinese roommate,
and sought to frightened him by forcing his way into the room,

Defendant was placed under arrest forthwith, and Pascual was

conveyed to the military hospital, where he died from the
effects of the wound on the following day.
The defendant was charged with the crime of assassination,
tried, and found guilty by the trial court of simple homicide, with
extenuating circumstances, and sentenced to six years and
one day presidio mayor, the minimum penalty prescribed by
law.
At the trial in the court below the defendant admitted that he
killed his roommate, Pascual Gualberto, but insisted that he
struck the fatal blow without any intent to do a wrongful act, in
the exercise of his lawful right of self-defense.
Article 8 of the Penal Code provides that
The following are not delinquent and are therefore exempt from
criminal liability:
xxx

xxx

xxx

4 He who acts in defense of his person or rights, provided

there are the following attendant circumstances:

(2) Reasonable necessity of the means employed to prevent or

repel it.
(3) Lack of sufficient provocation on the part of the person
defending himself.
Under these provisions we think that there can be no doubt
that defendant would be entitle to complete exception from
criminal liability for the death of the victim of his fatal blow, if
the intruder who forced open the door of his room had been in
fact a dangerous thief or "ladron," as the defendant believed
him to be. No one, under such circumstances, would doubt the
right of the defendant to resist and repel such an intrusion, and
the thief having forced open the door notwithstanding
defendant's thrice-repeated warning to desist, and his threat
that he would kill the intruder if he persisted in his attempt, it
will not be questioned that in the darkness of the night, in a
small room, with no means of escape, with the thief advancing
upon him despite his warnings defendant would have been
wholly justified in using any available weapon to defend himself
from such an assault, and in striking promptly, without waiting
for the thief to discover his whereabouts and deliver the first
blow.
But the evidence clearly discloses that the intruder was not a
thief or a "ladron." That neither the defendant nor his property
nor any of the property under his charge was in real danger at
the time when he struck the fatal blow. That there was no such
"unlawful aggression" on the part of a thief or "ladron" as
defendant believed he was repelling and resisting, and that
there was no real "necessity" for the use of the knife to defend
his person or his property or the property under his charge.

The question then squarely presents it self, whether in this

jurisdiction one can be held criminally responsible who, by
reason of a mistake as to the facts, does an act for which he
would be exempt from criminal liability if the facts were as he
supposed them to be, but which would constitute the crime of
homicide or assassination if the actor had known the true state
of the facts at the time when he committed the act. To this
question we think there can be but one answer, and we hold
that under such circumstances there is no criminal liability,
provided always that the alleged ignorance or mistake or fact
was not due to negligence or bad faith.
In broader terms, ignorance or mistake of fact, if such
ignorance or mistake of fact is sufficient to negative a particular
intent which under the law is a necessary ingredient of the
offense charged (e.g., in larcerny, animus furendi; in murder,
malice; in crimes intent) "cancels the presumption of intent,"
and works an acquittal; except in those cases where the
circumstances demand a conviction under the penal provisions
touching criminal negligence; and in cases where, under the
provisions of article 1 of the Penal Code one voluntarily
committing a crime or misdeamor incurs criminal liability for
any wrongful act committed by him, even though it be different
from that which he intended to commit. (Wharton's Criminal
Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133
and cases cited; Pettit vs. S., 28 Tex. Ap., 240;
Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32
N.Y.,
509;
Ishamvs. State,
38
Ala.,
213;
Commonwealth vs. Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of
discussion, and the only question worthy of consideration is
whether malice or criminal intent is an essential element or
ingredient of the crimes of homicide and assassination as
defined and penalized in the Penal Code. It has been said that
since the definitions there given of these as well as most other
crimes and offense therein defined, do not specifically and
expressly declare that the acts constituting the crime or offense
must be committed with malice or with criminal intent in order
that the actor may be held criminally liable, the commission of
the acts set out in the various definitions subjects the actor to
the penalties described therein, unless it appears that he is
exempted from liability under one or other of the express
provisions of article 8 of the code, which treats of exemption.
But while it is true that contrary to the general rule of legislative
enactment in the United States, the definitions of crimes and
offenses as set out in the Penal Code rarely contain provisions
expressly declaring that malice or criminal intent is an essential
ingredient of the crime, nevertheless, the general provisions of
article 1 of the code clearly indicate that malice, or criminal
intent in some form, is an essential requisite of all crimes and
offense therein defined, in the absence of express provisions
modifying the general rule, such as are those touching liability
resulting from acts negligently or imprudently committed, and
acts done by one voluntarily committing a crime or
misdemeanor, where the act committed is different from that
which he intended to commit. And it is to be observed that
even these exceptions are more apparent than real, for "There
is little distinction, except in degree, between a will to do a
wrongful thing and indifference whether it is done or not.

Therefore carelessness is criminal, and within limits supplies

the place of the affirmative criminal intent" (Bishop's New
Criminal Law, vol. 1, s. 313); and, again, "There is so little
difference between a disposition to do a great harm and a
disposition to do harm that one of them may very well be
looked upon as the measure of the other. Since, therefore, the
guilt of a crime consists in the disposition to do harm, which the
criminal shows by committing it, and since this disposition is
greater or less in proportion to the harm which is done by the
crime, the consequence is that the guilt of the crime follows the
same proportion; it is greater or less according as the crime in
its own nature does greater or less harm" (Ruth. Ints. C. 18, p.
11); or, as it has been otherwise stated, the thing done, having
proceeded from a corrupt mid, is to be viewed the same
whether the corruption was of one particular form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions
punished by law.
Acts and omissions punished by law are always presumed to
be voluntarily unless the contrary shall appear.
An person voluntarily committing a crime or misdemeanor shall
incur criminal liability, even though the wrongful act committed
be different from that which he had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the
meaning of the word "voluntary" as used in this article, say that
a voluntary act is a free, intelligent, and intentional act, and
roundly asserts that without intention (intention to do wrong or
criminal intention) there can be no crime; and that the word
"voluntary" implies and includes the words "con malicia," which
were expressly set out in the definition of the word "crime" in
the code of 1822, but omitted from the code of 1870, because,
as Pacheco insists, their use in the former code was
redundant, being implied and included in the word "voluntary."
(Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit
the crime can only be said to exempt from criminal
responsibility when the act which was actually intended to be
done was in itself a lawful one, and in the absence of
negligence or imprudence, nevertheless admits and
recognizes in his discussion of the provisions of this article of
the code that in general without intention there can be no
crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the
exceptions insisted upon by Viada are more apparent than
real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which
declared that where there is no intention there is no crime . . .
in order to affirm, without fear of mistake, that under our code
there can be no crime if there is no act, an act which must fall
within the sphere of ethics if there is no moral injury. (Vol. 2,
the Criminal Law, folio 169.)

And to the same effect are various decisions of the supreme

court of Spain, as, for example in its sentence of May 31, 1882,
in which it made use of the following language:
It is necessary that this act, in order to constitute a crime,
involve all the malice which is supposed from the operation of
the will and an intent to cause the injury which may be the
object of the crime.
And again in its sentence of March 16, 1892, wherein it held
that "considering that, whatever may be the civil effects of the
inscription of his three sons, made by the appellant in the civil
registry and in the parochial church, there can be no crime
because of the lack of the necessary element or criminal
intention, which characterizes every action or ommission
punished by law; nor is he guilty of criminal negligence."
And to the same effect in its sentence of December 30, 1896, it
made use of the following language:
. . . Considering that the moral element of the crime, that is,
intent or malice or their absence in the commission of an act
defined and punished by law as criminal, is not a necessary
question of fact submitted to the exclusive judgment and
decision of the trial court.
That the author of the Penal Code deemed criminal intent or
malice to be an essential element of the various crimes and
misdemeanors therein defined becomes clear also from an
examination of the provisions of article 568, which are as
follows:
He who shall execute through reckless negligence an act that,
if done with malice, would constitute a grave crime, shall be
punished with the penalty of arresto mayor in its maximum
degree, to prision correccional in its minimum degrees if it shall
constitute a less grave crime.
He who in violation of the regulations shall commit a crime
through simple imprudence or negligence shall incur the
penalty of arresto mayor in its medium and maximum degrees.
In the application of these penalties the courts shall proceed
according to their discretion, without being subject to the rules
prescribed in article 81.
The provisions of this article shall not be applicable if the
penalty prescribed for the crime is equal to or less than those
contained in the first paragraph thereof, in which case the
courts shall apply the next one thereto in the degree which
they may consider proper.
The word "malice" in this article is manifestly substantially
equivalent to the words "criminal intent," and the direct
inference from its provisions is that the commission of the acts
contemplated therein, in the absence of malice (criminal
intent), negligence, and imprudence, does not impose any
criminal liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code
would seem to approximate in meaning the word "willful" as
used in English and American statute to designate a form of

criminal intent. It has been said that while the word "willful"
sometimes means little more than intentionally or designedly,
yet it is more frequently understood to extent a little further and
approximate the idea of the milder kind of legal malice; that is,
it signifies an evil intent without justifiable excuse. In one case
it was said to mean, as employed in a statute in contemplation,
"wantonly" or "causelessly;" in another, "without reasonable
grounds to believe the thing lawful." And Shaw, C. J., once said
that ordinarily in a statute it means "not merely `voluntarily' but
with a bad purpose; in other words, corruptly." In English and
the American statutes defining crimes "malice," "malicious,"
"maliciously," and "malice aforethought" are words indicating
intent, more purely technical than "willful" or willfully," but "the
difference between them is not great;" the word "malice" not
often being understood to require general malevolence toward
a particular individual, and signifying rather the intent from our
legal justification. (Bishop's New Criminal Law, vol. 1, secs.
428 and 429, and cases cited.)
But even in the absence of express words in a statute, setting
out a condition in the definition of a crime that it be committed
"voluntarily," willfully," "maliciously" "with malice aforethought,"
or in one of the various modes generally construed to imply a
criminal intent, we think that reasoning from general principles
it will always be found that with the rare exceptions hereinafter
mentioned, to constitute a crime evil intent must combine with
an act. Mr. Bishop, who supports his position with numerous
citations from the decided cases, thus forcely present this
doctrine:
In no one thing does criminal jurisprudence differ more from
civil than in the rule as to the intent. In controversies between
private parties the quo animo with which a thing was done is
sometimes important, not always; but crime proceeds only
from a criminal mind. So that
There can be no crime, large or small, without an evil mind. In
other words, punishment is the sentence of wickedness,
without which it can not be. And neither in philosophical
speculation nor in religious or mortal sentiment would any
people in any age allow that a man should be deemed guilty
unless his mind was so. It is therefore a principle of our legal
system, as probably it is of every other, that the essence of an
offense is the wrongful intent, without which it can not exists.
We find this doctrine confirmed by
Legal maxims. The ancient wisdom of the law, equally with
the modern, is distinct on this subject. It consequently has
supplied to us such maxims as Actus non facit reum nisi mens
sit rea, "the act itself does not make man guilty unless his
intention were so;" Actus me incito factus non est meus actus,
"an act done by me against my will is not my act;" and others
of the like sort. In this, as just said, criminal jurisprudence
differs from civil. So also
Moral science and moral sentiment teach the same thing. "By
reference to the intention, we inculpate or exculpate others or
ourselves without any respect to the happiness or misery
actually produced. Let the result of an action be what it may,
we hold a man guilty simply on the ground of intention; or, on
the dame ground, we hold him innocent." The calm judgment

of mankind keeps this doctrine among its jewels. In times of

excitement, when vengeance takes the place of justice, every
guard around the innocent is cast down. But with the return of
reason comes the public voice that where the mind is pure, he
who differs in act from his neighbors does not offend. And
In the spontaneous judgment which springs from the nature
given by God to man, no one deems another to deserve
punishment for what he did from an upright mind, destitute of
every form of evil. And whenever a person is made to suffer a
punishment which the community deems not his due, so far
from its placing an evil mark upon him, it elevates him to the
seat of the martyr. Even infancy itself spontaneously pleads the
want of bad intent in justification of what has the appearance of
wrong, with the utmost confidence that the plea, if its truth is
credited, will be accepted as good. Now these facts are only
the voice of nature uttering one of her immutable truths. It is,
then, the doctrine of the law, superior to all other doctrines,
because first in nature from which the law itself proceeds, that
no man is to be punished as a criminal unless his intent is
wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an
apparent departure from this doctrine of abstract justice result
from the adoption of the arbitrary rule that Ignorantia juris non
excusat ("Ignorance of the law excuses no man"), without
which justice could not be administered in our tribunals; and
compelled also by the same doctrine of necessity, the courts
have recognized the power of the legislature to forbid, in a
limited class of cases, the doing of certain acts, and to make
their commission criminal without regard to the intent of the
doer. Without discussing these exceptional cases at length, it is
sufficient here to say that the courts have always held that
unless the intention of the lawmaker to make the commission
of certain acts criminal without regard to the intent of the doer
is clear and beyond question the statute will not be so
construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and
77); and the rule that ignorance of the law excuses no man has
been said not to be a real departure from the law's
fundamental principle that crime exists only where the mind is
at fault, because "the evil purpose need not be to break the
law, and if suffices if it is simply to do the thing which the law in
fact forbids." (Bishop's New Criminal Law, sec. 300, and cases
cited.)
But, however this may be, there is no technical rule, and no
pressing necessity therefore, requiring mistake in fact to be
dealt with otherwise that in strict accord with the principles of
abstract justice. On the contrary, the maxim here isIgnorantia
facti excusat ("Ignorance or mistake in point of fact is, in all
cases of supposed offense, a sufficient excuse"). (Brown's Leg.
Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in every
crime, any such mistake of fact as shows the act committed to
have proceeded from no sort of evil in the mind necessarily
relieves the actor from criminal liability provided always there is
no fault or negligence on his part; and as laid down by Baron
Parke, "The guilt of the accused must depend on the
circumstances as they appear to him." (Reg. vs. Thurborn, 1
Den. C., 387; P. vs.Anderson, 44 Cal.., 65; P. vs. Lamb, 54

Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46
Barb., 625; Reg.vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55
Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say,
the question as to whether he honestly, in good faith, and
without fault or negligence fell into the mistake is to be
determined by the circumstances as they appeared to him at
the time when the mistake was made, and the effect which the
surrounding circumstances might reasonably be expected to
have on his mind, in forming the intent, criminal or other wise,
upon which he acted.
If, in language not uncommon in the cases, one
has reasonable cause to believe the existence of facts which
will justify a killing or, in terms more nicely in accord with the
principles on which the rule is founded, if without fault or
carelessness he does believe them he is legally guiltless of
the homicide; though he mistook the facts, and so the life of an
innocent person is unfortunately extinguished. In other words,
and with reference to the right of self-defense and the not quite
harmonious authorities, it is the doctrine of reason and
sufficiently sustained in adjudication, that notwithstanding
some decisions apparently adverse, whenever a man
undertakes self-defense, he is justified in acting on the facts as
they appear to him. If, without fault or carelessness, he is
misled concerning them, and defends himself correctly
according to what he thus supposes the facts to be the law will
not punish him though they are in truth otherwise, and he was
really no occassion for the extreme measures. (Bishop's New
Criminal Law, sec. 305, and large array of cases there cited.)
The common illustration in the American and English textbooks
of the application of this rule is the case where a man, masked
and disguised as a footpad, at night and on a lonely road,
"holds up" his friends in a spirit of mischief, and with leveled
pistol demands his money or his life, but is killed by his friend
under the mistaken belief that the attack is a real one, that the
pistol leveled at his head is loaded, and that his life and
property are in imminent danger at the hands of the aggressor.
No one will doubt that if the facts were such as the slayer
believed them to be he would be innocent of the commission of
any crime and wholly exempt from criminal liability, although if
he knew the real state of the facts when he took the life of his
friend he would undoubtedly be guilty of the crime of homicide
or assassination. Under such circumstances, proof of his
innocent mistake of the facts overcomes the presumption of
malice or criminal intent, and (since malice or criminal intent is
a necessary ingredient of the "act punished by law" in cases of
homicide or assassination) overcomes at the same time the
presumption established in article 1 of the code, that the "act
punished by law" was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the
person slain had a felonious design against him, and under
that supposition killed him, although it should afterwards
appear that there was no such design, it will not be murder, but
it will be either manslaughter or excusable homicide, according
to the degree of caution used and the probable grounds of
such belief. (Charge to the grand jury in Selfridge's case,
Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)

In this case, Parker, J., charging the petit jury, enforced the
doctrine as follows:
A, in the peaceable pursuit of his affairs, sees B rushing rapidly
toward him, with an outstretched arms and a pistol in his hand,
and using violent menaces against his life as he advances.
Having approached near enough in the same attitude, A, who
has a club in his hand, strikes B over the head before or at the
instant the pistol is discharged; and of the wound B dies. It
turns out the pistol was loaded with powder only, and that the
real design of B was only to terrify A. Will any reasonable man
say that A is more criminal that he would have been if there
had been a bullet in the pistol? Those who hold such doctrine
must require that a man so attacked must, before he strikes
the assailant, stop and ascertain how the pistol is loaded a
doctrine which would entirely take away the essential right of
self-defense. And when it is considered that the jury who try
the cause, and not the party killing, are to judge of the
reasonable grounds of his apprehension, no danger can be
supposed to flow from this principle. (Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court
of Spain, cited by Viada, a few of which are here set out in full
because the facts are somewhat analogous to those in the
case at bar.
QUESTION III. When it is shown that the accused was sitting
at his hearth, at night, in company only of his wife, without
other light than reflected from the fire, and that the man with
his back to the door was attending to the fire, there suddenly
entered a person whom he did not see or know, who struck
him one or two blows, producing a contusion on the shoulder,
because of which he turned, seized the person and took from
his the stick with which he had undoubtedly been struck, and
gave the unknown person a blow, knocking him to the floor,
and afterwards striking him another blow on the head, leaving
the unknown lying on the floor, and left the house. It turned out
the unknown person was his father-in-law, to whom he
rendered assistance as soon as he learned his identity, and
who died in about six days in consequence of cerebral
congestion resulting from the blow. The accused, who
confessed the facts, had always sustained pleasant relations
with his father-in-law, whom he visited during his sickness,
demonstrating great grief over the occurrence. Shall he be
considered free from criminal responsibility, as having acted in
self-defense, with all the circumstances related in paragraph 4,
article 8, of the Penal Code? The criminal branch of
the Audiencia of Valladolid found that he was an illegal
aggressor, without sufficient provocation, and that there did not
exists rational necessity for the employment of the force used,
and in accordance with articles 419 and 87 of the Penal Code
condemned him to twenty months of imprisonment, with
accessory penalty and costs. Upon appeal by the accused, he
was acquitted by the supreme court, under the following
sentence: "Considering, from the facts found by the sentence
to have been proven, that the accused was surprised from
behind, at night, in his house beside his wife who was nursing
her child, was attacked, struck, and beaten, without being able
to distinguish with which they might have executed their
criminal intent, because of the there was no other than fire light
in the room, and considering that in such a situation and when

the acts executed demonstrated that they might endanger his

existence, and possibly that of his wife and child, more
especially because his assailant was unknown, he should have
defended himself, and in doing so with the same stick with
which he was attacked, he did not exceed the limits of selfdefense, nor did he use means which were not rationally
necessary, particularly because the instrument with which he
killed was the one which he took from his assailant, and was
capable of producing death, and in the darkness of the house
and the consteration which naturally resulted from such strong
aggression, it was not given him to known or distinguish
whether there was one or more assailants, nor the arms which
they might bear, not that which they might accomplish, and
considering that the lower court did not find from the accepted
facts that there existed rational necessity for the means
employed, and that it did not apply paragraph 4 of article 8 of
the Penal Code, it erred, etc." (Sentence of supreme court of
Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house,
which was situated in a retired part of the city, upon arriving at
a point where there was no light, heard the voice of a man, at a
distance of some 8 paces, saying: "Face down, hand over you
money!" because of which, and almost at the same money, he
fired two shots from his pistol, distinguishing immediately the
voice of one of his friends (who had before simulated a
different voice) saying, "Oh! they have killed me," and
hastening to his assistance, finding the body lying upon the
ground, he cried, "Miguel, Miguel, speak, for God's sake, or I
am ruined," realizing that he had been the victim of a joke, and
not receiving a reply, and observing that his friend was a
corpse, he retired from the place. Shall he be declared exempt
in toto from responsibility as the author of this homicide, as
having acted in just self-defense under the circumstances
defined in paragraph 4, article 8, Penal Code? The criminal
branch of the Audiencia of Malaga did not so find, but only
found in favor of the accused two of the requisites of said
article, but not that of the reasonableness of the means
employed to repel the attack, and, therefore, condemned the
accused to eight years and one day of prison mayor, etc. The
supreme court acquitted the accused on his appeal from this
sentence, holding that the accused was acting under a
justifiable and excusable mistake of fact as to the identity of the
person calling to him, and that under the circumstances, the
darkness and remoteness, etc., the means employed were
rational and the shooting justifiable. (Sentence supreme court,
March 17, 1885.) (Viada, Vol. I, p. 136.)
QUESTION VI. The owner of a mill, situated in a remote spot,
is awakened, at night, by a large stone thrown against his
window at this, he puts his head out of the window and
inquires what is wanted, and is answered "the delivery of all of
his money, otherwise his house would be burned" because
of which, and observing in an alley adjacent to the mill four
individuals, one of whom addressed him with blasphemy, he
fired his pistol at one the men, who, on the next morning was
found dead on the same spot. Shall this man be declared
exempt from criminal responsibility as having acted in just selfdefense with all of the requisites of law? The criminal branch of
the requisites of law? The criminal branch of the Audiencia of

Zaragoza finds that there existed in favor of the accused a

majority of the requisites to exempt him from criminal
responsibility, but not that of reasonable necessity for the
means, employed, and condemned the accused to twelve
months ofprision correctional for the homicide committed.
Upon appeal, the supreme court acquitted the condemned,
finding that the accused, in firing at the malefactors, who attack
his mill at night in a remote spot by threatening robbery and
incendiarism, was acting in just self-defense of his person,
property, and family. (Sentence of May 23, 1877). (I Viada, p.
128.)
A careful examination of the facts as disclosed in the case at
bar convinces us that the defendant Chinaman struck the fatal
blow alleged in the information in the firm belief that the
intruder who forced open the door of his sleeping room was a
thief, from whose assault he was in imminent peril, both of his
life and of his property and of the property committed to his
charge; that in view of all the circumstances, as they must
have presented themselves to the defendant at the time, he
acted in good faith, without malice, or criminal intent, in the
belief that he was doing no more than exercising his legitimate
right of self-defense; that had the facts been as he believed
them to be he would have been wholly exempt from criminal
liability on account of his act; and that he can not be said to
have been guilty of negligence or recklessness or even
carelessness in falling into his mistake as to the facts, or in the
means adopted by him to defend himself from the imminent
danger which he believe threatened his person and his
property and the property under his charge.
The judgment of conviction and the sentence imposed by the
trial court should be reversed, and the defendant acquitted of
the crime with which he is charged and his bail bond
exonerated, with the costs of both instance de oficio. So
ordered.
Johnson
Moreland
and
Arellano, C.J., and Mapa, J., dissent.

Elliott,

JJ., concur.

Loney vs. People 482 SCRA 195 February 10, 2006

Republic
SUPREME
Manila

of

the

Philippines
COURT

THIRD DIVISION
G.R. No. 152644

February 10, 2006

JOHN ERIC LONEY, STEVEN PAUL REID and PEDRO B.

HERNANDEZ, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CARPIO, J.:
The Case

This is a petition for review1 of the Decision2 dated 5 November

2001 and the Resolution dated 14 March 2002 of the Court of
Appeals. The 5 November 2001 Decision affirmed the ruling of
the Regional Trial Court, Boac, Marinduque, Branch 94, in a
suit to quash Informations filed against petitioners John Eric
Loney, Steven Paul Reid, and Pedro B. Hernandez
("petitioners"). The 14 March 2002 Resolution denied
petitioners motion for reconsideration.
The Facts
Petitioners John Eric Loney, Steven Paul Reid, and Pedro B.
Hernandez are the President and Chief Executive Officer,
Senior Manager, and Resident Manager for Mining Operations,
respectively, of Marcopper Mining Corporation ("Marcopper"), a
corporation engaged in mining in the province of Marinduque.
Marcopper had been storing tailings3 from its operations in a pit
in Mt. Tapian, Marinduque. At the base of the pit ran a drainage
tunnel leading to the Boac and Makalupnit rivers. It appears
that Marcopper had placed a concrete plug at the tunnels end.
On 24 March 1994, tailings gushed out of or near the tunnels
end. In a few days, the Mt. Tapian pit had discharged millions
of tons of tailings into the Boac and Makalupnit rivers.
In August 1996, the Department of Justice separately charged
petitioners in the Municipal Trial Court of Boac, Marinduque
("MTC") with violation of Article 91(B),4 sub-paragraphs 5 and 6
of Presidential Decree No. 1067 or the Water Code of the
Philippines ("PD 1067"),5 Section 86 of Presidential Decree No.
984 or the National Pollution Control Decree of 1976 ("PD
984"),7 Section 1088 of Republic Act No. 7942 or the Philippine
Mining Act of 1995 ("RA 7942"), 9 and Article 36510 of the
Revised Penal Code ("RPC") for Reckless Imprudence
Resulting in Damage to Property.11
Petitioners moved to quash the Informations on the following
grounds: (1) the Informations were "duplicitous" as the
Department of Justice charged more than one offense for a
single act; (2) petitioners John Eric Loney and Steven Paul
Reid were not yet officers of Marcopper when the incident
subject of the Informations took place; and (3) the Informations
contain allegations which constitute legal excuse or
justification.
The Ruling of the MTC
In its Joint Order of 16 January 1997 ("Joint Order"), the
MTC12 initially deferred ruling on petitioners motion for lack of
"indubitable ground for the quashing of the [I]nformations x x
x." The MTC scheduled petitioners arraignment in February
1997. However, on petitioners motion, the MTC issued a
Consolidated Order on 28 April 1997 ("Consolidated Order"),
granting partial reconsideration to its Joint Order and quashing
the Informations for violation of PD 1067 and PD 984. The
MTC maintained the Informations for violation of RA 7942 and
Article 365 of the RPC. The MTC held:
[T]he 12 Informations have common allegations of pollutants
pointing to "mine tailings" which were precipitately discharged
into the Makulapnit and Boac Rivers due to breach caused on

the Tapian drainage/tunnel due to negligence or failure to

institute adequate measures to prevent pollution and siltation
of the Makulapnit and Boac River systems, the very term and
condition required to be undertaken under the Environmental
Compliance Certificate issued on April 1, 1990.
The allegations in the informations point to same set [sic] of
evidence required to prove the single fact of pollution
constituting violation of the Water Code and the Pollution Law
which are the same set of evidence necessary to prove the
same single fact of pollution, in proving the elements
constituting violation of the conditions of ECC, issued pursuant
to the Philippine Mining Act. In both instances, the terms and
conditions of the Environmental Compliance Certificate were
allegedly violated. In other words, the same set of evidence is
required in proving violations of the three (3) special laws.
After carefully analyzing and weighing the contending
arguments of the parties and after taking into consideration the
applicable laws and jurisprudence, the Court is convinced that
as far as the three (3) aforesaid laws are concerned, only the
Information for [v]iolation of Philippine Mining Act should be
maintained. In other words, the Informations for [v]iolation of
Anti-Pollution Law (PD 984) and the Water Code (PD 1067)
should be dismissed/quashed because the elements
constituting the aforesaid violations are absorbed by the same
elements which constitute violation of the Philippine Mining Act
(RA 7942).
Therefore, x x x Criminal Case[] Nos. 96-44, 96-45 and 96-46
for [v]iolation of the Water Code; and Criminal Case[] Nos. 9647, 96-48 and 96-49 for [v]iolation of the Anti-Pollution Law x x
x are hereby DISMISSED or QUASHED and Criminal Case[]
Nos. 96-50, 96-51 and 96-52 for [v]iolation of the Philippine
Mining Act are hereby retained to be tried on the merits.
The Information for [v]iolation of Article 365 of the Revised
Penal Code should also be maintained and heard in a full
blown trial because the common accusation therein is reckless
imprudence resulting to [sic] damage to property. It is the
damage to property which the law punishes not the negligent
act of polluting the water system. The prosecution for the
[v]iolation of Philippine Mining Act is not a bar to the
prosecution for reckless imprudence resulting to [sic] damage
to property.13
The MTC re-scheduled petitioners arraignment on the
remaining charges on 28 and 29 May 1997. In the hearing of
28 May 1997, petitioners manifested that they were willing to
be arraigned on the charge for violation of Article 365 of the
RPC but not on the charge for violation of RA 7942 as they
intended to appeal the Consolidated Order in so far as it
maintained the Informations for that offense. After making of
record petitioners manifestation, the MTC proceeded with the
arraignment and ordered the entry of "not guilty" pleas on the
charges for violation of RA 7942 and Article 365 of the RPC.
Petitioners subsequently filed a petition for certiorari with the
Regional Trial Court, Boac, Marinduque, assailing that portion
of the Consolidated Order maintaining the Informations for
violation of RA 7942. Petitioners petition was raffled to Branch

94. For its part, public respondent filed an ordinary appeal with
the same court assailing that portion of the Consolidated Order
quashing the Informations for violation of PD 1067 and PD
984. Public respondents appeal was raffled to Branch 38. On
public respondents motion, Branch 38 ordered public
respondents appeal consolidated with petitioners petition in
Branch 94.
The Ruling of Branch 94
In its Resolution14 of 20 March 1998, Branch 94 granted public
respondents appeal but denied petitioners petition. Branch 94
set aside the Consolidated Order in so far as it quashed the
Informations for violation of PD 1067 and PD 984 and ordered
those charges reinstated. Branch 94 affirmed the Consolidated
Order in all other respects. Branch 94 held:
After a careful perusal of the laws concerned, this court is of
the opinion that there can be no absorption by one offense of
the three other offenses, as [the] acts penalized by these laws
are separate and distinct from each other. The elements of
proving each violation are not the same with each other.
Concededly, the single act of dumping mine tailings which
resulted in the pollution of the Makulapnit and Boac rivers was
the basis for the information[s] filed against the accused each
charging a distinct offense. But it is also a well-established rule
in this jurisdiction that
"A single act may offend against two or more entirely distinct
and unrelated provisions of law, and if one provision requires
proof of an additional fact or element which the other does not,
an acquittal or conviction or a dismissal of the information
under one does not bar prosecution under the other. x x x."
xxxx
[T]he different laws involve cannot absorb one another as the
elements of each crime are different from one another. Each of
these laws require [sic] proof of an additional fact or element
which the other does not although they stemmed from a single
act.15
Petitioners filed a petition for certiorari with the Court of
Appeals alleging that Branch 94 acted with grave abuse of
discretion because (1) the Informations for violation of PD
1067, PD 984, RA 7942 and the Article 365 of the RPC
"proceed from and are based on a single act or incident of
polluting the Boac and Makalupnit rivers thru dumping of mine
tailings" and (2) the duplicitous nature of the Informations
contravenes the ruling in People v. Relova.16Petitioners further
contended that since the acts complained of in the charges for
violation of PD 1067, PD 984, and RA 7942 are "the very same
acts complained of" in the charge for violation of Article 365 of
the RPC, the latter absorbs the former. Hence, petitioners
should only be prosecuted for violation of Article 365 of the
RPC.17
The Ruling of the Court of Appeals
In its Decision of 5 November 2001, the Court of Appeals
affirmed Branch 94s ruling. The appellate court held:

The records of the case disclose that petitioners filed a motion

to quash the aforementioned Informations for being duplicitous
in nature. Section 3 of Rule 117 of the Revised Rules of Court
specifically provides the grounds upon which an information
may be quashed. x x x
xxxx
[D]uplicity of Informations is not among those included in x x x
[Section 3, Rule 117].
xxxx
We now go to petitioners claim that the resolution of the public
respondent contravened the doctrine laid down in People vs.
Relova for being violative of their right against multiple
prosecutions.
In the said case, the Supreme Court found the Peoples
argument with respect to the variances in the mens rea of the
two offenses being charged to be correct. The Court, however,
decided the case in the context of the second sentence of
Article IV (22) of the 1973 Constitution (now under Section 21
of Article III of the 1987 Constitution), rather than the first
sentence of the same section. x x x

REINSTATING THE CHARGES FOR VIOLATION OF THE

WATER CODE (P.D. 1067) AND POLLUTION CONTROL LAW
(P.D. 984), CONSIDERING THAT:
A. THE INFORMATIONS FOR VIOLATION OF THE WATER
CODE (P.D. 1067), THE POLLUTION CONTROL LAW (P.D.
984), THE PHILIPPINE MINING ACT (R.A. 7942) AND
ARTICLE 365 OF THE REVISED PENAL CODE PROCEED
FROM AND ARE BASED ON A SINGLE ACT OR INCIDENT
OF POLLUTING THE BOAC AND MAKULAPNIT RIVERS
THRU DUMPING OF MINE TAILINGS.
B.
THE
PROSECUTION
OF
PETITIONERS
FOR
DUPLICITOUS AND MULTIPLE CHARGES CONTRAVENES
THE DOCTRINE LAID DOWN IN PEOPLE VS. RELOVA, 148
SCRA 292 [1986 THAT "AN ACCUSED SHOULD NOT BE
HARASSED
BY
MULTIPLE
PROSECUTIONS
FOR
OFFENSES WHICH THOUGH DIFFERENT FROM ONE
ANOTHER ARE NONETHELESS EACH CONSTITUTED BY A
COMMON SET OR OVERLAPPING SETS OF TECHNICAL
ELEMENTS."

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

II. THE COURT OF APPEALS COMMITTED A REVERSIBLE

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

xxxx

The Issues

This Court firmly agrees in the public respondents

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

The petition raises these issues:

xxxx

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

(1) Whether all the charges filed against petitioners except one
should be quashed for duplicity of charges and only the charge
for Reckless Imprudence Resulting in Damage to Property
should stand; and
(2) Whether Branch 94s ruling, as affirmed by the Court of
Appeals, contravenes People v. Relova.
The Ruling of the Court
The petition has no merit.
No Duplicity of Charges in the Present Case
Duplicity of charges simply means a single complaint or
information charges more than one offense, as Section 13 of
Rule 11020 of the 1985 Rules of Criminal Procedure clearly
states:

Petitioners raise the following alleged errors of the Court of

Appeals:

Duplicity of offense. A complaint or information must charge

but one offense, except only in those cases in which existing
laws prescribe a single punishment for various offenses.

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

ERROR IN MAINTAINING THE CHARGES FOR VIOLATION
OF THE PHILIPPINE MINING ACT (R.A. 7942) AND

In short, there is duplicity (or multiplicity) of charges when a

single Information charges more than one offense.21

Under Section 3(e), Rule 11722 of the 1985 Rules of Criminal

Procedure, duplicity of offenses in a single information is a
ground to quash the Information. The Rules prohibit the filing of
such Information to avoid confusing the accused in preparing
his defense.23 Here, however, the prosecution charged each
petitioner with four offenses, with each Information charging
only one offense. Thus, petitioners erroneously invoke duplicity
of charges as a ground to quash the Informations. On this
score alone, the petition deserves outright denial.
The Filing of Several Charges is Proper
Petitioners contend that they should be charged with one
offense only Reckless Imprudence Resulting in Damage to
Property because (1) all the charges filed against them
"proceed from and are based on a single act or incident of
polluting the Boac and Makalupnit rivers thru dumping of mine
tailings" and (2) the charge for violation of Article 365 of the
RPC "absorbs" the other charges since the element of "lack of
necessary or adequate protection, negligence, recklessness
and imprudence" is common among them.
The contention has no merit.
As early as the start of the last century, this Court had ruled
that a single act or incident might offend against two or more
entirely distinct and unrelated provisions of law thus justifying
the prosecution of the accused for more than one
offense.24 The only limit to this rule is the Constitutional
prohibition that no person shall be twice put in jeopardy of
punishment for "the same offense." 25 In People v.
Doriquez,26 we held that two (or more) offenses arising from
the same act are not "the same"
x x x if one provision [of law] requires proof of an additional fact
or element which the other does not, x x x. Phrased elsewise,
where two different laws (or articles of the same code) define
two crimes, prior jeopardy as to one of them is no obstacle to a
prosecution of the other, although both offenses arise from the
same facts, if each crime involves some important act which is
not an essential element of the other.27 (Emphasis supplied)
Here, double jeopardy is not at issue because not all of its
elements are present.28 However, for the limited purpose of
controverting petitioners claim that they should be charged
with one offense only, we quote with approval Branch 94s
comparative analysis of PD 1067, PD 984, RA 7942, and
Article 365 of the RPC showing that in each of these laws on
which petitioners were charged, there is one essential element
not required of the others, thus:
In P.D. 1067 (Philippines Water Code), the additional element
to be established is the dumping of mine tailings into the
Makulapnit River and the entire Boac River System without
prior permit from the authorities concerned. The gravamen of
the offense here is the absence of the proper permit to dump
said mine tailings. This element is not indispensable in the
prosecution for violation of PD 984 (Anti-Pollution Law), [RA]
7942 (Philippine Mining Act) and Art. 365 of the Revised Penal
Code. One can be validly prosecuted for violating the Water
Code even in the absence of actual pollution, or even [if] it has

complied with the terms of its Environmental Compliance

Certificate, or further, even [if] it did take the necessary
precautions to prevent damage to property.
In P.D. 984 (Anti-Pollution Law), the additional fact that must
be proved is the existence of actual pollution. The gravamen is
the pollution itself. In the absence of any pollution, the accused
must be exonerated under this law although there was
unauthorized dumping of mine tailings or lack of precaution on
its part to prevent damage to property.
In R.A. 7942 (Philippine Mining Act), the additional fact that
must be established is the willful violation and gross neglect on
the part of the accused to abide by the terms and conditions of
the Environmental Compliance Certificate, particularly that the
Marcopper should ensure the containment of run-off and silt
materials from reaching the Mogpog and Boac Rivers. If there
was no violation or neglect, and that the accused satisfactorily
proved [sic] that Marcopper had done everything to ensure
containment of the run-off and silt materials, they will not be
liable. It does not follow, however, that they cannot be
prosecuted under the Water Code, Anti-Pollution Law and the
Revised Penal Code because violation of the Environmental
Compliance Certificate is not an essential element of these
laws.
On the other hand, the additional element that must be
established in Art. 365 of the Revised Penal Code is the lack of
necessary or adequate precaution, negligence, recklessness
and imprudence on the part of the accused to prevent damage
to property. This element is not required under the previous
laws. Unquestionably, it is different from dumping of mine
tailings without permit, or causing pollution to the Boac river
system, much more from violation or neglect to abide by the
terms of the Environmental Compliance Certificate. Moreover,
the offenses punished by special law are mal[a] prohibita in
contrast with those punished by the Revised Penal Code which
are mala in se.29
Consequently, the filing of the multiple charges against
petitioners, although based on the same incident, is consistent
with settled doctrine.
On petitioners claim that the charge for violation of Article 365
of the RPC "absorbs" the charges for violation of PD 1067, PD
984, and RA 7942, suffice it to say that a mala in se felony
(such as Reckless Imprudence Resulting in Damage to
Property) cannot absorb mala prohibita crimes (such as those
violating PD 1067, PD 984, and RA 7942). What makes the
former a felony is criminal intent (dolo) or negligence (culpa);
what makes the latter crimes are the special laws enacting
them.
People v. Relova not in Point
Petitioners reiterate their contention in the Court of Appeals
that their prosecution contravenes this Courts ruling in People
v. Relova. In particular, petitioners cite the Courts statement in
Relova that the law seeks to prevent harassment of the
accused by "multiple prosecutions for offenses which though

different from one another are nonetheless each constituted by

a common set or overlapping sets of technical elements."
This contention is also without merit.1avvphil.net
The issue in Relova is whether the act of the Batangas Acting
City Fiscal in charging one Manuel Opulencia ("Opulencia")
with theft of electric power under the RPC, after the latter had
been acquitted of violating a City Ordinance penalizing the
unauthorized installation of electrical wiring, violated
Opulencias right against double jeopardy. We held that it did,
not because the offenses punished by those two laws were the
same but because the act giving rise to the charges was
punished by an ordinance and a national statute, thus falling
within the proscription against multiple prosecutions for the
same act under the second sentence in Section 22, Article IV
of the 1973 Constitution, now Section 21, Article III of the 1987
Constitution. We held:
The petitioner concludes that:
"The unauthorized installation punished by the ordinance [of
Batangas City] is not the same as theft of electricity [under the
Revised Penal Code]; that the second offense is not an
attempt to commit the first or a frustration thereofand that the
second offense is not necessarily included in the offense
charged in the first information."

statutes and not by an ordinance and a national statute. In

short, petitioners, if ever, fall under the first sentence of Section
21, Article III which prohibits multiple prosecution for the same
offense, and not, as in Relova, for offenses arising from the
same incident.
WHEREFORE, we DENY the petition. We AFFIRM the
Decision dated 5 November 2001 and the Resolution dated 14
March 2002 of the Court of Appeals.
SO ORDERED.

Garcia vs. CA 484 SCRA 617 March 14, 2006

Republic
SUPREME
Manila

of

the

Philippines
COURT

THIRD DIVISION
G.R. No. 157171

March 14, 2006

ARSENIA
B.
GARCIA, Petitioner,
vs.
HON. COURT OF APPEALS and the PEOPLE OF THE
PHILIPPINES, Respondents

The above argument[ ] made by the petitioner [is] of course

correct. This is clear both from the express terms of the
constitutional provision involved which reads as follows:

DECISION

"No person shall be twice put in jeopardy of punishment for the

same offense. If an act is punished by a law and an ordinance,
conviction or acquittal under either shall constitute a bar to
another prosecution for the same act." x x x

This petition seeks the review of the judgment of the Court of

Appeals in CA-G.R. CR No. 245471that affirmed the conviction
of petitioner by the Regional Trial Court 2of Alaminos City,
Pangasinan, Branch 54, for violation of Section 27(b) of
Republic Act No. 6646.3

and from our case law on this point. The basic difficulty with the
petitioners position is that it must be examined, not under the
terms of the first sentence of Article IV (22) of the 1973
Constitution, but rather under the second sentence of the same
section. The first sentence of Article IV (22) sets forth the
general rule: the constitutional protection against double
jeopardy is not available where the second prosecution is for
an offense that is different from the offense charged in the first
or prior prosecution, although both the first and second
offenses may be based upon the same act or set of acts. The
second sentence of Article IV (22) embodies an exception to
the general proposition: the constitutional protection, against
double jeopardy is available although the prior offense charged
under an ordinance be different from the offense charged
subsequently under a national statute such as the Revised
Penal Code, provided that both offenses spring from the same
act or set of acts. x x x30 (Italicization in the original; boldfacing
supplied)
Thus, Relova is no authority for petitioners claim against
multiple prosecutions based on a single act not only because
the question of double jeopardy is not at issue here, but also
because, as the Court of Appeals held, petitioners are being
prosecuted for an act or incident punished by four national

QUISUMBING, J.:

Based on the complaint-affidavit of Aquilino Q. Pimentel, Jr.,

who ran in the 1995 senatorial elections, an information dated
March 30, 1998, was filed in the Regional Trial Court of
Alaminos, charging Herminio R. Romero, Renato R. Viray,
Rachel Palisoc and Francisca de Vera, and petitioner, with
violation of Section 27(b). The information reads:
That on or about May 11, 1995, which was within the
canvassing period during the May 8, 1995 elections, in the
Municipality of Alaminos, Province of Pangasinan, Philippines,
and within the jurisdiction of this Honorable Court, the abovenamed accused, Election Officer Arsenia B. Garcia, Municipal
Treasurer Herminio R. Romero, Public School District
Supervisor Renato R. Viray, Chairman, Vice-Chairman, and
Member-Secretary, respectively, of the Municipal Board of
Canvassers of Alaminos, Pangasinan, tabulators Rachel
Palisoc and Francisca de Vera, conspiring with, confederating
together and mutually helping each other, did, then and there,
willfully, and unlawfully decrease[d] the votes received by
senatorial candidate Aquilino Q. Pimentel, Jr. from six
thousand nine hundred ninety-eight (6,998) votes, as clearly
disclosed in the total number of votes in the one hundred fiftynine (159) precincts of the Statement of Votes by Precincts of

said municipality, with Serial Nos. 008417, 008418, 008419,

008420, 008421, 008422 and 008423 to one thousand nine
hundred twenty-one (1,921) votes as reflected in the Statement
of Votes by Precincts with Serial No. 008423 and Certificate of
Canvass with Serial No. 436156 with a difference of five
thousand seventy-seven (5,077) votes.
CONTRARY TO LAW.4
In a Decision dated September 11, 2000, the RTC acquitted all
the accused for insufficiency of evidence, except petitioner who
was convicted as follows:
xxx
5. And finally, on the person of Arsenia B. Garcia, the Court
pronounces her GUILTY beyond reasonable doubt, of the
crime defined under Republic Act 6646, Section 27 (b) for
decreasing the votes of Senator Pimentel in the total of 5,034
and in relation to BP Blg. 881, considering that this finding is a
violation of Election Offense, she is thus sentenced to suffer an
imprisonment of SIX (6) YEARS as maximum, but applying the
INDETERMINATE SENTENCE LAW, the minimum penalty is
the next degree lower which is SIX (6) MONTHS; however,
accused Arsenia B. Garcia is not entitled to probation; further,
she is sentenced to suffer disqualification to hold public office
and she is also deprived of her right of suffrage.
The bailbond posted by her is hereby ordered cancelled, and
the Provincial Warden is ordered to commit her person to the
Bureau of Correctional Institution for Women, at Metro Manila,
until further orders from the court.
No pronouncement as to costs.
IT IS SO ORDERED.5
Petitioner appealed before the Court of Appeals which affirmed
with modification the RTC Decision, thus,
WHEREFORE, foregoing considered, the appealed decision is
hereby affirmed with modification, increasing the minimum
penalty imposed by the trial court from six (6) months to one
(1) year.
SO ORDERED.6
The Court of Appeals likewise denied the motion for
reconsideration. Hence, this appeal assigning the following as
errors of the appellate court:
I
ON THE FIRST AND SECOND GROUNDS RELIED UPON BY
THE RESPONDENT COURT, NAMELY, THAT IT COULD NOT
HAVE BEEN SECRETARY VIRAY WHO DECREASED THE
VOTES OF COMPLAINANT PIMENTEL SINCE HE MERELY
RELIED ON WHAT THE PETITIONER DICTATED, AND THAT
IT COULD NOT HAVE ALSO BEEN THE TABULATORS
BECAUSE PETITIONER WAS THE ONE WHO READ THE
ADDING [MACHINE] TAPE.

II
ON THE THIRD GROUND, NAMELY, THAT PETITIONER DID
NOT PRODUCE THE TAPES DURING THE TRIAL BECAUSE
IF PRODUCED, IT IS GOING TO BE ADVERSE TO HER.
III
ON THE FOURTH GROUND, NAMELY, THAT THE
PETITIONER WAS THE ONE WHO ENTERED THE
REDUCED FIGURE OF 1,921 IN THE CERTIFICATE OF
CANVASS (COC), Exh. "7", WHEN THE DUTY WAS THAT OF
THE SECRETARY OF THE BOARD.
IV
THE REDUCTION
PIMENTEL
WAS
INTENTIONAL.7

OF THE VOTES OF CANDIDATE

CLEARLY
NOT
WILLFUL
OR

Petitioner contends that (1) the Court of Appeals judgment is

erroneous, based on speculations, surmises and conjectures,
instead of substantial evidence; and (2) there was no motive
on her part to reduce the votes of private complainant.
Respondent on the other hand contends that good faith is not a
defense in the violation of an election law, which falls under the
class of mala prohibita.
The main issue is, Is a violation of Section 27(b) of Rep. Act
No. 6646, classified under mala in se or mala prohibita? Could
good faith and lack of criminal intent be valid defenses?
Generally, mala in se felonies are defined and penalized in the
Revised Penal Code. When the acts complained of are
inherently immoral, they are deemed mala in se, even if they
are punished by a special law.8Accordingly, criminal intent must
be clearly established with the other elements of the crime;
otherwise, no crime is committed. On the other hand, in crimes
that are mala prohibita, the criminal acts are not inherently
immoral but become punishable only because the law says
they are forbidden. With these crimes, the sole issue is
whether the law has been violated.9Criminal intent is not
necessary where the acts are prohibited for reasons of public
policy.10
Section 27(b) of Republic Act No. 664611provides:
SEC. 27. Election Offenses.- In addition to the prohibited acts
and election offenses enumerated in Sections 261 and 262 of
Batas Pambansa Blg. 881, as amended, the following shall be
guilty of an election offense:
xxx
(b) Any member of the board of election inspectors or board of
canvassers who tampers, increases, or decreases the votes
received by a candidate in any election or any member of the
board who refuses, after proper verification and hearing, to
credit the correct votes or deduct such tampered votes.
xxx

Clearly, the acts prohibited in Section 27(b) are mala in

se.12For otherwise, even errors and mistakes committed due to
overwork and fatigue would be punishable. Given the volume
of votes to be counted and canvassed within a limited amount
of time, errors and miscalculations are bound to happen. And it
could not be the intent of the law to punish unintentional
election canvass errors. However, intentionally increasing or
decreasing the number of votes received by a candidate is
inherently immoral, since it is done with malice and intent to
injure another.
Criminal intent is presumed to exist on the part of the person
who executes an act which the law punishes, unless the
contrary shall appear.13Thus, whoever invokes good faith as a
defense has the burden of proving its existence.
Records show that the canvassing of votes on May 11, 1995
before the Board of Canvassers of the Municipality of
Alaminos, Pangasinan was conducted as follows:
1. After the votes in the 159 precincts of the municipality of
Alaminos were tallied, the results thereof were sealed and
forwarded to the Municipal Board of Canvassers for
canvassing;
2. The number of votes received by each candidate in each
precinct was then recorded in the Statement of Votes with
appellant, in her capacity as Chairman, reading the figures
appearing in the results from the precincts and accused Viray,
in his capacity as secretary of the Board, entering the number
in the Statements of Votes as read by the appellant. Six
Statements of Votes were filled up to reflect the votes received
by each candidate in the 159 precincts of the Municipality of
Alaminos, Pangasinan.
3. After the number of votes received by each candidate for
each precincts were entered by accused Viray in the
Statements of Votes, these votes were added by the accused
Palisoc and de Vera with the use of electrical adding machines.
4. After the tabulation by accused Palisoc and de Vera, the
corresponding machine tapes were handed to appellant who
reads the subtotal of votes received by each candidate in the
precincts listed in each Statement of Votes. Accused Viray
[then] records the subtotal in the proper column in the
Statement of Votes.
5. After the subtotals had been entered by accused Viray,
tabulators accused Palisoc and de Vera added all the subtotals
appearing in all Statement of Votes.
6. After the computation, the corresponding machine tape on
which the grand total was reflected was handed to appellant
who reads the same and accused Viray enters the figure read
by appellant in the column for grand total in the Statement of
Votes.14
Neither the correctness of the number of votes entered in the
Statement of Votes (SOV) for each precinct, nor of the number
of votes entered as subtotals of votes received in the precincts
listed in SOV Nos. 008417 to 008422 was raised as an issue.

