G. R. No. 160188 June 21, 2007 ARISTOTEL VALENZUELA y NATIVIDAD VS. PEOPLE OF T E P ILIPPINES !n" ON.

#OURT OF APPEALS, DECISION TINGA, J.: This case aims for prime space in the firmament of our criminal law jurisprudence !etitioner effecti"el# concedes ha"in$ performed the felonious acts imputed a$ainst him, %ut instead insists that as a result, he should %e adjud$ed $uilt# of frustrated theft onl#, not the felon# in its consummated sta$e of which he was con"icted The proposition rests on a common theor# e&pounded in two well'(nown decisions)*+ rendered decades a$o %# the Court of Appeals, upholdin$ the e&istence of frustrated theft of which the accused in %oth cases were found $uilt# ,owe"er, the rationale %ehind the rulin$s has ne"er %een affirmed %# this Court As far as can %e told,)-+ the last time this Court e&tensi"el# considered whether an accused was $uilt# of frustrated or consummated theft was in *.*/, in People v. Adiao )0+ A more cursor# treatment of the 1uestion was followed in *.-., in People v. Sobrevilla,)2+ and in *./2, in Empelis v. IAC )3+ This petition now $i"es occasion for us to finall# and full# measure if or how frustrated theft is suscepti%le to commission under the 4e"ised !enal Code I. The %asic facts are no lon$er disputed %efore us The case stems from an Information)5+ char$in$ petitioner Aristotel 6alen7uela 8petitioner9 and :o"# Calderon 8Calderon9 with the crime of theft On *. ;a# *..2, at around 2:0< p m , petitioner and Calderon were si$hted outside the Super Sale Clu%, a supermar(et within the Shoe;art 8S;9 comple& alon$ North EDSA, %# =oren7o =a$o 8=a$o9, a securit# $uard who was then mannin$ his post at the open par(in$ area of the supermar(et =a$o saw petitioner, who was wearin$ an identification card with the mar( >4ecei"in$ Dispatchin$ ?nit 84D?9,@ haulin$ a push cart with cases of deter$ent of the well'(nown >Tide@ %rand !etitioner unloaded these cases in an open par(in$ space, where Calderon was waitin$ !etitioner then returned inside the supermar(et, and after fi"e 839 minutes, emer$ed with more cartons of Tide Ultramatic and a$ain unloaded these %o&es to the same area in the open par(in$ space )A+ Thereafter, petitioner left the par(in$ area and haled a ta&i ,e %oarded the ca% and directed it towards the par(in$ space where Calderon was waitin$ Calderon loaded the cartons of Tide Ultramatic inside the ta&i, then %oarded the "ehicle All these acts were e#ed %# =a$o, who proceeded to stop the ta&i as it was lea"in$ the open par(in$ area Bhen =a$o as(ed petitioner for a receipt of the merchandise, petitioner and Calderon reacted %# fleein$ on foot, %ut =a$o fired a warnin$ shot to alert his fellow securit# $uards of the incident !etitioner and Calderon were apprehended at the scene, and the stolen merchandise reco"ered )/+ The filched items sei7ed from the duo were four 829 cases of Tide Ultramatic, one 8*9 case of Ultra -3 $rams, and three 809 additional cases of deter$ent, the $oods with an a$$re$ate "alue of !*-,<.< << ).+ !etitioner and Calderon were first %rou$ht to the S; securit# office %efore the# were transferred on the same da# to the Caler Station II of the !hilippine National !olice, Due7on Cit#, for in"esti$ation It appears from the police in"esti$ation records that apart from

petitioner and Calderon, four 829 other persons were apprehended %# the securit# $uards at the scene and deli"ered to police custod# at the Caler !N! Station in connection with the incident ,owe"er, after the matter was referred to the Office of the Due7on Cit# !rosecutor, onl# petitioner and Calderon were char$ed with theft %# the Assistant Cit# !rosecutor, in Informations prepared on-< ;a# *..2, the da# after the incident )*<+ After pleadin$ not $uilt# on arrai$nment, at the trial, petitioner and Calderon %oth claimed ha"in$ %een innocent %#standers within the "icinit# of the Super Sale Clu% on the afternoon of *. ;a# *..2 when the# were haled %# =a$o and his fellow securit# $uards after a commotion and %rou$ht to the Caler !N! Station Calderon alle$ed that on the afternoon of the incident, he was at the Super Sale Clu% to withdraw from his AT; account, accompanied %# his nei$h%or, =eoncio 4osulada )**+ As the 1ueue for the AT; was lon$, Calderon and 4osulada decided to %u# snac(s inside the supermar(et It was whilE the# were eatin$ that the# heard the $unshot fired %# =a$o, leadin$ them to head out of the %uildin$ to chec( what was transpirin$ As the# were outside, the# were suddenl# >$ra%%ed@ %# a securit# $uard, thus commencin$ their detention )*-+;eanwhile, petitioner testified durin$ trial that he and his cousin, a Gre$orio 6alen7uela,)*0+ had %een at the par(in$ lot, wal(in$ %eside the near%# C=ISS comple& and headed to ride a tric#cle $oin$ to !a$'asa, when the# saw the securit# $uard =a$o fire a shot The $unshot caused him and the other people at the scene to start runnin$, at which point he was apprehended %# =a$o and %rou$ht to the securit# office !etitioner claimed he was detained at the securit# office until around .:<< p m , at which time he and the others were %rou$ht to the Caler !olice Station At the station, petitioner denied ha"in$ stolen the cartons of deter$ent, %ut he was detained o"erni$ht, and e"entuall# %rou$ht to the prosecutorEs office where he was char$ed with theft )*2+ Durin$ petitionerEs cross'e&amination, he admitted that he had %een emplo#ed as a >%undler@ of G;S ;ar(etin$, >assi$ned at the supermar(et@ thou$h not at S; )*3+ In a Decision)*5+ promul$ated on * Fe%ruar# -<<<, the 4e$ional Trial Court 84TC9 of Due7on Cit#, Cranch .<, con"icted %oth petitioner and Calderon of the crime of consummated theft The# were sentenced to an indeterminate prison term of two 8-9 #ears of prision correccional as minimum to se"en 8A9 #ears of prision mayor as ma&imum )*A+ The 4TC found credi%le the testimonies of the prosecution witnesses and esta%lished the con"ictions on the positi"e identification of the accused as perpetrators of the crime Coth accused filed their respecti"e Notices of Appeal,)*/+ %ut onl# petitioner filed a %rief)*.+ with the Court of Appeals, causin$ the appellate court to deem CalderonEs appeal as a%andoned and conse1uentl# dismissed Cefore the Court of Appeals, petitioner ar$ued that he should onl# %e con"icted of frustrated theft since at the time he was apprehended, he was ne"er placed in a position to freel# dispose of the articles stolen )-<+ ,owe"er, in its Decision dated *. :une -<<0,)-*+ the Court of Appeals rejected this contention and affirmed petitionerEs con"iction )--+ ,ence the present !etition for 4e"iew,)-0+ which e&pressl# see(s that petitionerEs con"iction >%e modified to onl# of Frustrated Theft @)-2+ E"en in his appeal %efore the Court of Appeals, petitioner effecti"el# conceded %oth his felonious intent and his actual participation in the theft of se"eral cases of deter$ent with a total "alue of !*-,<.< << of which he was char$ed )-3+ As such, there is no cause for the Court to consider a factual scenario other than that presented %# the prosecution, as affirmed %# the 4TC and the Court of Appeals The onl# 1uestion to consider is whether under the $i"en facts, the theft should %e deemed as consummated or merel# frustrated

II. In ar$uin$ that he should onl# %e con"icted of frustrated theft, petitioner cites)-5+ two decisions rendered man# #ears a$o %# the Court of Appeals: People v. Dio)-A+ and People v. Flores.)-/+ Coth decisions elicit the interest of this Court, as the# modified trial court con"ictions from consummated to frustrated theft and in"ol"e a factual milieu that %ears similarit# to the present case !etitioner in"o(ed the same rulin$s in his appeal to the Court of Appeals, #et the appellate court did not e&pressl# consider the import of the rulin$s when it affirmed the con"iction It is not necessar# to fault the Court of Appeals for $i"in$ short shrift to the Dio and Flores rulin$s since the# ha"e not #et %een e&pressl# adopted as precedents %# this Court For whate"er reasons,the occasion to define or de%un( the crime of frustrated theft has not come to pass %efore us Get despite the silence on our part, Dio and Flores ha"e attained a le"el of renown reached %# "er# few other appellate court rulin$s The# are comprehensi"el# discussed in the most popular of our criminal law annotations,)-.+ and studied in criminal law classes as te&t%oo( e&amples of frustrated crimes or e"en as definiti"e of frustrated theft ;ore criticall#, the factual milieu in those cases is hardl# a(in to the fanciful scenarios that populate criminal law e&ams more than the# actuall# occur in real life Indeed, if we finall# sa# that Dio and Flores are doctrinal, such conclusion could profoundl# influence a multitude of routine theft prosecutions, includin$ commonplace shopliftin$ An# scenario that in"ol"es the thief ha"in$ to e&it with the stolen propert# throu$h a super"ised e$ress, such as a supermar(et chec(out counter or a par(in$ area pa# %ooth, ma# easil# call for the application of Dio and Flores The fact that lower courts ha"e not hesitated to la# down con"ictions for frustrated theft further "alidates that Dio and Flores and the theories offered therein on frustrated theft ha"e %orne some wei$ht in our jurisprudential s#stem The time is thus ripe for us to e&amine whether those theories are correct and should continue to influence prosecutors and jud$es in the future III. To del"e into an# e&tended anal#sis of Dio and Flores, as well as the specific issues relati"e to >frustrated theft,@ it is necessar# to first refer to the %asic rules on the three sta$es of crimes under our 4e"ised !enal Code )0<+ Article 5 defines those three sta$es, namel# the consummated, frustrated and attempted felonies A felon# is consummated >when all the elements necessar# for its e&ecution and accomplishment are present @ It is frustrated >when the offender performs all the acts of e&ecution which would produce the felon# as a conse1uence %ut which, ne"ertheless, do not produce it %# reason of causes independent of the will of the perpetrator @ Finall#, it is attempted >when the offender commences the commission of a felon# directl# %# o"ert acts, and does not perform all the acts of e&ecution which should produce the felon# %# reason of some cause or accident other than his own spontaneous desistance @ Each felon# under the 4e"ised !enal Code has a >su%jecti"e phase,@ or that portion of the acts constitutin$ the crime included %etween the act which %e$ins the commission of the crime and the last act performed %# the offender which, with prior acts, should result in the consummated crime )0*+ After that point has %een %reached, the su%jecti"e phase ends and the o%jecti"e phase %e$ins )0-+ It has %een held that if the offender ne"er passes the

su%jecti"e phase of the offense, the crime is merel# attempted )00+ On the other hand, the su%jecti"e phase is completel# passed in case of frustrated crimes, for in such instances, >)s+u%jecti"el# the crime is complete @)02+ Trul#, an eas# distinction lies %etween consummated and frustrated felonies on one hand, and attempted felonies on the other So lon$ as the offender fails to complete all the acts of e&ecution despite commencin$ the commission of a felon#, the crime is undou%tedl# in the attempted sta$e Since the specific acts of e&ecution that define each crime under the 4e"ised !enal Code are $enerall# enumerated in the code itself, the tas( of ascertainin$ whether a crime is attempted onl# would need to compare the acts actuall# performed %# the accused as a$ainst the acts that constitute the felon# under the 4e"ised !enal Code In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession that all of the acts of e&ecution ha"e %een performed %# the offender The critical distinction instead is whether the felon# itself was actuall# produced %# the acts of e&ecution The determination of whether the felon# was >produced@ after all the acts of e&ecution had %een performed hin$es on the particular statutor# definition of the felon# It is the statutor# definition that $enerall# furnishes the elements of each crime under the 4e"ised !enal Code, while the elements in turn unra"el the particular re1uisite acts of e&ecution and accompan#in$ criminal intent The lon$'standin$ =atin ma&im >actus non acit reum! nisi mens sit rea" supplies an important characteristic of a crime, that >ordinaril#, e"il intent must unite with an unlawful act for there to %e a crime,@ and accordin$l#, there can %e no crime when the criminal mind is wantin$ )03+ Accepted in this jurisdiction as material in crimes mala in se,)05+ mens rea has %een defined %efore as >a $uilt# mind, a $uilt# or wron$ful purpose or criminal intent,@)0A+ and >essential for criminal lia%ilit# @)0/+ It follows that the statutor# definition of our mala in se crimes must %e a%le to suppl# what the mens rea of the crime is, and indeed the ? S Supreme Court has comforta%l# held that >a criminal law that contains no mens rea re1uirement infrin$es on constitutionall# protected ri$hts @)0.+ The criminal statute must also pro"ide for the o"ert acts that constitute the crime For a crime to e&ist in our le$al law, it is not enou$h that mens rea %e shownH there must also %e an actus reus.)2<+ It is from the actus reus and the mens rea, as the# find e&pression in the criminal statute, that the felon# is produced As a postulate in the craftsmanship of constitutionall# sound laws, it is e&tremel# prefera%le that the lan$ua$e of the law e&pressl# pro"ide when the felon# is produced Bithout such pro"ision, disputes would ine"ita%l# ensue on the elemental 1uestion whether or not a crime was committed, there%# presa$in$ the undesira%le and le$all# du%ious set'up under which the judiciar# is assi$ned the le$islati"e role of definin$ crimes Fortunatel#, our 4e"ised !enal Code does not suffer from such infirmit# From the statutor# definition of an# felon#, a decisi"e passa$e or term is em%edded which attests when the felon# is produced %# the acts of e&ecution For e&ample, the statutor# definition of murder or homicide e&pressl# uses the phrase >shall (ill another,@ thus ma(in$ it clear that the felon# is produced %# the death of the "ictim, and con"ersel#, it is not produced if the "ictim sur"i"es Be ne&t turn to the statutor# definition of theft ?nder Article 0</ of the 4e"ised !enal Code, its elements are spelled out as follows: Art 0</ #$o are liable or t$e t.% Theft is committed %# an# person who, with intent to $ain %ut without "iolence a$ainst or intimidation of persons nor force

upon thin$s, shall ta(e personal propert# of another without the latterEs consent Theft is li(ewise committed %#: * An# person who, ha"in$ found lost propert#, shall fail to deli"er the same to the local authorities or to its ownerH - An# person who, after ha"in$ maliciousl# dama$ed the propert# of another, shall remo"e or ma(e use of the fruits or o%ject of the dama$e caused %# himH and 0 An# person who shall enter an inclosed estate or a field where trespass is for%idden or which %elon$s to another and without the consent of its owner, shall hunt or fish upon the same or shall $ather cereals, or other forest or farm products Article 0</ pro"ides for a $eneral definition of theft, and three alternati"e and hi$hl# idios#ncratic means %# which theft ma# %e committed )2*+ In the present discussion, we need to concern oursel"es onl# with the $eneral definition since it was under it that the prosecution of the accused was underta(en and sustained On the face of the definition, there is onl# one operati"e act of e&ecution %# the actor in"ol"ed in theft the ta(in$ of personal propert# of another It is also clear from the pro"ision that in order that such ta(in$ ma# %e 1ualified as theft, there must further %e present the descripti"e circumstances that the ta(in$ was with intent to $ainH without force upon thin$s or "iolence a$ainst or intimidation of personsH and it was without the consent of the owner of the propert# Indeed, we ha"e lon$ reco$ni7ed the followin$ elements of theft as pro"ided for in Article 0</ of the 4e"ised !enal Code, namel#: 8*9 that there %e ta(in$ of personal propert#H 8-9 that said propert# %elon$s to anotherH 809 that the ta(in$ %e done with intent to $ainH 829 that the ta(in$ %e done without the consent of the ownerH and 839 that the ta(in$ %e accomplished without the use of "iolence a$ainst or intimidation of persons or force upon thin$s )2-+ In his commentaries, :ud$e Gue"arra traces the histor# of the definition of theft, which under earl# 4oman law as defined %# Gaius, was so %road enou$h as to encompass >an# (ind of ph#sical handlin$ of propert# %elon$in$ to another a$ainst the will of the owner,@)20+ a definition similar to that %# !aulus that a thief >handles 8touches, mo"es9 the propert# of another @)22+ ,owe"er, with the Institutes of :ustinian, the idea had ta(en hold that more than mere ph#sical handlin$, there must further %e an intent of ac1uirin$ $ain from the o%ject, thus: >) +urtum est contrectatio rei raudulosa! lucri aciendi causa vel ipsius rei! vel etiam usus e&us possessinisve @)23+ This re1uirement of animo lucrandi, or intent to $ain, was maintained in %oth the Spanish and Filipino penal laws, e"en as it has since %een a%andoned in Great Critain )25+ In Spanish law, animo lucrandi was compounded with apoderamiento, or >unlawful ta(in$,@ to characteri7e theft :ustice 4e$alado notes that the concept of apoderamiento once had a contro"ersial interpretation and application Spanish law had alread# discounted the %elief that mere ph#sical ta(in$ was constituti"e of apoderamiento, findin$ that it had to %e coupled with >the intent to appropriate the o%ject in order to constitute apoderamientoH and to appropriate means to depri"e the lawful owner of the thin$ @)2A+ ,owe"er, a conflictin$ line of cases decided %# the Court of Appeals ruled, alternati"el#, that there must %e permanenc# in the ta(in$)2/+ or an intent to permanentl# depri"e the owner of the stolen propert#H )2.+ or that there was no need for permanenc# in the ta(in$ or in its intent, as the mere temporar# possession %# the offender or distur%ance of the proprietar# ri$hts of the owner

alread# constituted apoderamiento )3<+ ?ltimatel#, as :ustice 4e$alado notes, the Court adopted the latter thou$ht that there was no need of an intent to permanentl# depri"e the owner of his propert# to constitute an unlawful ta(in$ )3*+ So lon$ as the >descripti"e@ circumstances that 1ualif# the ta(in$ are present, includin$ animo lucrandi and apoderamiento, the completion of the operati"e act that is the ta(in$ of personal propert# of another esta%lishes, at least, that the trans$ression went %e#ond the attempted sta$e As applied to the present case, the moment petitioner o%tained ph#sical possession of the cases of deter$ent and loaded them in the pushcart, such sei7ure moti"ated %# intent to $ain, completed without need to inflict "iolence or intimidation a$ainst persons nor force upon thin$s, and accomplished without the consent of the S; Super Sales Clu%, petitioner forfeited the e&tenuatin$ %enefit a con"iction for onl# attempted theft would ha"e afforded him On the critical 1uestion of whether it was consummated or frustrated theft, we are o%li$ed to appl# Article 5 of the 4e"ised !enal Code to ascertain the answer Followin$ that pro"ision, the theft would ha"e %een frustrated onl#, once the acts committed %# petitioner, if ordinaril# sufficient to produce theft as a conse1uence, >do not produce )such theft+ %# reason of causes independent of the will of the perpetrator @ There are clearl# two determinati"e factors to consider: that the felon# is not >produced,@ and that such failure is due to causes independent of the will of the perpetrator The second factor ultimatel# depends on the e"idence at hand in each particular case The first, howe"er, relies primaril# on a doctrinal definition attachin$ to the indi"idual felonies in the 4e"ised !enal Code)3-+ as to when a particular felon# is >not produced,@ despite the commission of all the acts of e&ecution So, in order to ascertain whether the theft is consummated or frustrated, it is necessar# to in1uire as to how e&actl# is the felon# of theft >produced @ !arsin$ throu$h the statutor# definition of theft under Article 0</, there is one apparent answer pro"ided in the lan$ua$e of the law I that theft is alread# >produced@ upon the >ta()in$ of+ personal propert# of another without the latterEs consent @ U.S. v. Adiao)30+ apparentl# supports that notion Therein, a customs inspector was char$ed with theft after he a%stracted a leather %elt from the %a$$a$e of a forei$n national and secreted the item in his des( at the Custom ,ouse At no time was the accused a%le to >$et the merchandise out of the Custom ,ouse,@ and it appears that he >was under o%ser"ation durin$ the entire transaction @)32+ Cased apparentl# on those two circumstances, the trial court had found him $uilt#, instead, of frustrated theft The Court re"ersed, sa#in$ that neither circumstance was decisi"e, and holdin$ instead that the accused was $uilt# of consummated theft, findin$ that >all the elements of the completed crime of theft are present @)33+ In support of its conclusion that the theft was consummated, the Court cited three 809 decisions of the Supreme Court of Spain, the discussion of which we replicate %elow: The defendant was char$ed with the theft of some fruit from the land of another As he was in the act of ta(in$ the fruit),+ he was seen %# a policeman, #et it did not appear that he was at that moment cau$ht %# the policeman %ut sometime later The court said: J)& & &+ The trial court did not err )& & & + in considerin$ the crime as that of consummated theft instead of frustrated theft inasmuch as nothin$ appears in the record showin$ that the policemen who saw the accused ta(e the fruit from the adjoinin$ land arrested him in the act and thus pre"ented him from ta(in$ full possession of the thin$ stolen and e"en its

utili7ation %# him for an inter"al of time J 8Decision of the Supreme Court of Spain, Octo%er *2, */./ 9 Defendant pic(ed the poc(et of the offended part# while the latter was hearin$ mass in a church The latter on account of the solemnit# of the act, althou$h noticin$ the theft, did not do an#thin$ to pre"ent it Su%se1uentl#, howe"er, while the defendant was still inside the church, the offended part# $ot %ac( the mone# from the defendant The court said that the defendant had performed all the acts of e&ecution and considered the theft as consummated 8Decision of the Supreme Court of Spain, Decem%er *, */.A 9 The defendant penetrated into a room of a certain house and %# means of a (e# opened up a case, and from the case too( a small %o&, which was also opened with a (e#, from which in turn he too( a purse containin$ 25* reales and -< centimos, and then he placed the mone# o"er the co"er of the caseH just at this moment he was cau$ht %# two $uards who were stationed in another room near' %# The court considered this as consummated ro%%er#, and said: J)& & &+ The accused )& & &+ ha"in$ materiall# ta(en possession of the mone# from the moment he too( it from the place where it had %een, and ha"in$ ta(en it with his hands with intent to appropriate the same, he e&ecuted all the acts necessar# to constitute the crime which was there%# producedH onl# the act of ma(in$ use of the thin$ ha"in$ %een frustrated, which, howe"er, does not $o to ma(e the elements of the consummated crime J 8Decision of the Supreme Court of Spain, :une *0, *//- 9)35+ It is clear from the facts of Adiao itself, and the three 809 Spanish decisions cited therein, that the criminal actors in all these cases had %een a%le to o%tain full possession of the personal propert# prior to their apprehension The inter"al %etween the commission of the acts of theft and the apprehension of the thie"es did "ar#, from >sometime later@ in the */./ decisionH to the "er# moment the thief had just e&tracted the mone# in a purse which had %een stored as it was in the *//- decisionH and %efore the thief had %een a%le to spirit the item stolen from the %uildin$ where the theft too( place, as had happened in Adiao and the */.A decision Still, such inter"als pro"ed of no conse1uence in those cases, as it was ruled that the thefts in each of those cases was consummated %# the actual possession of the propert# %elon$in$ to another In *.-., the Court was a$ain confronted %# a claim that an accused was $uilt# onl# of frustrated rather than consummated theft The case is People v. Sobrevilla,)3A+ where the accused, while in the midst of a crowd in a pu%lic mar(et, was alread# a%le to a%stract a poc(et%oo( from the trousers of the "ictim when the latter, percei"in$ the theft, >cau$ht hold of the )accused+Es shirt'front, at the same time shoutin$ for a policemanH after a stru$$le, he reco"ered his poc(et'%oo( and let $o of the defendant, who was afterwards cau$ht %# a policeman @)3/+ In rejectin$ the contention that onl# frustrated theft was esta%lished, the Court simpl# said, without further comment or ela%oration: Be %elie"e that such a contention is $roundless The )accused+ succeeded in ta(in$ the poc(et'%oo(, and that determines the crime of theft If the poc(et' %oo( was afterwards reco"ered, such reco"er# does not affect the )accusedEs+ criminal lia%ilit#, which arose from the )accused+ ha"in$ succeeded in ta(in$ the poc(et'%oo( )3.+

If an#thin$, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the fact that the offender was a%le to succeed in o%tainin$ ph#sical possession of the stolen item, no matter how momentar#, was a%le to consummate the theft Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in this case Get to simpl# affirm without further comment would %e disin$enuous, as there is another school of thou$ht on when theft is consummated, as reflected in the Dio and Flores decisions Dio was decided %# the Court of Appeals in *.2., some 0* #ears after Adiao and *3 #ears %efore Flores The accused therein, a dri"er emplo#ed %# the ?nited States Arm#, had dri"en his truc( into the port area of the South ,ar%or, to unload a truc(load of materials to waitin$ ? S Arm# personnel After he had finished unloadin$, accused dro"e awa# his truc( from the !ort, %ut as he was approachin$ a chec(point of the ;ilitar# !olice, he was stopped %# an ; ! who inspected the truc( and found therein three %o&es of arm# rifles The accused later contended that he had %een stopped %# four men who had loaded the %o&es with the a$reement that the# were to meet him and retrie"e the rifles after he had passed the chec(point The trial court con"icted accused of consummated theft, %ut the Court of Appeals modified the con"iction, holdin$ instead that onl# frustrated theft had %een committed In doin$ so, the appellate court pointed out that the e"ident intent of the accused was to let the %o&es of rifles >pass throu$h the chec(point, perhaps in the %elief that as the truc( had alread# unloaded its car$o inside the depot, it would %e allowed to pass throu$h the chec( point without further in"esti$ation or chec(in$ @)5<+ This point was deemed material and indicati"e that the theft had not %een full# produced, for the Court of Appeals pronounced that >the fact determinati"e of consummation is the a%ilit# of the thief to dispose freel# of the articles stolen, e"en if it were more or less momentar# @)5*+ Support for this proposition was drawn from a decision of the Supreme Court of Spain dated -2 :anuar# */// 8*/// decision9, which was 1uoted as follows: Considerando 'ue para 'ue el apoderamiento de la cosa sustraida sea determinate de la consumacion del delito de $urto es preciso 'ue so $a(a en circunstancias tales 'ue permitan al sustractor la libre disposicion de a'uella! si'uiera sea mas o menos momentaneamente! pues de otra suerte! dado el concepto del delito de $urto! no puede decirse en realidad 'ue se $aya producido en toda su e)tension! sin materiali*ar demasiado el acto de tomar la cosa a&ena. )5-+ Inte$ratin$ these considerations, the Court of Appeals then concluded: This court is of the opinion that in the case at %ar, in order to ma(e the %oot# su%ject to the control and disposal of the culprits, the articles stolen must first %e passed throu$h the ; ! chec( point, %ut since the offense was opportunel# disco"ered and the articles sei7ed after all the acts of e&ecution had %een performed, %ut %efore the loot came under the final control and disposal of the looters, the offense can not %e said to ha"e %een full# consummated, as it was frustrated %# the timel# inter"ention of the $uard The offense committed, therefore, is that of frustrated theft )50+ Dio thus laid down the theor# that the a%ilit# of the actor to freel# dispose of the items stolen at the time of apprehension is determinati"e as to whether the theft is consummated or frustrated This theor# was applied a$ain %# the Court of Appeals some *3 #ears later,

in Flores, a case which accordin$ to the di"ision of the court that decided it, %ore >no su%stantial "ariance %etween the circumstances )herein+ and in ) Dio+ @)52+ Such conclusion is %orne out %# the facts in Flores The accused therein, a chec(er emplo#ed %# the =u7on Ste"edorin$ Compan#, issued a deli"er# receipt for one empt# sea "an to the truc( dri"er who had loaded the purportedl# empt# sea "an onto his truc( at the terminal of the ste"edorin$ compan# The truc( dri"er proceeded to show the deli"er# receipt to the $uard on dut# at the $ate of the terminal ,owe"er, the $uards insisted on inspectin$ the "an, and disco"ered that the >empt#@ sea "an had actuall# contained other merchandise as well )53+ The accused was prosecuted for theft 1ualified %# a%use of confidence, and found himself con"icted of the consummated crime Cefore the Court of Appeals, accused ar$ued in the alternati"e that he was $uilt# onl# of attempted theft, %ut the appellate court pointed out that there was no inter"enin$ act of spontaneous desistance on the part of the accused that >literall# frustrated the theft @ ,owe"er, the Court of Appeals, e&plicitl# rel#in$ on Dio, did find that the accused was $uilt# onl# of frustrated, and not consummated, theft As noted earlier, the appellate court admitted it found >no su%stantial "ariance@ %etween Dio and Flores then %efore it The prosecution in Flores had sou$ht to distin$uish that case from Dio, citin$ a >traditional rulin$@ which unfortunatel# was not identified in the decision itself ,owe"er, the Court of Appeals pointed out that the said >traditional rulin$@ was 1ualified %# the words >is placed in a situation where )the actor+ could dispose of its contents at once @)55+ !ouncin$ on this 1ualification, the appellate court noted that >)o+%"iousl#, while the truc( and the "an were still within the compound, the petitioner could not ha"e disposed of the $oods Kat onceE @ At the same time, the Court of Appeals conceded that >)t+his is entirel# different from the case where a much less %ul( and more common thin$ as mone# was the o%ject of the crime, where freedom to dispose of or ma(e use of it is palpa%l# less restricted,@)5A+ thou$h no further 1ualification was offered what the effect would ha"e %een had that alternati"e circumstance %een present instead S#nthesis of the Dio and Flores rulin$s is in order The determinati"e characteristic as to whether the crime of theft was produced is the a%ilit# of the actor >to freel# dispose of the articles stolen, e"en if it were onl# momentar# @ Such conclusion was drawn from an */// decision of the Supreme Court of Spain which had pronounced that in determinin$ whether theft had %een consummated, >es preciso 'ue so $a(a en circunstancias tales 'ue permitan al sustractor de a'uella! si'uiera sea mas o menos momentaneamente @ The 1ualifier >si'uiera sea mas o menos momentaneamente@ pro"es another important consideration, as it implies that if the actor was in a capacit# to freel# dispose of the stolen items %efore apprehension, then the theft could %e deemed consummated Such circumstance was not present in either Dio or Flores, as the stolen items in %oth cases were retrie"ed from the actor %efore the# could %e ph#sicall# e&tracted from the $uarded compounds from which the items were filched ,owe"er, as implied in Flores, the character of the item stolen could lead to a different conclusion as to whether there could ha"e %een >free disposition,@ as in the case where the chattel in"ol"ed was of >much less %ul( and more common & & &, )such+ as mone# & & & @)5/+ In his commentaries, Chief :ustice A1uino ma(es the followin$ pointed o%ser"ation on the import of the Dio rulin$: There is a rulin$ of the Court of Appeals that theft is consummated when the thief is a%le to freel# dispose of the stolen articles e"en if it were more or less momentar# Or as stated in another case))5.++, theft is consummated upon the "oluntar# and malicious ta(in$ of propert# %elon$in$ to another which is reali7ed

%# the material occupation of the thin$ where%# the thief places it under his control and in such a situation that he coulddispose o it at once This rulin$ seems to ha"e %een %ased on 6iadaEs opinion that in order the theft ma# %e consummated, >es preciso 'ue se $a(a en circumstancias & & & ))A<++@)A*+ In the same commentaries, Chief :ustice A1uino, concludin$ from Adiao and other cases, also states that >)i+n theft or ro%%er# the crime is consummated after the accused had material possession of the thin$ with intent to appropriate the same, althou$h his act of ma(in$ use of the thin$ was frustrated @)A-+ There are at least two other Court of Appeals rulin$s that are at seemin$ "ariance with the Dio and Flores rulin$s People v. +atoon)A0+ in"ol"ed an accused who filled a container with $asoline from a petrol pump within "iew of a police detecti"e, who followed the accused onto a passen$er truc( where the arrest was made Bhile the trial court found the accused $uilt# of frustrated 1ualified theft, the Court of Appeals held that the accused was $uilt# of consummated 1ualified theft, findin$ that >)t+he facts of the cases of U.S. )" + Adiao & & & and U.S. v. Sobrevilla & & & indicate that actual ta(in$ with intent to $ain is enou$h to consummate the crime of theft @)A2+ In People v. Espiritu,)A3+ the accused had remo"ed nine pieces of hospital linen from a suppl# depot and loaded them onto a truc( ,owe"er, as the truc( passed throu$h the chec(point, the stolen items were disco"ered %# the ;ilitar# !olice runnin$ the chec(point E"en thou$h those facts clearl# admit to similarit# with those in Dio, the Court of Appeals held that the accused were $uilt# of consummated theft, as the accused >were a%le to ta(e or $et hold of the hospital linen and that the onl# thin$ that was frustrated, which does not constitute an# element of theft, is the use or %enefit that the thie"es e&pected from the commission of the offense @)A5+ In pointin$ out the distinction %etween Dio and Espiritu, 4e#es wr#l# o%ser"es that >)w+hen the meanin$ of an element of a felon# is contro"ersial, there is %ound to arise different rulin$s as to the sta$e of e&ecution of that felon# @)AA+ Indeed, we can discern from this sur"e# of jurisprudence that the state of the law insofar as frustrated theft is concerned is muddled It fact, $i"en the disputed foundational %asis of the concept of frustrated theft itself, the 1uestion can e"en %e as(ed whether there is reall# such a crime in the first place I,. The Court in *./2 did finall# rule directl# that an accused was $uilt# of frustrated, and not consummated, theft As we underta(e this in1uir#, we ha"e to rec(on with the import of this CourtEs *./2 decision in Empelis v. IAC )A/+ As narrated in Empelis, the owner of a coconut plantation had espied four 829 persons in the premises of his plantation, in the act of $atherin$ and t#in$ some coconuts The accused were surprised %# the owner within the plantation as the# were carr#in$ with them the coconuts the# had $athered The accused fled the scene, droppin$ the coconuts the# had sei7ed, and were su%se1uentl# arrested after the owner reported the incident to the police After trial, the accused were con"icted of 1ualified theft, and the issue the# raised on appeal was that the# were $uilt# onl# of simple theft The Court affirmed that the theft was 1ualified, followin$ Article 0*< of the 4e"ised !enal Code,)A.+ %ut further held that the accused were $uilt# onl# of frustrated 1ualified theft

It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated was raised %# an# of the parties Bhat does appear, thou$h, is that the disposition of that issue was contained in onl# two sentences, which we reproduce in full: ,owe"er, the crime committed is onl# frustrated 1ualified theft %ecause petitioners were not a%le to perform all the acts of e&ecution which should ha"e produced the felon# as a conse1uence The# were not a%le to carr# the coconuts awa# from the plantation due to the timel# arri"al of the owner )/<+ No le$al reference or citation was offered for this a"erment, whether Dio, Flores or the Spanish authorities who ma# ha"e %olstered the conclusion There are indeed e"ident pro%lems with this formulation in Empelis Empelis held that the crime was onl# frustrated %ecause the actors >were not a%le to perform all the acts of e&ecutionwhich should ha"e produced the felon as a conse1uence @)/*+ ,owe"er, per Article 5 of the 4e"ised !enal Code, the crime is frustrated >when the offender performs all the acts of e&ecution,@ thou$h not producin$ the felon# as a result If the offender was not a%le to perform all the acts of e&ecution, the crime is attempted, pro"ided that the non' performance was %# reason of some cause or accident other than spontaneous desistance Empelis concludes that the crime was frustrated %ecause not all of the acts of e&ecution were performed due to the timel# arri"al of the owner ,owe"er, followin$ Article 5 of the 4e"ised !enal Code, these facts should elicit the conclusion that the crime was onl# attempted, especiall# $i"en that the acts were not performed %ecause of the timel# arri"al of the owner, and not %ecause of spontaneous desistance %# the offenders For these reasons, we cannot attri%ute wei$ht to Empelis as we consider the present petition E"en if the two sentences we had cited actuall# ali$ned with the definitions pro"ided in Article 5 of the 4e"ised !enal Code, such passa$e %ears no reflection that it is the product of the considered e"aluation of the rele"ant le$al or jurisprudential thou$ht Instead, the passa$e is offered as if it were sourced from an indu%ita%le le$al premise so settled it re1uired no further e&plication Nota%l#, Empelis has not since %een reaffirmed %# the Court, or e"en cited as authorit# on theft Indeed, we cannot see howEmpelis can contri%ute to our present de%ate, e&cept for the %are fact that it pro"es that the Court had once deli%eratel# found an accused $uilt# of frustrated theft E"en if Empelis were considered as a precedent for frustrated theft, its doctrinal "alue is e&tremel# compromised %# the erroneous le$al premises that inform it, and also %# the fact that it has not %een entrenched %# su%se1uent reliance Thus, Empelis does not compel us that it is an insurmounta%le $i"en that frustrated theft is "ia%le in this jurisdiction Considerin$ the flawed reasonin$ %ehind its conclusion of frustrated theft, it cannot present an# efficacious ar$ument to persuade us in this case Insofar as Empelis ma# impl# that con"ictions for frustrated theft are %e#ond ca"il in this jurisdiction, that decision is su%ject to reassessment ,. At the time our 4e"ised !enal Code was enacted in *.0<, the */A< Codi(o Penal de Espaa was then in place The definition of the crime of theft, as pro"ided then, read as

follows: Son reos de $urto.. /os 'ue con 0nimo de lucrarse! y sin volencia o intimidaci1n en las personas ni uer*a en las cosas! toman las cosas muebles a&enas sin la voluntad de su dueo. 2. /os 'ue encontr0ndose una cosa perdida y sabiendo 'ui3n es su dueo se la apropriaren co intenci1n de lucro. 4. /os daadores 'ue sustra&eren o utili*aren los rutos u ob&eto del dao causado! salvo los casos previstos en los art5culos 676! n8m. ..79 67:! n8ms! ..7! 2.7 y 4.79 67;! n8m. ..79 6..9 6.49 Se(undo p0rra o del 6.: y 6.;. It was under the am%it of the */A< Codi(o Penal that the aforecited Spanish Supreme Court decisions were handed down ,owe"er, the said code would %e re"ised a$ain in *.0-, and se"eral times thereafter In fact, under the Codi(o Penal Espaol de .<<=, the crime of theft is now simpl# defined as >>e?l 'ue! con 0nimo de lucro!tomare las cosas muebles a&enas sin la voluntad de su dueo ser0 casti(ado")/-+ Notice that in the */A< and *..3 definition of theft in the penal code of Spain, >la libre disposicion@ of the propert# is not an element or a statutor# characteristic of the crime It does appear that the principle ori$inated and perhaps was fostered in the realm of Spanish jurisprudence The oft'cited Sal"ador 6iada adopted a 1uestion'answer form in his *.-5 commentaries on the */A< Codi(o Penal de Espaa Therein, he raised at least three 1uestions for the reader whether the crime of frustrated or consummated theft had occurred The passa$e cited in Dio was actuall# utili7ed %# 6iada to answer the 1uestion whether frustrated or consummated theft was committed >)e+l 'ue en el momento mismo de apoderarse de la cosa a&ena! vi3ndose sorprendido! la arro&a al suelo @)/0+ E"en as the answer was as stated in Dio, and was indeed deri"ed from the */// decision of the Supreme Court of Spain, that decisionEs factual predicate occasionin$ the statement was apparentl# "er# different from Dio, for it appears that the */// decision in"ol"ed an accused who was surprised %# the emplo#ees of a ha%erdasher# as he was a%stractin$ a la#er of clothin$ off a manne1uin, and who then proceeded to throw awa# the $arment as he fled )/2+ Nonetheless, 6iada does not contest the notion of frustrated theft, and willin$l# recites decisions of the Supreme Court of Spain that ha"e held to that effect )/3+ A few decades later, the esteemed Eu$enio Cuello CalLn pointed out the inconsistent application %# the Spanish Supreme Court with respect to frustrated theft @ay rustraci1n cuando los reos ueron sorprendidos por las (uardias cuando llevaban los sacos de $arino del carro 'ue los conducia a otro 'ue tenAan preparado! 22 ebrero .<.49 cuando el resultado no tuvo e ecto por la intervenci1n de la policia situada en el local donde se reali*1 la sustracci1n 'ue impidi1 pudieran los reos disponer de lo sustraAdo! 47 de octubre .<=7. @ay Bpor lo menosB rustraci1n! si e)iste apoderamiento! pero el culpale no lle(a a disponer de la cosa! .2 abril .<479 $ay rustraci1n Bmuy pr1)imaB cuando el culpable es detenido por el per&udicado acto se(uido de cometer la sustracci1n!

2; ebrero .<4.. Al(unos allos $an considerado la e)istencia de rustraci1n cuando! perse(uido el culpable o sorprendido en el momento de llevar los e ectos $urtados! los abandona! 2< mayo .;;<! 22 ebrero .<.4! .. mar*o .<2.9 esta doctrina no es admissible! 3stos! con orme a lo antes e)puesto! son $urtos consumados.)/5+ ?ltimatel#, Cuello CalLn attac(ed the "er# idea that frustrated theft is actuall# possi%le: /a doctrina $oy (eneralmente sustentada considera 'ue el $urto se consuma cuando la cosa 'ueda de $ec$o a la disposici1n dela(ente. Con este criterio coincide la doctrina sentada 8ltimamente porla &urisprudencia espaola 'ue (eneralmente considera consumado el $urto cuando el culpable co(e o apre$ende la cosa y 3sta 'uede por tiempo m0s o menos duradero ba&o su poder. El $ec$o de 'ue 3ste pueda aprovec$arse o no de lo $urtado es indi erente. El delito no pierde su car0cter de consumado aun'ue la cosa $urtada sea devuelta por el culpable o uere recuperada. Co se concibe la rustraci1n! pues es muy di icil 'ue el 'ue $ace cuanto es necesario para la consumaci1n del $urto no lo consume e ectivamente! los raros casos 'ue nuestra &urisprudencia! muy vacilante! declara $urtos rustrados son verdaderos delitos consumados.)/A+ 8Emphasis supplied9 Cuello CalLnEs su%missions cannot %e li$htl# i$nored ?nli(e 6iada, who was content with replicatin$ the Spanish Supreme Court decisions on the matter, Cuello CalLn actuall# set forth his own thou$ht that 1uestioned whether theft could trul# %e frustrated, since > pues es muy di icil 'ue el 'ue $ace cuanto es necesario para la consumaci1n del $urto no lo consume e ectivamente @ Otherwise put, it would %e difficult to foresee how the e&ecution of all the acts necessar# for the completion of the crime would not produce the effect of theft This di"er$ence of opinion con"inces us, at least, that there is no wei$hted force in scholarl# thou$ht that o%li$es us to accept frustrated theft, as proposed in Dio and Flores A final rulin$ %# the Court that there is no crime of frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a su%mission is hardl# heretical in li$ht of Cuello CalLnEs position Accordin$l#, it would not %e intellectuall# disin$enuous for the Court to loo( at the 1uestion from a fresh perspecti"e, as we are not %ound %# the opinions of the respected Spanish commentators, conflictin$ as the# are, to accept that theft is capa%le of commission in its frustrated sta$e Further, if we as( the 1uestion whether there is a mandate of statute or precedent that must compel us to adopt the Dio and Flores doctrines, the answer has to %e in the ne$ati"e If we did so, it would arise not out of o%eisance to an ine&ora%l# hi$her command, %ut from the e&ercise of the function of statutor# interpretation that comes as part and parcel of judicial re"iew, and a function that allows %reathin$ room for a "ariet# of theorems in competition until one is ultimatel# adopted %# this Court ,. The foremost predicate that $uides us as we e&plore the matter is that it lies in the pro"ince of the le$islature, throu$h statute, to define what constitutes a particular crime in this jurisdiction It is the le$islature, as representati"es of the so"erei$n people, which determines which acts or com%ination of acts are criminal in nature :udicial interpretation of penal laws should %e ali$ned with what was the e"ident le$islati"e intent, as e&pressed

primaril# in the lan$ua$e of the law as it defines the crime It is Con$ress, not the courts, which is to define a crime, and ordain its punishment )//+ The courts cannot arro$ate the power to introduce a new element of a crime which was unintended %# the le$islature, or redefine a crime in a manner that does not hew to the statutor# lan$ua$e Due respect for the prero$ati"e of Con$ress in definin$ crimesMfelonies constrains the Court to refrain from a %road interpretation of penal laws where a >narrow interpretation@ is appropriate >The Court must ta(e heed of lan$ua$e, le$islati"e histor# and purpose, in order to strictl# determine the wrath and %reath of the conduct the law for%ids @)/.+ Bith that in mind, a pro%lem clearl# emer$es with the DioDFlores dictum The a%ilit# of the offender to freel# dispose of the propert# stolen is not a constituti"e element of the crime of theft It finds no support or e&tension in Article 0</, whether as a descripti"e or operati"e element of theft or as the mens rea or actus reus of the felon# To restate what this Court has repeatedl# held: the elements of the crime of theft as pro"ided for in Article 0</ of the 4e"ised !enal Code are: 8*9 that there %e ta(in$ of personal propert#H 8-9 that said propert# %elon$s to anotherH 809 that the ta(in$ %e done with intent to $ainH 829 that the ta(in$ %e done without the consent of the ownerH and 839 that the ta(in$ %e accomplished without the use of "iolence a$ainst or intimidation of persons or force upon thin$s ).<+ Such factor runs immaterial to the statutor# definition of theft, which is the ta(in$, with intent to $ain, of personal propert# of another without the latterEs consent Bhile the DioDFlores dictum is considerate to the mindset of the offender, the statutor# definition of theft considers onl# the perspecti"e of intent to $ain on the part of the offender, compounded %# the depri"ation of propert# on the part of the "ictim For the purpose of ascertainin$ whether theft is suscepti%le of commission in the frustrated sta$e, the 1uestion is a$ain, when is the crime of theft producedN There would %e all %ut certain unanimit# in the position that theft is produced when there is depri"ation of personal propert# due to its ta(in$ %# one with intent to $ain 6iewed from that perspecti"e, it is immaterial to the product of the felon# that the offender, once ha"in$ committed all the acts of e&ecution for theft, is a%le or una%le to freel# dispose of the propert# stolen since the depri"ation from the owner alone has alread# ensued from such acts of e&ecution This conclusion is reflected in Chief :ustice A1uinoEs commentaries, as earlier cited, that >)i+n theft or ro%%er# the crime is consummated after the accused had material possession of the thin$ with intent to appropriate the same, althou$h his act of ma(in$ use of the thin$ was frustrated @).*+ It mi$ht %e ar$ued, that the a%ilit# of the offender to freel# dispose of the propert# stolen del"es into the concept of >ta(in$@ itself, in that there could %e no true ta(in$ until the actor o%tains such de$ree of control o"er the stolen item Cut e"en if this were correct, the effect would %e to down$rade the crime to its attempted, and not frustrated sta$e, for it would mean that not all the acts of e&ecution ha"e not %een completed, the >ta(in$ not ha"in$ %een accomplished @ !erhaps this point could ser"e as fertile $round for future discussion, %ut our concern now is whether there is indeed a crime of frustrated theft, and such consideration pro"es ultimatel# immaterial to that 1uestion ;oreo"er, such issue will not appl# to the facts of this particular case Be are satisfied %e#ond reasona%le dou%t that the ta(in$ %# the petitioner was completed in this case Bith intent to $ain, he ac1uired ph#sical possession of the stolen cases of deter$ent for a considera%le period of time that he was a%le to drop these off at a spot in the par(in$ lot, and lon$ enou$h to load these onto a ta&ica% Indeed, we ha"e, after all, held that unlawful ta(in$, or apoderamiento, is deemed complete

from the moment the offender $ains possession of the thin$, e"en if he has no opportunit# to dispose of the same ).-+ And lon$ a$o, we asserted in People v.Avila:).0+ & & & )T+he most fundamental notion in the crime of theft is the ta(in$ of the thin$ to %e appropriated into the ph#sical power of the thief, which idea is 1ualified %# other conditions, such as that the ta(in$ must %e effected animo lucrandi and without the consent of the ownerH and it will %e here noted that the definition does not re1uire that the ta(in$ should %e effected a$ainst the will of the owner %ut merel# that it should %e without his consent, a distinction of no sli$ht importance ).2+ Insofar as we consider the present 1uestion, >unlawful ta(in$@ is most material in this respect ?nlawful ta(in$, which is the depri"ation of oneEs personal propert#, is the element which produces the felon# in its consummated sta$e At the same time, without unlawful ta(in$ as an act of e&ecution, the offense could onl# %e attempted theft, if at all Bith these considerations, we can onl# conclude that under Article 0</ of the 4e"ised !enal Code, theft cannot ha"e a frustrated sta$e Theft can onl# %e attempted or consummated Neither Dio nor Flores can con"ince us otherwise Coth fail to consider that once the offenders therein o%tained possession o"er the stolen items, the effect of the felon# has %een produced as there has %een depri"ation of propert# The presumed ina%ilit# of the offenders to freel# dispose of the stolen propert# does not ne$ate the fact that the owners ha"e alread# %een depri"ed of their ri$ht to possession upon the completion of the ta(in$ ;oreo"er, as is e"ident in this case, the adoption of the rule Ithat the ina%ilit# of the offender to freel# dispose of the stolen propert# frustrates the theft I would introduce a con"enient defense for the accused which does not reflect an# le$islated intent,).3+ since the Court would ha"e car"ed a "ia%le means for offenders to see( a miti$ated penalt# under applied circumstances that do not admit of eas# classification It is difficult to formulate definite standards as to when a stolen item is suscepti%le to free disposal %# the thief Bould this depend on the ps#cholo$ical %elief of the offender at the time of the commission of the crime, as implied inDioN Or, more li(el#, the appreciation of se"eral classes of factual circumstances such as the si7e and wei$ht of the propert#, the location of the propert#, the num%er and identit# of people present at the scene of the crime, the num%er and identit# of people whom the offender is e&pected to encounter upon fleein$ with the stolen propert#, the manner in which the stolen item had %een housed or storedH and 1uite fran(l#, a whole lot more E"en the fun$i%ilit# or edi%ilit# of the stolen item would come into account, rele"ant as that would %e on whether such propert# is capa%le of free disposal at an# sta$e, e"en after the ta(in$ has %een consummated All these complications will ma(e us lose si$ht of the fact that %eneath all the colorful detail, the owner was indeed depri"ed of propert# %# one who intended to produce such depri"ation for reasons of $ain For such will remain the presumed fact if frustrated theft were reco$ni7ed, for therein, all of the acts of e&ecution, includin$ the ta(in$, ha"e %een completed If the facts esta%lish the non'completion of the ta(in$ due to these peculiar circumstances, the effect could %e to down$rade the crime to the attempted sta$e, as not all of the acts of e&ecution ha"e %een performed Cut once all these acts ha"e %een e&ecuted, the ta(in$ has %een completed, causin$ the unlawful depri"ation of propert#, and ultimatel#

the consummation of the theft ;a#%e the DioDFlores rulin$s are, in some de$ree, $rounded in common sense Get the# do not ali$n with the le$islated framewor( of the crime of theft The 4e"ised !enal Code pro"isions on theft ha"e not %een desi$ned in such fashion as to accommodate said rulin$s A$ain, there is no lan$ua$e in Article 0</ that e&pressl# or impliedl# allows that the >free disposition of the items stolen@ is in an# wa# determinati"e of whether the crime of theft has %een produced Dio itself did not rel# on !hilippine laws or jurisprudence to %olster its conclusion, and the later Flores was ultimatel# content in rel#in$ on Dio alone for le$al support These cases do not enjo# the wei$ht of stare decisis, and e"en if the# did, their erroneous appreciation of our law on theft lea"e them suscepti%le to re"ersal The same holds true of Empilis, a re$retta%l# stra# decision which has not since found fa"or from this Court Be thus conclude that under the 4e"ised !enal Code, there is no crime of frustrated theft As petitioner has latched the success of his appeal on our acceptance of the Dio and Flores rulin$s, his petition must %e denied, for we decline to adopt said rulin$s in our jurisdiction That it has ta(en all these #ears for us to reco$ni7e that there can %e no frustrated theft under the 4e"ised !enal Code does not detract from the correctness of this conclusion It will ta(e considera%le amendments to our 4e"ised !enal Code in order that frustrated theft ma# %e reco$ni7ed Our deference to 6iada #ields to the hi$her re"erence for le$islati"e intent B,E4EFO4E, the petition is DENIED Costs a$ainst petitioner SO O4DE4ED G.R. No. 1$%002 J!nu!&y 2$, 2006 PEOPLE OF T E P ILIPPINES, !laintiff'Appellee, "s PF# FLORO 'ALEJANA, Accused'Appellant DECISION AZ#UNA, J.: This is a petition for re"iew on certiorari of the decision*of Cranch 3* of the 4e$ional Trial Court of Sorso$on in Criminal Case No .*'-/.5 con"ictin$ appellant Floro ;alejana of murder defined and penali7ed under Article -2/ of the 4e"ised !enal Code 84!C9 After trial on the merits, the lower court found appellant $uilt# %e#ond reasona%le dou%t of the crime char$ed and sentenced him to suffer an indeterminate penalt# of imprisonment ran$in$ %etween fourteen 8*29 #ears, ei$ht 8/9 months, and one 8*9 da# of reclusion temporal as minimum to twent# 8-<9 #ears of reclusion temporal as ma&imum The Court of Appeals affirmed the jud$ment %ut raised the penalt# imposed to reclusion perpetua. ,ence, this case is now %efore us on automatic re"iew In the information- filed with the 4e$ional Trial Court of Sorso$on, appellant was char$ed with murder as follows: That on or a%out the -/th da# of :ul#, *..<, at %aran$a# ;arifos1ue, municipalit# of !ilar, pro"ince of Sorso$on, !hilippines, and within the jurisdiction of this ,onora%le Court, the a%o"e'named accused, with treacher# and e"ident premeditation, armed with an armalite rifle, did then and there, willfull#, unlawfull# and feloniousl# attac(, assault and sho)o+t one :anus 8Con$9 4oces, there%# inflictin$ upon the latter multiple mortal wounds which directl# caused the death of said :anus 8Con$9 4oces, to the dama$e and prejudice of his le$al heirs CONT4A4G TO =AB

Sorso$on, Sorso$on, ;arch -A, *..* On arrai$nment, appellant pleaded not $uilt# to the char$e !re'trial was thereafter held and terminated and trial proceeded accordin$l# The prosecution presented fi"e witnesses: 8*9 Three e#ewitnesses to the incident, namel#, Andres ;adrid, Antonio S# and Samuel AndradeH 8-9 Domin$o =u"idioro, the propert# custodian of the !hilippine National !olice 8!N!9 of !ilar, Sorso$onH and 809 Dr :ose =una, the rural health ph#sician of !ilar, Sorso$on who performed the autops# on and prepared the death certificate of :anus 4oces 84oces9, the "ictim Andres ;adrid testified that he (new 4oces %ecause, apart from %ein$ one of the dri"ers of his 8;adridEs9 passen$er jeepne#s, 4oces was his %rother'in'law who li"ed with him in ;arisfo1ue, !ilar, Sorso$on On the other hand, ;adrid stated that he was ac1uainted with appellant %ecause the latter is a mem%er of !ilar'!N! As to the e"ents that transpired on :ul# -/, *..<, ;adrid narrated that around A:*3 p m , while he was seated in front of his jeep par(ed at the side of the road at ;arisfo1ue, !ilar, Sorso$on in the compan# of 4oces, S#, Andrade, Cernarda S#, :ose Celmonte and Ernesto Francisco, he saw appellant at a%out 0< meters awa# headin$ towards their direction ?pon reachin$ their $roup, appellant as(ed them where 4oces was Bhen he noticed 4oces who was sittin$ at a distance of * meter %eside ;adrid, appellant %randished an armalite rifle and fired a shot into the air Then he pointed the %arrel of the $un at 4oces and fired fi"e 839 times, hittin$ 4oces thrice After the "ictim fell to the $round, appellant left the scene of the incident and went to his house a%out *3< meters awa# ;adrid and his other companions tried to assist 4oces %ut disco"ered that the latter was alread# dead, presuma%l# from the $unshot wounds that were inflicted upon him %# appellant 0 The statement of ;adrid was corro%orated %# the testimonies of Antonio S#2 and Samuel Andrade3 who %oth confirmed that, on the da# in 1uestion, appellant approached their $roup loo(in$ for 4oces and after locatin$ him, fired his armalite rifle once in the air and then at least fi"e times at the "ictim 5 The prosecution also presented Domin$o =u"idioro who testified that, as propert# custodian of the !N!, he issued to appellant an ;'*5 armalite rifle with -5< rounds of li"e ammunition Bhen the firearm was returned to him on :ul# 0<, *..<, onl# -0< rounds of li"e ammunition were returned A On :anuar# -/, *..-, Dr :ose =una, the rural health ph#sician of !ilar, Sorso$on, testified that after conductin$ an autops# on the "ictim on :ul# -., *..<, he concluded that the immediate causes of death were shoc( and hemorrha$e while the antecedent cause was the multiple $unshot wounds on the chest ,e set forth the followin$ findin$s in the Autops# 4eport:/ E&ternal Findin$s: ,EENT' ,airs %lac(, scalp has no contusions nor lacerations =ower part of the face %lood# Clood# fluid comin$ out of %oth e&ternal nares Clac( mustache Nec(: Th#roid $land not enlar$ed No stran$ulation mar(s Thora&: Anterior and portion aspect unremar(a%le 8On9 the ri$ht aspect of the thora& 8with9 the 4?E a%ducted there are three small %ullet wound measurin$ *O* cm arran$ed in a linear fashion at the mida&illiar# line immediatel# inferior of the a&illa at * P inches apart Clood# fluid oo7in$ from the wounds =eft aspect of the thora& unremar(a%le ?pper e8&9tr8e9miti8e9s: 4i$ht and left upper e&tr8e9miti8e9s unremar(a%le

A%domen and %ac(: unremar(a%le =ower e&tr8e9mities: unremar(a%le Internal findin$s: A T incision was made in the chest and the thoracic ca"it# was e&posed The heart appears 8NO4;A=9 in si7e l#in$ in the pericardial sac and containin$ a clear serous fluid Coth pleural ca"it# is half filled with %lood# fluid The lower lo%es of the lun$s are torn to pieces The upper lo%es appear 8NO4;A=9 The ri$ht si$ht of the ri% ca$e at a%out the %ullet wounds were fractured A?TO!SG FINDINGS 8S?;;A4G9 * ;ultiple %ullet wounds chest - ,emothora& 0 Cilateral lower lo%e lun$ injur# or destruction 2 Fractures ri%s CA?SE OF DEAT,: I;;EDIATE CA?SE: Shoc( and ,emorrha$e ANTECEDENT CA?SE: ;ultiple GMS wound chest ?NDE4=GING CA?SE: ,emothora& due to trauma of %oth lun$sH fractured ri%s For its part, the defense presented as its sole witness %allistics e&pert 6icente 4 De 6era. who was the chief of the Callistics Di"ision of the !N! Crime =a%orator# Ser"ice After e&aminin$ the autops# report, De 6era testified a$ainst the li(elihood of an armalite %ein$ used to (ill the "ictim and posited that the $unshot wounds were more consistent with those inflicted %# %ullets from a 23 cali%er pistol ,e e&plained that an armalite rifle would ha"e cut off P of the %od# of the "ictim if fired at a distance of * P meters ,e also opined that the "elocit# of the %ullet of an armalite is 0,3<< feet per second with an ener$# of *,0<< feet per pound As a conse1uence, it would ha"e destro#ed or distur%ed the internal or$ans of the person shot, in direct contrast to the "ictim in the case whose heart had not %een distur%ed *< After the parties presented their respecti"e e"idence, the prosecution was allowed, o"er the o%jections of opposin$ counsel, to introduce re%uttal e"idence culled from the records of the administrati"e case a$ainst appellant filed with the National !olice Commission in connection with the same incident ** The followin$ were mar(ed as e&hi%its for the prosecution: E&hi%it F: ;otion to Admit Counter'affida"it in Admin Case No .*'<255 a$ainst accused Floro ;alejana in the National !olice Commission E&hi%it G'series: Counter'affida"it of accused E&hi%it , series: Sworn Statement of 6icente ;alle, witness of the accused E&hi%it I series: Sworn Statement of Danilo ;illares, witness of the accused E&hi%it : series: AAD form No * of Napolcom in the Administrati"e Case No .*'<255 E&hi%it Q series: decision of the Napolcom *-

On Fe%ruar# *5, *..0, appellant filed a !etition for Certiorari*0 with pra#ers for the issuance of a writ of preliminar# injunction and temporar# restrainin$ order, to nullif# the trial courtEs Order dated No"em%er 0, *..- which admitted into e"idence E&hi%its JFJ to J:J as well as the Order dated Decem%er --, *..- den#in$ his motion for reconsideration The Court of Appeals su%se1uentl# dismissed the petition in a Decision dated -2 Au$ust *..0 *2 A$$rie"ed, appellant filed with this Court a !etition for 4e"iew on Certiorari *3 This Court dismissed the petition for ha"in$ %een filed out of time *5 On :une *, *..3, the trial court rendered its decision as follows: ACCO4DING=G, the Court finds accused Floro ;alejana $uilt# %e#ond dou%t of ;urder defined and penali7ed under Article -2/ 4e"ised !enal Code, without miti$atin$ or a$$ra"atin$ circumstances present, here%# sentences him to suffer an indeterminate penalt# of imprisonment of fourteen 8*29 #ears and ei$ht 8/9 months and one da# of reclusion temporal as minimum to twent# 8-<9 #ears of reclusion temporal as ma&imum and to indemnif# the heirs of :anus 4oces !3<,<<< << for his death *A On appeal, the decision of the trial court was upheld %# the Court of Appeals with the followin$ modification: B,E4EFO4E, the rulin$ of the court a 'uo findin$ the accused'appellant $uilt# is AFFI4;ED with the modification that the penalt# to %e imposed %e EEC/USIFC PEEPETUA !ursuant to Section *0 of 4ule *-2 of the 4ules on Criminal !rocedure, as amended, let the entire record of this case is 8sic9 ele"ated to the Supreme Court for re"iew */ In his %rief,*. appellant raises the followin$ errors: I T,E T4IA= CO?4T AS AFFI4;ED CG T,E CO?4T OF A!!EA=S E44ED IN CON6ICTING ACC?SED'A!!E==ANT F=O4O ;A=E:ANA OF ;?4DE4 AND IN NOT ACD?ITTING ,I; NOTBIT,STANDING T,AT ,IS G?I=T ,AS NOT CEEN !4O6EN CEGOND 4EASONAC=E DO?CT II ASS?;ING T,AT T,E G?I=T OF T,E ACC?SED'A!!E==ANT ,AS CEEN !4O6EN CEGOND 4EASONAC=E DO?CT, T,E T4IA= CO?4T E44ED IN A!!4ECIATING T4EAC,E4G AS !?4!OSE=G E;!=OGED CG T,E ACC?SED'A!!E==ANT TO CO;;IT T,E A==EGED C4I;E IN T,E INFO4;ATION The issue in this case %oils down to a 1uestion of credi%ilit# and relati"e wei$ht of e"idence adduced %# the parties with respect to the surroundin$ circumstances of the (illin$ Bhen the credi%ilit# of the witnesses is at issue, appellate courts will not distur% the findin$s of the trial court, the latter %ein$ in a %etter position to decide the 1uestion, ha"in$ heard the witnesses and o%ser"ed their deportment and manner of testif#in$ durin$ the trial unless certain facts of su%stance and "alue had %een o"erloo(ed which, if considered, mi$ht affect the results of the case -< The underl#in$ reason for this principle has %een e&plained as follows: ,a"in$ the opportunit# to o%ser"e them, the trial jud$e is a%le to detect that sometimes thin line %etween fact and pre"arication that will determine the $uilt of the accused That line ma# not %e discerni%le from a mere readin$ of the impersonal record %# the re"iewin$ court The record will not re"eal those tell'tale si$ns that will affirm the truth or e&pose the contri"ance, li(e the an$r# flush of an insisted assertion or the sudden pallor of a disco"ered lie or the tremulous mutter of a reluctant answer of the forthri$ht tone of a read# repl# The record will not show if the e#es ha"e darted in e"asion or loo(ed down in confession or $a7ed steadil# with a serenit# that has nothin$ to distort or conceal The record will not show if tears were shed in an$er, or in shame or in remem%ered pain, or in fei$ned innocence Onl# the jud$e tr#in$ the case can see all these on the %asis of his o%ser"ations arri"e at an informed and reasoned "erdict -*

After a thorou$h re"iew of the e"idence on record, this Court finds no reason to distur% the factual findin$s of the trial court The defense hin$es its case upon the testimon# of %allistics e&pert De 6era to impu$n the con"iction of appellant and particularl# to support the assertion that the %ullets that (illed the "ictim came from a 23 cali%er $un and not from an ;'*5 armalite rifle similar to the one issued to appellant as mem%er of the !N! Cased on the fore$oin$, it is contended that the su%stance of De 6eraEs testimon# sufficientl# dispro"ed and discredited the testimonies of ;adrid, S# and Andrade which were alle$ed to %e mere fa%rications The Court does not find such testimon# compellin$ enou$h to o"erturn the trial courtEs decision and ac1uit appellant As correctl# pointed out %# the court a 'uo, the proffered opinion of the e&pert witness does not conclusi"el# rule out the possi%ilit# that an armalite rifle had %een used, to wit: D: The findin$s as it appears, there were 0 %ullet wounds on the thora& of the "ictim that is * P inches apart Cased on the distance, could it not %e possi%le that such %ullet wounds could ha"e %een fired from an Armalite rifleN A: I cannot %e sure that it came from a 23 Cal or 3 35 Armalite D: Cased on what we ha"e e&hi%ited and the e"idence, the distance from the firer and the "ictim, the former used an Armalite 4ifle Could it not inflict the same wounds as found on the %od# of the "ictimN A: It will not entail the same wounds D: The distanceN A: I cannot sa# that it was fired from an Armalite 4ifle It could ha"e %een fired D: Gou cannot %e sure from what particular firearm that caused the wounds sustained %# the "ictimN A: Cased on the findin$s in the autops# report from - to 2 that could not %e the %asis what was the firearm used D: Ne"ertheless, an Armalite 4ifle can inflict that (ind of woundsN A: It could ha"e %een caused %ecause an Armalite 4ifle with A<< rounds per minute, once #ou press the tri$$er or tendenc# of it is that it will emit no less than *< to *- %ullets per second D: In a sin$le shot of an Armalite 4ifle, can that (ind and t#pe of injuries found on the "ictim %e sustainedN A: It could %e %ecause automatic shot and sin$le shot are one and the same &&& D: Gou said on cross'e&amination that the three %ullet wounds found on the %od# of the "ictim could ha"e %een caused %# an Armalite 4ifle fired in a sin$le shot sta$e ;# 1uestion is, will the other findin$s in the autops# report sustained 8sic9 the same conclusionN A: It will %e in contradiction with the findin$s Cased on the distance, ;'*5 is possi%le %ut %ased on the $un used, ;'*5 is not possi%le It could not %e the %asis in determinin$ D: Cased on the findin$s in the autops# report and the relati"e position that we ha"e shown in the demonstration, could it %e possi%le that the firearm used was an Armalite 4ifleN A: I cannot sa# -The ar$ument %# the defense that the lower court did not ta(e into consideration the

testimon# of De 6era as a whole is untena%le and completel# %elied %# the records of the case On the matter of wei$ht to %e $i"en to the testimon# of an e&pert, this Court has held as follows: E&pert testimon# no dou%t constitutes e"idence worth# of meritin$ consideration, althou$h not e&clusi"e on 1uestions of professional character The courts of justice, howe"er, are not %ound to su%mit their findin$s necessaril# to such testimon#H the# are free to wei$h them, and the# can $i"e or refuse to $i"e them an# "alue as proof, or the# can e"en counter%alance such e"idence with other elements of con"iction which ma# ha"e %een adduced durin$ the trial -0 Suffice it to state, e&pert opinion e"idence is to %e considered or wei$hed %# the court li(e an# other testimon#, in the li$ht of their own $eneral (nowled$e and e&perience upon the su%ject of in1uir# -2 The pro%ati"e force of the testimon# of an e&pert does not lie in a mere statement of the theor# or opinion of the e&pert, %ut rather in the aid that he can render to the courts in showin$ the facts which ser"e as a %asis for his criterion and the reasons upon which the lo$ic of his conclusion is founded -3 In addition, the inclusion or e&clusion %# the e&pert of factors or elements that should or should not %e considered in the determination of his opinion is to %e considered in determinin$ the wei$ht to %e attached to his testimon# In the present case, the factor that De 6era used as the %asis of his initial statement that a 23 cali%er $un was used in the shootin$, namel# the nature and character of the wounds sustained %# the "ictim, did not ta(e into account the distance and relati"e position of appellant Thus, when these points were raised durin$ cross'e&amination, De 6era no lon$er cate$oricall# ruled out the possi%ilit# that an armalite rifle was used On this score, it must %e remem%ered that the character of a $unshot wound depends upon the (ind of shot, the distance from the %od# and the $un, and the "elocit# with which the shot stri(es the %od# -5 Thus, the trial court was actin$ well within its discretion in not lendin$ full'faith and credence to the testimon# of De 6era which, on its face, is inconclusi"e as to the point %ein$ made, that is, that an armalite rifle could not ha"e possi%l# %een used in the (illin$ of 4oces Conse1uentl#, appellantEs attempts to destro# the prosecution witnessesE testimonies ha"e %een rendered futile A foundation must %e laid for showin$ %ias or prejudice of a witness in order to discredit his e"idence The a%sence of e"idence as to an improper moti"e actuatin$ the principal witness for the prosecution stron$l# tends to sustain the conclusion that no such improper moti"e e&isted -A Bhere there is nothin$ on the record to show that the witnesses were actuated %# an improper moti"e, their testimon# shall %e entitled to full faith and credit -/ For if an accused had reall# nothin$ to do with the crime, it is a$ainst the natural order of e"ents and of human nature and a$ainst the presumption of $ood faith that the prosecution witness would falsel# testif# a$ainst the former -.E"idence to %e %elie"ed must not onl# come from the mouth of a credi%le witness, %ut must %e credi%le in itself, such as the common e&perience of man(ind can appro"e as pro%a%le under the circumstances 0< Cased on the e"idence on record, the prosecution was a%le to esta%lish that appellant was issued a firearm and shot the "ictim thrice in the %od# on :ul# -/, *..< The wounds sustained %# 4oces were the direct and pro&imate result of his death lawphi* net In contrast, appellantEs ali%i and denials ha"e not %een pro"en %# positi"e, clear and satisfactor# e"idence It %ears stressin$ that ali%i is the wea(est of all defenses %ecause it is facile to fa%ricate and difficult to dispro"e, and is $enerall# rejected 0* For ali%i to prosper, it is not enou$h to pro"e that the defendant was somewhere else when the crime was committed, %ut he must li(ewise demonstrate that it was ph#sicall# impossi%le for him to ha"e %een at the scene of the crime at the time 0- In this case, appellant admits that on the

ni$ht in 1uestion, he approached the "ictim and the latter alle$edl# attempted to stri(e him In response thereto, appellant alle$edl# fired a warnin$ shot in the air then left after reprimandin$ the $roup ,owe"er, this defense cannot pre"ail o"er the positi"e identification of appellant as the author of the crime %# no less than three credi%le witnesses 00 !assion and o%fuscation similarl# cannot %e appreciated in fa"or of appellant To %e entitled to this miti$atin$ circumstance, the followin$ elements must %e present: 8*9 There should %e an act %oth unlawful and sufficient to produce such condition of mindH 8-9 the act that produced the o%fuscation was not far remo"ed from the commission of the crime %# a considera%le len$th of time, durin$ which the perpetrator mi$ht reco"er his normal e1uanimit# 02 The %are assertion that the "ictim and appellant had an ar$ument does not pro"ide justifia%le %asis for appl#in$ to him this miti$atin$ circumstance The cause that produced the passion and o%fuscation has not %een esta%lished nor pro"en %# clear and con"incin$ e"idence 03 The defense ad"ances mere speculations and conjectures to $loss o"er the fact that there is lac( of proof of the cause Courts are not permitted to render jud$ments upon $uesses or surmises Suspicion, it has %een said, cannot $i"e pro%ati"e force to testimon# which in itself is insufficient to esta%lish or justif# an inference of a particular fact 05 Finall#, this Court a$rees that treacher# attended the sla#in$ of 4oces This 1ualif#in$ circumstance can %e appreciated when the (illin$ was sudden and une&pected and the "ictim is not in a position to defend himself 0AThe essence of treacher# is the sudden and une&pected attac( %# the a$$ressor on an unsuspectin$ "ictim, depri"in$ the latter of an# real chance to defend himself, there%# ensurin$ its commission without ris( to the a$$ressor 0/ The e&istence or non'e&istence of treacher# is not dependent on the success of the assault, for treacher# ma# still %e appreciated e"en when the "ictim was forewarned of dan$er to his person Bhat is decisi"e is that the e&ecution of the attac( made it impossi%le for the "ictim to defend himself or to retaliate 0. Thus, e"en a frontal attac( could %e treacherous when une&pected and on an unarmed "ictim who would %e in no position to repel the attac( or a"oid it 2<lawphil net The swift unfoldin$ of e"ents placed the "ictim in a position where he could not effecti"el# defend himself from the assault on his person The defense cannot refute the e"idence of treacher# on the prete&t that the "ictim and his companions alread# saw appellant carr#in$ an armalite and approachin$ their $eneral direction It is a well'(nown fact in the communit# that appellant is a mem%er of the !N!'!ilar For appellant to %e seen %earin$ arms in the street, therefore, would not %e somethin$ out of the ordinar# nor would it cause panic and alarm Neither could the fact that appellant first fired his weapon into the air %e construed as sufficient warnin$ upon the "ictim and his companions such that the# would ha"e had the opportunit# to put up a defense The inter"al of time %etween the first warnin$ shot and the su%se1uent fatal shots is not sufficient to put the "ictim on $uard: D: Is it not true, ;r Bitness, that after the first shot fired %# Floro ;alejana upward there )were+ se"eral seconds inter"al %efore the second shot was fired Is that itN A: It did not ta(e ten 8*<9 seconds that the second shot was fired 2* To reiterate, treacher# ma# still %e appreciated e"en when the "ictim was forewarned of the dan$er to his person 2- Neither does the fact that other people were present durin$ the shootin$ ne$ate the attendance of treacher# The suddenness of the attac( pre"ented the "ictimEs unarmed companions from comin$ to his aid In li$ht of these premises, the Court finds no re"ersi%le error in the decision of the trial court The penalt# for murder under Article -2/ of the 4!C is reclusion perpetua to death Considerin$ that neither miti$atin$ or a$$ra"atin$ circumstances attended the commission of

the crime, the imposition %# the appellate court of reclusion perpetua is proper pursuant to Article 50, para$raph - of the 4!C ( EREFORE, the decision of the 4e$ional Trial Court, Cranch 3*, of Sorso$on in Criminal Case No .*'-/.5, as modified %# the Court of Appeals, findin$ appellant Floro ;alejana $uilt# %e#ond reasona%le dou%t of the crime of murder and imposin$ upon him the penalt# of reclusion perpetua is AFFI4;ED Appellant is li(ewise ordered to indemnif# the heirs of the "ictim in the amount of !3<,<<< for his death Costs a$ainst appellant SO ORDERED. NIEVES A. SAGUIGUIT VS. PEOPLE OF T E P ILIPPINES G.R. No. 1$$0%$ June )0, 2006 DE#ISION GAR#IA, J.* Assailed and sou$ht to %e set aside in this petition for re"iew under 4ule 23 of the 4ules of Court is the Decision)*+ dated :une -/, -<<< of the Court of Appeals 8CA9 in CAGH.E. CE Co. 22.;7! affirmin$ the decision rendered %# the 4e$ional Trial Court 84TC9 of An$eles Cit# con"ictin$ herein petitioner Nie"es Sa$ui$uit of "iolation 8ei$ht )/+ counts9 of +atas Pambansa I+.P.J +l(. 22, otherwise (nown as the Councin$ Chec(s =aw The facts: In ei$ht 8/9 separate informations filed with the 4TC of An$eles Cit#, thereat doc(eted as Criminal Case Nos .2'<0'--5 to .2'<0'-00, petitioner was char$ed with "iolations of the Councin$ Chec(s =aw All containin$ identical alle$ations as to the elements of the offense char$ed and differin$ onl# as re$ards the respecti"e amounts and due dates of the chec( in"ol"ed in each case, the ei$ht 8/9 informations uniforml# alle$ed: >That on or a%out the *st wee( of April, *..*, in the Cit# of An$eles, !hilippines, and within the jurisdiction of this ,onora%le Court, the a%o"e'named accused, did then and there willfull#, unlawfull# and feloniousl# draw and issue to the complainant ;4 E=;E4 E6ANGE=ISTA a Traders 4o#al Can( Chec( No RRRRRRRRRRRRRRRRR, in the amount of RRRRRRRRRRRRRRRRR, dated RRRRRRRRRRRRRRRRR, *..*, well (nowin$ and without informin$ the complainant that she has no sufficient funds with the drawee %an(, which chec( when deposited for pa#ment was dishonored for reason JACCO?NT C=OSEDJ and demand notwithstandin$ for more than fi"e 839 da#s from notice of dishonor, the accused failed and refused and still fails and refuses to redeem the said chec( to the dama$e and prejudice of the complainant E=;E4 E6ANGE=ISTA in the afore' mentioned amount of RRRRRRRRRRRRRRRR, !hilippine Currenc#@ After trial, the 4TC, in a decision dated ;arch *5, *../, adjud$ed petitioner $uilt# as char$ed in each information and accordin$l# sentenced her to suffer imprisonment and pa# fine and to indemnif# pri"ate complainant, thus: * In Crim Case No .2'<0'--5, one 8*9 #ear imprisonment and to

pa# a fine of !-5,3<< << with su%sidiar# imprisonment in case of insol"enc#, to indemnif# the complainant the amount of !-5,3<< << and to pa# the costH In Crim Case No .2'<0'--A, one 8*9 #ear imprisonment and to pa# a fine of !-/,<<< << with su%sidiar# imprisonment in case of insol"enc#, to indemnif# the complainant the amount of !-/,<<< << and to pa# the costH 0 In Crim Case No .2'<0'--/, one 8*9 #ear imprisonment and to pa# a fine of !-*,3<< << with su%sidiar# imprisonment in case of insol"enc#, to indemnif# the complainant the amount of !-*,3<< << and to pa# the costH 2 In Crim Case No .2'<0'--., one 8*9 #ear imprisonment and to pa# a fine of !-<,<<< << with su%sidiar# imprisonment in case of insol"enc#, to indemnif# the complainant the amount of !-<,<<< << and to pa# the costH 3 In Crim Case No .2'<0'-0<, one 8*9 #ear imprisonment and to pa# a fine of !-*,3<< << with su%sidiar# imprisonment in case of insol"enc#, to indemnif# the complainant the amount of !-*,3<< << and to pa# the costH 5 In Crim Case No .2'<0'-0*, one 8*9 #ear imprisonment and to pa# a fine of !-*,3<< << with su%sidiar# imprisonment in case of insol"enc#, to indemnif# the complainant the amount of !-*,3<< << and to pa# the costH A In Crim Case No .2'<0'-0-, one 8*9 #ear imprisonment and to pa# a fine of !-*,3<< << with su%sidiar# imprisonment in case of insol"enc#, to indemnif# the complainant the amount of !-*,3<< << and to pa# the costH and / In Crim Case No .2'<0'-00, one 8*9 #ear imprisonment and to pa# a fine of !--,3<< << with su%sidiar# imprisonment in case of insol"enc#, to indemnif# the complainant the amount of !--,3<< << and to pa# the cost )-+ ?na%le to accept the "erdict of $uilt, petitioner went on appeal to the CA whereat her appellate recourse was doc(eted as CAGH.E. CE CF. 22.;7 In the herein assailed Decision dated :une -/, -<<<, the appellate court affirmed that of the trial court: ( EREFORE, premises considered, the decision dated ;arch *5, *../ rendered %# the court a 'uo is here%# AFFIR'ED with costs a$ainst the appellant 8herein petitioner9 SO O4DE4ED )0+ ?ndaunted, petitioner interposed the instant recourse ur$in$ the Court not onl# to re"iew the factual determinations of the CA, %ut also to ree&amine e&tant jurisprudence on the Councin$ Chec(s =aw As the petitioner would put it: The instant case calls for a ree&amination and modification, if not a%andonment, of rulin$s to the effect that the mere issuance of a chec( which is su%se1uentl# dishonored ma(es the issuer lia%le for "iolation of C! Cl$ -re$ardless of the intent of the parties S !etitioner respectfull# su%mits that it was not the intention of the lawma(in$ %od#, S to ma(e the issuance of a %um chec( ipso facto a criminal offense alread#H there must %e an intent to commit the prohi%ited act, and su%ject chec( should %e issued to appl# on account or for

