EN BANC

G.R. No. L-46428

April 13, 1939

THE PEOPLE OF THE PHILIPPINES, plaintiffappellee,

vs.
IRINEO TUMLOS, defendant-appellant.
Marcelo Nubla for appellant.
Office of the Solicitor-General Ozaeta and Acting
Assistant Attorney Kahn for appellee.
VILLA-REAL, J.:
The defendant Irineo Tumlos appeals to this court
from the judgment of the Court of First Instance of
Iloilo finding him guilty of the crime of theft of large
cattle defined and punished in article 310, in relation
to article 309, of the Revised Penal Code, and
sentencing him to suffer the indeterminate penalty of
from two months and one day of arresto mayor to two
years, four months and one day of prision
correccional, with the accessories prescribed by law
and costs, by virtue of an information reading as
follows:
The undersigned acting provincial
fiscal accuses Irineo Tumlos of the
crime of qualified theft committed as
follows:
That on or about November 21, 1937,
in the municipality of Sara, Province of
Iloilo, Philippines, and within the
jurisdiction of this court, said
defendant, wilfully and without using
force upon things or violence or
intimidation against person, took, with
intent to gain and without the consent
of their owner, five cows valued at P39
and belonging to Ambrosio Pecasis.
An act punishable by law.
Iloilo, July 11, 1938.
In support of his appeal the appellant assigns as the
only error allegedly committed by the lower court in
the aforesaid judgment its failure to sustain the
defense of "autrefois convict" or double jeopardy,
interposed by said defendant.
On or about November 21, 1937, eight cows
belonging to Maximiano Sobrevega and five

belonging to his son-in-law, Ambrosio Pecasis, then

grazing together in the barrio of Libong-cogon,
municipality of Sara, Province of Iloilo, were taken by
the herein defendant without the knowledge or
consent of their respective owners. The deputy fiscal
of Iloilo filed on July 11, 1938, an information against
the said defendant for the offense of theft of the eight
cows belonging to Maximiano Sobrevega, which
resulted in his being sentenced on July 15, 1938, to
an indeterminate penalty of from one year, eight
months and twenty-one days to five years, five
months and eleven days of prision correccional, with
the accessories prescribed by law and costs. In the
information filed in the present case the same
defendant is charged with the theft of five cows
belonging to Ambrosio Pecasis, committed on
November 21, 1937, the date of the commission of
the theft to the eight cows of Maximiano Sobrevega
charged to the previous information.
The question to be decided in the present appeal is
whether or not the conviction of the accused for the
theft of the eight cows belonging to Maximiano
Sobrevega constitutes a bar to his conviction for the
theft of the five cows belonging to Ambrosio Pecasis,
which were grazing together with the aforesaid eight
cows belonging to Maximiano Sobrevega in the same
place from which they were stolen at the same time,
under the legal procedural principle of "autrefois
convict" or double jeopardy.
The theft of the thirteen cows committed by the
defendant took place at the same time and in the
same place; consequently, he performed but one act.
The fact that eight of said cows pertained to one
owner and five to another does not make him
criminally liable for two distinct offenses, for the
reason that in such case the act must be divided into
two, which act is not susceptible of division.
The intention was likewise one, namely, to take for the
purpose of appropriating or selling the thirteen cows
which he found grazing in the same place. As neither
the intention nor the criminal act is susceptible of
division, the offense arising from the concurrence of
its two constituent elements cannot be divided, it
being immaterial that the subject matter of the offense
is singular or plural, because whether said subject
matter be one or several animate or inanimate
objects, it is but one.
Therefore, as the five cows alleged to be stolen by
Irineo Tumlos were integral parts of the thirteen cows
which were the subject matter of theft, and as he had
already been tried for and convicted of the theft of the
other five.

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Wherefore, as he had already been put in jeopardy of

being convicted of the theft of the five cows in
question when he was tried for and convicted of the
theft of the eight which together with the five from an
integral part of the thirteen which were the subject
matter of the offense, the conviction of the herein
defendant Irineo Tumlos for the said five cows in the
present case would be the second, in violation of his
constitutional right not to be punished twice for the
same offense; hence, he is acquitted of the charge,
which is dismissed, with costs de oficio. So ordered.
Avancea, C. J., Imperial, Diaz, Laurel, Concepcion,
and Moran, JJ., concur.
SECOND DIVISION

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

THE PEOPLE OF THE PHILIPPINES, plaintiffappellee,
vs.
ELIAS JARANILLA, RICARDO SUYO, FRANCO
BRILLANTES and HEMAN GORRICETA, accused.
ELIAS JARANILLA, RICARDO SUYO, and
FRANCO BRILLANTES, defendants-appellants.
Office of the Solicitor General Felix V. Makasiar,
Assistant Solicitor General Felicisimo R. Rosete and
Solicitor Antonio M. Martinez for plaintiff-appellee.
Sixto P. Dimaisip for defendants-appellants.

AQUINO, J.:p
This is an appeal of defendants Elias Jaranilla,
Ricardo Suyo and Franco Brillantes from the decision
of the Court of First Instance of Iloilo, which convicted
them of robbery with homicide, sentenced each of
them to reclusion perpetua and ordered them to pay
solidarily the sum of six thousand pesos to the heirs of
Ramonito Jabatan and the sum of five hundred pesos
to Valentin Baylon as the value of fighting cocks
(Criminal Case No. 11082).
The evidence for the prosecution shows that at
around eleven o'clock in the evening of January 9,
1966, Gorriceta, who had just come from Fort San
Pedro in Iloilo City, was driving a Ford pickup truck
belonging to his sister, Remia G. Valencia. While he
was in front of the Elizalde Building on J. M. Basa

Street, he saw Ricardo Suyo, Elias Jaranilla and

Franco Brillantes. They hailed Gorriceta who stopped
the truck. Jaranilla requested to bring them to
Mandurriao, a district in another part of the city.
Gorriceta demurred. He told Jaranilla that he
(Gorriceta) was on his way home.
Jaranilla prevailed upon Gorriceta to take them to
Mandurriao because Jaranilla ostensibly had to get
something from his uncle's place. So, Jaranilla,
Brillantes and Suyo boarded the pickup truck which
Gorriceta drove to Mandurriao.
Upon reaching Mandurriao, Gorriceta parked the truck
at a distance of about fifty to seventy meters from the
provincial hospital. Jaranilla, Suyo and Brillantes
alighted from the vehicle. Jaranilla instructed
Gorriceta to wait for them. The trio walked in the
direction of the plaza. After an interval of about ten to
twenty minutes, they reappeared. Each of them was
carrying two fighting cocks. They ran to the truck.
Jaranilla directed Gorriceta to start the truck because
they were being chased. Gorriceta drove the truck to
Jaro (another district of the city) on the same route
that they had taken in going to Mandurriao.
It is important to note the positions of Gorriceta and
his three companions on the front seat of the track.
Gorriceta the driver, was on the extreme left. Next to
him on his right was Suyo. Next to Suyo was
Brillantes. On the extreme right was Jaranilla.
While the truck was traversing the detour road near
the Mandurriao airport, then under construction,
Gorriceta saw in the middle of the road Patrolmen
Ramonito Jabatan and Benjamin Castro running
towards them. Gorriceta slowed down the truck after
Patrolman Jabatan had fired a warning shot and was
signalling with his flashlight that the truck should stop.
Gorriceta stopped the truck near the policeman.
Jabatan approached the right side of the truck near
Jaranilla and ordered all the occupants of the truck to
go down. They did not heed the injunction of the
policeman.
Brillantes pulled his revolver but did not fire it. Suyo
did nothing. Jaranilla, all of a sudden, shot Patrolman
Jabatan. The shooting frightened Gorriceta. He
immediately started the motor of the truck and drove
straight home to La Paz, another district of the city.
Jaranilla kept on firing towards Jabatan.
Jaranilla, Suyo and Brillantes alighted in front of
Gorriceta's house. Gorriceta parked the truck inside
the garage. Jaranilla warned Gorriceta not to tell

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anybody about the incident. Gorriceta went up to his

room. After a while, he heard policemen shouting his
name and asking him to come down. Instead of doing
so, he hid in the ceiling. It was only at about eight
o'clock in the morning of the following day that he
decided to come down. His uncle had counselled him
to surrender to the police. The policemen took
Gorriceta to their headquarters. He recounted the
incident to a police investigator.
Victorino Trespeces, whose house was located
opposite the house of Valentin Baylon on Taft Street
in Mandurriao, testified that before midnight of
January 9, 1966, he conducted a friend in his car to
the housing project in the vicinity of the provincial
hospital at Mandurriao. As he neared his residence,
he saw three men emerging from the canal on Taft
Street in front of Baylon's house. He noticed a red
Ford pickup truck parked about fifty yards from the
place where he saw the three men. Shortly thereafter,
he espied the three men carrying roosters. He
immediately repaired to the police station at
Mandurriao. He reported to Patrolmen Jabatan and
Castro what he had just witnessed. The two
policemen requested him to take them in his car to the
place where he saw the three suspicious-looking men.
Upon arrival thereat, the men and the truck were not
there anymore.
Trespeces and the policemen followed the truck
speeding towards Jaro. On reaching the detour road
leading to the airport, the policemen left the car and
crossed the runway which was a shortcut. Their
objective was to intercept the truck. Trespeces turned
his car around in order to return to Mandurriao. At that
moment he heard gunshots. He stopped and again
turned his car in the direction where shots had
emanated. A few moments later, Patrolman Castro
came into view. He was running. He asked Trespeces
for help because Jabatan, his comrade, was
wounded. Patrolman Castro and Trespeces lifted
Jabatan into the car and brought him to the hospital.
Trespeces learned later that Jabatan was dead.
Doctor Raymundo L. Torres, the chief medico-legal
officer of the Iloilo City police department, conducted
an autopsy on the remains of Patrolman Jabatan. He
found:
(1) Contusion on left eyebrow.
(2) Bullet wound one
centimeter in diameter,
penetrating left anterior axilla,
directed diagonally downward
to the right, perforating the left

upper lobe of the lungs

through and through, bitting
the left pulmonary artery and
was recovered at the right
thoracic cavity; both thoracic
cavity was full of blood.
Cause of death: Shock,
hemorrhage, secondary to
bullet wound.
Valentin Baylon, the owner of the fighting cocks,
returned home at about six o'clock in the morning of
January 10, 1966. He discovered that the door of one
of his cock pens or chicken coops (Exhs. A and A-1)
was broken. The feeding vessels were scattered on
the ground. Upon investigation he found that six of his
fighting cocks were missing. Each coop contained six
cocks. The coop was made of bamboo and wood with
nipa roofing. Each coop had a door which was locked
by means of nails. The coops were located at the side
of his house, about two meters therefrom.
Baylon reported the loss to the police at Mandurriao.
At about ten o'clock, a group of detectives came to his
house together with the police photographer who took
pictures of the chicken coops. The six roosters were
valued at one hundred pesos each. Two days later,
he was summoned to the police station at Mandurriao
to identify a rooster which was recovered somewhere
at the airport. He readily identified it as one of the six
roosters which was stolen from his chicken coop (Exh.
B).
Gorriceta, Jaranilla, Suyo and Brillantes were charged
with robo con homicidio with the aggravating
circumstances of use of a motor vehicle, nocturnity,
band, contempt of or with insult to the public
authorities and recidivism. The fiscal utilized Gorriceta
as a state witness. Hence, the case was dismissed as
to him.
On February 2, 1967, after the prosecution had rested
its case and before the defense had commenced the
presentation of its evidence, Jaranilla escaped from
the provincial jail. The record does not show that he
has been apprehended.
The judgment of conviction was promulgated as to
defendants Suyo and Brillantes on October 19, 1967
when it was read to them in court. They signed at the
bottom of the last page of the decision.
There was no promulgation of the judgment as to
Jaranilla, who, as already stated, escaped from jail
(See Sec. 6, Rule 120, Rules of Court).

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However, the notice of appeal filed by defendants'

counsel de oficio erroneously included Jaranilla.
Inasmuch as the judgment has not been promulgated
as to Jaranilla, he could not have appealed. His
appeal through counsel cannot be entertained. Only
the appeals of defendants Suyo and Brillantes will be
considered.
In convicting Suyo, Jaranilla and Brillantes of robo con
homicidio, the trial court assumed that the taking of
the six fighting cocks was robbery and that Patrolman
Jabatan was killed "by reason or on the occasion of
the robbery" within the purview of article 294 of the
Revised Penal Code.
In this appeal the appellants contend that the trial
court erred in not finding that Gorriceta was the one
who shot the policeman and that Jaranilla was driving
the Ford truck because Gorriceta was allegedly drunk.
Through their counsel de oficio, they further contend
that the taking of roosters was theft and, alternatively,
that, if it was robbery, the crime could not be robbery
with homicide because the robbery was already
consummated when Jabatan was killed.
After evaluating the testimonies of Gorriceta and
Brillantes as to who was driving the truck and who
shot policeman, this Court finds that the trial court did
not err in giving credence to Gorriceta's declaration
that he was driving the truck at the time that Jaranilla
shot Jabatan.
The improbability of appellants' theory is manifest.
The truck belonged to Gorriceta's sister. He was
responsible for its preservation. He had the obligation
to return it to his sister in the same condition when he
borrowed it. He was driving it when he saw Brillantes,
Jaranilla and Suyo and when he allegedly invited
them for a paseo. There is no indubitable proof that
Jaranilla knows how to drive a truck.
The theory of the defense may be viewed from
another angle. If, according to the appellants,
Gorriceta asked Jaranilla to drive the truck because
he (Gorriceta) was drunk then that circumstance
would be inconsistent with their theory that Gorriceta
shot Jabatan. Being supposedly intoxicated, Gorriceta
would have been dozing when Jabatan signalled the
driver to stop the truck and he could not have thought
of killing Jabatan in his inebriated state. He would not
have been able to shoot accurately at Jabatan. But
the fact is that the first shot hit Jabatan. So, the one
who shot him must have been a sober person like
Jaranilla.

Moreover, as Jaranilla and his two comrades were

interested in concealing the fighting cocks, it was
Jaranilla, not Gorriceta, who would have the motive
for shooting Jabatan. Consequently, the theory that
Gorriceta shot Jabatan and that Jaranilla was driving
the truck appears to be plausible.
Was the taking of the roosters robbery or theft? There
is no evidence that in taking the six roosters from their
coop or cages in the yard of Baylon's house violence
against or intimidation of persons was employed.
Hence, article 294 of the Revised Penal Code cannot
be invoked.
Neither could such taking fall under article 299 of the
Revised Penal Code which penalizes robbery in an
inhabited house (casa habitada), public building or
edifice devoted to worship. The coop was not inside
Baylon's house. Nor was it a dependency thereof
within the meaning of article 301 of the Revised Penal
Code.
Having shown the inapplicability of Articles 294 and
299, the next inquiry is whether the taking of the six
roosters is covered by article 302 of the Revised
Penal Code which reads:
ART. 302. Robbery in an uninhabited place or in
private building.Any robbery committed in an
uninhabited place or in a building other than those
mentioned in the first paragraph of article 299, if the
value of the property exceeds 250 pesos, shall be
punished by prision correccional in its medium and
maximum periods provided that any of the following
circumstances is present:
1. If the entrance has been
effected through any opening
not intended for entrance or
egress.
2. If any wall, roof, floor or
outside door or window has
been broken.
3. If the entrance has been
effected through the use of
false keys, picklocks or other
similar tools.
4. If any door, wardrobe,
chest, or any sealed or closed
furniture or receptacle has
been broken.