At first glance, however, there is a noticeable discrepancy in

the addition of the subtotals to arrive at the grand total of votes
received by each candidate for all 159 precincts in SOV No.
008423.15The grand total of the votes for private complainant,
Senator Aquilino Pimentel, was only 1,921 instead of 6,921, or
5,000 votes less than the number of votes private complainant
actually received. This error is also evident in the Certificate of
Canvass (COC) No. 436156 signed by petitioner, Viray and
Romero.16
During trial of this case, petitioner admitted that she was
indeed the one who announced the figure of 1,921, which was
subsequently entered by then accused Viray in his capacity as
secretary of the board.17Petitioner likewise admitted that she
was the one who prepared the COC (Exhibit A-7), though it
was not her duty. To our mind, preparing the COC even if it
was not her task, manifests an intention to perpetuate the
erroneous entry in the COC.18
Neither can this Court accept petitioners explanation that the
Board of Canvassers had no idea how the SOV (Exhibit "6")
and the COC reflected that private complainant had only 1,921
votes instead of 6,921 votes. As chairman of the Municipal
Board of Canvassers, petitioners concern was to assure
accurate, correct and authentic entry of the votes. Her failure to
exercise maximum efficiency and fidelity to her trust deserves
not only censure but also the concomitant sanctions as a
matter of criminal responsibility pursuant to the dictates of the
law.19
The fact that the number of votes deducted from the actual
votes received by private complainant, Sen. Aquilino Pimentel,
Jr. was not added to any senatorial candidate does not relieve
petitioner of liability under Section 27(b) of Rep. Act No. 6646.
The mere decreasing of the votes received by a candidate in
an election is already punishable under the said provision.20
At this point, we see no valid reason to disturb the factual
conclusions of the appellate court. The Court has consistently
held that factual findings of the trial court, as well as of the
Court of Appeals are final and conclusive and may not be
reviewed on appeal, particularly where the findings of both the
trial court and the appellate court on the matter coincide.21
Public policy dictates that extraordinary diligence should be
exercised by the members of the board of canvassers in
canvassing the results of the elections. Any error on their part
would result in the disenfranchisement of the voters. The
Certificate of Canvass for senatorial candidates and its
supporting statements of votes prepared by the municipal
board of canvassers are sensitive election documents whose
entries must be thoroughly scrutinized.22
In our review, the votes in the SOV should total 6,998.23
As between the grand total of votes alleged to have been
received by private complainant of 6,921 votes and statement
of his actual votes received of 6,998 is a difference of 77 votes.
The discrepancy may be validly attributed to mistake or error
due to fatigue. However, a decrease of 5,000 votes as
reflected in the Statement of Votes and Certificate of Canvass

is substantial, it cannot be allowed to remain on record

unchallenged, especially when the error results from the mere
transfer of totals from one document to another.
WHEREFORE, the instant petition is DENIED. The assailed
Decision of the Court of Appeals sustaining petitioners
conviction but increasing the minimum penalty in her sentence
to one year instead of six months is AFFIRMED.
SO ORDERED.

Article 4:
Garcia vs. People 597 SCRA 392 August 28, 2009
Republic
SUPREME
Manila

of

the

Philippines
COURT

SECOND DIVISION
G.R. No. 171951

August 28, 2009

AMADO
ALVARADO
GARCIA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
QUISUMBING, J.:
For review on certiorari is the Decision 1 dated December 20,
2005 of the Court of Appeals in CA-G.R.-CR No. 27544
affirming the Decision2 dated July 2, 2003 of the Regional Trial
Court (RTC), Branch 9, Aparri, Cagayan, which found
petitioner Amado Garcia guilty beyond reasonable doubt of
homicide. Contested as well is the appellate courts
Resolution3 dated March 13, 2006 denying petitioners Motion
for Reconsideration.4
On February 10, 2000, petitioner was charged with murder in
an Information that alleges as follows:
The undersigned, Provincial Prosecutor accuses AMADO
GARCIA @ Manding of the crime of Murder, defined and
penalized under Article [248] of the Revised Penal Code, as
amended by Republic Act No. 7659, committed as follows:
That on or about September 29, 1999, in the municipality of
Aparri, province of Cagayan, and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a
bottle, with intent to kill, with evident premeditation and with
treachery, did then and there wilfully, unlawfully and feloniously
assault, attack, box, club and maul one Manuel K. Chy,
inflicting upon the latter fatal injuries which caused his death.
CONTRARY TO LAW.5
Upon arraignment, petitioner entered a not guilty plea.
Thereafter, trial on the merits ensued.

The factual antecedents are as follows:

At approximately 11:00 a.m. on September 26, 1999,
petitioner, Fidel Foz, Jr. and Armando Foz had a drinking spree
at the apartment unit of Bogie Tacuboy, which was adjacent to
the house of Manuel K. Chy. At around 7:00 p.m., Chy
appealed for the group to quiet down as the noise from the
videoke machine was blaring. It was not until Chy requested a
second time that the group acceded. Unknown to Chy, this left
petitioner irate and petitioner was heard to have said in
the Ilocano vernacular, "Dayta a Manny napangas makaala
caniac dayta." (This Manny is arrogant, I will lay a hand on
him.)6
On September 28, 1999, the group met again to celebrate the
marriage of Ador Tacuboy not far from Chys apartment. Maya
Mabbun advised the group to stop singing lest they be told off
again. This further infuriated petitioner who remarked, "Talaga
a napangas ni Manny saan ko a pagbayagen daytoy,"
meaning, "This Manny is really arrogant, I will not let him live
long."7
Yet again, at around 12:00 p.m. on September 29, 1999, the
group convened at the house of Foz and Garcia. There,
petitioner, Foz, Jr. and Fred Rillon mused over the drinking
session on the 26th and 28th of September and the
confrontation with Chy. Enraged at the memory, petitioner
blurted out "Talaga a napangas dayta a day[t]oy a Manny
ikabbut ko ita." (This Manny is really arrogant, I will finish him
off today.)8 Later that afternoon, the group headed to the store
of Adela dela Cruz where they drank until petitioner proposed
that they move to Punta. On their way to Punta, the group
passed by the store of Aurelia Esquibel, Chys sister, and
there, decided to have some drinks.
At this juncture, petitioner ordered Esquibel to call on Chy who,
incidentally, was coming out of his house at the time. Upon
being summoned, the latter approached petitioner who
suddenly punched him in the face. Chy cried out, "Bakit mo
ako sinuntok hindi ka naman [inaano]?" (Why did you box
me[?] Im not doing anything to you.)9 But petitioner kept on
assaulting him. Foz attempted to pacify petitioner but was
himself hit on the nose while Chy continued to parry the blows.
Petitioner reached for a bottle of beer, and with it, struck the
lower back portion of Chys head. Then, Foz shoved Chy
causing the latter to fall.
When Chy found an opportunity to escape, he ran towards his
house and phoned his wife Josefina to call the police. Chy told
Josefina about the mauling and complained of difficulty in
breathing. Upon reaching Chys house, the policemen knocked
five times but nobody answered. Josefina arrived minutes later,
unlocked the door and found Chy lying unconscious on the
kitchen floor, salivating. He was pronounced dead on arrival at
the hospital. The autopsy confirmed that Chy died of
myocardial infarction.
After trial in due course, the RTC of Aparri, Cagayan (Branch
9) found petitioner guilty beyond reasonable doubt of homicide.
The dispositive portion of the RTC decision reads:

WHEREFORE, the Court renders judgment:

1) Finding AMADO GARCIA guilty beyond reasonable doubt
for the crime of HOMICIDE defined and penalized by Article
249 of the Revised Penal Code and after applying in his favor
the provisions of the Indeterminate Sentence Law, hereby
sentences him to suffer an indeterminate prison term of TEN
(10) YEARS OF PRISION MAYOR, as minimum, to
FOURTEEN (14) YEARS and EIGHT (8) MONTHS of
RECLUSION TEMPORAL as maximum;
2) Ordering him to pay the heirs of Manuel Chy the amount of
FIFTY THOUSAND (P50,000.00) PESOS, as death indemnity;
TWO HUNDRED THOUSAND (P200,000.00) PESOS,
representing expenses for the wake and burial; THREE
HUNDRED THOUSAND (P300,000.00) PESOS, as moral
damages;
and
THREE
HUNDRED
THIRTY[-]TWO
THOUSAND (P332,000.00] PESOS, as loss of earning, plus
the cost of this suit.
SO ORDERED.10
On appeal, the Court of Appeals affirmed the conviction in a
Decision dated December 20, 2005, thus:
WHEREFORE, premises considered, appeal is hereby
[DENIED] and the July 2, 2003 Decision of the Regional Trial
Court of Aparri, Cagayan, Branch [9], in Criminal Case No. 081185, is hereby AFFIRMED IN TOTO.
SO ORDERED.11
Petitioner moved for reconsideration but his motion was denied
in a Resolution dated March 13, 2006.
Hence, the instant appeal of petitioner on the following
grounds:
I.
THE APPELLATE COURT ERRED IN AFFIRMING THE
RULING OF THE TRIAL COURT THAT PETITIONER IS THE
ONE RESPONSIBLE FOR INFLICTING THE SLIGHT
PHYSICAL INJURIES SUSTAINED BY THE DECEASED
MANUEL CHY.
II.
THE APPELLATE COURT ERRED IN AFFIRMING THE
RULING OF THE TRIAL COURT FINDING PETITIONER
LIABLE FOR THE DEATH OF MANUEL CHY DESPITE THE
FACT THAT THE CAUSE OF DEATH IS MYOCARDIAL
INFARCTION, A NON-VIOLENT RELATED CAUSE OF
DEATH.
III.
THE APPELLATE COURT ERRED IN AFFIRMING THE
RULING OF THE TRIAL COURT WHICH CONCLUDED THAT
THE HEART FAILURE OF MANUEL CHY WAS DUE TO
"FRIGHT OR SHOCK CAUSED BY THE MALTREATMENT."
IV.

BOTH THE APPELLATE TRIBUNAL AND THE TRIAL COURT

ERRED IN NOT ACQUITTING THE PETITIONER ON THE
GROUND OF REASONABLE DOUBT.12
In essence, the issue is whether or not petitioner is liable for
the death of Manuel Chy.
In his undated Memorandum,13 petitioner insists on a review of
the factual findings of the trial court because the judge who
penned the decision was not the same judge who heard the
prosecution evidence. He adds that the Court of Appeals had
wrongly inferred from, misread and overlooked certain relevant
and undisputed facts, which, if properly considered, would
justify a different conclusion.14
At the onset, petitioner denies laying a hand on Manuel Chy.
Instead, he implicates Armando Foz as the author of the
victims injuries. Corollarily, he challenges the credibility of
Armandos brother, Fidel, who testified concerning his sole
culpability. Basically, petitioner disowns responsibility for Chys
demise since the latter was found to have died of myocardial
infarction. In support, he amplifies the testimony of Dr. Cleofas
C. Antonio15 that Chys medical condition could have resulted in
his death anytime. Petitioner asserts that, at most, he could be
held liable for slight physical injuries because none of the
blows he inflicted on Chy was fatal.
The Office of the Solicitor General reiterates the trial courts
assessment of the witnesses and its conclusion that the
beating of Chy was the proximate cause of his death.
Upon careful consideration of the evidence presented by the
prosecution as well as the defense in this case, we are unable
to consider the petitioners appeal with favor.
The present petition was brought under Rule 45 of the Rules of
Court, yet, petitioner raises questions of fact. Indeed, it is
opportune to reiterate that this Court is not the proper forum
from which to secure a re-evaluation of factual issues, save
where the factual findings of the trial court do not find support
in the evidence on record or where the judgment appealed
from was based on a misapprehension of facts.16 Neither
exception applies in the instant case as would justify a
departure from the established rule.
Further, petitioner invokes a recognized exception to the rule
on non-interference with the determination of the credibility of
witnesses. He points out that the judge who penned the
decision is not the judge who received the evidence and heard
the witnesses. But while the situation obtains in this case, the
exception does not. The records reveal that Judge Conrado F.
Manauis inhibited from the proceedings upon motion of no less
than the petitioner himself. Consequently, petitioner cannot
seek protection from the alleged adverse consequence his own
doing might have caused. For us to allow petitioner relief
based on this argument would be to sanction a travesty of the
Rules which was designed to further, rather than subdue, the
ends of justice.
We reiterate, the efficacy of a decision is not necessarily
impaired by the fact that the ponente only took over from a

colleague who had earlier presided over the trial. It does not
follow that the judge who was not present during the trial, or a
fraction thereof, cannot render a valid and just decision.17 Here,
Judge Andres Q. Cipriano took over the case after Judge
Manauis recused himself from the proceedings. Even so,
Judge Cipriano not only heard the evidence for the defense, he
also had an opportunity to observe Dr. Cleofas Antonio who
was recalled to clarify certain points in his testimony. Worth
mentioning, too, is the fact that Judge Cipriano presided during
the taking of the testimonies of Fidel Foz, Jr. and Alvin Pascua
on rebuttal.
In any case, it is not unusual for a judge who did not try a case
in its entirety to decide it on the basis of the records on
hand.18 He can rely on the transcripts of stenographic notes
and calibrate the testimonies of witnesses in accordance with
their conformity to common experience, knowledge and
observation of ordinary men. Such reliance does not violate
substantive and procedural due process of law.19
The Autopsy Report on the body of Manuel Chy disclosed the
following injuries:
POSTMORTEM FINDINGS
Body embalmed, well preserved.
Cyanotic lips and nailbeds.
Contusions, dark bluish red: 4.5 x 3.0 cms., lower portion of
the left ear; 4.0 x 2.8 cms., left inferior mastoid region; 2.5 x
1.1 cms., upper lip; 2.7 x 1.0 cms., lower lip; 5.8 x 5.5 cms.,
dorsum of left hand.
Lacerated wound, 0.8 cm., involving mucosal surface of
the upper lip on the right side.

CAUSE OF
supplied.)20

DEATH:

- Myocardial

Infarction. (Emphasis

At first, petitioner denied employing violence against Chy. In

his undated Memorandum, however, he admitted inflicting
injuries on the deceased, albeit, limited his liability to slight
physical injuries. He argues that the superficial wounds
sustained by Chy did not cause his death.21 Quite the opposite,
however, a conscientious analysis of the records would
acquaint us with the causal connection between the death of
the victim and the mauling that preceded it. In open court, Dr.
Antonio identified the immediate cause of Chys myocardial
infarction:
ATTY. TUMARU:
Q: You diagnose[d] the cause of death to be myocardial
infarction that is because there was an occlusion in the artery
that prevented the flowing of blood into the heart?
A: That was not exactly seen at the autopsy table but it
changes, the hyperemic changes [in] the heart muscle were
the one[s] that made us [think] or gave strong conclusion that it
was myocardial infarction, and most likely the cause
is occlusion of the blood vessels itself. (Emphasis
supplied.)22
By definition, coronary occlusion23 is the complete obstruction
of an artery of the heart, usually from progressive
arteriosclerosis24 or the thickening and loss of elasticity of the
arterial walls. This can result from sudden emotion in a person
with an existing arteriosclerosis; otherwise, a heart attack will
not occur.25 Dr. Jessica Romero testified on direct examination
relative to this point:
ATTY. CALASAN:

No fractures noted.

Q: Could an excitement trigger a myocardial infarction?

Brain with tortuous vessels. Cut sections show congestion. No

hemorrhage noted.

A: Excitement, I cannot say that if the patient is normal[;] that

is[,] considering that the patient [does] not have any previous
[illness] of hypertension, no previous history of myocardial
[ischemia], no previous [arteriosis] or hardening of the
arteries, then excitement [cannot] cause myocardial infarction.
(Emphasis supplied.)26

Heart, with abundant fat adherent on its epicardial surface. Cut

sections show a reddish brown myocardium with an area of
hyperemia on the whole posterior wall, the lower portion of the
anterior wall and the inferior portion of the septum. Coronary
arteries, gritty, with the caliber of the lumen reduced by
approximately thirty (30%) percent. Histopathological findings
show mild fibrosis of the myocardium.
Lungs, pleural surfaces, shiny; with color ranging from dark red
to dark purple. Cut sections show a gray periphery with reddish
brown central portion with fluid oozing on pressure with some
reddish frothy materials noted. Histopathological examinations
show pulmonary edema and hemorrhages.
Kidneys, purplish with glistening capsule. Cut sections show
congestion. Histopathological examinations show mild
lymphocytic infiltration.1avvphi1
Stomach, one-half (1/2) full with brownish and whitish materials
and other partially digested food particles.

The Autopsy Report bears out that Chy has a mild fibrosis of
the myocardium27 caused by a previous heart attack. Said
fibrosis28 or formation of fibrous tissue or scar tissue rendered
the middle and thickest layer of the victims heart less elastic
and vulnerable to coronary occlusion from sudden emotion.
This causation is elucidated by the testimony of Dr. Antonio:
ATTY. CALASAN:
Q: You said that the physical injuries will cause no crisis on the
part of the victim, Doctor?
A: Yes, sir.
Q: And [these] physical injuries [were] caused by the [boxing]
on the mouth and[/]or hitting on the nape by a bottle?

A: Yes, sir.
Q: On the part of the deceased, that [was] caused definitely by
emotional crisis, Doctor?
A: Yes, sir.
Q: And because of this emotional crisis the heart palpitated so
fast, so much so, that there was less oxygen being pumped by
the heart?
A: Yes, sir.
Q: And definitely that caused his death, Doctor?
A: Yes, sir, it could be.29
In concurrence, Dr. Antonio A. Paguirigan also testified as
follows:
ATTY. CALASAN:
Q: I will repeat the question Dr. Antonio testified that the
deceased died because of the blow that was inflicted, it
triggered the death of the deceased, do you agree with his
findings, Doctor?
A: Not probably the blow but the reaction sir.
Q: So you agree with him, Doctor?
A: It could be, sir.
Q: You agree with him on that point, Doctor?
A: Yes, sir.30
It can be reasonably inferred from the foregoing statements
that the emotional strain from the beating aggravated Chys
delicate constitution and led to his death. The inevitable
conclusion then surfaces that the myocardial infarction suffered
by the victim was the direct, natural and logical consequence
of the felony that petitioner had intended to commit.
Article 4(1) of the Revised Penal Code states that criminal
liability shall be incurred "by any person committing a
felony (delito) although the wrongful act done be different from
that which he intended." The essential requisites for the
application of this provision are: (a) the intended act is
felonious; (b) the resulting act is likewise a felony; and (c) the
unintended albeit graver wrong was primarily caused by the
actors wrongful acts.31lawph!l
In this case, petitioner was committing a felony when he boxed
the victim and hit him with a bottle. Hence, the fact that Chy
was previously afflicted with a heart ailment does not alter
petitioners liability for his death. Ingrained in our jurisprudence
is the doctrine laid down in the case of United States v.
Brobst32 that:
x x x where death results as a direct consequence of the use of
illegal violence, the mere fact that the diseased or weakened

condition of the injured person contributed to his death, does

not relieve the illegal aggressor of criminal responsibility.33
In the same vein, United States v. Rodriguez34 enunciates that:
x x x although the assaulted party was previously affected by
some internal malady, if, because of a blow given with the
hand or the foot, his death was hastened, beyond
peradventure he is responsible therefor who produced the
cause for such acceleration as the result of a voluntary and
unlawfully inflicted injury. (Emphasis supplied.)35
In this jurisdiction, a person committing a felony is responsible
for all the natural and logical consequences resulting from it
although the unlawful act performed is different from the one
he intended;36 "el que es causa de la causa es causa del mal
causado" (he who is the cause of the cause is the cause of the
evil caused).37 Thus, the circumstance that petitioner did not
intend so grave an evil as the death of the victim does not
exempt him from criminal liability. Since he deliberately
committed an act prohibited by law, said condition simply
mitigates his guilt in accordance with Article 13(3) 38 of the
Revised Penal Code.39 Nevertheless, we must appreciate as
mitigating circumstance in favor of petitioner the fact that the
physical injuries he inflicted on the victim, could not have
resulted naturally and logically, in the actual death of the victim,
if the latters heart was in good condition.
Considering that the petitioner has in his favor the mitigating
circumstance of lack of intention to commit so grave a wrong
as that committed without any aggravating circumstance to
offset it, the imposable penalty should be in the minimum
period, that is, reclusion temporal in its minimum period,40or
anywhere from twelve (12) years and one (1) day to fourteen
years (14) years and eight (8) months. Applying the
Indeterminate Sentence Law,41 the trial court properly imposed
upon petitioner an indeterminate penalty of ten (10) years
of prisin mayor, as minimum, to fourteen (14) years and eight
(8) months of reclusion temporal as maximum.
We shall, however, modify the award of damages to the heirs
of Manuel Chy for his loss of earning capacity in the amount
of P332,000. In fixing the indemnity, the victims actual income
at the time of death and probable life expectancy are taken into
account. For this purpose, the Court adopts the formula used
in People v. Malinao:42
Net earning capacity = 2/3 x (80-age of x a reasonable portion
of the the victim at the annual net income which time of this
death) would have been received
by the heirs for support.43
Branch 9 of the Aparri, Cagayan RTC took judicial notice of the
salary which Manuel Chy was receiving as a sheriff of the
court. At the time of his death, Chy was 51 years old and was
earning a gross monthly income of P10,600 or a gross annual
income of P127,200. But, in view of the victims delicate
condition, the trial court reduced his life expectancy to 10
years. It also deducted P7,000 from Chys salary as
reasonable living expense. However, the records are bereft of

showing that the heirs of Chy submitted evidence to

substantiate actual living expenses. And in the absence of
proof of living expenses, jurisprudence44 approximates net
income to be 50% of the gross income. Accordingly, by reason
of his death, the heirs of Manuel Chy should be
awarded P1,229,600 as loss of earning capacity, computed as
follows:

Criminal Court of Dagupan City finding petitioner Filomeno

Urban guilty beyond reasonable doubt of the crime of
homicide.

Urbano vs. IAC 157 SCRA 1 January 7, 1988

After Javier was treated by Dr. Meneses, he and his

companions returned to Dr. Guillermo Padilla who conducted a
medico-legal examination. Dr. Padilla issued a medico-legal
certificate (Exhibit "C" dated September 28, 1981) which reads:

The records disclose the following facts of the case.

At about 8:00 o'clock in the morning of October 23, 1980,

petitioner Filomeno Urbano went to his ricefield at Barangay
Anonang, San Fabian, Pangasinan located at about 100
Net
earning
2/3 x (80-51) x [P127,200 - 1/2
=
meters from the tobacco seedbed of Marcelo Javier. He found
capacity
(P127,200)]
the place where he stored his palay flooded with water coming
from the irrigation canal nearby which had overflowed. Urbano
= 2/3 x (29) x P63,600
went to the elevated portion of the canal to see what happened
and there he saw Marcelo Javier and Emilio Erfe cutting grass.
He asked them who was responsible for the opening of the
= 19 1/3 x P63,600
irrigation canal and Javier admitted that he was the one.
Urbano then got angry and demanded that Javier pay for his
= P1,229,600
soaked palay. A quarrel between them ensued. Urbano
unsheathed his bolo (about 2 feet long, including the handle,
We sustain the trial courts grant of funerary expense
by 2 inches wide) and hacked Javier hitting him on the right
of P200,000 as stipulated by the parties45 and civil indemnity
palm of his hand, which was used in parrying the bolo hack.
of P50,000.46 Anent moral damages, the same is mandatory in
Javier who was then unarmed ran away from Urbano but was
cases of murder and homicide, without need of allegation and
overtaken by Urbano who hacked him again hitting Javier on
proof other than the death of the victim.47 However, in
the left leg with the back portion of said bolo, causing a
obedience to the controlling case law, the amount of moral
swelling on said leg. When Urbano tried to hack and inflict
damages should be reduced to P50,000.
further injury, his daughter embraced and prevented him from
hacking Javier.
WHEREFORE, the Decision dated December 20, 2005 and
the Resolution dated March 13, 2006 of the Court of Appeals in
Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe
CA-G.R.-CR No. 27544 are AFFIRMED with MODIFICATION
Erfe brought Javier to his house about 50 meters away from
in that the award of moral damages is reduced to P50,000.
where the incident happened. Emilio then went to the house of
Petitioner is further ordered to indemnify the heirs of Manuel K.
Barangay Captain Menardo Soliven but not finding him there,
Chy P50,000 as civil indemnity;P200,000, representing
Emilio looked for barrio councilman Felipe Solis instead. Upon
expenses for the wake and burial; and P1,229,600 as loss of
the advice of Solis, the Erfes together with Javier went to the
earning capacity.
police station of San Fabian to report the incident. As
suggested by Corporal Torio, Javier was brought to a
No pronouncement as to costs.
physician. The group went to Dr. Guillermo Padilla, rural health
physician of San Fabian, who did not attend to Javier but
SO ORDERED.
instead suggested that they go to Dr. Mario Meneses because
Padilla had no available medicine.

Republic
SUPREME
Manila

of

the

Philippines
COURT

TO WHOM IT MAY CONCERN:

THIRD DIVISION
G.R. No. 72964 January 7, 1988
FILOMENO
URBANO, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT AND PEOPLE
OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This is a petition to review the decision of the then Intermediate
Appellate Court which affirmed the decision of the then Circuit

This is to certify that I have examined the wound of Marcelo

Javier, 20 years of age, married, residing at Barangay
Anonang, San Fabian, Pangasinan on October 23, 1980 and
found the following:
1 -Incised wound 2 inches in length at the upper portion of the
lesser palmar prominence, right.
As to my observation the incapacitation is from (7-9) days
period. This wound was presented to me only for medico-legal
examination, as it was already treated by the other doctor. (p.
88, Original Records)

Upon the intercession of Councilman Solis, Urbano and Javier

agreed to settle their differences. Urbano promised to pay
P700.00 for the medical expenses of Javier. Hence, on
October 27, 1980, the two accompanied by Solis appeared
before the San Fabian Police to formalize their amicable
settlement. Patrolman Torio recorded the event in the police
blotter (Exhibit A), to wit:
xxx xxx xxx
Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257
both parties appeared before this Station accompanied by
brgy. councilman Felipe Solis and settled their case amicably,
for they are neighbors and close relatives to each other.
Marcelo Javier accepted and granted forgiveness to Filomeno
Urbano who shoulder (sic) all the expenses in his medical
treatment, and promising to him and to this Office that this will
never be repeated anymore and not to harbour any grudge
against each other. (p. 87, Original Records.)
Urbano advanced P400.00 to Javier at the police station. On
November 3, 1980, the additional P300.00 was given to Javier
at Urbano's house in the presence of barangay captain
Soliven.

In an information dated April 10, 1981, Filomeno Urbano was

charged with the crime of homicide before the then Circuit
Criminal Court of Dagupan City, Third Judicial District.
Upon arraignment, Urbano pleaded "not guilty." After trial, the
trial court found Urbano guilty as charged. He was sentenced
to suffer an indeterminate prison term of from TWELVE (12)
YEARS of prision mayor, as minimum to SEVENTEEN (17)
years, FOUR (4) MONTHS and ONE (1) DAY of reclusion
temporal, as maximum, together with the accessories of the
law, to indemnify the heirs of the victim, Marcelo Javier, in the
amount of P12,000.00 without subsidiary imprisonment in case
of insolvency, and to pay the costs. He was ordered confined
at the New Bilibid Prison, in Muntinlupa, Rizal upon finality of
the decision, in view of the nature of his penalty.
The then Intermediate Appellate Court affirmed the conviction
of Urbano on appeal but raised the award of indemnity to the
heirs of the deceased to P30,000.00 with costs against the
appellant.
The appellant filed a motion for reconsideration and/or new
trial. The motion for new trial was based on an affidavit of
Barangay Captain Menardo Soliven (Annex "A") which states:

At about 1:30 a.m. on November 14, 1980, Javier was rushed

to the Nazareth General Hospital in a very serious condition.
When admitted to the hospital, Javier had lockjaw and was
having convulsions. Dr. Edmundo Exconde who personally
attended to Javier found that the latter's serious condition was
caused by tetanus toxin. He noticed the presence of a healing
wound in Javier's palm which could have been infected by
tetanus.

That in 1980, I was the barrio captain of Barrio Anonang, San

Fabian, Pangasinan, and up to the present having been reelected to such position in the last barangay elections on May
17, 1982;

On November 15, 1980 at exactly 4:18 p.m., Javier died in the

hospital. The medical findings of Dr. Exconde are as follows:

That during the typhoon, the sluice or control gates of the Bued
irrigation dam which irrigates the ricefields of San Fabian were
closed and/or controlled so much so that water and its flow to
the canals and ditches were regulated and reduced;

Date Diagnosis
11-14-80 ADMITTED due to trismus
adm. at DX TETANUS
1:30 AM Still having frequent muscle spasm. With diffi#35, 421 culty opening his mouth. Restless at times. Febrile
11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessation of respiration and HR after muscular spasm.
02 inhalation administered. Ambo bag resuscita-

That sometime in the first week of November, 1980, there was

a typhoon that swept Pangasinan and other places of Central
Luzon including San Fabian, a town of said province;

That due to the locking of the sluice or control gates of the dam
leading to the canals and ditches which will bring water to the
ricefields, the water in said canals and ditches became shallow
which was suitable for catching mudfishes;
That after the storm, I conducted a personal survey in the area
affected, with my secretary Perfecto Jaravata;
That on November 5, 1980, while I was conducting survey, I
saw the late Marcelo Javier catching fish in the shallow
irrigation canals with some companions;

tion and cardiac massage done but to no avail.

That few days there after,or on November l5, l980, I came to

know that said Marcelo Javier died of tetanus. (p. 33, Rollo)

Pronounced dead by Dra. Cabugao at 4:18 P.M.

The motion was denied. Hence, this petition.

PMC done and cadaver brought home by rela-

In a resolution dated July 16, 1986, we gave due course to the

petition.

tives. (p. 100, Original Records)

The case involves the application of Article 4 of the Revised

Penal Code which provides that "Criminal liability shall be
incurred: (1) By any person committing a felony (delito)

although the wrongful act done be different from that which he

intended ..." Pursuant to this provision "an accused is
criminally responsible for acts committed by him in violation of
law and for all the natural and logical consequences resulting
therefrom." (People v. Cardenas, 56 SCRA 631).

tetanus However, as to when the wound was infected is not

clear from the record.

The record is clear that Marcelo Javier was hacked by the

petitioner who used a bolo as a result of which Javier suffered
a 2-inch incised wound on his right palm; that on November 14,
1981 which was the 22nd day after the incident, Javier was
rushed to the hospital in a very serious condition and that on
the following day, November 15, 1981, he died from tetanus.

xxx xxx xxx

Under these circumstances, the lower courts ruled that Javier's

death was the natural and logical consequence of Urbano's
unlawful act. Hence, he was declared responsible for Javier's
death. Thus, the appellate court said:
The claim of appellant that there was an efficient cause which
supervened from the time the deceased was wounded to the
time of his death, which covers a period of 23 days does not
deserve serious consideration. True, that the deceased did not
die right away from his wound, but the cause of his death was
due to said wound which was inflicted by the appellant. Said
wound which was in the process of healing got infected with
tetanus which ultimately caused his death.
Dr. Edmundo Exconde of the Nazareth General Hospital
testified that the victim suffered lockjaw because of the
infection of the wound with tetanus. And there is no other way
by which he could be infected with tetanus except through the
wound in his palm (tsn., p. 78, Oct. 5, 1981). Consequently, the
proximate cause of the victim's death was the wound which got
infected with tetanus. And the settled rule in this jurisdiction is
that an accused is liable for all the consequences of his
unlawful act. (Article 4, par. 1, R.P.C. People v. Red, CA 43
O.G. 5072; People v. Cornel 78 Phil. 418).
Appellant's allegation that the proximate cause of the victim's
death was due to his own negligence in going back to work
without his wound being properly healed, and lately, that he
went to catch fish in dirty irrigation canals in the first week of
November, 1980, is an afterthought, and a desperate attempt
by appellant to wiggle out of the predicament he found himself
in. If the wound had not yet healed, it is impossible to conceive
that the deceased would be reckless enough to work with a
disabled hand. (pp. 20-21, Rollo)
The petitioner reiterates his position that the proximate cause
of the death of Marcelo Javier was due to his own negligence,
that Dr. Mario Meneses found no tetanus in the injury, and that
Javier got infected with tetanus when after two weeks he
returned to his farm and tended his tobacco plants with his
bare hands exposing the wound to harmful elements like
tetanus germs.
The evidence on record does not clearly show that the wound
inflicted by Urbano was infected with tetanus at the time of the
infliction of the wound. The evidence merely confirms that the
wound, which was already healing at the time Javier suffered
the symptoms of the fatal ailment, somehow got infected with

In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we

adopted the following definition of proximate cause:

... A satisfactory definition of proximate cause is found in

Volume 38, pages 695-696 of American Jurisprudence, cited
by plaintiffs-appellants in their brief. It is as follows:
... "that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have
occurred."And more comprehensively, "the proximate legal
cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each
having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting
the injury as a natural and probable result of the cause which
first acted, under such circumstances that the person
responsible for the first event should, as an ordinarily prudent
and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person
might probably result therefrom." (at pp. 185-186)
The issue, therefore, hinges on whether or not there was an
efficient intervening cause from the time Javier was wounded
until his death which would exculpate Urbano from any liability
for Javier's death.
We look into the nature of tetanusThe incubation period of tetanus, i.e., the time between injury
and the appearance of unmistakable symptoms, ranges from 2
to 56 days. However, over 80 percent of patients become
symptomatic within 14 days. A short incubation period
indicates severe disease, and when symptoms occur within 2
or 3 days of injury the mortality rate approaches 100 percent.
Non-specific premonitory symptoms such as restlessness,
irritability, and headache are encountered occasionally, but the
commonest presenting complaints are pain and stiffness in the
jaw, abdomen, or back and difficulty swallowing. As the
progresses, stiffness gives way to rigidity, and patients often
complain of difficulty opening their mouths. In fact, trismus in
the commonest manifestation of tetanus and is responsible for
the familiar descriptive name of lockjaw. As more muscles are
involved, rigidity becomes generalized, and sustained
contractions called risus sardonicus. The intensity and
sequence of muscle involvement is quite variable. In a small
proportion of patients, only local signs and symptoms develop
in the region of the injury. In the vast majority, however, most
muscles are involved to some degree, and the signs and
symptoms encountered depend upon the major muscle groups
affected.
Reflex spasm usually occur within 24 to 72 hours of the first
symptom, an interval referred to as the onset time. As in the
case of the incubation period, a short onset time is associated

with a poor prognosis. Spasms are caused by sudden

intensification of afferent stimuli arising in the periphery, which
increases rigidity and causes simultaneous and excessive
contraction of muscles and their antagonists. Spasms may be
both painful and dangerous. As the disease progresses,
minimal or inapparent stimuli produce more intense and longer
lasting spasms with increasing frequency. Respiration may be
impaired by laryngospasm or tonic contraction of respiratory
muscles which prevent adequate ventilation. Hypoxia may then
lead to irreversible central nervous system damage and death.
Mild tetanus is characterized by an incubation period of at
least 14 days and an onset time of more than 6 days. Trismus
is usually present, but dysphagia is absent and generalized
spasms are brief and mild. Moderately severe tetanus has a
somewhat shorter incubation period and onset time; trismus is
marked, dysphagia and generalized rigidity are present, but
ventilation remains adequate even during spasms. The criteria
for severe tetanus include a short incubation time, and an
onset time of 72 hrs., or less, severe trismus, dysphagia and
rigidity and frequent prolonged, generalized convulsive
spasms. (Harrison's Principle of Internal Medicine, 1983
Edition, pp. 1004-1005; Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus found
inside a man's body depends on the incubation period of the
disease.
In the case at bar, Javier suffered a 2-inch incised wound on
his right palm when he parried the bolo which Urbano used in
hacking him. This incident took place on October 23, 1980.
After 22 days, or on November 14, 1980, he suffered the
symptoms of tetanus, like lockjaw and muscle spasms. The
following day, November 15, 1980, he died.
If, therefore, the wound of Javier inflicted by the appellant was
already infected by tetanus germs at the time, it is more
medically probable that Javier should have been infected with
only a mild cause of tetanus because the symptoms of tetanus
appeared on the 22nd day after the hacking incident or more
than 14 days after the infliction of the wound. Therefore,
the onset time should have been more than six days. Javier,
however, died on the second day from the onset time. The
more credible conclusion is that at the time Javier's wound was
inflicted by the appellant, the severe form of tetanus that killed
him was not yet present. Consequently, Javier's wound could
have been infected with tetanus after the hacking incident.
Considering the circumstance surrounding Javier's death, his
wound could have been infected by tetanus 2 or 3 or a few but
not 20 to 22 days before he died.
The rule is that the death of the victim must be the direct,
natural, and logical consequence of the wounds inflicted upon
him by the accused. (People v. Cardenas, supra) And since we
are dealing with a criminal conviction, the proof that the
accused caused the victim's death must convince a rational
mind beyond reasonable doubt. The medical findings,
however, lead us to a distinct possibility that the infection of the
wound by tetanus was an efficient intervening cause later or
between the time Javier was wounded to the time of his death.

The infection was, therefore, distinct and foreign to the crime.

(People v. Rellin, 77 Phil. 1038).
Doubts are present. There is a likelihood that the wound was
but the remote cause and its subsequent infection, for failure to
take necessary precautions, with tetanus may have been
the proximate cause of Javier's death with which the petitioner
had nothing to do. As we ruled in Manila Electric Co. v.
Remoquillo, et al. (99 Phil. 118).
"A prior and remote cause cannot be made the be of an action
if such remote cause did nothing more than furnish the
condition or give rise to the occasion by which the injury was
made possible, if there intervened between such prior or
remote cause and the injury a distinct, successive, unrelated,
and efficient cause of the injury, even though such injury would
not have happened but for such condition or occasion. If no
danger existed in the condition except because of the
independent cause, such condition was not the proximate
cause. And if an independent negligent act or defective
condition sets into operation the instances which result in injury
because of the prior defective condition, such subsequent act
or condition is the proximate cause." (45 C.J. pp. 931-932). (at
p. 125)
It strains the judicial mind to allow a clear aggressor to go scot
free of criminal liability. At the very least, the records show he
is guilty of inflicting slight physical injuries. However, the
petitioner's criminal liability in this respect was wiped out by the
victim's own act. After the hacking incident, Urbano and Javier
used the facilities of barangay mediators to effect a
compromise agreement where Javier forgave Urbano while
Urbano defrayed the medical expenses of Javier. This
settlement of minor offenses is allowed under the express
provisions of Presidential Decree G.R. No. 1508, Section 2(3).
(See also People v. Caruncho, 127 SCRA 16).
We must stress, however, that our discussion of proximate
cause and remote cause is limited to the criminal aspects of
this rather unusual case. It does not necessarily follow that the
petitioner is also free of civil liability. The well-settled doctrine is
that a person, while not criminally liable, may still be civilly
liable. Thus, in the recent case ofPeople v. Rogelio Ligon y
Tria, et al. (G.R. No. 74041, July 29, 1987), we said:
xxx xxx xxx
... While the guilt of the accused in a criminal prosecution must
be established beyond reasonable doubt, only a
preponderance of evidence is required in a civil action for
damages. (Article 29, Civil Code). The judgment of acquittal
extinguishes the civil liability of the accused only when it
includes a declaration that the facts from which the civil liability
might arise did not exist. (Padilla v. Court of Appeals, 129
SCRA 559).
The reason for the provisions of article 29 of the Civil Code,
which provides that the acquittal of the accused on the ground
that his guilt has not been proved beyond reasonable doubt
does not necessarily exempt him from civil liability for the same

act or omission, has been explained by the Code Commission

as follows:
The old rule that the acquittal of the accused in a criminal case
also releases him from civil liability is one of the most serious
flaws in the Philippine legal system. It has given use to
numberless instances of miscarriage of justice, where the
acquittal was due to a reasonable doubt in the mind of the
court as to the guilt of the accused. The reasoning followed is
that inasmuch as the civil responsibility is derived from the
criminal offense, when the latter is not proved, civil liability
cannot be demanded.
This is one of those causes where confused thinking leads to
unfortunate and deplorable consequences. Such reasoning
fails to draw a clear line of demarcation between criminal
liability and civil responsibility, and to determine the logical
result of the distinction. The two liabilities are separate and
distinct from each other. One affects the social order and the
other, private rights. One is for the punishment or correction of
the offender while the other is for reparation of damages
suffered by the aggrieved party. The two responsibilities are so
different from each other that article 1813 of the present
(Spanish) Civil Code reads thus: "There may be a compromise
upon the civil action arising from a crime; but the public action
for the imposition of the legal penalty shall not thereby be
extinguished." It is just and proper that, for the purposes of the
imprisonment of or fine upon the accused, the offense should
be proved beyond reasonable doubt. But for the purpose of
indemnity the complaining party, why should the offense also
be proved beyond reasonable doubt? Is not the invasion or
violation of every private right to be proved only by a
preponderance of evidence? Is the right of the aggrieved
person any less private because the wrongful act is also
punishable by the criminal law?
"For these reasons, the Commission recommends the adoption
of the reform under discussion. It will correct a serious defect in
our law. It will close up an inexhaustible source of injustice-a
cause for disillusionment on the part of the innumerable
persons injured or wronged."
The
respondent
court
increased
the
P12,000.00
indemnification imposed by the trial court to P30,000.00.
However, since the indemnification was based solely on the
finding of guilt beyond reasonable doubt in the homicide case,
the civil liability of the petitioner was not thoroughly examined.
This aspect of the case calls for fuller development if the heirs
of the victim are so minded.

Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION
G.R. No. 186412

September 7, 2011

PEOPLE
OF
THE
PHILIPPINES, Plaintiff-Appellee,
vs.
ORLITO VILLACORTA, Accused-Appellant.
DECISION
LEONARDO-DE CASTRO, J.:
On appeal is the Decision1 dated July 30, 2008 of the Court of
Appeals in CA-G.R. CR.-H.C. No. 02550, which affirmed the
Decision2 dated September 22, 2006 of the Regional Trial
Court (RTC), Branch 170, of Malabon, in Criminal Case No.
27039-MN, finding accused-appellant Orlito Villacorta
(Villacorta) guilty of murder, and sentencing him to suffer the
penalty of reclusion perpetua and to pay the heirs of Danilo
Cruz (Cruz) the sum ofP50,000.00 as civil indemnity, plus the
costs of suit.
On June 21, 2002, an Information3 was filed against Villacorta
charging him with the crime of murder, as follows:
That on or about 23rd day of January 2002, in Navotas, Metro
Manila, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a sharpened bamboo stick,
with intent to kill, treachery and evident premeditation, did then
and there willfully, unlawfully and feloniously attack, assault
and stab with the said weapon one DANILO SALVADOR
CRUZ, thereby inflicting upon the victim serious wounds which
caused his immediate death.
When arraigned on September 9, 2002, Villacorta pleaded not
guilty.4
During trial, the prosecution presented as witnesses Cristina
Mendeja (Mendeja) and Dr. Domingo Belandres, Jr. (Dr.
Belandres).

SO ORDERED.

Mendeja narrated that on January 23, 2002, she was tending

her sari-sari store located at C-4 Road, Bagumbayan, Navotas.
Both Cruz and Villacorta were regular customers at Mendejas
store. At around two oclock in the morning, while Cruz was
ordering bread at Mendejas store, Villacorta suddenly
appeared and, without uttering a word, stabbed Cruz on the left
side of Cruzs body using a sharpened bamboo stick. The
bamboo stick broke and was left in Cruzs body. Immediately
after the stabbing incident, Villacorta fled. Mendeja gave chase
but failed to catch Villacorta. When Mendeja returned to her
store, she saw her neighbor Aron removing the broken bamboo
stick from Cruzs body.5 Mendeja and Aron then brought Cruz
to Tondo Medical Center.6

People vs. Villacorta GR 186412 September 7, 2011

Dr. Belandres was Head of the Tetanus Department at the San

Lazaro Hospital. When Cruz sustained the stab wound on
January 23, 2002, he was taken to the Tondo Medical Center,

WHEREFORE, the instant petition is hereby GRANTED. The

questioned decision of the then Intermediate Appellate Court,
now Court of Appeals, is REVERSED and SET ASIDE. The
petitioner is ACQUITTED of the crime of homicide. Costs de
oficio.

where he was treated as an out-patient. Cruz was only brought

to the San Lazaro Hospital on February 14, 2002, where he
died the following day, on February 15, 2002. While admitting
that he did not personally treat Cruz, Dr. Belandres was able to
determine, using Cruzs medical chart and diagnosis, that Cruz
died of tetanus infection secondary to stab wound. 7 Dr.
Belandres specifically described the cause of Cruzs death in
the following manner:
The wound was exposed x x spurs concerted, the patient
developed difficulty of opening the mouth, spastivity of the
body and abdominal pain and the cause of death is hypoxic
encephalopathy neuro transmitted due to upper G.I.
bleeding x x x. Diagnosed of Tetanus, Stage III.8
The prosecution also intended to present Dr. Deverni Matias
(Dr. Matias), who attended to Cruz at the San Lazaro Hospital,
but the prosecution and defense agreed to dispense with Dr.
Matias testimony based on the stipulation that it would only
corroborate Dr. Belandres testimony on Cruz dying of tetanus.
For its part, the defense presented Villacorta himself, who
denied stabbing Cruz. Villacorta recounted that he was on his
way home from work at around two oclock in the morning of
January 21, 2002. Upon arriving home, Villacorta drank coffee
then went outside to buy cigarettes at a nearby store. When
Villacorta was about to leave the store, Cruz put his arm
around Villacortas shoulder. This prompted Villacorta to box
Cruz, after which, Villacorta went home. Villacorta did not
notice that Cruz got hurt. Villacorta only found out about Cruzs
death upon his arrest on July 31, 2002.9
On September 22, 2006, the RTC rendered a Decision finding
Villacorta guilty of murder, qualified by treachery. The
dispositive portion of said Decision reads:
WHEREFORE, in the light of the foregoing, the Court finds
accused Orlito Villacorta guilty beyond reasonable doubt of the
crime of Murder and is hereby sentenced to suffer the penalty
of reclusion perpetua and to pay the heirs of Danilo Cruz the
sum of P50,000.00 as civil indemnity for the death of said
victim plus the costs of suit.10
Villacorta, through his counsel from the Public Attorneys Office
(PAO), filed a notice of appeal to assail his conviction by the
RTC.11 The Court of Appeals directed the PAO to file
Villacortas brief, within thirty days from receipt of notice.

filed before the Court of Appeals. 14 The OSG, likewise,

manifested that it was no longer filing a supplemental brief.15
In his Appellants Brief, Villacorta raised the following
assignment of errors:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY OF THE CRIME CHARGED
DESPITE THE FAILURE OF THE PROSECUTION TO PROVE
HIS GUILT BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING
THE QUALIFYING CIRCUMSTANCE OF TREACHERY.
III
ASSUMING ARGUENDO THAT THE ACCUSED COMMITTED
A CRIME, HE COULD ONLY BE HELD LIABLE FOR SLIGHT
PHYSICAL INJURIES.16
Villacorta assails the credibility of Mendeja, an eyewitness to
the stabbing incident. It was Mendeja who positively identified
Villacorta as the one who stabbed Cruz in the early morning of
January 23, 2002. Villacorta asserts that Mendejas account of
the stabbing incident is replete with inconsistencies and
incredulities, and is contrary to normal human experience,
such as: (1) instead of shouting or calling for help when
Villacorta allegedly stabbed Cruz, Mendeja attempted to run
after and catch Villacorta; (2) while, by Mendejas own account,
there were other people who witnessed the stabbing and could
have chased after Villacorta, yet, oddly, only Mendeja did; (3) if
Cruz was stabbed so swiftly and suddenly as Mendeja
described, then it would have been physically improbable for
Mendeja to have vividly recognized the perpetrator, who
immediately ran away after the stabbing; (4) after the stabbing,
both Villacorta and Cruz ran in opposite directions; and (5)
Mendeja had said that the bamboo stick, the alleged murder
weapon, was left at her store, although she had also stated
that the said bamboo stick was left embedded in Cruzs body.
Villacorta maintains that the aforementioned inconsistencies
are neither trivial nor inconsequential, and should engender
some doubt as to his guilt.
We are not persuaded.

12

Villacorta filed his Appellants Brief on May 30, 2007; while

the People, through the Office of the Solicitor General (OSG),
filed its Appellee's Brief13 on October 2, 2007.

Hence, Villacorta comes before this Court via the instant

appeal.

To begin with, it is fundamental that the determination by the

trial court of the credibility of witnesses, when affirmed by the
appellate court, is accorded full weight and credit as well as
great respect, if not conclusive effect. Such determination
made by the trial court proceeds from its first-hand opportunity
to observe the demeanor of the witnesses, their conduct and
attitude under grilling examination, thereby placing the trial
court in the unique position to assess the witnesses' credibility
and to appreciate their truthfulness, honesty and candor.17

Villacorta manifested that he would no longer file a

supplemental brief, as he was adopting the Appellant's Brief he

In this case, both the RTC and the Court of Appeals gave full
faith and credence to the testimony of prosecution witness

On July 30, 2008, the Court of Appeals promulgated its

Decision affirming in toto the RTC judgment of conviction
against Villacorta.