"alue This case also calls for a re"iew of the findin$s of the facts of the #A, as and %# wa# of e&ception to the rule that onl# 1uestions of law ma# %e raised in a petition for re"iew under 4ule 23 S !etitioner hum%l# su%mits that the CATs findin$s of fact are not supported %# e"idence and differ from those of the )4TC+ &&& )2+ 8?nderscorin$ in the ori$inalH citation omitted 9 The petition is de"oid of merit At its most %asic, what the petitioner as(s is for the Court to del"e into the polic# %ehind or wisdom of a statute,i.e , +.P. +l(. 22, which, under the doctrine of separation of powers, it cannot do, matters of le$islati"e wisdom %ein$ within the domain of Con$ress )3+ E"en with the %est of moti"es, the Court can onl# interpret and appl# the law and cannot, despite dou%ts a%out its wisdom, amend or repeal it Courts of justice ha"e no ri$ht to encroach on the prero$ati"es of lawma(ers, as lon$ as it has not %een shown that the# ha"e acted with $ra"e a%use of discretion And while the judiciar# ma# interpret laws and e"aluate them for constitutional soundness and to stri(e them down if the# are pro"en to %e infirm, this solemn power and dut# do not include the discretion to correct %# readin$ into the law what is not written therein )5+ ,ere, petitioner ma(es no attempt to challen$e the constitutionalit# of the Councin$ Chec(s =aw At %ottom, then, petitionerTs last and onl# remainin$ remed# is to see( an amendment of the law in 1uestion, a matter which should %e addressed to Con$ress no less For at the end of the da#, the le$islature is the primar# jud$e of the necessit#, ade1uac#, wisdom, reasona%leness and e&pedienc# of an# law )A+ &&& ?nder our s#stem of $o"ernment where powers are allocated to the three 809 $reat %ranches, onl# the =e$islature can remed# such deficienc# )in the law+, if an#, %# proper amendmentS )/+ 8Bords in %rac(et added9 !etitioner li(ewise calls for >modification, if not a%andonment@ of the rulin$s that hold issuers of %ad chec(s lia%le under the Councin$ Chec(s =aw re$ardless of intent ).+ The call must fall :udicial decisions appl#in$ or interpretin$ laws shall form a part of the le$al s#stem of the !hilippines )*<+ Stare decisis et non 'uieta movere. =et the decision stand and distur% not what is alread# settled The doctrine of stare decisis is a salutar# and necessar# rule Bhen the Court la#s down a principle of law applica%le to a certain set of facts, it must adhere to such principle and appl# it to all future cases where the facts in issue are su%stantiall# the same )**+ Else, the ideal of a sta%le jurisprudential s#stem can ne"er %e achie"ed Specificall#, the principle underl#in$ the concept of mala pro$ibita is the stare decisis $o"ernin$ a lon$ histor# of cases in"ol"in$ "iolations of the Councin$ Chec(s =aw &&& )T+he $ra"amen of the offense is the act of ma(in$ and issuin$ a worthless chec( or an# chec( that is dishonored upon its presentment for pa#ment and puttin$ them in circulation S The law was desi$ned to prohi%it

and alto$ether eliminate the deleterious and pernicious practice of issuin$ chec(s with insufficient or no credit or funds therefor Such practice is deemed a pu%lic nuisance, a crime a$ainst pu%lic order to %e a%ated The mere act of issuin$ a worthless chec(, is co"ered %# C ! -- It is a crime classified as malum pro$ibitum &&& The effects of the issuance of a worthless chec( transcends the pri"ate interests of the parties S The mischief it creates is not onl# a wron$ to the pa#ee or holder, %ut also an injur# to the pu%lic The harmful practice of puttin$ "alueless commercial papers in circulation, multiplied a thousandfold, can "er# well pollute the channels of trade and commerce, injure the %an(in$ s#stem and e"entuall# hurt the welfare of societ# and the pu%lic interest &&& U &&& &&& &&&

It %ears stressin$ that, whether a person is an accommodation part# is a 1uestion of intent Bhen the intent of the parties does not appear on the face of the chec(, it must %e ascertained in the li$ht of the surroundin$ facts and circumstances In"aria%l#, the tests applied are the purpose testand the proceeds test. &&& #$at t$e laK punis$es is t$e issuance itsel o a bouncin( c$ecL and not t$e purpose or K$ic$ it Kas issued or o t$e terms and conditions relatin( to its issuance. T$e mere act o issuin( a Kort$less c$ecL! K$et$er merely as an accommodation! is covered by +.P. 22 ,ence, the a$reement surroundin$ the issuance of a chec( is irrele"ant to the prosecution and con"iction of the petitioner &&& )*-+ Neither can the Court $rant petitionerTs >call or revieK o t$e indin(s o t$e acts o t$e CA." )*0+ Be need not %ela%or the %asic rule that the Court is not a trier of facts ;oreo"er, $rantin$ ar(uendo that petitionerTs "ersion of the facts is true U that her transaction was onl# with a certain Cernadette ;ontes and not with pri"ate complainant Elmer E"an$elista U the hard fact remains that she issued ei$ht 8/9 %ouncin$ chec(s that went into circulation In net effect, what she did was to %orrow from Eui*! to pollute the channels of trade and commerce, injurin$ the %an(in$ s#stem, and e"entuall# hurtin$ the welfare of societ# and the pu%lic interest Finall#, while we affirm petitionerTs con"iction, we deem it proper to modif# the penalt# imposed %# the trial court and effecti"el# sustained %# the CA, pursuant to the polic# esta%lished under Supreme Court 8SC9 Administrati"e Circular No *-'-<<< dated No"em%er -*, -<<<, on the su%ject: PECA/TM FFE ,IF/ATIFC FF >+P? +l(. 22, as clarified in SC Administrati"e Circular No *0'-<<* dated Fe%ruar# *2, -<<*, pertinentl# readin$ as follows: SC Administrati"e Circular No *-'-<<< Section * of C ! Cl$ -- S imposes the penalt# of imprisonment of not less than thirt# 80<9 da#s %ut not more than one 8*9 #ear O4 a fine of not less than %ut not more than dou%le the amount of the chec(, which fine shall in no case e&ceed !-<<,<<<, O4 %oth such fine and imprisonment at the discretion of the court In its decision in Eduardo ,aca " Court o Appeals 8G 4 No *0*A*2, *5 No"em%er *../, -./ SC4A 535, 5529 the Supreme Court S modified the

sentence imposed for "iolation of C ! Cl$ -- %# deletin$ the penalt# of imprisonment and imposin$ onl# the penalt# of fine in an amount dou%le the amount of the chec( In justification thereof, the Court said: !etitioner are first'time offenders The# are Filipino entrepreneurs who presuma%l# contri%ute to the national econom# Apparentl#, the# %rou$ht this appeal, %elie"in$ in all $ood faith, althou$h mista(enl# that the# had not committed a "iolation of C ! Cl$ -- Otherwise the# could simpl# ha"e accepted the jud$ment of the trial court and applied for pro%ation to e"ade a prison term It would %est ser"e the ends of criminal justice if in fi&in$ the penalt# within the ran$e of discretion allowed %# V*, par *, the same philosoph# underl#in$ the Indeterminate Sentence =aw is o%ser"ed, namel#, that of redeemin$ "alua%le human material and pre"entin$ unnecessar# depri"ation of personal li%ert# and economic usefulness with due re$ard to the protection of the social order In this case we %elie"e that a fine in an amount e1ual to dou%le the amount of the chec( in"ol"ed is an appropriate penalt# to impose on each of the petitioners In the recent case of Eosa /im " People o t$e P$ilippines S the Supreme Court En +anc, appl#in$ ,aca also deleted the penalt# of imprisonment and sentenced the drawer of the %ounced chec( to the ma&imum of the fine allowed %# C ! Cl$ --, &&& )*2+ SC Administrati"e Circular No *0'-<<* The clear tenor and intention of Administrative Circular Co. .2G2777 is not to remo"e imprisonment as an alternati"e penalt#, %ut to la# down a rule of preference in the application of the penalties pro"ided for in +.P. +l(. 22. The pursuit of this purpose clearl# does not foreclose the possi%ilit# of imprisonment for "iolations of C ! Cl$ -- Neither does it defeat the le$islati"e intent %ehind the law Thus, Administrative Circular Co. .2G2777 esta%lishes a rule of preference in the application of the penal pro"isions of +.P. +l(. 22 such that where the circumstances of %oth the offense and the offender clearl# indicate $ood faith or a clear mista(e of fact without taint of ne$li$ence, the imposition of a fine alone should %e considered as the more appropriate penalt# Needless to sa#, the determination of whether the circumstances warrant the imposition of a fine alone rests solel# upon the :ud$e )*3+ Should the :ud$e decide that imprisonment is the more appropriate penalt#, Administrative Circular Co. .2G 2777 ou$ht not %e deemed a hindrance )*5+ It is, therefore, understood that: * Administrative Circular .2G2777 does not remo"e imprisonment as an alternati"e penalt# for "iolations of +.P. +l(. 229

The :ud$es concerned ma#, in the e&ercise of sound discretion, and ta(in$ into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would %est ser"e the interests of justice or whether for%earin$ to impose imprisonment would depreciate the seriousness of the offense, wor( "iolence on the social order, or otherwise %e contrar# to the imperati"es of justiceH )*A+ 0 Should onl# a fine %e imposed and the accused %e una%le to pa# the fine, there is no le$al o%stacle to the application of the Eevised Penal Code pro"isions on su%sidiar# imprisonment Bhile the decisions of the trial court and that of the CA dated ;arch *5, *../ and :une -/, -<<<, respecti"el#, were promul$ated %efore SC Administrati"e Circular No *-'-<<< and its su%se1uent clarificator# circular too( effect, there is no le$al impediment to their application under the premises, fa"ora%le as the# are to the accused Bhat is more, the pleadin$s %efore us contain no indication that petitioner was a ha%itual delin1uent or recidi"ist, a circumstance stron$l# ar$uin$ for the application, as we did in Moun( v. Court o Appeals![18] of the latest stare decisis towards modif#in$ the penalties imposa%le herein In an earlier case li(ewise on all fours with this case, the Court held: ,owe"er, in "iew of )SC+ Administrati"e Circular No *-'-<<<, as clarified %# Administrati"e Circular No *0'-<<*, esta%lishin$ a rule of preference in the application of the penalties pro"ided for in +.P. +l(. 22H and the recommendation of the Solicitor General in its Comment that the polic# laid down in ,aca vs. Court o Appeals,)*.+ and /im vs. People,)-<+ of redeemin$ "alua%le human material and pre"entin$ unnecessar# depri"ation of personal li%ert# and economic usefulness, %e considered in fa"or of petitioner who is not shown to %e a ha%itual delin1uent or a recidi"ist, we find that the penalt# imposed %# the Court of Appeals should %e modified %# deletin$ the penalt# of imprisonment and imposin$ onl# a fine of &&& )-*+ ( EREFORE, the decision appealed from is AFFIR'ED with 'ODIFI#ATION that petitioner Nie"es Sa$ui$uit is here%# U *9 Sentenced to pa# a FINE e1ui"alent to dou%le the amount of the chec( in"ol"ed in e!+, of Criminal Cases Nos .2'<0'--5 to .2'<0'-00 with su%sidiar# imprisonment not to e&ceed si& 859 months in e!+, of said cases in the e"ent of insol"enc#, pursuant to para$raph -, Article 0. of the 4e"ised !enal CodeH and -9 Indemnif# the pri"ate complainant with the total amount of the su%ject chec(s plus si& percent 85W9 interest from date of filin$ of the informations until finalit# of this Decision, the amount of which, inclusi"e the interest, is su%ject to twel"e percent 8*-W9 interest per annum until full# paid SO ORDERED G.R. No. 170)08 '!&+, 7, 2008 GALO 'ONGE VS. PEOPLE OF T E P ILIPPINES RESOLUTION

TINGA, J : This is a !etition for 4e"iew)*+ under 4ule 23 of the 4ules of Court where%# petitioner Galo ;on$e 8petitioner9 assails the Decision)-+ of the Court of Appeals dated -/ :une -<<3 which affirmed his con"iction as well as the dischar$e of accused Ed$ar!otencio 8!otencio9 as a state witness The factual antecedents follow On -< :ul# *..2, petitioner and !otencio were found %# %aran$a# tanods Serdan and ;olina in possession of and transportin$ three 809 pieces of maho$an# lum%er in Caran$a# Santo Domin$o, Iri$a Cit# 4i$ht there and then, the tanods demanded that the# %e shown the re1uisite permit andMor authorit# from the Department of En"ironment and Natural 4esources 8DEN49 %ut neither petitioner nor !otencio was a%le to produce an# )0+ !etitioner fled the scene in that instant whereas!otencio was %rou$ht to the police station for interro$ation, and thereafter, to the DEN4'Communit# En"ironment and Natural 4esources Office 8DEN4'CEN4O9 )2+ The DEN4' CEN4O issued a sei7ure receipt for the three pieces of lum%er indicatin$ that the items, totalin$ AA %oard feet of maho$an# "alued at !*,.-3 <<, had %een sei7ed from !otencio )3+ =ater on, petitioner was arrested, %ut !otencioEs wherea%outs had %een un(nown since the time of the sei7ure)5+ until he surfaced on 0 :anuar# *../ )A+ An information was filed with the 4e$ional Trial Court of Iri$a Cit#, Cranch 03 char$in$ petitioner and !otencio with "iolation of Section 5/)/+ of !residential Decree 8! D 9 No A<3, ).+ as amended %# E&ecuti"e Order 8E O 9 No -AA, series of *..A Theinculpator# portion of the information reads: That on or a%out the -<th da# of ):ul# *..2+, at a%out .:0< oEcloc( in the mornin$, in Caran$a# Sto Domin$o, Iri$a Cit#, !hilippines and within the jurisdiction of this ,onora%le Court, the a%o"e'named accused, conspirin$, confederatin$ with each other, without an# authorit# of law, nor armed with necessar# permitMlicense or other documents, with intent to $ain, did then and there willfull#, unlawfull# and feloniousl#, transport and ha"e in their possession three 809 pieces of ;aho$an# of assorted )dimension+ with a)n+ appropriate "olume of se"ent#'se"en 8AA9 %oard feet or point ei$hteen 8< */9 cu%ic meter with a total mar(et "alue of !*,.-3 <<, !hilippine currenc#, to the dama$e and prejudice of the DEN4 in the aforesaid amount CONT4A4G TO =AB )*<+ At the -5 No"em%er *..5 arrai$nment, petitioner entered a ne$ati"e plea )**+ Trial ensued On *A :une *..A, Serdan testified on the circumstances of the apprehension %ut for failin$ to appear in court for cross e&amination, his testimon# was stric(en out )*-+ On *5 :anuar# *../, !otencio was dischar$ed to %e used as a state witness on motion of the prosecutor )*0+ Accordin$l#, he testified on the circumstances of the arrest %ut claimed that for a promised fee he was merel# re1uested %# petitioner, the owner of the lo$, to assist him in haulin$ the same down from the mountain !otencioEstestimon# was materiall# corro%orated %# ;olina )*2+ !etitioner did not contest the alle$ations, e&cept that it was not he %ut!otencio who owned the lum%er ,e lamented that contrar# to what !otencio had stated in court, it was the latter who hired him to %rin$ the lo$ from the site to the sawmill where the same was to %e sawn into pieces )*3+ The trial court found petitioner $uilt# as char$ed !etitioner was imposed nine 8.9

#ears, four 829 months and one 8*9 da# to ten 8*<9 #ears and ei$ht 8/9 months of prision mayor in its medium and ma&imum periods and ordered to pa# the costs )*5+ A$$rie"ed, petitioner ele"ated the case to the Court of Appeals where he challen$ed the dischar$e of !otencio as a state witness on the $round that the latter was not the least $uilt# of the offense and that there was no a%solute necessit# for his testimon# )*A+ The appellate court dismissed this challen$e and affirmed the findin$s of the trial court ,owe"er, it modified the penalt# to an indeterminate prison sentence of si& 859 #ears of prision correccional as minimum to ten 8*<9 #ears and ei$ht 8/9 months of prisionmayor as ma&imum )*/+ ,is motion for reconsideration was denied, hence the present appeal where%# petitioner reiterates his challen$e a$ainst the dischar$e of !otencio The petition is utterl# unmeritorious !etitioner and !otencio were cau$ht in la(rante delicto transportin$, and thus in possession of, processed maho$an# lum%er without proper authorit# from the DEN4 !etitioner has ne"er denied this fact Cut in his attempt to e&onerate himself from lia%ilit#, he claims that it was !otencio, the owner of the lum%er, who re1uested his assistance in haulin$ the lo$ down from the mountain and in transportin$ the same to the sawmill for processin$ The contention is una"ailin$ Section 5/ of ! D No A<3, as amended %# E O No -AA, criminali7es two distinct and separate offenses, namel#: 8a9 the cuttin$, $atherin$, collectin$ and remo"in$ of tim%er or other forest products from an# forest land, or tim%er from aliena%le or disposa%le pu%lic land, or from pri"ate land without an# authorit#H and 8%9 the possession of tim%er or other forest products without the le$al documents re1uired under e&istin$ laws and re$ulations )*.+ DEN4 Administrati"e Order No 3. series of *..0 specifies the documents re1uired for the transport of tim%er and other forest products Section 0 thereof materiall# re1uires that the transport of lum%er %e accompanied %# a certificate of lum%er ori$in dul# issued %# the DEN4'CEN4O In the first offense, the le$alit# of the acts of cuttin$, $atherin$, collectin$ or remo"in$ tim%er or other forest products ma# %e pro"en %# the authori7ation dul# issued %# the DEN4 In the second offense, howe"er, it is immaterial whether or not the cuttin$, $atherin$, collectin$ and remo"al of forest products are le$al precisel# %ecause mere possession of forest products without the re1uisite documents consummates the crime )-<+ It is thus clear that the fact of possession %# petitioner and !otencio of the su%ject maho$an# lum%er and their su%se1uent failure to produce the re1uisite le$al documents, ta(en to$ether, has alread# $i"en rise to criminal lia%ilit# under Section 5/ of ! D No A<3, particularl# the second act punished thereunder The direct and affirmati"e testimon# of ;olina and !otencio as a state witness on the circumstances surroundin$ the apprehension well esta%lishes petitionerEs lia%ilit# !etitioner cannot ta(e refu$e in his denial of ownership o"er the pieces of lum%er found in his possession nor in his claim that his help was merel# solicited %#!otencio to pro"ide the latter assistance in transportin$ the said lum%er ! D No A<3 is a special penal statute that punishes acts essentiall# malum pro$ibitum. As such, in prosecutions under its pro"isions, claims of $ood faith are %# no means relia%le as defenses %ecause the offense is complete and criminal lia%ilit# attaches once the prohi%ited acts are committed )-*+ In other words, mere possession of tim%er or other forest products without the proper le$al documents, e"en a%sent malice or criminal intent, is ille$al )--+ It would therefore ma(e no difference at all whether it was petitioner himself or !otencio who owned the su%ject pieces of lum%er

Considerin$ the o"erwhelmin$ %od# of e"idence pointin$ to nothin$ less than petitionerEs $uilt of the offense char$ed, there is no co$ent reason to re"erse his con"iction !etitionerEs challen$e a$ainst !otencioEs dischar$e as a state witness must also fail Not a few cases esta%lished the doctrine that the dischar$e of an accused so he ma# turn state witness is left to the e&ercise of the trial courtEs sound discretion)-0+ limited onl# %# the re1uirements set forth in Section *A,)-2+ 4ule **. of the 4ules of Court Thus, whether the accused offered to %e dischar$ed appears to %e the least $uilt# and whether there is o%jecti"el# an a%solute necessit# for his testimon# are 1uestions that lie within the domain of the trial court, it %ein$ competent to resol"e issues of fact The discretionar# jud$ment of the trial court with respect this hi$hl# factual issue is not to %e interfered with %# the appellate courts e&cept in case of $ra"e a%use of discretion )-3+ No such $ra"e a%use is present in this case Suffice it to sa# that issues relati"e to the dischar$e of an accused must %e raised in the trial court as the# cannot %e addressed for the first time on appeal )-5+ ;oreo"er and more importantl#, an order dischar$in$ an accused from the information in order that he ma# testif# for the prosecution has the effect of an ac1uittal )-A+ Once the dischar$e is ordered %# the trial court, an# future de"elopment showin$ that an# or all of the conditions pro"ided in Section *A, 4ule **. ha"e not actuall# %een fulfilled will not affect the le$al conse1uence of an ac1uittal )-/+ An# wittin$ or unwittin$ error of the prosecution, therefore, in mo"in$ for the dischar$e and of the court in $rantin$ the motionIno 1uestion of jurisdiction %ein$ in"ol"edIwill not depri"e the dischar$ed accused of the %enefit of ac1uittal and of his ri$ht a$ainst dou%le jeopard# A contrar# rule would certainl# %e unfair to the dischar$ed accused %ecause he would then %e faulted for a failure attri%uta%le to the prosecutor It is inconcei"a%le that the rule has adopted the a%horrent le$al polic# of placin$ the fate of the dischar$ed accused at the merc# of an#one who ma# handle the prosecution )-.+ Indeed, the onl# instance where the testimon# of a dischar$ed accused ma# %e disre$arded is when he deli%eratel# fails to testif# truthfull# in court in accordance with his commitment,)0<+ as pro"ided for in Section */, 4ule **. !otencio li"ed up to his commitment and for that reason, petitionerEs challen$e a$ainst his dischar$e must %e dismissed B,E4EFO4E, the petition is DENIED and the assailed decision of the Court of Appeals is AFFI4;ED SO O4DE4ED G.R. No. 1280-6 J!nu!&y 20, 1--PANFILO '. LA#SON, .e/0/0one&, "s T E E1E#UTIVE SE#RETAR2, T E SANDIGAN3A2AN, OFFI#E OF T E SPE#IAL PROSE#UTOR, T E DEPART'ENT OF JUSTI#E, '2RNA A3ALORA, NENITA ALAP4AP, I'ELDA PAN# O 'ONTERO, !n" T E PEOPLE OF T E P ILIPPINES, respondent RO'EO '. A#OP AND FRAN#IS#O G. ZU3IA, JR., petitioner'inter"enors 'ARTINEZ, J.: The constitutionalit# of Sections 2 and A of 4epu%lic Act No /-2. I an act which further defines the jurisdiction of the Sandi$an%a#an I is %ein$ challen$ed in this petition for prohi%ition and mandamus !etitioner !anfilo =acson, joined %# petitioners'inter"enors 4omeo Acop and Francisco Xu%ia, :r , also see(s to pre"ent the Sandi$an%a#an from

proceedin$s with the trial of Criminal Cases Nos -0<2A'-0<3A 8for multiple murder9 a$ainst them on the $round of lac( of jurisdiction The antecedents of this case, as $athered from the partiesT pleadin$s and documentar# proofs, are as follows: In the earl# mornin$ of ;a# */, *..3, ele"en 8**9 persons %elie"ed to %e mem%ers of the Quraton$ Calelen$ $an$, reportedl# an or$ani7ed crime s#ndicate which had %een in"ol"ed in a spate of %an( ro%%eries in ;etro ;anila, where slain alon$ Commonwealth A"enue in Due7on Cit# %# elements of the Anti'Can( 4o%%er# and Intelli$ence Tas( Group 8AC4ITG9 headed %# Chieff Superintendent :ewel Canson of the !hilippine National !olice 8!N!9 The AC4ITG was composed of police officers from the Traffic ;ana$ement Command 8T;C9 led %# petitioner'inter"enor Senior Superintendent Francisco Xu%ia, :r H !residential Anti'Crime Commission I Tas( Force ,a%a$at 8!ACC'TF,9 headed %# petitioner Chief Superintendent !anfilo ; =acsonH Central !olice District Command 8C!DC9 led %# Chief Superintendent 4icardo de =eonH and the Criminal In"esti$ation Command 8CIC9 headed %# petitioner' inter"enor Chief Superintendent 4omeo Acop Actin$ on a media e&pose of S!O- Eduardo delos 4e#es, a mem%er of the CIC, that what actuall# transpired at dawn of ;a# */, *..3 was a summar# e&ecution 8or a ru% out9 and not a shoot'out %etween the Quraton$ Calelen$ $an$ mem%ers and the AC4ITG, Om%udsman Aniano Desierto formed a panel of in"esti$ators headed %# the Deput# Om%udsman for ;ilitar# Affairs, Cien"enido Clancaflor, to in"esti$ate the incident This panel later a%sol"ed from an# criminal lia%ilit# all the !N! officers and personal alle$edl# in"ol"ed in ;a# */, *..3 incident, with a findin$ that the said incident was a le$itimate police operation 1 ,owe"er, a re"iew %oard led %# O"erall Deput# Om%udsman Francisco 6illa modified modified the Clancaflor panelTs findin$ and recommended the indictment for multiple murder a$ainst twent#'si& 8-59 respondents, includin$ herein petitioner and inter"enors The recommendation was appro"ed %# the Om%udsman e&cept for the withdrawal of the char$es a$ainst Chief Supt 4icardo de =eon Thus, on No"em%er -, *..3, petitioner !anfilo =acson was amon$ those char$ed as principal in ele"en 8**9 information for murder 2 %efore the Sandi$an%a#anTs Second Di"ision, while inter"enors 4omeo Acop and Francisco Xu%ia, :r were amon$ those char$ed in the same informations as accessories after'in'the'fact ?pon motion %# all the accused in the ** information, ) the Sandi$an%a#an allowed them to file a motion for reconsideration of the Om%udsmanTs action $ After conductin$ a rein"esti$ation, the Om%udsman filed on ;arch *, *..5 ele"en 8**9 amended informations %%efore the Sandi$an%a#an, wherein petitioner was char$ed onl# as an accessor#, to$ether with 4omeo Acop and Francisco Xu%ia, :r and other One of the accused 6 was dropped from the case On ;arch 3'5, *..5, all the accused filed separate motions 1uestionin$ the jurisdiction of the Sandi$an%a#an, assertin$ that under the amended informations, the cases fall within the jurisdiction of the 4e$ional Trial Court pursuant to Section - 8para$raphs a and c9 of 4epu%lic Act No A.A3 7 The# contend that the said law limited the jurisdiction of the Sandi$an%a#an to cases where one or more of the Jprincipal accusedJ are $o"ernment officials with Salar# Grade 8SG9 -A or hi$her, or !N! officials with the ran( of Chief Superintendent 8Cri$adier General9 or hi$her The hi$hest ran(in$ principal accused in the amended informations has the ran( of onl# a Chief Inspector, and none has the e1ui"alent of at least SG -A Thereafter, in a 4esolution 8 dated ;a# /, *..5 8promul$ated on ;a# ., *..59, penned %# :ustice Demetriou, with :ustices =a$man and de =eon concurrin$, and :ustices Calajadia and

Garchitorena dissentin$, - the Sandi$an%a#an admitted the amended information and ordered the cases transferred to the Due7on Cit# 4e$ional Trial Court which has ori$inal and e&clusi"e jurisdiction under 4 A A.A3, as none of the principal accused has the ran( of Chief Superintendent or hi$her On ;a# *A, *..5, the Office of the Special !rosecutor mo"ed for a reconsideration, insistin$ that the cases should remain with the Sandi$an%a#an This was opposed %# petitioner and some of the accused Bhile these motions for reconsideration were pendin$ resolution, and e"en %efore the issue of jurisdiction cropped up with the filin$ of the amended informations on ;arch *, *..5, ,ouse Cill No --.. 10 and No *<.2 118sponsored %# 4epresentati"es Edcel C =a$man and =a$man and Neptali ; Gon7ales II, respecti"el#9, as well as Senate Cill No /22 12 8sponsored %# Senator Neptali Gon7ales9, were introduced in Con$ress, definin$ e&pandin$ the jurisdiction of the Sandi$an%a#an Specificall#, the said %ills sou$ht, amon$ others, to amend the jurisdiction of the Sandi$an%a#an %# deletin$ the word JprincipalJ from the phrase Jprincipal accusedJ in Section - 8para$raphs a and c9 of 4 A No A.A3 These %ills were consolidated and later appro"ed into law as 4 A No /-2. 1) %# the !resident of the !hilippines on Fe%ruar# 3, *..A Su%se1uentl#, on ;arch 3, *..A, the Sandi$an%a#an promul$ated a 4esolution 1$ den#in$ the motion for reconsideration of the Special !rosecutor, rulin$ that it Jstands pat in its resolution dated ;a# /, *..5 J On the same da# 1% the Sandi$an%a#an issued and ADDEND?; to its ;arch 3, *..A 4esolution, the pertinent portion of which reads: After :ustice =a$man wrote the 4esolution and :ustice Demetriou concurred in it, %ut %efore :ustice de =eon :r rendered his concurrin$ and dissentin$ opinion, the le$islature enacted 4epu%lic Act /-2. and the !resident of the !hilippines appro"ed it on Fe%ruar# 3, *..A Considerin$ the pertinent pro"isions of the new law, :ustices =a$man and Demetriou are now in fa"or of $rantin$, as the# are now $rantin$, the Special !rosecutorTs motion for reconsideration :ustice de =eon has alread# done so in his concurrin$ and dissentin$ opinion &&& &&& &&& Considerin$ that three of the accused in each of these cases are !N! Chief Superintendents: namel#, :ewel T Canson, 4omeo ; Acop and !anfilo ; =acson, and that trial has not #et %e$un in all these cases I in fact, no order of arrest has %een issued I this court has competence to ta(e co$ni7ance of these cases To recapitulate, the net result of all the fore$oin$ is that %# the "ote of 0 of -, the court admitted the Amended Informations in these cases %# the unanimous "ote of 2 with * neither concurrin$ not dissentin$, retained jurisdiction to tr# and decide the cases 16 8Empahasis supplied9 !etitioner now 1uestions the constitutionalit# of Section 2 of 4 A No /-2., includin$ Section A thereof which pro"ides that the said law Jshall appl# to all cases pendin$ in an# court o"er which trial has not %e$un as to the appro"al hereof J !etitioner ar$ues that: a9 The 1uestioned pro"isions of the statute were introduced %# the authors thereof in %ad faith as it was made to precisel# suit the situation in which petitionerTs cases were in at the Sandi$an%a#an %# restorin$ jurisdiction thereof to it, there%# "iolatin$ his ri$ht to procedural due process and the e1ual protection clause of the Constitution Further, from the wa# the Sandi$an%a#an

has foot'dra$$ed for nine 8.9 months the resolution of a pendin$ incident in"ol"in$ the transfer of the cases to the 4e$ional Trial Court, the passa$e of the law ma# ha"e %een timed to o"erta(e such resolution to render the issue therein moot, and frustrate the e&ercise of petitionerTs "ested ri$hts under the old Sandi$an%a#an law 84A A.A39 %9 4etroacti"e application of the law is plan from the fact that it was a$ain made to suit the peculiar circumstances in which petitionerTs cases were under, namel#, that the trial had not #et commenced, as pro"ided in Section A, to ma(e certain that those cases will no lon$er %e remanded to the Due7on Cit# 4e$ional Trial Court, as the Sandi$an%a#an alone should tr# them, thus ma(in$ it an e) post acto le$islation and a denial of the ri$ht of petitioner as an accused in Criminal Case Nos -0<2A'-0<3A to procedural due process c9 The title of the law is misleadin$ in that it contains the aforesaid JinnocuousJ pro"isions in Sections 2 and A which actuall# e&pands rather than defines the old Sandi$an%a#an law 84A A.A39, there%# "iolatin$ the one'title one'su%ject re1uirement for the passa$e of statutes under Section -5 8*9, Article 6I of the Constitution 17 For their part, the inter"enors, in their petition'in'inter"ention, add that Jwhile 4epu%lic Act No /-2. innocuousl# appears to ha"e merel# e&panded the jurisdiction of the Sandi$an%a#an, the introduction of Section 2 and A in said statute impressed upon it the character of a class le$islation and an e)Gpost acto statute intended to appl# specificall# to the accused in the Quraton$ Calelen$ case pendin$ %efore the Sandi$an%a#an 18 The# further ar$ued that if their case is tried %efore the Sandi$an%a#an their ri$ht to procedural due process would %e "iolated as the# could no lon$er a"ail of the two'tiered appeal to the Sandi$an%a#an, which the# ac1uired under 4 A A.A3, %efore recourse to the Supreme Court Coth the Office of the Om%udsman and the Solicitor'General filed separate pleadin$s in support of the constitutionalit# of the challen$ed pro"isions of the law in 1uestion and pra#in$ that %oth the petition and the petition'in'inter"ention %e dismissed This Court then issued a 4esolution 1- re1uirin$ the parties to file simultaneousl# within a none&tendi%le period of ten 8*<9 da#s from notice thereof additional memoranda on the 1uestion of whether the su%ject amended informations filed a Criminal Case Nos -0<2A' -0<3A sufficientl# alle$e the commission %# the accused therein of the crime char$ed within the meanin$ Section 2 b of 4epu%lic Act No /-2., so as to %rin$ the said cases within the e&clusi"e ori$inal jurisdiction of the Sandi$an%a#an The parties, e&cept for the Solicitor General who is representin$ the !eople of the !hilippines, filed the re1uired supplemental memorandum within the none&tendi%le re$lementar# period The esta%lished rule is that e"er# law has in its fa"or the presumption of constitutionalit#, and to justif# its nullification there must %e a clear and une1ui"ocal %reach of the Constitution, not a dou%tful and ar$umentati"e one 20 The %urden of pro"in$ the in"alidit# of the law lies with those who challen$e it That %urden, we re$ret to sa#, was not con"incin$l# dischar$ed in the present case The creation of the Sandi$an%a#n was mandated in Section 3, Article OIII of the *.A0 Constitution, which pro"ides: Sec 3 The Catasan$ !am%ansa shall create a special court, to %e (nown as Sandi$an%a#an, which shall ha"e jurisdiction o"er criminal and ci"il cases in"ol"in$ $raft and corrupt practices and such other offenses committed %# pu%lic officers and emplo#ees includin$ those in $o"ernment'owned or controlled

corporations, in relation to their office as ma# %e determined %# law The said special court is retained in the new 8*./A9 Constitution under the followin$ pro"isions in Article OI, Section 2: Sec 2 The present anti'$raft court (nown as the Sandi$an%a#an shall continue to function and e&ercise its jurisdiction as now or hereafter ma# %e pro"ided %# law !ursuant to the constitutional mandate, !residential Decree No *2/5 21 created the Sandi$an%a#an Thereafter, the followin$ laws on the Sandi$an%a#an, in chronolo$ical order, were enacted: ! D No *5<5, 22 Section -< of Catas !am%ansa Cl$ *-0, 2) ! D No */5<, 2$ ! D No */5*, 2% 4 A No A.A3, 26 and 4 A No /-2. 27 ?nder the latest amendments introduced %# Section 2 of 4 A No /-2., the Sandi$an%a#an has jurisdiction o"er the followin$ cases: Sec 2 Section 2 of the same decree )! D No *5<5, as amended+ is here%# further amended to read as follows: Sec 2 :urisdiction I The Sandi$an%a#an shall e&ercise e&clusi"e ori$inal jurisdiction in all cases in"ol"in$: a 6iolations of 4epu%lic Act No 0<*., as amended, otherwise (nown as the Anti' Graft and Corrupt !ractices Act, 4epu%lic Act No *0A., and Chapter II, Section -, Titile 6II, Coo( II of the 4e"ised !enal Code, where one or more o t$e accused are officials occup#in$ the followin$ positions in the $o"ernment, whether in a permanent, actin$ or interim capacit#, at the time of the commission of the offense: 8*9 Officials of the e&ecuti"e %ranch occup#in$ the positions of re$ional director and hi$her, otherwise classified as Grade J-AJ and hi$her, of the Compensation and !osition Classification Act of *./. 84epu%lic Act No 5A3/9, specificall# includin$: 8a9 !ro"incial $o"ernors, "ice'$o"ernors, mem%ers of the san$$unian$ panlalawi$an, and pro"incial treasurers, assessors, en$ineers, and other pro"incial department headsH 8%9 Cit# ma#ors, "ice'ma#ors, mem%ers of the san$$unian$ panlun$sod, cit# treasurers, assessors, en$ineers, and other cit# department headsH 8c9 Officials of the diplomatic ser"ice occup#in$ the position of consul and hi$herH 8d9 !hilippine Arm# and air force colonels, na"al captains, and all officers of hi$her ran(H 8e9 Officers of the !hilippines National !olice while occup#in$ the position of provincial director and those holdin$ the ran( of senior superintendent or $i($er 8f9 Cit# of pro"incial prosecutors and their assistants, and officials and prosecutors in the Office of the Om%udsman and special prosecutorH 8$9 !residents, directors or trustees or mana$ers of $o"ernment' owned or controlled corporations, state uni"ersities or educational institutions or foundationsH 8-9 ;em%ers of Con$ress or officials thereof classified as'Grade J-AJ and up

under the Compensation and !osition Classification Act of *./.H 809 ;em%ers of the judiciar# without prejudice to the pro"isions of the ConstitutionH 829 Chairman and mem%ers of the Constitutional Commissions, without prejudice to the pro"isions of the ConstitutionH 839 All other national and local officials classified as Grade J-AJ or hi$her under the Compensation and !osition Classification Act of *./. % Ft$er o enses or elonies whether simple or comple&ed with other crimes committed %# the public o icials and employees mentioned in Subsection a of this section in relation to t$eir o ice c Ci"il and criminal cases filed pursuant to and connection with E&ecuti"e Orders Nos *,-, *2 and *2'A, issued in *./5 In cases where none of the accused are occup#in$ positions correspondin$ to salar# Grade J-AJ or hi$her, as prescri%ed in the said 4epu%lic Act 5A3/, or militar# and !N! officers mentioned a%o"e, e&clusi"e ori$inal jurisdiction thereof shall %e "ested in the proper re$ional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case ma# %e, pursuant to their jurisdictions as pri"ided in Catas !am%ansa Cl$ *-., as amended The Sandi$an%a#an shall e&ercise e&clusi"e appellate jurisdiction o"er final jud$ments, resolutions or orders of re$ional trial courts whether in the e&ercise of their own ori$inal jurisdiction or of their appellate jurisdiction as herein pro"ided The Sandi$an%a#an shall ha"e e&clusi"e ori$inal jurisdiction o"er petitions of the issuance of the writs of mandamus, prohi%ition, certiorari, ha%eas corpus, injunctions, and other ancillar# writs and processes in aid of its appellate jurisdiction and o"er petitions of similar nature, includin$ 'uo Karranto, arisin$ or that ma# arise in cases filed or which ma# %e filed under E&ecuti"e Order Nos *, -, *2 and *2'A, issued in *./5: Provided, That the jurisdiction o"er these petitions shall not %e e&clusi"e of the Supreme Court The procedure prescri%ed in Catas !am%ansa Cl$ *-., as well as the implementin$ rules that the Supreme Court has promul$ated and ma# hereafter promul$ate, relati"e to appealsMpetitions for re"iew to the Court of Appeals, shall appl# to appeals and petitions for re"iew filed with the Sandi$an%a#an In all cases ele"ated to the Sandi$an%a#an and from the Sandi$an%a#an to the Supreme Court, the Office of the Om%udsman, throu$h its special prosecutor, shall represent the !eople of the !hilippines, e&cept in cases filed pursuant to E&ecuti"e Order Nos *, -, *2, and 2'A, issued in *./5 In case pri"ate indi"iduals are char$ed as co'principals, accomplices or accessories with the pu%lic officers or emplo#ee, includin$ those emplo#ed in $o"ernment'owned or controlled corporations, the# shall %e tried jointl# with said pu%lic officers and emplo#ees in the proper courts which shall e&ercise e&clusi"e jurisdiction o"er them &&& &&& &&& 8Emphasis supplied9 Sec A of 4 A No /-2. states: Sec A Transitor# pro"ision I This act shall appl# to all cases pendin$ in an#

court o"er which trial has not %e$un as of the appro"al hereof 8Emphasis supplied9 The Sandi$an%a#an law prior to 4 A /-2. was 4 A A.A3 Section - of 4 A A.A3 pro"ides: Sec - Section 2 of the same decree )!residential Decree No *5<5, as amended9 is here%# further amended to read as follows: Sec 2 :urisdiction I The Sandi$an%a#an shall e&ercise e&clusi"e ori$inal jurisdiction in all cases in"ol"in$: a 6iolations of 4epu%lic Act No 0<*., as amended, otherwise (nown as the Anti' Graft and Corrupt !ractices Act, 4epu%lic Act No *0A., and Chapter II, Section -, Title 6II, Coo( II of the 4e"ised !enal Code, where one or more o t$e pricipal accused are afficials occup#in$ the followin$ positions in the $o"ernment, whether in a permanent, actin$ or interim capacit#, at the time of the commission of the offense: 8*9 Officials of the e&ecuti"e %ranch occup#in$ the positions of re$ional director and hi$her, otherwise classified as Grade J-AJ and hi$her, of the Compensation and !osition Classification Act of *./. 84epu%lic Act No 5A3/9, specificall# includin$: 8a9 !ro"incial $o"ernors, "ice'$o"ernors, mem%ers of the san$$unian$ panlalawi$an, and pro"incial treasurers, assessors, en$ineer, and other pro"incial department headsH 8%9 Cit# ma#ors, "ice'ma#ors, mem%ers of the san$$unian$ panlun$sod, cit# treasurers, assessors, en$ineers, and other cit# department headsH 8c9 Officials of the diplomatic ser"ice occup#in$ the position of consul and hi$herH 8d9 !hilippine Arm# and air force colonels, na"al captains, and all officers of hi$her ran(H 8e9 !N! chief superintendent and !N! officers of hi$her ran(H 8f9 Cit# and pro"incial prosecutors and their assistants, and officials and prosecutors in the Office of the Om%udsman and special prosecutorH 8$9 !residents, directors or trustees, or mana$ers of $o"ernment' owned or controlled corporations, state uni"ersities or educational institutions or foundationsH 8-9 ;em%ers of Con$ress or officials thereof classified as Grade J-AJ and up under the Compensation and !osition Classification Act of *./.H 809 ;em%ers of the judiciar# without prejudice to the pro"isions of the ConstitutionH 829 Chairman and mem%ers of the Constitutional Commissions, without prejudice to the pro"isions of the ConstitutionH 839 All other national and local officials classified as Grade J-AJ or hi$her under the Compensation and !osition Classification Act of *./. % Other offenses or felonies committed %# the pu%lic officials and emplo#ees mentioned in Su%section a of this section in relation to their office

c Ci"il and criminal cases files pursuant to and in connection with E&ecuti"e Order Nos *, -, *2, and 2'A In cases where none of the principal accused are occup#in$ positions correspondin$ to salar# Grade J-AJ or hi$her, as presri%ed in the said 4epu%lic Act 5A3/, or !N! officers occup#in$ the ran( of superintendent or hi$her, or their e1ui"alent, e&clusi"e jurisdiction thereof shall %e "ested in the proper re$ional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case ma# %e, pursuant to their respecti"e jurisdictions as pro"ided in Catas !am%ansa Cl$ *-. The Sandi$an%a#an shall e&ercise e&clusi"e appellate jurisdiction on appelas from the final jud$ment, resolutions or orders of re$ular court where all the accused are occup#in$ positions lower than $rade J-A,J or not otherwise co"ered %# the precedin$ enumeration &&& &&& &&& In case pri"ate indi"iduals are char$ed as co'principals, accomplices or accessories with the pu%lic officers or emplo#ees, includin$ those emplo#ed in $o"ernment'owned or controlled corporations, the# shall %e tried jointl# with said pu%lic officers and emplo#ees in the proper courts which shall ha"e e&clusi"e jurisdiction o"er them &&& &&& &&& 8Emphasis supplied9 Sec A of 4 A No A.A3 reads: Sec A ?pon the effecti"it# of this Act, all criminal cases in which trial has not %e$un in the Sandi$an%a#an shall %e referred to the proper courts ?nder para$raphs a and c, Section 2 of 4 A /-2., the word JprincipalJ %efore the word JaccusedJ appearin$ in the a%o"e'1uoted Section - 8para$raphs a and c9 of 4 A A.A3, was deleted It is due to this deletion of the word JprincipalJ that the parties herein are at lo$$erheads o"er the jurisdiction of the Sandi$an%a#an !etitioner and inter"enors, rel#in$ on 4 A A.A3, ar$ue that the 4e$ional Trial Court, not the Sandi$an%a#an, has jurisdiction o"er the su%ject criminal cases since none of the principal accused under the amended information has the ran( of Superintendent 28 or hi$her On the other hand, the Office of the Om%udsman, throu$h the Special !rosecutor who is tas(ed to represent the !eople %efore the Supreme Court e&cept in certain cases, 2- contends that the Sandi$an%a#an has jurisdiction pursuant to 4 A /-2. A perusal of the afore1uoted Section 2 of 4 A /-2. re"eals that to fall under the e&clusi"e ori$inal jurisdiction of the Sandi$an%a#an, the followin$ re1uisites must concur: 8*9 the offense committed is a "iolation of 8a9 4 A 0<*., as amended 8the Anti'Graft and Corrupt !ractices Act9, 8%9 4 A *0A. 8the law on ill'$otten wealth9, 8c9 Chapter II, Section -, Title 6II, Coo( II of the 4e"ised !enal Code 8the law on %ri%er#9, )0 8d9 E&ecuti"e Order Nos *, -, *2, and *2'A, issued in *./5 8se1uestration cases9, )1 or 8e9 other offenses or felonies whether simple or comple&ed with other crimesH 8-9 the offender comittin$ the offenses in items 8a9, 8%9, 8c9 and 8e9 is a pu%lic official or emplo#ee )2 holdin$ an# of the positions enumerated in para$raph a of Section 2H and 809 the offense committed is in relation to the office Considerin$ that herein petitioner and inter"enors are %ein$ char$ed with murder which is a felon# punisha%le under Title 6III of the 4e"ised !enal Code, the $o"ernin$ on the jurisdictional offense is not para$raph a %ut para$raph %, Section 2 of 4 A /-2. This para$raph % pertains to Jother offenses or felonies whether simple or comple&ed with other

crimes committed %# the pu%lic officials and emplo#ees mentioned in su%section a of 8Section 2, 4 A /-2.9 in relation to their office JThe phraseJ other offenses or feloniesJ is too %road as to include the crime of murder, pro"ided it was committed in relation to the accusedTs officials functions Thus, under said para$raph %, what determines the Sandi$an%a#anTs jurisdiction is the official position or ran( of the offender I that is, whether he is one of those pu%lic officers or emplo#ees enumerated in para$raph a of Section 2 The offenses mentioned in par$raphs a, % and c of the same Section 2 do not ma(e an# reference to the criminal participation of the accused pu%lic officer as to whether he is char$ed as a principal, accomplice or accessor# In enactin$ 4 A /-2., the Con$ress simpl# restored the ori$inal pro"isions of ! D *5<5 which does not mention the criminal participation of the pu%lic officer as a re1uisite to determine the jurisdiction of the Sandi$an%a#an !etitioner and enter"enorsT posture that Section 2 and A of 4 A /-2. "iolate their ri$ht to e1ual protection of the law )) %ecause its enactment was particularl# directed onl# to the Quraton$ Calelen$ cases in the Sandi$an%a#an, is a contention too shallow to deser"e merit No concrete e"idence and con"incin$ ar$ument were presented to warrant a declaration of an act of the entire Con$ress and si$ned into law %# the hi$hest officer of the co'e1ual e&ecuti"e department as unconstitutional E"er# classification made %# law is presumed reasona%le Thus, the part# who challen$es the law must present proof of ar%itrariness )$ It is an esta%lished precept in constitutional law that the $uarant# of the e1ual protection of the laws is not "iolated %# a le$islation %ased on reasona%le classification The classification is reasona%le and not ar%itrar# when there is concurrence of four elements, namel#: 8*9 it must rest on su%stantial distinctionH 8-9 it must %e $ermane to the purpose of the lawH 809 must not %e limited to e&istin$ conditions onl#, and 829 must appl# e1ual# to all mem%ers of the same class, )% all of which are present in this case The challen$ers of Sections 2 and A of 4 A /-2. failed to re%ut the presumption of constitutionalit# and reasona%les of the 1uestioned pro"isions The classification %etween those pendin$ cases in"ol"in$ the concerned pu%lic officials whose trial has not #et commence and whose cases could ha"e %een affected %# the amendments of the Sandi$an%a#an jurisdiction under 4 A /-2., as a$ainst those cases where trial had alread# started as of the appro"al of the law, rests on su%stantial distinction that ma(es real differences )6 In the first instance, e"idence a$ainst them were not #et presented, whereas in the latter the parties had alread# su%mitted their respecti"e proofs, e&amined witnesses and presented documents Since it is within the power of Con$ress to define the jurisdiction of courts su%ject to the constitutional limitations, )7 it can %e reasona%l# anticipated that an alteration of that jurisdiction would necessaril# affect pendin$ cases, which is wh# it has to pri"ide for a remed# in the form of a transitor# pro"ision Thus, petitioner and inter"enors cannot now claim that Sections 2 and A placed them under a different cate$or# from those similarl# situated as them !recisel#, para$raph a of Section 2 pro"ides that it shall appl# to Jall case in"ol"in$J certain pu%lic officials and, under the transitor# pro"ision in Section A, to Jall cases pendin$ in an# court J Contrar# to petitioner and inter"enorsT ar$ument, the law is not particularl# directed onl# to the Quraton$ Calelen$ cases The transitor# pro"ision does not onl# co"er cases which are in the Sandi$an%a#an %ut also in Jan# court J It just happened that Quraton$ Calelen$ cases are one of those affected %# the law ;oreo"er, those cases where trial had alread# %e$un are not affected %# the transitor# pro"ision under Section A of the new law 84 A /-2.9

In their futile attempt to ha"e said sections nullified, hea"# reliance is premised on what is percei"ed as %ad faith on the part of a Senator and two :ustices of the Sandi$an%a#a )8 for their participation in the passa$e of the said pro"isions In particular, it is stressed that the Senator had e&pressed stron$ sentiments a$ainst those officials in"ol"ed in the Quraton$ Calelen$ cases durin$ the hearin$s conducted on the matter %# the committee headed %# the Senator !etitioner further contends that the le$islature is %iased a$ainst him as he claims to ha"e %een selected from amon$ the 5A million other Filipinos as the o%ject of the deletion of the word JprincipalJ in para$raph a, Section 2 of ! D *5<5, as amended, and of the transitor# pro"ision of 4 A /-2. )- 4 A /-2., while still a %ill, was acted, deli%erated, considered %# -0 other Senators and %# a%out -3< 4epresentati"es, and was separatel# appro"ed %# the Senate and ,ouse of 4epresentati"es and, finall#, %# the !resident of the !hilippines On the percei"ed %ias that the Sandi$an%a#an :ustices alle$edl# had a$ainst petitioner durin$ the committe hearin$s, the same would not constitute sufficient justification to nullif# an otherwise "alid law Their presence and participation in the le$islati"e hearin$s was deemed necessar# %# Con$ress since the matter %efore the committee in"ol"es the $raft court of which one is the head of the Sandi$an%a#an and the other a mem%er thereof The Con$ress, in its plenar# le$islati"e powers, is particularl# empowered %# the Constitution to in"ite persons to appear %efore it whene"er it decides to conduct in1uiries in aid of le$islation $0 !etitioner and enter"enors further further ar$ued that the retroacti"e application of 4 A /-2. to the Quraton$ Calelen$ cases constitutes an e) post acto law $1 for the# are depri"ed of their ri$ht to procedural due process as the# can no lon$er a"ail of the two'tiered appeal which the# had alle$edl# ac1uired under 4 A A.A3 A$ain, this contention is erroneous There is nothin$ e) post acto in 4 A /-2. In Calder v. +ull, $2 an e) post acto law is one I 8a9 which ma(es an act done criminal %efore the passin$ of the law and which was innocent when committed, and punishes such actionH or 8%9 which a$$ra"ates a crime or ma(es it $reater than when it was committedH or 8c9 which chan$es the punishment and inflicts a $reater punishment than the law anne&ed to the crime when it was committed 8d9 which alters the le$al rules of e"idence and recie"es less or different testimon# that the law re1uired at the time of the commission of the offense on order to con"ict the defendant $) 8e9 E"er# law which, in relation to the offense or its conse1uences, alters the situation of a person to his disad"anta$e $$ This Court added two more to the list, namel#: 8f9 that which assumes to re$ulate ci"il ri$hts and remedies onl# %ut in effect imposes a penalt# or depri"ation of a ri$ht which when done was lawfulH 8$9 depri"es a person accussed of crime of some lawful protection to which he has %ecome entitled, such as the protection of a former con"iction or ac1uittal, or a proclamation of a amnest# $% E) post acto law, $enerall#, prohi%its retrospecti"it# of penal laws $6 4 A /-2. is not penal law It is a su%stanti"e law on jurisdiction which is not penal in character !enal laws are

those acts of the =e$islature which prohi%it certain acts and esta%lish penalties for their "iolationsH $7 or those that define crimes, treat of their nature, and pro"ide dor their punishment $8 4 A A.A3, which amended ! D *5<5 as re$ards the Sandi$an%a#anTs jurisdiction, its mode of appeal and other procedural matters, has %een declared %# the Court as not a penal law, %ut clearl# a procedural statute, i e one which prescri%es rules of procedure %# which courts appl#in$ laws of all (inds can properl# administer justice $- Not %ein$ a penal law, the retroacti"e application of 4 A /-2. cannot %e challen$ed as unconstitutional !etitionerTs and enter"enorsT contention that their ri$ht to a two'tiered appeal which the# ac1uired under 4 A A.A3 has %een diluted %# the enactment of 4 A /-2., is incorrect The same contention has alread# %een rejected %# the court se"eral times %0 considerin$ that the ri$ht to appeal is not a natural ri$ht %ut statutor# in nature that can %e re$ulated %# law The mode of procedure pro"ided for in the statutor# ri$ht of appeal is not included in the prohi%ition a$ainst e) post acto laws %1 4 A /-2. pertains onl# to matters of procedure, and %ein$ merel# an amendator# statute it does not parta(e the nature of an e) post acto law It does not mete out a penalt# and, therefore, does not come within the prohi%ition %2 ;oreo"er, the law did not alter the rules of e"idence or the mode of trial %) It has %een ruled that adjecti"e statutes ma# %e made applica%le to actions pendin$ and unresol"ed at the time of their passa$e %$ In an# caseH 4 A /-2. has preser"ed the accusedTs ri$ht to appeal to the Supreme Court to re"iew 1uestions of law %% On the remo"al of the intermediate re"iew of facts, the Supreme Court still has the power of re"iew to determine if he presumption of innocence has %een con"incin$ o"ercome %6 Another point The challen$ed law does not "iolate the one'title'one'su%ject pro"ision of the Constitution ;uch emphasis is placed on the wordin$ in the title of the law that it JdefinesJ the Sandi$an%a#an jurisdiction when what it alle$edl# does is to Je&pandJ its jurisdiction The e&pantion in the jurisdiction of the Sandi$an%a#an, if it can %e considered as such, does not ha"e to %e e&pressl# stated in the title of the law %ecause such is the necessar# conse1uence of the amendments The re1uirement that e"er# %ill must onl# ha"e one su%ject e&pressed in the title %7 is satisfied if the title is comprehensi"e enou$h, as in this case, to include su%jects related to the $eneral purpose which the statute see(s to achie"e %8 Such rule is li%erall# interpreted and should %e $i"en a practical rather than a technical construction There is here sufficient compliance with such re1uirement, since the title of 4 A /-2. e&presses the $eneral su%ject 8in"ol"in$ the jurisdiction of the Sandi$an%a#an and the amendment of ! D *5<5, as amended9 and all the pro"isions of the law are $ermane to that $eneral su%ject %- The Con$ress, in emplo#in$ the word JdefineJ in the title of the law, acted within its power since Section -, Article 6III of the Constitution itself empowers the le$islati"e %od# to Jdefine, prescri%e, and apportion the jurisdiction of "arious courts 60 There %ein$ no unconstitutional infirmit# in %oth the su%ject amendator# pro"ision of Section 2 and the retroacti"e procedural application of the law as pro"ided in Section A of 4 A No /-2., we shall now determine whether under the alle$ations in the Informations, it is the Sandi$an%a#an or 4e$ional Trial Court which has jurisdictions o"er the multiple murder case a$ainst herein petitioner and enter"enors The jurisdiction of a court is defined %# the Constitution or statute The elements of that definition must appear in the complaint or information so as to ascertain which court has jurisdiction o"er a case ,ence the elementar# rule that the jurisdiction of a court is determined %# the alle$ations in the complaint or informations, 61 and not %# the e"idence presented %# the parties at the trial 62

As stated earlier, the multiple murder char$e a$ainst petitioner and inter"enors falls under Section 2 )para$raph %+ of 4 A /-2. Section 2 re1uires that the offense char$ed must %e committed %# the offender in relation to his office in order for the Sandi$an%a#an to ha"e jurisdiction o"er it 6) This jurisdictional re1uirement is in accordance with Section 3, Article OIII of the *.A0 Constitution which mandated that the Sandi$an%a#an shall ha"e jurisdiction o"er criminal cases committed %# the pu%lic officers and emplo#ees, includin$ those in $o"erment'owned or controlled corporations, Jin relation to their office as ma# %e determined %# law J This constitutional mandate was reiterated in the new 8*./A9 Constitution when it declared in Section 2 thereof that the Sandi$an%a#an shall continue to function and e&ercise its jurisdiction as now or hereafter ma# %e pro"ided %# law The remainin$ 1uestion to %e resol"ed then is whether the offense of multiple murder was committed in relation to the office of the accussed !N! officers In People vs. Nonte&o, 6$ we held that an offense is said to ha"e %een committed in relation to the office if it 8the offense9 is Jintimatel# connectedJ with the office of the offender and perpetrated while he was in the performance of his official functions 6% This intimate relation %etween the offense char$ed and the dischar$e of official duties Jmust %e alle$ed in the informations J 66 As to how the offense char$ed %e stated in the informations, Section ., 4ule **< of the 4e"ised 4ules of Court mandates: Sec . Couse of accusation I The acts or omissions complied of as constitutin$ the offense must be stated in ordinary and concise lan(ua(e without repetition not necessarily in t$e terms o t$e statute de inin( t$e o ense , but in suc$ rom as is su icient to enable a person o common understandin( to LnoK K$at o ense is intended to be c$ar(ed! and enable t$e court to pronounce proper &ud(ment 8Emphasis supplied9 As earl# as *.32 we pronounced that Jthe factor that characteri7es the char$e is the actual recital of the facts J 67The real nature of the criminal char$e is determined not from the caption or pream%le of the informations nor from the specification of the pro"ision of law alle$ed to ha"e %een "iolated, the# %ein$ conclusions of law, %ut %# the actual recital of facts in the complaint or information 68 The no%le o%ject or written accusations cannot %e o"eremphasi7ed This was e&plained in U.S. v. Oarelsen: 5. The o%ject of this written accusations was I FirstH To furnish the accused with such a descretion of the char$e a$ainst him as will ena%le him to ma(e his defense and second to a"ail himself of his con"iction or ac1uittal for protection a$ainst a further prosecution for the same cause and third, to inform the court of the facts alle$ed so that it ma# decide whether the# are sufficient in law to support a con"iction if one should %e had In order that the re1uirement ma# %e satisfied, acts must be stated, not conclusions o laK E"er# crime is made up of certain acts and intent t$ese must be set ort$ in t$e complaint Kit$ reasonable particularly of time, place, names 8plaintiff and defendant9 and circumstances In short, the complaint must contain a speci ic alle(ation of every act andcircumstance necessary to constitute t$e crime c$ar(ed 8Emphasis supplied9 It is essential, therefore, that the accused %e informed of the facts that are imputed to him as Jhe is presumed to ha"e no indefendent (nowled$e of the facts that constitute the offense J 70

Appl#in$ these le$al principles and doctrines to the present case, we find the amended informations for murder a$ainst herein petitioner and inter"enors wantin$ of specific factual a"erments to show the intimate relationMconnection %etween the offense char$ed and the dischar$e of official function of the offenders In the present case, one of the ele"en 8**9 amended informations 71 for murder reads: A;ENDED INFO4;ATIONS The undersi$ned Special !rosecution Officer III Office of the Om%udsman here%# accuses C,IEF INS! ;IC,AE= 4AG AD?INO, C,IEF INS! E4BIN T 6I==ACO4TE, SENIO4 INS! :OSE=ITO T ESD?I6E=, INS! 4ICA4DO G DANDAN, S!O2 6ICENTE ! A4NADO, S!O2 4OCE4TO F =ANGCA?ON, S!O- 6I4GI=IO 6 !A4AGAS, S!O- 4O=ANDO 4 :I;ENEX, S!O* BI=F4EDO C C?A4TE4O, S!O* 4OCE4TO O AGCA=OG, S!O* OS;?NDO C CA4INO, C,IEF S?!T :EBE= F CANSON, C,IEF S?!T 4O;EO ; ACO!, C,IEF S?!T !ANFI=O ; =ACSON, SENIO4 S?!T F4ANCISCO G X?CIA :4 , S?!T A=;A4IO A ,I=A4IO, C,IEF INS! CESA4 O ;ANCAO III, C,IEF INS! GI= = ;ENESES, SENIO4 INS! G=ENN D?;=AO, SENIO4 INS! 4O=ANDO AND?GAN, INS! CEASA4 TANNAGAN, S!O0 BI==G N?AS, S!O0 CICE4O S CACO=OD, S!O- NO4CE4TO =ASAGA, !O=EONA4DO G=O4IA, and !O- A=E:AND4O G =IBANAG of the crime of ;urder as defined and penali7e under Article -2/ of the 4e"ised !enal Code committed as follows That on or a%out ;a# */, *..3 in ;ariano ;arcos A"enue, Due7on Cit# !hilippines and within the jurisdiction of his ,onora%le Court, the accused C,IEF INS! ;IC,AE= 4AG AD?INO, C,IEF INS! E4BIN T 6I==ACO4TE, SENIO4 INS! :OSE=ITO T ESD?I6E=, INS! 4ICA4DO G DANDAN, S!O2 6ICENTE A4NADO, S!O2 4OCE4TO F =ANGCA?ON, S!O- 6I4GI=IO 6 !A4AGAS, S!O- 4O=ANDO 4 :I;ENEX, S!O* BI=F4EDO C C?A4TE4O, S!O* 4OCE4TO O AGCA=OG, and S!O* OS;?NDO C CA4INO, all ta(in$ ad"anta$e of their pu%lic and official positions as officers and mem%ers of the !hilippine National !olice and committin$ the acts herein alle$ed in relation to their pu%lic office, conspirin$ with intent to (ill and usin$ firearms with treacher# e"ident premeditation and ta(in$ ad"anta$e of their superior stren$hts did then and there willfull# unlawfull# and feloniousl# shoot :OE= A;O4A, there%# inflictin$ upon the latter mortal wounds which caused his instantaneous death to the dama$e and prejudice of the heirs of the said "ictim That accused C,IEF S?!T :EBE= F CANSON, C,IEF S?!T 4O;OE ; ACO!, C,IEF S?!T !ANFI=O ; =ACSON, SENIO4 S?!T F4ANCISCO G X?CIA; :4 , S?!T A=;A4IO A ,I=A4IO, C,IEF INS! CESA4 O ;ANCAO II, C,IEF INS! GI= = ;ENESES, SENIO4 INS! G=ENN D?;=AO, SENIO4 INS! 4O=ANDO AND?GAN, INS! CEASA4 TANNAGAN, S!O0 BI==G N?AS, S!O0 CICE4O S CACO=OD, !OA=E:AND4O G =IBANAG committin$ the acts in relation to office as officers and mem%ers of the !hilippine National !olice are char$ed herein as accessories after' the'fact for concealin$ the crime herein a%o"e alle$ed %# amon$ others falsel# representin$ that there where no arrest made durin$ the read conducted %# the accused herein at Super"ille Su%di"ision, !arana1ue, ;etro ;anila on or a%out the earl# dawn of ;a# */, *..3 CONT4A4G =AB Bhile the a%o"e'1uoted information states that the a%o"e'named principal accused committed the crime of murder Jin relation to thier pu%lic office, there is, howe"er, no specific

alle$ation of facts that the shootin$ of the "ictim %# the said principal accused was intimatel# related to the dischar$e of their official duties as police officers =i(ewise, the amended information does not indicate that the said accused arrested and in"esti$ated the "ictim and then (illed the latter while in their custod# E"en the alle$ations concernin$ the criminal participation of herein petitioner and inte"enors as amon$ the accessories after'the'facts, the amended information is "a$ue on this It is alle$ed therein that the said accessories concelead Jthe crime herein'a%o"e alle$ed %#, amon$ others, falsel# representin$ that there were no arrests made durin$ the raid conducted %# the accused herein at Super"ille Su%di"ision, !arana1ue ;etro ;anila, on or a%out the earl# dawn of ;a# */, *..3 J The sudden mention of the Jarrests made durin$ the raid conducted %# the accusedJ surprises the reader There is no indication in the amended information that the "ictim was one of those arrested %# the accused durin$ the Jraid J Borse, the raid and arrests were alle$edl# conducted Jat Super"ille Su%di"ision, !arana1ue, ;etro ;anilaJ %ut, as alle$ed in the immediatel# precedin$ para$raph of the amended information, the shootin$ of the "ictim %# the principal accused occurred in ;ariano ;arcos A"enue, Due7on Cit# J ,ow the raid, arrests and shootin$ happened in the two places far awa# from each other is pu77lin$ A$ain, while there is the alle$ation in the amended information that the said accessories committed the offense Jin relation to office as officers and mem%ers of the 8!N!9,J we, howe"er, do not see the intimate connection %etween the offense char$ed and the accusedTs official functions, which, as earlier discussed, is an essential element in determinin$ the jurisdiction of the Sandi$an%a#an The strin$ent re1uirement that the char$e %e set forth with such particularl# as will reasona%l# indicate the e&act offense which the accused is alle$ed to ha"e committed in relation to his office was, sad to sa#, not satisfied Be %elie"e that the mere alle$ation in the amended information that the offense was committed %# the accused pu%lic officer in relation to his office is not sufficient That phrase is merel# a conclusion %etween of law, not a factual a"ernment that would show the close intimac# %etween the offense char$ed and the dischar$e of the accusedTs official duties In People vs. Na(allanes, 72 where the jurisdiction %etween the 4e$ional Trial Court and the Sandi$an%a#an was at issue, we ruled: It is an elementar# rule that jurisdiction is determined %# the alle$ations in the complaint or information and not %# the result of e"idence after trial In 8!eople "s9 ;ontejo 8*</ !hil 5*0 8*.5<9, where the amended information alle$ed =ero# S Crown Cit# ;a#or of Casilan Cit#, as such, has or$ani7ed $roups of police patrol and ci"ilian commandoes consistin$ of re$ular policeman and special policemen appointed and pro"ided %# him with pistols and hi$her power $uns and then esta%lished a camp at Tipo'tipo which is under his command super"ision and control where his co'defendants were stationed entertained criminal complaints and conducted the correspondin$ in"esti$ations as well as assumed the authorit# to arrest and detain person without due process of law and without %rin$in$ them to the proper court, and that in line with this set'up esta%lished %# said ;a#or of Casilan Cit# as such, and actin$ upon his orders his co'defendants arrested and maltreated Awalin Te%a$ who denied in conse1uence thereof we held that the offense char$ed was committed in relation to the office of the accused %ecause it was perpetreated while the# were in the performance, thou$h

improper or irre$ular of their official functions and would not ha"e %een committed had the# not held their office, %esides, the accused had no personal moti"e in committin$ the crime thus, there was an intimate connection %etween the offense and the office of the accused ?nli(e in ;ontejo the informations in Criminal Cases Nos *335- and *3350 in the court %elow do not indicate that the accused arrested and in"esti$ated the "ictims and then (illed the latter in the course of the in"esti$ation The informations merel# alle$e that the accused for the purpose of e&tractin$ or e&tortin the sum of !030,<<< << a%ducted, (idnapped and detained the two "ictims, and failin$ in their common purpose the# shotH and (illed the said "ictims For t$e purpose o determinin( &urisdiction! it is t$ese alle(ations t$at s$all control , and not the e"idence presented %# the prosecution at the trial In the aforecited case of People vs. Nonte&o, it is noteworth# that the phrase committed in relation to pu%lic office Jdoes not appear in the information, which onl# si$nifies that the said phrase is not what determines the jurisdiction of the Sandi$an%a#an Bhat is controllin$ is the specific factual alle$ations in the information that would indicate the close intimac# %etween the dischar$e of the accusedTs official duties and the commission of the offense char$ed, in order to 1ualif# the crime as ha"in$ %een committed in relation to pu%lic office Conse1uentl#, for failure to show in the amended informations that the char$e of murder was intimatel# connected with the dischar$e of official functions of the accused !N! officers, the offense char$ed in the su%ject criminal cases is plain murder and, therefore, within the e&clusi"e ori$inal jurisdiction of the 4e$ional Trial Court, 7) not the Sandi$an%a#an B,E4EFO4E, the constitutionalit# of Sections 2 and A of 4 A /-2. is here%# sustained The Addendum to the ;arch 3, *..A 4esolution of the Sandi$an%a#an is 4E6E4SED The Sandi$an%a#an is here%# directed to transfer Criminal Cases Nos -0<2A to -0<3A 8for multiple murder9 to the 4e$ional Trial Court of Due7on Cit# which has e&clusi"e ori$inal jurisdiction o"er the said cases *Ywphi* nZtSO O4DE4ED G 4 No *-3-.A :une 5, -<<0 ELVIRA 2U O , petitioner, "s #OURT OF APPEALS !n" PEOPLE OF T E P ILIPPINES, respondents AUSTRIA4'ARTINEZ, J.* Cefore this Court is a petition for re"iew on certiorari of the decision* of the Court of Appeals in CA'G 4 No C4 No *50.<, promul$ated on :anuar# 0<, *..5, affirmin$ the con"iction of petitioner El"ira Gu Oh %# the 4e$ional Trial Court 84TC9, Cranch .., Due7on Cit# and the resolution dated ;a# 0<, *..5 which denied her motion for reconsideration The facts as %orne %# the records are as follows: !etitioner purchased pieces of jewelr# from Solid Gold International Traders, Inc , a compan# en$a$ed in jewelr# tradin$ Due to her failure to pa# the purchase price, Solid Gold filed ci"il cases- a$ainst her for specific performance %efore the 4e$ional Trial Court of !asi$ On Septem%er *A, *..<, petitioner and Solid Gold, throu$h its $eneral mana$er :oa1uin No"ales III, entered into a compromise a$reement to settle said ci"il cases 0 The compromise a$reement, as appro"ed %# the trial court, pro"ided that petitioner shall issue a total of ninet#'nine post'dated chec(s in the amount of !3<,<<< << each, dated e"er# *3th and 0<th of the month startin$ Octo%er *, *..< and the %alance of o"er !* million to %e paid in lump sum on No"em%er *5, *..2 which is also the due date of the ..th and last postdated

chec( !etitioner issued ten chec(s at !3<,<<< << each, for a total of !3<<,<<< <<, drawn a$ainst her account at the E1uita%le Can(in$ Corporation 8ECC9, Grace !ar(, Caloocan Cit# Cranch No"ales then deposited each of the ten chec(s on their respecti"e due dates with the Far East Can( and Trust Compan# 8FECTC9 ,owe"er, said chec(s were dishonored %# ECC for the reason JAccount Closed J Dishonor slips were issued for each chec( that was returned to No"ales 2 On Octo%er 3, *..-, No"ales filed ten separate Informations, doc(eted as Criminal Cases Nos .-'-5-20 to .-'05-3- %efore the 4TC of Due7on Cit# char$in$ petitioner with "iolation of Catas !am%ansa Cilan$ --, otherwise (nown as the Councin$ Chec(s =aw 3 E&cept for the dates and the chec( num%ers, the Informations uniforml# alle$e: That on or a%out the S in Due7on Cit#, !hilippines, the said accused did then and there willfull#, unlawfull# and feloniousl# ma(e or draw and issue to :OAD?IN ! =O6A=ES III to appl# on account or for "alue E1uita%le Can(in$ Corp Grace !ar( Caloocan Cranch Chec( No S dated S pa#a%le to SO=ID GO=D INTE4NATIONA= T4ADE4S, INC in the amount of !3<,<<< <<, !hilippine Currenc#, said accused well (nowin$ that at the time of issue sheMheMthe# did not ha"e sufficient funds in or credit with the drawee %an( for pa#ment of such chec( in full upon its presentment, which chec( when presented for pa#ment was su%se1uentl# dishonored %# the drawee %an( for insufficienc# of fundsMAccount Closed and despite receipt of notice of such dishonor, said accused failed to pa# said SO=ID GO=D INTE4NATIONA= T4ADE4S, INC the amount of said chec( or to ma(e arran$ement for full pa#ment of the same within fi"e 839 %an(in$ da#s after recei"in$ said notice CONT4A4G TO =AB 5 The cases were consolidated and su%se1uentl# raffled to Cranch .. of the said 4TC ?pon arrai$nment, accused pleaded not $uilt# A Trial then ensued On Decem%er --, *..0, the 4TC rendered its decision, the dispositi"e portion of which reads: B,E4EFO4E, this Court finds the accused G?I=TG of ten counts of "iolation of C! -and here%# sentences her to a penalt# of one #ear imprisonment for each count, or a total of ten #ears, to %e ser"ed in accordance with the limitation prescri%ed in par 2, Article A< of the 4e"ised !enal Code and to indemnif# complainant the amount of the chec(s in their totalit#, or in the amount of !3<<,<<< << SO O4DE4ED / !etitioner appealed to the Court of Appeals alle$in$ that: the 4TC has no jurisdiction o"er the offense char$ed in the ten informationsH it o"erloo(ed the fact that no notice of dishonor had %een $i"en to the appellant as drawer of the dishonored chec(sH it failed to consider that the reason of Jclosed accountJ for the dishonor of the ten chec(s in these cases is not the statutor# cause to warrant prosecution, much more a con"iction, under C ! Cl$ --H it failed to consider that there is onl# one act which caused the offense, if an#, and not ten separate casesH and it disre$arded the definition of what a Tchec(T is under Sec */3 of the Ne$otia%le Instruments =aw . Findin$ the appeal to %e without merit, the Court of Appeals affirmed the decision of the trial court with costs a$ainst appellant ,ence, herein petition raisin$ the followin$ errors: I T,AT T,E CO?4T OF A!!EA=S E44ED IN NOT 4ESO=6ING T,E :?4ISDICTIONA= ISS?E IN FA6O4 OF T,E ACC?SED'A!!E==ANT CG ?N:?ST=G DE!4I6ING ,E4 OF T,E =EGA=