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5. If any closed or sealed

receptacle, as mentioned in
the preceding paragraph, has
been removed, even if the
same be broken open
elsewhere.
xxx xxx xxx
In this connection, it is relevant to note that there is an
inaccuracy in the English translation of article 302.
The controlling Spanish original reads:
ART. 302. Robo en lugar no
habitado o edificio particular.
El robo cometido en un lugar
no habitado o en un edificio
que no sea de los
comprendidos en el parrafo
primero del articulo 299, ... .
(Tomo 26, Leyes Publicas
479).
The term "lugar no habitado" is erroneously
translated. as "uninhabited place", a term which may
be confounded with the expression "uninhabited
place" in articles 295 and 300 of the Revised Penal
Code, which is the translation of despoblado and
which is different from the term lugar no habitado in
article 302. The term lugar no habitado is the antonym
of casa habitada (inhabited house) in article 299.
One essential requisite of robbery with force upon
things under Articles 299 and 302 is that the
malefactor should enter the building or dependency,
where the object to be taken is found. Articles 299
and 302 clearly contemplate that the malefactor
should enter the building (casa habitada o lugar no
habitado o edificio). If the culprit did not enter the
building, there would be no robbery with force upon
things. (See Albert, Revised Penal Code, 1932
edition, p. 688).
Thus, where the accused broke the show-window of
the Bombay Palace Bazar at Rizal Avenue, Manila
and removed forty watches therefrom, the crime was
theft and not robbery because he did not enter the
building. The show-window was outside the store.
(People vs. Adorno, CA 40 O. G. 567, per
Montemayor, J., who later became a member of this
Court). *
In the instant case, the chicken coop where the six
roosters were taken cannot be considered a building
within the meaning of article 302. Not being a building,
it cannot be said that the accused entered the same in

order to commit the robbery by means of any of the

five circumstances enumerated in article 302.
The term "building" in article 302, formerly 512 of the
old Penal Code, was construed as embracing any
structure not mentioned in article 299 (meaning not an
"inhabited house or public building or edifice devoted
to worship" or any dependency thereof) used for
storage and safekeeping of personal property. As thus
construed, a freight car used for the shipment of sugar
was considered a private building. The unnailing of a
strip of cloth nailed over the door, the customary
manner of sealing a freight car, was held to constitute
breaking by force within the meaning of article 512,
now article 302. (U.S. vs. Magsino, 2 Phil. 710).
The ruling in the Magsino case is in conflict with the
rulings of the Supreme Court of Spain that a railroad
employee who, by force, opens a sealed or locked
receptacle deposited in a freight car, does not commit
robbery. He is guilty of theft because a railroad car is
neither a house nor a building within the meaning of
article 302 which corresponds to article 525 of the
1870 Spanish Penal Code. Article 302 refers to
houses or buildings which, while not actually
inhabited, are habitable. Thus, a pig sty is not a
building within the meaning of article 302. The
stealing of hogs from a pig sty is theft and not
robbery, although the culprit breaks into it. Article 302
refers to habitable buildings. (Guevara, Revised Penal
Code, 1939 Edition, pages 555-6, citing II Hidalgo
Codigo Penal 636-7, 642, which in turn cites the
decisions of the Spanish Supreme Court dated March
2, 1886 and April 25, 1887). **
As may be seen from the photographs (Exhs. A and
A-1) Baylon's coop, which is known in the dialect as
tangkal or kulungan, is about five yards long, one yard
wide and one yard high. It has wooden stilts and
bamboo strips as bars. The coop barely reaches the
shoulder of a person of average height like Baylon. It
is divided into six compartments or cages. A
compartment has an area of less than one cubic yard.
A person cannot be accommodated inside the cage or
compartment. It was not intended that a person
should go inside that compartment. The taking was
effected by forcibly opening the cage and putting the
hands inside it to get the roosters.
Therefore, the taking of the six roosters from their
coop should be characterized as theft and not
robbery. The assumption is that the accused were
animated by single criminal impulse. The conduct of
the accused reveals that they conspired to steal the
roosters. The taking is punishable as a single offense
of theft. Thus, it was held that the taking of two

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roosters in the same place and on the same occasion

cannot give rise to two crimes of theft (People vs. De
Leon, 49 Phil. 437, citing decision of Supreme Court
of Spain dated July 13, 1894 and 36 C. J. 799; People
vs. Tumlos, 67 Phil. 320; People vs. Villanueva, 49
O.G. 5448, L-10239, August 7, 1953).
Nocturnity and use of a motor vehicle are aggravating.
Those circumstances facilitated the commission of the
theft. The accused intentionally sought the cover of
night and used a motor vehicle so as to insure the
success of their nefarious enterprise (People vs. Tan,
89 Phil. 647, 660; People vs. Gardon, 104 Phil. 372).
Also to be appreciated against appellants Suyo and
Brillantes is the aggravating circumstance of
recidivism which was alleged in the information. They
admitted their previous convictions for theft (130, 132
tsn; Exhs. I and J; Art. 14[9], Revised Penal Code).
The theft of six roosters valued at six hundred pesos
is punishable by prision correccional in its minimum
and medium periods (Art. 309[3], Revised Penal
Code). That penalty should be imposed in its
maximum period because only aggravating
circumstances are present (Art. 64[3], Revised Penal
Code).
Although recidivists, appellants Suyo and Brillantes
are not habitual delinquents. They are entitled to an
indeterminate sentence (Sec. 2, Act No. 4103).
With respect to the killing of Patrolman Jabatan, it has
already been noted that the evidence for the
prosecution points to Jaranilla as the malefactor who
shot that unfortunate peace officer. The killing was
homicide because it was made on the spur of the
moment. The treacherous mode of attack was not
consciously or deliberately adopted by the offender
(U.S. vs. Namit, 38 Phil. 926; People vs. Tumaob, 83
Phil. 738; People vs. Abalos, 84 Phil. 771).
The twenty-four year old Jabatan was an agent of
authority on night duty at the time of the shooting. He
was wearing his uniform. The killing should be
characterized as a direct assault (atentado) upon an
agent of authority (Art. 148, Revised Penal Code)
complexed with homicide. The two offenses resulted
from a single act. (Art. 48, Revised Penal Code;
People vs. Guillen, 85 Phil. 307; People vs. Lojo, Jr.,
52 Phil. 390).
The evidence for the prosecution does not prove any
conspiracy on the part of appellants Jaranilla, Suyo
and Brillantes to kill Jabatan. They conspired to steal
the fighting cocks. The conspiracy is shown by the

manner in which they perpetrated the theft. They went

to the scene of the crime together. They left the yard
of Baylon's residence, each carrying two roosters.
They all boarded the getaway truck driven by
Gorriceta.
The theft was consummated when the culprits were
able to take possession of the roosters. It is not an
indispenable element of theft that the thief carry, more
or less far away, the thing taken by him from its owner
(People vs. Mercado, 65 Phil. 665; Duran vs. Tan, 85
Phil. 476; U.S vs. Adiao, 38 Phil. 754).
It is not reasonable to assume that the killing of any
peace officer, who would forestall the theft or frustrate
appellants' desire to enjoy the fruits of the crime, was
part of their plan. There is no evidence to link
appellants Suyo and Brillantes to the killing of
Jabatan, except the circumstance that they were with
Jaranilla in the truck when the latter shot the
policeman. Gorriceta testified that Suyo did not do
anything when Jabatan approached the right side of
the truck and came in close proximity to Jaranilla who
was on the extreme right. Brillantes pulled his revolver
which he did not fire (47, 53-55 tsn). Mere presence at
the scene of the crime does not necessarily make a
person a co-principal thereof.
Jaranilla heard Gorriceta's testimony that he
(Jaranilla) shot Jabatan. Instead of taking the witness
stand to refute the testimony of Gorriceta, Jaranilla
escaped from jail. That circumstance is an admission
of guilt.
The instant case is different from People vs.
Mabassa, 65 Phil. 568 where the victim was killed on
the occasion when the accused took his chickens
under the house. It is distinguishable from the People
vs. Gardon, 104 Phil. 372 and People vs. Salamudin
No. 1, 52 Phil. 670 (both cited by the Solicitor
General) where the robbery was clearly proven and
the homicide was perpetrated on the occasion of the
robbery. As already noted, theft, not robbery, was
committed in this case.
The situation in this case bears some analogy to that
found in the People vs. Basisten, 47 Phil. 493 where
the homicide committed by a member of the band was
not a part of the common plan to commit robbery.
Hence, only the person who perpetrated the killing
was liable for robbery with homicide. The others were
convicted of robbery only.
There is a hiatus in the evidence of the prosecution as
to the participation of Suyo and Brillantes in the killing
of Jabatan by Jaranilla. As already stated, no robbery

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with homicide was committed. Therefore, it cannot be

concluded that those two appellants have any
responsibility for Jabatan's death. Their complicity in
the homicide committed by Jaranilla has not been
established.
WHEREFORE, the judgment of the trial court
convicting appellants Ricardo Suyo and Franco
Brillantes of robbery with homicide is reversed. They
are acquitted of homicide on the ground of reasonable
doubt.
As co-principals with Elias Jaranilla in the theft of the
six fighting cocks, they are (a) each sentenced to an
indeterminate penalty of six (6) months of arresto
mayor as minimum to four (4) years and two (2)
months of prision correccional as maximum and (b)
ordered to indemnify solidarily the complainant,
Valentin Baylon, in the sum of five hundred pesos
(P500). Each appellant should pay one-third of the
costs.
As to the liability of Elias Jaranilla for theft and
homicide, with direct assault upon an agent of
authority, trial court should render a new judgment
consistent with this opinion (See Sec. 19, Art. IV,
Constitution).
So ordered.
Zaldivar (Chairman), Fernando, Antonio and
Fernandez, JJ., concur.

Separate Opinions

BARREDO, J., concurring:

I concur.
I am in full accord with the findings of fact and the
legal rationalization and conclusions in the main
opinion very ably written for the Court by Mr. Justice
Aquino.
I would like to make the observation, however, that I
cannot find any error in the literal translation of the
term "lugar no habitado" used in the controlling

Spanish text Article 302 into "uninhabited place"

appearing in the English version. The correct concept
of the said term as used in Article 302 is indeed
different from the "uninhabited place" contemplated in
Articles 295 and 300, which means "despoblado" or
open country referring to a "lugar", meaning place,
site or space where nobody lives or is usually found.
And, of course, it is also clear to me that Article 302
refers to as an "uninhabited place" is really an
unoccupied or uninhabited house, the antonym of the
"casa habitada" referred to in Article 299. But I cannot
bring self to the thought that the word "lugar" in Article
302 may literally be translated to anything else than
"place, site space". I simply cannot see in it the
specific connotation of house or building. Maybe it is
the wording of the Spanish text that is somewhat
inaccurate, unless it can be shown, which I am afraid
cannot be done, that colloquially or somewhere in the
Spanish speaking world, said word means house or
building or any structure wherein personal properties
may be deposited, stored or kept.
I would prefer to footnote Article 302 the same way
Justice Luis B. Reyes of the Court of Appeals does,
thus:
The "uninhabited place"
mentioned in Article 302 is a
building, because paragraphs
Nos. 1 and 3 speak of
"entrance," which necessarily
refers to a building. (The
Revised Penal Code by Luis
B. Reyes, Vol. II, 1968, p.
617.)
In that way, I believe the true and correct meaning of
the provision is clarified without attributing any
possible misconstruction to faulty literal translation,
which I am convinced does not exist. I reiterate, the
error in translation noted in the main opinion is
inevitable for while the literal translation is
indubitably accurate, on the other hand, as a matter of
construction, the correct interpretation is different.
Evidently, the Spanish text uses "lugar" for house,
building or structure, and, to my mind, that is not the
sense that word is usually understood in Spanish. But
I agree that what is contemplated in Article 302 is not
"despoblado" but simply an unoccupied or
uninhabited house, building or structure. In other
words, it appears that the correct expression that
should be in Article 302 is "uninhabited house,"
disregarding, consequently, the inaccurate reference
to "lugar" in the Spanish text and sticking, by way of
construction, to the correct concept of the thing really
contemplated.

Page 7 of 39
CRIM LAW 1

Separate Opinions
BARREDO, J., concurring:
I concur.
I am in full accord with the findings of fact and the
legal rationalization and conclusions in the main
opinion very ably written for the Court by Mr. Justice
Aquino.
I would like to make the observation, however, that I
cannot find any error in the literal translation of the
term "lugar no habitado" used in the controlling
Spanish text Article 302 into "uninhabited place"
appearing in the English version. The correct concept
of the said term as used in Article 302 is indeed
different from the "uninhabited place" contemplated in
Articles 295 and 300, which means "despoblado" or
open country referring to a "lugar", meaning place,
site or space where nobody lives or is usually found.
And, of course, it is also clear to me that Article 302
refers to as an "uninhabited place" is really an
unoccupied or uninhabited house, the antonym of the
"casa habitada" referred to in Article 299. But I cannot
bring self to the thought that the word "lugar" in Article
302 may literally be translated to anything else than
"place, site space". I simply cannot see in it the
specific connotation of house or building. Maybe it is
the wording of the Spanish text that is somewhat
inaccurate, unless it can be shown, which I am afraid
cannot be done, that colloquially or somewhere in the
Spanish speaking world, said word means house or
building or any structure wherein personal properties
may be deposited, stored or kept.
I would prefer to footnote Article 302 the same way
Justice Luis B. Reyes of the Court of Appeals does,
thus:
The "uninhabited place"
mentioned in Article 302 is a
building, because paragraphs
Nos. 1 and 3 speak of
"entrance," which necessarily
refers to a building. (The
Revised Penal Code by Luis
B. Reyes, Vol. II, 1968, p.
617.)

In that way, I believe the true and correct meaning of

the provision is clarified without attributing any
possible misconstruction to faulty literal translation,
which I am convinced does not exist. I reiterate, the
error in translation noted in the main opinion is
inevitable for while the literal translation is
indubitably accurate, on the other hand, as a matter of
construction, the correct interpretation is different.
Evidently, the Spanish text uses "lugar" for house,
building or structure, and, to my mind, that is not the
sense that word is usually understood in Spanish. But
I agree that what is contemplated in Article 302 is not
"despoblado" but simply an unoccupied or
uninhabited house, building or structure. In other
words, it appears that the correct expression that
should be in Article 302 is "uninhabited house,"
disregarding, consequently, the inaccurate reference
to "lugar" in the Spanish text and sticking, by way of
construction, to the correct concept of the thing really
contemplated.
EN BANC

G.R. No. 109266 December 2, 1993

MIRIAM DEFENSOR SANTIAGO, petitioner,
vs.
HON. JUSTICE FRANCIS GARCHITORENA,
SANDIGANBAYAN (First Division) and PEOPLE
OF THE PHILIPPINES, respondents.
Amado M. Santiago, Jr. for petitioner.
The Solicitor General for the People of the
Philippines.

QUIASON, J.:
This is a petition for certiorari under Rule 65 of the
Revised Rules of Court to set aside: (a) the
Resolution dated March 3, 1993 in Criminal Case
No. 16698 of the Sandiganbayan (First Division) and
to declare Presiding Justice Francis Garchitorena of
the Sandiganbayan, disqualified from acting in said
criminal case; and (b) the Resolution of said court
promulgated on
March 14, 1993, which deemed as "filed" the 32
Amended Informations against petitioner (Rollo, pp. 235 and pp. 36-94).

Page 8 of 39
CRIM LAW 1

On May 1, 1991, petitioner was charged in Criminal

Case No. 16698 of the Sandiganbayan with violation
of Section 3(e) of R.A. No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt
Practices Act, allegedly committed by her favoring
"unqualified" aliens with the benefits of the Alien
Legalization Program (Rollo, p. 36).
On May 24, 1991, petitioner filed with us a petition for
certiorari and prohibition, docketed as G.R. No.
99289-99290 (Santiago v. Vasquez, 205 SCRA 162
[1992]), to enjoin the Sandiganbayan from proceeding
with Criminal Case No. 16698 on the ground that said
case was intended solely to harass her as she was
then a presidential candidate. She alleged that this
was in violation of Section 10, Article IX-C of the
Constitution which provides that "(b)ona fide
candidates for any public office shall be free from any
form of harassment and discrimination." The petition
was dismissed on January 13, 1992.

incidents pending before it (Re: disqualification of

Presiding Justice Garchitorena and the motion for the
bill of particulars).
At the hearing on November 13, 1992 on the motion
for a bill of particulars, the prosecution stated
categorically that they would file only one amended
information against petitioner.
However, on December 8, 1992, the prosecution filed
a motion to
admit the 32 Amended Informations (Criminal Cases
Nos. 18371 to 18402; Rollo, pp. 61-126).
On March 3, 1993, Presiding Justice Garchitorena
issued the questioned Resolution dated March 11,
1993, denying the motion for his disqualification
(Rollo, pp. 151-164).

On October 16, 1992, petitioner filed a motion for

inhibition of Presiding Justice Garchitorena, which
motion was set for hearing on November 13, 1992 at
8:00 A.M. (Rollo, pp. 38-41).

On March 14, 1993, the Sandiganbayan (First

Division) promulgated a resolution, admitting the 32
Amended Informations and ordering petitioner to post
the corresponding bail bonds within ten days from
notice (Rollo, pp. 165-185). Petitioner's arraignment
on the 32 Amended Informations was set for
April 12, 1993 at 8:00 A.M. (Rollo, p. 186).

On October 27, 1992, the Sandiganbayan (First

Division), of which Presiding Justice Garchitorena is a
member, set the criminal case for arraignment on
November 13, 1992 at 8:00 A.M. (Rollo, p. 42)

Hence, the filing of the instant petition.