Mendeja. The Court of Appeals rejected Villacortas attempts to

impugn Mendejas testimony, thus:
Appellants reason for concluding that witness Mendejas
testimony is incredible because she did not shout or call for
help and instead run after the appellant, fails to impress the
Court because persons who witness crimes react in different
ways.
"x x x the makings of a human mind are unpredictable; people
react differently and there is no standard form of behavior
when one is confronted by a shocking incident.
Equally lacking in merit is appellants second reason which is,
other persons could have run after the appellant after the
stabbing incident. As explained by witness Mendeja, the other
person whom she identified as Aron was left to assist the
appellant who was wounded. Further, the stabbing occurred at
2:00 oclock in the morning, a time when persons are expected
to be asleep in their house, not roaming the streets.
His [Villacortas] other argument that the swiftness of the
stabbing incident rendered impossible or incredible the
identification of the assailant cannot likewise prosper in view of
his admission that he was in the store of witness Mendeja on
January 23, 2002 at 2:00 oclock in the morning and that he
assaulted the victim by boxing him.
Even if his admission is disregarded still the evidence of record
cannot support appellants argument. Appellant and the victim
were known to witness Mendeja, both being her friends and
regular customers. There was light in front of the store. An
opening in the store measuring 1 and meters enables the
person inside to see persons outside, particularly those buying
articles from the store. The victim was in front of the store
buying bread when attacked. Further, immediately after the
stabbing, witness Mendeja ran after the appellant giving her
additional opportunity to identify the malefactor. Thus,
authorship of the attack can be credibly ascertained.18
Moreover, Villacorta was unable to present any reason or
motivation for Mendeja to fabricate such a lie and falsely
accuse Villacorta of stabbing Cruz on January 23, 2002. We
have ruled time and again that where the prosecution
eyewitness was familiar with both the victim and accused, and
where the locus criminis afforded good visibility, and where no
improper motive can be attributed to the witness for testifying
against the accused, then her version of the story deserves
much weight.19
The purported inconsistencies in Mendejas testimony pointed
out by Villacorta are on matters that have no bearing on the
fundamental fact which Mendeja testified on: that Villacorta
stabbed Cruz in the early morning of January 23, 2002, right in
front of Mendejas store.
In the face of Mendejas positive identification of Villacorta as
Cruzs stabber, Villacorta could only muster an uncorroborated
denial. Denial, like alibi, as an exonerating justification, is
inherently weak and if uncorroborated, regresses to blatant
impotence. Like alibi, it also constitutes self-serving negative

evidence which cannot be accorded greater evidentiary weight

than the declaration of credible witnesses who testify on
affirmative matters.20
Hence, we do not deviate from the foregoing factual findings of
the RTC, as affirmed by the Court of Appeals.
Nevertheless, there is merit in the argument proffered by
Villacorta that in the event he is found to have indeed stabbed
Cruz, he should only be held liable for slight physical injuries
for the stab wound he inflicted upon Cruz. The proximate
cause of Cruzs death is the tetanus infection, and not the stab
wound.
Proximate cause has been defined as "that cause, which, in
natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the
result would not have occurred."21
In this case, immediately after he was stabbed by Villacorta in
the early morning of January 23, 2002, Cruz was rushed to and
treated as an out-patient at the Tondo Medical Center. On
February 14, 2002, Cruz was admitted to the San Lazaro
Hospital for symptoms of severe tetanus infection, where he
died the following day, on February 15, 2002. The prosecution
did not present evidence of the emergency medical treatment
Cruz received at the Tondo Medical Center, subsequent visits
by Cruz to Tondo Medical Center or any other hospital for
follow-up medical treatment of his stab wound, or Cruzs
activities between January 23 to February 14, 2002.
In Urbano v. Intermediate Appellate Court,22 the Court was
confronted with a case of very similar factual background as
the one at bar. During an altercation on October 23, 1980,
Urbano hacked Javier with a bolo, inflicting an incised wound
on Javiers hand. Javier was treated by Dr. Meneses. On
November 14, 1980, Javier was rushed to the hospital with
lockjaw and convulsions. Dr. Exconde, who attended to Javier,
found that Javiers serious condition was caused by tetanus
infection. The next day, on November 15, 1980, Javier died. An
Information was filed against Urbano for homicide. Both the
Circuit Criminal Court and the Intermediate Appellate Court
found Urbano guilty of homicide, because Javier's death was
the natural and logical consequence of Urbano's unlawful act.
Urbano appealed before this Court, arguing that Javiers own
negligence was the proximate cause of his death. Urbano
alleged that when Dr. Meneses examined Javiers wound, he
did not find any tetanus infection and that Javier could have
acquired the tetanus germs when he returned to work on his
farm only two (2) weeks after sustaining his injury. The Court
granted Urbanos appeal.
We quote extensively from the ratiocination of the Court in
Urbano:
The issue, therefore, hinges on whether or not there was an
efficient intervening cause from the time Javier was wounded
until his death which would exculpate Urbano from any liability
for Javier's death.
We look into the nature of tetanus-

"The incubation period of tetanus, i.e., the time between injury

and the appearance of unmistakable symptoms, ranges from 2
to 56 days. However, over 80 percent of patients become
symptomatic within 14 days. A short incubation period
indicates severe disease, and when symptoms occur within 2
or 3 days of injury the mortality rate approaches 100 percent.
"Non-specific premonitory symptoms such as restlessness,
irritability, and headache are encountered occasionally, but the
commonest presenting complaints are pain and stiffness in the
jaw, abdomen, or back and difficulty swallowing. As the
disease progresses, stiffness gives way to rigidity, and patients
often complain of difficulty opening their mouths. In fact,
trismus is the commonest manifestation of tetanus and is
responsible for the familiar descriptive name of lockjaw. As
more muscles are involved, rigidity becomes generalized, and
sustained contractions called risus sardonicus. The intensity
and sequence of muscle involvement is quite variable. In a
small proportion of patients, only local signs and symptoms
develop in the region of the injury. In the vast majority,
however, most muscles are involved to some degree, and the
signs and symptoms encountered depend upon the major
muscle groups affected.
"Reflex spasm usually occur within 24 to 72 hours of the first
symptoms, an interval referred to as the onset time. As in the
case of the incubation period, a short onset time is associated
with a poor prognosis. Spasms are caused by sudden
intensification of afferent stimuli arising in the periphery, which
increases rigidity and causes simultaneous and excessive
contraction of muscles and their antagonists. Spasms may be
both painful and dangerous. As the disease progresses,
minimal or inapparent stimuli produce more intense and longer
lasting spasms with increasing frequency. Respiration may be
impaired by laryngospasm or tonic contraction of respiratory
muscles which prevent adequate ventilation. Hypoxia may then
lead to irreversible central nervous system damage and death.
"Mild tetanus is characterized by an incubation period of at
least 14 days and an onset time of more than 6 days.Trismus
is usually present, but dysphagia is absent and generalized
spasms are brief and mild. Moderately severe tetanus has a
somewhat shorter incubation period and onset time; trismus is
marked, dysphagia and generalized rigidity are present, but
ventilation remains adequate even during spasms. The criteria
for severe tetanus include a short incubation time, and an
onset time of 72 hrs., or less, severe trismus, dysphagia and
rigidity and frequent prolonged, generalized convulsive
spasms. (Harrison's Principle of Internal Medicine, 1983
Edition, pp. 1004-1005; Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus found
inside a man's body depends on the incubation period of the
disease.
In the case at bar, Javier suffered a 2-inch incised wound on
his right palm when he parried the bolo which Urbano used in
hacking him. This incident took place on October 23, 1980.
After 22 days, or on November 14, 1980, he suffered the
symptoms of tetanus, like lockjaw and muscle spasms. The
following day, November 15, 1980, he died.

If, therefore, the wound of Javier inflicted by the appellant was

already infected by tetanus germs at the time, it is more
medically probable that Javier should have been infected with
only a mild case of tetanus because the symptoms of tetanus
appeared on the 22nd day after the hacking incident or more
than 14 days after the infliction of the wound. Therefore,
the onset time should have been more than six days. Javier,
however, died on the second day from the onset time. The
more credible conclusion is that at the time Javier's wound was
inflicted by the appellant, the severe form of tetanus that killed
him was not yet present. Consequently, Javier's wound could
have been infected with tetanus after the hacking incident.
Considering the circumstance surrounding Javier's death, his
wound could have been infected by tetanus 2 or 3 or a few but
not 20 to 22 days before he died.23
The incubation period for tetanus infection and the length of
time between the hacking incident and the manifestation of
severe tetanus infection created doubts in the mind of the
Court that Javier acquired the severe tetanus infection from the
hacking incident. We explained in Urbano that:
The rule is that the death of the victim must be the direct,
natural, and logical consequence of the wounds inflicted upon
him by the accused. (People v. Cardenas, supra) And since we
are dealing with a criminal conviction, the proof that the
accused caused the victim's death must convince a rational
mind beyond reasonable doubt. The medical findings,
however, lead us to a distinct possibility that the infection of the
wound by tetanus was an efficient intervening cause later or
between the time Javier was wounded to the time of his death.
The infection was, therefore, distinct and foreign to the crime.
(People v. Rellin, 77 Phil. 1038).
Doubts are present. There is a likelihood that the wound was
but the remote cause and its subsequent infection, for failure to
take necessary precautions, with tetanus may have been
the proximate cause of Javier's death with which the petitioner
had nothing to do. As we ruled in Manila Electric Co. v.
Remoquillo, et al. (99 Phil. 118).
"A prior and remote cause cannot be made the basis of an
action if such remote cause did nothing more than furnish the
condition or give rise to the occasion by which the injury was
made possible, if there intervened between such prior or
remote cause and the injury a distinct, successive, unrelated,
and efficient cause of the injury, even though such injury would
not have happened but for such condition or occasion. If no
danger existed in the condition except because of the
independent cause, such condition was not the proximate
cause. And if an independent negligent act or defective
condition sets into operation the instances, which result in
injury because of the prior defective condition, such
subsequent act or condition is the proximate cause." (45 C.J.
pp. 931-932). (at p. 125)24
We face the very same doubts in the instant case that compel
us to set aside the conviction of Villacorta for murder. There
had been an interval of 22 days between the date of the
stabbing and the date when Cruz was rushed to San Lazaro
Hospital, exhibiting symptoms of severe tetanus infection. If

Cruz acquired severe tetanus infection from the stabbing, then

the symptoms would have appeared a lot sooner than 22 days
later. As the Court noted in Urbano, severe tetanus infection
has a short incubation period, less than 14 days; and those
that exhibit symptoms with two to three days from the injury,
have one hundred percent (100%) mortality. Ultimately, we can
only deduce that Cruzs stab wound was merely the remote
cause, and its subsequent infection with tetanus might have
been the proximate cause of Cruz's death. The infection of
Cruzs stab wound by tetanus was an efficient intervening
cause later or between the time Cruz was stabbed to the time
of his death.
However, Villacorta is not totally without criminal
liability.1wphi1 Villacorta is guilty of slight physical injuries
under Article 266(1) of the Revised Penal Code for the stab
wound he inflicted upon Cruz. Although the charge in the
instant case is for murder, a finding of guilt for the lesser
offense of slight physical injuries may be made considering
that the latter offense is necessarily included in the former
since the essential ingredients of slight physical injuries
constitute and form part of those constituting the offense of
murder.25
We cannot hold Villacorta criminally liable for attempted or
frustrated murder because the prosecution was not able to
establish Villacortas intent to kill. In fact, the Court of Appeals
expressly observed the lack of evidence to prove such an
intent beyond reasonable doubt, to wit:
Appellant stabbed the victim only once using a sharpened
bamboo stick, hitting him on the left side of the body and then
immediately fled. The instrument used is not as lethal as those
made of metallic material. The part of the body hit is not
delicate in the sense that instant death can ensue by reason of
a single stab wound. The assault was done only once. Thus,
there is doubt as to whether appellant had an intent to kill the
victim, which should be resolved in favor of the appellant. x x
x.26
The intent must be proved in a clear and evident manner to
exclude every possible doubt as to the homicidal (or
murderous) intent of the aggressor. The onus probandi lies not
on accused-appellant but on the prosecution. The inference
that the intent to kill existed should not be drawn in the
absence of circumstances sufficient to prove this fact beyond
reasonable doubt. When such intent is lacking but wounds
were inflicted, the crime is not frustrated murder but physical
injuries only.27
Evidence on record shows that Cruz was brought to Tondo
Medical Center for medical treatment immediately after the
stabbing incident.1avvphi1 Right after receiving medical
treatment, Cruz was then released by the Tondo Medical
Center as an out-patient. There was no other evidence to
establish that Cruz was incapacitated for labor and/or required
medical attendance for more than nine days. Without such
evidence, the offense is only slight physical injuries.28

We still appreciate treachery as an aggravating circumstance,

it being sufficiently alleged in the Information and proved
during trial.
The Information specified that "accused, armed with a
sharpened bamboo stick, with intent to kill, treachery and
evident premeditation, did then and there willfully, unlawfully
and feloniously attack, assault and stab with the said weapon
one DANILO SALVADOR CRUZ x x x."
Treachery exists when an offender commits any of the crimes
against persons, employing means, methods or forms which
tend directly or especially to ensure its execution, without risk
to the offender, arising from the defense that the offended party
might make. This definition sets out what must be shown by
evidence to conclude that treachery existed, namely: (1) the
employment of such means of execution as would give the
person attacked no opportunity for self-defense or retaliation;
and (2) the deliberate and conscious adoption of the means of
execution. To reiterate, the essence of qualifying circumstance
is the suddenness, surprise and the lack of expectation that the
attack will take place, thus, depriving the victim of any real
opportunity for self-defense while ensuring the commission of
the crime without risk to the aggressor.29 Likewise, even when
the victim was forewarned of the danger to his person,
treachery may still be appreciated since what is decisive is that
the execution of the attack made it impossible for the victim to
defend himself or to retaliate.30
Both the RTC and the Court of Appeals found that treachery
was duly proven in this case, and we sustain such finding.
Cruz, the victim, was attacked so suddenly, unexpectedly, and
without provocation. It was two oclock in the morning of
January 23, 2002, and Cruz, who was out buying bread at
Mendejas store, was unarmed. Cruz had his guard down and
was totally unprepared for an attack on his person. Villacorta
suddenly appeared from nowhere, armed with a sharpened
bamboo stick, and without uttering a word, stabbed Cruz at the
left side of his body, then swiftly ran away. Villacortas
treacherous mode of attack left Cruz with no opportunity at all
to defend himself or retaliate.
Article 266(1) of the Revised Penal Code provides:
ART. 266. Slight physical injuries and maltreatment. The
crime of slight physical injuries shall be punished:
1. By arresto menor when the offender has inflicted physical
injuries which shall incapacitate the offended party from labor
from one to nine days, or shall require medical attendance
during the same period.
The penalty of arresto menor spans from one (1) day to thirty
(30) days.31 The Indeterminate Sentence Law does not apply
since said law excludes from its coverage cases where the
penalty imposed does not exceed one (1) year.32 With the
aggravating circumstance of treachery, we can sentence
Villacorta with imprisonment anywhere within arresto menor in
the maximum period, i.e., twenty-one (21) to thirty (30) days.
Consequently, we impose upon Villacorta a straight sentence
of thirty (30) days of arresto menor; but given that Villacorta

has been in jail since July 31, 2002 until present time, already
way beyond his imposed sentence, we order his immediate
release.
Under paragraph (1), Article 2219 of the Civil Code, moral
damages may be recovered in a criminal offense resulting in
physical injuries. Moral damages compensate for the mental
anguish, serious anxiety, and moral shock suffered by the
victim and his family as being a proximate result of the
wrongful act. An award requires no proof of pecuniary loss.
Pursuant to previous jurisprudence, an award of Five
Thousand Pesos (P5,000.00) moral damages is appropriate for
less serious, as well as slight physical injuries.33
WHEREFORE, the Decision dated July 30, 2008 of the Court
of Appeals in CA-G.R. CR.-H.C. No. 02550, affirming the
Decision dated September 22, 2006 of the Regional Trial
Court, Branch 170, of Malabon, in Criminal Case No. 27039MN, is REVERSED and SET ASIDE. A new judgment is
entered finding Villacorta GUILTY beyond reasonable doubt of
the crime of slight physical injuries, as defined and punished by
Article 266 of the Revised Penal Code, and sentenced to suffer
the penalty of thirty (30) days arresto menor. Considering that
Villacorta has been incarcerated well beyond the period of the
penalty herein imposed, the Director of the Bureau of Prisons
is ordered to cause Villacortas immediate release, unless
Villacorta is being lawfully held for another cause, and to
inform this Court, within five (5) days from receipt of this
Decision, of the compliance with such order. Villacorta is
ordered to pay the heirs of the late Danilo Cruz moral damages
in the sum of Five Thousand Pesos (P5,000.00).
SO ORDERED.

People vs. Adriano, et.al. G.R. No.205228 July 15, 2015

Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION
G.R. No. 205228

July 15, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff and Appellee,

vs.
ROLLY ADRIANO y SAMSON, LEAN ADRIANO @ DENDEN,
ABBA SANTIAGO y ADRIANO, JOHN DOE AND PETER
DOE, Accused,
ROLLY ADRIANO y SAMSON, Accused-Appellant.
DECISION
PEREZ, J.:
This is an appeal of the Decision 1 of the Court of Appeals
dated 30 May 2011 in CA-G.R. CR-HC No. 04028, which
affirmed the Decision2 of the Regional Trial Court dated 7 April
2009, convicting accused-appellant Rolly Adriano y Santos
(Adriano) for the crime of Homicide (Crim. Case No. 13159-07)

for the killing of Ofelia Bulanan (Bulanan) and for the crime of
Murder (Crim. Case No. 13160-07) for the killing of Danilo
Cabiedes (Cabiedes) in "People of the Philippines v. Rolly
Adriano y Sales."
Adriano was charged with two (2) counts of Murder. The two
(2) sets of Information read:
Crim. Case No. 13159-07
On or about March 13, 2007, around 8:00 o'clock (sic) in the
morning, in Malapit, San Isidro, Nueva Ecija, within the
jurisdiction of this Honorable Court, the above-named accused,
conniving together, with intent to kill, treachery and abuse of
superior strength, willfully shot several times with assorted
firearms Ofelia Bulanan, hitting her on the different parts of her
body, resulting in her death to the damage of her heirs.3
Crim. Case No. 13160-07
On or about March 13, 2007, around 8:00 o'clock (sic) in the
morning, in Malapit, San Isidro, Nueva Ecija, within the
jurisdiction of this Honorable Court, the above-named accused,
conniving together, with intent to kill, treachery and abuse of
superior strength, willfully shot several times with assorted
firearms Danilo Cabiedes, hitting him on the different parts of
his body, resulting in his death to the damage of his heirs.4
Version of the Prosecution:
On 13 March 2007, at around 8:00 a.m., Police Officer 1
Matthew Garabiles (POI Garabiles) and P02 Alejandro Santos
(P02 Santos), in civilian clothes, were on their way to Camp
Olivas, Pampanga, riding a motorcycle along Olongapo-Gapan
National Road.5
While they were at Barangay Malapit San Isidro, Nueva Ecija,
a speeding blue Toyota Corolla (Corolla) with plate no. WHK
635, heading towards the same direction, overtook them and
the car in front of them, a maroon Honda CRV (CRY) with plate
no. CTL 957.6
When the Corolla reached alongside the CRV, the passenger
on the front seat of the Corolla shot the CRV and caused the
CRV to swerve and fall in the canal in the road embankment.
Four (4) armed men then suddenly alighted the Corolla and
started shooting at the driver of the CRV, who was later
identified as Cabiedes. During the shooting, a bystander,
Bulanan, who was standing near the road embankment, was
hit by a stray bullet. The four armed men hurried back to the
Corolla and immediately left the crime scene. PO 1 Garabiles
and P02 Santos followed the Corolla but lost track of the latter.7
Later, both Cabiedes and Bulanan died from fatal gunshot
wounds: Cabiedes was pronounced dead on arrival (DOA) at
the Good Samaritan General Hospital due to three (3) gunshot
wounds on the left side of his chest while Bulanan died on the
spot after being shot in the head.
During the investigation, the police learned that the Corolla
was registered under the name of Antonio V. Rivera (Rivera).
Upon inquiry, Rivera admitted that he is the owner of the

Corolla but clarified that the Corolla is one of the several cars
he owns in his car rental business, which he leased to Adriano.
Later that day, Adriano arrived at Rivera's shop with the
Corolla, where he was identified by P02 Santos and PO 1
Garabiles as one of the four assailants who alighted from the
passenger's seat beside the driver of the Corolla and shot
Cabiedes. He was immediately arrested and brought to the
Provincial Special Operations Group (PSOG) headquarters in
Cabanatuan City.8
In examining the crime scene, the Nueva Ecija Provincial
Crime Laboratory Office recovered one (1) deformed fired
bullet from a .45 caliber firearm and five (5) cartridges from a .
45 caliber firearm.9
Version of the Defense
Adriano testified that on 13 March 2007, at about 6:00 a.m., at
the time of the incident, he was at his house in Dolores,
Magalang, Pampanga, washing the clothes of his child. After
doing the laundry, he took his motorcycle to a repair shop and
left it there.10
At about 8:00 a.m., Adriano went to the house of his friend,
Ruben Mallari (Mallari), to ask for a lighter spring needed to
repair his motorcycle. After having coffee in Mallari' s house,
Adriano went home and brought his child to his mother. On his
way to his mother's house, he met his brother-in-law, Felix
Aguilar Sunga (Sunga). After leaving his child at his mother's
house, Adriano went to the cockpit arena to watch cockfights,
where he saw his friend, Danilo Dizon (Dizon). After the fights,
he left the cockpit at about 2:00 p.m. and went home and took
a rest.11
After resting, Adriano picked-up his motorcycle and proceeded
to a store and stayed there. At around 5 :00 p.m., he went back
home. After a while, he received a call from a certain Boyet
Garcia (Garcia), who borrowed the Corolla from him, which he
rented from Rivera.12
At 8:00 p.m., he met with Garcia to get the Corolla back. After
dropping Garcia off, Adriano went to Rivera to return the
Corolla, where he was arrested by police officers, thrown
inside the Corolla's trunk, and brought to a place where he was
tortured.13
The other defense's witnesses, Lucita Tapnio (Tapnio), Mallari,
Sunga, and Dizon corroborated Adriano's testimony.14
When arraigned, Adriano pleaded not guilty. The other
accused, Lean Adriano alias "Denden," Abba Santiago y
Adriano, John Doe, and Peter Doe remained at large.
During trial, the prosecution presented eight (8) witnesses: (1)
PO1 Garabiles, (2) P02 Santos, (3) Police Senior Inspector
Roger V. Sebastian, (4) SP02 Alejandro Eduardo, (5) P02 Jay
Cabrera, (6) P03 Antonio dela Cruz, (7) Adelaida Cabiedes,
widow of Cabiedes, and (8) Ricky Flores.
On the other hand, the defense presented Adriano, Tapnio,
Sunga, Mallari, and Dizon as witnesses.

Ruling of the Lower Courts

After trial, the RTC convicted Adriano. The RTC rejected
Adriano's defense of alibi on the ground that it was not
supported by clear and convincing evidence. According to the
RTC, Adriano's alibi cannot prevail over the testimonies of
credible witnesses, who positively identified Adriano as one of
the perpetrators of the crime. Also, contrary to the allegations
of the defense, the RTC gave full credence to the testimony of
prosecution witnesses, POI Garabiles and P02 Santos. The
RTC determined that the defense failed to show proof that will
show or indicate that PO1 Garabiles and P02 Santos were
impelled by improper motives to testify against Adriano. The
RTC found as proven the assessment of damages against the
accused. Thus did the RTC order Adriano to pay the heirs of
Cabiedes the amount of P222,482.00 based on the following:
(1) One Hundred Thousand Pesos (Pl00,000.00) as funeral
expenses; (2) Sixty Thousand Pesos (P60,000.00) as
expenses for the food served during the burial; (3) Twelve
Thousand Four Hundred Eighty Two Pesos (1!12,482.00) as
groceries used and served during the wake; and Sixty
Thousand Pesos (P60,000.00) for the parts and service repair
of the CRV.15
The dispositive portion of the R TC Decision dated 7 April 2009
reads:
WHEREFORE, finding accused ROLLY ADRIANO guilty
beyond reasonable doubt of Murder, as charged, for the death
of Danilo Cabiedes, there being no aggravating or mitigating
circumstance that attended the commission of the crime, he is
hereby sentenced to suffer the penalty of reclusion perpetua.
Accused Rolly Adriano is also ordered to indemnify the heirs of
Danilo Cabiedes in the amount of Php 50,000.00 and to pay
the sum of Php 222,482.00 as actual damages.
And finding ROLLY ADRIANO also guilty beyond reasonable
doubt of Homicide, as charged, for the death of Ofelia Bulanan,
likewise, there being no aggravating or mitigating circumstance
that attended the commission of the offense, he is further
sentenced to suffer an indeterminate penalty of imprisonment
from Eight (8) years and One (1) day of prision mayor medium,
as minimum, to Seventeen (17) years and Four (4) months of
reclusion temporal medium, as maximum, and to indemnify the
heirs of Ofelia Bulanan in the amount of Php 50,000.00.16
On appeal to the Court of Appeals, Adriano alleged that the R
TC erred when it failed to appreciate his defense of alibi, as
well as the testimonies of the other defense's witnesses.
Adriano contended that the RTC erred when it gave credence
to the testimony of the prosecution witnesses which are
inconsistent and contradictory. In detail, Adriano referred to the
following particulars: 1) whether the culprits started shooting
when the victim's vehicle was still in motion; 2) which side of
the vehicle did the shooters alight from; 3) the identity of the
culprit who triggered the fatal shot; 4) whether the trip of PO1
Garabiles and P02 Santos going to Camp Olivas, Pampanga
was official business; 5) the precise distance of the assailants'
vehicle from that of the two (2) eyewitnesses; and 6) the
precise minutes of the shooting incident.

The Court of Appeals rejected Adriano's attempt to becloud the

testimony of the prosecution witnesses. According to the Court
of Appeals, the prosecution witnesses' positive identification of
Adriano as one of the perpetrators of the crime cannot be
overcome by minor inconsistencies in their testimony. The
Court of Appeals ruled that these trivial differences in fact
constitute signs of veracity.
On the defense of alibi, the Court of Appeals affirmed the ruling
of the R TC that Adriano's claim that he was in Dolores,
Magalang, Pampanga at the time of the incident does not
convince because it was not impossible for Adriano to be
physically present at the crime scene, in Barangay Malapit,
San Isidro, Nueva Ecija, which can be reached by car in less
than an hour.17 The dispositive portion of the Court of Appeals
Decision reads:
WHEREFORE, the appeal is DENIED. The decision of the
Regional Trial Court of Gapan City, Nueva Ecija, Br. 36, in
Crim. Case Nos. 13159-07 and 13160-07 is AFFIRMED
subject to the Modification that the award of Fifty Thousand
Pesos (Php50,000.00) as civil indemnity to the heirs of Danilo
Cabiedes is INCREASED to Seventy-Five Thousand Pesos
(Php75,000.00). In addition, the Accused-Appellant is
ORDERED to pay the heirs of Danilo Cabiedes the amount of
Seventy-Five Thousand Pesos (Php75,000.00) as moral
damages; and the heirs of Ofelia Bulanan the amount of Fifty
Thousand Pesos (Php50,000.00) as moral damages.
SO ORDERED.18
Our Ruling
In cases of murder, the prosecution must establish the
presence of the following elements:
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.
In the case at bar, the prosecution has established the
concurrence of the elements of murder: (1) the fact of death of
Cabiedes and Bulanan; (2) the positive identification of Adriano
as one of perpetrators of the crime; and (3) the attendance of
treachery as a qualifying aggravating circumstance and use of
firearms and abuse of superior strength as generic aggravating
circumstances.
Death of Cabiedes
The present case is a case of murder by ambush. In ambush,
the crime is carried out to ensure that the victim is killed and at
the same time, to eliminate any risk from any possible
defenses or retaliation from the victim19ambush exemplifies
the nature of treachery.

Paragraph 16 of Article 14 of the Revised Penal Code (RPC)

defines treachery as the direct employment of means,
methods, or forms in the execution of the crime against
persons which tend directly and specially to insure its
execution, without risk to the offender arising from the defense
which the offended party might make. In order for treachery to
be properly appreciated, two elements must be present: (1) at
the time of the attack, the victim was not in a position to defend
himself; and (2) the accused consciously and deliberately
adopted the particular means, methods or forms of attack
employed by him.20 The "essence of treachery is the sudden
and unexpected attack by an aggressor on the unsuspecting
victim, depriving the latter of any chance to defend himself and
thereby ensuring its commission without risk of himself."21
Clearly, treachery is present in the case at bar as the victims
were indeed defenseless at the time of the attack. Adriano,
together with the other accused, ambushed Cabiedes by
following the unsuspecting victim along the national highway
and by surprise, fired multiple shots at Cabiedes and then
immediately fled the crime scene, causing Cabiedes to die of
multiple gunshot wounds. When the Corolla swerved into the
CRV's lane, Cabiedes was forced to swiftly turn to the right and
on to the road embankment, finally falling into the canal where
his CRY was trapped, precluding all possible means of
defense. There is no other logical conclusion, but that the
orchestrated ambush committed by Adriano, together with his
co-accused, who are still on the loose, was in conspiracy with
each other to ensure the death of Cabiedes and their safety.
The means of execution employed was deliberately and
consciously adopted by Adriano so as to give Cabiedes no
opportunity to defend himself or to retaliate.22
All these circumstances indicate that the orchestrated crime
was committed with the presence of the aggravating
circumstances of treachery, which absorbs the aggravating
circumstance of abuse of superior strength, and use of
firearms. Indeed, Cabiedes had no way of escaping or
defending himself.
Death of Bulanan
We refer back to the settled facts of the case. Bulanan, who
was merely a bystander, was killed by a stray bullet. He was at
the wrong place at the wrong time.
Stray bullets, obviously, kill indiscriminately and often without
warning, precluding the unknowing victim from repelling the
attack or defending himself. At the outset, Adriano had no
intention to kill Bulanan, much less, employ any particular
means of attack. Logically, Bulanan's death was random and
unintentional and the method used to kill her, as she was killed
by a stray a bullet, was, by no means, deliberate. Nonetheless,
Adriano is guilty of the death of Bulanan under Article 4 of the
Revised Penal Code,23 pursuant to the doctrine of aberratio
ictus, which imposes criminal liability for the acts committed in
violation of law and for all the natural and logical
consequences resulting therefrom. While it may not have been
Adriano's intention to shoot Bulanan, this fact will not exculpate
him. Bulanan' s death caused by the bullet fired by Adriano

was the natural and direct consequence of Adriano's felonious

deadly assault against Cabiedes.
As we already held in People v. Herrera24 citing People v.
Hilario,25 "[t]he fact that accused killed a person other than their
intended victim is of no moment." Evidently, Adriano's original
intent was to kill Cabiedes. However, during the commission of
the crime of murder, a stray bullet hit and killed Bulanan.
Adriano is responsible for the consequences of his act of
shooting Cabiedes. This is the import of Article 4 of the
Revised Penal Code. As held in People v. Herrera citing
People v. Ural:
Criminal liability is incurred by any person committing a felony
although the wrongful act be different from that which is
intended. One who commits an intentional felony is responsible
for all the consequences which may naturally or logically result
therefrom, whether foreseen or intended or not. The rationale
of the rule is found in the doctrine, 'el que es causa de la causa
es causa del mal causado ', or he who is the cause of the
cause is the cause of the evil caused.26
As regards the crime(s) committed, we reiterate our ruling in
People v. Nelmida.27 In the aforesaid case, we ruled that
accused-appellants should be convicted not of a complex
crime but of separate crimes of two counts of murder and
seven counts of attempted murder as the killing and wounding
of the victims were not the result of a single act but of several
acts.28 The doctrine in Nelmida here is apt and applicable.
In Nelmida, we distinguished the two kinds of complex crime:
compound crime, when a single act constitutes two or more
grave or less grave felonies, and complex crime proper, when
an offense is a necessary means for committing the other.
Moreover, we also made a distinction that "when various
victims expire from separate shots, such acts constitute
separate and distinct crimes,"29 not a complex crime.
As borne by the records, the Nueva Ecija Provincial Crime
Laboratory Office recovered six (6) cartridges of bullets from
a .45 caliber firearm. This does not indicate discharge by a
single burst. Rather, separate shots are evidenced. One or
more of which, though fired to kill Cabiedes, killed Bulanan
instead. There is thus no complex crime. The felonious acts
resulted in two separate and distinct crimes.
Finally, we ask, may treachery be appreciated in aberratio
ictus?
Although Bulanan's death was by no means deliberate, we
shall adhere to the prevailing jurisprudence pronounced in
People v. Flora,30 where the Court ruled that treachery may be
appreciated in aberratio ictus. In Flora, the accused was
convicted of two separate counts of murder: for the killing of
two victims, Emerita, the intended victim, and Ireneo, the victim
killed by a stray bullet. The Court, due to the presence of the
aggravating circumstance of treachery, qualified both killings to
murder. The material facts in Flora are similar in the case at
bar. Thus, we follow the Flora doctrine.

Also, contrary to the defense's allegation that Bulanan' s death

was not established, a perusal of the records would reveal that
Bulanan's fact of death was duly established as the
prosecution offered in evidence Bulanan's death certificate.31
On the alibi as defense, time and again, we have ruled alibis
like denials, are inherently weak and unreliable because they
can easily be fabricated.32 For alibi to prosper, the accused
must convincingly prove that he was somewhere else at the
time when the crime was committed and that it was physically
impossible for him to be at the crime scene.33 In the case at
bar, Adriano claimed he was in Dolores, Magalang, Pampanga
at the time of incident. Adriano's claim failed to persuade. As
admitted, Dolores, Magalang, Pampanga was only less than
an hour away from the crime scene, Barangay Malapit, San
Isidro, Nueva Ecija. Hence, it was not physically impossible for
Adriano to be at the crime scene at the time of the incident.
It is likewise uniform holding that denial and alibi will not prevail
when corroborated not by credible witnesses but by the
accused's relatives and friends.1wphi1 Therefore, the
defense's evidence which is composed of Adriano's relatives
and friends cannot prevail over the prosecution's positive
identification of Adriano as one of the perpetrators of the crime.
The penalty for murder under Article 248 of the Revised Penal
Code is reclusion perpetua to death. In the case at bar, as the
circumstance of abuse of superior strength concurs with
treachery, the former is absorbed in the latter. There being no
aggravating or mitigating circumstance present, the lower
penalty should be imposed, which is reclusion perpetua, in
accordance with Article 63, paragraph 2 of the Revised Penal
Code.
To recover actual or compensatory damages, basic is the rule
that the claimant must establish with a reasonable degree of
certainty, the actual amount of loss by means of competent
proof or the best evidence obtainable.34Documentary evidence
support the award of actual damages in this case. The RTC
computed the amount of actual damages as P222,482.00.
However, a perusal of the records reveals that the amount of
award of actual damages should be P232,482.00 as duly
supported by official receipts.35 Therefore, we hereby increase
the
award
of
actual
damages
from P222,482.00
to P232,482.00.
WHEREFORE, the appeal is DISMISSED. The assailed
Decision of the Court of Appeals in CA-G.R. CR-HC No. 04028
is AFFIRMED with MODIFICATIONS. Appellant-appellant
ROLL Y ADRIANO y SAMSON is found GUILTY beyond
reasonable doubt of MURDER (Criminal Case No. 13160-07)
for the killing of DANILO CABIEDES and is hereby sentenced
to suffer the penalty of reclusion perpetua. Accused-appellant
ROLLY ADRIANO y SAMSON is ordered to pay the heirs of
DANILO CABIEDES the amount of Seventy Five Thousand
Pesos (P75,000.00) as civil indemnity, Seventy Five Thousand
Pesos (P75,000.00) as moral damages, Thirty Thousand
Pesos (P30,000.00) as exemplary damages, and Two Hundred
Thirty Two Thousand Four Hundred Eighty Two Pesos
{P232,482.00) as actual damages.

Accused-appellant ROLLY ADRIANO y SAMSON is also found

guilty beyond reasonable doubt of the crime of MURDER
(Criminal Case No. 13159-07) for the killing of OFELIA
BULANAN and is hereby sentenced to suffer the penalty of
reclusion perpetua. Accused-appellant ROLLY ADRIANO y
SAMSON is ordered to pay the heirs of OFELIA BULANAN in
the amount of the amount of Seventy Five Thousand Pesos
(P75,000.00) as civil indemnity, Seventy Five Thousand Pesos
(P75,000.00) as moral damages, Thirty Thousand Pesos
(P30,000.00) as exemplary damages, and Twenty Five
Thousand Pesos (P25,000.00) as temperate damages in lieu
of actual damages.
All monetary awards shall earn interest at the rate of 6o/o per
annum from the date of finality until fully paid.
SO ORDERED.

People vs. Noel Sales GR 177218 October 3, 2011

Republic
SUPREME
Manila

of

the

Philippines
COURT

which cause[d] the death of the said victim, to the damage and
prejudice of the latters heirs in such amount as may be proven
in court.
ACTS CONTRARY TO LAW.4
On the other hand, the Information5 in Criminal Case No.
RTC03-789 alleges that appellant inflicted slight physical
injuries in the following manner:
That on or about the 20th day of September, 2002, at around
or past 8:00 oclock in the evening, at Brgy. San Vicente,
Tinambac, Camarines Sur, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
[accused] assault[ed] and hit with a piece of wood, one Noel
Sales, Jr., an 8-year old minor, his second legitimate son,
thereby inflicting upon him physical injuries which have
required medical attendance for a period of five (5) days to the
damage and prejudice of the victims heirs in such amount as
may be proven in court.
ACTS CONTRARY TO LAW.6

DECISION

When arraigned on April 11, 2003 and July 1, 2003, appellant

pleaded not guilty for the charges of parricide 7 and slight
physical injuries8 respectively. The cases were then
consolidated upon manifestation of the prosecution which was
not objected to by the defense. 9 During the pre-trial
conference, the parties agreed to stipulate that appellant is the
father of the victims, Noemar Sales (Noemar) and Noel Sales,
Jr. (Junior); that at the time of the incident, appellants family
was living in the conjugal home located in Barangay San
Vicente, Tinambac, Camarines Sur; and, that appellant
voluntarily surrendered to the police.10

DEL CASTILLO, J.:

Thereafter, trial ensued.

A father ought to discipline his children for committing a

misdeed. However, he may not employ sadistic beatings and
inflict fatal injuries under the guise of disciplining them.

The Version of the Prosecution

FIRST DIVISION
G.R. No. 177218

October 3, 2011

PEOPLE
OF
THE
vs.
NOEL T. SALES, Appellant.

PHILIPPINES, Appellee,

This appeal seeks the reversal of the December 4, 2006

Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
01627 that affirmed the August 3, 2005 Joint Decision 2 of the
Regional Trial Court (RTC), Branch 63 of Calabanga,
Camarines Sur in Criminal Case Nos. RTC03-782 and
RTC03-789, convicting appellant Noel T. Sales (appellant) of
the crimes of parricide and slight physical injuries, respectively.
The Information3 for parricide contained the following
allegations:
That on or about the 20th day of September, 2002, at around
or past 8:00 oclock in the evening at Brgy. San Vicente,
Tinambac, Camarines Sur, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused
with evident premeditation and [in] a fit of anger, did then and
there willfully, unlawfully and feloniously hit [several] times, the
different parts of the body of his legitimate eldest son, Noemar
Sales, a 9-year old minor, with a [piece of] wood, measuring
more or less one meter in length and one [and] a half inches in
diameter, [thereby] inflicting upon the latter mortal wounds,

On September 19, 2002, brothers Noemar and Junior, then

nine and eight years old, respectively, left their home to attend
the fluvial procession of Our Lady of Peafrancia without the
permission of their parents. They did not return home that
night. When their mother, Maria Litan Sales (Maria), looked for
them the next day, she found them in the nearby Barangay of
Magsaysay. Afraid of their fathers rage, Noemar and Junior
initially refused to return home but their mother prevailed upon
them. When the two kids reached home at around 8 oclock in
the evening of September 20, 2002, a furious appellant
confronted them. Appellant then whipped them with a stick
which was later broken so that he brought his kids outside their
house. With Noemars and Juniors hands and feet tied to a
coconut tree, appellant continued beating them with a thick
piece of wood. During the beating Maria stayed inside the
house and did not do anything as she feared for her life.
When the beating finally stopped, the three walked back to the
house with appellant assisting Noemar as the latter was
staggering, while Junior fearfully followed. Maria noticed a
crack in Noemars head and injuries in his legs. She also saw
injuries in the right portion of the head, the left cheek, and legs
of Junior. Shortly thereafter, Noemar collapsed and lost

consciousness. Maria tried to revive him and when Noemar

remained motionless despite her efforts, she told appellant that
their son was already dead. However, appellant refused to
believe her. Maria then told appellant to call a quack doctor. He
left and returned with one, who told them that they have to
bring Noemar to a hospital. Appellant thus proceeded to take
the unconscious Noemar to the junction and waited for a
vehicle to take them to a hospital. As there was no vehicle and
because another quack doctor they met at the junction told
them that Noemar is already dead, appellant brought his son
back to their house.
Noemars wake lasted only for a night and he was immediately
buried the following day. His body was never examined by a
doctor.
The Version of the Defense
Prior to the incident, Noemar and Junior had already left their
residence on three separate occasions without the permission
of their parents. Each time, appellant merely scolded them and
told them not to repeat the misdeed since something untoward
might happen to them. During those times, Noemar and Junior
were never physically harmed by their father.
However, Noemar and Junior again left their home without their
parents permission on September 16, 2002 and failed to return
for several days. Worse, appellant received information that his
sons stole a pedicab. As they are broke, appellant had to
borrow money so that his wife could search for Noemar and
Junior. When his sons finally arrived home at 8 oclock in the
evening of September 20, 2002, appellant scolded and hit
them with a piece of wood as thick as his index finger. He hit
Noemar and Junior simultaneously since they were side by
side. After whipping his sons in their buttocks three times, he
noticed that Noemar was chilling and frothing. When Noemar
lost consciousness, appellant decided to bring him to a hospital
in Naga City by waiting for a vehicle at the crossroad which
was seven kilometers away from their house.
Appellant held Noemar while on their way to the crossroad and
observed his difficulty in breathing. The pupils of Noemars
eyes were also moving up and down. Appellant heard him say
that he wanted to sleep and saw him pointing to his chest in
pain. However, they waited in vain since a vehicle never came.
It was then that Noemar died. Appellant thus decided to just
bring Noemar back to their house.
Appellant denied that his son died from his beating since no
parent could kill his or her child. He claimed that Noemar died
as a result of difficulty in breathing. In fact, he never
complained of the whipping done to him. Besides, appellant
recalled that Noemar was brought to a hospital more than a
year before September 2002 and diagnosed with having a
weak heart.
On the other hand, Maria testified that Noemar suffered from
epilepsy. Whenever he suffers from epileptic seizures, Noemar
froths and passes out. But he would regain consciousness
after 15 minutes. His seizures normally occur whenever he
gets hungry or when scolded.

The death of Noemar was reported to the police by the

barangay
captain.11 Thereafter,
appellant
surrendered
12
voluntarily.
Ruling of the Regional Trial Court
In a Joint Decision,13 the trial court held that the evidence
presented by the prosecution was sufficient to prove that
appellant was guilty of committing the crimes of parricide and
slight physical injuries in the manner described in the
Informations. In the crime of parricide, the trial court did not
consider
the
aggravating
circumstance
of
evident
premeditation against appellant since there is no proof that he
planned to kill Noemar. But the trial court appreciated in his
favor the mitigating circumstances of voluntary surrender and
lack of intent to commit so grave a wrong. The dispositive
portion of said Joint Decision reads:
WHEREFORE, in view of the foregoing, the prosecution having
proven the guilt of Noel Sales, beyond reasonable doubt, he is
found guilty of parricide in Crim. Case No. RTC03-782 and
sentenced to suffer the penalty of reclusion perpetua. He is
likewise ordered to pay the heirs of Noemar Sales, the amount
of P50,000.00 as civil indemnity;P50,000.00 as moral
damages; P25,000,00 as exemplary damages and to pay the
costs.
Furthermore, accused Noel Sales is also found guilty beyond
reasonable doubt of the crime of slight physical injuries in
Crim. Case No. RTC03-789 and sentenced to suffer the
penalty of twenty (20) days of Arresto Menor in its medium
period.
Accused Noel Sales is likewise meted the accessory penalties
as provided under the Revised Penal Code. Considering that
herein accused has undergone preventive imprisonment, he
shall be credited in the service of his sentence with the time he
has undergone preventive imprisonment in accordance with
and subject to the conditions provided for in Article 29 of the
Revised Penal Code.
SO ORDERED.14
Appellant filed a Notice of Appeal15 which was given due
course in an Order16 dated September 21, 2005.
Ruling of the Court of Appeals
However, the appellate court denied the appeal and affirmed
the ruling of the trial court. The dispositive portion of its
Decision17 reads as follows:
WHEREFORE, premises considered, the appeal is DENIED.
The assailed decision dated August 3, 2005 in Criminal Case
Nos. RTC03-782 and RTC03-789 for Parricide and Slight
Physical Injuries, respectively, isAFFIRMED.
Pursuant to Section 13(c), Rule 124 of the Revised Rules of
Criminal Procedure, appellant may appeal this case to the
Supreme Court via a Notice of Appeal filed before this Court.
SO ORDERED.18

Issues
Hence, appellant is now before this Court with the following
two-fold issues:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY BEYOND REASONABLE
DOUBT OF THE CRIMES CHARGED.
II
THE COURT A QUO GRAVELY ERRED IN NOT GIVING
WEIGHT TO THE TESTIMONIES OF THE DEFENSE
WITNESSES.19
Our Ruling
The appeal is without merit.
The Charge of Parricide
Appellant admits beating his sons on September 20, 2002 as a
disciplinary measure, but denies battering Noemar to death.
He believes that no father could kill his own son. According to
him, Noemar had a weak heart that resulted in attacks
consisting of loss of consciousness and froth in his mouth. He
claims that Noemar was conscious as they traveled to the
junction where they would take a vehicle in going to a hospital.
However, Noemar had difficulty in breathing and complained of
chest pain. He contends that it was at this moment that
Noemar died, not during his whipping. To substantiate his
claim, appellant presented his wife, Maria, who testified that
Noemar indeed suffered seizures, but this was due to epilepsy.
The contentions of appellant fail to persuade. The imposition of
parental discipline on children of tender years must always be
with the view of correcting their erroneous behavior. A parent or
guardian must exercise restraint and caution in administering
the proper punishment. They must not exceed the parameters
of their parental duty to discipline their minor children. It is
incumbent upon them to remain rational and refrain from being
motivated by anger in enforcing the intended punishment. A
deviation will undoubtedly result in sadism.
Prior to whipping his sons, appellant was already furious with
them because they left the family dwelling without permission
and that was already preceded by three other similar incidents.
This was further aggravated by a report that his sons stole a
pedicab thereby putting him in disgrace. Moreover, they have
no money so much so that he still had to borrow so that his
wife could look for the children and bring them home. From
these, it is therefore clear that appellant was motivated not by
an honest desire to discipline the children for their misdeeds
but by an evil intent of venting his anger. This can reasonably
be concluded from the injuries of Noemar in his head, face and
legs. It was only when Noemars body slipped from the coconut
tree to which he was tied and lost consciousness that appellant
stopped the beating. Had not Noemar lost consciousness,
appellant would most likely not have ceased from his sadistic
act. His subsequent attempt to seek medical attention for

Noemar as an act of repentance was nevertheless too late to

save the childs life. It bears stressing that a decent and
responsible parent would never subject a minor child to
sadistic punishment in the guise of discipline.
Appellant attempts to evade criminal culpability by arguing that
he merely intended to discipline Noemar and not to kill him.
However, the relevant portion of Article 4 of the Revised Penal
Code states:
Art. 4. Criminal liability. Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the
wrongful act done be different from that which he intended.
xxxx
In order that a person may be criminally liable for a felony
different from that which he intended to commit, it is
indispensible (a) that a felony was committed and (b) that the
wrong done to the aggrieved person be the direct
consequence
of
the
crime
committed
by
the
perpetrator.20 Here, there is no doubt appellant in beating his
son Noemar and inflicting upon him physical injuries,
committed a felony. As a direct consequence of the beating
suffered by the child, he expired. Appellants criminal liability for
the death of his son, Noemar, is thus clear.
Appellants claim that it was Noemars heart ailment that
caused his death deserves no merit. This declaration is selfserving and uncorroborated since it is not substantiated by
evidence. While Dr. Salvador Betito, a Municipal Health Officer
of Tinambac, Camarines Sur issued a death certificate
indicating that Noemar died due to cardio-pulmonary arrest,
the same is not sufficient to prove that his death was due
mainly to his poor health. It is worth emphasizing that
Noemars cadaver was never examined. Also, even if appellant
presented his wife, Maria, to lend credence to his contention,
the latters testimony did not help as same was even in conflict
with his testimony. Appellant testified that Noemar suffered
from a weak heart which resulted in his death while Maria
declared that Noemar was suffering from epilepsy.
Interestingly, Marias testimony was also unsubstantiated by
evidence.
Moreover, as will be discussed below, all the elements of the
crime of parricide are present in this case.
All the Elements of Parricide are present in the case at bench.
We find no error in the ruling of the trial court, as affirmed by
the appellate court, that appellant committed the crime of
parricide.
Article 246 of the Revised Penal Code defines parricide as
follows:
Art. 246. Parricide. Any person who shall kill his father,
mother, or child, whether legitimate or illegitimate, or any of his
ascendants, or descendants, or his spouse, shall be guilty of
parricide and shall be punished by the penalty ofreclusion
perpetua to death.

