G.R. No.

81020
May 28, 1991
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LlLIA GUTIERREZ Y FRANCO, defendant-appellant.
FELICIANO, J.:
The accused Lilia Gutierrez y Franco is before us on appeal from the decision of the
Regional Trial Court, Branch 27, Manila, convicting her of the crime of kidnapping and
failure to return a minor and sentencing her to reclusion perpetua.
Appellant was charged under an information which read as follows:
The undersigned accuses LILIA GUTIERREZ Y FRANCO of a violation of Article 270
of the Revised Penal Code (Kidnapping and Failure to Return a Minor) committed as
follows:
That on or about the 13th day of July, 1984, in the City of Manila, Philippines, the
said accused, having been entrusted the custody of one Hazel Elpedes, a boy, two
and a half years of age, and therefore, a minor, did then and there wilfully,
unlawfully, feloniously and deliberately fail and refuse to restore the said child to
his parents, Frank Elpedes y Sumayod and Lourdes Elpedes, and instead sell the
said child for P250.00.
CONTRARY TO LAW." 1
Appellant entered a plea of not guilty. After trial, the lower court rendered a
decision dated 14 September 1987 finding the accused guilty of the crime charged. The
dispositive portion of the decision states:
WHEREFORE, the Court finds the accused, Lilia Gutierrez y Franco, guilty beyond a
reasonable doubt of the crime as charged and hereby sentences her to suffer the
penalty of life imprisonment (sic) and is hereby ordered to pay the sum of
P2,000.00 to the parents of the minor, Frank Elpedes and Lourdes Elpedes, for
moral damages and to pay the costs.
xxx
xxx
xxx
SO ORDERED. 2
Appellant in her Brief, assigns a single error, asserting that the trial court erred in
convicting her because her guilt has not been proven beyond reasonable doubt.
The facts of the case as found by the trial court may be summarized as follows:
On the morning of 13 July 1984, appellant went to the residence of her sister-inlaw, Lourdes Elpedes, at the Nichols Airbase, Pasay City, and obtained permission from the
latter to take her youngest son, Hazel, 2 1/2 years old for the day because appellant's
husband, Maximiano Mariano, wanted to spend some time with his nephew at their
residence in Paco, Manila. Both women agreed that the child would be brought back at
4:00 P.M. that same day. When appellant arrived at her residence, she discovered that her
husband, and their belongings, were gone. For a while, appellant just sat there and cried.
She then proceeded to the residence of her former employers, Mr. and Mrs. Abraham
Felipe, in Intramuros. They executed an "Agreement" under which appellant surrendered
custody of Hazel Elpedes, purportedly her own fatherless son, in favor of the couple.
Appellant received P250.00 from the couple which was evidenced by a receipt. 3
Meanwhile, Lourdes Elpedes went to appellant's residence after the latter had
failed to return with her son. Encountering no one there, she and her husband, Frank
Elpedes, spent the next two days looking for appellant along Herran St. (now Pedro Gil St.).

On 15 July 1984, Frank Elpedes spotted appellant in a telephone booth along said street
and accosted her. The Elpedes spouses brought her to the Western Police District Station
along United Nations Avenue, Manila. Appellant then led Frank Elpedes and at least one
policeman, Patrolman Diosdado Deotoy, to the Felipe residence in Intramuros. But the
group found neither the Felipe spouses nor the child there. Receiving information from the
Barangay Chairman of the place that the child was in Cogeo, Antipolo, Rizal the group
returned to the police station and then proceeded to Antipolo. There they recovered Hazel
from the residence of the Felipe spouses. During this time, appellant admitted to the group
that she had "sold" the child in order to avenge herself on her husband, Lourdes Elpedes'
brother, who had abandoned her. On the evening of 15 July 1984, the group returned to
the police station where appellant was investigated and placed under arrest. She has been
under detention ever since. 4
Lourdes Elpedes testified in court regarding the circumstances under which
appellant obtained temporary custody of Hazel, the initial efforts by her and her husband
to locate appellant, and the efforts of her husband and the police to recover Hazel in
Intramuros and in Antipolo. 5
Patrolman Diosdado Deotoy also testified in court regarding the efforts to recover
Hazel Elpedes. He recounted how they were able to locate the. house of the Felipe spouses
in Cogeo and how the Felipe spouses readily surrendered the child upon being informed of
his true parentage. He added that the Felipe spouses likewise surrendered the documents
which came to be offered and admitted as exhibits D and E for the prosecution. 6
Patrolman Ernesto Callos' testimony dealt with the circumstances under which he
investigated the appellant. He mentioned that appellant repeated to him in the
investigation room her admission regarding the "sale" of the child and her motive for
"'selling" him. He added that the admission was made voluntarily after appellant had
intelligently waived the assistance of counsel. Furthermore, he did not insist, in deference
to her constitutional rights, when she declined to reduce this admission into writing. 7
Appellant testified on her own behalf as the sole witness for the defense. She
stated that she had fetched Hazel Elpedes from his parents upon instructions of her
husband. After discovering that her husband had abandoned her, she entrusted the child
to the Felipe spouses merely for temporary safekeeping while she tried to locate her
husband in his homeplace in Cabanatuan City. She believed that the Felipe spouses, her
former employers, could be relied upon to look after the child responsibly. She
misrepresented the child as her own because the Felipes were aware of her married status.
Returning to the Felipe residence the following day, she received P180.00 from them,
never considering for a moment that the amount represented payment for the child. She
admitted affixing her thumbmarks on Exhibit E but repudiated her purported signatures on
Exhibits D and E because she is illiterate. She added that she did not know why the Felipe
spouses presented these documents to her. Appellant testified that it had never occurred
to her to immediately return Hazel to his parents because she was in a confused state of
mind upon realizing she had been abandoned by her husband. 8
Appellant contends that the prosecution's evidence did not establish that she had
deliberately failed to restore the boy Hazel to his parents by "selling" the child to the Felipe
spouses. Elaborating, she argues that Lourdes Elpedes was an incompetent witness as far
as her account of the recovery of Hazel in Antipolo was concerned, because she was not
present when this event took place. Lourdes' account of appellant's alleged admission of
the "sale" on the occasion then constituted hearsay. Furthermore, she contends, Pat.
Callos' testimony that appellant had admitted giving away the young boy to him during her
investigation was likewise hearsay. Considering this alleged gap in the prosecution's
evidence, appellant claims the prosecution should have presented either or both of the

Felipe spouses to testify that appellant had indeed "sold" the child. Finally, appellant
argues that the prosecution had not successfully rebutted her exculpatory testimony
regarding herinadvertent failure to return Hazel to his parents. 9
The offense of kidnapping and failure to return a minor defined and penalized
under Article 270 of the Revised Penal Code consists of two elements: 1.) the offender has
been entrusted with the custody of a minor person, and 2.) the offender deliberately fails
to restore said minor to his parents or guardians.
It is clear that appellant admitted the existence of the first element for she had not
disputed the testimony on circumstances under which she obtained custody for the day of
Hazel Elpedes on the morning of 13 July 1984. Furthermore, as pointed out by the trial
court, it was perfectly in consonance with human experience that Lourdes Elpedes should
have readily allowed appellant to take Hazel temporarily because she is a relative by
affinity who, until then, had not exhibited any conduct which might impair the trust
normally reposed on a sister-in-law. 10
We believe that the second element of the offense charged has been established
by the prosecution's evidence.1wphi1In the first place, appellant's own conduct in leading
Frank Elpedes and Pat. Deotoy to the Felipe residence in Intramuros, in an initial
unsuccessful effort to recover the child, indicated her awareness of the probable
whereabouts of the child. The logical conclusion is that she must have been the person
responsible for originally leaving the child with the Felipe spouses. 11 In the second place,
the precise motive that appellant might have had for bringing Hazel Elpedes to the Felipe
spouses and leaving him with them, apparently for an indefinite period, is not an
indispensable element of the offense charged. All that was necessary for the prosecution
to prove was that she had deliberately failed to return the minor to his parents. But
appellant herself had testified that she had indeed left the child with the Felipe spouses in
Intramuros. We find it very difficult to understand how appellant, even in her claimed
disconsolate state, could have inadvertently left the child with the Felipe spouses in the
latter's home in Intramuros (starting from Herran St., in the opposite direction from the
Nichols Airbase, where the child's parents live). Moreover, appellant did not pretend to
have tried to return Hazel to his parents by retrieving him from the Felipe spouses in
Intramuros.
It is true that Lourdes Elpedes' account of Hazel's recovery in Antipolo was
hearsay, because Lourdes was not then physically present in Antipolo. But Pat. Deotoy had
participated in that operation and he testified accordingly. Pat. Deotoy had also stated that
appellant had admitted taking the child and leaving him with the Felipe spouses. His
testimony on this particular point was not disputed by appellant; appellant herself testified
to that effect. Pat. Callos' statement that appellant had reiterated while she was under
investigation, that she had "sold" the child to the Felipe spouses was not hearsay in so far
as the simple fact that appellant had made certain oral statements to Pat. Callos was
concerned. The trial court had observed the demeanor of Pats. Deotoy and Callos while
testifying in open court and had pronounced them to be credible witnesses. 12 We find no
basis for disregarding their testimony as to what appellant had uttered in their
presence. 13 The two peace officers became involved in this case in the course of
performing their duty to assist the aggrieved parents in recovering their missing child.
Appellant did not show any evil motive on their part to falsify the truth and falsely impute
to her, whom they met for the first time on this case, the commission of a grave
offense. 14 Finally, appellant's affixing her thumbmark on Exhibit E (the Agreement with the
Felipe spouses) and receiving money from Mr. and Mrs. Felipe ("for her child"; Exhibit D)
are particulars which corroborated the testimony of the two police officers as to what
appellant had stated in their presence, and which render her claim that she had
merely inadvertently failed to return Hazel to his parents, impossible to accept.

Appellant concluded her Brief with a plea that should her conviction be affirmed,
the imposition of the penalty ofreclusion perpetua upon her would be too harsh because
her illicit act was really the result of the bitterness she felt over the betrayal and
humiliation inflicted on her by her husband, the brother of Lourdes Elpedes. 15 The Solicitor
General, in his own Brief, concurs with this view:
The record, however, shows that appellant had no intention to commit so grave a
crime. After she was found, she voluntarily surrendered and accompanied the
police and the minor's parents to Intramuros, Manila and later to Cogeo, Antipolo,
Rizal, where the minor was later recovered. Although she was alleged to have
received P250.00 from the Felipes when she left the minor with them, still
appellant's previous admissions and cooperation with the police show that she did
not have a criminal mind or intent to commit so grave an offense. These mitigating
circumstances can not, however, be considered in her favor under Article 63 of the
Revised Penal Code. The imposition of a life sentence on appellant under these
circumstances would indeed be too harsh, considering further that she can not
read and write, and had no educational background whatsoever.
It is therefore recommended that after partial service of sentence, appellant be
recommended for an early pardon, if so entitled under the law. 16
We agree that in this particular case, the penalty normally imposed for kidnapping
and similar offenses appears too harsh. The record does not indicate that Hazel Elpedes
has been injured emotionally or physically by his experience. We believe the trial court's
award of moral damages in favor of Hazel's parents was proper as reparation for the three
days of anxiety and mental anguish which they suffered before the recovery of their child
the amount, however, should be increased from P2,000.00 to P5,000.00. We believe the
degree of malice exhibited by the appellant, an unlettered woman, in committing the
offense here involved does not warrant the penalty of reclusion perpetua, particularly
because to date, she has already spent seven years in prison.
WHEREFORE, the Decision of the trial court dated 14 September 1987 imposing
the penalty of life imprisonment (should be reclusion perpetua) upon the appellant, is
hereby AFFIRMED, except that the award of moral damages in favor of Frank and Lourdes
Elpedes is hereby increased to P5,000.00. Pursuant to the authority granted to it under
Article 5 of the Revised Penal Code, the Court recommends, through the Secretary of
Justice, to the President of the Philippines that executive clemency be extended to
appellant Lilia Gutierrez as a means of mitigating the undue harshness of the criminal law
in this particular case.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.

G.R. No. L-16177

May 24, 1967

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PANCHO PELAGIO Y ALFONSO, ET AL., defendants.

PANCHO PELAGIO Y ALFONSO, OSCAR CAYMO Y REYES and JOSE GUICO Y

PAPAS, defendants-appellants.

house and its surrounding, Guico explained the location of the said house in relation to the
surrounding streets and, the points thereof through which entrance and exit should be
effected.

PER CURIAM:
This is an appeal from the decision of the Court of First Instance of Pasay City in Criminal
Case No. 3380, People v. Pancho Pelagio, et al., condemning the appellants, Pancho
Pelagio, Oscar Caymo and Jose Guico, to death for the crime of robbery with homicide as
defined and penalized in Article 294 of the Revised Penal Code.
The amended information under which the above judgment was rendered originally recited
six defendants, namely, the three aforenamed appellants, and Arcadio Balmeo, Evelyn
Villanueva and Arcadio Manalang alias Ding Manalang. Subsequently, however, Arcadio
Balmeo and Evelyn Villanueva were discharged from the said information when they
agreed to turn state witnesses. Armando Manalang, on the other hand, died while the case
was pending trial. Thus, the trial proceeded only with respect to the herein appellants:
Pancho Pelagio, Oscar Caymo and Jose Guico.
The records disclose that Jose Guico, an ex-convict, and Evelyn Villanueva lived in common
law relationship at No. 289-A (Int.) Leveriza St., Pasay City, from about January 1955 to
March of the same year. Among their friends were Pancho Pelagio, also an ex-convict, and
Armando Manalang. At around three o'clock in the afternoon of March 23, 1955, while
Manalang was at the above residence, Pancho Pelagio came to see the spouses Guico and
Villanueva. Pelagio's wife had just delivered a child and he wanted to borrow money for the
hospital expenses.
It is not determinable from the records if Pancho Pelagio was then accommodated in his
request for a loan. The records disclose, however, that Armando Manalang, taking
advantage of the said visit, informed Pancho Pelagio of a robbery he, Manalang was
planning with some other friends who later were revealed by Manalang to be Jose Guico,
Oscar Caymo and Arcadio Balmeo. Pelagio and Manalang decided to talk the matter over
and, in fact, did discuss the subject once more later that afternoon in the presence of Jose
Guico and Evelyn Villanueva, when Caymo and Balmeo arrived in the same house. The
following day, March 24, 1955, the above persons, namely, Evelyn Villanueva, Pancho
Pelagio, Armando Manalang, Oscar Caymo and Arcadio Balmeo, met again at Guico's
residence and there finalized and agreed on the plan to rob the house of Guico's former
landlady, a certain Aling Nena, at No. 327 G. Villanueva St., Pasay City. At this meeting,
Jose Guico was absent.
But the full and exact nature of Jose Guico's participation in the first meeting is unclear
because there is evidence to the effect that while the robbery was then being discussed,
Guico was in the bathroom taking his shower. (t.s.n. pp. 6, 12-13, Hearing of August 23,
1955). It is established, though, that after Manalang had sketched the intended victim's

When the meeting broke up at about sick o'clock that evening, March 24, 1955, Pancho
Pelagio, Oscar Caymo, Armando Manalang and Arcadio Balmeo set out for the execution of
their plan. They all walked together towards Aling Nena's residence although before
reaching the place, Caymo ordered Manalang to hail and hold a taxi which the latter did.
Then, too, only Balmeo and Caymo actually entered the victim's premises because, as was
earlier agreed upon, Pancho Pelagio acted as the lookout for the two and he simply posted
himself by the gate of the said house.
Caymo and Balmeo gained entrance to the house through its back kitchen door which they
found to be open. Once inside, Caymo drew his gun and sought out its occupants. Only an
old woman, Mrs. Severina de Gloria, however, was in at the time. Caymo then pointed the
gun at the old lady and intimidated her into producing all the money and jewelry she could.
All in all, the pair got about P437 in cash, three pieces of jewelry worth about P205.00 and
a watch worth about P300.00. After they had taken the above items, Caymo ordered Mrs.
de Gloria to lie face downward, covered her with a blanket, and cautioned her against
moving or otherwise sounding out an alarm. The two then went down the house and out
into the street. At the gate, however, they failed to find Pancho Pelagio.
From G. Villanueva Street where the victim's house was located, Caymo and Balmeo
walked till they got to the corner of F. Fernando street where they found Armando
Manalang waiting for them in a taxi. Caymo and Balmeo then rode on it.
As the taxi was about to leave, however, a jeep from the opposite direction blocked its way
and as the two vehicles were thus stopped, a man alighted from the jeep and started to
walk towards the taxi. When the stranger was very near the taxi already, Manalang
instructed Caymo to shoot at the man as the latter was a police officer. Whereupon, Caymo
leveled several shots at the latter, about six in all; and the man, who was later identified as
Patrolman Francisco Trinidad of the Pasay Police Department, fell dead.
From the scene of the shooting, Manalang, Caymo and Balmeo went direct to a house in
Buendia Street owned by Manalang's sister where they changed clothes and hid the death
weapon and the money and jewelry they had robbed. Shortly thereafter, Caymo and
Balmeo proceeded to a house in Blumentritt where they met Pancho Pelagio whom they
called to account for his absence at the gate during the robbery. The latter explained that
he had to scamper away before Caymo and Balmeo had gone down because he, Pelagio,
saw someone slip out of the house apparently to summon the police.
The records do not disclose just how and when the herein appellants and their companions
were apprehended by the police. It appears, however, that on March 25, 1955, or the day

following the incident, Oscar Caymo was taken to the National Bureau of Investigation and
subjected to paraffin test and found positive for nitrate burns in both hands, the next day,
he executed his extrajudicial confession (Exh. I) relating to his participation in the crime
and implicating Pancho Pelagio, Armando Manalang had Arcadio Balmeo in it.
On March 26, 1955, appellant, Jose Guico also executed an extra-judicial confession (Exh. I)
owning his participation in the formation of the conspiracy as earlier recited in this
decision. He named as co-conspirators Pancho Pelagio and Armando Manalang.
The last to be apprehended was Armando Manalang. On April 8, 1955, he extra-judicially
confessed (Exh. G) to the above offense and implicated as his companions in it Jose Guico,
Oscar Caymo, Arcadio Balmeo and Evelyn Villanueva.
In the trial court, the herein appellant's common defense was alibi. Pancho Pelagio claimed
that at the time of the incident he was playing mahjong at the house of one Angelina
Dadivas in Lakandola Street, Tondo, Manila. Oscar Caymo, on the other hand, claimed that
he was then at home at No. 2316 Oroquieta Street, Manila. Finally, Jose Guico maintained
that during the incident he was at the residence of one Jose Obligacion where he stayed
until about 11:00 in the evening. Consistently with their alibi, the appellants charged that
the extrajudicial confession given by them were secured by the police through threat and
maltreatment.
In the appeal before us now, only Oscar Caymo sticks to the defense of alibi. Appellant
Pancho Pelagio now admits he participated in the crime in the manner recited above but
submits that, under the circumstances, he should only be convicted for simple robbery and
not for robbery with homicide. Appellant Jose Guico, on the other hand, argues in this
appeal that even under the facts found by the trial court regarding his participation, he
cannot justly be convicted for the crime charged. The Office of the Solicitor General, for its
part, urges the affirmance of the decision under review with respect to Pancho Pelagio and
Oscar Caymo but recommends the acquittal of Jose Guico on reasonable doubt.
After a careful and thorough review of the evidence, this Court believes that the decision
appealed from should be modified to the end that Oscar Caymo's conviction should stand,
Pancho Pelagio's guilt be reduced to simple robbery, and Jose Guico, as recommended by
the Solicitor General, be acquitted on reasonable doubt.
Appellant Oscar Caymo's insistence on his alibi is absolutely futile. The evidence against its
credibility is both forceful and overwhelming.
To begin with, Oscar Caymo was positively identified by Mrs. Severina de Gloria as one of
those who broke into her house on the night of the incident and robbed her at gunpoint. He
was likewise positively identified during the trial by Francisco Juni, the driver of the getaway taxi, as the gunwielder in the fatal shooting of Pat. Trinidad. Additionally, state

witnesses Evelyn Villanueva and Arcadio Balmeo testified at the stand that he was among
those who hatched and agreed on the robbery at the house of Jose Guico previous to the
execution of the same. And then, too, he was found positive for nitrate burns in both his
hands by the National Bureau of Investigation the very day following the incident. Against
this finding, he has offered neither denial nor any reasonable explanation. Even if this
Court disregards his extrajudicial confession, therefore, though we do not here now find the
same inadmissible the acceptance of Caymo's alibi would still be completely anomalous
and irrational. No jurisprudence in criminal cases is more settled than the rule that alibi is
the weakest of all defenses and that the same should be rejected when the identity of the
accused has been sufficiently and positively established by eyewitnesses to the crime.
(People v. Ruiz, G.R. No. L-11063, August 22, 1958; People v. Asmawil, G.R. No. L-18761,
March 31, 1965; People vs. Lumayag, G.R. No. L-19142, March 31, 1965). When nothing
supports it except the testimonies of relatives and friends and the defendant's own urging
of the same, the said defense weighs and is worth nothing. (People v. Baaga, et al., G.R.
No. L-14905, January 28, 1961) Besides, the rule is to the effect that for alibi to prosper, it
is not enough to prove that he was also somewhere when the crime was committed but
the defendant must likewise demonstrate that it was physically impossible for him to have
been at the scene of the crime at such time. (People v. Limpo, et al., G.R. No. L-13058,
January 28, 1961) Caymo's alibi does not meet this standard. Consequently, this Court
would only do wrong and carry justice to set aside his conviction.
This Court, however, concurs with appellant Pancho Pelagio's submission that, by the trial
court's own factual determination, his criminal liability cannot be extended beyond simple
robbery. We hold Pancho Pelagio guiltless or innocent of Pat. Trinidad's death.
Even the decision under appeal recites that when Arcadio Balmeo and Oscar Caymo
hurried out of the victim's house after the robbery, Pancho Pelagio had evidently fled from
his lookout post because the pair, Balmeo and Caymo, failed to locate him at the gate
where he was supposed to have stationed himself. To be sure, the said decision itself
renders the account that it was only Balmeo and Caymo who walked together from the
said house to the corner of Villanueva and F. Fernando Streets where then they saw
Armando Manalang waiting for them in a taxi and that it was only when these three had
taken to the said taxi, and the cab was about to leave, that the shooting of Pat. Trinidad
happened. When the homicide was committed, therefore, Pancho Pelagio could not have
had the least intervention or participation as might justify penalizing him likewise for the
said killing. So far as the records disclose, the conspirators were agreed only on the
commission of robbery; there is no evidence that homicide besides was determined by
them when they plotted the crime. All these warrant the exclusion of Pancho Pelagio from
any responsibility for the said killing. (People vs. Basisten, et al., 47 Phil. 493) Considering
that those who actually participated in the robbery were only three, Pancho Pelagio
included, and only one of them was armed, the same evidently was not "in band." (Art.
296, Revise Penal Code) This being the case, then it would indeed be irregular or
questionable to hold Pancho Pelagio similarly responsible as Caymo and Balmeo for the
killing of Pat. Trinidad. Under the code, it is only when the robbery is in band that all those

present in the commission of the robbery may be punished, for any of the assaults which
its members might commit. Thus, inPeople v. Pascual, G.R. No. L-4801, June 30, 1953
(unreported), we held that where three persons committed robbery and two of them
committed rape upstairs on its occasion, while the third guarded the owner of the house
downstairs, only the two who committed the assault should be punished for robbery with
rape while the third was liable for robbery only.
Finally, we find the Solicitor General's recommendation for the acquittal of appellant Jose
Guico well founded. While it seems proven that the said appellant did participate in the
first of two meetings in the discussion of the plan to commit the robbery in question by
answering Armando Manalang's inquiries relating to the intended house and its
surrounding streets and the means of entrance thereto and the channels of exit therefrom,
the evidence is as much that, thereafter, his involvement with the conspiracy ceased. It
should be recalled that the conferences on the robbery were held on March 23, and 24,
1955. At the first meeting, the participants were Jose Guico, Pancho Pelagio, Oscar Caymo,
Armando Manalang, Arcadio Balmeo and Evelyn Villanueva. At the meeting of the 24th the
same group, save for appellant Jose Guico, conferred and finalized the plan and, in fact,
proceeded to execute the same almost immediately after the conference adjourned. There
is ample and positive evidence on record that appellant Jose Guico was absent not only
from the second meeting but likewise from the robbery itself. To be sure, not even the
decision under appeal determined otherwise. Consequently, even if Guico's participation in
the first meeting sufficiently involved him with the conspiracy, such participation and
involvement, however, would be inadequate to render him criminally liable as a
conspirator. Conspiracy alone, without the execution of its purpose, is not a crime
punishable by law, except in special instances (Article 8, Revised Penal Code) which,
however, do not include robbery.

without the compensating mitigating circumstances. On the other hand, appellant Pancho
Pelagio is hereby determined to be guilty beyond reasonable doubt of simple robbery
under Article 294, paragraph 5 of the Revised Penal Code, attended by the aggravating
circumstances of nocturnity and recidivism, having been at the time of the trial, as recited
in the information and proven at the trial, previously convicted for robbery. There is no
mitigating circumstance appreciable in his favor. For both appellants, therefore, the
penalties prescribed by law should be imposed in their maximum period, although
appellant Pancho Pelagio is still qualified to avail of the benefits of the Indeterminate
Sentence Law. For the reasons given above, appellant Jose Guico should be, as he is
hereby acquitted.
Wherefore this Court affirms the decision under appeal insofar as it imposes the death
penalty on appellant Oscar Caymo, but modifies the conviction of appellant Pancho Pelagio
from robbery with homicide to simple robbery under Article 294, paragraph 5, R.P.C., with
the aforementioned aggravating circumstances. Accordingly and applying the
Indeterminate Sentence Law, the said appellant is hereby sentenced to a prison term of
from four years and two months of prision correccional to eight years and one day
of prision mayor. The abovenamed appellants, moreover, are hereby ordered to indemnify,
jointly and severally the offended parties named in the decision under appeal the sums
therein stated. The indemnity for the death of Pat. Francisco Trinidad, payable to his heirs,
should be raised from P3,000.000 to P6,000.00 and charged alone against appellant Oscar
Caymo. Finally, the conviction of appellant Jose Guico is hereby set aside and let judgment
be entered acquitting him for the reasons given above. Costs against the appellants.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez
and Castro, JJ., concur.

Besides, appellant Jose Guico's absence from the second conference as well as from the
robbery itself strongly points to his evident change of mind regarding his commitment the
previous day to be in on the robbery. Under the circumstances and under a policy of liberal
consideration for timely retreat or repentance, he may be deemed to have desisted
voluntarily from the conspiracy before the contemplated crime could actually be carried
out and therefore, free from penal accountability. (People v. Timbol, et al., G.R. Nos. 4747347474, August 4, 1944 [unreported]) As Viada expounds on the rule, "when the action of
the felony starts and the accused, because of fear or remorse desists from its continuance,
there is no attempt. . . . If the author of the attempt, after having commenced to execute
the felony by external acts, he stops by a free and spontaneous feeling on the brink of the
abyss, he is saved. It is a call to repentance, to the conscience, a grace, a pardon which
the law grants to voluntary repentance." (Cited and translated in Padilla Criminal Law, p.
120, 1964 Ed.)