On November 6, 1992, petitioner moved to defer the

arraignment on the grounds that there was a pending
motion for inhibition, and that petitioner intended to file
a motion for a bill of particulars (Rollo, pp. 43-44).
On November 9, 1992, the Sandiganbayan (First
Division) denied the motion to defer the arraignment
(Rollo, p. 45).
On November 10, 1992, petitioner filed a motion for a
bill of particulars (Rollo, pp. 47-48). The motion stated
that while the information alleged that petitioner had
approved the application or legalization of "aliens" and
gave them indirect benefits and advantages it lacked
a list of the favored aliens. According to petitioner,
unless she was furnished with the names and
identities of the aliens, she could not properly plead
and prepare for trial.
On November 12, 1992 and upon motion of petitioner
in G.R.
No. 107598 (Miriam Defensor Santiago v.
Sandiganbayan, et al.), we directed the
Sandiganbayan (First Division) to reset the
arraignment to a later date and to dispose of the two

CRIM LAW 1

Acting on the petition for the issuance of a restraining

order, we issued the Resolution dated March 25,
1993, ordering Presiding Justice Garchitorena "to
CEASE and DESIST from sitting in the case until the
question of his disqualification is finally resolved by
this Court and from enforcing the resolution dated
March 11, 1993, ordering petitioner to post bail bonds
for the 32 Amended Informations and from proceeding
with the arraignment on
April 12, 1993" (Rollo, p. 194).
Re: Disqualification of the Sandiganbayan Presiding
Justice
The petition for disqualification of Presiding Justice
Garchitorena is based on the publication of is letter in
the July 29, 1992 issue of the Philippine Star, which to
petitioner "prejudged" the validity of the information
filed
against her. Petitioner claims that Presiding Justice
Garchitorena "cannot be expected to change the
conclusions he has subconsciously drawn in his
public statements . . . when he sits in judgment on the
merits of the case . . ." (Rollo, pp. 16-17).
The letter in question was written in response to an
item in Teodoro Benigno's column in the July 22,
Page 9 of 39

1992 issue of the Philippine Star, criticizing the

Sandiganbayan for issuing on July 11, 1992 a holddeparture order against petitioner. Benigno wrote that
said order reflected a "perverse morality" of the
Sandiganbayan and the lack of "legal morality" of its
Presiding Justice, thus:
I cannot, for example accept
the legal morality of
Sandiganbayan Justice
Francis Garchitorena who
would stop Miriam Defensor
Santiago from going abroad
for a Harvard scholarship
because of graft charges
against her. Some of the most
perfidious Filipinos I know
have come and gone, left and
returned to these shores
without Mr. Garchitorena
kicking any kind of rumpus.
Compared to the peccadilloes
of this country's outstanding
felons, what Miriam is accused
of is kindergarten stuff. The
Sandiganbayan Supremo got
a lot of headlines for stopping
Miriam but I contend this is the
kind of perverse morality we
can do without (Rollo, p. 156).
The portion of the letter of Presiding Justice
Garchitorena, which petitioner finds objectionable,
reads as follows:
(c) Mrs. Santiago has never
informed any court where her
cases are pending of her
intention to travel, whether the
Regional Trial Court where
she is charged with soliciting
donations from people
transacting with her office at
Immigration or before the
Sandiganbayan where she is
charged with having favored
unqualified aliens with the
benefits of the Alien
Legalization Program nor even
the Supreme Court where her
petition is still pending (Rollo,
p. 158).
In particular, petitioner considered as prejudgment the
statement of Presiding Justice Garchitorena that
petitioner had been charged before the

Sandiganbayan "with having favored unqualified

aliens with the benefits of the Alien Legalization
Program."
The statement complained of was just a restatement
of the Information filed against petitioner in Criminal
Case No. 16698 in connection with which the holddeparture order was issued. Said Information
specified the act constituting the offense charged,
thus:
That on or about October 17,
1988, or for sometime prior or
subsequent thereto, in Manila,
Philippines, and within the
jurisdiction of this Honorable
Court, accused Miriam
Defensor-Santiago, being then
the Commissioner of the
Commission on Immigration
and Deportation, with evident
bad faith and manifest
partiality, did then and there
willfully, unlawfully and
criminally approve the
application for legalization of
aliens who arrived in the
Philippines after January 1,
1984 in violation of Executive
Order No. 324 dated April 13,
1988 which does not allow the
legalization of the same,
thereby causing undue injury
to the government and giving
unwarranted benefits and
advantages to said aliens in
the discharge of the official
and administrative functions of
said accused (Rollo, p. 36).
It appears that petitioner tried to leave the country
without first securing the permission of the
Sandiganbayan, prompting it to issue the holddeparture order which Benigno viewed as uncalled
for. The letter of Presiding Justice Garchitorena,
written in defense of the dignity and integrity of the
Sandiganbayan, merely stated that all persons facing
criminal charges in court, with no exception, have to
secure permission to leave the country. Nowhere in
the letter is the merit of the charge against petitioner
ever touched. Certainly, there would have been no
occasion for the letter had Benigno not written his
diatribe, unfair at that, against the Sandiganbayan.
Notwithstanding petitioner's misgiving, it should be
taken into consideration that the Sandiganbayan sits

Page 10 of 39
CRIM LAW 1

in three divisions with three justices in each division.

Unanimity among the three members is mandatory for
arriving at any decision of a division (P.D. No. 1606,
Sec. 5). The collegiate character of the
Sandiganbayan thus renders baseless petitioner's
fear of prejudice and bias on the part of Presiding
Justice Garchitorena (Paredes v. Gopengco, 29
SCRA 688 [1969] ).
Re: Claim of denial of due process
Petitioner cannot complain that her constitutional
rights to due process were violated by reason of the
delay in the termination of the preliminary
investigation. According to her, while the offense was
allegedly committed "on or before October 17, 1988",
the information was filed only on May 9, 1991 and the
amended informations on December 8, 1992 (Rollo,
p. 14).

Petitioner next claims that the Amended Informations

did not charge any offense punishable under Section
3 (e) of R.A. No. 3019 because the official acts
complained of therein were authorized under
Executive Order No. 324 and that the Board of
Commissioners of the Bureau of Investigation
adopted the policy of approving applications for
legalization of spouses and unmarried, minor children
of "qualified aliens" even though they had arrived in
the Philippines after December 31, 1983. she
concludes that the Sandiganbayan erred in not
granting her motion to quash the informations (Rollo,
pp. 25-31).
In a motion to quash, the accused admits
hypothetically the allegations of fact in the information
(People v. Supnad, 7 SCRA 603 [1963] ). Therefore,
petitioner admitted hypothetically in her motion that:
(1) She was a public officer;

Tatad v. Sandiganbayan, 159 SCRA 70 [1988] is

inapplicable to petitioner's case. In Tatad, there
indeed was an unexplained inaction on the part of the
public prosecutors inspite of the simplicity of the legal
and factual issues involved therein.
In the case at bench, there was a continuum of the
investigatory process but it got snarled because of the
complexity of the issues involved. The act complained
of in the original information came to the attention of
the Ombudsman only when it was first reported in the
January 10, 1989 issue of the Manila Standard.
Immediately thereafter, the investigatory process was
set in motion. The investigation was first assigned to
Special Prosecutor Gualberto dela Llana but on
request of petitioner herself the investigation was first
assigned to Special Prosecutor Gualberto dela Llana
but on request of petitioner herself the investigation
was re-assigned to the Office of the Deputy
Ombudsman for Luzon. The case was handled by a
panel of four prosecutors, who submitted a draft
resolution for the filing of the charges on March 29,
1990. The draft resolution had to undergo the
hierarchy of review, normal for a draft resolution with
a dissenting vote, until it reached the Ombudsman in
March 1991.
We note that petitioner had previously filed two
petitions before us involving Criminal Case No. 16698
(G.R. Nos. 99289-99290; G.R.
No. 107598). Petitioner has not explained why she
failed to raise the issue of delay in the preliminary
investigation and the filing of the information against
her in those petitions. a piece-meal presentation of
issues, like the splitting of causes of action, is selfdefeating.

CRIM LAW 1

(2) She approved the

application for legalization of
the stay of aliens, who arrived
in the Philippines after January
1, 1984;
(3) Those aliens were
disqualified;
(4) She was cognizant of such
fact; and
(5) She acted in "evident bad
faith and manifest partiality in
the execution of her official
functions."
The foregoing allegations of fact constitute the
elements of the offense defined in Section 3 (e) of
R.A. No. 3019.
The claims that the acts complained of were indeed
authorized under Executive Order No. 324, that
petitioner merely followed in good faith the policy
adopted by the Board of Commissioners and that the
aliens were spouses or unmarried minor children of
persons qualified for legalization of stay, are matters
of defense which she can establish at the trial.
Anent petitioner's claim that the Amended
Informations did not allege that she had caused
"undue injury to any party, including the Government,"
there are two ways of violating Section 3 (e) of R.A.
No. 3019. These are: (a) by causing undue injury to
any party, including the Government; and (b) by giving
Page 11 of 39

any private party any unwarranted benefit, advantage

or preference.
In Uy v. Sandiganbayan, G.R. No. 100334, December
5, 1991, we held:
The use of the distinctive term
"or" connotes that either act
qualifies as a violation of
Section 3 (a). In other words
the act of giving any private
party any unwarranted benefit,
advantage or preference is not
an indispensable element of
the offense of "causing any
undue injury to any party" as
claimed by petitioners
although there may be
instances where both
elements concur.
Re: Delito continuado
Be that as it may, our attention was attracted by the
allegation in the petition that the public prosecutors
filed 32 Amended Informations against petitioner, after
manifesting to the Sandiganbayan that they would
only file one amended information (Rollo, pp. 6-61).
We also noted that petitioner questioned in her
opposition to the motion to admit the 32 Amended
Informations, the splitting of the original information
(Rollo, pp. 127-129). In the furtherance of justice, we
therefore proceed to inquire deeper into the validity of
said plant, which petitioner failed to pursue with vigor
in her petition.
We find that, technically, there was only one crime
that was committed in petitioner's case, and hence,
there should only be one information to be file against
her.
The 32 Amended Informations charge what is known
as delito continuado or "continued crime" and
sometimes referred to as "continuous crime."
In fairness to the Ombudsman's Office of the Special
Prosecutor, it should be borne in mind that the
concept of delito continuado has been a vexing
problem in Criminal Law difficult as it is to define
and more difficult to apply.
According to Cuello Calon, for delito continuado to
exist there should be a plurality of acts performed
during a period of time; unity of penal provision
violated; and unity of criminal intent or purpose, which
means that two or more violations of the same penal

provisions are united in one and same instant or

resolution leading to the perpetration of the same
criminal purpose or aim
(II Derecho Penal, p. 520; I Aquino, Revised Penal
Code, 630, 1987 ed.).
According to Guevarra, in appearance, a delito
continuado consists of several crimes but in reality
there is only one crime in the mind of the perpetrator
(Commentaries on the Revised Penal Code, 1957 ed.,
p. 102; Penal Science and Philippine Criminal Law, p.
152).
Padilla views such offense as consisting of a series of
acts arising from one criminal intent or resolution
(Criminal Law, 1988 ed. pp. 53-54).
Applying the concept of delito continuado, we treated
as constituting only one offense the following cases:
(1) The theft of 13 cows
belonging to two different
owners committed by the
accused at the same time and
at the same period of time
(People v. Tumlos, 67 Phil.
320 [1939] ).
(2) The theft of six roosters
belonging to two different
owners from the same coop
and at the same period of time
(People v. Jaranillo, 55 SCRA
563 [1974] ).
(3) The theft of two roosters in
the same place and on the
same occasion (People v. De
Leon, 49 Phil. 437 [1926] ).
(4) The illegal charging of fees
for services rendered by a
lawyer every time he collects
veteran's benefits on behalf of
a client, who agreed that the
attorney's fees shall be paid
out of said benefits (People v.
Sabbun, 10 SCRA 156 [1964]
). The collection of the legal
fees were impelled by the
same motive, that of collecting
fees for services rendered,
and all acts of collection were
made under the same criminal
impulse (People v. Lawas, 97
Phil. 975 [1955] ).

Page 12 of 39
CRIM LAW 1

On the other hand, we declined to apply the concept

to the following cases:
(1) Two estafa cases, one of
which was committed during
the period from January 19 to
December 1955 and the other
from January 1956 to July
1956 (People v. Dichupa, 113
Phil. 306 [1961] ). The said
acts were committed on two
different occasions.
(2) Several malversations
committed in May, June and
July, 1936, and falsifications to
conceal said offenses
committed in August and
October 1936. The
malversations and
falsifications "were not the
result of only one purpose or
of only one resolution to
embezzle and falsify . . ."
(People v. Cid, 66 Phil. 354
[1938] ).
(3) Two estafa cases, one
committed in December 1963
involving the failure of the
collector to turn over the
installments for a radio and the
other in June 1964 involving
the pocketing of the
installments for a sewing
machine (People v. Ledesma,
73 SCRA 77 [1976] ).
(4) 75 estafa cases committed
by the conversion by the agent
of collections from customers
of the employer made on
different dates (Gamboa v.
Court of Appeals, 68 SCRA
308 [1975]).

latter provide the contrary. Hence, legal principles

developed from the Penal Code may be applied in a
supplementary capacity to crimes punished under
special laws.
The question of whether a series of criminal acts over
a period of time creates a single offense or separate
offenses has troubled also American Criminal Law
and perplexed American courts as shown by the
several theories that have evolved in theft cases.
The trend in theft cases is to follow the so-called
"single larceny" doctrine, that is, the taking of several
things, whether belonging to the same or different
owners, at the same time and place constitutes but
one larceny. Many courts have abandoned the
"separate larceny doctrine," under which there is a
distinct larceny as to the property of each victim. Also
abandoned was the doctrine that the government has
the discretion to prosecute the accused or one
offense or for as many distinct offenses as there are
victims (annotation, 37 ALR 3rd 1407, 1410-1414).
The American courts following the "single larceny"
rule, look at the commission of the different criminal
acts as but one continuous act involving the same
"transaction" or as done on the same "occasion"
(State v. Sampson, 157 Iowa 257, 138 NW 473;
People v. Johnson, 81 Mich. 573, 45 NW 1119; State
v. Larson, 85 Iowa 659, 52 NW 539).
An American court held that a contrary rule would
violate the constitutional guarantee against putting a
man in jeopardy twice for the same offense
(Annotation, 28 ALR 2d 1179). Another court
observed that the doctrine is a humane rule, since if a
separate charge could be filed for each act, the
accused may be sentenced to the penitentiary for the
rest of his life (Annotation, 28 ALR 2d 1179).
In the case at bench, the original information charged
petitioner with performing a single criminal act that
of her approving the application for legalization of
aliens not qualified under the law to enjoy such
privilege.

The concept of delito continuado, although an outcry

of the Spanish Penal Code, has been applied to
crimes penalized under special laws,
e.g. violation of R.A. No. 145 penalizing the charging
of fees for services rendered following up claims for
war veteran's benefits (People v. Sabbun, 10 SCRA
156 [1964] ).

The original information also averred that the criminal

act : (i) committed by petitioner was in violation of a
law Executive Order No. 324 dated
April 13, 1988, (ii) caused an undue injury to one
offended party, the Government, and (iii) was done on
a single day, i.e., on or about October 17, 1988.

Under Article 10 of the Revised Penal Code, the Code

shall be supplementary to special laws, unless the

The 32 Amended Informations reproduced verbatim

the allegation of the original information, except that
instead of the word "aliens" in the original information

Page 13 of 39
CRIM LAW 1

each amended information states the name of the

individual whose stay was legalized.
At the hearing of the motion for a bill of particulars, the
public prosecutors manifested that they would file only
one amended information embodying the legalization
of stay of the 32 aliens. As stated in the Order dated
November 12, 1992 of the Sandiganbayan (First
Division):
On the matter of the Bill of
Particulars, the prosecution
has conceded categorically
that the accusation against
Miriam Defensor Santiago
consists of one violation of the
law represented by the
approval of the applications of
32 foreign nationals for
availment (sic) of the Alien
Legalization Program. In this
respect, and responding
directly to the concerns of the
accused through counsel, the
prosecution is categorical that
there will not be 32
accusations but only one . . .
(Rollo, p. 59).
The 32 Amended Informations aver that the offenses
were committed on the same period of time, i.e., on or
about October 17, 1988. The strong probability even
exists that the approval of the application or the
legalization of the stay of the 32 aliens was done by a
single stroke of the pen, as when the approval was
embodied in the same document.
Likewise, the public prosecutors manifested at the
hearing the motion for a bill of particulars that the
Government suffered a single harm or injury. The
Sandiganbayan in its Order dated November 13, 1992
stated as follows:
. . . Equally, the prosecution
has stated that insofar as the
damage and prejudice to the
government is concerned, the
same is represented not only
by the very fact of the violation
of the law itself but because of
the adverse effect on the
stability and security of the
country in granting citizenship
to those not qualified (Rollo, p.
59).

WHEREFORE, the Resolution dated March 3, 1993 in

Criminal Case No. 16698 of the Sandiganbayan (First
Division) is AFFIRMED and its Resolution dated
March 11, 1993 in Criminal Case No. 16698 is
MODIFIED in the sense that the Office of the Special
Prosecutor of the Office of the Ombudsman is
directed to consolidate the 32 Amended Informations
(Criminal Cases Nos. 18371 to 18402) into one
information charging only one offense under the
original case number, i.e., No. 16698. The temporary
restraining order issued by this Court on March 25,
1993 is LIFTED insofar as to the disqualification of
Presiding Justice Francis Garchitorena is concerned.
SO ORDERED.
EN BANC

G.R. No. 110617 December 29, 1994

GERUNCIO H. ILAGAN, CLARO PION and
ROSENDO PION, petitioners,
vs.
HON. COURT OF APPEALS, HON. ARTURO A.
ROMERO, SALVADOR Q. QUIMPO and
HOMETRUST DEVELOPMENT CORPORATION,
respondents.
Rony A. Cirilos for petitioners.
Andres L. Tuaa for Hometrust Development Corp.