"Parricide is committed when: (1) a person is killed; (2) the

deceased is killed by the accused; (3) the deceased is the
father, mother, or child, whether legitimate or illegitimate, or a
legitimate other ascendant or other descendant, or the
legitimate spouse of accused."21
In the case at bench, there is overwhelming evidence to prove
the first element, that is, a person was killed. Maria testified
that her son Noemar did not regain consciousness after the
severe beating he suffered from the hands of his father.
Thereafter, a quack doctor declared Noemar dead. Afterwards,
as testified to by Maria, they held a wake for Noemar the next
day and then buried him the day after. Noemars Death
Certificate22 was also presented in evidence.
There is likewise no doubt as to the existence of the second
element that the appellant killed the deceased. Same is
sufficiently established by the positive testimonies of Maria and
Junior. Maria testified that on September 20, 2002, Noemar
and his younger brother, Junior, were whipped by appellant,
their father, inside their house. The whipping continued even
outside the house but this time, the brothers were tied side by
side to a coconut tree while appellant delivered the lashes
indiscriminately. For his part, Junior testified that Noemar, while
tied to a tree, was beaten by their father in the head. Because
the savagery of the attack was too much for Noemars frail
body to endure, he lost consciousness and died from his
injuries immediately after the incident.
As to the third element, appellant himself admitted that the
deceased is his child. While Noemars birth certificate was not
presented, oral evidence of filial relationship may be
considered.23 As earlier stated, appellant stipulated to the fact
that he is the father of Noemar during the pre-trial conference
and likewise made the same declaration while under
oath.24 Maria also testified that Noemar and Junior are her
sons with appellant, her husband. These testimonies are
sufficient to establish the relationship between appellant and
Noemar.
Clearly, all the elements of the crime of parricide are obtaining
in this case.
There is Mitigating Circumstance of Voluntary Surrender but
not Lack of Intention to Commit so Grave a Wrong

inflict as much pain as possible. Noemar suffered injuries in his

face, head and legs that immediately caused his death. "The
mitigating circumstance of lack of intent to commit so grave a
wrong as that actually perpetrated cannot be appreciated
where the acts employed by the accused were reasonably
sufficient to produce and did actually produce the death of the
victim."26
The Award of Damages and Penalty for Parricide
We find proper the trial courts award to the heirs of Noemar of
the sums of P50,000.00 as civil indemnity, andP50,000.00 as
moral damages. However, the award of exemplary damages
of P25,000.00 should be increased toP30,000.00 in
accordance with prevailing jurisprudence.27 "In addition, and in
conformity with current policy, we also impose on all the
monetary awards for damages an interest at the legal rate of
6% from the date of finality of this Decision until fully paid."28
As regards the penalty, parricide is punishable by reclusion
perpetua to death. The trial court imposed the penalty
ofreclusion perpetua when it considered the presence of the
mitigating circumstances of voluntary surrender and lack of
intent to commit so grave a wrong. However, even if we earlier
ruled that the trial court erred in considering the mitigating
circumstance of lack of intent to commit so grave a wrong, we
maintain the penalty imposed. This is because the exclusion of
said mitigating circumstance does not result to a different
penalty since the presence of only one mitigating
circumstance, which is, voluntary surrender, with no
aggravating circumstance, is sufficient for the imposition of
reclusion perpetua as the proper prison term. Article 63 of the
Revised Penal Code provides in part as follows:
Art. 63. Rules for the application of indivisible penalties. - x x x
In all cases in which the law prescribes a penalty composed of
two indivisible penalties, the following rules shall be observed
in the application thereof:
xxxx
3. When the commission of the act is attended by some
mitigating circumstance and there is no aggravating
circumstance, the lesser penalty shall be applied.

The trial court correctly appreciated the mitigating

circumstance of voluntary surrender in favor of appellant since
the evidence shows that he went to the police station a day
after the barangay captain reported the death of Noemar. The
presentation by appellant of himself to the police officer on duty
in a spontaneous manner is a manifestation of his intent "to
save the authorities the trouble and expense that may be
incurred for his search and capture" 25 which is the essence of
voluntary surrender.

xxxx

However, there was error in appreciating the mitigating

circumstance of lack of intention to commit so grave a wrong.
Appellant adopted means to ensure the success of the savage
battering of his sons. He tied their wrists to a coconut tree to
prevent their escape while they were battered with a stick to

The victim himself, Junior testified that he, together with his
brother Noemar, were beaten by their father, herein appellant,
while they were tied to a coconut tree. He recalled to have
been hit on his right eye and right leg and to have been

The crime of parricide is punishable by the indivisible penalties

of reclusion perpetua to death. With one mitigating
circumstance, which is voluntary surrender, and no aggravating
circumstance, the imposition of the lesser penalty ofreclusion
perpetua and not the penalty of death on appellant was thus
proper.29
The Charge of Slight Physical Injuries

examined by a physician thereafter.30 Maria corroborated her

sons testimony.31
Juniors testimony was likewise supported by Dr. Ursolino
Primavera, Jr. (Dr. Primavera) of Tinambac Community
Hospital who examined him for physical injuries. He issued a
Medical Certificate for his findings and testified on the same.
His findings were (1) muscular contusions with hematoma on
the right side of Juniors face just below the eye and on both
legs, which could have been caused by hitting said area with a
hard object such as a wooden stick and, (2) abrasions of
brownish color circling both wrist with crust formation which
could have been sustained by the patient due to struggling
while his hands were tied. When asked how long does he think
the injuries would heal, Dr. Primavera answered one to two
weeks.32 But if applied with medication, the injuries would heal
in a week.33
We give full faith and credence to the categorical and positive
testimony of Junior that he was beaten by his father and that
by reason thereof he sustained injuries. His testimony
deserves credence especially since the same is corroborated
by the testimony of his mother, Maria, and supported by
medical examination. We thus find that the RTC correctly held
appellant guilty of the crime of slight physical injuries.1awphil

Intod vs. CA 215 SCRA 52 October 12, 1992

Republic
SUPREME
Manila

of

the

Philippines
COURT

SECOND DIVISION

G.R. No. 103119 October 21, 1992

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

CAMPOS, JR., J.:

Petitioner, Sulpicio Intod, filed this petition for review of the
decision of the Court of Appeals 1 affirming in toto the judgment
of the Regional Trial Court, Branch XIV, Oroquieta City, finding
him guilty of the crime of attempted murder.

Penalty for Slight Physical Injuries

From the records, we gathered the following facts.
We likewise affirm the penalty imposed by the RTC. Dr.
Primavera testified that the injuries sustained by Junior should
heal in one week upon medication. Hence, the trial court
correctly meted upon appellant the penalty under paragraph 1,
Article 266 of the Revised Penal Code which provides:
ART. 266. Slight Physical Injuries and maltreatment. The
crime of slight physical injuries shall be punished:
1. By arresto menor when the offender has inflicted physical
injuries which shall incapacitate the offended party for labor
from one to nine days or shall require medical attendance
during the same period.
xxxx
There being no mitigating or aggravating circumstance present
in the commission of the crime, the penalty shall be in its
medium period. The RTC was thus correct in imposing upon
appellant the penalty of twenty (20) days ofarresto menor in its
medium period.
WHEREFORE, the appeal is DENIED. The Decision of the
Court of Appeals in CA-G.R. CR-H.C. No. 01627 that affirmed
the Joint Decision of the Regional Trial Court, Branch 63 of
Calabanga, Camarines Sur in Criminal Case Nos. RTC03-782
and RTC03-789, convicting Noel T. Sales of the crimes of
parricide and slight physical injuries is AFFIRMED with
MODIFICATIONS that the award of exemplary damages is
increased to P30,000.00. In addition, an interest of 6% is
imposed on all monetary awards from date of finality of this
Decision until fully paid.
SO ORDERED.

In the morning of February 4, 1979, Sulpicio Intod, Jorge

Pangasian, Santos Tubio and Avelino Daligdig went to
Salvador Mandaya's house in Katugasan, Lopez Jaena,
Misamis Occidental and asked him to go with them to the
house of Bernardina Palangpangan. Thereafter, Mandaya and
Intod, Pangasian, Tubio and Daligdig had a meeting with
Aniceto Dumalagan. He told Mandaya that he wanted
Palangpangan to be killed because of a land dispute between
them and that Mandaya should accompany the four (4) men,
otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day,
Petitioner, Mandaya, Pangasian, Tubio and Daligdig, all armed
with firearms, arrived at Palangpangan's house in Katugasan,
Lopez Jaena, Misamis Occidental. At the instance of his
companions, Mandaya pointed the location of Palangpangan's
bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig
fired at said room. It turned out, however, that Palangpangan
was in another City and her home was then occupied by her
son-in-law and his family. No one was in the room when the
accused fired the shots. No one was hit by the gun fire.
Petitioner and his companions were positively identified by
witnesses. One witness testified that before the five men left
the premises, they shouted: "We will kill you (the witness) and
especially Bernardina Palangpangan and we will come back if
(sic) you were not injured". 2
After trial, the Regional Trial Court convicted Intod of attempted
murder. The court (RTC), as affirmed by the Court of Appeals,
holding that Petitioner was guilty of attempted murder.
Petitioner seeks from this Court a modification of the judgment

by holding him liable only for an impossible crime, citing Article

4(2) of the Revised Penal Code which provides:
Art. 4(2). CRIMINAL RESPONSIBILITY.
Responsibility shall be incurred:

Criminal

xxx xxx xxx

2. By any person performing an act which would be an offense
against persons or property, were it not for the inherent
impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means.
Petitioner contends that, Palangpangan's absence from her
room on the night he and his companions riddled it with bullets
made the crime inherently impossible.
On the other hand, Respondent People of the Philippines
argues that the crime was not impossible. Instead, the facts
were sufficient to constitute an attempt and to convict Intod for
attempted murder. Respondent alleged that there was intent.
Further, in its Comment to the Petition, respondent pointed out
that:
. . . The crime of murder was not consummated, not because
of the inherent impossibility of its accomplishment (Art. 4(2),
Revised Penal Code), but due to a cause or accident other
than petitioner's and his accused's own spontaneous
desistance (Art. 3., Ibid.) Palangpangan did not sleep at her
house at that time. Had it not been for this fact, the crime is
possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal
Code. This seeks to remedy the void in the Old Penal Code
where:
. . . it was necessary that the execution of the act has been
commenced, that the person conceiving the idea should have
set about doing the deed, employing appropriate means in
order that his intent might become a reality, and finally, that the
result or end contemplated shall have been physically possible.
So long as these conditions were not present, the law and the
courts did not hold him criminally liable. 5
This
legal
doctrine
left
social
interests
entirely
unprotected. 6 The Revised Penal Code, inspired by the
Positivist School, recognizes in the offender his
formidability, 7 and now penalizes an act which were it not
aimed at something quite impossible or carried out with means
which prove inadequate, would constitute a felony against
person or against property. 8 The rationale of Article 4(2) is to
punish such criminal tendencies. 9
Under this article, the act performed by the offender cannot
produce an offense against person or property because: (1)
the commission of the offense is inherently impossible of
accomplishment: or (2) the means employed is either (a)
inadequate or (b) ineffectual. 10
That the offense cannot be produced because the commission
of the offense is inherently impossible of accomplishment is the
focus of this petition. To be impossible under this clause, the

act intended by the offender must be by its nature one

impossible of accomplishment. 11 There must be either
impossibility of accomplishing the intended act 12 in order to
qualify the act an impossible crime.
Legal impossibility occurs where the intended acts, even if
completed, would not amount to a crime. 13 Thus:
Legal impossibility would apply to those circumstances where
(1) the motive, desire and expectation is to perform an act in
violation of the law; (2) there is intention to perform the
physical act; (3) there is a performance of the intended
physical act; and (4) the consequence resulting from the
intended act does not amount to a crime. 14
The impossibility of killing a person already dead
category.

15

falls in this

On the other hand, factual impossibility occurs when

extraneous circumstances unknown to the actor or beyond his
control prevent the consummation of the intended
crime. 16 One example is the man who puts his hand in the
coat pocket of another with the intention to steal the latter's
wallet and finds the pocket empty. 17
The case at bar belongs to this category. Petitioner shoots the
place where he thought his victim would be, although in reality,
the victim was not present in said place and thus, the petitioner
failed to accomplish his end.
One American case had facts almost exactly the same as this
one. In People vs. Lee Kong, 18 the accused, with intent to kill,
aimed and fired at the spot where he thought the police officer
would be. It turned out, however, that the latter was in a
different place. The accused failed to hit him and to achieve his
intent. The Court convicted the accused of an attempt to kill. It
held that:
The fact that the officer was not at the spot where the attacking
party imagined where he was, and where the bullet pierced the
roof, renders it no less an attempt to kill. It is well settled
principle of criminal law in this country that where the criminal
result of an attempt is not accomplished simply because of an
obstruction in the way of the thing to be operated upon, and
these facts are unknown to the aggressor at the time, the
criminal attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to
accomplish his intent to kill the victim because the latter did not
pass by the place where he was lying-in wait, the court held
him liable for attempted murder. The court explained that:
It was no fault of Strokes that the crime was not committed. . . .
It only became impossible by reason of the extraneous
circumstance that Lane did not go that way; and further, that he
was arrested and prevented from committing the murder. This
rule of the law has application only where it is inherently
impossible to commit the crime. It has no application to a case
where it becomes impossible for the crime to be committed,
either by outside interference or because of miscalculation as
to a supposed opportunity to commit the crime which fails to
materialize; in short it has no application to the case when the

impossibility grows out of extraneous acts not within the control

of the party.
In the case of Clark vs. State, 20 the court held defendant liable
for attempted robbery even if there was nothing to rob. In
disposing of the case, the court quoted Mr. Justice Bishop, to
wit:
It being an accepted truth that defendant deserves punishment
by reason of his criminal intent, no one can seriously doubt that
the protection of the public requires the punishment to be
administered, equally whether in the unseen depths of the
pocket, etc., what was supposed to exist was really present or
not. The community suffers from the mere alarm of crime.
Again: Where the thing intended (attempted) as a crime and
what is done is a sort to create alarm, in other words, excite
apprehension that the evil; intention will be carried out, the
incipient act which the law of attempt takes cognizance of is in
reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the
window of victim's room thinking that the latter was inside.
However, at that moment, the victim was in another part of the
house. The court convicted the accused of attempted murder.
The aforecited cases are the same cases which have been
relied upon by Respondent to make this Court sustain the
judgment of attempted murder against Petitioner. However, we
cannot rely upon these decisions to resolve the issue at hand.
There is a difference between the Philippine and the American
laws regarding the concept and appreciation of impossible
crimes.
In the Philippines, the Revised Penal Code, in Article 4(2),
expressly provided for impossible crimes and made the
punishable. Whereas, in the United States, the Code of Crimes
and Criminal Procedure is silent regarding this matter. What it
provided for were attempts of the crimes enumerated in the
said Code. Furthermore, in said jurisdiction, the impossibility of
committing the offense is merely a defense to an attempt
charge. In this regard, commentators and the cases generally
divide the impossibility defense into two categories: legal
versus factual impossibility. 22 In U.S. vs. Wilson 23 the Court
held that:
. . . factual impossibility of the commission of the crime is not a
defense. If the crime could have been committed had the
circumstances been as the defendant believed them to be, it is
no defense that in reality the crime was impossible of
commission.
Legal impossibility, on the other hand, is a defense which can
be invoked to avoid criminal liability for an attempt. In U.S.
vs. Berrigan, 24 the accused was indicated for attempting to
smuggle letters into and out of prison. The law governing the
matter made the act criminal if done without knowledge and
consent of the warden. In this case, the offender intended to
send a letter without the latter's knowledge and consent and
the act was performed. However, unknown to him, the
transmittal was achieved with the warden's knowledge and
consent. The lower court held the accused liable for attempt

but the appellate court reversed. It held unacceptable the

contention of the state that "elimination of impossibility as a
defense to a charge of criminal attempt, as suggested by the
Model Penal Code and the proposed federal legislation, is
consistent with the overwhelming modern view". In disposing of
this contention, the Court held that the federal statutes did not
contain such provision, and thus, following the principle of
legality, no person could be criminally liable for an act which
was not made criminal by law. Further, it said:
Congress has not yet enacted a law that provides that intent
plus act plus conduct constitutes the offense of attempt
irrespective of legal impossibility until such time as such
legislative changes in the law take place, this court will not
fashion a new non-statutory law of criminal attempt.
To restate, in the United States, where the offense sought to be
committed is factually impossible or accomplishment, the
offender cannot escape criminal liability. He can be convicted
of an attempt to commit the substantive crime where the
elements of attempt are satisfied. It appears, therefore, that the
act is penalized, not as an impossible crime, but as an attempt
to commit a crime. On the other hand, where the offense is
legally impossible of accomplishment, the actor cannot be held
liable for any crime neither for an attempt not for an
impossible crime. The only reason for this is that in American
law, there is no such thing as an impossible crime. Instead, it
only recognizes impossibility as a defense to a crime charge
that is, attempt.
This is not true in the Philippines. In our jurisdiction, impossible
crimes are recognized. The impossibility of accomplishing the
criminal intent is not merely a defense, but an act penalized by
itself. Furthermore, the phrase "inherent impossibility" that is
found in Article 4(2) of the Revised Penal Code makes no
distinction between factual or physical impossibility and legal
impossibility. Ubi lex non distinguit nec nos distinguere
debemos.
The factual situation in the case at bar present a physical
impossibility which rendered the intended crime impossible of
accomplishment. And under Article 4, paragraph 2 of the
Revised Penal Code, such is sufficient to make the act an
impossible crime.
To uphold the contention of respondent that the offense was
Attempted Murder because the absence of Palangpangan was
a supervening cause independent of the actor's will, will render
useless the provision in Article 4, which makes a person
criminally liable for an act "which would be an offense against
persons or property, were it not for the inherent impossibility of
its accomplishment . . ." In that case all circumstances which
prevented the consummation of the offense will be treated as
an accident independent of the actor's will which is an element
of attempted and frustrated felonies.
WHEREFORE, PREMISES CONSIDERED. the petition is
hereby GRANTED, the decision of respondent Court of
Appeals holding Petitioner guilty of Attempted Murder is hereby
MODIFIED. We hereby hold Petitioner guilty of an impossible
crime as defined and penalized in Articles 4, paragraph 2, and

59 of the Revised Penal Code, respectively. Having in mind the

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

PERALTA, J.:

Before us is a petition for review on certiorari filed by petitioner

Gemma T. Jacinto seeking the reversal of the Decision[1] of the
Court of Appeals (CA) in CA-G.R. CR No. 23761
dated December 16, 2003, affirming petitioner's conviction of
the crime of Qualified Theft, and its Resolution[2] dated March
5, 2004 denying petitioner's motion for reconsideration.

SO ORDERED.

Jacinto vs. People 592 SCRA 426 July 13, 2009

Republic of the Philippines
Supreme Court

Petitioner, along with two other women, namely, Anita Busog

de Valencia y Rivera and Jacqueline Capitle, was charged
before the Regional Trial Court (RTC) of CaloocanCity, Branch
131, with the crime of Qualified Theft, allegedly committed as
follows:

Manila

THIRD DIVISION

GEMMA T. JACINTO,
Petitioner,

- versus -

That on or about and sometime in the month of July 1997, in

Kalookan City, Metro Manila, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring
G.R. No. 162540
together and mutually helping one another, being then all
employees of MEGA FOAM INTERNATIONAL INC., herein
represented by JOSEPH DYHENGCO Y CO, and as such had
Present:
free access inside the aforesaid establishment, with grave
abuse of trust and confidence reposed upon them with intent to
gain and without the knowledge and consent of the owner
thereof, did then and there willfully, unlawfully and feloniously
YNARES-SANTIAGO,
take, steal and deposited in their own account, Banco De Oro
Chairperson, Check No. 0132649 dated July 14, 1997 in the sum
of P10,000.00, representing payment made by customer Baby
Aquino to the Mega Foam Int'l. Inc. to the damage and
CHICO-NAZARIO,
prejudice of the latter in the aforesaid stated amount
VELASCO, JR.,
of P10,000.00.
NACHURA,
PERALTA,

PEOPLE OF THE PHILIPPINES,

CONTRARY TO LAW.[3]

Promulgated:

Respondent.

The prosecution's evidence, which both the RTC and the CA

July 13, 2009 found to be more credible, reveals the events that transpired to
be as follows.
x----------------------------------------------------------------------------------------x

DECISION

In the month of June 1997, Isabelita Aquino Milabo, also

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

petitioner and the former pricing, merchandising and inventory

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

Ricablanca then phoned accused Anita Valencia, a former

employee/collector of Mega Foam, asking the latter to inform
Jacqueline Capitle about the phone call from Land Bank
regarding the bounced check. Ricablanca explained that she
had to call and relay the message through Valencia, because
the Capitles did not have a phone; but they could be reached
through Valencia, a neighbor and former co-employee of
Jacqueline Capitle at Mega Foam.
Valencia then told Ricablanca that the check came from Baby
Aquino, and instructed Ricablanca to ask Baby Aquino to
replace the check with cash. Valencia also told Ricablanca of a
plan to take the cash and divide it equally into four: for herself,
Ricablanca,
petitioner
Jacinto
and
Jacqueline
Capitle. Ricablanca, upon the advise of Mega Foam's
accountant, reported the matter to the owner of Mega Foam,
Joseph Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino and was
able to confirm that the latter indeed handed petitioner a BDO
check for P10,000.00 sometime in June 1997 as payment for
her purchases from Mega Foam.[4] Baby Aquino further testified
that, sometime in July 1997, petitioner also called her on the
phone to tell her that the BDO check bounced. [5] Verification
from company records showed that petitioner never remitted
the subject check to Mega Foam. However, Baby Aquino said
that she had already paid Mega Foam P10,000.00 cash in
August 1997 as replacement for the dishonored check.[6]
Generoso Capitle, presented as a hostile witness, admitted
depositing the subject BDO check in his bank account, but
explained that the check came into his possession when some
unknown woman arrived at his house around the first week of
July 1997 to have the check rediscounted. He parted with his
cash in exchange for the check without even bothering to
inquire into the identity of the woman or her address. When he
was informed by the bank that the check bounced, he merely
disregarded it as he didnt know where to find the woman who
rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with the National
Bureau of Investigation (NBI) and worked out an entrapment
operation with its agents. Ten pieces of P1,000.00 bills

provided by Dyhengco were marked and dusted with

fluorescent powder by the NBI. Thereafter, the bills were given
to Ricablanca, who was tasked to pretend that she was going
along with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the
latter's house. Petitioner, who was then holding the bounced
BDO check, handed over said check to Ricablanca. They
originally intended to proceed to Baby Aquino's place to have
the check replaced with cash, but the plan did not push
through. However, they agreed to meet again on August 21,
2007.
On the agreed date, Ricablanca again went to petitioners
house, where
she
met
petitioner
and
Jacqueline
Capitle. Petitioner, her husband, and Ricablanca went to the
house of Anita Valencia; Jacqueline Capitle decided not to go
with the group because she decided to go shopping. It was
only petitioner, her husband, Ricablanca and Valencia who
then boarded petitioner's jeep and went on to Baby Aquino's
factory. Only Ricablanca alighted from the jeep and entered the
premises of Baby Aquino, pretending that she was getting cash
from Baby Aquino. However, the cash she actually brought out
from the premises was the P10,000.00 marked money
previously given to her by Dyhengco. Ricablanca divided the
money and upon returning to the jeep, gave P5,000.00 each
to Valencia and
petitioner. Thereafter,
petitioner
and Valencia were arrested by NBI agents, who had been
watching the whole time.

Petitioner and Valencia were brought to the NBI office where

the Forensic Chemist found fluorescent powder on the palmar
and dorsal aspects of both of their hands. This showed that
petitioner and Valencia handled the marked money. The NBI
filed a criminal case for qualified theft against the two and one
Jane Doe who was later identified as Jacqueline Capitle, the
wife of Generoso Capitle.
The defense, on the other hand, denied having taken the
subject check and presented the following scenario.

Petitioner admitted that she was a collector for Mega Foam

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

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

A Partial Motion for Reconsideration of the foregoing CA

Decision was filed only for petitioner Gemma Tubale Jacinto,
but the same was denied per Resolution datedMarch 5, 2004.

Hence, the present Petition for Review on Certiorari filed by

petitioner alone, assailing the Decision and Resolution of the
CA. The issues raised in the petition are as follows:

1.
Whether or not petitioner can be convicted of a crime not
charged in the information;

2.
Whether or not a worthless check can be the object of
theft; and
The trial of the three accused went its usual course and,
on October 4, 1999, the RTC rendered its Decision, the
dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Court finds

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

SO ORDERED.[7]

The three appealed to the CA and, on December 16, 2003, a

Decision was promulgated, the dispositive portion of which
reads, thus:

IN VIEW OF THE FOREGOING, the decision of the trial

court is MODIFIED, in that:

(a) the sentence against accused Gemma Jacinto stands;

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

SO ORDERED.

3. Whether or not the prosecution has proved petitioner's guilt

beyond
reasonable doubt.[8]
The petition deserves considerable thought.

The prosecution tried to establish the following pieces of

evidence to constitute the elements of the crime of qualified
theft defined under Article 308, in relation to Article 310, both of
the Revised Penal Code: (1) the taking of personal property as shown by the fact that petitioner, as collector for Mega
Foam, did not remit the customer's check payment to her
employer and, instead, appropriated it for herself; (2) said
property belonged to another the check belonged to Baby
Aquino, as it was her payment for purchases she made; (3) the
taking was done with intent to gain this is presumed from the
act of unlawful taking and further shown by the fact that the
check was deposited to the bank account of petitioner's
brother-in-law; (4) it was done without the owners consent
petitioner hid the fact that she had received the check payment
from her employer's customer by not remitting the check to the
company; (5) it was accomplished without the use of violence
or intimidation against persons, nor of force upon things the
check was voluntarily handed to petitioner by the customer, as
she was known to be a collector for the company; and (6) it
was done with grave abuse of confidence petitioner is
admittedly entrusted with the collection of payments from
customers.
However, as may be gleaned from the aforementioned Articles
of the Revised Penal Code, the personal property subject of
the theft must have some value, as the intention of the
accused is to gain from the thing stolen. This is further
bolstered by Article 309, where the law provides that the
penalty to be imposed on the accused is dependent on the
value of the thing stolen.

In this case, petitioner unlawfully took the postdated check

belonging to Mega Foam, but the same was apparently without
value, as it was subsequently dishonored. Thus, the question
arises on whether the crime of qualified theft was actually
produced.

Under this article, the act performed by the offender cannot

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

The Court must resolve the issue in the negative.

That the offense cannot be produced because the commission

of the offense is inherently impossible of accomplishment is the
focus of this petition. To be impossible under this clause, the
act intended by the offender must be by its nature one
impossible of accomplishment. There must be either (1) legal
impossibility, or (2) physical impossibility of accomplishing the
intended act in order to qualify the act as an impossible crime.

Intod v. Court of Appeals [9] is highly instructive and applicable

to the present case. In Intod, the accused, intending to kill a
person, peppered the latters bedroom with bullets, but since
the intended victim was not home at the time, no harm came to
him. The trial court and the CA held Intod guilty of attempted
murder. But upon review by this Court, he was adjudged guilty
only of an impossible crime as defined and penalized in
paragraph 2, Article 4, in relation to Article 59, both of the
Revised Penal Code, because of the factual impossibility of
producing the crime. Pertinent portions of said provisions read
as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility
shall be incurred:

xxxx

2.
By any person performing an act which would be
an offense against persons or property, were it not for
the inherent impossibility of its accomplishment or on
account of the employment of inadequate to ineffectual means.
(emphasis supplied)
Article 59. Penalty to be imposed in case of failure to commit
the crime because the means employed or the aims sought
are impossible. - When the person intending to commit an
offense has already performed the acts for the execution of the
same but nevertheless the crime was not produced by reason
of the fact that the act intended was by its nature one of
impossible accomplishment or because the means employed
by such person are essentially inadequate to produce the
result desired by him, the court, having in mind the social
danger and the degree of criminality shown by the offender,
shall impose upon him the penalty of arresto mayor or a fine
ranging from 200 to 500 pesos.
Thus, the requisites of an impossible crime are: (1) that the act
performed would be an offense against persons or property;
(2) that the act was done with evil intent; and (3) that its
accomplishment was inherently impossible, or the means
employed was either inadequate or ineffectual. The aspect of
the inherent impossibility of accomplishing the intended crime
under Article 4(2) of the Revised Penal Code was further
explained by the Court in Intod[10] in this wise:

Legal impossibility occurs where the intended acts, even if

completed, would not amount to a crime.
xxxx

The impossibility of killing a person already dead falls in this

category.

On the other hand, factual impossibility occurs when

extraneous circumstances unknown to the actor or beyond his
control prevent the consummation of the intended crime. x x
x [11]
In Intod, the Court went on to give an example of an offense
that involved factual impossibility, i.e., a man puts his hand in
the coat pocket of another with the intention to steal the latter's
wallet, but gets nothing since the pocket is empty.
Herein petitioner's case is closely akin to the above example of
factual impossibility given in Intod. In this case, petitioner
performed all the acts to consummate the crime ofqualified
theft, which is a crime against property. Petitioner's evil intent
cannot be denied, as the mere act of unlawfully taking the
check meant for Mega Foam showed her intent to gain or be
unjustly enriched. Were it not for the fact that the check
bounced, she would have received the face value thereof,
which was not rightfully hers. Therefore, it was only due to the
extraneous circumstance of the check being unfunded, a fact
unknown to petitioner at the time, that prevented the crime
from being produced. The thing unlawfully taken by petitioner
turned out to be absolutely worthless, because the check was
eventually dishonored, and Mega Foam had received the cash
to replace the value of said dishonored check.

The fact that petitioner was later entrapped receiving

the P5,000.00 marked money, which she thought was the cash
replacement for the dishonored check, is of no moment. The
Court held in Valenzuela v. People[12] that under the definition

of theft in Article 308 of the Revised Penal Code, there is only

one operative act of execution by the actor involved in theft
the taking of personal property of another. Elucidating further,
the Court held, thus:

x x x Parsing through the statutory definition of theft under

Article 308, there is one apparent answer provided in the
language of the law that theft is already produced upon the
tak[ing of] personal property of another without the latters
consent.

xxxx

accused; otherwise, it would violate the due process clause of

the Constitution. If at all, that fraudulent scheme could have
been another possible source of criminal liability.
IN
VIEW
OF
THE
FOREGOING,
the
petition
is GRANTED. The Decision of the Court of Appeals,
dated December 16, 2003, and its Resolution dated March 5,
2004, areMODIFIED. Petitioner Gemma T. Jacinto is
found GUILTY of an IMPOSSIBLE CRIME as defined and
penalized in Articles 4, paragraph 2, and 59 of the Revised
Penal Code, respectively. Petitioner is sentenced to suffer the
penalty of six (6) months of arrresto mayor, and to pay the
costs.
SO ORDERED.
Article 6:

x x x when is the crime of theft produced? There would be all

but certain unanimity in the position that theft is produced when
there is deprivation of personal property due to its taking by
one with intent to gain. Viewed from that perspective, it is
immaterial to the product of the felony that the offender, once
having committed all the acts of execution for theft, is able or
unable to freely dispose of the property stolen since the
deprivation from the owner alone has already ensued from
such acts of execution. x x x
xxxx
x x x we have, after all, held that unlawful taking,
or apoderamiento, is deemed complete from the moment the
offender gains possession of the thing, even if he has no
opportunity to dispose of the same. x x x
x x x Unlawful taking, which is the deprivation of ones
personal property, is the element which produces the felony in
its consummated stage. x x x [13]
From the above discussion, there can be no question that as
of the time that petitioner took possession of the check
meant for Mega Foam, she had performed all the acts to
consummate the crime of theft, had it not been impossible
of accomplishment in this case. The circumstance
of petitioner receiving the P5,000.00 cash as supposed
replacement for the dishonored check was no longer
necessary for the consummation of the crime of qualified theft.
Obviously, the plan to convince Baby Aquino to give cash as
replacement for the check was hatched only after the check
had been dishonored by the drawee bank. Since the crime of
theft is not a continuing offense, petitioner's act of receiving the
cash replacement should not be considered as a continuation
of the theft. At most, the fact that petitioner was caught
receiving the marked money was merely corroborating
evidence to strengthen proof of her intent to gain.
Moreover, the fact that petitioner further planned to have the
dishonored check replaced with cash by its issuer is a different
and separate fraudulent scheme. Unfortunately, since said
scheme was not included or covered by the allegations in the
Information, the Court cannot pronounce judgment on the

People vs. Lizada 396 SCRA 62 January 24, 2003

EN BANC
[G.R. No. 143468-71. January 24, 2003]
THE
PEOPLE
OF
THE
PHILIPPINES, plaintiffappellee, vs. FREEDIE
LIZADA
@
FREDIE
LIZADA, accused-appellant.
DECISION
CALLEJO, SR., J.:
This is an automatic review of the Decision [1] of the Regional
Trial Court of Manila, Branch 54, finding accused-appellant
Freedie Lizada guilty beyond reasonable doubt of four (4)
counts of qualified rape and meting on him the death penalty
for each count.
I. The Charges
Accused-appellant[2] was charged with four (4) counts of
qualified rape under four separate Informations. The
accusatory portion of each of the four Informations reads:
That sometime in August 1998 in the City of Manila,
Philippines, the said accused, with lewd designs, did then and
there willfully, unlawfully and feloniously, by means of force,
violence and intimidation upon the person of one ANALIA
ORILLOSA y AGOO, by then and there embracing her, kissing
and touching her private parts, thereafter removing her skirt
and panty, placing himself on top of her and trying to insert his
penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA y AGOO, against
her will and consent.
Contrary to law.
XXX
That on or about November 5, 1998, in the City of Manila,
Philippines, the said accused, with lewd designs, did then and
there willfully, unlawfully and feloniously, by means of force,
violence and intimidation upon the person of one ANALIA

ORILLOSA Y AGOO, by then and there embracing her, kissing

and touching her private parts, thereafter removing her skirt
and panty, placing himself on top of her and trying to insert his
penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against
her will and consent.

In the meantime, Rose secured a loan anew and used the

proceeds thereof to put up a video shop in her house. She sold
Avon products from house to house to augment her
income.Whenever she was out of their house, Rossel and
Analia took turns in tending the video shop and attending to
customers.

Contrary to law.

Sometime in 1996, Analia was in her room when accusedappellant entered. He laid on top of her, removed her T-shirt
and underwear. He then inserted his finger in her vagina. He
removed his finger and inserted his penis in her
vagina. Momentarily, she felt a sticky substance coming out
from his penis. She also felt pain in her sex organ. Satiated,
accused-appellant dismounted but threatened to kill her if she
divulged to anyone what he did to her. Accused-appellant then
returned to his room. The incident lasted less than one
hour. Petrified by the threats on her life, Analia kept to herself
what happened to her.[7]

XXX
That on or about October 22, 1998, in the City of Manila,
Philippines, the said accused, with lewd designs, did then and
there willfully, unlawfully and feloniously, by means of force,
violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing
and touching her private parts, thereafter removing her skirt
and panty, placing himself on top of her and trying to insert his
penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against
her will and consent.
Contrary to law.
XXX
That on or about September 15, 1998, in the City of Manila,
Philippines, the said accused, with lewd designs, did then and
there willfully, unlawfully and feloniously, by means of force,
violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing
and touching her private parts, thereafter removing her skirt
and panty, placing himself on top of her and trying to insert his
penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against
her will and consent.
Contrary to law.[3]
The four (4) Informations were docketed as Criminal Cases
Nos. 99-171390, 99-171391, 99-171392 and 99-171393,
respectively.
Accused-appellant was arraigned on April 15, 1999, assisted
by counsel de parte and entered a plea of not guilty to each of
the charges.[4] A joint trial then ensued.
II. Evidence of the Prosecution[5]
Ricardo Orillosa and his wife, Rose Orillosa, natives of San
Isidro, Bohol, had three (3) children, namely: Analia, who was
born on December 18, 1985;[6] Jepsy, who was 11 years old,
and Rossel, who was nine years old. However, the couple
decided to part ways and live separately. Rose left Bohol and
settled in Manila with her young children. She worked as a
waitress to make both ends meet.
In 1994, Rose met accused-appellant. They decided to live
together as husband and wife at No. 1252 Jose Abad Santos
Street, Moriones, Tondo, Manila. In 1996, Rose resigned from
her job as a waitress. She secured a loan, bought a truck and
used it for her business.

Sometime in August 1997, accused-appellant entered again

the room of Analia, placed himself on top of her and held her
legs and arms. He then inserted his finger into her sex organ
(fininger niya ako). Satiated, accused-appellant left the
room. During the period from 1996 to 1998, accused-appellant
sexually abused private complainant two times a week.
On November 5, 1998, at about 3:00 p.m., Analia was in the
sala of their house studying her assignments. Accusedappellant was also in the sala. Rossel tended the video shop
while his mother was away. Analia went into her room and lay
down in bed. She did not lock the door of the room because
her brother might enter any time. She wanted to sleep but
found it difficult to do so. Accused-appellant went to his room
next to the room of Analia. He, however, entered the room of
Analia. He was wearing a pair of short pants and was naked
from waist up. Analia did not mind accused-appellant entering
her room because she knew that her brother, Rossel was
around. However, accused-appellant sat on the side of her
bed, placed himself on top of her, held her hands and legs and
fondled
her
breasts. She
struggled
to
extricate
herself. Accused-appellant removed her panty and touched her
sex organ. Accused-appellant inserted his finger into her
vagina, extricated it and then inserted his penis into her
vagina. Accused-appellant ejaculated. Analia felt pain in her
sex organ. Momentarily, Rossel passed by the room of Analia
after drinking water from the refrigerator, and peeped through
the door. He saw accused-appellant on top of Analia. Accusedappellant saw Rossel and dismounted.Accused-appellant
berated Rossel and ordered him to go to his room and
sleep. Rossel did. Accused-appellant then left the room. Analia
likewise left the room, went out of the house and stayed
outside for one hour. Rose arrived home at 6:00 p.m. However,
Analia did not divulge to her mother what accused-appellant
had just done to her.
On November 9, 1998, at about 3:00 p.m., Rose left the
house. Accused-appellant was in the sala of the house
watching television. Analia tended the video shop. However,
accused-appellant told Analia to go to the sala. She refused, as
nobody would tend the video shop. This infuriated accusedappellant who threatened to slap and kick her.

Analia ignored the invectives and threats of accused-appellant

and stayed in the video shop. When Rose returned, a heated
argument ensued between accused-appellant and Analia.Rose
sided with her paramour and hit Analia. This prompted Analia
to shout. Ayoko na, ayoko na. Shortly thereafter, Rose and
Analia left the house on board the motorcycle driven by her
mother in going to Don Bosco Street, Moriones, Tondo, Manila,
to retrieve some tapes which had not yet been returned. When
Rose inquired from her daughter what she meant by her
statement, ayoko na, ayoko na, she told her mother that
accused-appellant had been touching the sensitive parts of her
body and that he had been on top of her. Rose was shocked
and incensed. The two proceeded to Kagawad Danilo Santos
to have accused-appellant placed under arrest. On November
10, 1998, the two proceeded to the Western Police District
where Analia gave her Affidavit-Complaint to PO1 Carmelita
Nocum in the presence of SPO2 Fe H. Avindante. She related
to the police investigator that accused-appellant had touched
her breasts and arms in August, 1998, September 15, 1998,
October 22, 1998 and on November 5, 1998, at 3:00
p.m. Analia then submitted herself to genitalia examination by
Dr. Armie Umil, a medico-legal officer of the NBI. The medicolegal officer interviewed Analia, told him that she was raped in
May, 1997 at 3:00 p.m. and November 5, 1998 at 3:00 p.m.[8]
Dr. Umil prepared and signed a report on Living Case No. MO98-1265 which contained her findings during her examination
on Analia, thus:
xxx
Fairly nourished, conscious, coherent, cooperative, ambulatory
subject. Breasts, developed, hemispherical, firm. ----, brown,
3.0 cms. in diameter. Nipples brown, protruding, 0.7 cms. in
diameter.
No extragenital physical injuries noted.
GENITAL EXAMINATION:
Pubic hair, fully grown, moderate. Labia majora and minora,
coaptated.
Fourchette,
tense.
Vetibular
mucosa,
pinkish. Hymen, tall, thick, intact. Hymenal orifice measures,
1.5 cms. in diameter. Vaginal walls, tight. Rugosities,
prominent.
CONCLUSIONS:
1). No evident sign of extragenital physical injuries noted on
the body of the subject at the time of examination.
2). Hymen, intact and its orifice small (1.5 cms. in diameter) as
to preclude complete penetration by an average-sized adult
Filipino male organ in full erection without producing any
genital injury.[9]
Subsequently, Analia told her mother that mabuti na lang iyong
panghihipo lang ang sinabi ko. When Rose inquired from her
daughter what she meant by her statement, Analia revealed to
her mother that accused-appellant had sexually abused
her. On December 15, 1998, Analia executed a Dagdag na

Salaysay ng Paghahabla and charged accused-appellant with

rape.[10]
III. The Defenses and Evidence of Accused-Appellant
Accused-appellant testified in his defense. He declared that
after a month of courtship, he and Rose agreed in 1994 to live
together as husband and wife. He was then a utility worker with
the
Navotas
Branch
of
the
Philippine
Banking
Corporation. Rose, on the other hand, was a waitress at the
Golden Bird beer house at Rizal Avenue, Manila.
Accused-appellant denied having raped Analia. He claimed
that he loved the children of Rose as if they were his own
children. He took care of them, as in fact he cooked and
prepared their food before they arrived home from school. At
times, he ironed their school uniforms and bathed them, except
Analia who was already big. Analia was hard-headed because
she disobeyed him whenever he ordered her to do some
errands. Because of Analias misbehavior, accused-appellant
and Rose oftentimes quarreled. Rose even demanded that
accused-appellant leave their house. Another irritant in his and
Roses lives were the frequent visits of the relatives of her
husband.
Sometime in 1997, accused-appellant was retrenched from his
employment and received a separation pay of P9,000.00 which
he used to put up the VHS Rental and Karaoke from which he
earned a monthly income of P25,000.00. While living together,
accused-appellant and Rose acquired two colored television
sets, two VHS Hi-fi recorders, one VHS player, one washing
machine, one scooter motor, two VHS rewinders, one sala set,
one compact disc player and many other properties.
Accused-appellant ventured that Rose coached her children
Analia and Rossel to testify against him and used them to
fabricate charges against him because Rose wanted to
manage their business and take control of all the properties
they acquired during their coverture. Also, Rose was so
exasperated because he had no job.
IV. The Verdict
On May 29, 2000, the trial court rendered judgment against
accused-appellant finding him guilty beyond reasonable doubt
of four (4) counts of rape, defined and penalized in the seventh
paragraph, no. 1, Art. 335 of the Revised Penal Code, and
meted on him the death penalty for each count. The dispositive
portion of the decision reads:
From all the evidence submitted by the prosecution, the Court
concludes that the accused is guilty beyond reasonable doubt
of the crime charged against him in these four (4) cases,
convicts him thereof, and sentences him to DEATH
PENALTY in each and every case as provided for in the
seventh paragraph, no. 1, Article 335 of the Revised Penal
Code.
SO ORDERED.[11]
V. Assigned Errors of the Trial Court

Accused-appellant assailed the decision of the court a quo and

averred in his brief that:
THE TRIAL COURT GRAVELY ERRED IN NOT MAKING A
FINDING OF FACT IN ITS DECISION AND SUCH FAILURE IS
A REVERSIBLE ERROR.[12]
XXX
THE TRIAL COURT GRAVELY ERRED IN CONVICTING
ACCUSED-APPELLANT OF FOUR (4) COUNTS OF RAPE
DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS
GUILT BEYOND REASONABLE DOUBT.[13]
VI. Findings of the Court
On the first assignment of error, accused-appellant contends
that the decision of the trial court is null and void as it failed to
comply with the requirements of Section 14, Article VIII of the
1987 Constitution and Section 1, Rule 36 of the 1997 Rules of
Civil Procedure, as amended. He avers that the court a
quo made no findings of facts in its decision. The trial court
merely summarized the testimonies of the witnesses of the
prosecution and those of accused-appellant and his witnesses,
and forthwith set forth the decretal portion of said decision. The
trial court even failed to state in said decision the factual and
legal basis for the imposition of the supreme penalty of death
on him. The Solicitor General, on the other hand, argues that
there should be no mechanical reliance on the constitutional
provision. Trial courts may well-nigh synthesize and simplify
their decisions considering that courts are harassed by
crowded dockets and time constraints. Even if the trial court
did not elucidate the grounds as the legal basis for the
penalties imposed, nevertheless the decision is valid. In any
event, the Solicitor General contends that despite the infirmity
of the decision, there is no need to remand the case to the trial
court for compliance with the constitutional requirement as the
Court may resolve the case on its merits to avoid delay in the
final disposition of the case and afford accused-appellant his
right to a speedy trial.
The contention of accused-appellant is well-taken. Article VIII,
paragraph 14 of the 1987 Constitution provides that no
decision shall be rendered by any court without expressing
therein clearly and distinctly the facts and the law on which it is
based. This requirement is reiterated and implemented by Rule
120, Section 2 of the 1985 Rules on Criminal Procedure, as
amended, which reads:
SEC. 2. Form and contents of judgment.The judgment must be
written in the official language, personally and directly prepared
by the judge and signed by him and shall contain clearly and
distinctly a statement of the facts proved or admitted by the
accused and the law upon which the judgment is based.
If it is of conviction, the judgment shall state (a) the legal
qualification of the offense constituted by the acts committed
by the accused, and the aggravating or mitigating
circumstances attending the commission thereof, if there are
any; (b) the participation of the accused in the commission of
the offense, whether as principal, accomplice, or accessory

after the fact; (c) the penalty imposed upon the accused;
and (d) the civil liability or damages caused by the wrongful act
to be recovered from the accused by the offended party, if
there is any, unless the enforcement of the civil liability by a
separate action has been reserved or waived.[14]
The purpose of the provision is to inform the parties and the
person reading the decision on how it was reached by the
court after consideration of the evidence of the parties and the
relevant facts, of the opinion it has formed on the issues, and
of the applicable laws. The parties must be assured from a
reading of the decision of the trial court that they were
accorded their rights to be heard by an impartial and
responsible judge.[15] More substantial reasons for the
requirement are:
For one thing, the losing party must be given an opportunity to
analyze the decision so that, if permitted, he may elevate what
he may consider its errors for review by a higher tribunal. For
another, the decision if well-presented and reasoned, may
convince the losing party of its merits and persuade it to accept
the verdict in good grace instead of prolonging the litigation
with a useless appeal. A third reason is that decisions with a
full exposition of the facts and the law on which they are
based, especially those coming from the Supreme Court, will
constitute a valuable body of case law that can serve as useful
references and even as precedents in the resolution of future
controversies.[16]
The trial court is mandated to set out in its decision the facts
which had been proved and its conclusions culled therefrom,
as well as its resolution on the issues and the factual and legal
basis for its resolution.[17] Trial courts should not merely
reproduce the respective testimonies of witnesses of both
parties and come out with its decretal conclusion.
In this case, the trial court failed to comply with the
requirements under the Constitution and the Rules on Criminal
Procedure. It merely summarized the testimonies of the
witnesses of the prosecution and of accused-appellant on
direct and cross examinations and merely made referral to the
documentary evidence of the parties then concluded that, on
the basis of the evidence of the prosecution, accused-appellant
is guilty of four (4) counts of rape and sentenced him to death,
on each count.
The trial court even failed to specifically state the facts proven
by the prosecution based on their evidence, the issues raised
by the parties and its resolution of the factual and legal issues,
as well as the legal and factual bases for convicting accusedappellant of each of the crimes charged. The trial court
rendered
judgment
against
accused-appellant
with
the curtdeclaration in the decretal portion of its decision that it
did so based on the evidence of the prosecution. The trial court
swallowed hook, line and sinker the evidence of the
prosecution. It failed to explain in its decision why it believed
and gave probative weight to the evidence of the
prosecution. Reading the decision of the trial court, one is apt
to conclude that the trial court ignored the evidence of
accused-appellant. The trial court did not even bother
specifying the factual and legal bases for its imposition of the

supreme penalty of death on accused-appellant for each count

of rape. The trial court merely cited seventh paragraph, no. 1,
Article 335 of the Revised Penal Code. The decision of the trial
court is a good example of what a decision, envisaged in the
Constitution and the Revised Rules of Criminal Procedure,
should not be.
The Court would normally remand the case to the trial court
because of the infirmity of the decision of the trial court, for
compliance with the constitutional provision. However, to avert
further delay in the disposition of the cases, the Court decided
to resolve the cases on their merits considering that all the
records as well as the evidence adduced during the trial had
been elevated to the Court. [18] The parties filed their respective
briefs articulating their respective stances on the factual and
legal issues.
In reviewing rape cases, this Court is guided by the following
principles: (1) to accuse a man of rape is easy but to disprove
it is difficult though the accused may be innocent; (2)
considering the nature of things, and only two persons are
usually involved in the crime of rape, the testimony of the
complainant should be scrutinized with great caution; (3) the
evidence for the prosecution must stand or fall on its own
merits and not be allowed to draw strength from the weakness
of the evidence of the defense.[19] By the very nature of the
crime of rape, conviction or acquittal depends almost entirely
on the credibility of the complainants testimony because of the
fact that usually only the participants can testify as to its
occurrence. However, if the accused raises a sufficient doubt
as to any material element of the crime, and the prosecution is
unable to overcome it with its evidence, the prosecution has
failed to discharge its burden of proving the guilt of the
accused beyond cavil of doubt and hence, the accused is
entitled to an acquittal.
Anent the second assignment of error, we will resolve the
same for convenience, as follows:
Re: CRIMINAL CASES NOS. 99-171392 and 99-171393
(covering the crime of rape committed on or about October 22,
1998 and on or about September 15, 1998)
Accused-appellant avers that the prosecution failed to adduce
the requisite quantum of evidence that he raped the private
complainant precisely on September 15, 1998 and October 22,
1998. Moreover, the medical findings of Dr. Armie Umil show
that the hymen of the private complainant was intact and its
orifice so small as to preclude complete penetration by an
average size adult Filipino male organ in full erection without
producing any genital injury. The physical evidence belies
private complainants claim of having been deflowered by
accused-appellant on four different occasions. The Office of
the Solicitor General, for its part, contends that the prosecution
through the private complainant proved the guilt of accusedappellant for the crime charged on both counts.
The contention of accused-appellant does not persuade the
Court. The private complainant testified that since 1996, when
she was only eleven years old, until 1998, for two times a
week, accused-appellant used to place himself on top of her

and despite her tenacious resistance, touched her arms, legs

and sex organ and inserted his finger and penis into her
vagina.In the process, he ejaculated. Accused-appellant
threatened to kill her if she divulged to anyone what he did to
her.[20] Although private complainant did not testify that she was
raped on September 15, 1998 and October 22, 1998,
nevertheless accused-appellant may be convicted for two
counts of rape, in light of the testimony of private complainant.
It bears stressing that under the two Informations, the rape
incidents are alleged to have been committed on or about
September 15, 1998 and on or about October 22, 1998. The
words on or about envisage a period, months or even two or
four years before September 15, 1998 or October 22,
1998. The prosecution may prove that the crime charged was
committed on or about September 15, 1998 and on or about
October 22, 1998.
In People vs. Gianan,[21] this Court affirmed the conviction of
accused-appellant of five (5) counts of rape, four of which were
committed in December 1992 (two counts) and one each in
March and April, 1993 and in November, 1995 and one count
of acts of lasciviousness committed in December 1992, on a
criminal complaint for multiple rape, viz:
That sometime in November 1995, and some occasions prior
and/or subsequent thereto, in the Municipality of Dasmarias,
Province of Cavite, and within the jurisdiction of this Honorable
Court, the above-named accused, with lewd designs, taking
advantage of his superior strength over the person of his own
twelve (12) year old daughter, and by means of force, violence
and intimidation, did, then and there, willfully, unlawfully and
feloniously, have repeated carnal knowledge of Myra M.
Gianan, against her will and consent, to her damage and
prejudice.[22]
On the contention of accused-appellant in said case that his
conviction for rape in December 1992 was so remote from the
date (November 1995) alleged in the Information, so that the
latter could no longer be considered as being as near to the
actual date at which the offense was committed as provided
under Section 11, Rule 110 of the Rules on Criminal
Procedure, as amended, this Court held:
Accused-appellant nevertheless argues that his conviction for
rape in December 1992 is so remote from the date (November
1995) alleged in the information, so that the latter could no
longer be considered as being as near to the actual date at
which the offense was committed as provided under Rule 110,
11.
This contention is also untenable. In People v. Garcia, this
Court upheld a conviction for ten counts of rape based on an
information which alleged that the accused committed multiple
rape from November 1990 up to July 21, 1994, a time
difference of almost four years which is longer than that
involved in the case at bar. In any case, as earlier stated,
accused-appellants failure to raise a timely objection basedon
this ground constitutes a waiver of his right to object.[23]

Moreover, when the private complainant testified on how

accused-appellant defiled her two times a week from 1996 until
1998, accused-appellant raised nary a whimper of
protest.Accused-appellant even rigorously cross-examined the
private
complainant
on
her
testimony
on
direct
examination. The presentation by the prosecution, without
objection on the part of accused-appellant, of evidence of rape
committed two times a week from 1996 until 1998 (which
includes September 15, 1998 and October 22, 1998) to prove
the charges lodged against him constituted a waiver by
accused-appellant of his right to object to any perceived
infirmity in, and in the amendment of, the aforesaid
Informations to conform to the evidence adduced by the
prosecution.
The barefaced fact that private complainant remained a virgin
up to 1998 does not preclude her having been repeatedly
sexually
abused
by
accused-appellant. The
private
complainant being of tender age, it is possible that the
penetration of the male organ went only as deep as
her labia. Whether or not the hymen of private complainant
was still intact has no substantial bearing on accusedappellants commission of the crime.[24] Even the slightest
penetration of the labia by the male organ or the mere entry of
the penis into the aperture constitutes consummated rape. It is
sufficient that there be entrance of the male organ within
the labia of the pudendum.[25] In People vs. Baculi, cited
in People vs. Gabayron,[26] we held that there could be a finding
of rape even if despite repeated intercourse over a period of
four years, the complainant still retained an intact hymen
without injury. In these cases, the private complainant testified
that the penis of accused-appellant gained entry into her
vagina:
Fiscal Carisma
(continuing)
After your underwear was removed by the accused, what
happened next?
Witness:
He laid himself on top of me, sir.
Q What did he do while he was on top of you?
A He inserted his finger (Finenger nya ako, ipinatong nya yong
ano nya)
Q Can you please describe more specifically what is this and I
quote Pinatong nya yong ano nya and where did he place it?
A His organ, sir.
Q Where did he place his organ?
A In my organ, sir. (sa ari ko po.)
Q At this very juncture madam witness, what did you feel?