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JOSE HIDALGO

RESURRECCION and MAURA GOTENGCO y SOLIMAN, Defendants-Appellants.

In summary then, this Court finds appellant Oscar Caymo guilty beyond reasonable doubt
of the crime of robbery with the homicide attended by the aggravating circumstances, all
recited in the information and proven at the trial, of nocturnity and use of a motor vehicle

2. ID.; ID.; EVALUATION OF EVIDENCE; COURTS MAY ACCEPT OR REJECT PART OF WHOLE OF
TESTIMONY. It is a settled rule that the courts may believe one part of the testimony of a

[G.R. No. L-6273. December 27, 1957.]

y

SYLLABUS
1. EVIDENCE; ARSON; WHEN PROOF O THE CRIME CONSIDERED COMPLETE. In
prosecutions for arson, proof of the crime charged is complete where the evidence
establishes (1) the corpus delicti, that is, a fire because of criminal agency; and (2) the
identity of the defendants as the one responsible for the fire (Curtis, the Law of Arson, p.
526, section 586).

witness and disbelieve another part. Courts are not required to accept or reject the whole
of the testimony of a particular witness.
3. CRIMINAL PROCEDURE; EXCLUSION OF ACCUSED TO BECOME STATE WITNESS;
REQUISITE OF. Section 9, Rule 15 of the Rules of Court, does not require presentation of
proof before a motion for exclusion of an accused to be a witness for the state is granted.
The law only requires that hearing thereof be had and, in the case at bar, there has been
such hearing.

G, H, I, J, U and V), all of which clearly depict the burned area, the broken glass jars and the
arrangement on the floor of the unbroken glass jars which contained gasoline as well as
the connecting lines of tissue papers. In the course of the investigation of the fire, Capt.
Alonia made a sketch from which the data appearing on Exhibit T were taken, and a glance
at these photographs and sketch will convince anyone that but for the timely and efficient
handling of the fire by the firemen the entire building might have been burned because the
ingenuous device of connecting the gasoline-filled glass jars with tissue paper would have
rapidly spread the fire all over the Echague wing of the building and had the fire run its
natural course traces of its criminal inception and design would have been obliterated or
its detection made impossible by the resulting debris.

DECISION
ENDENCIA, J.:
Charged with and found guilty of arson on an inhabited building, with the aggravating
circumstances of premeditation and nighttime, without any mitigating circumstance to
offset the same, the accused spouses were sentenced by the Court of First Instance of
Manila to suffer reclusion perpetua, with the accessory penalties of the law, to pay jointly
and severally indemnity in the sum of P11,870.47 as follows: P3,400 to the Alto Surety &
Insurance Co., P3,475 to New Zealand Insurance Co., P1,895 to Malayan Insurance Co.,
P1,600 to South British Insurance Co., P1,500 to Pacific National Fire Insurance Co., plus
one-half of the costs. They appealed from this decision on the ground that the court erred

"1. In allowing the exclusion of Florencio Camilo from the complaint in order to make him a
state witness despite the opposition of the herein accused;

The building in question consists of two wings, one of which fronts Rizal Avenue and the
other Echague Street (Exhibit D). The appellant spouses were keeping a room in the
second floor at the corner of Rizal Avenue and Echague Street. The Echague wing was
occupied by the Republic Vocational School, owned by Dr. Felix Acevedo, and the Rizal
Avenue wing was rented out to various tenants. The stairs leading to the second floor were
located on Rizal Avenue and at the top of said stairs there used to be a door, but this was
removed on orders of appellants sometime before the fire. Entering the second floor from
said stairs, the appellants would turn right to reach their room and at the left side of the
door thereof a corridor ran thru the middle of the Echague wing. Along both sides of said
corridor were several rooms containing desks, tables, books, typewriters, a steel cabinet
and a sewing machine, and at the end of this corridor was a room with windows opening on
Estero Cegado and Echague Streets. The fire started in the above-described corridor, about
5 or 6 meters from the door of the said room of the appellants (Exhibits D, M and N).
The first floor and undivided one-half of the second floor of the building were owned by the
appellant spouses who insured the entire building with four insurance companies under
their deferent policies for a total sum of P175,000 as follows:chanrob1es virtual 1aw library

2. In not stating in its decision that the corpus delicti in the case at bar was not proven;
Peoples Surety & Ins. Co.
3. In not finding that since the testimony of the sole witness for the prosecution as regards
the guilt of the accused James Uy, alias James Kay and Aw Ming, alias Taba, was not
credible, it should likewise be incredible as regards the herein appellants;

July 3, 1950 to July 3, 1951

P15,000.00 (Exh. W-1)

September 15 1950 to September

4. In not finding that the testimony of Florencio Camilo comes from an impure source and
hence it should not prevail over the testimony of herein appellants; and

15, 1951

5. In not acquitting the herein appellants."cralaw virtua1aw library

September 8, 1950 to September 8,

Upon careful examination of the record of the case, we find to be completely undisputed
and positively shown by the evidence on record the following facts: that in response to an
alarm, at about 7:40 on the evening of October 8, 1950, Capt. Braulio Alonia, Chief of the
San Lazaro Fire Station, rushed with his men to the corner of Echague and Rizal Avenue,
City of Manila. Upon arriving at the place, they found on fire the second floor of the
appellants building located in that corner. His men proceeded to quench the blaze and
succeeded in doing so in a few minutes. Soon after the fire had been put out, Capt. Alonia
inspected the second floor and found on the Echague wing thereof two broken glass jars,
ten unbroken glass jars containing gasoline, lines of toilet paper dipped in the gasoline
content of the jar and arranged in such a manner as to connect them to one another, and
eleven green tin covers, Exhibits B, B-1 to B-9; C, C-1 to C-10; D and I. Photographs of the
fire scene were taken by the photographers of the Police and Fire Department, (Exhibits F,

1951

10,000.00 (Exh. W-2)

10,000.00 (Exh. W-3)

August 25, 1950 to August 25,

1951

20,000.00 (Exh. X to X-4)

August 25, 1950 to August 25,

1951

10,000.00 (Exh. W-5)

Central Surety Company

November 23, 1949 to November

23, 1950

50,000.00 (Exh. X to X-6)

The record discloses that there is no direct evidence linking the herein appellants with the
crime at bar except the testimony of Florencio Camilo. Were his testimony to be held as
unworthy of credence, the appellants are perfectly entitled to acquittal; otherwise the
decision appealed from should be upheld.

June 19, 1956 to June 19, 1951 20,000.00 (Exh. Y)

Alto Surety & Ins. Co.
September 26, 1950 to September
26, 1951

15,000.00 (Exh. Z to Z-1)

September 25, 1950 to September

25, 1951

5,000.00 (Exh. AA to AA-1)

Manila Underwriters Ins. Co.

May 15, 1950 to May 15, 1951 . . . . . . . 20,000.00 (Exh. BB to BB-2)
___________
Total

P175,000.00

Eight of these policies (Exhs. W-1, W-2, W-3, W-4, W-5, X, Z and AA) with a total face value
of P135,000 were taken out in the name of the appellant spouses either jointly or singly
and six of these eight, with a total face value of P70,000 (Exh. W-2, W-3, W-4, W-5, Z, and
AA) were taken out about a month prior to October 8, 1950, the date when the fire
occurred.
The evidence further shows that the building in question suffered an estimated loss and
damage of P5,255, yet the appellants did not file the necessary claim for recovery of said
damage under their policies. It likewise appears that the reproduction costs in 1950 of
appellants building was only P89,524.59 (Exhibit CC) and, notwithstanding the fact that
the appellants do not own the entire building, for they own only the first floor and one-half
of the second floor, they secured, as stated above, 8 policies with a total face value of
P135,000 and 6 of these 8 policies with a total face value of P70,000 were taken out just
about a month before the fire.
Due to the investigation conducted by Capt. Alonia immediately after the fire and further
investigation done by the Police authorities which strongly indicated that the burning of
appellants building was intentional, on March 29, 1951 an information was filed against
the herein appellants Jose Hidalgo Resurreccion and Maura Gotengco y Soliman and
Florencio Camilo, alias Lin Siu, alias Lin Hong, alias Sy Hong, and John Doe, which later on
was a mended to include therein the accused James Uy, alias James Kay and Aw Ming, alias
Taba. Before the trial of the case, upon proper motion by the City Fiscal and despite
opposition by the herein appellants, Florencio Camilo was excluded from the information to
be utilized as a government witness, and thus Florencio Camilo was allowed to testify in
the case.

Camilos testimony, as correctly summarized by the Solicitor General in his brief, is as

follows:jgc:chanrobles.com.ph
"Camilo testified that he and James Kay were friends since before the war, and that he had
known Aw Ming for about nine months (pp. 28- 29, t.s.n.) . On the evening of October 1,
1950, at a massage clinic on Florentino Torres Street which these friends used to frequent,
they made an appointment to meet each other the afternoon of the next day at the Bataan
Cafe for the purpose of seeing Dr. Hidalgo about the burning of the latters building (pp. 30,
258-260, t.s.n.) . In that cafe, the three met at about 2:00 p.m. and thence proceeded to
said building, where in a room on the second floor Camilo met the Hidalgo spouses for the
first time (pp. 27, 31-32, t.s.n.) . Inside said room Camilo saw two big dogs of foreign breed
held in leash, several chairs, and a bed (pp. 35-36, t.s.n.) . After some haggling over the
price for the job of setting the building on fire, James Kay and Dr. Hidalgo agreed upon
P16,000, of which P15,000 was to be paid by check and the balance of P1,000 in cash (pp.
37-39, t.s.n.) . Protesting lack of cash on the occasion, Dr. Hidalgo told the three to return
on October 4 and on that day Maura Gotengco drew two checks against the Philippine Trust
Company, both payable to "cash" (pp. 40-43, 54, t.s.n.) . One of these P.T.C. No. 837571
(Exhibit L), was for P12,000 and was postdated November 3, 1950; the other P.T.C. No.
837570, was for P3,000, but in the space for the date of issuance only the figure "10" and
the year "1950" were written (see Exhibit K). Enough space, however, was left between the
printed word "Manila" and the figure "10" for the insertion of the abbreviation of a month
so that if for instance the abbreviation "October" were written after word "Manila" and
before the figure "10", the check would appear as if it had been issued on October 10,
1950; or a bar could be placed after the figure "10" and any number from 1 to 31 written
after it say "4", and it would appear that it was issued on October 4, 1950. At first only the
face of these checks was signed by Gotengco, but James asked her to sign them also on
the back, which she did, and the said checks, having been thus endorsed, were then
handed to James (pp. 44, 55-56, 121, t.s.n.) . Fifty and one-hundred peso bills totalling
P1,000 were then counted out to James: and after he had pocketted both the checks and
the cash (pp. 45, 242, t.s.n.) , the conspirators proceeded to discuss when and how the
building was to be burned (p. 58, t.s.n.) . For the reason that on Sundays the Chinese
stores are closed and there are comparatively less people about, October 8, 1950, a
Sunday, was chosen (pp. 60-61, t.s.n.) . It was also agreed upon that the building would be
set on fire at 7:30 in the evening and that gasoline in bottles would be used (pp. 58, 60,
63, t.s.n.) . This matter having been settled, Dr. Hidalgo, James Uy, Aw Ming, and Camilo
inspected the premises to be set on fire, and a place in the Republic Vocational School
where there was a bookcase was selected for starting the blaze (p. 67, t.s.n.) .
"While returning from Quiapo church the afternoon of the next day, October 5, 1950,
Camilo and his wife, Virginia de la Cruz, met their friend Johnny Uy and walked with him to
the massage clinic on Florentino Torres Street where he was working. At the corner of said
street and Ronquillo Street, Camilo was seen by James Uy and Aw Ming who were inside a
coffee shop. James called Camilo and as it turned out that James and Aw Ming were
quarreling about the possession of the checks, James wanting to retain them and Aw Ming
insisting on taking them from James, it was agreed that Camilo would hold the checks and
that about 9 00 oclock that night both would come to the massage clinic on Florentino

waited until midnight but as neither showed up he started to go home. However, at the
foot of the stairs leading from the clinic, he was accosted by Det. Lt. Enrique Morales who
demanded the production of his alien certificate of registration; and as Camilo was taking
this from his wallet, Morales spied the checks and took them from him (pp. 76-78, t.s.n.) .
"The following morning, October 6, 1950, Camilo went to James Tailoring Shop on Echague
St. and reported to him the seizure of the checks (p. 247, t.s.n.) . James said he would take
up the matter with Morales and then they sought out Dr. Hidalgo and his wife to inform
them also of the confiscation of the checks (pp. 80, 82, t.s.n.) . Dr. Hidalgo told them not to
worry, saying that he would declare to the bank that the checks had been lost, that
another checks would be issued, and that they should go ahead with their plans (pp. 8285, t.s.n.) . However, James put off the purchase of the materials to be used for the burning
because on that day, October 6, 1950, his son was to be baptized and he even borrowed
Camilos share of the cash (p. 158, t.s.n.) .
"On October 7, 1950, Camilo and Jesus went to Lt. Morales to ask for the return of the
checks and Morales returned to Camilo the check for P3,000 which Camilo forthwith
handed to James (p. 80, t.s.n.) . Camilo then accompanied James to a store on Echague St.
and there the latter bought twelve (12) glass jars with green tin stoppers which they
brought to Aw Mings house on Mayhaligue Street (pp. 85-86, t.s.n.) After lunch, Camilo
rode in a jeep driven by James and in four (4) trips, they bought gasoline from four (4)
different stations along Taft Avenue in Pasay City. After each purchase, they returned to Aw
Mings house on Mayhaligue where James siphoned the gasoline with a rubber tube from
the tank into a tin can and Aw Ming helped transfer the gasoline from said can into the
twelve (12) glass jars (pp. 88-97, t.s.n.) .
"About 7:00 in the evening of October 8, 1950, James and Aw Ming picked up Camilo at the
Bataan Cafe and the three drove in a jeep to the house of the Hidalgo spouses on the
corner of Rizal Avenue and Echague Street. Inside the jeep were the twelve (12) glass jars
filled with gasoline contained in two cartons and some rolls of toilet tissue paper wrapped
in Manila paper (pp. 99-100, t.s.n.) . James parked the jeep in front of the appellants
building and after calling Dr. Hidalgo, he (James) and Aw Ming carried the gasoline-filled
jars to the second floor while Hidalgo carried the bundle of toilet paper (pp. 102-103, t.s.n.)
. Soon afterwards, James came down told Camilo to go up the building, and parked the jeep
elsewhere. Camilo obeyed and in a few minutes James returned to join his companions
upstairs (p. 104, t.s.n.) . James and Camilo unscrewed the jar covers and placed the jars
about the Echague wing, some under chairs and others near bookcases. The tissue paper
was unrolled and the end of lines thereof inserted in the jars to connect them to each other
(pp. 105-108, t.s.n.) . One end of a length of tissue paper about 1 1/2 meters long was
inserted in one of the jars and on the other end thereof James stuck a candle about one
inch long and lighted it. Hidalgo then led out his two dogs, and Camilo, Aw Ming and James
followed him (pp. 112-113, 116, t.s.n.) . Hidalgo placed the dogs in his yellow Cadillac
convertible and parked it in front of the then Bataan Theater at the foot of Sta. Cruz Bridge
(now McArthur Bridge). Aw Ming left, but Camilo and James, who was to relight the candle
if the building did not burn, stayed watching the building on the south sidewalk of Echague
Street. In about ten minutes, Camilo heard an explosion and the building started to burn
(pp. 113-115, t.s.n.) ."cralaw virtua1aw library
The foregoing testimony is assailed on the ground that it is incredible and contrary to the
ordinary course of events: that being the testimony of an accomplice, it comes from a
polluted source and therefore it should be received with caution; that it was not given

credence by the lower court with respect to appellants co-accused James Uy and Aw Ming
who were acquitted and, therefore, it should not also be given weight with regard to the
herein appellants, for if Camilos testimony as regards the guilt of James Uy and Aw Ming
was not credible, it should likewise be unworthy of credence as regards the appellants
alleged complicity in the crime at bar.
We find, however, that the lower court gave credence to the testimony of Florencio Camilo
with respect to the participation of the herein appellants in the burning of their building,
because it is corroborated by the fact that Maura Gotengco issued the checks testified to
by the witness, to wit: P3,000 (Exhibit K) and P12,000 (Exhibit L) and by the other fact, that
the spouses had heavily insured the building in question for P175,000 prior to the fire when
the insurable value thereof was only about P78,000 or P79,000. And upon careful scrutiny
of the evidence on record, we find these facts to be unrefuted for the spouses did really
insure the building in question for the amount mentioned above, and that Maura Gotengco,
on October 4, did really draw the aforesaid checks.
As to the over insurance of the building, it appears that the herein appellants never denied
having secured eight policies, on the building, with a total face value of P135,000 and that
6 of these policies, for a total value of P70,000, were taken out just about a month before
the fire. When the lower court, therefore, found the herein appellants guilty of the crime of
arson charged against them, it acted with sufficient evidence supporting its finding.
Appellants vigorously contend that the issuance of the checks by Maura Gotengco should
not be taken against them, for said checks were issued by Maura to help one Victor
Vickman who was allegedly a Philippine Army undercoverman trying to locate a hidden
cache of firearms and ammunition worth P1,660,000. Appellants claim that this Vickman
told them that a certain Bill Dean, representing the so-called sellers group, asked him to
put up a "goodwill money" in the sum of P15,000; that unless said sum of money could be
produced by Vickman, the latter would not be allowed to inspect the firearms; that
Vickman tried to get said amount from his superiors but in vain, and when Vickman
happened to talk to them (appellants), Maura issued a check to help said Vickman.
Carefully considered, appellants explanation as to how the checks in question were issued
clearly appears unbelievable, firstly, because if Vickman really needed P15,000 to discover
the cache of firearms and ammunitions above-mentioned and he approached the army
authorities to secure said amount, it is difficult to believe that said amount, in cash or in
check, would not be given by his superiors to a subordinate like Vickman and thereby
imperil the success of an undertaking which demanded utmost secrecy; secondly, it is
highly unbelievable that for the purpose of discovering the cache of firearms and
ammunitions which required utmost secrecy, Vickman would ask help from the herein
appellants whose intimacy with him has not been proved.
Appellants strongly urge that since Camilos testimony as regards the guilt of the accused
James Kay and Aw Ming was not given credence, it should likewise be held unworthy of
credence as regards the appellants. It is however a settled rule that the courts may believe
one part of the testimony of a witness and disbelieve another part. Courts are not required
to accept or reject the whole of the testimony of a particular witness. In the case at bar,
the lower court found that Camilos testimony concerning the accused James Uy and Aw
Ming was not corroborated and, except said testimony, there was nothing in the evidence
presented by the prosecution which would connect them with the perpetration of the crime
charged against them, this being the main reason for their acquittal. In other words, James

Uy and Aw Ming were acquitted on the insufficiency of evidence and not on a finding that
Camilos testimony was not worthy of credence.
Appellants also claim that it is hard to believe Camilos testimony to the effect that, after
Hidalgo had committed himself to pay P16,000 to his co-conspirators to set fire on his
building, he would still help his accomplices in the preparation of the incendiary
paraphernalia, and even more incredible that after the seizure by Detective Lt. Morales of
the checks issued to his accomplices in payment for their help, he would still insist in
carrying out the plan to burn said building. But, as the Solicitor General pointed out
"All these alleged incredibilities are susceptible of rational explanation. Appellants were not
buying gasoline in 12 glass jars, rolls of tissue paper, and an inch-long candle, but the
know-how for the attainment of their objective, viz., the burning of the building so that
they might collect on their P135,000 policies. For such a stake, P16,000 certainly cannot be
considered an excessive price to pay. And after all, what appellants actually parted with
was only P1,000 before the fire, and it is not most unreasonable to suppose that the
agreement between James Kay and the appellants was to make encashment of the checks
contingent on a successful burning and recovery on the insurance policies, since the
twelve thousand-peso check, Exhibit L, was postdated more than a month from the actual
date of its issuance, and the three-thousand-peso check, Exhibit K, was not completely
dated, and Maura did not have any deposit to back them up. There is nothing strange in
the fact that Hidalgo helped his accomplices arrange the tissue paper and jars. It was
necessary that he be in the building when the trio arrived to prevent their being stopped or
questioned by the other tenants of the second floor, and being there, it was all too natural
for him to give a hand. As to the confiscation of the checks, the appellants could not have
been deterred thereby from going ahead with the planned burning, because they could not
have then known that Camilo would turn state witness. It cannot be gainsaid that without
Camilos testimony it would have been impossible to connect the appellants with the crime
notwithstanding that the checks were in the hands of the police authorities. This explain
also why the appellants did not mind using checks."cralaw virtua1aw library
Consequently, we hold the view that Camilos testimony deserves credence, for it is not
only corroborated by the issuance of Maura Gotengco of the aforementioned checks
(Exhibits K and L), but also by the facts correctly indicated by the Solicitor General in his
brief, to wit:chanrob1es virtual 1aw library

"(5)
The admitted occupancy by Hidalgo spouses of a room on the second floor of the
building where the fire occurred, and the presence therein of dogs of foreign breed, some
chairs, and a bed.
"(6)

The undenied ownership by Dr. Hidalgo of a yellow Cadillac convertible.

"(7)

The admitted tenancy of the Rizal Avenue wing by various tenants.

"(8)
The admitted occupancy by Republic Vocational School of the Echague wing of the
building and the presence therein at the time of the fire of tables and bookcases among
the articles Camilo said he saw there."cralaw virtua1aw library
Another contention of the appellants is that the court erred in not requiring the prosecution
to present proof in support of its motion for the discharge of Florencio Camilo before
allowing him to be a witness for the state. This contention is obviously untenable. Section
9, Rule 15 of the Rules of Court, does not require presentation of proof before a motion for
exclusion of an accused to be witness for the state is granted. The law only requires that
hearing thereof be had and, in the case at bar, there has been such hearing, for as we held
in the case of U. S. v. Abanzado Et. Al., 37 Phil., 659.
"It was not the intention of the legislator, by the enactment of Act No. 2709, to deprive the
prosecution and the state of the right to make use of participes criminis as witnesses, but
merely to regulate the exercise of that right by establishing the conditions under which it
may properly be exercised.
"The Act leaves the manner of the enforcement of these conditions in the sound judicial
discretion of the courts. If the court errs in the exercise of this discretion end discharges a
guilty person who should not have been set at liberty, the error, as a general rule, cannot
be cured any more than any other error can be cured which results in an acquittal of a
guilty defendant in a criminal action (U. S. v. De Guzman, 30 Phil. 416). But the
commission of such error does not have the effect of discharging from criminal liability the
accused persons who were not discharged that they might be used as witnesses."cralaw
virtua1aw library

(1)
The admitted fact that the appellants did declare on October 7, 1950, to a bank,
the Philippine Trust Company, the loss of certain checks whose serial numbers included
those of Exhibits K and L. (See Exhibit 11.) It cannot just be pure coincidence that the
Hidalgo spouses were, according to Camilo, informed of the confiscation of the checks by
Morales on October 6, 1950, and that Dr. Hidalgo then told him and James Kay that he
would declare to the bank that the checks had been lost.

Lastly, appellants urge that in the case at bar, no corpus delicti was proven. This
contention merits no consideration whatsoever, for in the present case there was a
building burned and its burning was the result of the wrongful and criminal act of some
persons, among them, the witness Camilo and the herein appellants. In prosecutions for
arson, proof of the crime charged is complete where the evidence establishes (1) the
corpus delicti, that is, a fire because of criminal agency; and (2) the indemnity of the
defendant as the one responsible for the fire (Curtis, The Law of Arson p. 526, section 486).

"(2)
The uncontradicted number and manner of arrangement of the glass jars which
were found in the premises of the Republic Vocational School immediately after the fire.

Wherefore, finding no errors in the decision appealed from, the same is hereby affirmed,
without costs.

"(3)
The uncontradicted fact that the contents of said jars were indeed gasoline as
found by the MPD Chemist Ungson upon analysis thereof.

Paras, C.J., Bengzon, Montemayor, Reyes, A., Labrador, Bautista Angelo, Reyes, J. B. L. and
Felix, JJ., concur.

"(4)
The uncontradicted presence and arrangement of tissue paper in relation to the
glass jars in exactly the same manner described by Camilo.

Between 8 and 9 o'clock in the morning of April 28th of this year, when M. D. Lewin was
absent from the house in which he was living his family, at No. 328, San Rafael Street, San
Miguel, Mrs. Auckback, who appears to have been a resident of the neighborhood, called
Mrs. Lewin and told her that much smoke was issuing from the lower floor of the latter's
house, for until then Mrs. Lewin had not noticed it, and as soon as her attention was
brought to the fact she ordered the servant Paulino Banal to look for the fire, as he did and
he found, so asked with kerosene oil and placed between a post of the house and a
partition of the entresol, a piece of a jute sack and a rag which were burning. At that
moment the defendant Valdes was in the entresol, engaged in his work of cleaning, while,
the other defendant Hugo Labarro was cleaning the horses kept at the place.
On the same morning of the occurrence, the police arrested the defendants, having been
called for the purpose by telephone. Severino Valdes, after his arrest, according to the
statement, Exhibit C, drawn up in the police station, admitted before several policemen
that it was he who had set the fire to the sack and the rag, which had been noticed on the
date mentioned. and he also who had started the several other fires which had occurred in
said house on previous days; that he had performed such acts through the inducement of
the other prisoner, Hugo Labarro, for they felt resentment against, or had trouble with,
their masters, and that, as he and his coaccused were friends, he acted as he did under
the promise on Labarro's part to give him a peso for each such fire that he should
start. lawphi1.net

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

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

The defendant Severino Valdes admitted, in an affidavit, that he made declarations in the
police station, although he denied having placed the rag and piece of jute sack, soaked
with kerosene, in the place where they were found, and stated, that it was the servant
Paulino who had done so. He alleged that, on being arraigned, he stated that he had set
fire to a pile of dry mango leaves that he had gathered together, which is contrary to the
statement he made in the police station, to wit, that he had set the fire to the said rag and
piece of sack under the house.
For lack of evidence and on his counsel's petition, the case was dismissed with respect to
the other defendant Hugo Labarro.
Owing to the repeated attempts made for about a month past, since Severino Valdes
Began to serve the Lewin family, to burn the house above mentioned. occupied by the
latter and in which this defendant was employed, some policemen were watching the
building and one of them, Antonio Garcia del Cid., one morning prior to the commission of
the crime, according to his testimony, saw the defendant Valdes climbing up the wall of the
warehouse behind the dwelling house, in which warehouse there was some straw that had
previously been burned, and that, when the defendant noticed the presence of the
policeman, he desisted from climbing the wall and entering the warehouse.
The fact of setting fire to a jute sack and a rag, soaked with kerosene oil and placed beside
an upright of the house and a partition of the entresol of the building, thus endangering

the burning of the latter, constitutes the crime of frustrated arson of an inhabited house,
on an occasion when some of its inmates were inside of it.. This crime of provided for and
punished by article 549, in connection with articles 3, paragraph 2, and 65 of the Penal
Code, and the sole proven perpetrator of the same by direct participation is the defendant
Severino Valdes, for, notwithstanding his denial and unsubstantiated exculpations, the
record discloses conclusive proof that it was he who committed the said unlawful act, as it
was also he who was guilty of having set the other fires that occurred in said house. In an
affidavit the defendant admitted having made declarations in the police station, and
though at the trial he denied that he set fire to the sacks and the rag which were found
soaked in kerosene and burning, and, without proof whatever, laid the blame unto his
codefendant, the fact is that confessed to having set fire to a pile of dry leaves whereby
much smoke arose from the lower part of the house, but which, however, did not forewarn
his mistress, Mrs. Lewin, though she should have noticed it, and he allowed the sack and
the rag to continue burning until Mrs. Auckback noticing a large volume of smoke in the
house, gave the alarm. No proof was submitted to substantiate the accusation he made
against the servant Paulino, who apparently is the same persons as the driver Hugo
Labarro.
The crime is classified only as frustrated arson, inasmuch as the defendant performed all
the acts conceive to the burning of said house, but nevertheless., owing to causes
independent of his will, the criminal act which he intended was not produced. The offense
committed cannot be classified as consummated arson by the burning of said inhabited
house, for the reason that no part of the building had yet commenced to burn, although, as
the piece of sack and the rag, soaked in kerosene oil, had been placed near partition of the
entresol, the partition might have started to burn, had the fire not been put out on time.
There is no extenuating or aggravating circumstance to be considered in a connection with
the commission of the crime, and therefore the penalty of presidio mayor immediately
inferior in degree to that specified in article 549 of the Penal Code, should be imposed in
its medium degree.
For the foregoing reasons the judgment appealed from should be affirmed, with the
modification however, that the penalty imposed upon the defendant shall be given eight
years and one day of presidio mayor, with the accessory penalties prescribed in article 57
of the Code. The defendant shall also pay the costs of both instances. So ordered.

