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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-3090 January 9, 1951

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RICARDO LIMACO, defendant-appellant. Menandro Quiogue for appellant. Assistant Solicitor General Guillermo E. Torres and Solicitor Jose G. Bautista for appellee. MONTEMAYOR, J.: This is an appeal to suspend the decision of conviction for the crime of triple murder sentencing the accusedappellant Ricardo Limaco to "life imprisonment at hard labor, without hope of any pardon or reprieve whatsoever, to indemnify the heirs of the deceased Severa Envelino, Sofia Envelino and Matrina Amores in the sum of P6,000 each (People vs. Amansec, G.R. No. L-927, March 11, 1948)*, without subsidiary imprisonment in case of insolvency, and to pay the costs." After a review of the record of the case, we find the following facts to have been fully established. On June 30, 1948, Liberato Envelino, his wife and son left their house in Sitio Bunlas, Kabankalan, Negros Occidental, to work on their clearing or kaingin several kilometers away. In the house were left his three daughters Inacia, Severa, and Sofia, all surnamed Envelino and a niece Martina Amores, aged 15, 14, 5 and 3 respectively. According to the eldest daughter, Inacia, at about 4 o'clock in the afternoon, appellant Ricardo Limaco came to the house and found the four girls in the kitchen. He asked her sister Severa to sell him a pig which he wanted to butcher. Severa told him that he better wait for her parents because she would not dare sell the animal in their absence and without their consent. Visibly disappointed and resenting her refusal to sell, he addressed Severa thus: "If you do not want to, it is better that you will be hacked because you are selfish." Almost simultaneously, he drew his bolo, Exhibit A, locally known as "talibong", from its sheath, Exhibit A-1 and attacked Severa with it, inflicting on her seven wounds, two of which were mortal; Sofia and Martina rushed to Severa and embraced her, but Ricardo in his fury also boloed them, inflicting on each four wounds, two of which were mortal. The three girls died on the spot. In the meantime, Inacia who witnessed the horrible slaughter drew back in terror, and fearing that her turn would come next, jumped down from the kitchen through an opening in the wall and hid herself in the bushes. After an hour and thinking that the accused had left, she ventured into the house and found the dead bodies of her two sisters and niece, sprawled on the very spot in the kitchen where she last saw them, covered with wounds. Later, in the evening her parents and brother arrived and she related the gory details. The authorities in Kabankalan were finally notified and the chief of police and one policeman and the president of the Sanitary Division went to the place and made the corresponding investigation. The accused was arrested by two policemen in his home in sitio Nabhang, municipality of Ayungon, and according to the policemen he admitted to them

having killed the three girls, even surrendering the bolo, Exhibit A, with which he boloed them, with its corresponding scabbard, Exhibit A-1. During this detention in the municipal jail in Kabankalan, he made a written statement, Exhibit B, with its corresponding translation (Exhibit B-1) which was sworn to and subscribed by him before Justice of the Peace Garaygay on July 10, 1948. In this affidavit, the appellant states that early in the morning of June 30, 1948, he and his father Rufo Limaco and his step-mother went to sitio Carul-an, Ayungon, to make some purchases at the market there; that at about 8 o'clock that same morning, his father and stepmother returned to their home in sitio Nabhang but he remained and went to the cockpit; that in the afternoon he started for his home but passed by the house of Liberato Envelino in sitio Bunlas in order to ask him to catch a carabao of his father for he (defendant) intended to pasture it around his house to get rid of the tall grass growing there; that Liberato was employed by his father Rufo Limaco as a herder or caretaker of their carabaos; that upon reaching the house of Liberato he found the four girls already mentioned and inquired for Liberato, saying that he wanted him to catch one of his father's carabaos but that instead of giving a civil answer, Severa answered in anger. We quote a pertinent portion of Exhibit B-1: "Why, what is the meaning of asking where my father is; you are not giving us food for dinner or supper." I answered, "Not of course, but I have something to do with your father, to have him catch one of our carabaos." Then she answered me again saying, "Catch the carabao, none of your business to order us to catch your carabao, I will throw you with this piece of wood." Later on while we were exchanging hot words, she threw me with a piece of wood, but I parried it with my hand. Q. After Severa Envelino had thrown you with a piece of wood, what did you do? A. Because I got mad at her for the pain I felt in my hand, I forgot everything and pulled out my "talibong" I had with me that time, and hacked Severa Envelino unconsciously, and later, I happened to include the two children who were her sister and niece, mentioned above, because they were hugging Severa Envelino at the time I was stabbing her and as a result of that three of them died inside the house in sitio Bunlas, Kabankalan, Negros Occidental, on that time and date. Q. After killing the three of them, what did you do then? A. I went home immediately to Nabhang, Oriental Negros where my father live and I did not tell anybody in the house what happened to me; and they came to know the incident on Monday of July 5, 1948 when I was arrested by the policemen from Kabankalan. Q. Where were the wounds in the bodies of Severa Envelino and the children whom you killed? A. I do not know, I was not able to find out where, because I kept on hacking them and when all of them were dead I went down the house. Q. Who were the persons present there at the time you killed Severa Envelino and the other children? A. There was no other person present, only the four of them, whom I have mentioned above. I was not able to stab Inacia Envelino, their elder sister because at the time I was hacking her sister she jumped out of the kitchen and hid among the bushes.. Q. Where is your "talibong" which you used in killing Severa Envelino and the two children? A. It was now in the possession of the Chief of Police of Kabankalan, Negros Occidental, because it was taken by the policemen from our house when they arrested me on July 4, 1948. In a confidential report prepared by the Chief of Police of Kabankalan for the Provincial Commander of Occidental Negros, dated July 15, 1948 (Exhibit H), the chief of police stated that appellant Ricardo Limaco admitted to him that

he had killed Severa, Sofia and Martina on June 30, 1948, and practically repeated the details about the killing and the reason therefor as contained in the affidavit (Exhibit B-1). The chief of police also states in his report that he had examined appellant's father, Rufo Limaco, who told him that when Ricardo came home that day, June 30, 1948, he brought with him the meat of a rooster killed in the cockpit but was surprised to see blood smeared on his clothes and on the handle of his bolo or "talibong", and when he asked him about the blood stains Ricardo informed him that in cutting up the rooster while it was still alive it struggled and its blood spurted on him and stained his shirt and his bolo. We are fully satisfied that the appellant killed the three girls in the manner already described at the beginning of this decision. We are not impressed by the claim of the accused that he was ill-treated by the police in order to obtain from him his written statement, Exhibit B, and that he signed the same before the justice of the peace without knowing its contents. The alleged ill-treatment was denied by the police, and the justice of the peace on the witness stand told the court that he saw no marks of ill-treatment or torture on the body of the accused who signed the statement after the contents had been fully explained to him. But even without this affidavit, Exhibit B, we find the testimony of Inacia Envelino to be straightforward and sincere and sufficient on which to base the conviction of the appellant. At the trial, the appellant interposed the defense of alibi claiming that he could not have committed the crime in the sitio of Bunlas in the afternoon of June 30, 1948, because he never left his house in his barrio of Nabhang from the morning of that day until the day following. In this he was corroborated by his friend Ciriaco Batollo and his father Rufo Limaco. After analyzing the evidence for the accused on this point, and citing several authorities, the lower court rejected this defense, stating that Batollo was an interested witness "due to the bond of friendship existing between himself on one hand and the accused and his father on the other, or that he was a paid or fabricated witness who manufactured untold lies before the court." As to the father Rufo Limaco, the trial court said that his testimony of trial supporting his son's defense of alibi is belied by his testimony given at the preliminary investigation and by his affidavit, Exhibit I. We agree to the trial court's rejection of this defense of alibi. As a matter of fact, appellant's counsel abandoned this defense of alibi in his brief. Neither does he deny that the appellant is the author of the killing. He merely asks that the sentence be suspended and that his client be committed to the Psychopathic Hospital for mental observation. In our opinion, and considering was has transpired between the commission of the crime and the end of the trial, there is no reason for granting this request. In other words, there is no reason to believe that the appellant is now insane or did not have the use of his reason at the time he committed the crime. There is no evidence that in all his life he ever had attacks of insanity, lunacy, or epilepsy that should have deprived him of reason and discernment, even momentarily. On the contrary, he seems to be normal in every respect. We quote from the decision of the trial judge who had the opportunity to serve him on the witness stand: The Court had seen the defendant testify on his own behalf; if had observed his stern look from his pair of cold terrifying eyes. Cold and dry in his demeanor and answering in counsel's questions intelligently, the defendant impressed the Court as a man who was not insane at the time when he mercilessly hacked to death his three young victims, but was simply a plain blood-thirsty looking man in his early twenties. The trial court found the accused guilty of murder. That is correct. Attacking three weak and defenseless girls, two of them only five and three years old, suddenly and with a deadly weapon like a bolo, against which unexpected assault they could not defend themselves, clearly constitutes treachery which qualifies the killing and raises it to the category of murder. The trial court further found present the aggravating circumstances of abuse of superior strength, disregard of respect due to sex and age, and that the crime was committed in the dwelling of the victims. The finding of the aggravating circumstance of dwelling is also correct; not so however, with abuse of superior strength and disregard of respect due to sex and age. Said two circumstances may be regarded as included in that of treachery. On this point

the Supreme Court in the case of People vs. Mangsant, 65 Phil., 548, citing Viada, says the following: . . . The aggravating circumstance of disregard to sex cannot be considered because it has neither been proved nor admitted by the defendant that in committing the crime he had intended to offend or insult the sex of the victim. Viada, in his commentaries on the Penal Code, Volume I, page 329, says: "Question III. In the murder of a girl of 14 years, qualified as such by treachery, is it proper to consider the aggravating circumstance of disregard of respect due the offended party on account of her age?" The Supreme Court has resolved the same in the negative, saying: "Considering that the trial court did not err in not considering against the accused the 20th aggravating circumstance of article 10, because nothing appears in the judgement from which it may be presumed that in the commission of the crime, the accused deliberately intended to offend or insult the sex or age of the offended party, but only to execute his evil purpose in a treacherous manner, taking advantage of the weakness of her sex and the tenderness of her age in order to perpetrate the same without risk to his person, etc." (Decision of June 25, 1878, published in the Gazette of August 25th.) Neither may the aggravating circumstance of abuse of superior strength be taken into account just because of the fact that the defendant is a man and the deceased a woman, inasmuch as this circumstance is inherent in the crime committed and his moreover absorbed by he treachery which, in this case, qualifies the crime as murder. There therefore remains only one aggravating circumstance, namely, that of dwelling. We notice that the trial court imposed only one penalty for the three murders. In this, the trial court erred. There should be a penalty for each of the three separate crimes caused by separate acts or blows committed and inflicted by the appellant. The trial judge severely condemns the act committed by the appellant, calling it hideous and gruesome, committed, in the opinion of the court, either by an insane or by a blood-thirsty criminal, and regards the defendant as plain bloodthirsty, unfit to live in normal and peaceful society, and goes on to say that if said defendant had three lives, he could legally be deprived of each and every one of them, and that the trial court could send him to the electric chair without any compunction of conscience. But strange to say, the trial judge states, and we quote: But a quick death would seem to be too sweet a medicine for him. He does not deserve it. He should be put to death slowly but surely and, in the opinion of the court, life imprisonment at hard labor, without hope whatsoever of any pardon or reprieve, is just the right punishment for him. Further, the trial judge indulges in unfavorable comments on the death penalty. We always respect the private opinions of trial judges tho highly debatable and even if they happen not to harmonize with ours on the subject. But when such private opinions not only form part of their decision but constitute a decisive factor in arriving at a conclusion and determination of a case or he penalty imposed, resulting in an illegality and reversible error, then we are constrained to state our opinion, not only to correct the error but for the guidance of the courts. We have no quarrel with the trial judge or with anyone else, layman or jurist as to the wisdom or folly of the death penalty. Today there are quite a number of people who honestly believe that the supreme penalty is either morally wrong or unwise or ineffective. However, as long as that penalty remains in the statute books, and as long as our criminal law provides for is imposition in certain cases, it is a duty of judicial officers to respect and apply the law regardless of their private opinions. It is a well settled rule that the courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of the Legislature which enacts them and the Chief Executive who approves or vetoes them. The only function of he judiciary is to interpret the laws and, if not in disharmony with the Constitution, to apply them. And for the guidance of the members of the judiciary we feel it

incumbent upon us to state while they as citizens or as judges may regard a certain law as harsh, unwise or morally wrong, and may recommend to the authority or department concerned, its amendment, modification or repeal, still, as long as said law is in force, they must apply it effect as decreed by the law-making body. The crime committed in this case is truly shocking. Three innocent girls, two of tender age, apparently without any provocation, were butchered and hacked to death. While some members of this Court are for imposing the extreme penalty, others believe that the appellant is entitled to a mitigating circumstance, either that he, a relatively ignorant man interpreted the refusal of one of the victims to sell a pig as an affront and thereby became obfuscated and lost his head, or that he lacks education and instruction for the reason that he did not finish even the first grade in elementary school. In that case, this mitigating circumstance will compensate the aggravating circumstance of dwelling, thereby resulting in the imposition of the penalty in its medium degree. For lack of sufficient votes, the penalty will be reclusion perpetua. But this penalty is for each of three murders, it being understood that the maximum period of imprisonment will not exceed forty years. With this modification, the decision appealed from, is hereby affirmed with costs. Moran, C. J., Paras, Feria, Pablo, Bengzon, Padilla, Tuason, Reyes and Jugo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

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. From the records, we gathered the following facts. 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. Criminal Responsibility shall be incurred: 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 15 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. 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 nonstatutory 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. SO ORDERED. Feliciano, Regalado and Nocon, JJ., concur. Narvasa, C.J., is on leave.

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 121200 September 26, 1996 GLORIA A. SAMEDRA LACANILAO and PLUTARCO CADURNIGARA, petitioners, vs. COURT OF APPEALS, EUSEBIO C. ENCARNACION and Sps. RAMON and TERESITA A. ACEBO, respondents.

PADILLA, J.: This is a petition for review on certiorari under Rule 45 of the Rules of Court of the decision * of the Court of Appeals in CA-G.R. CV No. 22952 dated 24 July 1995 which affirmed, with modifications, the decision of the trial court dismissing petitioners' (then plaintiffs) complaint for lack of merit. The facts are not in dispute: Private respondent Eusebio C. Encarnacion (hereinafter, Encarnacion) owned a parcel of residential land in Iriga St., La Loma, Quezon City with an area of 160 square meters. In the 1950s, a house was constructed on a 100 square meter portion of said lot by Deogracia la Torre, with the consent of Encarnacion. The house was eventually bought by Gloria A.S. Lacanilao and her common-law husband, Pablo, where they established their residence. On 12 September 1963, Pablo Lacanilao and Encarnacion entered into a contract of lease over the 100 sq. meter portion occupied by Pablo's house stipulating a monthly rental of P24.00. Earlier, Encarnacion had also leased the 60 square meter portion of his lot to petitioner Plutarco Cadurnigara. Since then petitioners Lacanilao and Cadurnigara have been in possession of the lot under contracts of lease with owner Encarnacion and had religiously paid rentals thereon up to November 1988. In November 1987, Encarnacion offered to sell the lot to Lacanilao and Cadurnigara. After months of negotiation, Encarnacion agreed, by mid May 1988, to sell the property to petitioners for P120,000.00. Since petitioners were not ready to pay the whole amount, they requested for an extension of one (1) month, or up to 15 June 1988 to pay the contract price and for Encarnacion to execute a Deed of Absolute Sale in their favor. Encarnacion agreed. Meanwhile, on 11 June 1988, fire hit the Quezon City hall and one of the offices badly burned was that of the Register of Deeds. Consequently, thousands of original copies of certificates of title, Encarnacion's title included, went into ashes. Petitioners failed to pay the purchase price of P120,000.00 on 15 June 1988. Thereafter, representatives of Encarnacion offered to sell the property to private respondents Ramon and Teresita Acebo. The latter agreed to buy the property for P145,000.00. The Acebos paid P20,000.00 as earnest money to Encarnacion on 18 August 1988, and paid the balance in full on 15 November 1988. Consequently, Encarnacion executed a Deed of Absolute Sale of the property in their favor. The deed was provisionally recorded in the Entry Book of the Register of Deeds as P.E. Nos. 526-527 dated 25 November 1988 and duly inscribed on the dorsal part of the owners duplicate of Transfer Certificate of Title No. 204536.

On 19 November 1988, the Acebos, through counsel, sent petitioners a notice to vacate informing them about the sale by Encarnacion of the entire property (lot) in their favor. Aggrieved, petitioners filed a complaint with the barangay for alleged violation of tenant's right to purchase the lot under Sec. 6, P.D. 1517. After failing to secure any settlement of the controversy, petitioners stopped paying rentals on the lot and filed a complaint before the Regional Trial Court, Branch 66, Quezon City to annul the deed of sale executed by Encarnacion in favor of the Acebos and to compel Encarnacion to execute a deed of sale in their (petitioners) favor. After trial, the trial court rendered judgment dismissing the complaint, the dispositive part of which reads: WHEREFORE, judgment is hereby rendered dismissing the complaint. On the counterclaim, plaintiffs are hereby ordered jointly and severally: a. to pay Eusebio C. Encarnacion the sum of P10,000.00 as moral damages and P5,000.00 as exemplary damages; b. to pay the spouses Ramon and Teresita Acebo the sum of P10,000.00 as moral damages, and P5,000.00 as exemplary damages; c. to pay the spouses Acebos the sum of P5,000.00 as and for attorney's fees. (RTC Branch 86, Q.C. Decision, p. 7; Rollo, p. 16) The evidence before the trial court show that Encarnacion denied having agreed to sell his property to petitioners. On the other hand, petitioners offered only parole evidence to establish that Encarnacion "verbally agreed to sell the lot in question." Applying Articles 1358 and 1403 No. 2(e) of the Civil Code, the trial court ruled that even assumingarguendo that the parties (Encarnacion and petitioners) entered into a verbal contract to sell, the contract is, however, unenforceable. Hence, there is no basis to annul the deed of sale between Encarnacion and the Acebos. On appeal, the Court of Appeals affirmed the trial court's decision but deleted the award of damages and attorney's fees in favor of private respondents. In their petition at bar, petitioners allege that the Court of Appeals erred: I . . . WHEN IT FAILED TO HOLD THE DEFENDANTS SPOUSES ACEBO WERE NOT IN GOOD FAITH WHEN THEY BOUGHT THE PROPERTY BEING FULLY AWARE PLAINTIFFS HAVE SUBSTANTIAL INTEREST AND WERE IRREPARABLY PREJUDICE(D) BY THE SALE IN THEIR FAVOR. II
. . . WHEN IT HELD, THE APPELLANT FAILED TO PAY THE PURCHASE PRICE TO APPELLEE

ENCARNACION; HENCE, THE SAID APPELLEE DID NOT AGREE TO THE SALE.

The petition is not impressed with merit. It is readily apparent that petitioners are raising issues of fact in their petition. In a petition for review under Rule 45 only questions of law may be raised and they must be distinctly set forth. The general rule is that findings of fact of the lower courts (including the Court of Appeals) are final and conclusive and will not be reviewed on appeal except (1) when the conclusion is a finding grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; and (5) when the Court of Appeals, in making its findings went beyond the issues of the case and the same are contrary to the admission of both appellant and appellee. 2 In the case at bar, the question of law is whether or not petitioners, on the basis of a verbal contract to sell by Encarnacion, obtained an enforceable right to buy Encarnacion's property superior to that of the Acebos who claim the same property by virtue of a deed of absolute sale in their favor executed by Encarnacion. It is well established that where the seller promised to execute a deed of absolute sale upon completion of payment of the purchase price by the buyer, the agreement is a contract to sell. 3 In contracts to sell, where ownership is retained by the seller until payment of the price in full, such payment is a positive suspensive condition, failure of which is not really a breach but an event that prevents the obligation of the vendor to convey title in accordance with Article 1184 of the Civil Code. 4 Article 1545 of the Civil Code also provides that "where the obligation of either party to a contract of sale is subject to any condition which is not performed, such party may refuse to proceed with the contract or he may waive performance of the condition." The Court upholds the findings of the Court of Appeals that private respondent Encarnacion verbally agreed to sell the lot to petitioners for P120,000.00 to be paid on 15 June 1988 and that petitioners failed to pay on said date through no fault of Encarnacion who thereupon proceeded to extrajudicially terminate the oral contract. The Court also notes that while the contract between petitioners and Encarnacion was unenforceable under Article 1403 2(e) of the Civil Code, petitioners were allowed to prove its existence and to demand specific performance because private respondents did not invoke said law in their pleadings and even cross-examined petitioners on the existence of the verbal contract. But assuming arguendo that private respondents waived the operation of the statute of frauds, petitioners still failed to discharge the burden of presenting evidence to prove that they were ready to fulfill the condition (of full payment) imposed on the obligation to sell. This factual matter has been amply resolved by the CA in favor of private respondents and can no longer be disturbed on appeal. The Court is not unmindful of the fact that petitioners have been occupying the lot as lessees for almost three (3) decades. They could have obtained a right of first refusal in their contracts of lease with Encarnacion or could have consigned the purchase price in court when Encarnacion allegedly refused to execute the deed of sale in their favor. This Court, while aware of its equity jurisdiction, is first and foremost, a court of law. Hence, while equity might tilt on the side of the petitioners, the same cannot be enforced so as to overrule a positive provision of law in favor of private respondents.

WHEREFORE, premises considered, the petition is hereby DENIED and the decision of the Court of Appeals, for lack of any reversible error, is AFFIRMED in toto. SO ORDERED. Bellosillo, Vitug, Kapunan and Hermosisima, Jr., JJ., concur.

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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 112006 July 7, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO DE VERA Y SANTOS @ BOYET, accused-appellant.