A I felt pain, sir, and I also felt that there was a sticky
substance that was coming out, sir.[27] (Underlining supplied)
We agree with accused-appellant that he is guilty only of two
counts of simple rape, instead of qualified rape. The evidence
on record shows that accused-appellant is the common-law
husband of Rose, the mother of private complainant. The
private complainant, as of October 1998, was still 13 years old,
and under Article 335 as amended by Republic Act 7659, the
minority of the private complainant, concurring with the fact
that accused-appellant is the common-law husband of the
victims mother, is a special qualifying circumstance warranting
the imposition of the death penalty.[28] However, said
circumstance was not alleged in the Informations as required
by Section 8, Rule 110 of the Revised Rules on Criminal
Procedure which was given retroactive effect by this Court
because it is favorable to the accused. [29] Hence, even if the
prosecution proved the special qualifying circumstance of
minority of private complainant and relationship, the accusedappellant being the common-law husband of her mother,
accused-appellant is guilty only of simple rape. Under the
given law, the penalty for simple rape is reclusion
perpetua. Conformably with current jurisprudence, accusedappellant is liable to private complainant for civil indemnity in
the amount of P50,000.00 and moral damages in the amount
of P50,000.00 for each count of rape, or a total
of P200,000.00.
Re: Criminal Cases Nos. 99-171390 and 99-171391 (covering
the crime committed on or about August 1998 and November
5, 1998)
Accused-appellant avers that (a) the Information in Criminal
Case No. 99-171390 is defective because the date of the
offense on or about August 1998 alleged therein is too
indefinite, in violation of Rule 110, Section 11 of the Revised
Rules on Criminal Procedure which reads:
Sec. 11. Date of commission of the offense.It is not necessary
to state in the complaint or information the precise date the
offense was committed except when it is a material ingredient
of the offense. The offense may be alleged to have been
committed on a date as near as possible to the actual date of
its commission. (11a)[30]
Accused-appellant further asserts that the prosecution failed to
prove that he raped private complainant in August
1998. Hence, he argues, he should be acquitted of said
charge. The Office of the Solicitor General, for its part, argued
that the date on or about August 1998 is sufficiently
definite. After all, the date of the commission of the crime of
rape is not an essential element of the crime. The prosecution
adduced conclusive proof that accused-appellant raped private
complainant on or about August 1998, as gleaned from her
testimony during the trial.
The Court does not agree with accused-appellant. It bears
stressing that the precise date of the commission of the crime
of rape is not an essential element of the crime. Failure to
specify the exact date when the rape was committed does not
render the Information defective. The reason for this is that the

gravamen of the crime of rape is carnal knowledge of the

private complainant under any of the circumstances
enumerated under Article 335 of the Revised Penal Code, as
amended. Significantly, accused-appellant did not even bother
to file a motion for a bill of particulars under Rule 116, Section
9 of the Revised Rules on Criminal Procedure before he was
arraigned. Indeed, accused-appellant was duly arraigned
under the Information and entered a plea of not guilty to the
charge without any plaint on the sufficiency of the
Information. Accused-appellant even adduced his evidence
after the prosecution had rested its case. It was only on appeal
to this Court that accused-appellant questioned for the first
time the sufficiency of the Information filed against him. It is
now too late in the day for him to do so. Moreover, in People
vs. Salalima,[31] this Court held that:

Rossel peeping through the door and dismounted. He berated

Rossel for peeping and ordered him to go back to his room and
to sleep. Accused-appellant then left the room of the private
complainant. The testimony of private complainant on direct
examination reads:

Failure to specify the exact dates or time when the rapes

occurred does not ipso facto make the information defective on
its face. The reason is obvious. The precise date or time when
the victim was raped is not an element of the offense. The
gravamen of the crime is the fact of carnal knowledge under
any of the circumstances enumerated under Article 335 of the
Revised Penal Code. As long as it is alleged that the offense
was committed at any time as near to the actual date when the
offense was committed an information is sufficient. In previous
cases, we ruled that allegations that rapes were
committed before and until October 15, 1994, sometime in the
year 1991 and the days thereafter, sometime in November
1995 and some occasions prior and/or subsequent
thereto and on or about and sometime in the year
1988constitute sufficient compliance with Section 11, Rule 110
of the Revised Rules on Criminal Procedure.

Q What was this unusual experience of yours?

In this case, although the indictments did not state with

particularity the dates when the sexual assaults took place, we
believe that the allegations therein that the acts were
committed sometime during the month of March 1996 or
thereabout, sometime during the month of April 1996 or
thereabout, sometime during the month of May 1996 or
thereabout substantially apprised appellant of the crimes he
was charged with since all the elements of rape were stated in
the informations. As such, appellant cannot complain that he
was deprived of the right to be informed of the nature of the
cases filed against him.Accordingly, appellants assertion that
he was deprived of the opportunity to prepare for his defense
has no leg to stand on.

Q What else if any madam witness?

The prosecution proved through the testimony of private

complainant that accused-appellant raped her two times a
week in 1998. As in Criminal Cases Nos. 99-171392 and 99171393, accused-appellant is guilty only of simple rape.
As to the crime of rape subject of Criminal Case No. 99171391, accused-appellant avers that he is not criminally liable
of rape. We agree with accused-appellant. The collective
testimony of private complainant and her younger brother
Rossel was that on November 5, 1998, accused-appellant who
was wearing a pair of short pants but naked from waist up,
entered the bedroom of private complainant, went on top of
her, held her hands, removed her panty, mashed her breasts
and touched her sex organ. However, accused-appellant saw

Fiscal Carisma:
Q In between 1996 and August 1997?
A Yes, sir, sometimes two (2) times a week.
Q In November of 1998, do you recall of any unusual
experience that happened to you again?
A Yes, sir.

A He laid himself on top of me, sir.

Q You said he whom are you referring to?
A Freedie Lizada Jakosalem, sir.
Q The same person you pointed to earlier?
A Yes, sir.
Q You said he placed himself on top of you in November, 1998,
what did he do while he was on top of you?
A Hes smashing my breast and he was also touching my arms
and my legs, sir.

A He was also touching my sex organ, sir.

Q What else, if any?
Atty. Estorco:
May we take note of the same objection your honor, the
prosecution - - Court:
Same ruling. Let the complainant continue considering that she
is crying and still young.
Witness:
None else, sir.
Fiscal Carisma:
With what part of his body did he touch your sex organ?
Atty. Estorco:
Your Honor, that is - - Court:

May answer.

A My two arms, my legs and my breast, sir.

Fiscal Carisma:

Q Do you mean to tell us that he was holding your two arms

and at the same time your legs, is that what you are trying to
tell us?

I will re-propound the question, your honor.

You said that he touched your sex organ, will you tell the court
with what part of his body, did he touch your sex organ?

A He held me first in my arms and then my legs, sir.

Witness:

Q He held you first by your arms, is that what you are trying to
tell us?

With his hands, sir.

Fiscal Carisma:

Q What about after November 1998 - - -was this the last

incident, this unusual thing that you experienced from the
hands of the accused was this that last time, the one you
narrated in November 1998?

Already answered your honor, he held the arms and then the
legs.

A Yes, sir.[32]

Already answered.

On cross-examination, the private complainant testified, thus:

Atty. Balaba:

Atty. Balaba:

Q Your honor, I am just trying to - -

Q Who was that somebody who entered the room?

Court:

A My stepfather Freedie Lizada, sir.

Proceed.

Q He was fully dressed at that time, during the time, is that

correct?

Atty. Balaba:

A Yes, sir, he was dressed then, sir.

Q And he had his pants on, is that correct?
A He was wearing a short pants, sir.
Q Was it a T-shirt that he had, at that time or a polo shirt?
A He was not wearing any shirt then, sir, he was naked.

Court:

Q He held your arms with his two hands?

A Only with one hand, sir.
Q Which hand were you touched?
A I do not know which hand, sir.
Q Which arm of yours was held by Freedie Lizada?
A I could not recall, sir.

Q When you realized that somebody was entering the room

were you not afraid?

Q Which side of your body was Freedie Lizada at that time?

A No, sir, I was not afraid.

A I cannot recall, sir.

Q What happened when you realized that somebody entered

the room, and the one who entered was your stepfather,
Freedie Lizada?

Q What was the position of Freedie Lizada when he held your

arms?

A I did not mind him entering the room because I know that my
brother was around but suddenly I felt that somebody was
holding me.
Q He was holding you, where were you when he held you?
A I was in the bed, sir, lying down.
Q You were lying down?
A Yes, sir.
Q What part of the body did the accused Freedie Lizada
touched you?

A He was sitting on our bed, sir.

Q Which side of your bed was Freedie Lizada sitting on?
A I do not know, sir. I cannot recall.
Atty. Balaba:
Can we take a recess your honor?
Court:
How long will it take you to finish your cross?
Atty. Balaba:

We will confront the witness with so many things your honor.

Court:
Yes, thats why I am asking you how long will it take you to
finish your cross?
Atty. Balaba:
About another hour, sir.
Court:
So we will be finished by 11:15, proceed.

Q Where was your house again, Mr. witness, at that

time? Where was your house at that date, time and place? At
that date and time?
A 1252 Jose Abad Santos, Tondo, Manila, sir.
Court:
Q The same address?
A Yes, sir.
Fiscal Carisma:

Atty. Balaba:

Q On that date, time and place, do your recall where your

sister Anna Lea Orillosa was?

You cannot also remember which leg was held by Freedie

Lizada?

A Yes, sir.

A I cannot recall, sir.

Q When this happened, did you not shout for help?
A I did not ask for help, I was motioning to resist him, so that
he would go out, sir. I was struggling to free myself from him,
sir.
Q And you were not able to extricate yourself from him?
A I was not able to extricate myself, sir.
Q You were struggling with one arm of Lizada holding your
arm, and the other hand was holding your leg, is that what you
are trying to tell us?
A No, sir, its not like that.

Q Where was she?

A She was sleeping, sir.
Q Now, on that date, time and place you said you were outside
your house, did you stay the whole afternoon outside your
house?
A No, sir.
Q Where did you go next?
A Inside, sir.
Q For what purpose did you get inside your house?
A Because I was thirsty, sir.
Q So you went to the fridge to get some water?

Q Could you tell us, what happened, you did not shout for help
and you were trying to extricate yourself, what happened?

A Yes, sir.

A He suddenly went out of the room, sir.

Q And what happened as you went inside your house to get

some water?

Q Now, he went - - Court:

A I saw my stepfather removing the panty of my sister and he

touched her and then he laid on top of her, sir.

You did not shout during that time?

Q Do you see your stepfather inside the courtroom now?

A No, your honor.[33]

A Yes, sir.

Rossel, the nine-year old brother of the private complainant

corroborated in part his sisters testimony. He testified on direct
examination, thus:

Q Will you point to him?

Fiscal Carisma: (continuing)

Court Interpreter:

Q Now, on November 2, 1998 do you recall where you were at

about 3:00 oclock?

Witness pointing to a male person who when asked answers to

the name Freedie Lizada.

A I was outside our house, sir.

Fiscal Carisma:

A He is the one, sir.

Q This thing that your father was that your stepfather did to
your elder sister, did you see this before or after you went to
the fridge to get some water?

Q Did you not say something to the accused?

A I already got water then, sir.

Q So your sister was lying down when the accused removed

her panty, is that what you are trying to tell us?

Q What did you do as you saw this thing being done by your
stepfather to your elder sister?

A Yes, sir.

A I was just looking at them when he saw me, sir.

Q And where was the - - - and the accused saw you when he
was removing the panty of your sister?

Q Who, you saw who? You are referring to the accused

Freedie Lizada?
A Yes, sir.
Q So, what did you do as you were seen by your stepfather?
A He scolded me, he shouted at me, he told me something and
after that he went to the other room and slept, sir.[34]
Rossel testified on cross-examination, thus:

A No, sir, I was just looking.

A Not yet, sir, but after a while he looked at the refrigerator

because he might be thirsty.
Q So---you said the accused was touching your sister. What
part of her body was touched by the accused?
A Here, sir.
Court Interpreter:
Witness pointing at the lower portion of the body.

Q So you got thirsty, is that correct, and went inside the

house?

Atty. Balaba:

A Yes, sir.

Q You saw with what hand was the accused touching your
sister?

Q And you took a glass of water from the refrigerator?

A Yes, sir.

A Yes, sir.
Q What hand was he touching your sister?

Q And it was at this time that you saw the accused Freedie
Lizada touching your sister?

A This hand, sir.

A Yes, sir.

Court Interpreter:

Q Where was this refrigerator located?

Witness raising his right hand.

A In front of the room where my sister sleeps, sir.

Atty. Balaba:

Q So the door of your sisters room was open?

Q And which part of your sisters body was the accused

touching with his right hand? Your sisters body was the
accused touching with his right hand?

A Yes, sir.
Q And --- okay, you said your sister was sleeping. What was
the position of your sister when you said the accused removed
her panty?
A She was lying straight, but she was resisting, sir.
Q Were you noticed by your sister at that time?
A No, sir.
Q And your sister did not call for help at that time?
A No, sir.
Q And all this time you saw the accused doing this, from the
refrigerator where you were taking a glass of water?
A Yes, sir.

A Her right leg, sir.

Q How about his left hand, what was the accused doing with
his left hand?
A Removing her panty, sir.
Q Removing her?
A Panty, sir.
Q Which hand of your sister was being removed with the left
hand of the accused?
Court:
Which?
Atty. Balaba:

Which hand, which hand?

Fiscal Carisma:
The question is vague, your honor.
Atty. Balaba:
Because he said that removing the hand --Fiscal Carisma:
He said removing the panty.
Atty. Balaba:
Is that panty? Im sorry.
Q So, the accused was touching with his right hand the left
thigh of your sister --Fiscal Carisma:
The right thigh.
Atty. Balaba:
Q Rather the right thigh of your sister and with his left hand
removing the panty, is that what you are telling to tell us?

Art. 336. Acts of Lasciviousness.Any person who shall commit

any act of lasciviousness upon other persons of either sex,
under any of the circumstances mentioned in the preceding
article, shall be punished by prision correccional.[37]
For an accused to be convicted of acts of lasciviousness, the
prosecution is burdened to prove the confluence of the
following essential elements:
1. That the offender commits any act of lasciviousness or
lewdness.
2. That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise
unconscious; or
c. When the offended party is under 12 years of age.[38]
Lewd is defined as obscene, lustful, indecent, lecherous. It
signifies that form of immorality which has relation to moral
impurity; or that which is carried on a wanton manner.[39]
The last paragraph of Article 6 of the Revised Penal Code
reads:

Q And your sister all the time was trying to ---was struggling to
get free, is that not correct?

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.

A Yes, sir, she was resisting. (witness demonstrating)

The essential elements of an attempted felony are as follows:

Q She was struggling --- was the accused able to remove the
panty?

1. The offender commences the commission of the felony

directly by overt acts;

A Yes, sir.

2. He does not perform all the acts of execution which should

produce the felony;

A Yes, sir.

Q And all the time you were there looking with the glass of
water in your hand?

3. The offenders act

spontaneous desistance;

be not

stopped

by

his

own

A Yes, sir.[35]
In light of the evidence of the prosecution, there was no
introduction of the penis of accused-appellant into the aperture
or within the pudendum of the vagina of private
complainant.Hence, accused-appellant is not criminally liable
for consummated rape.[36]
The issue that now comes to fore is whether or not accusedappellant is guilty of consummated acts of lasciviousness
defined in Article 336 of the Revised Penal Code or attempted
rape under Article 335 of the said Code, as amended in
relation to the last paragraph of Article 6 of the Revised Penal
Code. In light of the evidence on record, we believe that
accused-appellant is guilty of attempted rape and not of acts of
lasciviousness.
Article 336 of the Revised Penal Code reads:

4. The non-performance of all acts of execution was due

to cause or accident other than his spontaneous desistance.[40]
The first requisite of an attempted felony consists of two
elements, namely:
(1) That there be external acts;
(2) Such external acts have direct connection with the
crime intended to be committed.[41]
An overt or external act is defined as some physical activity or
deed, indicating the intention to commit a particular crime,
more than a mere planning or preparation, which if carried out
to its complete termination following its natural course, without
being frustrated by external obstacles nor by the spontaneous
desistance of the perpetrator, will logically and necessarily
ripen into a concrete offense.[42] The raison detre for the law

requiring a direct overt act is that, in a majority of cases, the

conduct of the accused consisting merely of acts of preparation
has never ceased to be equivocal; and this is necessarily so,
irrespective of his declared intent. It is that quality of being
equivocal that must be lacking before the act becomes one
which may be said to be a commencement of the commission
of the crime, or an overt act or before any fragment of the
crime itself has been committed, and this is so for the reason
that so long as the equivocal quality remains, no one can say
with certainty what the intent of the accused is. [43] It is
necessary that the overt act should have been the ultimate
step towards the consummation of the design. It is sufficient if
it was the first or some subsequent step in a direct movement
towards the commission of the offense after the preparations
are made.[44] The act done need not constitute the last
proximate one for completion. It is necessary, however, that the
attempt must have a causal relation to the intended crime. [45] In
the words of Viada, the overt acts must have an immediate and
necessary relation to the offense.[46]

haber comenzado a ejecutar el delito por actos exteriores, se

detiene, por un sentimiento libre y espontaneo, en el borde del
abismo, salvo esta. Es un llamamiento al remordimiento, a la
conciencia, una gracia un perdon que concede la Ley al
arrepentimiento voluntario.[55]

Acts constitutive of an attempt to commit a felony should be

distinguished from preparatory acts which consist of devising
means or measures necessary for accomplishment of a
desired object or end.[47] One perpetrating preparatory acts is
not guilty of an attempt to commit a felony. However, if the
preparatory acts constitute a consummated felony under the
law, the malefactor is guilty of such consummated offense.
[48]
The Supreme Court of Spain, in its decision of March 21,
1892, declared that for overt acts to constitute an attempted
offense, it is necessary that their objective be known and
established or such that 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 designation of the offense.[49]

It must be borne in mind, however, that the spontaneous

desistance of a malefactor exempts him from criminal liability
for the intended crime but it does not exempt him from the
crime committed by him before his desistance.[57]

There is persuasive authority 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).[50] Hence, it is necessary that the acts
of the accused must be such that, by their nature, by the facts
to which they are related, by circumstances of the persons
performing the same, and by the things connected therewith,
that they are aimed at the consummation of the offense. This
Court emphasized in People vs. Lamahang[51] that:
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
cause a particular injury.[52]
If the malefactor does not perform all the acts of execution by
reason of his spontaneous desistance, he is not guilty of an
attempted felony.[53] The law does not punish him for his
attempt to commit a felony.[54] The rationale of the law, as
explained by Viada:
La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir
el crimen que castigarlo. Si el autor de la tentativa, despues de

As aptly elaborated on by Wharton:

First, the character of an attempt is lost when its execution is
voluntarily abandoned. There is no conceivable overt act to
which the abandoned purpose could be attached. Secondly,
the policy of the law requires that the offender, so long as he is
capable of arresting an evil plan, should be encouraged to do
so, by saving him harmless in case of such retreat before it is
possible for any evil consequences to ensue. Neither society,
nor any private person, has been injured by his act. There is no
damage, therefore, to redress. To punish him after retreat and
abandonment would be to destroy the motive for retreat and
abandonment.[56]

In light of the facts established by the prosecution, we believe

that accused-appellant intended to have carnal knowledge of
private complainant. The overt acts of accused-appellant
proven by the prosecution were not mere preparatory acts. By
the series of his overt acts, accused-appellant had commenced
the execution of rape which, if not for his spontaneous
desistance, will ripen into the crime of rape. Although accusedappellant desisted from performing all the acts of execution
however his desistance was not spontaneous as he was
impelled to do so only because of the sudden and unexpected
arrival of Rossel. Hence, accused-appellant is guilty only of
attempted rape.[58] In a case of similar factual backdrop as this
case, we held:
Applying the foregoing jurisprudence and taking into account
Article 6 of the Revised Penal Code, the appellant can only be
convicted of attempted rape. He commenced the commission
of rape by removing his clothes, undressing and kissing his
victim and lying on top of her. However, he failed to perform all
the acts of execution which should produce the crime of rape
by reason of a cause other than his own spontaneous
desistance, i.e., by the timely arrival of the victims
brother. Thus, his penis merely touched Mary Joys private
organ. Accordingly, as the crime committed by the appellant is
attempted rape, the penalty to be imposed on him should be
an indeterminate prison term of six (6) years of prision
correccional as minimum to twelve (12) years of prision
mayor as maximum.
The penalty for attempted rape is prision mayor which is two
degrees lower than reclusion perpetua.[59] Accused-appellant
should be meted an indeterminate penalty the minimum of
which should be taken from prision correccional which has a
range of from six months and one day to six years and the
maximum of which shall be taken from the medium period
of prision mayor which has a range of from eight years and one

day to ten years, without any modifying circumstance.

Accused-appellant is also liable to private complainant for
moral damages in the amount of P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the Decision of the
Regional Trial Court of Manila, Branch 54, is SET
ASIDE. Another judgment is hereby rendered as follows:
1. In Criminal Case No. 99-171390, accused-appellant is
hereby found guilty beyond reasonable doubt of simple rape
under Article 335 of the Revised Penal Code as amended and
is hereby meted the penalty of reclusion perpetua. Accusedappellant is also hereby ordered to pay private complainant
Analia Orillosa the amounts of P50,000.00 by way of civil
indemnity and P50,000.00 by way of moral damages;
2. In Criminal Case No. 99-171391, accused-appellant is
hereby found guilty of attempted rape under Article 335 of the
Revised Penal Code as amended in relation to Article 6 of the
said Code and is hereby meted an indeterminate penalty of
from six years of prision correccional in its maximum period, as
minimum to ten years of prision mayor in its medium period, as
maximum. Accused-appellant is hereby ordered to pay private
complainant Analia Orillosa the amount of P25,000.00 by way
of moral damages; and,
3. In Criminal Cases Nos. 99-171392 and 99-171393,
accused-appellant is hereby found guilty beyond reasonable
doubt of two counts of simple rape, defined in Article 335 of the
Revised Penal Code as amended and is hereby meted the
penalty of reclusion perpetua for each count. Accusedappellant is hereby ordered to pay to private complainant
Analia Orillosa the amount of P50,000.00 by way of civil
indemnity and the amount of P50,000.00 by way of moral
damages for each count, or a total amount of P200,000.00.
SO ORDERED.

Baleros vs. People 483 SCRA 10 February 22, 2006

Republic
SUPREME
Manila

of

the

Philippines
COURT

SECOND DIVISION
G.R. No. 138033

February 22, 2006

RENATO
BALEROS,
JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
In this petition for review on certiorari, petitioner Renato
Baleros, Jr. assails and seeks the reversal of the January 13,
1999 decision1 of the Court of Appeals (CA) in CA-G.R. CR No.

17271 as reiterated in its March 31, 1999 resolution 2 denying

petitioners motion for reconsideration.
The assailed decision affirmed an earlier decision of the
Regional Trial Court (RTC) of Manila, Branch 2, in Criminal
Case No. 91-101642 finding petitioner Renato Baleros, Jr. y
David (CHITO) guilty of attempted rape.3
The accusatory portion of the information4 dated December 17,
1991 charging petitioner with attempted rape reads as follow:
That about 1:50 in the morning or sometime thereafter of 13
December 1991 in Manila and within the jurisdiction of this
Honorable Court, the above-named accused, by forcefully
covering the face of Martina Lourdes T. Albano with a piece of
cloth soaked in chemical with dizzying effects, did then and
there willfully, unlawfully and feloniously commenced the
commission of rape by lying on top of her with the intention to
have carnal knowledge with her but was unable to perform all
the acts of execution by reason of some cause or accident
other than his own spontaneous desistance, said acts being
committed against her will and consent to her damage and
prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by
counsel, pleaded "Not Guilty."5 Thereafter, trial on the merits
ensued.
To prove its case, the prosecution presented thirteen (13)
witnesses. Among them were private complainant Martina
Lourdes Albano (Malou), and her classmates, Joseph Bernard
Africa, Rommel Montes, Renato Alagadan and Christian
Alcala. Their testimonies, as narrated in some detail in the
decision of the CA, established the following facts:
Like most of the tenants of the Celestial Marie Building
(hereafter "Building", ) along A.H. Lacson Street, Sampaloc,
Manila, MALOU, occupying Room 307 with her maid, Marvilou
Bebania (Marvilou), was a medical student of the University of
Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU
retired at around 10:30. Outside, right in front of her bedroom
door, her maid, Marvilou, slept on a folding bed.
Early morning of the following day, MALOU was awakened by
the smell of chemical on a piece of cloth pressed on her face.
She struggled but could not move. Somebody was pinning her
down on the bed, holding her tightly. She wanted to scream for
help but the hands covering her mouth with cloth wet with
chemicals were very tight (TSN, July 5, 1993, p. 33). Still,
MALOU continued fighting off her attacker by kicking him until
at last her right hand got free. With this the opportunity
presented itself when she was able to grab hold of his sex
organ which she then squeezed.
The man let her go and MALOU went straight to the bedroom
door and roused Marvilou. xxx. Over the intercom, MALOU told
S/G Ferolin that: "may pumasok sa kuarto ko pinagtangkaan
ako" (Ibid., p. 8). Who it was she did not, however, know. The
only thing she had made out during their struggle was the feel
of her attackers clothes and weight. His upper garment was of

cotton material while that at the lower portion felt smooth and
satin-like (Ibid, p. 17). He was wearing a t-shirt and shorts
Original Records, p. 355).

time of CHITOs arrival at 1:30 A.M. because he glanced at the

alarm clock beside the bed when he was awakened by the
knock at the door .

To Room 310 of the Building where her classmates Christian

Alcala, Bernard Baptista, Lutgardo Acosta and Rommel
Montes were staying, MALOU then proceeded to seek help.
xxx.

Joseph noticed that CHITO was wearing dark-colored shorts

and white T-shirt (Ibid., p. 23) when he let the latter in. . It
was at around 3 oclock in the morning of December 13, 1991
when he woke up again later to the sound of knocking at the
door, this time, by Bernard Baptista (Bernard), .

It was then when MALOU saw her bed topsy-turvy. Her

nightdress was stained with blue (TSN, July 5, 1993, pp. 1314). Aside from the window with grills which she had originally
left opened, another window inside her bedroom was now
open. Her attacker had fled from her room going through the
left bedroom window (Ibid, Answers to Question number 5; Id),
the one without iron grills which leads to Room 306 of the
Building (TSN, July 5, 1993, p.6).
xxx xxx xxx
Further, MALOU testified that her relation with CHITO, who
was her classmate , was friendly until a week prior to the
attack. CHITO confided his feelings for her, telling her: "Gusto
kita, mahal kita" (TSN, July 5, 1993, p. 22) and she rejected
him. . (TSN, July 5, 1993, p. 22).
Meanwhile, according to S/G Ferolin, while he was on duty,
CHITO arrived at the Building at 1:30 in the early morning of
December 13, 1991, wearing a white t-shirt with a marking
on the front of the T-shirt T M and a Greek letter (sic) and
below the quoted letters the word 1946 UST Medicine and
Surgery (TSN, October 9, 1992, p. 9) and black shorts with
the brand name Adidas (TSN, October 16, 1992, p.7) and
requested permission to go up to Room 306. This Unit was
being leased by Ansbert Co and at that time when CHITO was
asking permission to enter, only Joseph Bernard Africa was in
the room.
He asked CHITO to produce the required written authorization
and when CHITO could not, S/G Ferolin initially refused [but
later, relented] . S/G Ferolin made the following entry in the
security guards logbook :
"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has
not have (sic) a Request letter from our tenant of Unit #-306
Ansbert, but still I let him inter (sic) for the reason that he will
be our tenant this coming summer break as he said so I let him
sign it here
(Sgd.) Baleros Renato Jr."
(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of December
13, 1991 was corroborated by Joseph Bernard Africa (Joseph),
.
xxx xxx xxx
Joseph was already inside Room 306 at 9 oclock in the
evening of December 12, 1991. xxx by the time CHITOs
knocking on the door woke him up, . He was able to fix the

xxx. With Bernard, Joseph then went to MALOUs room and

thereat was shown by Bernard the open window through which
the intruder supposedly passed.
xxx xxx xxx
Later, at about 6 to 6:30 in the morning of December 13, 1991,
Joseph was finally able to talk to CHITO . He mentioned to
the latter that something had happened and that they were not
being allowed to get out of the building. Joseph also told
CHITO to follow him to Room 310.
CHITO did just that. He followed after Joseph to Unit 310,
carrying his gray bag. xxx. None was in Room 310 so Joseph
went to their yet another classmate, Renato Alagadan at Room
401 to see if the others were there. xxx.
People from the CIS came by before 8 oclock that same
morning . They likewise invited CHITO and Joseph to go with
them to Camp Crame where the two (2) were questioned .
An occupant of Room 310 Christian Alcala (Christian)
recalled in Court that in the afternoon of December 13, 1991,
after their 3:30 class, he and his roommates, Bernard Baptista
and Lutgardo Acosta (Gary) were called to the Building and
were asked by the CIS people to look for anything not
belonging to them in their Unit. While they were outside Room
310 talking with the authorities, Rommel Montes (Loyloy),
another roommate of his, went inside to search the Unit. Loyloy
found (TSN, January 12, 1993, p. 6) a gray "Khumbella" bag
cloth type (Ibid, pp. 44-45) from inside their unit which they did
not know was there and surrender the same to the
investigators. When he saw the gray bag, Christian knew right
away that it belonged to CHITO (Ibid, p. 55) as he had seen
the latter usually bringing it to school inside the classroom
(Ibid, p. 45).
In their presence, the CIS opened the bag and pulled out its
contents, among others, a white t-shirt with a Taunu (sic)
Sigma Phi sign (Ibid, p. 7), a Black Adidas short pants, a
handkerchief , three (3) white T-shirts, an underwear, and
socks (Ibid).
Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short
pants (Exhibit "D-5"), and the handkerchief (Exhibit "D-3) to be
CHITOs because CHITO had lent the very same one to him
. The t-shirt with CHITOs fraternity symbol, CHITO used to
wear on weekends, and the handkerchief he saw CHITO used
at least once in December.

That CHITO left his bag inside Room 310 in the morning of
December 13, 1991, was what consisted mainly of Renato R.
Alagadans testimony.
xxx xxx xxx.
The colored gray bag had a handle and a strap, was elongated
to about 11/4 feet and appeared to be full but was closed with
a zipper when Renato saw it then (Ibid, pp. 19-20). At that time
Christian, Gary, Bernard, and Renato went back to Room 310
at around 3 to 4 oclock that afternoon along with some CIS
agents, they saw the bag at the same place inside the
bedroom where Renato had seen CHITO leave it. Not until
later that night at past 9 oclock in Camp Crame, however, did
Renato know what the contents of the bag were.
xxx xxx xxx.
The forensic Chemist, Leslie Chambers, of the Philippine
National Police Crime Laboratory in Camp Crame, having
acted in response to the written request of PNP
Superintendent Lucas M. Managuelod dated December 13,
1991, (Exhibit "C"; Original Records, p. 109.) conducted
laboratory examination on the specimen collated and
submitted. Her Chemistry Report No. C-487-91 (Exhibit "E";
Ibid., p. 112) reads in part, thus:
"SPECIMEN SUBMITTED:
xxx xxx xxx:
1) One (1) small white plastic bag marked UNIMART with the
following:
xxx xxx xxx
Exh C One (1) night dress colored salmon pink.
2) One (1) small white pl astic bag marked JONAS with the
following:
Exh. D One (1) printed handkerchief.
Exh. E One (1) white T-shirt marked TMZI.
Exh. F One (1) black short (sic) marked ADIDAS.
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of volatime (sic), non-volatile and/or
metallic poison on the above stated specimens.
FINDINGS:
Toxicological examination conducted on the above stated
specimens gave the following results:
Exhs. C and D POSITIVE to the test for chloroform, a
volatile poison.
Exhs. A, B, E and F are insufficient for further analysis.
CONCLUSION:

Exhs. C and D contain chloroform, a volatile poison." 6 (Words

in bracket added)
For its part, the defense presented, as its main witness, the
petitioner himself. He denied committing the crime imputed to
him or making at any time amorous advances on Malou.
Unfolding a different version of the incident, the defense
sought to establish the following, as culled from the same
decision of the appellate court:
In December of 1991, CHITO was a medical student of
(UST). With Robert Chan and Alberto Leonardo, he was
likewise a member of the Tau Sigma Phi Fraternity . MALOU,
, was known to him being also a medical student at the UST
at the time.
From Room 306 of the Celestial Marie Building , CHITO,
wearing the prescribed barong tagalog over dark pants and
leather shoes, arrived at their Fraternity house located at
Dos Castillas, Sampaloc, Manila at about 7 oclock in the
evening of December 12, 1991. He was included in the
entourage of some fifty (50) fraternity members scheduled for a
Christmas gathering at the house of their senior fraternity
brother, Dr. Jose Duran, at No. 3 John Street, North Greenhills,
San Juan. xxx.
The party was conducted at the garden beside [the] swimming
pool . Soon after, the four (4) presidential nominees of the
Fraternity, CHITO included, were being dunked one by one into
the pool. xxx.
xxx CHITO had anticipated his turn and was thus wearing
his t-shirt and long pants when he was dunked. Perla Duran,
, offered each dry clothes to change into and CHITO put
on the white t-shirt with the Fraternitys symbol and a pair of
black shorts with stripes. xxx .
Again riding on Albertos car and wearing "barong tagalog over
a white t-shirt with the symbol TAU Sigma Phi, black short
pants with stripe, socks and shoes" (TSN, April 25, 1994, p.
15), CHITO left the party with Robert Chan and Alberto at more
or less past 1 A.M. of December 13, 1991 and proceeded to
the Building which they reached at about 1:30 A.M. (Ibid., p.
19). He had left his gray traveling bag containing "white t-shirt,
sando, underwear, socks, and toothbrush (Ibid., pp. 17-18) at
room 306 in the afternoon of the previous day .
At the gate of the Building, CHITO knocked and , S/G
Ferolin, looking at his watch, approached. Because of this,
CHITO also looked at his own watch and saw that the time was
1:30 (Ibid., p. 26). S/G Ferolin initially refused CHITO entry .
xxx.
S/G Ferolin called Unit 306 . xxx. When S/G Ferolin finally let
him in, already about ten (10) minutes had lapsed since CHITO
first arrived (Ibid., p. 25).
CHITO went up the floor, found the key left for him by Joseph
behind the opened jalousie window and for five (5) minutes
vainly tried to open the door until Rommel Montes,
approached him and even commented: "Okey ang suot mo ha,
di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried to

open the door of Unit 306 but was likewise unsuccessful.

CHITO then decided to just call out to Joseph while knocking
at the door.
It took another (5) minutes of calling out and knocking before
Joseph, , at last answered the door. Telling him, "Ikaw na
ang bahala diyan" Joseph immediately turned his back on
CHITO and went inside the bedroom. CHITO , changed to a
thinner shirt and went to bed. He still had on the same short
pants given by Perla Duran from the fraternity party (TSN,
June 16, 1994, p. 20).
At 6 oclock in the morning of December 13, 1991, CHITO
woke up . He was already in his school uniform when,
around 6:30 A.M, Joseph came to the room not yet dressed up.
He asked the latter why this was so and, without elaborating on
it, Joseph told him that something had happened and to just go
to Room 310 which CHITO did.
At Room 310, CHITO was told by Rommel Montes that
somebody, whom MALOU was not able to identify, went to the
room of MALOU and tried to rape her (TSN, April 25, 1994, p.
36). xxx.
Joseph told him that the security guard was not letting anybody
out of the Building . When two (2) CIS men came to the unit
asking for Renato Baleros, CHITO presented himself.
Congressman Rodolfo B. Albano, father of MALOU, then
asked him for the key to Room 306.
xxx xxx xxx
The CIS men looked inside the bedroom and on the windows.
Joseph was told to dress up and the two (2) of them, CHITO
and Joseph, were brought to Camp Crame.
When they arrived at Camp Crame , Col. Managuelod asked
Joseph inside his room and talked to him for 30 minutes. xxx.
No one interviewed CHITO to ask his side.
xxx xxx xxx
Both CHITO and Joseph were taken to Prosecutor Abesamis
who later instructed them to undergo physical examination at
the Camp Crame Hospital .. At the hospital, CHITO and
Joseph were physically examined by a certain Dr. de Guzman
who told them to strip .
xxx xxx xxx
CHITO had left his gray bag containing, among others, the
black striped short pants lent to him by Perla Duran (Exhibit "8A", Original Records, p. 345), inside Room 310 at more/less
6:30 to 7 oclock in the morning of December 13, 1991. The
next time that he saw it was between 8 to 9 P.M. when he and
Joseph were brought before Fiscal Abesamis for inquest. One
of the CIS agents had taken it there and it was not opened up
in his presence but the contents of the bag were already laid
out on the table of Fiscal Abesamis who, however, made no
effort to ask CHITO if the items thereat were his.

The black Adidas short pants purportedly found in the bag,

CHITO denied putting in his gray bag which he had left at
Room 306 in the early evening of December 12, 1991 before
going to the fraternity house. He likewise disavowed placing
said black Adidas short pants in his gray bag when he returned
to the apartment at past 1:00 oclock in the early morning of
December 13, 1991 (TSN, June 16, 1994, p. 24), nor when he
dressed up at about 6 oclock in the morning to go to school
and brought his gray bag to Room 310 (Ibid. 25). In fact, at any
time on December 13, 1991, he was not aware that his gray
bag ever contained any black short Adidas pants (Ibid). He
only found out for the first time that the black Adidas short
pants was alluded to be among the items inside his gray bag
late in the afternoon, when he was in Camp Crame.
Also taking the witness stand for the defense were petitioners
fraternity brothers, Alberto Leonardo and Robert Chan, who
both testified being with CHITO in the December 12, 1991
party held in Dr. Durans place at Greenhills, riding on the
same car going to and coming from the party and dropping the
petitioner off the Celestial Marie building after the party. Both
were one in saying that CHITO was wearing a barong tagalog,
with t-shirt inside, with short pants and leather shoes at the
time they parted after the party.7 Rommel Montes, a tenant of
Room 310 of the said building, also testified seeing CHITO
between the hours of 1:30 and 2:00 A.M. of December 13,
1991 trying to open the door of Room 306 while clad in dark
short pants and white barong tagalog.
On the other hand, Perla Duran confirmed lending the
petitioner the pair of short pants with stripes after the dunking
party held in her fathers house.8 Presented as defense expert
witness was Carmelita Vargas, a forensic chemistry instructor
whose actual demonstration in open court showed that
chloroform, being volatile, evaporates in thirty (30) seconds
without tearing nor staining the cloth on which it is applied.9
On December 14, 1994, the trial court rendered its
decision10 convicting petitioner of attempted rape and
accordingly sentencing him, thus:
WHEREFORE, under cool reflection and prescinding from the
foregoing, the Court finds the accused Renato D. Baleros, Jr.,
alias "Chito", guilty beyond reasonable doubt of the crime of
attempted rape as principal and as charged in the information
and hereby sentences him to suffer an imprisonment ranging
from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY
of Prision Correctional, as Minimum to TEN (10) YEARS of
Prision Mayor as Maximum, with all the accessory penalties
provided by law, and for the accused to pay the offended party
Martina Lourdes T. Albano, the sum of P50,000.00 by way of
Moral and exemplary damages, plus reasonable Attorneys
fees of P30,000.00, without subsidiary imprisonment in case of
insolvency, and to pay the costs.
SO ORDERED.
Aggrieved, petitioner went to the CA whereat his appellate
recourse was docketed as CA-G.R. CR No. 17271.

As stated at the threshold hereof, the CA, in its assailed

Decision dated January 13, 1999, affirmed the trial courts
judgment of conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate
from the findings of the court a quo, the decision appealed
from is hereby AFFIRMED in toto. Costs against appellant.
SO ORDERED.11
Petitioner moved for reconsideration, but his motion was
denied by the CA in its equally assailed resolution of March 31,
1999.12
Petitioner is now with this Court, on the contention that the CA
erred 1. In not finding that it is improbable for petitioner to have
committed the attempted rape imputed to him, absent
sufficient, competent and convincing evidence to prove the
offense charged.
2. In convicting petitioner of attempted rape on the basis
merely of circumstantial evidence since the prosecution failed
to satisfy all the requisites for conviction based thereon.

a crime, he may still be able to positively identify a suspect or

accused as the perpetrator of a crime as when, for instance,
the latter is the person or one of the persons last seen with the
victim immediately before and right after the commission of the
crime. This is the second type of positive identification, which
forms part of circumstantial evidence. 13 In the absence of direct
evidence, the prosecution may resort to adducing
circumstantial evidence to discharge its burden. Crimes are
usually committed in secret and under condition where
concealment is highly probable. If direct evidence is insisted
under all circumstances, the prosecution of vicious felons who
committed heinous crimes in secret or secluded places will be
hard, if not well-nigh impossible, to prove.14
Section 4 of Rule 133 of the Rules of Court provides the
conditions when circumstantial evidence may be sufficient for
conviction. The provision reads:
Sec. 4. Circumstantial evidence, when sufficient
Circumstantial evidence is sufficient for conviction if

a) There is more than one circumstance;

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

3. In not finding that the circumstances it relied on to convict

the petitioner are unreliable, inconclusive and contradictory.

c) The combination of all the circumstances is such as to

produce a conviction beyond reasonable doubt.

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

case.

In the present case, the positive identification of the petitioner

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

5. In awarding damages in favor of the complainant despite the

fact that the award was improper and unjustified absent any
evidence to prove the same.
6. In failing to appreciate in his favor the constitutional
presumption of innocence and that moral certainty has not
been met, hence, he should be acquitted on the ground that
the offense charged against him has not been proved beyond
reasonable doubt.
Otherwise stated, the basic issue in this case turns on the
question on whether or not the CA erred in affirming the ruling
of the RTC finding petitioner guilty beyond reasonable doubt of
the crime of attempted rape.
After a careful review of the facts and evidence on record in
the light of applicable jurisprudence, the Court is disposed to
rule for petitioners acquittal, but not necessarily because there
is no direct evidence pointing to him as the intruder holding a
chemical-soaked cloth who pinned Malou down on the bed in
the early morning of December 13, 1991.
Positive identification pertains essentially to proof of identity
and not per se to that of being an eyewitness to the very act of
commission of the crime. There are two types of positive
identification. A witness may identify a suspect or accused as
the offender as an eyewitness to the very act of the
commission of the crime. This constitutes direct evidence.
There may, however, be instances where, although a witness
may not have actually witnessed the very act of commission of

We quote with approval the CAs finding of the circumstantial

evidence that led to the identity of the petitioner as such
intruder:
Chito was in the Building when the attack on MALOU took
place. He had access to the room of MALOU as Room 307
where he slept the night over had a window which allowed
ingress and egress to Room 306 where MALOU stayed. Not
only the Building security guard, S/G Ferolin, but Joseph
Bernard Africa as well confirmed that CHITO was wearing a
black "Adidas" shorts and fraternity T-shirt when he arrived at
the Building/Unit 307 at 1:30 in the morning of December 13,
1991. Though it was dark during their struggle, MALOU had
made out the feel of her intruders apparel to be something
made of cotton material on top and shorts that felt satinsmooth on the bottom.
From CHITOs bag which was found inside Room 310 at the
very spot where witness Renato Alagadan saw CHITO leave it,
were discovered the most incriminating evidence: the
handkerchief stained with blue and wet with some kind of
chemicals; a black "Adidas" satin short pants; and a white
fraternity T-shirt, also stained with blue. A different witness, this
time, Christian Alcala, identified these garments as belonging
to CHITO. As it turned out, laboratory examination on these
items and on the beddings and clothes worn by MALOU during
the incident revealed that the handkerchief and MALOUs night

dress both contained chloroform, a volatile poison which

causes first degree burn exactly like what MALOU sustained
on that part of her face where the chemical-soaked cloth had
been pressed.
This brings the Court to the issue on whether the evidence
adduced by the prosecution has established beyond
reasonable doubt the guilt of the petitioner for the crime of
attempted rape.
The Solicitor General maintained that petitioner, by pressing on
Malous face the piece of cloth soaked in chemical while
holding her body tightly under the weight of his own, had
commenced the performance of an act indicative of an intent or
attempt to rape the victim. It is argued that petitioners
actuation thus described is an overt act contemplated under
the law, for there can not be any other logical conclusion other
than that the petitioner intended to ravish Malou after he
attempted to put her to an induced sleep. The Solicitor
General, echoing what the CA said, adds that if petitioners
intention was otherwise, he would not have lain on top of the
victim.15
Under Article 335 of the Revised Penal Code, rape is
committed by a man who has carnal knowledge or intercourse
with a woman under any of the following circumstances: (1) By
using force or intimidation; (2) When the woman is deprived of
reason or otherwise unconscious; and (3) When the woman is
under twelve years of age or is demented. Under Article 6, in
relation to the aforementioned article of the same code, rape is
attempted when the offender commences the commission of
rape directly by overt acts and does not perform all the acts of
execution which should produce the crime of rape by reason of
some cause or accident other than his own spontaneous
desistance.16
Expounding on the nature of an attempted felony, the Court,
speaking thru Justice Claro M. Recto in People vs.
Lamahang,17 stated that "the attempt which the Penal Code
punishes is that which has a logical connection to a particular,
concrete offense; that which is the beginning of the execution
of the offense by overt acts of the perpetrator, leading directly
to its realization and consummation." Absent the unavoidable
connection, like the logical and natural relation of the cause
and its effect, as where the purpose of the offender in
performing an act is not certain, meaning the nature of the act
in relation to its objective is ambiguous, then what obtains is an
attempt to commit an indeterminate offense, which is not a
juridical fact from the standpoint of the Penal Code.18
There is absolutely no dispute about the absence of sexual
intercourse or carnal knowledge in the present case. The next
question that thus comes to the fore is whether or not the act of
the petitioner, i.e., the pressing of a chemical-soaked cloth
while on top of Malou, constitutes an overt act of
rape.1avvphil.net
Overt or external act has been defined as some physical
activity or deed, indicating the intention to commit a particular
crime, more than a mere planning or preparation, which if
carried out to its complete termination following its natural

course, without being frustrated by external obstacles nor by

the voluntary desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense.19
Harmonizing the above definition to the facts of this case, it
would be too strained to construe petitioner's act of pressing a
chemical-soaked cloth in the mouth of Malou which would
induce her to sleep as an overt act that will logically and
necessarily ripen into rape. As it were, petitioner did not
commence at all the performance of any act indicative of an
intent or attempt to rape Malou. It cannot be overemphasized
that petitioner was fully clothed and that there was no attempt
on his part to undress Malou, let alone touch her private part.
For what reason petitioner wanted the complainant
unconscious, if that was really his immediate intention, is
anybodys guess. The CA maintained that if the petitioner had
no intention to rape, he would not have lain on top of the
complainant. Plodding on, the appellate court even anticipated
the next step that the petitioner would have taken if the victim
had been rendered unconscious. Wrote the CA:
The shedding of the clothes, both of the attacker and his
victim, will have to come later. His sexual organ is not yet
exposed because his intended victim is still struggling. Where
the intended victim is an educated woman already mature in
age, it is very unlikely that a rapist would be in his naked glory
before even starting his attack on her. He has to make her lose
her guard first, or as in this case, her unconsciousness.20
At bottom then, the appellate court indulges in plain
speculation, a practice disfavored under the rule on evidence
in criminal cases. For, mere speculations and probabilities
cannot substitute for proof required to establish the guilt of an
accused beyond reasonable doubt.21
In Perez vs. Court of Appeals,22 the Court acquitted therein
petitioner of the crime of attempted rape, pointing out that:
xxx. In the crime of rape, penetration is an essential act of
execution to produce the felony. Thus, for there to be an
attempted rape, the accused must have commenced the act of
penetrating his sexual organ to the vagina of the victim but for
some cause or accident other than his own spontaneous
desistance, the penetration, however, slight, is not completed.
xxx xxx xxx
Petitioners act of lying on top of the complainant, embracing
and kissing her, mashing her breasts, inserting his hand inside
her panty and touching her sexual organ, while admittedly
obscene and detestable acts, do not constitute attempted rape
absent any showing that petitioner actually commenced to
force his penis into the complainants sexual organ. xxx.
Likewise in People vs. Pancho,23 the Court held:
xxx, appellant was merely holding complainants feet when his
Tito Onio arrived at the alleged locus criminis. Thus, it would
be stretching to the extreme our credulity if we were to
conclude that mere holding of the feet is attempted rape.