CENEFITS OF GI6ING 4ET4OACTI6E EFFECT TO T,E !4O6ISIONS OF 4 A NO A5.* EO!ANDING T,E :?4ISDICTION OF T,E INFE4IO4 CO?4TS TO CO6E4 T,E OFFENSES IN6O=6ED IN T,ESE CASES !?4S?ANT TO A4T -- OF T,E 4E6ISED !ENA= CODE, T,?S IN EFFECT 4ENDE4ING T,E :?DG;ENT OF CON6ICTION !4O;?=GATED CG T,E T4IA= CO?4T CE=OB AND AFFI4;ED CG T,E CO?4T OF A!!EA=S !ATENT=G N?== AND 6OID FO4 ,A6ING CEEN 4ENDE4ED BIT,O?T O4 IN EOCESS OF :?4ISDICTION II T,AT T,E CO?4T OF A!!EA=S E44ED IN NOT 4ESO=6ING IN FA6O4 OF ACC?SED' A!!E==ANT T,E FACT T,AT NO NOTICE OF DIS,ONO4 ,AD CEEN GI6EN ,E4 AS D4ABE4 OF T,E DIS,ONO4ED JC,ECQSJ !?4S?ANT TO T,E 4ED?I4E;ENT EO!4ESS=G !4O6IDED ?NDE4 CATAS !A;CANSA CI=ANG -III T,AT T,E CO?4T OF A!!EA=S E44ED IN CONST4?ING T,E !4O6ISIONS OF CATAS !A;CANSA CI=ANG -- CONT4A4G TO T,E BE=='ESTAC=IS,ED 4?=E OF STAT?TO4G CONST4?CTION T,AT J!ENA= STAT?TES, S?CSTANTI6E AND 4E;EDIA= O4 !4OCED?4A=, A4E, CG T,E CONSEC4ATED 4?=E, CONST4?ED ST4ICT=G AGAINST T,E STATE, O4 =ICE4A==G IN FA6O4 OF T,E ACC?SEDJ AND T,AT JIT IS A=BAGS T,E D?TG OF T,E CO?4T TO 4ESO=6E T,E CI4C?;STANCES OF E6IDENCE ?!ON A T,EO4G OF INNOCENCE 4AT,E4 T,AN ?!ON A T,EO4G OF G?I=T B,E4E IT IS !OSSIC=E TO DO SOJ, AND IN SO DOING T,E DECISION A!!EA=ED F4O; IND?=GED ITSE=F IN J:?DICIA= =EGIS=ATIONJ TO FA6O4 T,E !4OSEC?TION AND TO BO4Q G4A6E IN:?STICE TO T,E ACC?SED Simpl# worded, the issues of this case ma# %e stated as follows: 8*9 whether or not the appellate court erred in not $rantin$ retroacti"e effect to 4epu%lic Act No A5.**< in "iew of Art -- of the 4e"ised !enal Code 84!C9H 8-9 whether or not notice of dishonor is dispensa%le in this caseH and 809 whether or not the appellate court erred in construin$ C ! Cl$ -Be will resol"e the first and third issues %efore considerin$ the second issue First issue U Bhether or not the Court of Appeals erred in not $i"in$ retroacti"e effect to 4 A A5.< in "iew of Article -- of the 4!C !etitioner ar$ues that: the failure of the appellate court to $i"e retroacti"e application to 4 A A5.* is a "iolation of Art -- of the 4e"ised !enal Code which pro"ides that penal laws shall ha"e retroacti"e effect insofar as the# fa"or the person $uilt# of the felon#H 4 A A5.* is a penal law in the sense that it affects the jurisdiction of the court to ta(e co$ni7ance of criminal casesH ta(en separatel#, the offense co"ered %# each of the ten Informations in this case falls within the e&clusi"e ori$inal jurisdiction of the ;unicipal Trial Court under Sec - of 4 A A5.*H and the Court of Appeals is $uilt# of judicial le$islation in statin$ that after the arrai$nment of petitioner, said cases could no lon$er %e transferred to the ;TC without "iolatin$ the rules on dou%le jeopard#, %ecause that is not so pro"ided in 4 A A5.* ** The Solicitor General, in its Comment, counters that the ar$uments of petitioner are %aseless contendin$ that: penal laws are those which define crimes and pro"ides for their punishmentH laws definin$ the jurisdiction of courts are su%stanti"e in nature and not procedural for the# do not refer to the manner of tr#in$ cases %ut to the authorit# of the courts to hear and decide certain and definite cases in the "arious instances of which the# are suscepti%leH 4 A No A5.* is a su%stanti"e law and not a penal law as nowhere in its pro"isions does it define a crime neither does it pro"ide a penalt# of an# (indH the purpose of enactin$ 4 A No A5.* is laid down in the openin$ sentence thereof as JAn Act E&pandin$ the :urisdiction of the ;unicipal Trial Courts, ;unicipal Circuit Trial Courts and the ;etropolitan Trial CourtJ where%#

it reapportions the jurisdiction of said courts to co"er certain ci"il and criminal case, erstwhile tried e&clusi"el# %# the 4e$ional Trial CourtsH conse1uentl#, Art -- of the 4!C finds no application to the case at %arH jurisdiction is determined %# the law in force at the time of the filin$ of the complaint, and once ac1uired, jurisdiction is not affected %# su%se1uent le$islati"e enactments placin$ jurisdiction in another tri%unalH in this case, the 4TC was "ested with jurisdiction to tr# petitionerTs cases when the same were filed in Octo%er *..-H at that time, 4 A No A5.* was not #et effecti"eH*- in so far as the retroacti"e effect of 4 A No A5.* is concerned, that same is limited onl# to pendin$ ci"il cases that ha"e not reached pre'trial sta$e as pro"ided for in Section A thereof and as clarified %# this Court in People vs. Molanda ,elasco*0, where it was held: J)a+ perusal of 4 A No A5.* will show that its retroacti"e pro"isions appl# onl# to ci"il cases that ha"e not #et reached the pre'trial sta$e Neither from an e&press pro"iso nor %# implication can it %e understood as ha"in$ retroacti"e application to criminal cases pendin$ or decided %# the 4TC prior to its effecti"it# J*2 On this point, the Court full# a$rees with the Solicitor General and holds that Article -- of the 4e"ised !enal Code finds no application to the case at %ar Said pro"ision reads: A4T -- Eetroactive e ect o penal laKs U !enal laws shall ha"e a retroacti"e effect insofar as the# fa"or the person $uilt# of a felon#, who is not a ha%itual criminal, as this term is defined in 4ule 3 of Article 5- of this Code, althou$h at the time of the pu%lication of such laws a final sentence has %een pronounced and the con"ict is ser"in$ sentence A penal law, as defined %# this Court, is an act of the le$islature that prohi%its certain acts and esta%lishes penalties for its "iolations It also defines crime, treats of its nature and pro"ides for its punishment *3 4 A No A5.* does not prohi%it certain acts or pro"ides penalties for its "iolationH neither does it treat of the nature of crimes and its punishment Conse1uentl#, 4 A No A5.* is not a penal law, and therefore, Art -- of the 4!C does not appl# in the present case C ! Cl$ --, which too( effect on April -2, *.A., pro"ides the penalt# of imprisonment of not less than thirt# da#s %ut not more than one #ear or %# a fine of not less than %ut not more then dou%le the amount of the chec( which fine shall in no case e&ceed !-<<,<<< <<, or %oth such fine and imprisonment at the discretion of the court 4 A No A5.* which too( effect on :une *3, *..2, amended C ! Cl$ *-., and "ested on the ;etropolitan, ;unicipal and ;unicipal Circuit Trial Courts jurisdiction to tr# cases punisha%le %# imprisonment of not more than si& 859 #ears *5 Since 4 A No A5.* "ests jurisdiction on courts, it is apparent that said law is substantive *A In the case of Can( vs. Court o Appeals,*/ this Court held that Jjurisdiction %ein$ a matter of su%stanti"e law, the esta%lished rule is that the statute in force at the time of the commencement of the action determines the jurisdiction of the court J*. 4 A No A5.* was not #et in force at the time of the commencement of the cases in the trial court It too( effect onl# durin$ the pendenc# of the appeal %efore the Court of Appeals -< There is therefore no merit in the claim of petitioner that 4 A No A5.* should %e retroacti"el# applied to this case and the same %e remanded to the ;TC The Court has held that a Jlaw "estin$ additional jurisdiction in the court cannot %e $i"en retroacti"e effect J-* T$ird issue U Bhether or not the Court of Appeals erroneousl# construed C ! Cl$ -!etitioner insists that: penal statutes must %e strictl# construed and where there is an# reasona%le dou%t, it must alwa#s %e resol"ed in fa"or of the accusedH-- the Court of Appeals, in construin$ that C ! Cl$ -- em%races cases of Jno fundsJ or Jclosed accountsJ

when the e&press lan$ua$e of C ! Cl$ -- penali7es onl# the issuance of chec(s that are su%se1uentl# dishonored %# the drawee %an( for Jinsufficienc#J of funds or credit, has enlar$ed %# implication the meanin$ of the statute which amounts to judicial le$islationH-0 a postdated chec(, not %ein$ drawn pa#a%le on demand, is technicall# not a special (ind of a %ill of e&chan$e, called chec(, %ut an ordinar# %ill of e&chan$e pa#a%le at a fi&ed date, which is the date indicated on the face of the postdated chec(, hence, the instrument is still "alid and the o%li$ation co"ered there%#, %ut onl# ci"ill# and not criminall#H-2 the trial court also erroneousl# cited a portion in the case of /o*ano vs. Nartine*-3 that the Jlan$ua$e of C ! Cl$ -- is %road enou$h to co"er all (inds of chec(s, whether present dated or postdated, or whether issued in pa#ment of pre'e&istin$ o%li$ations or $i"en in mutual or simultaneous e&chan$e for somethin$ of "alue,J since the same is mere obiter dictumH-5 in the interpretation of the meanin$ of a Jchec(J, where the law is clear and unam%i$uous, the law must %e ta(en as it is, de"oid of judicial addition or su%traction -A The Solicitor General counters that a postdated chec( is still a chec( and its %ein$ a postdated instrument does not necessaril# ma(e it a %ill of e&chan$e Jpa#a%le at a fi&ed or determina%le future timeJ since it is still paid on demand on the date indicated therein or thereafter just li(e an ordinar# chec( -/ It also points out that the doctrine laid down in /o*ano vs. Nartine* was reiterated in People vs. Cita an!-. hence, it can no lon$er %e ar$ued that the statement in the case of =o7ano re$ardin$ the scope of Jchec(sJ is mere obiter dictum A$ain, we a$ree with the Solicitor General and find petitionerTs claim to %e without merit The rationale %ehind C ! Cl$ -- was initiall# e&plained %# the Court in the landmar( case of /o*ano vs. Nartine*0< where we held that: The $ra"amen of the offense punished %# C ! Cl$ -- is the act of ma(in$ and issuin$ a worthless chec( or a chec( that is dishonored upon its presentation for pa#ment S The thrust of the law is to prohi%it, under pain of penal sanctions, the ma(in$ or worthless chec(s and puttin$ them in circulation Cecause of its deleterious effects on the pu%lic interest, the practice is proscri%ed %# law The law punished the act not as an offense a$ainst propert#, %ut an offense a$ainst pu%lic order 0* The effects of the issuance of a worthless chec( transcend the pri"ate interests of the parties directl# in"ol"ed in the transaction and touches the interests of the communit# at lar$e The mischief it creates is not onl# a wron$ to the pa#ee or holder %ut also an injur# to the pu%lic The harmful practice of puttin$ "alueless commercial papers in circulation, multiplied a thousandfold, can "er# well pollute the channels of trade and commerce, injure the %an(in$ s#stem and e"entuall# hurt the welfare of societ# and the pu%lic interest 0The same is reiterated in Cueme vs. People00 where we pronounced that: C ! Cl$ -- was purposel# enacted to pre"ent the proliferation of worthless chec(s in the mainstream of dail# %usiness and to a"ert not onl# the underminin$ of the %an(in$ s#stem of the countr# %ut also the infliction of dama$e and injur# upon trade and commerce occasioned %# the indiscriminate issuances of such chec(s C# its "er# nature, the offenses defined under C ! Cl$ -- are a$ainst pu%lic interest 02 In Eecuerdo vs. People, this Court also held that the terms and conditions surroundin$ the issuance of the chec(s are irrele"ant since its primordial intention is to ensure the sta%ilit# and commercial "alue of chec(s as %ein$ "irtual su%stitutes for currenc# 03 !etitionerTs claim that cases of Jclosed accountsJ are not included in the co"era$e of C ! Cl$

-- has no merit considerin$ the clear intent of the law, which is to discoura$e the issuance of worthless chec(s due to its harmful effect to the pu%lic This Court, in /o*ano vs. Nartine*, was e&plicit in rulin$ that the lan$ua$e of C ! Cl$ -- is %road enou$h to co"er all (inds of chec(s, whether present dated or postdated, or whether issued in pa#ment of pre'e&istin$ o%li$ations or $i"en in mutual or simultaneous e&chan$e for somethin$ of "alue 05 In People vs. Cita an,0A the Supreme Court reiterated this point and held that: C ! Cl$ -- S does not distin$uish %ut merel# pro"ides that J)an# person who ma(es or draws and issues an# chec( (nowin$ at the time of issue that he does not ha"e sufficient funds in or credit with the drawee %an( S which chec( is su%se1uentl# dishonored S shall %e punished %# imprisonment S Ubi le) non distin(uit nec nos distin(uere debemus. Cut e"en if Be retrace the enactment of the JCouncin$ Chec( =awJ to determine the parameters of the concept of Jchec(J, we can easil# $lean that the mem%ers of the then Catasan$ !am%ansa intended it to %e comprehensi"e as to include all chec(s drawn a$ainst %an(s 0/ In this li$ht, it is eas# to see that the claim of petitioner that C ! Cl$ -- does not include Tpostdated chec(sT and cases of Tclosed accountsT has no le$ to stand on The term Jclosed accountsJ is within the meanin$ of the phrase Jdoes not ha"e sufficient funds in or credit with the drawee %an(J Anent the second issue: whether or not notice of dishonor is dispensa%le in the case at %ar !etitioner failed to show an# co$ent reason for us to distur% the findin$s of the 4TC and the Court of Appeals C ! Cl$ -- or the Councin$ Chec(Ts =aw see(s to pre"ent the act of ma(in$ and issuin$ chec(s with the (nowled$e that at the time of issue, the drawer does not ha"e sufficient funds in or credit with the %an( for pa#ment and the chec(s were su%se1uentl# dishonored upon presentment 0. To %e con"icted thereunder, the followin$ elements must %e pro"ed: * The accused ma(es, draws or issues an# chec( to appl# to account or for "alueH - The accused (nows at the time of the issuance that he or she does not ha"e sufficient funds in, or credit with, the drawee %an( for the pa#ment of the chec( in full upon its presentmentH and 0 The chec( is su%se1uentl# dishonored %# the drawee %an( for insufficienc# of funds or credit or it would ha"e %een dishonored for the same reason had not the drawer, without an# "alid reason, ordered the %an( to stop pa#ment 2< For lia%ilit# to attach under C ! Cl$ --, it is not enou$h that the prosecution esta%lishes that chec(s were issued and that the same were su%se1uentl# dishonored The prosecution must also pro"e that the issuer, at the time of the chec(Ts issuance, had (nowled$e that he did not ha"e enou$h funds or credit in the %an( of pa#ment thereof upon its presentment 2* Since the second element in"ol"es a state of mind which is difficult to esta%lish, Section - of C ! Cl$ -- created aprima acie presumption of such (nowled$e, as follows: SEC - Evidence o LnoKled(e o insu icient unds U The ma(in$, drawin$ and issuance of a chec( pa#ment of which is refused %# the drawee %ecause of insufficient funds in or credit with such %an(, when presented within ninet# 8.<9 da#s from the date of the chec(, shall %e prima acie e"idence of (nowled$e of such insufficienc# of funds or credit unless such ma(er or drawer pa#s the holder thereof the amount due thereon, or ma(es arran$ements for pa#ment in full %# the drawee of such chec( within fi"e 839 %an(in$ da#s after recei"in$ notice that such chec( has not %een paid %# the

drawee Cased on this section, the presumption that the issuer had (nowled$e of the insufficienc# of funds is %rou$ht into e&istence only a ter it is proved t$at t$e issuer $ad received a notice o dis$onor and that within fi"e da#s from receipt thereof, he failed to pa# the amount of the chec( or to ma(e arran$ement for its pa#ment 2- The presumption or prima acie e"idence as pro"ided in this section cannot arise, if such notice of non'pa#ment %# the drawee %an( is not sent to the ma(er or drawer, or if there is no proof as to when such notice was recei"ed %# the drawer, since there would simpl# %e no wa# of rec(onin$ the crucial 3'da# period 20 In this case, it is not disputed that chec(s were issued %# petitioner and said chec(s were su%se1uentl# dishonored The 1uestion howe"er is, was petitioner furnished a notice of dishonorN If not, is it sufficient justification to e&onerate petitioner from her criminal and ci"il lia%ilities for issuin$ the %ouncin$ chec(sN The trial court ruled that the second element is present %ecause: S the accused (new at the time of issuance of the chec(s that she did not ha"e sufficient funds in or credit with her drawee %an( for the pa#ment of the chec(s in full upon their presentment >as admitted by $er in t$e CounterGA idavit s$e e)ecuted durin( t$e preliminary investi(ation o t$ese criminal cases 8itals ours9, to wit: 2 That the time of the issuance of the said chec(s, due notice and information had %een so $i"en to Solid Gold anent the actual status of the chec(s that the same mi$ht not %e a%le to co"er the amount of the said chec(s so stated therein S 8E&hi%it JNJ, J*J, underscorin$ supplied9 This fact %ecame e"ident a$ain durin$ the cross'e&amination %# the accusedTs counsel of the prosecutionTs witness, :oa1uin No"ales III: ATTG TAGANAS: D: And the reason #ou a$reed to the terms and conditions for the issuance of post' dated chec(s %ecause #ou are also aware the particular time the accused ;rs El"ira Gu Oh did not also ha"e enou$h funds or mone# in the %an( within which to co"er the amount of the chec(sN A: I am not aware, sir D: To #our (nowled$e when the accused had alread# admitted to #ou that she had not enou$h mone# to pa# #ouN A: That is the terms and promise and a$reed upon, sir D: Cut inspite of the fact that she alread# told #ou a%out that, that #ou ne"er suspected that she did not ha"e enou$h mone# to co"er the chec(s a$reed upon and issued to #ouN A: Ges, sir D: And inspite of the fact she told #ou #ou ne"er suspected that she did not ha"e enou$h mone# to co"er #ou D: Gou still %elie"e that althou$h she does not ha"e enou$h mone# she still issued chec(s to #ouN A: Ges, sir 8TSN, April 5, *..0, pp -2'-59 At an# rate, there is alread# prima acie e"idence of (nowled$e of insufficienc# of funds

on the part of the accused from her failure to pa# the amount due on the chec(s or to ma(e arran$ements for pa#ment in full %# the drawee %an( within fi"e %an(in$ da#s after she recei"ed notice of their dishonor, each of the chec(s ha"in$ %een presented within ninet# da#s from their respecti"e dated 8C ! Cl$ --, Sec -9 The defense did not contro"ert this e"idence 8itals ours922 Althou$h the trial court in its decision, mentioned that herein petitioner recei"ed notices of dishonor, nowhere in the records is there proof that the prosecution e"er presented e"idence that petitioner recei"ed or was furnished a notice of dishonor The notices of dishonor that were presented in court and mar(ed as E&hi%its JD'-J, JE'-J, JF'-J, JG'-J, J,'-J, JI'-J, J:' -J, JQ'-J, J='-J, JC'-J23 were all sent to the pri"ate complainant, Solid Gold, and not to petitioner In con"ictin$ petitioner, the trial court, $a"e pro%ati"e wei$ht on the admission of petitioner in her Counter'Affida"it which she su%mitted durin$ the preliminar# in"esti$ation that at the time of issuance of the su%ject chec(s, she was aware and e"en told pri"ate complainant that the chec(s mi$ht not %e a%le to co"er the amount stated therein The Court of Appeals sustained the 4TC, to wit: Neither can Be a$ree that accused'appellant was still entitled to notice of dishonor of the %ouncin$ chec(s as she had no more chec(in$ account with the drawee %an( at the time of the dishonor of the ten chec(s in 1uestion Accused'appellant must ha"e reali7ed that %# closin$ her chec(in$ account after issuin$ the ten postdated chec(s, all of said chec(s would %ounce Qnowin$ that she had alread# closed her chec(in$ account with the drawee %an(, certainl# accused'appellant would not ha"e e&pected, e"en in her wildest ima$ination, that her postdated chec(s would %e honored %# the drawee %an( Thus, accused'appellant need not %e notified an#more of the o%"ious dishonor of her ru%%er chec(s 8itals ours925 Cased on the law and e&istin$ jurisprudence, we find that the appellate court erred in con"ictin$ petitioner In cases for "iolation of C ! Cl$ --, it is necessar# that the prosecution pro"e that the issuer had recei"ed a notice of dishonor Since ser"ice of notice is an issue, the person alle$in$ that the notice was ser"ed must pro"e the fact of ser"ice Casic also is the doctrine that in criminal cases, the 1uantum of proof re1uired is proof %e#ond reasona%le dou%t ,ence, for cases of C ! Cl$ -- there should %e clear proof of notice 2A Indeed, this re1uirement cannot %e ta(en li$htl# %ecause Section - pro"ides for an opportunit# for the drawer to effect full pa#ment of the amount appearin$ on the chec(, within fi"e %an(in$ da#s rom notice o dis$onor The a%sence of said notice therefore depri"es an accused of an opportunit# to preclude criminal prosecution In other words, procedural due process demands that a notice of dishonor %e actuall# ser"ed on petitioner In the case at %ar, appellant has a ri$ht to demand U and the %asic postulate of fairness re1uires U that the notice of dishonor %e actuall# sent to and recei"ed %# her to afford her to opportunit# to a"er prosecution under C ! Cl$ -- 2/ The Solicitor General contends that notice of dishonor is dispensa%le in this case considerin$ that the cause of the dishonor of the chec(s was JAccount ClosedJ and therefore, petitioner alread# (new that the chec(s will %ounce an#wa# This ar$ument has no merit The Court has decided numerous cases where chec(s were dishonored for the reason, JAccount ClosedJ2. and we ha"e e&plicitl# held in said cases that Jit is essential for the ma(er or drawer to %e notified of the dishonor of her chec(, so she could pa# the "alue thereof or ma(e arran$ements for its pa#ment within the period prescri%ed %# lawJ3< and omission or ne$lect on the part of the prosecution to pro"e that the accused recei"ed such notice of dishonor is fatal to its cause 3*

A perusal of the testimon# of the prosecution witness :oa1uin No"ales III, General ;ana$er of complainant Solid Gold, discloses that no personal demands were made on appellant %efore the filin$ of the complaints a$ainst her 3- Thus, a%sent a clear showin$ that petitioner actuall# (new of the dishonor of her chec(s and was $i"en the opportunit# to ma(e arran$ements for pa#ment as pro"ided for under the law, we cannot with moral certaint# con"ict her of "iolation of C ! Cl$ -- The failure of the prosecution to pro"e that petitioner was $i"en the re1uisite notice of dishonor is a clear $round for her ac1uittal 30 ;oreo"er, as understood %# the trial court itself in the herein afore1uoted portion of its decision, General ;ana$er No"ales (new of the non'a"aila%ilit# of sufficient funds when appellant issued the su%ject chec(s to him This Court has held that there is no "iolation of C ! -- if complainant was told %# the drawer that he has no sufficient funds in the %an( 32 For these reasons, we re"erse the rulin$ of the Court of Appeals affirmin$ the trial courtTs con"iction of petitioner for "iolation of C ! Cl$ -- This is without prejudice, howe"er, to her ci"il lia%ilit# towards pri"ate complainant Solid Gold in the amount of !3<<,<<< << plus interest thereon at the rate of *-W per annum from date of finalit# of herein jud$ment 33 ( EREFORE, the assailed Decision and 4esolution of the Court of Appeals are here%# REVERSED and SET ASIDE !etitioner El"ira Gu Oh is A#5UITTED of the offense of "iolation of C ! Cl$ -- on ten counts for insufficienc# of e"idence ,owe"er, she is ordered to pa# complainant Solid Gold International Traders, Inc the total amount of Fi"e ,undred Thousand !esos 8!3<<,<<< <<9 with *-W interest per annum from date of finalit# of herein jud$ment NSO ORDERED G.R. No. 16$81% Fe6&u!&y 22, 2008 SR. INSP. JERR2 #. VALEROSO, petitioner, "s T E PEOPLE OF T E P ILIPPINES, respondent DE#ISION RE2ES, R.T., J.* T,E law loo(s forward, ne"er %ac(ward /e) prospicit! non respicit. A new law has a prospecti"e, not retroacti"e, effect * ,owe"er, penal laws that fa"or a $uilt# person, who is not a ha%itual criminal, shall %e $i"en retroacti"e effect *'a These are the rule, the e&ception and e&ception to the e&ception on effecti"it# of laws Ang batas ay tumitingin sa hinaharap, hindi sa nakaraan. Gayunpaman, ang parusa ng bagong batas ay iiral kung ito ay pabor sa taong nagkasala na hindi pusakal na kriminal. Be appl# the e&ception rather than the rule in this petition for re"iew on certiorari of the decision of the Court of Appeals 8CA9, affirmin$ with modification that of the 4e$ional Trial Court 84TC9 in Due7on Cit#, findin$ petitioner lia%le for ille$al possession of a firearm T,e F!+/7 On :ul# *<, *..5, at around .:0< a m , S!O- Antonio ; Disuanco of the Criminal In"esti$ation Di"ision, Central !olice District Command, recei"ed a dispatch order- from the des( officer 0 The order directed him and three 809 other policemen to ser"e a warrant of arrest2 issued %# :ud$e I$nacio Sal"ador a$ainst petitioner Sr Insp :err# C 6aleroso in a case for (idnappin$ with ransom 3 After a %riefin$, the team conducted the necessar# sur"eillance on petitioner, chec(in$ his hideouts in Ca"ite, Caloocan, and Culacan 5 E"entuall#, the team proceeded to the

Inte$rated National !olice 8IN!9 Central Station at Culiat, Due7on Cit#, where the# saw petitioner as he was a%out to %oard a tric#cle A S!O- Disuanco and his team approached petitioner / The# put him under arrest, informed him of his constitutional ri$hts, and %odil# searched him . Found tuc(ed in his waist*< was a Charter Arms, %earin$ Serial Num%er 3-0*3** with fi"e 839 li"e ammunition *!etitioner was then %rou$ht to the police station for 1uestionin$ *0 A "erification of the su%ject firearm at the Firearms and E&plosi"es Di"ision at Camp Crame re"ealed that it was not issued to petitioner %ut to a certain 4aul !alencia Sal"atierra of Sampaloc, ;anila *2 Epifanio Deri1uito, the records "erifier, presented a certification*3 to that effect si$ned %# Edwin C 4o1ue, chief records officer of the Firearms and E&plosi"e Di"ision *5 !etitioner was then char$ed with ille$al possession of firearm and ammunition under !residential Decree 8! D 9 No */55,*A as amended The Information read: That on or a%out the *<th da# of :ul#, *..5, in Due7on Cit#, !hilippines, the said accused without an# authorit# of law, did then and there willfull#, unlawfull# and (nowin$l# ha"e in hisMher possession and under hisMher custod# and control One 8*9 cal 0/ JCharter ArmsJ re"ol"er %earin$ Serial No 3-0*3 with fi"e 839 li"e ammo without first ha"in$ secured the necessar# licenseMpermit issued %# the proper authorities CONT4A4G TO =AB Due7on Cit#, !hilippines, :ul# *3, *..5 8S$d 9 G=O4IA 6ICTO4IA C GA! Assistant Cit# !rosecutor*/ Bith the assistance of his counsel de parte, Att# Oscar !a$ula#an, petitioner pleaded not $uilt# when arrai$ned on Octo%er ., *..5 *. Trial on the merits ensued S!O- Disuanco and Deri1uito testified for the prosecution in the manner stated a%o"e ?pon the other hand, the defense "ersion was supplied %# the com%ined testimonies of petitioner Sr Insp :err# C 6aleroso, S!O0 A$ustin 4 Tim%ol, :r and Adrian Guson !etitioner recounted that on :ul# *<, *..5, he was fast asleep in the %oardin$ house of his children located at Sa$ana ,omes, +aran(ay New Era, Due7on Cit# -< ,e was roused from his slum%er when four 829 hea"il# armed men in ci"ilian clothes %olted the room -* The# trained their $uns at him-- and pulled him out of the room The# then tied his hands and placed him near the faucet -0 The raidin$ team went %ac( inside and searched and ransac(ed the room -2 S!O- Disuanco stood $uard outside with him -3 ;oments later, an operati"e came out of the room and e&claimed, B@oy! may naLu$a aLon( baril sa loobPB-5 !etitioner was told %# S!O- Disuanco that Jwe are authori7ed to shoot #ou %ecause thereEs a shoot to (ill order a$ainst #ou, so if #ou are plannin$ do so somethin$, do it ri$ht now J-A ,e was also told that there was a standin$ warrant for his arrest -/ ,owe"er, he was not shown an# proof when he as(ed for it -. Neither was the raidin$ $roup armed with a "alid search warrant 0< Accordin$ to petitioner, the search done in the %oardin$ house was ille$al The $un sei7ed from him was dul# licensed and co"ered %# necessar# permits ,e was, howe"er, una%le to present the documentation relati"e to the firearm %ecause it was confiscated %# the police !etitioner further lamented that when he was incarcerated, he was not allowed to en$a$e the

ser"ices of a counsel Neither was he allowed to see or tal( to his famil# 0* !etitioner contended that the police had an a&e to $rind a$ainst him Bhile still with the Narcotics Command, he turned down a re1uest of Col 4omulo Sales to white'wash a dru$' related in"esti$ation in"ol"in$ friends of the said police officer Col Sales was li(ewise su%ject of a complaint filed with the Om%udsman %# his wife Col Sales was later on appointed as the head of the unit that conducted the search in his %oardin$ house 0S!O0 Tim%ol, :r of the Narcotics Command testified that he issued to petitioner a ;emorandum 4eceipt dated :ul# *, *..000 co"erin$ the su%ject firearm and its ammunition This was upon the "er%al instruction of Col An$elito ;oreno S!O0 Tim%ol identified his si$nature02 on the said receipt 03 Adrian Guson, an occupant of the room adjacent to where petitioner was arrested, testified that on :ul# *<, *..5, two 8-9 policemen suddenl# entered his room as he was preparin$ for school 05 The# $ra%%ed his shoulder and led him out 0A Durin$ all those times, a $un was po(ed at him 0/ ,e was as(ed where petitioner was sta#in$ Fearin$ for his life, he pointed to petitionerEs room 0. Four 829 policemen then entered the room 2< ,e witnessed how the# pointed a $un at petitioner, who was clad onl# in his underwear 2* ,e also witnessed how the# forci%l# %rou$ht petitioner out of his room 2- Bhile a policeman remained near the faucet to $uard petitioner, three 809 others went %ac( inside the room 20 The# %e$an searchin$ the whole place The# forci%l# opened his loc(er,22 which #ielded the su%ject firearm 23 4TC and CA Dispositions On ;a# 5, *../, the trial court found petitioner $uilt# as char$ed, disposin$ as follows: B,E4EFO4E, the Court here%# finds the accused $uilt# %e#ond reasona%le dou%t of 6iolation of Section * of !residential Decree No */55 as amended %# 4epu%lic Act No /-.2 and here%# sentences him to suffer the penalt# of prision correccional in its ma&imum period or from 2 #ears, - months and * da# as minimum to 5 #ears as ma&imum and to pa# the fine in the amount of Fifteen Thousand !esos 8!*3,<<< <<9 The $un su%ject of this case is here%# ordered confiscated in fa"or of the $o"ernment =et the same %e put in trust in the hands of the Chief of the !N! SO O4DE4ED 25 !etitioner mo"ed to reconsider2A %ut his motion was denied on Au$ust -A, *../ 2/ ,e appealed to the CA On ;a# 2, -<<2, the appellate court affirmed with modification the 4TC disposition The fallo of the CA decision reads: 6eril#, the penalt# imposed %# the trial court upon the accused'appellant is modified to $ ye!&7 !n" 2 8on/,7 !7 80n08u8 u. /o 6 ye!&7 !7 8!908u8 ( EREFORE, with the fore$oin$ 'ODIFI#ATION as to the penalt#, the decision appealed from is here%#AFFIR'ED in all other respects SO ORDERED 2. ,is motion for reconsideration3< ha"in$ %een denied throu$h a 4esolution dated Au$ust 0, -<<2,3* petitioner resorted to the present petition under 4ule 23 I77ue7 !etitioner raises the followin$ issues for Our consideration:

I T,E ,ONO4AC=E CO?4T OF A!!EA=S CO;;ITTED SE4IO?S E44O4S OF =AB IN AFFI4;ING T,E CON6ICTION OF !ETITIONE4 DES!ITE T,E ACSENCE OF !4OOF CEGOND 4EASONAC=E DO?CT II T,E ,ONO4AC=E CO?4T OF A!!EA=S CO;;ITTED SE4IO?S E44O4S OF FACT AND =AB IN S?STAINING T,E =EGA=ITG OF T,E SEA4C, AND T,E 6A=IDITG AND AD;ISSICI=ITG OF T,E E6IDENCE OCTAINED T,E4EF4O; DES!ITE T,E O6E4B,E=;ING !4OOF T,AT T,E SA;E IS T,E F4?IT OF T,E !OISONO?S T4EE III T,E ,ONO4AC=E CO?4T OF A!!EA=S CO;;ITTED SE4IO?S E44O4S OF =AB IN NOT ?!,O=DING T,E 4EG?=A4ITG AND 6A=IDITG S?44O?NDING T,E ISS?ANCE OF T,E ;E;O4AND?; 4ECEI!TS8SIC9 IN FA6O4 OF !ETITIONE4 B,IC, !4O6ES ,IS INNOCENCE OF T,E C4I;E C,A4GE 8SIC9 3-8?nderscorin$ supplied9 Ou& Ru:0n; In ille$al possession of firearm and ammunition, the prosecution has the %urden of pro"in$ the twin elements of 8*9 the e&istence of the su%ject firearm and ammunition, and 8-9 the fact that the accused who possessed or owned the same does not ha"e the correspondin$ license for it 30 The prosecution was a%le to dischar$e its %urden The e&istence of the su%ject firearm and its ammunition was esta%lished throu$h the testimon# of S!O- Disuanco 32 Defense witness Guson also identified the firearm 33 Its e&istence was li(ewise admitted %# no less than petitioner himself 35 As for petitionerEs lac( of authorit# to possess the firearm, Deri1uito testified that a "erification of the Charter Arms Cali%er 0/ %earin$ Serial No 3-0*3 with the Firearms and E&plosi"es Di"ision at Camp Crame re"ealed that the sei7ed pistol was not issued to petitioner It was re$istered in the name of a certain 4aul !alencia Sal"atierra of Sampaloc, ;anila 3A As proof, Deri1uito presented a certification si$ned %# 4o1ue, the chief records officer of the same office 3/ The Court on se"eral occasions ruled that either the testimon# of a representati"e of, or a certification from, the !hilippine National !olice 8!N!9 Firearms and E&plosi"e Office attestin$ that a person is not a licensee of an# firearm would suffice to pro"e %e#ond reasona%le dou%t the second element of possession of ille$al firearms 3.The prosecution more than complied when it presented %oth The certi ication is outside the scope o the hearsay rule. The $eneral rule is that a witness can testif# onl# to those facts which he (nows of his personal (nowled$eH that is, which are deri"ed from his own perception 5< Otherwise, the testimon# is o%jectiona%le for %ein$ hearsa# 5* On this score, the certification from the Firearms and E&plosi"es Di"ision is an e&ception to the hearsa# rule %# "irtue of 4ule *0<, Section 22 of the 4ules of Court which pro"ides: Sec 22 Entries in o icial records U Entries in official records made in the performance of his official dut# %# a pu%lic officer of the !hilippines, or %# a person in the performance of a dut# specificall# enjoined %# law, are prima acie e"idence of the facts therein stated It ma# %e true that the contents of said certification are onl# prima acie e"idence of the facts stated there ,owe"er, the failure of petitioner to present contro"ertin$ e"idence ma(es the presumption unre%utted Thus, the presumption stands !etitioner, howe"er, raises se"eral points which he sa#s entitles him to no less than an

ac1uittal The assessment o credibility o !itnesses lies !ith the trial court. F0&7/, petitioner sa#s that the sei7ure of the su%ject firearm was in"alid The search was conducted after his arrest and after he was ta(en out of the room he was occup#in$ 5This contention deser"es scant consideration !etitionerEs "ersion of the manner and place of his arrest $oes into the factual findin$s made %# the trial court and its cali%ration of the credi%ilit# of witnesses ,owe"er, as aptl# put %# :ustice Gnares'Santia$o in People v. Eivera:50 & & & the manner of assi$nin$ "alues to declarations of witnesses on the witness stand is %est and most competentl# performed %# the trial jud$e who had the unmatched opportunit# to o%ser"e the witnesses and assess their credi%ilit# %# the "arious indicia a"aila%le %ut not reflected on record The demeanor of the person on the stand can draw the line %etween fact and fanc# or e"ince if the witness is tellin$ the truth or l#in$ throu$h his teeth Be ha"e consistentl# ruled that when the 1uestion arises as to which of the conflictin$ "ersions of the prosecution and the defense is worth# of %elief, the assessment of the trial courts are $enerall# "iewed as correct and entitled to $reat wei$ht Furthermore, in an appeal, where the culpa%ilit# or innocence of the accused depends on the issue of credi%ilit# of witnesses and the "eracit# of their testimonies, findin$s of the trial court are $i"en the hi$hest de$ree of respect if not finalit# 528?nderscorin$ supplied9 The trial court found the prosecution "ersion worth# of credence and %elief Be find no compellin$ reason not to accept its o%ser"ation on this score Borth notin$ is the fact that petitioner is a ran(in$ police officer who not onl# claims to %e hi$hl# decorated,53 %ut ha"e effected a num%er of successful arrests55 as well Common sense would dictate that he must necessaril# %e authori7ed to carr# a $un Be thus a$ree with the Office of the Solicitor General that framin$ up petitioner would ha"e %een a "er# ris(# proposition ,ad the arrestin$ officers reall# intended to cause the damnation of petitioner %# framin$ him up, the# could ha"e easil# JplantedJ a more incriminatin$ e"idence rather than a $un That would ha"e made their nefarious scheme easier, assumin$ that there indeed was one The pieces o e"idence sho! that petitioner is not legally authori#ed to possess the sub$ect irearm and its i"e %&' ammunition. Se+on", petitioner insists that he is le$all# authori7ed to possess the su%ject firearm and its ammunition on the %asis of the ;emorandum 4eceipt issued to him %# the !N! Narcotics Command 5A Althou$h petitioner is correct in his su%mission that pu%lic officers li(e policemen are accorded presumption of re$ularit# in the performance of their official duties,5/ it is onl# a presumptionH it ma# %e o"erthrown %# e"idence to the contrar# The prosecution was a%le to re%ut the presumption when it pro"ed that the issuance to petitioner of the ;emorandum 4eceipt was an#thin$ %ut re$ular S!O0 Tim%ol, :r testified that he issued the ;emorandum 4eceipt to petitioner %ased on the "er%al instruction of his immediate superior, Col ;oreno 5. ,owe"er, a readin$ of Tim%olEs testimon# on cross'e&aminationA< would re"eal that there was an unusual facilit# %# which said receipt was issued to petitioner Its issuance utterl# lac(ed the usual necessar# %ureaucratic constraints Clearl#, it was issued to petitioner under 1uestiona%le circumstances

(ailure to o er an unlicensed irearm as e"idence is not atal pro"ided there is competent testimony as to its e)istence. T,0&", petitioner claims that the su%ject firearm and ammunition should ha"e %een e&cluded as e"idence %ecause the# were not formall# offered %# the prosecutionA* in "iolation of Section 02, 4ule *0- of the 4ules of Court ABe note that petitioner contradicted himself when he ar$ued for the "alidit# of the ;emorandum 4eceipt and, at the same time, for the e&clusion in e"idence of the su%ject firearm and its ammunition !etitionerEs act ma# result to an a%surd situation where the ;emorandum 4eceipt is declared "alid, while the su%ject firearm and its ammunition which are supposedl# co"ered %# the ;emorandum 4eceipt are e&cluded as e"idence That would ha"e made the ;emorandum 4eceipt useless In an# case, petitionerEs contention has no le$ to stand on Contrar# to petitionerEs claim, the su%ject firearmA0 and its fi"e 839 li"e ammunitionA2 were offered in e"idence %# the prosecution A3 E"en assumin$ ar(uendo that the# were not offered, petitionerEs stance must still fail The e&istence of an unlicensed firearm ma# %e esta%lished %# testimon#, e"en without its presentation at trial In People v. Fre$uela,A5 the non'presentation of the pistol did not pre"ent the con"iction of the accused The doctrine was affirmed in the recent case of People v. Nalinao AA As pre"iousl# stated, the e&istence of the su%ject firearm and its fi"e 839 li"e ammunition were esta%lished throu$h the testimon# of S!O- Disuanco A/ Guson also identified said firearm A. !etitioner e"en admitted its e&istence /< Be hasten to add that there ma# also %e con"iction where an unlicensed firearm is presented durin$ trial %ut throu$h inad"ertence, ne$li$ence, or fortuitous e"ent 8for e&ample, if it is lost9, it is not offered in e"idence, as lon$ as there is competent testimon# as to its e&istence Penal and civil liabilities !etitioner was char$ed with the crime of ille$al possession of firearms and ammunition under the first para$raph of Section * of ! D No */55, as amended It pro"ides that J)t+he penalt# of reclusion temporal in its ma&imum period to reclusion perpetua shall %e imposed upon an# person who shall unlawfull# manufacture, deal in, ac1uire, dispose, or possess an# firearm, part of firearm, ammunition or machiner#, tool or instrument used or intended to %e used in the manufacture of an# firearm or ammunition J ! D No */55, as amended, was the $o"ernin$ law at the time petitioner committed the offense on :ul# *<, *..5 ,owe"er, 4 A No /-.2 amended ! D No */55 on :ul# 5, *..A,/* durin$ the pendenc# of the case with the trial court The present law now states: SECTION * UnlaK ul Nanu acture! Sale! Ac'uisition! Disposition or Possession o Firearms or Ammunition or Instruments Used or Intended to be Used in t$e Nanu acture o Firearms or Ammunition. U The penalt# of prision correccional in its ma&imum period and a fine of not less than Fifteen Thousand !esos 8 !*3,<<<9shall %e imposed upon an# person who shall unlawfull# manufacture, deal in, ac1uire, dispose, or possess an# low'powered firearm, such as rimfire hand$un, 0/< or 0- and other firearm of similar firepower, part of firearm, ammunition, or machiner#, tool or instrument used or intended to %e used in the manufacture of an# firearm or ammunition: Provided, That no other crime was committed 8?nderscorin$ supplied9 As a $eneral rule, penal laws should not ha"e retroacti"e application, lest the# ac1uire the character of an e) post acto law /- An e&ception to this rule, howe"er, is when the law is

ad"anta$eous to the accused Accordin$ to ;r Chief :ustice Araullo, this is Jnot as a ri$htJ of the offender, J%ut founded on the "er# principles on which the ri$ht of the State to punish and the commination of the penalt# are %ased, and re$ards it not as an e&ception %ased on political considerations, %ut as a rule founded on principles of strict justice J/0 Althou$h an additional fine of !*3,<<< << is imposed %# 4 A No /-.2, the same is still ad"anta$eous to the accused, considerin$ that the imprisonment is lowered to prision correccional in its ma&imum period/2 fromreclusion temporal in its ma&imum period to reclusion perpetua/3 under ! D No */55 Appl#in$ the Indeterminate Sentence =aw, prision correccional ma&imum which ran$es from four 829 #ears, two 8-9 months and one 8*9 da# to si& 859 #ears, is the prescri%ed penalt# and will form the ma&imum term of the indeterminate sentence The minimum term shall %e one de$ree lower, which is prision correccional in its medium period 8two )-+ #ears, four )2+ months and one )*+ da# to four )2+ #ears and two )-+ months9 /5 ,ence, the penalt# imposed %# the CA is correct The penalt# of four 829 #ears and two 8-9 months of prision correccional medium, as minimum term, to si& 859 #ears of prision correccional ma&imum, as ma&imum term, is in consonance with the CourtEs rulin$ in Hon*ales v. Court o Appeals/A and +arredo v. ,inarao // As to the su%ject firearm and its fi"e 839 li"e ammunition, their proper disposition should %e made under Article 23 of the 4e"ised !enal Code/. which pro"ides, amon$ others, that the proceeds and instruments or tools of the crime shall %e confiscated and forfeited in fa"or of the $o"ernment ( EREFORE, the Decision of the Court of Appeals dated ;a# 2, -<<2 is AFFIR'ED in full SO ORDERED. G.R. No. 16$81% Se./e86e& ), 200SR. INSP. JERR2 #. VALEROSO VS. #OURT OF APPEALS !n" PEOPLE OF T E P ILIPPINES RESOLUTION NA# URA, J.* For resolution is the =etter'Appeal)*+ of Senior Inspector 8Sr Insp 9 :err# C 6aleroso 86aleroso9 pra#in$ that our Fe%ruar# --, -<</ Decision)-+ and :une 0<, -<</ 4esolution)0+ %e set aside and a new one %e entered ac1uittin$ him of the crime of ille$al possession of firearm and ammunition The facts are %riefl# stated as follows: 6aleroso was char$ed with "iolation of !residential Decree No */55, committed as follows: That on or a%out the *<th da# of :ul#, *..5, in Due7on Cit#, !hilippines, the said accused without an# authorit# of law, did then and there willfull#, unlawfull# and (nowin$l# ha"e in hisMher possession and under hisMher custod# and control One 8*9 cal 0/ >Charter Arms@ re"ol"er %earin$ serial no 3-0*3 with fi"e 839 li"e ammo

without first ha"in$ secured the necessar# licenseMpermit issued %# the proper authorities CONT4A4G TO =AB )2+ Bhen arrai$ned, 6aleroso pleaded >not $uilt# @)3+ Trial on the merits ensued Durin$ trial, the prosecution presented two witnesses: Senior !olice Officer 8S!O9- Antonio Disuanco 8Disuanco9 of the Criminal In"esti$ation Di"ision of the Central !olice District CommandH and Epifanio Deri1uito 8Deri1uito9, 4ecords 6erifier of the Firearms and E&plosi"es Di"ision in Camp Crame Their testimonies are summari7ed as follows: On :ul# *<, *..5, at around .:0< a m , Disuanco recei"ed a Dispatch Order from the des( officer directin$ him and three 809 other policemen to ser"e a Barrant of Arrest, issued %# :ud$e I$nacio Sal"ador, a$ainst 6aleroso for a case of (idnappin$ with ransom )5+ After a %riefin$, the team conducted the necessar# sur"eillance on 6aleroso chec(in$ his hideouts in Ca"ite, Caloocan, and Culacan E"entuall#, the team mem%ers proceeded to the Inte$rated National !olice 8IN!9 Central !olice Station in Culiat, Due7on Cit#, where the# saw 6aleroso a%out to %oard a tric#le Disuanco and his team approached 6aleroso The# put him under arrest, informed him of his constitutional ri$hts, and %odil# searched him The# found a Charter Arms re"ol"er, %earin$ Serial No 3-0*3, with fi"e 839 pieces of li"e ammunition, tuc(ed in his waist )A+ 6aleroso was then %rou$ht to the police station for 1uestionin$ ?pon "erification in the Firearms and E&plosi"es Di"ision inCamp Crame, Deri1uito presented a certification)/+ that the su%ject firearm was not issued to 6aleroso, %ut was licensed in the name of a certain 4aul !alencia Sal"atierra of Sampaloc, ;anila ).+ On the other hand, 6aleroso, S!O0 A$ustin 4 Tim%ol, :r 8Tim%ol9, and Adrian Guson testified for the defense Their testimonies are summari7ed as follows: On :ul# *<, *..5, 6aleroso was sleepin$ inside a room in the %oardin$ house of his children located at Sa$ana ,omes, Caran$a# New Era, Due7on Cit# ,e was awa(ened %# four 829 hea"il# armed men in ci"ilian attire who pointed their $uns at him and pulled him out of the room )*<+ The raidin$ team tied his hands and placed him near the faucet 8outside the room9 then went %ac( inside, searched and ransac(ed the room ;oments later, an operati"e came out of the room and e&claimed, >@oy! may naLu$a aLon( baril sa loobP")**+ Disuanco informed 6aleroso that there was a standin$ warrant for his arrest raidin$ team was not armed with a search warrant )*-+ ,owe"er, the

Tim%ol testified that he issued to 6aleroso a ;emorandum 4eceipt)*0+ dated :ul# *, *..0 co"erin$ the su%ject firearm and its ammunition, upon the "er%al instruction of Col An$elito ;oreno )*2+ On ;a# 5, *../, the 4e$ional Trial Court 84TC9, Cranch .A, Due7on Cit#, con"icted 6aleroso as char$ed and sentenced him to suffer the indeterminate penalt# of four 829 #ears, two 8-9 months and one 8*9 da#, as minimum, to si& 859 #ears, as ma&imum The $un su%ject of the case was further ordered confiscated in fa"or of the $o"ernment )*3+

On appeal, the Court of Appeals 8CA9 affirmed)*5+ the 4TC decision %ut the minimum term of the indeterminate penalt# was lowered to four 829 #ears and two 8-9 months On petition for re"iew, we affirmed)*A+ in full the CA decision 6aleroso filed a ;otion for 4econsideration)*/+ which was denied with finalit#)*.+ on :une 0<, -<</ 6aleroso is a$ain %efore us throu$h this =etter'Appeal)-<+ implorin$ this Court to once more ta(e a contemplati"e reflection and deli%eration on the case, focusin$ on his %reached constitutional ri$hts a$ainst unreasona%le search and sei7ure )-*+ ;eanwhile, as the Office of the Solicitor General 8OSG9 failed to timel# file its Comment on 6alerosoEs ;otion for 4econsideration, it instead filed a ;anifestation in =ieu of Comment )--+ In its ;anifestation, the OSG chan$ed its pre"ious position and now recommends 6alerosoEs ac1uittal After a second loo( at the e"idence presented, the OSG considers the testimonies of the witnesses for the defense more credi%le and thus concludes that 6aleroso was arrested in a %oardin$ house ;ore importantl#, the OSG a$rees with 6aleroso that the su%ject firearm was o%tained %# the police officers in "iolation of 6alerosoEs constitutional ri$ht a$ainst ille$al search and sei7ure, and should thus %e e&cluded from the e"idence for the prosecution =astl#, assumin$ that the su%ject firearm was admissi%le in e"idence, still, 6aleroso could not %e con"icted of the crime, since he was a%le to esta%lish his authorit# to possess the $un throu$h the ;emorandum 4eceipt issued %# his superiors After considerin$ anew 6alerosoEs ar$uments throu$h his =etter'Appeal, to$ether with the OSGEs position recommendin$ his ac1uittal, and (eepin$ in mind that su%stantial ri$hts must ultimatel# rei$n supreme o"er technicalities, this Court is swa#ed to reconsider )-0+ The =etter'Appeal is actuall# in the nature of a second motion for reconsideration Bhile a second motion for reconsideration is, as a $eneral rule, a prohi%ited pleadin$, it is within the sound discretion of the Court to admit the same, pro"ided it is filed with prior lea"e whene"er su%stanti"e justice ma# %e %etter ser"ed there%# )-2+ This is not the first time that this Court is suspendin$ its own rules or e&ceptin$ a particular case from the operation of the rules In De Hu*man v. Sandi(anbayan,)-3+ despite the denial of De Gu7manEs motion for reconsideration, we still entertained his Omni%us ;otion, which was actuall# a second motion for reconsideration E"entuall#, we reconsidered our earlier decision and remanded the case to the Sandi$an%a#an for reception and appreciation of petitionerEs e"idence In that case, we said that if we would not compassionatel# %end %ac(wards and fle& technicalities, petitioner would surel# e&perience the dis$race and miser# of incarceration for a crime which he mi$ht not ha"e committed after all )-5+ Also in Astor(a v. People,)-A+ on a second motion for reconsideration, we set aside our earlier decision, re' e&amined the records of the case, then finall# ac1uitted Cenito Astor$a of the crime of Ar%itrar# Detention on the $round of reasona%le dou%t And in Sta. Eosa Eealty Development Corporation v. Amante! )-/+%# "irtue of the :anuar# *0, -<<2 En +anc 4esolution, the Court authori7ed the Special First Di"ision to suspend the 4ules, so as to allow it to consider and resol"e respondentEs second motion for reconsideration after the motion was heard on oral ar$uments After a re'e&amination of the merits of the case, we $ranted the second motion for reconsideration and set aside our earlier decision Clearl#, suspension of the rules of procedure, to pa"e the wa# for the re'e&amination of the findin$s of fact and conclusions of law earlier made, is not without %asis

Be would li(e to stress that rules of procedure are merel# tools desi$ned to facilitate the attainment of justice The# are concei"ed and promul$ated to effecti"el# aid the courts in the dispensation of justice Courts are not sla"es to or ro%ots of technical rules, shorn of judicial discretion In renderin$ justice, courts ha"e alwa#s %een, as the# ou$ht to %e, conscientiousl# $uided %# the norm that, on the %alance, technicalities ta(e a %ac(seat to su%stanti"e ri$hts, and not the other wa# around Thus, if the application of the 4ules would tend to frustrate rather than to promote justice, it would alwa#s %e within our power to suspend the rules or e&cept a particular case from its operation )-.+ Now on the su%stanti"e aspect The Court notes that the "ersion of the prosecution, as to where 6aleroso was arrested, is different from the "ersion of the defense The prosecution claims that 6aleroso was arrested near the IN! Central !olice Station in Culiat, Due7on Cit#, while he was a%out to %oard a tric#cle After placin$ 6aleroso under arrest, the arrestin$ officers %odil# searched him, and the# found the su%ject firearm and ammunition The defense, on the other hand, insists that he was arrested inside the %oardin$ house of his children After ser"in$ the warrant of arrest 8alle$edl# for (idnappin$ with ransom9, some of the police officers searched the %oardin$ house and forci%l# opened a ca%inet where the# disco"ered the su%ject firearm After a thorou$h re'e&amination of the records and consideration of the joint appeal for ac1uittal %# 6aleroso and the OSG, we find that we must $i"e more credence to the "ersion of the defense 6alerosoEs appeal for ac1uittal focuses on his constitutional ri$ht a$ainst unreasona%le search and sei7ure alle$ed to ha"e %een "iolated %# the arrestin$ police officersH and if so, would render the confiscated firearm and ammunition inadmissi%le in e"idence a$ainst him The ri$ht a$ainst unreasona%le searches and sei7ures is secured %# Section -, Article III of the Constitution which states: SEC - The ri$ht of the people to %e secure in their persons, houses, papers, and effects a$ainst unreasona%le searches and sei7ures of whate"er nature and for an# purpose shall %e in"iola%le, and no search warrant or warrant of arrest shall issue e&cept upon pro%a%le cause to %e determined personall# %# the jud$e after e&amination under oath or affirmation of the complainant and the witnesses he ma# produce, and particularl# descri%in$ the place to %e searched and the persons or thin$s to %e sei7ed From this constitutional pro"ision, it can readil# %e $leaned that, as a $eneral rule, the procurement of a warrant is re1uired %efore a law enforcer can "alidl# search or sei7e the person, house, papers, or effects of an# indi"idual )0<+ To underscore the si$nificance the law attaches to the fundamental ri$ht of an indi"idual a$ainst unreasona%le searches and sei7ures, the Constitution succinctl# declares in Article III, Section 08-9, that >an# e"idence o%tained in "iolation of this or the precedin$ section shall %e inadmissi%le in e"idence for an# purpose in an# proceedin$ @)0*+ The a%o"e proscription is not, howe"er, a%solute The followin$ are the well'reco$ni7ed

instances where searches and sei7ures are allowed e"en without a "alid warrant: * *arrantless search incidental to a la! ul arrest< [+ei#ure] o e"idence in ,plain "ie!.- The elements are: a9 a prior "alid intrusion %ased on the "alid warrantless arrest in which the police are le$all# present in the pursuit of their official dutiesH %9 the e"idence was inad"ertentl# disco"ered %# the police who ha"e the ri$ht to %e where the# areH c9 the e"idence must %e immediatel# apparentH and d9 >plain "iew@ justified mere sei7ure of e"idence without further searchH 0 +earch o a mo"ing "ehicle ,i$hl# re$ulated %# the $o"ernment, the "ehicleEs inherent mo%ilit# reduces e&pectation of pri"ac# especiall# when its transit in pu%lic thorou$hfares furnishes a hi$hl# reasona%le suspicion amountin$ to pro%a%le cause that the occupant committed a criminal acti"it#H 2 .onsented !arrantless searchH 3 .ustoms searchH 5 +top and (riskH A /)igent and emergency circumstances.)0-+ / +earch o "essels and aircra tH >and? . 0nspection o buildings and other premises or the en orcement o ire, sanitary and building regulations. )00+ In the e&ceptional instances where a warrant is not necessar# to effect a "alid search or sei7ure, what constitutes a reasona%le or unreasona%le search or sei7ure is purel# a judicial 1uestion, determina%le from the uni1ueness of the circumstances in"ol"ed, includin$ the purpose of the search or sei7ure, the presence or a%sence of pro%a%le cause, the manner in which the search and sei7ure was made, the place or thin$ searched, and the character of the articles procured )02+ In li$ht of the enumerated e&ceptions, and appl#in$ the test of reasona%leness laid down a%o"e, is the warrantless search and sei7ure of the firearm and ammunition "alidN Be answer in the ne$ati"e For one, the warrantless search could not %e justified as an incident to a lawful arrest Searches and sei7ures incident to lawful arrests are $o"erned %# Section *0, 4ule *-5 of the 4ules of Court, which reads: SEC *0 Searc$ incident to laK ul arrest. Q A person lawfull# arrested ma# %e searched for dan$erous weapons or an#thin$ which ma# ha"e %een used or constitute proof in the commission of an offense without a search warrant Be would li(e to stress that the scope of the warrantless search is not without limitations In People v. /ean(siri,)03+ People v. Cubcubin! Jr.,)05+ and People v. Estella, )0A+ we had the occasion to la# down the parameters of a "alid warrantless search and sei7ure as an incident to a lawful arrest Bhen an arrest is made, it is reasona%le for the arrestin$ officer to search the person arrested in order to remo"e an# weapon that the latter mi$ht use in order to resist arrest or effect his escape Otherwise, the officerEs safet# mi$ht well %e endan$ered, and the arrest

itself frustrated In addition, it is entirel# reasona%le for the arrestin$ officer to search for and sei7e an# e"idence on the arresteeEs person in order to pre"ent its concealment or destruction )0/+ ;oreo"er, in lawful arrests, it %ecomes %oth the dut# and the ri$ht of the apprehendin$ officers to conduct a warrantless search not onl# on the person of the suspect, %ut also in the permissi%le area within the latterEs reach )0.+ Otherwise stated, a "alid arrest allows the sei7ure of e"idence or dan$erous weapons either on the person o the one arrested or !ithin the area o his immediate control.)2<+ The phrase >within the area of his immediate control@ means the area from within which he mi$ht $ain possession of a weapon or destructi%le e"idence )2*+ A $un on a ta%le or in a drawer in front of one who is arrested can %e as dan$erous to the arrestin$ officer as one concealed in the clothin$ of the person arrested )2-+ In the present case, 6aleroso was arrested %# "irtue of a warrant of arrest alle$edl# for (idnappin$ with ransom At that time, 6aleroso was sleepin$ inside the %oardin$ house of his children ,e was awa(ened %# the arrestin$ officers who were hea"il# armed The# pulled him out of the room, placed him %eside the faucet outside the room, tied his hands, and then put him under the care of Disuanco )20+ The other police officers remained inside the room and ransac(ed the loc(ed ca%inet)22+ where the# found the su%ject firearm and ammunition )23+ Bith such disco"er#, 6aleroso was char$ed with ille$al possession of firearm and ammunition From the fore$oin$ narration of facts, we can readil# conclude that the arrestin$ officers ser"ed the warrant of arrest without an# resistance from 6aleroso The# placed him immediatel# under their control %# pullin$ him out of the %ed, and %rin$in$ him out of the room with his hands tied To %e sure, the ca%inet which, accordin$ to 6aleroso, was loc(ed, could no lon$er %e considered as an >area within his immediate control@ %ecause there was no wa# for him to ta(e an# weapon or to destro# an# e"idence that could %e used a$ainst him The arrestin$ officers would ha"e %een justified in searchin$ the person of 6aleroso, as well as the ta%les or drawers in front of him, for an# concealed weapon that mi$ht %e used a$ainst the former Cut under the circumstances o%tainin$, there was no compara%le justification to search throu$h all the des( drawers and ca%inets or the other closed or concealed areas in that room itself )25+ It is worth# to note that the purpose of the e&ception 8warrantless search as an incident to a lawful arrest9 is to protect the arrestin$ officer from %ein$ harmed %# the person arrested, who mi$ht %e armed with a concealed weapon, and to pre"ent the latter from destro#in$ e"idence within reach The e&ception, therefore, should not %e strained %e#ond what is needed to ser"e its purpose )2A+ In the case %efore us, search was made in the loc(ed ca%inet which cannot %e said to ha"e %een within 6alerosoEs immediate control Thus, the search e&ceeded the %ounds of what ma# %e considered as an incident to a lawful arrest )2/+ Nor can the warrantless search in this case %e justified under the >plain "iew doctrine @ The >plain "iew doctrine@ ma# not %e used to launch un%ridled searches and indiscriminate sei7ures or to e&tend a $eneral e&plorator# search made solel# to find e"idence of defendantEs $uilt The doctrine is usuall# applied where a police officer is not searchin$ for

e"idence a$ainst the accused, %ut nonetheless inad"ertentl# comes across an incriminatin$ o%ject )2.+ As enunciated in People v. Cubcubin! Jr.)3<+ and People v. /ean(siri-)3*+ Bhat the >plain "iew@ cases ha"e in common is that the police officer in each of them had a prior justification for an intrusion in the course of which),+ he came inad"ertentl# across a piece of e"idence incriminatin$ the accused The doctrine ser"es to supplement the prior justification U whether it %e a warrant for another o%ject, hot pursuit, search incident to lawful arrest, or some other le$itimate reason for %ein$ present unconnected with a search directed a$ainst the accused U and permits the warrantless sei7ure Of course, the e&tension of the ori$inal justification is le$itimate onl# where it is immediatel# apparent to the police that the# ha"e e"idence %efore themH the >plain "iew@ doctrine ma# not %e used to e&tend a $eneral e&plorator# search from one o%ject to another until somethin$ incriminatin$ at last emer$es )3-+ Indeed, the police officers were inside the %oardin$ house of 6alerosoEs children, %ecause the# were supposed to ser"e a warrant of arrest issued a$ainst 6aleroso In other words, the police officers had a prior justification for the intrusion Conse1uentl#, an# e"idence that the# would inad"ertentl# disco"er ma# %e used a$ainst 6aleroso ,owe"er, in this case, the police officers did not just accidentall# disco"er the su%ject firearm and ammunitionH the# actuall# searched for e"idence a$ainst 6aleroso Clearl#, the search made was ille$al, a "iolation of 6alerosoEs ri$ht a$ainst unreasona%le search and sei7ure Conse1uentl#, the e"idence o%tained in "iolation of said ri$ht is inadmissi%le in e"idence a$ainst him ?nreasona%le searches and sei7ures are the menace a$ainst which the constitutional $uarantees afford full protection Bhile the power to search and sei7e ma# at times %e necessar# for pu%lic welfare, still it ma# %e e&ercised and the law enforced without trans$ressin$ the constitutional ri$hts of the citi7ens, for no enforcement of an# statute is of sufficient importance to justif# indifference to the %asic principles of $o"ernment Those who are supposed to enforce the law are not justified in disre$ardin$ the ri$hts of an indi"idual in the name of order Order is too hi$h a price to pa# for the loss of li%ert# )30+ Cecause a warrantless search is in dero$ation of a constitutional ri$ht, peace officers who conduct it cannot in"o(e re$ularit# in the performance of official functions )32+ The Cill of 4i$hts is the %edroc( of constitutional $o"ernment If people are stripped na(ed of their ri$hts as human %ein$s, democrac# cannot sur"i"e and $o"ernment %ecomes meanin$less This e&plains wh# the Cill of 4i$hts, contained as it is in Article III of the Constitution, occupies a position of primac# in the fundamental law wa# a%o"e the articles on $o"ernmental power )33+ Bithout the ille$all# sei7ed firearm, 6alerosoEs con"iction cannot stand There is simpl# no sufficient e"idence to con"ict him )35+ All told, the $uilt of 6aleroso was not pro"en %e#ond reasona%le dou%t measured %# the re1uired moral certaint# for con"iction The e"idence presented %# the prosecution was not enou$h to o"ercome the presumption of innocence as constitutionall# ordained Indeed, it would %e %etter to set free ten men who mi$ht pro%a%l# %e $uilt# of the crime char$ed than to con"ict one innocent man for a crime he did not

commit )3A+ Bith the fore$oin$ dis1uisition, there is no more need to discuss the other issues raised %# 6aleroso One final note The Court "alues li%ert# and will alwa#s insist on the o%ser"ance of %asic constitutional ri$hts as a conditionsine 'ua non a$ainst the awesome in"esti$ati"e and prosecutor# powers of the $o"ernment )3/+ ( EREFORE, in "iew of the fore$oin$, the Fe%ruar# --, -<</ Decision and :une 0<, -<</ 4esolution areRE#ONSIDERED and SET ASIDE Sr Insp :err# 6aleroso is here%# A#5UITTED of ille$al possession of firearm and ammunition SO ORDERED G.R. No. 177-61 A.&0: 7, 200LOURDES A. SA3LE VS. PEOPLE OF T E P ILIPPINES !n" ON. ENRI5UETA LO5UILLANO43ELAR'INO, P&e70"0n; Ju";e, 3&!n+, %7, RT#, #e6u #0/y DECISION C,ICO'NAXA4IO, J : Cefore ?s is a !etition for Certiorari[1] under 4ule 53 of the 4e"ised 4ules of Court filed %# petitioner =ourdes A Sa%le see(in$ the re"ersal and the settin$ aside of the Decision)-+ dated *2 Decem%er -<<5 and 4esolution)0+ dated -* Fe%ruar# -<<A of the Court of Appeals in CA'G 4 CEC'C4 No /*./* In its assailed Decision, the Court of Appeals affirmed the Order)2+ dated-- :ul# -<<0 of the 4e$ional Trial Court 84TC9 of Ce%u, Cranch 3A, disallowin$ petitionerEs application for pro%ation in Criminal Case No CC?'03233, and denied petitionerEs ;otion for 4econsideration thereof The undisputed facts are as follows: !etitioner, to$ether with Concepcion A%an$an 8Concepcion9, Ildefonsa Ano%a 8Ildefonsa9 and 6alentine A%ellanosa 86alentine9, is accused in Criminal Case No CC?'03233 of Falsification of !u%lic Documents under Article *A-8*9 in relation to Article *A* of the 4e"ised !enal Code !etitioner and co'accused Ildefonsa were arrai$ned on -< :ul# *..2 while co' accused Concepcion was ne"er arrested Durin$ the initial trial, Att# Gines A%ellana, counsel for all the accused, manifested that co'accused 6alentine was alread# dead and re1uested that his name %e dropped from the information !etitioner and co'accused Ildefonsa are the $rand'dau$hters of Eleuteria A%an$an, who is one of the re$istered owners of =ot No 05</, which is re$istered under Ori$inal Certificate of Title 8OCT9 No 4O'-A2< in the names of Andrea A%an$an, Fa%ian A%an$an, Ser$io A%an$an, Antonino A%an$an, !erfecta A%an$an and Eleuteria A%an$an !ri"ate complainant Gaspar A%an$an 8Gaspar9 is the $randson of =am%erto A%an$an, who is a %rother of the re$istered owners of the lot !etitioner, to$ether with her co'accused Ildefonsa, alle$edl# falsified an E&trajudicial Declaration of ,eirs with Bai"er of 4i$hts and !artition A$reement, as the si$natures contained therein were not the si$natures of the true owners of the land !etitioner and Ildefonsa also alle$edl# caused it to appear that a certain 4emedios

A%an$an, who was alread# dead, si$ned the document C# "irtue of the E&trajudicial Declaration of ,eirs, =ot No 05</ was su%di"ided into two lots, namel#, 05</'A and 05</'CH and OCT No 4O'-A2< was cancelled =ot No 05</'A was transferred to the name of co'accused Concepcion and was re$istered under Transfer Certificate of Title 8TCT9 No **0-55 Bith respect to =ot No 05</'C, petitioner was a%le to e&ecute a Deed of A%solute Sale in fa"or of one !erpetua Som%ilon, and accordin$l#, the title to the lot was transferred to the name of the latter under TCT No **0-5A On -/ No"em%er -<<<, the 4TC con"icted petitioner of the crime of Falsification of !u%lic Documents under Article *A-8*9 in relation to Article *A* of the 4e"ised !enal Code, %ut ac1uitted Ildefonsa The dispositi"e portion of the Decision reads: B,E4EFO4E, in "iew of the fore$oin$, the court finds accused Ildefonsa Ano%a not $uilt# ,owe"er, the court finds =ourdes A%ellanosa Sa%le $uilt# %e#ond reasona%le dou%t of the crime char$ed and here%# sentences her to suffer an indeterminate penalt# of FO?4 829 GEA4S, TBO 8-9 ;ONT,S and ONE 8*9 DAG to SIO 859 GEA4S )3+ Thereafter, petitioner filed a ;otion for 4econsideration)5+ of said 4TC Decision on -< :anuar# -<<* After se"eral postponements due to the "acanc# in the court a 'uo, the motion was su%mitted for resolution onl# on -. :une -<<* The same was denied %# respondent :ud$e Enri1ueta =o1uillano'Celarmino in an Order)A+ dated -< No"em%er -<<0 On *0 Decem%er -<<-, a cop# of the Order den#in$ reconsideration of the jud$ment was recei"ed %# petitionerEs counsel Due to petitionerEs failure to interpose a timel# appeal, an entr# of jud$ment was issued on 3 :une -<<0 !etitioner, throu$h counsel, filed ;otions to 4ecall Barrant of Arrest and to 6acate Entr# of :ud$ment with 4econsideration and E&planation)/+ on *- :une -<<0 alle$in$, amon$ other thin$s, that petitionerEs counsel did not recei"e the Order %ecause it was recei"ed %# a certain Che who was under$oin$ practicum in her counselEs law office On the da# of receipt thereof, it was CheEs last da# at the office !etitionerEs counsel further alle$ed that he was of the %elief that his ;otion for 4econsideration of the jud$ment of con"iction would %e rescheduled for hearin$ after the same had %een postponed due to the "acanc# in the court a 'uo !endin$ resolution of the ;otions to 4ecall Barrant of Arrest and to 6acate Entr# of :ud$ment with 4econsideration, petitioner filed a Notice of Appeal on *A :une -<<0 ).+ Su%se1uentl#, in an Order)*<+ dated -- :ul# -<<0, respondent :ud$e denied the ;otions to 4ecall Barrant of Arrest and to 6acate Entr# of :ud$ment !etitionerEs Notice of Appeal was also denied for ha"in$ %een filed out of time On -3 Au$ust -<<0, petitioner mo"ed for the reconsideration of the -- :ul# -<<0 Order and intimated her desire to appl# for pro%ation instead of appealin$ the jud$ment of con"iction )**+ In a ;otion)*-+ dated *3 Octo%er -<<0, petitioner a$ain pra#ed for the 4ecall of the Barrant of Arrest a$ainst her, while her ;otion for 4econsideration and her application for pro%ation were pendin$ resolution %efore the 4TC Finall#, on -< No"em%er -<<0, the 4TC issued the assailed Order, the dispositi"e portion of

which reads as follows: B,E4EFO4E, accusedEs motion for reconsideration of the Order dated :ul# --, -<<0, motion to recall warrant of arrest and motion to allow accused to a"ail of the %enefits of the !ro%ation =aw, all are here%# denied )*0+ !etitioner filed a !etition for Certiorari under 4ule 53 %efore the Court of Appeals doc(eted as CA'G 4 CEC'C4 No /*./*, raisin$ the sole issue of whether or not the respondent court acted with $ra"e a%use of discretion in den#in$ the application for pro%ation In its Decision)*2+ dated *2 Decem%er -<<5, the Court of Appeals denied the petition for lac( of merit, statin$ that the alle$ed failure of petitionerEs counsel to timel# appeal the jud$ment of con"iction followin$ the denial of the reconsideration thereof could not amount to e&cusa%le ne$li$ence It further enunciated that a notice of appeal of jud$ment filed si& months after the denial of the motion for reconsideration was denied is filed out of time and, as a result, the application for pro%ation must necessaril# fail %ecause the remedies of appeal and pro%ation are alternati"e and mutuall# e&clusi"e of each other The Court of Appeals refused to reconsider its earlier Decision in a 4esolution dated -* Fe%ruar# -<<A ,ence, this !etition for Certiorari under 4ule 53 of the 4ules of Court raisin$ the sole issue: B,ET,E4 O4 NOT T,E ,ONO4AC=E CO?4T OF A!!EA=S ACTED BIT, G4A6E AC?SE OF DISC4ETION A;O?NTING TO =ACQ O4 EOCESS OF :?4ISDICTION IN AFFI4;ING T,E T4IA= CO?4TES O4DE4 DENGING !ETITIONE4ES A!!=ICATION FO4 !4OCATION )*3+ The petitioner pra#s that the instant petition %e $ranted %# allowin$ her to appl# for pro%ation and orderin$ the 4TC throu$h respondent :ud$e to act on the application for pro%ation %# the petitioner, %ased upon the recommendation of the pro%ationer who ma# %e assi$ned to conduct the in"esti$ation of said application For the State, the Solicitor General ar$ues that the Court of Appeals properl# denied the petition %efore it %ecause, first, it is procedurall# flawed for %ein$ an improper recourseH and secondl#, for non'compliance with the mandator# re1uirement of the law that an application for pro%ation must %e filed within the period for perfectin$ an appeal Be find the !etition de"oid of merit !ro%ation is a special pri"ile$e $ranted %# the state to a penitent 1ualified offender It essentiall# rejects appeals and encoura$es an otherwise eli$i%le con"ict to immediatel# admit his lia%ilit# and sa"e the state the time, effort and e&penses to jettison an appeal )*5+ The pertinent pro"ision of the !ro%ation =aw, as amended, reads: Sec 2 G&!n/ o= P&o6!/0on ISu%ject to the pro"isions of this Decree, the trial court ma#, after it shall ha"e con"icted and sentenced a defendant and upon application %# said defendant Kit$in t$e period or per ectin( an appeal! suspend

the e&ecution of the sentence and place the defendant on pro%ation for such period and upon such terms and conditions as it ma# deem %estH !ro"ided, That no application or probation s$all be entertained or (ranted i t$e de endant $as per ected t$e appeal rom t$e &ud(ment o conviction. !ro%ation ma# %e $ranted whether the sentence imposes a term of imprisonment or a fine onl# An application for pro%ation shall %e filed with the trial court The filin$ of the application shall %e deemed a wai"er of the ri$ht to appeal )*A+ 8Emphasis supplied 9 It is 1uite clear from the afore'1uoted pro"ision that an application for pro%ation must %e made within the period for perfectin$ an appeal, and the filin$ of the application after the time of appeal has lapsed is injurious to the recourse of the applicant In the present petition %efore ?s, petitioner filed the application for pro%ation on -3 Au$ust -<<0, almost ei$ht months from the time the assailed jud$ment of the 4TC %ecame final Clearl#, the application for pro%ation was filed out of time pursuant to 4ule *--, Sec 5 of the 4ules of Court, which states that an >appeal must %e ta(en within fifteen 8*39 da#s from promul$ation of the jud$ment or from notice of the final order appealed from @ In Palo v. Nilitante![18] this Court held that what the law re1uires is that the application for pro%ation must %e filed within the period for perfectin$ an appeal The need to file it within such period is intended to encoura$e offenders, who are willin$ to %e reformed and reha%ilitated, to a"ail themsel"es of pro%ation at the first opportunit# Furthermore, the application for pro%ation must necessaril# fail, %ecause %efore the application was instituted, petitioner alread# filed a Notice of Appeal %efore the 4TC on *A :une -<<0 The !ro%ation =aw is patentl# clear that >no application for pro%ation shall %e entertained or $ranted if the defendant has perfected the appeal from the jud$ment of con"iction @ The law e&pressl# re1uires that an accused must not ha"e appealed his con"iction %efore he can a"ail himself of pro%ation This outlaws the element of speculation on the part of the accused '' to wa$er on the result of his appeal '' that when his con"iction is finall# affirmed on appeal, the moment of truth well ni$h at hand and the ser"ice of his sentence ine"ita%le, he now applies for pro%ation as an >escape hatch,@ thus renderin$ nu$ator# the appellate courtEs affirmance of his con"iction Conse1uentl#, pro%ation should %e a"ailed of at the first opportunit# %# con"icts who are willin$ to %e reformed and reha%ilitatedH who manifest spontaneit#, contrition and remorse )*.+ This was the reason wh# the !ro%ation =aw was amended, precisel# to put a stop to the practice of appealin$ from jud$ments of con"iction e"en if the sentence is pro%ationa%le, for the purpose of securin$ an ac1uittal and appl#in$ for the pro%ation onl# if the accused fails in his %id )-<+ Be also note that the petitioner is una%le to ma(e up her mind as to what recourse she will pursue, since in her petition forCertiorari she 1uestioned the denial of her pro%ation, )-*+ while in her ;emorandum she 1uestioned the denial of her appeal )--+ This just o%"iousl# manifests the intention of petitioner to %enefit from the remed# of pro%ation just in case the remed# of appeal is not $i"en due course !re"ailin$ jurisprudence treats appeal and pro%ation as mutuall# e&clusi"e remedies %ecause the law is unmista(a%le a%out it and,

therefore, petitioner cannot a"ail herself of %oth )-0+ The e&planation $i"en %# petitioner as to the cause of the failure to appeal the jud$ment of con"iction is flims# !etitionerEs counsel claims that the Order of the 4TC den#in$ the ;otion for 4econsideration dated -< :anuar# -<<* was recei"ed %# a certain Che, who was a student doin$ practicum in his law office, and he attri%uted the non'receipt of the Order to her and claimed that the mista(e was e&cusa%le Be a$ree with the Court of Appeals that to constitute e&cusa%le ne$li$ence, such must %e due to some une&pected or una"oida%le e"ent, and not due to petitioner counselEs self' admitted mista(e or ne$li$ence in not $i"in$ proper instruction to his staff Time and a$ain, the Court has admonished law firms to adopt a s#stem of distri%utin$ pleadin$s and notices, where%# law#ers wor(in$ therein promptl# recei"e notices and pleadin$s intended for cases The Court has also often repeated that cler(Es ne$li$ence that ad"ersel# affects the cases handled %# law#ers is %indin$ upon the latter )-2+ Finall#, we find that there is an error in the mode of appeal used %# petitioner ?nder 4ule *--, Section 08e9 of the 4ules of Court, >)e+&cept as pro"ided in the last para$raph of Section *0, 4ule *-2, all other appeals to the Supreme Court shall %e %# petition for re"iew on certiorari under 4ule 23 @ ,ere, petitioner ele"ated this petition via a !etition for Certiorari under 4ule 53 ?nder the 4ules, su%ject to the e&ceptions,)-3+ appeal to the Supreme Court must %e via a petition for 4e"iew under 4ule 23 Since, this appeal is not within the e&ceptions, the proper mode of appeal should %e a !etition for 4e"iew under 4ule 23, not under 4ule 53 It has %een held that the proper remed# of the part# a$$rie"ed %# a decision of the Court of Appeals is a petition for re"iew under 4ule 23, which is not identical with a petition for re"iew under 4ule 53 ?nder 4ule 23, decisions, final orders or resolutions of the Court of Appeals in an# case, i.e.! re$ardless of the nature of the action or proceedin$s in"ol"ed, ma# %e appealed to us %# filin$ a petition for re"iew, which would %e %ut a continuation of the appellate process o"er the ori$inal case On the other hand, a special ci"il action under 4ule 53 is an independent action %ased on the specific $round therein pro"ided and, as a $eneral rule, cannot %e a"ailed of as a su%stitute for the lost remed# of an ordinar# appeal, includin$ that to %e ta(en under 4ule 23 )-5+ One of the re1uisites of certiorari is that there %e no a"aila%le appeal or an# plain, speed# and ade1uate remed# Bhere an appeal is a"aila%le, certiorari will not prosper e"en if the $round therefor is $ra"e a%use of discretion )-A+ Accordin$l#, when a part# adopts an improper remed#, as in this case, his petition ma# %e dismissed outri$ht )-/+ Therefore, there is no a%use of discretion amountin$ to lac( or e&cess of jurisdiction in the Court of AppealsE Decision and 4esolution affirmin$ the trial courtEs Orders den#in$ petitionerEs Notice of Appeal, ;otions to 4ecall Barrant of Arrest and to 6acate Entr# of :ud$ment, and the application for pro%ation There is nothin$ capricious in not $rantin$ an appeal after the time to file the same has lapsed, nor is there an#thin$ ar%itrar# in den#in$ an application for pro%ation after a notice of appeal has %een filed ( EREFORE, premises considered, the instant !etition for Certiorari under 4ule 53 is here%# DIS'ISSED The Decision dated *2 Decem%er -<<5 and 4esolution dated -* Fe%ruar# -<<A of the Court of Appeals are AFFIR'ED. No costs SO ORDERED.