FRANCISCO, J.: This case involves the illegal sale of shabu. The facts lucidly summarized and given credence by the trial court are as follows: 1 Prosecution witness SPO1 Antonio Paras, a policeman of Kalookan City, testified that he and another policeman Renato Dizon were standing at the corner of Osusan and Martinez Streets, Kalookan City at 9:30 o'clock in the evening of March 1, 1993 (p. 3. tsn, June 22, 1993). They were conducting a buy-bust operation on the alleged drugs activity of the accused upon the instruction of police Chief Inspector Edgar Paulino when an informant told them that a certain

"Boyet" whose complete name is Renato de Vera was selling shabu [id.]. Thereafter, the informant accompanied him and his companion to the place where the accused was conducting the alleged illegal activity of selling shabu (p. 4, tsn, id.). The witness further alleged that upon reaching the place, he hid himself at the strategic place and Renato Dizon posed himself as buyer of shabu (id.). He saw when Renato Dizon handed over the buy bust money to the accused (p. 6, tsn, id.). After the lapse of three minutes, the shabu was in turn delivered by the accused to the poseur buyer, Renato Dizon (id.). Consequently, Renato Dizon handcuffed the accused and he (Paras) assisted the former in arresting the accused [id.]. When asked where the shabu came from, the accused informed the two police officers that he only acted as a "runner-seller" of certain "Rene Pasay" and "Boy Tinga", both of Maypajo, Kalookan City [ id.]. The accused was eventually brought to the headquarters where he gave his statement voluntarily (p. 9, tsn, id.). He prepared the referral slip (Exhs. "H" and "H-l") to the NBI with respect to the specimens (Exhs. "D" to "D-4") which were confiscated from the accused. He likewise executed an affidavit (Exhs. "E" to "E-2") relative to the case. The second witness, PO3 Renato Dizon is a policeman assigned at the CIP of Kalookan City, located at Tanique Street, Dagat-Dagatan, Kalookan City (p. 2, tsn, July 13, 1993). He testified that at about 9:30 o'clock in the evening of March 1, 1993, he was with SPO1 Antonio Paras at Martinez street corner Osusan street, Kalookan City and surveilling (sic) the place which was reported to be drugs[-] infested area (p. 3, tsn, id.). Upon instruction of the chief of office, Edgar Paulino, they proceeded at the corner of Martinez street cor Osusan street (p. 4, tsn, id.). While standing thereat, an informant approached and informed them that a certain "Boyet" was selling shabu [id.]. He was introduced by the informant to the accused as a buyer, by uttering the words in the vernacular, to wit: "I-Iscore ito" (pp. 8-9, tsn, id.). He gave the buy-bust money in the amount of P200.00 in 2 pieces of P100.00 bill (p. 9, tsn, id.). He was told by the accused to wait for a while and thereupon the latter left the place but he returned after the lapse of three to four minutes and handed to him a small sachet containing shabu (pp. 9-10, tsn, id.). Consequently, he held the right hand of the accused and his companion Antonio Paras, who was hiding nearby rush (sic) to him and helped him in arresting the accused (pp. 10-1 1, tsn, id). The white crystalline substance taken from appellant which weighs less than one (1) gram, 2 upon laboratory examination by the NBI, was found positive for the regulated drug of metamphetamine hydrochloride or shabu. 3 Thereafter, appellant was charged with 4 and tried for the unauthorized sale of shabu in violation of Section 15 of R.A. 6425. 5 Over his defenses of denial and alibi, the trial court in a decision dated August 10, 1993 convicted appellant of the crime charged and sentenced him to suffer life imprisonment and to pay a fine of P20,000.00, 6which were the penalties prescribed by law at the time of the rendition of judgment a quo. Hence, appellant interposes this appeal arguing that the trial court erred in finding that the prosecution had proven his guilt beyond reasonable doubt as well as in giving credence to the testimony of the prosecution's witnesses. 7 After examining the records, the Court is convinced that the errors imputed to the trial court bear no merit. What appellant assails are fundamentally questions of facts and credibility. Settled is the rule that the factual findings of the trial court, when supported by substantial evidence on record carries great weight on appeal absent any material facts or circumstances that were overlooked or disregarded by the trial court which if considered might vary the outcome of the case. 8 Likewise, the appraisal and evaluation of the credibility of witnesses below is herein upheld not only because of the trial court's unique position of having observed that elusive and incommunicable evidence of

the witnesses' deportment on the stand, which opportunity is denied to the reviewing court 9 but more so since the ulterior motives appellant ascribes on the part of the arresting officers are self-serving and deserve no weight. The elements necessary in every prosecution for the illegal sale of shabu are: (1) identity of the buyer and the seller, the object, and consideration; and
(2) the delivery of the thing sold and the payment therefor. 10

Contrary to appellant's assertion, the prosecution had presented evidence that established both elements by the required quantum of proof i.e. guilt beyond the shadow of reasonable doubt. 11 Appellant was positively identified by the prosecution's eyewitnesses as the person who sold to the poseur-buyer a sachet containing white crystalline substance. 12 His identity as the culprit cannot be doubted having been caught in flagrante delicto in an entrapment operation conducted by the police. Such positive identification prevails over appellant's lone, uncorroborated and weak defenses of denial and alibi. 13 Both defenses which are the common and standard ploy in most prosecutions for violation of the Dangerous Drugs Act have been invariably viewed by the courts with disfavor as they can be fabricated or concocted with familiar ease. 14 In this case, appellant failed to strictly satisfy the two-fold elements of alibi respecting time and place, viz. a) that he was in another place at the time of the commission of the offense, and
b) that he must demonstrate that it would be physically impossible for him to be at the locus criminis at the time of the alleged crime. 15

Appellant's contention that he and his friend Allan Marukot were attending the wake of a certain Vivian in Mabini Extension deserves the barest consideration since said wake, assuming it is true, is only about 40 meters away from the corner of Osusan and Martinez Streets, the place where the illegal sale took place. The propinquity or short distance of the place of the wake to that of the crime scene does not foreclose the physical possibility that appellant could have easily moved to the latter place. 16 His alibi is all the more weakened by the non-presentation of his alleged companion Marukot to corroborate his testimony regarding his whereabouts. Moreover, appellant's other defense of denial, like his alibi cannot be believed in the light of positive testimonies from credible eyewitnesses who are themselves active participants in the entrapment operation. Applicable herein is the rule that:
Denial, if unsubstantiated by clear and convincing evidence, is negative and self-serving evidence which deserves no weight in law and cannot be given greater evidentiary value over the testimony of credible 17 witnesses who testify on affirmative matters.

Appellant also contends that the prosecution had not proven that he knew he (appellant) is selling a regulated drug. Such knowledge, however, is not an element of the crime of illegal sale of shabu. Besides, horrendous traders of illegal drugs conduct their business in the dark and sell their articles in a language vague to ordinary people but clear along the avenues of the markets in the underworld. No wonder why the informant's words "Pare, iiskur ito, baka mayroon ka?" 18 conveyed a clear idea that a poseur-buyer makes a complete offer to buy regulated drug at a certain quantity or price. When the seller accepts the offer or asks 'how much', it shows that he knew what is being bought from him, that he is aware of the prohibited transaction he is entering into and that he is not authorized to do so, otherwise, he would not have sold his contraband under the cloak of the night but instead exposed his business without apprehension of fear.

With respect to the corpus delicti of the crime, the same has been established with certainty and conclusiveness.19 Appellant after leaving the poseur-buyer at the crime scene for about three to four minutes, came back and handed to the latter the sachet containing the shabu. The buyer gave appellant Two hundred pesos (P200.00) for the drug. The delivery of the contraband to the poseur-buyer and the receipt by the seller of the marked money successfully consummate the "buy-bust" transaction between the entrapping officers and appellant. 20 As shown in the laboratory examination, the white crystalline substance contained in the sachet is positive for the regulated drug of shabu. Appellant, thru counsel, even made an admission to that effect. 21 In a vain attempt to exculpate himself from his felonious act, appellant argues that the prosecution witness (Dizon) who acted as the poseur-buyer was allegedly wrongfully motivated because the former fought with a certain person who was a nephew of the latter. The Court cannot believe this excuse. Aside from the presumption that official duty has been regularly performed, 22 the testimony of said witness who is a police officer carries more weight than the negative assertion of appellant. With the proof of sale and the presentation of the corpus delicti, appellant's conviction is in order. As for the penalty, the life imprisonment and fine imposed on appellant by the trial court would have been correct. However, pursuant to the second paragraph of Section 20 of R.A. 6425 as amended by Section 17 of R.A. 7659 which is given retroactive application 23 being favorable to the accused and in accordance with the ruling laid down in People v. Martin Simon, 24 the proper penalty for the sale of less than a gram of shabu would be prision correccional. There being neither mitigating nor aggravating circumstance, the penalty should be imposed in its medium period. Applying the Indeterminate Sentence Law, the imposable penalty for appellant in lieu of 'life imprisonment and fine' should be modified to an imprisonment of six (6) months of arresto mayor, as the minimum, to four (4) years and two (2) months of prision correccional medium, as the maximum. 25 Notwithstanding the absence of any petition for a writ of habeas corpus or any similar judicial relief, appellant's release from imprisonment is in order since he had already served the maximum of the imposable penalty. WHEREFORE, premises considered, the decision of the trial court convicting appellant De Vera of the crime charged is AFFIRMED subject to the MODIFICATION that he shall suffer an indeterminate penalty of six (6) months of arresto mayor, as minimum to four (4) years and two (2) months of prision correccional medium, as maximum. However, since appellant had already served more than the maximum imposable penalty, he should be IMMEDIATELY DISCHARGED from confinement unless held for some other lawful cause. SO ORDERED. Narvasa, C.J., Melo and Panganiban, JJ., concur. Davide, Jr., J., took no part.

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Republic of the Philippines

SUPREME COURT Manila FIRST DIVISION G.R. No. 78470 March 11, 1988 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CARLOS DE LA CRUZ, defendant-appellant. The Solicitor General for plaintiff-appellee. Romeo C. Alinea for defendant-appellant.

CRUZ, J.: The accused-appellant was convicted of rape and sentenced to death by the regional trial court of Olongapo City on January 6, 1987. The case was appealed to this Court. After the abolition of the death penalty under the new Constitution, he was asked to manifest if he still wished to continue his appeal. He declared that he did. Accordingly, the Court proceeded to examine his plea that the trial court had erred and that he was innocent of the charge against him. Our ruling is that it was he who erred. The trial court found that the accused-appellant raped Necitas D. Sagadal, an 11-year old girl, in the evening of December 28, 1979, in the public market of Subic. 1 This finding was based mainly on the testimony of the victim herself as corroborated by the other prosecution witnesses 2 and the medical evidence. 3 The complaining witness testified that on the night in question, while walking back to where her mother was selling refreshments near the carnival, she met her friends Biday and Aba, who asked her to join them. She did. A certain Ben came later, followed by the accused-appellant himself. The group went inside the public market and into a vacant stall. Carlos de la Cruz gave money for the purchase of ESQ rum, which was asked to buy. The others drank the liquor and urged her to do so too. She reluctantly acceded but vomited the drink because she was not accustomed to it. She went out and Ben and Carlos did too, leaving Biday and Aba inside. When she moved to return to the stall, Ben cautioned her not to as the two inside might get angry. Later, the couple came out and suggested that they move to another stall where they could all sleep. Ben had left in the meantime. The four of them entered this stall and, feeling dizzy, she lay down. Suddenly she felt somebody embracing her in the dark and found it was the accusedappellant. She resisted and sat up, saying, "Walang ganyanan." Aba sidled up to her and advised her to consent because Carlos was a barangay tanod and the son of a policeman. Carlos asked Biday and Aba to leave. Left alone with the complainant, Carlos suddenly pinioned her and, while she was struggling to free herself, forcibly removed her shorts. He pulled her down. Against her will, he kissed and fondled her and finally succeeded in violating her. Her maidenhead was ruptured. Her shorts were bloodied. The deed done, and while she was crying in pain and anger, he advised her to tell him if she should get pregnant so he could have the foetus aborted. Confused and afraid, Necitas did not go home that night or the day after or the day after that. It was only on December 31, 1979, that her mother found her by the seawall and took her home. She related what Carlos had done to her. Her mother immediately sought the counsel of the barangay captain, who told them to report the matter to the police. The police sent her to the Olongapo City General Hospital, where she was medically examined on January 1, 1980, and found with "fresh

vaginal laceration." 4 Regina Sagadal, the complainant's mother, testified that Necitas was born on March 20,1968, in San Jorge, Guidara Samar, although she was not sure ff her birth had been registered. 5 There is no entry of such birth in the local civil registry of her supposed birthplace 6 but the prosecution presented a school record of Necitas where her date of birth is indicated as March 20, 1968. 7 The mother described how she searched for her daughter after she did not return on December 28,1979, and how she found her three days later by the seawall disheveled and depressed. 8 In his defense, Carlos testified that he was in his house when the rape was supposedly committed, but on crossexamination he said his house was some five hundred meters only from the public market. 9 This meant the scene of the crime could have been reached by him within minutes from the place where he was living. His father sought to bolster his son's testimony but did not succeed. On the contrary, he might have weakened the accused appellant's alibi. According to Eligio de la Cruz, he fetched Carlos from the market at 6 o'clock in the evening of December 28, 1979, and they went together to his house, where they had supper. Thereafter, Carlos retired to his own house on the next lot. The father testified he never saw Carlos again that night and it was only the following morning that his son returned to join him for breakfast. 10 This witness had some difficulty in explaining on cross-examination why he had to fetch Carlos and bring him home from the market, considering that the latter was already twenty-six years old at the time. As the municipal policeman assigned to guard the public market from 6 o'clock in the evening to 6 o'clock the following morning, he said he deserted his post that night so he could bring his son home with him. 11 The alibi must fail because not only of the inherent weakness of this kind of defense but also of its inconclusiveness and unreliability. It simply is not believable And even assuming that the father really fetched Carlos and brought him home, there is no showing that the accused-appellant could not have gone back to the public market that night and committed the rape. More important than this, there is the positive Identification made by Necitas, who from the very start had pointed to Carlos as her attacker. None of the defense witnesses questioned Necitas's motives in accusing Carlos as the one who had raped her. In the brief filed by the accused-appellant, there is the assertion that the complainant was trying to extort money from him, followed by the meaningful admission that he was to make a settlement if only "to buy peace" except that the demand was too steep for him to meet. 12 The Court wonders why he would want to "buy peace" if he was really innocent. After all, he was dealing not with an influential or powerful complainant but with a simple third grade 11-year old child helping her mother make a humble living by selling gulaman and samalamig. It having been established that Necitas was less than twelve years old at the time of the incident, it is not necessary to prove that force had been exerted on her. Even assuming that the complainant had consented, the conviction would still stand as the theory of the law is that her age would not have given her the discernment to resist. In fact, even if it be supposed that Necitas was already above twelve years old when she was deflowered, the crime would be deemed just the same to have been committed by Carlos. There is ample evidence of the force employed by the accusedappellant, a full-grown man of twenty-six years, upon the ravished child, who was not yet her teens at the time of the rape. The rape committed in the circumstances above narrated is punishable with reclusion perpetua under Article 335 of the Revised Penal Code. This being a single indivisible penalty, the trial court should have imposed it regardless of any mitigating or aggravating circumstance, in accordance with Article 63 of the same Code. The Court cannot understand why the trial court instead, taking into account the aggravating circumstances of nighttime and abuse of superior strength, raised this penalty to the next higher penalty, i.e., death. There is no authority for this increase

under the rules on the application of penalties in the Revised Penal Code. The method employed by the judge is a strange and unlawful process. Judge Esther Nobles Bans is sternly advised to be more careful in the determination of the applicable penalties, especially where capital offenses are involved, as in this case. She should have pondered the matter thoroughly before condemning the accused-appellant to death on the strength of her rash and erroneous reading of the law. Curiously enough, neither the defense counsel nor the Solicitor General noticed the serious mistake. At any rate, it now appears that the appealed judgment is not affected by the constitutional provision abolishing the death penalty as it is plainly not applicable in this case. The death penalty imposed by the trial court is reduced not because of Article III, Section 19(l) of the Constitution but because the appropriate sentence is reallyreclusion perpetua. What evil might have possessed the accused-appellant when he inflicted his lust upon his defenseless victim is a matter he must explain to his conscience if he has any. The explanation he has offered this Court is feeble and unacceptable as against the firm and conclusive evidence presented by the prosecution. His conscience may not bother him, but the Court for its part will not look the other way. For his despicable outrage of the virgin child, the law wig send him to prison for the rest of his life. WHEREFORE, the judgment of the trial court is AFFIRMED except that the penalty of death is reduced to reclusion perpetua and the civil indemnity is increased to P30,000.00. Costs against the accused-appellant. SO ORDERED. Teehankee, C.J., Narvasa, Gancayco and Grino-Aquino, JJ., concur.

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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 150900 March 14, 2008

CYNTHIA LUCES, Petitioner, vs. CHERRY DAMOLE, HON. RAMON G. CODILLA, JR., Presiding Judge, Regional Trial Court, Branch 19, Cebu

City; and COURT OF APPEALS, FIFTH DIVISION, METRO MANILA, Respondents. DECISION NACHURA, J.: This is a petition for review on certiorari under Rule 45 of the Rules of Court of the Decision 1 of the Court of Appeals (CA) dated August 30, 2001 and its Resolution2 dated November 20, 2001, in CA-G.R. CR No. 23412. In July 1993, petitioner Cynthia Luces approached private complainant Cherry Damole at the latters place of work at the Robinsons Department Store, located along Fuente Osmea, Cebu City, and asked for Purchase Order (PO) Cards to be sold by her on commission basis. They agreed3 that petitioner would sell the PO cards to her customers and that she would get her commission therefrom in the form of marked up prices.4 Petitioner further agreed that she would hold the PO cards as trustee of the private complainant with the obligation to remit the proceeds of the sale thereof less the commission, and before such remittance, to hold the same in trust for the latter.5 Lastly, petitioner undertook to return the unsold PO cards.6 As of September, 1993, petitioner received from the private complainant 870 PO cards with a total face value ofP412,305.00. Initially, petitioner complied with her obligations, but later she defaulted in remitting the proceeds. Hence, the demand made by the private complainant, through her lawyer, on the petitioner, but the same was unheeded. Private complainant thereafter instituted a civil case for collection of sum of money.7 She, likewise, filed a separate criminal complaint. Petitioner was thus charged with Estafa in an Information dated March 3, 1995, the accusatory portion of which reads: That sometime in the month of July, 1993, and for sometime subsequent thereto, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, having received Purchase Order (PO) slips worth P412,305.00 from Cherry Damole, with the agreement that she should sell out the said PO slips for and in behalf of Cherry Damole, with the obligation on her part to immediately account for and turn over the proceeds of the sale, if said PO slips are sold, or to return the same to Cherry Damole, if she would not be able to dispose any or all of them within the agreed date, the said accused, once in possession of said PO slips, far from complying with her obligation, with deliberate intent, with intent of gain, with unfaithfulness and grave abuse of confidence and of defrauding Cherry Damole, did then and there misappropriate, misapply and convert into her own personal use and benefit the said PO slips, or the amount of P412,305.00, which is the equivalent value thereof, and in spite of repeated demands made upon her by Cherry Damole to let her comply with her obligation, she has failed and refused and up to the present time still fails and refuses to do so, to the damage and prejudice of Cherry Damole in the amount of P412,305.00, Philippine Currency. CONTRARY TO LAW.8 The Information was filed with the Regional Trial Court (RTC) and was raffled to Branch 19, Cebu City. It was docketed as Criminal Case No. CBU-38420. On April 27, 1995, petitioner moved for the dismissal of the criminal case and/or suspension of the proceedings in view of the pendency of the civil case for collection filed earlier by the private complainant.9 She contended that the resolution of the civil case is determinative of her culpability in the criminal case. The RTC initially suspended the case10 but on motion for reconsideration, the court reversed itself and held that the outcome of the civil case would

not, in any way, affect the criminal action.11 The court, thus, set the case for arraignment where the petitioner pleaded "not guilty." During trial, the prosecution established the existence of the trust receipt agreements; the receipt by petitioner of the subject PO cards; and her failure to comply with her obligation to remit the proceeds of the sale and to return the unsold cards to the private complainant. The prosecution likewise proved that petitioner converted the PO cards to her personal use by using such cards herself and by letting the members of her family use them, contrary to their agreement.12 By reason of such conversion and misappropriation, private complainant suffered damage. In defense, petitioner claimed that her liability to private complainant is purely civil, considering that the trust receipt agreements were in fact contracts of sale which transferred to petitioner the ownership of the questioned PO cards, and that, therefore, there was no misappropriation to speak of. Petitioner, likewise, testified that she was authorized to sell the PO cards on installment which she did by selling them to a certain Evelyn Tamara who, however, failed to pay. Petitioner further claimed that no damage was ever caused to the private complainant as she continuously paid monthly amortizations. She also insisted that the civil case filed against her by the same complainant is a prejudicial question; hence, the criminal case should have been dismissed.13 On August 25, 1997, the RTC rendered a Decision convicting petitioner of the crime of estafa.14 On appeal, the CA affirmed petitioners conviction, but modified the penalty imposed by the lower court. The appellate court fou nd that all the elements of estafa, with abuse of confidence through misappropriation, were established, and stressed that the civil case for collection of sum of money would not, in any way, be determinative of the guilt or innocence of petitioner.15 The CA, however, imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to twenty (20) years of reclusion temporal, as maximum, instead of that imposed by the RTC.16 Hence, the instant petition raising the following issues: I. RESPONDENT COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE NOT HERETOFORE DETERMINED BY THIS HONORABLE SUPREME COURT, OR HAS DECIDED IT IN A WAY PROBABLY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THIS HONORABLE SUPREME COURT AND THE CONCLUSIONS ARE FOUNDED ON MERE SPECULATION, SURMISE AND CONJECTURE. II. RESPONDENT COURT OF APPEALS GRAVELY ERRED IN AFFIRMING WITH MODIFICATION THE DECISION OF THE HONORABLE REGIONAL TRIAL COURT AND DENYING DUE COURSE THE PETITIONERS MOTION FOR RECONSIDERATION OF THE JUDGMENT. III. RESPONDENT COURT OF APPEALS GRAVELY ERRED IN NOT GIVING WEIGHT THE ISSUE OF PREJUDICIAL QUESTION RAISED BY PETITIONER. IV.