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

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
ANTONINO HERNANDEZ, defendant-appellant.

Crispin Oben for appellant.

Attorney-General Jaranilla for appellee.

AVANCEA, C.J.:
In the judgment appealed from the appellant was convicted of arson and
sentenced to eight years and one daypresidio mayor, with the accessaries of
law, and the costs.
On February 3, 1929, Miguel Dayrit, the offended party, was living with his
children in his house situated in the barrio of Duque, municipality of
Mabalacat, Province of Pampanga. At a little past midnight on that date, and
after Miguel Dayrit had retired, he noticed that the thatched roof of his house
was on fire. He got up to fetch some water with which to extinguish the fire,
when, looking out of the window, he saw the appellant beside the house,
carrying a stick (Exhibit A). Miguel Dayrit shouted for help, and started to put
out the fire, which he succeeded in doing, after a small part of the roof had
burned. In answer to his cries for help, Artemio Tanglao repaired to the place
and saw the defendant running away. Daniel Mallari also came, and on his
way to the house met the defendant.
The appellant knew that Miguel Dayrit and his children lived and were in the
house that night.
The testimony of the offended party, corroborated by that of Artemio Tanglao
and Daniel Mallari, establishes beyond all doubt the fact that it was the
appellant who set fire to the house. The stick which Miguel Dayrit saw in the
appellant's possession on that night was found leaning against the house with
the end burnt and a rag soaked with petroleum dangling from it. Daniel
Mallari recognized it as the stick which the appellant used in getting guava
fruits.
It should be noted, moreover, that prior to the crime, the appellant and the
offended party, Miguel Dayrit, had some disagreements because the offended
party suspected that the appellant was stealing his paddy piled up behind his
house. The offended party communicated his suspicions to the barrio

lieutenant, who, together with the complainant, went to the appellant's

house, but the latter armed with a bolo, barred their way, saying that he
would cut them to pieces, and that he recognized no authority. This
characteristic violence on the part of the appellant was also shown when, in
pursuance of this information, he was arrested; for he refused to give himself
up.
The trial court held that the crime committed was only frustrated arson. We
agree with the Attorney-General that the crime was consummated. The
appellant did in fact, set fire to the roof of the house, and said house was in
fact partially burned. With this, the crime of arson was consummated,
notwithstanding the fact that the fire was afterwards extinguished, for, once
the fire has been started, the consummation of the crime of arson does not
depend upon the extent of the damage cause. This court has so held in the
cases of United States vs. Go Foo Suy and Go Jancho (25 Phil., 187) and
United States vs. Po Chengco (23 Phil., 487).
The crime of arson having been consummated, as it appears from the facts
thoroughly proved, article 549 of the Penal Code is applicable herein, with the
corresponding penalty of cadena temporal to life imprisonment. And as the
aggravating circumstance of nighttime must be taken into consideration, as
having been doubtless sought by the appellant in order to insure the
commission of the crime, the penalty must be imposed in its maximum
degree.

decision, once it becomes final, to the Governor-General for consideration. So

ordered.
G.R. No. 307

September 12, 1902

THE UNITED STATES, complainant-appellee,

vs.
AGUSTIN VILLANUEVA, defendant-appellant.
Emilio Gaudier, for appellant.
Assistant Attorney-General Constantino, for appellee.
TORRES, J.:
Appeal by the defendant, Agustin Villanueva, against the judgment of the
18th of November, 1897, rendered in case No. 5606 by the court of La
Laguna, for attempted estafa, by which he was condemned to pay 500
pesetas fine, or to the subsidiary personal penalty, and to the payment of
one-third part of the costs.

In view of these considerations, the judgment appealed from is modified, and

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

On the 25th of November, 1884, Celestino Borlasa filed a complaint before

the local authorities of the town of Lilio against Agustin Villanueva, stating
that he, accompanied by Juan Urna, had gone to the complainant's house,
and, after having examined the house, by order, as stated by Villanueva, of
the forestry officer, Hermenegildo de Ocampo, and having observed that the
house was built with new lumber, as well as several other houses also
examined, demanded of the complainant the sum of 6 pesos and 2 reals for
the purpose of avoiding a fine and with a view of preparing a petition for
obtaining a free permit to cut timber. This amount the complainant was
unable to pay, and Villanueva refused to receive 3 pesos, which was offered
him by Borlasa.

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

This fact, proven by the testimony of two trustworthy witnesses, constitutes

the crime of attempted estafa, defined and punished by section 1 of article
534 and section 1 of article 535 in connection with article 66 of the Penal
Code. The facts established by the evidence in the case show that the
attempt was made to obtain the sum of 6 pesos and 2 reals by fraudulent
representations and for purposes not justified or authorized by the forestry

law. If the estafa was not consummated it was because the complainant
either could not or would not pay the amount demanded, and simply offered a
little less than half, which the defendant, in turn, refused to accept.
The defendant, Agustin Villanueva, is guilty, as author by direct participation,
of the crime of attempted estafa of a sum not exceeding 250 pesetas, by his
own confession. Although the defendant did not succeed in consummating
the crime of obtaining the money upon the fraudulent pretext of having been
authorized by the forester, Hermenegildo de Ocampo, an employee of the
Forestry Bureau, the fact is that he attempted to obtain the amount
demanded and refused to receive the 3 pesos which the complainant offered
him, this being less than one-half of the amount demanded.
All these facts are established by the testimony of the two witnesses there
present and by another witness, who affirms that he saw Villanueva in
conversation with the complainant, Celestino Borlasa, although not aware of
the subject of their conversation.
The unsupported allegation by the defendant that he had acted under the
orders and upon the authority of the ranger, Ocampo, who was not arrested
and is still absent, can not serve as an excuse or relieve him from the charge
brought against him, inasmuch as the forester was not authorized or
empowered to give such orders, not is such an action authorized by law.
In the commission of the crime, and for the purpose or the imposition of the
penalty, the concurrence of the aggravating circumstance of No. 18 of article
10 of the Code must be considered, because Villanueva has been already
convicted by final judgment of three other crimes of estafa, and, therefore, no
mitigating circumstance being present to offset the effects of the aggravating
circumstance, the defendant must suffer the penalty prescribed by the law in
its maximum degree, although, in consideration of the provisions of article 83
of the Code, and it not appearing that the financial position of the defendant
is such that he may be classed as a rich man, which appears from the nature
of the crime, the fine to which he becomes liable should not be a heavy one,
and therefore, by virtue of articles 26, 83, 92, and those above cited, section
50 of General Orders, No. 58, and the law of August 10, 1901, we are of the
opinion that the judgment appealed should be affirmed with reference to the
defendant, Villanueva, but in case of inability to pay the fine, the subsidiary

imprisonment can not exceed one month and one day, the preventive
imprisonment suffered to be computed, the defendant to pay one-third of the
costs of this instance, without special mention as to the defendant Juan Urna
acquitted by the court below.
So ordered.

G.R. No. L-17021

February 23, 1921

THE UNITED STATES vs. ISAAC DOMINGUEZ

VILLAMOR, J.:
The fact which gave rise to the present appeal is described in the information as follows:
That on or about 19th day of January, 1920, in the city of Manila, Philippine Islands,
the said accused who was a salesman at the Philippine Education Co., Inc. did then
and there receive the sum of seven pesos and fifty centavos (pesos 750) from one
Lamberto Garcia as payment for five copies of Sam's "Practical Business Letters"
bought from the store of the said company, which amount should have been
turned over and delivered by him (accused) to the company's cashier or his
authorized representative therein; that instead of delivering the said amount to the
said cashier or his representative therein, which he knew it was his obligation to
do, the said accused did then and there willfully, unlawfully and criminally
misappropriate and convert it to his own personal use to the damage and prejudice
of the said Philippine Education Co., Inc. in the sum of seven pesos and fifty
centavos (pesos 7.50) equivalent to 37 pesetas.
At the close of the trial the court found the accused guilty of the crime of estafa of the sum
of pesos 7.50 and sentenced him to be imprisoned for two months and one day of arresto
mayor, with the accessories provided by law, and costs.
Appeal having been taken to this to this Supreme Court, the counsel for the accused
assigns, as error committed by the court, its finding that the accused is guilty of the crime
charged and its action in imposing upon him the penalty corresponding to a principal in the
crime of estafa.
It is proved that the accused, as salesman of the bookstore "Philippine Education Co., Inc."
sold on the morning of January 19, 1920, five copies of Sams' "Practical Business Letters,"
of the value of seven pesos and fifty centavos (pesos 7.50), which the accused should have

immediately delivered to the cashier but which he did not deliver, until after it was
discovered that he had sold the books and received their value without delivering it to the
cashier, as was his duty.
The accused alleges that he did not deliver the money immediately after the sale, because
the cash boys were very busy as well as the cashier, while he had to go to the toilet for
some necessity, and upon coming out, the cashier caught him by the arm and asked him
for the money, and then he delivered the sum of pesos 7.50 to him; and that it was not his
intention to make use of said money. Such claim, nevertheless, does not exempt him from
the criminal responsibility which he had incurred, for the evidence before us shows clearly
that he attempted to defraud the "Philippine Education Co., Inc." Upon being asked for the
money, he first said that a woman, whom he did not know, bought books, without having
paid, for the reason that she was, according to herself, in a hurry; and, latter, he went out
of the store to talk to a friend who was employed in the Pacific Mail Steamship Co. to tell
him that if anyone should ask him if he (the employee of the Pacific Mail Steamship Co.)
bought books that morning in the store of the "Philippine Education Company" he should
answer affirmatively. Furthermore, he had also declared to the manager of the bookstore
that he used part of the money in purchasing postage stamps.
There can be no doubt as to the injury which the accused would have caused to the
interests of the company in retaining for himself the proceeds of the sale in question.
But the question of law to be decided is whether the fact that the accused retained in his
possession the proceeds of the sale, delivering them to the cashier only after the deceit
had been discovered, constitutes a consummated offense or merely a frustrated offense
of estafa.
Should the fact that the accused attempted to get certain bundles of merchandise at the
station, by means of the presentation of the tag sent to the consignee in a letter which
must have been taken from the mail, it not having been proven by whom or how it came to
the accused, who did not attain their object, because the bundles had been withdrawn two
or three days before by the consignee, be considered as an attempted or frustrated
offense? The supreme court of Spain in its decision of January 3, 1876, in deciding the
appeal taken by the accused, who alleged that the act constituted only an attempt and not
a frustrated estafa, declared that the appeal was not well taken, on the ground that the
offense is frustrated when the accused performs all the acts of execution which would have
produced the crime, and, nevertheless, do not produce it by reason of causes independent
of the will of the actor, and that in said case the appellant, together with his coaccused
attempted to take possession of the two bundles which they believed were at the station,
by going there and presenting the tag, and they did not succeed because these bundles
had already been taken, which constitutes the frustrated crime.
In his commentaries on the Penal Code Viada asks the following questions: "Is immediate
return by the accused of the thing he intended to convert, as soon as the injured party

found out the fraud committed, sufficient to divest the act of its consummated character
and to place it within the limits of a mere frustrated offense?" "The religious society of
Santa Clara deposited, in the year 1868, with D. Manuel Nuez an oil painting on copper,
but when they demanded it a few years afterwards, the latter delivered to them the same
frame but with merely a copy of the original painting, which, upon his order, a painter had
made for the sum of 40 pesetas. The substitution having been afterwards noted, the
society protested and Nuez returned the original, valued at 125 pesetas, and in turn
obtained the copy referred to. But, in the meantime a criminal action having been
instituted upon this fact and prosecuted to trial, the Madrid court, holding that Nuez had
defrauded and injured the society in the amount of the difference in the value of the
paintings, sentenced him, as principal in the consummated crime of estafa, defined in
number 5 of article 548 of the Code, to the penalty of two months and one day of arresto
mayor, together with the accessories, and costs. An appeal having been taken from said
judgment, on the ground that it violated among others, article 3 of the Code, the Supreme
Court, declaring that the appeal was well taken, held that the estafa committed was mere
frustrated estafa. 'Considering that while the acts of D. Manuel Nuez appear to have been
actuated by the desire to convert the painting to his own use and the consequent injury of
its owner, and that to that end he performed all the acts which should produce the crime
as a consequence, nevertheless, the injury and the appropriation were not realized, and
therefore the crime was not consummated because of a cause independent of his will,
which was the discovery of the substitution of the plate, after which the owner obtained
what belonged to him without the objection of the depositary and without any delay
juridically appreciable therefore, the trial court in holding as consummated an offense
that was frustrated, violated, in failing to apply it, article 3 of the Code.' " (1 Viada, 65.)
The same author puts and solves the following question: "Where a person appointed
Commissioner to make collection of debts due to the public treasury for real estate taxes
owing by a mining company goes to a store and acts of the owner thereof a certain sum in
order that he might not file a complaint by virtue of which the owner might have to pay a
big fine because the establishment was not registered in the corresponding class, and the
owner pays him part of the sum demanded, but he is in the act caught by agents of the
authority who were detailed for the purpose, is he guilty of the consummated or simply
frustrated crime of estafa? The criminal branch of the court of Seville found him guilty of
the former and sentenced him to the penalty of two months and one day of arresto mayor.
But, appeal having been taken from the judgment on the ground that the fact constituted
only an attempt to commit estafa, the Supreme Court, while not of the same opinion,
however, held that the crime committed was merely frustrated: 'Considering that while the
acts executed by the appellant should be qualified, not merely as an attempt, as claimed
by the appellant, inasmuch as he did not limit himself to commencing the acts of execution
of the crime, but as a frustrated crime because the accused performed all the acts of
execution which should produce the crime as a result, such s the obtaining of the money
exacted, in this manner apparently realizing his object, but which acts nevertheless did not
produce the crime by reason of a cause independent of his will, which cause in this case
was the appearance of agents of the authority at the place, as a consequence of the

complaint filed by Da. Candelaria Polanco to the treasury deputy, a fact which prevented
the consummation of the crime prosecuted, which would have consisted in completely
divesting the owner of his money, a result prevented by the vigilance of the authorities:
Considering that in not so holding the trial court erred on a point of law, as claimed, and
violated the articles of the Penal Code to which the appeal refers, etc., etc.' " (Viada, Suppl.
1887-1889, p. 8.)
Applying the doctrine, established by the supreme court of Spain in the decisions cited, to
the case at bar, we are of the opinion, and so hold, that the appellant is guilty of the
frustrated offense of estafa of 37 pesetas, inasmuch as he performed all the acts of
execution which should produce the crime as a consequence, but which, by reason of
causes independent of his will, did not produce it, no appreciable damage having been
caused to the offended party, such damage being one of the essential elements of the
crime, due to the timely discovery of the acts prosecuted.
From what has been said, it results that the judgment appealed from should, as it is
hereby, modified, and the accused is sentenced to pay a find of 325 pesetas, with
subsidiary imprisonment in case of insolvency, and to pay the costs of the trial.
So ordered.

The information dated May 6, 1968 charged the petitioner with estafa as follows:
That on or about March 18, 1968, in the City of Iligan, Philippines, and
within the jurisdiction of this Honorable Court, the said accused, by means
of false manifestations and fraudulent misrepresentations, did then and
there willfully, unlawfully and feloniously defraud one Basilio F. Ponce in the
following manner, to wit: the said accused, being then the Branch Manager
of the Manhattan Guaranty Company, Inc., Iligan Branch, by falsely
pretending that the Manhattan Guaranty Company, Inc., is authorized to
sell and/or issue insurance policies, and knowing very well that said
manifestations and representations to be false and fraudulent, induced the
said Basilio F. Ponce to have his building insured against fire and the said
Basilio F. Ponce deceived by the misrepresentation of the accused, agreed
and gave to the accused, the amount of Pl,095.80 as premium on Fire
Policy No. LOMG 4602 issued March 14, 1968 and to expire March 14,
1969, later to find out that the said Manhattan Guaranty Company, Inc.,
was suspended by the Insurance Commissioner and is not authorized to
sell or issue insurance policies, to the damage and prejudice of said Basilio
F. Ponce in the aforementioned sum of P1 095.80, Philippine Currency.
Contrary to and in violation of Article 315, paragraph 4, 2(a) of the Revised
Penal Code.
The evidence for the prosecution is summarized in the People's memorandum as follows:

G.R. No. L-45830 October 3, 1985

TEOPISTO S. SALCEDO vs THE HONORABLE COURT OF APPEALS AND PEOPLE OF
THE PHILIPPINES, respondents.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari of the decision of the respondent Court of Appeals
now Intermediate Appellate Court, affirming the decision of the City Court of Iligan City
which convicted the petitioner of the crime of estafa.

Petitioner Teofisto Salcedo was, on March 14, 1968, the local branch
manager of Manhattan Guaranty Company, Inc. at Iligan City engaged in
the business of property insurance (pp. 19-22, tsn., Dec. 22, 1970). Said
company, however, had been suspended from operating and eventually
closed by the Insurance Commissioner since February 21, 1968 (p. 13, Id.).
The petitioner was aware of the suspension and closure order but he
deliberately concealed the same from complainant Basilio F. Ponce when
he issued on March 18, 1968 a P50,000.00 fire insurance policy unto the
complainant, and collected the amount of Pl,095.80 purportedly as
premium thereof (p. 7, Petition; pp. 5-8, tsn., Id.; Exhs. "C" and "C-1", Rec.).
Basilio Ponce, however, came to know of such status of Manhattan
Guaranty thereafter, or on March 27, 1968, and so he immediately went to
see the petitioner and demanded from him the premium he had paid (p.
14, tsn., Id.). But the petitioner refused to make any refund, and instead,
assured Ponce that his company was still financially sound (pp. 14-15, tsn.,
Id.). A formal letter of demand for the return of his P1,095.80 (Exh. "E")
was likewise made by Ponce. To this the petitioner merely answered that
the main office of Manhattan Guaranty in Manila was already closed

although at that time, the amount of P1,095.80 was still at his disposal as
the same was remitted only on December 25, 1968 to the company's Cebu
City Branch (p. 7, Petition).

The decisive point in this petition is the determination of whether or not the petitioner
employed false pretenses or fraudulent representations in the negotiations and issuance of
the fire insurance policy.

On the other hand, the petitioner presented his own version of the facts. The defense
evidence is summarized in the decision of the respondent appellate court as follows:

The petitioner first argues that since the transaction was one between the Manhattan
Guaranty Company, Inc., through its agent, Mr. Cortes and the complainant, the act of Mr.
Cortes should be attributed to him alone or to the Manhattan Guaranty Company, Inc. as
the principal and not to the petitioner. The petitioner submits that there is no evidence
showing that he intervened in behalf of the company in the negotiation and conclusion of
the questioned policy. He claims that it was Mr. Cortes alone who negotiated and
concluded the contract of insurance and who received the premium payment.

To establish his innocence, the appellant adduced evidence alleging that

he cannot be held criminally liable because he was not aware then that his
company was suspended and therefore was forbidden to engage in
business transaction by the Insurance Commissioner. 'That although he
had read about the said suspension in the newspapers, he was only
officially informed of the reported suspension and stoppage of business
transaction when he received the Memorandum (Exh. "I") dated February
26, 1968 from the Branch Manager of the Company of Cebu City Branch
Office; and that such receipt was only after two (2) days from the issuance
of the fire insurance policy to the complaining witness, Basilio Ponce.
As a witness for the defense, Jesus Cortes, the Production Manager of the
local branch office in Iligan City, also testified corroborating the allegation
of the accused. That it was only on March 27, 1968, two (2) days after the
issuance of the policy to the complaining witness and,coincidentally the
same day that complaining witness demanded the return of his premium
payment, that he (Cortes) was shown by the accused the memorandum
dated February 26, 1968 directing them to stop negotiating business.
On January 13, 1971, Branch II of the City Court of Iligan City convicted the petitioner of
the crime of estafa. The dispositive portion of the decision reads as follows:
Premises considered, the Court finds the accused, Teopisto S. Salcedo,
GUILTY beyond reasonable doubt of the crime of ESTAFA and hereby
imposes upon him the penalty of prison correccional in its minimum period
of SIX (6) MONTHS and ONE (1) DAY and to pay the amount of P1,095.80 to
the offended party and in case of insolvency to suffer subsidiary
imprisonment at the rate of P8.00 a day but shall not exceed one-third of
the principal penalty imposed upon the accused, and to pay the cost of the
proceedings.
On December 28, 1976, the respondent Court of Appeals affirmed the judgment of
conviction rendered by the trial court but deleted the portion imposing subsidiary
imprisonment in case of insolvency .
A motion for reconsideration was denied in a resolution dated March 9, 1977.

The petitioner's contentions have no merit. The petitioner was then the local branch
manager of the Manhattan Guarantee Company, Inc. When he signed and issued the said
policy and collected the premium payment thereof in the amount of P1,095,80, he had
knowledge that his company was no longer authorized to conduct insurance business. This
knowledge makes him liable under paragraph 2(a) of Article 315 of the Revised Penal Code
which provides that:
2. By means of any of the following false pretenses or fraudulent acts
executed prior to or simultaneously with the commission of the fraud:
(a) By using a fictitious name, or falsely pretending to
possess power, influence, qualifications, property, credit,
agency, business or imaginary transactions; or by means of
other similar deceits.
To secure a conviction for estafa under par. 2(a) of Article 315 of the Revised penal Code,
the following requisites must concur, to wit: (1) that the accused made false pretenses or
fraudulent representations as to his power, influence, qualifications, property, credit,
agency, business or imaginary transactions: (2) that such false pretenses or fraudulent
representations were made prior to, or simultaneous with the commission of the fraud; (3)
that such false premises or fraudulent representations constitute the very cause which
induced the offended party to part with his money or property, and (4) that s a result
thereof, the offended party suffered damage. All these requisites are present in the case at
bar.
That the petitioner made false pretenses or fraudulent representations to the complainant
in the issuance of the fire insurance policy is shown by the following uncontroverted fact,
to wit: (1) the petitioner himself admitted that he was aware of the suspension order of the
Insurance Commissioner from the daily papers before he signed and issued the fire
insurance police and collected the premium payment from the complainant on March 25,
1968; (2) on March 27, 1968, the petitioner was officially informed of the suspension and

stoppage of business transactions more than a month earlier and published in the
newspapers and that on the same day, the complainant, Basilio Ponce demanded the
return of his premium payment but there was no immediate refund despite the fact that
the amount was still at the petitioner's disposal as the same was remitted to the
company's Cebu City Branch only on December 25, 1968; (3) with full knowledge and
having official information to the contrary the petitioner assured the complainant that the
Manhattan Guaranty Company, Inc. was still financially sound; and (4) on June 23, 1968,
the complainant wrote a formal letter of demand for the return of his P1,095.80 but the
petitioner replied that their main office in Manila was already closed inspite of his still
having the money with him.
The deliberate concealment by the petitioner of the fact that his company was no longer
authorized to engage in the business of insurance when he signed and issued the fire
insurance policy and collected the premium payment constitutes false representations or
false pretenses. The complainant relied upon these false pretenses. After reading in the
newspapers that the Insurance Commissioner had suspended his company from operating,
it was the petitioner's duty to stop the solicitation of insurance policies while ascertaining
the veracity of the news reports. Instead, he allowed business to go on as usual. He signed
and issued the insurance policy. And knowing not only through the newspapers but also
from an official communication from his own superiors that business operations were
already prohibited when he issued the insurance policy and received premium payments,
he refused to return the money thus collected long after the Insurance Commissioner had
prohibited operations.
The petitioner was the one liable and not the production manager, Mr. Jesus Cortes. The
latter acted in good faith. As stated by the Solicitor General: xxx xxx xxx
... When Mr. Cortes negotiated to insure the complainant's property against
fire, the former appeared to have no knowledge that the Insurance
Commissioner already ordered the suspension and closure of their
company.
On the other hand, the accused was aware of such suspension and closure
order but he did not inform Mr. Cortes about it. It was only on March 27,
1968, after the insurance policy had been issued and the corresponding
premium payment had been collected did the accused show to Mr. Cortes
the Memorandum directing them to stop transacting insurance business (p.
4, Decision). Consequently, Mr. Cortes could not be held liable therefor as
he was then acting in good faith.
xxx xxx xxx

The petitioner also argues that the signing of the policy by the petitioner was subsequent
to the inducement and misrepresentations, if any, made by Mr. Cortes.
This is wrong. The misrepresentation here was committed from the time the complainant
was induced to insure his property and up to the time the policy was issued upon the
payment of the requisite premium. The records reveal that the signing of the policy, its
issuance, and the initial payment of the premium were all done on
March 25, 1968.
The petitioner tried to prove that he signed the questioned policy in the spirit of goodwill
and good faith, because at the time he signed the policy, he had no official knowledge
regarding the suspension order of the Insurance Commissioner. He claims that he signed
the questioned policy as a matter of course and following standard operating procedure,
he being the local manager of the local branch whose signature is necessary for the policy
to be validly issued.
The signing and issuance of the insurance policy cannot be a simple matter of course
because at the time the policy was issued, the Manhattan Guaranty Company, Inc. was no
longer authorized to conduct business. Aware that his company had been suspended and
ordered closed by the Insurance Commissioner, the petitioner should have informed the
complainant of the suspension and closure instead of signing and issuing fire insurance
policies. He should not have received the premium payment paid by the complainant. At
the very least, he should have returned the money still in his hands when he received
official notice of the closure. What the petitioner, however, did was to deliberately conceal
the fact that his company was no longer authorized to engage in the insurance business
from the complainant. He continued making money when it was already illegal to do so.
The contention of the petitioner that there was no immediate refund of the premium paid
by the complainant because the same was already remitted to their office in Cebu City is
not supported by the facts on record.
The records show that the complainant attempted twice to recover the amount he paid.
The first was on March 27, 1968 when he orally made a demand. The petitioner refused to
refund the money but instead gave assurances that their company was still financially
sound. Second, on June 23, 1968, the complainant sent a formal letter of demand but the
petitioner's only answer was that their main office in Manila was already closed. It is
important to note that on these two instances, the petitioner did not return the premium
payment paid by the complainant despite the fact that the said amount was still at his
disposal because the same was remitted to their Cebu City Branch only on December 25,
1968. It should be noted that the remittance was not only delayed but it was after the May
6, 1968 filing of the information against him.