REGALADO, J.:
This case presents another instance of the mode of
advocacy that bedevils our criminal justice system,
evoking thereby the jeremiad of herein respondent
corporation against the abuse of certiorari for
unnecessary delay in the resolution of a mere
interlocutory order. Indeed, considering its revelations
and the supporting annexes to its comment, 1 this
appeal as initially resolved by the First Division was
advisedly accepted by the Court En Banc so that we
may write finis to such a simple incident as a motion to
quash which for years has regrettably held up the
adjudication on the merits of the main criminal actions.

The records show that on July 21, 1992, eight

informations were filed and docketed as Criminal
Cases Nos. C-40482 to C-40489 in the Regional Trial
Court, Branch 120, Kalookan City, charging herein

Page 14 of 39
CRIM LAW 1

petitioners Geruncio H. Ilagan, Claro Pion and

Rosendo Pion as co-conspirators in the crime of
estafa.
The information in Criminal Case No. C-40482 2
contained the following accusatory allegations:

That on or about covering the

period from July, 1990 up to
December, 1991 in Kalookan
City, MM, Philippines and
within the jurisdiction of this
Honorable Court, the abovenamed accused bei(ng) then
the President, Finance
Manager and Sales Director,
respectively, of the Apple
Realty and Development
Corporation, a Corporation
duly appointed Agent of the
HOMETRUST
DEVELOPMENT
CORPORATION, herein
represented by its Manager,
one SALLY S. GO, defrauded
and deceived the latter in the
following manner, to wit: said
accused conspiring and
confederating with one
another, by means of false
manifestations and fraudulent
representations which they
made to the prospective lots
and houses and lot buyers,
namely: Erlinda Sayasa,
Rogelio Damasco, Gina G.
Teston, Filomena Lanoz(o),
Natividad Diaz, Florida
Gargoles and Marce(l)ita
Ranara, that is, by
representing themselves that
they are authorized to
collect/receive and issue
receipts of payments from said
buyers, accused knowing fully
well that they are not
authorized to do so, induced
and convinced herein buyers
to give and deliver, as in fact,
the latter did give and deliver
to said accused the total
amount of P353,500.00,
Philippine Currency, who
instead of remitting the same
amount to the Hometrust
Development Corporation, with
deliberate intent to defraud,

CRIM LAW 1

did then and there wilfully, and

unlawfully and feloniously
misapply, misappropriate and
convert to their own personal
use and benefit the said
amount and despite repeated
demands made upon them,
refused and failed and still fail
and refuse to restitute the
same, to the damage and
prejudice of the said
Corporation, in the
aforementioned total amount
of P353,500.00. (Corrections
in parentheses ours.)
On the other hand, in Criminal Case No. C-40483, 3
the information alleged as follows:

That on or about the first week

of June to Nov. 23, 1991 in
Kalookan City, MM,
Philippines and within the
jurisdiction of this Honorable
Court, the above-named
accused, being then a
President, Finance Manager
and Sales Director,
respectively, of the Apple
Realty and Development
Corporation, conspiring and
confederating with one
another, defrauded and
deceived the HOMETRUST
DEVELOPMENT
CORPORATION, herein
represented by its MANAGER,
one SALLY S. GO, in the
following manner, to wit: said
accused being then duly
appointed as Agents of the
said Corporation in a Contract
of Agency dated July 30, 1990
and they are authorized to sell
lots and/or houses and lots to
prospective buyers on a
commission basis with the
restrictions however, that
herein Agents cannot receive
any form of payment from
buyers as well as to issue any
receipt therefor, accused
knowing fully well of the said
agreement the terms and
conditions of which are
embodied in the said Contract,
induced and convinced one
Page 15 of 39

MARCELITA RANARA to buy

and purchase lots and/or
house and lots and receive
payments and issue receipts
therefor, as in fact herein
complainant did give the total
amount of P24,000.00 to said
accused, representing as the
reservation fee/downpayment
of the lots and/or houses and
lots purchase price, when in
truth and in fact, they are not
entitled to do so, much less,
have no personality to collect
whatever amount from said
prospective buyers, but said
accused, once in possession
of the said amount, with
deliberate intent to defraud,
did then and there wilfully,
unlawfully and feloniously
misapply, misappropriate and
convert to their own personal
use and benefit the said
amount, and despite repeated
demands made upon them to
return/deliver the said amount,
failed and refused and still fail
and refuse to restitute the
same, to the damage and
prejudice of the complainant
thereof, in the aforementioned
amount of P24,000.00,
Philippine Currency.
Uniformly, all the indictments in Criminal Cases Nos.
C-40484 to
40489 4 contained the same allegations as those in
Criminal Case No. C-40483, except with respect to the
offended party, the date of commission of the offense,
and the amount subject of the offense, thus:

CASE NO. OFFENDED DATE

OF AMOUNT
PARTY COMMISSION
C-40484 Rogelio Damasco
April 30, 1991 to P60,000.00
August 22, 1991
C-40485 Gina G. Teston June,
1991 to 169,000.00
November 4, 1991
C-40486 Natividad Diaz May,
1991 to 19,000.00
July, 1991
C-40487 Erlinda Sayasa July
21, 1991 to 133,500.00

October 18, 1991

C-40488 Filomena Lanozo
May, 1991 to 19,000.00
July, 1991
C-40489 Florida Gargoles
May, 1991 to 29,000.00
July, 1991
I
According to petitioners, on July 30, 1992 they moved
to quash the informations in Criminal Cases Nos. C40483 to C-40489 on the ground of duplicity of
offenses charged therein. The same was dismissed
by the trial court in its order of December 10, 1992
which is hereunder reproduced:
Acting on the "Motion to
Quash" and the "Opposition"
thereto, and considering, as
urged, that each Information
filed against the accused in
Crim. Cases Nos. 40482,
40483, 40484, 40485, 40486,
40487, 40488 and 40489
indubitably show different
private complainants involving
different transactions
committed on different dates,
which assertion is further
reinforced by the averment in
the affidavit-complaints
executed by the complainants
in each (of the) aforesaid
criminal cases, the movant's
contention therefore that the
ground alleged in the Motion to
Quash is within the provision
of Sec. 3, Rule 117, is
untenable.
The applicable rule on the
question of duplicitous
Information is Sec. 2(e), Rule
117, not Sec. 3 of Rule 117 as
urged.
As correctly pointed out by the
public prosecutor, the
duplicitous Information
presupposes one or more
offenses contained in one or
(a) single Information under
Sec. 2(e), Rule 117, Rules of
Court.

Page 16 of 39
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But read as it should be, each

Information here clearly
alleges only one offense for
one single act, consequently,
the Rule in question does not
apply.
Accordingly, the Motion to
Quash is hereby DENIED. 5
Unfazed, and obviously for the same purpose since
they raised exactly the same contentions, petitioners
sought the extraordinary writ of certiorari and
prohibition from the Court of Appeals to set aside the
aforesaid denial order of the trial court. In its decision 6
in CA-G.R. SP No. 31021 promulgated on June 22,
1993, said appellate court made short shrift of the
pretensions of petitioners in these terse observations:

Petitioners allege that the

informations are duplicitous
and the trial court should have
quashed them. They contend
that the complainants in
Criminal Case No. 40482 and
the individual complainants in
the seven other cases
(Criminal Case No. 4048340489) are one and the same
and that the acts alleged in the
first case (No. 40482) to have
been committed during the
period July, 1990 to
December, 1991 are the same
acts charged individually in the
other seven cases (Nos.
40483-40489) on dates
covered by the same period
alleged in the first case.
Petitioners argue that in
refusing to quash the
informations, the trial court
committed a grave abuse of
discretion.
These contentions are without
merit. To be sure, an
information is considered
duplicitous and therefore
subject to dismissal if it
charges more than one
offense except in cases in
which a single punishment is
prescribed for various
offenses. (Rule 117, Sec.
3[e]). In the case at bar, each

information charges only one

offense of estafa and,
therefore, there is no basis for
moving to quash on the
ground of duplicity of offense.
Nonetheless, in an apparent gesture of understanding
accommodation and by way of guidance to petitioners
on the error of their ways even on such elementary
procedural matters, respondent court deigned to
proceed further and extended this solicitous
explanation to them:
What probably petitioners want
to say is that for the same act
alleged to constitute the crime
of estafa they are being held
liable to two complainants. For
the theory of the prosecution
appears to be that during the
period July 1990 to December
1991, petitioners, as agents of
the respondent Hometrust
Development Corp. defrauded
and deceived both Hometrust
Development and the lot
buyers by representing to the
latter that they (petitioners)
were authorized to receive
payments when in fact they
were not, and were thus able
to collect from the lot owners
the total amount of
P353,000.00 which they
subsequently misappropriated
and converted to their
personal use and benefit. For
this reason eight informations
were filed against petitioners
from which it is clear that the
cases involve different parties
and amounts and that the acts
alleged to constitute estafa
were committed on different
dates, to wit:
xxx xxx xxx
Thus for every single act of
misappropriation both those
from whom the amounts were
received and the Hometrust
Development to which the
payments were intended have
brought estafa cases against
the herein petitioners in (the)

Page 17 of 39
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latter's capacity as president,

finance manager and sales
director respectively of the
Apple Realty and
Development Corp., sales
agent (without authority to
receive payments) of
Hometrust Development Corp.
It is clear that each information
charges only one offense. 7
That was all, that was enough, and that was correct.
In fine, respondent Court of Appeals frontally and
succinctly confronted the sole issue of the alleged
multifariousness of the informations which was the
same and only ground invoked by petitioners in both
the trial court and the respondent court. It did not
digress into the arcanum of the application to said
criminal cases of the rule on a delito continuado or the
inapplicability of a supposed non-existent rule of litis
pendentia as applied to double jeopardy, as was done
during the deliberations in this case. Rationally, it did
not have to and, legally, it could not do so.
For, in no uncertain terms, Section 2, Rule 117 of the
1985 Rules on Criminal Procedure, as intentionally
amended for that purpose, mandatorily provides that
"(t)he motion to quash shall be in writing signed by the
accused or his counsel. It shall specify distinctly the
factual and legal grounds therefor and the court shall
consider no grounds other than those stated therein,
except lack of jurisdiction over the offense charged"
(Emphasis supplied).
All the way from the lower court, through the
respondent court, and now before this Court,
petitioners have at least been consistent in obdurately
cleaving and limiting their plaint to the lone issue of
supposed duplicitous informations. We cannot,
therefore, conceive of how the foregoing pithy
dispositions of the two courts before us could have
failed to put that matter to rest. We also cannot
understand why, despite the aforecited prohibition in
Rule 117, this Court should still be expected to
consider other grounds intrusive upon the merits of
the criminal cases involved which would disturb the
correct pronouncements of the two lower courts,
instead of summarily denying this petition. However, if
only to dissipate intransigent reservations on our
decision on this incident, and to serve as bearings to
the court a quo with regard to our ultimate resolution
thereof, we shall tread on the virtual merits of the
estafa cases in question as the facts thereof appear
from the pleadings of record.
II

Indulging all inferences in favor of petitioners, what

appears to be the implication in their otherwise
defective submissions is that despite the number of
aggrieved parties, they committed only one offense of
estafa, and solely against respondent corporation
which is now the subject of Criminal Case No. C40482. They would postulate that into said case
should be deemed integrated the separate offenses
complained of by the seven individual lot buyers,
instead of the latter being made the respective
subjects of Criminal Cases Nos.
C-40483 to C-40489.
What would seem to be the reason for that theory is
that the essential allegations of facts and the
specifications of the offenses charged in the
informations in Criminal Cases Nos. C-40483 to C40489 are supposedly the same as those stated in the
information in Criminal Case No. C-40482, hence
respondent corporation is the offended party in all the
eight informations. They would rebuke respondent
Court of Appeals for holding that the seven
complainants in the seven other informations are
different from the complainant corporation in Criminal
Case No. C-40482. Their thesis would be that since
the informations also state that petitioners had
defrauded respondent corporation, the allegations in
the informations in Criminal Cases Nos. C-40483 to
C-40489 that the acts of petitioners caused damage
and prejudice to the individual complainants
mentioned therein should be treated as superfluities.
Now, the function of the extraordinary writ of certiorari,
as it is here invoked, would be to annul and set aside
a purported grave abuse of discretion by the
prosecutor in filing several informations involving,
according to petitioners' theory, one and the same
offense. This argument, however, would completely
ignore the fact that the ground of double jeopardy was
never raised in a motion to quash, hence that ground
cannot be made the basis for attributing grave abuse
of discretion to the prosecutor. It is also inconsistent
with the reasoning advanced during our deliberations
that these cases would fall within the purview of the
constitutional right against double jeopardy were it not
for the failure of existing rules on criminal procedure
to address the instant situation. In ex hypothesi there
is no rule on double jeopardy to govern such situation
and, for that matter, it has not even been invoked in
the motion to quash, it is then unpardonably absurd to
claim that its non-application by the prosecutor could
constitute grave abuse of discretion on his part.
The core issue is, therefore, whether the offenses
separately charged in the eight informations actually
constitute only one offense or were correctly

Page 18 of 39
CRIM LAW 1

considered as eight separate crimes of estafa. No

hearing on this issue was ever conducted in the court
below as it was never raised therein; and the sole
ground of multifariousness was, since it could properly
be, resolved by the court only on the bases of the
allegations in the motion to quash without introduction
of evidence aliunde.
The issue of double jeopardy should properly have
been raised in and resolved by the trial court in the
first instance as it would necessitate evidence on the
terms of the contracts or documentation of the
transactions with the lot buyers, the rights and
obligations of the parties thereunder, the binding
effects thereof, the resolutory conditions or grounds
for rescission, any confirmation or repudiation thereof
as may have been made by respondent corporation,
and the like. In any event, the present petition could
also have been rejected outright, without thereby
causing any undue prejudice to the parties, even
merely on the bases of the present contents and state
of the records before us.
1. The crime of estafa committed against respondent
corporation, on the one hand, and those committed
against the lot buyers, on the other, are definitely
separate felonies. They were dictated by different
criminal intents, committed under different modes of
commission provided by the law on estafa,
perpetrated by different acts, consummated on
different occasions, and caused injury to different
parties.
The crime of estafa against respondent corporation
was committed through unfaithfulness or abuse of
confidence, specifically as provided in Paragraph 1(b)
of Article 315, Revised Penal Code. The operative act
in the perpetration thereof was the failure to turn over
or deliver to respondent corporation the amounts
collected by the accused, despite their duty to do so.
The felony was consummated on the dates when and
at the places where such amounts were to be
delivered to respondent corporation under the agency
agreement therefor or within a reasonable time from
receipt of the payments made by the lot buyers. The
aggrieved party was respondent corporation which
suffered damages basically to the extent of the sums
collected in its behalf but not delivered or accounted
for by the accused.
With respect to the lot buyers, the offense of swindling
was committed by deceit or false pretenses employed
prior to or simultaneously with the commission of the
fraud, more specifically as provided in Paragraph 2(a)
of the same article of the Code, that is, by the
accused falsely pretending to possess the power to

CRIM LAW 1

collect the payments due from said buyers, despite

the peculiar but specific prohibition imposed by their
said principal. The felony was perpetrated through the
aforesaid the deceitful misrepresentations which
made possible the unauthorized collections. The
offense was consummated upon receipt by the
accused of the amounts in the different occasions and
places where the payments were made by the lot
buyers. The aggrieved parties were the lot buyers
who individually and separately suffered damages by
being deprived not only of their money but primarily of
their property rights to and in the lots they respectively
purchased.
In either instance, the requisite ingredients of estafa
as separate offenses are present, that is, for
respondent corporation the elements of abuse of
confidence and damage, and for the lot buyers the
elements of deceit and damage. It has been held that
estafa can be committed with the attendance of both
modes of commission, that is, abuse of confidence
and deceit employed against the same victim and
causing damage to him. Thus, where an agent
deliberately misrepresented to the landowner the real
position of the prospective buyer of the land in order
to induce said owner to agree to a lower price and,
thereafter, the agent sold the land for the higher
amount which was actually agreed upon by him and
the buyer, and he then clandestinely misappropriated
the excess, the crime of estafa was committed under
both modes and he could be charged under either. 8
Withal, it has also been held that such estafa is more
properly categorized as one committed through abuse of
confidence. 9

With much more reason, therefore, should the offense

of estafa against respondent corporation be
considered discretely and separately from those
committed against the lot buyers since, inter alia,
different modes of commission and different parties
are concerned. Furthermore, to underscore the
distinction between the estafa committed against
respondent corporation and the lot buyers, in estafa
through abuse of confidence prior demand should be
made by the offended party on the accused to comply
with the obligation before the latter may be charged
criminally, 10 but there is no such requirement where the
estafa was committed through deceit.

11

As earlier stated, the damage sustained by the lot

buyers is distinct from that suffered by respondent
corporation since, primarily, the injury to the lot buyers
was the deprivation of their rights or the exercise
thereof over the properties they respectively
purchased. It has long been the rule that actual
damage is not necessary in estafa, as long as it is
capable of pecuniary estimation, hence mere
Page 19 of 39

temporary disturbance of property rights is equivalent

to damage. 12 Even if the prejudice is temporary, that
would suffice for the element of damage in estafa. 13
Here, the lot buyers involved in the criminal cases
subject of the present recourse have, as a direct
consequence of the acts of petitioners, been deprived of
the exercise of their rights of actual or potential
ownership over their properties since 1991 up to the
present.