G.R. No. 168%$6 Ju:y 2), 2008 'I# AEL PADUA VS. .EOPLE OF T E P ILIPPINES DE#ISION 5UISU'3ING, J.* This petition for re"iew assails the Decision>1? dated April *., -<<3 and 4esolution>2? dated :une *2, -<<3, of the Court of Appeals in CA'G 4 S! No /5.AA which had respecti"el# dismissed ;ichael !aduaEs petition for certiorari and denied his motion for reconsideration !aduaEs petition for certiorari %efore the Court of Appeals assailed the Orders dated ;a# **, -<<2>)? and :ul# -/, -<<2>$? of the 4e$ional Trial Court 84TC9, Cranch *5/, !asi$ Cit#, which had denied his petition for pro%ation The facts, culled from the records, are as follows: On :une *5, -<<0, petitioner ;ichael !adua and Ed$ar Allan ?%alde were char$ed %efore the 4TC, Cranch *5/, !asi$ Cit# of "iolatin$ Section 3,>%? Article II of 4epu%lic Act No .*53, >6? otherwise (nown as the >Comprehensi"e Dan$erous Dru$s Act of -<<-,@ for sellin$ dan$erous dru$s >7? The Information reads: The !rosecution, throu$h the undersi$ned !u%lic !rosecutor, char$es E";!& A::!n U6!:"e y Ve:+,e@ !.A.!. BA::!nC and '0+,!e: P!"u!y To&"e: !.A.!. B'0AeC, with the crime of "iolation of Sec 3, Art II, 4epu%lic Act No .*53 in relation to 4 A )No + /05., Sec 3 par 8a9 and 8i9, committed as follows: On or a%out :une 5, -<<0, in !asi$ Cit#, and within the jurisdiction of this ,onora%le Court, the accused, Ed$ar Allan ?%alde # 6elche7 and ;ichael !adua # Tordel, a minor, se"enteen 8*A9 #ears old, conspirin$ and confederatin$ to$ether and %oth of them mutuall# helpin$ and aidin$ one another, not %ein$ lawfull# authori7ed to sell an# dan$erous dru$, did then and there willfull#, unlawfull# and feloniousl# sell, deli"er and $i"e awa# to !O* 4oland A !anis, a police poseur'%u#er, one 8*9 folded newsprint containin$ 2 /5 $rams of dried marijuana fruitin$ tops, which was found positi"e to the tests for marijuana, a dan$erous dru$, in "iolation of the said law Contrar# to law >8? Bhen arrai$ned on Octo%er *0, -<<0, !adua, assisted %# his counsel de o icio, entered a plea of not $uilt# >-? Durin$ the pre'trial conference on Fe%ruar# -, -<<2, howe"er, !aduaEs counsel manifested that his client was willin$ to withdraw his plea of not $uilt# and enter a plea of $uilt# to a"ail of the %enefits $ranted to first'time offenders under Section A<>10? of 4ep Act No .*53 The prosecutor interposed no o%jection >11? Thus, the 4TC on the same date issued an Order>12? statin$ that the former plea of !adua of not $uilt# was considered withdrawn !adua was re'arrai$ned and pleaded $uilt# ,ence, in a Decision>1)? dated Fe%ruar# 5, -<<2, the 4TC found !adua $uilt# of the crime char$ed: In vieK o t$e ore(oin(, the Court finds accused ;ichael !adua # Tordel $uilt# of

)"+iolation of Sec 3 Art II of 4 A No .*53 in relation to 4 A No /05. Sec 3 par 8a9 and 8i9 thereof, and therefore, sentences him to suffer an indeterminate sentence of si& 859 #ears and one 8*9 da# of !rision ;a#or as minimum to se"enteen 8*A9 #ears and four 829 months of reclusion temporal as ma&imum and a fine of Fi"e ,undred Thousand !esos 8!3<<,<<< <<9 No su%sidiar# imprisonment, howe"er, shall %e imposed should )the+ accused fail to pa# the fine pursuant to Art 0. par 0 of the 4e"ised !enal Code SO O4DE4ED >1$? !adua su%se1uentl# filed a !etition for !ro%ation >1%? dated Fe%ruar# *<, -<<2 alle$in$ that he is a minor and a first'time offender who desires to a"ail of the %enefits of pro%ation under !residential Decree No .5/>16? 8! D No .5/9, otherwise (nown as >The !ro%ation =aw of *.A5@ and Section A< of 4ep Act No .*53 ,e further alle$ed that he possesses all the 1ualifications and none of the dis1ualifications under the said laws The 4TC in an Order>17? dated Fe%ruar# *<, -<<2 directed the !ro%ation Officer of !asi$ Cit# to conduct a !ost'Sentence In"esti$ation and su%mit a report and recommendation within 5< da#s from receipt of the order The Cit# !rosecutor was also directed to su%mit his comment on the said petition within fi"e da#s from receipt of the order On April 5, -<<2, Chief !ro%ation and !arole Officer :osefina : !asana su%mitted a !ost' Sentence In"esti$ation 4eport to the 4TC recommendin$ that !adua %e placed on pro%ation >18? ,owe"er, on ;a# **, -<<2, pu%lic respondent !airin$ :ud$e A$nes 4e#es'Carpio issued an Order den#in$ the !etition for !ro%ation on the $round that under Section -2 >1-? of 4ep Act No .*53, an# person con"icted of dru$ traffic(in$ cannot a"ail of the pri"ile$e $ranted %# the !ro%ation =aw The court ruled thus: Cefore this Court now is the !ost'Sentence In"esti$ation 4eport 8!SI49 on minor ;ichael !adua # Tordel prepared %# Senior !arole and !ro%ation Officer Teodoro 6illa"erde and su%mitted %# the Chief of the !asi$ Cit# !arole and !ro%ation Office, :osefina : !asana In the aforesaid !SI4, Senior !!O Teodoro 6illa"erde recommended that minor ;ichael !adua # Tordel %e placed on pro%ation, anchorin$ his recommendation on Articles */. and *.- of ! D 5<0, otherwise (nown as the Child and Belfare Code, as amended, which deal with the suspension of sentence and commitment of #outhful offender Such articles, therefore, do not find application in this case, the matter %efore the Court %ein$ an application for pro%ation %# minor ;ichael !adua # Tordel and not the suspension of his sentence On the other hand, Section A< is under Article 6III of 4 A .*53 which deals with the !ro$ram for Treatment and 4eha%ilitation of Dru$ Dependents Sections 32 to A5, all under Article 6III of 4 A .*53 specificall# refer to "iolations of either Section *3 or Section ** Nowhere in Article 6III was )"+iolation of Section 3 e"er mentioned ;ore importantl#, while the pro"isions of 4 A .*53, particularl# Section A<

thereof deals with !ro%ation or Communit# Ser"ice for First' Time ;inor Offender in =ieu of Imprisonment, the Court is of the "iew and so holds that minor ;ichael !adua # Tordel who was char$ed and con"icted of "iolatin$ Section 3, Article II, 4 A .*53, cannot a"ail of pro%ation under said section in "iew of the pro"ision of Section -2 which is hereunder 1uoted: >Sec -2 Non'Applica%ilit# of the !ro%ation =aw for Dru$ Traffic(ers and !ushers U An# person con"icted for dru$ traffic(in$ or pushin$ under this Act, re$ardless of the penalt# imposed %# the Court, cannot a"ail of the pri"ile$e $ranted %# the !ro%ation =awor !residential Decree No .5/, as amended @ 8underlinin$ supplied9 ( EREFORE, premises considered, the !etition for !ro%ation filed %# ;ichael !adua # Tord)e+l should %e, as it is here%# DENIED SO O4DE4ED >20? !adua filed a motion for reconsideration of the order %ut the same was denied on :ul# -/, -<<2 ,e filed a petition for certiorari under 4ule 53 with the Court of Appeals assailin$ the order, %ut the Court of Appeals, in a Decision dated April *., -<<3, dismissed his petition The dispositi"e portion of the decision reads: ( EREFORE, in "iew of the fore$oin$, the petition is here%# DENIED for lac( of merit and ordered DIS'ISSED SO ORDERED >21? !adua filed a motion for reconsideration of the Court of Appeals decision %ut it was denied ,ence, this petition where he raises the followin$ issues: I B,ET,E4 O4 NOT T,E CO?4T OF A!!EA=S E44ED IN AFFI4;ING T,E DENIA= OF T,E !ETITION FO4 !4OCATION B,IC, DE!4I6ED !ETITIONE4ES 4IG,T AS A ;INO4 ?NDE4 AD;INIST4ATI6E O4DE4 NO )<-'*' */'SC+ OT,E4BISE QNOBN AS )T,E+ 4?=E ON :?6ENI=ES IN CONF=ICT BIT, T,E =AB II B,ET,E4 O4 NOT )T,E+ ACC?SED)ES+ 4IG,T )TO CE 4E=EASED ?NDE4 4ECOGNIXANCE+ ,AS CEEN 6IO=ATED O4 DE!4I6ED IN T,E =IG,T OF 4 A .022 OT,E4BISE QNOBN AS AN ACT ESTAC=IS,ING A CO;!4E,ENSI6E :?6ENI=E :?STICE AND BE=FA4E SGSTE;, C4EATING T,E :?6ENI=E :?STICE AND BE=FA4E CO?NCI= ?NDE4 DE!A4T;ENT OF :?STICE A!!4O!4IATING F?NDS T,E4EFO4 AND OT,E4 !?4!OSES >22? The Office of the Solicitor General 8OSG9, representin$ pu%lic respondent, opted to adopt its Comment>2)? as its ;emorandum In its Comment, the OSG countered that I T,E T4IA= CO?4T AND T,E CO?4T OF A!!EA=S ,A6E =EGA= CASIS IN A!!=GING SECTION -2, A4TIC=E II OF 4 A .*53 INSTEAD OF SECTION A<, A4TIC=E 6III OF T,E SA;E =AB II SECTION 0- OF A ; NO <-'*'*/'SC OT,E4BISE QNOBN AS T,E >EU/E FC JU,ECI/ES IC CFCF/ICT #IT@ T@E /A# @ ,AS NO A!!=ICATION TO T,E INSTANT CASE >2$?

Simpl#, the issues are: 8*9 Did the Court of Appeals err in dismissin$ !aduaEs petition for certiorari assailin$ the trial courtEs order den#in$ his petition for pro%ationN 8-9 Bas !aduaEs ri$ht under 4ep Act No .022,>2%? the >:u"enile :ustice and Belfare Act of -<<5,@ "iolatedN and 809 Does Section 0->26? of A ; No <-'*'*/'SC otherwise (nown as the >4ule on :u"eniles in Conflict with the =aw@ ha"e application in this caseN As to the first issue, we rule that the Court of Appeals did not err in dismissin$ !aduaEs petition for certiorari For certiorari to prosper, the followin$ re1uisites must concur: 8*9 the writ is directed a$ainst a tri%unal, a %oard or an# officer e&ercisin$ judicial or 1uasi'judicial functionsH 8-9 such tri%unal, %oard or officer has acted without or in e&cess of jurisdiction, or with $ra"e a%use of discretion amountin$ to lac( or e&cess of jurisdictionH and 809 there is no appeal or an# plain, speed# and ade1uate remed# in the ordinar# course of law >27? >Bithout jurisdiction@ means that the court acted with a%solute lac( of authorit# There is >e&cess of jurisdiction@ when the court transcends its power or acts without an# statutor# authorit# >Gra"e a%use of discretion@ implies such capricious and whimsical e&ercise of jud$ment as to %e e1ui"alent to lac( or e&cess of jurisdiction In other words, power is e&ercised in an ar%itrar# or despotic manner %# reason of passion, prejudice, or personal hostilit#, and such e&ercise is so patent or so $ross as to amount to an e"asion of a positi"e dut# or to a "irtual refusal either to perform the dut# enjoined or to act at all in contemplation of law >28? A re"iew of the orders of the 4TC den#in$ !aduaEs petition for pro%ation shows that the 4TC neither acted without jurisdiction nor with $ra"e a%use of discretion %ecause it merel# applied the law and adhered to principles of statutor# construction in den#in$ !aduaEs petition for pro%ation !adua was char$ed and con"icted for "iolation of Section 3, Article II of 4ep Act No .*53 for sellin$ dan$erous dru$s It is clear under Section -2 of 4ep Act No .*53 that an# person con"icted of dru$ traffic(in$ cannot a"ail of the pri"ile$e of pro%ation, to wit: SEC -2 ConGApplicability o t$e Probation /aK or Dru( Tra icLers and Pus$ers U Any .e&7on +onD0+/e" =o& "&u; /&!==0+A0n; o& .u7,0n; un"e& /,07 A+/, &e;!&":e77 o= /,e .en!:/y 08.o7e" 6y /,e #ou&/, +!nno/ !D!0: o= /,e .&0D0:e;e ;&!n/e" 6y /,e P&o6!/0on L!E o& P&e70"en/0!: De+&ee No. -68, !7 !8en"e". 8Emphasis supplied 9 The law is clear and lea"es no room for interpretation An# person con"icted for dru$ traffic(in$ or pushin$, re$ardless of the penalt# imposed, cannot a"ail of the pri"ile$e $ranted %# the !ro%ation =aw or ! D No .5/ The elementar# rule in statutor# construction is that when the words and phrases of the statute are clear and une1ui"ocal, their meanin$ must %e determined from the lan$ua$e emplo#ed and the statute must %e ta(en to mean e&actl# what it sa#s >2-? If a statute is clear, plain and free from am%i$uit#, it must %e $i"en its literal meanin$ and applied without attempted interpretation This is what is (nown as the plain'meanin$ rule or verba le(is It is e&pressed in the ma&im, inde) animi sermo, or speech is the inde& of intention >)0? Furthermore, there is the ma&im verba le(is non est recedendum, or from the words of a statute there should %e no departure >)1?

;oreo"er, the Court of Appeals correctl# pointed out that the intention of the le$islators in Section -2 of 4ep Act No .*53 is to pro"ide stiffer and harsher punishment for those persons con"icted of dru$ traffic(in$ or pushin$ while e&tendin$ a s#mpathetic and ma$nanimous hand in Section A< to dru$ dependents who are found $uilt# of "iolation of Sections **>)2? and *3>))? of the Act The law considers the users and possessors of ille$al dru$s as "ictims while the dru$ traffic(ers and pushers as predators ,ence, while dru$ traffic(ers and pushers, li(e !adua, are cate$oricall# dis1ualified from a"ailin$ the law on pro%ation, #outhful dru$ dependents, users and possessors ali(e, are $i"en the chance to mend their wa#s >)$? The Court of Appeals also correctl# stated that had it %een the intention of the le$islators to e&empt from the application of Section -2 the dru$ traffic(ers and pushers who are minors and first time offenders, the law could ha"e easil# declared so >)%? The law indeed appears strict and harsh a$ainst dru$ traffic(ers and dru$ pushers while protecti"e of dru$ users To illustrate, a person arrested for usin$ ille$al or dan$erous dru$s is meted onl# a penalt# of si& months reha%ilitation in a $o"ernment center, as minimum, for the first offense under Section *3 of 4ep Act No .*53, while a person char$ed and con"icted of sellin$ dan$erous dru$s shall suffer life imprisonment to death and a fine ran$in$ from Fi"e ,undred Thousand !esos 8!3<<,<<< <<9 to Ten ;illion !esos 8!*<,<<<,<<< <<9 under Section 3, 4ep Act No .*53 As for the second and third issues, !adua cannot ar$ue that his ri$ht under 4ep Act No .022, the >:u"enile :ustice and Belfare Act of -<<5@ was "iolated Nor can he ar$ue that Section 0- of A ; No <-'*'*/'SC otherwise (nown as the >4ule on :u"eniles in Conflict with the =aw@ has application in this case Section 5/>)6? of 4ep Act No .022 and Section 0- of A ; No <-'*'*/'SC %oth pertain to suspension of sentence and not pro%ation Furthermore, suspension of sentence under Section 0/ >)7? of 4ep Act No .022 could no lon$er %e retroacti"el# applied for petitionerEs %enefit Section 0/ of 4ep Act No .022 pro"ides that once a child under */ #ears of a$e is found $uilt# of the offense char$ed, instead of pronouncin$ the jud$ment of con"iction, the court shall place the child in conflict with the law under suspended sentence Section 2< >)8? of 4ep Act No .022, howe"er, pro"ides that once the child reaches */ #ears of a$e, the court shall determine whether to dischar$e the child, order e&ecution of sentence, or e&tend the suspended sentence for a certain specified period o& un/0: /,e +,0:" &e!+,e7 /,e 8!908u8 !;e o= 21 ye!&7 !etitioner has alread# reached -* #ears of a$e or o"er and thus, could no lon$er %e considered a child>)-? for purposes of appl#in$ 4ep Act .022 Thus, the application of Sections 0/ and 2< appears moot and academic as far as his case is concerned ( EREFORE, the petition is DENIED The assailed Decision dated April *., -<<3 and the 4esolution dated :une *2, -<<3 of the Court of Appeals are AFFIR'ED SO ORDERED. G.R. No. 128%08 Fe6&u!&y 1, 1--DANIEL G. FAJARDO, petitioner, "s #OURT OF APPEALS, ON. FLORENTINO P. PEDRONIO, 0n ,07 +!.!+0/y !7 P&e70"0n; Ju";e, Re;0on!: T&0!: #ou&/, 3&!n+, )1, I:o0:o #0/y< PEOPLE OF T E P ILIPPINES !n" STATION #O''ANDER OF ILOILO #IT2, respondent

PARDO, J.: The case is an appeal via certiorari ta(en %# petitioner from a decision of the Court of Appeals that denied due course to his motion for pro%ation in Criminal Case No *2*.5 of the 4e$ional Trial Court, Cranch 0*, Iloilo Cit#, arisin$ from his con"iction of "iolation of Catas !am%ansa Cilan$ --, for which he was sentenced to imprisonment of ei$ht 8/9 months Be den# the petition On ;a# -5, *.//, the 4e$ional Trial Court, Cranch 00, Iloilo Cit#, con"icted petitioner of "iolation of Catas !am%ansa Cilan$ --, and sentenced him to suffer the penalt# of ei$ht 8/9 months imprisonment and to pa# the costs, in Criminal Case No *2*.5 ,e appealed to the Court of Appeals 1 C# decision promul$ated on Fe%ruar# -A, *..<, the Court of Appeals affirmed the con"iction On Au$ust -<, *..<, the Supreme Court denied a petition for re"iew on certiorari of the con"iction 2 ?pon the remand of the record to the lower court, on :une -, *..3, petitioner filed a motion for pro%ation contendin$ that he was eli$i%le for pro%ation %ecause at the time he committed the offense in *./*, an accused who had appealed his con"iction was still 1ualified to appl# for pro%ation and that the law that %arred an application for pro%ation of an accused who had interposed an appeal was e) post acto in its application, and, hence, not applica%le to him On :anuar# 3, *..5, the trial court denied petitionerTs motion for pro%ation On :ul# -., *..5, petitioner filed with the Court of Appeals a petition for certiorari to annul the lower courtTs denial of his application for pro%ation ) On No"em%er *-, *..5, the Court of Appeals denied due course to the petition $ ,ence, this appeal % At issue in this case is whether petitioner could 1ualif# to appl# for pro%ation under !residential Decree No .5/ since he had appealed from his con"iction in *.//, after !residential Decree No *..< amendin$ !residential Decree No .5/, %ecame effecti"e in *./5, pro"idin$ that Jno application for pro%ation shall %e entertained or $ranted if the defendant has perfected the appeal from the jud$ment of con"iction J 6 !etitioner maintains the "iew that !residential Decree No *..<, issued on Octo%er 3, *./3, is null and "oid on the $round that at that time !resident Ferdinand E ;arcos could no lon$er e&ercise le$islati"e powers as the Catasan !am%ansa was functionin$ and e&ercisin$ sole le$islati"e powers The contention is without merit At that time, !resident ;arcos was "ested with le$islati"e powers concurrentl# with the Catasan !am%ansa 7 Conse1uentl#, !residential Decree No *..<, is "alid !residential Decree No *..<, enacted on Octo%er 3, *./3, Jwas printed in 6olume /* of the Official Ga7ette dated Decem%er 0<, *./3 %ut said issue was released for circulation onl# on :ul# *, *./5H hence, ! D *..< %ecame effecti"e after fifteen 8*39 da#s from :ul# *, *./5, in accordance with Article - of the Ci"il Code, or on :ul# *5, *./5 J 8 It is not e) post acto in its application The law applies onl# to accused con"icted after its effecti"it# - An e) post acto law is one that punishes an act as a crime which was innocent at the time of its commission 10 !residential Decree No *..<, li(e the !ro%ation =aw that it amends, is not penal in character 11 It ma# not %e considered as an e) post acto law 12 At the time of the commission of the offense char$edI"iolation of Catas !am%ansa Cilan$ -Iin *./*, petitioner could ha"e appealed if con"icted and still a"ailed himself of pro%ation ,owe"er, petitioner was con"icted on ;a# -5, *.//, and he appealed At that time, petitioner

no lon$er had the option to appeal and still appl# for pro%ation if unsuccessful in the appeal 1) !residential Decree No *..< was then in full effect ,ence, he could no lon$er appl# for pro%ation since he had appealed On Octo%er *0, *..A, the Solicitor General 1$ su%mitted a manifestation positin$ the "iew that petitionerTs application for pro%ation ma# still %e considered %ecause when petitioner committed the offense in *./*, he could a"ail himself of pro%ation since the law as it stood at that time pro"ided that an accused con"icted of a crime ma# appl# for pro%ation e"en if he had appealed the con"iction 1% Be do not share his "iew The case he cited is a Court of Appeals decision, and, hence, not a precedent Bhat is more, it is inapplica%le %ecause there, the accusedTs con"iction %ecame final on Octo%er *2, *./3 !residential Decree No *..< althou$h enacted on Octo%er 3, *./3, was pu%lished in the Official Ga7ette on Decem%er 0<, *./3, 16 and, hence, was not #et applica%le at the time the accused was finall# con"icted 4e$retta%l#, the Solicitor General has cited a Court of Appeals decision that is inapplica%le to this case %ecause the facts were not similar Be find it unnecessar# to resol"e the other issues that petitioner has raised 1uestionin$ the constitutionalit# and wisdom of !residential Decree No *..<, amendin$ the pro%ation law B,E4EFO4E, the Court DENIES the petition for re"iew on certiorari of the decision of the Court of Appeals in CA'G 4 S! No 2*22A Costs a$ainst petitioner SO O4DE4ED G.R. No. 1)80)) Fe6&u!&y 22, 2006 RENATO 3ALEROS, JR., !etitioner, "s PEOPLE OF T E P ILIPPINES, 4espondent DECISION GAR#IA, J.: In this petition for re"iew on certiorari, petitioner 4enato Caleros, :r assails and see(s the re"ersal of the :anuar# *0, *... decision* of the Court of Appeals 8CA9 in CA'G 4 C4 No *A-A* as reiterated in its ;arch 0*, *... resolution- den#in$ petitionerEs motion for reconsideration The assailed decision affirmed an earlier decision of the 4e$ional Trial Court 84TC9 of ;anila, Cranch -, in Criminal Case No .*'*<*52- findin$ petitioner 4enato Caleros, :r # Da"id 8C,ITO9 $uilt# of attempted rape 0 The accusator# portion of the information2 dated Decem%er *A, *..* char$in$ petitioner with attempted rape reads as follow: That a%out *:3< in the mornin$ or sometime thereafter of *0 Decem%er *..* in ;anila and within the jurisdiction of this ,onora%le Court, the a%o"e'named accused, %# forcefull# co"erin$ the face of ;artina =ourdes T Al%ano with a piece of cloth soa(ed in chemical with di77#in$ effects, did then and there willfull#, unlawfull# and feloniousl# commenced the commission of rape %# l#in$ on top of her with the intention to ha"e carnal (nowled$e with her %ut was una%le to perform all the acts of e&ecution %# reason of some cause or accident other than his own spontaneous desistance, said acts %ein$ committed a$ainst her will and consent to her dama$e and prejudice ?pon arrai$nment on Fe%ruar# 3, *..-, petitioner, assisted %# counsel, pleaded JNot Guilt# J3 Thereafter, trial on the merits ensued To pro"e its case, the prosecution presented thirteen 8*09 witnesses Amon$ them were pri"ate complainant ;artina =ourdes Al%ano 8;alou9, and her classmates, :oseph Cernard

Africa, 4ommel ;ontes, 4enato Ala$adan and Christian Alcala Their testimonies, as narrated in some detail in the decision of the CA, esta%lished the followin$ facts: =i(e most of the tenants of the Celestial ;arie Cuildin$ 8hereafter JCuildin$J, S9 alon$ A , =acson Street, Sampaloc, ;anila, ;A=O?, occup#in$ 4oom 0<A with her maid, ;ar"ilou Ce%ania 8;ar"ilou9, was a medical student of the ?ni"ersit# of Sto Tomas )?ST+ in *..* In the e"enin$ of Decem%er *-, inside ?nit 0<A, ;A=O? retired at around *<:0< Outside, ri$ht in front of her %edroom door, her maid, ;ar"ilou, slept on a foldin$ %ed Earl# mornin$ of the followin$ da#, ;A=O? was awa(ened %# the smell of chemical on a piece of cloth pressed on her face She stru$$led %ut could not mo"e Some%od# was pinnin$ her down on the %ed, holdin$ her ti$htl# She wanted to scream for help %ut the hands co"erin$ her mouth with cloth wet with chemicals were "er# ti$ht 8TSN, :ul# 3, *..0, p 009 Still, ;A=O? continued fi$htin$ off her attac(er %# (ic(in$ him until at last her ri$ht hand $ot free Bith this Sthe opportunit# presented itself when she was a%le to $ra% hold of his se& or$an which she then s1uee7ed The man let her $o and ;A=O? went strai$ht to the %edroom door and roused ;ar"ilou &&& O"er the intercom, ;A=O? told SMG Ferolin that: Jma# pumaso( sa (uarto (o pina$tan$(aan a(oJ 8I%id , p /9 Bho it was she did not, howe"er, (now The onl# thin$ she had made out durin$ their stru$$le was the feel of her attac(erEs clothes and wei$ht ,is upper $arment was of cotton material while that at the lower portion felt smooth and satin'li(e 8I%id, p *A9 ,e S was wearin$ a t'shirt and shorts S Ori$inal 4ecords, p 0339 To 4oom 0*< of the Cuildin$ where her classmates Christian Alcala, Cernard Captista, =ut$ardo Acosta and 4ommel ;ontes were sta#in$, ;A=O? then proceeded to see( help &&& It was then when ;A=O? saw her %ed S tops#'tur"# ,er ni$htdress was stained with %lue S 8TSN, :ul# 3, *..0, pp *0'*29 Aside from the window with $rills which she had ori$inall# left opened, another window inside her %edroom was now open ,er attac(er had fled from her room $oin$ throu$h the left %edroom window 8I%id, Answers to Duestion num%er 3H Id9, the one without iron $rills which leads to 4oom 0<5 of the Cuildin$ 8TSN, :ul# 3, *..0, p 59 &&& &&& &&& Further, ;A=O? testified that her relation with C,ITO, who was her classmate S, was friendl# until a wee( prior to the attac( C,ITO confided his feelin$s for her, tellin$ her: JGusto (ita, mahal (itaJ 8TSN, :ul# 3, *..0, p --9 and she rejected him S 8TSN, :ul# 3, *..0, p --9 ;eanwhile, accordin$ to SMG Ferolin, while he was on dut#, C,ITO arri"ed at the Cuildin$ at *:0< in the earl# mornin$ of Decem%er *0, *..*, wearin$ a white t'shirt with >KSa mar(in$ on the front of the T'shirt T ; and a Gree( letter 8sic9 [\E and %elow the 1uoted letters the word K*.25E K?ST ;edicine and Sur$er#E@ 8TSN, Octo%er ., *..-, p .9 and %lac( shorts with the %rand name >Adidas@ 8TSN, Octo%er *5, *..-, p A9 and re1uested permission to $o up to 4oom 0<5 This ?nit was %ein$ leased %# Ans%ert Co and at that time when C,ITO was as(in$ permission to enter, onl# :oseph Cernard Africa was in the room ,e as(ed C,ITO to produce the re1uired written authori7ation and when C,ITO could not, SMG Ferolin initiall# refused )%ut later, relented+ S SMG Ferolin made the followin$ entr# in the securit# $uardEs lo$%oo( S: J<*0<, Caleros 4enato :r is a "isitor of Ans%ert Co who has not ha"e 8sic9 a 4e1uest letter from our tenant of ?nit ]'0<5 Ans%ert, %ut still I let him inter 8sic9 for the reason that he will %e our tenant this comin$ summer %rea( as he said so I let him si$n it here 8S$d 9 Caleros 4enato :r J

8E&hi%it JA'-J9 That C,ITO arri"ed at 4oom 0<5 at *:0< A ; of Decem%er *0, *..* was corro%orated %# :oseph Cernard Africa 8:oseph9, S &&& &&& &&& :oseph was alread# inside 4oom 0<5 at . oEcloc( in the e"enin$ of Decem%er *-, *..* &&& %# the time C,ITOEs (noc(in$ on the door wo(e him up, S ,e was a%le to fi& the time of C,ITOEs arri"al at *:0< A ; %ecause he $lanced at the alarm cloc( %eside the %ed when he was awa(ened %# the (noc( at the door S :oseph noticed that C,ITO was wearin$ dar('colored shorts and white T'shirt 8I%id , p -09 when he let the latter in S It was at around 0 oEcloc( in the mornin$ of Decem%er *0, *..* when he wo(e up a$ain later to the sound of (noc(in$ at the door, this time, %# Cernard Captista 8Cernard9, S &&& Bith Cernard, :oseph then went to ;A=O?Es room and thereat was shown %# Cernard the open window throu$h which the intruder supposedl# passed &&& &&& &&& =ater, at a%out 5 to 5:0< in the mornin$ of Decem%er *0, *..*, :oseph was finall# a%le to tal( to C,ITO S ,e mentioned to the latter that somethin$ had happened and that the# were not %ein$ allowed to $et out of the %uildin$ :oseph also told C,ITO to follow him to 4oom 0*< C,ITO did just that ,e followed after :oseph to ?nit 0*<, carr#in$ his $ra# %a$ &&& None was in 4oom 0*< so :oseph went to their #et another classmate, 4enato Ala$adan at 4oom 2<* to see if the others were there &&& !eople from the CIS came %# %efore / oEcloc( that same mornin$ S The# li(ewise in"ited C,ITO and :oseph to $o with them to Camp Crame where the two 8-9 were 1uestioned S An occupant of 4oom 0*< S Christian Alcala 8Christian9 recalled in Court that in the afternoon of Decem%er *0, *..*, after their 0:0< class, he and his roommates, Cernard Captista and =ut$ardo Acosta 8Gar#9 were called to the Cuildin$ and were as(ed %# the CIS people to loo( for an#thin$ not %elon$in$ to them in their ?nit Bhile the# were outside 4oom 0*< tal(in$ with the authorities, 4ommel ;ontes 8=o#lo#9, another roommate of his, went inside to search the ?nit =o#lo# found 8TSN, :anuar# *-, *..0, p 59 a $ra# JQhum%ellaJ %a$ cloth t#pe 8I%id, pp 22'239 from inside their unit which the# did not (now was there and surrender the same to the in"esti$ators Bhen he saw the $ra# %a$, Christian (new ri$ht awa# that it %elon$ed to C,ITO 8I%id, p 339 as he had seen the latter usuall# %rin$in$ it to school inside the classroom 8I%id, p 239 In their presence, the CIS opened the %a$ and pulled out its contents, amon$ others, a white t'shirt with a Taunu 8sic9 Si$ma !hi si$n 8I%id, p A9, a Clac( Adidas short pants, a hand(erchief , three 809 white T'shirts, an underwear, and soc(s 8I%id9 Christian reco$ni7ed the t'shirt 8E&hi%it JD'2J9, the Adidas short pants 8E&hi%it JD'3J9, and the hand(erchief 8E&hi%it JD'09 to %e C,ITOEs %ecause C,ITO had lent the "er# same one to him S The t'shirt with C,ITOEs fraternit# s#m%ol, C,ITO used to wear on wee(ends, and the hand(erchief he saw C,ITO used at least once in Decem%er That C,ITO left his %a$ inside 4oom 0*< in the mornin$ of Decem%er *0, *..*, was what consisted mainl# of 4enato 4 Ala$adanEs testimon# &&& &&& &&& The colored $ra# %a$ had a handle and a strap, was elon$ated to a%out **M2 feet and

appeared to %e full %ut was closed with a 7ipper when 4enato saw it then 8I%id, pp *.'-<9 At that time Christian, Gar#, Cernard, and 4enato went %ac( to 4oom 0*< at around 0 to 2 oEcloc( that afternoon alon$ with some CIS a$ents, the# saw the %a$ at the same place inside the %edroom where 4enato had seen C,ITO lea"e it Not until later that ni$ht at past . oEcloc( in Camp Crame, howe"er, did 4enato (now what the contents of the %a$ were &&& &&& &&& The forensic Chemist, =eslie Cham%ers, of the !hilippine National !olice Crime =a%orator# in Camp Crame, ha"in$ acted in response to the written re1uest of !N! Superintendent =ucas ; ;ana$uelod dated Decem%er *0, *..*, 8E&hi%it JCJH Ori$inal 4ecords, p *<. 9 conducted la%orator# e&amination on the specimen collated and su%mittedS ,er Chemistr# 4eport No C'2/A'.* 8E&hi%it JEJH I%id , p **-9 reads in part, thus: JS!ECI;EN S?C;ITTED: &&& &&& &&&: *9 One 8*9 small white plastic %a$ mar(ed K?NI;A4TE with the followin$: &&& &&& &&& E&h KCE U One 8*9 ni$ht dress colored salmon pin( -9 One 8*9 small white pl astic %a$ mar(ed K:ONASE with the followin$: E&h KDE U One 8*9 printed hand(erchief E&h KEE U One 8*9 white T'shirt mar(ed KT;XIE E&h KFE U One 8*9 %lac( short 8sic9 mar(ed KADIDASE !?4!OSE OF =ACO4ATO4G EOA;INATION: To determine the presence of "olatime 8sic9, non'"olatile andMor metallic poison on the a%o"e stated specimens FINDINGS: To&icolo$ical e&amination conducted on the a%o"e stated specimens $a"e the followin$ results: E&hs KCE and KDE U !OSITI6E to the test for chloroform, a "olatile poison E&hs KAE, KCE, KEE and KFE are insufficient for further anal#sis CONC=?SION: E&hs KCE and KDE contain chloroform, a "olatile poison J5 8Bords in %rac(et added9 For its part, the defense presented, as its main witness, the petitioner himself ,e denied committin$ the crime imputed to him or ma(in$ at an# time amorous ad"ances on ;alou ?nfoldin$ a different "ersion of the incident, the defense sou$ht to esta%lish the followin$, as culled from the same decision of the appellate court: In Decem%er of *..*, C,ITO was a medical student of S 8?ST9 Bith 4o%ert Chan and Al%erto =eonardo, he was li(ewise a mem%er of the Tau Si$ma !hi Fraternit# S ;A=O?, S, was (nown to him %ein$ also a medical student at the ?ST at the time From 4oom 0<5 of the Celestial ;arie Cuildin$ S, C,ITO, wearin$ the prescri%ed %aron$ ta$alo$ o"er dar( pants and leather shoes, arri"ed at their Fraternit# house located at S Dos Castillas, Sampaloc, ;anila at a%out A oEcloc( in the e"enin$ of Decem%er *-, *..* ,e was included in the entoura$e of some fift# 83<9 fraternit# mem%ers scheduled for a Christmas $atherin$ at the house of their senior fraternit# %rother, Dr :ose Duran, at No 0 :ohn Street,

North Greenhills, San :uan &&& The part# was conducted at the $arden %eside )the+ swimmin$ pool S Soon after, S the four 829 presidential nominees of the Fraternit#, C,ITO included, were %ein$ dun(ed one %# one into the pool &&& &&& C,ITO had anticipated his turn S and was thus wearin$ his t'shirt and lon$ pants when he was dun(ed !erla Duran, S, offered each S dr# clothes to chan$e into and C,ITO put on the white t'shirt with the Fraternit#Es s#m%ol and a pair of %lac( shorts with stripes &&& A$ain ridin$ on Al%ertoEs car and wearin$ J%aron$ ta$alo$ o"er a white t'shirt with the s#m%ol TA? Si$ma !hi, %lac( short pants with stripe, soc(s and shoesJ 8TSN, April -3, *..2, p *39, C,ITO left the part# with 4o%ert Chan and Al%erto at more or less past * A ; of Decem%er *0, *..* and proceeded to the Cuildin$ which the# reached at a%out *:0< A ; 8I%id , p *.9 ,e had left his $ra# tra"elin$ %a$ containin$ Jwhite t'shirt, sando, underwear, soc(s, and tooth%rush 8I%id , pp *A'*/9 at room 0<5 in the afternoon of the pre"ious da# S At the $ate of the Cuildin$, C,ITO (noc(ed and S, SMG Ferolin, loo(in$ at his watch, approached Cecause of this, C,ITO also loo(ed at his own watch and saw that the time was *:0< 8I%id , p -59 SMG Ferolin initiall# refused C,ITO entr# S &&& SMG Ferolin called ?nit 0<5 S &&& Bhen SMG Ferolin finall# let him in, alread# a%out ten 8*<9 minutes had lapsed since C,ITO first arri"ed 8I%id , p -39 C,ITO went up the floor, found the (e# left for him %# :oseph %ehind the opened jalousie window and for fi"e 839 minutes "ainl# tried to open the door until 4ommel ;ontes, S approached him and e"en commented: JO(e# an$ suot mo ha, di mo ma%u(san an$ pinto 8I%id , pp -5'-.9 4ommel tried to open the door of ?nit 0<5 S %ut was li(ewise unsuccessful C,ITO then decided to just call out to :oseph while (noc(in$ at the door It too( another 839 minutes of callin$ out and (noc(in$ %efore :oseph, S, at last answered the door Tellin$ him, JI(aw na an$ %ahala di#anJ :oseph immediatel# turned his %ac( on C,ITO and went inside the %edroom C,ITO , Schan$ed to a thinner shirt and went to %ed ,e still had on the same short pants $i"en %# !erla Duran from the fraternit# part# 8TSN, :une *5, *..2, p -<9 At 5 oEcloc( in the mornin$ of Decem%er *0, *..*, C,ITO wo(e up S ,e was alread# in his school uniform when, around 5:0< A ;, :oseph came to the room not #et dressed up ,e as(ed the latter wh# this was so and, without ela%oratin$ on it, :oseph told him that somethin$ had happened and to just $o to 4oom 0*< which C,ITO did At 4oom 0*<, C,ITO was told %# 4ommel ;ontes that some%od#, whom ;A=O? was not a%le to identif#, went to the room of ;A=O? and tried to rape her 8TSN, April -3, *..2, p 059 &&& :oseph told him that the securit# $uard was not lettin$ an#%od# out of the Cuildin$ S Bhen two 8-9 CIS men came to the unit as(in$ for 4enato Caleros, C,ITO presented himself Con$ressman 4odolfo C Al%ano, father of ;A=O?, then as(ed him for the (e# to 4oom 0<5S &&& &&& &&& The CIS men loo(ed inside the %edroom and on the windows :oseph was told to dress up and the two 8-9 of them, C,ITO and :oseph, were %rou$ht to Camp Crame Bhen the# arri"ed at Camp Crame S, Col ;ana$uelod as(ed :oseph inside his room and tal(ed to him for 0< minutes &&& No one inter"iewed C,ITO to as( his side &&& &&& &&& Coth C,ITO and :oseph were ta(en to !rosecutor A%esamis who later instructed them to

under$o ph#sical e&amination at the Camp Crame ,ospital S At the hospital, S C,ITO and :oseph were ph#sicall# e&amined %# a certain Dr de Gu7man who told them to strip S &&& &&& &&& C,ITO had left his $ra# %a$ containin$, amon$ others, the %lac( striped short pants lent to him %# !erla Duran 8E&hi%it J/'AJ, Ori$inal 4ecords, p 0239, inside 4oom 0*< at moreMless 5:0< to A oEcloc( in the mornin$ of Decem%er *0, *..* The ne&t time that he saw it was %etween / to . ! ; when he and :oseph were %rou$ht %efore Fiscal A%esamis for in1uest One of the CIS a$ents had ta(en it there and it was not opened up in his presence %ut the contents of the %a$ were alread# laid out on the ta%le of Fiscal A%esamis who, howe"er, made no effort to as( C,ITO if the items thereat were his The %lac( Adidas short pants purportedl# found in the %a$, C,ITO denied puttin$ in his $ra# %a$ which he had left at 4oom 0<5 in the earl# e"enin$ of Decem%er *-, *..* %efore $oin$ to the fraternit# house ,e li(ewise disa"owed placin$ said %lac( Adidas short pants in his $ra# %a$ when he returned to the apartment at past *:<< oEcloc( in the earl# mornin$ of Decem%er *0, *..* 8TSN, :une *5, *..2, p -29, nor when he dressed up at a%out 5 oEcloc( in the mornin$ to $o to school and %rou$ht his $ra# %a$ to 4oom 0*< 8I%id -39 In fact, at an# time on Decem%er *0, *..*, he was not aware that his $ra# %a$ e"er contained an# %lac( short Adidas pants 8I%id9 ,e onl# found out for the first time that the %lac( Adidas short pants was alluded to %e amon$ the items inside his $ra# %a$ late in the afternoon, when he was in Camp Crame Also ta(in$ the witness stand for the defense were petitionerEs fraternit# %rothers, Al%erto =eonardo and 4o%ert Chan, who %oth testified %ein$ with C,ITO in the Decem%er *-, *..* part# held in Dr DuranEs place at Greenhills, ridin$ on the same car $oin$ to and comin$ from the part# and droppin$ the petitioner off the Celestial ;arie %uildin$ after the part# Coth were one in sa#in$ that C,ITO was wearin$ a %aron$ ta$alo$, with t'shirt inside, with short pants and leather shoes at the time the# parted after the part# A 4ommel ;ontes, a tenant of 4oom 0*< of the said %uildin$, also testified seein$ C,ITO %etween the hours of *:0< and -:<< A ; of Decem%er *0, *..* tr#in$ to open the door of 4oom 0<5 while clad in dar( short pants and white %aron$ ta$alo$ On the other hand, !erla Duran confirmed lendin$ the petitioner the pair of short pants with stripes after the dun(in$ part# held in her fatherEs house / !resented as defense e&pert witness was Carmelita 6ar$as, a forensic chemistr# instructor whose actual demonstration in open court showed that chloroform, %ein$ "olatile, e"aporates in thirt# 80<9 seconds without tearin$ nor stainin$ the cloth on which it is applied . On Decem%er *2, *..2, the trial court rendered its decision*< con"ictin$ petitioner of attempted rape and accordin$l# sentencin$ him, thus: B,E4EFO4E, under cool reflection and prescindin$ from the fore$oin$, the Court finds the accused 4enato D Caleros, :r , alias JChitoJ, $uilt# %e#ond reasona%le dou%t of the crime of attempted rape as principal and as char$ed in the information and here%# sentences him to suffer an imprisonment ran$in$ from FO?4 829 GEA4S, TBO 8-9 ;ONT,S AND ONE 8*9 DAG of !rision Correctional, as ;inimum to TEN 8*<9 GEA4S of !rision ;a#or as ;a&imum, with all the accessor# penalties pro"ided %# law, and for the accused to pa# the offended part# ;artina =ourdes T Al%ano, the sum of !3<,<<< << %# wa# of ;oral and e&emplar# dama$es, plus reasona%le Attorne#Es fees of !0<,<<< <<, without su%sidiar# imprisonment in case of insol"enc#, and to pa# the costs SO O4DE4ED A$$rie"ed, petitioner went to the CA whereat his appellate recourse was doc(eted as CA'G 4

C4 No *A-A* As stated at the threshold hereof, the CA, in its assailed Decision dated :anuar# *0, *..., affirmed the trial courtEs jud$ment of con"iction, to wit: B,E4EFO4E, findin$ no %asis in fact and in law to de"iate from the findin$s of the court a 1uo, the decision appealed from is here%# AFFI4;ED in toto Costs a$ainst appellant SO O4DE4ED ** !etitioner mo"ed for reconsideration, %ut his motion was denied %# the CA in its e1uall# assailed resolution of ;arch 0*, *... *!etitioner is now with this Court, on the contention that the CA erred ' * In not findin$ that it is impro%a%le for petitioner to ha"e committed the attempted rape imputed to him, a%sent sufficient, competent and con"incin$ e"idence to pro"e the offense char$ed - In con"ictin$ petitioner of attempted rape on the %asis merel# of circumstantial e"idence since the prosecution failed to satisf# all the re1uisites for con"iction %ased thereon 0 In not findin$ that the circumstances it relied on to con"ict the petitioner are unrelia%le, inconclusi"e and contradictor# 2 In not findin$ that proof of moti"e is misera%l# wantin$ in his case 3 In awardin$ dama$es in fa"or of the complainant despite the fact that the award was improper and unjustified a%sent an# e"idence to pro"e the same 5 In failin$ to appreciate in his fa"or the constitutional presumption of innocence and that moral certaint# has not %een met, hence, he should %e ac1uitted on the $round that the offense char$ed a$ainst him has not %een pro"ed %e#ond reasona%le dou%t Otherwise stated, the %asic issue in this case turns on the 1uestion on whether or not the CA erred in affirmin$ the rulin$ of the 4TC findin$ petitioner $uilt# %e#ond reasona%le dou%t of the crime of attempted rape After a careful re"iew of the facts and e"idence on record in the li$ht of applica%le jurisprudence, the Court is disposed to rule for petitionerEs ac1uittal, %ut not necessaril# %ecause there is no direct e"idence pointin$ to him as the intruder holdin$ a chemical'soa(ed cloth who pinned ;alou down on the %ed in the earl# mornin$ of Decem%er *0, *..* !ositi"e identification pertains essentiall# to proof of identit# and not per se to that of %ein$ an e#ewitness to the "er# act of commission of the crime There are two t#pes of positi"e identification A witness ma# identif# a suspect or accused as the offender as an e#ewitness to the "er# act of the commission of the crime This constitutes direct e"idence There ma#, howe"er, %e instances where, althou$h a witness ma# not ha"e actuall# witnessed the "er# act of commission of a crime, he ma# still %e a%le to positi"el# identif# a suspect or accused as the perpetrator of a crime as when, for instance, the latter is the person or one of the persons last seen with the "ictim immediatel# %efore and ri$ht after the commission of the crime This is the second t#pe of positi"e identification, which forms part of circumstantial e"idence *0 In the a%sence of direct e"idence, the prosecution ma# resort to adducin$ circumstantial e"idence to dischar$e its %urden Crimes are usuall# committed in secret and under condition where concealment is hi$hl# pro%a%le If direct e"idence is insisted under all circumstances, the prosecution of "icious felons who committed heinous crimes in secret or secluded places will %e hard, if not well'ni$h impossi%le, to pro"e *2 Section 2 of 4ule *00 of the 4ules of Court pro"ides the conditions when circumstantial

e"idence ma# %e sufficient for con"iction The pro"ision reads: Sec 2 Circumstantial e"idence, when sufficient U Circumstantial e"idence is sufficient for con"iction if U a9 There is more than one circumstanceH %9 The facts from which the inferences are deri"ed are pro"enH and c9 The com%ination of all the circumstances is such as to produce a con"iction %e#ond reasona%le dou%t In the present case, the positi"e identification of the petitioner forms part of circumstantial e"idence, which, when ta(en to$ether with the other pieces of e"idence constitutin$ an un%ro(en chain, leads to onl# fair and reasona%le conclusion, which is that petitioner was the intruder in 1uestion Be 1uote with appro"al the CAEs findin$ of the circumstantial e"idence that led to the identit# of the petitioner as such intruder: Chito was in the Cuildin$ when the attac( on ;A=O? too( place ,e had access to the room of ;A=O? as 4oom 0<A where he slept the ni$ht o"er had a window which allowed in$ress and e$ress to 4oom 0<5 where ;A=O? sta#ed Not onl# the Cuildin$ securit# $uard, SMG Ferolin, %ut :oseph Cernard Africa as well confirmed that C,ITO was wearin$ a %lac( JAdidasJ shorts and fraternit# T'shirt when he arri"ed at the Cuildin$M?nit 0<A at *:0< in the mornin$ of Decem%er *0, *..* Thou$h it was dar( durin$ their stru$$le, ;A=O? had made out the feel of her intruderEs apparel to %e somethin$ made of cotton material on top and shorts that felt satin'smooth on the %ottom From C,ITOEs %a$ which was found inside 4oom 0*< at the "er# spot where witness 4enato Ala$adan saw C,ITO lea"e it, were disco"ered the most incriminatin$ e"idence: the hand(erchief stained with %lue and wet with some (ind of chemicalsH a %lac( JAdidasJ satin short pantsH and a white fraternit# T'shirt, also stained with %lue A different witness, this time, Christian Alcala, identified these $arments as %elon$in$ to C,ITO As it turned out, la%orator# e&amination on these items and on the %eddin$s and clothes worn %# ;A=O? durin$ the incident re"ealed that the hand(erchief and ;A=O?Es ni$ht dress %oth contained chloroform, a "olatile poison which causes first de$ree %urn e&actl# li(e what ;A=O? sustained on that part of her face where the chemical'soa(ed cloth had %een pressed This %rin$s the Court to the issue on whether the e"idence adduced %# the prosecution has esta%lished %e#ond reasona%le dou%t the $uilt of the petitioner for the crime of attempted rape The Solicitor General maintained that petitioner, %# pressin$ on ;alouEs face the piece of cloth soa(ed in chemical while holdin$ her %od# ti$htl# under the wei$ht of his own, had commenced the performance of an act indicati"e of an intent or attempt to rape the "ictim It is ar$ued that petitionerEs actuation thus descri%ed is an o"ert act contemplated under the law, for there can not %e an# other lo$ical conclusion other than that the petitioner intended to ra"ish ;alou after he attempted to put her to an induced sleep The Solicitor General, echoin$ what the CA said, adds that if petitionerEs intention was otherwise, he would not ha"e lain on top of the "ictim *3 ?nder Article 003 of the 4e"ised !enal Code, rape is committed %# a man who has carnal (nowled$e or intercourse with a woman under an# of the followin$ circumstances: 8*9 C# usin$ force or intimidationH 8-9 Bhen the woman is depri"ed of reason or otherwise unconsciousH and 809 Bhen the woman is under twel"e #ears of a$e or is demented ?nder Article 5, in relation to the aforementioned article of the same code, rape is attempted when

the offender commences the commission of rape directl# %# o"ert acts and does not perform all the acts of e&ecution which should produce the crime of rape %# reason of some cause or accident other than his own spontaneous desistance *5 E&poundin$ on the nature of an attempted felon#, the Court, spea(in$ thru :ustice Claro ; 4ecto in !eople "s =amahan$,*A stated that Jthe attempt which the !enal Code punishes is that which has a lo$ical connection to a particular, concrete offenseH that which is the %e$innin$ of the e&ecution of the offense %# o"ert acts of the perpetrator, leadin$ directl# to its reali7ation and consummation J A%sent the una"oida%le connection, li(e the lo$ical and natural relation of the cause and its effect, as where the purpose of the offender in performin$ an act is not certain, meanin$ the nature of the act in relation to its o%jecti"e is am%i$uous, then what o%tains is an attempt to commit an indeterminate offense, which is not a juridical fact from the standpoint of the !enal Code */ There is a%solutel# no dispute a%out the a%sence of se&ual intercourse or carnal (nowled$e in the present case The ne&t 1uestion that thus comes to the fore is whether or not the act of the petitioner, i e , the pressin$ of a chemical'soa(ed cloth while on top of ;alou, constitutes an o"ert act of rape *a""phil net O"ert or e&ternal act has %een defined as some ph#sical acti"it# or deed, indicatin$ the intention to commit a particular crime, more than a mere plannin$ or preparation, which if carried out to its complete termination followin$ its natural course, without %ein$ frustrated %# e&ternal o%stacles nor %# the "oluntar# desistance of the perpetrator, will lo$icall# and necessaril# ripen into a concrete offense *. ,armoni7in$ the a%o"e definition to the facts of this case, it would %e too strained to construe petitionerTs act of pressin$ a chemical'soa(ed cloth in the mouth of ;alou which would induce her to sleep as an o"ert act that will lo$icall# and necessaril# ripen into rape As it were, petitioner did not commence at all the performance of an# act indicati"e of an intent or attempt to rape ;alou It cannot %e o"eremphasi7ed that petitioner was full# clothed and that there was no attempt on his part to undress ;alou, let alone touch her pri"ate part For what reason petitioner wanted the complainant unconscious, if that was reall# his immediate intention, is an#%od#Es $uess The CA maintained that if the petitioner had no intention to rape, he would not ha"e lain on top of the complainant !loddin$ on, the appellate court e"en anticipated the ne&t step that the petitioner would ha"e ta(en if the "ictim had %een rendered unconscious Brote the CA: The sheddin$ of the clothes, %oth of the attac(er and his "ictim, will ha"e to come later ,is se&ual or$an is not #et e&posed %ecause his intended "ictim is still stru$$lin$ Bhere the intended "ictim is an educated woman alread# mature in a$e, it is "er# unli(el# that a rapist would %e in his na(ed $lor# %efore e"en startin$ his attac( on her ,e has to ma(e her lose her $uard first, or as in this case, her unconsciousness -< At %ottom then, the appellate court indul$es in plain speculation, a practice disfa"ored under the rule on e"idence in criminal cases For, mere speculations and pro%a%ilities cannot su%stitute for proof re1uired to esta%lish the $uilt of an accused %e#ond reasona%le dou%t -* In !ere7 "s Court of Appeals,-- the Court ac1uitted therein petitioner of the crime of attempted rape, pointin$ out that: &&& In the crime of rape, penetration is an essential act of e&ecution to produce the felon# Thus, for there to %e an attempted rape, the accused must ha"e commenced the act of penetratin$ his se&ual or$an to the "a$ina of the "ictim %ut for some cause or accident other than his own spontaneous desistance, the penetration, howe"er, sli$ht, is not completed &&& &&& &&&

!etitionerEs act of l#in$ on top of the complainant, em%racin$ and (issin$ her, mashin$ her %reasts, insertin$ his hand inside her pant# and touchin$ her se&ual or$an, while admittedl# o%scene and detesta%le acts, do not constitute attempted rape a%sent an# showin$ that petitioner actuall# commenced to force his penis into the complainantEs se&ual or$an &&& =i(ewise in !eople "s !ancho,-0 the Court held: &&&, appellant was merel# holdin$ complainantEs feet when his Tito Onio arri"ed at the alle$ed locus criminis Thus, it would %e stretchin$ to the e&treme our credulit# if we were to conclude that mere holdin$ of the feet is attempted rape =est it %e misunderstood, the Court is not sa#in$ that petitioner is innocent, under the premises, of an# wron$doin$ whatsoe"er The information filed a$ainst petitioner contained an alle$ation that he forcefull# co"ered the face of ;alou with a piece of cloth soa(ed in chemical And durin$ the trial, ;alou testified a%out the pressin$ a$ainst her face of the chemical'soa(ed cloth and ha"in$ stru$$led after petitioner held her ti$htl# and pinned her down 6eril#, while the series of acts committed %# the petitioner do not determine attempted rape, as earlier discussed, the# constitute unjust "e&ation punisha%le as li$ht coercion under the second para$raph of Article -/A of the 4e"ised !enal Code In the conte&t of the constitutional pro"ision assurin$ an accused of a crime the ri$ht to %e informed of the nature and cause of the accusation,-2 it cannot %e said that petitioner was (ept in the dar( of the inculpator# acts for which he was proceeded a$ainst To %e sure, the information a$ainst petitioner contains sufficient details to ena%le him to ma(e his defense As aptl# o%ser"ed %# then :ustice 4amon C A1uino, there is no need to alle$e malice, restraint or compulsion in an information for unjust "e&ation As it were, unjust "e&ation e&ists e"en without the element of restraint or compulsion for the reason that this term is %road enou$h to include an# human conduct which, althou$h not producti"e of some ph#sical or material harm, would unjustl# anno# or irritate an innocent person -3 The paramount 1uestion is whether the offenderEs act causes anno#ance, irritation, torment, distress or distur%ance to the mind of the person to whom it is directed -5 That ;alou, after the incident in 1uestion, cried while relatin$ to her classmates what she percei"ed to %e a se&ual attac( and the fact that she filed a case for attempted rape pro"ed %e#ond ca"il that she was distur%ed, if not distressed %# the acts of petitioner The penalt# for coercion fallin$ under the second para$raph of Article -/A of the 4e"ised !enal Code is arresto menor or a fine ran$in$ from !3 << to !-<< << or %oth B,E4EFO4E, the assailed Decision of the Court of Appeals affirmin$ that of the 4e$ional Trial Court of ;anila, is here%# 4E6E4SED and SET ASIDE and a new one entered ACD?ITTING petitioner 4enato D Caleros, :r of the char$e for attempted rape !etitioner, howe"er, is adjud$ed G?I=TG of li$ht coercion and is accordin$l# sentenced to 0< da#s of arresto menor and to pa# a fine of !-<< <<, with the accessor# penalties thereof and to pa# the costs SO O4DE4ED G.R. No. 166)26 J!nu!&y 2%, 2006 ES'ERALDO RIVERA, IS'AEL RIVERA, EDGARDO RIVERA, !etitioners, "s PEOPLE OF T E P ILIPPINES, 4espondent DECISION #ALLEJO, SR., J.: This is a petition for re"iew of the Decision* of the Court of Appeals 8CA9 in CA'G 4 C4 No -A-*3 affirmin$, with modification, the Decision- of the 4e$ional Trial Court 84TC9 of Ca"ite,

Cranch .<, in Criminal Case No 5.5-'.., entitled People o t$e P$ilippines. v. Esmeraldo Eivera! et al On April *-, *..., an Information was filed in the 4TC of Imus, Ca"ite, char$in$ Esmeraldo, Ismael and Ed$ardo, all surnamed 4i"era, of attempted murder The accusator# portion of the Information reads: That on or a%out the 0rd da# of ;a# *../, in the ;unicipalit# of Dasmari^as, !ro"ince of Ca"ite, !hilippines, and within the jurisdiction of this ,onora%le Court, the a%o"e'named accused, conspirin$, confederatin$ and mutuall# helpin$ one another, with intent to (ill, with treacher# and e"ident premeditation, did then and there, wilfull#, unlawfull#, and feloniousl# attac(, assault and hit with a piece of hollow %loc(, one 4?CEN 4ODI= who there%# sustained a non'mortal injur# on his head and on the different parts of his %od#, the accused thus commenced the commission of the felon# directl# %# o"ert acts, %ut failed to perform all the acts of e&ecution which would produce the crime of ;urder %# reason of some causes other than their own spontaneous desistance, that is, the said 4u%en 4odil was a%le to ran 8 sic9 awa# and the timel# response of the policemen, to his dama$e and prejudice CONT4A4G TO =AB 0 4u%en 4odil testified that he used to wor( as a ta&i dri"er ,e stopped dri"in$ in April *../ after a would'%e rapist threatened his life ,e was e"en $i"en a citation as a +ayanin( Pilipino %# the tele"ision networ( ACS'CCN for sa"in$ the would'%e "ictim ,is wife e(ed out a li"in$ as a manicurist The# and their three children resided in Caran$a# San Isidro =a%rador II, Dasmari^as, Ca"ite, near the house of Esmeraldo 4i"era and his %rothers Ismael and Ed$ardo At noon of ;a# -, *../, 4u%en went to a near%# store to %u# food Ed$ardo moc(ed him for %ein$ jo%less and dependent on his wife for support 4u%en resented the re%u(e and hurled in"ecti"es at Ed$ardo A heated e&chan$e of words ensued At a%out A:0< p m the ne&t da#, a Sunda#, 4u%en went to the store to %u# food and to loo( for his wife ,is three'#ear'old dau$hter was with him ;omentaril#, Esmeraldo and his two %rothers, Ismael and Ed$ardo, emer$ed from their house and $an$ed up on 4u%en Esmeraldo and Ismael mauled 4u%en with fist %lows and he fell to the $round In that helpless position, Ed$ardo hit 4u%en three times with a hollow %loc( on the parietal area Esmeraldo and Ismael continued maulin$ 4u%en !eople who saw the incident shouted: JAKatin silaP AKatin silaPJ 4u%en felt di77# %ut mana$ed to stand up Ismael threw a stone at him, hittin$ him at the %ac( Bhen policemen on %oard a mo%ile car arri"ed, Esmeraldo, Ismael and Ed$ardo fled to their house 4u%en was %rou$ht to the hospital ,is attendin$ ph#sician, Dr =am%erto Ca$in$in, :r , si$ned a medical certificate in which he declared that 4u%en sustained lacerated wounds on the parietal area, cere%ral concussion or contusion, hematoma on the left upper %uttoc(s, multiple a%rasions on the left shoulder and hematoma perior%ital left 2 The doctor declared that the lacerated wound in the parietal area was sli$ht and superficial and would heal from one to se"en da#s 3 The doctor prescri%ed medicine for 4u%enEs %ac( pain, which he had to ta(e for one month 5 Esmeraldo testified that at around *:<< p m on ;a# 0, *../, 4u%en arri"ed at his house and %an$ed the $ate 4u%en challen$ed him and his %rothers to come out and fi$ht Bhen he went out of the house and tal(ed to 4u%en, the latter punched him The# wrestled with each other ,e fell to the $round Ed$ardo arri"ed and pushed 4u%en aside ,is wife arri"ed, and he was pulled awa# and %rou$ht to their house For his part, Ismael testified that he tried to pacif# 4u%en and his %rother Esmeraldo, %ut

4u%en $ra%%ed him %# the hair ,e mana$ed to free himself from 4u%en and the latter fled ,e went home afterwards ,e did not see his %rother Ed$ardo at the scene Ed$ardo declared that at a%out *:<< p m on ;a# 0, *../, he was throwin$ $ar%a$e in front of their house 4u%en arri"ed and he went inside the house to a"oid a confrontation 4u%en %an$ed the $ate and ordered him to $et out of their house and e"en threatened to shoot him ,is %rother Esmeraldo went out of their house and as(ed 4u%en what the pro%lem was A fist fi$ht ensued Ed$ardo rushed out of the house and pushed 4u%en aside 4u%en fell to the $round Bhen he stood up, he pulled at Ed$ardoEs shirt and hair, and, in the process, 4u%enEs head hit the lamp post A On Au$ust 0<, -<<-, the trial court rendered jud$ment findin$ all the accused $uilt# %e#ond reasona%le dou%t of frustrated murder The dispositi"e portion of the decision reads: B,E4EFO4E, premises considered, all the accused are found G?I=TG %e#ond reasona%le dou%t and are sentenced to an imprisonment of si& 859 #ears and one 8*9 da# to ei$ht 8/9 #ears of prision mayor as the prosecution has pro"ed %e#ond reasona%le dou%t the culpa%ilit# of the accused =i(ewise, the accused are to pa#, jointl# and se"erall#, ci"il indemnit# to the pri"ate complainant in the amount of !0<,<<< << SO O4DE4ED / The trial court $a"e no credence to the collecti"e testimonies of the accused and their witnesses The accused appealed to the CA, which rendered jud$ment on :une /, -<<2 affirmin$, with modification, the appealed decision The dispositi"e portion of the CA decision reads: B,E4EFO4E, the Decision of the 4e$ional Trial Court of Imus, Ca"ite, Cranch .<, is ;ODIFIED in that the appellants are con"icted of ATTE;!TED ;?4DE4 and sentenced to an indeterminate penalt# of - #ears ofprision correccional as minimum to 5 #ears and * da# of prision mayor as ma&imum In all other respects, the decision appealed from is AFFI4;ED SO O4DE4ED . The accused, now petitioners, filed the instant petition for re"iew on certiorari, alle$in$ that the CA erred in affirmin$ the 4TC decision The# insist that the prosecution failed to pro"e that the# had the intention to (ill 4u%en when the# mauled and hit him with a hollow %loc( !etitioners a"er that, %ased on the testimon# of Dr Ca$in$in, 4u%en sustained onl# a superficial wound in the parietal areaH hence, the# should %e held criminall# lia%le for ph#sical injuries onl# E"en if petitioners had the intent to (ill 4u%en, the prosecution failed to pro"e treacher#H hence, the# should %e held $uilt# onl# of attempted homicide On the other hand, the CA held that the prosecution was a%le to pro"e petitionersE intent to (ill 4u%en: On the first assi$ned error, intent to (ill ma# %e deduced from the nature of the wound inflicted and the (ind of weapon used Intent to (ill was esta%lished %# "ictim 4u%en 4odil in his testimon# as follows: D: And while #ou were %ein$ %o&ed %# Esmeraldo and Con$, what happened ne&tN A: Bhen I was alread# l#in$ )down+ &&&, Da$ol 4i"era showed up with a piece of hollow %loc( &&& and hit me thrice on the head, Sir D: And what a%out the two 8-9, what were the# doin$ when #ou were hit with a hollow %loc( %# Da$olN A: I was alread# l#in$ on the $round and the# (ept on %o&in$ me while Da$ol was hittin$, Sir As earlier stated %# Dr Ca$in$in, appellants could ha"e (illed the "ictim had the hollow %loc(

directl# hit his head, and had the police not promptl# inter"ened so that the %rothers scampered awa# Bhen a wound is not sufficient to cause death, %ut intent to (ill is e"ident, the crime is attempted Intent to (ill was shown %# the fact that the 809 %rothers helped each other maul the defenseless "ictim, and e"en after he had alread# fallen to the $roundH that one of them e"en pic(ed up a cement hollow %loc( and proceeded to hit the "ictim on the head with it three timesH and that it was onl# the arri"al of the policemen that made the appellants desist from their concerted act of tr#in$ to (ill 4u%en 4odil *< The Office of the Solicitor General 8OSG9, for its part, asserts that the decision of the CA is correct, thus: The e"idence and testimonies of the prosecution witnesses defeat the presumption of innocence raised %# petitioners The crime has %een clearl# esta%lished with petitioners as the perpetrators Their intent to (ill is "er# e"ident and was esta%lished %e#ond reasona%le dou%t E#ewitnesses to the crime, Alicia 6era Cru7 and =ucita 6illejo clearl# and cate$oricall# declared that the "ictim 4u%en 4odil was wal(in$ alon$ St !eter A"enue when he was suddenl# %o&ed %# Esmeraldo JCa%#J 4i"era The# further narrated that, soon thereafter, his two %rothers Ismael and Ed$ardo JDa$ulJ 4i"era, comin$ from St !eter II, $an$ed up on the "ictim Coth Alicia 6era Cru7 and =ucita 6illejo recounted that the# saw Ed$ardo JDa$ulJ 4i"era pic( up a hollow %loc( and hit 4u%en 4odil with it three 809 times A careful re"iew of their testimonies re"ealed the suddenness and une&pectedness of the attac( of petitioners In this case, the "ictim did not e"en ha"e the sli$htest warnin$ of the dan$er that la# ahead as he was carr#in$ his three'#ear old dau$hter ,e was cau$ht off'$uard %# the assault of Esmeraldo JCa%#J 4i"era and the simultaneous attac( of the two other petitioners It was also esta%lished that the "ictim was hit %# Ed$ardo JDa$ulJ 4i"era, while he was l#in$ on the $round and %ein$ mauled %# the other petitioners !etitioners could ha"e (illed the "ictim had he not mana$ed to escape and had the police not promptl# inter"ened !etitioners also draw attention to the fact that the injur# sustained %# the "ictim was superficial and, thus, not life threatenin$ The nature of the injur# does not ne$ate the intent to (ill The Court of Appeals held: As earlier stated %# Dr Ca$in$in, appellants could ha"e (illed the "ictim had the hollow %loc( directl# hit his head, and had the police not promptl# inter"ened so that the %rothers scampered awa# Bhen a wound is not sufficient to cause death, %ut intent to (ill is e"ident, the crime is attempted Intent to (ill was shown %# the fact that the three 809 %rothers helped each other maul the defenseless "ictim, and e"en after he had alread# fallen to the $roundH that one of them pic(ed up a cement hollow %loc( and proceeded to hit the "ictim on the head with it three timesH and that it was onl# the arri"al of the policemen that made the appellants desist from their concerted act of tr#in$ to (ill 4u%en 4odil ** The petition is denied for lac( of merit An essential element of murder and homicide, whether in their consummated, frustrated or attempted sta$e, is intent of the offenders to (ill the "ictim immediatel# %efore or simultaneousl# with the infliction of injuries Intent to (ill is a specific intent which the prosecution must pro"e %# direct or circumstantial e"idence, while $eneral criminal intent is presumed from the commission of a felon# %# dolo In People v. Delim,*- the Court declared that e"idence to pro"e intent to (ill in crimes a$ainst persons ma# consist,inter alia, in the means used %# the malefactors, the nature, location and num%er of wounds sustained %# the "ictim, the conduct of the malefactors %efore, at the time, or immediatel# after the (illin$ of the "ictim, the circumstances under which the crime was committed and the moti"es of the accused If the "ictim dies as a result

of a deli%erate act of the malefactors, intent to (ill is presumed In the present case, the prosecution mustered the re1uisite 1uantum of e"idence to pro"e the intent of petitioners to (ill 4u%en Esmeraldo and Ismael pummeled the "ictim with fist %lows E"en as 4u%en fell to the $round, una%le to defend himself a$ainst the sudden and sustained assault of petitioners, Ed$ardo hit him three times with a hollow %loc( Ed$ardo tried to hit 4u%en on the head, missed, %ut still mana$ed to hit the "ictim onl# in the parietal area, resultin$ in a lacerated wound and cere%ral contusions That the head wounds sustained %# the "ictim were merel# superficial and could not ha"e produced his death does not ne$ate petitionersE criminal lia%ilit# for attempted murder E"en if Ed$ardo did not hit the "ictim s1uarel# on the head, petitioners are still criminall# lia%le for attempted murder The last para$raph of Article 5 of the 4e"ised !enal Code defines an attempt to commit a felon#, thus: There is an attempt when the offender commences the commission of a felon# directl# %# o"ert acts, and does not perform all the acts of e&ecution which should produce the felon# %# reason of some cause or accident other than his own spontaneous desistance The essential elements of an attempted felon# are as follows: * The offender commences the commission of the felon# directl# %# o"ert actsH - ,e does not perform all the acts of e&ecution which should produce the felon#H 0 The offenderEs act %e not stopped %# his own spontaneous desistanceH 2 The non'performance of all acts of e&ecution was due to cause or accident other than his spontaneous desistance *0 The first re1uisite of an attempted felon# consists of two elements, namel#: 8*9 That there %e e&ternal actsH 8-9 Such e&ternal acts ha"e direct connection with the crime intended to %e committed *2 The Court in People v. /i*ada*3 ela%orated on the concept of an o"ert or e&ternal act, thus: An o"ert or e&ternal act is defined as some ph#sical acti"it# or deed, indicatin$ the intention to commit a particular crime, more than a mere plannin$ or preparation, which if carried out to its complete termination followin$ its natural course, without %ein$ frustrated %# e&ternal o%stacles nor %# the spontaneous desistance of the perpetrator, will lo$icall# and necessaril# ripen into a concrete offense The raison dRetre for the law re1uirin$ a direct o"ert act is that, in a majorit# of cases, the conduct of the accused consistin$ merel# of acts of preparation has ne"er ceased to %e e1ui"ocalH and this is necessaril# so, irrespecti"e of his declared intent It is that 1ualit# of %ein$ e1ui"ocal that must %e lac(in$ %efore the act %ecomes one which ma# %e said to %e a commencement of the commission of the crime, or an o"ert act or %efore an# fra$ment of the crime itself has %een committed, and this is so for the reason that so lon$ as the e1ui"ocal 1ualit# remains, no one can sa# with certaint# what the intent of the accused is It is necessar# that the o"ert act should ha"e %een the ultimate step towards the consummation of the desi$n It is sufficient if it was the Jfirst or some su%se1uent step in a direct mo"ement towards the commission of the offense after the preparations are made J The act done need not constitute the last pro&imate one for completion It is necessar#, howe"er, that the attempt must ha"e a causal relation to the intended crime In the words of 6iada, the o"ert acts must ha"e an immediate and necessar# relation to the offense *5 In the case at %ar, petitioners, who acted in concert, commenced the felon# of murder %#

maulin$ the "ictim and hittin$ him three times with a hollow %loc(H the# narrowl# missed hittin$ the middle portion of his head If Ed$ardo had done so, 4u%en would surel# ha"e died Be reject petitionersE contention that the prosecution failed to pro"e treacher# in the commission of the felon# !etitioners attac(ed the "ictim in a sudden and une&pected manner as 4u%en was wal(in$ with his three'#ear'old dau$hter, imper"ious of the imminent peril to his life ,e had no chance to defend himself and retaliate ,e was o"erwhelmed %# the s#nchroni7ed assault of the three si%lin$s The essence of treacher# is the sudden and une&pected attac( on the "ictim *A E"en if the attac( is frontal %ut is sudden and une&pected, $i"in$ no opportunit# for the "ictim to repel it or defend himself, there would %e treacher# */ O%"iousl#, petitioners assaulted the "ictim %ecause of the altercation %etween him and petitioner Ed$ardo 4i"era a da# %efore There %ein$ conspirac# %# and amon$ petitioners, treacher# is considered a$ainst all of them *. The appellate court sentenced petitioners to suffer an indeterminate penalt# of two 8-9 #ears of prision correccional in its minimum period, as minimum, to si& #ears and one da# of prision mayor in its ma&imum period, as ma&imum This is erroneous ?nder Article -2/ of the 4e"ised !enal Code, as amended %# 4epu%lic Act No A53., the penalt# for murder is reclusion perpetua to death Since petitioners are $uilt# onl# of attempted murder, the penalt# should %e reduced %# two de$rees, conforma%l# to Article 3* of the 4e"ised !enal Code ?nder para$raph - of Article 5*, in relation to Article A* of the 4e"ised !enal Code, such a penalt# is prision mayor In the a%sence of an# modif#in$ circumstance in the commission of the felon# 8other than the 1ualif#in$ circumstance of treacher#9, the ma&imum of the indeterminate penalt# shall %e ta(en from the medium period of prision mayorwhich has a ran$e of from ei$ht 8/9 #ears and one 8*9 da# to ten 8*<9 #ears To determine the minimum of the indeterminate penalt#, the penalt# of prision mayor should %e reduced %# one de$ree, prision correccional, which has a ran$e of si& 859 months and one 8*9 da# to si& 859 #ears ,ence, petitioners should %e sentenced to suffer an indeterminate penalt# of from two 8-9 #ears of prision correccional in its minimum period, as minimum, to nine 8.9 #ears and four 829 months of prision mayor in its medium period, as ma&imum IN LIG T OF ALL T E FOREGOING, the petition is DENIED for lac( of merit The Decision of the Court of Appeals is AFFIR'ED (IT T E 'ODIFI#ATION that petitioners are sentenced to suffer an indeterminate penalt# of from two 8-9 #ears of prision correccional in its minimum period, as minimum, to nine 8.9 #ears and four 829 months of prision mayor in its medium period, as ma&imum No costs SO ORDERED G.R. No. 180$2% Ju:y )1, 2008 FELI1 RAIT VS. T E PEOPLE OF T E P ILIPPINES RESOLUTION NA# URA, J.* Cefore this Court is a !etition for 4e"iew on Certiorari under 4ule 23 of the 4ules of Court see(in$ the re"ersal of the Court of Appeals 8CA9 Decision)*+ in CA'G 4 C4 No -0-A5 dated :anuar# -5, -<<5 and its 4esolution)-+ dated Octo%er *<, -<<A The Court of Appeals upheld the Decision)0+ of the 4e$ional Trial Court 84TC9 of Ca$a#an de Oro Cit#, Cranch -<, wherein petitioner Feli& 4ait was con"icted of attempted rape On No"em%er */, -<<0, AAA)2+ as(ed permission from her parents to $o to her %rotherEs house in Na7areth Street to $et her athletic pants Bhen she was there, her %rother

re1uested her to %u# ci$arettes from a near%# store Bhile in the store, petitioner 4ait and one :aniter !ita$o arri"ed The two ordered %eer and in"ited AAA to join them She initiall# refused ,owe"er, when Aurora 4ae7, another nei$h%or, joined them, AAA was forced to drin( %eer After drin(in$ a $lass of %eer, she %ecame drun( Bhen she was feelin$ wea(, petitioner and his co'accused %rou$ht her out to -< th and -*st Streets where the petitioner and his co'accused %rou$ht her to the side of the street and forci%l# remo"ed her pants and underwear !etitioner then forci%l# inserted his fin$er into her "a$ina AAA tried to shout for help %ut petitioner co"ered her mouth while !ita$o held her feet !etitioner was on top of her and a%out to insert his penis into her "a$ina %ut she was a%le to (ic( %oth men and run awa# )3+ AAA then went to her %rotherEs house and related the incident to him ,er %rother went out to find petitioner Bhen AAAEs %rother did find petitioner, he tried to %eat petitioner with a stic( %ut the latter ran awa# AAA and her %rother then went home to their parentsE house in Tam%o, ;acasandi$, Ca$a#an de Oro Cit# and told them what happened At a%out 0:<< a m of No"em%er *., AAA was accompanied %# her %rother and stepmother to Fperation Oa$usay u( OalinaK to report the incident The# also went to +ombo Eadyo to appeal for help in apprehendin$ petitioner From there, the# went to the !ro"incial ,ospital for AAA to under$o medical e&amination )5+ The# then proceeded to the police station where the incident was recorded on the police %lotter under Entr# No /</3 )A+ On ;a# -5, *..2, 4ait and !ita$o were char$ed in an Information, which reads: That on or a%out No"em%er *., *..0, at -:<< oEcloc( in the mornin$, more or less 8sic9 at Na7areth, Ca$a#an de Oro Cit#, !hilippines and within the jurisdiction of this ,onora%le Court, the a%o"e'named accused, conspirin$, confederatin$ to$ether and mutuall# helpin$ one another, did then and there, wilfull# 8sic9, unlawfull# and feloniousl# commence the commission of the crime of 4ape, directl# %# o"ert acts, on the person of a )*A'#ear'old+ minor, )AAA+, %# then and there 8sic9, with force and a$ainst the latterEs will while she was in a state of into&ication, touchin$ her %reasts, remo"in$ her pant#, holdin$ her feet 8%# :aniter !ita$o9 and l#in$ on top of her 8%# Feli& 4ait9, %ut did not perform all the acts of e&ecution which would produce the crime of 4ape, %# reason of some cause other than his own spontaneous desistance, that in when 8sic9 offended part# was a%le to (ic( them and the two ran awa# Contrar# to and in "iolation of Article 003 in relation to Article 5, of the 4e"ised !enal Code After trial, the 4TC rendered a Decision, the dispositi"e portion of which reads: B,E4EFO4E, premises considered, this court here%# finds the accused Feli& 4ait $uilt# %e#ond reasona%le dou%t of the crime of Attempted 4ape The %asic penalt# for Attempted 4ape under Article 003 is two de$rees lower than 4eclusion !erpetua or !rision ;a#or in its full e&tent Appl#in$ the Indeterminate Sentence =aw, the accused is entitled to a penalt# lower to 8sic9 !rision ;a#or or that of !rision Correccional in its full e&tent, 8sic9 hence, accused FE=IO 4AIT is sentenced to an Indeterminate Sentence of !4ISION CO44ECCIONA= in its medium period as the minimum to !4ISION ;AGO4 in its medium period as the

ma&imum under the same law The accused is entitled to his credit in full 8sic9 in his fa"or the period durin$ which he was under pre"enti"e imprisonment pendin$ liti$ation Accused herein is further ordered to pa# the complainant the sum of !-<,<<< << pesos 8sic9 as indemnit# for Attempted rape to the complainant 8sic9H !3,<<< << pesos 8sic9 for actual dama$es and e&penses and to pa# the costs SO O4DE4ED )/+ !etitioner appealed the jud$ment to the CA'Ca$a#an de Oro !etitioner alle$ed that the 4TC erred in: 8*9 $i"in$ credence to the prosecution witnesses despite their inconsistent, contradictor# and incredi%le testimoniesH 8-9 in not findin$ that petitioner was implicated in the case %# reason of spite and "en$eanceH and 809 in findin$ petitioner $uilt# %e#ond reasona%le dou%t of the crime of attempted rape despite the failure of the prosecution to pro"e his $uilt ).+ The CA denied the appeal and affirmed the trial courtEs rulin$ in all respects )*<+ !etitionerEs motion for reconsideration was li(ewise denied !etitioner now comes %efore this Court on the followin$ $rounds: T,E ,ONO4AC=E CO?4T OF A!!EA=S IN AFFI4;ING T,E DECISION OF T,E T4IA= CO?4T CON6ICTING T,E !ETITIONE4 FO4 T,E C4I;E OF ATTE;!TED 4A!E, DECIDED A D?ESTION OF S?CSTANCE NOT IN ACCO4D BIT, T,E =AB ON 4A!E AND :?4IS!4?DENCE ON T,E ;ATTE4 T,AT T,E ,ONO4AC=E CO?4T OF A!!EA=S CO;;ITTED SE4IO?S E44O4 IN )NOT DOBNG4ADING+ T,E C4I;E OF ATTE;!TED 4A!E TO ACTS OF =ASCI6IO?SNESS IF NOT T,AT OF ?N:?ST 6EOATION )**+ !etitioner ar$ues that he should %e ac1uitted of the crime of attempted rape If he is to %e found $uilt# of an# offense, he puts forward the theor# that %ased on this CourtEs rulin$ in +aleros! Jr. v. People,)*-+ he should %e con"icted onl# of unjust "e&ation The petition is %ereft of merit Be den# the !etition for 4e"iew First, the findin$s of fact of the trial court, especiall# when affirmed %# the CA, are conclusi"e upon this Court In this case, the trial court found the acts imputed to petitioner to ha"e %een dul# pro"en %# the e"idence %e#ond reasona%le dou%t Be are %ound %# such findin$ On the stren$th of those pro"en facts, the ne&t 1uestion is: what was the offense committedN !etitioner ar$ues that this CourtEs rulin$ in +aleros is applica%le to his case In +aleros, accused was con"icted of attempted rape The CA sustained the con"iction ?pon re"iew, this Court re"ersed the con"iction and found accused $uilt# of li$ht coercion The Court declared:

E&poundin$ on the nature of an attempted felon#, the Court, spea(in$ thru :ustice Claro ; 4ecto in People vs. /ama$an(, stated that >t$e attempt K$ic$ t$e Penal Code punis$es is t$at K$ic$ $as a lo(ical connection to a particular! concrete o ense9 t$at K$ic$ is t$e be(innin( o t$e e)ecution o t$e o ense by overt acts o t$e perpetrator! leadin( directly to its reali*ation and consummation @ A%sent the una"oida%le connection, li(e the lo$ical and natural relation of the cause and its effect, as where the purpose of the offender in performin$ an act is not certain, meanin$ the nature of the act in relation to its o%jecti"e is am%i$uous, then what o%tains is an attempt to commit an indeterminate offense, which is not a juridical fact from the standpoint of the !enal Code There is a%solutel# no dispute a%out the a%sence of se&ual intercourse or carnal (nowled$e in the present case The ne&t 1uestion that thus comes to the fore is whether or not the act of the petitioner, i.e , the pressin$ of a chemical'soa(ed cloth while on top of ;alou, constitutes an o"ert act of rape O"ert or e&ternal act has %een defined as some p$ysical activity or deed, indicatin$ the intention to commit a particular crime, more t$an a mere plannin$ or preparation, which if carried out to its complete termination followin$ its natural course, without %ein$ frustrated %# e&ternal o%stacles nor %# the "oluntar# desistance of the perpetrator, will lo(ically and necessarily ripen into a concrete offense ,armoni7in$ the a%o"e definition to the facts of this case, it would %e too strained to construe petitionerTs act of pressin$ a chemical'soa(ed cloth in the mouth of ;alou which would induce her to sleep as an o"ert act that will lo$icall# and necessaril# ripen into rape As it were, petitioner did not commence at all the performance of an# act indicati"e of an intent or attempt to rape ;alou It cannot %e o"eremphasi7ed that petitioner was full# clothed and that there was no attempt on his part to undress ;alou, let alone touch her pri"ate part For what reason petitioner wanted the complainant unconscious, if that was reall# his immediate intention, is an#%od#Es $uess The CA maintained that if the petitioner had no intention to rape, he would not ha"e lain on top of the complainant !loddin$ on, the appellate court e"en anticipated the ne&t step that the petitioner would ha"e ta(en if the "ictim had %een rendered unconscious Brote the CA: The sheddin$ of the clothes, %oth of the attac(er and his "ictim, will ha"e to come later ,is se&ual or$an is not #et e&posed %ecause his intended "ictim is still stru$$lin$ Bhere the intended "ictim is an educated woman alread# mature in a$e, it is "er# unli(el# that a rapist would %e in his na(ed $lor# %efore e"en startin$ his attac( on her ,e has to ma(e her lose her $uard first, or as in this case, her unconsciousness At %ottom then, the appellate court indul$es in plain speculation, a practice disfa"ored under the rule on e"idence in criminal cases For, mere speculations and pro%a%ilities cannot su%stitute for proof re1uired to esta%lish the $uilt of an accused %e#ond reasona%le dou%t &&&&

=est it %e misunderstood, the Court is not sa#in$ that petitioner is innocent, under the premises, of an# wron$doin$ whatsoe"er The information filed a$ainst petitioner contained an alle$ation that he forcefull# co"ered the face of ;alou with a piece of cloth soa(ed in chemical And durin$ the trial, ;alou testified a%out the pressin$ a$ainst her face of the chemical'soa(ed cloth and ha"in$ stru$$led after petitioner held her ti$htl# and pinned her down 6eril#, while the series of acts committed %# the petitioner do not determine attempted rape, as earlier discussed, the# constitute unjust "e&ation punisha%le as li$ht coercion under the second para$raph of Article -/A of the 4e"ised !enal Code In the conte&t of the constitutional pro"ision assurin$ an accused of a crime the ri$ht to %e informed of the nature and cause of the accusation, it cannot %e said that petitioner was (ept in the dar( of the inculpator# acts for which he was proceeded a$ainst To %e sure, the information a$ainst petitioner contains sufficient details to ena%le him to ma(e his defense As aptl# o%ser"ed %# then :ustice 4amon C A1uino, there is no need to alle$e malice, restraint or compulsion in information for unjust "e&ation As it were, unjust "e&ation e&ists e"en without the element of restraint or compulsion for the reason that this term is %road enou$h to include an# human conduct which, althou$h not producti"e of some ph#sical or material harm, would unjustl# anno# or irritate an innocent person The paramount 1uestion is whether the offenderEs act causes anno#ance, irritation, torment, distress or distur%ance to the mind of the person to whom it is directed That ;alou, after the incident in 1uestion, cried while relatin$ to her classmates what she percei"ed to %e a se&ual attac( and the fact that she filed a case for attempted rape pro"ed %e#ond ca"il that she was distur%ed, if not distressed %# the acts of petitioner )*0+ Be are not persuaded %# petitionerEs ar$ument Se"eral facts attendant to this case distin$uish it from +aleros, enou$h to con"ince us to arri"e at a different conclusion ?nli(e in +aleros, the acts of petitioner clearl# esta%lish his intention to commence the act of rape !etitioner had alread# successfull# remo"ed the "ictimEs clothin$ and had inserted his fin$er into her "a$ina It is not empt# speculation to conclude that these acts were preparator# to the act of rapin$ her ,ad it not %een for the "ictimEs stron$ ph#sical resistance, petitionerEs ne&t step would, lo$icall#, %e ha"in$ carnal (nowled$e of the "ictim The acts are clearl# >the first or some su%se1uent step in a direct mo"ement towards the commission of the offense after the preparations are made @)*2+ ?nder Article 5, in relation to Article 003, of the 4e"ised !enal Code, rape is attempted when the offender commences the commission of rape directl# %# o"ert acts, and does not perform all the acts of e&ecution which should produce the crime of rape %# reason of some cause or accident other than his own spontaneous desistance )*3+ This Court has held that an o"ert or e&ternal act ' is defined as some ph#sical acti"it# or deed, indicatin$ the intention to commit a particular crime, more than a mere plannin$ or preparation, which if carried out to its complete termination followin$ its natural course, without %ein$ frustrated %# e&ternal o%stacles nor %# the spontaneous desistance of the perpetrator, will lo$icall# and necessaril# ripen into a

concrete offense The raison dRetre for the law re1uirin$ a direct o"ert act is that, in a majorit# of cases, the conduct of the accused consistin$ merel# of acts of preparation has ne"er ceased to %e e1ui"ocalH and this is necessaril# so, irrespecti"e of his declared intent It is that 1ualit# of %ein$ e1ui"ocal that must %e lac(in$ %efore the act %ecomes one which ma# %e said to %e a commencement of the commission of the crime, or an o"ert act or %efore an# fra$ment of the crime itself has %een committed, and this is so for the reason that so lon$ as the e1ui"ocal 1ualit# remains, no one can sa# with certaint# what the intent of the accused is It is necessar# that the o"ert act should ha"e %een the ultimate step towards the consummation of the desi$n It is sufficient if it was the >first or some su%se1uent step in a direct mo"ement towards the commission of the offense after the preparations are made @ The act done need not constitute the last pro&imate one for completion It is necessar#, howe"er, that the attempt must ha"e a causal relation to the intended crime In the words of ,iada, the o"ert acts must ha"e an immediate and necessar# relation to the offense )*5+ Thus, we find that petitioner was correctl# con"icted of attempted rape A final o%ser"ation Be note that the trial courtEs Decision sentenced petitioner to a prison term without specif#in$ the period this sentence co"ers Be will rectif# this error e"en as we affirm petitionerEs con"iction The penalt# for attempted rape is prision mayor, or two de$rees lower than reclusion perpetua, the penalt# for consummated rape !etitioner should %e sentenced to an indeterminate sentence the minimum of which is in the ran$e of prision correccional, or within si& months and one da# to si& #ears, and the ma&imum of which is prision mayor medium, or within ei$ht #ears and one da# to ten #ears In this case, the trial court sentenced petitioner to >an Indeterminate Sentence of PEISIFC CFEEECCIFCA/ in its medium period, as the minimum, to PEISIFC NAMFE in its medium period, as the ma&imum @ ( EREFORE, the fore$oin$ premises considered, the Court of Appeals Decision in CA'G 4 C4 No -0-A5 dated:anuar# -5, -<<5 and its 4esolution dated Octo%er *<, -<<A affirmin$ petitionerEs con"iction for ATTE'PTED RAPE areAFFIR'ED (IT 'ODIFI#ATION The petitioner is sentenced to an indeterminate sentence of /Eo F2G ye!&7, =ou& F$G 8on/,7, !n" one F1G "!y o= prision correccional 8e"0u8, as minimum, to /en F10G ye!&7 o= prision mayor 8e"0u8, as its ma&imum In all other respects, the trial courtEs Decision is AFFIR'ED SO ORDERED G.R. NO. 1%012A.&0: 6, 200% NOR'A A. A3DULLA VS. PEOPLE OF T E P ILIPPINES DE#ISION GAR#IA, J.* Con"icted %# the Sandi$an%a#an)*+ in its Crim Case No -0-5* of the crime of ille$al use of pu%lic funds defined and penali7ed under Article --< of the 4e"ised !enal Code, or more commonl# (nown as /e+,n0+!: 8!:De&7!/0on, appellant Norma A A%dulla is now

%efore this Court on petition for re"iew under 4ule 23 Alon$ with Nenita A$uil and ;ahmud Dar(is, appellant was char$ed under an Information which pertinentl# reads: That on or a%out No"em%er, *./. or sometime prior or su%se1uent thereto, in :olo, Sulu, !hilippines and within the jurisdiction of this ,onora%le Court, the a%o"e'named accused: NO4;A A ACD?==A and NENITA ! AG?I=, %oth pu%lic officers, %ein$ then the !resident and cashier, respecti"el#, of the Sulu State Colle$e, and as such %# reason of their positions and duties are accounta%le for pu%lic funds under their administration, while in the performance of their functions, conspirin$ and confederatin$ with ;A,;?D I DA4QIS, also a pu%lic officer, %ein$ then the Administrati"e Officer 6 of the said school, did then and there willfull#, unlawfull# and feloniousl#, without lawful authorit#, appl# for the pa#ment of wa$es of casuals, the amount of FO4TG T,O?SAND !ESOS 8!2<,<<< <<9, !hilippine Currenc#, which amount was appropriated for the pa#ment of the salar# differentials of secondar# school teachers of the said school, to the dama$e and prejudice of pu%lic ser"ice CONT4A4G TO =AB AppellantEs co'accused, Nenita A$uil and ;ahmud Dar(is, were %oth ac1uitted Onl# appellant was found $uilt# and sentenced %# the Sandi$an%a#an in its decision)-+ dated Au$ust -3, -<<< 8promul$ated on Septem%er -A,-<<<9, as follows: B,E4EFO4E, premises considered, accused ;ahmud Dar(is and Nenita ! A$uil are here%# ac1uitted of the crime char$ed The cash %ond posted %# each of the said accused for their pro"isional li%ert# are here%# ordered returned to each of them su%ject to the usual auditin$ and accountin$ procedures Accused Norma A%dulla is here%# con"icted of the crime char$ed and is here%# meted a fine of three thousand pesos, pursuant to the second para$raph of Article --< of the 4e"ised !enal Code She is further imposed the penalt# of temporar# special dis1ualification for a period of si& 859 #ears She shall also pa# the costs of the suit SO O4DE4ED ?pon motion for reconsideration, the Sandi$an%a#an amended appellantEs sentence %# deletin$ the temporar# special dis1ualification imposed upon her, thus: !remises considered, the decision of this Court dated Au$ust -3, -<<<, is here%# amended to the effect that the penalt# of temporar# special dis1ualification for si& 859 #ears is here%# cancelled and set aside ,ence, the last para$raph of said decision shall read as follows: Accused A%dulla is here%# con"icted of the crime char$ed and is here%# meted a fine of three thousand pesos, pursuant to the second para$raph of Article --< of the 4e"ised !enal Code She shall also pa# the costs of the suit SO O4DE4ED )0+ Still dissatisfied, appellant, now %efore this Court, persistentl# pleas innocence of the

crime char$ed The record shows that the prosecution dispensed with the presentation of testimonial e"idence and instead opted to mar( in e"idence the followin$ e&hi%its: EO,ICITS >A@ DESC4I!TION Audit 4eport which is denominated as ;emorandum of Commission on Audit, 4e$ion IO, Xam%oan$a Cit#, from the Office of the Special Audit Team, COA, dated ;a# /, *..-, consistin$ of nine 8.9 pa$esH Certified Oero& cop# of a letter from the Department of Cud$et and ;ana$ement throu$h Secretar# Guillermo N Cara$ue to the !resident of the Sulu State Colle$e dated Octo%er 0<, *./.H Certified cop# of the DC; Ad"ice of Allotment for the Gear *./.H The entr# appearin$ in E&hi%it >C@ which reads: >!urpose U release partial fundin$ for the con"ersion of 02 Secondar# School Teacher positions to Instructor I itemsH Fund Source U lump'sum appropriation authori7ed on pa$e 0A< of 4A 55// and the current sa"in$s under personal ser"icesH@ ;anifestation filed %# accused Norma A%dulla herself dated No"em%er -2, *..A consistin$ of two 8-9 pa$es appearin$ on pa$es --3 to --5 of the recordH ;otion filed %# the accused throu$h Att# Sandra Gope7 dated Fe%ruar# ., *../ found on pa$es 0/-'a and 0/-'% of the records of this caseH and !rosecutionEs Opposition to the motion mar(ed as E&hi%it >E@ dated Fe%ruar# **, *../, consistin$ of three 809 pa$es, appearin$ in pa$es 0/0 to 0/3 of the record )2+

>C@

>C@ >C'*@

>D@

>E@

>F@

Thereafter, the prosecution immediatel# made its Formal Offer of E"idence, and, with the admission thereof %# the court, rested its case The defense proceeded to adduce its e"idence %# presentin$ four 829 witnesses, namel#, accused ;ahmud Dar(is, who was the Administrati"e Officer of Sulu State Colle$e, :olo, SuluH accused Nenita A$uil, the Cashier of the same Colle$eH appellant Norma A%dulla herself, who was the Colle$e !residentH and Gerardo Concepcion, :r , Director I6 and ,ead of the Department of Cud$et and ;ana$ement, 4e$ional Office No ., Xam%oan$a Cit# The undisputed facts, as found %# the Sandi$an%a#an itself: The e"idence on record &&& show that the re1uest for the con"ersion of thirt#'four 8029 secondar# school teachers to Instructor I items of the Sulu State Colle$e, throu$h its former president, accused A%dulla, was appro"ed %# the Department of Cud$et and ;ana$ement 8DC;9H that conse1uent to the appro"al

of the said re1uest, was the allotment %# the DC; of the partial fundin$ for the purpose of pa#in$ the salar# differentials of the said thirt#'four 8029 secondar# school teachers in the amount of fort# thousand pesos 8!2<,<<< <<9 sourced from the >lump sum appropriation authori7ed on pa$e 0A< of 4 A 55// )should %e pa$e 0.5 of 4A 55// 8General Appropriations Act :anuar# * U Decem%er 0*, *./.9+ and the current sa"in$s under personal ser"ices of said school 8E&hi%its _C,E _CE and _C'*HE E&hi%it _*/,E pp 0-'03H tsn, hearin$ of Septem%er --, *../, pp 5 to -3 and -59H that out of the thirt#'four 8029 secondar# school teachers, onl# the si& 859 teachers were entitled and paid salar# differentials amountin$ to !/,0A< <<, as the twent#'ei$ht 8-/9 teachers, who were occup#in$ Teacher III positions, were no lon$er entitled to salar# differentials as the# were alread# recei"in$ the same salar# rate as Instructor I 8E&hi%it _A,E p 2, par *H E&hi%its _*E to _5,E inclusi"eH E&hi%it _*2'AHE tsn, hearin$ of Septem%er --, *../, pp 5 to /H tsn, hearin$ of Septem%er -0, *../, pp *<'**9H and that the amount of !0*,3*5 *5, ta(en from the remainin$ %alance of the !2<,<<< << allotment, was used to pa# the terminal lea"e %enefits of the si& 859 casuals 8E&hi%its _DE and _EHE E&hi%its _AE to _*-,E inclusi"eH tsn, hearin$ of Septem%er --, *../, pp *0 and 02H tsn, hearin$ of Septem%er -0, *../, p *09 Accused A%dulla was a%le to sufficientl# justif# the pa#ment of the salar# differentials of onl# si& 859, out of the thirt#'four 8029 teachers, when she testified that out of the thirt#'four 8029 teachers, twent#'ei$ht 8-/9 were alread# holdin$ the position of Secondar# School Teacher III recei"in$ the salar# of Instructor IH and that the remainin$ si& 859 were still holdin$ Secondar# Teacher II positions and therefore recei"in$ a salar# lower than that of Instructor I so the# were paid salar# differentials 8tsn, hearin$ of Septem%er -0, *../, pp /, *< and **9 In fact, the notari7ed audit in"esti$ation report 8E&hi%it _A,E p 2, *st par 9 and the :oint 4esolution of the Office of the Om%udsman, ;indanao 8E&hi%it _*2'aE9, also point that said act of the accused is justified In this recourse, appellant 1uestions the jud$ment of con"iction rendered a$ainst her, claimin$ that the Sandi$an%a#an erred: >I OOO ON A D?ESTION OF =AB IN IN6OQING T,E !4ES?;!TION OF ?N=ABF?= INTENT DES!ITE E6IDENCE TO T,E CONT4A4G II OOO ON A D?ESTION OF =AB IN ,O=DING T,AT T,E !4OSEC?TION BAS AC=E TO !4O6E T,AT !ETITIONE4 CO;;ITTED TEC,NICA= ;A=6E4SATION ?NDE4 A4TIC=E --< OF T,E 4E6ISED !ENA= CODE@ The Court $rants the appeal So precious to her is the constitutional ri$ht of presumption of innocence unless pro"en otherwise that appellant came all the wa# to this Court despite the fact that the sentence imposed upon her %# the Sandi$an%a#an was merel# a fine of three thousand pesos, with no imprisonment at all And reco$ni7in$ the primac# of the ri$ht, this Court, where dou%t e&ists, has in"aria%l# resol"ed it in fa"or of an accused In a jud$ment of ac1uittal in fa"or of two 8-9 accused char$ed of murder in People vs. Abu&an,)3+ the Court wrote:

Be are enra$ed %# the shoc(in$ death suffered %# the "ictim and we commiserate with her famil# Cut with seeds of dou%t planted in our minds %# une&plained circumstances in this case, we are una%le to accept the lower courtEs conclusion to con"ict appellants Be cannot in conscience accept the prosecutionEs e"idence here as sufficient proof re1uired to con"ict appellants of murder ,ence, here we must rec(on with adictum of the law, in dubilis reus est absolvendus. All dou%ts must %e resol"ed in fa"or of the accused Nowhere is this rule more compellin$ than in a case in"ol"in$ the death penalt# for a trul# humanitarian Court would rather set ten $uilt# men free than send one innocent man to the death row !erforce, we must declare %oth appellants not $uilt# and set them free Similarl#, the Court had to ac1uit an accused char$ed of rape in People vs. De Jesus[1] on $round of reasona%le dou%t, to wit: Bith seeds of dou%t planted in our minds %# the conduct of proceedin$s on record, we are una%le to accept the lower courtEs conclusion to con"ict appellant ,is con"iction is founded on the sole testimon# of A$nes, %ut thou$h a credi%le witness despite her mental retardation, she showed unnecessar# dependence on her mother when identif#in$ the father of her child ;aternal coachin$ taints her testimon# That her mother had to %e ordered %# the jud$e to $o outside the courtroom impresses us as si$nificant Be are una%le to accept as sufficient the 1uantum of proof re1uired to con"ict appellant of rape %ased on the alle$ed "ictimEs sole testimon# ,ence, here we must fall %ac( on a truism of the law, in dubilis reus est absolvendus. All dou%ts must %e resol"ed in fa"or of the accused B,E4EFO4E, the assailed decision dated ;a# -5, -<<<, of the 4e$ional Trial Court of Camilin$, Tarlac, Cranch 5/, is 4E6E4SED and SET ASIDE Appellant 4?CEN =?;ICAO is ACD?ITTED of the char$e of rape on reasona%le dou%t The CourtEs faithful adherence to the constitutional directi"e imposes upon it the imperati"e of closel# scrutini7in$ the prosecutionEs e"idence to assure itself that no innocent person is condemned and that con"iction flows onl# from a moral certaint# that $uilt has %een esta%lished %# proof %e#ond reasona%le dou%t In the words of People vs. Pascua)A+: Our findin$s in the case at %ar should not create the mista(en impression that the testimonies of the prosecution witnesses should alwa#s %e loo(ed at with as(ance Bhat we are dri"in$ at is that e"er# accused is presumed innocent at the onset of an indictment Cut, it has often happened that at the commencement of a trial, peopleEs minds, sometimes jud$es too, would ha"e alread# passed sentence a$ainst the accused An alle$ation, or e"en an# testimon#, that an act was done should ne"er %e hastil# accepted as proof that it was reall# done !roof must %e closel# e&amined under the lens of a judicial microscope and onl# proof %e#ond reasona%le dou%t must %e allowed to con"ict ,ere, that 1uantum of proof has not %een satisfied Be shall now assa# appellantEs $uilt or innocence in the li$ht of the fore$oin$ cruci%les

In her first assi$ned error, appellant contends that the prosecution failed to adduce e"idence to pro"e criminal intent on her part Bhen she raised this issue in her ;otion for 4econsideration %efore the Sandi$an%a#an, that court, in"o(in$ Section 3 8%9, 4ule *0* of the 4ules of Court, ruled in a 4esolution)/+ promul$ated on Septem%er *A, -<<*, as follows: Anent the alle$ation of the mo"antMaccused that $ood faith is a "alid defense in a prosecution for mal"ersation as it would ne$ate criminal intent on the part of the accused which the prosecution failed to pro"e, attention is in"ited to pertinent law and rulin$s of the Supreme Court on the matter Sec 38%9 of the 4ule *0*, 4ules of Court, pro"ides, _That an unlawful act was done with an unlawful intent E ,ence, dolo ma# %e inferred from the unlawful act In se"eral cases 8Tria, *A !hil 0<0H Callesteros, -3 !hil 502H Sia Tioan, 32 !hil 3-H Cueto, 0/ !hil .03H Cu%elo, *<5 !hil 2.59, the Supreme Court ruled that _Bhen it has %een pro"en that the appellants committed the unlawful acts alle$ed, it is properl# presumed that the# were committed with full (nowled$e and with criminal intent, _and it is incum%ent upon them to re%ut such presumption E Further, the same court also ruled that when the law plainl# for%ids an act to %e done, and it is done %# a person, the law implies the $uilt# intent, althou$h the offender was honestl# mista(en as to the meanin$ of the law which he had "iolated 8State "s ;cCra#er, ./ NIC 5*.H Sin$ Con$ Cien$ and Co Qon$, 0< !hil 3AA, 3/<H ,ermeni$ildo Cautista, CA 2< O G 3 th Supp *0.9 If the act is criminal, then criminal intent is presumed 8Francisco # ;artin, CA 30 O G *23<9 In the case at %ar, inasmuch as the prosecution had pro"ed that a criminal act was committed %# the accused under Article --< of the 4e"ised !enal Code, criminal intent was presumed The accused did not present an# e"idence to pro"e that no such criminal intent was present when she committed the unlawful act of technical mal"ersation ,ence, the presumption that the unlawful act of the accused was done with criminal intent had %een satisfactoril# pro"en %# the prosecution 8Sec 3)%+, 4ule *0*9 The Court must ha"e to part wa#s with the Sandi$an%a#an in its reliance on Section 3 8%9 of 4ule *0* as %asis for its imputation of criminal intent upon appellant For sure, the procedural rule relied upon does not appl# at all to this case Indeed, clear it is from its "er# lan$ua$e that the disputa%le presumption of the e&istence of unlawful or criminal intent presupposes the commission of an un:!E=u: !+/ Thus, intent to (ill is presumed when the "ictim dies %ecause the act of (illin$ clearl# constitutes an unlawful act In People vs. Hemoya![2] the Court held: The intent to (ill is li(ewise presumed from the fact of death, unless the accused pro"es %# con"incin$ e"idence that an# of the justif#in$ circumstances in Article ** or an# of the e&emptin$ circumstances in Article *-, %oth of the 4e"ised !enal Code, is present In fact, in a 4esolution penned %# :ustice 4omeo Callejo, Sr in People vs. Delim! )*<+ the Court en banccate$oricall# stated:

If the "ictim dies %ecause of a deli%erate act of the malefactor, intent to (ill is conclusi"el# presumed 8Emphasis supplied9 Similarl#, intent to $ain or animus lucrandi is presumed when one is found in possession of stolen $oods precisel# %ecause the ta(in$ of anotherEs propert# is an unlawful act So it is that in People vs. Eeyes![11] the Court held: Accused'appellantEs contention that the animus lucrandi was not sufficientl# esta%lished %# the prosecution is de"oid of merit Animus lucrandi or intent to $ain is an internal act which can %e esta%lished throu$h the o"ert acts of the offender Althou$h proof of moti"e for the crime is essential when the e"idence of the ro%%er# is circumstantial, intent to $ain or animus lucrandi ma# %e presumed from the furti"e ta(in$ of useful propert# pertainin$ to another, unless special circumstances re"eal a different intent on the part of the perpetrator The intent to $ain ma# %e presumed from the pro"en unlawful ta(in$ In the case at %ar, the act of ta(in$ the "ictimEs wristwatch %# one of the accused Cer$ontes while accused'appellant 4e#es po(ed a (nife %ehind him sufficientl# $a"e rise to the presumption The presumption of criminal intent will not, howe"er, automaticall# appl# to all char$es of technical mal"ersation %ecause dis%ursement of pu%lic funds for pu%lic use is per se no/ !n un:!E=u: !+/ ,ere, appellant cannot %e said to ha"e committed an unlawful act when she paid the o%li$ation of the Sulu State Colle$e to its emplo#ees in the form of terminal lea"e %enefits such emplo#ees were entitled to under e&istin$ ci"il ser"ice laws Thus, in a similar case,)*-+ the Court re"ersed a con"iction for technical mal"ersation of one who paid out the wa$es of la%orers: There is no dispute that the mone# was spent for a pu%lic purpose U pa#ment of the wa$es of la%orers wor(in$ on "arious projects in the municipalit# It is pertinent to note the hi$h priorit# which la%orersE wa$es enjo# as claims a$ainst the emplo#ersE funds and resources In the a%sence of an# presumption of unlawful intent, the %urden of pro"in$ %# competent e"idence that appellantEs act of pa#in$ the terminal lea"e %enefits of emplo#ees of the Sulu State Colle$e was done with criminal intent rests upon the prosecution The Court notes the odd procedure which the prosecution too( in dischar$in$ its underta(in$ to pro"e the $uilt of appellant %e#ond reasona%le dou%t As it is, the prosecution did not present an# sin$le witness at all, not e"en for the purpose of identif#in$ and pro"in$ the authenticit# of the documentar# e"idence on which it rested its case The prosecution definitel# failed to pro"e unlawful intent on the part of appellant Settled is the rule that con"iction should rest on the stren$th of e"idence of the prosecution and not on the wea(ness of the defense The wea(ness of the defense does not relie"e it of this responsi%ilit# And when the prosecution fails to dischar$e its %urden of esta%lishin$ the $uilt of an accused, an accused need not e"en offer e"idence in his %ehalf A jud$ment of con"iction must rest on nothin$ less than moral certaint# It is thus re1uired that e"er# circumstance fa"orin$ his innocence must %e dul# ta(en into account The proof a$ainst him must sur"i"e the test of reason and the stron$est suspicion must not %e permitted to swa# jud$ment There must %e moral certaint# in an unprejudiced

mind that it was accused'appellant who committed the crime A%sent this re1uired 1uantum of e"idence would mean e&oneration for accused'appellant )*0+ The Sandi$an%a#anEs improper reliance on Sec 38%9 of 4ule *0* does not sa"e the da# for the prosecutionEs deficienc# in pro"in$ the e&istence of criminal intent nor could it e"er tilt the scale from the constitutional presumption of innocence to that of $uilt In the a%sence of criminal intent, this Court has no %asis to affirm appellantEs con"iction & & & This calls to mind the oft'repeated ma&im _Actus non acit reum! nisi mens sit rea,E which e&pounds a %asic principle in criminal law that a crime is not committed if the mind of the person performin$ the act complained of %e innocent Thus, to constitute a crime, the act must, e&cept in certain crimes made such %# statute, %e accompanied %# a criminal intent It is true that a presumption of criminal intent ma# arise from proof of the commission of a criminal actH and the $eneral rule is that if it is pro"ed that the accused committed the criminal act char$ed, it will %e presumed that the act was done with criminal intention and that it is for the accused to re%ut this presumption Cut it must %e %orne in mind that the act from which such presumption sprin$s must %e a criminal act In the case at %ar, the act is not criminal Neither can it %e cate$ori7ed as malum pro$ibitum! the mere commission of which ma(es the doer criminall# lia%le e"en if he acted without e"il intent )*2+ The second assi$ned error refers to the failure of the prosecution to pro"e the e&istence of all the essential elements of the crime of technical mal"ersation defined in Article --< of the 4e"ised !enal Code, which are: >* That the offender is a pu%lic officerH That there is pu%lic fund or propert# under his administrationH >0 That such pu%lic fund or propert# has %een appropriated %# law or ordinanceH >2 That he applies the same to a pu%lic use other than that for which such fund or propert# has %een appropriated %# law or ordinance @)*3+ Appellant contends that the prosecution was una%le to pro"e the second and third elements of the crime char$ed )*5+ She ar$ued that the pu%lic funds in 1uestion, ha"in$ %een esta%lished to form part of sa"in$s, had therefore ceased to %e appropriated %# law or ordinance for an# specific purpose The Court finds merit in appellantEs su%mission As found %# the Sandi$an%a#an no less, the amount of fort# thousand pesos 8!2<,<<< <<9 ori$inall# intended to co"er the salar# differentials of thirt# four 8029 secondar# school teachers whose emplo#ment status were con"erted to Instructor I, were sourced from the >lump sum appropriation@ authori7ed on pa$e 0A< 8should %e pa$e 0.59 of 4 A 55// and the current sa"in$s under personal ser"ices of said school )*A+ The pertinent portions of 4A 55// are reproduced hereunder: >Q - Sulu State Colle$e

For $eneral administration, administration of personnel %enefits, salar# standardi7ation, hi$her education and secondar# education ser"ices, includin$ locall#'funded project as indicated hereunderSSSSSSSSSSSSSSSSSSS S! *A,..2,<<< New Appropriations, %# FunctionM!roject Current Operatin$ E&penditures ''''''''''''''''''''''''''''''''''' !ersonal Ser"ices ;aintenance Capital and Other Outla#s Operatin$ E&penses Total

A Functions * General Administration and Support Ser"ices ! *,5<3,<<< - Administration of !ersonnel Cenefits 5</,<<< 0 Salar# Standardi7ation 3A,<<< 3AA,<<< A05,<<< '''''''''''''' ''' -,3<.,<<< '''''''''''''' ''' ! *,*.5,<<< ! ! -,/<*,<<< 5</,<<< 3A,<<< -,322,<<< 0,0A-,<<< '''''''''''''''' ' .,0/-,<<< '''''''''''''''' '

2 ,i$her Education Ser"ices *,.5A,<<< 3 Secondar# Education Ser"ices Total, Functions -,505,<<< ''''''''''''''''' ' 5,/A0,<<< ''''''''''''''''' '

C =ocall#'Funded !roject * Ac1uisition and Impro"ements of =ands, Construction, 4eha%ilitation or 4eno"ation of Cuildin$s and Structures, and Ac1uisition of E1uipment /,5*-,<<< /,5*-,<<< ''''''''''''''''' '''''''''''''' '''''''''''''' '''''''''''''''' ' ''' '''' ' Total New Appropriations, Sulu State Colle$e ! 5,/A0,<<< ````````` ` ! -,3<.,<<< ! /,5*-,<<< !*A,..2 <<< ```````` ```````` ````````` `` `` `

&&&

&&&

&&&

New Appropriations, %# O%ject of E&penditures 8In Thousand !esos9 A FunctionsM=ocall#'Funded !roject Current Operatin$ E&penditures !ersonal Ser"ices Total Salaries of !ermanent !ersonnel Total Salaries and Ba$es of Contractual and Emer$enc# !ersonnel Total Salaries and Ba$es Other Compensation ,onoraria and Commuta%le Allowances Cost of =i"in$ Allowances Emplo#ees Compensation Insurance !remiums !a$'I C I G Contri%utions ;edicare !remiums ;erit Increases Salar# Standardi7ation Conuses and Incenti"es Others Total Other Compensation O* Total !ersonal Ser"ices */3 *,-.22 03 */ -< 0A 3** 20A -,3A. 5,/A0 2,*2/ *25 $,2-$

The Court notes that there is no particular appropriation for salar# differentials of secondar# school teachers of the Sulu State Colle$e in 4A 55// The third element of the crime of technical mal"ersation which re1uires that the pu%lic fund used should ha"e %een appropriated %# law, is therefore a%sent The authori7ation $i"en %# the Department of Cud$et and ;ana$ement for the use of the fort# thousand pesos 8!2<,<<< <<9 allotment for pa#ment of salar# differentials of 02 secondar# school teachers is not an ordinance or law contemplated in Article --< of the 4e"ised !enal Code The Court has une1ui"oca%l# ruled in Parun(ao vs. Sandi(anbayan[18] that in the a%sence of a law or ordinance appropriatin$ the pu%lic fund alle$edl# technicall# mal"ersed 8in that case, the a%sence of an# law or ordinance appropriatin$ the C4CI fund for the concretin$ of Caran$a# :alun$ 4oad9, the use thereof for another pu%lic purpose 8there, for the pa#ment of wa$es of la%orers wor(in$ on projects other than the Caran$a# :alun$ 4oad9 will not ma(e the accused $uilt# of "iolation of Article --< of the 4e"ised !enal Code

Appellant herein, who used the remainder of the fort# thousand pesos 8!2<,<<< <<9 released %# the DC; for salar# differentials, for the pa#ment of the terminal lea"e %enefits of other school teachers of the Sulu State Colle$e, cannot %e held $uilt# of technical mal"ersation in the a%sence, as here, of an# pro"ision in 4A 55// specificall# appropriatin$ said amount for pa#ment of salar# differentials onl# In fine, the third and fourth elements of the crime defined in Article --< of the 4e"ised !enal Code are lac(in$ in this case Ac1uittal is thus in order ( EREFORE, the petition is here%# GRANTED Accordin$l#, the appealed decision and resolution of the Sandi$an%a#an in Criminal Case No -0-5* are REVERSED and SET ASIDE and appellant A#5UITTED of the crime char$ed a$ainst her The cash %ond posted %# appellant for her pro"isional li%ert#, if an#, is ordered returned to her su%ject to the usual auditin$ and accountin$ procedures SO ORDERED. G.R. No. 16%8$2 NoDe86e& 2-, 200% EDUARDO P. 'ANUEL VS. PEOPLE OF T E P ILIPPINES DE#ISION #ALLEJO, SR., J.* Cefore us is a petition for re"iew on certiorari of the Decision)*+ of the Court of Appeals 8CA9 in CA'G 4 C4 No -5/AA, affirmin$ the Decision)-+ of the 4e$ional Trial Court 84TC9 of Ca$uio Cit#, Cranch 0, con"ictin$ Eduardo ! ;anuel of %i$am# in Criminal Case No *.35-'4 Eduardo was char$ed with %i$am# in an Information filed on No"em%er A, -<<*, the accusator# portion of which reads: That on or a%out the --nd da# of April, *..5, in the Cit# of Ca$uio, !hilippines, and within the jurisdiction of this ,onora%le Court, the a%o"e'named accused ED?A4DO ! ;AN?E=, %ein$ then pre"iousl# and le$all# married to 4?CG=?S )GAaA+ and without the said marria$e ha"in$ %een le$all# dissol"ed, did then and there willfull#, unlawfull# and feloniousl# contract a second marria$e with TINA GANDA=E4A';AN?E=, herein complainant, who does not (now the e&istence of the first marria$e of said ED?A4DO ! ;AN?E= to 4u%#lus )Ga^a+ CONT4A4G TO =AB )0+ The prosecution adduced e"idence that on :ul# -/, *.A3, Eduardo was married to 4u%#lus Ga^a %efore ;s$r Feliciano Santos in ;a(ati, which was then still a municipalit# of the !ro"ince of 4i7al )2+ ,e met the pri"ate complainant Tina C Gandalera in Da$upan Cit# sometime in :anuar# *..5 She sta#ed in Conuan, Da$upan Cit# for two da#s loo(in$ for a friend Tina was then -* #ears old, a Computer Secretarial student, while Eduardo was 0. Afterwards, Eduardo went to Ca$uio Cit# to "isit her E"entuall#, as one thin$ led to another, the# went to a motel where, despite TinaEs resistance, Eduardo succeeded in ha"in$ his wa# with her Eduardo proposed marria$e on se"eral occasions, assurin$ her that he was sin$le Eduardo e"en %rou$ht his parents to Ca$uio Cit# to meet TinaEs parents, and was assured %# them that their son was still sin$le Tina finall# a$reed to marr# Eduardo sometime in the first wee( of ;arch *..5 The# were married on April --, *..5 %efore :ud$e Antonio C 4e#es, the !residin$ :ud$e of the 4TC of

Ca$uio Cit#, Cranch 5* )3+ It appeared in their marria$e contract that Eduardo was >sin$le @ The couple was happ# durin$ the first three #ears of their married life Throu$h their joint efforts, the# were a%le to %uild their home in C#press !oint, Irisan, Ca$uio Cit# ,owe"er, startin$ *..., ;anuel started ma(in$ himself scarce and went to their house onl# twice or thrice a #ear Tina was jo%less, and whene"er she as(ed mone# from Eduardo, he would slap her )5+ Sometime in :anuar# -<<*, Eduardo too( all his clothes, left, and did not return Borse, he stopped $i"in$ financial support Sometime in Au$ust -<<*, Tina %ecame curious and made in1uiries from the National Statistics Office 8NSO9 in ;anila where she learned that Eduardo had %een pre"iousl# married She secured an NSO'certified cop# of the marria$e contract )A+ She was so em%arrassed and humiliated when she learned that Eduardo was in fact alread# married when the# e&chan$ed their own "ows )/+ For his part, Eduardo testified that he met Tina sometime in *..3 in a %ar where she wor(ed as a Guest 4elations Officer 8G4O9 ,e fell in lo"e with her and married her ,e informed Tina of his pre"ious marria$e to 4u%#lus Ga^a, %ut she ne"ertheless a$reed to marr# him Their marital relationship was in order until this one time when he noticed that she had a >lo"e'%ite@ on her nec( ,e then a%andoned her Eduardo further testified that he declared he was >sin$le@ in his marria$e contract with Tina %ecause he %elie"ed in $ood faith that his first marria$e was in"alid ,e did not (now that he had to $o to court to see( for the nullification of his first marria$e %efore marr#in$ Tina Eduardo further claimed that he was onl# forced to marr# his first wife %ecause she threatened to commit suicide unless he did so 4u%#lus was char$ed with esta a in *.A3 and thereafter imprisoned ,e "isited her in jail after three months and ne"er saw her a$ain ,e insisted that he married Tina %elie"in$ that his first marria$e was no lon$er "alid %ecause he had not heard from 4u%#lus for more than -< #ears After trial, the court rendered jud$ment on :ul# -, -<<- findin$ Eduardo $uilt# %e#ond reasona%le dou%t of %i$am# ,e was sentenced to an indeterminate penalt# of from si& 859 #ears and ten 8*<9 months, as minimum, to ten 8*<9 #ears, as ma&imum, and directed to indemnif# the pri"ate complainant Tina Gandalera the amount of !-<<,<<< << %# wa# of moral dama$es, plus costs of suit ).+ The trial court ruled that the prosecution was a%le to pro"e %e#ond reasona%le dou%t all the elements of %i$am# under Article 02. of the 4e"ised !enal Code It declared that EduardoEs %elief, that his first marria$e had %een dissol"ed %ecause of his first wifeEs -<'#ear a%sence, e"en if true, did not e&culpate him from lia%ilit# for %i$am# Citin$ the rulin$ of this Court in People v. +itdu!)*<+ the trial court further ruled that e"en if the pri"ate complainant had (nown that Eduardo had %een pre"iousl# married, the latter would still %e criminall# lia%le for %i$am# Eduardo appealed the decision to the CA ,e alle$ed that he was not criminall# lia%le for %i$am# %ecause when he married the pri"ate complainant, he did so in $ood faith and without an# malicious intent ,e maintained that at the time that he married the pri"ate complainant, he was of the honest %elief that his first marria$e no lon$er su%sisted ,e insisted that conforma%l# to Article 0 of the 4e"ised !enal Code, there must %e malice for one to %e criminall# lia%le for a felon# ,e was not moti"ated %# malice in marr#in$ the pri"ate complainant %ecause he did so onl# out of his o"erwhelmin$ desire to ha"e a fruitful marria$e ,e posited that the trial court should ha"e ta(en into account Article 0.< of the

New Ci"il Code To support his "iew, the appellant cited the rulin$s of this Court in United States v. Pealosa)**+ and Nana$an! Jr. v. Court o Appeals.)*-+ The Office of the Solicitor General 8OSG9 a"erred that EduardoEs defense of $ood faith and reliance on the CourtEs rulin$ inUnited States v. Enri'ue*)*0+ were misplacedH what is applica%le is Article 2* of the Famil# Code, which amended Article 0.< of the Ci"il Code Citin$ the rulin$ of this Court in Eepublic v. Colasco!)*2+ the OSG further posited that as pro"ided in Article 2* of the Famil# Code, there is a need for a judicial declaration of presumpti"e death of the a%sent spouse to ena%le the present spouse to marr# E"en assumin$ that the first marria$e was "oid, the parties thereto should not %e permitted to jud$e for themsel"es the nullit# of the marria$eH the matter should %e su%mitted to the proper court for resolution ;oreo"er, the OSG maintained, the pri"ate complainantEs (nowled$e of the first marria$e would not afford an# relief since %i$am# is an offense a$ainst the State and not just a$ainst the pri"ate complainant ,owe"er, the OSG a$reed with the appellant that the penalt# imposed %# the trial court was erroneous and sou$ht the affirmance of the decision appealed from with modification On :une */, -<<2, the CA rendered jud$ment affirmin$ the decision of the 4TC with modification as to the penalt# of the accused It ruled that the prosecution was a%le to pro"e all the elements of %i$am# Contrar# to the contention of the appellant, Article 2* of the Famil# Code should appl# Cefore ;anuel could lawfull# marr# the pri"ate complainant, there should ha"e %een a judicial declaration of Ga^aEs presumpti"e death as the a%sent spouse The appellate court cited the rulin$s of this Court in Nercado v. Tan)*3+ and Domin(o v. Court o Appeals)*5+ to support its rulin$ The dispositi"e portion of the decision reads: B,E4EFO4E, in the li$ht of the fore$oin$, the Decision promul$ated on :ul# 0*, -<<- is here%# 'ODIFIED to reflect, as it here%# reflects, that accused' appellant is sentenced to an indeterminate penalt# of two 8-9 #ears, four 829 months and one 8*9 da# of prision correccional, as minimum, to ten 8*<9 #ears of prision mayor as ma&imum Said Decision is AFFIR'ED in all other respects SO O4DE4ED )*A+ Eduardo, now the petitioner, filed the instant petition for re"iew on certiorari, insistin$ that: I T,E CO?4T OF A!!EA=S CO;;ITTED 4E6E4SIC=E E44O4 OF =AB B,EN IT 4?=ED T,AT !ETITIONE4ES FI4ST BIFE CANNOT CE =EGA==G !4ES?;ED DEAD ?NDE4 A4TIC=E 0.< OF T,E CI6I= CODE AS T,E4E BAS NO :?DICIA= DEC=A4ATION OF !4ES?;!TI6E DEAT, AS !4O6IDED FO4 ?NDE4 A4TIC=E 2* OF T,E FA;I=G CODE II T,E CO?4T OF A!!EA=S CO;;ITTED 4E6E4SIC=E E44O4 OF =AB B,EN IT AFFI4;ED T,E ABA4D OF !,!-<<,<<< << AS ;O4A= DA;AGES AS IT ,AS NO CASIS IN FACT AND IN =AB )*/+ The petitioner maintains that the prosecution failed to pro"e the second element of the felon#, i.e., that the marria$e has not %een le$all# dissol"ed or, in case hisMher spouse is a%sent, the a%sent spouse could not #et %e presumed dead under the Ci"il Code ,e a"ers that when he married Gandalera in *..5, Ga^a had %een >a%sent@ for -* #ears since *.A3H

under Article 0.< of the Ci"il Code, she was presumed dead as a matter of law ,e points out that, under the first para$raph of Article 0.< of the Ci"il Code, one who has %een a%sent for se"en #ears, whether or not heMshe is still ali"e, shall %e presumed dead or all purposes e&cept for succession, while the second para$raph refers to the rule on le$al presumption of death with respect to succession The petitioner asserts that the presumpti"e death of the a%sent spouse arises %# operation of law upon the satisfaction of two re1uirements: the specified period and the present spouseEs reasona%le %elief that the a%sentee is dead ,e insists that he was a%le to pro"e that he had not heard from his first wife since *.A3 and that he had no (nowled$e of her wherea%outs or whether she was still ali"eH hence, under Article 2* of the Famil# Code, the presumpti"e death of Ga^a had arisen %# operation of law, as the two re1uirements of Article 0.< of the Ci"il Code are present The petitioner concludes that he should thus %e ac1uitted of the crime of %i$am# The petitioner insists that e&cept for the period of a%sences pro"ided for in Article 0.< of the Ci"il Code, the rule therein on le$al presumptions remains "alid and effecti"e Nowhere under Article 0.< of the Ci"il Code does it re1uire that there must first %e a judicial declaration of death %efore the rule on presumpti"e death would appl# ,e further asserts that contrar# to the rulin$s of the trial and appellate courts, the re1uirement of a judicial declaration of presumpti"e death under Article 2* of the Famil# Code is onl# a re1uirement for the "alidit# of the su%se1uent or second marria$e The petitioner, li(ewise, a"ers that the trial court and the CA erred in awardin$ moral dama$es in fa"or of the pri"ate complainant The pri"ate complainant was a >G4O@ %efore he married her, and e"en (new that he was alread# married ,e $enuinel# lo"ed and too( care of her and $a"e her financial support ,e also pointed out that she had an illicit relationship with a lo"er whom she %rou$ht to their house In its comment on the petition, the OSG maintains that the decision of the CA affirmin$ the petitionerEs con"iction is in accord with the law, jurisprudence and the e"idence on record To %olster its claim, the OSG cited the rulin$ of this Court in Eepublic v. Colasco. )*.+ The petition is denied for lac( of merit Article 02. of the 4e"ised !enal Code, which defines and penali7es %i$am#, reads: Art 02. +i(amy. Q The penalt# of prision mayor shall %e imposed upon an# person who shall contract a second or su%se1uent marria$e %efore the former marria$e has %een le$all# dissol"ed, or %efore the a%sent spouse has %een declared presumpti"el# dead %# means of a jud$ment rendered in the proper proceedin$s The pro"ision was ta(en from Article 2/5 of the Spanish !enal Code, to wit: El 'ue contra&ere Se(undo o ulterior matrimonio sin $allarse le(Atimamente disuelto el anterior! ser0 casti(ado con la pena de prision mayor. &&& The reason wh# %i$am# is considered a felon# is to preser"e and ensure the juridical

tie of marria$e esta%lished %# law )-<+The phrase >or %efore the a%sent spouse had %een declared presumpti"el# dead %# means of a jud$ment rendered in the proper proceedin$s@ was incorporated in the 4e"ised !enal Code %ecause the drafters of the law were of the impression that >in consonance with the ci"il law which pro"ides for the presumption of death after an a%sence of a num%er of #ears, /,e Hu"0+0!: "e+:!&!/0on o= .&e7u8e" "e!/, :0Ae !nnu:8en/ o= 8!&&0!;e should %e a justification for %i$am# @)-*+ For the accused to %e held $uilt# of %i$am#, the prosecution is %urdened to pro"e the felon#: 8a9 heMshe has %een le$all# marriedH and 8%9 heMshe contracts a su%se1uent marria$e without the former marria$e ha"in$ %een lawfull# dissol"ed The felon# is consummated on the cele%ration of the second marria$e or su%se1uent marria$e )--+ It is essential in the prosecution for %i$am# that the alle$ed second marria$e, ha"in$ all the essential re1uirements, would %e "alid were it not for the su%sistence of the first marria$e )-0+ 6iada a"ers that a third element of the crime is that the second marria$e must %e entered into with fraudulent intentFintencion raudulente9 which is an essential element of a felon# %# dolo.)-2+ On the other hand, Cuello Calon is of the "iew that there are onl# two elements of %i$am#: 8*9 the e&istence of a marria$e that has not %een lawfull# dissol"edH and 8-9 the cele%ration of a second marria$e It does not matter whether the first marria$e is "oid or "oida%le %ecause such marria$es ha"e juridical effects until lawfull# dissol"ed %# a court of competent jurisdiction )-3+ As the Court ruled in Domin(o v. Court o Appeals)-5+ andNercado v. Tan,)-A+ under the Famil# Code of the !hilippines, the judicial declaration of nullit# of a pre"ious marria$e is a defense In his commentar# on the 4e"ised !enal Code, Al%ert is of the same "iew as 6iada and declared that there are three 809 elements of %i$am#: 8*9 an undissol"ed marria$eH 8-9 a new marria$eH and 809 fraudulent intention constitutin$ the felon# of the act )-/+ ,e e&plained that: S This last element is not stated in Article 02., %ecause it is undou%tedl# incorporated in the principle antedatin$ all codes, and, constitutin$ one of the landmar(s of our !enal Code, that, where there is no willfulness there is no crime There is no willfulness if the su%ject %elie"es that the former marria$e has %een dissol"edH and this must %e supported %# "er# stron$ e"idence, and if this %e produced, the act shall %e deemed not to constitute a crime Thus, a person who contracts a second marria$e in the reasona%le and well'founded %elief that his first wife is dead, %ecause of the man# #ears that ha"e elapsed since he has had an# news of her wherea%outs, in spite of his endea"ors to find her, cannot %e deemed $uilt# of the crime of %i$am#, %ecause there is no fraudulent intent which is one of the essential elements of the crime )-.+ As $leaned from the Information in the 4TC, the petitioner is char$ed with %i$am#, a felon# %# dolo 8deceit9 Article 0, para$raph - of the 4e"ised !enal Code pro"ides that there is deceit when the act is performed with deli%erate intent Indeed, a felon# cannot e&ist without intent Since a felon# %# dolo is classified as an intentional felon#, it is deemed "oluntar# )0<+ Althou$h the words >with malice@ do not appear in Article 0 of the 4e"ised !enal Code, such phrase is included in the word >"oluntar# @)0*+ ;alice is a mental state or condition promptin$ the doin$ of an o"ert act without le$al e&cuse or justification from which another suffers injur# )0-+ Bhen the act or omission defined %#

law as a felon# is pro"ed to ha"e %een done or committed %# the accused, the law presumes it to ha"e %een intentional )00+ Indeed, it is a le$al presumption of law that e"er# man intends the natural or pro%a%le conse1uence of his "oluntar# act in the a%sence of proof to the contrar#, and such presumption must pre"ail unless a reasona%le dou%t e&ists from a consideration of the whole e"idence )02+ For one to %e criminall# lia%le for a felon# %# dolo! there must %e a confluence of %oth an e"il act and an e"il intent Actus non acit reum! nisi mens sit rea.)03+ In the present case, the prosecution pro"ed that the petitioner was married to Ga^a in *.A3, and such marria$e was not judiciall# declared a nullit#H hence, the marria$e is presumed to su%sist )05+ The prosecution also pro"ed that the petitioner married the pri"ate complainant in *..5, lon$ after the effecti"it# of the Famil# Code The petitioner is presumed to ha"e acted with malice or e"il intent when he married the pri"ate complainant As a $eneral rule, mista(e of fact or $ood faith of the accused is a "alid defense in a prosecution for a felon# %# doloH such defense ne$ates malice or criminal intent ,owe"er, i$norance of the law is not an e&cuse %ecause e"er#one is presumed to (now the law I(norantia le(is neminem e)cusat. It was the %urden of the petitioner to pro"e his defense that when he married the pri"ate complainant in *..5, he was of the well'$rounded %elief that his first wife was alread# dead, as he had not heard from her for more than -< #ears since *.A3 ,e should ha"e adduced in e"idence a decision of a competent court declarin$ the presumpti"e death of his first wife as re1uired %# Article 02. of the 4e"ised !enal Code, in relation to Article 2* of the Famil# Code Such judicial declaration also constitutes proof that the petitioner acted in $ood faith, and would ne$ate criminal intent on his part when he married the pri"ate complainant and, as a conse1uence, he could not %e held $uilt# of %i$am# in such case The petitioner, howe"er, failed to dischar$e his %urden The phrase >or %efore the a%sent spouse has %een declared presumpti"el# dead %# means of a jud$ment rendered on the proceedin$s@ in Article 02. of the 4e"ised !enal Code was not an a$$roupment of empt# or useless words The re1uirement for a jud$ment of the presumpti"e death of the a%sent spouse is for the %enefit of the spouse present, as protection from the pains and the conse1uences of a second marria$e, precisel# %ecause heMshe could %e char$ed and con"icted of %i$am# if the defense of $ood faith %ased on mere testimon# is found incredi%le The re1uirement of judicial declaration is also for the %enefit of the State ?nder Article II, Section *- of the Constitution, the >State shall protect and stren$then the famil# as a %asic autonomous social institution @ ;arria$e is a social institution of the hi$hest importance !u%lic polic#, $ood morals and the interest of societ# re1uire that the marital relation should %e surrounded with e"er# safe$uard and its se"erance onl# in the manner prescri%ed and the causes specified %# law )0A+ The laws re$ulatin$ ci"il marria$es are necessar# to ser"e the interest, safet#, $ood order, comfort or $eneral welfare of the communit# and the parties can wai"e nothin$ essential to the "alidit# of the proceedin$s A ci"il marria$e anchors an ordered societ# %# encoura$in$ sta%le relationships o"er transient onesH it enhances the welfare of the communit# In a real sense, there are three parties to e"er# ci"il marria$eH two willin$ spouses and an appro"in$ State On marria$e, the parties assume new relations to each other and the State

touchin$ nearl# on e"er# aspect of life and death The conse1uences of an in"alid marria$e to the parties, to innocent parties and to societ#, are so serious that the law ma# well ta(e means calculated to ensure the procurement of the most positi"e e"idence of death of the first spouse or of the presumpti"e death of the a%sent spouse)0/+ after the lapse of the period pro"ided for under the law One such means is the re1uirement of the declaration %# a competent court of the presumpti"e death of an a%sent spouse as proof that the present spouse contracts a su%se1uent marria$e on a well'$rounded %elief of the death of the first spouse Indeed, >men readil# %elie"e what the# wish to %e true,@ is a ma&im of the old jurists To sustain a second marria$e and to "acate a first %ecause one of the parties %elie"ed the other to %e dead would ma(e the e&istence of the marital relation determina%le, not %# certain e&trinsic facts, easil# capa%le of forensic ascertainment and proof, %ut %# the su%jecti"e condition of indi"iduals )0.+ Onl# with such proof can marria$e %e treated as so dissol"ed as to permit second marria$es )2<+ Thus, Article 02. of the 4e"ised !enal Code has made the dissolution of marria$e dependent not onl# upon the personal %elief of parties, %ut upon certain o%jecti"e facts easil# capa%le of accurate judicial co$ni7ance,)2*+ namel#, a jud$ment of the presumpti"e death of the a%sent spouse The petitionerEs sole reliance on Article 0.< of the Ci"il Code as %asis for his ac1uittal for %i$am# is misplaced Articles 0.< and 0.* of the Ci"il Code pro"ide U Art 0.< After an a%sence of se"en #ears, it %ein$ un(nown whether or not, the a%sentee still li"es, he shall %e presumed dead for all purposes, e&cept for those of succession The a%sentee shall not %e presumed dead for the purpose of openin$ his succession till after an a%sence of ten #ears If he disappeared after the a$e of se"ent#'fi"e #ears, an a%sence of fi"e #ears shall %e sufficient in order that his succession ma# %e opened Art 0.* The followin$ shall %e presumed dead for all purposes, includin$ the di"ision of the estate amon$ the heirs: 8*9 A person on %oard a "essel lost durin$ a sea "o#a$e, or an aeroplane which is missin$, who has not %een heard of for four #ears since the loss of the "essel or aeroplaneH 8-9 A person in the armed forces who has ta(en part in war, and has %een missin$ for four #earsH 809 A person who has %een in dan$er of death under other circumstances and his e&istence has not %een (nown for four #ears The presumption of death of the spouse who had %een a%sent for se"en #ears, it %ein$ un(nown whether or not the a%sentee still li"es, is created %# law and arises without an# necessit# of judicial declaration )2-+ ,owe"er, Article 2* of the Famil# Code, which amended the fore$oin$ rules on presumpti"e death, reads: Art 2* A marria$e contracted %# an# person durin$ the su%sistence of a pre"ious marria$e shall %e null and "oid, unless %efore the cele%ration of the su%se1uent marria$e, the prior spouse had %een a%sent for our consecutive years and the spouse present had a well'founded %elief that the a%sent spouse

was alread# dead In case of disappearance where there is dan$er of death under the circumstances set forth in the pro"isions of Article 0.* of the Ci"il Code, an absence o only tKo years s$all be su icient For t$e purpose o contractin( t$e subse'uent marria(e under t$e precedin( para(rap$! t$e spouse present must institute a summary proceedin( as provided in t$is Court or t$e declaration o presumptive deat$ o t$e absentee! Kit$out pre&udice to t$e e ect o reappearance o t$e absent spouse )20+ Bith the effecti"it# of the Famil# Code,)22+ the period of se"en #ears under the first para$raph of Article 0.< of the Ci"il Code was reduced to four consecuti"e #ears Thus, %efore the spouse present ma# contract a su%se1uent marria$e, he or she must institute summar# proceedin$s for the declaration of the presumpti"e death of the a%sentee spouse, )23+ without prejudice to the effect of the reappearance of the a%sentee spouse As e&plained %# this Court in Armas v. Calisterio:)25+ In contrast, under the *.// Famil# Code, in order that a su%se1uent %i$amous marria$e ma# e&ceptionall# %e considered "alid, the followin$ conditions must concur, vi*.: 8a9 The prior spouse of the contractin$ part# must ha"e %een a%sent for four consecuti"e #ears, or two #ears where there is dan$er of death under the circumstances stated in Article 0.* of the Ci"il Code at the time of disappearanceH 8%9 the spouse present has a well'founded %elief that the a%sent spouse is alread# deadH and 8c9 there is, unli(e the old rule, a judicial declaration of presumpti"e death of the a%sentee for which purpose the spouse present can institute a summar# proceedin$ in court to as( for that declaration The last condition is consistent and in consonance with the re1uirement of judicial inter"ention in su%se1uent marria$es as so pro"ided in Article 2*, in relation to Article 2<, of the Famil# Code The Court rejects petitionerEs contention that the re1uirement of institutin$ a petition for declaration of presumpti"e death under Article 2* of the Famil# Code is desi$ned merel# to ena%le the spouse present to contract a "alid second marria$e and not for the ac1uittal of one char$ed with %i$am# Such pro"ision was desi$ned to harmoni7e ci"il law and Article 02. of the 4e"ised !enal Code, and put to rest the confusion spawned %# the rulin$s of this Court and comments of eminent authorities on Criminal =aw As earl# as ;arch 5, *.0A, this Court ruled in Jones v. @orti(uela)2A+ that, for purposes of the marria$e law, it is not necessar# to ha"e the former spouse judiciall# declared an a%sentee %efore the spouse present ma# contract a su%se1uent marria$e It held that the declaration of a%sence made in accordance with the pro"isions of the Ci"il Code has for its sole purpose the ta(in$ of the necessar# precautions for the administration of the estate of the a%sentee For the cele%ration of ci"il marria$e, howe"er, the law onl# re1uires that the former spouse had %een a%sent for se"en consecuti"e #ears at the time of the second marria$e, that the spouse present does not (now his or her former spouse to %e li"in$, that such former spouse is $enerall# reputed to %e dead and the spouse present so %elie"es at the time of the cele%ration of the marria$e )2/+ In In Ee S*atraK,)2.+ the Court declared that a judicial declaration that a person is presumpti"el# dead, %ecause he or she had %een unheard from in se"en #ears, %ein$ a presumption &uris tantum onl#, su%ject to contrar# proof, cannot reach the sta$e of finalit# or %ecome finalH and that proof of actual death of the person presumed dead %ein$ unheard from in se"en #ears, would ha"e to %e made in another

proceedin$ to ha"e such particular fact finall# determined The Court ruled that if a judicial decree declarin$ a person presumpti"el# dead %ecause he or she had not %een heard from in se"en #ears cannot %ecome final and e&ecutor# e"en after the lapse of the re$lementar# period within which an appeal ma# %e ta(en, for such presumption is still disputa%le and remains su%ject to contrar# proof, then a petition for such a declaration is useless, unnecessar#, superfluous and of no %enefit to the petitioner The Court stated that it should not waste its "alua%le time and %e made to perform a superfluous and meanin$less act )3<+ The Court also too( note that a petition for a declaration of the presumpti"e death of an a%sent spouse ma# e"en %e made in collusion with the other spouse In /uLban v. Eepublic o t$e P$ilippines,)3*+ the Court declared that the words >proper proceedin$s@ in Article 02. of the 4e"ised !enal Code can onl# refer to those authori7ed %# law such as Articles 0.< and 0.* of the Ci"il Code which refer to the administration or settlement of the estate of a deceased person In Hue v. Eepublic o t$e P$ilippines,)3-+ the Court rejected the contention of the petitioner therein that, under Article 0.< of the Ci"il Code, the courts are authori7ed to declare the presumpti"e death of a person after an a%sence of se"en #ears The Court reiterated its rulin$s in S*atraK! /uLban and Jones Former Chief :ustice 4amon C A1uino was of the "iew that >the pro"ision of Article 02. or >%efore the a%sent spouse has %een declared presumpti"el# dead %# means of a jud$ment reached in the proper proceedin$s@ is erroneous and should %e considered as not written ,e opined that such pro"ision presupposes that, if the prior marria$e has not %een le$all# dissol"ed and the a%sent first spouse has not %een declared presumpti"el# dead in a proper court proceedin$s, the su%se1uent marria$e is %i$amous ,e maintains that the supposition is not true )30+ A second marria$e is %i$amous onl# when the circumstances in para$raphs * and - of Article /0 of the Ci"il Code are not present )32+ Former Senator Am%rosio !adilla was, li(ewise, of the "iew that Article 02. seems to re1uire judicial decree of dissolution or judicial declaration of a%sence %ut e"en with such decree, a second marria$e in $ood faith will not constitute %i$am# ,e posits that a second marria$e, if not ille$al, e"en if it %e annulla%le, should not $i"e rise to %i$am# )33+ Former :ustice =uis C 4e#es, on the other hand, was of the "iew that in the case of an a%sent spouse who could not #et %e presumed dead accordin$ to the Ci"il Code, the spouse present cannot %e char$ed and con"icted of %i$am# in case heMshe contracts a second marria$e )35+ The Committee tas(ed to prepare the Famil# Code proposed the amendments of Articles 0.< and 0.* of the Ci"il Code to conform to Article 02. of the 4e"ised !enal Code, in that, in a case where a spouse is a%sent for the re1uisite period, the present spouse ma# contract a su%se1uent marria$e onl# after securin$ a jud$ment declarin$ the presumpti"e death of the a%sent spouse to a"oid %ein$ char$ed and con"icted of %i$am#H the present spouse will ha"e to adduce e"idence that he had a well'founded %elief that the a%sent spouse was alread# dead )3A+ Such jud$ment is proof of the $ood faith of the present spouse who contracted a su%se1uent marria$eH thus, e"en if the present spouse is later char$ed with %i$am# if the a%sentee spouse reappears, he cannot %e con"icted of the crime As e&plained %# former :ustice Alicia Sempio'Di#: S Such rulin$s, howe"er, conflict with Art 02. of the 4e"ised !enal Code pro"idin$ that the present spouse must first as( for a declaration of presumpti"e death of the a%sent spouse in order not to %e $uilt# of %i$am# in case he or she marries a$ain The a%o"e Article of the Famil# Code now clearl# pro"ides that for the purpose of

the present spouse contractin$ a second marria$e, he or she must file a summar# proceedin$ as pro"ided in the Code for the declaration of the presumpti"e death of the a%sentee, without prejudice to the latterEs reappearance This pro"ision is intended to protect the present spouse from a criminal prosecution for %i$am# under Art 02. of the 4e"ised !enal Code %ecause with the judicial declaration that the missin$ spouses presumpti"el# dead, the $ood faith of the present spouse in contractin$ a second marria$e is alread# esta%lished )3/+ Of the same "iew is former Dean Ernesto = !ineda 8now ?ndersecretar# of :ustice9 who wrote that thin$s are now clarified ,e sa#s judicial declaration of presumpti"e death is now authori7ed for purposes of remarria$e The present spouse must institute a summar# proceedin$ for declaration of presumpti"e death of the a%sentee, where the ordinar# rules of procedure in trial will not %e followed Affida"its will suffice, with possi%le clarificator# e&aminations of affiants if the :ud$e finds it necessar# for a full $rasp of the facts The jud$ment declarin$ an a%sentee as presumpti"el# dead is without prejudice to the effect of reappearance of the said a%sentee Dean !ineda further states that %efore, the wei$ht of authorit# is that the clause >%efore the a%sent spouse has %een declared presumpti"el# dead & & &@ should %e disre$arded %ecause of Article /0, para$raph 0 of the Ci"il Code Bith the new law, there is a need to institute a summar# proceedin$ for the declaration of the presumpti"e death of the a%sentee, otherwise, there is %i$am# )3.+ Accordin$ to 4etired Supreme Court :ustice Floren7 D 4e$alado, an eminent authorit# on Criminal =aw, in some cases where an a%sentee spouse is %elie"ed to %e dead, there must %e a judicial declaration of presumpti"e death, which could then %e made onl# in the proceedin$s for the settlement of his estate )5<+ Cefore such declaration, it was held that the remarria$e of the other spouse is %i$amous e"en if done in $ood faith )5*+ :ustice 4e$alado opined that there were contrar# "iews %ecause of the rulin$ in Jones and the pro"isions of Article /08-9 of the Ci"il Code, which, howe"er, appears to ha"e %een set to rest %# Article 2* of the Famil# Code, >which re1uires a summar# hearin$ for the declaration of presumpti"e death of the a%sent spouse %efore the other spouse can remarr# @ ?nder Article -0/ of the Famil# Code, a petition for a declaration of the presumpti"e death of an a%sent spouse under Article 2* of the Famil# Code ma# %e filed under Articles -0. to -2A of the same Code )5-+ On the second issue, the petitioner, li(ewise, faults the trial court and the CA for awardin$ moral dama$es in fa"or of the pri"ate complainant The petitioner maintains that moral dama$es ma# %e awarded onl# in an# of the cases pro"ided in Article --*. of the Ci"il Code, and %i$am# is not one of them The petitioner asserts that the appellate court failed to appl# its rulin$ in People v. +ondoc,)50+ where an award of moral dama$es for %i$am# was disallowed In an# case, the petitioner maintains, the pri"ate complainant failed to adduce e"idence to pro"e moral dama$es The appellate court awarded moral dama$es to the pri"ate complainant on its findin$ that she adduced e"idence to pro"e the same The appellate court ruled that while %i$am# is not included in those cases enumerated in Article --*. of the Ci"il Code, it is not proscri%ed from awardin$ moral dama$es a$ainst the petitioner The appellate court ruled that it is not %ound %# the followin$ rulin$ in People v. +ondoc:

Pero si en dic$os asuntos se ad&udicaron daos! ello se debi1 indedublamente por'ue el articulo 22.< del C1di(o Civil de Filipinas autori*a la ad&udicaci1n de daos morales en los delitos de estupro! rapto! violaci1n! adulterio o concubinato! y otros actos lascivos! sin incluir en esta enumeraci1n el delito de bi(amia. Co e)iste! por consi(uiente! base le(al para ad&udicar a'uA los daos de P=!777.77 arriba mencionados.)52+ The OSG posits that the findin$s and rulin$ of the CA are %ased on the e"idence and the law The OSG, li(ewise, a"ers that the CA was not %ound %# its rulin$ in People v. Eodeo The Court rules a$ainst the petitioner ;oral dama$es include ph#sical sufferin$, mental an$uish, fri$ht, serious an&iet#, %esmirched reputation, wounded feelin$s, moral shoc(, social humiliation, and similar injur# Thou$h incapa%le of pecuniar# computation, moral dama$es ma# %e reco"ered if the# are the pro&imate result of the defendantEs wron$ful act or omission )53+ An award for moral dama$es re1uires the confluence of the followin$ conditions: irst, there must %e an injur#, whether ph#sical, mental or ps#cholo$ical, clearl# sustained %# the claimantH second, there must %e culpa%le act or omission factuall# esta%lishedH t$ird, the wron$ful act or omission of the defendant is the pro&imate cause of the injur# sustained %# the claimantH and ourt$, the award of dama$es is predicated on an# of the cases stated in Article --*. or Article ---< of the Ci"il Code )55+ ;oral dama$es ma# %e awarded in fa"or of the offended part# onl# in criminal cases enumerated in Article --*., para$raphs *, 0, 2, 3 and A of the Ci"il Code and analo$ous cases, vi*.: Art --*. ;oral dama$es ma# %e reco"ered in the followin$ and analo$ous cases 8*9 A criminal offense resultin$ in ph#sical injuriesH 8-9 Duasi'delicts causin$ ph#sical injuriesH 809 Seduction, a%duction, rape, or other lasci"ious actsH 829 Adulter# or concu%ina$eH 839 Ille$al or ar%itrar# detention or arrestH 859 Ille$al searchH 8A9 =i%el, slander or an# other form of defamationH 8/9 ;alicious prosecutionH 8.9 Acts mentioned in article 0<.H 8*<9 Acts and actions referred to in articles -*, -5, -A, -/, -., 0<, 0-, 02 and 03 The parents of the female seduced, a%ducted, raped, or a%used, referred to in No 0 of this article, ma# also reco"er moral dama$es The spouse, descendants, ascendants, and %rothers and sisters ma# %rin$ the action mentioned in No . of this article in the order named Thus, the law does not intend that moral dama$es should %e awarded in all cases where the a$$rie"ed part# has suffered mental an$uish, fri$ht, moral an&ieties, %esmirched

reputation, wounded feelin$s, moral shoc(, social humiliation and similar injur# arisin$ out of an act or omission of another, otherwise, there would not ha"e %een an# reason for the inclusion of specific acts in Article --*.)5A+ and analo$ous cases 8which refer to those cases %earin$ analo$# or resem%lance, corresponds to some others or resem%lin$, in other respects, as in form, proportion, relation, etc 9)5/+ Indeed, %i$am# is not one of those specificall# mentioned in Article --*. of the Ci"il Code in which the offender ma# %e ordered to pa# moral dama$es to the pri"ate complainantMoffended part# Ne"ertheless, the petitioner is lia%le to the pri"ate complainant for moral dama$es under Article --*. in relation to Articles *., -< and -* of the Ci"il Code Accordin$ to Article *., >e"er# person must, in the e&ercise of his ri$hts and in the performance of his act with justice, $i"e e"er#one his due, and o%ser"e honest# and $ood faith @ This pro"ision contains what is commonl# referred to as the principle of a%use of ri$hts, and sets certain standards which must %e o%ser"ed not onl# in the e&ercise of oneEs ri$hts %ut also in the performance of oneEs duties The standards are the followin$: act with justiceH $i"e e"er#one his dueH and o%ser"e honest# and $ood faith The elements for a%use of ri$hts are: 8a9 there is a le$al ri$ht or dut#H 8%9 e&ercised in %ad faithH and 8c9 for the sole intent of prejudicin$ or injurin$ another )5.+ Article -< spea(s of the $eneral sanctions of all other pro"isions of law which do not especiall# pro"ide for its own sanction Bhen a ri$ht is e&ercised in a manner which does not conform to the standards set forth in the said pro"ision and results in dama$e to another, a le$al wron$ is there%# committed for which the wron$doer must %e responsi%le )A<+ If the pro"ision does not pro"ide a remed# for its "iolation, an action for dama$es under either Article -< or Article -* of the Ci"il Code would %e proper Article -< pro"ides that >e"er# person who, contrar# to law, willfull# or ne$li$entl# causes dama$e to another shall indemnif# the latter for the same @ On the other hand, Article -* pro"ides that >an# person who willfull# causes loss or injur# to another in a manner that is contrar# to morals, $ood customs or pu%lic polic# shall compensate the latter for dama$es @ The latter pro"ision is adopted to remed# >the countless $aps in the statutes which lea"e so man# "ictims of moral wron$s helpless, e"en thou$h the# ha"e actuall# suffered material and moral injur# should "ouchsafe ade1uate le$al remed# for that untold num%er of moral wron$s which it is impossi%le for human foresi$ht to pro"e for specificall# in the statutes @ Bhether or not the principle of a%use of ri$hts has %een "iolated resultin$ in dama$es under Article -< or Article -* of the Ci"il Code or other applica%le pro"isions of law depends upon the circumstances of each case )A*+ In the present case, the petitioner courted the pri"ate complainant and proposed to marr# her ,e assured her that he was sin$le ,e e"en %rou$ht his parents to the house of the pri"ate complainant where he and his parents made the same assurance U that he was sin$le Thus, the pri"ate complainant a$reed to marr# the petitioner, who e"en stated in the certificate of marria$e that he was sin$le She li"ed with the petitioner and dutifull# performed her duties as his wife, %elie"in$ all the while that he was her lawful hus%and For two #ears or so until the petitioner heartlessl# a%andoned her, the pri"ate complainant had no in(lin$ that he was alread# married to another %efore t$ey were married Thus, the pri"ate complainant was an innocent "ictim of the petitionerEs chicaner# and heartless deception, the fraud consistin$ not of a sin$le act alone, %ut a continuous series of acts Da# %# da#, he maintained the appearance of %ein$ a lawful hus%and to the pri"ate complainant, who

chan$ed her status from a sin$le woman to a married woman, lost the consortium, attri%utes and support of a sin$le man she could ha"e married lawfull# and endured mental pain and humiliation, %ein$ %ound to a man who it turned out was not her lawful hus%and )A-+ The Court rules that the petitionerEs collecti"e acts of fraud and deceit %efore, durin$ and after his marria$e with the pri"ate complainant were willful, deli%erate and with malice and caused injur# to the latter That she did not sustain an# ph#sical injuries is not a %ar to an award for moral dama$es Indeed, in Norris v. Nacnab,)A0+ the New :erse# Supreme Court ruled: &&& The defendant cites authorities which indicate that, a%sent ph#sical injuries, dama$es for shame, humiliation, and mental an$uish are not reco"era%le where the actor is simpl# ne$li$ent See !rosser, supra, at p */<H - ,arper b :ames, Torts, *<0* 8*.359 Cut the authorities all reco$ni7e that where the wron$ is willful rather than ne$li$ent, reco"er# ma# %e had for the ordinar#, natural, and pro&imate conse1uences thou$h the# consist of shame, humiliation, and mental an$uish See Spie$el " E"er$reen Cemeter# Co , **A N:= .<, .2, */5 A 3/3 8Sup Ct *.059H Qu7ma " ;illiner# Bor(ers, etc , =ocal -2, -A N : Super, 3A., 3.*, .. A -d /00 8App Di" *.309H !rosser, supra, at p 0/ ,ere the defendantEs conduct was not merel# ne$li$ent, %ut was willfull# and maliciousl# wron$ful It was %ound to result in shame, humiliation, and mental an$uish for the plaintiff, and when such result did ensue the plaintiff %ecame entitled not onl# to compensator# %ut also to puniti"e dama$es See Spie$el " E"er$reen Cemeter# Co , supraH Qu7ma " ;illiner# Bor(ers, etc , =ocal -2, supra CF Note, >E&emplar# Dama$es in the =aw of Torts,@ A< ,ar" = 4e" 3*A 8*.3A9 The plaintiff testified that %ecause of the defendantEs %i$amous marria$e to her and the attendant pu%licit# she not onl# was em%arrassed and >ashamed to $o out@ %ut >couldnEt sleep@ %ut >couldnEt eat,@ had terrific headaches@ and >lost 1uite a lot of wei$ht @ No just %asis appears for judicial interference with the jur#Es reasona%le allowance of c*,<<< puniti"e dama$es on the first count See Ca%a(o" " Thatcher, 0A N : Super -2., **A A -d -./ 8App Di" )A2+ *.339 The Court thus declares that the petitionerEs acts are a$ainst pu%lic polic# as the# undermine and su%"ert the famil# as a social institution, $ood morals and the interest and $eneral welfare of societ# Cecause the pri"ate complainant was an innocent "ictim of the petitionerEs perfid#, she is not %arred from claimin$ moral dama$es Cesides, e"en considerations of pu%lic polic# would not pre"ent her from reco"er# As held in JeLs$eKit* v. HrosKald:)A3+ Bhere a person is induced %# the fraudulent representation of another to do an act which, in conse1uence of such misrepresentation, he %elie"es to %e neither ille$al nor immoral, %ut which is in fact a criminal offense, he has a ri$ht of action a$ainst the person so inducin$ him for dama$es sustained %# him in conse1uence of his ha"in$ done such act Currows " 4hodes, )*/..+ * D C /*5 In Cooper " Cooper, *2A ;ass 0A<, *A N E /.-, . Am St 4ep A-*, the court said that a false representation %# the defendant that he was di"orced from his former wife, where%# the plaintiff was induced to marr# him, $a"e her a remed# in tort for deceit It seems to ha"e %een assumed that the fact that she had unintentionall# "iolated the law or innocentl# committed a crime %# coha%itin$ with him would %e no %ar to the action, %ut rather that it mi$ht %e a

$round for enhancin$ her dama$es The injur# to the plaintiff was said to %e in her %ein$ led %# the promise to $i"e the fellowship and assistance of a wife to one who was not her hus%and and to assume and act in a relation and condition that pro"ed to %e false and i$nominious Dama$es for such an injur# were held to %e reco"era%le in Sherman " 4awson, *<- ;ass 0.3 and Qelle# " 4ile#, *<5 ;ass 00., 020, / Am 4ep 005 Furthermore, in the case at %ar the plaintiff does not %ase her cause of action upon an# trans$ression of the law %# herself %ut upon the defendantEs misrepresentation The criminal relations which followed, innocentl# on her part, were %ut one of the incidental results of the defendantEs fraud for which dama$es ma# %e assessed )A+ Actions for deceit for fraudulentl# inducin$ a woman to enter into the marria$e relation ha"e %een maintained in other jurisdictions Sears " Be$ner, *3< ;ich 0//, **2 N B --2, *A = 4 A 8N S 9 /*.H =arson " ;c;illan, .. Bash 5-5, *A< ! 0-2H Clossom " Carrett, 0A N G 202, .A Am Dec A2AH ;orril " !almer, 5/ 6t *, 00 A /-., 00 = 4 A 2** Considerations of pu%lic polic# would not pre"ent reco"er# where the circumstances are such that the plaintiff was conscious of no moral turpitude, that her ille$al action was induced solel# %# the defendantEs misrepresentation, and that she does not %ase her cause of action upon an# trans$ression of the law %# herself Such considerations distin$uish this case from cases in which the court has refused to lend its aid to the enforcement of a contract ille$al on its face or to one who has consciousl# and "oluntaril# %ecome a part# to an ille$al act upon which the cause of action is founded S7adiwic7 " Cantor, -3A ;ass 3*/, 3-<, *32 N E -3*, 2. A = 4 .3/ )A5+ Considerin$ the attendant circumstances of the case, the Court finds the award of !-<<,<<< << for moral dama$es to %e just and reasona%le IN LIG T OF ALL T E FOREGOING, the petition is DENIED. The assailed decision of the Court of Appeals isAFFIR'ED Costs a$ainst the petitioner SO ORDERED G.R. No. 172%00 Se./e86e& 21, 2007 LILI3ET ARI# ETA VS. PEOPLE OF T EP ILIPPINES DECISION C,ICO'NAXA4IO, J : Assailed %efore ?s is the Decision)*+ of the Court of Appeals in CA'G 4 C4 No -332< which affirmed with modifications the Decision)-+ of the 4e$ional Trial Court 84TC9 of ;anila, Cranch -., in Criminal Case No .5'*3-./2, con"ictin$ petitioner =ili%eth Aricheta of the crime of Estafa In an Information filed on A Octo%er *..5, petitioner was char$ed with Estafa alle$edl# committed as follows: That sometime in April *..2, in the Cit# of ;anila, !hilippines, the said accused %ein$ then the owner of a parcel of land located at Co Ca$um%on$, No"aliches, Qaloo(an Cit# containin$ an area of

fort#'ei$ht 82/9 s1 meters more or less, with impro"ements thereon which she ac1uired from the National ,ousin$ Authorit# 8N,A9 %# "irtue of a Deed of Sale with ;ort$a$e, did then and there willfull#, unlawfull# and feloniousl# defraud ;A4GA4ITA 6ASD?EX, in the followin$ manner, to wit: the said accused well (nowin$ that she had alread# sold the said lot to a third part#, willfull#, unlawfull# and feloniousl# sold the same lot to ;A4GA4ITA 6ASD?EX as e"idenced %# a Deed of Sale with assumption of ;ort$a$e e&ecuted %etween her and ;A4GA4ITA 6ASD?EX on -A t h April, *..2 %efore Notar# !u%lic Nonilo A Duitan$on and recorded in the latterEs Notarial 4e$ister as Doc No -0/, !a$e 2., Coo( O6, Series of *..2, in consideration of which the said ;A4GA4ITA 6ASD?EX paid accused ! 3<,<<< << and to assume the sum of ! *.*,<A3 << with the N,A, without the (nowled$e and consent of ;A4GA4ITA 6ASD?EX, which amount once in her possession, with intent to defraud, misapplied, misappropriated and con"erted to her own personal use and %enefit, to the dama$e and prejudice of ;A4GA4ITA 6ASD?EXin the amount of ! 3<,<<< <<, !hilippine currenc# )0+ Bhen arrai$ned on *0 :anuar# *..A, petitioner, assisted %# counsel de o icio , pleaded not $uilt# to the crime char$ed )2+ On */ Fe%ruar# *..A, the pre'trial conference was terminated )3+ The prosecution presented pri"ate complainant ;ar$arita Se"illa 6as1ue7 and Norita A de Gu7man !ri"ate complainant testified that petitioner was a famil# friend whom she had (nown for more than ten #ears She used to %u# "iands from petitionerEs mother, who was the latterEs sister'in'lawEs officemate at the National ,ousin$ Authorit# 8N,A9 !etitioner a$reed to sell to pri"ate complainant her ri$hts o"er a house and lot descri%ed as =ot 3, Cl( -, located at Caran$a# Ca$um%on$, No"aliches, Caloocan Cit# !ri"ate complainant a$reed to pa# petitioner ! 3<,<<< << and to assume pa#ment of the monthl# amorti7ation to the N,A for twent#'fi"e 8-39 #ears The former was a%le to see the propert# twice '' first, in April *..2 %efore she a$reed to %u# the sameH and second, in ;a# *..2 The propert# was without water and electricit#, not #et finished, and still unoccupied The $round floor had no partition, while the second floor had no room and ceilin$ On -A April *..2, pri"ate complainant and petitioner entered into a Deed of Sale with Assumption of ;ort$a$e )5+ It contained a pro"ision statin$ that >the 6endor is the a%solute owner of the said propert# and here%# warrants the 6endee from an# lawful claim of whomsoe"er o"er the same @ The pa#ment of ! 3<,<<< << to petitioner was made %# pri"ate complainant in the latterEs office located at 0-. NDC Compound, !ure7a St , Sta ;esa, ;anila After the e&ecution of the document and pa#ment, pri"ate complainant tried to occup# the house and lot, %ut was told %# petitioner that she could not occup# the same #et, %ecause she still had no $ate pass or ID issued %# the N,A !etitioner told

her she would %e a%le to secure the $ate pass within a month or in ;a# *..2 In ;a# *..2, pri"ate complainant as(ed petitioner a%out the $ate pass, %ut was told that its issuance was %ein$ dela#ed Almost e"er#da#, pri"ate complainant called petitioner, %ut she was told the $ate pass was not #et a"aila%le She e"en went to the house of petitioner who told her that a case %etween the N,A and the de"eloper was the cause of the dela# In Octo%er *..3, pri"ate complainant went to the N,A and was informed %# a certain Am# Cru7 that the $ate pass had alread# %een o%tained %# petitioner Conse1uentl#, she went to Caran$a# Ca$um%on$, Caloocan Cit#, where she found out that someone was alread# occup#in$ the house and lot She confronted petitioner on the matter, and the latter admitted that she 8petitioner9 sold it to another person !etitioner also told her that the person who %ou$ht it leased the same to another person ?nder the circumstances, pri"ate complainant orall# as(ed petitioner to return the ! 3<,<<< << she paid her Thereafter, pri"ate complainant sent petitioner a demand letter, )A+ which the latter i$nored She then filed %oth ci"il and criminal cases a$ainst petitioner !ri"ate complainant e&plained that she did not su%mit the deed of sale to the N,A %ecause she trusted the petitioner ,owe"er, she said that when she tried to secure the $ate pass, she presented the deed of sale to a certain Am# Cru7 who told her that onl# petitioner was authori7ed to $et the $ate pass, and that she alread# did She added that petitioner did not tell her to su%mit the deed of sale to the N,A !ri"ate complainant further said that althou$h her sister'in'law, 4e&elita Cordero '' petitionerEs %est friend, Lumare and officemate at the N,A '' con"inced her to %u# the house and lot su%ject of this case, ;s Cordero was not an a$ent of petitioner ;rs Norita A de Gu7man, an officemate of pri"ate complainant at Qi%ono ;anufacturin$ Compan#, confirmed the transaction %etween pri"ate complainant and petitioner re$ardin$ the sale of the ri$ht of the petitioner o"er the house and lot in"ol"ed in this case She narrated that on -A April *..2, she was told %# pri"ate complainant that someone would %e arri"in$ in their office who was sellin$ her ri$hts o"er some propert# in Caloocan Cit#, and that pri"ate complainant would %e pa#in$ this person This person turned out to %e the petitioner ;rs De Gu7man testified she saw pri"ate complainant $i"e to petitioner the amount of ! 3<,<<< << in cash Thereafter, the contract was si$ned and she, to$ether with another officemate, was as(ed %# pri"ate complainant to act as witnesses Durin$ the transaction, she was two feet awa# from pri"ate complainant and petitioner After the si$nin$, she said the# appeared %efore Att# Nonilo A Duitan$on who notari7ed the Deed of Sale with Assumption of ;ort$a$e For the defense, petitioner too( the witness stand

!etitioner testified that the house and lot, su%ject matter of this case, was awarded to her throu$h a raffle at the N,A She has to pa# monthl# amorti7ations for twent#'fi"e 8-39 #ears to the N,A She said the propert# cannot %e sold durin$ this period !etitioner denied personall# (nowin$ the pri"ate complainant She insisted that she did not sell the house and lot to pri"ate complainant %ut merel# mort$a$ed it to her She narrated that she first mort$a$ed the propert# to ;ar$arita Galan$ who occupied the propert# with the condition that she would "acate the same when the mone# she loaned is returned !etitioner then mort$a$ed the same propert# to pri"ate complainant %ecause her Lumare was %orrowin$ mone# from her She, howe"er, did not inform pri"ate complainant of the first mort$a$e She si$ned a deed of sale %ut did not totall# read the document Bhat she understood was that if she cannot redeem the propert# within si& months, the propert# is deemed sold Since petitioner has not returned the amount she %orrowed from ;ar$arita Galan$, the latter is entitled to occup# the propert# which, accordin$ to petitioner, is still in her name !etitioner further e&plained that despite the prohi%ition to sell or mort$a$e the propert# within the -3'#ear period, she still mort$a$ed the propert# to ;ar$arita Galan$ within one #ear from the award of the propert# to her She said she has no proof that she mort$a$ed the propert# to ;s Galan$, %ut she si$ned a document as e"idence that she recei"ed mone# Althou$h she si$ned the deed of sale, she claimed she is still the owner per notice of the N,A On -3 Septem%er -<<<, the trial court promul$ated its Decision con"ictin$ accused'petitioner of Estafa The decretal portion of the decision reads: B,E4EFO4E, this Court finds the accused, =I=ICET, A4IC,ETA, G?I=TG %e#ond reasona%le dou%t of the crime of ESTAFA and she is here%# sentenced to suffer the indeterminate penalt# of SIO 859 GEA4S, ONE 8*9 DAG of prision ma#or minimum as minimum to EIG,T 8/9 GEA4S, EIG,T 8/9 ;ONT,S, ONE 8*9 DAG of the medium of prision ma#or medium as ma&imum with all the accessor# penalties pro"ided %# law, and to pa# the costs )/+ ,ia a notice of appeal, accused'petitioner appealed the decision to the Court of Appeals ).+ In its decision dated -5 April -<<5, the Court of Appeals affirmed with modifications the trial courtEs decision as follows: B,E4EFO4E, in "iew of the fore$oin$, the Decision dated Septem%er -3, -<<< is here%# AFFIR'ED with 'ODIFI#ATIONS Accused is here%# sentenced to suffer the indeterminate penalt# of TBO 8-9 GEA4S, E=E6EN 8**9 ;ONT,S and TEN 8*<9 DAGS of prision correccional minimum to medium as minimum to EIG,T 8/9 GEA4S, EIG,T 8/9 ;ONT,S and TBENTG'ONE 8-*9 DAGS of prision correccional ma)imum

to prision mayor minimum as ma&imum with all the accessor# penalties pro"ided %# law and to pa# the costs )*<+ The Court of Appeals, in upholdin$ petitionerEs con"iction, ratiocinated: The Deed of Sale with Assumption of ;ort$a$e 8E&h >A@9 dated April -A, *..2 and si$ned %# accused =ili%eth = Aricheta in fa"or of ;ar$arita 6as1ue7 spea(s onl# of the mort$a$e with the National ,ousin$ Authorit# 8N,A9 ;ar$arita 6as1ue7, as "endee, a$reed to assume pa#ment of the %alance on the loan with N,A Said instrument includes the warrant# %# =ili%eth = Aricheta, as "endor, that she >is the a%solute owner of said propert#@ and >warrants the "endee from an# lawful claim of whomsoe"er o"er the same @ 8E&hi%it >A@9 &&&& At the time accused')appellant+ si$ned the deed of sale in fa"or of ;ar$arita 6as1ue7 she represented to the latter that she was the a%solute owner of the propert# su%ject matter of the sale Accused')appellant+ warranted to defend said transaction from the claim of an#%od# whomsoe"er Bhether the pre"ious transaction in fa"or of ;a$dalena Galan$ was a sale or a mort$a$e, aforesaid written $uarant# em%odied in the sale to ;ar$arita 6as1ue7 was "iolated The representation, therefore, that accused')appellant+ was the a%solute owner of the propert# sold to ;ar$arita 6as1ue7 and it was free from the claim of an#%od# was fraudulent Said false pretense was simultaneous with the commission of the fraud ;ar$arita 6as1ue7 was induced to deli"er the sum of !3<,<<< << on account of said fraudulent misrepresentation ;ar$arita 6as1ue7 suffered dama$e )**+ !etitioner is now %efore us via a petition for re"iew on certiorari raisin$ a sole issue: B,ET,E4 T,E CO?4T OF A!!EA=S E44ED IN AFFI4;ING T,E T4IA= CO?4TES FINDINGS T,AT T,E !ETITIONE4 IS G?I=TG CEGOND 4EASONAC=E DO?CT OF T,E C4I;E OF ESTAFA !etitioner contends that the element of deceit which, in this case is the ma(in$ of false representations that she is the owner of the su%ject propert# when she transacted with pri"ate complainant, is not present in the case at %ar %ecause at the time she transacted with pri"ate complainant, she was still the owner thereof She claims that nowhere in the records of the case was it shown that she pre"iousl# sold or mort$a$ed the su%ject propert# and that the records of the N,A show that the propert# remained in her name at the time she dealt with pri"ate complainant Estafa under Article 0*3, para$raph -, of the 4e"ised !enal Code is committed %# an# person who defrauds another %# usin$ a fictitious nameH or falsel# pretends to possess power, influence, 1ualifications, propert#, credit, a$enc#, %usiness or ima$inar# transactionsH or %# means of similar deceits e&ecuted prior to or simultaneousl# with the commission of fraud )*-+ ?nder

this class of estafa, the element of deceit is indispensa%le )*0+ The elements of Estafa %# means of deceit as defined under Article 0*38-9 8a9 of the 4e"ised !enal Code are as follows: 8*9 that there must %e a false pretense, fraudulent act or fraudulent meansH 8-9 that such false pretense, fraudulent act or fraudulent means must %e made or e&ecuted prior to or simultaneousl# with the commission of the fraudH 809 that the offended part# must ha"e relied on the false pretense, fraudulent act or fraudulent means, that is, he was induced to part with his mone# or propert# %ecause of the false pretense, fraudulent act or fraudulent meansH and 829 that as a result thereof, the offended part# suffered dama$e )*2+ Fraud, in its $eneral sense, is deemed to comprise an#thin$ calculated to decei"e, includin$ all acts, omissions and concealment in"ol"in$ a %reach of le$al or e1uita%le dut#, trust or confidence justl# reposed, resultin$ in dama$e to another, or %# which an undue and unconscientious ad"anta$e is ta(en of another It is a $eneric term em%racin$ all multifarious means which human in$enuit# can de"ice, and which are resorted to %# one indi"idual to secure an ad"anta$e o"er another %# false su$$estions or %# suppression of truthH and includes all forms of surprise, tric(, cunnin$, dissem%lin$ and an# other unfair wa# %# which another is cheated Deceit is a species of fraud )*3+ And deceit is the false representation of a matter of fact whether %# words or conduct, %# false or misleadin$ alle$ations, or %# concealment of that which should ha"e %een disclosed which decei"es or is intended to decei"e another so that he shall act upon it, to his le$al injur# The false pretense or fraudulent act must %e committed prior to or simultaneousl# with the commission of the fraud,)*5+ it %ein$ essential that such false statement or representation constitutes the "er# cause or the onl# moti"e which induces the offended part# to part with his mone# In the a%sence of such re1uisite, an# su%se1uent act of the accused, howe"er fraudulent and suspicious it mi$ht appear, cannot ser"e as %asis for prosecution for estafa under the said pro"ision )*A+ As can %e $leaned from the alle$ations in the information, petitioner was char$ed with Estafa for alle$edl# sellin$ to pri"ate complainant the su%ject propert# (nowin$ full# well that she had alread# sold the same to a third part# From this, it is therefore clear that the supposed false representation or false pretense made %# petitioner to pri"ate complainant was that she was still the owner of the propert# when she sold it to pri"ate complainant The prosecution relies hea"il# on the pro"ision contained in the Deed of Sale with Assumption of ;ort$a$e >That the 6endor is the a%solute owner of said propert# and here%# warrants the 6endee from an# lawful claim of whomsoe"er o"er the same @ It ar$ues that petitioner, in e&ecutin$ said document in fa"or of pri"ate complainant, fraudulentl# represented that she is the a%solute owner of the propert# and warranted that the transfer of ri$hts o"er the propert# is free >from an# lawful claim of whomsoe"er o"er the same@ %ecause at the time she made this representation, she had alread# soldMmort$a$ed the propert# to another person The 1uestion to %e resol"ed is whether the prosecution was a%le to pro"e %e#ond reasona%le dou%t the alle$ed false representation or false pretense contained in the information As a%o"e e&plained, the alle$ed false representation or false pretense made %# petitioner to pri"ate complainant was that she was still the owner of the propert# when she sold it to pri"ate complainant To pro"e such alle$ation, the prosecution should first esta%lish that the

propert# was pre"iousl# sold to a third part# %efore it was sold to pri"ate complainant The prosecution utterl# failed to do this The fundamental rule is that upon him who alle$es rests the %urden of proof )*/+ It made this alle$ation %ut it failed to support it with competent e"idence E&cept for pri"ate complainantEs %are alle$ation that petitioner told her that she 8petitioner9 sold the propert# to another person, the records are %ereft of e"idence showin$ that the propert# was indeed pre"iousl# sold to a third person %efore it was sold a$ain to pri"ate complainant Bhat was shown %# the prosecution and admitted %# the defense is the fact that the propert# is %ein$ currentl# occupied %# a person other than pri"ate complainant This fact does not pro"e that the propert# was pre"iousl# sold to another person %efore %ein$ sold a$ain to pri"ate complainant E"en assumin$ ar(uendo that the propert# was pre"iousl# mort$a$ed, this does not pro"e that petitioner is no lon$er its owner when she sold the same to pri"ate complainant At most, it onl# shows that the propert# is encum%ered and that there was no chan$e in ownership which is contrar# to the prosecutionEs claim that there was alread# a transfer of ownership %efore the propert# was sold to pri"ate complainant The prosecution cannot rel# on the warrant# contained in the Deed of Sale with Assumption of ;ort$a$e that >the 6endor warrants the 6endee from an# lawful claim of whomsoe"er o"er the same@ for the reason that the same is not alle$ed in the Information This is not part of the char$e a$ainst petitioner !etitioner was indicted for ma(in$ false representations to the pri"ate complainant that she is the owner of the propert# in"ol"ed when this propert# was supposedl# alread# sold to another person The alle$ations were made pursuant to Section ., 4ule **<)*.+ of the 4e"ised 4ules of Criminal !rocedure She was not char$ed with falsel# representin$ to pri"ate complainant that the propert# was not mort$a$ed or %ein$ occupied %# a third person The char$e in the information is specific The char$e cannot %e %roadened to include what is not alle$ed to the detriment of the petitioner If this were to %e done, the petitionerEs ri$ht to %e informed of the nature and cause of the accusation a$ainst her would %e "iolated )-<+ In Andaya v. People,)-*+ this Court said: It is fundamental that e"er# element constitutin$ the offense must %e alle$ed in the information The main purpose of re1uirin$ the "arious elements of a crime to %e set out in the information is to ena%le the accused to suita%l# prepare his defense %ecause he is presumed to ha"e no independent (nowled$e of the facts that constitute the offense The alle$ations of facts constitutin$ the offense char$ed are su%stantial matters and an accusedEs ri$ht to 1uestion his con"iction %ased on facts not alle$ed in the information cannot %e wai"ed No matter how conclusi"e and con"incin$ the e"idence of $uilt ma# %e, an accused cannot %e con"icted of an# offense unless it is char$ed in the information on which he is tried or is necessaril# included therein To con"ict him of a $round not alle$ed while he is concentratin$ his defense a$ainst the $round alle$ed would plainl# %e unfair and underhanded The rule is that a "ariance %etween the alle$ation in the information and proof adduced durin$ trial shall %e fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his su%stantial ri$hts Be are not sa#in$ that petitioner did not commit an# wron$doin$ There was indeed an injustice committed to pri"ate complainant when she was not a%le to occup# the propert# she %ou$ht from petitioner The pro%lem, howe"er, is we cannot con"ict petitioner for an act not

alle$ed in the information

To do so would %e "iolati"e of the fundamental law of the land

Bhere the inculpator# facts and circumstances are suscepti%le of two or more interpretations, one of which is consistent with the innocence of the accused while the other ma# %e compati%le with the findin$ of $uilt, the Court must ac1uit the accused %ecause the e"idence does not fulfill the test of moral certaint# re1uired for con"iction )--+ In the present case, the prosecution, which has the %urden to pro"e %e#ond reasona%le dou%t all the essential elements of the felon#, failed to dischar$e this %urden It failed to esta%lish, as alle$ed in the information, the false representation or false pretense that petitioner supposedl# committedH that is, the propert# in 1uestion was pre"iousl# sold to another person %efore it was sold to pri"ate complainant Bith this failure, the presumption of innocence in fa"or of petitioner pre"ails and we are thus constrained to render an ac1uittal ALL T E FOREGOING #ONSIDERED, the petition for re"iew on certiorari is GRANTED The decision of the Court of Appeals con"ictin$ petitioner of Estafa in CA'G 4 C4 No -332< is REVERSED and SET ASIDE !etitioner =ili%eth Aricheta is A#5UITTED of said char$e on $round of reasona%le dou%t No costs SO ORDERED. G.R. No. 181$-$ '!&+, 17, 200PEOPLE OF T E P ILIPPINES VS. 'ONAL2N #ERVANTES y SOLAR DE#ISION VELAS#O, JR., J.* This is an appeal from the Decision dated :ul# *., -<<A of the Court of Appeals 8CA9 in CA'G 4 C4', C No <<2A5 which affirmed the April -0, -<<2 Decision in Criminal Case No <<'*/*.-. of the 4e$ional Trial Court 84TC9, Cranch 30 in ;anila The 4TC found accused'appellant ;onal#n Cer"antes $uilt# %e#ond reasona%le dou%t of "iolation of Section *3, Article III of 4epu%lic Act No 84A9 52-3 or the Dan(erous Dru(s Act o .<:2, as amended The records show the followin$ facts: In an Information dated April A, -<<<, accused'appellant and three others were char$ed with "iolation of Sec *3, Art III of 4A 52-3 8sellin$ or distri%utin$ a re$ulated dru$9, alle$edl# committed as follows: That, on or a%out April 3, -<<<, in the Cit# of ;anila, !hilippines, and within the jurisdiction of this ,onora%le Court, accused ISID4O A4G?SON # A4ENDE=A, d Tiso#, ;ONA=GN )CE46ANTES+ # SO=A4 d ;ona, BI=SON DE= ;ONTE d Bilson and 4IC,A4D 4ED?IX d 4ichard, conspirin$, confederatin$ and mutuall# helpin$ one another, actin$ in common accord, did then and there, willfull#, unlawfull# and feloniousl#, for the amount of FI6E ,?ND4ED T,O?SAND 8!3<<,<<< <<9 !ESOS, !hilippine Currenc#, sell, deli"er and $i"e awa# to a poseur'%u#er, FO?4 ,?ND4ED SE6ENTG T,4EE !OINT SE6ENTG SIO 82A0 A59 G4A;S OF ;ET,A;!,ETA;INE ),GD4OC,=O4IDE+, commonl# (nown as sha%u, a re$ulated dru$, without authorit# of law or the correspondin$ license therefor

CONT4A4G TO =AB )*+ Accused'appellant and her co'accused pleaded not $uilt# to the char$e In the ensuin$ trial, the prosecution presented in e"idence the oral testimonies of Billiam Toda"ia, !O0 4e#naldo 4amos of the !hilippine National !olice 4e$ional Office I6 8!N! 4'I69, and !MSr Inspector =orna Tria, a forensic chemical officer of the same re$ional office The !eopleEs "ersion of the incident, as summari7ed %# the CA in the decision now on appeal, is as follows: On April 3, -<<<, the 4e$ional Special Operations Group I6 84SOG'I69, %ased at Camp 6icente =im in Calam%a, =a$una, recei"ed a tip from a deep penetration a$ent 8D!A9 a%out a $roup of dru$ traffic(ers led %# Isidro Ar$uson operatin$ in Ca"ite Actin$ on this %it of information, a team led %# S!O- Geronimo !astrana, !O0 4amos, and !O- Emerson Calos%alos arran$ed a %u#'%ust operation to %e conducted at Ar$usonEs rest house in +aran(ay =am%in$an, Tan7a, Ca"ite )-+ ?pon arri"in$ at the rest house, !O0 4amos and !O- Calos%alos, actin$ as poseur'%u#ers, were introduced %# the D!A to Ar$uson as the %u#ers of !h! 3<<,<<< worth of s$abu, simultaneousl# showin$ him a %undle of mone# Since Ar$uson did not ha"e enou$h suppl# of s$abu in the premises, he instructed the would'%e'%u#ers to follow him to !asa# Cit# For the purpose, he hired a "ehicle owned %# Toda"ia At a%out three oEcloc( in the afternoon of that da#, in front of the ;cDonaldEs %ranch in ! Ocampo St , !asa# Cit#,)0+Ar$uson instructed the would'%e'%u#ers to wait for someone who will come out from the near%# Estrella St 6er# much later, accused'appellant emer$ed from Estrella St and approached !O0 4amos to chec( if he still had the mone# After %ein$ shown the mone# %undle, accused'appellant left, onl# to return a few minutes later this time with Ar$uson, Bilson Del ;onte, who was holdin$ a %lac( plastic %a$, and 4ichard 4e1ui7 Ar$uson then too( from Del ;onte the %a$, later found to contain 2A0 A5 $rams of s$abupac(ed in si& small self'sealin$ transparent %a$s, and handed it to !O- Calos%alos, who in turn $a"e him the %undle of %oodle mone# Finall#, !O0 4amos $a"e the pre'arran$ed si$nal to indicate the consummation of the dru$ deal and introduced himself as policeman Accused'appellant and her scamperin$ companions were later arrested and %rou$ht to and %oo(ed at Camp 6icente =im The %lac( plastic %a$ containin$ the si& small self'sealin$ %a$s of white cr#stalline su%stance was li(ewise ta(en to Camp 6icente =im where !O0 4amos prepared the %oo(in$ sheets and arrest reports and the re1uest for a 1ualitati"e anal#sis of the sei7ed items 4e$ional Crime =a%orator# Office I6 Chief Inspector 8CMI9 ;ar# :ean Geronimo then conducted the standard ph#sical and chemical e&aminations on the specimen referred to her On April 5, -<<<, CMI Geronimo prepared and completed Chemistr# 4eport No D'**3/<< on the cr#stalline su%stance !er her report, the su%stance tested positi"e for methamphetamine h#drochloride or s$abu. Apart from the witnessesE affida"its and other documents, the prosecution, in the hearin$ of ;arch 2, -<<-, offered in e"idence the followin$ e&hi%its,)2+ inclusi"e of its su% mar(in$s, which, as ma# %e e&pected, were o%jected to %# the defense: 8a9E9,060/ B3@ U Chemistr# 4eport No D'**3/<< prepared %# CMI GeronimoH 8%9 E9,060/ B#@ U ;emorandum of 4SOG' I6 dated April 3, -<<< to the Chief, =a%orator# Ser"ice, re1uestin$ for 1ualitati"e anal#sis of the contents of the si& transparent plastic %a$sH 8c9 E9,060/7 BDC !n" BD41C /o BD46@ U Clac( plastic %a$ with mar(in$sH and si& 859 self'sealin$ transparent %a$s alle$edl#

containin$ the confiscated s$abuH and 8d9 E9,060/ BFC U 4eceipt of propert# sei7ed si$ned %# !O- Calos%alos and %# Toda"ia and !O0 4amos as witnesses The CA decision li(ewise summari7ed the defenseEs account of what purportedl# transpired, to wit: Accused'appellant testified that after she did laundr# wor(s at her house in Estrella Street near F C ,arrison on April 2, -<<<, her #oun$est child as(ed her to $o to );cDonaldEs+, 6ito Cru7 %ranch, to %u# ice cream Bhen the# arri"ed thereat at a%out 2:0< in the afternoon, there was a commotion $oin$ on in front of the restaurant She then saw a woman who ali$hted from a near%# "an and pointed her out to her companions, one of whom )was+ an old man %oarded her inside the "an causin$ her to lose hold of her child Thereafter, two 8-9 #oun$er male persons, whom she later came to (now as DE= ;ONTE and 4ED?IX, were also %oarded into the same "an The# were ta(en to a cemeter# where another "ehicle came and too( them to Camp 6icente =im, where she alle$edl# met A4G?SON for the first time On the other hand, accused DE= ;ONTE testified that he was a par(in$ %o# around 6ito Cru7 and that on the da# in 1uestion, while he was watchin$ a "ehicle near );cDonaldEs+, 6ito Cru7 %ranch, a commotion happened near his post As he mo"ed %ac(ward from where he stood, he was suddenl# approached %# a policeman who arrested him and %oarded him inside a "ehicle to$ether with CE46ANTES and 4ED?IX, whom he did not (now prior to that incident For his part, accused 4ED?IX testified that on the date and time in 1uestion, he was ridin$ a %orrowed %ic#cle on his wa# to the Cultural Center, passin$ %# F C ,arrison St , when he %umped a par(ed "an, wherefrom a man ali$hted and cursed him, sa#in$ >pulis aLo Ka( Lan( aalis dyan>P? @ The man left and when he returned, accused CE46ANTES was with him Thereafter, he was %oarded into the "an to$ether with the other accused )3+ Bhile not stated in the CA decision, Del ;onte testified, li(e accused'appellant, that he was ta(en to a cemeter# somewhere inCa"ite where the arrestin$ officers lin$ered for an hour %efore %rin$in$ him to Camp 6icente =im )5+ These testimonies remained uncontro"erted Ar$uson died durin$ the course of the trial resultin$ in the dismissal of the case a$ainst him )A+ On April -0, -<<2, the 4TC rendered jud$ment ac1uittin$ Del ;onte and 4e1ui7 %ut findin$ accused'appellant $uilt# as char$ed and metin$ upon her the penalt# of reclusion perpetua The allo of the 4TC Decision reads: B,E4EFO4E, in "iew of the fore$oin$, jud$ment is here%# rendered: * Findin$ accused ;ONA=GN CE46ANTES G SO=A4 G?I=TG %e#ond reasona%le dou%t of "iolation of Sec *3, Article III, of 4epu%lic Act No 52-3 as amended, and is sentenced to Eeclusion Perpetua and to pa# a fine in the amount of !hp3<<,<<< <<H and Findin$ the prosecutionEs e"idence insufficient to pro"e the $uilt of

accused BI=SON DE= ;ONTE and 4IC,A4D 4ED?IX %e#ond reasona%le dou%t, and who are here%# ACD?ITTED SO O4DE4ED )/+ On ;a# */, -<<2, accused'appellant filed a Notice of Appeal, pursuant to which the 4TC forwarded the records of the case to this Court Conforma%l# with People v. Nateo,).+ the Court directed the transfer of the case to the CA where it was doc(eted as CA'G 4 C4', C No <<2A5 Cefore the appellate court, accused' appellant ur$ed her ac1uittal on the $round of >insufficienc# of e"idence,@ particularl# statin$ that the >forensic chemist who actuall# conducted the la%orator# e&amination on the specimens alle$edl# reco"ered from the accused was not presented in court & & & )and+ hence, there was no clear identification of the contents of the confiscated sachets @)*<+ C# its Decision)**+ dated :ul# *., -<<A, the CA, findin$ the elements necessar# for the prosecution of ille$al sale of dru$s)*-+to ha"e sufficientl# %een satisfied and the identification of accused'appellant ha"in$ %een esta%lished, affirmed her con"iction The CA rejected accused'appellantEs lament a%out one Inspector Tria testif#in$ on the chemistr# report she did not prepare As the appellate court stressed, CMI GeronimoEs forensic report >carries the presumption of re$ularit# in the performance of official functions )and+ the entries thereon & & & are prima facie e"idence of the facts therein stated @ The CA added the o%ser"ation that a%sent an# e"idence o"erturnin$ the presumption of re$ularit# in the performance of official functions, the pro%ati"e "alue and admissi%ilit# of the forensic report prepared %# CMI Geronimo, who had resi$ned from the ser"ice, must %e upheld e"en if she did not personall# testif# in court On Au$ust *A, -<<A, accused'appellant filed a Notice of Appeal of the CA affirmator# decision On ;arch -2, -<</, this Court re1uired the parties to su%mit supplemental %riefs if the# so desired The parties manifested their willin$ness to su%mit the case on the %asis of the records alread# su%mitted, thus "erita%l# reiteratin$ their principal ar$uments raised in the CA, which on the part of accused'appellant would %e: T,E )CA+ G4A6E=G E44ED IN FINDING T,E ACC?SED'A!!E==ANT G?I=TG OF T,E OFFENSE C,A4GED DES!ITE T,E INS?FFICIENCG OF E6IDENCE FO4 T,E !4OSEC?TION For its part, the !eople, thru the Office of the Solicitor General, counters that the prosecution has esta%lished that the %u#'%ust transaction too( place, has identified accused'appellant and her complicit# in Ar$usonEs ille$al trade, and has presented the corpus delicti, as e"idence T,e #ou&/I7 Ru:0n; After a circumspect stud#, the Court resol"es to ac1uit accused'appellant, considerin$ certain circumstances en$enderin$ reasona%le dou%t as to her $uilt Be start off with the most %asic, the testimon# of the prosecutionEs principal witness, !O0 4amos, who identified accused'appellant and descri%ed her role in the conspirac# to sell s$abu In the witness %o&, !O0 testified that, after %ein$ told %# Ar$uson to wait for someone who will come out from the street whence Ar$uson would enter, accused'appellant

emer$ed from said street, chec(ed on the purchase mone#, as(ed the operati"es to wait, and later re'appeared Bhat happened ne&t is captured %# the followin$ answers of !O0 4amos to the prosecutorEs 1uestions: 5: Bhat did #ou see when Cer"antes alread# returnedN A: Bhen ;onal#n return the one holdin$ the plastic %a$ was Bilson, sir 5: BilsonN A: Ges, sir, to$ether with 4ichard, Bilson, Ar$uson, the# were four 829 A//y. #&u@: Gour honor, ma# we mo"e to stri(e that out & & & F07+!: Fo&8o7o: ThatEs part of the answer & & & now, when all these accused here return with ;onal#n Cer"antes, what happen)ed+N A: Ar$uson too( the plastic %a$ from Bilson, sir and handed it to Calos%alos, Calos%alos $a"e Ar$uson the %oodle mone# while I flash the si$nal & & & then we apprehended them )*0+ As ma# %e noted, !O0 4amos cate$oricall# stated that Del ;onte was amon$ the four who emer$ed with Ar$uson from a street Bithout hesitation, !O0 4amos pointed to Del ;onte as the one holdin$ the plastic %a$ alle$edl# containin$ the prohi%ited su%stance until Ar$uson too( it from him and handed it o"er to !O- Calos%alos There is no su$$estion that accused' appellant, while at the crime scene, e"er handled the merchandise or its container Get, the trial court ac1uitted 4e1ui7 and Del ;onte, %ut con"icted accused'appellant, statin$: >Clearl#, accused ;onal#n Cer"antesE complicit# with accused Isidro Ar$uson in the sale of s$abu has %een esta%lished %# the testimon# of !O0 4amos @)*2+ Cut two para$raphs later, the 4TC went on to write: & & & Bhile !O0 4amos testified that the %a$ was initiall# held %# accused Del ;onte and then ta(en from him %# accused Ar$uson, there is no other e"idence which can support the char$e of conspirac# with Ar$uson and Cer"antes & & & The court does not find the e"idence sufficient to pass the test of moral certaint# to find accused Del ;onte lia%le as char$ed E"en if !O0 4amos saw him to ha"e held the %a$ for Ar$uson, it could ha"e %een possi%le that he was merel# as(ed %# Cer"antes or Ar$uson to carr# the %a$ )*3+ Cefore us then is a situation where two personsUU!++u7e"4!..e::!n/, a laundr# womanH and De: 'on/e, a car par( %o#, in the compan# of the ostensi%le pusher, Ar$uson, durin$ the actual %u# %ustUUare %ein$ indicted, on the %asis alone of the testimon# of a witness, with confederatin$ with each and se"eral others to sell s$abu The o"ert acts performed %# accused'appellant, as indicia of conspirac#, consisted of alle$edl# "erif#in$ whether the poseur'%u#er still had the purchase mone#, disappearin$ from the scene and then comin$ %ac( with the principal pla#er On the other hand, Del ;onte came accompan#in$ Ar$uson carr#in$ the dru$'containin$ plastic %a$ no less As %etween the two acts performed, carr#in$ the %a$ would relati"el# ha"e the more serious implication %ein$ in itself a punisha%le act of possession of re$ulated dru$s Coth offered the defenses of denial and insti$ation, each testif#in$ that the# just happened to %e near or passin$ %# ;cDonaldEs at a%out 2:0< in the afternoon of April 2, -<<< when the# were apprehended Cut the trial court, in its o%ser"ation that >it could ha"e %een possi%le that )Del ;onte+ was merel# as(ed

%# & & & Ar$uson to carr# the %a$,@ e&tended to Del ;onte the >%enefit of the dou%t,@ a %ene"olence denied to accused'appellant without so much of an accepta%le e&planation An# reasona%le mind mi$ht as(: Bh# the contrastin$ treatmentN Bh# consider !O0 4amos as a hi$hl# credi%le e#ewitness as a$ainst accused'appellant, %ut an unrelia%le one as a$ainst Del ;onte, when %oth accused are complete stran$ers to the policemanN To paraphrase an un#ieldin$ rule, if the inculpator# testimon# is capa%le of two or more e&planations, one consistent with the innocence of the accused persons and the other consistent with their $uilt, then the e"idence does not fulfill the test of moral certaint# and is not sufficient to support a con"iction )*5+ Cut e"en if we were to cast aside the fore$oin$ e1uipoise rule, a re"ersal of the appealed decision is indicated on another %ut more compellin$ $round Be refer to the postulate that the prosecution, ha"in$ failed to positi"el# and con"incin$l# pro"e the identit# of the sei7ed re$ulated su%stance, is deemed to ha"e also failed to pro"e %e#ond reasona%le dou%t accused'appellantEs $uilt Be shall e&plain In e"er# prosecution for ille$al sale of dan$erous dru$, what is crucial is the identit# of the %u#er and seller, the o%ject and its consideration, the deli"er# of the thin$ sold, and the pa#ment for it Implicit in these cases is first and foremost the identit# and e&istence, coupled with the presentation to the court of the traded prohi%ited su%stance, this o%ject e"idence %ein$ an inte$ral part of the corpus)*A+ delicti)*/+ of the crime of possession or sellin$ of re$ulatedMprohi%ited dru$ )*.+ There can %e no such crime when na$$in$ dou%ts persist on whether the specimen su%mitted for e&amination and presented in court was what was reco"ered from, or sold %#, the accused )-<+ Essential, therefore, in appropriate cases is that the identit# of the prohi%ited dru$ %e esta%lished with moral certaint# This means that on top of the (e# elements of possession or sale, the fact that the su%stance ille$all# possessed and sold in the first place is the same su%stance offered in court as e&hi%it must li(ewise %e esta%lished with the same de$ree of certitude as that needed to sustain a $uilt# "erdict And as we stressed in Nalillin v. People, the >chain of custod# re1uirement performs this function in that it ensures that unnecessar# dou%ts concernin$ the identit# of the e"idence are remo"ed @)-*+ So it is that in a slew of cases the Court has considered the prosecutionEs failure to ade1uatel# pro"e that the specimen su%mitted for la%orator# e&amination was the same one supposedl# sei7ed from the offendin$ seller or possessor as $round for ac1uittal )--+ Sec *8%9 of the Dan$erous Dru$s Coard 4e$ulation No *, Series of -<<-, or the >Guidelines on the Custod# and Disposition of Sei7ed Dan$erous Dru$s, Controlled !recursors and Essential Chemicals, and =a%orator# E1uipment,@ defines >chain of custod#,@ thusl#: >Chain of Custod#@ means the dul# recorded authori7ed mo"ements and custod# of sei7ed dru$s or controlled chemicals & & & from the time of sei7ureMconfiscation to receipt in the forensic la%orator# to safe(eepin$ to presentation in court for destruction Such record of mo"ements and custod# of sei7ed item shall include the identit# and si$nature of the person who held temporar# custod# of the sei7ed item, the date and time when such transfer of custod# )was+ made in the course of safe(eepin$ and use in court as e"idence, and the final disposition )-0+ As a mode of authenticatin$ e"idence, the chain of custod# rule re1uires that the admission of an e&hi%it %e preceded %# e"idence sufficient to support a findin$ that the matter in

1uestion is what the proponent claims it to %e In conte&t, this would ideall# include testimon# a%out e"er# lin( in the chain, from the sei7ure of the prohi%ited dru$ up to the time it is offered into e"idence, in such a wa# that e"er#one who touched the e&hi%it would descri%e how and from whom it was recei"ed, where it was and what happened to it while in the witnessE possession, the condition in which it was recei"ed, and the condition in which it was deli"ered to the ne&t lin( in the chain )-2+ The need for the punctilious o%ser"ance of the chain'of'custod# process in dru$'related cases is e&plained in Nalillin in the followin$ wise: Bhile testimon# a%out a perfect chain is not alwa#s the standard %ecause it is almost alwa#s impossi%le to o%tain, !n un6&oAen +,!0n o= +u7/o"y 6e+o8e7 0n"07.en7!6:e !n" e77en/0!: E,en /,e 0/e8 o= &e!: eD0"en+e 07 no/ "07/0n+/0De !n" 07 no/ &e!::y 0"en/0=0!6:e , or when its condition at the time of testin$ or trial is critical, or when a witness has failed to o%ser"e its uni1ueness The same standard li(ewise o%tains in case the e"idence is suscepti%le to alteration, tamperin$, contamination and e"en su%stitution and e&chan$e In other words, the e&hi%itEs le"el of suscepti%ilit# to fun$i%ilit#, alteration or tamperin$UUwithout re$ard to whether the same is ad"ertent or otherwise notUU dictates the le"el of strictness in the application of the chain of custod# rule &&&& A uni1ue characteristic of narcotic su%stances is that the# are not readil# identifia%le as in fact the# are su%ject to scientific anal#sis to determine their composition and nature The Court cannot reluctantl# close its e#es to the li(elihood, or at least the possi%ilit#, that at an# of the lin(s in the chain of custod# o"er the same there could ha"e %een tamperin$, alteration or su%stitution of su%stances from other casesUU%# accident or otherwiseUUin which similar e"idence was sei7ed or in which similar e"idence was su%mitted for la%orator# testin$ ,ence, in authenticatin$ the same, a standard more strin$ent than that applied to cases in"ol"in$ o%jects which are readil# identifia%le must %e applied, a more e&actin$ standard that entails a chain of custod# of the item with sufficient completeness if onl# to render it impro%a%le that the ori$inal item has either %een e&chan$ed with another or %een contaminated or tampered with )-3+ 8Emphasis added 9 As the Court distinctl# notes in this case, of the indi"iduals who came into direct contact with or had ph#sical custod# of the sei7ed re$ulated items, onl# !O0 4amos testified for the specific purpose of identif#in$ the e"idence In the witness %o&, howe"er, he did not indicate how he and his companions, ri$ht after the %u# %ust, handled the sei7ed plastic %a$ and its contents ,e did not name the dut# des( officer at Camp 6icente =im to whom he specificall# turned o"er the confiscated %a$ and sachets at least for recordin$ Bhat is on record is E&hi%it >C,@ which, as earlier descri%ed, is a memorandum)-5+ !O0 4amos prepared)-A+ dated April 3, -<<< from the 4SOG'I6 Director to the Chief, !N! 4'I6 Crime =a%orator# Ser"ice, su%mittin$ for 1ualitati"e anal#sis the white cr#stalline su%stance confiscated %# the %u#'%ust $roup Needless to stress, the unnamed person who deli"ered the suspecteds$abu and the recipient of it at the la%orator# were no'show in court to testif# on the circumstances under which the# handled the specimen or whether other persons had access to the specimen %efore actual testin$ And CMI Geronimo, the anal#7in$ forensic chemist, was not also presented Then, too, no one testified on how the specimen was cared

after followin$ the chemical anal#sis As the Court o%ser"ed aptl# in People v. Fn(, >)T+hese 1uestions should %e answered satisfactoril# to determine whether the inte$rit# of the e"idence was compromised in an# wa# Otherwise, the prosecution cannot maintain that it was a%le to pro"e the $uilt of appellants %e#ond reasona%le dou%t @)-/+ It cannot %e o"eremphasi7ed that Inspector Tria was reall# not part of the custodial chain And she did not as she could not, e"en if she wanted to, testif# on whether or not the specimen turned o"er for anal#sis and e"entuall# offered in court as e&hi%it was the same su%stance recei"ed from Ar$uson Gi"en the fore$oin$ perspecti"e, it is fairl# e"ident that the police operati"es trifled with the procedures in the custod# of sei7ed prohi%ited dru$s in a %u#'%ust operation, as em%odied in Sec -*8*9, Art II of 4A .*53, i e , the apprehendin$ officerMteam ha"in$ initial custod# and control of the dru$ 7,!::: immediatel# after sei7ure and confiscation, ph#sicall# in"entor# and photo$raph the )dru$+ in the presence of the accused or the personMs from whom such items were confiscated andMor sei7ed, or hisMher representati"e or counsel, a representati"e from the media and the Department of :ustice 8DO:9, and an# elected pu%lic official who shall %e re1uired to si$n the copies of the in"entor# and %e $i"en a cop# thereof )-.+ In this case, no ph#sical in"entor# was made and no photo$raph ta(en nor mar(in$s made on the sei7ed articles at the crime scene !O0 4amos admitted as much, thus: 5 Now, #ou were a%le to arrest all the accused here, after their arrest, what did #ou doN A. After informin$ their ri$hts and the reason wh# we arrest them we %rou$ht them immediatel# to our office in Canlu%an$ &&&& 5 Now, what a%out this Sha%u, who was in possession of this Sha%u & & & when #ou left the place and proceeded to Canlu%an$N A !O- Calos%alos, sir & & & & 5 Now, when #ou reach #our office, what did #ou do thereN A I made the %oo(in$ sheet and I re1uested for their medicalMph#sical e&amination & & & )0<+ :ust as clear is the fact that the e&actin$ chain of custod# rule was not o%ser"ed Bithal, there is no reasona%le assurance that no tamperin$ or su%stitution occurred %etween the time the police sei7ed the %lac( %a$ in ! Ocampo St in ;anila until its contents were tested in the la%orator# of the !N! 4'I6 head1uarters in Canlu%an$, =a$una In net effect, a hea"# cloud of dou%t han$s o"er the inte$rit# and necessaril# the e"identiar# "alue of the sei7ed items The prosecution cannot, thus, ri$htfull# assert that the si& sachets sei7ed from Ar$uson were the "er# same o%jects tested %# CMI Geronimo and offered in court in pro"in$ the corpus delicti Addin$ a ne$ati"e dimension to the prosecutionEs case is the non'presentation of CMI Geronimo and the presentation in her stead of Inspector Tria to testif# on the chemical report CMI Geronimo prepared Bhile Inspector Tria can plausi%l# testif# on the fact that CMI Geronimo prepared the chemical report in the re$ular course of her duties, she, Inspector Tria, was incompetent to state that the specimen her former collea$ue anal#7ed was in fact s$abu and was the same specimen deli"ered to the la%orator# for chemical anal#sis

To %e sure, the Court, nota%l# in People v. +andan(, has held that the non' presentation of the forensic chemist in ille$al dru$ cases is an insufficient cause for ac1uittal In it, the accused persons were con"icted of ille$al sale of s$abu e"en if the forensic chemist who prepared the correspondin$ la%orator# report was not presented Thus, we wrote: & & & In !eople "s ?#, we ruled that a forensic chemist is a pu%lic officer and as such, his report carries the presumption of re$ularit# in the performance of his function and duties Corollaril#, under Section 22 of 4ule *0<, & & & entries in official records made in the performance of official dut# are prima facie e"idence of the facts therein stated OmeroEs reports that the se"en sachets of white cr#stalline su%stance were >positi"e formet$ylamp$etamine $ydroc$loride@ or s$abu are, therefore, conclusi"e in the a%sence of e"idence pro"in$ the contrar#, as in this case Second, it must %e stressed that Att# Enri1ue7 &!07e7 ,07 o6He+/0on to the Initial =a%orator# 4eport and Chemistr# 4eport No D'*3/3'<< on:y noE ,e should ha"e o%jected to their admissi%ilit# at the time the# were %ein$ offered Otherwise, the o%jection shall %e considered wai"ed and such e"idence will form part of the records of the case as competent and admissi%le e"idence The familiar rule in this jurisdiction is that the admissi%ilit# of certain documents & & & cannot %e raised for the first time on appeal )0*+ 8Emphasis added 9 It should %e pointed out, howe"er, that the +andan( rulin$ was cast a$ainst a different %ac(drop where: 8*9 the sei7ed cr#stalline su%stance was the same item e&amined and tested positi"e for s$abu and presented in court, impl#in$ that the identit# and inte$rit# of prohi%ited dru$ was safe$uarded throu$hout, a circumstance not o%tainin$ in this caseH 8-9 there was a compellin$ reason for not presentin$ the e&aminin$ forensic chemist, i e , the parties stipulated that the confiscated se"en plastic %a$s ha"e %een identified and e&amined and that the chemist stated in his report that the su%stance is positi"e for s$abu In this case, CMI GeronimoEs resi$nation from the ser"ice is not, standin$ alone, a justif#in$ factor for the prosecution to dispense with her testimon#H and 809 accused Candan$, et al did not raise an# o%jection to the chemical report durin$ trial, unli(e here where accused'appellant o%jected to Inspector TriaEs competenc# to testif# on the Geronimo chemical report At an# rate, Inspector TriaEs testimon# on, and the presentation of, the chemistr# report in 1uestion onl# esta%lished, at %est, the e&istence, due e&ecution, and authenticit# of the results of the chemistr# anal#sis )0-+ It does not pro"e compliance with the re1uisite chain of custod# o"er the confiscated su%stance from the time of sei7ure of the e"idence In this re$ard, the Court in effect stated in Nalillin that unless the state can show %# records or testimon# that the inte$rit# of the e"idence has not %een compromised %# accountin$ for the continuous wherea%outs of the o%ject e"idence at least %etween the time it came into the possession of the police officers until it was tested in the la%orator#,)00+ then the prosecution cannot maintain that it was a%le to pro"e the $uilt of the accused %e#ond reasona%le dou%t So it was that in People v. Oimura the Court said that in esta%lishin$ the corpus delicti, proof %e#ond reasona%le dou%t demands that >unwa"erin$ e&actitude@)02+ %e o%ser"ed, a demand which ma# %e addressed %# hewin$ to the chain'of'custod# rule E"identl#, the prosecution has not pro"ed that the su%stance sei7ed in front of the ;cDonaldEs was the same su%stance adduced in e"idence as an indispensa%le element of corpus delicti of the crime, which failure produces a serious dou%t as to accused'appellantEs $uilt )03+

Coth the trial and appellate courts made much of the presumption of re$ularit# in the performance of official functions %oth with respect to the acts of !O0 4amos and other !N! personnel at Camp 6icente =im To a point, the reliance on the presumpti"e re$ularit# is tena%le This presumption is, howe"er, disputa%le and ma# %e o"erturned %# affirmati"e e"idence of irre$ularit# or failure to perform a dut#H)05+ an# taint of irre$ularit# "itiates the performance and ne$ates the presumption And as earlier discussed, the %u# %ust team committed serious lapses in the handlin$ of the prohi%ited item from the "er# start of its operation, the error of which the !N! 4'I6 command later compounded The Court need not %ela%or this matter anew =est it %e o"erloo(ed, the presumption of re$ularit# in the performance of official dut# alwa#s #ields to the presumption of innocence and does not constitute proof %e#ond reasona%le dou%t )0A+ Be held in one case: The presumption of re$ularit# in the performance of official dut# cannot %e used as %asis for affirmin$ accused'appellantEs con"iction %ecause, >)f+irst, the presumption is precisel# just thatIa mere presumption Once challen$ed %# e"idence, as in this case, & & & )it+ cannot %e re$arded as %indin$ truth Second, the presumption of re$ularit# in the performance of official functions cannot preponderate o"er the presumption of innocence that pre"ails if not o"erthrown %# proof %e#ond reasona%le dou%t @)0/+ For failure then of the prosecution to esta%lish the $uilt of accused'appellant %e#ond reasona%le dou%t, she must perforce %e e&onerated from criminal lia%ilit# The facts and the law of the case call for this (ind of disposition Cut a final consideration The Court is co$ni7ant of the campai$n of the police and other dru$ enforcement a$encies a$ainst the $rowin$ dru$ menace in the countr# ?nfortunatel#, their %est efforts, particularl# successful honest'to'$oodness %u#'%ust operations, sometimes still end up in the ac1uittal of ille$al dru$ manufacturers, distri%utors, pushers andMor lesser pla#ers, e"en when na%%ed in la(rante, simpl# %ecause dru$ enforcement operati"es tend to compromise the inte$rit# and e"identiar# worth of the sei7ed ille$al items This a%erration is oftentimes in turn attri%uta%le to the unfamiliarit# of police operati"es of e&tant rules and procedures $o"ernin$ the custod#, control, and handlin$ of sei7ed dru$s This is, thus, an opportune time to remind all concerned a%out these rules and procedures and the $uidin$ jurisprudence And to put thin$s in the proper perspecti"e, non'compliance with the le$al prescriptions of the Dan$erous Dru$s Act, as amended, is, as we made a%undantl# clear in People v. Sanc$e*, not necessaril# fatal to the prosecution of dru$'related casesH that police procedures ma# still ha"e some lapses These lapses, howe"er, must %e reco$ni7ed, addressed, and e&plained in terms of their justifia%le $rounds, and the inte$rit# and e"identiar# "alue of the e"idence sei7ed must %e shown to ha"e %een preser"ed %# the apprehendin$ officer or team To %e forewarned is to %e forearmed ( EREFORE, the CA Decision dated :ul# *., -<<A in CA'G 4 C4', C No <<2A5, affirmin$ that of the 4TC, Cranch 30 in ;anila which found her $uilt# of "iolatin$ Sec *3, Art III of 4A 52-3 and imposed upon her the penalt# of reclusion perpetua and a fine of !h! 3<<,<<<, is here%# REVERSED and SET ASIDE Accused'appellant ;onal#n Cer"antes # Solar isA#5UITTED on the $round of reasona%le dou%t and is accordin$l# immediatel# RELEASED from custod# unless she is %ein$ lawfull# held for some lawful

cause The Director of the Cureau of Corrections is directed to implement this Decision and to report to this Court the action ta(en hereon within fi"e 839 da#s from receipt of this Decision SO ORDERED. G.R. No. 162267 Ju:y $, 2008 P#I LEASING AND FINAN#E, IN#., petitioner, "s U#P3 GENERAL INSURAN#E #O., IN#., respondent DECISION AUSTRIA4'ARTINEZ, J.* Cefore the Court is a !etition for 4e"iew on Certiorari under 4ule 23 of the 4ules of Court, see(in$ a re"ersal of the Decision* of the Court of Appeals 8CA9 dated Decem%er *-, -<<0 affirmin$ with modification the Decision of the 4e$ional Trial Court 84TC9 of ;a(ati Cit# which ordered petitioner and 4enato Gon7a$a 8Gon7a$a9 to pa#, jointl# and se"erall#, respondent the amount of !-22,3<< << plus interestH and the CA 4esolution- dated Fe%ruar# */, -<<2 den#in$ petitionerTs ;otion for 4econsideration The facts, as found %# the CA, are undisputed: On Octo%er *., *..< at a%out *<:0< p m , a ;itsu%ishi =ancer car with !late Num%er !,D'-<5 owned %# ?nited Coconut !lanters Can( was tra"ersin$ the =aurel ,i$hwa#, Caran$a# Calintawa(, =ipa Cit# The car was insured with plantiff'appellee )?C!C General Insurance Inc +, then dri"en %# Fla"iano Isaac with Conrado Geronimo, the Asst ;ana$er of said %an(, was hit and %umped %# an */'wheeler Fuso Tan(er Truc( with !late No !:E'A0A and Trailer !late No N6;'*00, owned %# defendants'appellants !CI =easin$ b Finance, Inc alle$edl# leased to and operated %# defendant'appellant Superior Gas b E1uita%le Co , Inc 8S?GECO9 and dri"en %# its emplo#ee, defendant appellant 4enato Gon7a$a The impact caused hea"# dama$e to the ;itsu%ishi =ancer car resultin$ in an e&plosion of the rear part of the car The dri"er and passen$er suffered ph#sical injuries ,owe"er, the dri"er defendant'appellant Gon7a$a continued on its )sic+ wa# to its )sic+ destination and did not %other to %rin$ his "ictims to the hospital !laintiff'appellee paid the assured ?C!C the amount of !-22,3<< << representin$ the insurance co"era$e of the dama$ed car As the */'wheeler truc( is re$istered under the name of !CI =easin$, repeated demands were made %# plaintiff'appellee for the pa#ment of the aforesaid amounts ,owe"er, no pa#ment was made Thus, plaintiff'appellee filed the instant case on ;arch *0, *..* 0 !CI =easin$ and Finance, Inc , 8petitioner9 interposed the defense that it could not %e held lia%le for the collision, since the dri"er of the truc(, Gon7a$a, was not its emplo#ee, %ut that of its co'defendant Superior Gas b E1uita%le Co , Inc 8S?GECO9 2 In fact, it was S?GECO, and not petitioner, that was the actual operator of the truc(, pursuant to a Contract of =ease si$ned %# petitioner and S?GECO 3 !etitioner, howe"er, admitted that it was the owner of the truc( in 1uestion 5 After trial, the 4TC rendered its Decision dated April *3, *...,A the dispositi"e portion of which reads: B,E4EFO4E, premises considered, jud$ment is here%# rendered in fa"or of plaintiff

?C!C General Insurance )respondent+, orderin$ the defendants !CI =easin$ and Finance, Inc , )petitioner+ and 4enato Gon7a$a, to pa# jointl# and se"erall# the former the followin$ amounts: the principal amount of !-22,3<< << with *-W interest as of the filin$ of this complaint until the same is paidH !3<,<<< << as attorne#Ts feesH and!-<,<<< << as costs of suit SO O4DE4ED / A$$rie"ed %# the decision of the trial court, petitioner appealed to the CA In its Decision dated Decem%er *-, -<<0, the CA affirmed the 4TCTs decision, with certain modifications, as follows: B,E4EFO4E, the appealed decision dated April *3, *... is here%# AFFI4;ED with modification that the award of attorne#Ts fees is here%# deleted and the rate of interest shall %e si& percent 85W9 per annum computed from the time of the filin$ of the complaint in the trial court until the finalit# of the jud$ment If the adjud$ed principal and the interest remain unpaid thereafter, the interest rate shall %e twel"e percent 8*-W9 per annum computed from the time the jud$ment %ecomes final and e&ecutor# until it is full# satisfied SO O4DE4ED . !etitioner filed a ;otion for 4econsideration which the CA denied in its 4esolution dated Fe%ruar# */, -<<2 ,ence, herein !etition for 4e"iew The issues raised %# petitioner are purel# le$al: Bhether petitioner, as re$istered owner of a motor "ehicle that fi$ured in a 'uasiG delict ma# %e held lia%le, jointl# and se"erall#, with the dri"er thereof, for the dama$es caused to third parties Bhether petitioner, as a financin$ compan#, is a%sol"ed from lia%ilit# %# the enactment of 4epu%lic Act 84 A 9 No /335, or the Financin$ Compan# Act of *../ Anent the first issue, the CA found petitioner lia%le for the dama$e caused %# the collision since under the !u%lic Ser"ice Act, if the propert# co"ered %# a franchise is transferred or leased to another without o%tainin$ the re1uisite appro"al, the transfer is not %indin$ on the !u%lic Ser"ice Commission and, in contemplation of law, the $rantee continues to %e responsi%le under the franchise in relation to the operation of the "ehicle, such as dama$e or injur# to third parties due to collisions *< !etitioner claims that the CATs reliance on the !u%lic Ser"ice Act is misplaced, since the said law applies onl# to cases in"ol"in$ common carriers, or those which ha"e franchises to operate as pu%lic utilities In contrast, the case %efore this Court in"ol"es a pri"ate commercial "ehicle for %usiness use, which is not offered for ser"ice to the $eneral pu%lic ** !etitionerTs contention has partial merit, as indeed, the "ehicles in"ol"ed in the case at %ar are not common carriers, which ma(es the !u%lic Ser"ice Act inapplica%le ,owe"er, the re$istered owner of the "ehicle dri"en %# a ne$li$ent dri"er ma# still %e held lia%le under applica%le jurisprudence in"ol"in$ laws on compulsor# motor "ehicle re$istration and the lia%ilities of emplo#ers for 'uasi'delicts under the Ci"il Code The principle of holdin$ the re$istered owner of a "ehicle lia%le for 'uasi'delicts resultin$ from its use is well'esta%lished in jurisprudence Ere*o v. Jepte!*- with :ustice =a%rador as ponente! wisel# e&plained the reason %ehind this principle, thus:

4e$istration is re1uired not to ma(e said re$istration the operati"e act %# which ownership in "ehicles is transferred, as in land re$istration cases, %ecause the administrati"e proceedin$ of re$istration does not %ear an# essential relation to the contract of sale %etween the parties 8Chinchilla "s 4afael and 6erda$uer, 0. !hil ///9, %ut to permit the use and operation of the "ehicle upon an# pu%lic hi$hwa# 8section 3 )a+, Act No 0..-, as amended 9 The main aim of motor "ehicle re$istration is to identif# the owner so that if an# accident happens, or that an# dama$e or injur# is caused %# the "ehicle on the pu%lic hi$hwa#s, responsi%ilit# therefor can %e fi&ed on a definite indi"idual, the re$istered owner Instances are numerous where "ehicles runnin$ on pu%lic hi$hwa#s caused accidents or injuries to pedestrians or other "ehicles without positi"e identification of the owner or dri"ers, or with "er# scant means of identification It is to forestall these circumstances, so incon"enient or prejudicial to the pu%lic, that the motor "ehicle re$istration is primaril# ordained, in the interest of the determination of persons responsi%le for dama$es or injuries caused on pu%lic hi$hwa#s JTOne of the principal purposes of motor "ehicles le$islation is identification of the "ehicle and of the operator, in case of accidentH and another is that the (nowled$e that means of detection are alwa#s a"aila%le ma# act as a deterrent from la& o%ser"ance of the law and of the rules of conser"ati"e and safe operation Bhate"er purpose there ma# %e in these statutes, it is su%ordinate at the last to the primar# purpose of renderin$ it certain that the "iolator of the law or of the rules of safet# shall not escape %ecause of lac( of means to disco"er him T The purpose of the statute is thwarted, and the displa#ed num%er %ecomes a Tsnare and delusion,T if courts would entertain such defenses as that put forward %# appellee in this case No responsi%le person or corporation could %e held lia%le for the most outra$eous acts of ne$li$ence, if the# should %e allowed to place a TmiddlemanT %etween them and the pu%lic, and escape lia%ilit# %# the manner in which the# recompense their ser"ants J 8Qin$ "s Crenham Automo%ile Co , *23 S B -A/, -A. 9 Bith the a%o"e polic# in mind, the 1uestion that defendant'appellant poses is: should not the re$istered owner %e allowed at the trial to pro"e who the actual and real owner is, and in accordance with such proof escape or e"ade responsi%ilit# and la# the same on the person actuall# ownin$ the "ehicleN Be hold with the trial court that the law does not allow him to do soH the law, with its aim and polic# in mind, does not relie"e him directl# of the responsi%ilit# that the law fi&es and places upon him as an incident or conse1uence of re$istration Bere a re$istered owner allowed to e"ade responsi%ilit# %# pro"in$ who the supposed transferee or owner is, it would %e eas# for him, %# collusion with others or otherwise, to escape said responsi%ilit# and transfer the same to an indefinite person, or to one who possesses no propert# with which to respond financiall# for the dama$e or injur# done A "ictim of rec(lessness on the pu%lic hi$hwa#s is usuall# without means to disco"er or identif# the person actuall# causin$ the injur# or dama$e ,e has no means other than %# a recourse to the re$istration in the ;otor 6ehicles Office to determine who is the owner The protection that the law aims to e&tend to him would %ecome illusor# were the re$istered owner $i"en the opportunit# to escape lia%ilit# %# dispro"in$ his ownership If the polic# of the law is to %e enforced and carried out, the re$istered owner should not %e allowed to pro"e the contrar# to the prejudice of the person injured, that is, to pro"e that a third person or another has %ecome the owner, so that he ma# there%# %e relie"ed of the responsi%ilit# to the injured person The a%o"e polic# and application of the law ma# appear 1uite harsh and would seem to

conflict with truth and justice Be do not thin( it is so A re$istered owner who has alread# sold or transferred a "ehicle has the recourse to a third'part# complaint, in the same action %rou$ht a$ainst him to reco"er for the dama$e or injur# done, a$ainst the "endee or transferee of the "ehicle The incon"enience of the suit is no justification for relie"in$ him of lia%ilit#H said incon"enience is the price he pa#s for failure to compl# with the re$istration that the law demands and re1uires In s#nthesis, we hold that the re$istered owner, the defendant'appellant herein, is primaril# responsi%le for the dama$e caused to the "ehicle of the plaintiff'appellee, %ut he 8defendant'appellant9 has a ri$ht to %e indemnified %# the real or actual owner of the amount that he ma# %e re1uired to pa# as dama$e for the injur# caused to the plaintiff'appellant *0 The case is still $ood law and has %een consistentl# cited in su%se1uent cases *2 Thus, there is no $ood reason to depart from its tenets For dama$e or injuries arisin$ out of ne$li$ence in the operation of a motor "ehicle, the re$istered owner ma# %e held ci"ill# lia%le with the ne$li$ent dri"er either *9 subsidiarily, if the a$$rie"ed part# see(s relief %ased on a delictor crime under Articles *<< and *<0 of the 4e"ised !enal CodeH or -9 solidarily! if the complainant see(s relief %ased on a 'uasiG delict under Articles -*A5 and -*/< of the Ci"il Code It is the option of the plaintiff whether to wai"e completel# the filin$ of the ci"il action, or institute it with the criminal action, or file it separatel# or independentl# of a criminal actionH*3 his onl# limitation is that he cannot reco"er dama$es twice for the same act or omission of the defendant *5 In case a separate ci"il action is filed, the lon$'standin$ principle is that the re$istered owner of a motor "ehicle is primaril# and directl# responsi%le for the conse1uences of its operation, includin$ the ne$li$ence of the dri"er, with respect to the pu%lic and all third persons *A In contemplation of law, the re$istered owner of a motor "ehicle is the emplo#er of its dri"er, with the actual operator and emplo#er, such as a lessee, %ein$ considered as merel# the ownerTs a$ent */ This %ein$ the case, e"en if a sale has %een e&ecuted %efore a tortious incident, the sale, if unre$istered, has no effect as to the ri$ht of the pu%lic and third persons to reco"er from the re$istered owner *.The pu%lic has the ri$ht to conclusi"el# presume that the re$istered owner is the real owner, and ma# sue accordin$l# -< In the case now %efore the Court, there is not e"en a sale of the "ehicle in"ol"ed, %ut a mere lease, which remained unre$istered up to the time of the occurrence of the 'uasiGdelict that $a"e rise to the case Since a lease, unli(e a sale, does not e"en in"ol"e a transfer of title or ownership, %ut the mere use or enjo#ment of propert#, there is more reason, therefore, in this instance to uphold the polic# %ehind the law, which is to protect the unwittin$ pu%lic and pro"ide it with a definite person to ma(e accounta%le for losses or injuries suffered in "ehicular accidents -* This is and has alwa#s %een the rationale %ehind compulsor# motor "ehicle re$istration under the =and Transportation and Traffic Code and similar laws, which, as earl# as Ere*o! has %een $uidin$ the courts in their disposition of cases in"ol"in$ motor "ehicular incidents It is also important to emphasi7e that such principles appl# to all "ehicles in $eneral, not just those offered for pu%lic ser"ice or utilit# -The Court reco$ni7es that the %usiness of financin$ companies has a le$itimate and commenda%le purpose -0 In earlier cases, it considered a financial lease or financin$ lease a le$al contract,-2 thou$h su%ject to the restrictions of the so'called Eecto /aK or Articles *2/2 and *2/3 of the Ci"il Code -3 In pre"ious cases, the Court adopted the statutor# definition of a financial lease or financin$ lease, as: )A+ mode of e&tendin$ credit throu$h a non'cancela%le lease contract under which the lessor purchases or ac1uires, at the instance of the lessee, machiner#, e1uipment,

motor "ehicles, appliances, %usiness and office machines, and other mo"a%le or immo"a%le propert# in consideration of the periodic pa#ment %# the lessee of a fi&ed amount of mone# sufficient to amorti7e at least se"ent# 8A<W9 of the purchase price or ac1uisition cost, includin$ an# incidental e&penses and a mar$in of profit o"er an o%li$ator# period of not less than two 8-9 #ears durin$ which the lessee has the ri$ht to hold and use the leased propert#, & & & %ut with no o%li$ation or option on his part to purchase the leased propert# from the owner'lessor at the end of the lease contract -5 !etitioner presented a len$th# discussion of the purported trend in other jurisdictions, which apparentl# tends to fa"or a%sol"in$ financin$ companies from lia%ilit# for the conse1uences of 'uasiGdelictual acts or omissions in"ol"in$ financiall# leased propert# -A The petition adds that these de"elopments ha"e %een le$islated in our jurisdiction in 4epu%lic Act 84 A 9 No /335,-/ which pro"ides: Section *- /iability o lessors ' Financin$ companies shall not %e lia%le for loss, dama$e or injur# caused %# a motor "ehicle, aircraft, "essel, e1uipment, machiner# or other propert# leased to a third person or entit# e&cept when the motor "ehicle, aircraft, "essel, e1uipment or other propert# is operated %# the financin$ compan#, its emplo#ees or a$ents at the time of the loss, dama$e or injur# *a""phi* !etitionerTs ar$ument that the enactment of 4 A No /335, especiall# its addition of the new Sec *- to the old law, is deemed to ha"e a%sol"ed petitioner from lia%ilit#, fails to con"ince the Court These de"elopments, indeed, point to a seemin$ emancipation of financin$ companies from the o%li$ation to compensate claimants for losses suffered from the operation of "ehicles co"ered %# their lease Such, howe"er, are not applica%le to petitioner and do not e&onerate it from lia%ilit# in the present case The new law, 4 A No /335, notwithstandin$ de"elopments in forei$n jurisdictions, do not supersede or repeal the law on compulsor# motor "ehicle re$istration No part of the law e&pressl# repeals Section 38a9 and 8e9 of 4 A No 2*05, as amended, otherwise (nown as the =and Transportation and Traffic Code, to wit: Sec 3 .ompulsory registration o motor "ehicles ' 8a9 All motor "ehicles and trailer of an# t#pe used or operated on or upon an# hi$hwa# of the !hilippines must %e re$istered with the Cureau of =and Transportation 8now the =and Transportation Office, per E&ecuti"e Order No *-3, :anuar# 0<, *./A, and E&ecuti"e Order No *-3'A, April *0, *./A9 for the current #ear in accordance with the pro"isions of this Act &&&& 8e9 Encum%rances of motor "ehicles ' ;ort$a$es, attachments, and other encum%rances of motor "ehicles,0n o&"e& /o 6e D!:0" !;!0n7/ /,0&" .!&/0e7 must %e recorded in the Cureau 8now the =and Transportation Office9 6oluntar# transactions or "oluntar# encum%rances shall li(ewise %e properl# recorded on the face of all outstandin$ copies of the certificates of re$istration of the "ehicle concerned Cancellation or foreclosure of such mort$a$es, attachments, and other encum%rances shall li(ewise %e recorded, and in the a%sence of such cancellation, no certificate of re$istration shall %e issued without the correspondin$ notation of mort$a$e, attachment andMor other encum%rances & & & & 8Emphasis supplied9 Neither is there an implied repeal of 4 A No 2*05 As a rule, repeal %# implication is frowned upon, unless there is clear showin$ that the later statute is so irreconcila%l#

inconsistent and repu$nant to the e&istin$ law that the# cannot %e reconciled and made to stand to$ether -. There is nothin$ in 4 A No 2*05 that is inconsistent and incapa%le of reconciliation Thus, the rule remains the same: a sale, lease, or financial lease, for that matter, that is not re$istered with the =and Transportation Office, still does not %ind third persons who are a$$rie"ed in tortious incidents, for the latter need onl# to rel# on the pu%lic re$istration of a motor "ehicle as conclusi"e e"idence of ownership 0< A lease such as the one in"ol"ed in the instant case is an encum%rance in contemplation of law, which needs to %e re$istered in order for it to %ind third parties 0* ?nder this polic#, the e"il sou$ht to %e a"oided is the e&acer%ation of the sufferin$ of "ictims of tra$ic "ehicular accidents in not %ein$ a%le to identif# a $uilt# part# A contrar# rulin$ will not ser"e the ends of justice The failure to re$ister a lease, sale, transfer or encum%rance, should not %enefit the parties responsi%le, to the prejudice of innocent "ictims The non're$istration of the lease contract %etween petitioner and its lessee precludes the former from enjo#in$ the %enefits under Section *- of 4 A No /335 This rulin$ ma# appear too se"ere and unpalata%le to leasin$ and financin$ companies, %ut the Court %elie"es that petitioner and other companies so situated are not entirel# left without recourse The# ma# resort to third'part# complaints a$ainst their lessees or whoe"er are the actual operators of their "ehicles In the case at %ar, there is, in fact, a pro"ision in the lease contract %etween petitioner and S?GECO to the effect that the latter shall indemnif# and hold the former free and harmless from an# Jlia%ilities, dama$es, suits, claims or jud$mentsJ arisin$ from the latterTs use of the motor "ehicle 0- Bhether petitioner would act a$ainst S?GECO %ased on this pro"ision is its own option The %urden of re$istration of the lease contract is minuscule compared to the chaos that ma# result if re$istered owners or operators of "ehicles are freed from such responsi%ilit# !etitioner pa#s the price for its failure to o%e# the law on compulsor# re$istration of motor "ehicles for re$istration is a pre're1uisite for an# person to e"en enjo# the pri"ile$e of puttin$ a "ehicle on pu%lic roads ( EREFORE, the petition is DENIED The Decision dated Decem%er *-, -<<0 and 4esolution dated Fe%ruar# */, -<<2 of the Court of Appeals are AFFIR'ED Costs a$ainst petitioner SO ORDERED G.R. No. 12%86% J!nu!&y 28, 2000 JEFFRE2 LIANG F UEFENGG, petitioner, "s PEOPLE OF T E P ILIPPINES, respondent 2NARES4SANTIAGO, J.: !etitioner is an economist wor(in$ with the Asian De"elopment Can( 8ADC9 Sometime in *..2, for alle$edl# utterin$ defamator# words a$ainst fellow ADC wor(er :o#ce Ca%al, he was char$ed %efore the ;etropolitan Trial Court 8;eTC9 of ;andalu#on$ Cit# with two counts of $ra"e oral defamation doc(eted as Criminal Cases Nos 30*A< and 30*A* !etitioner was arrested %# "irtue of a warrant issued %# the ;eTC After fi&in$ petitionerTs %ail at !-,2<< << per criminal char$e, the ;eTC released him to the custod# of the Securit# Officer of ADC The ne&t da#, the ;eTC jud$e recei"ed an Joffice of protocolJ from the Department of Forei$n Affairs 8DFA9 statin$ that petitioner is co"ered %# immunit# from le$al process under Section 23 of the A$reement %etween the ADC and the !hilippine Go"ernment re$ardin$ the ,ead1uarters of the ADC 8hereinafter A$reement9 in the countr# Cased on the said protocol communication that petitioner is immune from suit, the ;eTC jud$e without notice to the

prosecution dismissed the two criminal cases The latter filed a motion for reconsideration which was opposed %# the DFA Bhen its motion was denied, the prosecution filed a petition for certiorari and mandamus with the 4e$ional Trial Court 84TC9 of !asi$ Cit# which set aside the ;eTC rulin$s and ordered the latter court to enforce the warrant of arrest it earlier issued After the motion for reconsideration was denied, petitioner ele"ated the case to this Court via a petition for re"iew ar$uin$ that he is co"ered %# immunit# under the A$reement and that no preliminar# in"esti$ation was held %efore the criminal cases were filed in court *Ywphi* nZt The petition is not impressed with merit First, courts cannot %lindl# adhere and ta(e on its face the communication from the DFA that petitioner is co"ered %# an# immunit# The DFATs determination that a certain person is co"ered %# immunit# is onl# preliminar# which has no %indin$ effect in courts In recei"in$ e)Gparte the DFATs ad"ice and in motu propio dismissin$ the two criminal cases without notice to the prosecution, the latterTs ri$ht to due process was "iolated It should %e noted that due process is a ri$ht of the accused as much as it is of the prosecution The needed in1uir# in what capacit# petitioner was actin$ at the time of the alle$ed utterances re1uires for its resolution e"identiar# %asis that has #et to %e presented at the proper time * At an# rate, it has %een ruled that the mere in"ocation of the immunit# clause does not ipso acto result in the droppin$ of the char$es Second, under Section 23 of the A$reement which pro"ides: Officers and staff of the Can( includin$ for the purpose of this Article e&perts and consultants performin$ missions for the Can( shall enjo# the followin$ pri"ile$es and immunities: a 9 immunit# from le$al process with respect to acts performed %# them in their official capacit# e&cept when the Can( wai"es the immunit# the immunit# mentioned therein is not a%solute, %ut su%ject to the e&ception that the acts was done in Jofficial capacit# J It is therefore necessar# to determine if petitionerTs case falls within the am%it of Section 238a9 Thus, the prosecution should ha"e %een $i"en the chance to re%ut the DFA protocol and it must %e accorded the opportunit# to present its contro"ertin$ e"idence, should it so desire T$ird, slanderin$ a person could not possi%l# %e co"ered %# the immunit# a$reement %ecause our laws do not allow the commission of a crime, such as defamation, in the name of official dut# 0 The imputation of theft is ultra vires and cannot %e part of official functions It is well' settled principle of law that a pu%lic official ma# %e lia%le in his personal pri"ate capacit# for whate"er dama$e he ma# ha"e caused %# his act done with malice or in %ad faith or %e#ond the scope of his authorit# or jurisdiction 2 It appears that e"en the $o"ernmentTs chief le$al counsel, the Solicitor General, does not support the stand ta(en %# petitioner and that of the DFA Fourt$, under the 6ienna Con"ention on Diplomatic 4elations, a diplomatic a$ent, assumin$ petitioner is such, enjo#s immunit# from criminal jurisdiction of the recei"in$ state e&cept in the case of an action relatin$ to an# professional or commercial acti"it# e&ercised %# the diplomatic a$ent in the recei"in$ state outside his official functions 3 As alread# mentioned a%o"e, the commission of a crime is not part of official dut# Finally, on the contention that there was no preliminar# in"esti$ation conducted, suffice it to sa# that preliminar# in"esti$ation is not a matter of ri$ht in cases co$ni7a%le %# the ;eTC such as the one at %ar 5 Cein$ purel# a statutor# ri$ht, preliminar# in"esti$ation ma# %e in"o(ed onl# when specificall# $ranted %# law A The rule on the criminal procedure is clear

that no preliminar# in"esti$ation is re1uired in cases fallin$ within the jurisdiction of the ;eTC / Cesides the a%sence of preliminar# in"esti$ation does not affect the courtTs jurisdiction nor does it impair the "alidit# of the information or otherwise render it defecti"e . B,E4EFO4E, the petition is DENIED SO O4DE4ED >G.R. No. 1)%-81. Se./e86e& 2-, 2000? PEOPLE OF T E P ILIPPINES, appellee, "s. 'ARIVI# GENOSA, appellant. RE S O L U T I O N PANGANI3AN, J.* It is a horn%oo( rule that an appeal in criminal cases opens the entire records to re"iew The Court ma# pass upon all rele"ant issues, includin$ those factual in nature and those that ma# not ha"e %een %rou$ht %efore the trial court This is true especiall# in cases in"ol"in$ the imposition of the death penalt#, in which the accused must %e allowed to a"ail themsel"es of all possi%le a"enues for their defense E"en no"el theories such as the J%attered woman s#ndrome,J which is alle$ed to %e e1ui"alent to self'defense, should %e heard, $i"en due consideration and ruled upon on the merits, not rejected merel# on technical or procedural $rounds Criminal con"iction must rest on proof of $uilt %e#ond reasona%le dou%t
T,e #!7e

For resolution %# the Court is an ?r$ent Omni%us ;otion filed %# Appellant ;ari"ic Genosa # Isidro in connection with the automatic re"iew of the Septem%er -3, *../ J:ud$mentJ)*+ of the 4e$ional Trial Court 84TC9 of Ormoc Cit#)-+ in Criminal Case No 3<*5'< The 4TC found her $uilt# of parricide a$$ra"ated %# treacher# and sentenced her to death In an Information)0+ dated No"em%er *2, *..5, !ro"incial !rosecutor I 4osario D Celeta char$ed appellant'mo"ant with parricide alle$edl# committed as follows: JThat on or a%out the *3th da# of No"em%er *..3, at Caran$a# Cilwan$, ;unicipalit# of Isa%el, !ro"ince of =e#te, !hilippines and within the jurisdiction of this ,onora%le Court, the a%o"e'named accused, with intent to (ill, with treacher# and e"ident premeditation, did then and there wilfull#, unlawfull# and feloniousl# attac(, assault, hit and wound one CEN GENOSA, her le$itimate hus%and, with the use of a hard deadl# weapon, which the accused had pro"ided herself for the purpose, )causin$+ the followin$ wounds, to wit: TCada"eric spasm TCod# on the -nd sta$e of decomposition TFace, %lac(, %lown) +up b swollen wM e"ident post' mortem li"idit# E#es protrudin$ from its soc(ets and ton$ue sli$htl# protrudes out of the mouth TFracture, open, depressed, circular located at the occipital %one of the head, resultin$ )in+ laceration of the %rain, spontaneous rupture of the %lood "essels on the posterior surface of the %rain, laceration of the dura and menin$eal "essels producin$ se"ere intracranial hemorrha$e TClisters at %oth e&trem)i+ties, anterior chest, posterior chest, trun( wM sheddin$ of the

epidermis TA%domen distended wM $as Trun( %loated T which caused his death J After arrai$nment and trial, the court a 'uo promul$ated its :ud$ment, the dispositi"e portion of which reads: JB,E4EFO4E, after all the fore$oin$ %ein$ dul# considered, the Court finds the accused, ;ari"ic Genosa # Isidro, G?I=TG %e#ond reasona%le dou%t of the crime of parricide as pro"ided under Article -25 of the 4e"ised !enal Code as restored %# Sec 3, 4A No A53., and after findin$ treacher# as a $eneric a$$ra"atin$ circumstance and none of miti$atin$ circumstance, here%# sentences the accused with the penalt# of DEAT, The Court li(ewise penali7es the accused to pa# the heirs of the deceased the sum of fift# thousand pesos 8!3<,<<< <<9, !hilippine currenc# as indemnit# and another sum of fift# thousand pesos 8!3<,<<< <<9, !hilippine currenc# as moral dama$es J
T,e An/e+e"en/7

!rior to the filin$ of her Appeal Crief, appellant su%mitted an ?r$ent Omni%us ;otion,)2+ to %rin$ Jto the attention of the & & & Court certain facts and circumstances which, if found "alid, could warrant the settin$ aside of )her+ con"iction and the imposition of the death penalt# J Appellant alle$es that the trial court $rie"ousl# erred in concludin$ that she had lied a%out the means she emplo#ed in (illin$ her hus%and On the contrar#, she had consistentl# claimed that she had shot her hus%and Get the trial jud$e simpl# ruled that the cause of his death was Jcardiopulmonar# arrest secondar# to se"ere intracranial hemorrha$e due to a depressed fracture of the occipital %one,J which resulted from her admitted act of Jsmashin$J him with a pipe Such conclusion was alle$edl# unsupported %# the e"idence on record, which %ore no forensic autops# report on the %od# of the "ictim Appellant further alle$es that despite the e"idence on record of repeated and se"ere %eatin$s she had suffered at the hands of her hus%and, the trial court failed to appreciate her self'defense theor# She claims that under the surroundin$ circumstances, her act of (illin$ her hus%and was e1ui"alent to self'defense Furthermore, she ar$ues that if she Jdid not lie a%out how she (illed her hus%and, then she did not lie a%out the a%use she suffered at his hands J She thus pra#s for the followin$ reliefs:)3+ J* The ,onora%le Court allow an e&humation of the %od# of the "ictim, Cen ; Genosa, and a re'e&amination of the cause of death - The ,onora%le Court su%mit accused'appellant for e&amination %# 1ualified ps#cholo$ists and ps#chiatrists of the Court to determine her state of mind at the time of the (illin$ of her spouse, Cen ; Genosa 0 Thereafter, the ,onora%le Court allow the reports of the ps#cholo$ists and ps#chiatrists to form part of the records of the case for purposes of the automatic re"iew or, in the alternati"e, to allow a partial re'openin$ of the case %efore a lower court in ;etro ;anila to admit the testimon# of said ps#cholo$ists and

ps#chiatrists J On Au$ust --, -<<<, the solicitor $eneral, on %ehalf of the State, filed his Comment, )5+ which su%stantiall# o%jected to the ;otion on the $round that appellant had not %een Jdepri"ed of her ri$ht to due process, su%stantial or procedural J
T,e I77ue7

In %rief, the issues for our resolution are 8*9 whether the %od# of the "ictim should %e e&humed and ree&amined in order to ascertain the cause of his death, and 8-9 whether the appellant should %e e&amined %# 1ualified ps#cholo$ists or ps#chiatrists in order to determine her state of mind at the time of the (illin$
T,e #ou&/J7 Ru:0n;

The Court $rants in part the ;otion of appellant Be remand the case to the 4TC for the reception of e"idence from 1ualified ps#cholo$ists or ps#chiatrists whom the parties ma# present to esta%lish her state of mind at the time of the (illin$
F0&7/ I77ue* 3o 3eed or a 4ee)amination o .ause o 5eath

Accused'appellant see(s the e&humation of the "ictimTs %od# to %e a%le to determine his e&act cause of death, assailin$ the court a 'uoTs conclusion that he was Jsmashed or %eaten at the %ac( of his headJ rather than shot, as claimed %# appellant Considerin$ that the appellant has admitted the fact of (illin$ her hus%and and the acts of hittin$ his nape with a metal pipe and of shootin$ him at the %ac( of his head, the Court %elie"es that e&humation is unnecessar#, if not immaterial, to determine K$ic$ o said acts actually caused t$e victimSs deat$ There is no need to e&hume the %od# at this time and conduct an autops# thereon for the purpose ;oreo"er, the matter of pro"in$ the cause of death should ha"e %een made %efore the trial court Time and a$ain, we ha"e said that this Court is not a trier of facts Neither will it authori7e the firsthand reception of e"idence, where the opportunit# to offer the same was a"aila%le to the part# durin$ the trial sta$e Consistent with this principle alone, the pra#er sou$ht %# appellant for the e&humation of the "ictimTs %od# cannot %e $ranted
Se+on" I77ue* The 3eed to 5etermine Appellant6s +tate o 7ind at the Time o the 8illing

In see(in$ to %e Je&amined and e"aluated %# ps#cholo$ists and ps#chiatrists to %rin$ into e"idence the a%use inflicted upon herH )and+ to determine whether such a%use will support the T%attered woman s#ndromeT,J the appellant %rin$s to the fore a no"el defense theor# Throu$h Counsel Qatrina =e$arda, she as(s the Court to Jre'e"aluate the traditional elementsJ used in determinin$ self'defense and to consider the J%attered woman s#ndromeJ as a "ia%le plea within the concept of self'defense Alle$edl#, there are four characteristics of the s#ndrome: 8*9 the woman %elie"es that the "iolence was her faultH 8-9 she has an ina%ilit# to place the responsi%ilit# for the "iolence elsewhereH 809 she fears for her life andMor her childrenTs li"esH and 829 she has an irrational %elief that the a%user is omnipresent and omniscient )A+ =i"in$ in constant dan$er of harm or

death, she (nows that future %eatin$s are almost certain to occur and will escalate o"er time ,er intimate (nowled$e of the "iolent nature of her %atterer ma(es her alert to when a particular attac( is forthcomin$, and when it will seriousl# threaten her sur"i"al Trapped in a c#cle of "iolence and constant fear, it is not unli(el# that she would succum% to her helplessness and fail to percei"e possi%le solutions to the pro%lem other than to injure or (ill her %atterer She is sei7ed %# fear of an e&istin$ or impendin$ lethal a$$ression and thus would ha"e no opportunit# %eforehand to deli%erate on her acts and to choose a less fatal means of eliminatin$ her sufferin$s Appellant further alle$es that the s#ndrome is alread# a reco$ni7ed form of self'defense in the ?nited States and in Europe In the ?S particularl#, it is classified as a post'traumatic stress disorder, rather than a form of mental illness )/+ It has %een held admissi%le in order to assess a defendantTs perception of the dan$er posed %# the a%user ).+ In "iew of the fore$oin$, Appellant Genosa pleads that she %e allowed to present e"idence to pro"e that her relationship with her spouse'"ictim had afflicted her with the s#ndrome Alle$edl#, an e&pert can e&plain how her e&periences as a %attered woman had affected her perception of dan$er and her honest %elief in its imminence, and wh# she had resorted to force a$ainst her %atterer The records of the case alread# %ear some e"idence on domestic "iolence %etween appellant and her deceased hus%and A defense witness, Dr Dino Cain$, testified that she had consulted him at least si& 859 times due to injuries related to domestic "iolence and twent#'three 8-09 times for se"ere h#pertension due to emotional stress )*<+ E"en the "ictimTs %rother and mother attested to the spousesT 1uarrels e"er# now and then The court a 1uo, howe"er, simplisticall# ruled that since "iolence had not immediatel# preceded the (illin$, self'defense could not %e appreciated Indeed, there is le$al and jurisprudential lacuna with respect to the so'called J%attered woman s#ndromeJ as a possi%le modif#in$ circumstance that could affect the criminal lia%ilit# or penalt# of the accused The discourse of appellant on the su%ject in her Omni%us ;otion has con"inced the Court that the s#ndrome deser"es serious consideration, especiall# in the li$ht of its possi%le effect on her "er# life It could %e that "er# thin line %etween death and life or e"en ac1uittal The Court cannot, for mere technical or procedural o%jections, den# appellant the opportunit# to offer this defense, for an# criminal con"iction must %e %ased on proof of $uilt beyond reasonable doubt Accused persons facin$ the possi%ilit# of the death penalt# must %e $i"en fair opportunities to proffer all defenses possi%le that could sa"e them from capital punishment In People v. Para*o,)**+ after final con"iction of appellant therein, this Court $ranted his ?r$ent Omni%us ;otion and allowed him to under$o mental, neurolo$ic and otolar#n$olo$ic e&amination and e"aluation to determine whether he was a deaf'mute Cased on findin$s that he reall# was deaf and mute, #et unaided durin$ the trial %# an e&pert witness who could professionall# understand and interpret his actions and mutterin$s, the Court $ranted him re'arrai$nment and retrial It justified its action on the principle that Jonl# upon proof of $uilt %e#ond reasona%le dou%t ma# )the accused+ %e consi$ned to the lethal injection cham%er J ;ore recentl# in People v. Estrada,)*-+ we li(ewise nullified the trial proceedin$s and remanded the case Jto the court a 'uo for a conduct of a proper mental e&amination on accused'appellant, a determination of his competenc# to stand trial, and for further

proceedin$s J In that case, the defense counsel had mo"ed to suspend the arrai$nment of the accused, who could not properl# and intelli$entl# enter a plea %ecause of his mental defect, and to confine him instead in a ps#chiatric ward Cut the trial court denied the ;otion, after simpl# propoundin$ 1uestions to the accused and determinin$ for itself that he could understand and answer them Jintelli$entl# J After trial, he was con"icted of murder a$$ra"ated %# cruelt# and thus sentenced to death In nullif#in$ the trial proceedin$s, this Court noted:)*0+ JThe trial court too( it solel# upon itself to determine the sanit# of accused'appellant The trial jud$e is not a ps#chiatrist or ps#cholo$ist or some other e&pert e1uipped with the speciali7ed (nowled$e of determinin$ the state of a personTs mental health To determine the accused'appellantTs competenc# to stand trial, the court, in the instant case, should ha"e at least ordered the e&amination of accused'appellant, especiall# in the li$ht of the latterTs histor# of mental illness J It was held that in den#in$ appellant an e&amination %# a competent medical e&pert, the trial court practicall# denied him a fair trial prior to con"iction, in "iolation of his constitutional ri$hts ;oreo"er, proof of insanit# could ha"e e&empted appellant from criminal lia%ilit# If the accused had not performed the act "oluntaril#, then he could not ha"e %een criminall# lia%le The Court, throu$h ;r :ustice 4e#nato S !uno, emphasi7ed: JThe %asic principle in our criminal law is that a person is criminall# lia%le for a felon# committed %# him ?nder the classical theor# on which our penal code is mainl# %ased, the %asis of criminal lia%ilit# is human free will ;an is essentiall# a moral creature with an a%solutel# free will to choose %etween $ood and e"il Bhen he commits a felonious or criminal act 8delito doloso9, the act is presumed to ha"e %een done "oluntaril#, i.e., with freedom, intelli$ence and intent ;an, therefore, should %e adjud$ed or held accounta%le for wron$ful acts so lon$ as free will appears unimpaired J)*2+ In the instant case, it is e1uall# important to determine whether Appellant Genosa had acted freel#, intelli$entl# and "oluntaril# when she (illed her spouse The Court, howe"er, cannot properl# e"aluate her %attered'woman's#ndrome defense, a%sent e&pert testimon# on her mental and emotional state at the time of the (illin$ and the possi%le ps#cholo$ical cause and effect of her fatal act ?nli(e in Para*o, we cannot simpl# refer her for proper ps#cholo$ical or ps#chiatric e&amination and thereafter admit the findin$s and e"aluation as part of the records of the cases for purposes of automatic re"iew The prosecution has li(ewise the ri$ht to a fair trial, which includes the opportunit# to cross'e&amine the defense witnesses and to refute the e&pert opinion $i"en Thus, consistent with the principle of due process, a partial reopenin$ of the case is apropos, so as to allow the defense the opportunit# to present e&pert e"idence consistent with our fore$oin$ dis1uisition, as well as the prosecution the opportunit# to cross e&amine and refute the same ( EREFORE, the ?r$ent Omni%us ;otion of Appellant ;ari"ic Genosa is PAET/M HEACTED. The case is here%# EENACDED to the trial court for the reception of e&pert ps#cholo$ical andMor ps#chiatric opinion on the J%attered woman s#ndromeJ plea, within ninet# 8.<9 da#s from notice, and, thereafter to forthwith report to this Court the proceedin$s ta(en, to$ether with the copies of the TSN and rele"ant documentar# e"idence, if an#, su%mitted SO ORDERED.

G.R. No. 1)%-81

J!nu!&y 1%, 200$

PEOPLE OF T E P ILIPPINES, appellee, "s 'ARIVI# GENOSA, appellant DECISION PANGANI3AN, J.* Admittin$ she (illed her hus%and, appellant anchors her pra#er for ac1uittal on a no"el theor# '' the J%attered woman s#ndromeJ 8CBS9, which alle$edl# constitutes self'defense ?nder the pro"en facts, howe"er, she is not entitled to complete e&oneration %ecause there was no unlawful a$$ression '' no immediate and une&pected attac( on her %# her %atterer'hus%and at the time she shot him A%sent unlawful a$$ression, there can %e no self'defense, complete or incomplete Cut all is not lost The se"ere %eatin$s repeatedl# inflicted on appellant constituted a form of cumulati"e pro"ocation that %ro(e down her ps#cholo$ical resistance and self'control This Jps#cholo$ical paral#sisJ she suffered diminished her will power, there%# entitlin$ her to the miti$atin$ factor under para$raphs . and *< of Article *0 of the 4e"ised !enal Code In addition, appellant should also %e credited with the e&tenuatin$ circumstance of ha"in$ acted upon an impulse so powerful as to ha"e naturall# produced passion and o%fuscation The acute %atterin$ she suffered that fatal ni$ht in the hands of her %atterer'spouse, in spite of the fact that she was ei$ht months pre$nant with their child, o"erwhelmed her and put her in the aforesaid emotional and mental state, which o"ercame her reason and impelled her to "indicate her life and her un%orn childTs Considerin$ the presence of these two miti$atin$ circumstances arisin$ from CBS, as well as the %enefits of the Indeterminate Sentence =aw, she ma# now appl# for and %e released from custod# on parole, %ecause she has alread# ser"ed the minimum period of her penalt# while under detention durin$ the pendenc# of this case T,e #!7e For automatic re"iew %efore this Court is the Septem%er -3, *../ Decision* of the 4e$ional Trial Court 84TC9 of Ormoc Cit# 8Cranch 039 in Criminal Case No 3<*5'<, findin$ ;ari"ic Genosa $uilt# %e#ond reasona%le dou%t of parricide The decretal portion of the Decision reads: JB,E4EFO4E, after all the fore$oin$ %ein$ dul# considered, the Court finds the accused, ;ari"ic Genosa # Isidro, G?I=TG %e#ond reasona%le dou%t of the crime of !arricide as pro"ided under Article -25 of the 4e"ised !enal Code as restored %# Sec 3, 4A No A53., and after findin$ treacher# as a $eneric a$$ra"atin$ circumstance and none of miti$atin$ circumstance, here%# sentences the accused with the penalt# of DEAT, JThe Court li(ewise penali7es the accused to pa# the heirs of the deceased the sum of fift# thousand pesos 8!3<,<<< <<9, !hilippine currenc# as indemnit# and another sum of fift# thousand pesos 8!3<,<<< <<9, !hilippine currenc# as moral dama$es JThe Information0 char$ed appellant with parricide as follows: JThat on or a%out the *3th da# of No"em%er *..3, at Caran$a# Cilwan$, ;unicipalit# of

Isa%el, !ro"ince of =e#te, !hilippines and within the jurisdiction of this ,onora%le Court, the a%o"e'named accused, with intent to (ill, with treacher# and e"ident premeditation, did then and there wilfull#, unlawfull# and feloniousl# attac(, assault, hit and wound one CEN GENOSA, her le$itimate hus%and, with the use of a hard deadl# weapon, which the accused had pro"ided herself for the purpose, )causin$+ the followin$ wounds, to wit: TCada"eric spasm TCod# on the -nd sta$e of decomposition TFace, %lac(, %lownup b swollen wM e"ident post'mortem li"idit# E#es protrudin$ from its soc(ets and ton$ue sli$htl# protrudes out of the mouth TFracture, open, depressed, circular located at the occipital %one of the head, resultin$ )in+ laceration of the %rain, spontaneous rupture of the %lood "essels on the posterior surface of the %rain, laceration of the dura and menin$eal "essels producin$ se"ere intracranial hemorrha$e TClisters at %oth e&trem)i+ties, anterior chest, posterior chest, trun( wM sheddin$ of the epidermis TA%domen distended wM $as Trun( %loated T which caused his death J2 Bith the assistance of her counsel,3 appellant pleaded not $uilt# durin$ her arrai$nment on ;arch 0, *..A 5 In due course, she was tried for and con"icted of parricide T,e F!+/7 9ersion o the :rosecution The Office of the Solicitor General 8OSG9 summari7es the prosecutionTs "ersion of the facts in this wise: JAppellant and Cen Genosa were united in marria$e on No"em%er *., *./0 in Ormoc Cit# Thereafter, the# li"ed with the parents of Cen in their house at Isa%el, =e#te For a time, CenTs #oun$er %rother, Ale&, and his wife li"ed with them too Sometime in *..3, howe"er, appellant and Cen rented from Ste%an ;ati$a a house at Caran$a# Cilwan$, Isa%el, =e#te where the# li"ed with their two children, namel#: :ohn ;ar%en and Earl !ierre JOn No"em%er *3, *..3, Cen and Arturo Caso%as went to a coc(fi$ht after recei"in$ their salar# The# each had two 8-9 %ottles of %eer %efore headin$ home Arturo would pass CenTs house %efore reachin$ his Bhen the# arri"ed at the house of Cen, he found out that appellant had $one to Isa%el, =e#te to loo( for him Cen went inside his house, while Arturo went to a store across it, waitin$ until .:<< in the e"enin$ for the masiaorunner to place a %et Arturo did not see appellant arri"e %ut on his wa# home passin$ the side of the GenosasT rented house, he heard her sa# TI wonTt hesitate to (ill #ouT to which Cen replied TBh# (ill me when I am innocentNT That was the last time Arturo saw Cen ali"e Arturo also noticed that since then, the GenosasT rented house appeared uninha%ited and was alwa#s closed JOn No"em%er *5, *..3, appellant as(ed Erlinda !adero$, her close friend and nei$h%or li"in$ a%out fift# 83<9 meters from her house, to loo( after her pi$ %ecause she was $oin$ to Ce%u for a pre$nanc# chec('up Appellant li(ewise as(ed Erlinda to sell her motorc#cle to their nei$h%or 4onnie Da#anda#an who unfortunatel# had no mone# to %u# it

JThat same da#, a%out *-:*3 in the afternoon, :oseph 6alida was waitin$ for a %us $oin$ to Ormoc when he saw appellant $oin$ out of their house with her two (ids in tow, each one carr#in$ a %a$, loc(in$ the $ate and ta(in$ her children to the waitin$ area where he was :oseph li"ed a%out fift# 83<9 meters %ehind the GenosasT rented house :oseph, appellant and her children rode the same %us to Ormoc The# had no con"ersation as :oseph noticed that appellant did not want to tal( to him JOn No"em%er */, *..3, the nei$h%ors of Ste%an ;ati$a told him a%out the foul odor emanatin$ from his house %ein$ rented %# Cen and appellant Ste%an went there to find out the cause of the stench %ut the house was loc(ed from the inside Since he did not ha"e a duplicate (e# with him, Ste%an destro#ed the $ate padloc( with a %orrowed steel saw ,e was a%le to $et inside throu$h the (itchen door %ut onl# after destro#in$ a window to reach a hoo( that loc(ed it Alone, Ste%an went inside the unloc(ed %edroom where the offensi"e smell was comin$ from There, he saw the lifeless %od# of Cen l#in$ on his side on the %ed co"ered with a %lan(et ,e was onl# in his %riefs with injuries at the %ac( of his head Seein$ this, Ste%an went out of the house and sent word to the mother of Cen a%out his sonTs misfortune =ater that da#, Iluminada Genosa, the mother of Cen, identified the dead %od# as that of )her+ son J;eanwhile, in the mornin$ of the same da#, S!O0 =eo Acodesin, then assi$ned at the police station at Isa%el, =e#te, recei"ed a report re$ardin$ the foul smell at the GenosasT rented house To$ether with S!O* ;illares, S!O* Colon, and Dr 4efelina Cerillo, S!O0 Acodesin proceeded to the house and went inside the %edroom where the# found the dead %od# of Cen l#in$ on his side wrapped with a %edsheet There was %lood at the nape of Cen who onl# had his %riefs on S!O0 Acodesin found in one corner at the side of anaparador a metal pipe a%out two 8-9 meters from where Cen was, leanin$ a$ainst a wall The metal pipe measured three 809 feet and si& 859 inches lon$ with a diameter of one and half 8* *M-9 inches It had an open end without a stop "al"e with a red stain at one end The %edroom was not in disarra# JA%out *<:<< that same mornin$, the cada"er of Cen, %ecause of its stench, had to %e ta(en outside at the %ac( of the house %efore the postmortem e&amination was conducted %# Dr Cerillo in the presence of the police A municipal health officer at Isa%el, =e#te responsi%le for medico'le$al cases, Dr Cerillo found that Cen had %een dead for two to three da#s and his %od# was alread# decomposin$ The postmortem e&amination of Dr Cerillo #ielded the findin$s 1uoted in the Information for parricide later filed a$ainst appellant She concluded that the cause of CenTs death was Tcardiopulmonar# arrest secondar# to se"ere intracranial hemorrha$e due to a depressed fracture of the occipital )%one+ T JA..e::!n/ !"80//e" A0::0n; 3en She testified that $oin$ home after wor( on No"em%er *3, *..3, she $ot worried that her hus%and who was not home #et mi$ht ha"e $one $am%lin$ since it was a pa#da# Bith her cousin Ecel Ara^o, appellant went to loo( for Cen at the mar(etplace and ta"erns at Isa%el, =e#te %ut did not find him there The# found Cen drun( upon their return at the GenosasT house Ecel went home despite appellantTs re1uest for her to sleep in their house JThen, Cen purportedl# na$$ed appellant for followin$ him, e"en challen$in$ her to a fi$ht She alle$edl# i$nored him and instead attended to their children who were doin$ their homewor( Apparentl# disappointed with her reaction, Cen switched off the li$ht and, with the use of a choppin$ (nife, cut the tele"ision antenna or wire to (eep her from watchin$ tele"ision Accordin$ to appellant, Cen was a%out to attac( her so she ran to the %edroom, %ut he $ot hold of her hands and whirled her around She fell on the side of the %ed and screamed for help Cen left At this point, appellant

pac(ed $is clothes %ecause she wanted him to lea"e Seein$ his pac(ed clothes upon his return home, Cen alle$edl# flew into a ra$e, dra$$ed appellant outside of the %edroom towards a drawer holdin$ her %# the nec(, and told her TGou mi$ht as well %e (illed so no%od# would na$ me T Appellant testified that she was aware that there was a $un inside the drawer %ut since Cen did not ha"e the (e# to it, he $ot a three'inch lon$ %lade cutter from his wallet She howe"er, TsmashedT the arm of Cen with a pipe, causin$ him to drop the %lade and his wallet Appellant then TsmashedT Cen at his nape with the pipe as he was a%out to pic( up the %lade and his wallet She thereafter ran inside the %edroom JAppellant, howe"er, insisted that she ended the life of her hus%and %# shootin$ him She supposedl# TdistortedT the drawer where the $un was and shot Cen ,e did not die on the spot, thou$h, %ut in the %edroom JA 8Citations omitted9 9ersion o the 5e ense Appellant relates her "ersion of the facts in this manner: J* ;ari"ic and Cen Genosa were alle$edl# married on No"em%er *., *./0 !rior to her marria$e, ;ari"ic had $raduated from San Carlos, Ce%u Cit#, o%tainin$ a de$ree of Cachelor of Science in Cusiness Administration, and was wor(in$, at the time of her hus%andTs death, as a Secretar# to the !ort ;ana$ers in Ormoc Cit# The couple had three 809 children: :ohn ;ar%en, Earl !ierre and ;arie Cianca J- ;ari"ic and Cen had (nown each other since elementar# schoolH the# were nei$h%ors in Cilwan$H the# were classmatesH and the# were third de$ree cousins Coth sets of parents were a$ainst their relationship, %ut Cen was persistent and tried to stop other suitors from courtin$ her Their closeness de"eloped as he was her constant partner at fiestas J0 After their marria$e, the# li"ed first in the home of CenTs parents, to$ether with CenTs %rother, Ale&, in Isa%el, =e#te In the first #ear of marria$e, ;ari"ic and Cen Tli"ed happil#T Cut apparentl#, soon thereafter, the couple would 1uarrel often and their fi$hts would %ecome "iolent J2 CenTs %rother, Ale&, testified for the prosecution that he could not remem%er when Cen and ;ari"ic married ,e said that when Cen and ;ari"ic 1uarreled, $enerall# when Cen would come home drun(, ;ari"ic would inflict injuries on him ,e said that in one incident in *..0 he saw ;ari"ic holdin$ a (itchen (nife after Cen had shouted for help as his left hand was co"ered with %lood ;ari"ic left the house %ut after a wee(, she returned apparentl# ha"in$ as(ed for CenTs for$i"eness In another incident in ;a# --, *..2, earl# mornin$, Ale& and his father apparentl# rushed to CenTs aid a$ain and saw %lood from CenTs forehead and ;ari"ic holdin$ an empt# %ottle Cen and ;ari"ic reconciled after ;ari"ic had apparentl# a$ain as(ed for CenTs for$i"eness J;rs Iluminada Genosa, ;ari"icTs mother'in'law, testified too, sa#in$ that Cen and ;ari"ic married in T*./5 or *./3 more or less here in Fatima, Ormoc Cit# T She said as the marria$e went alon$, ;ari"ic %ecame Talread# "er# demandin$ ;rs Iluminada Genosa said that after the %irth of ;ari"icTs two sons, there were Tthree 809 misunderstandin$s T The first was when ;ari"ic sta%%ed Cen with a ta%le (nife throu$h his left armH the second incident was on No"em%er *3, *..2, when ;ari"ic struc( Cen on the forehead Tusin$ a sharp instrument until the e#e was also affected It was wounded and also the earT and her hus%and went to Cen to helpH and the third incident was in *..3 when the couple had alread# transferred to the house in Cilwan$ and she saw that CenTs hand was plastered as Tthe %one crac(ed T

JCoth mother and son claimed the# %rou$ht Cen to a !asar clinic for medical inter"ention J3 Arturo Caso%as, a co'wor(er of Cen, testified that on No"em%er *3, *..3 TAfter we collected our salar#, we went to the coc('fi$htin$ place of ISCO T The# sta#ed there for three 809 hours, after which the# went to T?nilo(sT and dran( %eer U alle$edl# onl# two 8-9 %ottles each After drin(in$ the# %ou$ht %ar%e1ue and went to the Genosa residence ;ari"ic was not there ,e sta#ed a while tal(in$ with Cen, after which he went across the road to wait Tfor the runner and the usher of the masiao $ame %ecause durin$ that time, the hearin$ on masiao num%ers was rampant I was waitin$ for the ushers and runners so that I can place m# %et T On his wa# home at a%out .:<< in the e"enin$, he heard the Genosas ar$uin$ The# were 1uarrelin$ loudl# Outside their house was one TFredoT who is used %# Cen to feed his fi$htin$ coc(s Caso%asT testimon# on the root of the 1uarrel, con"enientl# o"erheard %# him was ;ari"ic sa#in$ TI will ne"er hesitate to (ill #ouT, whilst Cen replied TBh# (ill me when I am innocent T Caso%as thou$ht the# were jo(in$ J,e did not hear them 1uarrelin$ while he was across the road from the Genosa residence Caso%as admitted that he and Cen were alwa#s at the coc(pits e"er# Saturda# and Sunda# ,e claims that he once told Cen T%efore when he was stric(en with a %ottle %# ;ari"ic GenosaT that he should lea"e her and that Cen would alwa#s ta(e her %ac( after she would lea"e him Tso man# timesT JCaso%as could not remem%er when ;ari"ic had hit Cen, %ut it was a lon$ time that the# had %een 1uarrelin$ ,e said Cen Te"en had a woundT on the ri$ht forehead ,e had (nown the couple for onl# one 8*9 #ear J5 ;ari"ic testified that after the first #ear of marria$e, Cen %ecame cruel to her and was a ha%itual drin(er She said he pro"o(ed her, he would slap her, sometimes he would pin her down on the %ed, and sometimes %eat her JThese incidents happened se"eral times and she would often run home to her parents, %ut Cen would follow her and see( her out, promisin$ to chan$e and would as( for her for$i"eness She said after she would %e %eaten, she would see( medical help from Dr Dino Cain$, Dr =ucero and Dra Cerillo These doctors would enter the injuries inflicted upon her %# Cen into their reports ;ari"ic said Cen would %eat her or 1uarrel with her e"er# time he was drun(, at least three times a wee( JA In her defense, witnesses who were not so closel# related to ;ari"ic, testified as to the a%use and "iolence she recei"ed at the hands of Cen TA * ;r :oe Carrientos, a fisherman, who was a )nei$h%or+ of the Genosas, testified that on No"em%er *3, *..3, he o"erheard a 1uarrel %etween Cen and ;ari"ic ;ari"ic was shoutin$ for help and throu$h the open jalousies, he saw the spouses T$rapplin$ with each otherT Cen had ;ari"ic in a cho(e hold ,e did not do an#thin$, %ut had come "oluntaril# to testif# 8Please note t$is Kas t$e same ni($t as t$at testi ied to by Arturo +usabos /9 TA - ;r :unnie Carrientos, also a fisherman, and the %rother of ;r :oe Carrientos, testified that he heard his nei$h%or ;ari"ic shoutin$ on the ni$ht of No"em%er *3, *..3 ,e peeped throu$h the window of his hut which is located %eside the Genosa house and saw Tthe spouses $rapplin$ with each other then Cen Genosa was holdin$ with his %oth hands the nec( of the accused, ;ari"ic GenosaT ,e said after a while, ;ari"ic was a%le to e&tricate he)r+self and enter the room of the children After that, he went %ac( to wor( as he was to $o fishin$ that e"enin$ ,e returned at /:<< the ne&t mornin$ 8A(ain! please note t$at t$is Kas t$e same ni($t as t$at testi ied to by Arturo

+asobas9 TA 0 ;r Teodoro Sara%ia was a former nei$h%or of the Genosas while the# were li"in$ in Isa%el, =e#te ,is house was located a%out fift# 83<9 meters from theirs ;ari"ic is his niece and he (new them to %e li"in$ to$ether for *0 or *2 #ears ,e said the couple was alwa#s 1uarrelin$ ;ari"ic confided in him that Cen would pawn items and then would use the mone# to $am%le One time, he went to their house and the# were 1uarrelin$ Cen was so an$r#, %ut would %e pacified Tif some%od# would come T ,e testified that while Cen was ali"e The used to $am%le and when he %ecame drun(, he would $o to our house and he will sa#, TTeod#T %ecause that was what he used to call me, Tmo(imas ta,T which means TletTs $o and loo( for a whore T ;r Sara%ia further testified that Cen Twould %o& his wife and I would see %ruises and one time she ran to me, I noticed a wound 8the witness pointed to his ri$ht %reast9 as accordin$ to her a (nife was stric(en to her T ;r Sara%ia also said that once he saw Cen had %een injured too ,e said he "oluntaril# testified onl# that mornin$ TA 2 ;iss Ecel Arano, an */'#ear old student, who is a cousin of ;ari"ic, testified that in the afternoon of No"em%er *3, *..3, ;ari"ic went to her house and as(ed her help to loo( for Cen The# searched in the mar(et place, se"eral ta"erns and some other places, %ut could not find him She accompanied ;ari"ic home ;ari"ic wanted her to sleep with her in the Genosa house T%ecause she mi$ht %e %attered %# her hus%and T Bhen the# $ot to the Genosa house at a%out A:<< in the e"enin$, ;iss Arano said that Ther hus%and was alread# there and was drun( T ;iss Arano (new he was drun( T%ecause of his sta$$erin$ wal(in$ and I can also detect his face T ;ari"ic entered the house and she heard them 1uarrel noisil# 8A$ain, please note that this is the same ni$ht as that testified to %# Arturo Caso%as9 ;iss Arano testified that this was not the first time ;ari"ic had as(ed her to sleep in the house as ;ari"ic would %e afraid e"er# time her hus%and would come home drun( At one time when she did sleep o"er, she was awa(ened at *<:<< in the e"enin$ when Cen arri"ed %ecause the couple Twere "er# nois# in the sala and I had heard somethin$ was %ro(en li(e a "ase T She said ;ari"ic ran into her room and the# loc(ed the door Bhen Cen couldnTt $et in he $ot a chair and a (nife and Tshowed us the (nife throu$h the window $rill and he scared us T She said that ;ari"ic shouted for help, %ut no one came On cross'e&amination, she said that when she left ;ari"icTs house on No"em%er *3, *..3, the couple were still 1uarrelin$ TA 3 Dr Dino Cain$, a ph#sician testified that he and ;ari"ic were co'emplo#ees at !,I=!,OS, Isa%el, =e#te ;ari"ic was his patient Tman# timesT and had also recei"ed treatment from other doctors Dr Cain$ testified that from :ul# 5, *./. until No"em%er ., *..3, there were si& 859 episodes of ph#sical injuries inflicted upon ;ari"ic These injuries were reported in his Out'!atient Chart at the !,I=!,OS ,ospital The prosecution admitted the 1ualifications of Dr Cain$ and considered him an e&pert witness T &&& &&& &&& TDr Cain$Ts clinical histor# of the tension headache and h#pertention of ;ari"ic on twent#'three 8-09 separate occasions was mar(ed at E&hi%its T-T and T-'C T The O!D Chart of ;ari"ic at the !hilphos Clinic which reflected all the consultations made %# ;ari"ic and the si& 859 incidents of ph#sical injuries reportedwas mar(ed as E&hi%it T0 T JOn cross'e&amination, Dr Cain$ said that he is not a ps#chiatrist, he could not sa# whether the injuries were directl# related to the crime committed ,e said it is onl# a ps#chiatrist who is 1ualified to e&amine the ps#cholo$ical ma(e'up of the patient,

Twhether she is capa%le of committin$ a crime or not T TA 5 ;r !anfilo Tero, the %aran$a# captain in the place where the Genosas resided, testified that a%out two 8-9 months %efore Cen died, ;ari"ic went to his office past /:<< in the e"enin$ She sou$ht his help to settle or confront the Genosa couple who were e&periencin$ Tfamil# trou%lesT ,e told ;ari"ic to return in the mornin$, %ut he did not hear from her a$ain and assumed Tthat the# mi$ht ha"e settled with each other or the# mi$ht ha"e for$i"en with each other T &&& &&& &&& J;ari"ic said she did not pro"o(e her hus%and when she $ot home that ni$ht it was her hus%and who %e$an the pro"ocation ;ari"ic said she was fri$htened that her hus%and would hurt her and she wanted to ma(e sure she would deli"er her %a%# safel# In fact, ;ari"ic had to %e admitted later at the 4i7al ;edical Centre as she was sufferin$ from eclampsia and h#pertension, and the %a%# was %orn prematurel# on Decem%er *, *..3 J;ari"ic testified that durin$ her marria$e she had tried to lea"e her hus%and at least fi"e 839 times, %ut that Cen would alwa#s follow her and the# would reconcile ;ari"ic said that the reason wh# Cen was "iolent and a%usi"e towards her that ni$ht was %ecause The was cra7# a%out his recent $irlfriend, =ulu & & & 4u%illos T JOn cross'e&amination, ;ari"ic insisted she shot Cen with a $unH she said that he died in the %edroomH that their 1uarrels could %e heard %# an#one passin$ their houseH that Caso%as lied in his testimon#H that she left for ;anila the ne&t da#, No"em%er *5, *..3H that she did not %other an#one in ;anila, rented herself a room, and $ot herself a jo% as a field researcher under the alias T;ar"elous IsidroTH she did not tell an#one that she was lea"in$ =e#te, she just wanted to ha"e a safe deli"er# of her %a%#H and that she was arrested in San !a%lo, =a$una TAnswerin$ 1uestions from the Court, ;ari"ic said that she threw the $un awa#H that she did not (now what happened to the pipe she used to Tsmash him onceTH that she was wounded %# Cen on her wrist with the %oloH and that two 8-9 hours after she was TwhirledT %# Cen, he (ic(ed her TassT and dra$$ed her towards the drawer when he saw that she had pac(ed his thin$s T J. The %od# of Cen Genosa was found on No"em%er */, *..3 after an in"esti$ation was made of the foul odor emittin$ from the Genosa residence This fact was testified to %# all the prosecution witnesses and some defense witnesses durin$ the trial J*< Dra 4efelina G Cerillo, a ph#sician, was the ;unicipal ,ealth Officer of Isa%el, =e#te at the time of the incident, and amon$ her responsi%ilities as such was to ta(e char$e of all medico'le$al cases, such as the e&amination of cada"ers and the autops# of cada"ers Dra Cerillo is not a forensic patholo$ist She merel# too( the medical %oard e&ams and passed in *./5 She was called %# the police to $o to the Genosa residence and when she $ot there, she saw Tsome police officer and nei$h%or around T She saw Cen Genosa, co"ered %# a %lan(et, l#in$ in a semi'prone position with his %ac( to the door ,e was wearin$ onl# a %rief &&&&&&&&& JDra Cerillo said that Tthere is onl# one injur# and that is the injur# in"ol"in$ the s(eletal area of the headT which she descri%ed as a TfractureT And that %ased on her e&amination, Cen had %een dead - or 0 da#s Dra Cerillo did not testif# as to what caused his death JDra Cerillo was not cross'e&amined %# defense counsel

J** The Information, dated No"em%er *2, *..5, filed a$ainst ;ari"ic Genosa char$ed her with the crime of !A44ICIDE committed Twith intent to (ill, with treacher# and e"idence premeditation, & & & wilfull#, unlawfull# and feloniousl# attac(, assault, hit and wound & & & her le$itimate hus%and, with the use of a hard deadl# weapon & & & which caused his death T J*- Trial too( place on A and *2 April *..A, *2 ;a# *..A, -* :ul# *..A, *A, -- and -0 Septem%er *..A, *- No"em%er *..A, *3 and *5 Decem%er *..A, -- ;a# *../, and 3 and 5 Au$ust *../ J*0 On -0 Septem%er *../, or onl# fift# 83<9 da#s from the da# of the last trial date, the ,on Fortunito = ;adrona, !residin$ :ud$e, 4TC'Cranch 03, Ormoc Cit#, rendered a :?DG;ENT findin$ ;ari"ic $uilt# T%e#ond reasona%le dou%tT of the crime of parricide, and further found treacher# as an a$$ra"atin$ circumstance, thus sentencin$ her to the ultimate penalt# of DEAT, J*2 The case was ele"ated to this ,onora%le Court upon automatic re"iew and, under date of -2 :anuar# -<<<, ;ari"icTs trial law#er, Att# Gil ;ar"el ! Ta%ucanon, filed a ;otion to Bithdraw as counsel, attachin$ thereto, as a precautionar# measure, two 8-9 drafts of AppellantTs Criefs he had prepared for ;ari"ic which, for reasons of her own, were not conformed to %# her JThe ,onora%le Court allowed the withdrawal of Att# Ta%ucanon and permitted the entr# of appearance of undersi$ned counsel J*3 Bithout the (nowled$e of counsel, ;ari"ic Genosa wrote a letter dated -< :anuar# -<<<, to the Chief :ustice, coursin$ the same throu$h Att# Teresita G Dimaisip, Deput# Cler( of Court of Chief :udicial 4ecords Office, wherein she su%mitted her TCrief without counselsT to the Court JThis letter was stamp'recei"ed %# the ,onora%le Court on 2 Fe%ruar# -<<< J*5 In the meantime, under date of *A Fe%ruar# -<<<, and stamp'recei"ed %# the ,onora%le Court on *. Fe%ruar# -<<<, undersi$ned counsel filed an ?4GENT O;NIC?S ;OTION pra#in$ that the ,onora%le Court allow the e&humation of Cen Genosa and the re'e&amination of the cause of his deathH allow the e&amination of ;ari"ic Genosa %# 1ualified ps#cholo$ists and ps#chiatrists to determine her state of mind at the time she (illed her hus%andH and finall#, to allow a partial re'openin$ of the case a 'uo to ta(e the testimon# of said ps#cholo$ists and ps#chiatrists JAttached to the ?4GENT O;NIC?S ;OTION was a letter of Dr 4a1uel Fortun, then the onl# 1ualified forensic patholo$ist in the countr#, who opined that the description of the death wound 8as culled from the post'mortem findin$s, E&hi%it TAT9 is more a(in to a $unshot wound than a %eatin$ with a lead pipe J*A In a 4ESO=?TION dated -. Septem%er -<<<, the ,onora%le Court partl# $ranted ;ari"icTs ?4GENT O;NIC?S ;OTION and remanded the case Tto the trial court for the reception of e&pert ps#cholo$ical andMor ps#chiatric opinion on the T%attered woman s#ndromeT plea, within ninet# 8.<9 da#s from notice, and, thereafter to forthwith report to this Court the proceedin$s ta(en, to$ether with the copies of the TSN and rele"ant documentar# e"idence, if an#, su%mitted T J*/ On *3 :anuar# -<<*, Dra Nati"idad A Da#an appeared and testified %efore the ,on Fortunito = ;adrona, 4TC'Cranch 03, Ormoc Cit# JImmediatel# %efore Dra Da#an was sworn, the Court a 'uo as(ed if she had inter"iewed ;ari"ic Genosa Dra Da#an informed the Court that inter"iews were done

at the !enal Institution in *..., %ut that the clinical inter"iews and ps#cholo$ical assessment were done at her clinic JDra Da#an testified that she has %een a clinical ps#cholo$ist for twent# 8-<9 #ears with her own pri"ate clinic and connected presentl# to the De =a Salle ?ni"ersit# as a professor Cefore this, she was the ,ead of the !s#cholo$# Department of the Assumption Colle$eH a mem%er of the facult# of !s#cholo$# at the Ateneo de ;anila ?ni"ersit# and St :osephTs Colle$eH and was the counselin$ ps#cholo$ist of the National Defense Colle$e She has an AC in !s#cholo$# from the ?ni"ersit# of the !hilippines, a ;aster of Arts in Clinical )Counselin$+, !s#cholo$# from the Ateneo, and a !hD from the ? ! She was the past president of the !s#cholo$ical Association of the !hilippines and is a mem%er of the American !s#cholo$ical Association She is the secretar# of the International Council of !s#cholo$ists from a%out 5/ countriesH a mem%er of the Forensic !s#cholo$# AssociationH and a mem%er of the ASEAN )Counselin$+ Association She is acti"el# in"ol"ed with the !hilippine :udicial Academ#, recentl# lecturin$ on the socio'demo$raphic and ps#cholo$ical profile of families in"ol"ed in domestic "iolence and nullit# cases She was with the Da"ide Commission doin$ research a%out ;ilitar# !s#cholo$# She has written a %oo( entitled TEner$# Glo%al !s#cholo$#T 8to$ether with Drs Allan Tan and Allan Cernardo9 The Genosa case is the first time she has testified as an e&pert on %attered women as this is the first case of that nature JDra Da#an testified that for the research she conducted, on the socio'demo$raphic and ps#cholo$ical profile of families in"ol"ed in domestic "iolence, and nullit# cases, she loo(ed at a%out 3<< cases o"er a period of ten 8*<9 #ears and disco"ered that Tthere are lots of "aria%les that cause all of this marital conflicts, from domestic "iolence to infidelit#, to ps#chiatric disorder T JDra Da#an descri%ed domestic "iolence to comprise of Ta lot of incidents of ps#cholo$ical a%use, "er%al a%use, and emotional a%use to ph#sical a%use and also se&ual a%use T &&& &&& &&& JDra Da#an testified that in her studies, Tthe %attered woman usuall# has a "er# low opinion of herself She has a self'defeatin$ and self'sacrificin$ characteristics & & & the# usuall# thin( "er# lowl# of themsel"es and so when the "iolence would happen, the# usuall# thin( that the# pro"o(e it, that the# were the one who precipitated the "iolence, the# pro"o(e their spouse to %e ph#sicall#, "er%all# and e"en se&uall# a%usi"e to them T Dra Da#an said that usuall# a %attered & & & comes from a d#sfunctional famil# or from T%ro(en homes T JDra Da#an said that the %atterer, just li(e the %attered woman, Talso has a "er# low opinion of himself Cut then emer$es to ha"e superiorit# comple& and it comes out as %ein$ "er# arro$ant, "er# hostile, "er# a$$ressi"e and "er# an$r# The# also had 8sic9 a "er# low tolerance for frustrations A lot of times the# are in"ol"ed in "ices li(e $am%lin$, drin(in$ and dru$s And the# %ecome "iolent T The %atterer also usuall# comes from a d#sfunctional famil# which o"er'pampers them and ma(es them feel entitled to do an#thin$ Also, the# see often how their parents a%used each other so Tthere is a lot of modelin$ of a$$ression in the famil# T JDra Da#an testified that there are a lot of reasons wh# a %attered woman does not lea"e her hus%and: po"ert#, self'%lame and $uilt that she pro"o(ed the "iolence, the c#cle itself which ma(es her hope her hus%and will chan$e, the %elief in her o%li$ations to (eep the famil# intact at all costs for the sa(e of the children

&&&

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JDra Da#an said that a%used wi"es react differentl# to the "iolence: some lea"e the house, or loc( themsel"es in another room, or sometimes tr# to fi$ht %ac( tri$$erin$ Tph#sical "iolence on %oth of them T She said that in a Tnormal marital relationship,T a%uses also happen, %ut these are Tnot consistent, not chronic, are not happenin$ da# in )and+ da# out T In an Ta%normal marital relationship,T the a%use occurs da# in and da# out, is lon$ lastin$ and Te"en would cause hospitali7ation on the "ictim and e"en death on the "ictim T &&& &&& &&& JDra Da#an said that as a result of the %atter# of ps#cholo$ical tests she administered, it was her opinion that ;ari"ic fits the profile of a %attered woman %ecause Tinspite of her feelin$ of self'confidence which we can see at times there are reall# feelin$ 8sic9 of loss, such feelin$s of humiliation which she sees herself as dama$ed and as a %ro(en person And at the same time she still has the imprint of all the a%uses that she had e&perienced in the past T &&& &&& &&& JDra Da#an said ;ari"ic thou$ht of herself as a lo"in$ wife and did not e"en consider filin$ for nullit# or le$al separation inspite of the a%uses It was at the time of the tra$ed# that ;ari"ic then thou$ht of herself as a "ictim &&& &&& &&& J*. On . Fe%ruar# -<<*, Dr Alfredo !ajarillo, a ph#sician, who has since passed awa#, appeared and testified %efore 4TC'Cranch 03, Ormoc Cit# JDr !ajarillo was a Diplomate of the !hilippine Coard of !s#chiatr#H a Fellow of the !hilippine Coard of !s#chiatr# and a Fellow of the !hilippine !s#chiatr# Association ,e was in the practice of ps#chiatr# for thirt#'ei$ht 80/9 #ears !rior to %ein$ in pri"ate practice, he was connected with the 6eterans ;emorial ;edical Centre where he $ained his trainin$ on ps#chiatr# and neurolo$# After that, he was called to acti"e dut# in the Armed Forces of the !hilippines, assi$ned to the 6 =una ;edical Center for twent# si& 8-59 #ears !rior to his retirement from $o"ernment ser"ice, he o%tained the ran( of Cri$adier General ,e o%tained his medical de$ree from the ?ni"ersit# of Santo Tomas ,e was also a mem%er of the Borld Association of ;ilitar# Sur$eonsH the Due7on Cit# ;edical Societ#H the Ca$a#an ;edical Societ#H and the !hilippine Association of ;ilitar# Sur$eons J,e authored TThe Comparati"e Anal#sis of Ner"ous Crea(down in the !hilippine ;ilitar# Academ# from the !eriod *.32 U *.A/T which was presented twice in international con$resses ,e also authored TThe ;ental ,ealth of the Armed Forces of the !hilippines -<<<T, which was li(ewise pu%lished internationall# and locall# ,e had a medical te&t%oo( pu%lished on the use of !rasepam on a !ar(e'Da"is $rantH was the first to use Enanthate 8si1uiline9, on an E 4 S1ui%% $rantH and he pu%lished the use of the dru$ Xopiclom in *./3'/5 JDr !ajarillo e&plained that ps#chiatr# deals with the functional disorder of the mind and neurolo$# deals with the ailment of the %rain and spinal cord enlar$ed !s#cholo$#, on the other hand, is a %achelor de$ree and a doctorate de$reeH while one has to finish medicine to %ecome a specialist in ps#chiatr# JE"en onl# in his Ath #ear as a resident in 6 =una ;edical Centre, Dr !ajarillo had alread# encountered a suit in"ol"in$ "iolent famil# relations, and testified in a case in

*.52 In the Armed Forces of the !hilippines, "iolent famil# disputes a%ound, and he has seen pro%a%l# ten to twent# thousand cases In those da#s, the primordial intention of therap# was reconciliation As a result of his e&perience with domestic "iolence cases, he %ecame a consultant of the Cattered Boman Office in Due7on Cit# under Att# Nenita Depro7a JAs such consultant, he had seen around fort# 82<9 cases of se"ere domestic "iolence, where there is ph#sical a%use: such as slappin$, pushin$, "er%al a%use, %atterin$ and %o&in$ a woman e"en to an unconscious state such that the woman is sometimes confined The affliction of !ost'Traumatic Stress Disorder Tdepends on the "ulnera%ilit# of the "ictim T Dr !ajarillo said that if the "ictim is not "er# health#, perhaps one episode of "iolence ma# induce the disorderH if the ps#cholo$ical stamina and ph#siolo$ic constitutional stamina of the "ictim is stron$er, Tit will ta(e more repetiti"e trauma to precipitate the post'traumatic stress disorder and this & & & is "er# dan$erous T JIn ps#chiatr#, the post'traumatic stress disorder is incorporated under the Tan&iet# neurosis or neurolo$ic an&cietism T It is produced %# To"erwhelmin$ %rutalit#, trauma T &&& &&& &&& JDr !ajarillo e&plained that with Tneurotic an&iet#T, the "ictim reli"es the %eatin$ or trauma as if it were real, althou$h she is not actuall# %ein$ %eaten at that time She thin(s Tof nothin$ %ut the sufferin$ T &&& &&& &&& JA woman who suffers %atter# has a tendenc# to %ecome neurotic, her emotional tone is unsta%le, and she is irrita%le and restless She tends to %ecome hard'headed and persistent She has hi$her sensiti"it# and her Tself'worldT is dama$ed JDr !ajarillo said that an a%normal famil# %ac($round relates to an indi"idualTs illness, such as the depri"ation of the continuous care and lo"e of the parents As to the %atterer, he normall# Tinternali7es what is around him within the en"ironment T And it %ecomes his own personalit# ,e is "er# competiti"eH he is aimin$ hi$h all the timeH he is so machoH he shows his stron$ faeade T%ut in it there are dou%ts in himself and prone to act without thin(in$ T &&& &&& &&& JDr !ajarillo emphasi7ed that Te"en thou$h without the presence of the precipator 8sic9 or the one who administered the %atterin$, that re'e&periencin$ of the trauma occurred 8sic9 %ecause the indi"idual cannot control it It will just come up in her mind or in his mind T &&& &&& &&& JDr !ajarillo said that a woman sufferin$ post traumatic stress disorder tr# to defend themsel"es, and Tprimaril# with (ni"es ?suall# pointed weapons or an# weapon that is a"aila%le in the immediate surroundin$ or in a hospital & & & %ecause that a%ound in the household T ,e said a "ictim resorts to weapons when she has Treached the lowest roc( %ottom of her life and there is no other recourse left on her %ut to act decisi"el# T &&& &&& &&& JDr !ajarillo testified that he met ;ari"ic Genosa in his office in an inter"iew he conducted for two 8-9 hours and se"enteen 8*A9 minutes ,e used the ps#cholo$ical e"aluation and social case studies as a help in formin$ his dia$nosis ,e came out with

a !s#chiatric 4eport, dated -- :anuar# -<<* &&& &&& &&& JOn cross'e&amination %# the pri"ate prosecutor, Dr !ajarillo said that at the time she (illed her hus%and ;ari"icTc mental condition was that she was Tre'e&periencin$ the trauma T ,e said Tthat we are tr#in$ to e&plain scientificall# that the re'e&periencin$ of the trauma is not controlled %# ;ari"ic It will just come in flashes and pro%a%l# at that point in time that thin$s happened when the re'e&periencin$ of the trauma flashed in her mind T At the time he inter"iewed ;ari"ic Tshe was more su%dued, she was not super alert an#more & & & she is mentall# stress 8sic9 %ecause of the predicament she is in"ol"ed T &&& &&& &&& J-< No re%uttal e"idence or testimon# was presented %# either the pri"ate or the pu%lic prosecutor Thus, in accord with the 4esolution of this ,onora%le Court, the records of the partiall# re'opened trial a 'uo were ele"ated J. Ru:0n; o= /,e T&0!: #ou&/ Findin$ the proffered theor# of self'defense untena%le, the 4TC $a"e credence to the prosecution e"idence that appellant had (illed the deceased while he was in %ed sleepin$ Further, the trial court appreciated the $eneric a$$ra"atin$ circumstance of treacher#, %ecause Cen Genosa was supposedl# defenseless when he was (illed '' l#in$ in %ed asleep when ;ari"ic smashed him with a pipe at the %ac( of his head The capital penalt# ha"in$ %een imposed, the case was ele"ated to this Court for automatic re"iew +uper"ening .ircumstances On Fe%ruar# *., -<<<, appellant filed an ?r$ent Omni%us ;otion pra#in$ that this Court allow 8*9 the e&humation of Cen Genosa and the ree&amination of the cause of his deathH 8-9 the e&amination of appellant %# 1ualified ps#cholo$ists and ps#chiatrists to determine her state of mind at the time she had (illed her spouseH and 809 the inclusion of the said e&pertsT reports in the records of the case for purposes of the automatic re"iew or, in the alternati"e, a partial reopenin$ of the case for the lower court to admit the e&pertsT testimonies On Septem%er -., -<<<, this Court issued a 4esolution $rantin$ in part appellantTs ;otion, remandin$ the case to the trial court for the reception of e&pert ps#cholo$ical andMor ps#chiatric opinion on the J%attered woman s#ndromeJ pleaH and re1uirin$ the lower court to report thereafter to this Court the proceedin$s ta(en as well as to su%mit copies of the TSN and additional e"idence, if an# Actin$ on the CourtTs 4esolution, the trial jud$e authori7ed the e&amination of ;ari"ic %# two clinical ps#cholo$ists, Drs Nati"idad Da#an*< and Alfredo !ajarillo,** supposedl# e&perts on domestic "iolence Their testimonies, alon$ with their documentar# e"idence, were then presented to and admitted %# the lower court %efore finall# %ein$ su%mitted to this Court to form part of the records of the case *T,e I77ue7 Appellant assi$ns the followin$ alle$ed errors of the trial court for this CourtTs consideration: J* The trial court $ra"el# erred in promul$atin$ an o%"iousl# hast# decision without reflectin$ on the e"idence adduced as to self'defense J- The trial court $ra"el# erred in findin$ as a fact that Cen and ;ari"ic Genosa were le$all# married and that she was therefore lia%le for parricide

J0 The trial court $ra"el# erred findin$ the cause of death to %e %# %eatin$ with a pipe J2 The trial court $ra"el# erred in i$norin$ and disre$ardin$ e"idence adduced from impartial and un%iased witnesses that Cen Genosa was a drun(, a $am%ler, a womani7er and wife'%eaterH and further $ra"el# erred in concludin$ that Cen Genosa was a %attered hus%and J3 The trial court $ra"el# erred in not re1uirin$ testimon# from the children of ;ari"ic Genosa J5 The trial court $ra"el# erred in concludin$ that ;ari"icTs fli$ht to ;anila and her su%se1uent apolo$ies were indicia of $uilt, instead of a clear attempt to sa"e the life of her un%orn child JA The trial court $ra"el# erred in concludin$ that there was an a$$ra"atin$ circumstance of treacher# J/ The trial court $ra"el# erred in refusin$ to re'e"aluate the traditional elements in determinin$ the e&istence of self'defense and defense of foetus in this case, there%# erroneousl# con"ictin$ ;ari"ic Genosa of the crime of parricide and condemnin$ her to the ultimate penalt# of death J*0 In the main, the followin$ are the essential le$al issues: 8*9 whether appellant acted in self' defense and in defense of her fetusH and 8-9 whether treacher# attended the (illin$ of Cen Genosa T,e #ou&/J7 Ru:0n; The appeal is partl# meritorious #o::!/e&!: F!+/u!: I77ue7 The first si& assi$ned errors raised %# appellant are factual in nature, if not collateral to the resolution of the principal issues As consistentl# held %# this Court, the findin$s of the trial court on the credi%ilit# of witnesses and their testimonies are entitled to a hi$h de$ree of respect and will not %e distur%ed on appeal in the a%sence of an# showin$ that the trial jud$e $ra"el# a%used his discretion or o"erloo(ed, misunderstood or misapplied material facts or circumstances of wei$ht and su%stance that could affect the outcome of the case *2 In appellantTs first si& assi$ned items, we find no $ra"e a%use of discretion, re"ersi%le error or misappreciation of material facts that would re"erse or modif# the trial courtTs disposition of the case In an# e"ent, we will now %riefl# dispose of these alle$ed errors of the trial court First, we do not a$ree that the lower court promul$ated Jan o%"iousl# hast# decision without reflectin$ on the e"idence adduced as to self'defense J Be note that in his *A'pa$e Decision, :ud$e Fortunito = ;adrona summari7ed the testimonies of %oth the prosecution and the defense witnesses and '' on the %asis of those and of the documentar# e"idence on record '' made his e"aluation, findin$s and conclusions ,e wrote a 0'pa$e discourse assessin$ the testimon# and the self'defense theor# of the accused Bhile she, or e"en this Court, ma# not a$ree with the trial jud$eTs conclusions, we cannot peremptoril# conclude, a%sent su%stantial e"idence, that he failed to re lect on the e"idence presented Neither do we find the appealed Decision to ha"e %een made in an Jo%"iousl# hast#J manner The Information had %een filed with the lower court on No"em%er *2, *..5 Thereafter, trial %e$an and at least *0 hearin$s were held for o"er a #ear It too( the trial jud$e a%out two months from the conclusion of trial to promul$ate his jud$ment That he conducted the trial and resol"ed the case with dispatch should not %e ta(en a$ainst him, much less used to condemn him for %ein$ undul# hast# If at all, the dispatch with which he handled the case

should %e lauded In an# case, we find his actions in su%stantial compliance with his constitutional o%li$ation *3 Second, the lower court did not err in findin$ as a fact that Cen Genosa and appellant had %een le$all# married, despite the non'presentation of their marria$e contract In People v. Nalaba(o!*5 this Court held: JThe (e# element in parricide is the relationship of the offender with the "ictim In the case of parricide of a spouse, the %est proof of the relationship %etween the accused and the deceased is the marria$e certificate In the a%sence of a marria$e certificate, howe"er, oral e"idence of the fact of marria$e ma# %e considered %# the trial court if such proof is not o%jected to J Two of the prosecution witnesses '' namel#, the mother and the %rother of appellantTs deceased spouse '' attested in court that Cen had %een married to ;ari"ic *A The defense raised no o%jection to these testimonies ;oreo"er, durin$ her direct e&amination, appellant herself made a judicial admission of her marria$e to Cen */A&iomatic is the rule that a judicial admission is conclusi"e upon the part# ma(in$ it, e&cept onl# when there is a showin$ that 8*9 the admission was made throu$h a palpa%le mista(e, or 8-9 no admission was in fact made *.Other than merel# attac(in$ the non'presentation of the marria$e contract, the defense offered no proof that the admission made %# appellant in court as to the fact of her marria$e to the deceased was made throu$h a palpa%le mista(e T$ird, under the circumstances of this case, the specific or direct cause of CenTs death '' whether %# a $unshot or %# %eatin$ with a pipe '' has no le$al conse1uence As the Court elucidated in its Septem%er -., -<<< 4esolution, J)c+onsiderin$ that the appellant has admitted the fact of (illin$ her hus%and and the acts of hittin$ his nape with a metal pipe and of shootin$ him at the %ac( of his head, the Court %elie"es that e&humation is unnecessar#, if not immaterial, to determine K$ic$ o said acts actually caused t$e victimSs deat$ J Determinin$ which of these admitted acts caused the death is not dispositi"e of the $uilt or defense of appellant Fourt$, we cannot fault the trial court for not full# appreciatin$ e"idence that Cen was a drun(, $am%ler, womani7er and wife'%eater ?ntil this case came to us for automatic re"iew, appellant had not raised the no"el defense of J%attered woman s#ndrome,J for which such e"idence ma# ha"e %een rele"ant ,er theor# of self'defense was then the crucial issue %efore the trial court As will %e discussed shortl#, the le$al re1uisites of self'defense under pre"ailin$ jurisprudence ostensi%l# appear inconsistent with the surroundin$ facts that led to the death of the "ictim ,ence, his personal character, especiall# his past %eha"ior, did not constitute "ital e"idence at the time Fi t$, the trial court surel# committed no error in not re1uirin$ testimon# from appellantTs children As correctl# elucidated %# the solicitor $eneral, all criminal actions are prosecuted under the direction and control of the pu%lic prosecutor, in whom lies the discretion to determine which witnesses and e"idence are necessar# to present -< As the former further points out, neither the trial court nor the prosecution pre"ented appellant from presentin$ her children as witnesses Thus, she cannot now fault the lower court for not re1uirin$ them to testif# Finally, merel# collateral or corro%orati"e is the matter of whether the fli$ht of ;ari"ic to ;anila and her su%se1uent apolo$ies to her %rother'in'law are indicia of her $uilt or are attempts to sa"e the life of her un%orn child An# re"ersi%le error as to the trial courtTs appreciation of these circumstances has little %earin$ on the final resolution of the case F0&7/ Le;!: I77ue*