The petitioner argues that prior to his receipt of the March 26, 1968 memorandum officially
informing him of the closure of their company, his only knowledge about the suspension of
their company was through newspapers which according to him was hearsay information.
It is sufficient to state here that what is important is the fact that the petitioner admitted
having prior knowledge of the suspension and closure of their company when he signed
and issued the policy in question and that he believed the same to be true.

WHEREFORE, the decision appealed from is hereby AFFIRMED with the MODIFICATION that
the petitioner should suffer an INDETERMINATE PENALTY of THREE (3) MONTHS of ARRESTO
MAYOR as (minimum) to ONE (1) YEAR and EIGHT (8) MONTHS of PRISON CORRECCIONAL
as (maximum).

Finally, the petitioner tried to prove that the complainant, Mr. Ponce, admitted his prior
knowledge of the suspension of the Manhattan Guaranty Company, Inc., thus, he was not
at all deceived. The petitioner cites the following excerpts from the complainant's
testimony in support of this contention:

G. R. No. 160188

Q In your reading of the Manila Times, was there ever occasion that you came
across an information regarding insurance co companies?
A Yes, sir, one of the newspapers that I have read sometime in the month of
August, 1968. I can not exactly remember, published that the Manhattan Guaranty
Co., was one of the insurance companies that was closed.

SO ORDERED.

ARISTOTEL VALENZUELA y NATIVIDAD vs

PEOPLE OF THE PHILIPPINES NACHURA, JJ. and HON. COURT OF APPEALS,
June 21, 2007

TINGA, J.:

Q Will you kindly inform the Honorable Court what relation has that Exh. "H" to the
portion of the Manila Times Publication that you saw?
A This is the clipping from the Manila Times dated October 18, 1967, which was
presented to the office of the Fiscal. I was the one who presented that to the office
of the City Fiscal (Tsn., July 10, 1968, pp. 21-22).
We note that the suspension in this case was imposed only on February 21, 1968 by the
Insurance Commissioner. On the other hand, the Manila Times item read by the
complainant was dated October 18, 1967 or four (4) months before the said suspension.
Obviously, the news report could not have referred to the future suspension on February
21, 1968 but to the prior suspension sometime in 1967 "which the company was able to
lift." (Petition, p. 18, Rollo, p. 24) In other words, the prior knowledge mentioned by the
petitioner referred to the 1967 suspension and not to the later suspension on February 21,
1968.
The respondent Court of Appeals, however, erred when it modified the penalties imposed
by the trial court by merely deleting that portion which imposed subsidiary imprisonment.
For purposes of the Indeterminate Sentence Law, the minimum term of the indeterminate
sentence is one degree lower than the penalty prescribed by the Code, and the maximum
penalty is the penalty that can properly be imposed in view of the attending circumstances
of the case.

This case aims for prime space in the firmament of our criminal law jurisprudence.
Petitioner effectively concedes having performed the felonious acts imputed against him,
but instead insists that as a result, he should be adjudged guilty of frustrated theft only,
not the felony in its consummated stage of which he was convicted. The proposition rests
on a common theory expounded in two well-known decisions[1] rendered decades ago by
the Court of Appeals, upholding the existence of frustrated theft of which the accused in
both cases were found guilty. However, the rationale behind the rulings has never been
affirmed by this Court.

As far as can be told,[2] the last time this Court extensively considered whether an
accused was guilty of frustrated or consummated theft was in 1918, in People v. Adiao.[3]
A more cursory treatment of the question was followed in 1929, in People v. Sobrevilla,[4]
and in 1984, in Empelis v. IAC.[5] This petition now gives occasion for us to finally and fully
measure if or how frustrated theft is susceptible to commission under the Revised Penal
Code.

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

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and
directed it towards the parking space where Calderon was waiting. Calderon loaded the
cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts were
eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking area.
When Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon
reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow security guards
of the incident. Petitioner and Calderon were apprehended at the scene, and the stolen
merchandise recovered.[8] The filched items seized from the duo were four (4) cases of
Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of
detergent, the goods with an aggregate value of P12,090.00.[9]

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

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed
having been innocent bystanders within the vicinity of the Super Sale Club on the

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

In a Decision[16] promulgated on 1 February 2000, the Regional Trial Court (RTC) of

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

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

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

offered therein on frustrated theft have borne some weight in our jurisprudential system.
The time is thus ripe for us to examine whether those theories are correct and should
continue to influence prosecutors and judges in the future.

III.

II.
To delve into any extended analysis of Dio and Flores, as well as the specific issues relative
to frustrated theft, it is necessary to first refer to the basic rules on the three stages of
crimes under our Revised Penal Code.[30]
In arguing that he should only be convicted of frustrated theft, petitioner cites[26] two
decisions rendered many years ago by the Court of Appeals: People v. Dio[27] and People
v. Flores.[28] Both decisions elicit the interest of this Court, as they modified trial court
convictions from consummated to frustrated theft and involve a factual milieu that bears
similarity to the present case. Petitioner invoked the same rulings in his appeal to the
Court of Appeals, yet the appellate court did not expressly consider the import of the
rulings when it affirmed the conviction.

It is not necessary to fault the Court of Appeals for giving short shrift to the Dio and Flores
rulings since they have not yet been expressly adopted as precedents by this Court. For
whatever reasons, the occasion to define or debunk the crime of frustrated theft has not
come to pass before us. Yet despite the silence on our part, Dio and Flores have attained a
level of renown reached by very few other appellate court rulings. They are
comprehensively discussed in the most popular of our criminal law annotations,[29] and
studied in criminal law classes as textbook examples of frustrated crimes or even as
definitive of frustrated theft.

More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that
populate criminal law exams more than they actually occur in real life. Indeed, if we finally
say that Dio and Flores are doctrinal, such conclusion could profoundly influence a
multitude of routine theft prosecutions, including commonplace shoplifting. Any scenario
that involves the thief having to exit with the stolen property through a supervised egress,
such as a supermarket checkout counter or a parking area pay booth, may easily call for
the application of Dio and Flores. The fact that lower courts have not hesitated to lay down
convictions for frustrated theft further validates that Dio and Flores and the theories

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

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

Truly, an easy distinction lies between consummated and frustrated felonies on one hand,
and attempted felonies on the other. So long as the offender fails to complete all the acts
of execution despite commencing the commission of a felony, the crime is undoubtedly in

the attempted stage. Since the specific acts of execution that define each crime under the
Revised Penal Code are generally enumerated in the code itself, the task of ascertaining
whether a crime is attempted only would need to compare the acts actually performed by
the accused as against the acts that constitute the felony under the Revised Penal Code.

another, thus making it clear that the felony is produced by the death of the victim, and
conversely, it is not produced if the victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal
Code, its elements are spelled out as follows:
In contrast, the determination of whether a crime is frustrated or consummated
necessitates an initial concession that all of the acts of execution have been performed by
the offender. The critical distinction instead is whether the felony itself was actually
produced by the acts of execution. The determination of whether the felony was produced
after all the acts of execution had been performed hinges on the particular statutory
definition of the felony. It is the statutory definition that generally furnishes the elements of
each crime under the Revised Penal Code, while the elements in turn unravel the particular
requisite acts of execution and accompanying criminal intent.

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

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

Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain
but without violence against or intimidation of persons nor force upon things, shall take
personal property of another without the latters consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the local
authorities or to its owner;
2. Any person who, after having maliciously damaged the property of another, shall
remove or make use of the fruits or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or
which belongs to another and without the consent of its owner, shall hunt or fish upon the
same or shall gather cereals, or other forest or farm products.

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

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

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

In Spanish law, animo lucrandi was compounded with apoderamiento, or unlawful taking,
to characterize theft. Justice Regalado notes that the concept of apoderamiento once had a
controversial interpretation and application. Spanish law had already discounted the belief
that mere physical taking was constitutive of apoderamiento, finding that it had to be
coupled with the intent to appropriate the object in order to constitute apoderamiento; and
to appropriate means to deprive the lawful owner of the thing.[47] However, a conflicting
line of cases decided by the Court of Appeals ruled, alternatively, that there must be
permanency in the taking[48] or an intent to permanently deprive the owner of the stolen
property;[49] or that there was no need for permanency in the taking or in its intent, as the
mere temporary possession by the offender or disturbance of the proprietary rights of the
owner already constituted apoderamiento.[50] Ultimately, as Justice Regalado notes, the
Court adopted the latter thought that there was no need of an intent to permanently
deprive the owner of his property to constitute an unlawful taking.[51]

So long as the descriptive circumstances that qualify the taking are present, including
animo lucrandi and apoderamiento, the completion of the operative act that is the taking
of personal property of another establishes, at least, that the transgression went beyond
the attempted stage. As applied to the present case, the moment petitioner obtained
physical possession of the cases of detergent and loaded them in the pushcart, such

seizure motivated by intent to gain, completed without need to inflict violence or

intimidation against persons nor force upon things, and accomplished without the consent
of the SM Super Sales Club, petitioner forfeited the extenuating benefit a conviction for
only attempted theft would have afforded him.

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

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to

inquire as to how exactly is the felony of theft produced. Parsing through the statutory
definition of theft under Article 308, there is one apparent answer provided in the language
of the law that theft is already produced upon the tak[ing of] personal property of another
without the latters consent.

U.S. v. Adiao[53] apparently supports that notion. Therein, a customs inspector was
charged with theft after he abstracted a leather belt from the baggage of a foreign national
and secreted the item in his desk at the Custom House. At no time was the accused able to
get the merchandise out of the Custom House, and it appears that he was under
observation during the entire transaction.[54] Based apparently on those two
circumstances, the trial court had found him guilty, instead, of frustrated theft. The Court
reversed, saying that neither circumstance was decisive, and holding instead that the
accused was guilty of consummated theft, finding that all the elements of the completed
crime of theft are present.[55] In support of its conclusion that the theft was
consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the
discussion of which we replicate below:

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

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

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

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

ruled that the thefts in each of those cases was consummated by the actual possession of
the property belonging to another.

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

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

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

Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years
before Flores. The accused therein, a driver employed by the United States Army, had
driven his truck into the port area of the South Harbor, to unload a truckload of materials
to waiting U.S. Army personnel. After he had finished unloading, accused drove away his
truck from the Port, but as he was approaching a checkpoint of the Military Police, he was
stopped by an M.P. who inspected the truck and found therein three boxes of army rifles.
The accused later contended that he had been stopped by four men who had loaded the

boxes with the agreement that they were to meet him and retrieve the rifles after he had
passed the checkpoint. The trial court convicted accused of consummated theft, but the
Court of Appeals modified the conviction, holding instead that only frustrated theft had
been committed.

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

Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la

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

Integrating these considerations, the Court of Appeals then concluded:

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

Dio thus laid down the theory that the ability of the actor to freely dispose of the items
stolen at the time of apprehension is determinative as to whether the theft is
consummated or frustrated. This theory was applied again by the Court of Appeals some
15 years later, in Flores, a case which according to the division of the court that decided it,
bore no substantial variance between the circumstances [herein] and in [Dio].[64] Such
conclusion is borne out by the facts in Flores. The accused therein, a checker employed by
the Luzon Stevedoring Company, issued a delivery receipt for one empty sea van to the
truck driver who had loaded the purportedly empty sea van onto his truck at the terminal
of the stevedoring company. The truck driver proceeded to show the delivery receipt to the
guard on duty at the gate of the terminal. However, the guards insisted on inspecting the
van, and discovered that the empty sea van had actually contained other merchandise as
well.[65] The accused was prosecuted for theft qualified by abuse of confidence, and found
himself convicted of the consummated crime. Before the Court of Appeals, accused argued
in the alternative that he was guilty only of attempted theft, but the appellate court
pointed out that there was no intervening act of spontaneous desistance on the part of the
accused that literally frustrated the theft. However, the Court of Appeals, explicitly relying
on Dio, did find that the accused was guilty only of frustrated, and not consummated,
theft.

As noted earlier, the appellate court admitted it found no substantial variance between Dio
and Flores then before it. The prosecution in Flores had sought to distinguish that case
from Dio, citing a traditional ruling which unfortunately was not identified in the decision
itself. However, the Court of Appeals pointed out that the said traditional ruling was
qualified by the words is placed in a situation where [the actor] could dispose of its
contents at once.[66] Pouncing on this qualification, the appellate court noted that
[o]bviously, while the truck and the van were still within the compound, the petitioner
could not have disposed of the goods at once. At the same time, the Court of Appeals
conceded that [t]his is entirely different from the case where a much less bulk and more
common thing as money was the object of the crime, where freedom to dispose of or make
use of it is palpably less restricted,[67] though no further qualification was offered what
the effect would have been had that alternative circumstance been present instead.

Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to
whether the crime of theft was produced is the ability of the actor to freely dispose of the
articles stolen, even if it were only momentary. Such conclusion was drawn from an 1888
decision of the Supreme Court of Spain which had pronounced that in determining whether
theft had been consummated, es preciso que so haga en circunstancias tales que permitan
al sustractor de aquella, siquiera sea mas o menos momentaneamente. The qualifier
siquiera sea mas o menos momentaneamente proves another important consideration, as

it implies that if the actor was in a capacity to freely dispose of the stolen items before
apprehension, then the theft could be deemed consummated. Such circumstance was not
present in either Dio or Flores, as the stolen items in both cases were retrieved from the
actor before they could be physically extracted from the guarded compounds from which
the items were filched. However, as implied in Flores, the character of the item stolen
could lead to a different conclusion as to whether there could have been free disposition,
as in the case where the chattel involved was of much less bulk and more common x x x,
[such] as money x x x.[68]

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

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

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

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

IV.

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

There are at least two other Court of Appeals rulings that are at seeming variance with the
Dio and Flores rulings. People v. Batoon[73] involved an accused who filled a container
with gasoline from a petrol pump within view of a police detective, who followed the
accused onto a passenger truck where the arrest was made. While the trial court found the
accused guilty of frustrated qualified theft, the Court of Appeals held that the accused was
guilty of consummated qualified theft, finding that [t]he facts of the cases of U.S. [v.] Adiao
x x x and U.S. v. Sobrevilla x x x indicate that actual taking with intent to gain is enough to
consummate the crime of theft.[74]

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

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

theft was qualified, following Article 310 of the Revised Penal Code,[79] but further held
that the accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the theft was
consummated or frustrated was raised by any of the parties. What does appear, though, is
that the disposition of that issue was contained in only two sentences, which we reproduce
in full:

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

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

Empelis held that the crime was only frustrated because the actors were not able to
perform all the acts of execution which should have produced the felon as a consequence.
[81] However, per Article 6 of the Revised Penal Code, the crime is frustrated when the
offender performs all the acts of execution, though not producing the felony as a result. If
the offender was not able to perform all the acts of execution, the crime is attempted,
provided that the non-performance was by reason of some cause or accident other than
spontaneous desistance. Empelis concludes that the crime was frustrated because not all
of the acts of execution were performed due to the timely arrival of the owner. However,
following Article 6 of the Revised Penal Code, these facts should elicit the conclusion that
the crime was only attempted, especially given that the acts were not performed because
of the timely arrival of the owner, and not because of spontaneous desistance by the
offenders.

Instead, the passage is offered as if it were sourced from an indubitable legal premise so
settled it required no further explication.

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

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

V.

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

Son reos de hurto:

For these reasons, we cannot attribute weight to Empelis as we consider the present
petition. Even if the two sentences we had cited actually aligned with the definitions
provided in Article 6 of the Revised Penal Code, such passage bears no reflection that it is
the product of the considered evaluation of the relevant legal or jurisprudential thought.

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

employees of a haberdashery as he was abstracting a layer of clothing off a mannequin,

and who then proceeded to throw away the garment as he fled.[84]

2.
Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la apropriaren
co intencin de lucro.

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

3.
Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado, salvo
los casos previstos en los artculos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0;
611; 613; Segundo prrafo del 617 y 618.

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme
Court decisions were handed down. However, the said code would be revised again in
1932, and several times thereafter. In fact, under the Codigo Penal Espaol de 1995, the
crime of theft is now simply defined as [e]l que, con nimo de lucro, tomare las cosas
muebles ajenas sin la voluntad de su dueo ser castigado[82]

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

The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on
the 1870 Codigo Penal de Espaa. Therein, he raised at least three questions for the reader
whether the crime of frustrated or consummated theft had occurred. The passage cited in
Dio was actually utilized by Viada to answer the question whether frustrated or
consummated theft was committed [e]l que en el momento mismo de apoderarse de la
cosa ajena, vindose sorprendido, la arroja al suelo.[83] Even as the answer was as stated
in Dio, and was indeed derived from the 1888 decision of the Supreme Court of Spain, that
decisions factual predicate occasioning the statement was apparently very different from
Dio, for it appears that the 1888 decision involved an accused who was surprised by the

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

Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually possible:

La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la

cosa queda de hecho a la disposicin del agente. Con este criterio coincide la doctrina
sentada ltimamente porla jurisprudencia espaola que generalmente considera consumado
el hurto cuando el culpable coge o aprehende la cosa y sta quede por tiempo ms o menos
duradero bajo su poder. El hecho de que ste pueda aprovecharse o no de lo hurtado es
indiferente. El delito no pierde su carcter de consumado aunque la cosa hurtada sea
devuelta por el culpable o fuere recuperada. No se concibe la frustracin, pues es muy dificil
que el que hace cuanto es necesario para la consumacin del hurto no lo consume
efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante, declara hurtos
frustrados son verdaderos delitos consumados.[87] (Emphasis supplied)

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

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

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

The foremost predicate that guides us as we explore the matter is that it lies in the
province of the legislature, through statute, to define what constitutes a particular crime in
this jurisdiction. It is the legislature, as representatives of the sovereign people, which
determines which acts or combination of acts are criminal in nature. Judicial interpretation
of penal laws should be aligned with what was the evident legislative intent, as expressed

primarily in the language of the law as it defines the crime. It is Congress, not the courts,
which is to define a crime, and ordain its punishment.[88] The courts cannot arrogate the
power to introduce a new element of a crime which was unintended by the legislature, or
redefine a crime in a manner that does not hew to the statutory language. Due respect for
the prerogative of Congress in defining crimes/felonies constrains the Court to refrain from
a broad interpretation of penal laws where a narrow interpretation is appropriate. The
Court must take heed of language, legislative history and purpose, in order to strictly
determine the wrath and breath of the conduct the law forbids.[89]

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

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

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

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

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

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

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

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

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

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

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

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

all of the acts of execution have been performed. But once all these acts have been
executed, the taking has been completed, causing the unlawful deprivation of property,
and ultimately the consummation of the theft.

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

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

the supermarket. Lago saw Valenzuela, who was wearing an ID with the mark Receiving
Dispatching Unit (RDU) who hauled a push cart with cases of detergent of Tide brand
and unloaded them in an open parking space, where Calderon was waiting. He then
returned inside the supermarket and emerged 5 minutes after with more cartons of Tide
Ultramatic and again unloaded these boxes to the same area in the open parking space.
Thereafter, he left the parking area and haled a taxi. He boarded the cab and directed it
towards the parking space where Calderon was waiting. Calderon loaded the cartons of
Tide Ultramatic inside the taxi, then boarded the vehicle. As Lago watched, he proceeded
to stop the taxi as it was leaving the open parking area and asked Valenzuela for a receipt
of the merchandise but Valenzuela and Calderon reacted by fleeing on foot. Lago fired a
warning shot to alert his fellow security guards. Valenzuela and Calderon were
apprehended at the scene and the stolen merchandise recovered worth P12,090.
Valenzuela, Calderon and 4 other persons were first brought to the SM security office
before they were transferred to the Baler Station II of the Philippine National Police but only
Valenzuela and Calderon were charged with theft by the Assistant City Prosecutor.
They pleaded not guilty.
Calderons Alibi: On the afternoon of the incident, he was at the Super Sale Club to
withdraw from his ATM account, accompanied by his neighbor, Leoncio Rosulada. As the
queue for the ATM was long, he and Rosulada decided to buy snacks inside the
supermarket. While they were eating, they heard the gunshot fired by Lago, so they went
out to check what was transpiring and when they did, they were suddenly grabbed by a
security guard
Valenzuelas Alibi: He is employed as a bundler of GMS Marketing and assigned at
the supermarket. He and his cousin, a Gregorio Valenzuela, had been at the parking lot,
walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-asa,
when they saw the security guard Lago fire a shot causing evryon to start running. Then
they were apprehended by Lago.
RTC: guilty of consummated theft
CA: Confirmed RTC and rejected his contention that it should only be frustrated theft
since at the time he was apprehended, he was never placed in a position to freely dispose
of the articles stolen.
ISSUE: W/N Valenzuela should be guilty of consummated theft.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.
DIGEST VALENZUELA V PEOPLE
FACTS:
May 19, 1994 4:30 pm: Aristotel Valenzuela and Jovy Calderon were sighted outside the
Super Sale Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by
Lorenzo Lago, a security guard who was then manning his post at the open parking area of

HELD: YES. petition is DENIED

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

by reason of some cause or accident other than his own spontaneous desistance.
Each felony under the Revised Penal Code has a:
o subjective phase - portion of the acts constituting the crime included between the act
which begins the commission of the crime and the last act performed by the offender
which, with prior acts, should result in the consummated crime
if the offender never passes the subjective phase of the offense, the crime is merely
attempted
o objective phase - After that point of subjective phase has been breached
subjective phase is completely passed in case of frustrated crimes
the determination of whether a crime is frustrated or consummated necessitates an
initial concession that all of the acts of execution have been performed by the offender
The determination of whether the felony was produced after all the acts of execution
had been performed hinges on the particular statutory definition of the felony.
actus non facit reum, nisi mens sit rea - ordinarily, evil intent must unite with an
unlawful act for there to be a crime or there can be no crime when the criminal mind is
wanting
In crimes mala in se, mens rea has been defined before as a guilty mind, a guilty or
wrongful purpose or criminal intent and essential for criminal liability.
Statutory definition of our mala in se crimes must be able to supply what the mens rea
of the crime is and overt acts that constitute the crime
Article 308 of the Revised Penal Code (Elements of Theft):
1. that there be taking of personal property - only one operative act of execution by the
actor involved in theft
2. property belongs to another
3. taking be done with intent to gain - descriptive circumstances
4. taking be done without the consent of the owner - descriptive circumstances
5. taking be accomplished without the use of violence against or intimidation of persons
or force upon things - descriptive circumstances
Abandoned cases:
o U.S. v. Adiao: failed to get the merchandise out of the Custom House - consummated
theft
o Dio: Military Police inspected the truck at the check point and found 3 boxes of army
rifles - frustrated theft
o Flores: guards discovered that the empty sea van had actually contained other
merchandise as well - consummated theft
o Empelis v. IAC: Fled the scene, dropping the coconuts they had seized - frustrated
qualified theft because petitioners were not able to perform all the acts of execution which
should have produced the felony as a consequence
cannot attribute weight because definition is attempted
The ability of the actor to freely dispose of the articles stolen, even if it were only
momentary.
o We are satisfied beyond reasonable doubt that the taking by the petitioner was
completed in this case. With intent to gain, he acquired physical possession of the stolen
cases of detergent for a considerable period of time that he was able to drop these off at a

spot in the parking lot, and long enough to load these onto a taxicab.
Article 308 of the Revised Penal Code, theft cannot have a frustrated stage. Theft can
only be attempted (no unlawful taking) or consummated (there is unlawful taking.)

G.R. No. L-34039

January 16, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
LEONCIO VILLEGAS Y TULIAO (alias Lucio Villegas and Francisco Bravo)

ROMUALDEZ, J.:

The defendant was prosecuted for attempted robbery in an inhabited house upon the
following information:
The undersigned accuses Leoncio Villegas y Tuliao (alias) Lucio Villegas (alias)
Francisco Bravo of the crime of attempted robbery in an inhabited house,
committed as follows:
That on or about the 9th day of July, 1930, in the City of Manila, Philippine Islands,
the said accused did then and there willfully unlawfully and feloniously, with intent
of gain and against the consent of the owner thereof, enter the dwelling house
(first floor) of Miss S. H. Olson, situated at No. 558 San Luis Street, of said city, by
means of force things, to wit: by cutting off and forcibly breaking open the wire
screen of a window of said premises, an opening not intended for entrance or
agress, thru which said accused gained entrance to said house, thus commencing
the commission of the crime of robbery directly by overt acts; that if said accused
did not accomplish his unlawful purpose, that is, to take steal and carry away by
means of force upon things, personal property valued at P1,000 contained in the
said dwelling house, it was not because of his own and voluntary desistance, but
because of the timely detection and intervention by third persons who caused the
arrest of said accused.
That the said accused has heretofore been convicted eight (8) times of the crime of
theft and twice (2) ofestafa, by virtue of final judgments rendered by competent

courts, the last date of conviction being on February 3, 1925, and is therefore a
habitual delinquent under the provisions of Act No. 3586 of the Philippine
Legislature.
All contrary to law. (Pp. 2 and 3, record.).
The defendant appeared in the court below and upon arraignment, pleaded not guilty. On
the following day, however, accompanied by his lawyer, the accused withdrew his plea of
not guilty and entered one of guilty. The trial court found him guilty of the crime charged
and as recidivist and habitual criminal, as alleged in the information, and sentenced him to
suffer two months' arresto mayor, under paragraph 2, subsection 5, article 508 of the
Penal Code, plus twenty-one years' imprisonment under Act No. 3586, with costs.
The instant appeal has been taken from that judgment, based upon the following
assignments of error:
1. In finding the defendant guilty of the crime of robbery in an inhabited house.
2. In sentencing the defendant to the additional penalty of twenty-one years, in
addition to the two months, because the information alleged that the defendant
had been a recidivist ten times.
In support of the first assignment of error, the defense contends that the crime to which
the defendant pleaded guilty was not attempted robbery in an inhabited house, but, at
most, trespass to dwelling. When the defendant pleaded guilty, he admitted certain facts
alleged in the information. It is contended that the allegation in the information touching
the defendant's purpose in breaking into the house, together with subsequent statements,
are mere conclusions drawn by the fiscal. We think otherwise. That part of the information
explains the defendant's intent of gain, setting forth as facts that he proposed to take,
steal, and carry away by means of force upon things, personal property valued at P1,000
contained in the dwelling house, and that if he failed to accomplish said purpose, it was
not because of his own voluntary desistance, but because of the timely detection and
intervention by third persons who caused the arrest of said accused. Perhaps the
information could have been drawn up with greater clearness, but considering its contents,
we deem it sufficient. The use of the words of the law in the information is not a defect. (U.
S. vs. Salcedo, 4 Phil., 234; U. S. vs. Grant and Kennedy, 18 Phil., 122; U. S. vs. Go
Changco, 23 Phil., 641.) The absence of a detailed list of the personal property found in the
house on that occasion, the value of which is specifically alleged in the information,
vitiates neither the proceedings nor the judgment, not being jurisdictional in nature. The
defendant could have demanded such a detailed list, but he failed to do so and thereby
waived the objection, and, therefore, that question cannot be raised for the first time in the
present instance. (U. S. vs. Del Rosario, 2 Phil., 127; U. S. vs. Mack, 4 Phil., 185 and 291; U.
S. vs. Sarabia, 4 Phil., 566; U. S. vs. Paraiso, 5 Phil., 149; U. S. vs. Aldos, 6 Phil., 381; U.