RESPONDENT COURT OF APPEALS GRAVELY ERRED IN NOT GIVING WEIGHT THE POSITIVE ASSERTION OF THE PETITIONER THAT SHE IS NOT CRIMINALLY LIABLE BUT ONLY CIVIL.17 The petition lacks merit. Also known as "swindling," estafa is committed by any person who shall defraud another by any of the means mentioned in the Revised Penal Code (RPC).18 Petitioner was tried and convicted for violation of Article 315(1)(b) which states that, among others, fraud may be committed with unfaithfulness or abuse of confidence in the following manner: (b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.19 Specifically, the elements of estafa through misappropriation or conversion are: 1) that the money, goods or other personal property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to deliver or return the same; 2) that there be misappropriation or conversion of such money or property by the offender or denial on his part of such receipt; 3) that such misappropriation or conversion or denial is to the prejudice of another; and 4) that there is a demand made by the offended party on the offender. 20 In the instant case, it was established that petitioner received from the private complainant the subject PO cards to be sold by the former on commission, as evidenced by their Trust Receipt Agreements (TRAs).21The Agreements contain identical terms and conditions as follows: 2. That the TRUSTEE intends to give P.O. to different cardholders and received (sic) commission in a form of mark-up price but TRUSTEE assumes the responsibility of paying the amount due including penalty, if any, on due dates; 3. That the TRUSTEE holds P.O. in storage as the property of TRUSTOR, with the right to sell the same for each for TRUSTORS account and to hand the proceeds thereof to the trustor less the commission mentioned above; 4. That TRUSTEE agrees that before remittance to TRUSTOR, she/he shall hold the sum in trust for the TRUSTOR; 5. That the TRUSTEE is aware that her failure to remit the proceeds or return the P.O. when demanded by the TRUSTOR give rise to CRIMINAL LIABILITY and CIVIL LIABILITY.22 By such terms and conditions, petitioner agreed to hold in trust the following: the PO cards, for the purpose of selling them to different cardholders and returning to private complainant the cards unsold; and the proceeds of the sale, if any, for remittance to the private complainant. And so, we ask the questions: Were the PO cards disposed of in accordance with their agreements? If so, did petitioner remit the proceeds to the private complainant? The evidence shows that petitioner sold most of the PO cards to Ms. Tamara. The transaction was testified to by petitioner; confirmed by Ms. Tamara; and was, in fact, admitted by the private complainant during cross-

examination.23 Private complainant clearly stated in open court that she was aware of the sale of the PO cards to Ms. Tamara, and that she personally received payment made by the latter through the petitioner. 24 To repeat, the PO cards were entrusted to petitioner for the purpose of selling them to cardholders. Petitioner was at liberty to sell them either in cash or on installment. In fact, the private complainant agreed that the proceeds of the sale may be turned over to her in four installments. When she sold the cards to Ms. Tamara, petitioner did so pursuant to their TRA. It appears, however, that the proceeds of that sale could not be turned over to the private complainant, because Ms. Tamara failed to pay the purchase price of the subject PO cards. Technically, then, there was no conversion since the PO cards sold to Ms. Tamara were not devoted to a purpose or use different from that agreed upon.
1avvphi1

This notwithstanding, petitioner is not free from criminal liability. As to the PO cards covered by Trust Receipt No. 4103 with a face value of P33,600.00, the prosecution sufficiently established that they were used by petitioner herself and her relatives as evidenced by the copies of the PO cards they actually used bearing their names. 25Although there was no prohibition for petitioner to use or for her relatives to purchase the PO cards, they should have paid the corresponding price, and petitioner should have remitted the proceeds to the private complainant. There being no adequate explanation why she personally used and allowed her relatives to use the cards, there is ample circumstantial evidence of estafa. Using the PO cards as owner is conversion. Accordingly, we agree with the CAs ratiocination in this wise: Thus, using or disposing by LUCES for her and her relatives own personal purpose and benefit of the said P.O. cards, constitutes breach of trust, unfaithfulness and abuse of confidence. The failure of LUCES to account for them establishes the felony of estafa through abuse of confidence by misappropriation or conversion.26 The essence of estafa under Article 315, par. 1(b) is the appropriation or conversion of money or property received, to the prejudice of the owner. The words "convert" and "misappropriate" connote an act of using or disposing of anothers property as if it were ones own, or of devoting it to a purpose or use different from that agreed upon. To misappropriate for ones own use includes not only conversion to ones personal advantage, but also every attempt to dispose of the property of another without a right.27 The prosecution further showed that the misappropriation or conversion by petitioner caused prejudice to private complainant. Damage as an element of estafa may consist in 1) the offended party being deprived of his money or property as a result of the defraudation; 2) disturbance in property right; or 3) temporary prejudice. 28 Under the given circumstances, it is beyond cavil that private complainant was deprived of her right to enjoy the proceeds of the sale as a result of petitioners unauthorized use of the PO cards. As regards the appropriate penalty, the RPC provides: Art. 315. Swindling (Estafa). Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by: 1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos; and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.

Under the Indeterminate Sentence Law,29 the maximum term of the penalty shall be "that which in view of the attending circumstances, could be properly imposed" under the RPC and the minimum shall be "within the range of the penalty next lower to that prescribed" for the offense.30 The range of the penalty provided for in Article 315 is composed of only two periods; thus, to get the maximum period of the indeterminate sentence, the total number of years included in the two periods should be divided into three. Article 65 of the RPC requires the division of the time included in the prescribed penalty into three equal periods of time, forming one period for each of the three portions. The minimum, medium and maximum periods of the prescribed penalty are therefore: Minimum period 4 years, 2 months and 1 day to 5 years, 5 months and 10 days Medium period 5 years, 5 months and 11 days to 6 years, 8 months and 20 days Maximum period 6 years, 8 months and 21 days to 8 years.31 The amount defrauded is in excess of P22,000.00; the penalty imposable should be the maximum period of six (6) years, eight (8) months and twenty-one (21) days to eight (8) years of prision mayor. However, Article 315 also provides that an additional one year shall be imposed for each additional P10,000.00. Here, the total amount of the fraud is P33,600.00 (P33,600.00-P22,000.00 = P11,600.00). Thus, while we are disposed to impose six (6) years, eight (8) months and twenty-one (21) days of the maximum period provided by the RPC, an additional penalty of one year should likewise be imposed. Accordingly, we hold that the maximum term of the indeterminate sentence shall be seven (7) years, eight (8) months and twenty-one (21) days of prision mayor. The minimum period of the indeterminate sentence, on the other hand, should be within the range of the penalty next lower to that prescribed by the RPC for the crime committed. The penalty next lower than prision correccional maximum to prision mayor minimum is prision correccional in its minimum and medium periods. Thus, the minimum term of the indeterminate sentence shall be two (2) years, eleven (11) months and eleven (11) days. Lastly, as to whether the civil case filed by the private complainant is a prejudicial question, we note with approval the appellate courts conclusion, thus: It is clear from the questioned civil case that the civil liability of LUCES to DAMOLE was founded on the formers failure or refusal to remit to the latter the proceeds arising from the sales of P.O. cards. In contrast, in the instant criminal case, the court a quo was tasked to determine whether or not the non-remittance of the proceeds of the sale of P.O. cards or the return thereof by LUCES to DAMOLE, was due to misappropriation or conversion. Stated simply, the issue in the civil (MAN-2031) is DAMOLEs right to recover from LUCES the amount representing the value of the P.O. cards allegedly embezzled by the latter. While the issue in the criminal case is whether LUCES failure to account for the proceeds of the sale of P.O. cards and/or to return the unsold P.O. cards as DAMOLEs trustee constitutes estafa under Article 315 par. 1 (b) of the Revised Penal Code. A finding in the civil case for or against the appellant is not juris et de jure determinative of her innocence or guilt in the estafa case.32 WHEREFORE, premises considered, the petition is hereby DENIED. The Decision of the Court of Appeals, dated August 30, 2001, and its Resolution dated November 20, 2001, in CA-G.R. CR No. 23412, are AFFIRMED with MODIFICATION. Petitioner Cynthia Luces is sentenced to suffer the indeterminate penalty of two (2) years, eleven (11) months and eleven (11) days of prision correccional, as minimum, to seven (7) years, eight (8) months and twenty-one (21) days of prision mayor, as maximum.

SO ORDERED.

Today is Saturday, August 11, 2012


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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 166401 October 30, 2006 [Formerly G.R. Nos. 158660-67] PEOPLE OF THE PHILIPPINES, appellee, vs. ALFREDO BON, appellant.

DECISION

TINGA, J.: Two critical issues emerge in this case. The first relates to whether the Court should affirm the conviction of appellant Alfredo Bon (appellant) for six counts of rape and two counts of attempted rape, the victims being his then-minor nieces. On that score, we affirm. As a consequence though, we are ultimately impelled to confront a question much broader in both scope and import. While the Court had previously declined to acknowledge the constitutional abolition of the death penalty through the 1987 Constitution,1 we now find it necessary to determine whether the enactment of Republic Act No. 9346 resulted in the statutory interdiction of the death penalty. The second issue arises as we are compelled to review the maximum term of reclusion temporal in the sentence imposed on appellant by the Court of Appeals for the two counts of attempted rape. The sentence was prescribed by the appellate court prior to the enactment of Republic Act No. 9346 which ended the imposition of the death penalty in the Philippines. The proximate concern as to appellant is whether his penalty for attempted qualified rape, which under the penal law should be two degrees lower than that of consummated qualified rape, should be computed from death or reclusion perpetua.

First, the antecedent facts. I. Eight (8) Informations2 were filed within the period from 21 August 2000 to 23 February 2001 by the Assistant Provincial Prosecutor of Gumaca, Quezon against appellant, charging him with the rape of AAA3 and BBB,4 the daughters of his older brother. Appellant was accused of raping AAA in Criminal Case Nos. 6899-G, 6902-G, 6906-G, and 6908-G; while he was accused of raping BBB in Criminal Case Nos. 6689-G, 6903-G, 6905-G, and 6907-G.5 All these cases were consolidated for trial. The rapes were alleged to have been committed in several instances over a span of six (6) years. Both AAA and BBB testified against appellant, their uncle, and both identified him as the man who had raped them. During trial, their respective birth certificates and the medical certificates executed by the doctor who physically examined them were entered as documentary evidence. AAA testified that she was only six (6) years old when she was first molested in 1994 in the house appellant had shared with her grandmother.6 She recounted that the incident took place when she and appellant were alone in the house. Appellant touched her thighs and vagina, removed her clothes and inserted his penis into her vagina. Appellant threatened that she and her parents would be killed should she disclose the incident to anyone. She thereafter stopped sleeping in the house of her grandmother. It was only three (3) years after, in 1997, that she slept in the said house, yet again she was sexually abused by appellant. She was then nine (9) years old. 7 AAA recounted that at age eleven (11) in 1999, she was raped by appellant for the third time, again at the house of her grandmother.8 The following year, when she was twelve (12), she was abused for the fourth time by appellant. This time, she was raped in an outdoor clearing9 after having been invited there by appellant to get some vegetables. While at the clearing, appellant forced her to lie down on a grassy spot and tried to insert his penis in her vagina. As she cried in pain, appellant allegedly stopped.10 It was only on 12 June 2000 that she decided to reveal to her mother, CCC,11 the brutish acts appellant had done to her.12 Her mother thus filed a complaint against her uncle. AAA identified appellant in open court and presented as documentary evidence her birth certificate to prove that she was born on 3 September 1988. 13 BBB, on the other hand, testified that she was first raped by appellant in 1997 when she was ten (10) years old, also at the house appellant shared with her grandmother. While alone in the house, appellant poked a knife at her, removed her clothes and inserted his penis in her vagina. Despite the pain she felt, she could not resist appellant as he was holding a knife. She did not report the rape to her parents out of fear of appellant's threat that he would kill her.14 BBB further testified that in 1998 and 1999, she was raped again by appellant on several occasions, the rapes occurring under threat of a bladed weapon, and regardless of the time of day.15 BBB stated that she was last raped by appellant on 15 January 2000.16 On that night, she was sleeping beside her sister AAA in the house of her grandmother when she felt appellant touching her body. She pushed him away but appellant pulled her three (3) meters away from AAA towards the door. As appellant was holding a knife, BBB could not make any noise to alert her sister. Appellant ordered her to remove her clothes and forced her to lie down. After he took off his clothes, appellant placed himself on top of BBB and stayed there for three (3) minutes "moving up and down." Thereafter, she put on her clothes and returned to where her sister was. She added that although it was dark, she knew it was appellant who had molested her as she was familiar with his smell. Since then, she never slept in her grandmother's house again.17

It was on 14 June 2000 that BBB disclosed her harrowing experience to her mother. Prior to that, however, she had already revealed the sexual abuses she had underwent to her sister AAA. Upon learning of the same, her mother brought her to the police station and her statement was taken. Thereafter, she was brought to the hospital to be examined. Furthermore, BBB explained that she only reported the abuses done to her on 14 June 2000 or five (5) months after the last rape because she was afraid of appellant's threat of killing her and her family.18 The third witness for the prosecution was the mother, CCC. She testified that she only knew of the abuses done on her daughters on 15 June 2000. Five months earlier, CCC became concerned after observing that BBB, on the pretext of preparing clothes for a game, was packing more than enough clothes. She asked her other daughter, DDD, to dig into the matter and the latter told her that BBB was planning to leave their house. Upon learning this, she sent somebody to retrieve BBB. However, it was only five months after that incident that BBB confided to her mother that she was raped by appellant. CCC lost no time in reporting the matter to the authorities and had BBB and AAA examined in the hospital. After examination, it was confirmed that BBB was indeed sexually molested. 19 CCC initially did not tell her husband about what had happened to their daughters because she was afraid that her husband might kill appellant. It was only after appellant was arrested that she disclosed such fact to her husband. After the arrest of appellant, his relatives became angry at CCC, and her mother-in-law avoided talking to her since then.20 The physician who examined BBB and AAA also testified for the prosecution. Dr. Purita T. Tullas (Dr. Tullas), medical officer of Gumaca District Hospital, testified that she was the one who examined BBB and AAA, and thereafter, issued medical certificates for each child. These medical certificates were presented in court.21 The medical certificate of BBB revealed that at the time of examination, there were no external sign of physical injury found on her body. However, Dr. Tullas found that the labia majora and minora of BBB was slightly gaping, her vaginal orifice was admitting two fingers without resistance and there were hymenal lacerations at "three (3) o'clock" and "eight (8) o'clock" which might have happened a long time before her examination. Dr. Tullas concluded that there might have been sexual penetration caused by a male sex organ for several times.22 AAA's medical certificate stated that at the time of examination, there were no external physical injuries apparent on her body. AAA's labia majora and minora were well coaptated and the hymen was still intact. On direct examination, Dr. Tullas said that it could happen that the hymen would still be intact despite sexual penetration with a person having an elastic hymen. On the other hand, when asked on cross-examination, she stated that there was also the possibility that no foreign body touched the labia of the pudendum of AAA.23 Only appellant testified for his defense, offering denial and alibi as his defense. He averred in court that from 1994 to 2000, he lived in the house of his parents which was about "thirty (30) arm stretches" away from the house of BBB and AAA. He denied having raped BBB on 15 January 2000 because on said date he was at the house of his sister, two (2) kilometers away from the house of his parents where the rape occurred, from 11:30 in the morning and stayed there until early morning of the following day.24 He offered a general denial of the other charges against him by BBB and AAA. He claimed that he seldom saw the two minors. He further asserted that prior to the institution of the criminal case against him he had a smooth relationship with his nieces and the only reason the case was filed against him was that CCC, his sister-in-law and the mother of his nieces, harbored ill-feelings towards his deceased father, who would call CCC "lazy" within earshot of other family members.25 The RTC convicted appellant on all eight (8) counts of rape.26 The RTC pronounced appellant's defense of denial and

alibi as unconvincing, citing jurisprudence declaring denial and alibi as intrinsically weak defenses. The RTC concluded that appellant failed to controvert the clear, candid and straightforward testimonies of his nieces. It further considered the qualifying circumstances of minority of the victims and the relationship of the victims and appellant, the latter being the former's relative by consanguinity within the third degree. As the penalty imposed consisted of eight (8) death sentences, the records of the case were automatically elevated to this Court for review. However, in the aftermath of the pronouncement of the Court in People v. Mateo27 the present case was transferred to the Court of Appeals for appropriate action and disposition. On 29 December 2004, the Court of Appeals agreed with the rulings of the RTC in regard to six (6) of the eight (8) death sentences imposed on appellant.28 The appellate court ratiocinated, thus: We have painstakingly gone over the record of these cases and find no cogent reason to deviate from the findings of the trial court except in at least two (2) cases. The prosecution's case which was anchored mainly on the testimonies of private complainants [BBB] and [AAA], deserve full faith and credit for being clear, precise and straightforward. Like the trial court, We find no reason to disbelieve the private complainants. It was established with certitude that the accused on several occasions sexually assaulted his nieces. The perpetration of the crimes and its authorship were proved by the victims' candid and unwavering testimonies both of whom had the misfortune of sharing the same fate in the hands of their own uncle. The sincerity of [AAA] was made more evident when she cried on the witness stand in obvious distress over what their uncle had done to her and her sister.29 The Court of Appeals downgraded the convictions in Criminal Case Nos. 6906 and 6908 to attempted rape. In these two (2) cases, it was alleged that appellant had raped AAA in 1999 and on 11 June 2000, respectively. According to the appellate court, it could not find evidence beyond reasonable doubt in those two (2) cases that appellant had accomplished the slightest penetration of AAA's vagina to make him liable for consummated rape. It stressed that there was not even moral certainty that appellant's penis ever touched the labia of the pudendum, quoting portions of the transcript of the stenographic notes where AAA was asked if appellant was then successful in inserting his penis into her vagina and she answered in the negative.30 Accordingly, the Court of Appeals reduced the penalties attached to the two (2) counts of rape from death for consummated qualified rape to an indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum, for attempted rape. Appellant, in his Supplemental Brief31 before this Court, assails the findings of the Court of Appeals. He cites inconsistencies in the testimony of BBB as to what really transpired on 15 January 2000. Particularly, appellant observes that BBB testified on 6 June 2001 as to her rape on 15 January 2000. BBB, her sister and appellant had been sleeping side by side. However, when BBB again testified on 3 July 2002, this time she stated that on that night, as she and her sister AAA were sleeping in their room at their parents' house (and not at her grandmother's), the accused passed through a window, entered their room and raped her again.32 Appellant also latches on the inconsistencies in BBB's testimony as to the length of the duration of her rape on that day. In BBB's testimony on 6 June 2001, she said that appellant was atop her for three (3) minutes while in the 3 July 2002 hearing, BBB stated that the rape lasted for only half a minute. It must be observed though that BBB was at a tender age when she was raped in 2001. Moreover, these inconsistencies, which the RTC and the Court of Appeals did not consider material, were elicited while BBB was testifying in open court. Our observations in People v. Perez33 on the appreciation of alleged inconsistencies in the testimony of rape victims who happen to be minors are instructive, thus:

We note that these alleged inconsistencies refer, at best, only to trivial, minor, and insignificant details.They bear no materiality to the commission of the crime of rape of which accusedappellant was convicted.[34] As pointed out by the Solicitor General in the Appellee's Brief, the seeming inconsistencies were brought about by confusion and merely represent minor lapses during the rape victim's direct examination and cannot possibly affect her credibility. Minor lapses are to be expected when a person is recounting details of a traumatic experience too painful to recall. The rape victim was testifying in open court, in the presence of strangers, on an extremely intimate matter, which, more often than not, is talked about in hushed tones. Under such circumstances, it is not surprising that her narration was less than letter-perfect.[35] "Moreover, the inconsistency may be attributed to the wellknown fact that a courtroom atmosphere can affect the accuracy of testimony and the manner in which a witness answers questions."[36]37 Further, the public prosecutor offered a convincing explanation on why BBB was confused on some points of her two testimonies. Particularly in the Memorandum for the People 38 filed with the RTC, the public prosecutor creditably explained the inconsistencies, thus: [BBB]'s testimony on July 3, 2002 might be contradictory to her first testimony on June 6, 2001, with respect to the last rape on January 15, 2000, as regards the place of commission house of her parents or house of accused; and the length of time he stayed on her top 3 minutes or half-minute. But she remained consistent in her declaration that on January 15, 2000, her uncle inserted his penis into her vagina, and he was moving while on her top then she felt something came out from him. He was able to rape her because he threatened her with a knife or bladed weapon. Further, the first she took the witness stand on June 6, 2001, she was made to recall the last rape, the first rape and many acts of sexual abuses [sic] against her. She was even confused about her age when she was first raped by her uncle. After she testified on November 14, 2001, for the separate charges of rapes in 1997, 1998 and 1999, she was able to recall more clearly the last rape on January 15, 2000, which happened in her own house. These noted discrepancies as to the exact place of commission accused's house or victim's house is not an essential element of the crime of rape and both houses are situated in Brgy. Villa Padua Ilaya, Gumaca, Quezon, which is within the territorial jurisdiction of this Honorable Court. x x x 39 In addition, we share the lower court's disbelief of appellant's proffered defenses of denial and alibi. These two defenses are inherently the weakest as they are negative defenses. Mere denials of involvement in a crime cannot take precedence over the positive testimony of the offended party. For alibi to prosper, it is not enough for the defendant to prove that he was somewhere else when the crime was committed; he must likewise demonstrate that it is physically impossible for him to have been at the scene of the crime at the time.40 In the case at bar, appellant's alibi that he was at his sister's house barely two (2) kilometers away when the rape took place on 15 January 2000 cannot be given credence by this Court. If we are to thread this line of reasoning, appellant could have easily left his sister's house in the middle of the night, raped BBB, and then returned to his sister's house without much difficulty and without anybody noticing his absence. Well-settled is the rule that a categorical and positive identification of an accused, without any showing of ill-motive on the part of the eyewitness testifying on the matter, prevails over alibi and denial.41 The defenses of denial and alibi deserve scant consideration when the prosecution has strong, clear and convincing evidence identifying appellant as the perpetrator.42 In this case, both BBB and AAA, minors and relatives of appellant, positively identified him as their rapist in open court. The lower courts found no issue detracting from the credibility of such identification.

It is worthy to note that the alibi presented by appellant is limited to the 15 January 2000 rape of BBB. He offers nothing to counteract the accusations against him involving the seven (7) other specific acts of rape other than the averment that he did not know anything about the allegations propounded on him, an infinitesimal defense considering the evidence against him. Appellant does claim that the present case was merely instituted because of the grudge of CCC towards his deceased father. It is outrageous to even suggest that a mother will subject her daughters to the humiliating experience of coming before the court and narrating their harrowing experience just because she was tagged by her father-in-law as lazy. In addition, CCC's father-in-law had died several years before the criminal charges against appellant were ever instituted. If CCC truly wanted to retaliate and damage the reputation of her father-in-law, she could have done so when the latter was still alive. No member of a rape victim's family would dare encourage the victim to publicly expose the dishonor of the family, more specifically if such accusation is against a member of the family, unless the crime was in fact committed.43 Besides, no sane woman, least of all a child, would concoct a story of defloration, allow an examination of her private parts and subject herself to public trial or ridicule if she has not in truth, been a victim of rape and impelled to seek justice for the wrong done to her. Testimonies of child-victims are normally given full weight and credit, since when a woman, more so if she is a minor, says that she has been raped, she says in effect all that is necessary to show that rape has been committed. Youth and immaturity are generally badges of truth and sincerity.44 The weight of such testimonies may be countered by physical evidence to the contrary, or indubitable proof that the accused could not have committed the rape, but in the absence of such countervailing proof, these testimonies shall be accorded utmost value. The twin aggravating circumstances of minority and relationship were properly appreciated in this case. The minority of the victims and their relationship with appellant were aptly established in the lower court proceedings. Not only did the prosecution allege in the Informations the ages of the victims when they were raped but the prosecution also presented the birth certificates of BBB and AAA in court as documentary evidence to prove that they were both minors when appellant raped them. Appellant, in open court, also admitted that that he was the uncle of both victims being the brother of the victims' father, and thus, a relative of the victims within the third degree of consanguinity. Furthermore, the delay in reporting the repulsive acts of appellant to BBB and AAA is understandably justified, considering that appellant repeatedly threatened to kill them and their family should they disclose the incidents to anyone. It has been held time and again that delay in revealing the commission of rape is not an indication of a fabricated charge.45 Such intimidation must be viewed in light of the victim's perception and judgment at the time of the commission of the crime and not by any hard and fast rule. It is enough that the intimidation produces a fear that if the victim does not yield to the perverse impulses of the accused, something would happen to her at the moment, or even thereafter, as when she is threatened with death if she would report the incident. 46 At the same time, we agree with the Court of Appeals that the two counts of rape in Criminal Case Nos. 6906-G and 6908-G were not proven beyond reasonable doubt, but only the two separate incidents of attempted rape. It is to be noted that there is an attempt to commit rape when the offender commences its commission directly by overt acts but does not perform all acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.47 In Criminal Case No. 6906-G, the records show that there was no penetration or any indication that the penis of appellant touched the labia of the pudendum of AAA. This was evident in AAA's testimony at the hearing on 17 October 2001, to wit:

Q Do you remember of any unusual incident that happened to you when you were eleven years old? A Yes, Mam. [sic] Q What was that? A He also touched my vagina and my other private parts and he inserted also his penis (into) my vagina. [sic] Q Was he able to insert his penis into your vagina? A No, Mam. [sic] Q Why? A It was painful, Mam. [sic] xxxx Q How many times did he try to insert his penis into your vagina? A Many times, Mam.48 [sic] AAA also testified in the same vein in Criminal Case No. 6908-G. Q I am now through with Criminal Case No. 6906-G. In Criminal Case No. 6908-G, also for Rape. When was the last time that this sexual abuse was committed by your Uncle? A June 11, Mam. [sic] Q What year? A June 11, 2000, Mam. [sic] xxxx Q What did your Uncle do to you on June 11, 2000? A He also removed my clothes, Mam. [sic] Q And after removing your clothes, what did he do to you? A He was trying to insert his penis into my vagina, Mam. [sic] xxxx Q And what did you feel when he was trying to insert his penis in your vagina?