+el ;5e ense and 5e ense o a (etus Appellant admits (illin$ Cen Genosa %ut, to a"oid criminal lia%ilit#, in"o(es self'defense andMor defense of her un%orn child Bhen the accused admits (illin$ the "ictim, it is incum%ent upon her to pro"e an# claimed justif#in$ circumstance %# clear and con"incin$ e"idence -* Bell'settled is the rule that in criminal cases, self'defense 8and similarl#, defense of a stran$er or third person9 shifts the %urden of proof from the prosecution to the defense -The <attered *oman +yndrome In claimin$ self'defense, appellant raises the no"el theor# of the %attered woman s#ndrome Bhile new in !hilippine jurisprudence, the concept has %een reco$ni7ed in forei$n jurisdictions as a form of self'defense or, at the least, incomplete self'defense -0 C# appreciatin$ e"idence that a "ictim or defendant is afflicted with the s#ndrome, forei$n courts con"e# their Junderstandin$ of the justifia%l# fearful state of mind of a person who has %een c#clicall# a%used and controlled o"er a period of time J-2 A %attered woman has %een defined as a woman Jwho is repeatedl# su%jected to an# forceful ph#sical or ps#cholo$ical %eha"ior %# a man in order to coerce her to do somethin$ he wants her to do without concern for her ri$hts Cattered women include wi"es or women in an# form of intimate relationship with men Furthermore, in order to %e classified as a %attered woman, the couple must $o throu$h the %atterin$ c#cle at least twice An# woman ma# find herself in an a%usi"e relationship with a man once If it occurs a second time, and she remains in the situation, she is defined as a %attered woman J-3 Cattered women e&hi%it common personalit# traits, such as low self'esteem, traditional %eliefs a%out the home, the famil# and the female se& roleH emotional dependence upon the dominant maleH the tendenc# to accept responsi%ilit# for the %attererTs actionsH and false hopes that the relationship will impro"e -5 ;ore $raphicall#, the %attered woman s#ndrome is characteri7ed %# the so'called Jc#cle of "iolence,J-A which has three phases: 8*9 the tension'%uildin$ phaseH 8-9 the acute %atterin$ incidentH and 809 the tran1uil, lo"in$ 8or, at least, non"iolent9 phase -/ Durin$ the /en70on46u0:"0n; .,!7e, minor %atterin$ occurs '' it could %e "er%al or sli$ht ph#sical a%use or another form of hostile %eha"ior The woman usuall# tries to pacif# the %atterer throu$h a show of (ind, nurturin$ %eha"iorH or %# simpl# sta#in$ out of his wa# Bhat actuall# happens is that she allows herself to %e a%used in wa#s that, to her, are comparati"el# minor All she wants is to pre"ent the escalation of the "iolence e&hi%ited %# the %atterer This wish, howe"er, pro"es to %e dou%le'ed$ed, %ecause her Jplacator#J and passi"e %eha"ior le$itimi7es his %elief that he has the ri$ht to a%use her in the first place ,owe"er, the techni1ues adopted %# the woman in her effort to placate him are not usuall# successful, and the "er%al andMor ph#sical a%use worsens Each partner senses the imminent loss of control and the $rowin$ tension and despair E&hausted from the persistent stress, the %attered woman soon withdraws emotionall# Cut the more she %ecomes emotionall# una"aila%le, the more the %atterer %ecomes an$r#, oppressi"e and a%usi"e Often, at some unpredicta%le point, the "iolence Jspirals out of controlJ and leads to an acute %atterin$ incident -. The !+u/e 6!//e&0n; 0n+0"en/ is said to %e characteri7ed %# %rutalit#, destructi"eness and, sometimes, death The %attered woman deems this incident as unpredicta%le, #et also ine"ita%le Durin$ this phase, she has no controlH onl# the %atterer ma# put an end to the "iolence Its nature can %e as unpredicta%le as the time of its e&plosion, and so are his reasons for endin$ it The %attered woman usuall# reali7es that she cannot reason with him,

and that resistance would onl# e&acer%ate her condition At this sta$e, she has a sense of detachment from the attac( and the terri%le pain, althou$h she ma# later clearl# remem%er e"er# detail ,er apparent passi"it# in the face of acute "iolence ma# %e rationali7ed thus: the %atterer is almost alwa#s much stron$er ph#sicall#, and she (nows from her past painful e&perience that it is futile to fi$ht %ac( Acute %atterin$ incidents are often "er# sa"a$e and out of control, such that innocent %#standers or inter"enors are li(el# to $et hurt 0< The final phase of the c#cle of "iolence %e$ins when the acute %atterin$ incident ends Durin$ this /&!nKu0: .e&0o", the couple e&perience profound relief On the one hand, the %atterer ma# show a tender and nurturin$ %eha"ior towards his partner ,e (nows that he has %een "iciousl# cruel and tries to ma(e up for it, %e$$in$ for her for$i"eness and promisin$ ne"er to %eat her a$ain On the other hand, the %attered woman also tries to con"ince herself that the %atter# will ne"er happen a$ainH that her partner will chan$e for the %etterH and that this J$ood, $entle and carin$ manJ is the real person whom she lo"es A %attered woman usuall# %elie"es that she is the sole anchor of the emotional sta%ilit# of the %atterer Sensin$ his isolation and despair, she feels responsi%le for his well'%ein$ The truth, thou$h, is that the chances of his reformin$, or see(in$ or recei"in$ professional help, are "er# slim, especiall# if she remains with him Generall#, onl# after she lea"es him does he see( professional help as a wa# of $ettin$ her %ac( Get, it is in this phase of remorseful reconciliation that she is most thorou$hl# tormented ps#cholo$icall# The illusion of a%solute interdependenc# is well'entrenched in a %attered womanTs ps#che In this phase, she and her %atterer are indeed emotionall# dependent on each other '' she for his nurturant %eha"ior, he for her for$i"eness ?nderneath this misera%le c#cle of Jtension, "iolence and for$i"eness,J each partner ma# %elie"e that it is %etter to die than to %e separated Neither one ma# reall# feel independent, capa%le of functionin$ without the other 0* =istory o Abuse in the :resent .ase To show the histor# of "iolence inflicted upon appellant, the defense presented se"eral witnesses She herself descri%ed her heart'rendin$ e&perience as follows: JATTG TAC?CANON D ,ow did #ou descri%e #our marria$e with Cen GenosaN A In the first #ear, I li"ed with him happil# %ut in the su%se1uent #ear he was cruel to me and a %eha"ior of ha%itual drin(er D Gou said that in the su%se1uent #ear of #our marria$e, #our hus%and was a%usi"e to #ou and cruel In what wa# was this a%usi"e and cruelt# manifested to #ouN A ,e alwa#s pro"o(e me in e"er#thin$, he alwa#s slap me and sometimes he pinned me down on the %ed and sometimes %eat me D ,ow man# times did this happenN A Se"eral times alread# D Bhat did #ou do when these thin$s happen to #ouN A I went awa# to m# mother and I ran to m# father and we separate each other D Bhat was the action of Cen Genosa towards #ou lea"in$ homeN A ,e is followin$ me, after that he sou$ht after me

D Bhat will happen when he follow #ouN A ,e said he chan$ed, he as(ed for for$i"eness and I was con"inced and after that I $o to him and he said Tsorr#T D Durin$ those times that #ou were the recipient of such cruelt# and a%usi"e %eha"ior %# #our hus%and, were #ou a%le to see a doctorN A Ges, sir D Bho are these doctorsN A The compan# ph#sician, Dr Dino Cain$, Dr =ucero and Dra Cerillo &&& A Ges, sir D Bho inflicted these injuriesN A Of course m# hus%and D Gou mean Cen GenosaN A Ges, sir &&& &&& &&& )Court+ Mto the witness D ,ow fre1uent was the alle$ed cruelt# that #ou saidN A E"er#time he $ot drun( D No, from the time that #ou said the cruelt# or the infliction of injur# inflicted on #our occurred, after #our marria$e, from that time on, how fre1uent was the occurrenceN A E"er#time he $ot drun( D Is it dail#, wee(l#, monthl# or how man# times in a month or in a wee(N A Three times a wee( D Do #ou mean three times a wee( he would %eat #ouN A Not necessaril# that he would %eat me %ut sometimes he will just 1uarrel me J 04eferrin$ to his JOut'!atient ChartJ00 on ;ari"ic Genosa at the !hilphos ,ospital, Dr Dino D Cain$ %olstered her fore$oin$ testimon# on chronic %atter# in this manner: JD So, do #ou ha"e a summar# of those si& 859 incidents which are found in the chart of #our clinicN A Ges, sir D Bho prepared the list of si& 859 incidents, DoctorN A I did D Bill #ou please read the ph#sical findin$s to$ether with the dates for the record A * ;a# *-, *..< ' ph#sical findin$s are as follows: ,ematoma 849 lower e#elid and redness of e#e Attendin$ ph#sician: Dr =uceroH - ;arch *<, *..- ' Contusion',ematoma 8=9 lower ar%ital area, pain and contusion 849 %reast Attendin$ ph#sician: Dr CanoraH &&& &&& D Gou said that #ou saw a doctor in relation to #our injuriesN

0 ;arch -5, *..0 ' A%rasion, Furuncle 8=9 A&illaH 2 Au$ust *, *..2 ' !ain, mastitis 8=9 %reast, -o to trauma Attendin$ ph#sician: Dr Cain$H 3 April *A, *..3 ' Trauma, tenderness 849 Shoulder Attendin$ ph#sician: Dr CanoraH and 5 :une 3, *..3 ' Swellin$ A%rasion 8=9 le$, multiple contusion !re$nanc# Attendin$ ph#sician: Dr Canora D Amon$ the findin$s, there were two 8-9 incidents wherein #ou were the attendin$ ph#sician, is that correctN A Ges, sir D Did #ou actuall# ph#sical e&amine the accusedN A Ges, sir D Now, $oin$ to #our findin$ no 0 where #ou were the one who attended the patient Bhat do #ou mean %# a%rasion furuncle left a&illaN A A%rasion is a s(in wound usuall# when it comes in contact with somethin$ rou$h su%stance if force is applied D Bhat is meant %# furuncle a&illaN A It is secondar# of the li$ht infection o"er the a%rasion D Bhat is meant %# pain mastitis secondar# to traumaN A So, in this 2th episode of ph#sical injuries there is an inflammation of left %reast So, )pain+ meanin$ there is tenderness Bhen #our %reast is traumati7ed, there is tenderness pain D So, these are o%jecti"e ph#sical injuries DoctorN &&& A Ges, sir D Bhat did she tell #ouN A As a doctor'patient relationship, we need to (now the cause of these injuries And she told me that it was done to her %# her hus%and D Gou mean, Cen GenosaN A Ges, sir &&& &&& &&& ATTG TAC?CANON: D C# the wa# Doctor, were #ou a%le to ph#sical e&amine the accused sometime in the month of No"em%er, *..3 when this incident happenedN A As per record, #es D Bhat was the dateN A It was on No"em%er 5, *..3 D So, did #ou actuall# see the accused ph#sicall#N &&& &&& D Bere #ou a%le to tal( with the patientN

A Ges, sir D On No"em%er 5, *..3, will #ou please tell this ,onora%le Court, was the patient pre$nantN A Ges, sir D Cein$ a doctor, can #ou more en$a$e at what sta$e of pre$nanc# was sheN A Ei$ht 8/9 months pre$nant D So in other words, it was an ad"ance sta$e of pre$nanc#N A Ges, sir D Bhat was #our No"em%er 5, *..3 e&amination, was it an e&amination a%out her pre$nanc# or for some other findin$sN A No, she was admitted for h#pertension headache which complicates her pre$nanc# D Bhen #ou said admitted, meanin$ she was confinedN A Ges, sir D For how man# da#sN A One da# D BhereN A At !,I=!,OS ,ospital &&& &&& &&& D =ets $o %ac( to the clinical histor# of ;ari"ic Genosa Gou said that #ou were a%le to e&amine her personall# on No"em%er 5, *..3 and she was / months pre$nant Bhat is this all a%outN A Cecause she has this pro%lem of tension headache secondar# to h#pertension and I thin( I ha"e a record here, also the same period from *./. to *..3, she had a consultation for twent#'three 8-09 times D For whatN A Tension headache D Can we sa# that speciall# durin$ the latter consultation, that the patient had h#pertensionN A The patient definitel# had h#pertension It was refractor# to our treatment She does not response when the medication was $i"en to her, %ecause tension headache is more or less stress related and emotional in nature D Bhat did #ou deduce of tension headache when #ou said is emotional in natureN A From what I deduced as part of our ph#sical e&amination of the patient is the famil# histor# in line of $i"in$ the root cause of what is causin$ this disease So, from the moment #ou as( to the patient all comes from the domestic pro%lem D Gou mean pro%lem in her householdN A !ro%a%l# D Can famil# trou%le cause ele"ation of %lood pressure, DoctorN A Ges, if it is emotionall# related and stressful it can cause increases in h#pertension

which is unfortunatel# does not response to the medication D In No"em%er 5, *..3, the date of the incident, did #ou ta(e the %lood pressure of the accusedN A On No"em%er 5, *..3 consultation, the %lood pressure was */<M*-< D Is this considered h#pertensionN A Ges, sir, se"ere D Considerin$ that she was / months pre$nant, #ou mean this is dan$erous le"el of %lood pressureN A It was dan$erous to the child or to the fetus J 02 Another defense witness, Teodoro Sara%ia, a former nei$h%or of the Genosas in Isa%el, =e#te, testified that he had seen the couple 1uarrelin$ se"eral timesH and that on some occasions ;ari"ic would run to him with %ruises, confidin$ that the injuries were inflicted upon her %# Cen 03 Ecel Arano also testified05 that for a num%er of times she had %een as(ed %# ;ari"ic to sleep at the Genosa house, %ecause the latter feared that Cen would come home drun( and hurt her On one occasion that Ecel did sleep o"er, she was awa(ened a%out ten oTcloc( at ni$ht, %ecause the couple Jwere "er# nois# S and I heard somethin$ was %ro(en li(e a "ase J Then ;ari"ic came runnin$ into EcelTs room and loc(ed the door Cen showed up %# the window $rill atop a chair, scarin$ them with a (nife On the afternoon of No"em%er *3, *..3, ;ari"ic a$ain as(ed her help '' this time to find Cen '' %ut the# were una%le to The# returned to the Genosa home, where the# found him alread# drun( A$ain afraid that he mi$ht hurt her, ;ari"ic as(ed her to sleep at their house Seein$ his state of drun(enness, Ecel hesitatedH and when she heard the couple start ar$uin$, she decided to lea"e On that same ni$ht that culminated in the death of Cen Genosa, at least three other witnesses saw or heard the couple 1uarrelin$ 0A ;ari"ic relates in detail the followin$ %ac(drop of the fateful ni$ht when life was snuffed out of him, showin$ in the process a "i"id picture of his cruelt# towards her: JATTG TAC?CANON: D !lease tell this Court, can #ou recall the incident in No"em%er *3, *..3 in the e"enin$N A Bhole mornin$ and in the afternoon, I was in the office wor(in$ then after office hours, I %oarded the ser"ice %us and went to Cilwan$ Bhen I reached Cilwan$, I immediatel# as(ed m# son, where was his father, then m# second child said, The was not home #etT I was worried %ecause that was pa#da#, I was anticipatin$ that he was $am%lin$ So while waitin$ for him, m# eldest son arri"ed from school, I prepared dinner for m# children D This is e"enin$ of No"em%er *3, *..3N A Ges, sir D Bhat time did Cen Genosa arri"eN A Bhen he arri"ed, I was not there, I was in Isa%el loo(in$ for him D So when he arri"ed #ou were in Isa%el loo(in$ for himN A Ges, sir

D Did #ou come %ac( to #our houseN A Ges, sir D C# the wa#, where was #our conju$al residence situated this timeN A Cilwan$ D Is this #our house or #ou are rentin$N A 4entin$ D Bhat time were #ou a%le to come %ac( in #our residence at Cilwan$N A I went %ac( around almost /:<< oTcloc( D Bhat happened when #ou arri"ed in #our residenceN A Bhen I arri"ed home with m# cousin Ecel whom I re1uested to sleep with me at that time %ecause I had fears that he was a$ain drun( and I was worried that he would a$ain %eat me so I re1uested m# cousin to sleep with me, %ut she resisted %ecause she had fears that the same thin$ will happen a$ain last #ear D Bho was this cousin of #ours who #ou re1uested to sleep with #ouN A Ecel Ara^o, the one who testified D Did Ecel sleep with #ou in #our house on that e"enin$N A No, %ecause she e&pressed fears, she said her father would not allow her %ecause of Cen D Durin$ this period No"em%er *3, *..3, were #ou pre$nantN A Ges, / months D ,ow ad"ance was #our pre$nanc#N A Ei$ht 8/9 months D Bas the %a%# su%se1uentl# %ornN A Ges, sir D BhatTs the name of the %a%# #ou were carr#in$ at that timeN A ;arie Cianca D Bhat time were #ou a%le to meet personall# #our hus%andN A Ges, sir D Bhat timeN A Bhen I arri"ed home, he was there alread# in his usual %eha"ior D Bill #ou tell this Court what was his dispositionN A ,e was drun( a$ain, he was #ellin$ in his usual unrul# %eha"ior D Bhat was he #ellin$ all a%outN A ,is usual attitude when he $ot drun( D Gou said that when #ou arri"ed, he was drun( and #ellin$ at #ouN Bhat else did he do if an#N A ,e is na$$in$ at me for followin$ him and he dared me to 1uarrel him D Bhat was the cause of his na$$in$ or 1uarrelin$ at #ou if #ou (nowN

A ,e was an$r# at me %ecause I was followin$ & & & him, loo(in$ for him I was just worried he mi$ht %e o"erl# drun( and he would %eat me a$ain D Gou said that he was #ellin$ at #ou, what else, did he do to #ou if an#N A ,e was na$$in$ at me at that time and I just i$nore him %ecause I want to a"oid trou%le for fear that he will %eat me a$ain !erhaps he was disappointed %ecause I just i$nore him of his pro"ocation and he switch off the li$ht and I said to him, Twh# did #ou switch off the li$ht when the children were there T At that time I was also attendin$ to m# children who were doin$ their assi$nments ,e was an$r# with me for not answerin$ his challen$e, so he went to the (itchen and )$ot+ a %olo and cut the antenna wire to stop me from watchin$ tele"ision D Bhat did he do with the %oloN A ,e cut the antenna wire to (eep me from watchin$ T 6 D Bhat else happened after he cut the wireN A ,e switch off the li$ht and the children were shoutin$ %ecause the# were scared and he was alread# holdin$ the %olo D ,ow do #ou descri%ed this %oloN A * *M- feet D Bhat was the %olo used for usuall#N A For choppin$ meat D Gou said the children were scared, what else happened as Cen was carr#in$ that %oloN A ,e was a%out to attac( me so I run to the room D Bhat do #ou mean that he was a%out to attac( #ouN A Bhen I attempt to run he held m# hands and he whirled me and I fell to the %edside D So when he whirled #ou, what happened to #ouN A I screamed for help and then he left D Gou said earlier that he whirled #ou and #ou fell on the %edsideN A Ges, sir D Gou screamed for help and he left, do #ou (now where he was $oin$N A Outside perhaps to drin( more D Bhen he left what did #ou do in that particular timeN A I pac(ed all his clothes D Bhat was #our reason in pac(in$ his clothesN A I wanted him to lea"e us D Durin$ this time, where were #our children, what were their reactionsN A After a couple of hours, he went %ac( a$ain and he $ot an$r# with me for pac(in$ his clothes, then he dra$$ed me a$ain of the %edroom holdin$ m# nec( D Gou said that when Cen came %ac( to #our house, he dra$$ed #ouN ,ow did he dra$ #ouN

CO?4T INTE4!4ETE4: The witness demonstrated to the Court %# usin$ her ri$ht hand fle&ed forci%l# in her front nec(9 A And he dra$$ed me towards the door %ac(ward ATTG TAC?CANON: D Bhere did he %rin$ #ouN A Outside the %edroom and he wanted to $et somethin$ and then he (ept on shoutin$ at me that T#ou mi$ht as well %e (illed so there will %e no%od# to na$ me T D So #ou said that he dra$$ed #ou towards the drawerN A Ges, sir D Bhat is there in the drawerN A I was aware that it was a $un CO?4T INTE4!4ETE4: 8At this juncture the witness started cr#in$9 ATTG TAC?CANON: D Bere #ou actuall# %rou$ht to the drawerN A Ges, sir D Bhat happened when #ou were %rou$ht to that drawerN A ,e dra$$ed me towards the drawer and he was a%out to open the drawer %ut he could not open it %ecause he did not ha"e the (e# then he pulled his wallet which contained a %lade a%out 0 inches lon$ and I was aware that he was $oin$ to (ill me and I smashed his arm and then the wallet and the %lade fell The one he used to open the drawer I saw, it was a pipe a%out that lon$, and when he was a%out to pic('up the wallet and the %lade, I smashed him then I ran to the other room, and on that "er# moment e"er#thin$ on m# mind was to pit# on m#self, then the feelin$ I had on that "er# moment was the same when I was admitted in !,I=!,OS Clinic, I was a%out to "omit CO?4T INTE4!4ETE4: 8The witness at this juncture is cr#in$ intensel#9 &&& &&& &&& ATTG TAC?CANON: D Tal(in$ of drawer, is this drawer outside #our roomN A Outside D In what part of the houseN A Dinin$ D Bhere were the children durin$ that timeN A ;# children were alread# asleep D Gou mean the# were inside the roomN A Ges, sir

D Gou said that he dropped the %lade, for the record will #ou please descri%e this %lade a%out 0 inches lon$, how does it loo( li(eN A Three 809 inches lon$ and *M- inch wide D Is it a fle&i%le %ladeN A ItTs a cutter D ,ow do #ou descri%e the %lade, is it sharp %oth ed$esN A Ges, %ecause he once used it to me D ,ow did he do itN A ,e wanted to cut m# throat D Bith the same %ladeN A Ges, sir, that was the o%ject used when he intimidate me J 0/ In addition, Dra Nati"idad Da#an was called %# the 4TC to testif# as an e&pert witness to assist it in understandin$ the ps#che of a %attered person She had met with ;ari"ic Genosa for fi"e sessions totalin$ a%out se"enteen hours Cased on their tal(s, the former %riefl# related the latterTs ordeal to the court a 'uo as follows: JD: Bhat can #ou sa#, that #ou found ;ari"ic as a %attered wifeN Could #ou in la#manTs term descri%e to this Court what her life was li(e as said to #ouN A: Bhat I remem%er happened then was it was more than ten #ears, that she was sufferin$ emotional an$uish There were a lot of instances of a%uses, to emotional a%use, to "er%al a%use and to ph#sical a%use The hus%and had a "er# mea$er income, she was the one who was practicall# the %read earner of the famil# The hus%and was in"ol"ed in a lot of "ices, $oin$ out with %ar(adas, drin(in$, e"en womani7in$ %ein$ in"ol"ed in coc(fi$ht and $oin$ home "er# an$r# and which will tri$$er a lot of ph#sical a%use She also had the e&perience a lot of tauntin$ from the hus%and for the reason that the hus%and e"en accused her of infidelit#, the hus%and was sa#in$ that the child she was carr#in$ was not his own So she was "er# an$r#, she was at the same time "er# depressed %ecause she was also aware, almost li(e li"in$ in pur$ator# or e"en hell when it was happenin$ da# in and da# out J 0. In cross'e&aminin$ Dra Da#an, the pu%lic prosecutor not merel# elicited, %ut wittin$l# or unwittin$l# put forward, additional supportin$ e"idence as shown %elow: JD In #our first encounter with the appellant in this case in *..., where #ou tal(ed to her a%out three hours, what was the most rele"ant information did #ou $atherN A The most rele"ant information was the tra$ed# that happened The most important information were escalatin$ a%uses that she had e&perienced durin$ her marital life D Cefore #ou met her in *... for three hours, we presume that #ou alread# (new of the facts of the case or at least #ou ha"e su%stantial (nowled$e of the facts of the caseN A I %elie"e I had an idea of the case, %ut I do not (now whether I can consider them as su%stantial &&& &&& &&& D Did #ou $ather an information from ;ari"ic that on the side of her hus%and the# were fond of %atterin$ their wi"esN A I also heard that from herN

D Gou heard that from herN A Ges, sir D Did #ou as( for a complete e&ample who are the relati"es of her hus%and that were fond of %atterin$ their wi"esN A Bhat I remem%er that there were %rothers of her hus%and who are also %atterin$ their wi"es D Did she not inform #ou that there was an instance that she sta#ed in a hotel in Ormoc where her hus%and followed her and %attered )her+ se"eral times in that roomN A She told me a%out that D Did she inform #ou in what hotel in OrmocN A Sir, I could not remem%er %ut I was told that she was %attered in that room D Se"eral times in that roomN A Ges, sir Bhat I remem%er was that there is no pro%lem a%out %ein$ %attered, it reall# happened D Cein$ an e&pert witness, our jurisprudence is not complete on sa#in$ this matter I thin( that is the first time that we ha"e this in the !hilippines, what is #our opinionN A Sir, m# opinion is, she is reall# a %attered wife and in this (ind happened, it was reall# a self'defense I also %elie"e that there had %een pro"ocation and I also %elie"e that she %ecame a disordered person She had to suffer an&iet# reaction %ecause of all the %atterin$ that happened and so she %ecame an a%normal person who had lost sheTs not durin$ the time and that is wh# it happened %ecause of all the ph#sical %atterin$, emotional %atterin$, all the ps#cholo$ical a%uses that she had e&perienced from her hus%and D I do %elie"e that she is a %attered wife Bas she e&tremel# %atteredN A Sir, it is an e&treme form of %atterin$ Ges 2< !arentheticall#, the credi%ilit# of appellant was demonstrated as follows: JD And #ou also said that #ou administered )the+ o%jecti"e personalit# test, what & & & )is this+ all a%outN A The o%jecti"e personalit# test is the ;illon Clinical ;ultia&ial In"entor# The purpose of that test is to find out a%out the l#in$ prone)ne+ss of the person D Bhat do #ou mean %# thatN A ;eanin$, am I dealin$ with a client who is tellin$ me the truth, or is she someone who can e&a$$erate or & & & )will+ tell a lie)N+ D And what did #ou disco"er on the %asis of this o%jecti"e personalit# testN A She was a person who passed the honest# test ;eanin$ she is a person that I can trust That the data that ITm $atherin$ from her are the truth J2* The other e&pert witness presented %# the defense, Dr Alfredo !ajarillo, testified on his !s#chiatric 4eport,2-which was %ased on his inter"iew and e&amination of ;ari"ic Genosa The 4eport said that durin$ the first three #ears of her marria$e to Cen, e"er#thin$ loo(ed $ood '' the atmosphere was fine, normal and happ# '' until JCen started to %e attracted to other $irls and was also enticed in)to+ $am%lin$),+ especiall# coc(fi$htin$ & & & At the same time Cen was often joinin$ his barLada in drin(in$ sprees J

The drin(in$ sprees of Cen $reatl# chan$ed the attitude he showed toward his famil#, particularl# to his wife The 4eport continued: JAt first, it was "er%al and emotional a%uses %ut as time passed, he %ecame ph#sicall# a%usi"e ;ari"ic claimed that the "iciousness of her hus%and was pro$ressi"e e"er# time he $ot drun( It was a painful ordeal ;ari"ic had to anticipate whene"er she suspected that her hus%and went for a drin(in$ )spree+ The# had %een married for twel"e #ears)H+ and practicall# more than ei$ht #ears, she was %attered and maltreated relentlessl# and mercilessl# %# her hus%and whene"er he was drun( J ;ari"ic sou$ht the help of her mother'in'law, %ut her efforts were in "ain Further 1uotin$ from the 4eport, J)s+he also sou$ht the ad"ice and help of close relati"es and well'meanin$ friends in spite of her feelin$ ashamed of what was happenin$ to her Cut incessant %atterin$ %ecame more and more fre1uent and more se"ere & & & J20 From the totalit# of e"idence presented, there is indeed no dou%t in the CourtTs mind that Appellant ;ari"ic Genosa was a se"erel# a%used person / ect o <attery on Appellant Cecause of the recurrin$ c#cles of "iolence e&perienced %# the a%used woman, her state of mind metamorphoses In determinin$ her state of mind, we cannot rel# merel# on the jud$ment of an ordinar#, reasona%le person who is e"aluatin$ the e"ents immediatel# surroundin$ the incident A Canadian court has aptl# pointed out that e&pert e"idence on the ps#cholo$ical effect of %atterin$ on wi"es and common law partners are %oth rele"ant and necessar# J,ow can the mental state of the appellant %e appreciated without itN The a"era$e mem%er of the pu%lic ma# as(: Bh# would a woman put up with this (ind of treatmentN Bh# should she continue to li"e with such a manN ,ow could she lo"e a partner who %eat her to the point of re1uirin$ hospitali7ationN Be would e&pect the woman to pac( her %a$s and $o Bhere is her self'respectN Bh# does she not cut loose and ma(e a new life for herselfN Such is the reaction of the a"era$e person confronted with the so'called T%attered wife s#ndrome TJ22 To understand the s#ndrome properl#, howe"er, oneTs "iewpoint should not %e drawn from that of an ordinar#, reasona%le person Bhat $oes on in the mind of a person who has %een su%jected to repeated, se"ere %eatin$s ma# not %e consistent with '' na#, comprehensi%le to '' those who ha"e not %een throu$h a similar e&perience E&pert opinion is essential to clarif# and refute common m#ths and misconceptions a%out %attered women 23 The theor# of CBS formulated %# =enore Bal(er, as well as her research on domestic "iolence, has had a si$nificant impact in the ?nited States and the ?nited Qin$dom on the treatment and prosecution of cases, in which a %attered woman is char$ed with the (illin$ of her "iolent partner The ps#cholo$ist e&plains that the c#clical nature of the "iolence inflicted upon the %attered woman immo%ili7es the latterTs Ja%ilit# to act decisi"el# in her own interests, ma(in$ her feel trapped in the relationship with no means of escape J25 In her #ears of research, Dr Bal(er found that Jthe a%use often escalates at the point of separation and %attered women are in $reater dan$er of d#in$ then J2A Corro%oratin$ these research findin$s, Dra Da#an said that Jthe %attered woman usuall# has a "er# low opinion of herself She has & & & self'defeatin$ and self'sacrificin$ characteristics & & & )B+hen the "iolence would happen, the# usuall# thin( that the# pro"o(e)d+ it, that the# were the one)s+ who precipitated the "iolence)H that+ the# pro"o(e)d+ their spouse to %e ph#sicall#, "er%all# and e"en se&uall# a%usi"e to them J2/ Accordin$ to Dra Da#an, there are a lot of reasons wh# a %attered woman does not readil# lea"e an a%usi"e partner '' po"ert#, self'%lame and $uilt arisin$ from the latterTs %elief that she pro"o(ed the "iolence, that she has an o%li$ation to (eep the famil# intact at all cost for the sa(e of their children, and that she is the onl# hope for her spouse to chan$e 2.

The testimon# of another e&pert witness, Dr !ajarillo, is also helpful ,e had pre"iousl# testified in suits in"ol"in$ "iolent famil# relations, ha"in$ e"aluated Jpro%a%l# ten to twent# thousandJ "iolent famil# disputes within the Armed Forces of the !hilippines, wherein such cases a%ounded As a result of his e&perience with domestic "iolence cases, he %ecame a consultant of the Cattered Boman Office in Due7on Cit# As such, he $ot in"ol"ed in a%out fort# 82<9 cases of se"ere domestic "iolence, in which the ph#sical a%use on the woman would sometimes e"en lead to her loss of consciousness 3< Dr !ajarillo e&plained that Jo"erwhelmin$ %rutalit#, traumaJ could result in posttraumatic stress disorder, a form of Jan&iet# neurosis or neurolo$ic an&ietism J3* After %ein$ repeatedl# and se"erel# a%used, %attered persons Jma# %elie"e that the# are essentiall# helpless, lac(in$ power to chan$e their situation & & & )A+cute %atterin$ incidents can ha"e the effect of stimulatin$ the de"elopment of copin$ responses to the trauma at the e&pense of the "ictimTs a%ilit# to muster an acti"e response to tr# to escape further trauma Furthermore, & & & the "ictim ceases to %elie"e that an#thin$ she can do will ha"e a predicta%le positi"e effect J3A stud#30 conducted %# ;artin Seli$man, a ps#cholo$ist at the ?ni"ersit# of !enns#l"ania, found that Je"en if a person has control o"er a situation, %ut %elie"es that she does not, she will %e more li(el# to respond to that situation with copin$ responses rather than tr#in$ to escape J ,e said that it was the co$niti"e aspect '' the indi"idualTs thou$hts '' that pro"ed all'important ,e referred to this phenomenon as Jlearned helplessness J J)T+he truth or facts of a situation turn out to %e less important than the indi"idualTs set of %eliefs or perceptions concernin$ the situation Cattered women donTt attempt to lea"e the %atterin$ situation, e"en when it ma# seem to outsiders that escape is possi%le, %ecause the# cannot predict their own safet#H the# %elie"e that nothin$ the# or an#one else does will alter their terri%le circumstances J32 Thus, just as the %attered woman %elie"es that she is somehow responsi%le for the "iolent %eha"ior of her partner, she also %elie"es that he is capa%le of (illin$ her, and that there is no escape 33 Cattered women feel unsafe, suffer from per"asi"e an&iet#, and usuall# fail to lea"e the relationship 35 ?nless a shelter is a"aila%le, she sta#s with her hus%and, not onl# %ecause she t#picall# lac(s a means of self'support, %ut also %ecause she fears that if she lea"es she would %e found and hurt e"en more 3A In the instant case, we meticulousl# scoured the records for specific e"idence esta%lishin$ that appellant, due to the repeated a%use she had suffered from her spouse o"er a lon$ period of time, %ecame afflicted with the %attered woman s#ndrome Be, howe"er, failed to find sufficient e"idence that would support such a conclusion ;ore specificall#, we failed to find ample e"idence that would confirm the presence of the essential characteristics of CBS The defense fell short of pro"in$ all three phases of the Jc#cle of "iolenceJ supposedl# characteri7in$ the relationship of Cen and ;ari"ic Genosa No dou%t there were acute %atterin$ incidents In relatin$ to the court a 'uo how the fatal incident that led to the death of Cen started, ;ari"ic perfectl# descri%ed the tension'%uildin$ phase of the c#cle She was a%le to e&plain in ade1uate detail the t#pical characteristics of this sta$e ,owe"er, that sin$le incident does not pro"e the e&istence of the s#ndrome In other words, she failed to pro"e that in at least another %atterin$ episode in the past, she had $one throu$h a similar pattern ,ow did the tension %etween the partners usuall# arise or %uild up prior to acute %atterin$N ,ow did ;ari"ic normall# respond to CenTs relati"el# minor a%usesN Bhat means did she emplo# to tr# to pre"ent the situation from de"elopin$ into the ne&t 8more "iolent9 sta$eN Neither did appellant proffer sufficient e"idence in re$ard to the third phase of the c#cle She

simpl# mentioned that she would usuall# run awa# to her motherTs or fatherTs houseH3/ that Cen would see( her out, as( for her for$i"eness and promise to chan$eH and that %elie"in$ his words, she would return to their common a%ode Did she e"er feel that she pro"o(ed the "iolent incidents %etween her and her spouseN Did she %elie"e that she was the onl# hope for Cen to reformN And that she was the sole support of his emotional sta%ilit# and well'%ein$N Con"ersel#, how dependent was she on himN Did she feel helpless and trapped in their relationshipN Did %oth of them re$ard death as prefera%le to separationN In sum, the defense ailed to elicit rom appellant $ersel $er actual e)periences and t$ou($ts t$at Kould clearly and ully demonstrate t$e essential c$aracteristics o t$e syndrome. The Court appreciates the ratiocinations $i"en %# the e&pert witnesses for the defense Indeed, the# were a%le to e&plain full#, al%eit merel# theoreticall# and scientificall#, how the personalit# of the %attered woman usuall# e"ol"ed or deteriorated as a result of repeated and se"ere %eatin$s inflicted upon her %# her partner or spouse The# corro%orated each otherTs testimonies, which were culled from their numerous studies of hundreds of actual cases @oKever! t$ey ailed to present in court t$e actual e)periences and t$ou($ts t$at appellant $ad related to t$em GG i at all GG based on K$ic$ t$ey concluded t$at s$e $ad +#S. Be emphasi7e that in criminal cases, all the elements of a modif#in$ circumstance must %e pro"en in order to %e appreciated To repeat, the records lac( supportin$ e"idence that would esta%lish all the essentials of the %attered woman s#ndrome as manifested specificall# in the case of the Genosas <*+ as +el ;5e ense In an# e"ent, the e&istence of the s#ndrome in a relationship does not in itself esta%lish the le$al ri$ht of the woman to (ill her a%usi"e partner E"idence must still %e considered in the conte&t of self'defense 3. From the e&pert opinions discussed earlier, the Court rec(ons further that crucial to the CBS defense is the state of mind of the %attered woman at the time of the offense5< '' she must ha"e actuall# feared imminent harm from her %atterer and honestl# %elie"ed in the need to (ill him in order to sa"e her life Settled in our jurisprudence, howe"er, is the rule that the one who resorts to self'defense must face a real t$reaton oneTs lifeH and the peril sou$ht to %e a"oided must %e imminent and actual, not merel# ima$inar# 5* Thus, the 4e"ised !enal Code pro"ides the followin$ re1uisites and effect of self'defense:5JArt ** Justi yin( circumstances '' The followin$ do not incur an# criminal lia%ilit#: J* An#one who acts in defense of his person or ri$hts, pro"ided that the followin$ circumstances concurH First ?nlawful a$$ressionH Second 4easona%le necessit# of the means emplo#ed to pre"ent or repel itH T$ird =ac( of sufficient pro"ocation on the part of the person defendin$ himself J ?nlawful a$$ression is the most essential element of self'defense 50 It presupposes actual, sudden and une&pected attac( '' or an imminent dan$er thereof '' on the life or safet# of a person 52 In the present case, howe"er, accordin$ to the testimon# of ;ari"ic herself, there was a sufficient time inter"al %etween the unlawful a$$ression of Cen and her fatal attac( upon him She had alread# %een a%le to withdraw from his "iolent %eha"ior and escape to

their childrenTs %edroom Durin$ that time, he apparentl# ceased his attac( and went to %ed The realit# or e"en the imminence of the dan$er he posed had ended alto$ether ,e was no lon$er in a position that presented an actual threat on her life or safet# ,ad Cen still %een awaitin$ ;ari"ic when she came out of their childrenTs %edroom '' and %ased on past "iolent incidents, there was a $reat pro%a%ilit# that he would still ha"e pursued her and inflicted $ra"er harm '' then, the imminence of the real threat upon her life would not ha"e ceased #et Bhere the %rutali7ed person is alread# sufferin$ from CBS, further e"idence of actual ph#sical assault at the time of the (illin$ is not re1uired Incidents of domestic %atter# usuall# ha"e a predicta%le pattern To re1uire the %attered person to await an o%"ious, deadl# attac( %efore she can defend her life Jwould amount to sentencin$ her to Tmurder %# installment TJ53 Still, impendin$ dan$er 8%ased on the conduct of the "ictim in pre"ious %atterin$ episodes9 prior to the defendantTs use of deadl# force must %e shown Threatenin$ %eha"ior or communication can satisf# the re1uired imminence of dan$er 55 Considerin$ such circumstances and the e&istence of CBS, self'defense ma# %e appreciated Be reiterate the principle that a$$ression, if not continuous, does not warrant self' defense 5A In the a%sence of such a$$ression, there can %e no self'defense '' complete or incomplete '' on the part of the "ictim 5/ Thus, ;ari"icTs (illin$ of Cen was not completel# justified under the circumstances 7itigating .ircumstances :resent In an# e"ent, all is not lost for appellant Bhile she did not raise an# other modif#in$ circumstances that would alter her penalt#, we deem it proper to e"aluate and appreciate in her fa"or circumstances that miti$ate her criminal lia%ilit# It is a horn%oo( doctrine that an appeal in a criminal case opens it wholl# for re"iew on an# issue, includin$ that which has not %een raised %# the parties 5. From se"eral ps#cholo$ical tests she had administered to ;ari"ic, Dra Da#an, in her !s#cholo$ical E"aluation 4eport dated No"em%er -., -<<<, opined as follows: JThis is a classic case of a Cattered Boman S#ndrome The repeated %atterin$ ;ari"ic e&perienced with her hus%and constitutes a form of )cumulati"e+ pro"ocation which %ro(e down her ps#cholo$ical resistance and natural self'control It is "er# clear that she de"eloped hei$htened sensiti"it# to si$ht of impendin$ dan$er her hus%and posed continuousl# ;ari"ic trul# e&perienced at the hands of her a%user hus%and a state of ps#cholo$ical paral#sis which can onl# %e ended %# an act of "iolence on her part J A< Dr !ajarillo corro%orates the findin$s of Dra Da#an ,e e&plained that the effect of Jrepetitious pain ta(in$, repetitious %atterin$, )and+ repetitious maltreatmentJ as well as the se"erit# and the prolon$ed administration of the %atterin$ is posttraumatic stress disorder A* E&poundin$ thereon, he said: JD Bhat causes the trauma, ;r BitnessN A Bhat causes the trauma is pro%a%l# the repetitious %atterin$ Second, the se"erit# of the %atterin$ Third, the prolon$ed administration of %atterin$ or the prolon$ed commission of the %atterin$ and the ps#cholo$ical and constitutional stamina of the "ictim and another one is the pu%lic and social support a"aila%le to the "ictim If no%od# is intercedin$, the more she will $o to that disorder &&& &&& &&& D Gou referred a while a$o to se"erit# Bhat are the 1ualifications in terms of se"erit# of the postraumatic stress disorder, Dr !ajarilloN

A The se"erit# is the most se"ere continuousl# to tri$)$+er this post)t+raumatic stress disorder is injur# to the head, %an$in$ of the head li(e that It is usuall# the "er# "er# se"ere stimulus that precipitate this post)t+raumatic stress disorder Others are suffocatin$ the "ictim li(e holdin$ a pillow on the face, stran$ulatin$ the indi"idual, suffocatin$ the indi"idual, and %o&in$ the indi"idual In this situation therefore, the "ictim is hei$htened to painful stimulus, li(e for e&ample she is pre$nant, she is "er# suscepti%le %ecause the woman will not onl# protect herself, she is also to protect the fetus So the an&iet# is hei$htened to the end )sic+ de$ree D Cut in terms of the $ra"it# of the disorder, ;r Bitness, how do #ou classif#N A Be classif# the disorder as )acute+, or chronic or dela#ed or )a+t#pical D Can #ou please descri%e this pre)'+classification #ou called dela#ed or )at#pical+N A The acute is the one that usuall# re1uire onl# one %atterin$ and the indi"idual will manifest now a se"ere emotional insta%ilit#, hi$her irrita%ilit# remorse, restlessness, and fear and pro%a%l# in most )acute+ cases the first thin$ will %e happened to the indi"idual will %e thin(in$ of suicide D And in chronic cases, ;r BitnessN A The chronic cases is this repetitious %atterin$, repetitious maltreatment, an# prolon$ed, it is lon$er than si& 859 months The )acute+ is onl# the first da# to si& 859 months After this si& 859 months #ou %ecome chronic It is stated in the %oo( specificall# that after si& 859 months is chronic The )a+t#pical one is the repetitious %atterin$ %ut the indi"idual who is a%normal and then %ecome normal This is how #ou $et neurosis from neurotic personalit# of these cases of post)t+raumatic stress disorder J AAnswerin$ the 1uestions propounded %# the trial jud$e, the e&pert witness clarified further: JD Cut just the same),+ neurosis especiall# on %attered woman s#ndrome & & & affects & & & his or her mental capacit#N A Ges, #our ,onor D As #ou were sa#in$),+ it & & & o%fuscated her rationalit#N A Of course o%fuscated JA0 In sum, the c#clical nature and the se"erit# of the "iolence inflicted upon appellant resulted in Jcumulati"e pro"ocation which %ro(e down her ps#cholo$ical resistance and natural self' control,J Jps#cholo$ical paral#sis,J and Jdifficult# in concentratin$ or impairment of memor# J +ased on t$e e)planations o t$e e)pert Kitnesses! suc$ mani estations Kere analo(ous to an illness t$at diminis$ed t$e e)ercise by appellant o $er Kill poKer Kit$out! $oKever! deprivin( $er o consciousness o $er acts. There was, thus, a resultin$ diminution of her freedom of action, intelli$ence or intent !ursuant to para$raphs .A2and *<A3 of Article *0 of the 4e"ised !enal Code, this circumstance should %e ta(en in her fa"or and considered as a miti$atin$ factor A5 In addition, we also find in fa"or of appellant the e&tenuatin$ circumstance of ha"in$ acted upon an impulse so powerful as to ha"e naturall# produced passion and o%fuscation It has %een held that this state of mind is present when a crime is committed as a result of an uncontrolla%le %urst of passion pro"o(ed %# prior unjust or improper acts or %# a le$itimate stimulus so powerful as to o"ercome reason AA To appreciate this circumstance, the followin$ re1uisites should concur: 8*9 there is an act, %oth unlawful and sufficient to produce such a condition of mindH and 8-9 this act is not far remo"ed from the commission of the crime %# a

considera%le len$th of time, durin$ which the accused mi$ht reco"er her normal e1uanimit# A/ ,ere, an acute %atterin$ incident, wherein Cen Genosa was the unlawful a$$ressor, preceded his %ein$ (illed %# ;ari"ic ,e had further threatened to (ill her while dra$$in$ her %# the nec( towards a ca%inet in which he had (ept a $un It should also %e recalled that she was ei$ht months pre$nant at the time The attempt on her life was li(ewise on that of her fetus A. ,is a%usi"e and "iolent acts, an a$$ression which was directed at the li"es of %oth ;ari"ic and her un%orn child, naturall# produced passion and o%fuscation o"ercomin$ her reason E"en thou$h she was a%le to retreat to a separate room, her emotional and mental state continued Accordin$ to her, she felt her %lood pressure riseH she was filled with feelin$s of self'pit# and of fear that she and her %a%# were a%out to die In a fit of indi$nation, she pried open the ca%inet drawer where Cen (ept a $un, then she too( the weapon and used it to shoot him The confluence of these e"ents %rin$s us to the conclusion that there was no considera%le period of time within which ;ari"ic could ha"e reco"ered her normal e1uanimit# ,elpful is Dr !ajarilloTs testimon#/< that with Jneurotic an&iet#J '' a ps#cholo$ical effect on a "ictim of Jo"erwhelmin$ %rutalit# )or+ traumaJ '' the "ictim reli"es the %eatin$ or trauma as if it were real, althou$h she is not actuall# %ein$ %eaten at the time She cannot control Jre' e&periencin$ the whole thin$, the most "icious and the trauma that she suffered J She thin(s Jof nothin$ %ut the sufferin$ J Such reli"in$ which is %e#ond the control of a person under similar circumstances, must ha"e %een what ;ari"ic e&perienced durin$ the %rief time inter"al and pre"ented her from reco"erin$ her normal e1uanimit# Accordin$l#, she should further %e credited with the miti$atin$ circumstance of passion and o%fuscation It should %e clarified that these two circumstances '' ps#cholo$ical paral#sis as well as passion and o%fuscation '' did not arise from the same set of facts On the one hand, the first circumstance arose from the c#clical nature and the se"erit# of the %atter# inflicted %# the %atterer'spouse upon appellant That is, the repeated %eatin$s o"er a period of time resulted in her ps#cholo$ical paral#sis, which was analo$ous to an illness diminishin$ the e&ercise of her will power without depri"in$ her of consciousness of her acts The second circumstance, on the other hand, resulted from the "iolent a$$ression he had inflicted on her prior to the (illin$ That the incident occurred when she was ei$ht months pre$nant with their child was deemed %# her as an attempt not onl# on her life, %ut li(ewise on that of their un%orn child Such perception naturall# produced passion and o%fuscation on her part Se+on" Le;!: I77ue* Treachery There is treacher# when one commits an# of the crimes a$ainst persons %# emplo#in$ means, methods or forms in the e&ecution thereof without ris( to oneself arisin$ from the defense that the offended part# mi$ht ma(e /* In order to 1ualif# an act as treacherous, the circumstances in"o(ed must %e pro"en as indu%ita%l# as the (illin$ itselfH the# cannot %e deduced from mere inferences, or conjectures, which ha"e no place in the appreciation of e"idence /- Cecause of the $ra"it# of the resultin$ offense, treacher# must %e pro"ed as conclusi"el# as the (illin$ itself /0 4ulin$ that treacher# was present in the instant case, the trial court imposed the penalt# of death upon appellant It inferred this 1ualif#in$ circumstances merel# from the fact that the lifeless %od# of Cen had %een found l#in$ in %ed with an Jopen, depressed, circularJ fracture located at the %ac( of his head As to e&actl# how and when he had %een fatall# attac(ed,

howe"er, the prosecution failed to esta%lish indu%ita%l# Onl# the followin$ testimon# of appellant leads us to the e"ents surroundin$ his death: JD Gou said that when Cen came %ac( to #our house, he dra$$ed #ouN ,ow did he dra$ #ouN CO?4T: The witness demonstrated to the Court %# usin$ her ri$ht hand fle&ed forci%l# in her front nec(9 A And he dra$$ed me towards the door %ac(ward ATTG TAC?CANON: D Bhere did he %rin$ #ouN A Outside the %edroom and he wanted to $et somethin$ and then he (ept on shoutin$ at me that T#ou mi$ht as well %e (illed so there will %e no%od# to na$ meT D So #ou said that he dra$$ed #ou towards the drawerN A Ges, sir D Bhat is there in the drawerN A I was aware that it was a $un CO?4T INTE4!4ETE4 8At this juncture the witness started cr#in$9 ATTG TAC?CANON: D Bere #ou actuall# %rou$ht to the drawerN A Ges, sir D Bhat happened when #ou were %rou$ht to that drawerN A ,e dra$$ed me towards the drawer and he was a%out to open the drawer %ut he could not open it %ecause he did not ha"e the (e# then he pulled his wallet which contained a %lade a%out 0 inches lon$ and I was aware that he was $oin$ to (ill me and I smashed his arm and then the wallet and the %lade fell The one he used to open the drawer I saw, it was a pipe a%out that lon$, and when he was a%out to pic('up the wallet and the %lade, I smashed him then I ran to the other room, and on that "er# moment e"er#thin$ on m# mind was to pit# on m#self, then the feelin$ I had on that "er# moment was the same when I was admitted in !,I=!,OS Clinic, I was a%out to "omit CO?4T INTE4!4ETE4 8The witness at this juncture is cr#in$ intensel#9 &&& &&& &&& D Gou said that he dropped the %lade, for the record will #ou please descri%e this %lade a%out 0 inches lon$, how does it loo( li(eN A Three 809 inches lon$ and P inch wide D It is a fle&i%le %ladeN A ItTs a cutter D ,ow do #ou descri%e the %lade, is it sharp %oth ed$esN

A Ges, %ecause he once used it to me D ,ow did he do itN A ,e wanted to cut m# throat D Bith the same %ladeN A Ges, sir, that was the o%ject used when he intimidate me &&& &&& &&& ATTG TAC?CANON: D Gou said that this %lade fell from his $rip, is it correctN A Ges, %ecause I smashed him D Bhat happenedN A Cen tried to pic('up the wallet and the %lade, I pic('up the pipe and I smashed him and I ran to the other room D Bhat else happenedN A Bhen I was in the other room, I felt the same thin$ li(e what happened %efore when I was admitted in !,I=!,OS Clinic, I was a%out to "omit I (now m# %lood pressure was raised I was fri$htened I was a%out to die %ecause of m# %lood pressure CO?4T INTE4!4ETE4: 8?pon the answer of the witness $ettin$ the pipe and smashed him, the witness at the same time pointed at the %ac( of her nec( or the nape9 ATTG TAC?CANON: D Gou said #ou went to the room, what else happenedN A Considerin$ all the ph#sical sufferin$s that IT"e %een throu$h with him, I too( pit# on m#self and I felt I was a%out to die also %ecause of m# %lood pressure and the %a%#, so I $ot that $un and I shot him CO?4T Mto Att# Ta%ucanon D Gou shot himN A Ges, I distorted the drawer J/2 The a%o"e testimon# is insufficient to esta%lish the presence of treacher# There is no showin$ of the "ictimTs position relati"e to appellantTs at the time of the shootin$ Cesides, e1uall# a&iomatic is the rule that when a (illin$ is preceded %# an ar$ument or a 1uarrel, treacher# cannot %e appreciated as a 1ualif#in$ circumstance, %ecause the deceased ma# %e said to ha"e %een forewarned and to ha"e anticipated a$$ression from the assailant /3 ;oreo"er, in order to appreciate alevosia! the method of assault adopted %# the a$$ressor must ha"e %een consciousl# and deli%eratel# chosen for the specific purpose of accomplishin$ the unlawful act without ris( from an# defense that mi$ht %e put up %# the part# attac(ed /5 There is no showin$, thou$h, that the present appellant intentionall# chose a specific means of successfull# attac(in$ her hus%and without an# ris( to herself from an# retaliator# act that he mi$ht ma(e To the contrar#, it appears that the thou$ht of usin$ the $un occurred to her onl# at a%out the same moment when she decided to (ill her %atterer' spouse In the a%sence of an# con"incin$ proof that she consciousl# and deli%eratel#

emplo#ed the method %# which she committed the crime in order to ensure its e&ecution, this Court resol"es the dou%t in her fa"or /A :roper :enalty The penalt# for parricide imposed %# Article -25 of the 4e"ised !enal Code is reclusion perpetua to death Since two miti$atin$ circumstances and no a$$ra"atin$ circumstance ha"e %een found to ha"e attended the commission of the offense, the penalt# shall %e lowered %# one 8*9 de$ree, pursuant to Article 52 of para$raph 3// of the same Code /. The penalt# of reclusion temporal in its medium period is imposa%le, considerin$ that two miti$atin$ circumstances are to %e ta(en into account in reducin$ the penalt# %# one de$ree, and no other modif#in$ circumstances were shown to ha"e attended the commission of the offense .< ?nder the Indeterminate Sentence =aw, the minimum of the penalt# shall %e within the ran$e of that which is ne&t lower in de$ree '' prision mayor '' and the ma&imum shall %e within the ran$e of the medium period of reclusion temporal Considerin$ all the circumstances of the instant case, we deem it just and proper to impose the penalt# of prision mayor in its minimum period, or si& 859 #ears and one 8*9 da# in prison as minimumH to reclusion temporal in its medium period, or *2 #ears / months and * da# as ma&imum Notin$ that appellant has alread# ser"ed the minimum period, she ma# now appl# for and %e released from detention on parole .* /pilogue Cein$ a no"el concept in our jurisprudence, the %attered woman s#ndrome was neither eas# nor simple to anal#7e and reco$ni7e "is'f'"is the $i"en set of facts in the present case The Court a$oni7ed on how to appl# the theor# as a modern'da# realit# It too( $reat effort %e#ond the normal manner in which decisions are made '' on the %asis of e&istin$ law and jurisprudence applica%le to the pro"en facts To $i"e a just and proper resolution of the case, it endea"ored to ta(e a $ood loo( at studies conducted here and a%road in order to understand the intricacies of the s#ndrome and the distinct personalit# of the chronicall# a%used person Certainl#, the Court has learned much And definitel#, the solicitor $eneral and appellantTs counsel, Att# Qatrina =e$arda, ha"e helped it in such learnin$ process Bhile our hearts empathi7e with recurrentl# %attered persons, we can onl# wor( within the limits of law, jurisprudence and $i"en facts Be cannot ma(e or in"ent them Neither can we amend the 4e"ised !enal Code Onl# Con$ress, in its wisdom, ma# do so The Court, howe"er, is not discountin$ the possi%ilit# of self'defense arisin$ from the %attered woman s#ndrome Be now sum up our main points First, each of the phases of the c#cle of "iolence must %e pro"en to ha"e characteri7ed at least two %atterin$ episodes %etween the appellant and her intimate partner Second, the final acute %atterin$ episode precedin$ the (illin$ of the %atterer must ha"e produced in the %attered personTs mind an actual fear of an imminent harm from her %atterer and an honest %elief that she needed to use force in order to sa"e her life T$ird, at the time of the (illin$, the %atterer must ha"e posed pro%a%le '' not necessaril# immediate and actual '' $ra"e harm to the accused, %ased on the histor# of "iolence perpetrated %# the former a$ainst the latter Ta(en alto$ether, these circumstances could satisf# the re1uisites of self'defense ?nder the e&istin$ facts of the present case, howe"er, not all of these elements were dul# esta%lished ( EREFORE, the con"iction of Appellant ;ari"ic Genosa for parricide is here%# AFFIENED ,owe"er, there %ein$ two 8-9 miti$atin$ circumstances and no a$$ra"atin$ circumstance attendin$ her commission of the offense, her penalt# is EEDUCED to si& 859 #ears and one 8*9 da# of prision mayor as minimumH to *2 #ears, / months and * da# of reclusion temporal as ma&imum

Inasmuch as appellant has %een detained for more than the minimum penalt# here%# imposed upon her, the director of the Cureau of Corrections ma# immediatel# EE/EASE her from custod# upon due determination that she is eli$i%le for parole, unless she is %ein$ held for some other lawful cause Costs de o icio SO ORDERED. >G.R. No7. 1$2%%)4%$. Ju:y 1, 200)? PEOPLE OF T E P ILIPPINES, appellee, "s. AL3ERT SA2ANA, appellant. DE#ISION PUNO, J.* Cefore us for automatic re"iew is the Decision)*+ of the 4e$ional Trial Court of ;alolos, Culacan, Cranch -*, sentencin$ Al%ert Sa#ana to the supreme penalt# of death for two counts of 1ualified rape Appellant was char$ed with two counts of rape committed a$ainst Ches(a An$eli(a de Dios, the dau$hter of his common'law wife, Alma de Dios The Informations alle$ed: Criminal Case No 235';'.. That on or a%out the 2th da# of Octo%er *../, in the municipalit# of !laridel, pro"ince of Culacan, !hilippines, and within the jurisdiction of this ,onora%le Court, the a%o"e'named accused, who was the common'law hus%and of the "ictimEs mother did then and there willfull# 8sic9, unlawfull# and feloniousl#, %# means of force, threat and intimidation and with lewd desi$ns, ha"e carnal (nowled$e of Ches(a An$eli(a de Dios # El#, an **'#ear old $irl, a$ainst her will and without her consent Contrar# to law )-+ Criminal Case No 23A';'.. That in or a%out the month of ;arch *..A, in the municipalit# of !laridel, pro"ince of Culacan, !hilippines, and within the jurisdiction of this ,onora%le Court, the a%o"e'named accused, who was the common'law hus%and of the mother of the "ictim, did then and there willfull#, unlawfull# and feloniousl#, %# means of force, threat and intimidation and with lewd desi$ns, ha"e carnal (nowled$e of Ches(a An$eli(a de Dios # El#, an **'#ear old $irl, a$ainst her will and without her consent Contrar# to law )0+ The prosecution e"idence showed that some time in ;arch *..A, appellant forced himself upon the dau$hter of his common'law wife, ele"en'#ear old Ches(a An$eli(a de Dios The deed too( place in their residence at ;aria =ourdes Su%di"ision, Ta%an$, !laridel, Culacan Ches(a recounted that after dinnertime, while her mother was out of the house, appellant undressed her, laid on top of her, and made an up and down mo"ement while he (issed her nec( She felt pain in her pri"ate part She tried to scream %ut appellant co"ered her mouth After the act, appellant wiped her pri"ate part, and proceeded to the %athroom to wash himself Fear pre"ented Ches(a from tellin$ her mother a%out the incident as she had often witnessed how appellant would %eat her mother )2+ Accordin$ to Ches(a, appellant a$ain "iolated her in the e"enin$ of Octo%er 2, *../ As %efore, appellant undressed her and placed himself on top of her Ches(a felt an up and

down mo"ement, his pri"ate part touchin$ hers At the same time, appellant would (iss her on the nec( She felt pain in her pri"ate part Ches(a also tried to free herself from his hold %ut appellant pinned her hands ,e also pre"ented her from shoutin$ %# co"erin$ her mouth After satisf#in$ his lust, appellant wiped Ches(aEs pri"ate part, and then went to the %athroom to wash )3+ Ches(aEs aunt, Erlinda O%u#es, told the court that Ches(aEs mother called her on the phone on Octo%er 3, *../, as(in$ her to fetch her and her children at their residence in Culacan as appellant had mauled her Erlinda %rou$ht Alma and her children to her home in =as !i^as, ;etro ;anila After two da#s, howe"er, appellant came to $et Alma and the children Alma went with appellant, to$ether with their two children, %ut left Ches(a to the care of Erlinda Erlinda sou$ht the help of their other sister, Arlene D#, to enroll Ches(a at Isa%elo Elementar# School in Tondo, ;anila so that she could continue her studies In mid' Octo%er, while Ches(a was in the %athroom, Erlinda noticed a foul'smellin$ #ellowish su%stance on Ches(aEs underwear Erlinda %rou$ht Ches(a to a midwife, then to a $#necolo$ist, Dr Nie"es ;ontinola, who ad"ised her to %rin$ the #oun$ $irl to the National Cureau of In"esti$ation 8NCI9 for e&amination At the NCI, howe"er, Erlinda did not allow Ches(a to %e e&amined %ecause the e&aminin$ officer wanted to insert a tu%e measurin$ 2 centimeters in diameter and * foot in len$th into her nieceEs $enitalia Ches(a e"entuall# admitted to Erlinda that appellant had a%used her )5+ ?pon ad"ice of her %rother, Erlinda %rou$ht Ches(a to the Culacan !ro"incial Crime =a%orator# Office for e&amination Dr ;anuel A"es, a medico'le$al officer at said office, e&amined Ches(a on Octo%er 0*, *../ The e&amination re"ealed:)A+ GENE4A= AND EOT4A'GENITA= : !,GSICA= C?I=T ;ENTA= STAT?S C4EAST ACDO;EN !,GSICA= IN:?4IES : GENITA= : !?CIC ,AI4 =ACIA ;A:O4A =ACIA ;INO4A ,G;EN healed at *- oEcloc( The h#men is elastic wMdiameter of * - to * 3 cm EOTE4NA= 6AGINA= O4IFICE resistance upon insertin$ prominent e&aminin$ fin$er 6AGINA= CANA= CE46IO : : ru$osities smooth : The orifice wM less : : : : : : : : Cuddin$ Flat, soft No si$ns of ph#sical injur# A%sent Coaptated =i$ht pin(ish Superficial laceration ,ea"#

The "ul"a is er#thematous

!E4I'?4ET,4A= AND 6AGINA= S;EA4S: NEGATI6E for spermato7oa 4E;A4QS : The su%ject is in non'"ir$in state on time of e&am

Dr A"es e&plained that the er#thematous "ul"a was a si$n that there was manipulation in that area ,e also stated that the "a$inal laceration could ha"e %een due to either: intercourse, mastur%ation or instrumentation Dr A"es also o%ser"ed that the diameter of the h#men was too wide for Ches(aEs a$e ,e said that this could ha"e %een caused %# penetration of the or$an, either %# instrument, or usin$ of fin$ers or o%ject, or intercourse )/+ For his part, appellant interposed denial and ali%i ,e claimed that it was impossi%le for him to rape Ches(a in ;arch *..A as he was residin$ in Cataan at that time while Ches(a and her mother were residin$ in ;anila The# mo"ed to Culacan onl# in Octo%er *..A ,e li(ewise denied ha"in$ raped Ches(a in the e"enin$ of Octo%er 2, *../ %ecause at that time, he was wor(in$ in ;alolos town proper ,e was emplo#ed as deli"er# dri"er at Chow(in$, ;alolos !o%lacion On that da#, he left the house and went to wor( at 0:<< in the afternoon and returned home past **:<< in the e"enin$ ).+ Appellant swore that he treated Ches(a as his own child and he did not ha"e the heart to molest her ,e %elied the testimon# of Erlinda O%u#es that he was maulin$ Ches(aEs mother, Alma ,e narrated that on Octo%er 3, *../, Erlinda went to their house in Culacan to $et Alma and the children and %rou$ht them to her home in =as !i^as The followin$ da#, Alma went to see him and as(ed him to ta(e them %ac( Cut %ecause he was %us#, he found time to fetch them onl# after four da#s C# that time, Arlene D# had alread# ta(en Ches(a in her custod# Appellant, to$ether with Alma and their two children, returned to their home in !laridel, Culacan The# li"ed to$ether as hus%and and wife until his parents too( him %ac( to Cataan on Octo%er -<, *../ Appellant alle$ed that AlmaEs sisters mi$ht ha"e concocted the char$es a$ainst him for se"eral reasons One, the# were opposed to his relationship with Alma %ecause the# were cousins Two, he disappro"ed of AlmaEs ha%it of $oin$ to her sisters in ;anila whene"er the# would 1uarrel ,e said that AlmaEs sisters resented this %ecause it was Alma whom the# would often instruct to procure ille$al dru$s to sustain their dru$ ha%it Three, he (new of the sistersE "ice and he once threatened to e&pose them to Arlene D#Es hus%and who was pro"idin$ financial support to the entire famil# Four, he (new of Arlene D#Es illicit affair with another man and the fact that she had (illed her former dri"er And fifth, durin$ one of his fi$hts with Alma, he threatened to re"eal to the authorities the wherea%outs of their father who was wanted for murder )*<+ AppellantEs ali%i was corro%orated %# his father, Fausto Sa#ana, and their nei$h%or, Dominador 4i"era, and also %# his time card Fausto Sa#ana and Dominador 4i"era %oth testified that appellant li"ed with his parents in ;oron$, Cataan from Fe%ruar# to Au$ust, *..A )**+ AppellantEs time card, on the other hand, showed that on Octo%er 2, *../, he reported for wor( at 0:-< pm and went off dut# at .:*/ pm )*-+ The defense also presented Ches(aEs school record)*0+ showin$ that in Octo%er *..A, she transferred from A A1uino Elementar# School to Ta%an$ Elementar# School as $rade II pupil The followin$ school #ear, she enrolled in third $rade at Ta%an$ Elementar# School %ut a$ain transferred to another school in Octo%er *../ Another e"idence proferred %# the defense was the ;edico'=e$al 4eport e&ecuted %# Dr

Anna%elle Soliman, ;edico =e$al Officer at NCI who e&amined Ches(a on Octo%er -/, *../ ,er findin$s indicate:)*2+ GENE4A= !,GSICA= EOA;INATION: ,ei$ht: *22 < cms Bei$ht: *<< l%s Fairl# nourished, conscious, coherent, cooperati"e, am%ulator# Creast, infantile Areolae, li$ht %rown, measures - 3 cms in diameter Nipples, flat, li$ht %rown, measures < 3 cm in diameter No e&tra$enital ph#sical injur# noted GENITA= EOA;INATION: !u%ic hair, no $rowth =a%ia majora, minora, coaptated Fourchette, tense 6esti%ular mucosa, pin(ish ,#men, short, thin, intact ,#menal orifice measures * - cm in diameter 6a$inal walls and ru$osities cannot %e reached %# e&aminin$ fin$er CONC=?SIONS: No e"ident si$ns of e&tra$enital ph#sical injur# noted on the %od# of the su%ject at the time of e&amination ,#men, intact and its orifice small 8* - cm in diameter9 as to preclude complete penetration %# an a"era$e'si7ed adult male or$an in full erection without producin$ h#menal injur# Gi"in$ more wei$ht to Ches(aEs testimon#, the trial court found appellant $uilt# of the char$es and meted him the death penalt#, thus: All premises considered, the Court finds and so holds the accused Al%ert Sa#ana to %e G?I=TG %e#ond reasona%le dou%t of the crimes of 4ape in Criminal Case No 235';'.. and Criminal Case No 23A';'.. Accordin$l#, he is here%# sentenced to suffer the supreme penalt# of Death %# lethal injection on %oth counts Further, he is here%# ordered to indemnif# the complainin$ witness Ches(a An$elica de Dios in the sum of !A3,<<< << in each of the two cases Bith costs a$ainst the accused SO O4DE4ED )*3+ Appellant raised the followin$ ar$uments in his %rief: * The trial court misappreciated the findin$s of the medico'le$al, Dr A"es and disre$arded the findin$s of the medico'le$al, Dr Soliman The trial court erred in failin$ to appreciate the inconsistencies in the statement and declarations of the complainant 0 The trial court erred in findin$ that the !rosecution has esta%lished the moral certaint# sufficient to o"ercome the innocence of the accused %e#ond dou%t, despite the contradictions and inconsistencies of her declarations and her witness and impossi%ilit# of her stor# 2 The trial court erred in completel# disre$ardin$ the defense of the accused 3 The trial court erred in failin$ to consider that complainant and her aunt were ill' moti"ated )*5+ Be re"erse the decision of the trial court

In re"iewin$ rape cases, the Court has alwa#s %een $uided %# the followin$ principles: 8*9 an accusation of rape can %e made with facilit# and while the accusation is difficult to pro"e, it is e"en more difficult for the person accused, thou$h innocent, to dispro"e the char$eH 8-9 considerin$ that, in the nature of thin$s, onl# two persons are usuall# in"ol"ed in the crime of rape, the testimon# of the complainant must %e scrutini7ed with $reat cautionH and 809 the e"idence for the prosecution must stand or fall on its own merit, and cannot %e allowed to draw stren$th from the wea(ness of the e"idence for the defense )*A+ The $ra"amen in the crime of rape is carnal (nowled$e The prosecution must pro"e %e#ond reasona%le dou%t that the accused had se&ual contact with the alle$ed "ictim This, the prosecution failed to do in this case Bhile the complainant testified that appellant forced her into se&ual intercourse on two occasions, the ph#sical e"idence clouds her testimon# 4ecords show that the complainant was e&amined %# se"eral doctors ,owe"er, onl# the reports of the last two doctors who e&amined her were offered as e"idence The report of Dr Anna%el Soliman, ;edico'=e$al Officer of the NCI shows that there were no si$ns of injur# in complainantEs $enitalia In a later e&amination, howe"er, conducted %# Dr ;anuel A"es of the Culacan !ro"incial Crime =a%orator# Office, a healed superficial h#menal laceration at *-:<< position was found Dr A"es e&plained that the location of the laceration e&cludes se&ual intercourse as possi%le cause thereof Dr A"es e&plained that lacerations found on the upper portion of the h#men are normall# caused %# instrumentation %ut not %# se&ual contact Dr A"es testified as follows on direct e&amination: &&& D: A: Bill #ou please tell us, on the %asis of this medico le$al report, what were #our findin$s in #our e&aminationN There are two sta$es of e&aminin$ the "ictim One is e&tra$enital and two is $enital area In the e&tra$enital, there was 8sic9 no remar(a%le findin$s The "ul"a is er#thematous, the full area of the $enital area is inflamed, con$ested There is a%sence of pu%ic hair, the la%ia majora is captated 8 sic9 which is normal, the la%ia minora is li$ht pin(ish which is normal color and then on the h#men I noted a superficial laceration, healed at *- oEcloc( position and then it is also elastic with a diameter of * - to * 3 cm which is too wide for her at her a$e and then the e&ternal orifice, there is a less resistance upon insertin$ ru$ositis 8sic9 then the cer"i& is smooth, ne$ati"e for spermato7oa with the remar(s that the su%ject is in a non'"ir$in state durin$ the time of e&amination ;r Bitness, what could %e 8sic9 caused this "ul"a to %ecome er#thematousN There is a si$n of manipulation on that area, sir

D: A:

&&&)*/+ On cross'e&amination, Dr A"es ruled out penile penetration as possi%le cause of the h#menal laceration, and su%mitted that it was more pro%a%l# caused %# instrumentation, thus: &&&

D: A: D:

Now, #ou ha"e this findin$ here superficial laceration healed at *- oEcloc( position, in la#manEs lan$ua$e, what do #ou mean here when #ou sa# *- oEcloc(N It is the position of the laceration For e&ample, that cloc(, the *- oEcloc( is on the upper portion, the 5 oEcloc( position is the lower position, sir On the %asis of #our e&perience, when #ou had e&amined the patients in connection with rape cases, is it normal in rape case that the laceration is *oEcloc( or at the 5 oEcloc( positionN If there were 8sic9 se&ual intercourse or penetration of the "a$ina, the most common of the laceration is the lower portion 3, 5, A oEcloc( position, sir Bhen #ou said the most common laceration if there was se&ual intercourse is 3, 5, A oEcloc( position, it is unusual to ha"e laceration at *- oEcloc( positionN There is no penile penetration on that part It mi$ht %e insertion of the fin$er or an# instrument, sir If the laceration is 5 oEcloc(, I said if the laceration is located at the lower portion of the area of the h#men, the most common cause is se&ual intercourse or penile penetration, sir And what do #ou attri%ute usuall# to the presence of the laceration at *- oEcloc( positionN ?suall# it mi$ht %e caused %# insertion of fin$ers or an# instrument, sir Bould #ou sa# that such is more common with respect to the *- oEcloc( positionN Ges, sir Than se&ual intercourseN Ges, sir Cut #ou are precludin$ the possi%ilit# that it was due to penile penetrationN Ges, sir

A: D: A:

D: A: D: A: D: A: D: A:

Att# 4amos: D: A: Doctor, the purported laceration that #ou found to 8 sic9 Ches(a An$elica is at *oEcloc(, #ou did not find an# laceration at 5 oEcloc( areaN It is onl# at the *- oEcloc( position, sir

Court: D: A: Is it not a fact that there are some h#menal elasticit# if there is se&ual intercourse, 8sic9 #ou cannot find lacerationN Ges, sir

Att# 4amos: D: ;r Bitness, in the case of se&ual intercourse, when a man is on top of a woman and ma(in$ an up and down mo"ement of the penis, #ou will a$ree that it is 5 oEcloc( position would %e the possi%le lacerationN Ges, sir, it is common And %efore the *- oEcloc( position could %e affected, 8 sic9 it should %e the 5 oEcloc( position in an up and down mo"ementN ?suall# it is the 5 oEcloc( position the most common, sir On the %asis of #our findin$s, Doctor, what could %e the cause of #our findin$ of the laceration at *- oEcloc( position could it %e se&ual intercourse or manipulationN In this particular case, it is manipulation, sir In this caseN Ges, Gour ,onor Bh# do #ou sa# thatN Cecause the position of the laceration of the h#men, sir The e&tent of the lacerationN Ges, sir, it is too shallow

A: D: A: D: A: D: A: D: A: D: A:

&&&)*.+ The e&planation $i"en %# Dr A"es who testified for the prosecution itself, plus the fact that complainant underwent se"eral $#necolo$ical e&aminations %efore she went to the Culacan !ro"incial Crime =a%orator# Office discount the credi%ilit# of the latterEs testimon# that she has %een raped Be are not unmindful of the CourtEs rulin$ that the a%sence of laceration in the h#men does not preclude the e&istence of rape and that when a woman states that she has %een raped, she states all that is necessar# to pro"e the offense These principles, howe"er, do not in themsel"es support a con"iction The# must %e wei$hed with the presumption of innocence of the accused To support a findin$ of $uilt, it is necessar# that the complainantEs stor# %e %elie"a%le in itself )-<+ In this case, we find complainantEs testimon# to %e unclear and mar(ed %# some dou%tful alle$ations For one, she failed to esta%lish that the# were alread# li"in$ with appellant in Ta%an$, !laridel, Culacan in ;arch *..A, the alle$ed time of the commission of the first offense She testified on direct e&amination that the# were alread# residin$ in Ta%an$, !laridel, Culacan in ;arch *..A ,er testimon#, howe"er, was impu$ned %# her school records which showed that she went to school in A A1uino Elementar# School in Tondo, ;anila as Grade II pupil until Octo%er *..A It was onl# in Octo%er *..A when she

transferred to Ta%an$ Elementar# School in Culacan On cross e&amination, it appeared that she was unsure of the time when the# mo"ed to appellantEs house in Culacan, thus: &&& Att# 4amos: Ches(a An$elica, last time #ou stated that %efore #ou li"ed in !laridel, Culacan, #ou were in ;anilaN A: D: A: D: A: Ges, sir And #ou would a$ree with me that #our address in ;anila is at Solis Street, Tondo, ;anilaN Ges, sir And #ou left that place sometime in Octo%er *..AN No, sir

Court: Bhen was it when #ou and #our famil# transferred to 8sic9 Tondo to !laridelN A: &&& Court: In Tondo, did #ou $o to schoolN A: D: A: Ges, sir Bhat $radeN Grade I and (inder ;onth of :anuar# I for$ot the #ear and date

Att# 4amos: Did #ou not start #our $rade II in TondoN A: No, sir

Court: So, #ou started schoolin$ for $rade II in Ta%an$ and not in TondoN A: I started m# $rade II in Tondo and I stopped then and transferred to Ta%an$, !laridel

Att# 4amos: And #ou continued #our $rade II in Ta%an$, !laridel %ecause at that time, #ou transferred #our residence from Tondo to Ta%an$N A: D: A: Ges, sir Gou transferred #our $rade II in Ta%an$, !laridel, Culacan sometime in :anuar# when #ou transferred to !laridelN 8no answer 9

Court: The Court will propound the 1uestion Bhen #ou were in $rade II, can #ou recall whether it was Christmas %efore or after Christmas when #ou transferred to Ta%an$ and ultimatel# #ou conducted #our $rade II in the elementar# school of the latterEs plac8e9N A: Cefore Christmas, #our ,onor

Att# 4amos: A while a$o, #ou said that it was in the month of :anuar# when #ou transferred #our residence from Tondo to !laridel, now are #ou sa#in$ that that was also the month when #ou transferred to !laridel and enrolled in Grade IIN A: Ges, sir

Court: Bh# did #ou sa# that #ou transferred %efore Christmas, what can #ou sa# a%out thatN A: D: A: Cefore Christmas Do #ou understand 8what9 the month of :anuar# isN 8no answer 9

Court: The Court would li(e to apprise #ou that the month of :anuar# comes after ChristmasN A: D: Ges, sir So, wh# is it that earlier, #ou said that #ou transferred in :anuar#H whereas, in the latter part when #ou were as(ed %# the Court, #ou said #ou transferred %efore Christmas and of course, %efore Christmas, did #ou mean that was %efore :anuar# when #ou transferredN

A: D:

I do not (now The child ma#%e in 8sic9 confused, %ecause there were transfer of residence and transfer of school Now, the time that #ou transferred, was it from the place, from the $rade II in Tondo to $rade II in Ta%an$N Coth, #our ,onor

A:

&&&)-*+ The time when complainant mo"ed to Culacan is a material fact that must %e clearl# esta%lished %# the prosecution %ecause appellant could not ha"e committed the offense if it were true that complainant was still in ;anila and appellant was in Cataan at the alle$ed time of its commission In addition, we o%ser"e that complainantEs narration of how appellant alle$edl# ra"ished her on two occasions were incredi%l# identical, as if lifted from a sin$le script Be ha"e held in se"eral cases that the lone uncorro%orated testimon# of the complainant is sufficient to warrant a con"iction, pro"ided that such is credi%le, natural, con"incin$ and consistent with human nature and the normal course of thin$s ,owe"er, we ha"e also held that the testimon# of the complainant should not %e recei"ed with precipitate credulit# %ut with utmost caution The test for determinin$ the credi%ilit# of complainantEs testimon# is whether it is in conformit# with common (nowled$e and consistent with the e&perience of man(ind Bhate"er is repu$nant to these standards %ecomes incredi%le and lies outside judicial co$ni7ance )--+ ComplainantEs testimon# in this case fails to satisf# the test of credi%ilit# ;oreo"er, it appears that complainantEs aunts ha"e sufficient moti"e to concoct falsehoods a$ainst appellant The latter mentioned se"eral reasons wh# the# resented him and the prosecution ne"er refuted these alle$ations The records show that these char$es were filed a$ainst appellant upon the promptin$ of complainantEs aunts In rape cases, it is the primordial dut# of the prosecution to present its case with clarit# and persuasion to the end that con"iction %ecomes the onl# lo$ical and ine"ita%le conclusion !roof %e#ond reasona%le dou%t is re1uired Althou$h the law does not demand a%solute certaint# of $uilt, it nonetheless re1uires moral certaint# to support a jud$ment of con"iction Bhere the inculpator# facts admit of se"eral interpretations, one consistent with accusedEs innocence and another with his $uilt, the e"idence thus adduced fails to meet the test of moral certaint# and it %ecomes the constitutional dut# of the Court to ac1uit the accused )-0+ Such is the case here IN VIE( ( EREOF, appellant Al%ert Sa#ana is ACD?ITTED The Director of the Cureau of Corrections is here%# ordered to immediatel# release appellant from the New Cili%id !rison and to report to this Court compliance with this order within fi"e 839 da#s from receipt hereof SO ORDERED. LLLLLLLLL ;.&. no. 1)%-)2