S. vs. Eusebio, 5 Phil., 579; U. S. vs. Aldos, 6 Phil., 381; U. S. vs. Eusebio, 8 Phil., 574; U.
S. vs. Lampano and Zapanta, 13 Phil., 409.).
The second assignment of error is based upon the fact that Act No. 3586, by virtue of
which the appellant was sentenced to twenty-one years of additional imprisonment, took
effect in the year 1929 (the original Act, No 3397, was passed in 1927), and upon the
contention that said Act should not be given retroactive effect unless therein expressly
provided; and, that the former offenses alleged in the information had been punished by
judgments rendered prior to the enforcement of said Act. It must be borne in mind that it is
a principle of law in this jurisdiction, unless otherwise provided by statute, that in order to
apply such a law as Act No. 3586, it is not necessary that the former felonies constituting
the habitual criminality have been committed after the law regarding habitual criminals
took effect; it is sufficient that the crime, the prosecution of which gives rise to the
application of the additional penalty for habitual criminality, has been committed after said
law became effective. And this rule is in accord with the North American jurisprudence:
Unless otherwise provided by statute, in order to authorize the infliction of a more
severe penalty upon conviction for a second or a subsequent offense, it is not
necessary that the first conviction should occur subsequent to the enactment of
the statute. (16 C. J., 1341.)
The judgment appealed from is affirmed, with the understanding that the appellant is
further condemned to the accessory penalties, and the costs of both instances. So ordered.
Avancea, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ.,
concur.

FLORENTINO PADDAYUMAN, vs. PEOPLE OF THE PHILIPPINES

SANDOVAL-GUTIERREZ, J.:

Petition for review on certiorari[1] seeking the reversal of the Decision of the Court of
Appeals in CA-G.R. CR No. 14628, which affirmed the Decision of the Regional Trial Court
(Branch 5) of Tuguegarao, Cagayan, in Criminal Case No. 1853, [2] convicting Florentino
Paddayuman of the crime of attempted homicide. He was sentenced to suffer six (6)
months of arresto mayor, as minimum, to two (2) years, four (4) months and one (1) day
of prision correccional, as maximum, and to pay his victim, Maximo Quilang, the sum
of P3,688.20 as actual damages and P10,000.00 as moral damages.

The facts of the case are as follows:

On July 24, 1991, an Information for frustrated murder was filed against accused
Florentino Paddayuman, committed as follows:

That on or about March 15, 1991, in the Municipality of Tuguegarao, Province of Cagayan,
and within the jurisdiction of this Honorable Court, the said accused, Florentino
Paddayuman, armed with a sharp pointed bladed instrument, with intent to kill, with
evident premeditation and with treachery did then and there wilfully, unlawfully and
feloniously attack, assault and stab one, Maximo Quilang inflicting upon him stab wounds
on his body.

That the accused had performed all the acts of execution which would have produced the
crime of Murder as a consequence but which, nevertheless, did not produce it by reason of
cause independent of his own will.

In his testimony, Maximo Quilang narrated that on the eve of March 15, 1991, he went
to the house of his uncle, Casimiro Paddayuman, in Barangay Capatan, Tuguegarao,
Cagayan, to help in the preparation of the wedding of the latters son the next day.
[4]
Maximo then had a drinking spree with Casimiro, Apolinario Dassil and accused
Florentino Paddayuman.[5] While drinking, Maximo admonished the accused not to drink too
much. Apparently annoyed, the latter left the drinking session. [6] At around 12:00 oclock
midnight of the same day, Maximo also left and went to his house about 100 meters away
from the house of Casimiro.[7] But while on his way home, the accused stabbed Maximo at
the left side of his body. [8] The victim asked the accused, Why did you stab me?, to which
the accused replied, I will really kill you. At this point, the accused again stabbed Maximo
at his breast[9] and left, believing his victim was dying. [10] Feeling weak, Maximo shouted for
help.

Apolinario Dassil, Maximos nephew, was on his way home when he heard a cry for
help. Rushing to the place from where the call came, Apolinario saw his uncle, Maximo,
bathed in his own blood. Apolinario immediately brought Maximo in a tricycle to the
Cagayan Valley Regional Hospital in Tuguegarao. [11]

Dr. Cirilo Pintucan, resident physician of Cagayan Valley Hospital, testified that he
examined and treated Maximo on March 16, 1991. [12]He found two stab wounds on the
chest of the victim: one, on the fourth intracostal stage or on the bone at the middle of the
chest, just parallel to the nipple line; and the other, on the lateral portion of the left chest
which is below the nipple line.[13] Dr. Pintucans Medico-Legal Certificate[14] discloses the
following findings:
FINDINGS/DIAGNOSIS
= WOUND, STABBED, MULTIPLE, PENETRATING
# 1 2 cms. Ant. Chest, level 4th ICS, sternal region

Contrary to law.[3]

# 2 2 cms. Level of 7th & 8th ICS, IMAL

Upon arraignment, the accused pleaded not guilty to the crime charged. Trial ensued
thereafter.

= PNEUMOHEMOTHORAX

To prove its case against the accused, the prosecution presented three witnesses:
Maximo Quilang, the victim, Apolinario Dassil and Dr. Cirilo M. Pintucan.

Would need medical attendance for more than nine (9)[15] not more than 1 month barring
complications.

Maximo was confined in the Cagayan Valley Regional Hospital for seven (7) days and
in the Lung Center of the Philippines for two (2) days. [16]
The accused never denied having stabbed the victim twice. However, he interposed
self-defense. He testified that he went to the house of Casimiro Paddayuman, his cousin, at
7:00 in the morning of March 15, 1991 to assist in the preparation of the wedding of the
latters son,[17] At around 6:00 in the evening, he went home, which is about 35 meters
away from the house of Casimiro. At about midnight of the same day, while he was resting
in his house,[18] he was stunned by the incessant barking of dogs. He stood to find out what
the noise was all about.[19] As he looked out at the window, he saw Maximo Quilang setting
his granary on fire. At that time, Apolinario Dassil was just about to leave the place. [20] He
(accused) then hurriedly went out of his house and approached Maximo, asking him why
he was burning the granary. The latter retorted, We intend to burn all of you here. [21] Then
holding a lighter, Maximo proceeded to the accuseds house. The accused tried to stop
Maximo but the latter reached for something from the back pockets of his pants. Thinking
it was a deadly weapon, the accused stabbed Maximo at the left side of his body.
[22]
Although he was wounded, Maximo was able to draw a knife and tried to hit the
accused. The latter retaliated and stabbed Maximo again on the chest. Maximo then left
and proceeded towards north.[23]

Thereupon, the accused shouted for help in order to put out the fire in his granary. The
people in Casimiros house, who were helping in the wedding preparation, responded and
rushed towards the burning granary. Among them were Romeo Macanang, a Barangay
Tanod, Lucio Tala, Boy Arao, Ramon Arao and Jose Viredapia. [24]

Going back to the instant case, after trial, the RTC rendered its Decision convicting the
accused of attempted homicide only, there being no evidence showing that the stab
wounds inflicted on Maximo could cause death had it not for the timely medical
attendance. The trial court held that the prosecution failed to prove the qualifying
circumstances of treachery and evident premeditation. The dispositive portion of the
decision reads:

Resultantly, the Court renders judgment finding accused Florentino Paddayuman y Tabao
guilty beyond reasonable doubt of the crime of Attempted Homicide and applying the
Indeterminate Sentence Law sentences him to an imprisonment of SIX (6) MONTHS of
Arresto Mayor as minimum to TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of
prision correcional as maximum and to pay Maximo Quilang the sum of P3,688.20 as
actual damages and P10,000.00 as moral damages and cost.

SO ORDERED.

On appeal, the Court of Appeals, in its Decision [26] dated April 26, 1995, affirmed the
RTC Decision.

Hence, the present petition anchored on the following grounds:

To corroborate accuseds claim that his granary was burned that night of March 15,
1991, the defense offered the testimonies of Casimiro Paddayuman and Romeo Macanang.
Both testified that on that night they saw the granary burning but that they did not see
who caused it.

Meanwhile, on June 13, 1991, a criminal complaint for destructive arson was filed with
the Municipal Trial Court of Tuguegarao, Cagayan by the accused against Maximo Quilang
and Apolinario Dassil. The complaint, however, was dismissed by the MTC for lack of
probable cause. The Provincial Prosecutor affirmed the order of dismissal. On appeal, the
said order was sustained by the Secretary of Justice. [25]

I. ON THE BASIS OF THE FINDINGS OF FACT, IN THE DECISION ITSELF, AND OF THE TRIAL
COURT, PETITIONER CANNOT BE CONVICTED OF ATTEMPTED HOMICIDE; AND
II. THE RULINGS OF THE RESPONDENT COURT OF APPEALS ON IMPORTANT ISSUES, ARE
BASED ON THE MISAPPREHENSION OF EVIDENCE, OR ARE CONTRARY TO LAW AND
JURISPRUDENCE; OTHERWISE PETITIONER SHOULD BE ENTITLED TO ACQUITTAL. [27]

The petition lacks merit.

Petitioner Florentino Paddayuman, by claiming self-defense, assumes the onus to

establish his plea with certainty by credible, clear and convincing evidence; otherwise,
conviction will follow from his admission that he killed the victim. [28] Where self-defense is
not corroborated by independent and competent evidence, and is extremely doubtful, it
cannot prosper.[29]

Second, Florentino filed a complaint for destructive arson against Maximo and Apolinario
only on June 13, 1991 90 days after the occurrence of the alleged incident and 79 days
after the filing of the case at bar before the inquest court. Why the long delay? Florentino
explained that he did not immediately file the case against Maximo and Apolinario because
he thought that Maximo would not file the instant case. This reason, rather than justify the
delay of Florentino in taking action, betrays the purpose of the latter in instituting the
destructive arson case: a counter-charge to be foisted as a bargaining chip for an amicable
settlement of the case at bar.

The requisites of self-defense [30] are: (1) unlawful aggression on the part of the victim;
(2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of
sufficient provocation on the part of the person defending himself. The element of unlawful
aggression is a condition sine qua non for the justifying circumstance of self-defense. There
can be no self-defense, complete or incomplete, unless the victim has committed unlawful
aggression against the person defending himself.[31]

Third, Florentino did not execute any sworn statement or affidavit regarding the alleged
burning incident. The basis of the Criminal Complaint was the Joint Affidavit (Exhibit 4) of
his father Manuel Paddayuman and cousin Casimiro Paddayuman. x x x.

Here, petitioner testified that Maximo set fire on his granary and that when he tried to
stop him, the latter reached for something from the back pockets of his pants. Petitioner
surmised that Maximo was trying to get a weapon. This prompted petitioner to stab
Maximo at the left side of his body. Maximo then drew a knife and attempted to lunge it at
petitioner, but the latter was able to stab the former again, hitting him on the chest.

Fourth, Florentino did not give his counter-affidavit when the case at bar was under
preliminary investigation before the inquest court. The Court is not saying that the giving
of a counter-affidavit is obligatory or its non-submission necessarily suggestive of guilt. The
Court however holds that in the ordinary experience of man, in the normal happenings in
this world and in the natural flow of human events, a person who has injured another in
lawful self-defense grabs the first opportunity to disclose his innocence or to justify his
violent act.[32]

Petitioners story was properly rejected by both the trial court and the Court of Appeals
because, aside from being incredible, he failed to establish by strong and convincing
evidence that a fire broke out in his granary that night of March 15, 1991. As aptly
observed by the trial court:

First, Florentino never reported the alleged burning of his property to the Barangay Captain
of Capatan, much less to the police authorities of Tuguegarao.His reason that the he
expected the Barangay Tanod who was one of those who helped put off the fire in his
granary to make the report, is too shallow to be believed.

Moreover, assuming arguendo that there was indeed a fire incident that night of
March 15, 1991, petitioner failed to prove that Maximo Quilang set the fire in his granary.
In fact, defense witnesses, Casimiro Paddayuman and Romeo Macanang, did not testify
that Maximo was the culprit. Their testimonies simply tend to show that there was a
burning incident that night of March 15, 1991. Thus:

TESTIMONY OF CASIMIRO PADDAYUMAN:

Cross Examination
Florentinos inaction cannot but nibble into the very foundation of his story for such is not
the behavior of a seriously aggrieved man.

Q Regarding the fire that was set on the granary of Florentino Paddayuman, you
were not the one who noticed it?
A I only came to know that there was something burning through these
persons who were in the kitchen, sir.
Q When they shouted that there was a fire, you look at the direction where the
fire was coming.
A No, I did not mind to see the direction where the fire is coming but my
daughter was the one who told me that and crying that the granary
of Uncle Florentino Paddayuman is burning, sir.[33] (Emphasis supplied)
TESTIMONY OF ROMEO MACANANG
Cross Examination
Q You were actually sleeping on the night of March 15, 1991 when you
heard the shout of Jacinto Dassil that the house of Florentino
Paddayuman caught fire, is that correct?
A Yes, sir.[34] (Emphasis supplied)

In the face of petitioners failure to establish his plea of self-defense by convincing and
satisfactory evidence, the same must fail. The trial court correctly appreciated the story of
the victim, Maximo Makilang, as credible and plausible, thus:
The Court had observed Maximo to be a credible witness and his story to be plausible. It is
also natural, simple and direct as it jells with all the other circumstances of the incident. x
x x. There is no cogent reason for this Court to disbelieve his version. [35]

As consistently held by this Court, the findings of the trial court as to the credibility of
the witnesses is accorded great respect and even finality because of its opportunity to
personally examine and observe the witnesses while testifying, unless the trial court has
disregarded or overlooked some facts and circumstances of weight and substance which, if
considered, might alter the assailed decision or affect the result of the case. [36] Here, we
see no circumstance on record which would warrant the setting aside of the findings of the
lower court.

We agree with the trial court that attempted homicide was committed by petitioner.
Under Article 6 of the Revised Penal Code, there is an attempt when the offender
commences the commission of a felony directly by overt acts but does not perform all the
acts of execution which should produce the felony by reason of some cause or accident
other than his own spontaneous desistance.

Here, petitioner stabbed the victim twice on the chest, which is indicative of an intent
to kill. Believing that Maximo was dying, petitioner left.[37] However, there is no evidence
that the wounds sustained by the victim were fatal enough as to cause death. This can be
gleaned from the testimony of Dr. Pintucan who did not categorically state whether or not
the wounds were fatal. Circumstances which qualify criminal responsibility cannot rest on
mere conjectures, no matter how reasonable or probable, but must be based on facts of
unquestionable existence.[38] In the instant case, the uncertainty on the nature of the
wounds warrants the appreciation of a lesser gravity of the crime committed as this is in
accordance with the fundamental principle in Criminal Law that all doubts should be
resolved in favor of the accused.[39] Thus, in People v. Pilones,[40] this Court held that even if
the victim was wounded but the injury was not fatal and could not cause his death, the
crime would only be attempted.

Furthermore, the crime is attempted homicide because the qualifying circumstances

of evident premeditation and treachery, as alleged in the Information, were not proven by
the prosecution.

WHEREFORE, the petition is DENIED. The appealed Decision of the Court of Appeals
in CA G. R. CR No. 14628 affirming the Decision of the Regional Trial Court (Branch 5) of
Tuguegarao, Cagayan in Criminal Case No. 1853, is AFFIRMED in toto.
SO ORDERED.

G.R. No. L-27415

November 29, 1927

THE PEOPLE OF THE PHILIPPINE ISLAND, plaintiff-appellee,

vs.
MARCOS MERCADO, defendant-appellant.
Juan T. Santos for appellant.
Attorney-General Jaranilla for appellee.
AVANCEA, C.J.:
On the morning of July 23, 1926, in the municipality of Bustos, Province of
Bulacan, Rufino Lopez was attacked and wounded on the left side of the
abdomen with a sharp-edge weapon by his brother-in-law Marcos Mercado.
The wound extended to the peritoneal cavity and, according to Doctor
Estrada, who attended the injured man, it was serious enough to have
produced his death had it not been properly treated in time.
A complaint having been filed against Marcos Mercado charging him with the
crime of frustrated murder, he was convicted and sentenced to fourteen
years, eight months and one day reclusion temporal, with the accessories of
the law, to indemnify the injured party in the sum of P780 and to pay the
costs of the action.
The evidence of the prosecution shows that while Rufino was gathering ears
of corn that morning, he was suddenly attacked by the accused who inflicted
upon him the wound herein before described. According to the injured party,
as soon as he felt himself wounded, he turned around and only then saw the
accused behind him. He caught his aggressor's right hand which bore the
weapon, with his left hand, and with his right tried to snatch the weapon.
While they thus grappled, Alejandro Mercado, who was some distance away
and saw the attack, left the bolo with which he was working on the ground
and went towards the combatants. Alejandro succeeded in wresting the
weapon from the accused who stepped back from them. The accused,
however, upon seeing the bolo left by Alejandro on the ground, picked it up
and came back to where the injured party was, in order to again assault him,
but was prevented from doing so by Alejandro's intervention. The accused
then asked the latter for the weapon taken from him, offering in exchange the
bolo which he had picked up from the ground. After Alejandro had received his
bolo and had delivered the weapon to the accused, the latter withdrew.

The lower court found that the qualifying circumstance of treachery was
present in commission of the crime. We do not find such circumstance
sufficiently proven. We cannot admit that the attack took place as related by
the offended party; we cannot conceive how, upon him from behind, the
accused could have wounded him on the left side of the abdomen, having the
weapon in his right hand. The position of the wound shows that the attack
must have been made with the accused in front of the injured party. Besides,
Alejandro Mercado, testifying for the prosecution, contradicted from the
injured party of this point. According to said witness, the accused came up
from behind but suddenly placed himself in front of his victim and it was them
that he wounded the latter in the abdomen.
As the versions of the occurrence given by the witnesses for the prosecution
are contradictory to each other, we cannot accept them, finding that the
crime was committed in this or that particular way, and hence, we cannot
hold that the circumstance of treachery was present.
It has been clearly shown that the accused intended to kill the offended party,
having executed to this end all the acts that should have produced this result
but for Alejandro's intervention. This is seen not only from the location and
seriousness of the wound inflicted on the injured party, but also from the
accused's conduct in picking up Alejandro's bolo after the latter had disarmed
him and in returning to where the injured party was in order to again attack
him with said bolo.
lawphil.net

Counsel for the defense tried to show that the accused acted in legitimate
self-defense as it was the injured party who first provoked and attacked him,
taking hold of his neck. We do not find this defense proven.
The facts established by the evidence of the prosecution constitute the crime
of frustrated homicide, aggravated by the circumstance of the accused being
a brother-in-law of the injured party. The penalty one degree lower than that
provided by the law for the crime of homicide should be imposed.
The judgment appealed from is modified and it being understood that the
crime committed is that of frustrated homicide, the appellant is sentenced to
ten years and one day reclusion temporal, said judgment appealed from
being confirmed in all other respects, with the costs against the appellant.

So ordered.

G.R. No. 129433

March 30, 2000

PEOPLE OF THE PHILIPPINES, plaintiff,

vs.
PRIMO CAMPUHAN Y BELLO accused.
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita 1 finally did away with frustrated rape 2 and
allowed only attempted rape and consummated rape to remain in our statute books. The
instant case lurks at the threshold of another emasculation of the stages of execution of
rape by considering almost every attempt at sexual violation of a woman as consummated
rape, that is, if the contrary view were to be adopted. The danger there is that that concept
may send the wrong signal to every roaming lothario, whenever the opportunity bares
itself, to better intrude with climactic gusto, sans any restraint, since after all any
attempted fornication would be considered consummated rape and punished as such. A
mere strafing of the citadel of passion would then be considered a deadly fait accompli,
which is absurd.
In Orita we held that rape was consummated from the moment the offender had carnal
knowledge of the victim since by it he attained his objective. All the elements of the
offense were already present and nothing more was left for the offender to do, having
performed all the acts necessary to produce the crime and accomplish it. We ruled then
that perfect penetration was not essential; any penetration of the female organ by the
male organ, however slight, was sufficient. The Court further held that entry of the labia or
lips of the female organ, even without rupture of the hymen or laceration of the vagina,
was sufficient to warrant conviction for consummated rape. We distinguished
consummated rape from attempted rape where there was no penetration of the female
organ because not all acts of execution were performed as the offender merely
commenced the commission of a felony directly by overt acts. 3 The inference that may be
derived therefrom is that complete or full penetration of the vagina is not required for rape
to be consummated. Any penetration, in whatever degree, is enough to raise the crime to
its consummated stage.
But the Court in Orita clarified the concept of penetration in rape by requiring entry into
the labia or lips of the female organ, even if there be no rupture of the hymen or laceration
of the vagina, to warrant a conviction for consummated rape. While the entry of the penis
into the lips of the female organ was considered synonymous with mere touching of the
external genitalia, e.g., labia majora, labia minora, etc.,4 the crucial doctrinal bottom line is

that touching must be inextricably viewed in light of, in relation to, or as an essential part
of, the process of penile penetration, and not just mere touching in the ordinary sense. In
other words, the touching must be tacked to the penetration itself. The importance of the
requirement of penetration, however slight, cannot be gainsaid because where entry into
the labia or the lips of the female genitalia has not been established, the crime committed
amounts merely to attempted rape.
Verily, this should be the indicium of the Court in determining whether rape has been
committed either in its attempted or in its consummated stage; otherwise, no substantial
distinction would exist between the two, despite the fact that penalty-wise, this distinction,
threadbare as it may seem, irrevocably spells the difference between life and death for the
accused a reclusive life that is not even perpetua but only temporal on one hand, and
the ultimate extermination of life on the other. And, arguing on another level, if the case at
bar cannot be deemed attempted but consummated rape, what then would constitute
attempted rape? Must our field of choice be thus limited only to consummated rape and
acts of lasciviousness since attempted rape would no longer be possible in light of the view
of those who disagree with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced
by the court a quo to the extreme penalty of death, 5 hence this case before us on
automatic review under Art. 335 of the Revised Penal Code as amended by RA 7659. 6
As may be culled from the evidence on record, on 25 April 1996, at around 4 o'clock in the
afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went
down from the second floor of their house to prepare Milo chocolate drinks for her two (2)
children. At the ground floor she met Primo Campuhan who was then busy filling small
plastic bags with water to be frozen into ice in the freezer located at the second floor.
Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing
the drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!" 7 prompting Corazon to
rush upstairs. Thereupon, she saw Primo Campuhan inside her children's room kneeling
before Crysthel whose pajamas or "jogging pants" and panty were already removed, while
his short pants were down to his knees.
According to Corazon, Primo was forcing his penis into Crysthel's vagina. Horrified, she
cursed the accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He
evaded her blows and pulled up his pants. He pushed Corazon aside when she tried to
block his path. Corazon then ran out and shouted for help thus prompting her brother, a
cousin and an uncle who were living within their compound, to chase the
accused. 8Seconds later, Primo was apprehended by those who answered Corazon's call for
help. They held the accused at the back of their compound until they were advised by their
neighbors to call the barangay officials instead of detaining him for his misdeed. Physical
examination of the victim yielded negative results. No evident sign of extra-genital
physical injury was noted by the medico-legal officer on Crysthel's body as her hymen was
intact and its orifice was only 0.5 cm. in diameter.