Lest it be misunderstood, the Court is not saying that petitioner

is innocent, under the premises, of any wrongdoing
whatsoever. The information filed against petitioner contained
an allegation that he forcefully covered the face of Malou with a
piece of cloth soaked in chemical. And during the trial, Malou
testified about the pressing against her face of the chemicalsoaked cloth and having struggled after petitioner held her
tightly and pinned her down. Verily, while the series of acts
committed by the petitioner do not determine attempted rape,
as earlier discussed, they constitute unjust vexation punishable
as light coercion under the second paragraph of Article 287 of
the Revised Penal Code. In the context of the constitutional
provision assuring an accused of a crime the right to be
informed of the nature and cause of the accusation, 24 it cannot
be said that petitioner was kept in the dark of the inculpatory
acts for which he was proceeded against. To be sure, the
information against petitioner contains sufficient details to
enable him to make his defense. As aptly observed by then
Justice Ramon C. Aquino, there is no need to allege malice,
restraint or compulsion in an information for unjust vexation. As
it were, unjust vexation exists even without the element of
restraint or compulsion for the reason that this term is broad
enough to include any human conduct which, although not
productive of some physical or material harm, would unjustly
annoy or irritate an innocent person.25 The paramount question
is whether the offenders act causes annoyance, irritation,
torment, distress or disturbance to the mind of the person to
whom it is directed.26 That Malou, after the incident in question,
cried while relating to her classmates what she perceived to be
a sexual attack and the fact that she filed a case for attempted
rape proved beyond cavil that she was disturbed, if not
distressed by the acts of petitioner.
The penalty for coercion falling under the second paragraph of
Article 287 of the Revised Penal Code is arresto menor or a
fine ranging from P5.00 to P200.00 or both.
WHEREFORE, the assailed Decision of the Court of Appeals
affirming that of the Regional Trial Court of Manila, is hereby
REVERSED and SET ASIDE and a new one entered
ACQUITTING petitioner Renato D. Baleros, Jr. of the charge
for attempted rape. Petitioner, however, is adjudged GUILTY of
light coercion and is accordingly sentenced to 30 days of
arresto menor and to pay a fine of P200.00, with the accessory
penalties thereof and to pay the costs.
SO ORDERED.

People vs. Labiaga GR No. 202867 July 15, 2013

Republic
SUPREME
Manila

of

the

SECOND DIVISION
G.R. No. 202867

July 15, 2013

Philippines
COURT

PEOPLE
OF
THE
vs.
REGIE LABIAGA, Appellant.

PHILIPPINES, Appellee,

DECISION
CARPIO, J.:
The Case
Before the Court is an appeal assailing the Decision 1 dated 18
October 2011 of the Court of Appeals-Cebu (CA-Cebu) in CAG.R. CEB CR-HC No. 01000. The CA-Cebu affirmed with
modification the Joint Decision2 dated 10 March 2008 of the
Regional Trial Court of Barotac Viejo, Iloilo, Branch 66 (RTC),
in Criminal Case No. 2001-155) convicting Regie Labiaga alias
"Banok" (appellant) of murder and Criminal Case No. 20021777 convicting appellant of frustrated murder.
The Facts
In Criminal Case No. 2001-1555, appellant, together with a
certain Alias Balatong Barcenas and Cristy Demapanag
(Demapanag), was charged with Murder with the Use of
Unlicensed Firearm under an Information3 which reads:
That on or about December 23, 2000 in the Municipality of
Ajuy, Province of Iloilo, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused,
conspiring, confederating and helping one another, armed with
unlicensed firearm, with deliberate intent and decided purpose
to kill, by means of treachery and with evident premeditation,
did then and there willfully, unlawfully and feloniously attack,
assault and shoot JUDY CONDE alias JOJO with said
unlicensed firearm, hitting her and inflicting gunshot wounds on
the different parts of her breast which caused her death
thereafter.
CONTRARY TO LAW.
The same individuals were charged with Frustrated Murder
with the Use of Unlicensed Firearm in Criminal Case No. 20021777, under an Information4 which states:
That on or about December 23, 2000 in the Municipality of
Ajuy, Province of Iloilo, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused,
conspiring, confederating and helping one another, armed with
unlicensed firearm, with deliberate intent and decided purpose
to kill, by means of treachery and with evident premeditation,
did then and there willfully, unlawfully and feloniously attack,
assault and shoot Gregorio Conde with said unlicensed
firearm, hitting him on the posterior aspect, middle third right
forearm 1 cm. In diameter; thereby performing all the acts of
execution which would produce the crime of Murder as a
consequence, but nevertheless did not produce it by reason of
causes independent of the will of the accused; that is by the
timely and able medical assistance rendered to said Gregorio
Conde which prevented his death.
CONTRARY TO LAW.

Alias Balatong Barcenas remained at large. Both appellant and

Demapanag pled not guilty in both cases and joint trial ensued
thereafter. The prosecution presented four witnesses: Gregorio
Conde, the victim in Criminal Case No. 2002-1777; Glenelyn
Conde, his daughter; and Dr. Jeremiah Obaana and Dr.
Edwin Jose Figura, the physicians at the Sara District Hospital
where the victims were admitted. The defense, on the other
hand, presented appellant, Demapanag, and the latters
brother, Frederick.
Version of the prosecution
The prosecutions version of the facts is as follows: At around
7:00 p.m. on 23 December 2000, Gregorio Conde, and his two
daughters, Judy and Glenelyn Conde, were in their home at
Barangay Malayu-an, Ajuy, Iloilo. Thereafter, Gregorio stepped
outside. Glenelyn was in their store, which was part of their
house.
Shortly thereafter, appellant, who was approximately five
meters away from Gregorio, shot the latter. Gregorio called
Judy for help. When Judy and Glenelyn rushed to Gregorios
aid, appellant shot Judy in the abdomen. The two other
accused were standing behind the appellant. Appellant said,
"she is already dead," and the three fled the crime scene.
Gregorio and Judy were rushed to the Sara District Hospital.
Judy was pronounced dead on arrival while Gregorio made a
full recovery after treatment of his gunshot wound.
Dr. Jeremiah Obaana conducted the autopsy of Judy. His
report stated that her death was caused by "cardiopulmonary
arrest secondary to Cardiac Tamponade due to gunshot
wound."5
Dr. Jose Edwin Figura, on the other hand, examined Gregorio
after the incident. He found that Gregorio sustained a gunshot
wound measuring one centimeter in diameter in his right
forearm and "abrasion wounds hematoma formation" in his
right shoulder.6
Version of the defense
Appellant admitted that he was present during the shooting
incident on 23 December 2000. He claimed, however, that he
acted in self-defense. Gregorio, armed with a shotgun,
challenged him to a fight. He attempted to shoot appellant, but
the shotgun jammed. Appellant tried to wrest the shotgun from
Gregorio, and during the struggle, the shotgun fired. He
claimed that he did not know if anyone was hit by that gunshot.
Demapanag claimed that at the time of the shooting, he was in
D&D Ricemill, which is approximately 14 kilometers away from
the crime scene. This was corroborated by Frederick,
Demapanags brother.
The Ruling of the RTC
In its Joint Decision, the RTC acquitted Demapanag due to
insufficiency of evidence. Appellant, however, was convicted of
murder and frustrated murder. The dispositive portion of the
Joint Decision reads:

WHEREFORE, in light of the foregoing, the court hereby finds

the accused Regie Labiaga @ "Banok" GUILTY beyond
reasonable doubt of the Crime of Murder in Crim. Case No.
2001-1555 and hereby sentences the said accused to
reclusion perpetua together with accessory penalty provided by
law, to pay the heirs of Judy CondeP50,000.00 as civil
indemnity, without subsidiary imprisonment in case of
insolvency and to pay the costs.
In Crim. Case No. 2002-1777, the court finds accused Regie
Labiaga @ "Banok" GUILTY beyond reasonable doubt of the
crime of Frustrated Murder and hereby sentences the said
accused to a prison term ranging from six (6) years and one (1)
day of prision mayor as minimum to ten (10) years and one (1)
day of reclusion temporal as maximum, together with the
necessary penalty provided by law and without subsidiary
imprisonment in case of insolvency and to pay the costs.
Accuseds entire period of detention shall be deducted from the
penalty herein imposed when the accused serves his
sentence.
For lack of sufficient evidence, accused Cristy Demapanag is
acquitted of the crimes charged in both cases. The Provincial
Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby
directed to release accused Cristy Demapanag from custody
unless he is being held for some other valid or lawful cause.
SO ORDERED.7
The Ruling of the CA-Cebu
Appellant impugned the RTCs Joint Decision, claiming that
"the RTC gravely erred in convicting the appellant of the crime
charged despite failure of the prosecution to prove his guilt
beyond reasonable doubt."8 The CA-Cebu, however, upheld
the conviction for murder and frustrated murder.
The CA-Cebu also modified the Joint Decision by imposing the
payment of moral and exemplary damages in both criminal
cases. The CA-Cebu made a distinction between the civil
indemnity awarded by the RTC in Criminal Case No. 20011555 and the moral damages. The CA-Cebu pointed out that:
The trial court granted the amount of P50,000.00 as civil
indemnity in Criminal Case No. 2001-1555. It did not award
moral damages. Nonetheless, the trial court should have
awarded both, considering that they are two different kinds of
damages. For death indemnity, the amount of P50,000.00 is
fixed "pursuant to the current judicial policy on the matter,
without need of any evidence or proof of damages. Likewise,
the mental anguish of the surviving family should be assuaged
by the award of appropriate and reasonable moral damages."9
The dispositive portion of the Decision of the CA-Cebu reads:
WHEREFORE, premises considered, the appeal is DENIED.
The Joint Decision dated March 10, 2008 of the Regional Trial
Court, Branch 66, in Barotac Viejo, Iloilo is AFFIRMED with
MODIFICATIONS. The dispositive portion of the said Joint
Decision should now read as follows:

WHEREFORE, in light of the foregoing, the court hereby finds

the accused Regie Labiaga @ "Banok" GUILTY beyond
reasonable doubt of the crime of Murder in Crim. Case No.
2001-1555 and hereby sentences the said accused to
reclusion perpetua together with the accessory penalty
provided by law, to pay the heirs of Judy Conde P50,000.00 as
civil indemnity, P50,000.00 as moral damages andP25,000.00
as exemplary damages, without subsidiary imprisonment in
case of insolvency and to pay the costs.
In Crim. Case No. 2002-1777 the court finds accused Regie
Labiaga @ "Banok" GUILTY beyond reasonable doubt of the
crime of Frustrated Murder and hereby sentences the said
accused to suffer the indeterminate penalty of eight (8) years
and one (1) day of prision mayor, as minimum, to fourteen (14)
years and eight (8) months of reclusion temporal, as maximum,
together with the accessory penalty provided by law, to pay
Gregorio
Conde P25,000.00
as
moral
damages
and P25,000.00 as exemplary damages, without subsidiary
imprisonment in case of insolvency and to pay the costs
Accused(s) entire period of detention shall be deducted from
the penalty herein imposed when the accused serves his
sentence.
For lack of sufficient evidence, accused Cristy Demapanag is
acquitted of the crime(s) charged in both cases. The Provincial
Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby
directed to release accused Cristy Demapanag from custody
unless he is being held for some other valid or lawful cause.
SO ORDERED.
SO ORDERED.10
Hence, this appeal.
The Ruling of the Court
Our review of the records of Criminal Case No. 2002-1777
convinces us that appellant is guilty of attempted murder and
not frustrated murder. We uphold appellants conviction in
Criminal Case No. 2001-1555 for murder, but modify the civil
indemnity awarded in Criminal Case No. 2001-1555, as well as
the award of moral and exemplary damages in both cases.
Justifying circumstance of self-defense
Appellants feeble attempt to invoke self-defense in both cases
was correctly rejected by the RTC and the CA-Cebu. This
Court, in People v. Damitan,11 explained that:
When the accused admits killing a person but pleads selfdefense, the burden of evidence shifts to him to prove by clear
and convincing evidence the elements of his defense.
However, appellants version of the incident was
uncorroborated. His bare and self-serving assertions cannot
prevail over the positive identification of the two (2) principal
witnesses of the prosecution.12
Appellants failure to present any other eyewitness to
corroborate his testimony and his unconvincing demonstration
of the struggle between him and Gregorio before the RTC lead

us to reject his claim of self-defense. Also, as correctly pointed

out by the CA-Cebu, appellants theory of self-defense is belied
by the fact that:
x x x The appellant did not even bother to report to the police
Gregorios alleged unlawful aggression and that it was
Gregorio who owned the gun, as appellant claimed. And, when
appellant was arrested the following morning, he did not also
inform the police that what happened to Gregorio was merely
accidental.13
Appellants claim that he did not know whether Gregorio was
hit when the shotgun accidentally fired is also implausible.
In contrast, we find that the Condes account of the incident is
persuasive. Both the CA-Cebu and the RTC found that the
testimonies of the Condes were credible and presented in a
clear and convincing manner. This Court has consistently put
much weight on the trial courts assessment of the credibility of
witnesses, especially when affirmed by the appellate court.14 In
People v. Mangune,15 we stated that:
It is well settled that the evaluation of the credibility of
witnesses and their testimonies is a matter best undertaken by
the trial court because of its unique opportunity to observe the
witnesses first hand and to note their demeanor, conduct, and
attitude under grilling examination. These are important in
determining the truthfulness of witnesses and in unearthing the
truth, especially in the face of conflicting testimonies. For,
indeed, the emphasis, gesture, and inflection of the voice are
potent aids in ascertaining the witness credibility, and the trial
court has the opportunity to take advantage of these aids.16
Since the conclusions made by the RTC regarding the
credibility of the witnesses were not tainted with arbitrariness
or oversight or misapprehension of relevant facts, the same
must be sustained by this Court.
Attempted and Frustrated Murder
Treachery was correctly appreciated by the RTC and CACebu. A treacherous attack is one in which the victim was not
afforded any opportunity to defend himself or resist the
attack.17 The existence of treachery is not solely determined by
the type of weapon used. If it appears that the weapon was
deliberately chosen to insure the execution of the crime, and to
render the victim defenseless, then treachery may be properly
appreciated against the accused.18
In the instant case, the Condes were unarmed when they were
shot by appellant. The use of a 12-gauge shotgun against two
unarmed victims is undoubtedly treacherous, as it denies the
victims the chance to fend off the offender.
We note, however, that appellant should be convicted of
attempted murder, and not frustrated murder in Criminal Case
No. 2002-1777.
Article 6 of the Revised Penal Code defines the stages in the
commission of felonies:

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.
In Serrano v. People,19 we distinguished a frustrated felony
from an attempted felony in this manner:
1.) In a frustrated felony, the offender has performed all the
acts of execution which should produce the felony as a
consequence; whereas in an attempted felony, the offender
merely commences the commission of a felony directly by
overt acts and does not perform all the acts of execution.
2.) In a frustrated felony, the reason for the nonaccomplishment of the crime is some cause independent of the
will of the perpetrator; on the other hand, in an attempted
felony, the reason for the non-fulfillment of the crime is a cause
or accident other than the offenders own spontaneous
desistance.20
In frustrated murder, there must be evidence showing that the
wound would have been fatal were it not for timely medical
intervention.21 If the evidence fails to convince the court that
the wound sustained would have caused the victims death
without timely medical attention, the accused should be
convicted of attempted murder and not frustrated murder.
In the instant case, it does not appear that the wound
sustained by Gregorio Conde was mortal. This was admitted
by Dr. Edwin Figura, who examined Gregorio after the shooting
incident:
Prosecutor Con-El:
Q: When you examined the person of Gregorio Conde, can
you tell the court what was the situation of the patient when
you examined him?
A: He has a gunshot wound, but the patient was actually
ambulatory and not in distress.

Since Gregorios gunshot wound was not mortal, we hold that

appellant should be convicted of attempted murder and not
frustrated murder. Under Article 51 of the Revised Penal Code,
the corresponding penalty for attempted murder shall be two
degrees lower than that prescribed for consummated murder
under Article 248, that is, prision correccional in its maximum
period to prision mayor in its medium period. Section 1 of the
Indeterminate Sentence Law provides:
x x x the court shall sentence the accused to an indeterminate
sentence the maximum term of which shall be that which, in
view of the attending circumstances, could be properly
imposed under the rules of the Revised Penal Code, and the
minimum which shall be within the range of the penalty next
lower to that prescribed by the Code for the offense.1wphi1
Thus, appellant should serve an indeterminate sentence
ranging from two (2) years, four (4) months and one (1) day of
prision correccional in its medium period to eight (8) years and
one (1) day of prision mayor in its medium period.
Award of damages
In light of recent jurisprudence, we deem it proper to increase
the amount of damages imposed by the lower court in both
cases. In Criminal Case No. 2001-1555, this Court hereby
awards P75,000.00 as civil indemnity23 andP30,000.00 as
exemplary damages.24 The award of P50,000.00 as moral
damages in the foregoing case is sustained. Appellant is also
liable to pay P40,000.00 as moral damages and P30,000.00 as
exemplary damages, in relation to Criminal Case No. 20021777.
WHEREFORE, we AFFIRM the 18 October 2011 Decision of
the Court of Appeals-Cebu in CA-G.R. CEB CR-HC No. 01000
with MODIFICATIONS. In Criminal Case No. 2002-1777, we
find that appellant Regie Labiaga is GUILTY of Attempted
Murder and shall suffer an indeterminate sentence ranging
from two (2) years, four (4) months and one (1) day of prision
correccional as minimum, to eight (8) years and one (1) day of
prision mayor as maximum, and pay P40,000.00 as moral
damages and P30,000.00 as exemplary damages. In Criminal
Case No. 2001-1555, appellant shall pay P75,000.00 as civil
indemnity, P50,000.00 as moral damages, and P30,000.00 as
exemplary damages.
SO ORDERED.

Valenzuela vs. People GR 160188 June 21, 2007

xxxx

Republic
SUPREME
Manila

of

Court (to the witness)

EN BANC

Q: The nature of these injuries, not serious?

G. R. No. 160188

A: Yes, Your Honor, not serious. He has also abrasion wounds

hematoma formation at the anterior aspect right shoulder.22

ARISTOTEL
vs.

the

Philippines
COURT

June 21, 2007

VALENZUELA

NATIVIDAD, petitioner,

PEOPLE OF THE PHILIPPINES and HON. COURT OF

APPEALS NACHURA, respondents.

grams, and three (3) additional cases of detergent, the goods

with an aggregate value of P12,090.00.9

DECISION

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

TINGA, J.:
This case aims for prime space in the firmament of our criminal
law jurisprudence. Petitioner effectively concedes having
performed the felonious acts imputed against him, but instead
insists that as a result, he should be adjudged guilty of
frustrated theft only, not the felony in its consummated stage of
which he was convicted. The proposition rests on a common
theory expounded in two well-known decisions 1 rendered
decades ago by the Court of Appeals, upholding the existence
of frustrated theft of which the accused in both cases were
found guilty. However, the rationale behind the rulings has
never been affirmed by this Court.
As far as can be told,2 the last time this Court extensively
considered whether an accused was guilty of frustrated or
consummated theft was in 1918, in People v. Adiao. 3 A more
cursory
treatment of the question was followed in 1929, in People v.
Sobrevilla,4 and in 1984, in Empelis v. IAC.5 This petition now
gives occasion for us to finally and fully measure if or how
frustrated theft is susceptible to commission under the Revised
Penal Code.
I.
The basic facts are no longer disputed before us. The case
stems from an Information6 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

After pleading not guilty on arraignment, at the trial, petitioner

and Calderon both claimed having been innocent bystanders
within the vicinity of the Super Sale Club on the afternoon of 19
May 1994 when they were haled by Lago and his fellow
security guards after a commotion and brought to the Baler
PNP Station. Calderon alleged that on the afternoon of the
incident, he was at the Super Sale Club to withdraw from his
ATM account, accompanied by his neighbor, Leoncio
Rosulada.11 As the queue for the ATM was long, Calderon and
Rosulada decided to buy snacks inside the supermarket. It was
while they were eating that they heard the gunshot fired by
Lago, leading them to head out of the building to check what
was
transpiring. As they were outside, they were suddenly
"grabbed" by a security guard, thus commencing their
detention.12 Meanwhile, petitioner testified during trial that he
and his cousin, a Gregorio Valenzuela, 13 had been at the
parking lot, walking beside the nearby BLISS complex and
headed to ride a tricycle going to Pag-asa, when they saw the
security guard Lago fire a shot. The gunshot caused him and
the other people at the scene to start running, at which point he
was apprehended by Lago and brought to the security office.
Petitioner claimed he was detained at the security office until
around 9:00 p.m., at which time he and the others were
brought to the Baler Police Station. At the station, petitioner
denied having stolen the cartons of detergent, but he was
detained overnight, and eventually brought to the prosecutors
office where he was charged with theft.14 During petitioners
cross-examination, he admitted that he had been employed as
a "bundler" of GMS Marketing, "assigned at the supermarket"
though not at SM.15
In a 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 Calderons appeal as abandoned

and consequently dismissed. Before the Court of Appeals,
petitioner argued that he should only be convicted of frustrated
theft since at the time he was apprehended, he was never
placed in a position to freely dispose of the articles
stolen.20 However, in its Decision dated 19 June 2003,21 the
Court of Appeals rejected this contention and affirmed
petitioners conviction.22 Hence the present Petition for
Review,23 which expressly seeks that petitioners conviction "be
modified to only of Frustrated Theft."24

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.

Even in his appeal before the Court of Appeals, petitioner

effectively conceded both his felonious intent and his actual
participation in the theft of several cases of detergent with a
total value of P12,090.00 of which he was charged. 25 As such,
there is no cause for the Court to consider a factual scenario
other than that presented by the prosecution, as affirmed by
the RTC and the Court of Appeals. The only question to
consider is whether under the given facts, the theft should be
deemed as consummated or merely frustrated.

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."

II.
In arguing that he should only be convicted of frustrated theft,
petitioner cites26 two decisions rendered many years ago by
the Court of Appeals: People v. Dio27 and People v.
Flores.28 Both decisions elicit the interest of this Court, as they
modified trial court convictions from consummated to frustrated
theft and involve a factual milieu that bears similarity to the
present case. Petitioner invoked the same rulings in his appeal
to the Court of Appeals, yet the appellate court did not
expressly consider the import of the rulings when it affirmed
the conviction.
It is not necessary to fault the Court of Appeals for giving short
shrift to the Dio and Flores rulings since they have not yet
been expressly adopted as precedents by this Court. For
whatever reasons,
the occasion to define or debunk the crime of frustrated theft
has not come to pass before us. Yet despite the silence on our
part, Dio and Flores have attained a level of renown reached
by very few other appellate court rulings. They are
comprehensively discussed in the most popular of our criminal
law annotations,29 and studied in criminal law classes as
textbook examples of frustrated crimes or even as definitive of
frustrated theft.
More critically, the factual milieu in those cases is hardly akin
to the fanciful scenarios that populate criminal law exams more
than they actually occur in real life. Indeed, if we finally say that
Dio and Flores are doctrinal, such conclusion could
profoundly influence a multitude of routine theft prosecutions,
including commonplace shoplifting. Any scenario that involves
the thief having to exit with the stolen property through a
supervised egress, such as a supermarket checkout counter or
a parking area pay booth, may easily call for the application of
Dio and Flores. The fact that lower courts have not hesitated
to lay down convictions for frustrated theft further validates that
Dio and Flores and the theories offered therein on frustrated
theft have borne some weight in our jurisprudential system.

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

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 latters consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to
deliver the same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the
property of another, shall remove or make use of the fruits or
object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field
where trespass is forbidden or which belongs to another and
without the consent of its owner, shall hunt or fish upon the
same or shall gather cereals, or other forest or farm products.
Article 308 provides for a general definition of theft, and three
alternative and highly idiosyncratic means by which theft may
be committed.41 In the present discussion, we need to concern

ourselves only with the general definition since it was under it

that the prosecution of the accused was undertaken and
sustained. On the face of the definition, there is only one
operative act of execution by the actor involved in theft the
taking of personal property of another. It is also clear from the
provision that in order that such taking may be qualified as
theft, there must further be present the descriptive
circumstances that the taking was with intent to gain; without
force upon things or violence against or intimidation of
persons; and it was without the consent of the owner of the
property.
Indeed, we have long recognized the following elements of
theft as provided for in Article 308 of the Revised Penal Code,
namely: (1) that there be taking of personal property; (2) that
said property belongs to another; (3) that the taking be done
with intent to gain; (4) that the taking be done without the
consent of the owner; and (5) that the taking be accomplished
without the use of violence against or intimidation of persons or
force upon things.42
In his commentaries, Judge Guevarra traces the history of the
definition of theft, which under early Roman law as defined by
Gaius, was so broad enough as to encompass "any kind of
physical handling of property belonging to another against the
will of the owner,"43 a definition similar to that by Paulus that a
thief "handles (touches, moves) the property of
another."44 However, with the Institutes of Justinian, the idea
had taken hold that more than mere physical handling, there
must further be an intent of acquiring gain from the object,
thus: "[f]urtum est contrectatio rei fraudulosa, lucri faciendi
causa vel ipsius rei, vel etiam usus ejus possessinisve."45 This
requirement of animo lucrandi, or intent to gain, was
maintained in both the Spanish and Filipino penal laws, even
as it has since been abandoned in Great Britain.46
In Spanish law, animo lucrandi was compounded with
apoderamiento, or "unlawful taking," to characterize theft.
Justice Regalado notes that the concept of apoderamiento
once had a controversial interpretation and application.
Spanish law had already discounted the belief that mere
physical taking was constitutive of apoderamiento, finding that
it had to be coupled with "the intent to appropriate the object in
order to constitute apoderamiento; and to appropriate means
to deprive the lawful owner of the thing."47 However, a
conflicting line of cases decided by the Court of Appeals ruled,
alternatively, that there must be permanency in the 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 Code52 as to when a particular felony is "not produced,"
despite the commission of all the acts of execution.
So, in order to ascertain whether the theft is consummated or
frustrated, it is necessary to inquire as to how exactly is the
felony of theft "produced." Parsing through the statutory
definition of theft under Article 308, there is one apparent
answer provided in the language of the law that theft is
already "produced" upon the "tak[ing of] personal property of
another without the latters consent."
U.S. v. 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 [accuseds] criminal liability,
which arose from the [accused] having succeeded in taking the
pocket-book.59
If anything, Sobrevilla is consistent with Adiao and the Spanish
Supreme Court cases cited in the latter, in that the fact that the
offender was able to succeed in obtaining physical possession
of the stolen item, no matter how momentary, was able to
consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions
cited therein contradict the position of petitioner in this case.
Yet to simply affirm without further comment would be
disingenuous, as there is another school of thought on when
theft is consummated, as reflected in the Dio and Flores
decisions.
Dio was decided by the Court of Appeals in 1949, some 31
years after Adiao and 15 years before Flores. The accused
therein, a driver employed by the United States Army, had
driven his truck into the port area of the South Harbor, to
unload a truckload of materials to waiting U.S. Army personnel.
After he had finished unloading, accused drove away his truck
from the Port, but as he was approaching a checkpoint of the
Military Police, he was stopped by an M.P. who inspected the
truck and found therein three boxes of army rifles. The
accused later contended that he had been stopped by four
men who had loaded the boxes with the agreement that they
were to meet him and retrieve the rifles after he had passed
the checkpoint. The trial court convicted accused of
consummated theft, but the Court of Appeals modified the
conviction, holding instead that only frustrated theft had been
committed.
In doing so, the appellate court pointed out that the evident
intent of the accused was to let the boxes of rifles "pass
through the checkpoint, perhaps in the belief that as the truck
had already unloaded its cargo inside the depot, it would be
allowed to pass through the check point without further
investigation or checking."60 This point was deemed material
and indicative that the theft had not been fully produced, for the
Court of Appeals pronounced that "the fact determinative of
consummation is the ability of the thief to dispose freely of the
articles stolen, even if it were more or less
momentary."61 Support for this proposition was drawn from a
decision of the Supreme Court of Spain dated 24 January 1888
(1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa
sustraida sea determinate de la consumacion del delito de
hurto es preciso que so haga en circunstancias tales que
permitan al sustractor la libre disposicion de aquella, siquiera
sea mas o menos momentaneamente, pues de otra suerte,
dado el concepto del delito de hurto, no puede decirse en
realidad que se haya producido en toda su extension, sin
materializar demasiado el acto de tomar la cosa ajena.62

Integrating these considerations, the Court of Appeals then

concluded:
This court is of the opinion that in the case at bar, in order to
make the booty subject to the control and disposal of the
culprits, the articles stolen must first be passed through the
M.P. check point, but since the offense was opportunely
discovered and the articles seized after all the acts of
execution had been performed, but before the loot came under
the final control and disposal of the looters, the offense can not
be said to have been fully consummated, as it was frustrated
by the timely intervention of the guard. The offense committed,
therefore, is that of frustrated theft.63
Dio thus laid down the theory that the ability of the actor to
freely dispose of the items stolen at the time of apprehension is
determinative as to whether the theft is consummated or
frustrated. This theory was applied again by the Court of
Appeals some 15 years later, in Flores, a case which according
to the division of the court that decided it, bore "no substantial
variance between the circumstances [herein] and in
[Dio]."64 Such conclusion is borne out by the facts in Flores.
The accused therein, a checker employed by the Luzon
Stevedoring Company, issued a delivery receipt for one empty
sea van to the truck driver who had loaded the purportedly
empty sea van onto his truck at the terminal of the stevedoring
company. The truck driver proceeded to show the delivery
receipt to the guard on duty at the gate of the terminal.
However, the guards insisted on inspecting the van, and
discovered that the "empty" sea van had actually contained
other merchandise as well.65 The accused was prosecuted for
theft qualified by abuse of confidence, and found himself
convicted of the consummated crime. Before the Court of
Appeals, accused argued in the alternative that he was guilty
only of attempted theft, but the appellate court pointed out that
there was no intervening act of spontaneous desistance on the
part of the accused that "literally frustrated the theft." However,
the Court of Appeals, explicitly relying on Dio, did find that the
accused was guilty only of frustrated, and not consummated,
theft.
As noted earlier, the appellate court admitted it found "no
substantial variance" between Dio and Flores then before it.
The prosecution in Flores had sought to distinguish that case
from Dio, citing a "traditional ruling" which unfortunately was
not identified in the decision itself. However, the Court of
Appeals pointed out that the said "traditional ruling" was
qualified by the words "is placed in a situation where [the actor]
could dispose of its contents at once." 66 Pouncing on this
qualification, the appellate court noted that "[o]bviously, while
the truck and the van were still within the compound, the
petitioner could not have disposed of the goods at once." At
the same time, the Court of Appeals conceded that "[t]his is
entirely different from the case where a much less bulk and
more common thing as money was the object of the crime,
where freedom to dispose of or make use of it is palpably less
restricted,"67 though no further qualification was offered what
the effect would have been had that alternative circumstance
been present instead.

Synthesis of the Dio and Flores rulings is in order. The

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

the checkpoint. Even though those facts clearly admit to

similarity with those in Dio, the Court of Appeals held that the
accused were guilty of consummated theft, as the accused
"were able to take or get hold of the hospital linen and that the
only thing that was frustrated, which does not constitute any
element of theft, is the use or benefit that the thieves expected
from the commission of the offense."76
In pointing out the distinction between Dio and Espiritu,
Reyes wryly observes that "[w]hen the meaning of an element
of a felony is controversial, there is bound to arise different
rulings as to the stage of execution of that felony."77 Indeed, we
can discern from this survey of jurisprudence that the state of
the law insofar as frustrated theft is concerned is muddled. It
fact, given the disputed foundational basis of the concept of
frustrated theft itself, the question can even be asked whether
there is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was
guilty of frustrated, and not consummated, theft. As we
undertake this inquiry, we have to reckon with the import of this
Courts 1984 decision in Empelis v. IAC.78

There is a ruling of the Court of Appeals that theft is

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

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.

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

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:

There are at least two other Court of Appeals rulings that are at
seeming variance with the Dio 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
75

In People v. Espiritu, 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

However, the crime committed is only frustrated qualified theft

because petitioners were not able to perform all the acts of
execution which should have produced the felony as a
consequence. They were not able to carry the coconuts away
from the plantation due to the timely arrival of the owner.80
No legal reference or citation was offered for this averment,
whether Dio, Flores or the Spanish authorities who may have
bolstered the conclusion. There are indeed evident problems
with this formulation in Empelis.
Empelis held that the crime was only frustrated because the
actors "were not able to perform all the acts of execution which
should
have
produced
the
felon
as
a
consequence."81 However, per Article 6 of the Revised Penal
Code, the crime is frustrated "when the offender performs all

the acts of execution," though not producing the felony as a

result. If the offender was not able to perform all the acts of
execution, the crime is attempted, provided that the nonperformance was by reason of some cause or accident other
than spontaneous desistance. Empelis concludes that the
crime was

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

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.

tomare las cosas muebles ajenas sin la voluntad de su dueo

ser castigado"82

For these reasons, we cannot attribute weight to Empelis as

we consider the present petition. Even if the two sentences we
had cited actually aligned with the definitions provided in Article
6 of the Revised Penal Code, such passage bears no reflection
that it is the product of the considered evaluation of the
relevant legal or jurisprudential thought. Instead, the passage
is offered as if it were sourced from an indubitable legal
premise so settled it required no further explication.
Notably, Empelis has not since been reaffirmed by the Court,
or even cited as authority on theft. Indeed, we cannot see how
Empelis can contribute to our present debate, except for the
bare fact that it proves that the Court had once deliberately
found an accused guilty of frustrated theft. Even if Empelis
were considered as a precedent for frustrated theft, its
doctrinal value is extremely compromised by the erroneous
legal premises that inform it, and also by the fact that it has not
been entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable
given that frustrated theft is viable in this jurisdiction.
Considering the flawed reasoning behind its conclusion of
frustrated theft, it cannot present any efficacious argument to
persuade us in this case. Insofar as Empelis may imply that
convictions for frustrated theft are beyond cavil in this
jurisdiction, that decision is subject to reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the
1870 Codigo Penal de Espaa was then in place. The
definition of the crime of theft, as provided then, read as
follows:
Son reos de hurto:
1. Los que con nimo de lucrarse, y sin volencia o intimidacin
en las personas ni fuerza en las cosas, toman las cosas
muebles ajenas sin la voluntad de su dueo.
2. Los que encontrndose una cosa perdida y sabiendo quin
es su dueo se la apropriaren co intencin de lucro.
3. Los daadores que sustrajeren o utilizaren los frutos u
objeto del dao causado, salvo los casos previstos en los
artculos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0; 608, nm.
1.0; 611; 613; Segundo prrafo del 617 y 618.

Notice that in the 1870 and 1995 definition of theft in the penal
code of Spain, "la libre disposicion" of the property is not an
element or a statutory characteristic of the crime. It does
appear that the principle originated and perhaps was fostered
in the realm of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form
in his 1926 commentaries on the 1870 Codigo Penal de
Espaa. Therein, he raised at least three questions for the
reader whether the crime of frustrated or consummated theft
had occurred. The passage cited in Dio was actually utilized
by Viada to answer the question whether frustrated or
consummated theft was committed "[e]l que en el momento
mismo de apoderarse de la cosa ajena, vindose sorprendido,
la arroja al suelo."83 Even as the answer was as stated in Dio,
and was indeed derived from the 1888 decision of the
Supreme Court of Spain, that decisions factual predicate
occasioning the statement was apparently very different from
Dio, for it appears that the 1888 decision involved an accused
who was surprised by the employees of a haberdashery as he
was abstracting a layer of clothing off a mannequin, and who
then proceeded to throw away the garment as he fled.84
Nonetheless, Viada does not contest the notion of frustrated
theft, and willingly recites decisions of the Supreme Court of
Spain that have held to that effect.85 A few decades later, the
esteemed Eugenio Cuello Caln pointed out the inconsistent
application by the Spanish Supreme Court with respect to
frustrated theft.
Hay frustracin cuando los reos fueron sorprendidos por las
guardias cuando llevaban los sacos de harino del carro que los
conducia a otro que tenan preparado, 22 febrero 1913;
cuando el resultado no tuvo efecto por la intervencin de la
policia situada en el local donde se realiz la sustraccin que
impidi pudieran los reos disponer de lo sustrado, 30 de
octubre 1950. Hay "por lo menos" frustracin, si existe
apoderamiento, pero el culpale no llega a disponer de la cosa,
12 abril 1930; hay frustracin "muy prxima" cuando el
culpable es detenido por el perjudicado acto seguido de
cometer la sustraccin, 28 febrero 1931. Algunos fallos han
considerado la existencia de frustracin cuando, perseguido el
culpable o sorprendido en el momento de llevar los efectos
hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11
marzo 1921; esta doctrina no es admissible, stos, conforme a
lo antes expuesto, son hurtos consumados.86
Ultimately, Cuello Caln attacked the very idea that frustrated
theft is actually possible:

La doctrina hoy generalmente sustentada considera que el

hurto se consuma cuando la cosa queda de hecho a la
disposicin del agente. Con este criterio coincide la doctrina
sentada ltimamente porla jurisprudencia espaola que
generalmente considera consumado el hurto cuando el
culpable coge o aprehende la cosa y sta quede por tiempo
ms o menos duradero bajo su poder. El hecho de que ste
pueda aprovecharse o no de lo hurtado es indiferente. El delito
no pierde su carcter de consumado aunque la cosa hurtada
sea devuelta por el culpable o fuere recuperada. No se
concibe la frustracin, pues es muy dificil que el que hace
cuanto es necesario para la consumacin del hurto no lo
consume efectivamente, los raros casos que nuestra
jurisprudencia, muy vacilante, declara hurtos frustrados son
verdaderos delitos consumados.87 (Emphasis supplied)
Cuello Calns submissions cannot be lightly ignored. Unlike
Viada, who was content with replicating the Spanish Supreme
Court decisions on the matter, Cuello Caln actually set forth
his own thought that questioned whether theft could truly be
frustrated, since "pues es muy dificil que el que hace cuanto es
necesario para la consumacin del hurto no lo consume
efectivamente." Otherwise put, it would be difficult to foresee
how the execution of all the acts necessary for the completion
of the crime would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is
no weighted force in scholarly thought that obliges us to accept
frustrated theft, as proposed in Dio and Flores. A final ruling
by the Court that there is no crime of frustrated theft in this
jurisdiction will not lead to scholastic pariah, for such a
submission is hardly heretical in light of Cuello Calns
position.
Accordingly, it would not be intellectually disingenuous for the
Court to look at the question from a fresh perspective, as we
are not bound by the opinions of the respected Spanish
commentators, conflicting as they are, to accept that theft is
capable of commission in its frustrated stage. Further, if we ask
the question whether there is a mandate of statute or
precedent that must compel us to adopt the Dio and Flores
doctrines, the answer has to be in the negative. If we did so, it
would arise not out of obeisance to an inexorably higher
command, but from the exercise of the function of statutory
interpretation that comes as part and parcel of judicial review,
and a function that allows breathing room for a variety of
theorems in competition until one is ultimately adopted by this
Court.
V.
The foremost predicate that guides us as we explore the
matter is that it lies in the province of the legislature, through
statute, to define what constitutes a particular crime in this
jurisdiction. It is the legislature, as representatives of the
sovereign people, which determines which acts or combination
of acts are criminal in nature. Judicial interpretation of penal
laws should be aligned with what was the evident legislative
intent, as expressed primarily in the language of the law as it
defines the crime. It is Congress, not the courts, which is to
define a crime, and ordain its punishment.88 The courts cannot

arrogate the power to introduce a new element of a crime

which was unintended by the legislature, or redefine a crime in
a manner that does not hew to the statutory language. Due
respect for the prerogative of Congress in defining
crimes/felonies constrains the Court to refrain from a broad
interpretation of penal laws where a "narrow interpretation" is
appropriate. "The Court must take heed of language, legislative
history and purpose, in order to strictly determine the wrath
and breath of the conduct the law forbids."89
With that in mind, a problem clearly emerges with
the Dio/Flores dictum. The ability of the offender to freely
dispose of the property stolen is not a constitutive element of
the crime of theft. It finds no support or extension in Article 308,
whether as a descriptive or operative element of theft or as the
mens rea or actus reus of the felony. To restate what this Court
has repeatedly held: the elements of the crime of theft as
provided for in Article 308 of the Revised Penal Code are: (1)
that there be taking of personal property; (2) that said property
belongs to another; (3) that the taking be done with intent to
gain; (4) that the taking be done without the consent of the
owner; and (5) that the taking be accomplished without the use
of violence against or intimidation of persons or force upon
things.90
Such factor runs immaterial to the statutory definition of theft,
which is the taking, with intent to gain, of personal property of
another
without
the
latters
consent.
While
the Dio/Flores dictum is considerate to the mindset of the
offender, the statutory definition of theft considers only the
perspective of intent to gain on the part of the offender,
compounded by the deprivation of property on the part of the
victim.
For the purpose of ascertaining whether theft is susceptible of
commission in the frustrated stage, the question is again, when
is the crime of theft produced? There would be all but certain
unanimity in the position that theft is produced when there is
deprivation of personal property due to its taking by one with
intent to gain. Viewed from that perspective, it is immaterial to
the product of the felony that the offender, once having
committed all the acts of execution for theft, is able or unable
to freely dispose of the property stolen since the deprivation
from the owner alone has already ensued from such acts of
execution. This conclusion is reflected in Chief Justice Aquinos
commentaries, as earlier cited, that "[i]n theft or robbery the
crime is consummated after the accused had material
possession of the thing with intent to appropriate the same,
although his act of making use of the thing was frustrated."91
It might be argued, that the ability of the offender to freely
dispose of the property stolen delves into the concept of
"taking" itself, in that there could be no true taking until the
actor obtains such degree of control over the stolen item. But
even if this were correct, the effect would be to downgrade the
crime to its attempted, and not frustrated stage, for it would
mean that not all the acts of execution have not been
completed, the "taking not having been accomplished."
Perhaps this point could serve as fertile ground for future
discussion, but our concern now is whether there is indeed a
crime of frustrated theft, and such consideration proves

ultimately immaterial to that question. Moreover, such issue will

not apply to the facts of this particular case. We are satisfied
beyond reasonable doubt that the taking by the petitioner was
completed in this case. With intent to gain, he acquired
physical possession of the stolen cases of detergent for a
considerable period of time that he was able to drop these off
at a spot in the parking lot, and long enough to load these onto
a taxicab.
Indeed, we have, after all, held that unlawful taking, or
apoderamiento, is deemed complete from the moment the
offender gains possession of the thing, even if he has no
opportunity to dispose of the same.92 And long ago, we
asserted in People v. Avila:93
x x x [T]he most fundamental notion in the crime of theft is the
taking of the thing to be appropriated into the physical power of
the thief, which idea is qualified by other conditions, such as
that the taking must be effected animo lucrandi and without the
consent of the owner; and it will be here noted that the
definition does not require that the taking should be effected
against the will of the owner but merely that it should be
without his consent, a distinction of no slight importance.94
Insofar as we consider the present question, "unlawful taking"
is most material in this respect. Unlawful taking, which is the
deprivation of ones personal property, is the element which
produces the felony in its consummated stage. At the same
time, without unlawful taking as an act of execution, the
offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under
Article 308 of the Revised Penal Code, theft cannot have a
frustrated stage. Theft can only be attempted or consummated.
Neither Dio nor Flores can convince us otherwise. Both fail to
consider that once the offenders therein obtained possession
over the stolen items, the effect of the felony has been
produced as there has been deprivation of property. The
presumed inability of the offenders to freely dispose of the
stolen property does not negate the fact that the owners have
already been deprived of their right to possession upon the
completion of the taking.
Moreover, as is evident in this case, the adoption of the rule
that the inability of the offender to freely dispose of the stolen
property frustrates the theft would introduce a convenient
defense for the accused which does not reflect any legislated
intent,95 since the Court would have carved a viable means for
offenders to seek a mitigated penalty under applied
circumstances that do not admit of easy classification. It is
difficult to formulate definite standards as to when a stolen item
is susceptible to free disposal by the thief. Would this depend
on the psychological belief of the offender at the time of the
commission of the crime, as implied in Dio?
Or, more likely, the appreciation of several classes of factual
circumstances such as the size and weight of the property, the
location of the property, the number and identity of people
present at the scene of the crime, the number and identity of
people whom the offender is expected to encounter upon

fleeing with the stolen property, the manner in which the stolen
item had been housed or stored; and quite frankly, a whole lot
more. Even the fungibility or edibility of the stolen item would
come into account, relevant as that would be on whether such
property is capable of free disposal at any stage, even after the
taking has been consummated.
All these complications will make us lose sight of the fact that
beneath all the colorful detail, the owner was indeed deprived
of property by one who intended to produce such deprivation
for reasons of gain. For such will remain the presumed fact if
frustrated theft were recognized, for therein, all of the acts of
execution, including the taking, have been completed. If the
facts establish the non-completion of the taking due to these
peculiar circumstances, the effect could be to downgrade the
crime to the attempted stage, as not all of the acts of execution
have been performed. But once all these acts have been
executed, the taking has been completed, causing the unlawful
deprivation of property, and ultimately the consummation of the
theft.
Maybe the Dio/Flores rulings are, in some degree, grounded
in common sense. Yet they do not align with the legislated
framework of the crime of theft. The Revised Penal Code
provisions on theft have not been designed in such fashion as
to accommodate said rulings. Again, there is no language in
Article 308 that expressly or impliedly allows that the "free
disposition of the items stolen" is in any way determinative of
whether the crime of theft has been produced. Dio itself did
not rely on Philippine laws or jurisprudence to bolster its
conclusion, and the later Flores was ultimately content in
relying on Dio alone for legal support. These cases do not
enjoy the weight of stare decisis, and even if they did, their
erroneous appreciation of our law on theft leave them
susceptible to reversal. The same holds true of Empilis, a
regrettably stray decision which has not since found favor from
this Court.
We thus conclude that under the Revised Penal Code, there is
no crime of frustrated theft. As petitioner has latched the
success of his appeal on our acceptance of the Dio and
Flores rulings, his petition must be denied, for we decline to
adopt said rulings in our jurisdiction. That it has taken all these
years for us to recognize that there can be no frustrated theft
under the Revised Penal Code does not detract from the
correctness of this conclusion. It will take considerable
amendments to our Revised Penal Code in order that
frustrated theft may be recognized. Our deference to Viada
yields to the higher reverence for legislative intent.
WHEREFORE,
petitioner.

the petition

is

DENIED. Costs

against

SO ORDERED.

People vs.
Republic
SUPREME
Manila

Quinanola
of

GR

126148
the

May

5, 1999
Philippines
COURT

THIRD DIVISION
G.R. No. 126148 May 5, 1999

Whenever the crime of rape is committed with the use of a

deadly weapon or by two or more persons, the penalty shall
be reclusion perpetua to death.

PEOPLE
OF
THE
PHILIPPINES,
plaintiff-appellee,
vs.
AGAPITO QUIANOLA y ESCUADRO and EDUARDO
ESCUADRO y FLORO, accused-appellants.

When by reason or on the occasion of the rape, the victim has

become insane, the penalty shall be death.

VITUG, J.:

When by reason or on the occasion of the rape, a homicide is

committed, the penalty shall be death.

In People vs. Orita, 1 this Court has declared that the crime of
frustrated rape is non-existent. The pronouncement,
notwithstanding, on 01 March 1996, more than six years after
the promulgation of the decision in Orita, the Regional Trial
Court ("RTC") of Cebu City, Branch 14, has convicted accused
Agapito Quianola y Escuadro and Eduardo Escuadro y Floro,
herein appellants, of the crime of frustrated rape, principally on
the strength of People vs. Eriia 2 which this Court, in
the Orita decision, has considered to be a "stray" decision. The
1st March 1996 decision of the RTC of Cebu City imposing
upon each of the accused the penalty ofreclusion perpetua "of
Forty (40) Years," has been brought up by them to this Court.
The appeal opens up the whole case for review.
The information, dated 06 April 1994, charging the two
accused with the crime of rape reads:
That on or about the 5th day of March, 1994, at about 11:30
o'clock in the evening, more or less, at Barangay Tangil,
Municipality of Dumanjug, Province of Cebu, Philippines, and
within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and mutually
helping one another, with lewd design and by means of force
and intimidation, did then and there willfully, unlawfully and
feloniously lie and succeed in having carnal knowledge of the
offended party Catalina Carciller, fifteen (15) years of age,
against her will and consent.
CONTRARY TO LAW. 3
Already in force and effect at the time of the averred
commission of the crime are the provisions of Republic Act No.
7659, amending the Revised Penal Code, which define and
penalize rape, as follows:
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 or is
demented.
The crime of rape shall be punished by reclusion perpetua.

When the rape is attempted or frustrated and a homicide is

committed by reason or on the occasion thereof, the penalty
shall be reclusion perpetua to death.

The death penalty shall also be imposed if the crime of rape is

committed with any of the following attendant circumstances:
1. when the victim is under eighteen (18) years of age and the
offender is a parent, ascendant, step-parent, guardian, relative
by consanguinity or affinity within the third civil degree, or the
common-law-spouse of the parent of the victim.
2. when the victim is under the custody of the police or military
authorities.
3. when the rape is committed in full view of the husband,
parent, any of the children or other relatives within the third
degree of consanguinity.
4. when the victim is a religious or a child below seven (7)
years old.
5. when the offender knows that he is afflicted with Acquired
Immune Deficiency Syndrome (AIDS) disease.
6. when committed by any member of the Armed Forces of the
Philippines or the Philippine National Police or any law
enforcement agency.
7. when by reason or on the occasion of the rape, the victim
has suffered permanent physical mutilation.
Duty assisted by counsel the two accused pleaded not guilty to
the crime charged. During the trial that ensued, the prosecution
and the defense presented respective versions of the case.
The story of prosecution was the first to be told.
Catalina Carciller her cousin 15-year-old Rufo Ginto and
another male companion named Richard Diaz, went to attend
a dance at around ten o'clock in the evening of 05 March 1994
in Sitio Bangag Tangil, Dumanjug, Cebu. Catalina born on 09
November 1978, 4 was just then fifteen (15) years and four (4)
months old. She was a student at the Bito-on National
vocational School at Dumanjug Cebu. About an hour later they
left the party and were soon on their way home. The three
unsuspecting youngsters stopped momentarily to rest at a
waiting shed beside the Tangil Elementary School. Accused
Agapito Quianola a.k.a. "Petoy" and accused Eduardo
Escuadro a.k.a. "Botiquil" who were both armed with guns
suddenly turned up Quianola beaming his flashlight at the trio
while Escuadro stood by focused his attention on Catalina.