That the names of the seven lot buyers and the

amounts they paid are mentioned in the information in
Criminal Case No. C-40482 does not have the
significance claimed by petitioners. These were only
mentioned therein to explain the source of and the
amounts involved, the totality whereof constituted the
element of damage to respondent corporation. On the
other hand, the statement in Criminal Cases Nos. C40483 to C-40489 that the accused "defrauded and
deceived" respondent corporation is the phrase which
should be considered as a surplusage. The
information in each of the latter seven cases
specifically refers to the individual complainant
therein, alleges how the accused "induced and
convinced (the complainant) to buy and purchase lots
and/or houses and lots and receive(d) payments and
issue(d) receipts therefor," which amounts they
represented "as the reservation fee/downpayment" for
the properties sold "when in truth and in fact they
were not entitled to do so . . . to the damage and
prejudice of the complainant thereof." Such
allegations constitute the estafa contemplated in
Paragraph 2(a) of Article 315, with the respective
complainants as the offended parties separately from
respondent corporation.
2. Consequent to the theory of identity of the offense
committed against respondent corporation vis-a-vis
those against the lot buyers, we reject petitioners'
plea for the dismissal of Criminal Cases Nos. C-40483
to C-40489 which were filed each with one lot buyer
as the offended party therein. While the felonious acts
perpetrated against said lot buyers do not constitute a
delito continuado, there must be an explicitation as to
whether, under the taxonomy in the Spanish concept
of concurso de delitos, the seven acts of defraudation
under said informations constitute material or real
plurality, hence there are seven crimes of estafa, or
should be considered as in the nature of formal or
ideal plurality, hence there is only one crime of estafa.
We rule that said seven cases fall under the category
of concurso real, hence there are seven juridically
independent crimes involving said lot buyers.

against each lot buyer on different dates and in

separate places, hence they originated from separate
criminal intents and consequently resulted in separate
felonies. 14 Furthermore, even assuming arguendo that
the defraudations were pursuant to an identical design,
they were committed over a period of about one and a
half years and at substantial intervals both in time and in
distance of situs.

More conclusive is the fact that, after the commission

of one estafa, the accused could not have had the
foreknowledge as to when or whether they could
replicate the same felony against another victim still
necessarily unknown. This lack of prevision on their
part definitely proves that the criminal intent entailed
in a preceding swindle could not operate as the same
criminal intent in futuro as regards another
subsequent estafa. 15 The inescapable conclusion is
that, all told, a total of eight crimes of estafa were
actually committed by the accused against different
victims.

3. There is, therefore, no cogency in the proposition

that the prosecutor acted with grave abuse of
discretion in filing eight separate charges of estafa, or,
for that matter, that the trial court and respondent
court are guilty of the same discretional error in
refusing to quash the eight informations.
If, as petitioners seem to apprehend, the adverse
actions of two lower courts could create a scenario of
multiple prosecutions for the same offense or, more
candidly expressed, of double jeopardy, then this is
neither the procedural stage nor the proper occasion
to pass upon that possibility. For, squarely imputable
to petitioners is the evident lack of factual basis for
and a grossly defective presentation of that issue for
this Court to rule thereon in this proceeding and at this
time.
However, this observation would not foreclose relief to
petitioners if at the trial of this case the evidence
presented and the developments therein suffice to
establish the supervenient fact that indeed there could
possibly be a breach of the rule of double jeopardy.
Under Section 8 of Rule 117, they can still hereafter
raise that defense of non bis in idem, provided that
they can lay the evidentiary bases therefor and refute
from the standpoint of substantive penal law what was
earlier said on the nature and the non-identity of the
several crimes of estafa involved which, to repeat, we
pronounced purely on the bases of existing records
sans the benefit of any evidentiary fact since none
has been adduced.

The series of acts committed against the seven lot

buyers was not the product of a single criminal intent.
The misrepresentation or deceit was employed

Page 20 of 39
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ACCORDINGLY, the impugned decision of

respondent Court of Appeals is AFFIRMED and the
instant petition is hereby DENIED, with treble costs
against petitioners. This judgment is immediately
executory and, upon entry thereof in due course, the
record of this case is ordered to be forthwith
remanded to the court a quo which is hereby
DIRECTED to take appropriate action therein with all
deliberate and practicable dispatch.
SO ORDERED.
SECOND DIVISION
G.R. No. 181626

May 30, 2011

SANTIAGO PAERA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

According to the prosecution, petitioner, without any

warning, picked-up his bolo and charged towards
Indalecio, shouting "Patyon tikaw!" (I will kill you!).
Indalecio ran for safety, passing along the way his
wife, Diosetea Darong (Diosetea) who had followed
him to the water tank. Upon seeing petitioner,
Diosetea inquired what was the matter. Instead of
replying, petitioner shouted "Wala koy gipili, bisag
babaye ka, patyon tikaw!" ("I dont spare anyone,
even if you are a woman, I will kill you!"). Diosetea
similarly scampered and sought refuge in the nearby
house of a relative. Unable to pursue Diosetea,
petitioner turned his attention back to Indalecio. As
petitioner chased Indalecio, he passed Vicente, and,
recognizing the latter, repeatedly thrust his bolo
towards him, shouting "Bisag gulang ka, buk-on nako
imo ulo!" ("Even if you are old, I will crack open your
skull!").
According to petitioner, however, it was Indalecio who
threatened him with a bolo, angrily inquiring why
petitioner had severed his water connection. This left
petitioner with no choice but to take a defensive
stance using the borrowed bolo, prompting Indalecio
to scamper.

DECISION
CARPIO, J.:
The Case
This resolves the petition for review of the ruling of
the Regional Trial Court of Dumaguete City3 (RTC)
finding petitioner Santiago Paera guilty of three counts
of Grave Threats, in violation of Article 282 of the
Revised Penal Code (RPC).
1

The Facts
As punong barangay of Mampas, Bacong, Negros
Oriental, petitioner Santiago Paera (petitioner)
allocated his constituents use of communal water
coming from a communal tank by limiting distribution
to the residents of Mampas, Bacong. The tank sits on
a land located in the neighboring barangay of
Mampas, Valencia and owned by complainant Vicente
Darong (Vicente), father of complainant Indalecio
Darong (Indalecio). Despite petitioners scheme,
Indalecio continued drawing water from the tank. On 7
April 1999, petitioner reminded Indalecio of the water
distribution scheme and cut Indalecios access.

Except for Vicente, who was seriously ill, the Darongs

testified during trial. Petitioner was the defenses lone
witness.
The Ruling of the Municipal Circuit Trial Court
The 7th Municipal Circuit Trial Court of ValenciaBacong, Negros Oriental (MCTC) found petitioner
guilty as charged, ordering petitioner to serve time
and pay fine for each of the three counts.4 The MCTC
found the prosecution evidence sufficient to prove the
elements of Grave Threats under Article 282, noting
that the Darongs persistent water tapping contrary to
petitioners directive "must have angered" petitioner,
triggering his criminal behavior.5 The MCTC rejected
petitioners defense of denial as "self-serving and
uncorroborated."6
Petitioner appealed to the RTC, reiterating his
defense of denial.
Ruling of the Regional Trial Court

The following day, petitioner inspected the tank after

constituents complained of water supply interruption.
Petitioner discovered a tap from the main line which
he promptly disconnected. To stem the flow of water
from the ensuing leak, petitioner, using a borrowed
bolo, fashioned a wooden plug. It was at this point
when Indalecio arrived. What happened next is
contested by the parties.

The RTC affirmed the MCTC, sustaining the latters

finding on petitioners motive. The RTC similarly found
unconvincing petitioners denial in light of the "clear,
direct, and consistent" testimonies of the Darongs and
other prosecution witnesses.7
Hence, this appeal.

Page 21 of 39
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Abandoning his theory below, petitioner now

concedes his liability but only for a single count of the
"continued complex crime" of Grave Threats. Further,
petitioner prays for the dismissal of the case filed by
Vicente as the latters failure to testify allegedly
deprived him of his constitutional right to confront
witnesses. Alternatively, petitioner claims he is
innocent of the charges for having acted in defense of
the property of strangers and in lawful performance of
duty, justifying circumstances under paragraphs 3 and
5, Article 11 of the RPC.8
In its Comment, the Office of the Solicitor General
(OSG) finds merit in petitioners concession of liability
for the single count of the "continued complex crime"
of Grave Threats. The OSG, however, rejects
petitioners prayer for the dismissal of Vicentes
complaint, arguing that petitioners guilt was amply
proven by the prosecution evidence, not to mention
that petitioner failed to raise this issue during trial.
Further, the OSG finds the claim of defense of
stranger unavailing for lack of unlawful aggression on
the part of the Darongs. Lastly, the OSG notes the
absence of regularity in petitioners performance of
duty to justify his conduct.9
The Issue
The question is whether petitioner is guilty of three
counts of Grave Threats.
The Ruling of the Court
We rule in the affirmative, deny the petition and affirm
the RTC.
Due Process Mischief in Raising
New Issues on Appeal
Although uncommented, petitioners adoption of new
theories for the first time before this Court has not
escaped our attention. Elementary principles of due
process forbid this pernicious procedural strategy - it
not only catches off-guard the opposing party, it also
denies judges the analytical benefit uniform theorizing
affords. Thus, courts generally refuse to pass upon
freshly raised theories.10 We would have applied this
rule here were it not for the fact that petitioners liberty
is at stake and the OSG partially views his cause with
favor.
Petitioner Liable for Three Counts of Grave
Threats

To limit his liability to one count of Grave Threats,

petitioner tries to fit the facts of the case to the
concept of "continued crime" (delito continuado) which
envisages a single crime committed through a series
of acts arising from one criminal intent or resolution.11
To fix the penalty for his supposed single continued
crime, petitioner invokes the rule for complex crime
under Article 48 of the RPC imposing the penalty for
the most serious crime, applied in its maximum
period.
The nature of the crime of Grave Threats and the
proper application of the concepts of continued and
complex crimes preclude the adoption of petitioners
theory.
Article 282 of the RPC holds liable for Grave Threats
"any person who shall threaten another with the
infliction upon the person x x x of the latter or his
family of any wrong amounting to a crime[.]" This
felony is consummated "as soon as the threats come
to the knowledge of the person threatened."12
Applying these parameters, it is clear that petitioners
threat to kill Indalecio and Diosetea and crack open
Vicentes skull are wrongs on the person amounting to
(at the very least) homicide and serious physical
injuries as penalized under the RPC. These threats
were consummated as soon as Indalecio, Diosetea,
and Vicente heard petitioner utter his threatening
remarks. Having spoken the threats at different points
in time to these three individuals, albeit in rapid
succession, petitioner incurred three separate criminal
liabilities.
Petitioners theory fusing his liability to one count of
Grave Threats because he only had "a single mental
resolution, a single impulse, and single intent"13 to
threaten the Darongs assumes a vital fact: that he had
foreknowledge of Indalecio, Diosetea, and Vicentes
presence near the water tank in the morning of 8 April
1999. The records, however, belie this assumption.
Thus, in the case of Indalecio, petitioner was as much
surprised to see Indalecio as the latter was in seeing
petitioner when they chanced upon each other near
the water tank. Similarly, petitioner came across
Diosetea as he was chasing Indalecio who had
scampered for safety. Lastly, petitioner crossed paths
with Vicente while running after Indalecio. Indeed,
petitioner went to the water tank not to execute his
"single intent" to threaten Indalecio, Diosetea, and
Vicente but to investigate a suspected water tap. Not
having known in advance of the Darongs presence
near the water tank at the time in question, petitioner
could not have formed any intent to threaten any of

Page 22 of 39
CRIM LAW 1

them until shortly before he inadvertently came across

each of them.
The importance of foreknowledge of a vital fact to
sustain a claim of "continued crime" undergirded our
ruling in Gamboa v. Court of Appeals.14 There, the
accused, as here, conceded liability to a lesser crime
one count of estafa, and not 124 as charged
theorizing that his conduct was animated by a single
fraudulent intent to divert deposits over a period of
several months. We rejected the claim
15

x x x x (Emphasis supplied)

Similarly, petitioners intent to threaten Indalecio,

Diosetea, and Vicente with bodily harm arose only
when he chanced upon each of his victims.
Indeed, petitioners theory holds water only if the facts
are altered that is, he threatened Indalecio,
Diosetea, and Vicente at the same place and at the
same time. Had this been true, then petitioners
liability for one count of Grave Threats would have
rested on the same basis grounding our rulings that
the taking of six roosters16 or 13 cows17 found at the
same place and taken at the same time results in the
commission of only one count of theft because
[t]here is no series of acts committed for the
accomplishment of different purposes, but only of one
which was consummated, and which determines the
existence of only one crime. The act of taking the
roosters [and heads of cattle] in the same place and
on the same occasion cannot give rise to two crimes
having an independent existence of their own,
because there are not two distinct appropriations nor
two intentions that characterize two separate crimes.18
(Emphasis in the original)
Having disposed of petitioners theory on the nature of
his offense, we see no reason to extensively pass
upon his use of the notion of complex crime to avail of
its liberal penalty scheme. It suffices to state that
under Article 48 of the RPC, complex crimes
encompass either (1) an act which constitutes two or
more grave or less grave offenses; or (2) an offense
which is a necessary means for committing another19
and petitioner neither performed a single act resulting
in less or less grave crimes nor committed an offense
as a means of consummating another.
The Prosecution Proved the Commission
of Grave Threats Against Vicente
We find no reversible error in the RTCs affirmance of
the MCTCs ruling, holding petitioner liable for Grave

Threats against Vicente. The prosecutions evidence,

consisting of the testimonies of Indalecio, Diosetea
and two other corroborating witnesses,20 indisputably
show petitioner threatening Vicente with death.21
Vicentes inability to take the stand, for documented
medical reason,22 does not detract from the veracity
and strength of the prosecution evidence. Petitioners
claim of denial of his constitutional right to confront
witnesses is untenable as he had every opportunity to
cross-examine the four prosecution witnesses. No law
requires the presentation of the private complainant
as condition for finding guilt for Grave Threats,
especially if, as here, there were other victims and
witnesses who attested to its commission against the
non-testifying complainant. Significantly, petitioner did
not raise Vicentes non-appearance as an issue
during the trial, indicating that he saw nothing
significant in the latters absence.
No Justifying Circumstances Attended
Petitioners
Commission of Grave Threats
There is likewise no merit in petitioners claim of
having acted to "defend[] and protect[] the water rights
of his constituents" in the lawful exercise of his office
as punong barangay.23 The defense of stranger rule
under paragraph 3, Article 11 of the RPC, which
negates criminal liability of
[a]nyone who acts in the defense of the person or
rights of a stranger, provided that the first and second
requisites mentioned in the first circumstance of this
article are present and that the person defending be
not induced by revenge, resentment or other evil
motive.
1av vphi1

requires proof of (1) unlawful aggression on the part

of the victim; (2) reasonable necessity of the means
employed to prevent or repel it; and (3) absence of
evil motives such as revenge and resentment.24 None
of these requisites obtain here. Not one of the
Darongs committed acts of aggression against third
parties rights when petitioner successively threatened
them with bodily harm. Indeed, all of them were
performing ordinary, peaceful acts Indalecio was
standing near the water tank, Diosetea was walking
towards Indalecio and Vicente was standing in the
vegetable garden a few meters away. With the
element of unlawful aggression absent, inquiry on the
reasonableness of the means petitioner used to
prevent or repel it is rendered irrelevant. As for the
third requisite, the records more than support the
conclusion that petitioner acted with resentment,
borne out of the Darongs repeated refusal to follow
his water distribution scheme, causing him to lose

Page 23 of 39
CRIM LAW 1

perspective and angrily threaten the Darongs with

bodily harm.
Lastly, the justifying circumstance of fulfillment of duty
or exercise of office under the 5th paragraph of Article
11 of the RPC lies upon proof that the offense
committed was the necessary consequence of the
due performance of duty or the lawful exercise of
office.25 Arguably, petitioner acted in the performance
of his duty to "ensure delivery of basic services"26
when he barred the Darongs access to the communal
water tank. Nevertheless, petitioner exceeded the
bounds of his office when he successively chased the
Darongs with a bladed weapon, threatening harm on
their persons, for violating his order. A number of
options constituting lawful and due discharge of his
office lay before petitioner27 and his resort to any of
them would have spared him from criminal liability.
His failure to do so places his actions outside of the
ambit of criminally immune official conduct. Petitioner
ought to know that no amount of concern for the
delivery of services justifies use by local elective
officials of violence or threats of violence.
WHEREFORE, we DENY the petition. We AFFIRM
the Decision dated 28 November 2007 of the
Regional Trial Court of Dumaguete City, Branch 39.