Primo Campuhan had only himself for a witness in his defense. He maintained his
innocence and assailed the charge as a mere scheme of Crysthel's mother who allegedly
harbored ill will against him for his refusal to run an errand for her. 9 He asserted that in
truth Crysthel was in a playing mood and wanted to ride on his back when she suddenly
pulled him down causing both of them to fall down on the floor. It was in this fallen position
that Corazon chanced upon them and became hysterical. Corazon slapped him and
accused him of raping her child. He got mad but restrained himself from hitting back when
he realized she was a woman. Corazon called for help from her brothers to stop him as he
ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and accosted Primo.
Vicente punched him and threatened to kill him. Upon hearing the threat, Primo
immediately ran towards the house of Conrado Plata but Vicente followed him there. Primo
pleaded for a chance to explain as he reasoned out that the accusation was not true. But
Vicente kicked him instead. When Primo saw Vicente holding a piece of lead pipe, Primo
raised his hands and turned his back to avoid the blow. At this moment, the relatives and
neighbors of Vicente prevailed upon him to take Primo to the barangay hall instead, and
not to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found
him guilty of statutory rape, sentenced him to the extreme penalty of death, and ordered
him to pay his victim P50,000.00 for moral damages, P25,000.00 for exemplary damages,
and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan.
He argues that her narration should not be given any weight or credence since it was
punctured with implausible statements and improbabilities so inconsistent with human
nature and experience. He claims that it was truly inconceivable for him to commit the
rape considering that Crysthel's younger sister was also in the room playing while Corazon
was just downstairs preparing Milo drinks for her daughters. Their presence alone as
possible eyewitnesses and the fact that the episode happened within the family compound
where a call for assistance could easily be heard and responded to, would have been
enough to deter him from committing the crime. Besides, the door of the room was wide
open for anybody to see what could be taking place inside. Primo insists that it was almost
inconceivable that Corazon could give such a vivid description of the alleged sexual
contact when from where she stood she could not have possibly seen the alleged touching
of the sexual organs of the accused and his victim. He asserts that the absence of any
external signs of physical injuries or of penetration of Crysthel's private parts more than
bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the testimony of Corazon
that she saw Primo with his short pants down to his knees kneeling before Crysthel whose
pajamas and panty were supposedly "already removed" and that Primo was "forcing his
penis into Crysthel's vagina." The gravamen of the offense of statutory rape is carnal

knowledge of a woman below twelve (12), as provided in Art. 335, par. (3), of the Revised
Penal Code. Crysthel was only four (4) years old when sexually molested, thus raising the
penalty, from reclusion perpetua to death, to the single indivisible penalty of death under
RA 7659, Sec. 11, the offended party being below seven (7) years old. We have said often
enough that in concluding that carnal knowledge took place, full penetration of the vaginal
orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere
touching of the external genitalia by the penis capable of consummating the sexual act is
sufficient to constitute carnal knowledge. 10 But the act of touching should be understood
here as inherently part of the entry of the penis into the labias of the female organ and not
mere touching alone of the mons pubis or the pudendum.
In People v. De la Pea 11 we clarified that the decisions finding a case for rape even if the
attacker's penis merely touched the external portions of the female genitalia were made in
the context of the presence or existence of an erect penis capable of full penetration.
Where the accused failed to achieve an erection, had a limp or flaccid penis, or an
oversized penis which could not fit into the victim's vagina, the Court nonetheless held that
rape was consummated on the basis of the victim's testimony that the accused repeatedly
tried, but in vain, to insert his penis into her vagina and in all likelihood reached the labia
of her pudendum as the victim felt his organ on the lips of her vulva, 12 or that the penis of
the accused touched the middle part of her vagina. 13 Thus, touching when applied to rape
cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight
brush or a scrape of the penis on the external layer of the victim's vagina, or the mons
pubis, as in this case. There must be sufficient and convincing proof that the penis indeed
touched the labias or slid into the female organ, and not merely stroked the external
surface thereof, for an accused to be convicted of consummated rape. 14 As the
labias, which are required to be "touched" by the penis, are by their natural situs or
location beneath the mons pubis or the vaginal surface, to touch them with the penis is to
attain some degree of penetration beneath the surface, hence, the conclusion that
touching the labia majora or the labia minora of the pudendum constitutes consummated
rape.
The pudendum or vulva is the collective term for the female genital organs that are visible
in the perineal area,e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris,
the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after
puberty, and is instantly visible within the surface. The next layer is the labia majora or the
outer lips of the female organ composed of the outer convex surface and the inner surface.
The skin of the outer convex surface is covered with hair follicles and is pigmented, while
the inner surface is a thin skin which does not have any hair but has many sebaceous
glands. Directly beneath the labia majora is the labia minora. 15 Jurisprudence dictates that
the labia majora must be entered for rape to be consummated, 16 and not merely for the
penis to stroke the surface of the female organ. Thus, a grazing of the surface of the
female organ or touching the mons pubis of the pudendum is not sufficient to constitute
consummated rape. Absent any showing of the slightest penetration of the female

organ, i.e., touching of either labia of the pudendum by the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been confined to the oft-quoted "touching
of the female organ,"17 but has also progressed into being described as "the introduction of
the male organ into the labia of the pudendum," 18 or "the bombardment of the
drawbridge." 19 But, to our mild, the case at bar merely constitutes a "shelling of the castle
of orgasmic potency," or as earlier stated, a "strafing of the citadel of passion.
A review of the records clearly discloses that the prosecution utterly failed to discharge its
onus of proving that Primo's penis was able to penetrate Crysthel's vagina however slight.
Even if we grant arguendo that Corazon witnessed Primo in the act of sexually molesting
her daughter, we seriously doubt the veracity of her claim that she saw the inter-genital
contact between Primo and Crysthel. When asked what she saw upon entering her
children's room Corazon plunged into saying that she saw Primo poking his penis on the
vagina of Crysthel without explaining her relative position to them as to enable her to see
clearly and sufficiently, in automotive lingo, the contact point. It should be recalled that
when Corazon chanced upon Primo and Crysthel, the former was allegedly in a kneeling
position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of the accused is
pinning down the victim, while his right hand is holding his penis and his left hand
is spreading the legs of the victim).
It can reasonably be drawn from the foregoing narration that Primo's kneeling position
rendered an unbridled observation impossible. Not even a vantage point from the side of
the accused and the victim would have provided Corazon an unobstructed view of Primo's
penis supposedly reaching Crysthel's external genitalia, i.e., labia majora, labia minora,
hymen, clitoris, etc., since the legs and arms of Primo would have hidden his movements
from Corazon's sight, not to discount the fact that Primo's right hand was allegedly holding
his penis thereby blocking it from Corazon's view. It is the burden of the prosecution to
establish how Corazon could have seen the sexual contact and to shove her account into
the permissive sphere of credibility. It is not enough that she claims that she saw what was
done to her daughter. It is required that her claim be properly demonstrated to inspire
belief. The prosecution failed in this respect, thus we cannot conclude without any taint of
serious doubt that inter-genital contact was at all achieved. To hold otherwise would be to
resolve the doubt in favor of the prosecution but to run roughshod over the constitutional
right of the accused to be presumed innocent.

Corazon insists that Primo did not restrain himself from pursuing his wicked intention
despite her timely appearance, thus giving her the opportunity to fully witness his beastly
act.
We are not persuaded. It is inconsistent with man's instinct of self-preservation to remain
where he is and persist in satisfying his lust even when he knows fully well that his
dastardly acts have already been discovered or witnessed by no less than the mother of
his victim. For, the normal behavior or reaction of Primo upon learning of Corazon's
presence would have been to pull his pants up to avoid being caught literally with his pants
down. The interval, although relatively short, provided more than enough opportunity for
Primo not only to desist from but even to conceal his evil design.
What appears to be the basis of the conviction of the accused was Crysthel's answer to the
question of the court
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily said, "No."
Thus
Q: But did his penis penetrate your organ?
A: No, sir.

20

This testimony alone should dissipate the mist of confusion that enshrouds the question of
whether rape in this case was consummated. It has foreclosed the possibility of Primo's
penis penetrating her vagina, however slight. Crysthel made a categorical statement
denying penetration, 27 obviously induced by a question propounded to her who could not
have been aware of the finer distinctions between touching and penetration.
Consequently, it is improper and unfair to attach to this reply of a four (4)-year old child,
whose vocabulary is yet as underdeveloped as her sex and whose language is bereft of
worldly sophistication, an adult interpretation that because the penis of the accused
touched her organ there was sexual entry. Nor can it be deduced that in trying to penetrate
the victim's organ the penis of the accused touched the middle portion of her vagina and
entered the labia of her pudendum as the prosecution failed to establish sufficiently that
Primo made efforts to penetrate Crysthel. 22Corazon did not say, nay, not even hint that
Primo's penis was erect or that he responded with an erection. 23 On the contrary, Corazon
even narrated that Primo had to hold his penis with his right hand, thus showing that he
had yet to attain an erection to be able to penetrate his victim.

Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is belied
by the child's own assertion that she resisted Primo's advances by putting her legs close
together; 24 consequently, she did not feel any intense pain but just felt "not happy" about
what Primo did to her. 25 Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In
cases where penetration was not fully established, the Court had anchored its conclusion
that rape nevertheless was consummated on the victim's testimony that she felt pain, or
the medico-legal finding of discoloration in the inner lips of the vagina, or the labia minora
was already gaping with redness, or the hymenal tags were no longer visible. 26 None was
shown in this case. Although a child's testimony must be received with due consideration
on account of her tender age, the Court endeavors at the same time to harness only what
in her story appears to be true, acutely aware of the equally guaranteed rights of the
accused. Thus, we have to conclude that even on the basis of the testimony of Crysthel
alone the accused cannot be held liable for consummated rape; worse, be sentenced to
death.1wphi1

years and four (4) months, while the minimum shall be taken from the penalty next lower
in degree, which is prision mayor, the range of which is from six (6) years and one (1) day
to twelve (12) years, in any of its periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN
Y BELLO guilty of statutory rape and sentencing him to death and to pay damages is
MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an
indeterminate prison term of eight (8) years four (4) months and ten (10) days of prision
mayor medium as minimum, to fourteen (14) years ten (10) months and twenty (20) days
ofreclusion temporal medium as maximum. Costs de oficio.
SO ORDERED.

Lastly, it is pertinent to mention the medico legal officer's finding in this case that there
were no external signs of physical injuries on complaining witness' body to conclude from a
medical perspective that penetration had taken place. As Dr. Aurea P. Villena explained,
although the absence of complete penetration of the hymen does not negate the
possibility of contact, she clarified that there was no medical basis to hold that there was
sexual contact between the accused and the victim. 27
In cases of rape where there is a positive testimony and a medical certificate, both should
in all respects complement each other; otherwise, to rely on the testimonial evidence
alone, in utter disregard of the manifest variance in the medical certificate, would be
productive of unwarranted or even mischievous results. It is necessary to carefully
ascertain whether the penis of the accused in reality entered the labial threshold of the
female organ to accurately conclude that rape was consummated. Failing in this, the thin
line that separates attempted rape from consummated rape will significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the
offender commences the commission of rape directly by overt acts, and does not perform
all the acts of execution which should produce the crime of rape by reason of some cause
or accident other than his own spontaneous desistance. All the elements of attempted rape
and only of attempted rape are present in the instant case, hence, the accused
should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the imposable penalty of
death for the offense charged, which is statutory rape of a minor below seven (7) years.
Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and
one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the
absence of any mitigating or aggravating circumstance, the maximum of the penalty to be
imposed upon the accused shall be taken from the medium period of reclusion temporal,
the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17)

G.R. No. 88724

April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CEILITO ORITA alias "Lito," defendant-appellant.
MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case
No. 83-031-B before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The
information filed in the said case reads as follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior complaint under
oath by the offended party, accuses CEILITO ORITA alias LITO of the crime of Rape
committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding
house at Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within
the jurisdiction of this Honorable Court, above named accused with lewd designs
and by the use of a Batangas knife he conveniently provided himself for the
purpose and with threats and intimidation, did, then and there wilfully, unlawfully
and feloniously lay with and succeeded in having sexual intercourse with Cristina
S. Abayan against her will and without her consent.

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

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

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

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

SO ORDERED.

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

Not satisfied with the decision, the accused appealed to the Court of Appeals. On
December 29, 1988, the Court of Appeals rendered its decision, the dispositive portion of
which reads (p. 102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant
found guilty of the crime of rape, and consequently, sentenced to suffer
imprisonment of reclusion perpetua and to indemnify the victim in the amount of
P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting aside its December
29, 1988 decision and forwarded the case to this Court, considering the provision of
Section 9, paragraph 3 of Batas Pambansa Blg. 129 in conjunction with Section 17,
paragraph 3, subparagraph 1 of the Judiciary Act of 1948.

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

She dashed out to the next room and locked herself in. Appellant pursued her and
climbed the partition. When she saw him inside the room, she ran to another room.
Appellant again chased her. She fled to another room and jumped out through a
window (p. 27, ibid).
Still naked, she darted to the municipal building, which was about eighteen meters
in front of the boarding house, and knocked on the door. When there was no
answer, she ran around the building and knocked on the back door. When the
policemen who were inside the building opened the door, they found complainant
naked sitting on the stairs crying. Pat. Donceras, the first policeman to see her,
took off his jacket and wrapped it around her. When they discovered what
happened, Pat. Donceras and two other policemen rushed to the boarding house.
They heard a sound at the second floor and saw somebody running away. Due to
darkness, they failed to apprehend appellant.

The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student at the St.
Joseph's College at Borongan, Eastern Samar. Appellant was a Philippine
Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her boarding
house. Her classmates had just brought her home from a party (p. 44, tsn, May 23,
1984). Shortly after her classmates had left, she knocked at the door of her
boarding house (p. 5, ibid). All of a sudden, somebody held her and poked a knife
to her neck. She then recognized appellant who was a frequent visitor of another
boarder (pp. 8-9,ibid).

Meanwhile, the policemen brought complainant to the Eastern Samar Provincial

Hospital where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a
Medical Certificate (Exhibit "A") which states:
Physical Examination Patient is fairly built, came in with loose clothing
with no under-clothes; appears in state of shock, per unambulatory.
PE Findings Pertinent Findings only.

Neck- Circumscribed hematoma at Ant. neck.

Breast Well developed, conical in shape with prominent nipples; linear
abrasions below (L) breast.
Back Multiple pinpoint marks.
Extremities Abrasions at (R) and (L) knees.
Vulva No visible abrasions or marks at the perineal area or over the
vulva, errythematous (sic)areas noted surrounding vaginal orifice,
tender, hymen intact; no laceration fresh and old noted; examining finger
can barely enter and with difficulty; vaginal canal tight; no discharges
noted.

holding a Batangas knife during the aggression. This is a material part of the victim's
testimony which the accused conveniently deleted.
We find no cogent reason to depart from the well-settled rule that the findings of fact of
the trial court on the credibility of witnesses should be accorded the highest respect
because it has the advantage of observing the demeanor of witnesses and can discern if a
witness is telling the truth (People v. Samson, G.R. No. 55520, August 25, 1989). We quote
with favor the trial court's finding regarding the testimony of the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People, there is not much to
be desired as to the sincerity of the offended party in her testimony before the
court. Her answer to every question profounded (sic), under all circumstances, are
plain and straightforward. To the Court she was a picture of supplication hungry
and thirsty for the immediate vindication of the affront to her honor. It is inculcated
into the mind of the Court that the accused had wronged her; had traversed
illegally her honor.

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

In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of
the witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was committed by the
accused.
The accused assails the testimonies of the victim and Pat. Donceras because they "show
remarkable and vital inconsistencies and its incredibility amounting to fabrication and
therefore casted doubt to its candor, truth and validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to trivial
inconsistencies which are not sufficient to blur or cast doubt on the witnesses'
straightforward attestations. Far from being badges of fabrication, the inconsistencies in
their testimonies may in fact be justifiably considered as manifestations of truthfulness on
material points. These little deviations also confirm that the witnesses had not been
rehearsed. The most candid witnesses may make mistakes sometimes but such honest
lapses do not necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the
prosecution witnesses, discrepancies on minor details must be viewed as adding credence
and veracity to such spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al.,
G.R. No. L-41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete uniformity
in details would be a strong indication of untruthfulness and lack of spontaneity (People v.
Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one of the alleged
inconsistencies deserves a little discussion which is, the testimony of the victim that the
accused asked her to hold and guide his penis in order to have carnal knowledge of her.
According to the accused, this is strange because "this is the only case where an
aggressor's advances is being helped-out by the victim in order that there will be a
consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the
testimony of the victim ended there. The victim testified further that the accused was

When a woman testifies that she has been raped, she says in effect all that is necessary to
show that rape was committed provided her testimony is clear and free from contradiction
and her sincerity and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August
31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA
280; People v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in
this case did not only state that she was raped but she testified convincingly on how the
rape was committed. The victim's testimony from the time she knocked on the door of the
municipal building up to the time she was brought to the hospital was corroborated by Pat.
Donceras. Interpreting the findings as indicated in the medical certificate, Dr. Reinerio
Zamora (who was presented in view of the unavailability of Dr. Abude) declared that the
abrasions in the left and right knees, linear abrasions below the left breast, multiple
pinpoint marks, circumscribed hematoma at the anterior neck, erythematous area
surrounding the vaginal orifice and tender vulva, are conclusive proof of struggle against
force and violence exerted on the victim (pp. 52-53, Rollo). The trial court even inspected
the boarding house and was fully satisfied that the narration of the scene of the incident
and the conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe enough to
carry the weight of both accused and offended party without the slightest
difficulty, even in the manner as narrated. The partitions of every room were of
strong materials, securedly nailed, and would not give way even by hastily scaling
the same.
A little insight into human nature is of utmost value in judging rape complaints (People v.
Torio, et al., G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court
added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony (opening) to
the ground which was correctly estimated to be less than eight (8) meters, will
perhaps occasion no injury to a frightened individual being pursued. Common
experience will tell us that in occasion of conflagration especially occuring (sic) in
high buildings, many have been saved by jumping from some considerable heights

without being injured. How much more for a frightened barrio girl, like the offended
party to whom honor appears to be more valuable than her life or limbs? Besides,
the exposure of her private parts when she sought assistance from authorities, as
corroborated, is enough indication that something not ordinary happened to her
unless she is mentally deranged. Sadly, nothing was adduced to show that she was
out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312),
We ruled that:
What particularly imprints the badge of truth on her story is her having been
rendered entirely naked by appellant and that even in her nudity, she had to run
away from the latter and managed to gain sanctuary in a house owned by spouses
hardly known to her. All these acts she would not have done nor would these facts
have occurred unless she was sexually assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to present other witnesses to
corroborate the allegations in the complaint and the non-presentation of the medico-legal
officer who actually examined the victim. Suffice it to say that it is up to the prosecution to
determine who should be presented as witnesses on the basis of its own assessment of
their necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People
v. Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of the medico-legal
officer who actually examined the victim, the trial court stated that it was by agreement of
the parties that another physician testified inasmuch as the medico-legal officer was no
longer available. The accused did not bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the first assignment of error
fall flat on its face. Some were not even substantiated and do not, therefore, merit
consideration. We are convinced that the accused is guilty of rape. However, We believe
the subject matter that really calls for discussion, is whether or not the accused's
conviction for frustrated rape is proper. The trial court was of the belief that there is no
conclusive evidence of penetration of the genital organ of the victim and thus convicted
the accused of frustrated rape only.
The accused contends that there is no crime of frustrated rape. The Solicitor General
shares the same view.
Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of
rape:
Art. 335. When and how rape is committed. Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious and

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

xxx

xxx

Carnal knowledge is defined as the act of a man in having sexual bodily connections with a
woman (Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies. Consummated
felonies as well as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all
the acts of execution which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator.
There is an attempt when the offender commences the commission of a felony
directly by overt acts, and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other than his own
spontaneous desistance.
Correlating these two provisions, there is no debate that the attempted and consummated
stages apply to the crime of rape.1wphi1 Our concern now is whether or not the
frustrated stage applies to the crime of rape.
The requisites of a frustrated felony are: (1) that the offender has performed all the acts of
execution which would produce the felony and (2) that the felony is not produced due to
causes independent of the perpetrator's will. In the leading case of United States
v. Eduave, 36 Phil. 209, 212, Justice Moreland set a distinction between attempted and
frustrated felonies which is readily understood even by law students:
. . . A crime cannot be held to be attempted unless the offender, after beginning
the commission of the crime by overt acts, is prevented, against his will, by some
outside cause from performing all of the acts which should produce the crime. In
other words, to be an attempted crime the purpose of the offender must be
thwarted by a foreign force or agency which intervenes and compels him to stop
prior to the moment when he has performed all of the acts which should produce
the crime as a consequence, which acts it is his intention to perform. If he has
performed all of the acts which should result in the consummation of the crime and
voluntarily desists from proceeding further, it can not be an attempt. The essential
element which distinguishes attempted from frustrated felony is that, in the latter,
there is no intervention of a foreign or extraneous cause or agency between the
beginning of the commission of the crime and the moment when all of the acts
have been performed which should result in the consummated crime; while in the
former there is such intervention and the offender does not arrive at the point of

performing all of the acts which should produce the crime. He is stopped short of
that point by some cause apart from his voluntary desistance.
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his
victim he actually attains his purpose and, from that moment also all the essential
elements of the offense have been accomplished.Nothing more is left to be done by the
offender, because he has performed the last act necessary to produce the crime. Thus, the
felony is consummated. In a long line of cases (People v. Oscar, 48 Phil. 527; People v.
Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666;
People v. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have set the
uniform rule that for the consummation of rape, perfect penetration is not essential. Any
penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of
the female organ, without rupture of the hymen or laceration of the vagina is sufficient to
warrant conviction. Necessarily, rape is attempted if there is no penetration of the female
organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States v.
Garcia: 9 Phil. 434) because not all acts of execution was performed. The offender merely
commenced the commission of a felony directly by overt acts. Taking into account the
nature, elements and manner of execution of the crime of rape and jurisprudence on the
matter, it is hardly conceivable how the frustrated stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of People v. Eria 50
Phil. 998 [1927] where We found the offender guilty of frustrated rape there being no
conclusive evidence of penetration of the genital organ of the offended party. However, it
appears that this is a "stray" decision inasmuch as it has not been reiterated in Our
subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code, as
amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111
(dated March 29, 1965) which provides, in its penultimate paragraph, for the penalty of
death when the rape is attempted orfrustrated and a homicide is committed by reason or
on the occasion thereof. We are of the opinion that this particular provision on frustrated
rape is a dead provision. The Eria case, supra, might have prompted the law-making body
to include the crime of frustrated rape in the amendments introduced by said laws.
In concluding that there is no conclusive evidence of penetration of the genital organ of the
victim, the trial court relied on the testimony of Dr. Zamora when he "categorically
declared that the findings in the vulva does not give a concrete disclosure of penetration.
As a matter of fact, he tossed back to the offended party the answer as to whether or not
there actually was penetration." (p. 53, Rollo) Furthermore, the trial court stated (p.
57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as
interpreted by Dr. Reinerio Zamora and the equivocal declaration of the latter of
uncertainty whether there was penetration or not. It is true, and the Court is not
oblivious, that conviction for rape could proceed from the uncorroborated
testimony of the offended party and that a medical certificate is not necessary
(People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the people
relied upon cannot be applicable to the instant case. The testimony of the offended
party is at variance with the medical certificate. As such, a very disturbing doubt
has surfaced in the mind of the court. It should be stressed that in cases of rape
where there is a positive testimony and a medical certificate, both should in all
respect, compliment each other, for otherwise to rely on the testimony alone in

utter disregard of the manifest variance in the medical certificate, would be

productive of mischievous results.
The alleged variance between the testimony of the victim and the medical certificate does
not exist. On the contrary, it is stated in the medical certificate that the vulva was
erythematous (which means marked by abnormal redness of the skin due to capillary
congestion, as in inflammation) and tender. It bears emphasis that Dr. Zamoradid not rule
out penetration of the genital organ of the victim. He merely testified that there was
uncertainty whether or not there was penetration. Anent this testimony, the victim
positively testified that there was penetration, even if only partially (pp. 302, 304, t.s.n.,
May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx

xxx

xxx

Q What do you mean when you said comply, or what act do you referred (sic) to,
when you said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may be convicted even on the sole
basis of the victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8,
1988, 167 SCRA 65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA
569; People v. Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349).
Moreover, Dr. Zamora's testimony is merely corroborative and is not an indispensable
element in the prosecution of this case (People v. Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the scale in favor of
the accused because after a thorough review of the records, We find the evidence
sufficient to prove his guilt beyond reasonable doubt of the crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of
rape is committed with the use of a deadly weapon, the penalty shall be reclusion
perpetua to death. The trial court appreciated the aggravating circumstances of dwelling
and nighttime. Thus, the proper imposable penalty is death. In view, however, of Article
111, Section 19(1) of the 1987 Constitution and Our ruling in People v. Millora, et al., G.R.
Nos. L-38968-70, February 9, 1989, that the cited Constitutional provision did not declare
the abolition of the death penalty but merely prohibits the imposition of the death penalty,
the Court has since February 2, 1987 not imposed the death penalty whenever it was
called for under the Revised Penal Code but instead reduced the same to reclusion

perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion
perpetua, being a single indivisible penalty under Article 335, paragraph 3, is imposed
regardless of any mitigating or aggravating circumstances (in relation to Article 63,
paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982,
112 SCRA 615; People v. Manzano, G.R. No. L38449, November 25, 1982, 118 SCRA 705;
People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused
Ceilito Orita is hereby found guilty beyond reasonable doubt of the crime of rape and
sentenced to reclusion perpetua as well as to indemnify the victim in the amount of
P30,000.00.

That the qualifying aggravating circumstance of relationship is attendant in the

commission of the offense, the 17-year old victim/offended party being the daughter of the
accused.

Criminal Case No. 10858

SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. FLORENCIO ABANILLA y RIVERA

PER CURIAM:

For automatic review before us is the consolidated decision[1] rendered by the Regional
Trial Court of Batangas City,[2] in Criminal Cases Nos. 10857, 10858 and 10859, finding
appellant Florencio Abanilla y Rivera guilty beyond reasonable doubt of three counts of
rape committed against his seventeen-year-old daughter, Lorena Abanilla y Arellano, which
resulted in the latters pregnancy.

That during the first half of October 1999 at Brgy. Pulot Itaas, Batangas City, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, motivated
by lust and lewd designs, by means of force, threat and intimidation, did then and there
willfully, unlawfully and feloniously have carnal knowledge of one Lorena Abanilla y
Arellano who was then a minor, 17 years of age, against her will.

That the qualifying aggravating circumstance of relationship is attendant in the

commission of the offense, the 17-year old victim/offended party being the daughter of the
accused.

Criminal Case No. 10859

On April 7, 2000, the following informations were filed against appellant:[3]

Criminal Case No. 10857

That in or about June 1999 at around 11:00 oclock in the evening at Brgy. Pulot Itaas,
Batangas City, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, motivated by lust and lewd designs, by means of force, threat and
intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge
of one Lorena Abanilla y Arellano who was then a minor, 17 years of age, against her will.

That during the last week of October 1999 at Brgy. Pulot Itaas, Batangas City, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, motivated
by lust and lewd designs, by means of force, threat and intimidation, did then and there
willfully, unlawfully and feloniously have carnal knowledge of one Lorena Abanilla y
Arellano who was then a minor, 17 years of age, against her will.

That the qualifying aggravating circumstance of relationship is attendant in the

commission of the offense, the 17-year old victim/offended party being the daughter of the
accused.

Appellant denied raping his daughter and counters with the following statement of facts in
his brief:[5]
Appellant pleaded not guilty to each of the informations charged and a joint trial was
conducted. On March 12, 2001, the court a quo rendered the aforementioned consolidated
decision, the dispositive portion of which reads:

WHEREFORE, the accused, FLORENCIO ABANILLA y RIVERA, is found guilty beyond

reasonable doubt of the three (3) counts of aggravated rape under Articles 266-A and 266B of the Revised Penal Code, and he is hereby sentenced to suffer the supreme penalty of
death for each of the charges in these cases, with costs. He is further ordered to indemnify
Lorena Abanilla with the sum of P50,000 for each of the three offenses or a total of
P150,000 as moral damages.

In convicting appellant, the trial court found the following facts to have been duly
established:[4]

The accused, forty four (44) years old, has been a widower for four (4) years. He was a
carpenter and came home in the evening often drunk. In June of 1999, as well as in the
second and last weeks of October 1999, the accused came home in Pulot Itaas, Batangas
City drunk. At around 10:00 oclock in the evening he laid beside her daughter, Lorena, who
was sleeping. Lorena was then 17 years old for [she was] born on October 3, 1982. He
touched her private parts, removed her shorts and pant[y], undressed himself and laid on
top of her. He inserted his penis into her vagina causing her pain. He then made the up
and down movement and ejected something hot from his penis. He told Lorena not to
make any noise since her siblings were sleeping in the same room. He warned her not to
tell anyone about the incident because, if she did, he would kill her. Out of fear Lorena did
not report to anyone but on April 1, 2000, Modesta Ebora, Lorenas godmother who noticed
Lorenas enlarged breasts, hips and abdomen, tried to talk to the latter who related that the
accused was the one responsible for her condition. On April 3, 2000, while the accused was
having a hair cut, Lorena reported to SPO4 Natividad who arrested the accused. Lorena
was examined by a physician and an Ultra Sound examination was done on her which
confirmed her pregnancy. On July 14, 2000, Lorena gave birth to a baby boy (see letter of
Social Worker, p. 45 of record).