A Painful, Mam. [sic] Q And what did you do when you feel painful? A I cried, Mam. [sic] Q When you cried, what did your Uncle do, if any? A He did not pursue what he was doing, Mam. [sic] xxxx Q And your Uncle was not able to penetrate his penis to your vagina? A No, Mam.49 [sic] In downgrading the offense committed and consequently decreasing the penalty, the CA declared: It is carnal knowledge, not pain, that is the element to consummate rape. Indeed pain may be deduced from the sexual act but accused cannot be convicted of rape by presuming carnal knowledge out of pain. It is well-settled that complete penetration of the penis into the vagina is not necessary to convict for consummated rape since the slightest penetration of one into the other will suffice. However, in People v. Campuhan, the term "slightest penetration" was clarified to mean that there must be sufficient and convincing proof of the penis indeed touching at the very least the labias of the female organ. Mere epidermal contact between the penis and the external layer of the victim's vagina (the stroking and the grazing of the male organ upon the female organ or the mons pubis) categorizes the crime as attempted rape or acts of lasciviousness. There must be positive proof of even the slightest penetration, more accurately, the touching of the labias by the penis, before rape could be deemed consummated. We, therefore, take exception to the finding of the trial court that when the accused was trying to insert his penis into the child's vagina, the act proved painful to [AAA,] which made the accused stop from further executing the act. From the testimony of private complainant, [AAA] in the afore-numbered cases, the prosecution failed to demonstrate beyond any shadow of doubt that accused-appellant's penis reached the labia of the pudendum of AAA's vagina. There is no basis then to apply the rule that the introduction of the penis into the aperture of the female organ (thereby touching the labia of the pudendum) already consummates the case of rape. x x x 50 It should be added that under Article 6 of the Revised Penal Code, 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 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. 51 The Court thus affirms the conclusions of the Court of Appeals that it has been established beyond reasonable doubt that appellant is guilty of six (6) counts of rape and two (2) counts of attempted rape. However, in light of Rep. Act No. 9346, the appropriate penalties for both crimes should be amended. II.

We shall not dwell at length on the proper penalty imposable on appellant for the six (6) counts of rape. The sentence of death imposed by the RTC and affirmed by the Court of Appeals can no longer be affirmed in view of Rep. Act No. 9346, titled "An Act Prohibiting the Imposition of Death Penalty in the Philippines." Section 2 of the law mandates that in lieu of the death penalty, the penalty of reclusion perpetua shall be imposed. Correspondingly, the Court can no longer uphold the death sentences imposed by lower courts, but must, if the guilt of the accused is affirmed, impose instead the penalty of reclusion perpetua, or life imprisonment when appropriate. Since the passage of Rep. Act No. 9346, the Court has had occasion to effectuate such reduction in recent cases such as People v. Tubongbanua52 and People v. Cabalquinto.53 III. The question of what should be the appropriate penalty for the two (2) counts of attempted rape proves to be the more challenging but interesting question facing the Court. The Court of Appeals had sentenced appellant, for the attempted rape of AAA, to "an indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal as maximum," for each count of attempted rape. There is no doubt as to the validity of this sentence at the time it was meted prior to the enactment of Rep. Act No. 9346. Article 51 of the Revised Penal Code establishes the penalty to be imposed upon the principals of an attempted felony: ART. 51. xxx A penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon the principals in an attempt to commit a felony.54 What is the penalty "lower by two degrees than that prescribed by law" for attempted rape? Article 266-B of the Revised Penal Code, which incorporates the amendments introduced by Rep. Act No. 8353, prescribes: The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the parent of the victim. x x x55 The prescribed penalty for the consummated rape of a victim duly proven to have been under eighteen years of age and to have been raped by her uncle, is death under Article 266-B of the Revised Penal Code. The determination of the penalty two degrees lower than the death penalty entails the application of Articles 61 and 71 of the Revised Penal Code: Art. 61. Rules of graduating penalties.For the purpose of graduating the penalties which, according to the provisions of Articles 50 to 57, inclusive, of this Code, are to be imposed upon persons guilty as principals of any frustrated or attempted felony, or as accomplices or accessories, the following rules shall be observed: 1. When the penalty prescribed for the felony is single and indivisible, the penalty next lower in degree shall be that immediately following that indivisible penalty in the respective graduated scale prescribed in Article 71 of this Code.56

xxxx Article 71 of the Revised Penal Code (Article 71) warrants special attention, crucial as it is to our disposition of this question. The provision reads: Art. 71. Graduated scales. In the case in which the law prescribes a penalty lower or higher by one or more degrees than another given penalty, the rules prescribed in Article 61 shall be observed in graduating such penalty. The lower or higher penalty shall be taken from the graduated scale in which is comprised the given penalty: The courts, in applying such lower or higher penalty, shall observe the following graduated scales: SCALE NO. 1 1. Death 2. Reclusion perpetua 3. Reclusion temporal 4. Prision mayor 5. Prision correctional 6. Arresto mayor 7. Destierro 8. Arresto menor 9. Public censure 10. Fine57 xxxx Following the scale prescribed in Article 71, the penalty two degrees lower than death is reclusion temporal, which was the maximum penalty imposed by the Court of Appeals on appellant for attempted rape. Reclusion temporal is a penalty comprised of three divisible periods, a minimum, a medium and a maximum. At the same time, the Indeterminate Sentence Law prescribes that "the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense." The purpose of the prescription of minimum and maximum periods under the Indeterminate Sentence Law is to effect the privilege granted under the same law, for prisoners

who have served the minimum penalty to be eligible for parole per the discretion of the Board of Indiscriminate Sentence.58 Thus, convicts sentenced to suffer death penalty or life-imprisonment are ineligible under that law, as are persons sentenced to reclusion perpetua, an indivisible penalty without minimum or maximum periods.59 Hence, the Court of Appeals sentenced appellant to suffer the penalty for attempted rape, with a maximum penalty within the range of reclusion temporal, and a minimum penalty within the range of the penalty next lower, or prision mayor. If Rep. Act No. 9346 had not been enacted, the Court would have affirmed such sentence without complication. However, the enactment of the law has given rise to the problem concerning the imposable penalty. Appellant was sentenced to a maximum term within reclusion temporal since that is the penalty two degrees lower than death. With the elimination of death as a penalty, does it follow that appellant should now be sentenced to a penalty two degrees lower than reclusion perpetua, the highest remaining penalty with the enactment of Rep. Act No. 9346? If it so followed, appellant would be sentenced to prision mayor in lieu of reclusion temporal. IV. Obviously, our ruling on the appropriate penalty on appellant for attempted rape will affect not only appellant, but several classes of convicts as well. Before we proceed with the discussion, the Court finds it necessary to make the following qualification. Prior to the enactment of Rep. Act No. 9346, the death penalty was imposable under two different frames of reference. This was especially made clear with the 1993 amendments to the Revised Penal Code through Rep. Act No. 7659, or the Death Penalty Law. Under the Revised Penal Code, as amended, the death penalty was provided for in two ways, namely: as the maximum penalty for "reclusion perpetua to death," and death itself as an automatic and exclusive penalty. Death as the automatic penalty was mandated for the crimes of qualified bribery "if it is the public officer who asks or demands such gift or present;"60 kidnapping or detention "for the purpose of extorting ransom from the victim or any other person;"61 destructive arson wherein "death results;"62 and rape qualified by any of the several circumstances enumerated under the law. On the other hand, the penalty of "reclusion perpetua to death" was imposable on several crimes, including murder,63 qualified piracy,64 and treason.65 The imposition of the death penalty for crimes punishable by "reclusion perpetua to death" depended on the appreciation of the aggravating and mitigating circumstances generally outlined in Articles 13 and 14 of the Revised Penal Code. Reference to those two provisions was unnecessary if the penalty imposed was death, as opposed to "reclusion perpetua to death." There is no need for now to discuss the effects of Rep. Act No. 9346 on the penalties for frustrated and attempted felonies which were punishable by "reclusion perpetua to death" if consummated, or on accomplices and accessories to such felonies. Such situations do not relate to the case of appellant, who was convicted of two (2) counts of attempted rape, which, if consummated, of course would have carried prior to the enactment of Rep. Act 9346 the penalty of death, and not "reclusion perpetua to death." The Court also recognizes that the graduation of penalties reckoned from "reclusion perpetua to death" differs from that based on the exclusive penalty of death. For example, it has been held that the penalty two degrees lower than "reclusion perpetua to death" is prision mayor.66 In contrast, the Court has likewise held that for qualified rape in the attempted stage, "the penalty x x x two (2) degrees lower than the imposable penalty of death for the offense charged x x x is reclusion temporal."67 In People v. Tolentino,68 we ruled that the accused, who had been sentenced to die for the rape of his nine (9)-year old stepdaughter, was guilty only of attempted rape. In explaining that " reclusion temporal" was the proper penalty, the Court, through then Chief Justice Davide, explained:

Under Article 51 of the Revised Penal Code, the penalty for an attempted felony is the "penalty lower by two degrees than that prescribed by law for the consummated felony." In this case, the penalty for the rape if it had been consummated would have been death, pursuant to Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, since [RT69] was eight years old and TOLENTINO was the common-law spouse of [RT's] mother. The last paragraph thereof provides: 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. xxxx The penalty in this case should have been reclusion temporal, which is the penalty lower by two degrees than death. However, with the application of the Indeterminate Sentence Law, TOLENTINO may be sentenced to an indeterminate imprisonment penalty whose minimum shall be within the range of prision mayor and whose maximum shall be within the range of reclusion temporal in its medium period pursuant to Article 64 (1) of the Revised Penal Code.70 This dichotomy results from the application of Article 61 of the Revised Penal Code. Both reclusion perpetua and death are indivisible penalties. Under Article 61 (2) of the Revised Penal Code, "[w]hen the penalty prescribed for the crime is composed of two indivisible penalties the penalty next lower in de gree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale." Hence, in passing sentence on those convicted of attempted felonies which warranted the penalty of "reclusion perpetua to death" if consummated, the Court has consistently held that penalty two degrees lower than "reclusion perpetua to death" is prision mayor. In contrast, if the penalty for the consummated crime is the single indivisible penalty of death, as was prescribed for several crimes under Rep. Act No. 7659, Article 61(1) of the Revised Penal Code provides that "the penalty prescribed for the felony is single and indivisible, the penalty next lower in degree shall be that immediately following that indivisible penalty in the respective graduated scale prescribed in Article 71". Thus, the proper penalty two degrees lower than death is reclusion temporal. It is also for this reason that the controversy we are now addressing did not similarly arise after the enactment of the 1987 Constitution, which prohibits the imposition of the death penalty subject to its subsequent readoption at the choice of Congress. Generally, the highest penalty imposed under the Revised Penal Code was " reclusion perpetua to death," a penalty composed of two indivisible penalties. As a result, the Court had no occasion, after the passage of the 1987 Constitution, to consider the effect of the charter on penalties downgraded from a single indivisible penalty. It was under Rep. Act No. 7659, passed in 1993, that some commonly occurring crimes, such as qualified rape and kidnapping for ransom, were penalized with the single indivisible penalty of death. The discussion for purposes of this decision will only center on crimes, such as qualified rape as defined in the Revised Penal Code, as amended, for which the imposable penalty was death alone. Thus, our ruling will bear no direct effect on the sentencing of accomplices and accessories or persons guilty of the attempted or frustrated stage of felonies for which the imposable penalty was "reclusion perpetua to death." Hence, it should be understood that any reference forthwith to the penalty of death does not refer to the penalty of "reclusion perpetua to death."

V. If there was a clear intent in Rep. Act No. 9346 to downgrade the penalties for convicts whose sentences had been graduated beginning from death pursuant to Article 71, the Court would not hesitate to enforce such downgrading based on clear statutory intent. However, nothing in Rep. Act No. 9346 expressly refers to those penalties imposed on frustrated or attempted felonies, or on accessories and accomplices. Section 1 of Rep. Act No. 9346 bears examination: Section 1. The imposition of the penalty of death is hereby prohibited. Accordingly, Republic Act No. Eight Thousand One Hundred Seventy-Seven (R.A. No. 8177), otherwise known as the Act Designating Death by Lethal Injection, is hereby repealed. Republic Act No. Seven Thousand Six Hundred FiftyNine (R.A. No. 7659), otherwise known as the Death Penalty Law, and all other laws, executive orders and decrees, insofar as they impose the death penalty are hereby repealed or amended accordingly. If the penalties for attempted rape of a minor,71 among others, were deemed to have been amended by virtue of Rep. Act No. 9346, such amendment can be justified under the ambit of the repealing clause, which reads, "all other laws, executive orders and decrees, insofar as they impose the death penalty are hereby repealed or amended accordingly." While this clause may, given its breadth, initially impress as the nature of a general repealing clause, it is in actuality an express repealing clause. Section 1 specifically repeals all laws, executive orders and decrees insofar as they impose the death penalty, and not merely such enactments which are inconsistent with Rep. Act No. 9346. Section 1 arguably presents more problems in that regard with its utilization of the particular phrase "insofar as they impose the death penalty." We can entertain two schools of thought in construing this provision, both of them rooted in literalist interpretations. First, it can be claimed that the present application of the penalties for attempted rape of a minor (among many examples) does not "impose the death penalty," since none of the convicts concerned would face execution through the application of the penalty for attempted rape. Hence, the statutory provisions enforced in determining the penalty for attempted rape, or other crimes not punishable by death, are not amended by Rep. Act No. 9346. On the other hand, the operation of the provisions imposing the penalty for attempted rape of a minor necessarily calls for the application, if not its literal imposition, of death as a penalty, in the context of applying the graduated scale of penalties under Article 71 of the Revised Penal Code. If we were to construe "impose" as to mean "apply," then it could be argued that Article 71 was indeed amended by Rep. Act No. 9346. After all, the application of Article 71 to crimes such as attempted rape of a minor call for the actual operation of the death penalty not only in theory, but as a means of determining the proper graduated penalty. On face value, the attractive worth of the firstly offered line of thinking is enhanced by its innate conservatism, limiting as it would the effects of Rep. Act No. 9346. It also can be understood if confronted with the option of employing either a liberal or a conservative construction, there is a natural tendency to employ the conservative mode. Further, the reasoning is seemingly consistent with that employed by the Court in People v. Muoz,72 a decision which will be thoroughly analyzed in the course of this discussion. If the true intent of Rep. Act No. 9346 was to limit the extent of the "imposition" of the death penalty to actual executions, this could have been accomplished with more clarity. For example, had Section 1 read instead "insofar as they sentence an accused to death," there would have been no room for doubt that only those statutory provisions calling for actual executions would have been repealed or amended. The inability of Congress to shape the repealing clause in so specific a fashion does leave open the question whether Congress did actually intend to limit the

operation of Rep. Act No. 9346 to actual executions only. But let us for now test that premise by assuming for the nonce that the legislative intent of Rep. Act No. 9346 was to limit the prohibition of the law to the physical imposition of the death penalty, without extending any effect to the graduated scale of penalties under Article 71 of the Revised Penal Code. VI. There are troubling results if we were to uphold, based on legislative intent, the interpretation of Rep. Act No. 9346 that limits its effects only to matters relating to the physical imposition of the death penalty. Illustrations are necessary. The easy demonstration of iniquitous results is in the case of accomplices. Under Article 267 of the Revised Penal Code, as amended, kidnapping for ransom was punishable by death. Let us say X and Y were tried for the crime. X was charged as a principal for having directly participated in the kidnapping. Y was charged as an accomplice for having allowed X to use his house to detain the victim, even though Y was abroad at the time of the crime and otherwise had no other participation therein. Both X and Y were convicted by final judgment. Since X could no longer be meted the death penalty, he is sentenced instead to reclusion perpetua. Ordinarily, Y as an accomplice should receive the penalty next lower in degree, or reclusion temporal. Yet following the "conservative" interpretation of Rep. Act No. 9346, the graduation of penalties remains unaffected with the enactment of the new law. Thus, under Article 71, which would still take into account the death penalty within the graduated scale, Y, as an accomplice, would be sentenced to reclusion perpetua, the same penalty as the principal. It might be countered that part of the legislative intent of Rep. Act No. 9346, by retaining the graduated scale of penalties under Article 71, was to equalize the penalties of principals and accomplices for crimes previously punishable by death. We do not doubt that the legislature has the theoretical capability to amend the penal law in such fashion. Yet given the drastic effects of equalizing the penalties for principals and accomplices, a step that runs contrary to entrenched thought in criminal law, one could reasonably assume that a legislature truly oriented to enact such change would have been candid enough to have explicitly stated such intent in the law itself. Of course, nothing in Rep. Act No. 9346, either in the caption or in the provisions, explicates the intention to equalize the penalties for principals and accomplices in any crime at all. Moreover, it cannot be denied that it would, at bare minimum, seem strange that the penalties for principals and accomplices are equalized in some crimes, and not in others. Let us return to our previous example of X and Y, but this time, assume that they were charged for simple kidnapping, with no qualifying circumstance that would have resulted in the imposition of the death penalty. Since the crime is not punishable by death, Rep. Act No. 9346 would have no effect in the imposition of the penalty for simple kidnapping. Accordingly, X would have been sentenced to reclusion perpetua as the principal, while Y would have been sentenced to reclusion temporal as an accomplice. Since simple kidnapping is a comparatively lighter crime than kidnapping for ransom, the lesser penalties are justified. Since Y was merely an accomplice to the crime of simple kidnapping, the imposition on him of a lighter penalty than X is in accord with the Revised Penal Code and established juridical and legal thought. Less justifiable would be the notion that in kidnapping for ransom, the principal and the accomplice would receive the same penalty, while in simple kidnapping, the principal suffers a higher penalty than the accomplice. Frankly, there is no rational explanation for such a disparity, and no legal justification other than the recognition that Congress has the power to will it so. Admittedly, the impact of Rep. Act No. 9346 is less dramatic in relation to frustrated and attempted felonies which were punishable by death if consummated. The consummated felony previously punishable by death would now be punishable by reclusion perpetua. At the same time, the same felony in its frustrated stage would, under the foregoing

premise in this section, be penalized one degree lower from death, or also reclusion perpetua. It does not seem right, of course, that the same penalty of reclusion perpetua would be imposed on both the consummated and frustrated felony. However, the anomaly would be mainly in theory, as we recognize that those felonies previously punishable by death are improbable of commission in their frustrated stage, unlike several felonies punishable by "reclusion perpetua to death,"73 such as murder, which may be frustrated. Still, it cannot be denied that these felonies previously punishable by death are capable of commission in their attempted stages and that the Revised Penal Code provides that the penalty for attempted felonies is "a penalty lower by two degrees than that prescribed by law for the consummated felony." The Court has thus consistently imposed reclusion temporal, the penalty two degrees lower than death, as the maximum term for attempted felonies which, if consummated, would have warranted the death penalty.74 If it were to be insisted that Rep. Act No. 9346 did not affect at all the penalties for attempted felonies, then those found guilty of the subject attempted felonies would still be sentenced to reclusion temporal, even though the "penalty lower by two degrees than that prescribed by law for the consummated felony" would now be prision mayor. It should be pointed out that the interpretation of Rep. Act No. 9346 that would sanction a penalty for some attempted felonies that is only one degree lower than the consummated crime would, again, be disharmonious and inconsistent with the Revised Penal Code and established thought in criminal law. Conceding again that the legislature has the discretion to designate the criminal penalties it sees fit, a regime that foists a differential theoretical basis for the punishment of different attempted felonies resulting in discriminatory penalties is not only irrational but also, to say the least, highly suspect. Considering that physical liberties are at stake, it would be a most cruel joke if such discriminatory effects ensued not from deliberate legislative will, but from oversight. VII. The implementation of Rep. Act No. 9346 in a way that leaves extant the penalties for accomplices, accessories, frustrated and attempted felonies, clearly results in illogical, iniquitous and inconsistent effects. In contrast, no similar flaws ensue should we construe Rep. Act No. 9346 instead as not having barred the application of the death penalty even as a means of depreciating penalties other than death. In particular, the operative amendment that would assure the integrity of penalties for accomplices, accessories, frustrated and attempted felonies lies in Article 71, which ranks "death" at the top of the scale for graduated penalties. Simply put, the negation of the word "death" as previously inscribed in Article 71 will have the effect of appropriately downgrading the proper penalties attaching to accomplices, accessories, frustrated and attempted felonies to the level consistent with the rest of our penal laws. Returning to our previous examples, Y, the convicted accomplice in kidnapping for ransom, would now bear the penalty of reclusion temporal, the penalty one degree lower than that the principal X would bear (reclusion perpetua). Such sentence would be consistent with Article 52 of the Revised Penal Code, as well as Article 71, as amended, to remove the reference to "death." Moreover, the prospect of the accomplice receiving the same sentence as the principal, an anomalous notion within our penal laws, would be eliminated. Thus, the same standard would prevail in sentencing principals and accomplices to the crime of kidnapping in ransom, as that prescribed to the crime of simple kidnapping. The harmonization that would result if Rep. Act No. 9346 were construed as having eliminated the reference to "death" in Article 71 would run across the board in our penal laws. Consistent with Article 51 of the Revised Penal Code, those convicted of attempted qualified rape would receive the penalty two degrees lower than that prescribed by law, now Rep. Act No. 9346, for qualified rape. There are principles in statutory construction that will sanction, even mandate, this "expansive" interpretation of Rep.