Managok, Malaybalay City (Bukidnon), Philippines,

and within the jurisdiction of this Honorable Court, the
above-named accused, with lewd design and with the
use of a bolo, did then and there wil[l]fully, unlawfully
and criminally have sexual intercourse with his niece,
ANGELA H. OBRIQUE, a girl 13 years of age, against
her will.
CONTRARY to and in violation of Articles 335 of the
Revised Penal Code, as amended by Republic Act
Nos. 7659 and 8353.2
On August 12, 1998, before arraignment could be had
on the charge, the prosecution moved to amend the
above information.3 Consequently, an Amended
Information was filed on August 17, 1998, worded as
follows:
That on or about the 2nd day of March, 1998, in the
evening, and prior thereto, at Purok 1, Barangay
Managok, Malaybalay City, Bukidnon, Philippines,
and within the jurisdiction of this Honorable Court, the
above-named accused, with lewd design, with force
and intimidation and with the use of a bolo, did then
and there willfully, unlawfully and criminally pull and
drag to a grassy and secluded place AND have
sexual intercourse with his niece, ANGELA H.
OBRIQUE, a girl 13 years of age, against her will.

SO ORDERED.
Contrary to and in violation of Articles 335 in relation
to 15 of the Revised Penal Code, as amended by
Republic Act Nos. 7659 and 8353.4

EN BANC
G.R. No. 146859

January 20, 2004

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
RAUL OBRIQUE y ANTONIO, Appellant.
DECISION
AZCUNA, J.:
Elevated to us for automatic appeal is the Decision1
dated November 15, 2000, of the Regional Trial Court
(RTC) of Malaybalay City, Bukidnon, Branch 8, in
Criminal Case No. 9019-98. The death penalty was
imposed on Raul Obrique y Antonio (hereafter
"appellant") for the crime of rape committed upon his
13-year old niece, private complainant Angela H.
Obrique.
The original indictment, dated July 2, 1998, reads:
That on or about the 2nd day of March, 1998, in the
evening, and prior thereto, at Purok 1, Barangay

CRIM LAW 1

On November 3, 1998, upon arraignment thereunder,

appellant, assisted by his counsel, pleaded not guilty.5
The pre-trial conference was thereafter held and the
parties came out with a Pre-Trial Agreement6 which
was signed by the prosecutor, the counsel for
appellant, as well as appellant himself.7 The
agreement embodied these pertinent stipulations:
1. Private complainant Angela Obrique in
Criminal Case No. 9018-98 for the crime of
rape, is the niece of the accused, being a
daughter of the elder brother of the accused;
2. The private complainant Angela Obrique
was born on June 19, 1984, as evidence[d] by
Certificate of Live Birth, marked as Exhibit "A;"
3. That private complainant Angela Obrique
was examined by Dr. Joselyn M. Baeyens of
the Bukidnon Provincial Hospital of
Malaybalay who issued a Medical Certificate
dated March 3, 1998, marked as Exhibit "B;"
Page 24 of 39

xxx
The same stipulations appear in the Pre-Trial Order8
issued by RTC Judge Vivencio P. Estrada, dated
November 10, 1998.
Trial on the merits followed.
Two witnesses were presented by the prosecution.
ENECITA OBRIQUE, the mother of complainant, first
took the stand, followed by ANGELA OBRIQUE
(hereafter "Angela"). Their testimonies brought forth
the following narration of facts:
The spouses Norberto and Enecita Obrique had 12
children, the youngest of whom is complainant
Angela. The couple lived with their two unmarried
sons at Purok 1, Managok, Malaybalay City, Bukidnon
(hereafter "Managok"). Appellant Raul Obrique is
Norbertos younger brother and was also staying with
them in the same house. Appellant was already past
his thirties and was still single.
Angela, on the other hand, stayed with the spouses
married daughter named Gemma. Although their
house was only 75 meters from Gemmas house,
Angela decided to stay with Gemma because she was
"afraid and disturb[ed] by the trouble in our house."9
Enecita testified that when Angela asked permission
to stay with her sister, Angela had said, "Ma, Ill stay
with Gemma because I am afraid of Uncle Raul who
is fierce."
On March 2, 1998, Enecita was in her house together
with two grandchildren. Her husband and two sons
were attending the wake of a relative, also in
Managok but located a little distance from their house.
At that time, appellant had already been staying with
them for a year. He usually left the house during the
day and came back at night.
At around 10:00 p.m., appellant arrived and struck the
shutter of the house three times with his bolo. Enecita
then opened the door and was told by appellant to
fetch Angela from her elder sister. Enecita obeyed,
stating that if she did not do so, appellant would hack
her.10 She immediately went to Gemmas house and
told the latter to wake her sister up so that Angela can
go home.
While Angela was walking with Enecita towards their
house, they saw appellant on the road. Appellant was
about to strike Enecita with his bolo when Angela
pleaded, "Tio, do not hack Mama because I am now
going home." To this appellant replied, "[A]lright, you
go home immediately but do not go inside the house,

just wait for me at the yard." Nevertheless, upon

reaching the house, mother and daughter immediately
went inside. Appellant followed them and finding that
they were already inside, he proceeded to hack the
door and demanded to know why they disobeyed his
orders. He struck the door six more times and kept
telling Angela to come down. Trembling with fear,
Enecita and Angela felt that appellant really intended
to hack them if Angela refused to obey. Thus, Angela
decided to go down but only after asking her mother
to come with her.
When the two of them went downstairs, appellant took
Angelas hand and ordered Enecita to go back
upstairs and stay in the house. Enecita testified that
appellant brought her daughter to a grassy area about
60 meters from their house. She in turn was unable to
sleep and just sat down. At around 11:00 p.m.., she
heard her daughters pleas, saying "Dont do it Tio, do
not do it." At around 1:00 a.m. of March 3, 1998, she
also heard her daughter shouting "Mama, please
help. Mama, please help."11
Accompanied by appellant, Angela returned to the
house at around 5:00 a.m. Angela sat at the kitchen
table. Her hair was crumpled and she appeared pale.
Appellant was eating and was trying to convince
Angela to eat as well but the latter refused. Appellant
then told Enecita to go and fetch Gemmas husband,
Ernesto Gutierrez. Appellant said he wanted to tell
Ernesto that Angela should no longer stay at
Ernestos house.12 Enecita did not move at first, but
appellant again ordered her to get Ernesto. Just as
she was about to leave, appellant changed his mind
and said, "Do not go you just call him, and do it
because I will be leaving at 6:00 oclock. If you are not
going to do that I might kill both of you." She obeyed
him because she was afraid.13
Her son-in-law, Ernesto Gutierrez, later arrived and
went directly to their kitchen and asked, "What is it,
Nanay?" Enecita replied that appellant no longer
wanted Angela to stay in Ernestos house because
Ernesto was allegedly molesting Angela. Ernesto then
said, "You [are] just accusing falsely, Nanay. This
Angela does not even know how to wipe [her] nose,
how could I do that to her? If you doubt me you better
have her examined by a doctor."14
While Enecita and Ernesto were talking, appellant
was lying down about four meters away. Upon
hearing Ernestos reply, appellant asked, "You are not
going to admit?" Immediately thereafter, appellant
struck Ernesto with his bolo, despite Ernestos
protestations of innocence. Ernesto sustained five
wounds on his body and two wounds on his head.15

Page 25 of 39
CRIM LAW 1

Appellant ran and left Ernesto, whose body was

already covered in blood. The latter was immediately
brought to the hospital and Enecita was instructed to
bring Angela to a doctor.16

of the kitchen with his bolo, demanding that the two

women come down. When Angela went down with her
mother, appellant instantly pulled her by the hand and
ordered her mother to go back upstairs.

Enecita further testified that she pitied her daughter

very much, especially considering her physical
condition. It had been stated earlier that when Angela
was born, both the latters feet were "bent towards her
head" and "the knees do not have kneecaps" which
was why Angela noticeably limps while walking.17 She
stated that she was not asking for any amount in
recompense but only that the accused be imprisoned
for the rest of his life.18

In narrating her ordeal in the hands of appellant,

Angela had these to say:

On cross-examination, Enecita said that the wake

which her husband was attending was about four
kilometers away from their house. To get to the place,
one needs to ride a jeep although they sometimes
walked. After she fetched Angela, they couldnt go to
her husband at the wake because she also feared for
the safety of her two small grandchildren who were
left in the house. In turn, her husband was only able to
come home when he heard about the hacking
incident.
When appellant arrived at their house on March 2 and
ordered her to fetch Angela, Enecita observed that
appellant was not drunk although she could tell that
he had taken some wine because she could smell
liquor on his breath.
When appellant arrived with Angela at 5:00 a.m. of
March 3, Enecita had no chance to talk privately with
her daughter as appellant had immediately ordered
her to call Ernesto. She also did not ask her daughter
whether the alleged molestation by Ernesto was true
because Enecita was already confused.

DIRECT Testimony
Q And when the accused ordered your mother to go
upstairs and pulled your hand, what did the accused
do to you?
A: He then brought me to a grassy area.
Q This grassy area where you were brought by the
accused is how far from your house?
A Quite far.
Q Could you show to the Honorable Court the
distance by pointing any object outside taking for
granted where you are sitting to be your house
outside of the courtroom?
A (Witness is pointing to a distance of 100 meters).
Q When the accused brought you to a grassy place
which is about 100 meters from your house, what did
the accused do to you?
A He undressed me.
Q And he removed all your dress including your
underwear?
A Yes.

During her testimony, ANGELA corroborated the

statements of her mother with regard to the
occurrences prior to the rape. At the time in question,
she had been living with her sister Gemma Gutierrez
and her husband as they were the ones spending for
her schooling.19 At around 10:00 p.m., she was
already asleep when her mother arrived. She went
with her mother, and on the way to her parents
house, they saw appellant on the road, raising his
hand and holding a bolo. When Angela saw appellant
about to hack her mother, she immediately shouted,
"Tio, do not hack Mama because anyway I am
already going home." The appellant heeded her plea
and she and her mother were able to reach the
house. The two of them proceeded upstairs but
appellant followed them and when appellant was
already downstairs inside the kitchen, he struck a part

Q And when he removed your dress including your

underwear, was the accused also naked or not?
A Already undressed.
Q And when the accused already undressed and also
you were undressed, what did the accused do to you?
A He placed himself on top of me.
Q Were you lying on the ground at your back when
this incident happened when the accused was on top
of you?
A Yes.

Page 26 of 39
CRIM LAW 1

Q And what did he do when he was on top of you,

both of you were naked?
A He inserted his penis inside my vagina.
Q At about what time was that if you can recall, just
estimate?
A 10:00 oclock.

A I said, Ma, help."

Q When did you shout Mother help, was this during
the first incident of rape, the second or the third?
A On the third time.
Q Now, how long did you stay with the accused in that
grassy place?

Q Before that act of the accused inserting his penis

inside your vagina that happened at about 10:00
oclock in the evening, can you not shout?

A For a long time.20

A I shouted for my mother, saying, "Ma help, help."

ATTY. RECIA:

Q When you shouted calling your mother for help,

what did the accused do to you?

Q How d[id] you feel [during] this incident of accused

raping in the evening of March 2, 1998?

A He then said, "You ke[ep] qui[et] or I might kill you."

A It was painful.

Q When he said to you keep qui[et] because he is

going to kill you, where was his bolo then?

Q What is painful on the part of your body?

xxx

A My back.
A Beside him.
Q How about your vagina?
Q Now, how long was the accused on top of you w[ith]
his penis inside your vagina at about 10:00 oclock in
the evening?
A For a long time.
Q Now, if you can remember, how many times did the
accused make his penis get inside your vagina that
evening of March 2, 1998 in the grassy place?
A Three (3) times.
Q The first one happened at about 10:00 oclock. How
about the second time, what time was that already?
A 11:00 oclock.
Q How about the last one, the third time?
A 12:00 oclock.
Q Now, when the accused raped you for three (3)
times that evening, did you make any noise to be able
to call for assistance so that people can help you?

A It was also painful.21

CROSS Examination
Q Angela, in relation to this case do you remember
having executed an affidavit?
A Yes.
Q If that affidavit will be shown to you could you be
able to identify the same?
A Yes.
Q I am showing you an affidavit in [V]isayan, is this
your affidavit?
A Yes. (Witness referring to page 3 of the record of
the case).
Q At the time that you were brought by the accused to
the grassy area and forced to lay down and then he
placed himself on top of you, [did] the accused choke
your neck?

A I shouted.
A Yes.
Q What did you say when you shouted for help?

Page 27 of 39
CRIM LAW 1

Q He pressed your neck very hard?

ATTY. MONSANTO:

A Yes.

Q The accused and you are both sitting down at the

grassy area?

Q Also, aside from choking your neck, the accused

struck your head with the bolo, is that correct?

A Yes.

A Yes.

Q Did you talk or converse with each other?

Q What part of your head was hit by that bolo?

A No.

A (Witness touching the right side of her head).

Q It was a hard blow?

Q So you just sat there from 12:00 [] midnight of

March 2, 1998 up to 5:00 oclock in the morning of
March 3, 1998, is that correct?

A Yes.

A Yes.

Q When you were examined by the doctor on March

3, 1998, did the doctor examine[] the part of your
head that was hit by the bolo?

Q This alleged incident of rape commited by the

accused to your person on March 2, 1998, was the
only time that this happened to you?

A No.

A Yes.

Q How about your neck when it was choke[d] very

hard by the accused, did the doctor examine[] also
this part?

xxx
Q When your affidavit was taken it was taken before
the police at Malaybalay?

A No.
A Yes.
Q According to your testimony you were raped by the
accused three (3) times, 10:00, 11:00 and 12:00
oclock, is that correct?

Q And there were questions being asked to you when

this affidavit was being executed?

A Yes.

A Yes.

Q And after you were raped the last time of 12:00

oclock in the evening both of you were already
asleep?

Q And do you remember having been asked [] this

question, "Isulti dinhi an[] nahitabo niadtong gabi-i sa
petsa 2 sa Marso 1998?" [Do] you remember having
been asked [] that question?

A No.
A Yes.
COURT: (to witness)
Q What were you or Raul doing between 12:00 and
5:00 oclock in the morning?

Q And that question was reflected in your affidavit in

paragraph 9, do you remember that?
A Yes.

A We dress ourselves.
Q Yes, but that was about five (5) hours, what
happened there, if any?

Q And on that question you gave an answer, is that

correct?
A Yes.

A He let me sat down.

Continue.

Q And your answer as indicated in your affidavit was

this way in [V]isayan dialect, "Sa alas 10:00 sa gabi-i

Page 28 of 39
CRIM LAW 1

niadtong petsaha, diha na si Yoyo Raul, ug iya na

usab ako nga gilugos, gani iya pa akong gibunalan sa
iyang sundang ug gitu-ok, mao kadto nga na rape
gayud ako gani gikan sa alas 10:00 sa gabi-i wala
akoy tulog hangtud sa kaadlawon sigi lang siya ug
utro-otro sa pagrape kanako, gani nagkurog-kurog na
ako kay sakit na kaayo ang akong bisong pero
giantos ako kay hadlok man ako nga iyang patyon
kaming tanan, kay isog man kini kayo si Yoyo Raul."
Which in (E)nglish means, "At 10:00 o clock in the
evening of that date, Yoyo Raul was around and he
again raped me. In fact, he beat me with his bolo and
also choke[d] me, and so he was able to rape me
from 10:00 oclock that evening, and I was unable to
sleep until dawn wherein he repeatedly raped me. In
fact, I was trembling already because my vagina was
already very painful, but I only bear it because I was
afraid that he will kill all of us because this Yoyo Raul
is very fierce". Do you remember having made that
answer?

Q What time was the first one?

A Yes.

A That is not correct.

Q Will you please explain to us, Angela, your answer

which says that, "Gikan sa alas 10:00 sa gabi-i wala
akoy tulog hangtud sa kaadlawon sigi lang siya ug
utro-otro sa pagrape kanako, gani nagkurog-kurog na
ako kay sakit na kaayo ang akong bisong pero
giantos ako kay hadlok man ako nga iyang patyon
kaming tanan, kay isog man kini kaayo si Yoyo Raul."
What do you mean by this statement?

x x x.22

ATTY. RECIA:

When asked why she preferred to stay at her sisters

house rather than in that of her parents, Angela
replied that she was afraid as her uncle, appellant,
was a habitual drunkard.

It is misleading, your Honor.

A 10:00 oclock.
Q The second time?
A 11:00 oclock.
Q And the third time?
A 12:00 oclock.
Q Alright 12:00 oclock. After 12:00 oclock you were
not raped anymore?
A No more.
Q So it is not correct to say that the accused raped
you until dawn at 5:00 oclock in the morning?

At around 5:00 a.m., appellant brought her back to her

parents house. She was made to sit on the table and
appellant was telling her to eat. Angela refused to eat
"because what he did to me was very bitter."23
Appellant then went outside to sharpen his bolo and
then lay down on the porch.

COURT:
Witness may answer.
WITNESS:
A From 10:00 oclock that evening I was unable to
sleep because he repeatedly raped me.
COURT: (to witness)
Q After 12:00 oclock, did he still rape you?
A Yes.
Q Now, lets go back to your direct testimony. You
said you were raped three (3) times only?
A Yes.