Accused FLORENCIO ABANILLA denied having raped his daughter during the incidents
charged in the information. On June 12, 1999, he worked as a carpenter on a house built in
their barangay in Pulot Itaas, Batangas City. His companions at their residence were his
eight (8) children and a brother-in-law. In October 1999, he got a job at Tiera Verde,
necessitating him to stay thereat for two (2) weeks. He labeled the charges made by her
daughter as fabrications, and instigated by the relatives of her deceased wife due to a land
dispute. He likewise averred that her daughter receives male visitors at their house (TSN,
October 2, 2000, pp. 4-10).

The evidence for the prosecution consisted of the testimonies of four witnesses, namely:
Lorena Abanilla, the complainant herself; Modesta Ronquillo, the complainants godmother;
Dr. Buenaventura Magboo, the physician who examined the complainant; and SPO4
Venecio Natividad, the policeman who arrested appellant. Of the four witnesses, it was only
the complainant who testified on the rape incident itself. Modesta Ronquillos testimony
that the complainant disclosed to her that she was raped by appellant is hearsay and is not
admissible to prove rape.[6] The other two witnesses, Buenaventura Magboo and SPO4
Venecio Natividad, respectively testified to the pregnancy of the complainant and the
arrest of appellant.

On the other hand, the sole evidence presented by appellant was his own testimony
denying the complainants accusations against him.

Judging by the evidence on hand, determining whether or not the alleged rape occurred
ultimately boils down to the word of the complainant against that of appellant. In deciding
which party deserves credence, the Court applies the three guiding principles in reviewing
rape cases: 1) an accusation of rape can be made with facility - it is hard to prove, and
even more difficult for the accused to disprove; 2) in view of the intrinsic nature of the
crime in which only two persons are usually involved, the testimony of the complainant
must be scrutinized with extreme caution; and 3) the evidence for the prosecution must
stand or fall on its own merits and not draw strength merely from the weakness of that of
the defense.[7]

Considering that appellants conviction was chiefly due to the complainants testimony, the
Court is obliged to examine thoroughly the veracity of such testimony to ensure that it
meets the required quantum of proof beyond reasonable doubt necessary to overturn the
constitutional presumption of innocence.

WITNESS:

a I was raped by my father, maam.

The complainant testified on three alleged rape incidents. The first was said to have
occurred during the month of June 1999, while the second and the third rape incidents
purportedly occurred on the second and last weeks of October 1999, respectively. The
pertinent portions of the testimony of the complainant are as follows:[8]

q Will you kindly tell this Honorable Court how you were raped by your father?

a My father arrived 10:00 oclock in the evening at our house, ma am.

xxx xxx xxx
q What did he do to you?
[FIRST INCIDENT]
a He was drunk, he asked for light, he asked me to prepare food, and then he ate.
q Sometime in the month of June, 1999 do you remember if there was an unusual incident
that happened to you?
q According to you at 10:00 your father arrived drunk and he asked for light. What kind of
light was that which you provide[d]?
WITNESS:
a [A] lamp, maam.
a There, was, maam.
q And according to you he asked for food. After he [ate] his supper what happened more?
PROS. PANGANIBAN
a I slept, ma am. Afterwards I felt that he laid beside me.
q What was that?

PROS. PANGANIBAN:
q After he laid down beside you, what happened more?
q And after you have felt that something hot came out front his organ, what did you feel?
a He touched my private part and told me not to create noise because he will kill me.
a Painful, ma am.
q After that what happened?
q Were you then attending school at that time?
a He removed my shorts and panty, removed his under wear and placed himself on top of
me and placed his organ into mine and made an up and down movement because he was
not able to insert his organ into mine, I felt something hot came out from his organ.

q According to you he placed himself on top of you and made an up and down movement
on top of you how long was that?

a About (4) minutes, ma am.

q During the act that he was on top of you because he was not able to insert his organ, did
it touch your private part?

a Yes, maam.

q In what year were you then?

a Third year high school, maam.

q Whereat?

a Talahib Pandayan National High School, maam.

WITNESS:
q Have you reported the first incident to any authority or to anybody else?
a It touched my private part, ma am.
a I did not.

q Why did you not report the said incident to anybody?

a 10:00 o clock in the evening, ma am.

a Because I am afraid of my father, maam.

q Where did it happen, the second time?

q Why were you afraid of your father?

a At our house, ma am.

a Because he is going to kill me, maam.

q What were you doing then when he laid beside you?

[SECOND INCIDENT]

a I was sleeping then.

q After this incident was there any incident that happened to you?

PROS. PANGANIBAN:

a There was, ma am, second week of October, 1999.

q You said you were sleeping, you mean to say you were awakened when he laid beside
you?

q What was that incident?

WITNESS:

a He laid beside me, he touched my private part, removed my shorts and panty, he
removed his underwear.

q Can you tell the time when this incident happened?

a Yes, ma am.

q When your father removed your shorts and panty and he touched your private part, after
that what did he do more?

a He placed himself on top of me and forcibly inserted his organ and he was able to insert
his organ into mine.

a My siblings and father, maam.

q In what part of the house did this happen?

q For how long [was] he on top of you?

a Inside the room, maam.

a Five (5) minutes, ma am.

q Do you mean to say you have one room?

q After he inserted his organ into yours what did he do?

a Two (2) rooms, maam.

a He threatened me not to tell anyone because he will kill me.

q Who were with you in that room sleeping.

q After he inserted his private part into yours what did you feel?

a My siblings, maam.
a Very painful, ma am.

q Who were they?

q What more did he do to you?

a Cherryl.
a None, maam.

q Do you know her age?

q Who were with you in your house at that time?

a (16) years old, maam.

q Why did you not report to anybody?

WITNESS:

a Because I was afraid of my father. He is going to kill me, maam.

Angeline, 4 years old, Leody 10 years old, Robert, 6 y[ea]rs old and myself, maam.

PROS. PANGANIBAN:

PROS. PANGANIBAN:

Your Honor may I manifest into the record that while the witness is answering she is crying.

q At the time your father was [having] sexual intercourse [with you], do you know where
your brothers and sisters you mentioned [were]?

[THIRD INCIDENT]

q Aside from the second incident, is there any other instance that happened [to] you?
a They were beside me, maam.

a There was, maam.

q What were they doing?

q What was this incident?

a They were sleeping, maam.

a Last week of October, 1999, maam.

q Did you report this second incident to anybody?

q What happened to you during the last week of October?

a No, maam.

a I was sleeping, my father laid beside me, and touched my private part. After that he
removed my shorts and panty and he removed his underwear.

q Did you report this incident to anybody?

a No, maam. Because I was afraid of my father, he is going to kill me.

q What happened more?

xxx xxx xxx

a He told me not to shout, he is going to kill me.

q What happened?

a He laid himself on top of me. He again inserted his organ into mine.

The informations against appellant alleged that the crimes were committed by means of
force, threat or intimidation. A perusal of the complainants testimony indicates that the
prosecution attempted to establish that the first and third rape charges where committed
by means of threat and intimidation. The complainant testified that on the first incident,
appellant touched her private part and told her not to create noise or he will kill her.
Thereafter, appellant removed her shorts and panty and placed himself on top of the
complainant. As to the third incident, the complainant testified that before appellant laid
himself on top of her, he again told her not to shout or else he will kill her.

q What more did he do to you after inserting his organ into yours?

a None.

PROS. PANGANIBAN:

q After inserting his private part into yours what happened?

a He made an up and down movement and then I felt something hot come out of his
organ. Then he warned me not to tell anybody because he is going to kill me.

On the other hand, the complainants testimony does not bear out the elements of threat or
intimidation on the second rape incident. The complainant testified that appellant
threatened to kill her, should she tell anyone about what happened, only after the alleged
rape was committed. Hence, appellant cannot be said to have threatened or intimidated
the complainant into having sexual relations.[9] Nevertheless, as borne out by the same
testimony, force was shown to have been employed in the consummation of the sexual
act. In the complainants testimony, she declared that appellant had forcibly inserted his
organ.

The Court shall now determine whether the aforementioned circumstances employed by
appellant sufficed to vitiate the consent of the complainant.

Under the doctrine laid down in People v. Dulay,[10] the traditional concept of rape is that
carnal knowledge is gained against or without the consent of the victim. If the rape is
made by force, violence or intimidation, it is self-evident that it was made against or
without the victims consent. Republic Act No. 8353, the Anti-Rape Law of 1997, states:

conclusion that touching the labia majora or the labia minora of the pudendum constitutes
consummated rape.
Article 266-D. Presumptions - Any physical overt act manifesting resistance against the act
of rape in any degree from the offended party, or where the offended party is so situated
as to render her/him incapable of giving valid consent, may be accepted as evidence in the
prosecution of the acts punished under Article 266-A.

The rule is that resistance may be proved by any physical overt act in any degree from the
offended party. Tenacious resistance, however, is not required. Neither is a determined and
persistent physical struggle on the part of the victim necessary.[11]

It is true that complainants testimony does not indicate that she put up any resistance
against the sexual advances of appellant. This notwithstanding, proof of resistance is not
necessary in light of appellants moral ascendancy over the complainant. Being the father,
appellants force or threat was sufficient to create fear in the mind of the complainant
compelling her to submit to his sexual abuse.[12]

The complainants description of the first incident, however, cannot be deemed as rape.
The complainants testimony shows that appellant was not able to insert his organ.
Appellant merely rubbed it against her private part until ejaculation. In People v.
Campuhan,[13] the Court extensively discussed what should constitute rape:

The pudendum or vulva is the collective term for the female genital organs that are visible
in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris,
the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after
puberty, and is instantly visible within the surface. The next layer is the labia majora or the
outer lips of the female organ composed of the outer convex surface and the inner surface.
The skin of the outer convex surface is covered with hair follicles and is pigmented, while
the inner surface is a thin skin which does not have any hair but has many sebaceous
glands. Directly beneath the labia majora is the labia minora. Jurisprudence dictates that
the labia majora must be entered for rape to be consummated, and not merely for the
penis to stroke the surface of the female organ. Thus, a grazing of the surface of the
female organ or touching the mons pubis of the pudendum is not sufficient to constitute
consummated rape. Absent any showing of the slightest penetration of the female organ,
i.e., touching of either labia of the pudendum by the penis, there can be no consummated
rape; at most, it can only be attempted rape, if not acts of lasciviousness.

Without the penetration, the crime committed is either attempted rape or acts of
lasciviousness.[14] Attempted rape, however, requires that the offender commence the
commission of rape directly by overt acts but does not perform all the acts of execution by
reason of some cause or accident other than his own spontaneous desistance.[15] In the
present case, nothing prevented appellant from consummating the act and it would seem
that he was already contended with rubbing his penis against the complainant without
actually inserting it into her private part. Thus, appellant cannot be convicted of attempted
rape but only of acts of lasciviousness for the June 1999 incident.

xxx xxx xxx

.[T]ouching when applied to rape cases does not simply mean mere epidermal contact,
stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer
of the victims vagina, or the mons pubis, as in this case. There must be sufficient and
convincing proof that the penis indeed touched the labias or slid into the female organ,
and not merely stroked the external surface thereof, for an accused to he convicted of
consummated rape. As the labias, which are required to be touched by the penis, are by
their natural situs or location beneath the mons pubis or the vaginal surface, to touch them
with the penis is to attain some degree of penetration beneath the surface, hence, the

As to the second and third incidents, the complainants candid narration is complete in all
its details. There was a categorical declaration that appellant either used force or
threatened to kill her before inserting his penis into her vagina. Evidently, all the required
elements to convict for rape are present: 1) the offender had carnal knowledge; and 2) by
using force, threats or intimidation.[16] The Court finds no reason to doubt the testimony
of the complainant, whose credibility has already been passed upon by the trial court.
Settled is the rule that when credibility is in issue, the Court generally defers to the
findings of the trial court. Having heard the witnesses and observed their deportment
during trial, the trial court is in a better position to decide the question.[17] Moreover, the

testimony of the complainant is entitled to great weight, as a daughter would not accuse
her father of a heinous crime had she not been really aggrieved.[18]
c. If the victim is alleged to be below 12 years of age and what is sought to be proved is
that she is less than 18 years old;
On the Proper Penalty

The Court now resolves the issue of whether the ultimate penalty of death should be
imposed on appellant for the second and third rape charge.

Article 266-B of the Revised Penal Code dictates that the penalty of death shall be imposed
if the victim is under eighteen years old and the offender is a parent. Appellant contends
that even though his relationship to the complainant is admitted, the minority of the latter
was not sufficiently proven. While there may have been testimony from the complainant,
to the effect, that she was less than 18 years-old at the time of rape, it was still
indispensable for the prosecution to present the original birth certificate. Appellant claims
that a photocopy of the birth certificate was marked provisionally, as an exhibit, but the
original was never submitted.

People v. Pruna,[19] held that the best evidence to prove the age of the victim is the
original or certified true copy of the birth certificate. In the absence of the birth certificate,
similar authentic documents such as baptismal certificates and school records which show
the victims age may be offered. Should these be unavailable, the testimony, if clear and
credible, of the victims mother or member of the family either by affinity or consanguinity
who is qualified to testify on matters respecting pedigree such as the exact age or date of
birth of the offended party pursuant to Section 40, Rule 130 of the Rules of Court shall be
sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that
she is less than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that
she is less than 12 years old; and

The Court has meticulously examined the records of the case and finds that the original
birth certificate was indeed presented by the prosecution.[20] In fact, during the
prosecutions formal offer of exhibits, appellant manifested no objection to it being entered
into the records as part of the testimony of the complainant.[21] Clearly, the prosecution
was able properly to establish the minority of the complaint in the manner prescribed by
current jurisprudence. The Court therefore sustains the trial courts imposition of the death
penalty.

WHEREFORE, premises considered, the assailed decision of the Regional Trial Court of Iloilo
City, Branch 38, in Criminal Case No. 10857, is MODIFIED, and appellant is ACQUITTED of
the charge of rape, but is CONVICTED of the crime of acts of lasciviousness, as defined and
penalized under Article 336 of the Revised Penal Code, and sentenced to suffer the
indeterminate penalty of 6 months of arresto mayor, as minimum, to 6 years of prision
correccional, as maximum. Appellant is ordered to pay the complainant the amount of
P20,000 as moral damages plus costs of suit.[22] The decision in Criminal Cases Nos.
10858 and 10859 are AFFIRMED, with the MODIFICATION that the award of moral damages
is increased to P75,000 and additional awards are granted in the amounts of P75,000 as
civil indemnity and p25,000 as exemplary damages, the same being for each of the rapes,
all in accordance with recent jurisprudence.[23]

Three of the Members of the Court maintain the unconstitutionality of Republic Act No.
7659 insofar as it prescribes the death penalty. Nevertheless, they submit to the ruling of
the majority to the effect that the law is constitutional and that the death penalty can be
lawfully imposed herein.

In accordance with section 25 of Rep. Act No. 7659 amending Section 83 of the Revised
Penal Code, let the records of this case be forthwith forwarded, upon finality of this
Decision, to the Office of the President for possible exercise of the pardoning power. No
costs.

SO ORDERED.
G.R. No. 79811 March 19, 1990
PEOPLE OF THE PHILIPPINES vs PIO CANTUBA & PEDRITO LALAGUNA
PARAS, J.:
The accused-appellants Pio Cantuba and Pedrito Lalaguna together with co-accused
Gualberto Versales (aliasBerting), Satur Gerbuela, Ricardo Baco, Rogelio Penales
(alias Pugo), Romeo Totong Labuyo and Mayor Moises Espinosa were charged with the
crime of Murder under Art. 248 of the Revised Penal Code in an amended information
which reads as follows:
That on or about December 23, 1981 in the municipality of Masbate,
province of Masbate, Philippines, and within the jurisdiction of the
Honorable Court, the said accused, confederating with each other, did then
and there willfully, unlawfully and feloniously, with evident premeditation
and with night-time as a means to better facilitate the commission of the
crime, attack, assault and use personal violence upon one ATTY. ADOLFO
CELERA, by then and there shooting him at several parts of his body,
thereby inflicting upon the latter, mortal wounds which are the direct and
immediate cause of his death thereafter.
Contrary to law. (p. 124, Rollo)
The accused Cantuba, Lalaguna, Versales, Gerbuela, Baco and Mayor Moises Espinosa
pleaded not guilty upon arraignment. Penales and Labuyo remained at large and were not
arraigned.
The defense, in a motion for an order requiring the Prosecuting Fiscal or Fiscals in this case
to conduct another investigation and thereafter to include in the Amended Information all
persons, who appear responsible therefor, moved for the inclusion of one Pat. Torrecampo,
a confessed participant in the alleged crime, as one of the accused. Although the motion
was granted by the court, the issue was eventually rendered moot and academic when the
trial was completed without the Prosecuting Fiscals having complied with the court's order.
On April 27, 1987, the trial court rendered a decision, the dispositive portion of which
states:

WHEREFORE, premises considered, we find accused PIO CANTUBA and

PEDRITO LALAGUNA, guilty beyond reasonable doubt of the crime of
Murder, and hereby sentences each of them to suffer the penalty
of RECLUSION PERPETUA, to indemnify jointly and solidarily the heirs of
Atty. Celera in the sum of One Hundred Thousand (P100,000.00) Pesos, and
to pay the costs.
Accused GUALBERTO VERSALES, SATUR GERBUELA and MAYOR MOISES R.
ESPINOSA, are hereby ACQUITTED, for insufficiency of evidence to
establish guilt beyond reasonable doubt, with the consequent cancellation
of their bailbonds.
The case against accused RICARDO BACO who is already dead is
DISMISSED.
The case against ROMEO alias TOTONG LABUYO and ROGELIO
PENALES alias PUGO who, up to the present are at large, is hereby placed
in the ARCHIVES.
SO ORDERED. (pp. 66-67, Rollo)
The trial court gave credence to the testimonies of the prosecution witnesses Margie Rotor,
Romulo Tama and Pat. Rodolfo Torrecampo and on the basis of their testimonies the facts
as hereunder narrated are reconstructed by the Solicitor General, as follows:
On December 21, 1981, Patrolman Rodolfo Torrecampo, then under
suspension but working as the bodyguard of Mayor Moises Espinosa, went
to Dagusungan, Milagros, Masbate to fetch one Romeo "Totong" Labuyo,
the "encargo" of Mayor Espinosa's ranch, and to Pulang-Bato, Masbate,
Masbate to fetch Pio Cantuba, the mayor's "sidekick" in his cockpit (TSN,
Sept. 3, 1985, pp. 335, 337; TSN, September 2, 1985, p. 297).
On December 23, 1981, all three went to the provincial jail to secure the
release of Ricardo Baco, a detention prisoner (TSN, Sept. 3, 1985, pp. 338,
342). Together with Baco, they proceeded to the house of Saturnino
Gerbuela, a provincial guard, but the latter was not at home (Id., p. 343).
They left Baco behind to wait for Gerbuela with instructions that they both
should proceed to Sunrise Disco Pub a 6:00 p.m. (Id.). Torrecampo, Labuyo
and Cantuba went to the Bel-Air Theater to kill time staying there for about
two hours before proceeding to the Sunrise Disco Pub (Id., pp. 344, TSN,
November 7, 1985, p. 446). Ricardo Baco was already at the Sunrise Disco
Pub when they arrived (TSN, September 3, 1985, p. 345).

Torrecampo told the group to wait outside while he checked inside the pub
to see if Atty. Adolfo Celera was inside (Id., p. 345). As the pub was dark,
he could not confirm Atty. Celera's presence (Id., p. 346). Coming out of the
pub, Torrecampo explained to Cantuba, Labuyo and Baco how they would
kill Atty. Celera. He handed to Labuyo a .45 cal. pistol and to Baco a knife
(machete) (Id., pp. 346-347). Torrecampo described the features of the
victim to Baco (Id., p. 346) and instructed Cantuba, who knew Atty. Celera,
to signal Baco and Labuyo as soon as he sees their victim approaching
(TSN, November 7, 1985, p. 446).
Atty. Adolfo Celera was a practicing lawyer and had run for public office
(Id., p. 450). He had been the lawyer for the complainant in a rape case
brought against Mayor Espinosa, formerly Governor of Masbate (TSN,
January 23, 1985, p. 75, TSN, October 21, 1987, pp. 3-4), who at the time
of Atty. Celera's death had filed a case against the latter for moral
damages (TSN, September 2, 1985, p. 294). After the trial of the damage
suit began, Atty. Celera confided to his wife that Mayor Espinosa had
warned him that should he lose the suit a "miracle" would happen (TSN,
October 21, 1985, pp. 4, 5). Subsequently, Atty. Jolly Fernandez (later
Assemblyman), who collaborated with Atty. Celera in the rape case against
Mayor Espinosa, was "bombed" as he left the court on December 2, 1981
(Id., pp. 6, 7).
On the evening of December 23, 1981, Atty. Celera, together with Margie
Rotor and Ave Refil, attended the Christmas party of the Bureau of Land
Transportation (BLT). They left the place after staying for one hour and took
a tricycle to Pil-Tel, a local long distance telephone company. Atty. Celera
went inside Pil-Tel while his companions waited outside. Margie Rotor
noticed that there were also three other people standing outside Pil-Tel (Id.,
p. 59) one of them she recognized as Pio Cantuba a long time
acquaintance (Id., p. 60). After 5 minutes, Atty. Celera came out of Pil-Tel
and then headed for the Sunrise Disco Pub (TSN, January 23, 1985, pp. 56,
58, 61) just across the street from Pil-Tel. (Id., p. 58, 59; TSN, June 10,
1985, p. 135). Ave Refil was called by somebody and Atty. Celera and
Margie Rotor went inside the Pub and ordered a bottle of White Castle and
before they had consumed its contents Atty. Celera told her that he will go
home already (Id., p. 62)
Margie Rotor accompanied Atty. Celera to the gate of the pub where they
stood facing the street waiting for a tricycle, with Margie Rotor standing at
the right side of Atty. Celera (TSN, January 23, 1985, p. 63). The gate was
lighted by a long flourescent lamp. Near them, by the side of Carandang
Optical, Margie Rotor noticed a man standing by a blue Yamaha Motorbike
with a butterfly sticker (Id., p. 71). She also noticed that Pio Cantuba and

his two companions were still standing near the wall of Pil-Tel (Id., p. 63;
TSN, January 24, 1985, p. 133). Then the three dispersed. Pio Cantuba
walked towards UCPB which was to her left and then Cantuba returned and
headed towards where she and Atty. Celera were standing (Id., p. 64). One
of Cantuba's companions who was wearing white t-shirt and maong pants,
whom Margie Rotor recognized in the courtroom and turned out to be
Ricardo Baco, circled behind them (Id., p. 64).
As Cantuba slowly approached them, Margie Rotor saw that Cantuba was
holding a gun (Id., p. 65). Then she heard a gunfire (TSN, September 3,
1985, p. 348) and Atty. Celera staggered. Then Ricardo Baco rushed from
behind and stabbed Atty. Celera twice on the left chest (Id., p. 349; TSN,
January 23, 1985, p. 66). Atty. Celera fell to the ground, groaning (Id., p.
67).
As Cantuba and Baco were fleeing, Margie Rotor saw a "tricycle" speeding
towards the fallen victim (Id., p. 68) but Margie Rotor was able to pull his
body out of its path (Id., p. 69). The glaring lights of the vehicle made it
difficult for her to make out and identify the rider (Id., p. 68). However, 17
year old Romulo Tama, a bystander who had also seen the blue Yamaha
motorbike with a butterfly sticker near Carandang Optical, saw the rider,
whom he recognized as Pedrito Lalaguna, start the engine and speed away
right after Atty. Celera fell to the ground mortally wounded (TSN, June 10,
1985, pp. 131, 132).
Margie Rotor, Patrolman Igloso and Nino, a waiter at Sunrise Disco Pub,
took Atty. Celera to the Masbate Provincial Hospital in a tricycle (TSN, June
23, 1985, pp. 69, 70). Atty. Celera sustained a gunshot in the left lumbar
area, or at the left back just above the waistline, with no exit wound, and
two stab wounds on the left side of his body, one over the "epig. area" and
the other between the 6th and 7th ribs between sternal and mid-clavicular
lines or just below the nipple (TSN, July 30, 1985, p. 259; September 2,
1985, pp. 291-292). Adolfo Juancho Celera, Jr., eldest son of the deceased,
also rushed to the hospital and saw the doctor remove a .45 cal. slug from
his father's right torso (TSN September 2, 1985, p. 288). Atty. Celera died
in the hospital.
Technical Stg. Randolf Arizala, together with Col. Cesar Veloso immediately
investigated the reported shooting of Atty. Celera (TSN, November 26,
1984, p. 13). Arizala saw the slug that was extracted from the deceased
(Id., pp. 14, 15). As a result of an on-the-spot investigation, Sgt. Arizala
traced the blue Yamaha motorcycle to Ernesto Lampago and found the
vehicle at the latter's address in Masbate, Masbate (Id., pp. 16, 18). While

the rear tire was deflated, Sgt. Arizala observed that the engine was still
warm (Id., p. 17). Sgt. Arizala impounded the vehicle (Id., p. 18).
That same evening, at around nine o'clock in the evening, Romeo Gerona,
went out of his sister's house to buy cigarettes (TSN, July 30, 1985, pp.
266, 267). On the way, a tricycle with four persons on board passed him
and then stopped in front of the house of Mayor Espinosa (Id., p. 267). He
recognized two of them Pugo Penales and Pio Cantuba (Id., pp. 267,
268). (pp. 4-9, Appellee's Brief; p. 124, Rollo)
Now Appellants Pio Cantuba and Pedrito Lalaguna filed the instant appeal assigning the
following errors:

I
The Lower Court erred in finding that accused, Pio Cantuba, fired the fatal
shot that snuffed the life of deceased Adolfo Celera, despite overwhelming
evidence to the contrary.
II
The Lower Court erred in convicting accused, Pedrito Lalaguna, despite the
fact that the only evidence against him considered solely of having been
seen driving a motorbike away from the scene of the crime.
III
The Lower Court erred in disregarding the constitutional right of the
accused to be presumed innocent until proven guilty beyond reasonable
doubt. (p. 3, Appellee's Brief)
It is the contention of accused-appellant that even if he (Cantuba) did approach the victim
with a gun in his hand, it was never established that the fatal shot came from his gun.
The contention is untenable. First, the factual points marshalled by the appellants do not
engender reasonable doubt as to his (Cantuba) culpability. Second, even assuming that he
(Cantuba) never fired his gun, he would still be principally liable as a co-consipirator in the
killing of Atty. Celera under the principle that the act of a conspirator is the act of all coconspirators. The degree of actual participation in the commission of the crime is
immaterial in a conspiracy.