Quionala announced that he and Escuardo were members of

New People's Army ("NPA"). Quionala instructed Escuadro to
take care of the male companions of Catalina while he
(Quianola) held the latter at gunpoint.

conducted the physical examination of Catalina on 07 March

1994, showed that there was "no evidence of extragenital
physical injury noted on the body of the Subject." 9 The genital
examination yielded the following findings on the victim:

Escuadro brought Diaz and Ginto outside the waiting shed

area. He ordered the duo to lie face down on the ground and
then urinated at them. While Escuadro was fixing the zipper of
his pants, Diaz and Ginto were bale to escape and ran away.
Meanwhile Quianola with his gun pointed at Catalina, forcibly
brought her towards the nearby school. Catalina heard a
gunfire but Quianola assured her that it was only an exploding
firecracker. When Escuadro again showed up, Catalina asked
about her two friends. Quianola replied that he had ordered
them to go home. Catalina begged that she herself be allowed
to leave. Pretending to agree, they walked the path towards
the road behind the school. Then, unsuspectingly, Quianola
forced Catalina to sit on the ground. She resisted but
Quianola, pointing his gun at her, warned her that if she would
not accede to what he wanted he would kill her. Catalina
started to cry. Quianola told Escuadro to remove her denim
pants. Catalina struggled to free herself from Escuadro's hold
but to no avail. Escuadro ultimately succeeded in undressing
her. Quianola unzipped his pants and laid on top of her while
Escuadro held her legs Quianola "started to pump, to push
and pull" 5 even as Catalina still tried desperately to free herself
from him. She felt his organ "on the lips of (her)
genitalia." 6 When Quianola had satisfied his lust, Escuadro
took his turn by placing himself on top of Catalina. Catalina
could feel the sex organ of Escuadro "on the lips of (her)
vulva" 7 while he made a push and pull movement. Quianola,
who stood by, kept on smoking a cigarette.

Pubic hairs, fully grown, moderately dense. Labiae mejora and

minora, both coaptated. Fourchette, tense. Vestibular mucosa,
pinkish. Hymen, moderately thick, wide, intact. Hymenal orifice,
annular, admits a tube 1.8 cms. in diameter with moderate
resistance.
Vaginal
walls,
tight
and
rogusities,
prominent. 10 (Emphasis supplied.)

Escuadro and Quianola scampered immediately after

Catalina's ordeal. Failing to find her pair of pants and panty.
Catalina was left wearing her T-shirt and brassieres. Catalina
just then sat down, not knowing what to do, until she finally
started to run home fearing that she might be followed. Upon
reaching home, Catalina went upstairs and, afraid that the
culprit would still come after her, hid herself behind the door.
Baffled by Catalina's strange behavior, her mother and her
elder sister took turns interrogating her. Catalina finally said
that she was raped but she would not reveal the names of the
persons who had committed the dastardly act because of their
threat.1wphi1.nt
Guillermo Zozobrado learned from his wife, Catalina's sister,
that Catalina had been raped. He promptly repaired to the
municipal hall of Dumanjug to report the crime. Policemen
were immediately dispatched to the Carcillers' residence. Still
in a state of shock, Catalina initially kept mum about it; later,
when the police officers returned at daytime, she was able to
respond to questions and to disclose that "Petoy," referring to
Agapito Quianola, and "Botiquil," the other accused Eduardo
Escuadro, were the persons who ravished her. The officers
later invited her to the police station to identify a suspect whom
she positively identified to be "Botiquil" or Eduardo Escuadro.
Living Case Report No. 94-MI-7, 8 prepared by Dr. Tomas P.
Refe, medico-legal officer of the National Bureau of
Investigation ("NBI") of Region 7, Central Visayas, who

The report concluded that the hymenal orifice, about 1.8 cms.
in diameter, was "so small as to preclude complete penetration
of an average-size adult penis in erection without producing
laceration." 11
Against the evidence submitted by the prosecution, the
accused, in their defense, interposed alibi, ill motive on the part
of an "uncle" of the complainant, and insufficient identification.
Accused Agapito Quianola, a member of the Philippine
National Police stationed at Naga, Cebu, testified that it was
his day-off on 05 March 1994. At about 8:30 a.m., he and his
wife, Leticia, who had just arrived in Naga from Cebu City,
proceeded to the house of his parents in Panla-an, Dumanjug,
to attend to the construction of their unfinished house.
Quianola helped Vidal Laojan and Nicasio Arnaiz in
cementing the kitchen floor of their house. The work was
finished at around 11:00 o'clock in the evening. After Vidal and
Nicasio had gone home, Quianola went to bed with his wife
around midnight until the following morning of 06 March 1994.
He denied having been in the company of his co-accused,
Escuadro a.k.a. "Botiquil," at any time during the whole day
and night of 05 March 1994. According to him, Guillermo
Zozobrado, Catalina's brother-in-law, concocted the rape
charge to get even with him because of an incident in August
1993 at a fiesta dance in upper Tangil, Panla-an, when George
Camaso, the husband of his sister Jinga, got into trouble with
Samuel Escuadro. Quianola tried to pacify George Camaso
who was then drunk but Camaso suddenly hit him. He parried
the blow and slapped Camaso on the face. Zozobrado joined
the fray and tried to hit Quianola but because Zozobrado was
drunk, he stumbled when Quianola had pushed him. 12 He
admitted that he had no misunderstanding of any kind with the
complainant and her parents themselves.
Leticia Quianola the wife of accused Agapito Quianola,
testified to attest to her husband's "good moral character" and
to corroborate his testimony. Leticia said that after the workers
had left their house at around midnight she and appellant
talked for a while and then made love. Vidal Laojan the
carpenter was presented to state that Quianola was at home
helping the carpenters until past 11 o'clock on the night of the
incident. Nicasio Arnaiz a farmer and store cutter added that
work in the Quianola's house had started late in the morning
of 05 March 1994 since they still waited for Quianola and his
wife Patsy to arrive. Work in the house, he said had stopped at
about 11 o'clock that night.

Accused Eduardo Escuadro a.k.a. "Botiquil" declared that at

about seven o'clock in the evening of 05 March 1994 he and
Pablito Cuizon, Jr., went fishing in Tangil Dumanjug Cebu until
about ten o'clock that evening. After partaking of supper at
around 11:30 p.m., they had a drinking spree and went to bed
at 12:00 midnight waking up at 6:30 a.m. the following day. He
denied having been in the company of Quianola and insisted
that the rape charge had been the result of a mere mistaken
identity. Pablito Cuizon, Jr., corroborated Escuadro's story
about their being together up until they parted company after a
drinking spree.
The defense also presented the two police officers, PO2
William Beltran and SPO2 Liberato Mascarinas, Jr., who took
part in the investigation of the crime, and Margarito Villaluna, a
suspect at the early stages of the police investigation who was
in the frequent company of the accused. According to PO2
Beltran, barangay tanods Gilly and George Zozobrado
reported the rape incident to him at midnight of 05 March 1994.
He entered the report in the "temporary blotter because the
suspect was unknown then." 13 Accompanied by the two
tanods, he went to the residence of the victim and when he
asked Catalina if she was able to recognize the malefactors,
she kept silent and continued crying. SPO2 Liberato
Mascarinas, Jr., asserted that, in the early morning of 06 March
1994, Gilly and George Zozobrado went to the police station
and named "Pitoy Quianola, Margarito Villaluna and Batiquil
or Escuadro" as being the suspects in the rape incident. While
on their way to the latter's respective residences, the team met
Catalina Carciller and party who were themselves about to
repair to the police headquarters. Mascarinas asked Catalina
about the identities of the rapists. She named "Pitoy
Quianola" but said she did not know the names of "the other
persons" although she could recognize them by face. Botiquil
was later brought to the police station Pitoy Quianola by that
time had already gone to Naga. Margarito Villaluna declared
that he had been in Panla-an, Negros Oriental, from 05 March
1994 until 09 March 1994 until harvesting corn. His sister,
Mercy Villaluna testified that, in the morning of 06 March 1994,
policemen in the company of barangay tanods including Gilly
Zozobrado and his son Marcelo, came to their house looking
for her brother Margarito. Shortly after the group had left,
another policeman, in the company of one Erwin Quirante also
came looking for her brother. The arrival of the policemen
prompted her to verify from the Coast Guard whether her
brother had indeed left for Negros Oriental. She was told that
her brother was in the boat that departed for Negros in early
dawn of 02 March 1994. Still unsatisfied with the result of her
queries, Mercy went to Guinholngan where she met Margarito.
Following the trial and submission of the case for decision, the
court
a quo, 14 on 01 March 1996, found the two accused guilty
beyond reasonable doubt of the crime of "frustrated rape" and
sentenced them accordingly; thus:
WHEREFORE, premises considered, the Court hereby finds
guilty beyond reasonable doubt the two accused Agapito
"Petoy" Quianola and Eduardo Escuadro, alias "Batiquil", as
principals by direct participation and indispensable cooperation
of the frustrated rape of the complaining witness Catalina

"Cathy" Carciller, and considering the attendance in the

commission of the crime of the six (6) aggravating
circumstances aforementioned, not offset by any mitigating
circumstance, hereby sentences these two accused
individually to Reclusion Perpetua of Forty (40) Years, plus all
the accessory penalties prescribed by law, and to pay the
offended party civil indemnity in the amount of P50,000.00
each.
The Court also hereby recommends that under no
circumstance should the two accused be granted parole or
conditional or absolute pardon, in view of the extreme moral
turpitude and perversity which they exhibited in the
commission of the crime not until they shall have served at
least thirty (30) years of the full range of forty (40) years
of reclusion perpetua meted out against them in this case.
They should be interdicted for that length of time from the
usual and normal liasons (sic) and dealings with their
fellowmen and their community so as to protect the latter from
their pernicious and insidious examples. This is the most
generous and charitable recommendation that the Court can
make for these two malefactors, short of imposing upon them
the supreme penalty of death, which the Court in other times
and conditions might have been compelled, as a matter of
inexorable duty, to mete out against them, in obedience to the
implacable and peremptory demands and dictates of retributive
justice.
Costs shall also be taxed against the two accused.
SO ORDERED. 15
The trial court ruled that the accused were liable for the crime
of frustrated rape "with an eye to extending to the two accused
the benefit of the principle that in case of doubt criminal justice
naturally leans in favor of the milder form of penalty" 16 but that,
because of the existence of "at least six (6) aggravating
circumstances, 17 not
offset
by
any
mitigating
circumstance," 18 the accused should each be meted the
penalty of reclusion perpetua. It explained:
Now, the crime of rape had it been consummated and had it
been committed with the attendance of the above-mentioned
aggravating circumstances, with absolutely no offsetting
mitigating circumstances, ought to be punished with the
mandatory penalty of death under the pertinent provisions of
Section 11 and 23 of Republic Act No. 7659, which amended
Article 335 of the Revised Penal Code, and further amplified
the aggravating circumstances enumerated in Article 14 of the
same code. But because the crime committed here is "merely"
frustrated rape for the reasons heretofore discussed, attended
by the aforementioned six aggravating circumstances, not
offset by even one mitigating circumstance, the proper penalty
to be imposed upon the two principals, the two accused herein,
both co-conspirators, by direct participation and indispensable
cooperation, of the frustrated rape, should be one degree lower
than the indivisible afflictive penalty of death, which is also the
indivisible afflictive penalty ofreclusion perpetua which, under
Section 21 of the amendatory statute, shall range from twenty
years and one day to forty years. 19

In their appeal to this court, the two convicted accused

interposed the following assignment of errors:
I. THE COURT ERRED IN DISREGARDING THE
INCONSISTENCIES OF THE PROSECUTION WITNESSES
WHICH IF THOROUGHLY CONSIDERED COULD HAVE
ALTERED THE DECISION IN FAVOR OF THE ACCUSED.
II. THE COURT ERRED IN BELIEVING THE TESTIMONY OF
COMPLAINING WITNESS CARCILLER EVEN IF THE SAME
WERE CLOUDED WITH GRAVE INCONSISTENCIES.
III. THE COURT ERRED BY DISREGARDING THE
TESTIMONIES OF ACCUSED AND BY DISMISSING IT AS
WEAK ALIBIS.
IV. THE COURT ERRED IN REFUSING TO CONSIDER THE
REBUTTAL EVIDENCE OF DEFENSE WITNESSES EVEN IF
THE SAME WERE NOT CONTROVERTED.
V. THE COURT ERRED IN FAILING TO GIVE WEIGHT TO
THE TESTIMONIES OF THE POLICEMEN WHICH WERE
UNCONTROVERTED AND WITH PRESUMPTION OF
REGULARITY IN THE PERFORMANCE OF DUTIES.
VI. THE COURT ERRED IN FINDING THE ACCUSED GUILTY
OF FRUSTRATED RAPE AND SENTENCING THEM TO 40
YEARS of RECLUSION PERPETUA. 20
In reviewing rape cases, this Court must again say that it has
been continually guided by the principles (a) that an accusation
of rape can be made with facility; it is difficult to prove, but
more difficult for the person accused, though innocent, to
disprove; (b) that in view of the intrinsic nature of the crime
which usually involves only two persons, the testimony of the
complainant must be scrutinized with extreme caution; and (c)
that the evidence for the prosecution must stand or fall on its
own merits and cannot be allowed to draw strength from the
weakness of the evidence of the defense. 21 Expectedly, courts
would scrupulously examine the testimony of the complainant
with the thought always in mind that the conviction of the
accused would have to depend heavily on the credibility of the
offended woman. It is not much different in this instance for, at
bottom, appellants assail the credibility of the prosecution
witnesses, particularly that of the complainant, in seeking a
reversal of the judgment of conviction.
The doctrine, then again, is that the findings of the trial court on
credibility are entitled to highest respect and will not be
disturbed on appeal in the absence of any clear showing that
the trial court has "overlooked, misunderstood or misapplied
facts or circumstances of weight and substance" that could
have consequential effects. The stringency with which
appellate tribunals have observed this rule is predicated on the
undisputed vantage of the trial court in the evaluation and
appreciation of testimonial evidence. 22
In assailing Catalina's credibility, as against the assessment
made by the trial court which has described the victim's
testimony to be impressed with "candor, spontaneity and
naturalness," appellants theorize that the sexual intercourse, if
indeed true, could have only been committed against Catalina

in a sitting position, contrary to her declaration of having been

made to lie on the ground because her T-shirt, marked Exhibit
E, is "not tainted with mud at all especially the back if she were
made to lie down." 23 The Court finds this so-called incongruity
committed by the complainant to a feeble attempt to discredit
her testimony. The Court is convinced of the sexual assault
made against her. Here follows the testimony of Catalina on
this score.
Q You said that you were forced by Agapito Quianola to sit
down, where were you forced to sit down, in what particular
place or area?
A Just behind the back of the school.
Q You were forced to sit down on the ground?
A Yes.
Q In effect did you sit down as ordered by him?
A I resisted.
COURT:
Q How did you resist?
A I said I will not sit down.
TRIAL PROS. NAZARENO:
Q What did Agapito Quianola do, if any, when you resisted?
A He pointed his gun to me.
Q When he pointed a gun at you, referring to Agapito
Quianola, what did he say?
A He said that if I will not accede to what he wanted me to do
and if I will shout, he will kill me.
Q What did you do when you heard those words coming from
Agapito Quianola?
A I cried.
Q When you cried what did Agapito Quianola do, if any?
A He ordered Eduardo Escuadro to remove my pants and
panty.
COURT
Q Why what were you wearing at that time?
A Pants.
Q What kind of pants?
A Denim.
TRIAL PROS. NAZARENO

Q Now, after Agapito Quianola ordered Eduardo Escuadro to

remove your pants and panty what did Eduardo Escuadro do, if
any?

Q When Agapito Quianola lay on top of you and made a push

and pull movement, do you mean to say that he inserted his
penis into your vagina?

A He did what Agapito Quianola commanded him.

A I felt something hard on the lips of my genitals.

COURT:

Q What is this something hard that you felt that touched the
lips of your vagina or vulva?

Q How about you, what (sic) were you doing at that time?
A I cried and tried to free myself.
TRIAL PROS. NAZARENO
Q Now, when Eduardo Escuadro removed your pants and
panty where was Agapito Quianola and what did Agapito
Quianola do?
A He unzipped his pants.
Q After that what happened?
In effect, were your pants and panty removed by Eduardo
Escuadro?
A Yes.
Q Now, you said Agapito Quianola opened his fly or unzipped
his pants, when Agapito Quianola already unzipped his pants,
what did he do?
A He approached me and lay on top of me.
Q When Agapito Quianola approached you and laid on top of
you, what did Eduardo Escuadro do?
A He was holding on to my legs.
Q Then what happened after that?
A Agapito Quianola started to pump, to push and pull.

A His organ or penis.

Q When Agapito Quianola unzipped his pants, did you see his
penis?
A Yes.
Q You also said that Eduardo Escuadro took his turn and laid
on top of you and made a push and pull on you, specifically
what did Eduardo Escuadro do?
A The same as Agapito did, he was doing the push and pull
movement.
Q What did you feel when Eduardo Escuadro was already on
top of you and made a push and pull on you?
A I held my breath.
Q Did you see the penis Eduardo Escuadro?
A No.
Q Now, did you feel that the penis of Escuadro inserted into
your vagina?
A I felt it on the lips of my vulva. 24
The fact that she must have been lying down when violated
has even more been made clear by the defense on crossexamination. Thus:

Q What did you do when Agapito Quianola was already on

top of you and made a push and pull on you?

Q Did you say any testimony in the direct that you were on the
ground at the time when you were raped by these two
accused?

A I struggled to free myself.

A They pointed a gun at me and ordered me to lie down.

Q After that what happened when Agapito Quianola was

already on top of you and kept on making a push and pull?

Q Lie on the ground?

A Eduardo Escuadro took his turn.

Q What do you mean by took his turn, please specify what did
Escuadro do? He did what Agapito had just done to you?
COURT:
Q What did Agapito Quianola do to you actually?
A He lay on top of me and did a push and pull movement.
TRIAL PROS. NAZARENO:

A Yes. 25
And on why her T-shirt was no longer soiled with mud when
presented in court, Catalina creditably explained that when it
was offered in evidence, she had already dusted and rid it of
grass particles. At all events, whether appellants spent their
lust on Catalina in a sitting position or lying down would not be
of any real moment for what remained clear, established rather
convincingly by the prosecution, was that appellants had
forced carnal knowledge of the victim.
The reliance being made by appellants on the affidavit of
Catalina in order to discredit her is likewise futile. The Court
has consistently ruled that discrepancies between the

statement of an affiant in an affidavit and those made on the

witness stand do not necessary downgrade testimonial
evidence. Ex parte affidavits are usually incomplete and
frequently prepared by an administrating officer and cast in the
latter's language and understanding of what the affiant has
said. Quite frequently, the affiant would simply sign the affidavit
after it has been read to him or to her. 26
Not much differently could be said of Catalina's identification of
appellants as being her ravishers. On the witness stand,
Catalina explained that while she gave appellant Escuadro's
nickname "Botiquil" to the investigating police officer, the latter
did not mention that name in the affidavit because, according
to the officer, the affidavit was merely a "shortcut". In her
testimony, she was categorical that she had known appellants
even before the rape incident. She knew that appellant
Quianola was a policeman and a "popular maldito" (nasty) in
the locality. 28 Catalina knew that appellant Escuadro, a
resident of Punla-an far from her own abode, was commonly
known as "Batiquil" (Botiquil). She could not have been
mistaken in the identification of the culprits since appellants
themselves held a flashlight which they used that added to the
illumination shed by a fluorescent lamp and two bulbs on the
side of a house only some meters away.
As regards the allegation of appellants that the testimony of
Catalina contradicted in certain respects that of prosecution
witness Rufo Ginto, suffice it to say that the testimony of Rufo
Ginto (who was noted by the trial court not to be "an intelligent
witness" 29) was merely corroborative in nature and neither
dealt with the actual commission of the crime nor delved on
material points.
Catalina's candid and straightforward narration of the two
sexuals assaults perpetrated on her on the night of the incident
unmistakably deserves credence. It is unbelievable that a
young barrio lass would concoct a tale of defloration publicly
admit having been ravished and her honor tainted allow the
examination of her private parts, and undergo all the trouble
and inconvenience not to mention the trauma and scandal of a
public trial had she not in fact been raped and truly moved to
protect and preserve her honor as well as to obtain justice, for
the wicked acts committed against her. 30 There is no plausible
reason why Catalina should testify against appellants, imputing
upon them so grave a crime as rape if it did not happen. This
Court has consistently held that where there is no evidence to
show any dubious reason or improper motive why a
prosecution witness should testify falsely against the accused
or implicate him in a serious offense, the testimony deserves
faith and credit. 31 So, also, the Court has repeatedly said that
the lone testimony of the victim in a rape case, if credible, is
enough
to
sustain
a
conviction. 32
The positive identification of appellants as being the
perpetrators of the crime effectively effaces their alibi.33 The
rule is that affirmative testimony is far weightier than a mere
denial, especially when it comes from the mouth of a credible
witness. 34 Moreover, alibi might be aptly considered only when
an accused has been shown to be in some other place at the
crucial time and that it would have been physically impossible

for him to be at the locus criminis or its immediate vicinity at

the time of the commission of the crime. 35
In the context it is used in the Revised Penal Code, "carnal
knowledge" unlike its ordinary connotation of sexual
intercourse, does not necessarily require that the vagina be
penetrated or that the vagina be penetrated or that the hymen
be ruptured. 36 The crime of rape is deemed consummated
even when the man's penis merely enters the labia or lips of
the female organ 37 or, as once so said in a case, by the "mere
touching of the external genitalia by a penis capable of
consummating the sexual act." 38 In People vs. Escober, 39 in
convicting a father of having raped twice his 1l-year-old
daughter, the Court has said:
While the evidence may not show full penetration on both
occasions of rape the slightest penetration is enough to
consummate the offense in fact there was vulva penetration in
both cases. The fact that the hymen was intact upon
examination does not belie rape for a broken hymen is not an
essential element of rape not does the fact that the victim has
remained a virgin negate the crime. What is fundamental is
that the entrance of at least the introduction, of the male organ
into the labia of the pudendum is proved. As in the case at bar
it can be said that there was penetration although incomplete,
and it was sufficient to prove carnal knowledge of a child under
twelve years of age. A medical examination is not an
indispensable element in a prosecution for rape. The accused
may be convicted on the sole basis of complainant's testimony
of credible and the findings of the medico-legal officer do not
disprove the commission of rape.
There are half measures or even quarter measures nor is their
gravity graduated by the inches of entry. Partial penile
penetration is as serious as full penetration. The rape is
deemed consummated in either case. In a manner of speaking,
bombardment of the drawbridge is invasion enough even if the
troops do not succeed in entering the castle. 40 (Emphasis
supplied.)
In another case, People vs. Gabayton, 41 where the accused
has been found guilty of raping his daughter then less than
twelve years old, the Court has observed:
Accused appellant draws attention to the fact that based on the
medico-legal findings, there is no showing that his daughter's
hymen was penetrated, nor was there any evidence of injuries
inflicted. However, jurisprudence is well-settled to the effect
that for rape to be consummated, rupture of the hymen is not
necessary, nor is it necessary that the vagina sustained a
laceration especially if the complainant is a young girl. The
medical examination merely stated that the smallness of the
vaginal orifice only precludes COMPLETE penetration. This
does not mean that rape has not been committed. The fact that
there was no deep penetration of the victim's vagina and that
her hymen was intact does not negate rape, since this crime is
committed even with the slightest penetration of a woman's sex
organ. Presence of a laceration in the vagina is not an
essential prerequisite to prove that a victim has been raped.
Research in medicine even points out that negative findings
are of no significance, since the hymen may not be torn

despite repeated coitus. In fact, many cases of pregnancy

have been reported in women with unruptured hymen. Entry of
the labia or lips of the female organ merely, without rupture of
the hymen or laceration of the vagina, is sufficient to warrant
conviction. What must be proven in the crime of rape is merely
the introduction of the male organ into the labia of the
pudendum and not the full penetration of the complainant's
private part. As we held in Baculi: "there could still be a finding
of rape even if despite the repeated intercourse over a period
of four years the complainant still retained an intact hymen
without signs of injury." In the case at bench, Summer's
testimony has established without a doubt that accusedappellants organ managed to come into contact with her
vagina, enough to cause her pain. 42 (Emphasis supplied.)
In its recent holding in People vs. Echegaray, 43 the Court has
declared that "a mere knocking at the doors of the pudenda, so
to speak, by the accused's penis suffices to constitute the
crime of rape as full entry into the victim's vagina is not
required to sustain a conviction."
The trial court appellants only frustrated rape, ruled that there
was no "conclusive evidence of penetration of the genital organ
of the offended party 44 in the (a) Catalina had admitted that
she did not spread her legs and (b) the medico-legal officer's
findings showed she did not sustain any extragenital injuries
and her hymenal orifice was so small that an erect averagesize penis would not have completely penetrated it would
causing laceration. It would seem that the trial court failed to
consider Catalina's testimony in its entirely she testified:
Q And when he mounted on top of you Escuadro was holding
on to your two feet and all the time that he Quianola, was
making a push and pull on you Escuadro was holding on to
your two feet?
A Yes.
COURT:
Q Your two feet?
A Yes.
ATTY. CREEP:
Q Now in other words since your two feet were held and
Eduardo Escuadro was waving (sic [moving]) slightly to your
left as you demonstrated your two feet became closer to each
other, it could not be spread?
A I was still struggling at that time to free myself and I do not
know whether my legs were speared out or not.
Q Did you spread your legs?
A No.
Q Since you did not spread your legs and Quianola was on
top of you, did you not bother to pull your legs, kick the one
holding it and pushed Quianola or do any harm to him?

A No, because I was already frightened considering that there

were two of them and they were armed. 45
This testimony would indicate that Catalina, considering her
struggle to free herself, understandably failed to notice whether
her legs were spread apart or close together during her ordeal.
What she did distinctly recall, however, was that Escuadro had
kept holding both her legs when Quianola took her. Thus
Q At that time when he unzipped and your hands were free, did
you not attempt to hold his penis forcibly so that he will refrain
from raping you?
A I was not able to think of that because of my fear and
besides that Eduardo Escuadro was holding on to both my
legs.
Q Now if Eduardo Escuadro was the one holding on both your
two legs how was Quianola able to place himself on top of
you?
A It was because Eduardo Escuadro had already released my
hands and Quianola was the one holding on to it already,
afterwards Eduardo Escuadro transferred to hold both my
legs. 46
Let it be said once again that, as the Revised Penal Code
presently so stands, there is no such crime as frustrated rape.
In People vs. Orita, 47 the Court has explicitly pronounced:
Clearly, in the crime of rape, from the moment the offender has
carnal knowledge of his victim, he actually attains his purpose
and, from that moment also all the essential elements of the
offense have been accomplished. Nothing more is left to be
done by the offender, because he has performed the last act
necessary to produce the crime. Thus, the felony is
consummated. In a long line of cases (People vs. Oscar, 48
Phil. 527; People vs. Hernandez, 49 Phil. 980; People vs.
Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666;
People vs. Amores, G.R. No. L-32996, August 21, 1974, 58
SCRA 505). We have set the uniform rule that for the
consummation of rape, perfect penetration is not essential. Any
penetration of the female organ by the male organ is sufficient.
Entry of the labia or lips of the female organ, without rupture of
the hymen or laceration of the vagina is sufficient to warrant
conviction. Necessarily, rape is attempted if there is no
penetration of the female organ (People vs. Tayaba, 62 Phil.
559, People vs. Rabadan, et al., 53 Phil. 694; Unites States vs.
Garcia, 9 Phil. 434) because not all acts of execution was
performed. The offender merely commenced the commission
of a felony directly by overt acts. Taking into account the
nature, elements and manner of execution of the crime of rape
and jurisprudence on the matter, it is hardly conceivable how
the frustrated stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the
case of People vs. Eriia, 50 Phil. 998 [1927] where, We found
the offender guilty of frustrated rape there being no conclusive
evidence of penetration of the genital organ of the offended
party. However, it appears that this is a "stray" decision
inasmuch as it has not been reiterated in Our subsequent

decisions. Likewise, We are aware of Article 335 of the

Revised Penal Code, as amended by Republic Act No. 2632
(dated September 12, 1960) and Republic Act No. 4111 (dated
March 29, 1965) which provides, in its penultimate paragraph,
for the penalty of death when the rape is attempted or
frustrated and a homicide is committed by reason or on the
occasion thereof. We are of the opinion that this particular
provision on frustrated rape is a dead provision. The Eriia
case,supra, might have prompted the law-making body to
include the crime of frustrated rape in the amendments
introduced by said laws. 48
The Court is not unaware that Republic Act No. 7659,
amending Article 335 of the Revised Penal Code, has retained
the provision penalizing with reclusion perpetua to death an
accused who commits homicide by reason or on the occasion
of an attempted or frustrated rape. Until Congress sees it fit to
define the term frustrated rape and thereby penalize it, the
Court will see its continued usage in the statute book as being
merely a persistent lapse in language.
Each appellant is liable for two counts of consummated rape
on account of a clear conspiracy between them shown by their
obvious concerted efforts to perpetrate, one after the other, the
crime. Each of them therefore is responsible not only for the
rape committed personally by him but also for the rape
committed by the other as well. 49
Under Article 335 of the Revised Penal Code as amended by
Republic Act No. 7659 when rape is committed with the use of
a deadly weapon or by two persons, the crime is punishable
by reclusion perpetuata to death. Even while the information
has failed to allege the use of a deadly weapon in the
commission of the rape, appellants can, nonetheless, be held
accountable under that provision since the information has
likewise averred that the "above-named accused," referring to
the two appellants, have conspiratorially committed the crime.
Article 14 of the Revised Penal Code, 50 includes among its
enumeration of generic aggravating circumstances the fact that
the crime is committed with the aid of armed men or persons
who insure or afford impunity. The fact alone, then, that a
malefactor has sported a firearm does not, by itself, militate to
aggravate crime. As regards appellant Quianola, the
aggravating circumstance of his being a member of the
Philippine National Police would have exposed him to the
penalty of death 51under the amendatory provisions of Article
335 by Republic Act No. 7659, had this circumstance been
properly alleged in the information. The description by the trial
court of appellants as being "powerfully, built, brawny and
mean-looking" as against the "short slender easily cowed" 15year-old victim would not here warrant a finding that abuse of
superior strength has aggravated the commission of the crime.
The law should be deemed to have already considered this
circumstance in qualifying the crime to its "heinous" character
rendering in that context abuse of superior strength has an
inherent element thereof. Neither may nighttime be considered
an aggravating circumstance in the absence of proof of its
having been deliberately sought out by appellants to by
appellants to facilitate the commission of the offense. 52 Craft
fraud or disguise 53 is a species of aggravating circumstance

that denotes intellectual trickery or cunning resorted to by an

accused to aid in the execution of his criminal design or to lure
the victim into a trap and to conceal the identity of the accused.
The fact that one of the appellants has pretended to be a
member of the New People's Army does not necessarily imply
the use of craft, fraud or disguise, in the commission of the
crime Finally, the Court does not subscribe to the view of the
trial court that accused-appellants have employed means
which added ignominy to the natural effects of the crime,
particularly in "stripp(ing) the victim of her denim parts and
panties and then sending her home in this humiliating and
distressing condition. 54 There is nothing on record that even
remotely suggests that accused-appellants so deliberately
sought to leave Catalina with bottoms bare that she might be
left alone in shame with only her T-shirt and brassieres on.
The absence of any aggravating circumstance in the
commission of a crime punishable by two (2) indivisible
penalties, such as reclusion perpetua to death would justify
even without any mitigating circumstance, the imposition of the
lesser penalty of reclusion perpetua.
The trial court has ordered appellants to each pay the offended
party and indemnity in the amount of P50,000.00. Prevailing
jurisprudence 55 likewise allows the victim is have an award of
moral damages for having evidently undergone mental
physical and psychological sufferings. The availability of
appellants being on delict is solidary. 56
WHEREFORE, appellants Agapito Quianola y Escuadro and
Eduardo Escuadro y Floro are each found guilty beyond
reasonable doubt of two (2) counts of consummated rape and
accordingly, sentenced to the penalty of reclusion perpetua in
each case. Said appellants are ordered to pay jointly and
severally Catalina Carciller the sum of P100,000.00 by way of
indemnity ex delictu for the two counts of consummated rape
plus
P60,000.00
moral
damages.
Costs
against
appellants.1wphi1.nt
SO ORDERED.

People vs. Orande 415 SCRA 699 November 12, 2003

THIRD DIVISION
[G.R. Nos. 141724-27. November 12, 2003]
PEOPLE OF THE PHILIPPINES, appellee, vs. ARNULFO
ORANDE y CHAVEZ, appellant.
DECISION
CORONA, J.:
This is an appeal from the decision [1] of the Regional Trial
Court of Manila, Branch 18, in Criminal Case Nos. 97-159184,
97-159185, 97-159186 and 97-159187, convicting appellant for
two counts of simple rape, one count of statutory rape and one
count of frustrated rape, and sentencing him to suffer three
counts of reclusion perpetua for the simple and statutory rapes,

and an indeterminate penalty of 8 years to 14 years and 8

months of imprisonment for the frustrated rape.
Complainant Jessica Castro charged appellant with raping her
four times between January 1994 and November 1996.
The informations filed against appellant by the City Prosecutor
read:
In Criminal Case No. 97-159184 That on or about January 14, 1996, in the City of Manila,
Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and intimidation,
that is, by threatening to kill said Jessica Castro, had carnal
knowledge of the latter against her will.
CONTRARY TO LAW.
In Criminal Case No. 97-159185That on or about April 15, 1994, in the City of Manila,
Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and intimidation,
that is, by threatening JESSICA CASTRO Y DE LA CRUZ of
death should she resist or report the matter to anybody, had
carnal knowledge of said Jessica C. Castro, a minor, under 12
years of age, against her will.
CONTRARY TO LAW.
In Criminal Case No. 97-159186 That on or about March 12, 1995, in the City of Manila,
Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and intimidation,
that is, by threatening Jessica Castro y de la Cruz of death
should she resist or report the matter to anybody, had carnal
knowledge of said Jessica C. Castro, a minor, under 12 years
of age, against her will.
CONTRARY TO LAW.
In Criminal Case No. 97-159187That on or about November 17, 1996, in the City of Manila,
Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and intimidation,
that is, by threatening to kill said Jessica Castro, had carnal
knowledge of the latter against her will.
CONTRARY TO LAW.[2]
Arraigned on September 5, 1997, appellant pleaded not guilty.
[3]
Thereafter, trial on the merits ensued. However, the trial was
subsequently postponed for eight months as Jessica was
suffering from psychological and emotional trauma from her
horrifying ordeal.[4] The lower court ordered the suspension of
the trial to enable her to undergo psychological therapy at the
Child Protection Unit of the Philippine General Hospital. Trial
resumed in November 1998 with the prosecution presenting
Jessica as its first witness.

Incidentally, prior to the filing of the aforementioned cases,

Jessica also filed a criminal case against her mother, Girlie de
la Cruz Castro, and the appellant for child abuse.
The evidence of the prosecution showed that appellant was the
common law husband of Jessicas mother Girlie. Appellant,
a pedicab driver, started living with Girlie and her three children
sometime
in
1993
in
a
two-storey
house
in Paco, Manila owned by Girlies mother. They occupied a
room on the ground floor which served as their bedroom,
kitchen and living room. The adjacent room was occupied by
Girlies brother and his family while the room on the second
floor was occupied by Girlies sister and her family.
Girlie gave birth to two more children by appellant. To earn a
living, Girlie sold fish at the Paco Market, buying her stock from
the Navotas fish market late at night and sometimes in the
early hours of the morning.
The first incident of rape, subject of Criminal Case No. 97159185, happened sometime in April 1994 when Girlie was at
the fish market. Appellant was left in the house with Jessica,
her siblings and appellants two children with Girlie. Jessica
was then watching television while her brothers and sisters
were sleeping beside her. Appellant grabbed Jessicas right
hand and lasciviously jabbed her palm with his finger. He
ordered her to undress which she obeyed out of fear as
appellant was armed with a knife. Appellant then removed his
pants, placed himself on top of complainant and succeeded in
partially penetrating her. Jessica felt pain in her vagina and
saw it smeared with blood and semen. She tried to leave the
room but appellant locked the door and threatened to kill her if
she told her mother what happened. Jessica was then only
nine years and four months old, having been born
on December 19, 1983.[5]
The second rape, subject of Criminal Case No. 97-159186,
occurred on March 14, 1995 at around 11:00 a.m. when
Jessica was 11 years and 3 months old. Girlie was in the
market while Jessica and her siblings were left in the house
watching television. Soon after, appellant arrived and sent the
children, except Jessica, to play outside. Left alone with
Jessica, appellant removed his clothes, pulled out
a balisong and ordered Jessica to undress. He then held her
by the shoulder and made her lie down. Then he mounted her.
Appellant reached his orgasm shortly after penetrating her
slightly. He stood up with semen still dripping from his penis.
Apparently still not satisfied, he knelt down, kissed and
fingered Jessicas vagina, then mashed her breasts. He only
stopped what he was doing when someone knocked at the
door. Appellant and Jessica hurriedly put on their clothes and,
as appellant opened the door, Jessica went to the bathroom to
wash herself.
The third rape, subject of Criminal Case No. 97-159184,
occurred on January 14, 1996, when Jessica was 12 years and
6 months old. She arrived from school at around 11:00
a.m.While she was changing her clothes, appellant ordered
Jessicas brother and sister to visit their mother at
the Paco Market and sent his children to play outside the
house. When appellant and Jessica were alone, he removed

his pants, got his knife and ordered her to undress. Since she
was afraid, Jessica was forced to remove her
clothes. Appellant then told her they would do what they did
before, pulled her towards him and made her lie down on the
floor. While holding the knife, he kissed and fingered her
vagina, then mashed her breasts. Thereafter, he placed
himself on top of her, partially penetrated her until he
ejaculated. When Jessicas brother and sister arrived, appellant
hurriedly put on his clothes. Jessica did the same. She then
went to the bathroom to wash herself and change her
bloodstained underwear.
The last rape, subject of Criminal Case No. 97-159187,
occurred sometime in November 1996, at around 11:00
p.m. Girlie was again in the public market while Jessica was at
home with her siblings who were all asleep. Appellant told
Jessica that they would again do what they did before but she
refused, saying that she might get pregnant. Appellant
brandished hisbalisong and threatened to kill her. He then
covered himself and Jessica with a blanket, removed his pants
and her shorts, and placed himself on top of her. His penis
slightly penetrated her vagina. He mashed her breasts,
inserted his finger into her vagina and kissed it. Jessica
pushed him away and told him she wanted to sleep. Then she
put on her shorts. Appellant also put on his pants and told
Jessica not to tell her mother what he did to her. He assured
her that she would not get pregnant because she was not yet
menstruating.
Sometime in March 1997, a teacher of Jessica,
Mrs. Adoracion Mojica, noticed the unusual treatment of
Jessica by appellant. When confronted by Mrs. Mojica, Jessica
admitted that appellant had raped her several times.
Mrs. Mojica called up Jessicas aunt, Mrs. Antonina de la Cruz,
and narrated to her what Jessica had confessed. Mrs. De la
Cruz then accompanied Jessica to the police station to file a
complaint and to the Philippine General Hospital (PGH), Child
Protection Unit, to be examined. Dr. Bernadette J. Madrid,
Director of the Child Protection Unit, examined Jessica and the
findings revealed the following:

The trial court gave credence to the testimony of Jessica and

convicted the appellant:
WHEREFORE,
in
Criminal
Case
No.
97-159184,
Accused Arnulfo Orande y Chavez is convicted of simple rape
under Article 335 of the Revised Penal Code and sentenced to
suffer the penalty of reclusionperpetua with all the accessory
penalties provided by law.
In Criminal Case No. 97-159185, the accused is also convicted
of simple rape under Article 335 of the Revised Penal Code
and sentenced to suffer the penalty of reclusion perpetua with
all the accessory penalties provided by law.
In Criminal Case No. 97-159186, the accused is likewise
convicted of statutory rape under Article 335 of the Revised
Penal Code and sentenced to suffer the penalty of
reclusion perpetua with all the accessory penalties provided by
law.
In Criminal Case No. 97-159187, the accused is convicted of
frustrated rape under Article 335 of the Revised Penal Code
and sentenced to suffer the indeterminate penalty of 8 years
of prision mayor as minimum to 14 years and 8 months of
reclusion temporal as maximum, and to pay the costs.
On the civil liability of the accused in the four cases, he is
ordered to pay the victim, Jessica Castro, moral, nominal and
exemplary damages in the respective sums of P400,000.00,
P200,000.00 and P100,000.00.
SO ORDERED.[7]

Genital Examination:

In this appeal, appellant assigns the following errors:

Hymen: Estrogenized,

I. THE COURT A QUO GRAVELY ERRED IN FINDING THE

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

Attenuated from 1 oclock position to 4 o clock position

and from 6 o clock to 12 o clock position
Notch at 5 oclock
Healed hymenal tear at the 6 o clock position
Anus: Normal rectal
normal rugae[6]

that since Jessica disapproved of his relationship with her

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

tone,

no

pigmentation,

no

scars,

For his defense, appellant advanced denial and alibi. He

denied ever raping Jessica and testified that, during the
alleged second rape incident, he was driving his pedicab. His
live-in partner Girlie testified that, during the purported first
and second incidents of rape, appellant was with her to buy
fish in Navotas and sell them in Paco market. Appellant argued

II. THE COURT A QUO GRAVELY ERRED IN CONVICTING

THE ACCUSED-APPELLANT OF FRUSTRATED RAPE
DESPITE THE FACT THAT UNDER PREVAILING
JURISPRUDENCE THERE IS NO SUCH CRIME.[8]
The Office of the Solicitor General argues that appellants
convictions should be upheld as the prosecution was able to
prove his guilt beyond reasonable doubt.
The appeal is partly meritorious. This Court finds that the
prosecution was able to prove beyond reasonable doubt

appellants guilt for two counts of statutory rape and two counts
of simple rape, there being no such crime as frustrated rape in
this jurisdiction.
After a thorough review of the records, we find no reason to
deviate from the well-established rule that the credibility of
witnesses is a matter best assessed by the trial court because
of its unique opportunity to observe them firsthand and to note
their demeanor, conduct and attitude.[9] In the present case, the
trial court found Jessicas testimony convincing, logical and
credible. Moreover, the court a quo:
xxx discerned from her demeanor the intense mental torture,
embarrassment, emotional pain and bitterness she suffered
whenever she was asked to recall and narrate the humiliating
sexual ordeals she had gone through, and her ... desire for
justice and the punishment of her defiler. She was continually
in tears while testifying and the proceeding was interrupted
several times to calm her down.[10]
No young woman would allow an examination of her private
part and subject herself to the humiliation and rigor of a public
trial if the accusations were not true, or if her motive were other
than a fervent desire to seek justice.[11]
We do not subscribe to appellants theory that the filing of the
rape charges was motivated by Jessicas dislike for him. To
charge appellant with rape for the sole purpose of exacting
revenge, as appellant implies in his brief, takes a certain kind
of psychiatric depravity which this Court does not see in
Jessica. The fact that Jessica had to undergo psychological
treatment[12] after her first testimony in February 1998 belies
appellants defense. The need for such counseling came
about after the defilement she suffered in the hands of
appellant. In fact, it was the incidents of rape that caused her
psychological and emotional imbalance which required therapy
at the Child Protection Unit of the Philippine General Hospital.
The alleged inconsistencies and improbabilities in Jessicas
testimony did not discredit her nor reveal any
fabrication. Inconsistencies regarding minor details were
attributable to the fact that she was recalling details of
incidents that happened three years before, not to mention the
fact that these details pertained to something she had very little
knowledge of, being then only nine years and three months old
when the first rape was committed. We have consistently ruled
that errorless recollection of a harrowing experience cannot be
expected of a witness (a very young one at
that) specially when she is recounting details of an occurrence
so humiliating, so painful and, in this case, so alien as rape.[13]
Appellant makes much of the fact that two incidents of rape
happened inside the room where the other children were
sleeping. This Court has repeatedly held that rape can be
committed in the same room where other members of the
family are also sleeping, in a house where there are other
occupants or even in places which to many might appear
unlikely and high-risk venues for its commission.[14]
Also, the failure of Jessica to cry out for help during the
incidents in question, inspite of the physical proximity of her

relatives, or to report to them what happened, did not at all

make her testimony improbable inasmuch as it is not
uncommon for a young girl of tender age to be easily
intimidated into silence and conceal for sometime the violation
of her honor, even by the mildest threat to her life. [15] Besides,
Girlie, Jessicas mother, had a rift with her siblings who lived in
the same house and forbade Jessica to socialize with them. It
was likewise highly probable that the strained relations
between Jessicas mother, uncle and aunt prevented Jessica
from confiding in them.
In a number of cases, this Court has likewise ruled that delay,
even of three years, in reporting the crime does not necessarily
detract from the witness credibility as long as it is satisfactorily
explained.[16] Jessica was threatened by appellant that he
would kill her mother and relatives if she reported the rape. A
young girl like Jessica can easily be mesmerized by fear of
bodily harm and, unlike a mature woman, cannot be expected
to have the courage or confidence to immediately report a
sexual assault on her, specially when a death threat hangs
over her head.[17]
In view of the credible testimony of Jessica, appellants
defenses of denial and alibi deserve no consideration. These
weak defenses cannot stand against the positive identification
and categorical testimony of a rape victim.[18]
The court a quo convicted appellant of one count of frustrated
rape in Criminal Case No. 97-151987, the dispositive portion of
which read:
xxx xxx xxx.
In Criminal Case No. 97-159187, the accused is convicted of
frustrated rape under Article 335 of the Revised Penal Code
and sentenced to suffer the indeterminate penalty of 8 years
of prision mayor as minimum, and to pay the costs.
xxx xxx xxx.
SO ORDERED.[19]
However, we agree with the observation of the Solicitor
General that the court a quo was referring to Criminal Case
No. 97-159185, and not Criminal Case No. 97-159187, in
convicting appellant of frustrated rape:
The trial court convicted appellant of simple rape in Criminal
Case No. 97-159185. However, the factual basis thereof in the
body of the decision reads:
With regard to Criminal Case No. 97-159185, the Court has
gathered that sometime in April, 1994, at around 11:00 p.m.,
Jessica and her two siblings together with the accused were in
their house, while their mother, Girlie, was in Navotas buying
fish. Jessica was watching TV in a lying position beside her two
sleeping siblings, when the accused held Jessicas right hand
and jabbed her palm with his finger. Then he told her to
remove her short pants, panty and T-shirt, after which the
accused removed his pants and with a balisong in his hand, he
began kissing the sensitive parts of her body. Then he placed
himself on top of her and tried to have sexual intercourse with

her. He succeeded in nudging her sex organ with the tip of his
penis, but was unable to accomplish penetration, due to the
resistance offered by her by struggling and kicking him.
Nonetheless, the accused had orgasm and Jessicas sex organ
was smeared with his semen. (emphasis supplied, p. 2,
Decision)
Such was the only rape incident where the trial court
concluded there was no penetration.
On the other hand, the factual basis for the conviction in
Criminal Case No. 97-159187 in the body of the trial courts
decision reads:
Anent Criminal Case No. 97-159187, the records further show
that in November, 1996, at around 11:00 p.m., Jessica was
watching TV while the other siblings were asleep and her
mother was away, when accused again made sexual advances
to her. She resisted and told accused she might become
pregnant, but the accused persisted and threatened to kill her
at that very moment if she would not submit to his lust. As in
the previous occasions, he again succeeded in having carnal
knowledge of the helpless and scared victim. After her
defilement, the victim continually cried and the accused tried to
calm her down by assuring her that she would not be
impregnated, because she has not yet began to have
menstruation (p. 3, Decision)
Consequently the conviction for frustrated rape should pertain
to the incident in April 1994 described in Criminal Case No. 97159185 and not Criminal Case No. 97-159187 since this case
refers to the November 1996 rape incident where the findings
of the trial court was that there was carnal knowledge.[20]
Moreover, the oversight of the court a quo in interchanging
Criminal Case Nos. 97-159185 and 97-159187 is further
evidenced by the following paragraph found in page four of the
trial court decision:
In Criminal Case 97-159185 and 97-159184, the acts of the
accused in having carnal knowledge of the victim by
intimidation on two separate occasions in [the] early or middle
part [of] 1996, and in November of the same year, constitute
two separate crimes of qualified rape under R.A. 7659 and the
penalty prescribed therefore is death by lethal injection.
[21]
(Emphasis Ours)
The rape incidents which occurred in 1996 were designated as
Criminal Case Nos. 97-159184 and 97-159187, as borne out
by the informations filed by the City Prosecutor.[22] Thus, the
conviction for frustrated rape should pertain to Criminal Case
No. 97-159185 and not Criminal Case No. 97-159187.
Regarding Criminal Case No. 97-159185 (the April 1994 rape
incident), the Court sustains appellants contention that there is
no such crime as frustrated rape, as we have ruled in a long
line of cases.[23] Recently, in People vs. Quinanola,[24] we again
reiterated the rule:
Let it be said once again that, as the Revised Penal Code
presently so stands, there is no such crime as frustrated rape.
In People vs. Orita, the Court has explicitly pronounced:

Clearly, in the crime of rape, from the moment the offender has
carnal knowledge of his victim, he actually attains his purpose
and, from that moment also all the essential elements of the
offense have been accomplished. Nothing more is left to be
done by the offender, because he has performed the last act
necessary to produce the crime. Thus, the felony is
consummated. In a long line of cases (People vs. Oscar, 48
Phil. 527; People vs. Hernandez, 49 Phil. 980; People
vs. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666;
People vs. Amores, G.R. No. L-32996, August 21, 1974, 58
SCRA 505), We have set the uniform rule that for the
consummation of rape, perfect penetration is not essential. Any
penetration of the female organ by the male organ is sufficient.
Entry of the labia or lips of the female organ, without rupture of
the hymen or laceration of the vagina is sufficient to warrant
conviction. Necessarily, rape is attempted if there is no
penetration of the female organ (People vs. Tayaba, 62 Phil.
559; People vs. Rabadan, et al., 53 Phil. 694; United States vs.
Garcia, 9 Phil. 434) because not all acts of
execution was performed. The offender merely commenced
the commission of a felony directly by overt acts. Taking into
account the nature, elements and manner of execution of the
crime of rape and jurisprudence on the matter, it is hardly
conceivable how the frustrated stage in rape can ever be
committed.
Of course, We are aware of our earlier pronouncement in the
case of People vs. Eriia, 50 Phil. 998 [1927] where We found
the offender guilty of frustrated rape there being no conclusive
evidence of penetration of the genital organ of the offended
party. However, it appears that this is a stray decision
inasmuch as it has not been reiterated in Our subsequent
decisions. Likewise, We are aware of Article 335 of the
Revised Penal Code, as amended by Republic Act No. 2632
(dated September 12, 1960) and Republic Act No. 4111 (dated
March 29, 1965) which provides, in its penultimate paragraph,
for the penalty of death when the rape is attempted or
frustrated and a homicide is committed by reason or on the
occasion thereof. We are of the opinion that this particular
provision on frustrated rape is a dead provision.
The Eriia case, supra, might have prompted the law-making
body to include the crime of frustrated rape in the amendments
introduced by said laws.
The Court is not unaware that Republic Act No. 7659,
amending Article 335 of the Revised Penal Code, has retained
the provision penalizing with reclusion perpetua to death an
accused who commits homicide by reason or on the occasion
of an attempted or frustrated rape. Until Congress sees it fit to
define the term frustrated rape and thereby penalize it, the
Court will see its continued usage in the statute book as being
merely a persistent lapse in language. (emphasis ours)
Thus, it was error for the trial court to convict appellant of
frustrated rape. Besides, after a careful review of the records,
we find that the rape was in fact consummated. Jessica initially
testified that, although appellant did not succeed in inserting
his penis in her vagina, she felt his sex organ touch hers and
she saw and felt semen come out of his penis and smear her
vagina.[25] In response to the clarificatory questions asked by
the prosecutor, Jessica testified that the appellant was able to

slightly penetrate her because she felt pain and her vagina
bled.[26] It has been held that, to be convicted of rape, there
must be convincing and sufficient proof that the penis indeed
touched the labia or slid into the female organ, and not merely
stroked the external surface thereof.[27] Nevertheless, we have
also ruled in cases where penetration is not established that
the rape is deemed consummated if the victim felt pain, or the
medico-legal examination finds discoloration in the inner lips of
the vagina, or the labia minora is already gaping with redness,
or the hymenal tags are no longer visible.[28] In the present
case, the victim testified that she felt pain and her vagina bled,
indisputable indications of slight penetration or, at the very
least, that the penis indeed touched the labia and not merely
stroked the external surface thereof. Thus, the appellant
should be found guilty of (consummated) rape and not merely
frustrated or attempted rape.