CRIM LAW 1

Angela also testified that she did not tell her father
that she filed the rape case against appellant. She
was warned by the appellant not to tell anybody about
what he had done to her, otherwise appellant would
kill everyone in the family. She would tell nothing to
her father every time she would attend the hearings in
the RTC of Malaybalay. However, at the time she
testified, her father had already found out about the
rape case she had filed.
Appellant RAUL OBRIQUE y ANTONIO, 36 years old,
single, and a farm laborer, testified24 that he has been
residing at Managok for 10 years. On March 2, 1998,
he was then residing at the house of his brother
Norberto Obrique. Norberto was married to Enecita
and he knew that the couple had twelve children and
his niece Angela was the youngest. At that time,
Angela was residing with her older sister Gemma and
Gemmas husband, Ernesto Gutierrez. Ernesto and
Page 29 of 39

Gemmas house was about 100 meters from the

house where appellant was staying.25
In the morning of March 2, 1998, he was hired by
Eteng Libetaa to haul palay at the rate of P5 per
sack. He finished working in the afternoon of the
same day. Thereafter, he stayed at the house of
Eteng for supper. The latter had butchered a dog and
the two of them drank liquor after eating. They were
drinking till late that night and he spent the night at
Etengs house.26
On the next day, March 3, 1998, appellant went home
to his brothers house at around 6:30 a.m. Upon
arriving at the house, he saw Enecita and her son-inlaw Ernesto having an altercation. Appellant saw
Ernesto rush towards Enecita so appellant prevented
him from doing so by holding Ernesto. As he held
Ernesto, Enecita went upstairs. Ernesto then
attempted to get a bolo but appellant pushed Ernesto
and was able to get hold of the bolo first. With bolo in
hand, appellant stepped back, which caused Ernesto
to stumble. Using the bolo, appellant then struck
Ernesto, hitting the latter on his breast and on the side
below the armpit. Thereafter, appellant proceeded to
the house of the barangay secretary and
surrendered.27
It was only fifteen days later when appellant learned
that a rape case had been filed against him. He
denies raping Angela and infers that the reason the
charges were filed against him was due to the large
amount of expenses incurred for the treatment of the
wounds sustained by Ernesto.28
On cross-examination appellant testified that he
usually hauled palay for Eteng who had a two-hectare
rice field. He earned P500 that day for hauling around
100 sacks of palay. Later that night, he and Eteng
drank "fighter" wine and beer. They started drinking at
around 6:00 p.m. and finished at about 1:00 a.m. of
the following day. Between them, they consumed ten
bottles of wine and five bottles of beer. After drinking,
they both went to sleep.29
Appellant avers that Eteng did not know that a rape
case had been filed against him. Even considering
that Eteng was a vital witness for his defense,
appellant did not ask a friend, a relative, or even his
lawyer to inform Eteng about the case so that the
latter may testify in court.30 Appellants lawyer,
however, manifested that upon inquiry, they found out
that Eteng had already left for Manila and did not
leave a forwarding address. The defense had no way
of contacting him.31

Regarding the altercation he witnessed, appellant

stated that he was only about "one hand length" away
from Ernesto and Enecita who were arguing about
Ernesto and Gemmas children, specifically about
their disobedience.32 While he was listening, he was
still drunk from the drinking he did the previous night.
It was because he was drunk that he was able to hack
Ernesto.33
On November 15, 2000, the RTC rendered its
decision:
WHEREFORE, judgment is entered finding accused
Raul Obrique guilty beyond reasonable doubt of the
crime of rape as defined and penalized under Article
335 of the Revised Penal Code, as amended by
Republic Act 8353 and he is hereby sentenced to
suffer the penalty of death. He is further ordered to
indemnify his victim, Angela Obrique, the sum of
P75,000.00 and moral damages of P50,000.00.
SO ORDERED.34
Appellant submits the following assignment of errors:
I
THE LOWER COURT GRAVELY ERRED IN
FINDING ACCUSED-APPELLANT GUILTY
BEYOND REASON[AB]LE DOUBT OF THE
CRIME OF CHARGED AND IN
SENTENCING HIM TO SUFFER THE
SUPREME PENALTY OF DEATH.
II
THE LOWER COURT GRAVELY ERRED IN
NOT A[C]QUITTING HIM AS THE
INFORMATION UNDER WHICH HE WAS
ARRAIGNED IS FATALLY DEFECTIVE.
III
ASSUMING ARGUENDO THAT ACCUSEDAPPELLANT RAPED THE VICTIM, THE
LOWER COURT GRAVELY ERRED IN NOT
CONVICTING HIM OF SIMPLE RAPE ONLY
PUNISHABLE BY RECLUSION PERPETUA
INASMUCH AS THE PROSECUTION
FAILED TO SUBMIT AUTHENTICATED
COPY OF THE VICTIMS BIRTH
CERTIFICATE.35
The assignment of errors, particularly the second,
readily shows that appellants counsel failed to go

Page 30 of 39
CRIM LAW 1

through the entire records of this case. The records

show that an amended information for rape was in
fact filed by the prosecution and that appellant was
arraigned under the amended information which
already states that the crime was committed with
force and intimidation.
The third assigned error, likewise, has no merit. The
date of complainants birth was already established
and admitted during the pre-trial conference. In fact,
both the pre-trial agreement, as well as the pre-trial
order state that "private complainant Angela Obrique
was born on June 19, 1984, as evidenced by
Certificate of Live Birth, marked as Exhibit A"(stress
ours). The pre-trial agreement was signed by both
parties and no objection was made by counsel for
appellant to said stipulation, as well as to the
Certificate of Live Birth. It is to be noted that, prior to
the witnesses testimonies, the prosecution moved to
make a correction on the pre-trial agreement,
pertaining to the date of birth of Angela. According to
the prosecution, the same should be 1984 and not
1994. The presiding judge allowed the same,
observing that it was a typographical error and that in
fact, the judges copy of the same had already been
corrected. There was likewise no objection on the part
of the defense.36
Thus, we are left with two issues: 1) Whether or not
the prosecution proved appellants guilt for the crime
of rape beyond reasonable doubt; and 2) whether or
not the death penalty should be imposed in this case.
Appellant stands charged of qualified rape,
punishable with the supreme penalty of death. Hence,
a thorough review of the case is in order, particularly
with regard to the evaluation of complainants
testimony.
In deciding rape cases, we are guided by the following
well-established principles: (a) an accusation for rape
can be made with facility; it is difficult to prove but
more difficult for the person accused, even if innocent,
to disprove; (b) due to the nature of the crime of rape
where only two persons are usually involved, the
testimony of the complainant must be scrutinized with
extreme caution; and (c) the evidence for the
prosecution must stand or fall on its own merits and
cannot be allowed to draw strength from the
weakness of the evidence for the defense.37
In his attack on Angelas credibility, appellant alleges
that numerous contradictions can be found in her
testimony. Appellant points out that during Angelas
direct testimony, she said that appellant raped her
three times, at around 10:00 p.m. and 11:00 p.m. of

March 2, 1998, and at 12:00 a.m. (or midnight) of

March 3, 1998. After the third rape, Angela stayed
with appellant for five more hours, in the grassy area
where she was raped. However, upon crossexamination, Angela averred that after she was raped
for the third time, appellant continued raping her in the
same grassy area. Appellant alleges that this
inconsistency in her narration renders her credibility
questionable.38
We disagree. A reading of Angelas testimony during
direct examination, as well as under crossexamination, reveals that although there was indeed a
little variance in her testimony as to what occurred
after 12:00 a.m., she was consistent in telling the
court that she was indeed raped by appellant at least
three times before they returned to her parents house
at 5:00 a.m. on March 3, 1998. She was firm and
consistent in her testimony as to how the rape was
perpetrated, and that the perpetrator was her own
uncle, appellant Raul Obrique.
It must also be remembered that under the
Information filed against appellant, he was being
charged for the rape that occurred on March 2, 1998.
With regard to that particular instance, complainant
was clear, candid and consistent. Thus, on this point,
this perceived inconsistency fails to cast doubt upon
Angelas credibility. That she failed accurately to
remember what else happened after the three rapes,
may have resulted from the trauma that she
experienced after she was repeatedly violated by
appellant. As pointed out by the Office of the Solicitor
General (OSG), we have recognized that the errorless
recollection of a harrowing incident cannot be
expected of a witness when she is recounting details
of so humiliating and so painful an experience as
rape.39
Another point that appellant asserts is that Angelas
conduct or behavior during and after the alleged rapes
was not in accord with rational human behavior.
Appellant wonders how Angela, if indeed she
experienced something as traumatic as rape, could
not have attempted to seek help from her mother who
was only about a hundred meters from the grassy
area where the rape allegedly occurred. Particular
emphasis is made on the fact that after 12:00 a.m., if
Angelas account is to be believed, she still chose to
stay with appellant for five more hours in the grassy
area. There was no attempt on her part, according to
appellant, to escape from his clutches,
notwithstanding the fact that it is not shown that
appellant continued to threaten her. This deportment
of hers, avers appellant, seemed too perfunctory,

Page 31 of 39
CRIM LAW 1

unconcerned, casual and nonchalant, in the face of a

supposedly harrowing experience.40
Again, we are unconvinced. It is hardly accurate to
say that Angela chose or "decided to stay"41 with
appellant for those five hours. It must be remembered
that Angela had been gravely threatened by appellant,
cowed by him into submission, from the time she
pleaded with appellant to spare her mothers life, up to
the time when she was returned to her own home and
ordered to eat. She was helpless. That she stayed
with appellant in the grassy area could not have been
by choice but was borne out of immense fear for her
life and safety.
Moreover, although the records do not specifically
state that appellant had continually issued threats
during the five hours after the rapes, it cannot be said
that the threats upon Angelas life had ceased. It must
be remembered that appellant carried a bolo with him
at all times, ready to strike at the slightest
disobedience. Thus, we cannot consider Angelas
behavior to be casual or nonchalant. Rather, her
silence was a testament to her fear and her inaction
was in meek obeisance to appellant.

In this case, appellants alibi was that, at the time the

alleged rapes were committed, he was at a certain
Eteng Libetaas house, drinking with the latter, and
eventually spending the night there. We note that
Eteng Libetaas house was only two kilometers from
his brothers house, which house was but a hundred
meters from the locus criminis.
Weighed against the above requirements of time and
place, appellants alibi does not stand. It was not
physically impossible for him to return to his brothers
house and perpetrate the crime. In the face of the
positive and categorical testimony identifying
appellant as the one who committed the rapes, the
latters uncorroborated alibi is effectively demolished.
We now resolve the issue of whether or not the
prosecution sufficiently established appellants guilt
for qualified rape. Under the Revised Penal Code,
rape is defined and penalized as follows:
Art. 266-A. Rape, When and How Committed. Rape
is committed
1) By a man who shall have carnal knowledge of a
woman under any of the following circumstances:

In addition, we accord the appropriate weight on the

evaluation of the RTC, which observed:

a) Through force, threat or intimidation;

xxx

x x x.

There is no doubt in the mind of the court that

accused Raul Obrique is guilty of the offense of rape
as charged. Private complainant Angela Obrique was
frank and straightforward in her testimony. The court
did not find any motive for her to falsely accuse his
own uncle for so serious a crime, and in the process
expose herself to shame and embarrassment. Neither
was there any evil or ulterior motive shown why
Enecita Obrique would also fabricate a story against
the accused of a crime that will surely disgrace her
daughter. x x x.42

2) x x x.

Thus, we are convinced that complainant Angelas

testimony passed muster. Appellant failed to cast
reasonable doubt upon complainants candid and
straightforward account of her ordeal.
For alibi to succeed as a defense, appellant must
establish by clear and convincing evidence (a) his
presence at another place at the time of the
perpetration of the offense and (b) the physical
impossibility of his presence at the scene of the
crime.43

Art. 266-B. Penalties. Rape under paragraph 1 of

the next preceding article shall be punished by
reclusion perpetua.
Whenever the rape is committed with the use of a
deadly weapon or by two or more persons, the
penalty shall be reclusion perpetua to death.
xxx
The death penalty shall also be imposed if the crime
of rape is committed with any of the following
aggravating/qualifying circumstances:
1) When the victim is under eighteen (18) years of
age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common law
spouse of the parent of the victim.
xxx

Page 32 of 39
CRIM LAW 1

(Underscoring supplied)

necessary to further allege that such relationship was

within the third civil degree.49

To warrant the imposition of the death penalty, the

concurrence of the minority of the victim and her
relationship with the offender must be sufficiently
alleged in the information and duly established by
evidence.44 The twin qualifying circumstances of the
victims age, as well as relationship with appellant,
must be indubitably proven.45
With regard to complainants age, appellant contends
that the same was not sufficiently proven since the
certificate of live birth presented as evidence was not
authenticated. Verily, he does not deny that the birth
certificate exists,46 as it was presented and marked as
evidence during the pre-trial, and it states therein that
complainant was born on June 19, 1984. This makes
her only about thirteen years old at the time of the
offense.
As we have pointed out early on, the same certificate
of live birth was presented and marked as evidence
during the pre-trial conference. Its existence and
contents formed part of the pre-trial agreement, as
well as the pre-trial order issued by the trial court. The
genuineness and authenticity of such birth certificate
was not objected to, nor was its presentation opposed
by appellant. It was on the basis of such birth
certificate that both parties agreed to admit the
stipulation that Angela was indeed born on June 19,
1984.
The fact of Angelas minority was properly alleged in
the information, and her birth certificate confirming the
same, is the best proof of her age.47
We now discuss the matter of relationship. A reading
of the information shows that the prosecution failed
properly to allege the qualifying circumstance of
relationship. The information merely states that the
complainant is appellants niece, without specifying
that appellant was a relative by consanguinity within
the third civil degree. In the case of People v.
Ferolino,48 we ruled:

The same pronouncement was reiterated in the recent

case of People v. Esperanza,50 where we found as
fatally defective the allegation that the victim therein
was the "niece" of appellant. We further said therein
that even granting that the relationship within the third
civil degree either of consanguinity or affinity was duly
proved during the trial, the same cannot justify the
imposition of the death penalty because to do so
would deny appellants constitutional and statutory
right to be informed of the nature and cause of the
accusation against him.51
Appellant, therefore, can only be found guilty of
simple rape and sentenced to suffer the penalty of
reclusion perpetua.
Consequently, modifications are also in order with
regard to appellants civil liability. The amount of
P75,000 should be reduced to P50,000.00 as the rape
for which appellant can be convicted is simple rape.52
Moral damages in the amount of P50,000 was
correctly awarded by the trial court, without need for
the victim to plead or prove the basis thereof beyond
the fact of rape.53
1wphi 1

In addition, we award the amount of P25,000 as

exemplary damages on the basis of the relationship of
the appellant to the victim. Although relationship was
not properly alleged, said fact was nevertheless
proven during trial.54 The award is also imposed as a
deterrent to people with perverse tendencies or
aberrant sexual behavior, from sexually abusing their
own kin.55

1w phi 1

In this case, the allegation that FERLYN is

ANTONIOs niece is not specific enough to satisfy the
special qualifying circumstances of relationship. If the
offender is merely a relation not a parent,
ascendant, step-parent, or guardian or common law
spouse of the mother of the victim it must be alleged
in the information that he is a relative by
consanguinity or affinity [as the case may be] within
the third civil degree. That relationship by
consanguinity or affinity was not alleged in the
informations in these cases. Even if it was, it was still

WHEREFORE, the Decision of the trial court is

hereby MODIFIED. Raul Obrique y Antonio is found
GUILTY beyond reasonable doubt of simple rape,
defined and penalized under Article 266-A of the
Revised Penal Code. He is hereby sentenced to
suffer the penalty of reclusion perpetua. In addition,
he is ordered to pay Angela Obrique the sum of
P50,000.00 as civil indemnity, P50,000.00 as moral
damages and P25,000.00 as exemplary damages.
Costs de oficio.

SO ORDERED.

THIRD DIVISION

Page 33 of 39
CRIM LAW 1

[G.R. NOS. 136300-02. September 24, 2002]

PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. EMMANUEL AARON, accusedappellant.

DECISION
CORONA, J.:
Before us on appeal is the Decision[1] of the
Regional Trial Court of Balanga, Bataan, Branch 3,
in Criminal Cases Nos. 6730, 6731 and 6732
convicting herein appellant, Emmanuel Aaron, of
one count of rape and sentencing him to suffer the
penalty of reclusion perpetua and to pay the victim
P50,000 as civil indemnity.
The appellant, Emmanuel Aaron y Dizon, was
charged with three counts of rape defined and
penalized under Articles 266-A and 266-B of the
Revised Penal Code,[2] respectively, in three
separate criminal complaints filed and signed by
the private complainant, Jona G. Grajo, and
subscribed and sworn to on January 17, 1998
before 3rd Assistant Provincial Prosecutor Oscar M.
Lasam. Save for their docket numbers, the said
criminal complaints are identically worded thus:
That on or about 16 January 1998 at Brgy. San Jose,
Balanga, Bataan, Philippines and within the
jurisdiction of this Honorable Court, the said
accused, armed with a knife and by means of force
and intimidation, did then and there willfully,
unlawfully and feloniously succeed in having sexual
intercourse with the offended party JONA G.
GRAJO, against the will and consent of the latter, to
her damage and prejudice.
Contrary to law.
Upon arraignment on January 30, 1998, the
accused, Emmanuel Aaron, assisted by counsel of
his choice, entered the plea of not guilty to each of
the three complaints in Criminal Cases Nos. 6730,
6731 and 6732. Thereafter, joint trial on the merits
ensued.