With regard to the alleged conflicting testimonies of the two principal witnesses, Margie
Rotor and Pat. Torrecampo, as to who really fired upon Atty. Celera, the Court is convinced
that the testimony of Margie Rotor is more credible than that of Torrecampo because when
witness Margie Rotor heard the gunfire, it was after she saw Pio Cantuba holding a gun
while walking towards them. This court finds that the only competent persons to identify
the person who fired the gun are the witnesses present at the scene of the crime. Witness
Margie Rotor who was standing right beside the victim is more believable than Torrecampo
who was standing across the street. When contradictory statements refer only to minor
details, this does not destroy their credibility. Their inconsistency in minor details is proof
that they were not rehearsed.
With respect to the sworn statement of Ricardo Baco claiming that it was Totong Labuyo
who shot Atty. Celera remain hearsay evidence and, therefore, inadmissible since Baco was
never presented to allow the prosecution to cross-examine him. Moreover, it was physically
impossible for Baco to see who actually fire the gun because Baco went the opposite
direction and encircled Rotor and the victim from behind. His eyes were fixed on the victim
and not on the gunwielder who was at a distance from the victim.
It is well settled rule that when the main thrust of the appeal is that of the credibility of the
witnesses for the prosecution is assailed, and appellant failed to demonstrate why this
court should depart from the cardinal principle that the findings of the trial court on the
matter of credibility should not be disturbed on appeal due to its superior advantage in
observing the conduct and demeanor of the witnesses while testifying unless some fact or
circumstance may have been overlooked that may affect the result of the case.
Anent the second assignment of error, it is the contention of the accused-appellant Pedrito
Lalaguna that the lower court erred in convicting him despite the fact that the only
evidence against him consisted solely of having been seen driving a motorbike away from
the scene of the crime.
We do not agree with the appellant's claim that his participation in Atty. Celera's murder is
tenuous because the records show otherwise. Both prosecution witnesses Margie Rotor and
Romulo Tama testify to one motorbike or "tricycle" that was speeding at precisely the same
time, i.e., immediately after Atty. Celera had fallen to the ground as a result of the gunshot
and stab wounds.
Accussed-appellant Lalaguna points out that Margie Rotor did not testify against him. This
statement is misleading. Margie Rotor testified against the rider of the speeding "tricycle"
as a participant in the ambush because he was bent on running over the fallen Atty. Celera.
The only element missing in her testimony is the identity of the rider because of the glare
of the vehicle's lights. This however, was supplied by Romulo Tama who recognized the
rider to be Pedrito Lalaguna, whom he had known even before the incident. Their
testimonies as to the motorbike aspect of the incident corroborate each other. They both
distinctly remember the noticeable speed of the vehicle and that it happened after Atty.

Celera had fallen to the ground. By reason of their relative vantage points, this court finds
each witness naturally recalling details which the other would not have noticed. This is
indicative of credible and unadulterated testimony. Slight variations in the testimony of two
witnesses strengthen their credibility (People v. Villamil, 135 SCRA 610).
Accused-appellant further calls the attention of this court to the fact that Pat. Torrecampo
did not mention him (Pedrito Lalaguna) as among his companions when the former
directed the killing. This court finds this fact not exculpatory.
It does not in any way contradict the testimonies of Margie Rotor and Romulo Tama that
appellant Lalaguna was at the scene of the crime and tried to run down the victim.
Appellant Lalaguna's identity and participation had been sufficiently established, and his
motives become inconsequential (People v. Soriano, 134 SCRA 542).
The trial court correctly convicted appellant Lalaguna as a co-conspirator as the
circumstances of his participation indubitably showed unity of purpose and unity in the
execution of the unlawful acts as can be gleaned from the fact that, Lalaguna knew of the
plot to assassinate Atty. Celera as he too had been ordered to scout for a man who could
do the job (TSN, Sept. 3, 1985, pp. 355-356). He also knew exactly the place where the
killing was to take place and also the date and approximate time of the assault. At the very
least, therefore, he had to know about the Torrecampo plot and decided to join its
execution. From the legal viewpoint, conspiracy exists if, at the time of the commission of
the offense, the accused had the same purpose and were united in its execution. (People v.
Caday, 28 SCRA 388; People v. Sy, 113 SCRA 207)
Appellant Lalaguna insists that the act of driving a motorbike is an equivocal act. This
would be correct only if the testimony of Romulo Tama were considered in isolation from
the testimony of Margie Rotor, Pat. Torrecampo and Sgt. Rodolfo Arizala which clearly
indicate that Lalaguna drove the vehicle to run down the victim and that he shared in the
criminal intent to do away with Atty. Celera. Therefore, the criminal culpability of appellant
Pedrito Lalaguna had been clearly established.
Relative to the last assigned error, the state has satisfactorily discharged its burden of
proving the guilt of the appellants beyond reasonable doubt. Appellants' discussion of their
third assignment of error seems to imply that the decision was premised on the weakness
of the arguments and evidence for the defense. However, an unprejudiced reading of the
decision and the points already discussed will readily show otherwise.
Be it noted that the questioned judgment tried very well to rebut the defense of alibi of Pio
Cantuba and Pedrito Lalaguna. Appellants' defense of alibi is jurisprudentially weak (People
v. Onquillano, 149 SCRA 442; People v. Acelajado, 148 SCRA 142). As they were not able to
demonstrate by convincing evidence that it was physically impossible for them to have
been at the scene of the crime at the time it was committed. Moreover, the defense of alibi

is generally accepted with caution, because under certain circumstances might exonerate
the accused on the ground of impossibility of participation, or at the very least, raise a
reasonable doubt. In the case at bar, both appellants claimed that on the night and time of
the incident they were not at the vicinity of the Sunrise Disco Pub where the alleged crime
was committed, as they were then in the house of Asst. Provincial Treasurer Manlapaz
playing "pusoy". But considering the admitted fact that the distance between the house of
Asst. Provincial Treasurer Manlapaz where the accused claimed to be, is only 300 meters
away from the Sunrise Disco Pub, where the crime was perpetrated, there is no physical
impossibility for both accused to be at the scene of the crime. Accordingly, such defense
merits no serious consideration. Moreover, both accused were positively identified by
prosecution witnesses Margie Rotor, Rodolfo Torrecampo and Romulo Tama. Accused Pio
Cantuba, as the person who fired the gun and Pedrito Lalaguna, as the rider of the
speeding motorbike or "tricycle" who was bent on running over the fallen body of Atty.
Celera.
WHEREFORE, the decision of the trial court is hereby AFFIRMED, with costs against the
appellants.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MELCHOR RAFAEL y LEGASPI,

MARIO RAFAEL y LEGASPI, and MAXIMO RAFAEL y MACASIEB, accused,

QUISUMBING, J.:

On automatic review is the consolidated decision[1] of the Regional Trial Court of Quezon
City, Branch 217, in Criminal Cases No. Q-94-59454, and No. Q-94-59453. In the first case,
it convicted appellant of the crime of murder, sentencing him to suffer the penalty of
death, and ordering him to pay the heirs of the victim the amount of P50,000.00 as
indemnity, P94,000.00 as funeral expenses, and to pay the costs. In the second, it
convicted appellant of the crime of frustrated murder, sentencing him to suffer an
indeterminate penalty of six (6) years of prision correccional as minimum to twelve (12)
years of prision mayor as maximum, and ordering him to indemnify the victim the amount
of P36,500.00, and to pay the costs.

Appellant and his two sons, Melchor and Mario, were accused of the crime of murder for
stabbing to death Gloria Tuatis-Rafael, niece-in-law of appellant, and of the crime of
frustrated murder of Alejandra Macaraeg-Rafael, sister-in-law of appellant.

On October 25, 1994, appellant and his two sons were charged under the following
Informations:[7]

Criminal Case No. Q-94-59454 (MURDER)

The facts, based on the records, are as follows:

On August 28, 1994, at around 8:00 P.M., at Rosal Street, Pingkian III, Pasong Tamo, Quezon
City, Alejandra and her daughter-in-law Gloria, were preparing dinner in the kitchen when
they heard a commotion outside the house. Without warning, appellant and his two sons,
Melchor and Mario, barged inside the kitchen. Appellant was unarmed while Melchor and
Mario were armed with bolos. Suddenly, Melchor hacked Alejandras left hand, severing it
from her body. Alejandra slumped in a corner and pleaded with Melchor not to kill her.
Appellant stood in front of the kitchen door watching the grisly incident unfold. After
hacking Alejandra, Melchor turned to Gloria and hacked her on the head. Gloria managed
to run outside the house but Mario chased her. At this point, Alejandra could no longer see
what was happening to Gloria because of the continuous bleeding of her hand. Melchor
turned to Alejandra anew and continued to stab her on the different parts of the body.
Alejandra feigned death by lying still. Believing that Alejandra was dead, Melchor left her
and went outside. Alejandra heard appellant telling his two sons in the Pangasinan dialect,
Patayin, patayin iran amen! (Kill them all!).[2]

The commotion woke Rogelio Rafael, who was sleeping upstairs.[3] When Rogelio peeped
through the jalousie window, he saw Melchor and Mario chasing his wife Gloria. The scene
was illuminated by a light coming from the nearby piggery. When Gloria stumbled, Melchor
and Mario repeatedly hacked her. Rogelio shouted at them to have mercy on his wife. He
frantically rushed downstairs to help her. When he got outside, however, the assailants had
already fled. He tried to run after them but failed. When Rogelio went back to check on his
wife and mother, he found his wife, Gloria, dead, and his mother, Alejandra, with her left
hand severed. He requested his brother-in-law, Paking Aragon, to rush Alejandra to the
hospital.[4] Paking brought Alejandra to the East Avenue Medical Center where she was
diagnosed to have traumatic amputation, L. wrist. Hacking wound base of 2nd finger and
base of mid phalanx 3rd finger, R.[5] Thereafter, Rogelio reported the stabbing incident to
the Batasan Police Detachment.[6]

That on or about the 28th day of August 1994, in Quezon City, Philippines, the said
accused, conspiring and confederating together and mutually helping one another, with
evident premeditation, treachery and superior strength, by then and there hacking her
with the use of a bolo and hitting her on the different parts of her body, thereby inflicting
upon her serious and mortal wounds which was the direct and immediate cause of her
death, to the damage and prejudice of the herein (sic) of said GLORIA TUATIS-RAFAEL.

Criminal Case No. Q-94-59453 (FRUSTRATED MURDER)

That on or about the 28th day of August, 1994, in Quezon City, Philippines, the said
accused, conspiring and confederating together and mutually helping one another, with
evident premeditation, treachery and superior strength, did then and there, wilfully,
unlawfully, and feloniously with intent to kill, attack, assault and employ personal violence
upon the person of ALEJANDRA MACARAEG-RAFAEL, by then and there hacking her with a
bolo and hitting her on the different parts of her body, thereby inflicting upon her serious
and mortal wounds which ordinarily would cause the death of said ALEJANDRA MACARAEGRAFAEL, thus performing all the acts of execution which should have produced the crime of
MURDER, as a consequence but nevertheless did not produce it by reason of causes
independent of their will, that is the timely and able medical attendance rendered to said
ALEJANDRA MACARAEG-RAFAEL which prevented her death, to her damage and prejudice.

Only appellant was arrested. His two sons remain at large. Upon arraignment, appellant
entered a plea of not guilty.[8] Joint trial on the merits ensued.

The prosecution presented the following witnesses: (1) Alejandra Macaraeg-Rafael, the
victim whose left hand was severed; (2) Leonardo Rafael, her husband, and brother of

appellant, who testified that a possible motive for the killing was a dispute over an aborted
sale of a parcel of land, whose sale Alejandra blocked, which angered appellant; (3) Elvira
Hamoy, sister of Gloria, who witnessed the killing of Gloria from her house; (4) Rogelio
Rafael, husband of Gloria; (5) Dr. Florante F. Baltazar, Chief of the Philippine National Police
Central Crime Laboratory Service, who conducted the autopsy on the body of Gloria and
who testified that Gloria suffered 18 wounds and the cause of death was the hacking and
stab wounds on her head, body, and extremities.[9]

The defense presented the following witnesses: (1) Benedicto Dizon, a factory worker and
friend of appellant, (2) appellant, (3) Leo Rafael, appellants 15 year-old son, and (4) Lisa
Rafael, appellants daughter.

In Criminal Case No. Q-94-59453 - to suffer the indeterminate penalty of six (6) years of
prision correccional as minimum to twelve (12) years of prision mayor as maximum and to
indemnify Alejandra Rafael y Macaraeg the amount of thirty six thousand five hundred
pesos (P36,500.00) and to pay the costs.

In Criminal Case No. Q-94-59454 - to suffer the penalty of death and to pay the heirs of
Gloria Rafael the amount of P50,000.00 as death indemnity (People v. Molas, G.R. No.
93437-39, February 5, 1993, 218 SCRA 473) and ninety-four thousand pesos (P94,000.00),
representing the funeral expenses and to pay the costs.

SO ORDERED.
Appellant interposed the defense of alibi and denial. He claimed that on August 28, 1994,
at around 7:30 P.M., he and his son Leo were on their way home from the FEU FERN where
appellant works as a caretaker. When they passed by Dizons house in Sapphire St., Fern
Village, Quezon City, they saw Dizon, one Mang Samuel and Jaime Mayapis engaged in a
conversation about fighting cocks. Appellant and his son joined the conversation for about
30 minutes. Thereafter, they headed towards their house which was located some 400
meters away. That same night, while appellant and Leo were resting, several policemen
came to their house looking for Melchor and Mario. Appellant and Leo were ordered to step
out of the house and lie on the ground while the policemen searched their house for
Melchor and Mario. When these two could not be found, appellant and Leo were brought to
Precinct No. 6 where they saw Rogelio, Glorias husband. They were later brought to
Precinct No. 3 which had jurisdiction over the crime. Thereafter, they proceeded to the
house of Rogelio where they found a severed hand. Afterwards, they went home and the
policemen got the pictures and identification cards of Melchor and Mario.[10]

On October 30, 1995, the trial court rendered a decision[11] finding appellant guilty as
charged. The dispositive portion of the decision reads:

WHEREFORE, in view of the foregoing and in consideration of the aggravating

circumstance of dwelling, MAXIMO RAFAEL is hereby sentenced:

Hence, the present automatic review. Appellant prays for acquittal or, in the alternative, for
a lower penalty by being held liable merely as an accomplice. He claims that the trial court
committed the following errors:[12]

I. THE COURT A QUO ERRED IN FINDING THE EXISTENCE OF CONSPIRACY RELATIVE TO THE
INCIDENT IN QUESTION.

II. THE COURT A QUO ERRED IN GIVING FULL FAITH AND UNDUE CREDENCE TO THE
INCREDIBLE, UNPERSUASIVE, INCONSISTENT IF NOT CONTRADICTORY TESTIMONY OF THE
PROSECUTION WITNESSES AND IN DISREGARDING THE EVIDENCE ADDUCED BY THE
DEFENSE.

III. THE COURT A QUO MANIFESTLY ERRED IN RENDERING A VERDICT OF CONVICTION IN

CRIM. CASE NOS. Q-59453 AND Q-94-59454 DESPITE THE FACT THAT ACCUSEDAPPELLANTS GUILT WAS NOT PROVED BEYOND REASONABLE DOUBT.

In brief, we are asked to consider the following issues: (1) whether the witnesses for the
defense were credible; (2) whether conspiracy was sufficiently proved; and (3) whether the
guilt of appellant was proved beyond reasonable doubt either as a principal or merely as
an accomplice.

On the first issue, regarding credibility of witnesses, appellate courts generally do not
disturb the findings of the trial court, considering that the latter is in a better position to
decide the question, having heard the witnesses themselves and observed their
deportment and manner of testifying during the trial. The rule admits of certain exceptions,
such as: (1) when patent inconsistencies in the statements of witnesses are ignored by the
trial court, or (2) when the conclusions arrived at are clearly unsupported by the evidence.
[13] The Court is likewise not precluded from making its own assessment of the probative
value of the testimony of the witnesses on the basis of the transcript of stenographic notes
(TSNs) thereof.[14]

After conducting a thorough review of the records, however, we see no cogent reason to
fault the factual findings of the trial court. The testimonies of the prosecution witnesses,
when pieced together, jibe in material points to give the whole picture of the stabbing
incident. Alejandra testified as to the circumstances surrounding the inception of the
attack, while prosecution witnesses Elvira and Rogelio testified as to subsequent events
which occurred outside the house. Further, the alleged inconsistencies pointed out by
appellant pertain to minor details which do not detract from the credibility of the
prosecution witnesses. The test is whether their testimonies agree on the essential facts
and substantially corroborate a consistent and coherent whole.[15] When queried,
appellant himself could not think of any reason why the prosecution witnesses would
falsely implicate him in the commission of the crimes.[16] Absent any evidence showing
any reason or motive for prosecution witnesses to perjure themselves, the logical
conclusion is that no such improper motive exists, and their testimonies are thus worthy of
full faith and credit.[17]

Moreover, it appears that appellants own version of the incident lacks persuasiveness. He
denies participating in the gory incident, claiming that he was not at the crime scene but
on his way home from the FEU FERN and that he passed by Dizons house in Sapphire St.,
Fern Village, Quezon City. However, two prosecution witnesses, namely Alejandra and
Elvira, saw appellant at the locus criminis, Gloria Rafaels residence in Pingkian III, Pasong

Tamo, Quezon City. Being his relatives, they could not have possibly been mistaken as to
his identity. Thus, in the face of his positive identification as one with the assailants, his
defense of denial and alibi must fail.[18]

Regarding the second issue, appellant insists that conspiracy was not established by clear
and convincing evidence. The prosecution, appellant claims, failed to prove that he and his
two sons had a prior plan to kill the victims. Even granting that appellant shouted Patayin,
patayin iran amen, he could not be held liable as a principal because when he uttered
those words, the other accused had already fatally wounded the victims.

Further, appellant points out the following inconsistencies in the testimonies of prosecution
witnesses - First, Alejandra testified that after Gloria ran from the kitchen, she did not see
what happened next. However, she later testified that she saw accused Melchor and Mario
hacking Gloria. Second, it was unclear from Alejandras testimony whether the kitchen door
was open or closed at the start of the attack. Third, Elvira, a neighbor testified that she
was attending to her children when the incident occurred, but later testified that she and
her husband (actually, he was the husband of Gloria, not Elvira) were already sleeping in
their bedroom with their children. Fourth, Elvira testified that during the attack, appellant
was shouting in front of the kitchen but later testified that he was merely watching the
incident. Fifth, while Elvira testified that Gloria suffered injuries on her breast and right side
of the face, Alejandra testified that Gloria was merely stabbed in the head once. Sixth,
Alejandra wavered in her testimony as to whether appellant was carrying a bolo at the
time of the incident. Appellant also argues that because prosecution witness Elvira testified
that when she saw the gruesome incident, she lost her presence of mind, she could not
have been in a proper state of mind to recall the details of the incident. Further, he points
out that while Alejandra testified that appellant was present at the crime scene,
prosecution witness Rogelio testified seeing only accused Mario and Melchor at the locus
criminis.

The Office of the Solicitor General counters that conspiracy was duly proven by the
prosecution. The culprits arrived together at the crime scene, and acted in concert in their
criminal design. Appellant oversaw the carnage and directed his sons to kill the victims,
shouting Patayin, patayin iran amen. Thereafter, appellant and his sons fled together. Thus,
the surrounding circumstances indicate a community of criminal intent, which is the
essence of conspiracy.

Appellant was convicted of the crime of murder and frustrated murder because of the
alleged conspiracy among the three accused. Conspiracy exists when two or more persons
come to an agreement concerning the commission of a crime and decide to commit it.[19]
Conspiracy, like the crime itself, must be proven beyond reasonable doubt.[20] Mere
presence, knowledge, acquiescence to or agreement to cooperate, is not enough to
constitute one as a party to a conspiracy, absent any active participation in the
commission of the crime, with a view to the furtherance of the common design and
purpose.[21]

On record, appellants participation in the commission of the crimes consisted of his

presence at the locus criminis, and his shouting Patayin, patayin iran amen! (Kill them all!)
during the later stage of the fatal incident. The prosecution witnesses did not see him
bearing any weapon or using one to inflict any injury on the victims. He did not run away
with the two other accused still at large. Thus, we are far from convinced that conspiracy
existed between appellant and any of his sons. Conspiracy cannot be logically inferred
from the overt acts of herein appellant. We have previously ruled that relationship or
association alone is not a badge of conspiracy.[22] When there is doubt as to whether a
guilty participant in the killing has committed the role of a principal or that of an
accomplice, the court should favor the milder form of responsibility.[23]

Article 18 of the Revised Penal Code penalizes as accomplices those who, not being
included in Article 17 (which enumerates those liable as principals), cooperate in the
execution of the offense by previous or simultaneous acts. Appellant herein had no direct
part in the execution of the killing and maiming of the victims. Nothing on record shows
that he had induced his two sons to go on a stabbing frenzy. The prosecution witnesses
themselves testified that appellant shouted Patayin, patayin iran amen! after Melchor had
already hacked Alejandras hand and after Mario gave chase to Gloria outside the house.
[24] Evidently, appellants utterances could not have been the determining cause of the
commission of the crimes.[25] If at all, it merely had further inflammatory effect on the
accused. As such, appellant cannot be considered a principal by inducement. Neither can
appellant be held liable as a principal by indispensable cooperation. By his proven acts,
appellant could be held liable only as an accomplice.

In order that a person may be considered an accomplice, the following requisites must
concur: (1) community of design; that is, knowing the criminal design of the principal by
direct participation, he concurs with the latter in his purpose; (2) that he cooperates in the
execution of the offense by previous or simultaneous acts, with the intention of supplying

material and moral aid in the execution of the crime in an efficacious way; and (3) that
there be a relation between the acts and those attributed to the person charged as an
accomplice.[26] In this case, appellants acts of going to Glorias house with his sons and his
encouraging shouts clearly demonstrated his concurrence in their aggressive design and
lent support to their nefarious intent and afforded moral and material support to their
attack against the victims. Hence, we are convinced he must be held liable as accomplice
in the commission of the crimes.

May the liability of an accomplice be determined in the absence of trial of the supposed
principals? In Vino v. People of the Philippines and Court of Appeals,[27] we held that [t]he
corresponding responsibilities of the principal, accomplice, and accessory are distinct from
each other. As long as the commission of the offense can be duly established in evidence
the determination of the liability of the accomplice or accessory can proceed
independently of that of the principal. Hence, we find no legal impediment in the
determination of appellants liabilities for the crimes committed.

The qualifying circumstance of treachery clearly attended the killing of Gloria and the
maiming of Alejandra, as the two conditions for the existence of treachery are present, i.e.,
(1) that at the time of the attack, the victim was not in a position to defend himself and (2)
that the offender consciously adopted the particular means, method, or form of attack
employed by him.[28] Appellants sons went to Glorias house armed with bolos, which
ensured the execution of their nefarious deed evidently without risk to themselves and
without affording their victims any real chance to defend themselves.[29] The killing of
Gloria having been attended by treachery, it is without doubt murder.

As to Alejandra, the crime committed was frustrated murder because Melchor performed
all the acts of execution which would produce the felony as a consequence but which,
nevertheless, did not produce it by reason of causes independent of his will.[30] The
numerous wounds inflicted on Alejandra displayed the clear intent to kill. She was hacked
on the right wrist, the palm, lower wrist, fingers, and her head.[31] These wounds would
have caused her death had there been no timely medical intervention.[32] Melchor
desisted from further assault when the gravely wounded Alejandra feigned death. He then
turned to Gloria believing that he had already killed Alejandra.[33] Thus, the crime
committed against Alejandra was frustrated murder.

While both Melchor and Mario were armed with bolos, the two victims, who were women,
were not armed. Hence, abuse of superior strength, which was alleged in the information,
attended the commission of the crime. But treachery absorbs the aggravating
circumstance of abuse of superior strength so the same need not be appreciated
separately.[34] However, the elements of evident premeditation in the commission of the
offenses charged and the pertinence of dwelling in regard to appellants participation were
not sufficiently proven.

The actual damages awarded by the trial court were duly supported by receipts,[40] and
should be allowed. Moral damages should likewise be awarded pursuant to Article 2219 (1)
of the New Civil Code which provides that moral damages may be recovered in a criminal
offense resulting in physical injuries,[41] understood in the generic sense. Rogelio
categorically stated during his testimony that he suffered mental anguish over the death of
his wife.[42]

WHEREFORE, the decision of the trial court is hereby MODIFIED as follows:

Appellant should therefore be found guilty as an accomplice in the crimes of frustrated
murder and murder.

The penalty for murder under Article 248 of the Revised Penal Code, as amended by the
death penalty law, is reclusion perpetua to death. The penalty for an accomplice in murder
is one degree lower than that prescribed by law for the consummated felony.[35] One
degree lower would be reclusion temporal.[36]36 36 There being no mitigating or
aggravating circumstances, the penalty should be imposed in its medium period. Applying
the Indeterminate Sentence Law, the maximum of the penalty should be taken from
reclusion temporal medium, and the minimum of the penalty should be within the range of
prision mayor.

The penalty for an accomplice in frustrated murder is the penalty next lower in degree
than that prescribed by law for the frustrated felony.[37] In effect, the penalty for an
accomplice in the crime of frustrated murder is two degrees lower than reclusion perpetua
to death, which after applying the rules on graduating penalties, would be prision mayor.
[38] Considering that no mitigating or aggravating circumstances attended the commission
of the crime, the penalty should be imposed in its medium period.[39] Applying the
Indeterminate Sentence Law, the maximum of the penalty should be taken from prision
mayor medium and the minimum thereof taken within the range of prision correccional.

(1) In Criminal Case No. Q-94-59454, appellant is found guilty as an ACCOMPLICE in the
crime of MURDER for the death of Gloria Tuatis-Rafael, and sentenced to suffer the penalty
of eight (8) years, eight months and one (1) day of prision mayor medium as minimum to
fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal medium as
maximum, and to pay the heirs of the victim P50,000.00 as civil indemnity, P94,000.00 as
actual damages and P50,000.00 as moral damages;

(2) In Criminal Case No. Q-94-59453, appellant is found guilty as an ACCOMPLICE in the
crime of FRUSTRATED MURDER of Alejandra Macaraeg-Rafael, and sentenced two (2)
years, eleven (11) months and eleven (11) days of prision correccional medium as
minimum to eight (8) years, eight (8) months and one (1) day of prision mayor medium as
maximum, and ordered to pay the victim Alejandra Macaraeg-Rafael the amount of
P36,500.00 as actual damages, and P20,000.00 as exemplary damages.

Costs de oficio.

SO ORDERED.