Act No. 9346. The maxim interpretare et concordare legibus est optimus interpretandi embodies the principle that a statute should be so construed not only to be consistent with itself, but also to harmonize with other laws on the same subject matter, as to form a complete, coherent and intelligible systema uniform system of jurisprudence.75 "Interpreting and harmonizing laws with laws is the best method of interpretation. x x x x This manner of construction would provide a complete, consistent and intelligible system to secure the rights of all persons affected by different legislative and quasilegislative acts."76 There can be no harmony between Rep. Act No. 9346 and the Revised Penal Code unless the later statute is construed as having downgraded those penalties attached to death by reason of the graduated scale under Article 71. Only in that manner will a clear and consistent rule emerge as to the application of penalties for frustrated and attempted felonies, and for accessories and accomplices. It is also a well-known rule of legal hermeneutics that penal or criminal laws are strictly construed against the state and liberally in favor of the accused.77 If the language of the law were ambiguous, the court will lean more strongly in favor of the defendant than it would if the statute were remedial, as a means of effecting substantial justice. 78The law is tender in favor of the rights of an individual.79 It is this philosophy of caution before the State may deprive a person of life or liberty that animates one of the most fundamental principles in our Bill of Rights, that every person is presumed innocent until proven guilty. Resort to the aforementioned principles in statutory construction would not have been necessary had Rep. Act No. 9346 ineluctably stated that the repeal of all laws imposing the death penalty did not engender the corresponding modification of penalties other than death, dependent as these are on "death" as a measure under the graduated scale of penalties under Article 71. Admittedly, if this were indeed the intent of Congress, and such intent were unequivocally expressed in Rep. Act No. 9346, the resulting inequities and inconsistencies we had earlier pointed out would have remained. If that were to be the case, we would have acknowledged, perhaps tacitly, that such inequities and inconsistencies fell part of the legislative intent. It does not speak well of a Congress to be deliberately inconsistent with, or ignorant of its own prior enactments. Yet ultimately, Section 1 of Rep. Act No. 9346 is not expressive of such rash or injudicious notions, as it is susceptible to a reading that would harmonize its effects with the precepts and practices that pervade our general penal laws, and in a manner that does not defy the clear will of Congress. VIII. One who would like to advocate that Rep. Act No. 9346 did not correspondingly amend any of the penalties other than death in our penal laws would most certainly invoke our ruling in People v. Muoz,80 decided in 1989. Therein, a divided Court ruled in that the constitutional bar on the imposition of the death penalty did not enact "a corresponding modification in the other periods [in penalties]", there being n o expression of "such a requirement in Article III, Section 19(1) of the Constitution or indicat[ion] therein by at least clear and unmistakable implication."81 In so concluding, the Court made the oft-cited pronouncement that there was nothing in the 1987 Constitution "which expressly declares the abolition of the death penalty." 82 It is time to re-examine Muoz and its continued viability in light of Rep. Act No. 9346. More precisely, would Muoz as precedent deter the Court from ruling that Rep. Act No. 9346 consequently downgraded penalties other than death? It can be recalled that the accused in Muoz were found guilty of murder, which under the Revised Penal Code, carried the penalty of reclusion temporal in its maximum period to death. The subject murders therein were not attended by any modifying circumstance, and thus penalized in the penalty's medium term. Jurisprudence previous

to Muoz held that the proper penalty in such instances should be "the higher half of reclusion temporalmaximum," with reclusion temporal maximum, divided into two halves for that purpose. Muoz rejected this formulation, holding instead that the penalty should be reclusion perpetua. Towards this conclusion, the Court made the above-cited conclusions relating to the constitutional abolition of the death penalty, and the charter's effects on the other periods. Six justices dissented from that ruling, and as recently as 1997, a member of the Court felt strongly enough to publish a view urging the reexamination of Muoz.83 It would be disingenuous to consider Muoz as directly settling the question now befacing us, as the legal premises behind Muoz are different from those in this case. Most pertinently, Muoz inquired into the effects of the Constitution on the proper penalty for murder; while herein, we are ascertaining the effects of Rep. Act No. 9346 on the proper penalty for attempted qualified rape. Muoz may have pronounced that the Constitution did not abolish the death penalty, but that issue no longer falls into consideration herein, the correct query now being whether Congress has banned the death penalty through Rep. Act No. 9346. Otherwise framed, Muoz does not preclude the Court from concluding that with the express prohibition of the imposition of the death penalty Congress has unequivocally banned the same. Muoz made hay over the peculiar formulation of Section 19(1), Article III, which provided that "[n]either shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it." Muoz and its progenies, have interpreted that provision as prohibiting the actual imposition of the death penalty, as opposed to enacting an amendatory law that eliminates all references and applications of the death penalty in our statutes. It can also be understood and appreciated that at the time Muoz was decided, it would have been polemical to foster an unequivocal pronouncement that Section 19(1), Article III abolished the death penalty, since the very provision itself acknowledged that Congress may nonetheless subsequently provide for the penalty "for compelling reasons involving heinous crimes," as Congress very well did just four (4) years after Muoz. No such language exists in Rep. Act No. 9346. Of course, the legislature has the inherent and constitutional power to enact laws prescribing penalties for crimes, and the Constitution will not prohibit Congress from reenacting the death penalty "for compelling reasons involving heinous crimes." Yet it was that express stipulation in the Constitution that dissuaded the Court from recognizing the constitutional abolition of the death penalty; and there is no similar statutory expression in Rep. Act No. 9346, which could be construed as evocative of intent similar to that of the Constitution. The doctrine in Muoz that the constitutional prohibition on the imposition of the death penalty did not enact a corresponding modification of other penalties is similarly irrelevant to this case, which calls for an examination as to whether such corresponding modifications of other penalties arose as a consequence of Rep. Act No. 9346, and not the Constitution. For purposes of legal hermeneutics, the critical question is whether Rep. Act No. 9346 intended to delete the word "death" as expressly provided for in the graduated scale of penalties under Article 71. Muoz did not engage in an analogous inquiry in relation to Article 71 and the Constitution, for what was relevant therein was not the general graduated scale of penalties, but the range of the penalties for murder. Herein, at bare minimum, no provision in Rep. Act No. 9346 provides a context within which the concept of "death penalty" bears retentive legal effect, especially in relation to Article 71. Unlike the Constitution, Rep. Act No. 9346 does expressly stipulate the amendment of all extant laws insofar as they called for the imposition of the penalty of death. The impression left by Muoz was that the use of the word "imposition" in the Constitution evinced the framer's intent to retain the operation of penalties under the Revised Penal Code. In the same vein, one might try to construe the use of "imposition" in Rep. Act No. 9346 as a means employed by Congress to ensure that the "death penalty", as applied in Article 71, remain extant. If the use of "imposition" was implemented as a means of retaining "death" under Article 71, it would have been a most curious, roundabout means indeed. The Court can tolerate to a certain degree the

deliberate vagueness sometimes employed in legislation, yet constitutional due process demands a higher degree of clarity when infringements on life or liberty are intended. We have ruled, on due process grounds, as arbitrary and oppressive a tax assessed on a standard characterized as "nothing but blather in search of meaning."84 In the matter of statutes that deprive a person of physical liberty, the demand for a clear standard in sentencing is even more exacting. Yet in truth, there is no material difference between "imposition" and "application," for both terms embody the operation in law of the death penalty. Since Article 71 denominates "death" as an element in the graduated scale of penalties, there is no question that the operation of Article 71 involves the actual application of the death penalty as a means of determining the extent which a person's liberty is to be deprived. Since Rep. Act No. 9346 unequivocally bars the application of the death penalty, as well as expressly repeals all such statutory provisions requiring the application of the death penalty, such effect necessarily extends to its relevance to the graduated scale of penalties under Article 71. We cannot find basis to conclude that Rep. Act No. 9346 intended to retain the operative effects of the death penalty in the graduation of the other penalties in our penal laws. Munoz cannot enjoin us to adopt such conclusion. Rep. Act No. 9346 is not swaddled in the same restraints appreciated by Muoz on Section 19(1), Article III. The very Congress empowered by the Constitution to reinstate the imposition of the death penalty once thought it best to do so, through Rep. Act No. 7650. Within the same realm of constitutional discretion, Congress has reversed itself. It must be asserted that today, the legal status of the suppression of the death penalty in the Philippines has never been more secure than at any time in our political history as a nation. Following Muoz, the sovereign people, through the 1987 Constitution, might not have willed the abolition of the death penalty and instead placed it under a suspensive condition. As such, we affirmed the characterization of the death penalty during the interregnum between the 1987 Constitution and its reimposition through law as being "in a state of hibernation."85 No longer. It reawakened then it died; because the sovereign people, through Rep. Act No. 9346, banned the death penalty. Only by an Act of Congress can it be reborn. Before that day, the consideration of death as a penalty is bereft of legal effect, whether as a means of depriving life, or as a means of depriving liberty. Despite our present pronouncement on the ban against of the death penalty, we do not acknowledge that Muozlacked legal justification when it was decided; that its application as precedent prior to Rep. Act No. 9346 was erroneous; or that previous sentences imposed on convicts on the basis of Muoz were wrong. Muoz properly stood as the governing precedent in the matter of sentences that passed finality prior to Rep. Act No. 9346; and the consistent reliance by the courts on its doctrines entrenched its footing in criminal law jurisprudence. IX. Rep. Act No. 7659, in the course of reintroducing the death penalty in the Philippines, also effectively classified the crimes listed therein as "heinous," within constitutional contemplation. Such reclassification under Rep. Act No. 7659 was accompanied by certain legal effects other than the imposition of the death penalty, such as the increase in imposable fines attached to certain heinous crimes.86 The categorization of certain crimes as "heinous", constituting as it does official recognition that some crimes are more odious than others, has also influenced this Court in adjudging the proper pecuniary indemnities awarded to the victims of these crimes. Hence, a general inclination persists in levying a greater amount of damages on accused found guilty of heinous crimes. It should be understood that the debarring of the death penalty through Rep. Act No. 9346 did not correspondingly declassify those crimes previously catalogued as "heinous". The amendatory effects of Rep. Act No. 9346 extend only to the application of the death penalty but not to the definition or classification of crimes. True, the penalties for

heinous crimes have been downgraded under the aegis of the new law. Still, what remains extant is the recognition by law that such crimes, by their abhorrent nature, constitute a special category by themselves. Accordingly, Rep. Act No. 9346 does not serve as basis for the reduction of civil indemnity and other damages that adhere to heinous crimes. X. Having pronounced the statutory disallowance of the death penalty through Rep. Act No. 9346 and the corresponding modification of penalties other than death through that statute, we now proceed to discuss the effects of these rulings. As to sentences not yet handed down, or affirmed with finality, the application is immediate. Henceforth, "death," as utilized in Article 71 of the Revised Penal Code, shall no longer form part of the equation in the graduation of penalties. For example, in the case of appellant, the determination of his penalty for attempted rape shall be reckoned not from two degrees lower than death, but two degrees lower than reclusion perpetua. Hence, the maximum term of his penalty shall no longer be reclusion temporal, as ruled by the Court of Appeals, but instead,prision mayor. There should be little complication if the crime committed was punishable by the free-standing penalty of "death," as utilized in Rep. Act No. 7659, as opposed to the ranged penalty of "reclusion perpetua to death," as often used in the Revised Penal Code and other penal laws. The facts of the present case do not concern the latter penalty, hence our reluctance to avail of an extended discussion thereof. However, we did earlier observe that both "reclusion perpetua" and death are indivisible penalties. Under Article 61 (2) of the Revised Penal Code, "[w]hen the penalty prescribed for the crime is composed of two indivisible penalties x x x x the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale." Hence, as we earlier noted, our previous rulings that the penalty two degrees lower than "reclusion perpetua to death" is prision mayor. Then there is the matter of whether retroactive effect should be extended to this new ruling, favorable as it is to persons previously convicted of crimes which, if consummated or participated in as a principal, would have warranted the solitary penalty of death. We see no choice but to extend the retroactive benefit. Article 22 of the Revised Penal Code states that "[p]enal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal[87] x x x x although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same." Given that we have ruled that Rep. Act No. 9346 downgraded the penalties for such crimes, the benefit of Article 22 has to apply, except as to those persons defined as "habitual criminal[s]." Indeed, Rep. Act No. 9346 expressly recognized that its enactment would have retroactive beneficial effects, referring as it did to "persons x x x whose sentences were reduced to reclusion perpetua by reason of this Act."88 It cannot be discounted that by operation of Rep. Act No. 9346 and Article 22 of the Revised Penal Code, there may be convicts presently serving their original sentences whose actual served terms exceed their reduced sentences. It should be understood that this decision does not make operative the release of such convicts, especially as there may be other reasons that exist for their continued detention. There are remedies under law that could be employed to obtain the release of such prisoners, if warranted. Offices such as the Public Attorney's Office and nongovernmental organizations that frequently assist detainees possess the capacity and acumen to help implement the release of such prisoners who are so entitled by reason of this ruling. XI. We close by returning to the matter of appellant Alfredo Bon. By reason of Rep. Act No. 9346, he is spared the death sentence, and entitled to the corresponding reduction of his penalty as a consequence of the downgrading of his

offense from two (2) counts consummated rape to two (2) counts of attempted rape. For the six (6) counts of rape, we downgrade the penalty of death to reclusion perpetua with no eligibility for parole, pursuant to Rep. Act No. 9346. For each of the two (2) counts of attempted rape, we downgrade by one degree lower the penalty imposed by the Court of Appeals. We hold that there being no mitigating or aggravating circumstances, the penalty of prision mayor should be imposed in it medium period. Consequently, we impose the new penalty of 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. Lastly, as to damages, the Court awards AAA P30,000.00 as civil indemnity, P25,000.00 as moral damages andP10,000.00 as exemplary damages for each count of attempted rape, it being the prevailing rate of indemnity as pronounced in the recent case of People v. Miranda.89 Separately, the Court applies prevailing jurisprudence 90 in awarding to BBB and AAA P75,000.00 as civil indemnity, P75,000.00 as moral damages and P25,000.00 as exemplary damages, for each count of consummated rape. WHEREFORE, in light of the foregoing, the Decision of the Court of Appeals is hereby AFFIRMED WITH MODIFICATION. The Court sentences appellant Alfredo J. Bon to the penalty of reclusion perpetua with no possibility of parole for each of the six (6) counts of consummated rape committed against AAA in Criminal Case Nos. 6699, 6902, and against BBB in Criminal Case Nos. 6689, 6903, 6905, and 6907. Appellant is further ORDERED to indemnify AAA and BBB for the crime of consummated rape, in the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary damages for each of them. For the two (2) counts of attempted rape of AAA in Criminal Cases No. 6906 and 6908, appellant is hereby SENTENCED to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccionalas minimum, to eight (8) years and one (1) of prision mayor as maximum for each count of attempted rape. In addition, appellant is ORDERED to indemnify AAA for each of the two (2) counts of attempted rape in the amounts of P30,000.00 as civil indemnity, P25,000.00 as moral damages and P10,000.00 as exemplary damages. SO ORDERED. Panganiban, C.J. (Chairperson), Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Chico-Nazario, Garcia, and Velasco, Jr., JJ., concur.

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Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

G.R. No. 131714 November 16, 1998 EDUARDO R. VACA and FERNANDO NIETO, petitioners, vs. COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.

MENDOZA, J.: Petitioners seek a review of the decision, dated October 25, 1996, 1 and the resolution, dated December 2, 1997,2 of the Court of Appeals, affirming their conviction by the Regional Trial Court of Quezon City (Branch 100) for violation of B.P. Blg. 22, otherwise known as the "Bouncing Checks Law." The facts are as follows: Petitioner Eduardo R. Vaca is the president and owner of Ervine International, Inc. (Ervine), which is engaged in the manufacture and sale of refrigeration equipment, while his son-in-law, petitioner Fernando Nieto, is the firm's purchasing manager. On March 10, 1988, petitioners issued a check for P10,000.00 to the General Agency for Reconnaissance, Detection, and Security, Inc. (GARDS) in partial payment of the security services rendered by GARDS to Ervine. The check was drawn on the China Banking Corporation (CBC). When deposited in the Philippine Commercial International Bank (PCIBank) branch at Shaw Boulevard, Mandaluyong, the check was dishonored for insufficiency of funds. On March 29, 1988, GARDS wrote Ervine a letter in which it demanded payment in cash of the amount of the check within seven days from notice. The letter was received by Ervine on the same day, but petitioners did not pay within the time given. On April 13, 1988, petitioners issued a check for P19,860.16 to GARDS. The check was drawn on the Associated Bank. The voucher accompanying it stated that the check was to replace the dishonored check, the P9,860.16 balance being partial payment for Ervine's outstanding account. The check and the voucher were received by a GARDS messenger, Nolan C. Pena, on April 15, 1988, but GARDS did not return the dishonored check. On April 14, 1988, GARDS Operations Manager Jovito C. Cabusara filed a criminal complaint against petitioners for violation of B.P. Blg. 22. After preliminary investigation, an information was filed in the Regional Trial Court of Quezon City (Branch 97). However, the case was dismissed by the court on May 11, 1989, upon motion of the prosecution, on the ground that Ervine had already paid the amount of the check. On September 18, 1989, GARDS, through its Acting Operations Manager Eduardo B. Alindaya, filed another complaint for violation of B.P. Bldg. 22 against petitioners. This resulted in the filing of an information against petitioners in the Regional Trial Court of Quezon City (Branch 100). After trial, petitioners were found guilty of the charge and each was sentenced to suffer one (1) year imprisonment and to pay a fine of P10,000.00 and the costs. On appeal, the Court of Appeals affirmed the decision. It subsequently denied petitioners' motion for reconsideration.

Hence, this petition. Petitioners contend: A. Respondent Court gravely erred in not holding that the prosecution failed to prove petitioners' guilt beyond reasonable doubt. B. Respondent Court gravely erred in basing conviction on the alleged weakness of the evidence of the defense rather than on the strength of the evidence of the prosecution. C. Respondent Court erred in not acquitting petitioners on grounds of "mistake of fact" and "lack of knowledge." Petitioners pray that the case against them be dismissed or, in the alternative, that the decision of the trial court be modified by sentencing each to an increased fine but without imprisonment. By supplemental petition, dated January 29, 1998, petitioners submitted an affidavit of desistance executed by GARDS president Dominador R. Santiago which states that the case arose from a mere "accounting difference" between petitioners and GARDS, that the latter had not really suffered any damage as a result of the issuance of the check in question and, that GARDS was no longer interested in prosecuting the case. On May 28, 1998, petitioners filed another supplemental petition, this time invoking the recent decision in Lao v. Court of Appeals, 3 in which this Court reversed a conviction for violation of B.P. Blg. 22 upon a showing that the accused had no knowledge of the insufficiency of funds. The Solicitor General opposes the appeal. He contends that the facts of Lao v. Court of Appeals are different from those of the case at bar and that the affidavit of desistance of Dominador Santiago is of no moment, such affidavit having been made only after petitioners' conviction. After due review of the decision in this case, we find that petitioners' conviction for violation of B.P. Blg. 22 is well founded. First. The elements of the offense penalized under B.P. Blg. 22 are: (1) making, drawing, and issuance of any check to apply to account or for value; (2) knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and (3) subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit, or dishonor of the check for the same reason had not the drawer, without any valid cause, ordered the bank to stop paymnent. 4 The maker's knowledge is presumed from the dishonor of the check for insufficiency of funds. 5 Thus, 2 of B.P. Blg. 22 expressly provides: Sec. 2. Evidence of knowledge of insufficient funds. The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. In this case, after being notified on March 29, 1988 of the dishonor of their previous check, petitioners gave GARDS a

check for P19,860.16. They claim that this check had been intended by them to replace the bad check they had previously issued to the GARDS. Based on the testimony of a GARDS accountant, however, the Court of Appeals found that the check was actually payment for two bills, one for the period of January 16 to January 31, 1988 in the amount of P9,930.08 and another one for the period of March 16 to March 31, 1988 in the same amount. But even if such check was intended to replace the bad one, its issuance on April 13, 1988 15 days after petitioners had been notified on March 29, 1988 of the dishonor of their previous check cannot negate the presumption that petitioners knew of the insufficiency of funds to cover the amount of their previous check. Sec. 2 of B.P. Blg. 22 requires that such check be given within five (5) days from the notice of dishonor to them. Petitioners contend that, in accordance with the ruling in Lao v. Court of Appeals, 6 they should be acquitted because the preparation of checks is the responsibility of the company accountant and all they do is sign the checks. They claim that they rely on the word of the accountant that there are sufficient funds in the bank to pay for the checks. In the Lao case, the accused, as the Court found, had merely been made by her employer, Premiere Investment House, to countersign checks in bank. The accused was a mere employee who did not have anything to do with the issuance of checks for the company. She did not know to whom the checks would be paid as the names of payees were written only later by the head of operations. Moreover, no notice of dishonor was given to her as required by B.P. Blg. 22 2. It could thus rightly be concluded that the accused issued checks to apply to account not knowing that at the time of issuance funds were insufficient to pay for the checks. Petitioners in this case cannot pretend ignorance of the insufficiency of funds. While it may be true that it was the company's accountant who actually prepared the rubber check, the fact remains that petitioners are the owners and officers of the company. Sec. 1 of B.P. Blg. 22 provides that "Where the check is drawn by a corporation, company, or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act. In fact, petitioner Nieto testified that after the check in question was dishonored, he instructed their company accountant to prepare a replacement check. 7 This belies petitioners' claim that they had no hand in the preparation of checks 8 and shows that petitioners were in control of the finances of the company. Second. The affidavit of desistance of the GARDS president deserves no more than passing mention. The claim that this case was simply the result of a misunderstanding between GARDS and petitioners and that the former did not really suffer any damage from the dishonor of the check is flimsy. After prosecuting the case below with tenacity, complainants going so far as to file another complaint after their first one had been dismissed, it is trifling with this Court for complainants to now assert that the filing of their case was simply a mistake. It is for reasons such as this the affidavit of desistance, like retractions, are generally disfavored. 9 The affidavit in this case, which was made after petitioners' conviction, is nothing but a last-minute attempt to save them from punishment. Even if the payee suffered no damage as a result of the issuance of the bouncing check, the damage to the integrity of the banking system cannot be denied. Damage to the payee is not an element of the crime punished in B.P. Blg. 22. Third. Petitioners pray that, in the alternative, the penalty be modified by deleting the sentence of imprisonment and, in lieu thereof a fine in an increased amount be imposed on them. In support of their plea, they allege that they do not have any record of prior conviction; that Eduardo Vaca is of advanced age (late 60s); and, that they come from good families. Petitioners claim that "with their family background and social standing there is no reason why they, will refuse to pay a due and demandable debt of only P10,000.00. It is precisely because of their founded belief that the subject obligation has been paid that they refused to be intimidated by a criminal charge." The Court of Appeals dismissed these allegations as irrelevant to the question of petitioners' guilt. We think so ourselves. However, we believe that they can be considered in determining the appropriate penalty to impose on

petitioners. B.P. Blg. 22, 1, par. 1 provides a penalty of "imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than, but not more than double, the amount of the check which fine shall in no case esceed two hundred thousand pesos, or both such fine and imprisonment at the discretion of the Court." Petitioners are first-time offenders. They are Filipino entrepreneurs who presumably contribute to the national economy. Apparently, they brought this appeal, believing in all good faith, although mistakenly, that they had not committed a violation of B.P. Blg. 22. Otherwise, they could simply have accepted the judgment of the trial court and applied for probation to evade a prison term. It would best serve the ends of criminal justice if in fixing the penalty within the range of discretion allowed by 1, par. 1, the same philosophy underlying the Indeterminate Sentence Law is observed, namely, that of redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness with due regard to the protection of the social order. 10 In this case we believe that a fine in an amount equal to double the amount of the check involved is an appropriate penalty to impose on each of the petitioners. WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification that the sentence of imprisonment is deleted and petitioners are each ordered to pay a fine of P20,000.00 equivalent to double the amount of the check. SO ORDERED Melo and Puno, JJ., concur. Martinez, J., is on leave.