4. In Criminal Case No. 97-159187, appellant is convicted of

simple rape under Article 335 of the Revised Penal Code and
sentenced to suffer the penalty of reclusion perpetua.

Pursuant to Section 11 of RA 7659 or the Heinous Crimes Law,

the penalty of death is imposed if rape is committed when the
victim is under 18 years of age and the offender is the
common-law spouse of the parent of the victim. However, the
trial court was correct in not imposing the death penalty in
Criminal Case Nos. 97-159184 and 97-159187 because the
qualifying circumstances of age and relationship of the victim
to the appellant were not alleged in the information. [29] Thus,
appellant can only be convicted of simple rape punishable
byreclusion perpetua under Article 335 of the Revised Penal
Code. However, in Criminal Case Nos. 97-159185 and 97159186, the appellant can be convicted of statutory rape also
punishable by reclusion perpetua under Article 335 of the
Revised Penal Code inasmuch as the age of Jessica was
alleged in the information[30] and duly proven during the trial by
the presentation of her birth certificate.[31]

G.R. No. 188979

We award moral damages of P50,000 for each count of rape

as moral damages are automatically awarded to rape victims
without need of pleading or proof. [32] We also award civil
indemnity ex delicto of P50,000 for each count of rape in the
light of the ruling that civil indemnity, which is distinct from
moral damages, is mandatory upon the finding of the fact of
rape.[33]We likewise award exemplary damages of P25,000 for
each count of rape consistent with the prevailing jurisprudence
on the matter.[34]
WHEREFORE, the decision of the Regional Trial Court of
Manila, Branch 18, in Criminal Case Nos. 97-159 184 to 87 is
AFFIRMED with the following MODIFICATIONS:
1. In Criminal Case No. 97-159 184, appellant is convicted of
simple rape under Article 335 of the Revised Penal Code and
sentenced to suffer the penalty of reclusion perpetua.
2. In Criminal Case No. 97-159 185, appellant is convicted of
statutory rape under Article 335 of the Revised Penal Code
and sentenced to suffer the penalty of reclusion perpetua.
3. In Criminal Case No. 97-159186, appellant is convicted of
statutory rape under Article 335 of the Revised Penal Code
and sentenced to suffer the penalty of reclusion perpetua.

For each count of rape, appellant is ordered to pay

complainant Jessica Castro P50,000 as moral damages,
P50,000 as civil indemnity and P25,000 as exemplary
damages, or a total of P500,000. Costs against appellant.
SO ORDERED.
People vs.
Republic
SUPREME
Manila

Pareja

GR
of

188979 September 5, 2012

the
Philippines
COURT

SECOND DIVISION
September 5, 2012

PEOPLE
OF
THE
PHILIPPINES, Appellee,
vs.
CHRISTOPHER PAREJA y VELASCO, Appellant.
DECISION
BRION, J.:
This is an appeal from the June 15, 2009 decision1 of the Court
of Appeals (CA) in CA-G.R. CR HC No. 02759. TheCA affirmed
the February 22, 2007 decision2
of the Regional Trial Court (RTC), Branch 209, Mandaluyong
City, finding appellant Christopher Pareja guilty beyond
reasonable doubt of the crime of rape and sentencing him to
suffer the penalty of reclusion perpetua.
THE CASE
The prosecution charged the appellant before the RTC with the
crime of rape under an Amended Information that reads:
That on or about the 16th day of June 2003, in the City of
Mandaluyong, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and
there willfully, unlawfully and feloniously lie and have carnal
knowledge of AAA,3 13 years of age, sister of the common law
spouse of accused, against her will and consent, thus
debasing and/or demeaning the intrinsic worth and dignity of
the victim thereby prejudicing her normal development as a
child.4
The evidence for the prosecution disclosed that at around 3:30
a.m. of June 16, 2003, AAA was sleeping beside her two-year
old nephew, BBB, on the floor of her sisters room, when the
appellant hugged her and kissed her nape and neck.5 AAA
cried, but the appellant covered her and BBB with a
blanket.6 The appellant removed AAAs clothes, short pants,
and underwear; he then took off his short pants and
briefs.7 The appellant went on top of AAA, and held her hands.
AAA resisted, but the appellant parted her legs using his own
legs, and then tried to insert his penis into her vagina. 8 The

appellant stopped when AAAs cry got louder; AAA kicked the
appellants upper thigh as the latter was about to stand up. The
appellant put his clothes back on, and threatened to kill AAA if
she disclosed the incident to anyone. Immediately after, the
appellant left the room.9 AAA covered herself with a blanket
and cried.10
At around 6:00 a.m. of the same day, AAAs brother, CCC,
went to her room and asked her why she was lying on the floor
and crying. AAA did not answer, and instead hurled invectives
at CCC.11 AAA went to the house of her other brother, but the
latter was not in his house. AAA proceeded to the house of her
older sister, DDD, at Block 19, Welfareville Compound, and
narrated to her what had happened. Afterwards, AAA and her
two (2) siblings went to the Women and Childrens Desk of the
Mandaluyong City Police Station and reported the incident.12
For his defense, the appellant declared on the witness stand
that he hauled "filling materials" at his house, located at Block
38, Fabella Compound, on the evening of June 15, 2003. At
around 10:00 p.m., he went to his room and slept.13 On the
next day, the appellant, accompanied by his mother and
brother-in-law, went to the municipal hall to ask for financial
assistance for his wife who was confined in the hospital. Upon
arrival at the hospital, the doctor told him that his wife needed
blood. Immediately after, the appellant and his companions
went to Pasig City to find blood donors.14
On the evening of June 16, 2003, and while the appellant was
folding the clothes of his son, two policemen entered his house
and informed him that a complaint for attempted rape had been
filed against him. The police brought him to the Criminal
Investigation and Detection Group, forced him to admit the
crime, mauled him, and then placed him in a detention
cell.15 The appellant added that he filed a complaint before the
Office of the Ombudsman against the police officers who beat
him up.16
The RTC convicted the appellant of rape in its decision of
February 22, 2007, under the following terms:
WHEREFORE, the Court finds accused CHRISTOPHER
PAREJA y VELASCO GUILTY beyond reasonable doubt of the
crime of RAPE and hereby sentences him as he is hereby
sentenced to suffer the penalty of reclusion perpetua; and to
indemnify the victim, AAA, the amount of P 50,000.00 as moral
damages and P 50,000.00 as civil indemnity.17
The CA, in its decision dated June 15, 2009, affirmed the RTC
decision. It explained that a slight penetration of the labia by
the male organ is sufficient to constitute rape, and held that a
slight penetration took place when the appellants penis
touched AAAs vagina as he was trying to insert it.
The appellate court further ruled that the presence of people in
the other room did not make it impossible for the appellant to
have raped the victim, because lust is no respecter of time and
place. It also held that the victims lack of tenacity in resisting
the appellants sexual aggression did not amount to consent or
voluntary submission to the criminal act.18

In his brief,19 the appellant argued that the lower courts erred in
convicting him for the crime of rape, as the prosecution failed
to prove even the slightest penetration of his penis into the
victims vagina. He added that the victims testimony was
incredible and contrary to human experience.
THE COURTS RULING
We find that the prosecution failed to prove the appellants guilt
beyond reasonable doubt of the crime of consummated rape.
We convict him instead of attempted rape, as the evidence on
record shows the presence of all the elements of this crime.
Carnal
Knowledge
Moral Certainty

Not

Proven

With

By definition, rape is committed by having carnal knowledge of

a woman with the use of force, threat or intimidation, or when
she is deprived of reason or otherwise unconscious, or when
she is under 12 years of age or is demented. 20 "Carnal
knowledge is defined as the act of a man having sexual
intercourse or sexual bodily connections with a
woman."21 Carnal knowledge of the victim by the accused must
be proven beyond reasonable doubt, considering that it is the
central element in the crime of rape.22
In her testimony of February 9, 2004, AAA recounted the
alleged rape, as follows:
FISCAL TRONCO:
Q: You said that the three of you then was (sic) sleeping on
the floor, what is it that happened on that particular day and
time that is unusual?
A: It was like somebody was embracing me or hugging me,
maam.
Q: When you felt that some (sic) is embracing and hugging
you, what did you do?
A: I didnt mind it because I thought that the person beside
me just moved and when he made the movement, its like that I
was embraced, maam.
Q:

Whom are you referring to?

A:

My brother-in-law, maam.

Q:

And after that, what else happened, if any, AAA?

A: Before that happened, my nephew cried and so I picked

him up and put him on my chest and after a while, I slept again
and brought him down again and then "dumapa po ako" and I
felt that somebody was kissing my nape, maam.
Q: Were you able to see who was that somebody kissing
your nape?
A: When I tried to evade, I looked on my side where the room
was not that dark that I could not see the person and so, I saw
that it was my brother-in-law, maam.

xxxx

Q:

What about him?

Q: When you saw that it was your brother-in-law kissing your

nape while you were on a prone position, what else happened,
if any?

A:

He was on my lap, maam.

A:

He kissed my neck, maam.

Q:

You said that you saw him take off his short pants?

Q:

What was your position while he was kissing your neck?

A:

Yes, maam.

A: I was on my side at that time and I was also crying,

maam.
xxxx

xxxx

xxxx
Q:

Did he also take off his brief?

A:

Yes, maam.

Q: Why were you crying at that time while he was kissing

your neck?

xxxx

A:

Q:

I was afraid of what will happen next, maam.

Q: Aside from that incident that he was kissing your neck,

was there any other previous incident that happened?
A:

Yes, maam.

xxxx
Q:

What incident was that?

A:
At that time, my brother-in-law covered me and my
nephew with a blanket and he tried to get my clothes off,
maam.
Q:

When did this happen, AAA?

A:

Also on said date, maam.

Q: You said that he covered you and your nephew with a

blanket and then taking (sic) off your clothes?
A:

Yes, maam.

xxxx

And after that what happened, AAA?

A: After removing his undergarments, he suddenly brought

his body on top of me and he held my hands. At that time I was
crying and still resisting and then he was trying to get my legs
apart. I was still resisting at that time, and at some point in time
I felt weak and he was able to part my legs, maam.
Q: Could you please tell us how did (sic) he able to part your
legs?
A: He did that with his legs while he was holding my hands,
maam.
Q: And when he was able to part your legs, what happened
next?
A: He tried to insert his sexual organ but he was not able to
do so, maam.
Q: How did you know that he was trying to insert his sexual
organ?
A:

"Naidikit po niya sa ari ko."

Q:

Was he able to take off your clothes?

Q: Which part of your body was he able to touch his sexual

organ? (sic)

A:

Yes, maam.

A:

Q:

What particular clothing was he able to take off?

xxxx

A:

My short pants and underwear, maam.

Q: You mentioned earlier that he was not able to penetrate

your private part, AAA?

Q:
While he was taking off your short pants and your
underwear, what did you do, if any?
A:

I tried to fight him off, maam.

xxxx
Q: You said that he was trying to take off your clothes and
undergarments, what was your position at that time?
A:

I was lying down, maam.

On my sexual organ, maam.

A:

Yes, maam.

Q:

So, what happened after that?

A: I cried and then while I was resisting, I hit my wrist on the

wall and my wrist was "nagasgas," maam.
xxxx
Q:

And were you able to successfully resist?

A: Yes, maam, I was able to kicked (sic) his upper thigh,

maam.23 (italics supplied; emphasis ours)
From the foregoing, we find it clear that the appellants penis
did not penetrate, but merely touched (i.e., "naidikit"), AAAs
private part. In fact, the victim confirmed on crossexamination that the appellant did not succeed in inserting
his penis into her vagina. Significantly, AAAs Sinumpaang
Salaysay24 also disclosed that the appellant was holding the
victims hand when he was trying to insert his penis in her
vagina. This circumstance coupled with the victims
declaration that she was resisting the appellants attempt to
insert his penis into her vagina makes penile penetration
highly difficult, if not improbable. Significantly, nothing in the
records supports the CAs conclusion that the appellants penis
penetrated, however slightly, the victims female organ.
Did the touching by the appellants penis of the victims private
part amount to carnal knowledge such that the appellant
should be held guilty of consummated rape?
In People v. Campuhan,25 the Court laid down the parameters
of genital contact in rape cases, thus:
Thus, touching when applied to rape cases does not simply
mean mere epidermal contact, stroking or grazing of organs, a
slight brush or a scrape of the penis on the external layer of the
victim's vagina, or the mons pubis, as in this case. There must
be sufficient and convincing proof that the penis indeed
touched the labias or slid into the female organ, and not merely
stroked the external surface thereof, for an accused to be
convicted of consummated rape. As the labias, which are
required to be "touched" by the penis, are by their natural situs
or location beneath the mons pubis or the vaginal surface, to
touch them with the penis is to attain some degree of
penetration beneath the surface, hence, the conclusion that
touching the labia majora or the labia minora of the pudendum
constitutes consummated rape.
The pudendum or vulva is the collective term for the female
genital organs that are visible in the perineal area, e.g., mons
pubis, labia majora, labia minora, the hymen, the clitoris, the
vaginal orifice, etc. The mons pubis is the rounded eminence
that becomes hairy after puberty, and is instantly visible within
the surface. The next layer is the labia majora or the outer lips
of the female organ composed of the outer convex surface and
the inner surface. The skin of the outer convex surface is
covered with hair follicles and is pigmented, while the inner
surface is a thin skin which does not have any hair but has
many sebaceous glands. Directly beneath the labia majora is
the labia minora. Jurisprudence dictates that the labia majora
must be entered for rape to be consummated, and not merely
for the penis to stroke the surface of the female organ. Thus, a
grazing of the surface of the female organ or touching the
mons pubis of the pudendum is not sufficient to constitute
consummated rape. Absent any showing of the slightest
penetration of the female organ, i.e., touching of either labia of
the pudendum by the penis, there can be no consummated
rape; at most, it can only be attempted rape, if not acts of
lasciviousness.26 (italics supplied)

Simply put, "rape is consummated by the slightest penile

penetration of the labia majora or pudendum of the female
organ."27 Without any showing of such penetration, there can
be no consummated rape; at most, it can only be attempted
rape [or] acts of lasciviousness."28
As earlier discussed, the prosecution failed to present sufficient
and convincing evidence to establish the required penile
penetration. AAAs testimony did not establish that the
appellants penis touched the labias or slid into her private part.
Aside from AAAs testimony, no other evidence on record, such
as a medico-legal report, could confirm whether there indeed
had been penetration, however slight, of the victims labias. In
the absence of testimonial or physical evidence to establish
penile penetration, the appellant cannot be convicted of
consummated rape.
Article 6 of the Revised Penal Code, as amended, states that
there is an attempt when the offender commenced the
commission of the crime directly by overt acts but does not
perform all the acts of execution by reason of some cause or
accident other than his own spontaneous desistance.
In People v. Publico,29 we ruled that when the "touching" of
the vagina by the penis is coupled with the intent to
penetrate, attempted rape is committed;otherwise, the crime
committed is merely acts of lasciviousness.
In the present case, the appellant commenced the commission
of rape by the following overt acts: kissing AAAs nape and
neck; undressing her; removing his clothes and briefs; lying on
top of her; holding her hands and parting her legs; and trying to
insert his penis into her vagina. The appellant, however, failed
to perform all the acts of execution which should produce the
crime of rape by reason of a cause other than his own
spontaneous desistance, i.e., the victim's loud cries and
resistance. The totality of the appellants acts demonstrated the
unmistakable objective to insert his penis into the victims
private parts.
A review of jurisprudence reveals that the Court has not
hesitated to strike down convictions for consummated rape
when the evidence failed to show that penetration, however
slight, of the victims vagina took place. In People v. Bon, 30 the
Court found the appellant guilty of attempted rape only, as
there was no indication that the appellants penis even touched
the labia of the pudendum of the victim. We further held that
the appellant could not be convicted of consummated rape by
presuming carnal knowledge out of pain.
The Court had a similar ruling in People v. Miranda, 31 where
the accused tried to insert his penis into the victims private
parts, but was unsuccessful, so he inserted his fingers instead.
We convicted the accused of attempted rape only due to lack
of evidence to establish that there was even a slight penile
penetration. We noted, however, that the appellants act of
inserting his fingers would have constituted rape through
sexual assault had the offense occurred after the effectivity of
the Anti-Rape Law of 1997.
In People v. Alibuyog,32 the victim declared that the accused
placed his penis on her vagina; and claimed that it touched her

private parts. The Court set aside the accuseds conviction for
rape, and convicted him of attempted rape only, because we
found the victims testimony too ambiguous to prove the vital
element of penile penetration. We added that the victims
testimony was "replete with repeated denial of penile
insertion."33

In People v. Dimapilis,40 the Court refused to convict the

accused for consummated rape on the basis of the victim's
testimony that she felt the accused's penis pressed against her
vagina as he tried to insert it. We explained that in order to
constitute consummated rape, there must be entry into the
vagina of the victim, even if only in the slightest degree.

Similarly, in People v. Quarre,34 the evidence for the

prosecution consisted only of the victims testimony that the
accused tried, but failed, to insert his penis into her vagina, and
she felt pain in the process. No medico-legal examination
report was presented in evidence. Accordingly, the Court
reversed the accuseds conviction for rape, and found him
guilty of attempted rape only.

Finally, in People v. Tolentino,41 the Court reversed the

accuseds conviction for rape and convicted him of attempted
rape only, as there was paucity of evidence that the slightest
penetration ever took place. We reasoned out that the victims
statements that the accused was "trying to force his sex organ
into mine" and "binundol-undol ang kanyang ari" did not prove
that the accuseds penis reached the labia of the pudendum of
the victims vagina.

In People v. Ocomen,35 the Court also set aside the appellants

conviction for rape because no proof was adduced of even the
slightest penetration of the female organ, aside from a general
statement of the victim that she had been "raped."
People v. Monteron36 is another noteworthy case where the
Court set aside the appellants conviction for rape. In this case,
the victim testified that the accused placed his penis on top of
her vagina, and that she felt pain. In finding the accused guilty
of attempted rape only, we held that there was no showing that
the accuseds penis entered the victims vagina. We added that
the pain that the victim felt might have been caused by the
accuseds failed attempts to insert his organ into her vagina.
In People v. Mariano,37 the accused tried to insert his penis into
the victims vagina, but failed to secure penetration. The Court
set aside the accuseds conviction for three (3) counts of rape
and found him guilty of attempted rape only. We explained the
necessity of carefully ascertaining whether the penis of the
accused in reality entered the labial threshold of the female
organ to accurately conclude that rape had been
consummated.
In People v. Arce, Jr.,38 the Court found the accused guilty of
attempted rape only, because the victim did not declare that
there was the slightest penetration, which was necessary to
consummate rape. On the contrary, she categorically stated
that the accused was not able to insert his penis into her
private parts because she was moving her hips away. We
further ruled that the victims attempt to demonstrate what she
meant by "idinidikit ang ari" was unavailing to prove that rape
had been consummated.
In People v. Francisco,39 the victim testified that the accused
"poked" her vagina. The Court set aside the accuseds
conviction for qualified rape, and convicted him instead only of
attempted rape after failing to discern from the victim's
testimony that the accused attained some degree of penile
penetration, which was necessary to consummate
rape.1wphi1

"In rape cases, the prosecution bears the primary duty to

present its case with clarity and persuasion, to the end that
conviction becomes the only logical and inevitable
conclusion."42 We emphasize that a conviction cannot be made
to rest on possibilities; strongest suspicion must not be
permitted to sway judgment. In the present case, the
prosecution failed to discharge its burden of proving all the
elements of consummated rape.
The Proper Penalty and Indemnities
Under Article 51 of the Revised Penal Code, the imposable
penalty for attempted rape is two degrees lower than the
prescribed penalty of reclusion perpetua for consummated
rape. Two degrees lower from reclusion perpetua is prision
mayor whose range is six (6) years and one (1) day to 12
years. Without any attendant aggravating or mitigating
circumstances and applying the Indeterminate Sentence Law,
the maximum of the penalty to be imposed upon the appellant
is prision mayor in its medium period, while the minimum shall
be taken from the penalty next lower in degree, which is prision
correccional whose range is six (6) months and one (1) day to
six (6) years, in any of its periods. Accordingly, we sentence
the appellant to suffer the indeterminate penalty of six (6) years
of prision correccional, as minimum, to 10 years of prision
mayor, as maximum.
In addition, we order the appellant to pay the
victim P 30,000.00 as civil indemnity, P 25,000.00 as moral
damages and P 10,000.00 as exemplary damages, in
accordance with prevailing jurisprudence on attempted rape
cases.43
WHEREFORE, premises considered, the June 15, 2009
decision of the Court of Appeals in CA-G.R. CR HC No. 02759
is MODIFIED, as follows:
The appellant's conviction for the crime of rape is VACATED,
and
(1) we find appellant Christopher Pareja y Velasco GUILTY of
the crime of ATTEMPTED RAPE;
(2) we SENTENCE him to suffer the indeterminate penalty of
six ( 6) years of prision correccional, as minimum, to 10 years
of prision mayor, as maximum; and

(3) we ORDER him to PAY the victim the amounts

of P 30,000.00 as civil indemnity; P 25,000.00 as moral
damages; and P 10,000.00 as exemplary damages.
SO ORDERED.

Cruz vs. People GR 166441 October 8, 2014

Republic
SUPREME
Manila

of

the

Philippines
COURT

CONTRARY TO LAW.3
Criminal
Case
Acts of Lasciviousness

FIRST DIVISION
G.R. No. 166441

private complainant AAA, an unmarried woman, fifteen (15)

yearsold, was sleeping inside the tentalong Bangar-Luna
Road, the said accused remove her panty and underwear and
lay on top of said AAA embracing and touching her vagina and
breast with intent of having carnal knowledge of her by means
of force, and if the accused did not accomplish his purpose that
is to have carnal knowledge of the said AAA it was not because
of his voluntary desistance but because the said offended party
succeeded in resisting the criminal attempt of said accused to
the damage and prejudice of said offended party.

October 8, 2014

NORBERTO
CRUZ
y
BARTOLOME, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
The intent of the offender to lie with the female defines the
distinction between attempted rape and acts of lasciviousness.
The felony of attempted rape requires such intent; the felony of
acts of lasciviousness does not. Only the direct overt acts of
the offender establish the intent to lie with the female.
However, merely climbing on top of a naked female does not
constitute attempted rape without proof of his erectile penis
being in a position to penetrate the female's vagina.
The Case
This appeal examines the decision promulgated on July 26,
2004,1 whereby the Court of Appeals (CA) affirmed the
conviction for attempted rape of the petitioner by the Regional
Trial Court, Branch 34, in Balaoan, La Union (RTC), and
imposing on him the indeterminate penalty of imprisonment of
four (4) years and two (2) months of prision correccional, as
minimum, to ten (10) years of prision mayor, as maximum, and
ordering him to pay moral damages of P20,000.00 to AAA,2 the
victim.
Antecedents
The petitioner was charged in the RTC with attempted rape
and acts of lasciviousness involving different victims. At
arraignment, he pleaded not guiltyto the respective
informations, to wit: Criminal Case No. 2388
Attempted Rape
That on or about the 21st day of December 1993, at about 2:00
o'clock in the morning, along the Bangar-Luna Road, Barangay
Central West No. 2, Municipality of Bangar,Province of La
Union, Philippines and within the jurisdiction of this Honorable
Court, said accused, did then and there willfully, unlawfully and
feloniously and by means of force and intimidation commenced
the commission ofrape directly byovert acts, to wit: While

No.

2389

That on or about the 21st day of December 1993, at about 3:00

oclock in the morning, along the Bangar-Luna Road, Barangay
Central West No. 2, Municipality of Bangar, Province of La
Union, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused with lewd design, did then
and there willfully, unlawfully and feloniously touch the vagina
of [BBB]4 against the latters will and with no other purpose but
to satisfy his lascivious desire to the damage and prejudice of
said offended party.
CONTRARY TO LAW.5
Version of the Prosecution
The CA summarized the version of the Prosecution as follows:6
x x x [Petitioner] Norberto Bartolome and [his wife] Belinda
Cruz were engaged in the selling of plastic wares and glass
wares in different municipalities around the country. On
December 20, 1993, Norberto and Belinda employed AAA and
BBB to help them in selling their wares in Bangar, La Union
which was then celebrating its fiesta. From Libsong East,
Lingayen, Pangasinan to Bangar, La Union, AAA and BBB
boarded a passenger jeepney owned by Norberto. The young
girls were accompanied by Norberto, Belinda, Ruben
Rodriguez (driver) and a sales boy by the name of "Jess".
Upon reaching Bangar, La Union, at around 8:00 in the
evening of December 20, 1993, they parked in front of Maroon
enterprises. They brought out all the goods and wares for
display. Two tents were fixed in order that they will have a
place to sleep. Belinda and the driver proceeded to Manila in
order to get more goods to be sold.
On December 21, 1993, at around 1:00 oclock in the morning,
AAA and BBB went to sleep. Less thanan hour later, AAA was
awakened when she felt that somebody was on top of her.
Norberto was mashing her breast and touching her private
part. AAA realized that she was divested of her clothing and
that she was totally naked. Norberto ordered her not to scream
or shell be killed. AAA tried to push Norberto away and
pleaded to have pity on her but her pleas fell on deaf ears. She
fought back and kicked Norberto twice.
Norberto was not able to pursue his lustful desires. Norberto
offered her money and told her not totell the incident to her

mother otherwise, she will be killed. AAA went out of the tent to
seek help from Jess (the house boy) but she failed to wake him
up.
Thirty minutes later, when AAA returned to their tent, she saw
Norberto touching the private parts of BBB. AAA saw her
companion awake but her hands wereshaking. When she
finally entered the tent, Norberto left and went outside.
Later that day, AAA and BBB narrated to Jess the incident that
took place that early morning. Later still, while they were on
their way to fetch water, AAA and BBB asked the people
around where they can find the municipal building. An old
woman pointed to them the place.
In the evening of December 21, 1993, AAA and BBB went
straight to the municipal hall where they met a policeman by
the name of "Sabas".
They told Sabas the sexual advances made to them by
Norberto. Norberto was summoned to the police station where
he personally confronted his accusers. When Norbertos wife,
Belinda, arrived at the police station, an argument ensued
between them.
On December 22, 1993, at around 2:20 oclock in the morning,
the police investigator ordered the complainants to return
at6:00 oclock in the morning. Norberto and Belinda were still
able to bring AAA and BBB home with them and worked for
them until December 30, 1994, after which they were sent back
to Lingayen, Pangasinan.
On January 10, 1994, AAA and BBB went back to La Union
and executed their respective sworn statements against
Norberto.
Version of the Defense
The petitioner denied the criminal acts imputed to him. His
version was presented in the assailed decision of the CA, 7 as
follows:
In a bid to exculpate himself, accused-appellant presents a
totally different version of the story. The accused maintains that
it was not possible for him to commit the crimes hurled against
him. On the date of the alleged incident, there were many
people around who were preparing for the "simbang gabi".
Considering the location of the tents, which were near the road
and the municipal hall, he could not possibly do the dastardly
acts out in the open, not to mention the fact that once AAA and
BBB would scream, the policemen in the municipal hall could
hear them. He believes that the reason why the complainants
filed these cases against him was solely for the purpose of
extorting money from him.
Judgment of the RTC
After the joint trial of the two criminal cases, the RTC rendered
its judgment on April 6, 2000 finding the petitioner guilty
beyond reasonable doubt of attempted rape in Criminal Case
No. 2388 and acts of lasciviousness in Criminal Case No.
2389,8 to wit:

WHEREFORE, in the light of the foregoing, the Court hereby

renders judgment declaring the accused NORBERTO CRUZ Y
BARTOLOME guilty beyond reasonable doubt of the crimes of
ATTEMPTED RAPE and ACTS OF LASCIVIOUSNESS as
defined and penalized in Article 335 in relation with (sic) Article
6, par. 3 and Article 336 of the Revised Penal Code
respectively. With respect to the crime of ATTEMPTED RAPE,
the Court hereby sentences the accused to suffer an
indeterminate penalty of imprisonment from FOUR (4) YEARS
and TWO (2) MONTHS PRISION CORRECCIONAL as
Minimum to TEN (10) YEARS PRISION MAYOR as Maximum
and the accessory penalties provided for by law and to pay the
victim AAA the amount of P20,000.00 as moral damages.
With regard to the crime ofACTS OF LASCIVIOUSNESS, the
Court hereby sentences the accused to suffer an indeterminate
penalty of imprisonment from FOUR (4) MONTHS ARRESTO
MAYOR as Minimum to FOUR (4) YEARS and TWO (2)
MONTHS PRISION CORRECCIONAL as Maximum and the
accessory penalties provided for by law, and to pay the victim
BBBthe amount of P10,000.00 as moral damages.
The preventive imprisonment suffered by the accused by
reason of the two cases is counted in his favor.
SO ORDERED.9
Decision of the CA
On appeal, the petitioner contended that the RTC gravely erred
in convicting him of attempted rape despite the dubious
credibility of AAA, and of acts of lasciviousness despite the fact
that BBB did not testify.
On July 26, 2004, the CA promulgated its decision affirming the
conviction of the petitioner for attempted rape in Criminal Case
No. 2388, but acquitting him of the acts of lasciviousness
charged in Criminal Case No. 2389 due to the insufficiency of
the evidence,10 holding thusly:
In sum, the arguments of the accused-appellant are too puerile
and inconsequential as to dent, even slightly, the overall
integrity and probative value of the prosecution's evidence
insofar as AAA is concerned.
Under Article 51 of the Revised Penal Code, the penalty for an
attempted felony is the "penalty lower by two (2) degrees"
prescribed by law for the consummated felony. In this case, the
penalty for rape if it had been consummated would have been
reclusion perpetuapursuant to Article 335 of the Revised
Penalty Code, as amended by Republic Act No. 7659. The
penalty two degrees lower than reclusion perpetuais prision
mayor.
Applying the Indeterminate Sentence Law, the maximum term
of the penalty shall be the medium period of prision mayorin
the absence of any mitigating or aggravating circumstance and
the minimum shall be within the range of the penalty nextlower
to that prescribed for the offense which in this case is prision
correccionalin any of its periods.

We also find that the trial court correctly assessed the amount
of P20,000.00 by way of moral damages against the accusedappellant. In a rape case, moral damages may be awarded
without the need of proof or pleading since it is assumed that
the private complainant suffered moral injuries, more so, when
the victim is aged 13 to 19.
Insofar as the crime of acts of lasciviousness committed
against BBB, the accused argues that there is not enough
evidence to support such accusation. BBB did not testify and
neither her sworn statement was formally offered in evidence
to support the charge for acts of lasciviousness.
In this case, the evidence adducedby the prosecution is
insufficient to substantiate the charge of acts of lasciviousness
against the accusedappellant. The basis of the complaint for
acts of lasciviousness is the sworn statement of BBB to the
effectthat the accused-appellant likewise molested her by
mashing her breast and touching her private part. However,
she was not presented to testify. While AAA claims that she
personally saw the accused touching the private parts of BBB,
there was no testimony to the effect that suchlascivious acts
were without the consent or against the will of BBB.11
Issues
In this appeal, the petitioner posits that the CAs decision was
not in accord with law or with jurisprudence, particularly:
I. In giving credence to the incredulous and unbelievable
testimony of the alleged victim; and
II. In convicting the accused notwithstanding the failure of the
prosecution to prove the guilt of the petitioner beyond
reasonable doubt.
Anent the first issue, the petitioner assails the behavior and
credibility of AAA. He argues that AAA still continued working
for him and his wife until December 30, 1994 despite the
alleged attempted rape in the early morning of December 21,
1994, thereby belying his commission of the crime against her;
that he could not have undressed her without rousing her if she
had gone to sleep only an hour before, because her bra was
locked at her back; that her testimony about his having been
on top of her for nearly an hour while they struggled was also
inconceivable unless she either consented to his act and
yielded to his lust, or the incident did not happen at all, being
the product only of her fertileimagination; that the record does
not indicate if he himself was also naked, or that his penis was
poised to penetrate her; and that she and her mother
demanded from him P80,000.00 as settlement, under threat
that she would file a case against him.12
On the second issue, the petitioner assails the glaring
inconsistencies in the testimony of AAA that cast doubt on her
veracity.
Ruling of the Court
The appeal is partly meritorious.

In an appeal under Rule 45 of the Rules of Court,13 the Court

reviews only questions of law. No review of the findings of fact
by the CA is involved. As a consequence of thisrule, the Court
accords the highest respect for the factual findings of the trial
court, its assessment of the credibility of witnesses and the
probative weight of their testimonies and the conclusions
drawn from its factual findings, particularly when they are
affirmed by the CA. Judicial experience has shown, indeed,
that the trial courts are in the best position to decideissues of
credibility of witnesses, having themselves heard and seen the
witnesses and observed firsthand their demeanor and
deportment and the manner of testifying under exacting
examination. As such, the contentionsof the petitioner on the
credibility of AAA as a witness for the State cannot
beentertained. He thereby raises questions of fact that are
outside the scope of this appeal. Moreover, he thereby
proposes to have the Court, which is not a trier of facts, review
the entire evidence adduced by the Prosecution and the
Defense.
Conformably with this limitation, our review focuses only on
determining the question of law of whether or not the
petitioners climbing on top of the undressed AAA such thatthey
faced each other, with him mashing her breasts and touching
her genitalia with his hands, constituted attempted rape, the
crime for which the RTC and the CA convicted and punished
him. Based on the information, supra, he committed such acts
"with intent of having carnal knowledge ofher by means of
force, and if the accused did not accomplish his purpose that is
to have carnal knowledge of the said AAA it was not because
of his voluntary desistance but because the said offended party
succeeded in resisting the criminal attempt of said accused to
the damage and prejudice of said offended party."
There is an attempt, according to Article 6 of the Revised Penal
Code, when the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts
of execution which should produce the felony by reason of
some cause or accident other than this own spontaneous
desistance. In People v. Lamahang,14 the Court, speaking
through the eminent Justice Claro M.Recto, eruditely
expounded on what overt acts would constitute anattempted
felony, to wit:
It is our opinion that the attempt to commit an offense which
the Penal Code punishes is that which has a logical relation to
a particular, concrete offense; that, which is the beginning of
the execution of the offense by overt acts of the perpetrator,
leading directly to its realization and consummation. The
attempt to commit an indeterminate offense, inasmuch as its
nature in relation to its objective is ambiguous, is not a juridical
fact from the standpoint of the Penal Code. xxxx But it is not
sufficient, for the purpose of imposing penal sanction, that an
act objectively performed constitute a mere beginning of
execution; it is necessary to establish its unavoidable
connection, like the logical and natural relation of the cause
and its effect, with the deed which, upon its consummation, will
develop into one of the offenses defined and punished by the
Code; it is necessary to prove that said beginning of execution,
if carried to its complete termination following its natural
course, without being frustrated by external obstacles nor by

the voluntary desistance of the perpetrator, will logically and

necessarily ripen into a concrete offense. x x x x.
"It must be borne in mind (I Groizard, p. 99) that in offenses not
consummated, as the material damage iswanting, the nature of
the action intended (accion fin) cannot exactly be ascertained,
but the same must be inferred from the nature of the acts of
execution (accion medio). Hence, the necessity that these acts
be such that by their very nature, by the facts to which they are
related, by the circumstances of the persons performing the
same, and by the things connected therewith, they must show
without any doubt, that they are aimed at the consummation of
a crime. Acts susceptible of double interpretation, that is, in
favor as well as against the culprit, and which show an
innocent aswell as a punishable act, must not and cannot
furnish grounds by themselves for attempted or frustrated
crimes. The relation existing between the facts submitted for
appreciation and the offense of which said facts are supposed
to produce must be direct; the intention must be
ascertainedfrom the facts and therefore it is necessary, in order
to avoid regrettable instance of injustice, that the mind be able
to directly infer from them the intention of the perpetrator to
cause a particular injury. This must have been the intention of
the legislator in requiring that in order for an attempt to exist,
the offender must commence the commission of the felony
directly by overt acts, that is to say, that the acts performed
must be such that, withoutthe intent to commit an offense, they
would be meaningless."15
To ascertain whether the acts performed by the petitioner
constituted attempted rape, we have to determine the law on
rape in effect on December 21, 1993, when the petitioner
committed the crime he was convicted of. That law was Article
335 of the Revised Penal Code, which pertinently provided as
follows:
Article335. When and how rape is committed. Rape is
committed by having carnal knowledge of a woman under any
of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived ofreason or otherwise
unconscious; and
3. When the woman is under twelve years of age, even though
neither of the circumstances mentioned in the two next
preceding paragraphs shall be present.
xxxx
The basic element of rape then and now is carnal knowledge
of a female. Carnal knowledge isdefined simply as "theact of a
man having sexual bodily connections with a woman," 16 which
explains why the slightest penetration of the female genitalia
consummates the rape. In other words, rape is consummated
once the peniscapable of consummating the sexual act
touches the external genitalia of the female. 17 In People v.
Campuhan,18 the Court has defined the extent of "touching" by
the penis in rape in the following terms:

[T]ouching when applied to rape cases does not simply mean

mere epidermal contact, stroking or grazing of organs, a slight
brush or a scrape of the penis on the external layer of the
victims vagina, or the mons pubis, as in this case. There must
be sufficient and convincing proof that the penis indeedtouched
the labias or slid into the female organ, and not merely stroked
the external surface thereof, for an accused to be convicted of
consummated rape. As the labias, which are required to be
"touched" bythe penis, are by their natural situsor location
beneath the mons pubisor the vaginal surface, to touch them
with the penis is to attain some degree of penetration beneath
the surface, hence, the conclusion that touching the labia
majora or the labia minora of the pudendum constitutes
consummated rape.
The pudendumor vulvais the collective term for the female
genital organs that are visible in the perineal area, e.g., mons
pubis, labia majora, labia minora, the hymen, the clitoris, the
vaginal orifice, etc. The mons pubisis the rounded eminence
that becomes hairy after puberty, and is instantly visible within
the surface. The next layer is the labia majoraor the outer lips
of the female organ composed of the outer convex surface and
the inner surface. The skin of the outer convex surface is
covered with hair follicles and is pigmented, while the inner
surface is a thin skin which does not have any hair but has
many sebaceous glands. Directly beneath the labia majorais
the labia minora. Jurisprudence dictates that the labia
majoramust be entered for rape to be consummated, and not
merely for the penis to stroke the surface of the female organ.
xxxx Thus, a grazing of the surface of the female organ or
touching the mons pubisof the pudendum is not sufficient to
constitute consummated rape. Absent any showing of the
slightest penetration of the female organ, i.e., touching of either
labia of the pudendumby the penis, there can be no
consummated rape; at most, it can only be attempted rape, if
not acts of lasciviousness. [Bold emphasis supplied]
It is noteworthy that in People v. Orita,19 the Court clarified that
the ruling in People v. Eriia20 whereby the offender was
declared guilty of frustrated rapebecause of lack of conclusive
evidence of penetration of the genital organ of the offended
party, was a stray decisionfor not having been reiterated in
subsequent cases. As the evolving case law on rape stands,
therefore, rape in its frustrated stage is a physical impossibility,
considering that the requisites of a frustrated felony under
Article 6 of the Revised Penal Codeare that: (1) the offender
has performed all the acts of execution which would produce
the felony; and (2) that the felony is not produced due to
causes independent of the perpetrators will. Obviously, the
offender attains his purpose from the moment he has carnal
knowledge of his victim, because from that moment all the
essential elements of the offense have been accomplished,
leaving nothing more to be done by him.21
Nonetheless, rape admits of an attempted stage. In this
connection, the character of the overt actsfor purposes of the
attempted stage has been explained in People v. Lizada:22
An overt or external act is defined as some physical activity or
deed, indicating the intention to commit a particular crime,
more than a mere planning or preparation, which if carried out

to its complete termination following its natural course, without

being frustrated by external obstacles nor by the spontaneous
desistance of the perpetrator, will logically and necessarily
ripen into a concrete offense. The raison detrefor the law
requiring a direct overtact is that, in a majority of cases, the
conduct of the accused consisting merely of acts of preparation
has never ceased to be equivocal; and this is necessarily so,
irrespective of his declared intent. It is that quality of being
equivocal that must be lacking before the act becomes one
which may be said to be a commencement of the commission
of the crime, or an overt act or before any fragment of the
crime itself has been committed, and this is so for the reason
that so long as the equivocal quality remains, no one can say
with certainty what the intent of the accused is.It is necessary
that the overt act should have been the ultimate step towards
the consummation of the design. It is sufficient if it was the
"first or some subsequent step in a direct movement towards
the commission of the offense after the preparations are
made." The act done need not constitute the last proximate
one for completion. It is necessary, however, that the attempt
must have a causal relation to the intended crime. In the words
of Viada, the overt acts must have an immediate and
necessary relation to the offense. (Bold emphasis supplied)
In attempted rape, therefore, the concrete felony is rape, but
the offender does not perform all the acts of execution of
having carnal knowledge. If the slightest penetration of the
female genitalia consummates rape, and rape in its attempted
stage requires the commencement of the commission of the
felony directly by overt actswithout the offender performing all
the acts of execution that should produce the felony, the only
means by which the overt acts performed by the accused can
be shown to have a causal relation to rape as the intended
crime is to make a clear showing of his intent to lie with the
female. Accepting that intent, being a mental act, is beyond the
sphere of criminal law,23 that showing must be through his
overt acts directly connected with rape. He cannot be held
liable for attempted rape withoutsuch overt acts demonstrating
the intent to lie with the female. In short, the State, to establish
attempted rape, must show that his overt acts, should his
criminalintent be carried to its complete termination without
being thwarted by extraneous matters, would ripen into
rape,24 for, as succinctly put in People v. Dominguez, Jr.:25 "The
gauge in determining whether the crime of attempted rape had
been committed is the commencement of the act of sexual
intercourse, i.e., penetration of the penis into the vagina,
before the interruption."
The petitioner climbed on top of the naked victim, and was
already touching her genitalia with his hands and mashing her
breasts when she freed herself from his clutches and
effectively ended his designs on her. Yet, inferring from such
circumstances thatrape, and no other,was his intended felony
would be highly unwarranted. This was so, despite his lust for
and lewd designs towards her being fully manifest. Such
circumstances remained equivocal, or "susceptible of double
interpretation," as Justice Recto put in People v. Lamahang,
supra, such that it was not permissible to directly infer from
them the intention to cause rape as the particular injury. Verily,
his felony would not exclusively be rapehad he been allowed

by her to continue, and to have sexual congress with her, for

some other felony like simple seduction (if he should employ
deceit to have her yield to him)26 could also be ultimate felony.
We clarify that the direct overt acts of the petitioner that would
have produced attempted rape did not include equivocal
preparatory acts. The former would have related to his acts
directly connected to rape as the intended crime, but the latter,
whether external or internal, had no connection with rape as
the intended crime. Perforce, his perpetration of the
preparatory acts would not render him guilty of an attempt to
commit such felony.27 His preparatory acts could include his
putting up of the separate tents, with one being for the use of
AAA and BBB, and the other for himself and his assistant, and
his allowing his wife to leave for Manila earlier that evening to
buy more wares. Such acts, being equivocal, had no direct
connection to rape. As a rule, preparatory acts are not
punishable under the Revised Penal Codefor as long as they
remained equivocal or of uncertain significance, because by
their equivocality no one could determine with certainty what
the perpetrators intent really was.28
If the acts of the petitioner did not constitute attempted rape,
did they constitute acts of lasciviousness?
It is obvious that the fundamental difference between
attempted rape and acts of lasciviousness is the
offendersintent to lie with the female. In rape, intent to lie with
the female is indispensable, but this element is not required in
acts of lasciviousness.29 Attempted rape is committed,
therefore, when the "touching" of the vagina by the penis is
coupled with the intent to penetrate. The intent to penetrate is
manifest only through the showing of the penis capable of
consummating the sexual act touching the external genitalia of
the female.30 Without such showing, only the felony of acts of
lasciviousness is committed.31
Based on Article 336 of the Revised Penal Code, the felony of
acts of lasciviousness is consummated whenthe following
essential elements concur, namely: (a) the offender commits
any act of lasciviousness or lewdness upon another person of
either sex; and (b) the act of lasciviousness or lewdness is
committed either (i) by using force or intimidation; or (ii) when
the offended party is deprived ofreason or is otherwise
unconscious; or (iii) when the offended party is under 12 years
of age.32 In that regard, lewdis defined as obscene, lustful,
indecent, lecherous; it signifies that form of immorality that has
relation to moral impurity; or that which is carried on a wanton
manner.33
The information charged that the petitioner "remove[d] her
panty and underwear and la[id] on top of said AAA embracing
and touching her vagina and breast." With such allegation of
the information being competently and satisfactorily proven
beyond a reasonable doubt, he was guilty only of acts of
lasciviousness, not attempted rape. His embracing her and
touching her vagina and breasts did not directly manifest his
intent to lie with her. The lack of evidence showing his erectile
penis being in the position to penetrate her when he was on
top of her deterred any inference about his intent to lie with her.
At most, his acts reflected lewdness and lust for her.

The intent to commit rape should not easily be inferred against

the petitioner, even from his own declaration of it, if any, unless
he committed overt acts directly leading to rape. A good
illustration of this can be seen in People v. Bugarin,34 where the
accused was charged with attempted rape through an
information alleging that he, by means of force and
intimidation, "did then and there willfully, unlawfully and
feloniously commence the commission of the crime of Rape
directly by overt acts, by then and there kissing the nipples and
the vagina of the undersigned [complainant], a minor, and
about to lay on top of her, all against her will, however, [he] did
not perform all the acts of execution which would have
produced the crime of Rape by reason of some causes other
than his own spontaneous desistance, that is, undersigned
complainant push[ed] him away." The accused was held liable
only for acts of lasciviousness because the intent to commit
rape "is not apparent from the actdescribed," and the intent to
have sexual intercourse with her was not inferable from the act
of licking her genitalia. The Court also pointed out that the "act
imputed to him cannot be considered a preparatory act to
sexual intercourse."35
Pursuant to Article 336 of the Revised Penal Code, the
petitioner, being guilty of acts of lasciviousness, is punished
with prision correccional. In the absence of modifying
circumstances, prision correccional is imposed in its medium
period, which ranges from two (2) years, four (4) months and
one day to four (4) years and two (2) months. Applying the
Indeterminate Sentence Law, the minimum of the penalty
should come from arresto mayor, the penalty next lower than
prision correccionalwhich ranges from one (1) month to six (6)
months. Accordingly, the Court fixes the indeterminate
sentence of three (3) months of arresto mayor, as the
minimum, to two (2) years, four (4) months and one day of
prision correccional, as the maximum.

In acts of lasciviousness, the victim suffers moral injuries

because the offender violates her chastity by his
lewdness.1wphi1 "Moral damages include physical suffering,
mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and similar
injury. Though incapable of pecuniary computation, moral
damages may be recovered if they are the proximate result of
the defendant's wrongful act for omission." 36 Indeed, Article
2219, (3), of the Civil Code expressly recognizes the right of
the victim in acts of lasciviousness to recover moral
damages.37 Towards that end, the Court, upon its appreciation
of the record, decrees that P30,000.00 is a reasonable award
of moral damages.38 In addition, AAA was entitled to recover
civil indemnity of P20,000.00.39
Under Article 2211 of the Civil Code, the courts are vested with
the discretion to impose interest as a part of the damages in
crimes and quasidelicts. In that regard, the moral damages
of P20,000.00 shall earn interest of 6% per annum reckoned
from the finality of this decision until full payment.40
WHEREFORE, the Court FINDS and PRONOUNCES
petitioner NORBERTO CRUZ y BARTOLOME guilty of ACTS
OF LASCIVIOUSNESS, and, ACCORDINGLY, PENALIZES
him with the indeterminate sentence of three (3) months of
arresto mayor, as the minimum, to two (2) years, four (4)
months and one day of prision correccional, as the maximum;
ORDERS him to pay moral damages of P30,000.00 and civil
indemnity of P20,000.00 to the complainant, with interest of 6%
per annum on such awards reckoned from the finality of this
decision until full payment; and DIRECTS him to pay the costs
of suit.
SO ORDERED.