The evidence of the prosecution shows that, on

January 16, 1998, at around 7:00 oclock in the
morning, the private complainant, Jona Grajo, was
asleep in bed (papag) inside her room on the
second floor of the apartment unit which she
shared with her sister and her brother-in-law,
herein appellant Emmanuel Aaron. Jona was
wearing only a panty and was covered with a
blanket. Sensing that someone was inside her
room, Jona opened her eyes and was surprised to
find Emmanuel sitting beside her in bed totally
naked. Emmanuel immediately went on top of Jona
and poked a knife on her neck. Jonas attempt to cry
for help proved futile as Emmanuel quickly covered
her mouth with his left hand.[3]
Emmanuel removed her panty and succeeded in
having carnal intercourse with Jona who could only
manage to cry. Subsequently, Emmanuel withdrew
his penis and ordered Jona to lie down on the
floor. He inserted his penis into her vagina for the
second time with the knife still poked on Jonas
neck. Thereafter, Emmanuel stood up and
commanded Jona to lie down near the headboard
of the papag bed where he inserted his penis into
her vagina for the third time, still armed with a
knife, and continued making pumping motions
(umiindayog).[4]
After the incident, Jona pleaded to be released but
Emmanuel initially refused.He budged only after
Jona told him that she urgently needed to relieve
herself (Ihing-ihi na ako, puputok na ang pantog
ko.) but not before warning her not to tell anyone
about the incident. Jona quickly put on her panty
and hurried down the street in front of the
apartment with only a blanket covering herself. Her
cries drew the attention of a neighbor, Lilibeth
Isidro, who tried to persuade Jona to go back inside
the apartment, to no avail, for fear of
Emmanuel. Upon the prodding of another
neighbor, a certain Agnes, Jona revealed that she
was raped by her brother-in-law,[5] the appellant
herein.
Jona proceeded to the nearby store of their
landlady upon the latters arrival from the market
and she related the misfortune that had befallen
Page 34 of 39

CRIM LAW 1

her. At that instance, Emmanuel approached and

warned her to be careful with her words. Then he
left for the house of Bong Talastas.[6]
After Emmanuel left, Jona went back to their house
and dressed up. Thereafter, she went to the police
station in Balanga, Bataan to report the
incident.[7] Police Officers Rommel Morales and
Edgardo Flores proceeded to the residence of the
private complainant who appeared very tense but
the neighbors informed them that Emmanuel had
left. The police officers then proceeded to the
house of Bong Talastas in San Jose, Balanga,
Bataan, where the victim told them Emmanuel
could have possibly gone. On arrival there, they
found Emmanuel conversing with Bong Talastas
and they immediately arrested the appellant herein
upon ascertaining his identity.[8]
After bringing Emmanuel to the police station,
Police Officers Morales and Flores accompanied
Jona to the provincial hospital in Bataan for
physical examination.Thereupon, the attending
physician at the Bataan Provincial Hospital, Dra.
Emelita Firmacion, M.D., found multiple healed
laceration(s) at 1, 3, 5, 6, 9 oclock position(s),
incomplete type in Jona Grajos private part.
At the trial, Dra. Firmacion identified her
signature[9] appearing on the lower right portion of
the medical certificate[10] and affirmed the medical
findings contained therein. The multiple hymenal
lacerations sustained by Jona which were
respectively indicated in the medical certificate as 1
oclock, 3 oclock, 5 oclock, 6 oclock and 9 oclock
could have been caused by sexual intercourse,
masturbation, strenuous exercises or penetration
of any hard object. The appearance of a lacerated
hymen could indicate the approximate time when
the laceration was sustained. In the case of Jona
Grajo, her hymenal lacerations were completely
healed, indicating that the same were sustained at
least one month before she was examined on
January 16, 1998. However, it was possible that she
had sexual intercourse immediately before the said
examination.[11]
The defense denied any liability for the
three counts of rape charged. Appellant Emmanuel

Aaron testified that he and his wife were residing in

an apartment unit together with his sister-in-law,
herein private complainant, Jona Grajo.[12] Jona
occupied a room on the second floor while the
couple stayed at the ground floor.[13]
On the date of the incident, Emmanuel admitted
that he and Jona were the only persons inside the
apartment. He had just arrived from work as a
night-shift waiter at Base One restaurant in
Balanga, Bataan. He had earlier met Bong Talastas
at 7:00 oclock in the morning as Bong was
preparing to leave his house while his wife had
gone to the market. Emmanuel changed his clothes
upstairs where the cabinet was located opposite
the room occupied by Jona. Emmanuel noticed that
the door of Jonas room was partly open so he
peeped through the narrow opening and saw her
wearing only a panty. He was about to close the
door when Jona woke up and began shouting.[14]
Emmanuel did not know why Jona kept on
shouting. She even followed as Emmanuel
descended the stairs and she proceeded to the
nearby store of their landlady. Emmanuel went her
to the store to caution Jona about her words
(Ayusin mo ang sinasabi mo) because she was
telling their landlady that he raped her.However,
Jona ignored him so he left and decided to see
Bong Talastas in San Jose, Balanga, Bataan to
inquire from the latter why Jona was accusing him
of having raped her. Emmanuel denied that he was
armed with a knife during the incident, much less
threatened Jona with it.[15]
On October 14, 1998, the trial court rendered a
decision,[16] the dispositive portion of which read:
WHEREFORE, the guilt of the accused for the single
act of rape having been proved beyond reasonable
doubt, the accused is sentenced to suffer the
penalty of reclusion perpetua with the accessory
penalty provided by law. The accused is further
required to indemnify the complainant the sum of
P50,000.00 and to pay the costs.
SO ORDERED.

Page 35 of 39
CRIM LAW 1

Dissatisfied with the decision of the trial court,

Emmanuel Aaron interposed the instant appeal. In
his Brief,[17] appellant raised a single assignment of
error:

1) By a man who shall have carnal knowledge of a

woman under any of the following circumstances:

THE TRIAL COURT ERRED IN FINDING THE GUILT OF

THE ACCUSED BEYOND REASONABLE DOUBT

b) When the offended party is deprived of reason

or otherwise unconscious;

Appellant argues that the account of the private

complainant, Jona Grajo, of the alleged incidents of
rape appears incredible and contrary to common
human experience. Based on her testimony, the
appellant suddenly placed himself on top of her
with his right hand poking a knife on her neck and
with his left hand covering her mouth.
Subsequently, the appellant removed her panty
and succeeded in inserting his penis into her
private part even without previously opening his
zipper or removing his pants. Likewise, the private
complainant did not offer any resistance although
she could have done so. After the alleged acts of
rape, the victim did not even complain to her sister
who, by then, had already arrived from the
market. The uncharacteristic behavior of the
private complainant could only be explained by the
fact that she admittedly had several sexual
experiences in the past with her boyfriend and livein partner Bong Talastas. The appellant theorizes
that private complainant wanted to get back at him
for the embarrassment of being seen by him in her
panty after her boyfriend, Bong Talastas, left the
apartment. Appellant downplays the testimony of
PO1 Rommel Morales as not worthy of credence
for lack of corroborative evidence. [18]

c) By means of fraudulent machinations or grave

abuse of authority; and

On the other hand, the prosecution showed that

the appellant was already naked even before the
private complainant was awakened by his
presence; that the private complainant could not
effectively offer any resistance as the appellant was
armed with a knife which he used to intimidate
her; and that the private complainants being a nonvirgin did not discount rape on January 16, 1998.[19]

It should be stressed that in the review of rape

cases, this Court is almost invariably guided by
three principles: (1) an accusation of rape can be
made with facility; it is difficult to prove but more
difficult for the person accused, though innocent,
to disprove; (2) in view of the intrinsic nature of the
crime of rape where only two persons are usually
involved, the testimony of the complainant is
scrutinized with extreme caution and (3) the
evidence of the prosecution stands or falls on its
own merits and cannot be allowed to draw
strength from the weakness of the defense.[20] In
other words, the credibility of the private

Article 266-A of the Revised Penal Code provides:

Article 266-A. Rape; When And How Committed.- Rape is committed -

a) Through force, threat, or intimidation;

d) When the offended party is under

twelve (12) years of age or is demented,
even though none of the circumstances
mentioned above are present.
2) By any person who, under any of the
circumstances mentioned in paragraph 1 hereof,
shall commit an act of sexual assault by inserting
his penis into another persons mouth or anal
orifice or any instrument or object, into the genital
or anal orifice of another person.
Article 266-B of the same Code provides:
Article 266-B. Penalties.Rape under paragraph 1 of
the next preceding article shall be punished
by reclusion perpetua.
Whenever the rape is committed with the use of a
deadly weapon or by two or more persons, the
penalty shall be reclusion perpetua to death.
xxx xxx xxx

Page 36 of 39
CRIM LAW 1

complainant is determinative of the outcome of

these cases for rape. Her consistency on material
points, or lack of it, that can sustain or negate
conviction, becomes the single most important
matter in inquiry.[21]
After a thorough review, we find that the
testimony of private complainant, Jona Grajo,
sufficiently established all the elements of rape
committed under Article 266-A, paragraph (1) (a) of
the Revised Penal Code, namely: a) that the
offender, who must be a man, had carnal
knowledge of a woman and (b) that such act is
accomplished by using force or intimidation.[22] The
gist of private complainants testimony clearly
shows that the appellant, Emmanuel Aaron, forced
himself on her at around 7:00 oclock in the
morning on January 16, 1998. The sexual assault
started on the papag bed inside her room on the
second floor of their apartment unit. After going on
top of the private complainant, the appellant
succeeded in inserting his penis into her vagina
after which he made pumping motions while
poking a knife on her neck. He then succeeded in
inserting his penis into her vagina two more times
on the same occasion after transferring locations
inside the room, with the knife continuously poked
on her neck.
We also find no reason to disturb the assessment
of the trial court of private complainants
credibility. Her testimony during the trial was
completely credible as it was given in an honest
and straightforward manner. As noted above, she
gave a lucid and consistent account of the
commission of the crime and did not waiver in
pinpointing her brother-in-law, herein appellant, as
the perpetrator thereof. Likewise, her actuation
after the incident vividly portrayed a confused and
traumatized woman typical of victims of
rape. Thus, after she broke free of the appellant on
the pretense that she urgently needed to relieve
herself, the private complainant quickly put on her
panty and rushed to the street with only a blanket
to cover her naked body. Her neighbors took note
of her obviously troubled condition and
admonished her to go back inside the apartment
but she refused, claiming that she had been

raped. She sought refuge at the nearby store of

their landlady to whom she confided that she was
raped by her brother-in-law. Private complainant
hurried back to their apartment to get dressed only
upon making sure that the appellant had already
left the place. Without losing time, she proceeded
directly to the police station and lodged a
complaint for rape against the appellant.
Prosecution witness PO1 Rommel Morales of
Balanga, Bataan, who was the police officer on
duty at the time Jona Grajo came to the police
station, recounted during the trial that the private
complainant was crying and trembling on arrival at
the Balanga, Bataan police station on January 16,
1998. Private complainant took time to answer the
queries of the police officer since she was crying
uncontrollably. When she finally got hold of
herself, the private complainant reported that she
had been raped by the appellant who was
subsequently arrested by the police. The actuations
of the private complainant immediately after the
incident may be considered as part of the res
gestae that substantially strengthens her claim of
sexual assault by the appellant.[23]
On the other hand, all the appellant can offer in his
defense is bare denial. He claims that he had just
changed his clothes on the second floor of their
apartment where his cabinet was located when he
chanced upon the private complainant naked
inside her room as the door was then slightly ajar.
He did not do anything further as the private
complainant was awakened and she already
started shouting.In view of the positive and
convincing testimony of the private complainant,
however, the defense of denial must fail. It is wellsettled that denial is an intrinsically weak defense
which must be buttressed by strong evidence of
non-culpability to merit credibility.[24]
The appellant argues that it was impossible for him
to have inserted his penis into the private part of
the complainant without first opening his zipper or
removing his pants. This argument of the appellant
is misleading for the reason that, per the testimony
of the private complainant, the appellant was
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already naked when his presence roused her from

her sleep:
PROS. LASAM:
Q: While you were in your room on that
time and date, do you remember of any
incident that happened?
A: Yes, sir.
Q: What was that incident?
A: While I was inside my room, I sensed that
there was a person inside my room and
when I opened my eyes, I saw that he is my
brother-in-law.
Q: And that brother-in-law of yours is the
person whom you pointed a while ago. Is
that correct?
A: Yes, sir.
Q: How does he look when you saw him
inside your room?
A: He was naked sitting beside me. [25]
That the private complainant did not offer
sustained resistance despite having been ordered
twice by the appellant to change location inside the
room can easily be explained by the fact that the
appellant was threatening to stab her if she
resisted. The private complainant was obviously
overwhelmed by intense fear when she woke up
with a knife pointed at her neck. The continuing
intimidation of private complainant cowed her into
helpless submission to appellants lechery. She
could only express her disgust over the sexual
attack of her brother-in-law silently in tears. In this
connection, it has been ruled that physical
resistance need not be established in rape when
intimidation is used on the victim and the latter
submits herself, against her will, to the rapists
embrace because of fear for her life and personal
safety.[26]
The failure of the private complainant to confide
the sexual assault to her sister who, appellant
claimed, had arrived from the market before she
(private complainant) went to report the matter to

the police is quite understandable and far from

being uncharacteristic of a rape victim, as what
appellant would like to make it appear. The
workings of the human mind which is under a great
deal of emotional and psychological stress are
unpredictable and different people will react
differently to a given situation.[27] Besides, the
private complainant did not want to drag her sister
into the controversy and hurt her in the
process. During the trial, the private complainant
revealed that she kept from her sister the previous
sexual advances of the appellant in order not to
destroy their good relationship. Private
complainant explained that she did not leave the
apartment despite the said harassments of the
appellant inasmuch as she had no other place to
go. However, she confided her ordeal to their
landlady, a certain Elsa Navarro. At any rate, what
is important is that the private complainant
reported the rape immediately to the police.
Admittedly, private complainant was having an
affair with a certain Bong Talastas[28] and that she
was not innocent to the ways of the world.
However, such fact alone does not negate the
commission of rape by the appellant against
her.Dra. Firmacion testified that although the
lacerations found in the private part of Jona Grajo
were completely healed, such fact did not discount
the possibility that she was sexually molested
immediately before she was examined on January
16, 1998. We emphasize that moral character is
immaterial in the prosecution and conviction of the
offender in the crime of rape. The Court has ruled
time and again that even a prostitute can be a
victim of rape[29] as the essence is the victims lack
of consent to the sexual act.
Significantly, the appellant failed to advance any
credible motive that could have impelled the
private
complainant to testify falsely against him.[30] In a
desperateattempt to avoid any responsibility for hi
s crime, however, the appellant theorizes that the
private complainant merely wanted to exact
revenge from him for
theembarrassment she experienced when he
chanced upon her clad merely in a panty inside her
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room. This alleged

motive on the part of the private complainant is
too shallow to merit even scant consideration from
this Court. If appellant were to be believed, would
not private complainant have instead opted to
keep quiet about the incident to spare herself from
further embarrassment? Common
experience dictatesthat no woman, especially one
of tender age, will concoct a rape complaint, allow
a gynecological examination and permit herself to
be subjected to public trial if she is not motivated
solely by the desire to have the culprit
apprehended and punished.[31]Indeed, coming out
in the open with the accusation of sexual assault on
her by her brother-in-law inevitably entailed risking
her relationship with her boyfriend, Bong Talastas,
and with her sister. However, the rape simply
proved too much for her to bear.

WHEREFORE, the judgment of the court a

quo convicting the appellantEmmanuel Aaron of
one count of rape and sentencing him to suffer the
penalty of reclusion perpetua and to pay the
private complainant the amount of fifty thousand
pesos (P50,000) as civil indemnity is
hereby AFFIRMED with the MODIFICATIONthat
said appellant shall pay an additional fifty thousand
pesos (P50,000) by way of moral damages.
SO ORDERED.

We agree with the trial court that the appellant

should be convicted of only onecount of rape. It
may appear from the facts that the appellant thrice
succeeded in inserting his penis into the private
part of Jona Grajo. However, the three
penetrations occurred during one continuing act of
rape in which the appellant was obviously
motivated by a single criminal intent. There is no
indication in the records, as the trial court correctly
observed, from which it can be inferred that the
appellant decided to commit those separate and
distinct acts of sexual assault other than his lustful
desire to change positions inside the room where
the crime was committed.
Considering that the crime of rape was committed
by the appellant with the use of a deadly weapon,
the imposable penalty under Article 266-B
is reclusion perpetua to death. In the absence of
any mitigating nor aggravating circumstance, the
trial court correctly imposed the penalty
of reclusion perpetua on the appellant.She is also
entitled to a civil indemnity of fifty thousand pesos
(P50,000). And due to the emotional distress
suffered by the private complainant who was only
nineteen years old at the time of the rape, she is
also entitled to an award of moral damages in the
amount of fifty thousand pesos (P50,000).[32]
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