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 90452 October 19, 1992 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIO JAYMALIN, defendant-appellant.

CRUZ, J.: This was not an ordinary buy-bust operation because a man was shot to death in the process. But that killing is now before us. What concerns us here is the conviction of the accused-appellant for violation of the Dangerous Drug Act. The information against him read as follows: INFORMATION Undersigned accuses MARIO JAYMALIN of Kiangan, Ifugao, of the crime of DRUG PUSHING defined and penalized by RA 6425, known as Dangerous Drug Act of 1972, as amended successively by PD Nos. 44, 1675, 1683, 1708 and Batas Pambansa Blg. 179, committed as follows: That on or about 8:30 o'clock, evening of October 20, 1983, at Brgy. Pindongan, Municipality of Kiangan, Province of Ifugao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain, DID then and there wilfully, unlawfully and feloniously have under his possession and control, for the purpose of dealing, selling, disposing or pushing, eight (8) branches of marijuana buds of more or less seven and one-half (7 1/2) kilos, from which dangerous and prohibited drugs can be manufactured. At the trial, the prosecution sought to establish that on October 20, 1983, the INP Ifugao Command in Lagawe was informed of a planned sale of marijuana at Kiangan, Ifugao. A team composed of Lt. Pedro Dulnuan, Lt. Edgar Danao, Cpl. Herman Kimmayong, Cpl. Daniel Kinakin and Patrolmen Catanglan, Binuhe and Talasig, was immediately organized to conduct a surveillance of the place and to arrest the marijuana dealers. At about 7:30 that evening, Lt. Dulnuan and his group met at Kiangan Central School for briefing. The civilian informer, a certain Max, reported that the marijuana seller had agreed to meet the buyers at the St. Joseph School's compound at 9:00 p.m. It was decided that Danao and Kimmayong were to pose as the buyers while the rest were to back them up. Danao and Kimmayong posted themselves in front of a store near the gate of the St. Joseph School. It was drizzling. At around 8:30 p.m., a man with an umbrella (later established as the accused Mario Jaymalin) approached them and asked, "Are you Max?" Kimmayong said no. Then the man asked, "Are you the contacted buyer of marijuana?" The answer this time was yes. The man then invited them into the SJS compound. They proceeded to the High School Boy's Department where he showed them a box containing marijuana. Danao and Kimmayong inspected the contents of the box and, satisfied that they were marijuana, negotiated with the accused on the price. While they were haggling, Mario's younger brother, Francisco Jaymalin, who was wearing a long black overcoat and had a rifle slung over his shoulder, approached them. It was then that Danao announced to the Jaymalin brothers that they were being arrested. Francisco immediately ran and fired his gun., Ironically, it was Mario he hit in the arm. Hearing the gunshot, Dulnuan rushed to the scene and called on Francisco to stop. Francisco's reaction was to fire at him, hitting him in the stomach. The other team members then shot back at Francisco, hitting him in several parts of his body. Francisco surrendered. Two days later, he died.

The box produced by Mario was taken to the Ifugao INP headquarters for safekeeping. It was marked with the words "Champion" and "Magno" 1 Major Esteban initially inspected its contents and found them to the marijuana. This finding was confirmed by Captain Benjamin Rubio, a forensic chemist, after a laboratory examination he conducted at Camp de la Cruz, in Soyung, Isabela. 2 As might be expected, the accused had a different story. His testimony was that in the evening in question, he arrived home in Kiangan, Ifugao, and found that his young daughter was still out. After taking his supper, he went to his parent's house thinking that she would be there. To reach the place, he took a short cut through the grounds of the St. Joseph School. When he was near the main entrance of the school, he met two persons, one of who asked him if he knew where Francisco Jaymalin lived. He said he did and even offered to lead them to his brother's house, which was near his parent's house. The three entered the school compound and crossed the playground. As they approached one of the buildings, a man in a dark overcoat and carrying a box came towards them. One of the two men asked the stranger to identify himself but he did not answer. The question was repeated. Still the man did not answer but started to move back. At that point, Mario heard somebody shout, "Saan ka nga agtaray," meaning "Don't run away." Then, a shot rang out, followed by a rapid exchange of fire. The accused felt something hit his arm. More confusion followed and then someone cried out that he was surrendering. It was then that Mario recognized the man in the black coat as his brother, Francisco. After trial, Judge Nicasio A. Baguilat of the Regional Trial Court, Lagawe, Ifugao, rendered a decision the dispositive portion of which declared: In the light of all the foregoing, this Court finds the accused, Mario Jaymalin guilty beyond reasonable doubt of the crime charged and sentenced to suffer the penalty of RECLUSION PERPETUA OR LIFE IMPRISONMENT AND A FINE OF P20,000.00 The accused-appellant now assails that decision. He insists that the trial court erred in accepting the evidence for the prosecution, which he says is vitiated with inconsistencies and contradictions that "are far too numerous to be merely ignored as trivial." According to the accused-appellant, the testimony of Kimmayong, who was supposedly one of the buyers in the "buybust" operation, varies on some points with his previous sworn statements. Thus while initially declaring that he was not the one who prepared the rough and final sketch of the scene of the crime, he later recanted and admitted that he in fact prepared the two sketches. The accused-appellant also points to conflicting statements and discrepancies in the testimonies of the prosecution witnesses, specifically on: (1) the clothes the "poseur-buyers" wore on the night of the operation; (2) the source, amount and the handling of the entrapment money; (3) the participation of the civilian informer identified only as Max; and (4) the person who warned the Jaymalin brothers about the police. His point is that their dissimilarities reflect on the credibility of the prosecution evidence, which should therefore have

been totally rejected by the trial court. The Court has examined these inconsistencies and finds that they relate to minor matters and do not impair the essential integrity of the evidence for the prosecution. Differences among witnesses in the recollection of details relating to the same incident may be expected, especially after more than a year has elapsed from the occurrence of the incident. Nevertheless, their respective declarations may not be rejected as totally untrue as long as there is basic agreement among them on the main points of the incident.
As we said in People vs. Ansing:
3

This Court has stated time and again that minor inconsistencies in the narration of a witness do not detract from its essential credibility as long as it is on the whole coherent and intrinsically believable. Inaccuracies may in fact suggest that the witness is telling the truth and has not been rehearsed as it is not to be expected that he will be able to remember every single detail of an incident with perfect or total recall. The accused-appellant also argues that he would not have been so reckless as to simply approach strangers and ask them outright if they were the contacted buyer as such conduct would not have been consistent with human behavior and experience. The argument must also be rejected. The Court has held that "what matters is not an existing familiarity between the buyer and the seller but their agreement and the acts constituting the sale and delivery of the marijuana leaves." 4 We have also observed that drug pushers have become increasingly casual about their activities, especially in isolated transactions like the one at bar, and have grown practically defiant, if not scornful, of the law they are violating. 5 As for the accused-appellant's doubt on the identity of the marijuana presented in evidence against him, we sustain the following observations of the Solicitor General: . . . from the time said substance was seized from the Jaymalins, it never left official custody of the Police and PC offices concerned. There is thus here the presumption established by the Rule of Court that official duty has been regularly performed; in this instance, that indeed the sample tested came from the evidence seized and kept in official custody. (Rule 131, Sec. [m]) Appellant, who seeks to dispute this presumption, has the burden of proving his contrary contention.But this, appellant has failed to do, relying merely on his self-serving and bare contention. Thus, it has not been proved at all that there is anything amiss or irregular in the procedure followed by the authorities herein, and the presumption remains that the marijuana tested was part of the evidence seized and kept by the authorities. Moreover, if indeed appellant had serious and substantial ground to support this contention, then it was incumbent upon him or his counsel to summon T/Sgt. Yadang, the evidence custodian herein, to testify concerning the case. That this was not done casts serious doubt on the veracity of appellant's claim. It is a rule that non-presentation by the prosecution of certain witness is not sufficient defense. (People v. Laureta, Jr., 159 SCRA 256) Furthermore, it is on record that even before the laboratory testing done on the seized

marijuana, the same have been identified as such by the police officers-witnesses. This is no trifling matter, since these officers were exposed to drug-busting operations for years, as proved by their testimony, and were totally acquainted with the look and the odor of marijuana. (TSN, November 26, 1986, pp. 17 to 22; TSN, August 26, 1986, pp. 5 to 7) It is true that the judge who ultimately decided the case had not heard the controversy at all, the trial having been conducted by then Judge Emilio L. Polig, who was indefinitely suspended by this Court. Nonetheless, the transcripts of stenographic notes taken during the trial were complete and were presumably examined and studied by Judge Baguilat before he rendered his decision. It is not unusual for a judge who did not try a case to decide it on the basis of the record. The fact that he did not have the opportunity to observe the demeanor of the witnesses during the trial but merely relied on the transcript of their testimonies does not for that reason alone render the judgment erroneous. 6 In asking us to believe that he was merely looking for his daughter when he was arrested without cause, the accusedappellant is straining our credulity. He seems to be suggesting that he was simply picked up although he was in fact helping the policemen locate his brother. The officers who conducted the buy-bust operation had not known him before that night and had no reason to concoct the drug-pushing charges against him. His version of the disputed incident, including his failure to recognize his own brother, is palpably inventive, not to say too loosely put together, as to induce only disbelief. The Court sustains the findings of the trial court on what actually happened that evening of October 20, 1983, when the accused-appellant was arrested for possessing and selling marijuana. His own version of the disputed incident cannot stand against the positive evidence adduced by the prosecution, which was clearly overcome the constitutional presumption of innocence. The judgment must nevertheless be rectified insofar as it sentenced the accused-appellant to "reclusion perpetuaor life imprisonment." We have held that the two penalties are not synonymous or interchangeable as reclusion perpetua carries accessory penalties that do not attach to life imprisonment. 7 Under the Dangerous Drugs Act, the proper penalty for the crime committed by the accused-appellant is life imprisonment plus the P20,000.00 fine,8 and it is here so imposed. WHEREFORE, the challenged decision as above modified is AFFIRMED and the appeal is DISMISSED. It is so ordered. Grio-Aquino, Medialdea and Bellosillo, JJ., concur. Padilla, J., is on leave.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. 150523-25 July 2, 2003

PEOPLE OF THE PHILIPPINES, appellee, vs. ONOFRE GALANG Y MENDOZA, appellant. PER CURIAM: ONOFRE GALANG Y MENDOZA was convicted by the court a quo of three (3) counts of rape. In Crim. Case No. 1386-99 (now G.R. No. 150523) he was sentenced to reclusion perpetua, and in Crim. Cases Nos. 1387-99 and 1388-99 (now G.R. Nos. 150524 and 150525) he was sentenced to death in both cases.1 His conviction by the court a quo in the three (3) cases is now before us for review. By living with accused Onofre Galang as her common-law husband, Loida Pacampara could have hoped to have not only a lover but also a "stepfather" to her four (4) children by her late husband Telesforo. She was wrong; instead, she brought a Judas incarnate who deliberately betrayed her trust and affection in exchange for his insatiable lust for her only daughter Edlyn. In three (3) separate Informations, accused Onofre Galang y Mendoza was charged with having sexual intercourse on three (3) different occasions, i.e., in Crim. Case No. 1386-99 which allegedly took place in March 1997, and in Crim. Cases Nos. 1387-99 and 1388-99 which referred to the rape incidents of 2 April 1999 and 28 March 1999, respectively, against the will and without the consent of seventeen-year old Edlyn Galang, minor daughter of his common-law spouse Loida Pacampara who was living with them in Brgy. Lourdes, Dap-dap Resettlement Area, Bamban, Tarlac. Edlyn testified that Onofre sexually assaulted her several times. Of these, she could remember those that happened in March 1997 when she was only fifteen (15), and then on 28 March 1999 and 2 April 1999 when she was seventeen (17). She clarified that the accused was her "stepfather" being the live-in partner of her mother Loida Pacamara. The couple lived as husband and wife without the benefit of marriage since she was five (5), and she grew up with them. Edlyn recounted that in the early morning of 2 April 1999 her mother left for work while her elder siblings went out to other places. She was left at home alone with Onofre. According to her, she was out in the yard that morning when the accused called her. Thinking that Onofre had some errand for her, she went up the house. Thereupon, Onofre ordered her to lie on the cement floor and kissed her on the lips. She tried to ward off his unwanted caresses but the accused, while hissing threats to kill her family, held her by the chin and peppered her with lustful kisses. He then forcibly removed her shorts and panty. While holding Edlyns legs wide apart, the accused mounted her and inserted his penis into her vagina. She could only whimper faintly in protest. According to private complainant, she was also sexually assaulted by Onofre several days earlier, i.e., in the

afternoon of 28 March 1999, while she and the accused were alone in the house. He called her from inside the room, and thereafter feverishly kissed her on the lips. He removed her shorts and panty while hurling threats against her family. Her attempts to free herself from his grasp proved futile as he succeeded in inserting his penis into her vagina. When her mother Loida returned home and subsequently entered the room, she found the accused wiping his organ and Edlyn behind the door with her head bowed. Confronted with the compromising scene, Loida became suspicious and asked what the two (2) were doing. Loida berated her live-in partner and an argument followed. In the evening of 28 March, Loida pulled her daughter aside and inquiringly asked if she had already given up her virginity, to which Edlyn nodded. In a conspirational tone, she told Edlyn to pretend as if nothing happened (wag magpapahalata) because she would ask assistance from her brother who was a police officer in Angeles City. Five (5) days later, Loida and some other relatives went to the Bamban police station to report the matter to the authorities. According to Loida, she left Edlyn at home because she did not want the accused to suspect that something was amiss and thus forewarn him of what they were planning to do. Edlyn also testified that she had been repeatedly victimized by the accused as early as March 1997. She revealed that she could not refuse her "stepfather" every time he summoned her because she was afraid of him. In his defense, accused Onofre Galang denied the accusations while asserting that the supposed sexual molestations could not have taken place, specifically in March 1997 because complainant, a high school student, was usually in school from 7:00 in the morning until about 3:00 or 4:00 oclock in the afternoon. He added that Loida was also normally at work at that time. For his part, as an appliance repairman by vocation, he would leave at different times whenever a customer would fetch him. He however could not recall an occasion when he and Edlyn were home alone together. According to Onofre, the alleged rape on 2 April 1999 could not have possibly happened because there was no instance that he and Edlyn were alone together since all the other members of the family were at home that day. He remembered however that at 8:00 oclock in the morning, Loida asked permission from him to go to Angeles City. Although he suggested to Loida that she take her daughter Edlyn along, Loida refused because, according to her, she would be back soon enough. In his testimony, he affirmed that as soon as his wife left for Angeles City, the rest of the family, including him and Edlyn, went to the house of his wifes sister to watch a VHS movie. As to the rape which allegedly transpired on 28 March 1999, the accused explained that although he could not recall where he was at that time, he was nevertheless certain that Edlyn and her mother were at home. He denied all the charges hurled against him by his live-in partner and dismissed them as mere rantings of a jealous woman. For him, the filing of the instant cases was but Loidas way of venting her jealousy over him for his closeness to Edlyn who in turn might have been couched by her mother into testifying against him. The trial court seriously doubted the protestations of innocence by the accused. It viewed his guilt in this wise -2 In the course of the testimony of Edlyn, she was crying on her narration of the sad portions of the sexual abuses. "The crying of the victim during her testimony is evidence of the credibility of the rape charge with the verity born out of human nature." "No woman would want to go through the process, the trouble and the humiliation of trial for such a debasing offense unless she actually has been the victim of abuse and her motive is but a response to the compelling need to seek and obtain justice." Accused-appellant assails his conviction on the following grounds: (a) the complainan ts testimony clearly shows absence of any allegation much less detail on how the alleged rape of March 1997 took place; and, (b) the testimonies of the complainant on the alleged incidents of rape on 28 March 1999 and 2 April 1999 did not prove his

guilt beyond reasonable doubt. On the first assigned error, accused-appellant contends that the trial court committed grave error in finding him guilty of the crime of rape in Crim. Case No. 1386-99 despite the failure of the complainant to make any narration with respect to the circumstances surrounding the rape incident supposedly committed in March of 1997. The sweeping and general statements, according to him, do not meet the quantum of evidence required by law to indubitably prove the crime charged. After sifting through the evidence on record, we find that indeed the narration of private complainant on the alleged rape in March 1997 was miserably wanting in material particulars to establish beyond any pall of doubt that she was in fact a victim of sexual violence in the hands of her "stepfather." As correctly pointed out by the defense, complainant only made a general assertion that she had been sexually abused by her "stepfather" from March 1997 up to April 1999. The records are bereft of essential details to enable us to reconstruct with reasonable clarity the dreadful incident of that day and establish the attendant circumstances constitutive of the alleged rape. In People v. Marahay,3 we absolved the accused of two (2) counts of rape when upon inquiry as to what occurred on the evening of 25 August 1994, complainant merely replied that her father "did the same thing to her." In that case, we declared that such statements would not suffice to establish accused-appellants guilt with the required quantum of evidence. We further noted that each and every charge of rape is a separate and distinct crime so that each act of rape charged must be proved beyond reasonable doubt. More in point is People v. Supnad4 where the Court found the testimony of complainant grossly insufficient to establish the guilt of accused-appellant with complainants "simple assertion that her uncle had sexual intercourse with her twice in February and once in March." In the opinion of the Court, her testimony was simply "too general as it failed to focus on material details." As regards the rape charges in Crim. Cases Nos. 1387-99 and 1388-99, accused-appellant argues that complainants testimony shows that the threat or intimidation he supposedly exerted on her was more apparent than real. He insists that complainant should have put up an active resistance in order to repel the alleged sexual aggression considering that her life was not in imminent danger. As it was, according to accused-appellant, complainant passively allowed the alleged sexual abuse to take place. Accused-appellants contentions deserve scant consideration. Contrary to his assertion, the records are awash with indicia conclusively demonstrating that he raped Edlyn with the use of force or intimidation at the time and place and in the manner described by the victim. Pertinent portions of complainants direct examination on the 2 April 1999 rape incident amply illustrate the point Fiscal Capulong Q: A: At the time that he kissed you, what did you do? I could not do anything because he was threatening me, sir.

Fiscal Capulong: Q: A: How was he threatening you? Because there was a bolo under the cabinet, sir.

Q: A:

And where Is that cabinet? Inside the room.5

Then again: Q: Now at the time when he inserted his penis in your private part, how were you positioned? You were standing or you were lying down or what? A: Q: A: Q: A: We were lying down, sir. Did he tell you anything when he inserted his penis in your private part? None, sir. Was he holding anything at that time? He was threatening me, sir.

Fiscal Capulong: Q: A: How was he threatening you? He told me that he will (sic) kill us, sir.6 xxx Q: A: Q: A: Q: A: You did not do anything to close your legs? I was trying to put them together but I could not do so, sir. You did not tell him anything? I told him, "enough, enough" (tama na po), sir. When you told him, "enough, enough" had he inserted his penis into your vagina? Yes, sir.7

On the 28 March 1999 incident, complainant described her attempt at resistance in this wiseFiscal Capulong: Q: A: What were you doing when he was inserting his penis on your private part? I was pushing him, sir.

Q: A: Q: A:

Aside from pushing him did you do anything else? None anymore, sir. Did you not cry? I cried, sir.8

And still in the same testimonyQ; A: Q: A: Q: A: Q: A: Why? Why did you not report the incident to your mother? I was afraid, sir. Why? Did he threaten you with any physical injury? He was threatening me, sir. How? How did he threaten you? Did he tell you anything? Yes, sir. What did he tell you? He will (sic) kill all of us, sir.9

As the above-quoted testimonies would attest, the response and conduct of the complainant amidst an overpowering sexual assault do not disclose any hint of voluntariness on her part to submit to accused-appellants lecherous advances. In fact, under the circumstances, she gave a rather good account of herself in defending her honor and dignity by resisting her assailant with utmost courage and determination. If she eventually submitted, meekly as it seemed, to the libidinous incursions of accused-appellant it was more a reflection of the terror and fear in her young mind and the sense of futility of any form of resistance. The pronouncement of this Court in People v. Pamor is instructive -10 Under the circumstances and considering her tender age, the reaction of a mature or normal person could hardly be expected from her. Nor is it reasonable to demand that a greater degree of intimidation be present so as to warrant conviction. Intimidation in rape cases is not calibrated or governed by hard and fast rules. Since it is addressed to the mind of the victim and is therefore subjective, it must be viewed in the light of the victims perception and judgment at the time of the commission of th e crime. It is enough that it produces fearfear that if the victim does not yield to the bestial demands of the accused, something would happen to her at that moment. It includes the moral kind such as the fear caused by threatening the victim with a knife or pistol. Where such intimidation exists and the victim is cowed into submission as a result thereof, thereby rendering resistance futile, It would be extremely unreasonable, to say the least, to expect the victim to resist with all her might and strength. If resistance would nevertheless be futile because of a continuing intimidation, then offering none at all would not mean consent to the assault as to make the victims participation in the sexual act voluntary. During the trial, the court a quo observed that complainant wept while recounting her heartrending experience. Her

tears were a tangible expression of pain and anguish for the acts of violence she suffered in the hands of the man she hoped would take the place of her departed father. The crying of the victim during her testimony was evidence of the credibility of the rape charge with the verity borne out of human nature and experience.11 The Information in Crim. Case No. 1386-99 alleged that Edlyn Galang was a minor child of sixteen (16) at the time the alleged rape in March 1997 happened while those in Crim. Cases Nos. 1387-99 to 1388-99 alleged that she was seventeen (17) at the time the rape incidents occurred on 2 April 1999 and 28 March 1999. As evidenced by complainants certificate of live birth,12 which shows that she was born on 26 January 1982, complainant was still a minor at the time the three (3) instances of rape occurred in March 1997, 28 March 1999, and 2 April 1999. The lower court also found that accused-appellant was not legally married to complainants mother. Strictly speaking therefore, he is not the stepfather of the complainant but only the common-law spouse of her mother. Nonetheless, this does not detract from the fact that he exercised some measure of moral ascendancy over the victim. Be that as it may, it has been established beyond any iota of doubt that accused-appellant employed force and intimidation to threaten, coerce or compel the complainant to succumb to his lechery. While we agree with the findings and conclusions of the trial court in Crim. Cases Nos. 1387-99 and 1388-99, we cannot give our assent to its findings in Crim. Case No. 1386-99 where accused-appellant was found guilty of rape and sentenced to reclusion perpetua. As discussed earlier, the prosecution miserably failed to establish the circumstances essential to constitute the crime of rape in March 1997. Along the same vein, the lower court justified the imposition of the death sentence in Crim. Case No. 1387-99 and another death sentence in Crim. Case No. 1388-99 pursuant to Art. 266-B of RA 8353 (Anti-Rape Law of 1997), amending Art. 335 of The Revised Penal Code, which now provides The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/ qualifying circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepfather, guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the parent of the victim x x x x In view of the concurrence of both the minority of the victim and her filial relationship to accused-appellant, and pursuant to the above-quoted provision of RA 8353, we affirm the two (2) death penalties imposed upon him by the trial court. As to damages, we hold that if the rape was attended by any of the qualifying circumstances that require the imposition of the death penalty, the civil indemnity shall be P75,000.00.13 Thus the trial courts award of P75,000.00 as civil indemnity in Crim. Case No. 1387-99 and another P75,000.00 in Crim. Case No. 1388-99 is in consonance with prevailing jurisprudence. Pursuant to current case law14 however, the trial court should have also awarded moral damages in the amount of P50,000.00 in each case, the same to be imposed without need of proof other than the fact of rape. WHEREFORE the assailed Decision of the trial court finding accused-appellant ONOFRE GALANG Y MENDOZA in Crim. Cases Nos. 1387-99 and 1388-99 guilty beyond reasonable doubt of the crime of rape and sentencing him to suffer two (2) death penalties for both cases, is AFFIRMED. However, as regards Crim. Case No. 1386-99, accusedappellant is ACQUITTED for insufficiency of evidence or that his guilt has not been proved beyond reasonable doubt. In addition, in Crim. Cases Nos. 1387-99 and 1388-99, accused-appellant Onofre Galang y Mendoza is further ordered to pay the offended party, Edlyn Pacampara Galang,15 P75,000.00 as civil indemnity and another P50,000.00

as moral damages in each case. In accordance with Sec. 25 of RA 7659, amending Art. 83 of The Revised Penal Code, upon the finality of this Decision, let the records of this case be forwarded to the Office of the President for the possible exercise of her pardoning power. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Corona, CarpioMorales, Callejo, Sr. and Azcuna, JJ., concur. Quisumbing, J., on leave. Austria-Martinez, J., on official leave.

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Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 93028 July 29, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARTIN SIMON y SUNGA, respondent. The Solicitor General for plaintiff-appellee. Ricardo M.Sampang for accused-appellant.

REGALADO, J.: Herein accused-appellant Martin Simon y Sunga was charged on November 10, 1988 with a violation of Section 4, Article II of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, under an indictment alleging that on or about October 22, 1988, at Barangay Sto. Cristo, Guagua, Pampanga, he sold four tea bags of marijuana to a Narcotics Command (NARCOM) poseur-buyer in consideration of the sum of P40.00, which tea bags, when subjected to laboratory examination, were found positive for marijuana. 1 Eventually arraigned with the assistance of counsel on March 2, 1989, after his rearrest following his escape from Camp Olivas, San Fernando, Pampanga where he was temporarily detained, 2 he pleaded not guilty. He voluntarily waived his right to a pre-trial conference, 3 after which trial on the merits ensued and was duly concluded. I The evidence on record shows that a confidential informant, later identified as a NARCOM operative, informed the police unit at Camp Olivas, San Fernando, Pampanga, of the illegal drug activities of a certain "Alyas Pusa" at Sto. Cristo, Guagua, Pampanga. Capt. Francisco Bustamante, Commanding Officer of the 3rd Narcotics Regional Unit in the camp, then formed a buy-bust team composed of Sgt. Buenaventura Lopez, Pfc. Virgilio Villaruz and Sgt. Domingo Pejoro, all members of the same unit. After securing marked money from Bustamante, the team, together with their informant, proceeded to Sto. Cristo after they had coordinated with the police authorities andbarangay officers thereof. When they reached the place, the confidential informer pointed out appellant to Lopez who consequently approached appellant and asked him if he had marijuana. Appellant answered in the affirmative and Lopez offered to buy two tea bags. Appellant then left and, upon returning shortly thereafter, handed to Lopez two marijuana tea bags and Lopez gave him the marked money amounting to P40.00 as payment. Lopez then scratched his head as a pre-arranged signal to his companions who were stationed around ten to fifteen meters away, and the team closed in on them. Thereupon, Villaruz, who was the head of the back-up team, arrested appellant. The latter was then brought by the team to the 3rd Narcotics Regional Unit at Camp Olivas on board a jeep and he was placed under custodial investigation, with Sgt. Pejoro as the investigator. 4 Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal that transpired between Lopez and the appellant. He also averred that he was the one who confiscated the marijuana and took the marked money from appellant. 5 Sgt. Domingo Pejoro, for his part, declared that although he was part of the buy-bust team, he was stationed farthest from the rest of the other members, that is, around two hundred meters away from his companions. He did not actually see the sale that transpired between Lopez and appellant but he saw his teammates accosting appellant after the latter's arrest. He was likewise the one who conducted the custodial investigation of appellant wherein the latter was apprised of his rights to remain silent, to information and to counsel. Appellant, however, orally waived his right to counsel. 6 Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property Seized/Confiscated" which appellant signed, admitting therein the confiscation of four tea bags of marijuana dried leaves in his possession. Pejoro likewise informed the court below that, originally, what he placed on the receipt was that only one marijuana leaf was confiscated in exchange for P20.00. However, Lopez and Villaruz corrected his entry by telling him to put "two", instead of "one" and "40", instead of "20". He agreed to the correction since they were the ones who were personally and directly involved in the purchase of the marijuana and the arrest of appellant. 7

Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at 5:30 p.m. of the day after the latter's apprehension, and the results were practically normal except for his relatively high blood pressure. The doctor also did not find any trace of physical injury on the person of appellant. The next day, he again examined appellant due to the latter's complaint of gastro-intestinal pain. In the course of the examination, Dr. Calara discovered that appellant has a history of peptic ulcer, which causes him to experience abdominal pain and consequently vomit blood. In the afternoon, appellant came back with the same complaint but, except for the gastro-intestinal pain, his physical condition remained normal. 8 As expected, appellant tendered an antipodal version of the attendant facts, claiming that on the day in question, at around 4:30 p.m., he was watching television with the members of his family in their house when three persons, whom he had never met before suddenly arrived. Relying on the assurance that they would just inquire about something from him at their detachment, appellant boarded a jeep with them. He was told that they were going to Camp Olivas, but he later noticed that they were taking a different route. While on board, he was told that he was a pusher so he attempted to alight from the jeep but he was handcuffed instead. When they finally reached the camp, he was ordered to sign some papers and, when he refused, he was boxed in the stomach eight or nine times by Sgt. Pejoro. He was then compelled to affix his signature and fingerprints on the documents presented to him. He denied knowledge of the P20.00 or the dried marijuana leaves, and insisted that the twenty-peso bill came from the pocket of Pejoro. Moreover, the reason why he vomited blood was because of the blows he suffered at the hands of Pejoro. He admitted having escaped from the NARCOM office but claimed that he did so since he could no longer endure the maltreatment to which he was being subjected. After escaping, he proceeded to the house of his uncle, Bienvenido Sunga, at San Matias, Guagua, reaching the place at around 6:30 or 7:30 p.m. There, he consulted a quack doctor and, later, he was accompanied by his sister to the Romana Pangan District Hospital at Floridablanca, Pampanga where he was confined for three days. 9 Appellant's brother, Norberto Simon, testified to the fact that appellant was hospitalized at Floridablanca, Pampanga after undergoing abdominal pain and vomiting of blood. He likewise confirmed that appellant had been suffering from peptic ulcer even before the latter's arrest. 10 Also, Dr. Evelyn Gomez-Aguas, a resident physician of Romana Pangan District Hospital, declared that she treated appellant for three days due to abdominal pain, but her examination revealed that the cause for this ailment was appellant's peptic ulcer. She did not see any sign of slight or serious external injury, abrasion or contusion on his body. 11 On December 4, 1989, after weighing the evidence presented, the trial court rendered judgment convicting appellant for a violation of Section 4, Article II of Republic Act No. 6425, as amended, and sentencing him to suffer the penalty of life imprisonment, to pay a fine of twenty thousand pesos and to pay the costs. The four tea bags of marijuana dried leaves were likewise ordered confiscated in favor of the Government. 12 Appellant now prays the Court to reverse the aforementioned judgment of the lower court, contending in his assignment of errors that the latter erred in (1) not upholding his defense of "frame-up", (2) not declaring Exhibit "G" (Receipt of Property Seized/Confiscated) inadmissible in evidence, and (3) convicting him of a violation of the Dangerous Drugs Act. 13 At the outset, it should be noted that while the People's real theory and evidence is to the effect the appellant actually sold only two tea bags of marijuana dried leaves, while the other two tea bags were merely confiscated subsequently from his possession, 14 the latter not being in any way connected with the sale, the information alleges that he sold and delivered four tea bags of marijuana dried leaves. 15 In view thereof, the issue presented for resolution in this appeal is merely the act of selling the two tea bags allegedly committed by appellant, and does not include the disparate and distinct issue of illegal possession of the other two tea bags which separate offense is not charged herein. 16

To sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably established. 17 To sell means to give, whether for money or any other material consideration. 18 It must, therefore, be established beyond doubt that appellant actually sold and delivered two tea bags of marijuana dried leaves to Sgt. Lopez, who acted as the poseur-buyer, in exchange for two twenty-peso bills. After an assiduous review and calibration of the evidence adduced by both parties, we are morally certain that appellant was caught in flagrante delicto engaging in the illegal sale of prohibited drugs. The prosecution was able to prove beyond a scintilla of doubt that appellant, on October 22, 1988, did sell two tea bags of marijuana dried leaves to Sgt. Lopez. The latter himself creditably testified as to how the sale took place and his testimony was amply corroborated by his teammates. As between the straightforward, positive and corroborated testimony of Lopez and the bare denials and negative testimony of appellant, the former undeniably deserves greater weight and is more entitled to credence. We are aware that the practice of entrapping drug traffickers through the utilization of poseur-buyers is susceptible to mistake, harassment, extortion and abuse. 19 Nonetheless, such causes for judicial apprehension and doubt do not obtain in the case at bar. Appellant's entrapment and arrest were not effected in a haphazard way, for a surveillance was conducted by the team before the buy-bust operation was effected. 20 No ill motive was or could be attributed to them, aside from the fact that they are presumed to have regularly performed their official duty. 21 Such lack of dubious motive coupled with the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, should prevail over the self-serving and uncorroborated claim of appellant of having been framed, 22 erected as it is upon the mere shifting sands of an alibi. To top it all, appellant was caught red-handed delivering prohibited drugs, and while there was a delimited chance for him to controvert the charge, he does not appear to have plausibly done so. When the drug seized was submitted to the Crime Laboratory Service of the then Philippine Constabulary-Integrated National Police (PC-INP) at Camp Olivas for examination, P/Cpl. Marlyn Salangad, a forensic chemist therein, 23 confirmed in her Technical Report No. NB-448-88 that the contents of the four tea bags confiscated from appellant were positive for and had a total weight of 3.8 grams of marijuana. 24 Thus, the corpus delicti of the crime had been fully proved with certainty and conclusiveness. 25 Appellant would want to make capital of the alleged inconsistencies and improbabilities in the testimonies of the prosecution witnesses. Foremost, according to him, is the matter of who really confiscated the marijuana tea bags from him since, in open court, Pejoro asserted that he had nothing to do with the confiscation of the marijuana, but in the aforementioned "Receipt of Property Seized/Confiscated," he signed it as the one who seized the same. 26 Suffice it to say that whether it was Villaruz or Pejoro who confiscated the marijuana will not really matter since such is not an element of the offense with which appellant is charged. What is unmistakably clear is that the marijuana was confiscated from the possession of appellant. Even, assuming arguendo that the prosecution committed an error on who actually seized the marijuana from appellant, such an error or discrepancy refers only to a minor matter and, as such, neither impairs the essential integrity of the prosecution evidence as a whole nor reflects on the witnesses' honesty. 27 Besides, there was clearly a mere imprecision of language since Pejoro obviously meant that he did not take part in the physical taking of the drug from the person of appellant, but he participated in the legal seizure or confiscation thereof as the investigator of their unit. Next, appellant adduces the argument that the twenty-peso bills allegedly confiscated from him were not powdered for finger-printing purposes contrary to the normal procedure in buy-bust operations. 28 This omission has been satisfactorily explained by Pfc. Virgilio Villaruz in his testimony, as follows:

Q: Is it the standard operating procedure of your unit that in conducting such operation you do not anymore provide a powder (sic) on the object so as to determine the thumbmark or identity of the persons taking hold of the object? A: We were not able to put powder on these denominations because we are lacking that kind of material in our office since that item can be purchased only in Manila and only few are producing that, sir. xxx xxx xxx Q: Is it not a fact that your office is within (the) P.C. Crime Laboratory, CIS, as well as the office of NICA?
A: Our office is only adjacent to those offices but we cannot make a request for that powder 29 because they, themselves, are using that in their own work, sir.

The foregoing explanation aside, we agree that the failure to mark the money bills used for entrapment purposes can under no mode of rationalization be fatal to the case of the prosecution because the Dangerous Drugs Act punishes "any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions." 30 The dusting of said bills with phosphorescent powder is only an evidentiary technique for identification purposes, which identification can be supplied by other species of evidence. Again, appellant contends that there was neither a relative of his nor any barangay official or civilian to witness the seizure. He decries the lack of pictures taken before, during and after his arrest. Moreover, he was not reported to or booked in the custody of any barangay official or police authorities. 31 These are absurd disputations. No law or jurisprudence requires that an arrest or seizure, to be valid, be witnessed by a relative, a barangay official or any other civilian, or be accompanied by the taking of pictures. On the contrary, the police enforcers having caught appellant in flagrante delicto, they were not only authorized but were also under the obligation to effect a warrantless arrest and seizure. Likewise, contrary to appellant's contention, there was an arrest report prepared by the police in connection with his apprehension. Said Booking Sheet and Arrest Report 32 states, inter alia, that "suspect was arrested for selling two tea bags of suspected marijuana dried leaves and the confiscation of another two tea bags of suspected marijuana dried leaves." Below these remarks was affixed appellant's signature. In the same manner, the receipt for the seized property, hereinbefore mentioned, was signed by appellant wherein he acknowledged the confiscation of the marked bills from him. 33 However, we find and hereby declare the aforementioned exhibits inadmissible in evidence. Appellant's conformance to these documents are declarations against interest and tacit admissions of the crime charged. They were obtained in violation of his right as a person under custodial investigation for the commission of an offense, there being nothing in the records to show that he was assisted by counsel. 34 Although appellant manifested during the custodial investigation that he waived his right to counsel, the waiver was not made in writing and in the presence of counsel, 35 hence whatever incriminatory admission or confession may be extracted from him, either verbally or in writing, is not allowable in evidence. 36 Besides, the arrest report is self-serving and hearsay and can easily be concocted to implicate a suspect. Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be extricated from his

predicament since his criminal participation in the illegal sale of marijuana has been sufficiently proven. The commission of the offense of illegal sale of prohibited drugs requires merely the consummation of the selling transaction 37 which happens the moment the buyer receives the drug from the seller. 38 In the present case, and in light of the preceding discussion, this sale has been ascertained beyond any peradventure of doubt. Appellant then asseverates that it is improbable that he would sell marijuana to a total stranger. 39 We take this opportunity to once again reiterate the doctrinal rule that drug-pushing, when done on a small scale as in this case, belongs to that class of crimes that may be committed at any time and in any place. 40 It is not contrary to human experience for a drug pusher to sell to a total stranger, 41 for what matters is not an existing familiarity between the buyer and seller but their agreement and the acts constituting the sale and delivery of the marijuana leaves. 42 While there may be instances where such sale could be improbable, taking into consideration the diverse circumstances of person, time and place, as well as the incredibility of how the accused supposedly acted on that occasion, we can safely say that those exceptional particulars are not present in this case. Finally, appellant contends that he was subjected to physical and mental torture by the arresting officers which caused him to escape from Camp Olivas the night he was placed under custody. 43 This he asserts to support his explanation as to how his signatures on the documents earlier discussed were supposedly obtained by force and coercion. The doctrine is now too well embedded in our jurisprudence that for evidence to be believed, it must not only proceed from the mouth of a credible witness but must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. 44 The evidence on record is bereft of any support for appellant's allegation of maltreatment. Two doctors, one for the prosecution 45 and the other for the defense, 46 testified on the absence of any tell-tale sign or indication of bodily injury, abrasions or contusions on the person of appellant. What is evident is that the cause of his abdominal pain was his peptic ulcer from which he had been suffering even before his arrest. 47 His own brother even corroborated that fact, saying that appellant has had a history of bleeding peptic ulcer. 48 Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no reason whatsoever for not divulging the same to his brother who went to see him at the camp after his arrest and during his detention there. 49 Significantly, he also did not even report the matter to the authorities nor file appropriate charges against the alleged malefactors despite the opportunity to do so 50 and with the legal services of counsel being available to him. Such omissions funnel down to the conclusion that appellant's story is a pure fabrication. These, and the events earlier discussed, soundly refute his allegations that his arrest was baseless and premeditated for the NARCOM agents were determined to arrest him at all costs. 51 Premeditated or not, appellant's arrest was only the culmination, the final act needed for his isolation from society and it was providential that it came about after he was caught in the very act of illicit trade of prohibited drugs. Accordingly, this opinion could have concluded on a note of affirmance of the judgment of the trial court. However, Republic Act No. 6425, as amended, was further amended by Republic Act No. 7659 effective December 31, 1993, 52 which supervenience necessarily affects the original disposition of this case and entails additional questions of law which we shall now resolve. II The provisions of the aforesaid amendatory law, pertinent to the adjudication of the case at bar, are to this effect: Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, are hereby amended to read as follows:

xxx xxx xxx Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. xxx xxx xxx Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, is hereby amended to read as follows: Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instrument of the Crime. The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities: xxx xxx xxx 5. 750 grams or more of indian hemp or marijuana xxx xxx xxx Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. 1. Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana with a total weight of only 3.8 grams and, in fact, stands to be convicted for the sale of only two of those tea bags, the initial inquiry would be whether the patently favorable provisions of Republic Act No. 7659 should be given retroactive effect to entitle him to the lesser penalty provided thereunder, pursuant to Article 22 of the Revised Penal Code. Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory and in substitution of the previous Articles 190 to 194 of the Revised Penal Code, 53 it has long been settled that by force of Article 10 of said Code the beneficient provisions of Article 22 thereof applies to and shall be given retrospective effect to crimes punished by special laws. 54 The execution in said article would not apply to those convicted of drug offenses since habitual delinquency refers to convictions for the third time or more of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification. 55 Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then been involved nor invoked in the present case, a corollary question would be whether this court, at the present stage, can sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on appellant. That issue has likewise been resolved in the cited case of People vs. Moran, et al., ante., thus: . . . . The plain precept contained in article 22 of the Penal Code, declaring the retroactivity of

penal laws in so far as they are favorable to persons accused of a felony, would be useless and nugatory if the courts of justice were not under obligation to fulfill such duty, irrespective of whether or not the accused has applied for it, just as would also all provisions relating to the prescription of the crime and the penalty. If the judgment which could be affected and modified by the reduced penalties provided in Republic Act No. 7659 has already become final and executory or the accused is serving sentence thereunder, then practice, procedure and pragmatic considerations would warrant and necessitate the matter being brought to the judicial authorities for relief under a writ of habeas corpus. 56 2. Probably through oversight, an error on the matter of imposable penalties appears to have been committed in the drafting of the aforesaid law; thereby calling for and necessitating judicial reconciliation and craftsmanship. As applied to the present case, Section 4 of Republic Act No. 6425, as now further amended, imposes the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00 upon any person who shall unlawfully sell, administer, deliver, give away, distribute, dispatch in transit or transport any prohibited drug. That penalty, according to the amendment to Section 20 of the law, shall be applied if what is involved is 750 grams or more of indian hemp or marijuana; otherwise, if the quantity involved is less, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. In other words, there is here an overlapping error in the provisions on the penalty of reclusion perpetua by reason of its dual imposition, that is, as the maximum of the penalty where the marijuana is less than 750 grams, and also as the minimum of the penalty where the marijuana involved is 750 grams or more. The same error has been committed with respect to the other prohibited and regulated drugs provided in said Section 20. To harmonize such conflicting provisions in order to give effect to the whole law, 57 we hereby hold that the penalty to be imposed where the quantity of the drugs involved is less than the quantities stated in the first paragraph shall range from prision correccional to reclusion temporal, and not reclusion perpetua. This is also concordant with the fundamental rule in criminal law that all doubts should be construed in a manner favorable to the accused. 3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence covered by the imposable range of penalties under the second paragraph of Section 20, as now modified, the law provides that the penalty shall be taken from said range "depending upon the quantity" of the drug involved in the case. The penalty in said second paragraph constitutes a complex one composed of three distinct penalties, that is, prision correccional,prision mayor, and reclusion temporal. In such a situation, the Code provides that each one shall form a period, with the lightest of them being the minimum, the next as the medium, and the most severe as the maximum period. 58 Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating circumstances determine which period of such complex penalty shall be imposed on the accused. The peculiarity of the second paragraph of Section 20, however, is its specific mandate, above quoted, that the penalty shall instead depend upon the quantity of the drug subject of the criminal transaction. 59 Accordingly, by way of exception to Article 77 of the Code and to subserve the purpose of Section 20 of Republic Act No. 7659, each of the aforesaid component penalties shall be considered as a principal imposable penalty depending on the quantity of the drug involved. Thereby, the modifying circumstances will not altogether be disregarded. Since each component penalty of the total complex penalty will have to be imposed separately as determined by the quantity of the drug involved, then the modifying circumstances can be used to fix the proper period of that component penalty, as shall hereafter be explained. It would, therefore, be in line with the provisions of Section 20 in the context of our aforesaid disposition thereon that,

unless there are compelling reasons for a deviation, the quantities of the drugs enumerated in its second paragraph be divided into three, with the resulting quotient, and double or treble the same, to be respectively the bases for allocating the penalty proportionately among the three aforesaid periods according to the severity thereof. Thus, if the marijuana involved is below 250 grams, the penalty to be imposed shall be prision correccional; from 250 to 499 grams, prision mayor; and 500 to 749 grams, reclusion temporal. Parenthetically, fine is imposed as a conjunctive penalty only if the penalty is reclusion perpetua to death. 60 Now, considering the minimal quantity of the marijuana subject of the case at bar, the penalty of prision correccional is consequently indicated but, again, another preliminary and cognate issue has first to be resolved. 4. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a divisible penalty, it consists of three periods as provided in the text of and illustrated in the table provided by Article 76 of the Code. The question is whether or not in determining the penalty to be imposed, which is here to be taken from the penalty of prision correccional, the presence or absence of mitigating, aggravating or other circumstances modifying criminal liability should be taken into account. We are not unaware of cases in the past wherein it was held that, in imposing the penalty for offenses under special laws, the rules on mitigating or aggravating circumstances under the Revised Penal Code cannot and should not be applied. A review of such doctrines as applied in said cases, however, reveals that the reason therefor was because the special laws involved provided their own specific penalties for the offenses punished thereunder, and which penalties were not taken from or with reference to those in the Revised Penal Code. Since the penalties then provided by the special laws concerned did not provide for the minimum, medium or maximum periods, it would consequently be impossible to consider the aforestated modifying circumstances whose main function is to determine the period of the penalty in accordance with the rules in Article 64 of the Code. This is also the rationale for the holding in previous cases that the provisions of the Code on the graduation of penalties by degrees could not be given supplementary application to special laws, since the penalties in the latter were not components of or contemplated in the scale of penalties provided by Article 71 of the former. The suppletory effect of the Revised Penal Code to special laws, as provided in Article 10 of the former, cannot be invoked where there is a legal or physical impossibility of, or a prohibition in the special law against, such supplementary application. The situation, however, is different where although the offense is defined in and ostensibly punished under a special law, the penalty therefor is actually taken from the Revised Penal Code in its technical nomenclature and, necessarily, with its duration, correlation and legal effects under the system of penalties native to said Code. When, as in this case, the law involved speaks of prision correccional, in its technical sense under the Code, it would consequently be both illogical and absurd to posit otherwise. More on this later. For the nonce, we hold that in the instant case the imposable penalty under Republic Act No. 6425, as amended by Republic Act No. 7659, is prision correccional, to be taken from the medium period thereof pursuant to Article 64 of the Revised Penal Code, there being no attendant mitigating or aggravating circumstance. 5. At this juncture, a clarificatory discussion of the developmental changes in the penalties imposed for offenses under special laws would be necessary. Originally, those special laws, just as was the conventional practice in the United States but differently from the penalties provided in our Revised Penal Code and its Spanish origins, provided for one specific penalty or a range of penalties with definitive durations, such as imprisonment for one year or for one to five years but without division into

periods or any technical statutory cognomen. This is the special law contemplated in and referred to at the time laws like the Indeterminate Sentence Law 61 were passed during the American regime. Subsequently, a different pattern emerged whereby a special law would direct that an offense thereunder shall be punished under the Revised Penal Code and in the same manner provided therein. Inceptively, for instance, Commonwealth Act No. 303 62 penalizing non-payment of salaries and wages with the periodicity prescribed therein, provided:
Sec. 4. Failure of the employer to pay his employee or laborer as required by section one of this Act, shallprima facie be considered a fraud committed by such employer against his employee or laborer by means of false pretenses similar to those mentioned in article three hundred and fifteen, paragraph four, sub-paragraph two (a) of the Revised Penal Code and shall be punished in the same manner as therein provided. 63

Thereafter, special laws were enacted where the offenses defined therein were specifically punished by the penalties as technically named and understood in the Revised Penal Code. These are exemplified by Republic Act No. 1700 (Anti-Subversion Act) where the penalties ranged from arresto mayor to death; 64 Presidential Decree No. 1612 (Anti-Fencing Decree) where the penalties run from arresto mayor toprision mayor; and Presidential Decree No. 1866 (illegal possession and other prohibited acts involving firearms), the penalties wherefor may involve prision mayor, reclusion temporal, reclusion perpetua or death. Another variant worth mentioning is Republic Act No. 6539 (Anti-Carnapping Act of 1972) where the penalty is imprisonment for not less than 14 years and 8 months and not more than 17 years and 4 months, when committed without violence or intimidation of persons or force upon things; not less than 17 years and 4 months and not more than 30 years, when committed with violence against or intimidation of any person, or force upon things; and life imprisonment to death, when the owner, driver or occupant of the carnapped vehicle is killed. With respect to the first example, where the penalties under the special law are different from and are without reference or relation to those under the Revised Penal Code, there can be no suppletory effect of the rules for the application of penalties under said Code or by other relevant statutory provisions based on or applicable only to said rules for felonies under the Code. In this type of special law, the legislative intendment is clear. The same exclusionary rule would apply to the last given example, Republic Act No. 6539. While it is true that the penalty of 14 years and 8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period of reclusion temporal, such technical term under the Revised Penal Code is not given to that penalty for carnapping. Besides, the other penalties for carnapping attended by the qualifying circumstances stated in the law do not correspond to those in the Code. The rules on penalties in the Code, therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of the same formulation. On the other hand, the rules for the application of penalties and the correlative effects thereof under the Revised Penal Code, as well as other statutory enactments founded upon and applicable to such provisions of the Code, have suppletory effect to the penalties under the former Republic Act No. 1700 and those now provided under Presidential Decrees Nos. 1612 and 1866. While these are special laws, the fact that the penalties for offenses thereunder are those provided for in the Revised Penal code lucidly reveals the statutory intent to give the related provisions on penalties for felonies under the Code the corresponding application to said special laws, in the absence of any express or implicit proscription in these special laws. To hold otherwise would be to sanction an indefensible judicial truncation of an integrated system of penalties under the Code and its allied

legislation, which could never have been the intendment of Congress. In People vs. Macatanda, 65 a prosecution under a special law (Presidential Decree No. 533, otherwise known as the Anti-Cattle Rustling Law of 1974), it was contended by the prosecution that Article 64, paragraph 5, of the Revised Penal Code should not apply to said special law. We said therein that We do not agree with the Solicitor General that P.D. 533 is a special law entirely distinct from and unrelated to the Revised Penal Code. From the nature of the penalty imposed which is in terms of the classification and duration of penalties as prescribed in the Revised Penal Code, which is not for penalties as are ordinarily imposed in special laws, the intent seems clear that P.D. 533 shall be deemed as an amendment of the Revised Penal Code, with respect to the offense of theft of large cattle (Art. 310) or otherwise to be subject to applicable provisions thereof such as Article 104 of the Revised Penal Code . . . . Article 64 of the same Code should, likewise, be applicable, . . . . (Emphasis supplied.) More particularly with regard to the suppletory effect of the rules on penalties in the Revised Penal Code to Republic Act No. 6425, in this case involving Article 63(2) of the Code, we have this more recent pronouncement: . . . Pointing out that as provided in Article 10 the provisions of the Revised Penal Code shall be "supplementary" to special laws, this Court held that where the special law expressly grants to the court discretion in applying the penalty prescribed for the offense, there is no room for the application of the provisions of the Code . . . .
The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no explicit grant of discretion to the Court in the application of the penalty prescribed by the law. In such case, the court must be guided by the rules prescribed by the Revised Penal Code concerning the application of penalties which distill the "deep legal 66 thought and centuries of experience in the administration of criminal laws." (Emphasis ours.)

Under the aforestated considerations, in the case of the Dangerous Drugs Act as now amended by Republic Act No. 7659 by the incorporation and prescription therein of the technical penalties defined in and constituting integral parts of the three scales of penalties in the Code, 67 with much more reason should the provisions of said Code on the appreciation and effects of all attendant modifying circumstances apply in fixing the penalty. Likewise, the different kinds or classifications of penalties and the rules for graduating such penalties by degrees should have supplementary effect on Republic Act No. 6425, except if they would result in absurdities as will now be explained. While not squarely in issue in this case, but because this aspect is involved in the discussion on the role of modifying circumstances, we have perforce to lay down the caveat that mitigating circumstances should be considered and applied only if they affect the periods and the degrees of the penalties within rational limits. Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree of the penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of penalties in Article 71, are the stage of execution of the crime and the nature of the participation of the accused. However, under paragraph 5 of Article 64, when there are two or more ordinary mitigating circumstances and no aggravating circumstance, the penalty shall be reduced by one degree. Also, the presence of privileged mitigating circumstances, as provided in Articles 67 and 68, can reduce the penalty by one or two degrees, or even more. These provisions of Articles 64(5), 67 and 68 should not apply in toto in the determination of the proper penalty under the aforestated second paragraph of section 20 of Republic Act No. 6425, to avoid anomalous results which could not have been contemplated by the legislature.

Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not specially provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy therewith. Hence, when the penalty prescribed for the crime consists of one or two penalties to be imposed in their full extent, the penalty next lower in degree shall likewise consist of as many penalties which follow the former in the scale in Article 71. If this rule were to be applied, and since the complex penalty in this case consists of three discrete penalties in their full extent, that is, prision correccional, prision mayor and reclusion temporal, then one degree lower would be arresto menor,destierro and arresto mayor. There could, however, be no further reduction by still one or two degrees, which must each likewise consist of three penalties, since only the penalties of fine and public censure remain in the scale. The Court rules, therefore, that while modifying circumstances may be appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the three component penalties in the second paragraph of Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty should in any event be prision correccional in order not to depreciate the seriousness of drug offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to be adopted so that the law may continue to have efficacy rather than fail. A perfect judicial solution cannot be forged from an imperfect law, which impasse should now be the concern of and is accordingly addressed to Congress. 6. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now before us. Apparently it does, since drug offenses are not included in nor has appellant committed any act which would put him within the exceptions to said law and the penalty to be imposed does not involve reclusion perpetua or death, provided, of course, that the penalty as ultimately resolved will exceed one year of imprisonment. 68 The more important aspect, however, is how the indeterminate sentence shall be ascertained. It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the Revised Penal Code, states that "if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." We hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty imposed was not taken from and is without reference to the Revised Penal Code, as discussed in the preceding illustrations, such that it may be said that the "offense is punished" under that law. There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses under special laws was necessary because of the nature of the former type of penalties under said laws which were not included or contemplated in the scale of penalties in Article 71 of the Code, hence there could be no minimum "within the range of the penalty next lower to that prescribed by the Code for the offense," as is the rule for felonies therein. In the illustrative examples of penalties in special laws hereinbefore provided, this rule applied, and would still apply, only to the first and last examples. Furthermore, considering the vintage of Act No. 4103 as earlier noted, this holding is but an application and is justified under the rule of contemporanea expositio. 69 We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms, hence with their technical signification and effects. In fact, for purposes of determining the maximum of said sentence, we have applied the provisions of the amended Section 20 of said law to arrive at prision correccional and Article 64 of the Code to impose the same in the medium period. Such offense, although provided for in a special law, is now in effect punished by and under the Revised Penal Code. Correlatively, to determine the minimum, we must apply the first part of the aforesaid Section 1 which directs that "in imposing a prison sentence for an offense punished by the

Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense." (Emphasis ours.) A divergent pedantic application would not only be out of context but also an admission of the hornbook maxim that qui haeret in litera haeret in cortice. Fortunately, this Court has never gone only skin-deep in its construction of Act. No. 4103 by a mere literal appreciation of its provisions. Thus, with regard to the phrase in Section 2 thereof excepting from its coverage "persons convicted of offenses punished with death penalty or life imprisonment," we have held that what is considered is the penalty actually imposed and not the penalty imposable under the law, 70 and that reclusion perpetua is likewise embraced therein although what the law states is "life imprisonment". What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence of the principles of literal interpretation, which have been rationalized by comparative decisions of this Court; of historical interpretation, as explicated by the antecedents of the law and related contemporaneous legislation; and of structural interpretation, considering the interrelation of the penalties in the Code as supplemented by Act No. 4103 in an integrated scheme of penalties, it follows that the minimum of the indeterminate sentence in this case shall be the penalty next lower to that prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity in Section 1 of Act No. 4103 in such a way as to harmonize laws with laws, which is the best mode of interpretation. 71 The indeterminate Sentence Law is a legal and social measure of compassion, and should be liberally interpreted in favor of the accused. 72 The "minimum" sentence is merely a period at which, and not before, as a matter of grace and not of right, the prisoner may merely be allowed to serve the balance of his sentence outside of his confinement. 73 It does not constitute the totality of the penalty since thereafter he still has to continue serving the rest of his sentence under set conditions. That minimum is only the period when the convict's eligibility for parole may be considered. In fact, his release on parole may readily be denied if he is found unworthy thereof, or his reincarceration may be ordered on legal grounds, even if he has served the minimum sentence. It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the benefit of a minimum sentence within the range of arresto mayor, the penalty next lower to prision correccional which is the maximum range we have fixed through the application of Articles 61 and 71 of the Revised Penal Code. For, with fealty to the law, the court may set the minimum sentence at 6 months of arresto mayor, instead of 6 months and 1 day of prision correccional. The difference, which could thereby even involve only one day, is hardly worth the creation of an overrated tempest in the judicial teapot. ACCORDINGLY, under all the foregoing premises, the judgment of conviction rendered by the court a quo against accused-appellant Martin Simon y Sunga is AFFIRMED, but with the MODIFICATION that he should be, as he hereby is, sentenced to serve an indeterminate penalty of six (6) months of arresto mayor, as the minimum, to six (6) years of prision correccional, as the maximum thereof. SO ORDERED. Narvasa, C.J., Cruz, Padilla, Bidin, Romero, Melo, Puno, Vitug, Kapunan and Mendoza, JJ., concur. Bellosillo, J., is on leave.

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-40778 January 26, 1989 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARCILLO MANLOLO, accused-appellant, ROLLO GARCIA, accused, The Solicitor General for plaintiff-appellee. Montesa, Manikan & Associates for accused-appellant.

PARAS, J.: This is an appeal by defendant-appellant Arcillo Manlolo from the judgment of the Court of First Instance, Branch XXX (Pasay City) (now known as the Regional Trial Court [RTC]) in Criminal Case No. 990-P, convicting the said defendant-appellant and one of his co-accused, Romulo Garcia, of the crime of homicide with two (2) aggravating circumstances of nighttime and band, sentencing them to suffer the penalty of reclusion perpetua, and ordering them to pay the heirs of the deceased Cipriano Manuel the sum of P12,000.00 jointly and severally. The information alleging conspiracy, charged defendant-appellant Arcillo Manlolo, Romulo Garcia and Alfonso Militante with the crime of homicide allegedly committed on May 7, 1972 with Cipriano Manuel as the victim.

Trial was conducted by Judge Santiago Ranada who, however, died before judgment could be rendered in the case, Judge Jose C. Campos, Jr., who substituted for Judge Ranada, decided the case on the basis solely on what appeared on the record. One of the three accused, Alfonso Militante, was at-large and was never brought to trial, which therefore proceeded against defendant-appellant Manlolo and accused Garcia only. On December 12, 1974, appellant Arcillo Manlolo filed a notice of appeal (p. 256, Record). On December 19, 1974, Romulo Garcia filed a "Motion to Reconsider, Set Aside Decision, and/or Reopen the Case" on the following grounds: (a) That the evidence is insufficient to warrant the conviction of the accused; (b) That circumstances exist that necessitate clarification by witness so that the interest of justice may be subserved (p. 258, Rec.) The Motion to Reconsider, Set Aside Decision and/or to Reopen the case was granted by the trial court on December 20, 1974, in an order which reads as follows: Finding the reasons for the motion to set aside the decision and reopen the case, and it appearing that the case was tried by the former presiding Judge of Branch XXVII and raffled to this court rendering the decision and finding merit in the allegation that the testimonies of the two prosecution witnesses are conflicting, the motion is well taken. Wherefore, the decision dated November 13, 1974 is withdrawn and set aside and the case is reopened for the purpose of re-taking of the testimony of witness Severino Perito and Felicito Mediona. It is understood that their former testimonies shall not in any case be taken into account during the direct or cross- examination of said witnesses at the hearing for retaking their testimonies. Let the date of hearing be set. SO ORDERED. (pp. 34, Plaintiff-Appellee's Brief) Because of this Order for a new trial for Romulo Garcia, the instant case concerns only the appeal of Arcillo Manlolo on the following issues. 1. Has conspiracy been established under the evidence of record? 2. Is defendant-appellant Manlolo criminally liable for the fatal stabbing of Cipriano Manuel? 3. May the aggravating circumstance of nighttime be appreciated although it was not shown that it was purposely sought to secure advantages? 4. In the absence of clear evidence that more than three armed men acted together, may the aggravating circumstance of band be appreciated?

5. Would it be correct to impose the penalty of reclusion perpetua for the crime of homicide simply because of the concurrence of two aggravating circumstances? 6. May aggravating circumstances provide at the trial but not alleged in the information be considered to qualify the killing to murder? 7. Should the Indeterminate Sentence Law be applied where the imposable penalty isreclusion temporal? The trial court found that: In the evening of May 7, 1972, Severino Perito, Felicito Mediona and Cipriano Manuel went to Villaruel Street, Pasay City, on the occasion of the local community fiesta as quests of Baltazar Manuel, a cousin of Cipriano. At about 11:30 in the evening of the same date when the three were on their way home, upon reaching the corner of Villaruel and Harrison Streets, someone threw a big rock at the group. The stone hit Perito on the head and as his companions came to assist him, a group of five persons coming from behind the police outpost rushed at the trio. One of these, the accused Romulo Garcia, stabbed Manuel hitting him on the chest, while the others started throwing rocks at the trio. At the same time, another person stabbed Perito and hit him on the right thigh. Upon seeing Manuel fall down, Perito and Mediona fled and ran towards the church to get a vehicle. When they were about to ride a jeep, a mobile unit of the Pasay City Police Department arrived. Perito and Mediona immediately reported to the policemen and the mobile unit proceeded to the scene of the crime and apprehended some of the accused. In the meantime, Perito and Mediona brought the wounded Manuel at the Philippine General Hospital where he was operated on and treated. Upon his release from the operating room, Manuel was given by the attending physician a 50-50 chance to live. In spite of the medical assistance given at the PGH, Manuel died the next day. On May 8, at about 6:45 in the morning, Sgt. M. San Juan, an investigating officer at the Pasay City Police Department, took down the statement of Severino Perito (Exh. 1-Manlolo). Earlier, at about 5:30 in the morning, same investigator took down the statement of Felicito Mediona (Exh. 2 Manlolo). The Necropsy Report No. N-72-885 issued by Dr. Orlando V. Salvador, Medico-Legal Officer, NBI, who took an autopsy on the body of the deceased Cipriano Manuel, stated as cause of death: shock secondary to stab wound of the chest. (pp. 98100. Rollo) Both defendant-appellant Manlolo and accused Garcia did not deny their presence at the scene of the crime, but the two, who did not deny being with the group that assaulted the victim, denied having stabbed Manuel. This is a case wherein the two (2) defendants were accusing each other as the perpetrator of the crime and pointing to each other as the person who stabbed the deceased. Appellant denies conspiracy. According to appellant simultaneous action does not of itself demonstrate the concurrence of wills nor the unity of action and purpose which are the basis of the responsibility of two or more individuals and it is not enough that the attack be joint and simultaneous, it is necessary that the assailants be animated by one and the same purpose. Let Us now examine the facts to determine whether or not the accused or assailants were animated by one and the same purpose. It has been proved during the trial that all the accused were together as a group near

the police outpost at the corner of Villaruel and Harrison Streets, that one of them threw stones at the trio composed of Perito, Mediona and Manuel as they were walking along the street; that one of the stones thrown by the group of the accused hit Perito on the head; that when Manuel and Mediona approached Perito to assist him, the group rushed at the trio, with Garcia and Manlolo armed with knives; that at the same time that Garcia and Manlolo were assaulting Manuel and his companions, the others were throwing rocks and stones at their victims. The evidence established that appellant was one of the five persons who simultaneously rushed and surrounded the victim and his companions. Appellant was one of those who stabbed the victim. He and his group followed the victim and his companions when they retreated, and they fled together from the scene of the crime after pursuing the victims. Where the accused cooperated with the other co-accused in bringing about the death of the victim and the evidence showed that by their very acts during and after the commission of the crime, they were acting in concert, they are guilty of conspiracy. When the accused by their acts aimed at the same object, one performing one part and another performing another part so as to complete it, with a view to the attainment of the same object, and their acts, though apparently independent were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments, the court will be justified in concluding that said defendants were engaged in conspiracy (People vs. Zea 130 SCRA 77), wherein the act of one is the act of all. (People vs. Cortez, 57 SCRA 308, 318). While the lower court did not state in its decision who stabbed the victim, the Court declared that "it had found that the two accused were participants in the assault and they were with the group that assaulted the victim." Both accused did not deny their presence at the scene of the crime. Neither did they deny having been with the group that assaulted the victims. Furthermore, the testimonies of the prosecution eyewitnesses, and Severino Espiritu (pp. 7 and 19, tsn., February 2, 1973), Felicito Mediona (pp. 18 and 43, tsn., February 21 1973) established that appellant stabbed the victim. The most damaging evidence was the testimony of Matilde Dalida, a defense witness, who unerringly pointed to the appellant as the one who stabbed the victim on the chest (pp. 13-14, tsn., February 27, 1973). Such testimony was corroborated by the testified of the other accused, Romulo Garcia, who also testimony fled that it was the appellant who stabbed the victim (pp. 19-20, tsn., August 20, 1973). We now come to appellant's next assignment of error. While We fully concur that the aggravating circumstance of nighttime is not present, We however find that the aggravating circumstances of band and abuse of superior strength attended the commission of the crime. It has not been shown that accused or his companions purposely sought nighttime to better accomplish their purpose. On the other hand, it was shown by the evidence that more than five (pp. 18-19, tsn., February 22, 1973) or about ten persons (pp. 11- 12, tsn., February 21, 1973) attacked the victim and his companions by stabbing them (pp. 11, 37, and 44, tsn., February 2, 1973; pp. 18-24, tsn., February 21, 1973). Noteworthy is the fact that previous to this, the group of the accused threw stones at the victim and his companions. Apropos to this, We held in the case of People vs. Bautista (28 SCRA 184) that there is an intention to cause death if the accused throws a stone at the victims, thus including stone under the term arms in the phrase "more than 3 armed malefactors acted together". The evidence also shows that after Cipriano Manuel was stabbed, he fell. Severino Perito and Mediona then "rushed" Manuel away from the scene but the appellant and his companions followed the victim and his group. In following the victim, some of the companions of the appellant continued throwing stones at the victim and his companions (pp. 28-29, tsn., February 21, 1973; p. 39, tsn., February 21, 1973). Being superior in number and armed with knives and stones, appellant and his companions took advantage of their collective strength to overpower their relatively weaker victims who were not armed. It is therefore evident that the aggravating circumstances of band and abuse of superior strength were present in the commission

of the crime. In another assignment of error, appellant also claims that "the Court ... erred in imposing upon defendantappellant, Manlolo the penalty of Reclusion Perpetua in the crime of Homicide and in not applying the Indeterminate Sentence Law.' We find merit in his contention. Whatever may be the number and nature of the aggravating circumstances, the courts shall not impose a greater penalty than that prescribed by law in its maximum period. (Art. 64 par. 6 Revised Penal Code). WHEREFORE, We find accused-appellant Arcillo Manlolo GUILTY. For the crime of homicide, the Revised Penal Code provides for the penalty of reclusion temporal (Art. 249, Revised Penal Code), considering however the presence of two aggravating circumstances, and considering further the Indeterminate Sentence Law, We hereby imposed an indeterminate sentence of 8 years and 1 day of prision mayor as minimum to 17 years, 4 months and 1 day of reclusion temporal as maximum, and to indemnify the heirs of the victim the sum of P30,000.00 conformably with established precedents. SO ORDERED. Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.

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